The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
Hector Serrano brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in the New York State Supreme Court, Bronx County, Serrano was convicted of Attempted Murder in the Second Degree under N.Y. Penal Law §§ 110.00, 125.25(1) and of Rape in the Third Degree under N.Y. Penal Law § 130.25(2). Serrano was sentenced as a second felony offender to 25 years' imprisonment on the attempted murder charge and to a concurrent prison term of 1-1/3 to 4 years on the rape charge. Serrano is currently incarcerated at the Great Meadow Correctional Facility in Comstock, New York. For the reasons stated below, Serrano's petition should be denied.
The evidence presented at trial is largely irrelevant to the disposition of this petition. Nonetheless, a brief summary is included here to provide some context for Serrano's claims. Serrano's convictions stem from actions that occurred during a relationship he had with "Cindia M."*fn2 As of June 1997, the two had been dating for approximately four months and had been engaging in sexual intercourse every day. (Cindia: Tr. 480, 511). Serrano was 28 years old and Cindia was 16 years old. See Brief for Defendant-Appellant Hector Serrano, dated June 2001 ("Pet. App. Div. Brief") (reproduced as Ex. 2 to Affidavit in Opposition by David S. Weisel, filed April 7, 2003 (Docket #7) ("Opp. Aff.")), at 3, 4 n.3.*fn3
On June 9, 1997, Serrano approached Cindia's kitchen window and requested that she come outside. (Cindia: Tr. 480-81). Cindia had told Serrano that she "didn't want to be with him" and Serrano wanted her to "tell him in his face." (Cindia: Tr. 481). Because Cindia and Serrano were within earshot of their families, the two sought privacy and went to a small room in the apartment complex where garbage was kept. See Pet. App. Div. Brief at 5 (citing Cindia: Tr. 530-32). When they reached the room, Serrano pushed Cindia into a stairway and the two began to physically struggle. (Cindia: Tr. 531; see also Cindia: Tr. 533). Serrano wrestled Cindia to the floor and put his kneecap against her stomach. (See Cindia: Tr. 483). He then withdrew a small blade from his mouth and began using it to cut her. (See Cindia: Tr. 483). Cindia sustained injuries to her left leg, the back of her neck, the left side of her chin, and the back of her head. (Cindia: Tr. 484-85).
After her family became aware of the altercation, Cindia's mother came to the stairway and jumped on top of Serrano in order to prevent further injury to Cindia, prompting a small scuffle between Cindia's mother and Serrano's mother and sister. (See Cindia: Tr. 538-40). Various individuals arrived and broke up the fight, at which point Serrano threw the blade on the floor and left. See Pet. App. Div. Brief at 7 (citing Cindia: Tr. 487, 541; Fernandez: Tr. 577, 627-28). Cindia was brought to the hospital where she received 200 stitches on her leg and approximately 30 stitches on her neck and chin. (See Cindia: Tr. 487-88). At the time of trial, she still had scars from the injuries and could "hardly walk" when it was cold. (Cindia: Tr. 488).
Serrano was apprehended by the police on June 17, 1997, after he allegedly fired shots at Cindia's family while they were driving. See Pet. App. Div. Brief at 11-12.
Serrano was charged in a 39-count grand jury indictment. See Indictment, dated June 23, 1997 ("Indictment") (reproduced as Ex. 1 to Opp. Aff.).*fn4 Prior to trial he was offered nine years in prison in exchange for a guilty plea. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed October 31, 2002 (Docket #1) ("Orig. Petition"), at 5. Serrano did not accept this offer and the case proceeded to trial. See Opp. Aff. ¶ 6.
During the jury selection process the prosecution argued that the defense's peremptory challenges were racially motivated, in contravention of Batson v. Kentucky, 476 U.S. 79 (1986). (See Tr. 335-50). Specifically, the prosecution contended that the defense had stricken four white male prospective jurors on account of their race. (See Tr. 335-38).
The trial judge found a prima facie case of discrimination and requested from the defense race-neutral reasons for their peremptory challenges. (Tr. 338). As to the first three prospective jurors, the trial judge was satisfied with the defense's explanations. (See Tr. 348). Regarding the fourth challenged juror, an individual named Canzone, Serrano's attorney contended that the peremptory was used because of a "gut feeling" about him, a feeling shared by Serrano. (See Tr. 343, 348-49). The judge found this explanation insufficient and the court sat Canzone as a juror. (See Tr. 349-50).
Among the counts charged in the indictment were Attempted Murder in the Second Degree*fn5 and two separate counts of Assault in the First Degree. See Indictment. The first count of assault, under N.Y. Penal Law § 120.10(1), accused Serrano of intentionally causing serious injury to Cindia by means of a deadly weapon or dangerous instrument. See id. at Count X. The second assault count, under N.Y. Penal Law § 120.10(2), alleged that Serrano, "with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of that person's body, did cause such an injury to Cindia." Id. at Count XI.
At trial, during a charge conference, the defense requested that the court charge the jury with the lesser-included count of reckless second-degree assault pursuant to N.Y. Penal Law § 120.05(4).*fn6 See Pet. App. Div. Brief at 26 (citing Tr. 1261). The defense argued that the trial testimony supported a finding of recklessness. See id. (citing Tr. 1262). The prosecution opposed the request, contending that there was no reasonable view of the evidence to support a recklessness charge. See id. (citing Tr. 1261-64). The court agreed with the prosecution and denied the defense's request. See id. (citing Tr. 1261-64).
At the close of summations, the trial court instructed the jury to consider three counts in the alternative: Attempted Murder in the Second Degree, Assault in the First Degree, and Assault in the Second Degree -- specifically, under a theory that Serrano intentionally caused physical injury by use of a deadly weapon or dangerous instrument. See Respondent's Brief, dated December 2001 ("Resp. App. Div. Brief") (reproduced as Ex. 3 to Opp. Aff.), at 31 (citing Tr. 1556, 1561-63). Serrano was also charged with Rape in the Third Degree. See Pet. App. Div. Brief at 27 (citing Tr. 1582-83); see N.Y. Penal Law § 130.25(2). The jurors were instructed to first deliberate over the attempted murder charge, see Pet. App. Div. Brief at 27 (citing Tr. 1556-60), and to consider the assault charges only if they acquitted Serrano of attempted murder. See Resp. App. Div. Brief at 31 (citing Tr. 1559-60).
E. Jury Verdict and Sentence
The jury convicted Serrano of Attempted Murder in the Second Degree and Rape in the Third Degree. See People v. Serrano, 290 A.D.2d 360, 360 (1st Dep't 2002); Opp. Aff. ¶ 6. He was sentenced as a second felony offender to 25 years on the attempted murder charge and to a concurrent term of 1-1/3 to 4 years on the rape charge. See Serrano, 290 A.D.2d at 360; Opp. Aff. ¶ 6.
Represented by assigned counsel, Serrano appealed his conviction to the Appellate Division, First Department, making the following two arguments:
The court deprived [Serrano] of his due process right to a fair trial when it improperly refused to charge the jury on reckless second-degree assault as a lesser included offense of Assault in the First Degree where a reasonable view of the evidence indicated that [Serrano] may have acted recklessly rather than intentionally in injuring [Cindia]. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6; C.P.L. § 300.50.
[Serrano's] definite sentence of 25 years of imprisonment for Attempted Murder in the Second Degree was unduly harsh and excessive in light of his previous nonviolent criminal history.
Pet. App. Div. Brief at 31, 40; see Opp. Aff. ¶ 7. On January 24, 2002, the Appellate Division unanimously affirmed Serrano's conviction and sentence. Serrano, 290 A.D.2d at 360. The court held that Serrano's lesser-included-offense argument was "foreclosed, since the jury found defendant guilty of attempted murder in the second degree and, pursuant to the court's instructions, which the jury presumably followed, it had no occasion to consider the first degree assault count submitted in the alternative." Id. (citing People v. Johnson, 87 N.Y.2d 357, 361 (1996); People v. Boettcher, 69 N.Y.2d 174, 180-81 (1987); People v. Falcon, 281 A.D.2d 368 (1st Dep't 2001)). The Appellate Division also noted that it "perceive[d] no basis for a reduction of sentence." Id.
Serrano sought leave to appeal the decision to the Court of Appeals of New York. By letter from counsel dated January 31, 2002, Serrano sought review of all issues raised in his brief to the Appellate Division. See Letter to the Hon. Judith Kaye from Susan Epstein, dated January 31, 2002 ("Jan. 31 Ltr.") (reproduced as Ex. 4 to Opp. Aff.). In a subsequent letter to the court from counsel, Serrano discussed at length his argument that reckless second-degree assault should have been charged and again requested that the length of his sentence be reconsidered. See Letter to the Hon. Victoria A. Graffeo from Susan Epstein, dated February 19, 2002 (reproduced as Ex. 5 to Opp. Aff.). On March 25, 2002, the Court of Appeals denied leave. People v. Serrano, 97 N.Y.2d 761 (2002).
Serrano submitted the instant petition for writ of habeas corpus to this Court's Pro Se Office on September 9, 2002. The petition raised the following two grounds for relief:
Ground one: Failure to charge lesser included offense of Reckless Assault 2nd. Trial testimony supported the submission of this lesser offense to the triers of fact. The Court charged a Justification Defense, and a lesser included offense of Assault 3rd. relating to charges for which the jurors hung.
Ground two: Harsh & Excessive Sentence. [Serrano] was initially offered 9 yrs. to plead guilty, and was penalized for asserting his right to trial. And [Serrano] was never involved with violent crimes previously.
Orig. Petition at 5. Respondent answered the petition on April 7, 2003. See Opp. Aff.; Memorandum of Law on Behalf of Respondent, undated ("Resp. Mem.") (annexed to Opp. Aff.). Serrano then moved to stay the proceedings so that he could exhaust his state court remedies with regard to two new claims he wished to assert: a claim that his trial counsel was ineffective for "discriminat[ing] against white prospective jurors during jury selection" and a claim that "[appellate] counsel was ineffective for not raising that counsel at trial was ineffective." Notice of Motion for Stay of Proceeding and Affidavit in Support, dated April 13, 2003 ("Stay Motion") (reproduced as Ex. 3 to Supplemental Affidavit by David S. Weisel, filed May 13, 2004 (Docket #15) ("Resp. Supp. Aff.")), ¶¶ 4, 7. In order to exhaust his state court remedies, Serrano proposed filing an application in the state trial court under N.Y. Crim. Proc. Law ("CPL") § 440.10 to exhaust the first claim and an application with the Appellate Division for a writ of error coram nobis to exhaust the second. See id. ¶ 3. The stay was granted. Order, filed May 1, 2003 (Docket #9) ("Stay Order").
On June 11, 2003, Serrano moved in the Appellate Division, First Department for a writ of error coram nobis on the ground of ineffective assistance of appellate counsel. Resp. Supp. Aff. ¶ 8; see Notice of Motion Writ of Error Coram Nobis, dated May 7, 2003 ("Coram Nobis Aff.") (reproduced as Ex. 5 to Resp. Supp. Aff.), at 1, 4-5.*fn7 Serrano alleged that appellate counsel was ineffective because she failed to argue that Serrano's trial counsel was ineffective when he (1) intentionally discriminated against a white prospective juror, denying Serrano his "right to equal protection," and (2) utilized Serrano's "peremptory right to challenge prospective jurors in a discriminatory manner." Coram Nobis Aff. at 5. On October 14, 2003, the ...