The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM & ORDER ADOPTING REPORT & RECOMMENDATION
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
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
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