The opinion of the court was delivered by: Debra Freeman, United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner Esau Staley III ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County. Upon a jury verdict, Petitioner was found guilty of one count of Attempted Rape in the First Degree and one count of Sexual Abuse in the First Degree. Petitioner was sentenced to a term of 15 years on the rape charge and seven years on the sexual abuse count. He is currently incarcerated at Green Haven Correctional Facility.
Petitioner challenges his conviction and asserts that (1) he was denied effective assistance of counsel; (2) his arraignment was improperly delayed; (3) the indictment against him was impermissibly amended; and (4) his due process rights were violated because he was not given an opportunity to testify before the grand jury. (See Pet. at § 12.)*fn1 Respondent argues that the petition should be dismissed on the grounds that Petitioner's claims are unexhausted, procedurally barred, or without merit. (See Resp. Mem. at 10-17.)*fn2 For the reasons stated below, I recommend that the petition be dismissed.
According to the testimony at trial, on the morning of October 23, 1995, Bah Fatoumata, ("Fatoumata") a 36-year old woman, arrived at work at the Bebe Hair Braiding Salon at 145 Eighth Avenue in Harlem. (Tr. at 100.)*fn3 She was the first to arrive, so she unlocked the front door. (Id.) The salon's glass door was covered by a large poster, thereby concealing the salon's interior from the street. (Id. at 104, 108.)
Shortly thereafter, Petitioner opened the front door of the salon and began talking to Fatoumata. (Id. at 101.) Fatoumata could not understand what he was saying, but Petitioner gestured in such a way as to indicate that he wanted his hair braided. (Id.) Fatoumata pointed to her watch to indicate that he should come back later. (Id. at 101, 115.) Petitioner then left the salon. (Id.)
Approximately 20 minutes later, Petitioner returned to the salon and began speaking again to Fatoumata. (Id.) Fatoumata testified that she was frightened by Petitioner, so she told him that she did not speak English and again pointed to her watch to indicate that he should come back later. (Id. at 101-02, 117.) Petitioner, however, closed the door and walked towards Fatoumata. (Id. at 102.) Petitioner then grabbed Fatoumata and pulled her onto the floor. (Id.) Fatoumata and Petitioner began to struggle as Petitioner attempted to rape Fatoumata. (Id. at 102-04, 120-130.) Petitioner grabbed a pair of scissors that were nearby, and attempted to cut Fatoumata's pants, and to stab her in the neck. (Id. at 102, 124.) After a struggle over the scissors, Petitioner cut Fatoumata's face near her right eye. (Id. at 104.) During the struggle, Fatoumata managed to rip one of the posters off the glass door, hoping that someone on the street would then see and help her. (Id. at 104-05, 235.)
At some point between 9:00 a.m. and 10:00 a.m. that morning, Lacine Kamara ("Kamara") was bringing his girlfriend, Mawa Kata ("Kata"), to work at the salon. (Id. at 248.) He saw that the poster had been pulled down, and spotted two feet on the ground inside the store with the toes pointing up. (Id. at 248-50.) Kamara and Kata approached the salon to investigate. (Id. at 250.) When Kata pushed the door open, Petitioner got up and ran from the store. (Id. at 251.) After spotting Fatoumata in the store, covered with blood, Kamara chased after Petitioner. (Id. at 251-52.) He was joined by some uniformed police officers and one of them, Police Officer Guillermina Tavares ("Tavares"), apprehended Petitioner. (Id. at 252, 260-61.)
Kamara returned to the salon immediately after Petitioner was taken into custody. (Id. at 252.) Tavares arrived at the salon shortly thereafter. (Id. at 261-62.) At that time, she found Fatoumata lying on the ground outside of the store near the scissors, which Tavares collected as evidence. (Id. at 262-65.) Fatoumata had a cut by her right eye, and acted as if she were in shock. Since she did not speak English, Fatoumata was unable to tell the police what had happened. (Id. at 134, 263.) A bystander told Tavares that Petitioner had tried to rob Fatoumata. (Id. at 272.)
Fatoumata was taken by ambulance to Columbia Presbyterian Hospital, where she was met by her husband and brother. (Id. at 193-94.) With her family interpreting, Fatoumata told the hospital staff what had happened. (Id. at 194-95.) On November 8, 1995, Fatoumata picked Petitioner out of a line-up. (Id. at 167.)
II. PROCEDURAL BACKGROUND
On October 24, 1995, the day after his arrest, Petitioner was taken to Criminal Court, Supreme Court, New York County, to be arraigned on a felony complaint. (See Respondent's Affidavit in Opposition to Petition for a Writ of Habeas Corpus, sworn to April 1, 2002 ("Resp. Aff."), Ex. G.) The government asserts that Petitioner was, in fact, arraigned on October 24, although his case was then adjourned to October 27, in order to determine whether the grand jury would return an indictment against him. (See Resp. Mem. at 13.) It appears from the record that the government is correct on this point, and it also appears that counsel appeared for Petitioner at the time of his arraignment on October 24. (Resp. Aff., Exs. G and M.) Petitioner, however, disputes that he was arraigned on October 24, contending that he was not actually arraigned until October 27. (See Resp. Aff., Exs. F and G.)
On November 1, 1995, Petitioner was indicted on one count each of first degree rape, sexual abuse, and second degree-burglary. On April 10, 1996, the burglary count was dismissed.*fn4 On May 2, 1996, a Wade/Huntley hearing was held before the Honorable Franklin R. Weissberg.*fn5 (See Resp. Mem. at 6; Resp. Aff., Exs. A and B.) In that hearing, Petitioner moved to suppress his post-arrest statements and the victim's identification testimony. (Id.) On May 16, 1996, Justice Weissberg denied Petitioner's motion to suppress the identification evidence, but granted a portion of Petitioner's motion to suppress his statements. (Id.)
B. Jury Selection and Trial
Petitioner was tried by a jury from May 20, 1996, through May 23, 1996. At trial, the prosecution's witnesses were Fatoumata, Kamara, Tavares, and Detective John Savino. Petitioner presented no witnesses and did not testify on his own behalf. On May 23, 1996, the jury found Petitioner guilty of first degree rape and first degree sexual abuse. (Tr. at 391.) On June 10, 1996, Petitioner was sentenced to a term of 15 years on the rape charge and seven years on the sexual abuse count. See People v. Staley, 262 A.D.2d 30, 30, 692 N.Y.S.2d 314 (1st Dep't 1999).
Petitioner appealed his conviction to the Appellate Division, First Department. On appeal, he raised the following two claims: (1) the trial court erred in denying Petitioner's request to call Fatoumata to testify at the Wade hearing; and (2) that the trial court erred in denying Petitioner's motion for a mistrial based on the interpreter's alleged mis-translation of Fatoumata's testimony. (See Resp. App. Ex. B.) On September 30, 1999, the Appellate Division affirmed Petitioner's conviction. See People v. Staley, 262 A.D.2d 30, 692 N.Y.S.2d 314 (1st Dep't 1999). In its opinion, the Appellate Division concluded that the "hearing court properly denied defendant's request for the complainant to testify at the Wade hearing." 262 A.D.2d at 30, 692 N.Y.S.2d at 314. Additionally, the Appellate Division held that Petitioner "failed to establish that there was any error in the translation of the complainant's testimony." Id., 692 N.Y.S.2d at 315.
Petitioner sought leave to appeal the affirmance of his conviction. (See Resp. App. Ex. D.) On June 28, 1999, leave to appeal to the Court of Appeals was denied. See People v. ...