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January 27, 2004.

CLARENCE SCOTT, Petitioner, -against- CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Clarence Scott petitions for a writ of habeas corpus, challenging his convictions in state court for criminal possession of crack cocaine. On January 23, 2004, I held oral argument, in which Scott participated by telephone conference. The petition is denied for the reasons set forth below,
  The People's evidence at trial established that, at around 12:20 a.m. on January 1, Page 2 1998, in the vicinity of South Road, Jamaica Queens, three plain-clothed police officers patrolling the area in an unmarked car heard gunshots at a nearby housing project. While investigating this area, they observed Scott in a courtyard next to the housing project. When one of the officers exited the car to ask Scott if he could speak with him (to ascertain whether or not he could provide any information about the gunshots), Scott ran away from the officer. While in flight, he discarded a brown bag. This brown bag contained 333 vials of crack cocaine. Scott testified that he went out shortly before midnight to buy wine. He further testified that he ran because he thought he was being accosted by a man with a gun, and he never possessed or dropped any bag filled with drugs.

  Scott was charged with criminal possession of a controlled substance in the first and third degrees. After deliberations, the jury convicted him of both offenses. Scott was sentenced to concurrent prison terms of from fifteen years to life and from four and a half to nine years imprisonment. The judgment of conviction was entered on February 18, 1999.

  In January of 1999, Scott, through counsel, appealed his conviction to the Appellate Division. Appellate counsel claimed that Scott's conviction could not be sustained because his trial counsel was ineffective for the following reasons: (a) he elicited and opened the door to prior convictions, including one for drug possession, which had been excluded by the court's Sandoval*fn1 ruling; (b) he failed to object to extensive irrelevant and prejudicial expert testimony about drug packaging; (c) he repeatedly had difficulty moving items into evidence; and Page 3 (d) he delivered a bizarre summation that failed to address his criminal history. The Appellate Division rejected these arguments and affirmed Scott's conviction on June 26, 2000. See People v. Scott. 711 N.Y.S.2d 890 (2d Dep't 2000). It held that "the defendant received the effective assistance of counsel." Id. On August 4, 2000, the New York Court of Appeals denied Scott's application for leave to appeal his conviction. People v. Scott. 95 N.Y.2d 871 (2000).

  On May 14, 2001, Scott, proceeding pro se, filed a petition for a writ of error coram nobis, alleging ineffective assistance of appellate counsel. In particular, he maintained that appellate counsel was deficient because she failed to argue that trial counsel was also ineffective based on his failure to properly request a Dunaway*fn2 hearing. The Appellate Division, Second Department, denied the writ on October 15, 2001, stating that Scott "has failed to establish that he was denied the effective assistance of appellate counsel." People v. Scott. 731 N.Y.S.2d 670 (2d Dep't 2001).

  On December 18, 2001, Scott filed a pro se motion in the state Supreme Court to vacate his judgment of conviction pursuant to N.Y. Crim. Proc, Law § 440.10. He asserted that he was denied his right to effective assistance of trial counsel when counsel failed to accurately marshal facts in his omnibus motion seeking a Dunaway hearing to determine whether he was unlawfully seized, searched and arrested. The state Supreme Court rejected Scott's arguments as procedurally barred. See People v. Scott. Indict. No. N10218/98, slip. op. (N.Y.Sup.Ct., Queens County, January 2, 2002) ("Defendant's claim is procedurally barred since it is based upon matters in the record which could have been raised on direct appeal. In any event, Page 4 defendant was afforded meaningful representation since counsel employed a trial strategy that any reasonably competent attorney might well have pursued.")(citations omitted).

  On April 22, 2002,*fn3 Scott filed the instant pro se petition for a writ of habeas corpus in this Court, challenging his convictions on the following grounds:
(a) he was deprived of the effective assistance of counsel at trial,
(b) he was deprived of the effective assistance of appellate counsel on his direct appeal,
(c) he was unlawfully convicted by use of evidence obtained through an unconstitutional search and seizure, and
(d) he was deprived of the effective assistance of counsel during pretrial motion practice.
A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the Page 5 dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor. 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe. 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith. 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175(2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist. 260 F.3d at 93 (citing Williams. 529 U.S. at 411); see also Yarborough v. Gentry. 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is Page 6 required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Id. (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
[f]or the purposes of AEDPA deference, a state court "adjudicate [s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman. 261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

 B. Scott's Claims

  1. Ineffective Assistance of Trial Counsel

  Scott asserts that he was deprived of his Sixth Amendment right to effective assistance of counsel in the trial court because his attorney

  (a) elicited and opened the door to prior conviction [s], including one for Drug Possession, which had been excluded by the Court's Sandoval Ruling in this Drug Possession case; (b) failed to object to extensive irrelevant and prejudicial expert testimony about drug packaging; (c) repeatedly had difficulty moving items into evidence; and (d) delivered a bizarre summation that failed to address [his] criminal history. Page 7

 (Pet. at 5(A).)

  The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington. 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance fell below an "objective standard of reasonableness," Strickland, 466 U.S. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. In assessing the reasonableness of counsel's performance, "[j]udicial scrutiny of counsel's performance must be highly deferential," and the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, ...

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