MEMORANDUM AND ORDER

JOHN GLEESON, District Judge

Curtis Stays petitions for a writ of habeas corpus, challenging his convictions in state court arising out of a shooting incident at a Halloween party in Queens. On November 14, 2003, I held oral argument, in which Stays participated by telephone conference. After due consideration of the papers and the arguments made at the hearing, the petition is denied for the reasons set forth below.

BACKGROUND

The People's evidence at trial established that, on the evening of October 29, 1994, petitioner Curtis Stays (otherwise known as "Sundula"), co-defendant Shonn Hankins and a third unapprehended man attempted to enter a Halloween party. The party was held in a private house in Queens, owned by Peter Adams. Wesley Hall and Timothy Burrows, who were standing at the front door, had been collecting a five-dollar admission fee. They were also supposed to search people for weapons and enforce a no-sneakers policy. Hall would not let Stays, Hankins or the third man into the party because they objected both to being searched and the no-sneakers rule, and did not wish to pay the admission fee. Hankins then began to argue with Hall. Although at one point Hankins turned as if to walk away from Hall, Hankins instead pulled out a gun and pointed it in Hall's face. Hankins pulled the trigger but his gun jammed. Hall tried to grab the gun but decided to run away from Hankins instead, Stays pulled out a second gun and shot Hall in the back, killing him.

Stays was charged with murder in the second degree, two counts of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree.

Stays made a suppression motion that the hearing court denied. Of relevance to the current petition, the court ruled that the photo array used to identity Stays as the shooter was not impermissibly suggestive because all of the photos were sufficiently similar in appearance and did not contain any visual due that would have led a viewer to select Stays's photo.

At trial, Adams testified that he witnessed Stays shoot Hall. Gordon Ross, who was also at the party that night, testified that he saw Hankins attempt to shoot Hall in the head and then saw one of the other two men that accompanied Hankins that night (he could not say which one) shoot Hall.

Stays was convicted by a jury of all of the crimes charged. He was sentenced to concurrent prison terms of from twenty-five years to life on the murder conviction, seven and one-half to fifteen years on the second-degree weapons convictions, and three and one-half to seven years on the third-degree weapons convictions.

In June 1998, Stays, through counsel, appealed his judgment of conviction to the Appellate Division, Second Department. Appellate counsel filed a brief raising three claims: (1) the prosecution failed to prove Stays's identity beyond a reasonable doubt; (2) the prosecutor's summation deprived Stays of due process and a fair trial; and (3) the trial court failed to conduct an inquiry into whether notes taken by a detective, which would have been Rosario material, existed. By permission of the Appellate Division, in February 1999, Stays filed a pro se supplemental brief, in which he raised the Rosario claim as well as three additional claims; (4) the suppression court mistakenly ruled that probable cause existed for his arrest and should have conducted an independent-source hearing; (5) the prosecution exercised its peremptory challenges in a racially discriminatory manner; and (6) the trial court erroneously refused to impose a sanction based on the prosecution's failure to provide a 911 tape.

The Appellate Division rejected all of these challenges and affirmed Stays's conviction on October 25, 1999, People v. Stays, 265 A.D.2d 585 (2d Dep't 1999), In relevant part, the court held that "[v]iewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence,"Id. (internal citation omitted). With respect to the other contentions that are at issue again in this petition, the court held that they "arc unpreserved for appellate review or without merit." Id. The Court of Appeals denied Stays's application for leave to appeal. People v. Stays, 94 N.Y.2d 885 (2000),

On April 18, 2001, Stays filed a pro se petition for a writ of habeas corpus in this Court, on the following grounds;

(a) he was denied equal protection of the law when the court allowed the prosecutor to discriminate during jury selection;

(b) he was deprived of his due process rights when the court failed to impose a sanction for the non-disclosure of a 911 tape;

(c) he was denied his right to a fair trial based on the prosecutor's summation;

(d) the suppression court improperly denied the defense request for an independent-source hearing;

(e) his guilt was not proven beyond a reasonable doubt; and

(f) he was deprived of his right to due process by the trial court's failure to properly inquire about the non-disclosure of the written notes of a detective.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AFDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413, A decision is an Unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case."Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S. Ct., 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175(2003)).

Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 157 L.Ed.2d 1, 7 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). InterpretingWilliams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Id. (citingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman:

[f]or the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1).

B. Stays's Claims

1. The Batson Claim

Stays argues that he was denied equal protection of the law because the prosecutor's reasons for peremptory challenges of African-American women were "patently pretextual" and should not have been believed. (Pet'r Mem., Law at 1.) The respondent contends that Stays has failed to rebut the presumption of correctness that applies to the state court's factual finding that the prosecutor's neutral explanations were credible. (Resp't Mem. Law Opp. Pet. at 19.) I agree with the respondent.

Counsel have at their disposal peremptory challenges to prospective jurors, which can be used to excuse jurors for any reason, except impermissible grounds such as race and sex. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (race-based strikes unconstitutional); J.E.B. v. Alabama, 511 U.S. 127, 146 (1994) (gender-based strikes unconstitutional). In Batson, the Supreme Court resolved certain evidentiary problems faced by defendants trying to establish racial discrimination in peremptory challenges by establishing a three-step, burden-shifting framework, First, the party disputing the other party's attempted peremptory challenge must make a prima facie case that the nonmoving party's peremptory challenge is based on race, Batson, 476 U.S. at 96-97. "Such an inference may stem from a pattern of strikes against minority jurors included in the particular venire or even from the manner of the [non-movant's] questions and statements during voir dire examination." Barnes v. Anderson, 202 F.3d 150, 155 (2d Cir. 1999) (brackets in original). Second, the nonmoving party must assert a race-neutral reason for the peremptory challenge. Batson, 476 U.S. at 97-98. The nonmoving party's burden at step two is very low. Although a race-neutral reason must be given, it need not be persuasive or even plausible, Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam).

Finally, at step three, the court must determine whether the moving party carried the burden of showing by a preponderance of evidence that the peremptory challenge at issue was based on race, Batson, 476 U.S. at 96, 98. Although, throughout the three Batson steps the burden remains with the moving party, at "the third step . . . the persuasiveness of the [nonmoving party's] justification becomes relevant. . . ". Purkett, 514 U.S. at 768, Typically, the "decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed,"Hernandez v. New York, 500 U.S. 352, 365 (1991). Because the evidence on this issue is often vague or ambiguous, the best evidence often will be the demeanor of the attorney who exercises the challenge, The "evaluation of the [striking attorney's] state of mind based on [his or her] demeanor and credibility lies `peculiarly within the trial judge's province,'"McKinney v. Artuz, 326 F.3d 87, 98 (2d Cir. 2003) (quoting Wainwright v. Witt, 699 U.S. 412, 428 (1985)). Courts must accord "great deference" to the trial court's findings in this context, McKinney, 326 F.3d at 100 (quoting Batson, 476 U.S. at 98 n. 21)).

Here, the trial court determined that the prosecutor had offered race — and gender-neutral reasons for her use of the challenged peremptory strikes, and that her explanations were credible. (See Trial Tr. at 457) ("1 find that there are neutral reasons shown for the exceptions made . . . with regard to this on the peremptory challenges.") (referring to Jurors Archibald, Peterson, Donnay and Branch); (id. at 459) (same with regard to Juror Frazier.) These findings of tact are entitled to a presumption of correctness, which Stays has failed to rebut.

With respect to Juror Archibald, Stays complains that she could not have been dismissed due to her lack of attentiveness because she was in fact attentive during voir dire, (Pet'r Mem. Law at 7.) The prosecutor stated that she sought to strike Juror Archibald because she yawned on several occasions (Trial Tr. at 449-50), had her eyes closed during the voir dire (id.), did not answer a crucial question posed by the court (id), and thus the prosecutor was afraid that Juror Archibald would not listen to the evidence during the lengthy trial (id. at 450). Stays has not substantiated his claim that Juror Archibald was alert and actively part of the juror selection process, Nor has he established that the prosecutor failed to exclude similarly-situated jurors. Thus, Stays's complaint on this score has no merit. See McCrory v. Henderson, 82 F.3d 1243, 1248 (2d Cir. 1996) ("a prosecutor's explanation that a venireperson was excluded because he or she seemed, for example, inattentive . . . if credible, is sufficient"); United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990) ("the Government's concern about a juror's inattentiveness is a good reason for its exercising a peremptory challenge.") (citation omitted).

Next, Stays points out that prospective Jurors Branch, Donnay and Frazier were challenged because they had children who were incarcerated or accused of crimes, yet Mr. Lee, who had an imprisoned brother-in-law, was not challenged. (Pet'r Mem. Law at 6-7); (id. at 6) ("If the prosecutor had an actually (sic) policy of excluding jurors who had family, close friends or have themselves been accused of crimes, jailed or involved with the judicial system, certainly Mr. Lee would have been challenged,")

Stays is mistaken. At the outset, I note that a potential juror's negative experience with law enforcement is a race-neutral reason, See. Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000), During voir dire, the prosecutor explained that Juror Branch's son had been jailed for selling drugs and had been recently released (Trial Tr. at 112, 450-51), that Juror Donnay's son had been accused of robbery, although the case was later dismissed (id. at 371-72), and that Juror Frazier's son, a suspect in a robbery, was fatally shot by the police when they tried to arrest him (id. at 375, 441-43, 447-48), The prosecutor further related that she had a policy of excluding such persons: "[I]t's my policy hot to put on people who either have family members or close relatives that have been accused of crime, have been in jail. . . .". (Id. at 448-49); (Id. at 451) (`I'm posing race neutral reasons and the race neutral reasons I have postulated, has a close family member . . . in jail. . . ."). By contrast, the voir dire minutes reflect that Mr. Lee did not have a close family relative involved in crime; rather, he had a brother-in-law who had been in jail, with whom he was not that close. (Id. at 226-27,) Furthermore, the prosecutor had excluded similarly situated jurors, regardless of race or gender. (See id. at 76-78, 451-52) (Juror Davino, a white female, whose son had been charged with a crime and was incarcerated); (id. at 107-08, 452) (Juror Marks, a white male, who had been accused of a crime and received probation.)

Stays also cites the challenge of Juror Peterson. (Pet'r Mem. Law at 7.) Putting aside the fact that Stays never established that Juror Peterson was African-American, the prosecutor offered two legitimate reasons for her peremptory challenge. First, she stated that Juror Peterson's employment as a home health aide was problematic in that such aides tended to be very sympathetic, and that one of the defendants, being "a young kid," would attract such sympathy. (Trial Tr. at 456.) See United States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991) (accepting prosecution's race-neutral reason for striking juror that her occupation as a social worker made her a less desirable juror). Second, that the prosecutor did not believe Juror Peterson to be African-American (Trial Tr. at 446) (believing her to be "Indian"), further supports the state court's factual finding that she was not acting in a racially discriminatory manner. See Hernandez, 500 U.S. at 369-70 (noting uncertainty regarding the ethnicity of a potential juror as "evidence of the prosecutor's sincerity.")

Finally, Stays argues that "the trial court's conclusory statement that the prosecutor's explanations were race-neutral did not satisfyBatson['s] third step * * * because he granted counsel no time to identify the relevant facts and assess the circumstances necessary to decide [the issue]." (Pet'r Mem., Law at 5.) This contention has no merit. First, based on my review of the transcript, I reject the assertion that the trial judge rushed through the peremptory challenges. To the extent that Stays claims that the trial court did not allow the defense to challenge the prosecution, the record belies his claim, (See. e.g., Trial Tr. at 454-55.) Last, the fact that the trial court's statement may have been brief does not alter the fact that he listened to the prosecutor's explanations and the defense counsel's challenges thereto, and made a decision that the prosecutor was credible. Thus, I reject Stays's petition for the writ on this ground.

2. The Improper Summation Claim

Stays claims that his right to a fair trial was violated by the prosecutor's summation, (Pet'r Mem. Law at 14-15,) The claim revolves around the reports by Detectives Cardamone and Solomeno of their interviews with Adams and Ross (respectively) as to what they witnessed on the night of the shooting. The defense successfully offered these reports into evidence and defense counsel read them to the jury. Detective Cardamone's report stated that Adams had stated that he did not see the shooting (his back was turned at the time), and that he was about 50 or 60 feet away from where the shooting occurred. At trial, Adams testified that he saw Stays shoot the victim and that he (Adams) was only four to six feet away at the time. Adams was cross-examined based on the report (which, as mentioned, had been received in evidence), and denied making the statements that conflicted with his trial testimony, Detective Solomeno's report indicated that Ross stated that he saw only one shooter, who he identified as Hankins. At trial, Ross testified that another man (who he could not identify) shot the victim as well Ross also was cross-examined about the inconsistent statement attributed to him by the police report.

In the Appellate Division, Stays's counsel argued that it was improper for the prosecutor to suggest that the two detectives may have erroneously reported the substance of these interviews in their reports — (Def's App, Div. Br. at 35); (Pet'r Mem. Law at 17-18.) The challenged portions of the prosecutor's summation regarding the detectives' reports include the following:

[W]e don't know is this verbatim, is this paraphrased using police terminology. Did the detectives that write [sic] it come to their own conclusions. . . . [I]f We relied on paperwork, I wouldn't have to put on any witnesses. . . . I could hand you these papers, say read them, determine the credibility of everybody, without knowing if they are condensed, if it's their own language, the inflection in people's voices. . . . But we can't do that because we don't know anything about this. So you need live witnesses,

(Pet. Attach, C at 2; Pet'r Mem. Law at 20-21) (quoting Trial Tr. at 2393-95.) These statements were objectionable, appellate defense counsel argued, because there was no evidence that either detective inaccurately recorded the witnesses' accounts, and because the detectives did not testify.

Habeas relief based on a claim of prosecutorial misconduct is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). A petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 19941 cert. denied, 516 U.S. 1152 (1996), In making this determination, the habeas court should consider the severity of the prosecutor's conduct; the measures, if any, that the trial court took to remedy any prejudice; and the certainty of conviction absent the prosecutor's remarks. See Bentley, 41 F.3d at 824.

Stays's claim has no merit. Defense counsel argued in summation that Adams and Ross must be liars because the detectives' written reports contradicted their trial testimony. (See Trial Tr. at 2264-68, 2281-83, 2297-99). The prosecutor's contention that the reports may not be an accurate recording of what Adams and Ross told the detectives they saw that night constituted permissible, responsive argument. The detectives' reports were offered in evidence by the defendants at trial, Having chosen to elicit Adams's and Ross's prior inconsistent statements in that manner — as opposed to calling the detectives to testify — defense counsel understandably assumed the risk that the prosecutor would challenge the weight of the evidence of those inconsistent statements and thus the accuracy of the reports that contained them.

Finally, the trial court's curative instructions to the jury rendered any error harmless. At the end of summations, the court instructed the jurors that the summation arguments were not evidence (Trial Tr. at 2512-13, 2517-18, 2522), and specifically advised the jury as to how to evaluate the statements of Ross and Adams (id. at 2534-35). Thus, I am convinced that Stays received a fair trial, and is not entitled to habeas relief on this ground,

3. The Photo Array Claim

Stays asserts that the trial court improperly denied his request for a hearing to determine the reliability of Adams's identification of Stays from a photo array, (Pet. Attach D, at 1); (Def's Pro Se Suppl. App. Div. B.R. at 20-23.) He argues that the photo array was unnecessarily suggestive, and therefore violated his due process rights. Respondent asserts that no hearing was required because, as the hearing court specifically ruled, the photos were sufficiently alike in appearance and that the array was not suggestive. (Resp't Mem. Law Opp, Pet. at 14.) I agree with the respondent.

When a witness has made a pretrial identification, a challenge to that identification and to an in-court identification of the defendant at trial triggers "a one-step or two-step inquiry," United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990), The first step is to determine whether the pretrial identification procedures were unnecessarily suggestive. Id If they were not, the challenge is denied, and the reliability of the identification is a question only for the jury. See Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986). If the procedures were unnecessarily suggestive, the second step is to determine whether the identification testimony is nevertheless admissible because it is "independently reliable rather than the product of the earlier suggestive procedures."Maldonado-Rivera, 922 F.2d at 973.

"The fairness of a photographic array depends on a number of factors, including the size of the array, the manner of presentation by the officers, and the array's contents," Maldonado-Rivera, 922 F.2d at 974. The defendant's photograph should not be the only one in the array that matches the witness's description of the suspect. Id "One would think that if a suspect is described only in terms of one characteristic, the filler photos in an array would also portray people having that characteristic," United States v. Eltayib, 88 F.3d 157, 166 (2d Cir. 1996) (witness described suspect as having full head of bushy hair; all photos but that of suspect had hair cropped out), see also United Stales v. Fernandez, 456 F.2d 638, 641-42 (2d Cir. 1972) (array impermissibly suggestive where surveillance photos depicted light-skinned male with "Afro" and defendant's photo was only one of six in array that "remotely resembl[ed]" that description). But see United States v. Mickens, 926 F.2d 1323, 1329 (2d Cir. 1991) (fact that defendant's picture was the only photocopy in the array is "insignificant").

Here, I agree with the hearing court and the Appellate Division that the pretrial identification procedures were proper, and thus there was no need for an independent-source hearing. The hearing transcript reveals that the photo array was comprised of six African-American males who looked about the same age and who looked similar in appearance:

The record should note that I have a display folder of six male blacks. Numbers . . . two, three, five and six have sort of a goatee-type beard. They also have very slight mustaches. Number one has no facial hair, Number . . . four . . . has a five o'clock: shadow on his chin. The hair with regard to the individuals: Numbers two and six and three seem to have a higher hair, and the others seem to have shorter hair. There's no particular other facial characteristics other than, again, one looks a smidgen younger than the other people, otherwise they look the same age. There is no other suggestiveness. . . . And all of the people are about the same color complected on this photograph.

(Hr'g Tr. at 52-53.) Stays's photograph was in slot number three. (Id. at 49.) In a written decision, the hearing court ruled that the array was "not impermissibly suggestive since the array of photos depicted individuals sufficiently similar in appearance, so that no characteristic or visual clue would have caused the viewer to select the defendant's photograph." People v. Hankins, Indict. No. 3032/95, at 6 (N.Y.Sup.Ct., Queens County, March 19, 1996).

Furthermore, the record reveals that the identification procedure as a whole was not unduly suggestive. Detective Lane testified that his partners brought each witness, one at a time, to his desk to review the array. (Hr'g Tr. at 229-30,) The two eyewitnesses who identified Stays from the photo array — Adams and Garfield Stewart (also known as "Gavin") — were secluded in their own room after they identified Stays, They did not return to the room with the other witnesses waiting to view the photo array. (Id. at 60-62, 65, 231,)

Based on these circumstances, I conclude that Stays has not met his burden of demonstrating that the state court's decision was contrary to or involved an unreasonable application of federal law. Nor has he rebutted the presumption of correctness that applies to the state court's factual determinations. His chief complaint is that Adams's identification was somehow tainted because at the scene of the crime detectives showed him mug shot books, one of which contained a picture of Stays from 1988, which Adams failed to recognize, and yet in the photo array at the police station almost a year later, Adams recognized Stays from a 1994 photograph, (Pet. Attach, D at 2, 7); (Def's Pro se Suppl. App. Div. Br. at 18-19.) The hearing court found that there was "[not] much of difference between the `88 photo and the' 94 photo." (Hr'g Tr. at 352), It is unclear how the earlier viewing of the 1988 photo could have tainted Adams's viewing of the 1994 photo. Adams did not identify the 1988 photo on the night of the shooting, the photo was one of many presented in mug shot books, and almost a year had elapsed between the two viewings. In any event, such factors would have minimized any suggestiveness. Thus, habeas relief cannot be granted on this ground.

4. The Sufficiency of the Evidence

Stays contends that there was insufficient evidence for the jury to convict him. At bottom, his claim is that Adams's testimony was not credible as a matter of law because it was undermined by the police report that attributed to him a conflicting version of events. Stays also contends that Ross's testimony was incredible as a matter of law for the same reason.

A petitioner "challenging the sufficiency of the evidence bears a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (internal quotation marks omitted). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," Jackson v. Virginia, 443 U.S. 307, 319 (1979). In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility,"United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y, 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution," Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).

Stays cannot meet that heavy burden here. Although there was evidence that the prosecution witnesses had made inconsistent statements in the past, the jury was entitled to resolve the credibility issues in the prosecution's favor. See Jackson, 443 U.S, at 319 ("giv[ing] full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the basic facts to ultimate facts,"); Wheel 34 F.3d at 66. Based on the evidence at trial, there was sufficient proof that Stays committed the crimes charged. Adams testified that, from a close distance in good lighting, he observed Stays shoot Hall after a dispute between Stays, his friends and Hall. (Trial Tr. at 1510-16, 1523-30.) Therefore, Stays cannot prevail on this ground.

5. The Non-Disclosure of Handwritten Notes

Stays asserts that the prosecution failed to turn over handwritten notes that Detective Solomeno purportedly took while interviewing Ross. (Pet. Attach. F. at 1.) At trial, Ross testified that during the interview he saw Detective Solomeno writing intermittently, although he did not see what was being written, (Trial Tr. at 1137, 1190-91, 1205,) At the conclusion of Ross's testimony, Stays's counsel moved for a mistrial because those notes had not been disclosed. (Id. at 1207-08,) The prosecutor told the court that she questioned the detective three times about notes, and that the detective reported that he did not take any notes, but rather typed the report directly. (Id. at 1208-10,) Although the trial court initially told the prosecutor that the detective would have to so testify (id. at 1208), it subsequently held, without a hearing, that defense counsel was not entitled to any relief because there was no indication that the handwritten notes actually existed (id. at 2225-26).

Stays's claim does not present a federal question reviewable by a habeas court, See Morrison v. McClellan, 903 F. Supp. 428, 429 (E.D.N.Y. 1995) ("Any error under Rosario at trial would be a violation of state law, and. thus, not subject to review under a petition for a writ of habeas corpus."). Indeed, appellate counsel's brief discusses only New York State law. (See Def's App. Div. Br. at 41-45.) Furthermore, in light of the fact that an eyewitness, Adams, testified that he saw Stays shoot the victim, any error regarding the detective's notes could not conceivably have had a "substantial and injurious effect or influence in determining the jury's verdict" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).

6. The Non-Disclosure of a 911 Tape

Finally, Stays asserts that he is entitled to the writ because the prosecutor failed to produce the "911" tape of a call made by Burrows shortly after the shooting. (Def's Pro Se Suppl. App. Div. Br. at 29-30) (Pet. at 5, Grnd B.) This evidence was important, argues Stays, because It would have assisted counsel in determining whether or not to call Burrows as a defense witness, According to his statement to the police, Burrows spoke personally with the group of men involved in the incident, and thus might have been able to observe the shooter, (Def's Pro Se Suppl. App. Div. Br. at 29.)

Prior to trial, the prosecutor informed the court that she would neither call Burrows as a witness nor introduce the tape into evidence at trial, (See Resp't Suppl. App. Div. Br. at 42-43.) The prosecutor reported that the tape was requested from the police but could not be located. (Trial Tr. at 2219.) At trial, defense counsel sought an adverse inference charge for the prosecution's failure to preserve the tape, (Id. at 2216-17.) The court determined that the tape was probably destroyed and held that it was not Rosario material because Burrows did not testify. (Id. at 2219, 2224.)

To the extent that this is a claim under Rosario , it fails for the same reasons given above. (See supra Part B.5.) Moreover, it is hard to see how this alleged taping would be Rosario material, as Burrows was not a prosecution witness. See People v. Rosario, 9 N.Y.2d 286, 289-90 (1961) (state must provide criminal defendant with pretrial statements of any witness who will be called to testify on behalf of the prosecution.) As to any general claim regarding discovery, Stays has failed to establish that he was entitled to the tape under federal law. See Williams v. Bartlett, No. 92 Civ. 4217, 1993 WL 299299, at *1 (S.D.N.Y. Aug. 4, 1993) (There is "`no general right to discovery in a criminal case'" (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977))). Finally, if Stays wanted to explore the possibility of calling Burrows as a witness, he did not need the 911 tape to do so. Having been apprised by the police report that Burrows might have been in a position to observe the crime. Stays could have approached Burrows directly. Thus, Stays is not entitled to the writ.

CONCLUSION

For the foregoing reasons, the petition is denied. Because Stays has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.

So Ordered.