The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, John Smith ("Smith"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on charges of felony assault and attempted murder. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction at issue here stems from an incident that occurred during the early morning hours of July 29, 1994, when Smith broke into the apartment of his former girlfriend, Kimberly Rothfuss ("Rothfuss"). She reported the assault to the police and Smith was arrested later that day. According to Rothfuss's grand jury testimony, Smith bound and gagged her, raped her, and stabbed her repeatedly in the left temple area with a pair of scissors. Rothfuss testified before the grand jury that after Smith ceased the assault, he stole several items from her apartment. The grand jury indicted Smith on charges of second degree attempted murder (N.Y. Penal Law §§ 110.00, 125.25(1)); first degree burglary (N.Y. Penal Law § 140.30(2)); first degree rape (N.Y. Penal Law § 130.35(1)); first degree robbery (N.Y. Penal Law § 160.15(3)); and first degree (felony) assault (N.Y. Penal Law § 120.10(4)).
About a month after the attack, Rothfuss received a number of hang-up telephone calls and threats. Fearing for her safety, Rothfuss met with members of the Monroe County District Attorney's office in August 1994. Rothfuss was given the pager number of James Rossiter ("Rossiter"), an investigator with the District Attorney's office, and told that if she "felt scared or [she] needed to talk to somebody or [she] received any threats, [she] was to page him immediately." H.116.*fn1 After receiving further annoying telephone calls, Rothfuss paged Rossiter. The investigator informed her that a recording device could be hooked up to her telephone and that she could use it tape the telephone calls if she wished to do so. H.119-20. On August 22, 1994, Rothfuss received a phone call from a woman who informed her that there was a "contract" out on her life. Fearful for her and her infant son's safety, Rothfuss agreed to have the recording device installed on August 23, 1994. On August 24 and September 11 of 1994, Rothfuss taped telephone conversations which Smith had initiated while in custody on the charges arising out of the July 29th incident. These were held to be admissible into evidence.
Smith's jury trial was held in Monroe County Court (Affronti, J.). At trial, Rothfuss testified that on the night of July 29, 1994, she was getting for bed when Smith "jumped through the window" of her bedroom. T.453.*fn2 Smith was a former boyfriend with whom Rothfuss had an infant son. Smith tied Rothfuss's hands with a telephone cord and shoved a washcloth down her throat. He ordered her to be quiet and stated that he was going to "get some [sex] from [her]."
T.455. According to Rothfuss, Smith forcibly engaged in intercourse with her and ejaculated on her legs. Smith then began threatening to kill her. T.458-60. The attack culminated in Smith repeatedly stabbing Rothfuss with a pair of scissors in the left temple. T.462-63. Rothfuss testified that the last time he stabbed her, she felt her "bone was crushing." T.464. As soon as she let her body go limp, Smith stopped stabbing her. T.465. Rothfuss then decided to "play dead." Smith got off the bed, wrapped her body in a comforter and said, "Murder she wrote." T.465. Rothfuss heard Smith moving about her apartment for several minutes, opening the refrigerator and using the bathroom. T.466. When he finally left, Rothfuss ran outside to the security post in front of her apartment complex and called the police. She testified that as she left her apartment, she noted that Smith had stolen her VCR, cordless phone, and their son's clothes. T.468.
The prosecution introduced into evidence tapes of conversations between Rothfuss and Smith which occurred on August 26, 1994 and September 11, 1994, in which Rothfuss asked Smith why he had tried to kill her. Smith did not deny that he was trying to kill her. See T.479-82 (Exhibits 35, 36).*fn3
Upon defense counsel's motion, the trial court dismissed the robbery charge and charged second degree assault as a lesser included offense. The jury returned a conviction acquitting Smith of rape and burglary but convicting him of first degree assault and attempted second degree murder. He was sentenced to twelve and one-half to twenty-five years on the attempted murder charge and seven and one-half to fifteen years on the felony assault charge, those sentences to run concurrently with each other.
The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on June 18, 1999. The New York Court of Appeals denied leave to appeal on August 10, 1999.
On November 9, 1999, Smith brought a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in which he alleged that (1) the grand jury indictment and grand jury proceeding were defective, and (2) defendant's felony assault conviction must be dismissed because it merged with his attempted murder conviction. This application was denied by the trial court. Smith also challenged the effectiveness of his appellate counsel in an application for a writ of error coram nobis filed on January 5, 2001. This, too, was summarily denied.
This habeas petition followed in which Smith has raised the following grounds for relief:
(1) the trial court erred in admitting the taped telephone conversations (2) appellate counsel was ineffective in failing to challenge the trial court's decision not to remove trial counsel for allegedly failing to notify petitioner of his right to testify before the grand jury; and (3) appellate counsel was ineffective in failing to argue that trial counsel was ineffective in failing to move to dismiss the felony assault conviction on the ground that it merged with the attempted murder conviction. Respondent has not raised the defense of non-exhaustion, and it appears that all of Smith's claims ...