The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge.
A hearing was held in this matter. Petitioner was present by telephone and his counsel was present in person.
The petition for a writ of habeas corpus is dismissed as time-barred and, in the alternative, denied on the merits for the reasons stated orally on the record. This memorandum briefly addresses both the timeliness issue and the merits of petitioner's claims.
I. Facts and Procedural History
Petitioner was tried on charges relating to a homicide that occurred during the robbery of a jewelry store. Evidence at trial established petitioner and two accomplices entered the store and smashed glass in the jewelry cases. When the store manager heard a shout that men with guns had entered the store, he picked up his licensed handgun from the back office of the store and headed out to the sales area. A gunfight ensued, leaving the store manager's brother partially paralyzed and unable to walk, and leaving his father dead.
Petitioner's three accomplices were arrested within two weeks of the crime. Petitioner eluded detection for over eighteen months, hiding out in his sister's apartment and emerging only at night. After he was apprehended and arrested he made a full statement to detectives admitting his role in the robbery:
I am glad it is over, I am tired of running. I can't
even go out during the daytime and my mother. . . had
been trying to get me to give it up for a long time.
My main concern was just to get out of the jewelry
store. The dead guy fell right on top of me. That is
when I yelled to Ruben to shoot out the door because I
tried to crash through the door to get out. I didn't
shoot anyone, but I was just down for the robbery. My
job was just to steal everything from off the
counter. The cleanup guy.
Everything went wrong. Marcus shot out the door and I
just ran. I ran back to the projects, and I've been
running ever since.
Trial Tr. at 525-26.
Petitioner was convicted of second degree murder (felony murder) and first degree assault. He was sentenced to 25 years to life in prison.
Petitioner's conviction was affirmed by the Appellate Division. Leave to appeal was denied. No collateral proceedings were initiated.
In the instant petition for a writ of habeas corpus, petitioner makes the same single claim that he raised on direct appeal: that his trial counsel was ineffective for "prevailing upon him to withdraw his request to call two co-perpetrators as witnesses."
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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 Price v. Vincent, 155 L.Ed.2d 877, 885-86 (2003).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." ...