UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SE CON D CIR CUIT

__________________________ August Term, 2002 (Argued: March 4, 2003 Decided: July 18, 2003) Docket No. 02-2320

__________________________ FAIZ SHABAZZ, Petitioner-Appellant ,

- v. - CHRISTOPHER ARTUZ, Supt. Green Have n Cor. Fac., Respondent-Appellee

.

Before: McL

AUGHLI N, JACOBS, POOLER, Circuit Judges

. Appeal from judgment of the United States District Court for the Eastern D istrict of New York (Sterling Johnson, Jr., District Judge ) denying Faiz Shabazz’s petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Affirmed. ROBERT J. BOYLE, Esq., New York, N ew York for PetitionerAppe llant Faiz Shaba zz . DIA NE R. EI SNER, Assis tant Distr ict Attorney , Kings Co

unty Di st ri ct At to rn ey’ s O ff

ic e ( Ch ar le s J . H yne s, Di st ri ct At to rn ey, Leonard Joblove

and Jane S. Meyers, Assi stant Distr ict Attorney s, on the brief), Brookly

n, New York for Respondent-Appellee Christopher Artuz

.2

Pooler, Circuit Judge : Faiz Shabazz (“petitioner”) appeals from the April 29, 2002 order of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., District Judge ) denying his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The district court granted a certificate of

appealability to examine whether the state court erred in holding that the Kings County District Attorney ’s Office violated petitioner’s rights under Brady v. Maryland , 373 U.S. 83 (1963) by 1) promising three prosecution witnesses leniency in their pending criminal cases in exchang e for the ir testimon y a t petitione

r’s tria l without di sclosing

these alleged promises to petitioner; and 2) allowing witnesses to testify falsely conc erning the nature of the ir ple a agreem ents a nd/o r thei r exp ectat ions of rece ivin g favora ble tr eatme nt in exch ange for th eir te stim ony. We fi nd no b asis t o dis turb t he sta te cou rt’s f actual findi ng that the Ki ngs County District A

ttorney ’s Offic e made no

undisclos ed promis es to Flor ence B oone, L ouis Landers, or Sy

lvia Pullum. We also find no evidence that Landers and Pullum committed perjury whe

n they testified that they

had no expectation of favorable treatment or, if they did, that the Kings County District Attorney ’s Office knew or should have known about their per jury. Accordingly , we affirm the district court’s decision.

BACKGROUND On January 13, 1983, at approximately 10:15 p.m., Florence Boone and a woman known as “Candy”

went to the apartment of Van Adams Troutman to purchase na rcotics while petitioner waited with Chester Turner and a man known as “Ta ngo” downstairs in a parked automobile. Louis La nders and Sylvia Pullum were a mong those present in the apartment. After purc hasing1 There was conflicting testimony at trial about whether the shooting was intentional or accidental. 3 narcotics and meeting petitioner at his car, B oone and Candy r eturned to the apartment under the pretense of needing to use the restroom. B oone and Candy we nt into the restroom and exited shortly thereaf

ter, at which time Boone drew a g un and announced that she intended to rob the apartme nt. After Troutman

pushed Ca

ndy , Boone shot and kil led him. 1 Petitioner and Turner then entered the apartment, collected the money and narcotics, and fled with Boone and Candy

. Petitioner was arrested on February 9, 1983. The next day, L anders and Pullum identified petitioner from a lineup. Boone was also arre sted, but the Kings County District Attorney ’s Office (“District Attorney ’s Office”) agre ed to recommend a term of incarcer ation of eight and one-thir d to twenty

-five y ears if she plead

ed guilt y to a reduc ed char

ge and testifie d truthfu

lly against petitioner. Boone acce pted the plea arrangement. At he r plea allocution, which occurred prior to petitioner’s trial, Boone told the court that she receive d the gun from Candy

. On March 5, 1983, Lander s and Pullum were arrested and charg ed with various narcotics offenses. Both refused the District Attorney ’s Office’s initial plea offer to recommend se ntences of one to t

hree y ears impr isonment. Howeve

r, the co urt rele ased L anders a

nd Pullum on t

heir

own rec ognizanc e and sai d, “I understa nd there is some pos sibility

that y ou may be gett ing some kind of break. If y

ou don’t come back to court, y ou won’t get the break.” The cour t subsequently issued bench w arrants for their arrests after they failed to make

their court appearances. I

n the process of executing the bench warr ants, police discovered La nders and Pullum in possession of controlled substances, drug paraphernalia, and stolen c redit cards. Accord ingly , they

were charge d with add

itional of fenses. At the time

of petitioner’s tr

ial, both Land ers and Pu

llum were incarc erated

while aw aiting tr

ial for th eir own o ffense s.4

Petitioner ’s trial b egan o n April 9, 1 984. Boo ne testif ied that she had ag

reed wit h petitione r to parti cipate in

the robbe ry and that p etitioner

had provided her

with the g

un. I n his opening statement, then-Assistant District Attorney Christopher Ulrich informed the jury that Boone had been promised the maximum sentence of eight a nd one-third to twenty-f

ive years imprisonment if she pleaded guilty to Manslaughter in the First Degre e and testified truthfully a t petitioner’s trial. Boone admitted during her testimony that she cooperated with the District Attorney’s Of

fice in order to receive the more lenie nt sentence associated with the charg e of Manslaughter in the First Degr ee. Boone also testified that she expected to rece ive the maximum penalty associa

ted with that charge. Landers and Pullum identified petitioner as one of the two men who entered the apartment after the shooting. Both witnesses testified that the D istrict Attorney’s Off ice had not promised them leniency w ith respect to their pending cases in exchange for their testimony. Land ers and Pu

llum also te stified th at they did not expe ct to rec eive a be nefit by virtue of their testimony aga

inst petitioner. On cross-examination, the three witnesses admitted to having serious drug habits. Landers and B oone testified that they we re under the influence of narcotics w hen the shooting occurred. La

nders and Pullum testified that they had take n cocaine and heroin the night they identifie d petitione

r in the lineup. L anders t estified that he in itially lied to the

police a bout his wherea bouts at th e time of t

he shootin

g. More over, L anders a

nd Pullum te stified to

other fa cts that call ed into que stion the r eliability of their e ye witness id

entifica tions. L anders a

dmitted tha

t, after id entify ing peti tioner in t he lineup , he rec anted his identific ation and

then rev ersed hi s recant ation. Pull

um testifie d that she

could not i dentify

petitione r from a p hotogra ph shortly5

after the incident. However, Pullum testified that she was able to identify petitioner from the lineup approximately one month later. The jury convicted petitioner on April 12, 1984, and the court sentenced him to a term of twenty-two y

ears to life imprisonment. Four day s after petitioner was convicted, the District Attorney ’s Offic e recom

mended th at the co

urt rele ase L anders a

nd Pullum fr

om custody

on their own recognizance. Shortly afterwards, La

nders pleaded guilty

to his pending charges, and the judge noted that Lande

rs had “made a lot of [deals] here.” Ulrich, who also prosec uted petitioner, recommended a sentence of sixty days imprisonment. As L anders had already served seventy-seve

n days in prison, the court sente nced him to time served plus five years probation. Pullum also pleaded guilty. Afte r consulting Ulrich, the assistant district attorney prosecuting Pullum’s case recommended an unconditional discharge , and the sentencing court acce pted the recommendation. Boone was sentenced on September 4, 1984. Althoug h her plea agreement provide d for a sentence of eight and one-third to twenty -five ye ars imprisonment, the sentencing court stated that a term of seven to twenty-one yea rs of imprisonment would be fair and asked the District Attorney’s Of

fice to consent to the lesser sentence. Ulrich informe d the court that Boone was not entitled to the reduction, but acceded to the court’s reque st. After exhausting his direct appeals, petitioner filed a motion in state court to vac ate the judgment of conviction and dismiss the indictment, pursuant to New York Criminal Procedure Law § 440.10. Petitioner argued that the District Attorney ’s Office made undisclosed promises of lenie ncy to Boone , Lan

ders, an d Pullum in e xchange

for their testimony . Petitione

r also argued that L anders and Pullum committed perjury w hen they testified that they received no6

promises of leniency

and expected no benefits as a result of their coopera tion, and that Ulrich knew or should have known about this alleged perjury

. New Yor k Supreme

Court Justice

Ruth Moskow

itz, who pre sided ove

r petitioner’s tri al, conducted an evidentiary

hearing on June 26, 1992. Ulrich testified that the only promise he made to Boone was to recommend a sentenc e of eight and one-third to twenty -five ye ars imprisonment. Ulrich testified that he may ha ve recommended leniency for Landers and Pullum based upon their truthful testimony ag ainst petitioner. However, Ulrich testified that he made no promises to Landers or Pullum concerning their pending cases prior to their testimony at petitioner’s trial. The state court issued a comprehensive written order denying petitioner’s motion on December 11, 1992. The state court found that the District Attorne y’s Offic e had made no undisclosed promises of leniency to Boone. Although Boone rece ived a sentence that was different from the one provided by the plea agreement, the cour t found that the issue arose for the first time at Boone’s sentencing and that the District Attorne y’s Offic e had not requested additional leniency on he r behalf. The state court also found that while La nders and Pullum received favorable trea tment due to their cooperation, there was nothing to sug gest that the District Attorney ’s Office procured their testimony by

promising them leniency with respect to their pending criminal cases. The

court ac cepted t

he truth o f Ulrich ’s testimo ny a nd conclu ded that t he judg es’s re ferenc es to “breaks” and “deals” wer e insufficient to establish that the District Attorney ’s Office had made actual promises of leniency . The state court concluded that, “[i]n all likelihood,” the judges simply assumed that L anders and Pullum had agreed to cooper ate with the District Attorney’ s7

Office in exchange for lenient sentenc es. After the New York Supreme Court, Appellate Division, Second Depa rtment denied petitione r leave to appea l on July 12, 1993, p etitioner

filed a p etition for a writ o f habea s corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern District of New York on A

pril 8, 199 7. Petition er initia lly a rgued that 1) the

prosecu tion faile d to prove

his guilt beyond a re asonable doubt; 2) the trial court improperly denied his motion to suppress Landers’s and Pullum’ s identifi cation; 3 ) the pro secution failed to disclose that two of

its witness es would receive favorable trea

tment in pending cases in exchange for their te stimony; and 4) the prosecution knowingly

used perjured testimony of cooperating witnesses. The district court dismissed t

he petition as time-

barred , but this Cou

rt vaca ted the di smissal an

d remand ed the ca se on Septemb er 22, 19 98. On re mand, Peti

tioner wi thdrew th e first a

nd secon d groun ds for his petition. Petitioner also filed a memorandum of law alleging that “( 1) [he] has established by clear and convincing evidence that pretrial deals existed with Landers, Pullum, and Boone [and that] the state court’s decision was an unreasonable application of Supre me Court precedent; and (2) the prosecution’s failure to disclose promises to its three chief witnesse s requires that the petition be granted.” On August 2, 2001, U.S. Magistrate Judge Lois Bloom issued a repor t and recommendation recommending that the district court deny petitioner’s claims. The district court denied the petition on April 29, 2002 and granted a cer tificate of appealability

on May 15, 2002.

LEGAL STANDARDS I. The Issues on Appeal At the outset, we specify

which issues are properly part of this appeal. Petitioner8

requested a certificate of appe alability by submitting a letter to the district court requesting the right to appeal t he court ’s ruling

on his “ Brady

/ Giglio claim.” The district court simply wr ote on the letter: “Petitioner’s request that this Court issue a certificate of appe alability pursuant to 28 U.S.C. [§] 2253 is GRANTED.” We will consider only whether the state court erred in holding that the District Attorney ’s Office violated petitioner’s rights under Brady v. Maryland , 373 U.S. 83 (1963) by 1) promising three pr osecutio n witnesse s lenienc y in their pe nding criminal c ases in e xchange for their testimony at petitioner’s trial without disclosing these a lleged promises to petitioner; and 2) allowing three witnesses to testify falsely conc erning the nature of their plea a greements and/or their expectations of receiving favorable treatment in exchange for their testimony . Petitioner raised these issue s before the state court, a ppealed the state court’s ruling t o the Appe llate Division, and asserted the same issues in the instant habeas petition. Petitioner’s brief on appeal to this court, however, could be interpr eted to assert additional claims. Petitioner alleges that the District Attorney ’s Office failed to disclose that Boone testified at her plea allocution that Candy, rather than petitioner, gave her the gun that she used to shoot Troutman. Petitioner argues that “[t]his statement is exculpatory since the prosecution maintained that it was appellant who master-minded the robbery .” Petitioner also argues that Boone’s testimony at her plea allocution was “impeachment material,” as it was “inconsi stent” wi

th her sub sequent t

estimony at trial, that petit

ioner g ave her

the gun . Thus, petitioner asserts a Brady claim bas ed upon th e District Attorne y’ s Office ’s alleg ed failu

re to make available the transcript of Boone’ s plea allocution. Petitioner also asserts a Brady claim based upon allegations that the District Attorney ’s9

Office knowingly

allowed Pullum to testify falsely that 1) she was innocent with respect to the charges pending ag ainst her; 2) she declined an offer of “ one yea r probation;” 3) she did not know that the pending charges a gainst her carried a maximum term of twenty -five ye ars imprisonment; and 4) the judge in her case was unaw are that she was a cooperating witness in the case against petitioner. Finally, Petitioner asser

ts a Brady claim based upon the District Attorney ’s Office’s allege d failure

to disclose

the state courts’ s refer

ences to Land ers and Pu

llum rece iving “breaks” or “deals.” While petitioner uses this comment to attempt to demonstrate clear error with respect to the state court’s finding that there were no undisc losed promises, he also argues that the District Attorney’s Of

fice had an obligation to disclose these comments under Gordon v. United States , 344 U.S. 414 (1953). In that case, the Supre me Court held that the jury should have he ard that the district court, while accepting the guilty plea of a defendant who subsequently testified against his co-conspirators, sugg ested that the defendant should demonstrate that he had cooperated with law enforcement. Id. at 422. Petitioner argues that, as in Gordon , Landers and Pullum were informed prior to his trial that they ma y rece ive a “break,” and, thus, his “jury was entitled to weigh what effect those words had on the m when determining their credibility .” Although this Court has the authority to amend a certificate of appealability , see Cotto v. Herbert , --- F.3d ---, 2003 WL 1989700, a t *13 (2d Cir. May 1, 2003), we de cline to consider petitioner’s additional claims, as he failed to raise them before the district court. See Singleton v. Wulff , 428 U.S. 106, 120 (1976). While petitioner cited Gordon in hi s obj ectio ns to Judge Bloom’s r

eport an d recomm endation , he did so i n the cont ext of arg uing tha t “the prosecution

canno t avoi d its duty to d isclo se by keepi ng its promi ses to a witn ess gen eral,” citi ng DuBose v.10

Lefevre , 619 F.2d 973 (2d Cir. 1980), which he claimed was “a logical application of existing Supreme Court precedent announced in Gordon v. United States , 344 U.S. 414 (1953).” Even were we to interpret petitioner’s refe rence to Gordon

as an assertion of a Brady claim based upon the District Attorney’s Of fice’s failure to disclose the courts’s comments, petitioner did not exhaust his

state re medies wi

th respe ct to this c laim or his additiona l claims. “ If a

nyt hing is settled in habeas corpus jurisprudence, it is that a federa l court may not g

rant the habeas petition of a state prisoner unless it appears that the applicant has e xhausted the remedies available in the courts of the State . . . .” Aparicio v. Artuz , 269 F.3d 78, 89 (2d Cir. 2001) (citing 28 U.S.C. § 2254(b)(1)) (internal quotation marks omitted). Accordingly , we decline to consider additional issues that are predica ted upon stray allegations in petitioner’s brief. I t would be helpful when a district court grants a ce rtificate of appeala bility , if it woul d issue a s eparat e order that state s with spec ificity the issue s it intends

to certify f or appeal to this Court. Cf. 28 U.S.C. § 2253(c)(3) (“The certificate of appealability . . . shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by pa ragraph (2).”). II. The Deferential Standard of 28 U.S.C. § 2254 We review a district court’s denial of a petition for a writ of ha beas corpus de novo. See Kennaugh v. Miller , 289 F.3d 36, 42 (2d Cir.), cert. denied , 123 S.Ct. 251 (2002). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2254, the standar d gover ning fe deral ha

beas re view dep ends upon

whether the petiti oner’s c laims have been previously

“adjudicated on the merits” by a state court. Cotto , 2003 WL 1989700, at *6. We have held that a state court “adjudicates” a pe titioner’s federal constitutional claims “on2 If a state co urt has no t adjudic ated the claim “on

the merit s,” we a

pply the pre- AEDPA standards, and review de novo the state court disposition of the petitioner’s fe deral constitutional claims. Aparici o , 269 F.3d at 93. 11 the merit s” when i

t states th at it is disp osing of the claim s on the me

rits and r educes i ts disposition to judgment. Id. ; see also Ryan v. Miller , 303 F.3d 231, 246 (2d Cir. 2002). In the instant case, Justice Moskowitz addressed the merits of petitioner’s claims while making detailed findings of facts and conclusions of law. The cour t also reduced its judgment to a comprehensive written order. As the state court adjudicated petitioner’s c laims “on the merits,” we apply the deferential standard of review pre scribed by AED PA. 2 Specific ally , the statu te provid es that: An applic ation for

a writ of habeas c orpus on b ehalf of a person in custody

pursuant to the judgment of a State court shall not be grante d with respect to any claim that was adjudicated on the merits in State court proceedings unless the a djudication of the claim – (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly establish ed Fede

ral law, as deter

mined by the Supre

me Court of

the Unite d States; or (2) res ulted in a decision that was b ased on a

n unreas onable de

terminat ion of the facts in light of the evide nce pre sente d in t he St ate cou rt pro ceedin g. 28 U.S.C. § 2254(d). The Supreme Court has interpreted 28 U.S.C. § 2254(d)(1) as g iving independent meaning to both the “contrary to” and “unreasonable application” clause s. Williams v. Taylor , 529 U.S. 362, 404 (2000). A state court decision is “contrary to” Supreme Court precedent if it 1) arrives at a conc lusion that contradicts that reached by the Supreme Court on a question of law; or 2) confronts facts that are mater ially indistinguishable from those of r elevant Supreme Court precedent and arrives at an opposite r esult. Id. at 405. A decision is an “unreasonable application” of clear ly established Supreme Court law if a state court “identifies the corr ect gov erning

legal principle

from [the Su

preme Cou

rt’s] dec isions but u

nreasonably applies that principle to the facts of [a] prisoner’s case.” Id. at 413. Mor eover, “ clearly12

established Federal law, as determined by the Supreme Court,” refers to the “holdings, as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court decision.” Id. at 412. Whether c ooperat

ion agr eements exist betwe en the pr

osecutio n and its wi

tnesses is a factual determination. See , e.g. , Wedra v. Thomas , 671 F.2d 713, 717 (2d Cir. 1982). “[A] determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254 (e)(1). The petitioner bears the burden of “ rebutting the presumption of correctness by

clear and convincing evidence .” Id. ; see also McKinney v. Ar tuz , 326 F.3d 87, 101 (2d Cir. 2003) (citations omitted). This presumption of correctness is particularly important when reviewing the trial court’s assessment of witness credibility. See Cotto , 2003 WL 1989700, a

t *10; see also Miller-E l v. Cockr ell , 537 U.S. 322, 123 S.Ct. 1029, 1040-41 (2003). However, “[e]ven in the context of federal habeas, def erence does not imply

abandonment or abdicat ion of judi cial rev

iew . . . . A

federa l court c an disag

ree with a state c ourt’s credibilit

y determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence .” Miller-El , 123 S.Ct. at 1041. In sum, “[d]eference does not by definition preclude relief.” Id. III. Brady v. Ma ryland “[T]he suppression b y th e prosec ution of e vidence favora ble to an a

ccused u pon 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 prosec ution.” Brady

v. Maryland , 373 U.S. 83, 87 (1963). Under Brady

and its progeny , the government has a due process oblig ation to disclose to the defenda nt its knowl edge o f materi al evide nce fav orable t

o the def endant e ither be cause it

is13

exculpatory or bec ause it can serve to impeach a key witness. See Kyles v. Whitley , 514 U.S. 419, 433 (1995). Impeachment e vidence includes promises that the prosecution makes to key witnesses in exchange for their testimony

. Giglio v. United States , 405 U.S. 150, 154-55 (1972). “In order for

evidence to be ‘material’ within the meaning of Brady , a defendant does not need to show that the evidence, if disclosed, would have resulted in his ac quittal; rather, he needs to show only that the evidence could ‘reasonably

be taken to put the whole case in such a different light as to undermine confidence in the verdict.’” United States v. Schwarz , 259 F.3d 59, 64 (2d Ci r. 200 1) (per curiam ) (quo ting Kyles , 514 U.S. at 434-35). The Supreme Court has identified three distinct situations in which a Brady claim mig

ht arise: “first, w

here pr eviously undisclosed evidence revealed that the prosec ution introduced trial testimony that it knew or should hav e known w as perju red; sec ond, wher

e the Gov ernment

failed to accede to a defe nse request for disclosure of some specific kind of exculpatory evidence; and third, where the Government failed to volunteer exculpatory evidence never requested, or r equested only in a general way .” Kyles , 514 U.S. at 433 (internal citations omitted).

DISCUSSION I. Boone Petitioner does not dispute that the District Attorney’s Of fice disclosed that Boone pleaded guilty

to Manslaughter in the First Degre e and was promised a sentence of eight and onethird to twenty-five y

ears imprisonment in exchange for her cooper ation. Instead, Petitioner argue s that the D istrict At torney ’s Offic e made a

n additional undisc losed pro mise of le niency to Boone based upon the fact that the court ac tually sentenced he

r to a term of imprisonment that14

was more lenient than the one

provided by t he plea a greement. Petitioner’s argument is meritless. The state court found that there was no discussion of a lesser sentence for Boone until her sente ncing, which occurred approximately five months after she testif ied in pet itioner’ s case. T

he state court al so found that the Dis trict Attorney ’s Offic e did not request leniency

on behalf of Boone. Rather, the state court f ound that the sentencing court suggested that a term of imprisonment of seven to twe nty-one y ears would be fair and asked Ulrich to consent to the lesser sentence. Our own re view of the record indicates that Boone’ s counsel initially requested a reduced sentence without the District Attorney ’s Office’s assistance

or consent. Petitioner proffers no evidence of any undisclosed promises between the District Attorney ’s Offic e and Bo one. Petit ioner ar gues tha t Ulrich c onsented

to the len ient sente nce in light of Boone’s cooperation. This may be true. However, the issue is not whether Boone eventually re ceived favorable treatment beca use she testified at petitioner’s trial. The relevant inquiry is whether the District Attorne y’s Offic e made an undisclosed promise of additional leniency in exchang e for Boone’s cooperation. Contrary to petitioner’s argument, the mere fact that Ulrich acceded to the sentencing court’s request does not provide sufficient evidence of any such promise. Petitioner offers no evidence demonstrating that the state court’s findings of fact are clea rly erroneou s. Upon reviewi ng th e rec ord, we conclude th at the y a re, i n fact, co rrec

t. We also note that, while Ulrich consented to the sentencing cour t’s request, he informed the court that Boone was “not entitled to the reduction.” Accor dingly, petitioner’ s application for a writ of3 To the extent petitioner alleges that the District Attorney ’s Office violated Brady by allowing Boone to testify falsely concer ning the nature o f her ple a agre ement, we reject t his argument, as the state court’s finding tha t there were no undisclosed additional promises of leniency is

not clea rly errone ous. 15 habeas corpus on this ground is denied. 3 II. Land ers an d Pull um A. The Alleged Existence of Undisclosed Promises of Leniency Petitioner argues that the District Attorney ’s Office made undisclosed promises of leniency to

Land ers and Pu

llum with re spect to their pend ing cri minal cas es in excha

nge fo r their testimony at his trial. However, Petitioner c ites insufficient evidence to disturb the trial court’s factual finding that the District Attorney ’s Office made no such promises to L anders and Pullum. Christopher Ulrich, who prosecuted petitioner’s case, testified a t the state court’s evidentiary he aring on petitioner’s motion for post-conviction relief under Ne w York Criminal Procedure Law § 440.10. Ulrich te stified th at he mad e no promi ses to L anders a nd Pullum in exchange for their testimony . In fact, Ulrich testified that he explicitly informed L anders and Pullum that “

there wo uld be no p romises”

with resp ect to the

disposition s of their

pending cases. Justice Moskowitz, who also presided over petitioner’s criminal trial, accepted the truth of Ulrich’s testimony. Credibility determinations are properly within the province of the state court that presided over the trial and evidentiary hearing. See Patton v. Yount , 467 U.S. 1025, 1038 (1984); United States v. Yousef , 327 F.3d 56, 124 (2d Cir. 2003). While “[d]eference does not by definition preclude

relief,” Miller-El , 123 S.Ct. at 1041, we see no basis for finding that the state court clearly

erred by accepting Ulrich’s testimony

. Petitioner also relies upon the fact that La nders’s and Pullum’s criminal cases were repeatedly

adjourned until after his trial. While the “Case Status and Action Reports” reveal that16

the District Attorney’s Of fice intended to dispose of these cases after L anders and Pullum testified at petitioner’s trial, the adjournments themselves do not evidence that the District Attorney ’s Offic e promise d these witnesses l eniency in exchang e for the ir coope ration, a s both sides had independent incentives to resolve these cases a fter petitioner’s trial. Landers’s and Pullum’s attorney s had an interest in seeking the adjournments so that they could argue at sentencing that their clients’ cooperation warranted lenienc y. Attorney

Barry Weiss, who r

eprese nted Pullum , testifie d before the state court tha t it was his p

ractice to bring to the cour t’s atten tion any informat ion that wo

uld assist h

is client i n obtainin

g a favorable disposition, which would presumably include coope ration with the District Attorney’s O ffice. The witnesses’ “general a nd hopeful expectation of leniency is not enough to create an ag reement or an understanding” that they would, in fact, receive leniency in exchange for their testimony

. Collier v. Davis , 301 F.3d 843, 849 (7th Cir. 2002), cert. denied , 123 S.Ct. 12 90 (2003) ; see also Hill v. Johnson , 210 F.3d 481, 486 & n.1 (5th Cir. 2000) (stating that only “an express agreement between the [s]tate and a witness,” not “a witness’[s] ‘nebulous expectation of help from the state,’” constitute s Brady

materia l); Mastrian v. McManus , 554 F.2d 813, 823 (8th Cir. 1977) (declining to read Giglio “to support [the] claim that a crucial witness’s expectation of leniency must be revealed absent evidence of a n express or implied promise”). At the same time, the District Attorney ’s Office had an incentive to delay the disposition of these cases in order to ensure L anders’s and Pullum’s continued cooperation. The existence of a pending prosecution against a g overnment witness provides an inherent incentive for cooperation, and this incentive – namely the pending charges a

gainst both Landers a

nd Pullum –4 While we acknowledge that both L anders and Pullum identified petitioner from a police

lineup prior to their initial arrests, we recognize that the District Attorney ’s Office had an incentive to ensure the witnesses’s continued cooperation.

5 Petitioner concedes that the notation in the District Attorney ’s Office’s case files amending Lande

rs’s and Pullum’s initial plea offers of one to three y ears imprisonment was made after petitioner was convicted. 17 was disclosed to petitioner. 4 Given that they had f ailed to make their own court appearance s, the District A ttorney ’s Offic e could r

easonab ly h ave bee

n conce rned tha t Lan ders and Pullum, who se testimony was critical, may fail to appear at petitioner’s trial, absent the implicit threat posed by their own impending prosecutions. While the District Attorney ’s Office’s desire to adjourn Land ers’s a nd Pullum’s

cases ma y ha ve give n the impre ssion that t

hey would re ceive f

avorabl e treatment in exchange for their testimony , the adjournments themselves do not evidence an agreement. This is especially true in lig ht of Ulrich’s testimony – which the state court accepted as true – that he explicitly informed both L anders and Pullum that he would not promise them anything w

ith respect to their pending cases in exchange for their testimony ag ainst petitioner. Petitioner relies upon comments of the state court judges presiding over Landers’s a

nd Pullum’s ca ses, as w ell as nota tions in the

defenda nts’ cas e files. 5 Specifically, Justice Feldman, who presided over La

nders’s and Pullum’s cases, said during a pre-tria l hearing, “I

understand there is some possibility that y ou may be g etting some kind of break.” The judge who took Landers’s plea noted tha

t Landers had “made

a lot of [deals] here.” Petitioner also relies upon the fac t that the prosecut

ors handl ing thes e cases

repeat edly told the jud

ges tha t both def endants were cooperating witnesses in a homicide inve stigation. However, the state court found that there were no promises of leniency and that the judges merely assumed that Landers and Pullum were subject to plea agree ments. We see no reason to disregard this finding of f act, as there is no18

evidence that the District Attorney ’s Office ever represe nted to the court that Landers a nd Pullum would receive leniency

in exchange for their testimony . Rather, the record reflects that the District A ttorney ’s Offic e informe d the cour t that L anders a

nd Pullum we

re coope rating in petitioner’s case to justify the adjournments. Finally, Petitioner attempts to establish that the District Attorney ’s Office promised Land ers and Pu

llum lenie

ncy in exchang e for the ir testimon y by virtue of the fac t that both actually re ceived favorable treatment. Petitioner points out that, prior to his trial, both L anders and Pullum were initially relea sed on their own recognizance. Howeve r, the District Attorney’ s Office opposed La

nders’s request for release on his own re cognizance. The District Attorney ’s Office was also “opposed to any reduction in [Landers’s] bail,” which had bee n set at $1,500. The fact that the District Attorney ’s Office did not intervene when L anders and Pullum were

arreste d on bench warra

nts and charged

with addit

ional off enses, bo th of whic

h occurr ed prior to their testimony, belies the existence of an a rrangement between the District Attorne y’s Offic e and the witnesses. Petitioner also emphasizes that Landers and Pullum receive d favorable treatment after they testified. Both we

re released from incarce

ration on their own recognizance shortly after petitioner was convicted. They also received favorable dispositions of their criminal case s. Landers pleaded g

uilty and rece ived a sentence of time served and five y ears probation. Pullum also pleaded guilty

and received an unconditional discharg e. The record supports petitioner’s contention that Landers and Pullum rece ived favorable treatment because of their cooperation. However, the state court accepte d Ulrich’s explanation that he may ha ve made sentencing recommendations in Landers’ s and Pullum’s cases “in light of their truthful testimony against the19

defendant.” The district court, in evaluating the sta te court’s findings of fact, concluded that “ the record reflects that the District Attorney afforded La

nders and Pullum special attention and consideration.” Indee d, the conclusion that Landers and Pullum rece ived favorable treatment because of their cooperation is inescapa ble. Ulrich – the same assistant district attorney who prosecuted petitioner’s case – monitored L anders’s and Pullum’s cases. Ulrich appeare d at Landers’s sentenc ing and recommended the lenient sentence because he believed that “[i]f the person ha d testifie d truthfu

lly, . . . they

deserve d some sor

t of brea k on their case.” Ulrich a lso approved the District Attorney ’s Office’s recommendation concer ning Pullum’s lenient sentence. Thus, petitioner is correct that Lande rs and Pullum received a benefit because they testifie d again st him. How ever, th is fact, s tanding

alone, do es not est

ablish tha t, prior to petitioner’s trial, the District Attorney ’s Office promised La nders and Pullum leniency. The government is free to rewar d witnesses for their cooperation with favorable tre atment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything

to the witnesses prior to their testimony. That is not to say that a prosecutor may circumv ent his Brady

obligations by fa

iling to reduce to writing a plea ag reement or a promise of leniency . Nor may a pr osecutor avoid his duty of disclosure by phrasing

a promise of favorable treatment in gener al terms. See DuBose v. Lefe vre , 619 F.2d 973, 979 (2d Cir. 1980) (“The p rosecut

ion canno t, by

keeping its promise s of consi deratio n to a witne ss gene ral in language or tone, esc ape the fact that it gives the witness reason to believe that his or her testimony will lead to favorable tr eatment by the State. Unque stionably, agr eements in general terms to reward testimony by consideration create an incentive on the witness’[s] part to testify favorably to the State and the existence of such an understanding is important for purposes of6 At the same time, however, the fact that a witness actua lly receive d favorable treatment may be re levant in establishing the existence of undisclosed promises of leniency when considered with other facts – not present in this case – such as a state court’s finding that the prosecutor’s account was not credible. 20 impeachment.”). We hold only that the f act that a prosecutor afforded fa vorable treatment to a government witness, standing alone, does not establish the existence of a n underlying

promise of le ni en cy i n e xc ha ng e f

or te st im on y. 6 B. The Distr

ict Att orney’s O ffice’s Use of Allegedl

y Perj ured Test

imony As a separate but related issue, petitioner arg ues that the District Attorney’ s Office violated Brady

by allowing L

anders and Pullum to testify falsely that they rec eived no promises of lenie ncy in exchang e for the ir testimon y. T his arg ument fa ils, as petitioner c annot est ablish that the state court’s finding that there were no such undisclosed promises was clearly erroneous. Petitioner also argues that the District Attorney ’s Office violated Brady by allowing Landers and Pullum to testify falsely that they

did not expect to receive a benefit in exchange for their testimony. However , the facts of this case do not suggest that the District Attorne y’s Offic e knew or s hould hav e known th at either witness expected to

receiv e favor

able tre atment. Whi le Land ers’s a nd Pullum’s

attorne ys m ay have inte nded to re quest len

iency based up on their clients’ s cooper

ation, an y in tentions to

seek len iency or hopes o f rece iving it d o not tran slate into an expectation that they would, in fac t, receive favorable treatment fr om the District Attorney’s Office. More important, however, there is no e vidence that either La

nders or Pullum made known to th e District Attorne y’ s Office any expectat ions that th ey

might re ceive le

niency in exchange for their testimony

. Justice Feldman’s comment that Landers and Pullum may receive a “break” doe s not prove that the District Attorney ’s Office knew or should have known that the witnesses expected21

to receive favorable treatment. Eve n were we to accept petitioner’s ar gument that Landers and Pullum expected leniency beca use of the judge’s comment, it necessarily follows that they thought they ha

d lost their “break” by

failing to make their court appeara nces. Justice Feldman explicitly told Lande

rs, in Pullum’s presence, “If y ou don’t come back to court, y ou won’t get the break.” Lande

rs and Pullum subsequently failed to appea r for their April 4, 1984 court appearances and were

arrested prior to testify

ing at petitioner’s trial, which began on Apr il 9, 1984. Thus, the state court’s references to a “break” do not evidence that L anders and Pullum falsely testified that they

did not expect to receive leniency , or more important, that the District Attorney’s Of

fice knew or should have known about this alleged pe rjury. For

these reasons, we reject P etitioner ’s Brady

claim on this ground. C. The Materiality of the Allegedly Undisclosed Information Petitioner also fails to demonstrate that the allegedly undisclosed information was materia l. “[W]here

the undisc losed evi dence me rely furnishe s an addit

ional bas is on which

to challen ge a wi tness who se cred

ibility has alre ady

been sho wn to be qu

estionab le or who

is subject to extensive attack by re ason of other evidence, the undisclosed evidence may be cumulative, and hence not material.” United States v. Avellino , 136 F.3d 249, 257 (2d Cir. 1998); see also Tankleff v. Senkowski , 135 F.3d 235, 251 (2d Cir. 1998) (“When a witness’s credibility has alre ady bee n substantially called into question in the same respe cts by other evidence, additional impeachment evidence will g enerally be immaterial and will not provide the basis for a Brady

claim.”). We note tha

t petitione

r extensive ly a

ttacked the witne sses’ cr

edibility at trial. On cross

examination, Landers and Pullum admitted to having serious drug habits. Landers testified that22

he was under the influence of narc otics when the shooting occurred, and both L anders and Pullum took c ocaine a

nd heroin the nigh t they identifie d petitione

r in the lineup. L anders a lso admitted that he initially lied about his wherea bouts at the time of the shooting. Therefore, we conclude that the a llegedly undisclosed material would not have been materia l as impea

chment e vidence . The go vernmen t need not disclose evidenc e that, wh

ile “possibly useful to the defe nse,” Giglio , 405 U.S. a

t 154, is imma

terial.

CONCLUSION This case is troubling in the sense that the circumstances surrounding the dispositions of Louis Land ers’s a nd Sy lvia Pullum’ s crimina

l cases r aise ser ious quest

ions. The record seems clear that both received favora ble treatment because they testified against petitioner. However, the relevant inquiry

is whether the Kings County District Attorney’s Of

fice procured the cooperation of Boone, L anders, or Pullum by making undisclosed promises of leniency . The

state co urt judg e who pre sided ove r both the trial and the evide ntiary hearing on petitioner’s sta

te post-conviction motion for relief issued a comprehensive written order that clearly de lineated her finding s of fac t that ther

e were no undiscl osed prom

ises or e xpectation s of lenie ncy . Regar

dless of our ow n interpr etations o f the re cord, we cannot di sturb the se findin gs unles s they

are cle arly erroneous, and petitioner proffers insufficie nt evidence to support such a finding in this case. Based upon the foregoing , the judgment of the United States District Court for the Eastern District of New York is affirmed.