The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
Jesus Perez brings this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 challenging his convictions for robbery,
burglary, and criminal impersonation following a jury trial in New York
State Supreme Court, New York County. Mr. Perez argues that his
conviction should be overturned because: (1) a witness provided perjured
testimony before the grand jury; (2) the court issued erroneous jury
instructions; (3) the court improperly submitted lesser included offenses
to the jury; (4) the verdict was against the weight of the evidence; (5)
his sentence was excessive; and (6) there was judicial misconduct during
the trial. For the reasons set forth below, I recommend that the petition
On March 17, 1994, the petitioner and three others entered the Lucky 21
massage parlor and brothel at 5 West 21st Street in Manhattan. (Tr. at
864-65, 868, 873-75).*fn1 The men attacked and
robbed the occupants, including the madam, her boyfriend, and
several prostitutes and customers. (Tr. at 742-44, 883-85, 1097). The
petitioner and his accomplices threatened the occupants with a gun, a
knife, and lit torches. (Tr. at 392, 1093, 1200, 1218). One of the
robbers identified himself as "police" and displayed a badge. (Tr. at
387, 740, 1096). The perpetrators also stole large sums of cash and
jewelry. (Tr. at 410-11, 1090). The men severely beat one victim, injured
two others, and assaulted several other victims. (Tr. at 392, 742-44,
883-85, 1088-89). The petitioner and his accomplices then forced all of
the occupants into a small room and barricaded the door from the outside.
(Tr. at 781, 1089, 1222-23).
While attempting to leave the location, the men were arrested by police
officers. (Tr. at 11-12, 1884-86). Upon searching the perpetrators,
police found valuables belonging to the victims and substantial amounts
of cash in the possession of the petitioner and two other men. (Tr. at
180, 198-200, 413-14). Police also found a knife on the floor near one of
the suspects. (Tr. at 170). A few days later, a cook found a gun in the
brothel's freezer and turned it over to police. (Tr. at 26-27, 99-100,
Mr. Perez and his co-defendants proceeded to trial on February 16, 1995
before New York State Supreme Court Justice Bonnie Wittner. Nine
eyewitnesses recounted the conduct of the petitioner
and his accomplices. Witnesses testified that they saw Mr. Perez
drag one victim to a room, heard the sounds of a beating emanating from
the room, and eventually saw the victim emerge with a limp. (Tr. at
883-85, 889, 1207-08). Another witness testified that he was burned and
beaten unconscious. (Tr. at 742-44). The evidence also established that
the police caught the petitioner and his co-defendants fleeing the crime
scene. (Tr. at 14-15).
Mr. Perez and his co-defendants testified at trial that they acted in
self defense. (Tr. at 1625-28, 1763-65). They maintained that one of the
defendants had left his wallet at the brothel several weeks prior to the
incident, and that several attempts to retrieve the wallet had failed.
(Tr. at 1617-19). The defendants testified that on the night in question,
they again attempted to obtain the wallet but were attacked by the
occupants of the brothel. (Tr. at 1620, 1626-27, 1763-65).
At the conclusion of the trial, Mr. Perez was convicted of one count of
Attempted Robbery in the First Degree, in violation of New York Penal Law
("Penal Law") §§ 110.00 and 160.15(1), five counts of Robbery in the
Second Degree, in violation of Penal Law § 160.10(1), (2)(a), one
count of Burglary in the First Degree, in violation of Penal Law §
140.30(2), and one count of Criminal Impersonation in the First Degree,
in violation of Penal Law § 190.26. (Tr. at 2554-78, 2666-69). Mr.
Perez was acquitted on all robbery and burglary charges premised on the
theory that he carried
a weapon while committing the crime. (Tr. at 2666-69).
The petitioner was sentenced to an aggregate prison term of fourteen to
forty-two years. The sentences consisted of two to six years on the
attempted robbery count and three to nine years on each of four second
degree robbery counts, these sentences to run consecutively. The
petitioner also received three to nine years on the fifth second degree
robbery count, five to fifteen years on the burglary count, and one to
three years on the criminal impersonation count, these sentences to run
concurrently with each other and with the sentences imposed on the other
counts. (S. Tr. at 29-31).*fn2
Mr. Perez appealed his conviction to the Appellate Division, First
Department, arguing that: (1) he was deprived of his due process right to
a fair trial by the court's excessive interference in the proceedings;
and (2) that his aggregate sentence was harsh and excessive. (Appellate
Division Brief for Defendant-Appellant, attached as Exh. A to Declaration
of Michael P. King in Opposition to Petition for a Writ of Habeas Corpus
dated April 21, 2003 ("King Decl."), at 3). In a decision dated March 9,
2000, and amended on May 11, 2000, the Appellate Division unanimously
affirmed Mr. Perez's conviction. People v. Galloza, 270 A.D.2d 69,
705 N.Y.S.2d 35, 36 (1st Dep't 2000).*fn3 The court found that by
failing to object to the trial judge's conduct, Mr. Perez had not
preserved his claim, and also held that the sentence was not excessive.
Id., 705 N.Y.S.2d at 36.
In two letters dated March 23, 2000 and April 17, 2000, the petitioner
sought leave to appeal to the New York Court of Appeals, relying solely
on the brief submitted by a co-defendant, Garfield Ewan. Mr. Ewan argued
that the Appellate Division had applied an incorrect standard in holding
that the claim of judicial misconduct was not preserved for review.
(Ewan's Letter Application for Leave to Appeal dated April 14, 2000
("Ewan App."), attached as Exh. D to King Decl., at 1). On July 25, 2000,
leave to appeal was denied. People v. Perez, 95 N.Y.2d 856,
714 N.Y.S.2d 7 (2000) (table).
C. Collateral Proceedings
On March 5, 1996, the petitioner moved before the New York State
Supreme Court to vacate his conviction pursuant to New York Criminal
Procedure Law ("CPL") § 440.10, arguing that: (1) the indictment was
defective because a prosecution witness gave perjured testimony before
the grand jury; (2) attempted robbery in the first degree is not a crime
recognized by law; (3) the evidence of burglary was legally insufficient;
(4) the jury verdict was repugnant; and (5) the sentence imposed
constituted cruel and
unusual punishment. (Petitioner's Motion to Vacate Judgment,
attached as Exh. E to King Decl., at 6-24). On November 14, 1996, the
State Supreme Court denied this motion. (Order of the New York Supreme
Court dated Nov. 14, 1996 ("11/14/96 Order"), attached as Exh. H to King
Decl.). On December 26, 1996, pursuant to CPL § 460.15, the
petitioner applied for leave to appeal the denial of the CPL § 440
motion to the Appellate Division. Leave was denied on March 13, 1997.
(Order of New York Supreme Court, Appellate Division dated March 13, 1997
("3/13/97 Order"), attached as Exh. I to King Decl.).
On October 16, 2001, the petitioner moved before the Appellate Division
for a writ of error coram nobis alleging ineffective assistance
of appellate counsel. The petitioner based this claim on appellate
counsel's failure to argue: (1) that the verdict was legally insufficient
and against the weight of the evidence; (2) that the court should not
have submitted lesser included offenses to the jury; and (3) that the
court improperly imposed consecutive sentences. (Petitioner's Affidavit
in Support of Motion for Writ of Coram Nobis, attached as Exh. J to King
Decl., ¶ 7; Memorandum in Support of Motion for Writ of Coram Nobis,
attached as Exh. J to King Decl.). The Appellate Division denied the writ
on June 20, 2002. People v. Perez, 295 A.D.2d 1021, 746 N.Y.S.2d 272
(1st Dep't 2002) (table).
The petitioner filed the instant petition for a writ of habeas
corpus on October 11, 2001, raising the six claims discussed below.
A. Perjured Grand Jury Testimony
Mr. Perez first argues that the indictment was defective because a
prosecution witness gave perjured testimony to the grand jury. He
contends that the trial court lacked authority to conduct a trial, since
the indictment provides the predicate for the court's jurisdiction.
(Petition for Writ of Habeas Corpus ("Pet.") at 6). The respondent argues
that the petitioner's claim is not reviewable in a habeas corpus
proceeding because the state court's decision rejecting that claim rested
on an independent and adequate ...