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December 12, 2005.

JOHN BURGE, Warden, Respondent.

The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


Pro se petitioner, Ronald Venticinque ("Venticinque"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction in New York Supreme Court, Queens County, on one count of assault and two counts of robbery. Venticinque claims that his Sixth Amendment right was violated in two respects: he was denied his right to represent himself at trial and his trial counsel was ineffective; he also claims that he was deprived of his rights under the Due Process Clause because the government failed to conduct DNA or other forensic tests on the knife that was used in the assault of which he was convicted, and the prosecutor introduced an excerpt from the transcript of his grand jury testimony that was inaccurately transcribed. For the reasons set forth below, his petition is denied.


  It is well settled that "federal habeas relief is not available unless `the applicant has exhausted the remedies available in the courts of the State.'" Jones v. Keane, 329 F.3d 290, 294 (2d Cir. 2003) (quoting 28 U.S.C. § 2254(b)(1)(A)). Venticinque's self-representation, ineffective-assistance and grand-jury transcript claims were presented to and rejected by the Appellate Division, Second Department, see People v. Venticinque, 301 A.D.2d 619 (2d Dep't 2003), and were fully exhausted when the New York Court of Appeals denied leave to appeal. See People v. Venticinque, 100 N.Y.2d 566 (2003) (table). Venticinque has not exhausted his claim of the government's failure to use forensics; nonetheless, if warranted, the Court may deny the claim on the merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002) ("A district court also may . . . deny a petition on the merits even if it contains an unexhausted claim.").


  Only federal issues may be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when a federal claim has been "adjudicated on the merits" by a state court, the state court's judgment is entitled to substantial deference. See 28 U.S.C. § 2254(d). "[A] state court adjudicates 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." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (citations and quotations omitted).

  For claims "adjudicated on the merits," habeas relief may not be granted unless the state court decision (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different conclusion. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of clearly established federal law if it unreasonably applies Supreme Court precedent to the particular facts of a case. See id. at 409. This inquiry requires a court to "ask whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was erroneous or incorrect. Id. In that respect, the standard to be applied "falls somewhere between merely erroneous and unreasonable to all reasonable jurists." Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003) (quoting Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)). However, the "increment [of incorrectness beyond error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).


  A. Right to Self-Representation

  1. Facts Relevant to This Claim

  On the morning of the second day of trial, Venticinque requested permission to represent himself for the remainder of his trial. The following colloquy ensued between the Venticinque ("Def") and the trial court ("Court"):
COURT: We're more than halfway, we're near the end.
DEF: Possibly three quarters
COURT: Right.
DEF: From this point on I would like to go pro se on my defense.
COURT: That's not permitted at this point. Your exception's noted for the record. I don't believe that you have the background to represent yourself, you don't have formal legal training, [your attorney] is doing a good job as he possibly can of representing you. It would not in any way, shape or form be in your legal interest at this point to suddenly in the middle of trial, really toward the end of it, start representing yourself. Sir, [your attorney] has responded as best he can to all your needs and requests.
In terms of the record, turning this down, I note a prior 730 dismissal for Mr. Venticinque as well as a period of time that this case stayed idle while other 730 issues went forward and it is the clear and unequivocal position of this court that Mr. Venticinque does not have legal training, the formal background, the knowledge of the law, the ability to question witnesses and to really represent his own best interest such as to represent himself at this point in the proceedings pro se in the context which this application has now been made.*fn1
DEF: Excuse me, your Honor, but I do work for two law firms.
COURT: Would you like to state your background for that?
DEF: I did things like clerical things, I have certain knowledge.
COURT: But you don't have any formal training in questioning witnesses, introducing evidence, making final summation arguments to a jury or anything of that nature.
Mr. Venticinque, I have tried very hard to give you as fair a trial as I possibly can and [your attorney] is a very good lawyer who's been doing a very good job representing you and I don't know what benefits you can possibly hope to achieve by suddenly at this point in the proceedings representing yourself. I think you would be hurting your own self-interest.
* * *
DEF: I am still not finished with this issue. I do have legal matters. I understand [my attorney] is a good attorney and I think he is a good attorney and I stated in my argument that I have here to prove ineffective counsel, I didn't want to break — COURT: You want to argue ineffective counsel?
DEF: [My attorney] is a good lawyer, I feel something is lacking or something somewhere. He don't want to call some witnesses, I got about forty-five reasons why.
Tr. at 500-02.*fn2 Venticinque's attorney then noted that he had explained to Venticinque that the testimony that those witnesses would offer would only be relevant to collateral matters. Thereafter, the Court afforded Venticinque and his attorney an opportunity to confer about the "forty-five reasons" for his request to proceed pro se. Following that conference, the trial court commented that the difficulties between Venticinque and his attorney simply amounted "to a disagreement with regard to trial strategy as well as being unhappy being bound by certain rules governing the introduction of collateral matters into evidence." Tr. at 512.

  When the issue was raised on direct appeal, the Appellate Division ruled that the trial court correctly "exercised its discretion in denying [Venticinque's] request" because it "was untimely and made at an advanced stage of the trial," and he "failed to set forth a compelling reason for the request." Venticinque, 301 A.D.2d at 619-20 (citations omitted).

  2. Law Relevant to This Claim and Application

  Faretta v. California, 422 U.S. 806 (1975), clearly established that a criminal defendant has a Sixth Amendment right to represent himself at trial if he knowingly and voluntarily waives his right to counsel. "If the defendant asks to proceed pro se before the trial commences this right is absolute, and his request must be granted" provided that the request is knowing and voluntary. United States v. Walker, 142 F.3d 103, 108 (2d Cir. 1998) (citation and quotations omitted). Furthermore, the Supreme Court has clarified that although "a defendant choosing self-representation must do so competently and intelligently, . . . the defendant's technical legal knowledge is not relevant to the determination whether he is competent to waive his right to counsel"; that is, ...

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