Opinion
9:98-CV-1540 (GLS).
February 20, 2004
MOHAMMED YUSUFI, Petitioner, Pro Se, A24-615-220, Pike County Correctional Facility, Lords Valley, PA, for the Petitioner.
SEAN M. SEELY, ESQ., Assistant Atty. General, HON. ELIOT SPITZER, Office of Attorney General State of New York, The Capitol, Albany, NY, for the Respondent.
DECISION and ORDER
I. Background A. State Court Proceedings
On August 20, 1994, Oliver Aarons, an electrician for the Albany Housing Authority ("Housing Authority"), parked his vehicle at the Housing Authority's parking lot and responded to a work request. See Transcript of Trial of Mohammed Yusufi (6/19/95) ("Tr.") at PP. 34-35. When Aarons returned to his vehicle later that day, he noticed that a door to his truck was open and observed two feet protruding from the vehicle ( Tr. at P. 40). Aarons slammed the door to the vehicle on the individual's feet, and the man who had been inside the truck, who was identified at trial by Aarons as Yusufi ( Tr. at PP. 46-47), stood up and the two men began fighting ( Tr. at PP. 40-41). Yusufi began swinging a screwdriver toward Aarons, eventually striking him and causing a scar near Aarons' left elbow ( Tr. at PP. 41-44). Aarons eventually succeeded in subduing Yusufi, and then brought him to the office of Herbert Pratt, a fellow employee at the Housing Authority ( Tr. at P. 93). Once there, Aarons asked Pratt to call the police because Aarons had caught Yusufi breaking into his truck ( Tr. at P. 93). Yusufi then attempted to flee the scene, however, he was detained by Aarons until the police arrived ( Tr. at 101-04).
Prior to that date, Aarons had installed an equalizer on the vehicle's dashboard, an amplifier underneath a passenger seat, and two fifteen inch speakers in his automobile ( Tr. at P. 36).
Aarons was also known as "Pete" ( Tr. at 93).
On August 20, 1994, at 4:45 p.m., Officer Timothy Torain of the Albany Police Department was directed to respond to an emergency call for assistance at the Housing Authority ( Tr. at PP. 112-13). Upon arriving there, he placed Yusufi under arrest ( Tr. at P. 113). Officer Torain and another police officer then went to Aarons' truck, where they observed that: i) a window on the vehicle had been broken; ii) the dashboard had been severely damaged; and, iii) pieces of the truck's stereo were on the floor of the vehicle ( Tr. at PP. 115-16, 125).
The amplifier and equalizer had been placed on the front passenger seat floor, and wires were left hanging from a portion of the truck's dashboard ( Tr. at PP. 54, 57).
On September 23, 1994, an Albany County grand jury charged Yusufi with first degree robbery, fourth degree criminal mischief and petit larceny. See Indictment No. 941054. Yusufi was tried before a jury before County Court Judge Thomas A. Breslin. At the conclusion of that trial, the jury found Yusufi guilty on all counts ( Tr. at 206-08). Judge Breslin thereafter sentenced Yusufi to an indeterminate term of eight and one-third to twenty-five years imprisonment on the robbery conviction, with lesser, concurrent terms on the remaining convictions. See Appendix in Support of Appeal at PP. A64-65.
Yusufi appealed his convictions and sentences to the New York State Supreme Court, Appellate Division, Third Department. That court affirmed, People v. Yusufi, 247 A.D.2d 648 (3d Dept. 1998), and the Court of Appeals denied Yusufi leave to appeal. People v. Yusufi, 92 N.Y.2d 863 (1998).
B. This Proceeding
Yusufi filed his habeas petition pursuant to 28 U.S.C. § 2254 in this District on September 28, 1998 ( Dkt. No. 1). In his petition, Yusufi claims that: i) the prosecution improperly failed to provide the defense with the rap sheet of one of its witnesses; ii) Judge Breslin improperly restricted defense counsel's cross-examination of the victim; and, iii) the prosecution failed to establish Yusufi's guilt beyond a reasonable doubt. See Pet. Then-Magistrate Judge David N. Hurd subsequently issued an order directing respondent to file a response to the petition ( Dkt. No. 3). The Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer and memorandum of law in opposition to the petition ( Dkt. Nos. 8-9). Yusufi thereafter filed additional submissions in further support of his petition ( Dkt. No. 10-13 ). This matter has since been re-assigned to the undersigned for disposition.
II. Discussion A. Standard of Review
Enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), brought about new limitations on the power of a federal court to grant habeas relief to a state court prisoner under 28 U.S.C. § 2254. Under the AEDPA, a federal court may not grant habeas relief to a state prisoner on a claim:
that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
1) resulted in a decision that was contrary to, or involved an unreasonable application, of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d); see also, Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).
The AEDPA applies to all petitions filed after its effective date even where the conviction was obtained prior to its enactment. Williams v. Taylor, 529 U.S. 362, 402 (2000); Boyette, 246 F.3d at 88.
The Second Circuit has provided additional guidance concerning application of this test, noting that
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
When a state court's decision is found to be decided "on the merits", that decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06. A federal court engaged in habeas review must consider not whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable." Williams, 529 U.S. at 409; see also, Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.
B. Substance of Yusufi's Claims 1. Failure to Disclose Rap Sheet of Aarons
In his first ground for relief, Yusufi alleges that both the prosecutor and Judge Breslin were aware that the victim, Aarons, had a rap sheet ( Pet. at Point I; Dkt. No. 2 at P. 8). Yusufi argues that despite the fact that his attorney had requested that the prosecution provide the defense with all Brady material in a pre-trial motion, the rap sheet of Aarons was never provided to the defense ( Id.). Yusufi argues that because the credibility of Aarons was crucial to the prosecution's case against Yusufi, its failure to provide defense counsel with Aarons' rap sheet so that Yusufi's counsel could effectively cross-examine Aarons must result in Yusufi's conviction being vacated ( Id. at PP. 8-10; see also, Dkt. No. 12 at PP. 10-14). a. Clearly Established Supreme Court Precedent
Brady v. Maryland, 373 U.S. 83 (1963).
The nature of the charge that was brought against A arons was not stated in the state court record below. See e.g., Resp. Br. on Appeal at P. 4.
In Brady, the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id., 373 U.S. at 87. To prove a Brady violation, a habeas petitioner must establish that: 1) the evidence at issue was favorable to the accused either because it was exculpatory or could have impeached a prosecution witness; 2) the evidence was suppressed by the prosecution either willfully or inadvertently; and, 3) prejudice ensued from the withholding. Moore v. Illinois, 408 U.S. 786, 795 (1972) (citing Brady); see also, Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). b. Contrary to, or Unreasonable Application of, Supreme Court Precedent
The Appellate Division rejected Yusufi's Brady claim. See Yusufi, 247 A.D.2d at 650. Specifically, that court found that Aarons' criminal history "consisted solely of a 3½ year old charge which . . . had not been prosecuted; [and] the record [was] devoid of any evidence of a judgment of conviction or any active pending prosecution." Id. That court concluded that the jury's verdict "would not have been affected by evidence impeaching the victim's credibility." Id.
Since the rule announced in Brady is clearly established for AEDPA purposes, see Clark v. Portuondo, 00-CIV-2491, 2002 WL 31553502, at *5 (S.D.N.Y. Nov. 13, 2002); Huber v. Schriver, 140 F. Supp.2d 265, 274 (E.D.N.Y. 2001), this court must determine whether the Third Department's denial of this aspect of Yusufi's appeal was contrary to, or involved an unreasonable application of, Brady and its progeny.
i. Favorable to the Accused
In considering whether a party has established the first element of a Brady claim, the Second Circuit has noted that "[e]vidence is favorable to the accused if it either tends to show the accused is not guilty or impeaches a prosecution witness." Boyette, 246 F.3d at 90 (citing United States v. Bagley, 473 U.S. 667, 674 (1985)); see also, Strickler, 527 U.S. at 281. In his reply brief, Yusufi argues that the rap sheet of Aarons was clearly Brady material, and that the Second Circuit's decision in Perkins v. Le Fevre, 691 F.2d 616 (2d Cir. 1982) demonstrates that Yusufi's habeas petition must be granted ( Dkt. No. 11 at PP. 1-3).
In Perkins, the Second Circuit held that the prosecution's failure to provide the petitioner in that case with a rap sheet of a prosecution witness required the granting of a writ of habeas corpus. Perkins, 691 F.2d at 620. However, the salient facts in Perkins are readily distinguishable from those present in this action.
In Perkins, a prosecution witness whose testimony was characterized as being "quite important to the prosecution's case" ( Perkins, 691 F.2d at 617) had testified that "he had spent seventeen days in jail for parking offenses, that he had been arrested only once, that he had never been convicted of a crime, and that no charges were then pending against him." Id. However, the prosecutor was in possession of a rap sheet of that witness which revealed "not only the seventeen-day incarceration for parking violations, but also, in contradiction to [the witness'] testimony, two felony convictions and two arrests on charges that appeared to be still pending." Id., 691 F.2d at 618. The Second Circuit held that because the petitioner's conviction had been obtained using "perjured testimony and . . . the prosecution knew, or should have known, of the perjury," the petitioner was entitled to a writ of habeas corpus. Id., 691 F.2d at 620.
In the present case, in stark contrast to being "quite important" to the prosecution's case against Yusufi, the Appellate Division described Aarons' testimony as "largely cumulative". Yusufi, 247 A.D.2d at 650. Moreover, there have been no allegations, much less proof, that Aarons committed perjury at Yusufi's trial. Thus, the Second Circuit's holding in Perkins is inappropriate.
However, since Yusufi argues that he could have impeached the victim's testimony had he been in possession of Aarons' rap sheet, the court will assume, arguendo, that the document was Brady material. See e.g., Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir. 1992) (assuming, without deciding, that a rap sheet withheld by prosecution constitutes Brady material); see e.g., Boyette, 246 F.3d at 90 (evidence is favorable to the defense if it tends to impeach a prosecution witness).
ii. Suppression by the Prosecution
Since the respondent does not contend that the prosecution ever provided the defense with the victim's rap sheet, and there is no dispute that the document existed, the second Brady element has been established.
iii. Materiality
Turning to the final element of Yusufi's Brady claim, materiality, where there is only a general request for evidence that is not disclosed by the prosecution, such as where the defense has requested "all Brady material" or "all exculpatory material", a petitioner is "entitled to a new trial only if the undisclosed evidence, viewed in the context of the entire record, creates a reasonable doubt that otherwise would not exist." Cantone v. Superintendent, New York Correctional Facility at Green Haven, 759 F.2d 207, 213 (2d Cir. 1985) (citing United States v. Agurs, 427 U.S. 97, 103-04 (1976)); see also, United States v. Vozzella, 124 F.3d 389, 392 (2d Cir. 1997).
The Appellate Division found that Yusufi's counsel had made only a "generalized request" for Brady material. See Yusufi, 247 A.D.2d at 650. Thus, Yusufi must establish that a reasonable doubt as to his guilt would have existed had he been provided a copy of the victim's rap sheet. Yusufi has failed to meet this burden.
This finding is confirmed by the pretrial omnibus motion filed by Yusufi's counsel on November 7, 1994, which requested that the prosecution provide "all information or evidence . . . which might be favorable to the accused." See Pretrial Motion (11/4/94) at ¶ 17.
Judge Breslin informed Yusufi's counsel at trial that he could not question the victim about the information contained on the rap sheet. See Tr. at PP. 82-84. Judge Breslin reasoned that because the victim had not been convicted of the offense that was contained on the rap sheet, it was not a prior bad act, but merely a prior accusation, and that it was "black letter law" that Aarons could not be questioned about the charge. Tr. at PP. 86-87. Therefore, Yusufi was not prejudiced by the non-disclosure because Judge Breslin clearly indicated that he would not have permitted defense counsel to question the victim about the one charge that appeared on that document. Moreover, there is no evidence that even if Yusufi's counsel could have questioned Aarons about the prior charge, that a reasonable doubt would have existed regarding Yusufi's guilt in the charged crimes. In addition to the testimony of Aarons, other prosecution witnesses had testified that: i) Yusufi's attempt to flee the scene before the police arrived ( Tr. at 98, 101); ii) Yusufi stated that he "didn't want the police involved" ( Tr. at PP. 103); and, iii) Aarons' vehicle had a broken window, the dashboard had sustained "a tremendous amount of damage", and stereo equipment was lying on the floor of the vehicle ( Tr. at PP. 115, 125). Therefore, even if Aarons' rap sheet had been disclosed for defense counsel's use at trial, Yusufi has failed to establish that such disclosure would have enabled his defense counsel to create a reasonable doubt as to Yusufi's guilt that did not otherwise exist. Since the Appellate Division's decision denying this aspect of Yusufi's appeal was neither contrary to, nor an unreasonable application of, relevant Supreme Court precedent, the court denies the first ground in his petition.
Yusufi's counsel conceded that because the charge against Aarons had been pending for over three years and no action had been taken on it, the charge was "dead" ( Tr. at PP. 83-84). Judge Breslin then indicated that the good faith basis of questioning Aarons about the charge "approach[ed] nil" ( Tr. at P. 84).
2. Limitations Placed on Cross-Examination
Yusufi's second ground argues that Judge Breslin unduly restricted Yusufi's right to cross-examine Aarons ( Pet. at Point II). Specifically, Yusufi alleges that when his trial attorney attempted to question the victim about a prior criminal charge that had been brought against him, "he was not only stifled, but reprimanded by the Court" ( Dkt. No. 2 at P. 3). Yusufi argues that Judge Breslin "abruptly and curtly cut off the proper cross-examination of the victim" ( Id. at P. 5), and that the court's ruling regarding this issue constituted an abuse of discretion and resulted in a violation of Yusufi's rights ( Id. at PP. 5-6).
a. Clearly Established Supreme Court Precedent
The Confrontation Clause of the U.S. Constitution provides "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. Amend. VI; see Kentucky v. Stincer, 482 U.S. 730, 736 (1987). However, "'trial judges retain wide latitude' to limit reasonably a criminal defendant's right to cross-examine a witness 'based on concerns about, among other things, harassment, prejudice, confusion of the issues . . . or interrogation that is . . . only marginally relevant.'" Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Moreover, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original).
Since the right of confrontation is clearly established law as determined by the U.S. Supreme Court, see Ryan v. Miller, 303 F.3d 231, 248 (2d Cir. 2002) (citing Bruton v. United States, 391 U.S. 123 (1968)), this court must determine whether the Appellate Division's decision denying this aspect of Yusufi's appeal ( Yusufi, 247 A.D.2d at 650) was contrary to, or involved an unreasonable application of, the above-referenced Supreme Court precedent.
b. Contrary to, or Unreasonable Application of, Supreme Court Precedent
In denying Yusufi's appeal which challenged the limitations placed on his counsel during his cross-examination of the victim, the Appellate Division noted that defense counsel "conceded that he had no knowledge that the victim had ever been convicted of a crime and that he lacked a good-faith basis to inquire into such a matter." Yusufi, 247 A.D.2d at 650. Therefore, that court found that Judge Breslin did not abuse his discretion by "limiting the scope of cross-examination of the victim to prohibit inquiry into the underlying crime allegedly revealed by the rap sheet." Id.
A petitioner is not entitled to habeas relief on a claim relating to a trial judge's conduct during the cross-examination of a witness unless the petitioner can establish that the trial judge clearly abused his discretion, to the prejudice of the petitioner, in limiting the scope of crossexamination. Gomez v. LeFevre, 85-CV-734, 1988 WL 88444, at *6 (N.D.N.Y. Aug. 19, 1988) (McAvoy, J.) (internal quotations and citation omitted), aff'd, 880 F.2d 1318 (2d Cir. 1989). Moreover, as a general rule, a witness' acts of misconduct are not admissible to impeach his credibility unless the acts result in a conviction. United States v. Sposato, 446 F.2d 779, 780-81 (2d Cir. 1971) (citations omitted).
Yusufi has failed to establish that Judge Breslin abused his discretion by failing to allow Yusufi's attorney to question Aarons about a three and one-half year old charge that was never prosecuted by the authorities. To the contrary, this court finds Judge Breslin's ruling to be an appropriate means of limiting testimony of only marginal relevance which may have confused the issues relevant to the jury. Therefore, Yusufi has failed to establish that the Appellate Division's decision denying this aspect of his appeal was contrary to, or involved an unreasonable application of, the above-referenced Supreme Court precedent. Thus, the second ground in the petition is denied.
When asked by Judge Breslin what counsel had done to ascertain the veracity of the charge, Yusufi's trial attorney responded that he was "limited by [his] client's financial ability" to hire an investigator to explore that issue ( Tr. at PP. 84-85). However, Judge Breslin noted that Yusufi had retained his own counsel; his trial attorney was neither appointed nor assigned by the court ( Tr. at P. 85).
Yusufi's claim in his reply memorandum that his attorney was not permitted to question Aarons about his prior bad acts ( see Dkt. No. 11 at P. 3), is based on the mistaken assumption that Aarons was convicted of the crime that was contained on the rap sheet. No evidence has ever been presented which indicates that such a conviction was ever obtained against Aarons. Therefore, as Judge Breslin observed, Yusufi's counsel sought to question Aarons about a prior accusation, not a prior bad act.
3. Failure to Prove Guilt Beyond Reasonable Doubt
Yusufi's final claim argues that the prosecution failed to establish his guilt beyond a reasonable doubt ( Pet. at Point III). In support of this claim, Yusufi argues that none of Aarons' property was ever "taken" because the components of the stereo never left the victim's truck. Yusufi argues that because the property was never taken out of or away from the vehicle, the prosecution failed to establish every element of the crime of robbery in the first degree ( Dkt. No. 2 at PP. 11-12). a. Clearly Established Supreme Court Precedent
Yusufi does not challenge his convictions for fourth degree criminal mischief or petit larceny. See Pet.
The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime(s) with which he is charged. See Fiore v. White, 531 U.S. 225, 228-29 (2001); Jackson v. Virginia, 443 U.S. 307, 315 (1979); In re Winship, 397 U.S. 358, 364 (1970). This inquiry "does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, 506 U.S. 390, 402 (1993). A habeas petitioner claiming that there was insufficient evidence supporting the conviction is entitled to relief under 28 U.S.C. § 2254 only if it is found "that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324; Schlup v. Delo, 513 U.S. 298, 323 n. 38 (1995). The reviewing court is required to consider the evidence in the light most favorable to the prosecution, and draw all inferences in its favor. Jackson, 443 U.S. at 319.
Since the Appellate Division denied this aspect of Yusufi's appeal, see Yusufi, 247 A.D.2d at 650, this court must determine whether that finding was contrary to, or an unreasonable application of, Winship and its progeny.
b. Contrary to, or Unreasonable Application of, Supreme Court Precedent
Since a federal habeas court must look to state law to determine the elements of a crime when considering a challenge based upon the sufficiency of evidence, see Jackson, 443 U.S. at 324; Fama v. Commr. of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000) (citing Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)), the court briefly reviews the elements of first degree robbery.
In New York, a person is guilty of first degree robbery when he "forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [u]ses or threatens the immediate use of a dangerous instrument." N.Y. Penal L. § 160.15(3); see Farrington v. Senkowski, 214 F.3d 237, 241 (2d Cir. 2000). New York penal law further provides that "[a] person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking." N.Y. Penal L. § 160.00(1).
A person commits larceny in New York "when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." N.Y. Penal L. § 155.05(1).
Yusufi appears to argue that because the components of the stereo were never removed from the automobile, he could not properly been found to have "wrongfully taken" that property from Aarons ( Dkt. No. 2 at PP. 11-12; Dkt. No. 11 at PP. 3-4). However, this contention appears to overlook the established principle that the "taking" element of the crime of larceny is satisfied whenever a defendant exercises dominion and control over another's property, however temporary, in a manner that is wholly inconsistent with the owner's continued rights to the property. People v. Jennings, 69 N.Y.2d 103, 118-19 (1986) (citations omitted); Franco v. Walsh, 00CIV. 8930, 2002 WL 596355, at *4 (S.D.N.Y. Apr. 17, 2002), aff'd without op., ___ F.3d ___, 2003 WL 22056234 (2d Cir. Sept 4, 2003).
The trial testimony established that Yusufi had removed the stereo equipment from the location where it had been installed by Aarons in such a manner so as to cause a "tremendous amount of damage" to the vehicle's dashboard ( Tr. at 115). The wires that had connected the stereo components to the truck had been cut ( Tr. at PP. 54, 57), and the equipment had been placed by Yusufi on the passenger side floor of the truck ( Tr. at PP. 57, 125). Such evidence clearly established that Yusufi had exercised dominion and control over Aarons' property in a manner that was wholly inconsistent with his continued rights to that property. Moreover, Aarons' testimony regarding Yusufi's use of the screwdriver during the altercation between the two men demonstrated that Yusufi had used or threatened the immediate use of a dangerous instrument during the course of the crime.
A petitioner "bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence." Fama, 235 F.3d at 811. The habeas court must consider "whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, [courts] must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor." Besser v. Walsh, 02 CIV. 6775, 2003 WL 22093477, at *16 (S.D.N.Y. Sept. 10, 2003). Based upon the evidence adduced at Yusufi's trial, a rational jury could have fairly and logically concluded that he was guilty, beyond a reasonable doubt, of each of the elements necessary for a conviction of the crime of first degree robbery. Therefore, the Appellate Division's denial of this portion of Yusufi's appeal was neither contrary to, nor an unreasonable application of, relevant Supreme Court precedent. Therefore, Yusufi's final ground for habeas relief must be denied. WHEREFORE, based upon the above, it is hereby
ORDERED, that Yusufi's habeas petition is DENIED and DISMISSED; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order upon the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Decision and Order filed by any party).
IT IS SO ORDERED.