The opinion of the court was delivered by: Nina Gershon, United States District Judge:
The petitioner, Harold Walker, files this pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his April 12, 1994 conviction in New York State Supreme Court, Kings County, of two counts of Robbery in the Second Degree (N.Y. Penal Law §§ 160.10(1), 160. 10(2)(b)), and one count of Grand Larceny in the Fourth Degree (N.Y. Penal Law § 155.30(5)). On May 4, 1994, petitioner was sentenced, as a persistent violent felony offender, receiving concurrent terms of twenty-five years to life for the robbery counts and two to four years for the grand larceny count.
Before his trial commenced the petitioner filed motions to suppress the out-of-court identification and certain physical evidence. The trial court held an evidentiary hearing and. on March 1, 1994. denied the motions. The petitioner's initial jury trial began February 3, 1994. A mistrial was declared the following day. The retrial commenced April 4, 1994. and the petitioner was convicted on April 12, 1994.
The petitioner appealed to the Appellate Division, Second Department, claiming a Fourth Amendment violation and that the aggregate sentence imposed upon conviction was disproportionately harsh. On February 10, 1997, the Appellate Division unanimously affirmed the petitioner's conviction. People v. Walker, 236 A.D.2d 491 (2d Dep't 1997). The court found that the information provided by the civilian informant, coupled with the petitioner's temporal and spacial proximity to the robbery and his subsequent flight, amounted to a sufficient reasonable suspicion justifying the officers' pursuit. The court also held that the sentence imposed upon the petitioner was not excessive.
By letter application dated February 18, 1997, the petitioner applied to the New York Court of Appeals for leave to appeal. On March 25, 1997, Judge George Bundy Smith denied leave. People v. Walker, 680 N.E.2d 629 (1997).
On June 15, 1998, the petitioner filed a petition for a writ of habeas corpus in this court, raising the two claims he asserted in the Appellate Division. Pursuant to the petitioner's request, on September 22, 1999, this court dismissed the petition with leave to renew upon exhaustion of all available state remedies.
On November 5, 1999, the petitioner brought a pro se motion in New York State Supreme Court, Kings County, pursuant to New York's Criminal Procedure Law ("CPL") § 440.10, seeking to vacate the judgment of conviction. The petitioner argued that he was denied effective assistance of trial counsel because of his trial attorney's failure to move to dismiss the indictment based on violations of the petitioner's state statutory and Sixth Amendment rights to a speedy trial; at the same time he claimed, independently, violations of his statutory and Sixth Amendment rights to a speedy trial. The petitioner's motion was denied on March 17, 2000. and leave to appeal to the Appellate Division, Second Department, was denied on July 7, 2000.
By order dated November 14, 2000, this court treated the petitioner's original application as amended, to include the additional issues concerning the assistance of counsel and speedy trial, which had been raised in the Section 440.10 motion.
28 U.S.C. § 2254 (b)(1) provides that "a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ." In addition. Subsection (b)(2) of Section 2254 allows a court to deny "[a]n application . . . on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."
The applicable standard of review, found in Section 2254(d)(1), requires that deference be given to state court decisions adjudicated on the merits:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any 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 . . .
Thus, this court may grant the petitioner's application only upon a finding that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law Id; Davis v. Kelly, 316 F.3d 125
, 127 (2d. Cir. 2003); Sellan v. Kuhlman, 261 F.3d 303
, 312 (2d Cir. 2001). In addition, the "determination of a factual issue made by a State court shall be presumed to be correct," and the burden is on an applicant to rebut this presumption by "clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).
Fourth Amendment Claim*fn1
The petitioner claims a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. The petitioner asserts that a tip from a passing motorist indicating to the police that a robbery had occurred, but without further descriptive information, was by itself insufficient to constitute a reasonable suspicion. The petitioner further contends that, because the arresting officers did not have a reasonable suspicion to justify their initial ...