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August 8, 2005.

AL WADE, Petitioner,
BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility Respondent.

The opinion of the court was delivered by: RICHARD CASEY, District Judge


Petitioner Al Wade ("Petitioner"), proceeding pro se, filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2254. Petitioner seeks to vacate his convictions of murder in the second degree and criminal possession of a weapon in the fourth degree. The matter was referred to Magistrate Judge Debra C. Freeman, who, on April 26, 2005, recommended that habeas relief be denied. See Report & Recommendation at 27 ("Report"). Petitioner filed timely objections to the Report. For the reasons set forth below, the Court adopts the Report in its entirety, and orders that the petition be DENIED.


  The Court briefly recounts the relevant facts here. According to the trial record, in 1995 Petitioner lived with his then-girlfriend, Sabrina Galloway ("Galloway"), and two of her children in the Bronx. Report at 2. One-year-old Bria was Petitioner's daughter with Galloway, and nine-year-old Kenneth was Galloway's son from a prior relationship. Id. On June 23, 1995, Galloway ran into Theodore Middleton ("Middleton") on the street and invited him to come home with her. Id. When Petitioner returned that evening with two acquaintances, Connie Merced ("Merced") and a man named Tyrone, he saw Middleton and asked him to leave. Id. Merced accompanied Galloway into her bedroom for a few minutes, and when they returned to the living room, they saw Petitioner and Middleton "pushing and shoving." Id. at 3. Galloway asked that everyone leave the apartment because she did not want to disturb Bria, who was sleeping. Id.

  Middleton was the first to leave, and fifteen to twenty minutes later, Petitioner, Merced, and Tyrone also left the premises. Id. According to Merced, as she, Petitioner, and Tyrone left the apartment, they walked past Middleton, who was leaning against a mailbox, but continued walking around the corner and up to the Grand Concourse. Id. Kenneth, however, testified that the group did not pass Middleton without further incident. Id. According to Kenneth, while Middleton was near the mailbox, Petitioner punched him in the chest, "three, four, five times." Id. Kenneth could not confirm if Petitioner had anything in his hands at the time, nor did he observe any blood. Id. Kenneth did see Petitioner run around the corner, and he also saw Middleton walk across the street and eventually collapse. Id. Galloway testified that a few minutes after everyone left the apartment she opened the door to look outside and observed only Middleton leaning against the mailbox. Id. She then witnessed Middleton walk across the street and eventually collapse before he reached the opposite sidewalk. Id. By the time Galloway ran across the street to a pay phone to call for an ambulance, an ambulance had already arrived on the scene. Id.

  Police Officers Brian Larkin and Patrick Kenneally arrived on the scene after they received a call that a man had been stabbed. Id. at 4. Officer Larkin witnessed Middleton "bleeding [a]ll over his shirt" in the back of the ambulance. Id. According to Officer Larkin, he found no weapons when he searched the area, but Kenneth approached him and told him that Petitioner had stabbed Middleton. Id. An autopsy performed on June, 24, 1995 by Dr. Zoya Schmuter, a medical examiner with the Office of the Chief Medical Examiner in New York City, revealed that Middleton sustained five stab wounds to the left side of his chest. Id.

  On July 20, 1995, Petitioner telephoned Detective Joseph Nealon of the 52nd Police Precinct and asked to surrender to the authorities. Id. Detective Nealon and his partner picked up Petitioner at his mother's house, placed him under arrest, and drove him back to the police station. Id. After he was advised of his Miranda rights, Petitioner answered questions and made an oral statement that he later unsuccessfully moved to suppress at trial. Id. at 5. According to Detective Nealon, Petitioner stated that he and Middleton "punched" one another while Middleton was standing by the mailbox. Id. Petitioner maintained that he dropped Merced off at the Grand Concourse after the incident and then went to his mother's residence. Id.

  A. Petitioner's State Court Proceedings

  Petitioner waived his right to a jury trial, and retained counsel to represent him during the bench trial held from July 14, 1997 through July 23, 1997. Id. Connie Merced was the only witness to testify on behalf of the defense. The court found Petitioner guilty of murder in the second degree and criminal possession of a weapon in the fourth degree and sentenced him to concurrent prison terms of 15 years to life for the second degree murder conviction and one year for criminal possession of a weapon in the fourth degree. Id.

  On direct appeal, Petitioner asserted that the evidence presented at trial was legally insufficient to support the conviction for second degree murder and that the conviction was against the weight of the evidence. Id. at 6. On October 24, 2000, the Appellate Division, First Department, unanimously affirmed Petitioner's conviction. People v. Wade, 276 A.D.2d 406 (1st Dep't 2000). The Appellate Division ruled that the verdict "was based on legally sufficient evidence and was not against the weight of the evidence," and that "[t]here is no basis upon which to disturb the court's determinations concerning credibility." Id. at 406. In letters dated January 26, 2001 and February 7, 2001, Petitioner sought leave to appeal the affirmance of his conviction to the New York Court of Appeals. Report at 6. On March 13, 2001, leave to appeal to the Court of Appeals was denied. People v. Wade, 96 N.Y.2d 788, 788 (2001). On February 20, 2002, Petitioner moved the Appellate Division for a writ of error coram nobis. Report at 7. Petitioner's motion asserted that he was denied the right to a direct appeal because the State had misled and deceived the Appellate Division through deliberate and continuous misrepresentations of material facts. Id. Petitioner further alleged that his appellate counsel was ineffective for "failing to apprise the court" of the State's alleged misrepresentations. Id. By Order dated August 15, 2002, the Appellate Division denied Petitioner's coram nobis petition. People v. Wade, 297 A.D.2d 468, 468 (1st Dep't 2002).

  B. Petitioner's Habeas Corpus Petition

  Petitioner challenges his conviction on the grounds that (1) he was denied the right to appeal; (2) he was denied effective assistance of appellate counsel; (3) the evidence was insufficient to sustain his conviction; and (4) his conviction was against the weight of the evidence. Report at 1. The State argues that the petition should be dismissed because Petitioner's claims are either not cognizable on habeas review, or the state court's determinations were neither contrary to, nor unreasonable applications of, federal law. Id. at 2. In his objections to the Report, Petitioner objects to Magistrate Judge Freeman's finding that he was not denied the right of appeal and that his appellate counsel's representation did not meet the threshold for ineffective assistance under the Sixth Amendment. Objections at 1.


  A. Standard of ...

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