The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, LaVon Cox ("Cox"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Niagara County Court of four counts of assault in the first degree, one count of assault in the second degree, two counts of criminal use of a firearm in the second degree and one count of criminal possession of a weapon in the second degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Shawn Matthews, supervisor at the 3Ms, a bar in the City of Niagara Falls, testified that on December 31, 1996, he broke up a fight there involving several men. One of them was Cox, whom Matthews knew as "Tobori." T.42-43.*fn1 Upon Matthews's request, Cox left the bar voluntarily; several of the other men involved in the altercation had to be forcibly removed. One of the men asked to leave, whom Matthews knew as "Jabar," threw a bottle through the front window of the bar, causing chaos inside. T.50. Matthews then saw Cox coming back into the bar; Matthews tried to stop him, but Cox continued past him toward the back area of the bar. T.52, 54. Matthews noticed that Cox was holding a gun in his right hand, behind his back. T.52, 54. Matthews saw Cox raise the gun over his head and fire into the ceiling once; Cox then lowered his hand and started firing in the direction of the crowd. T.55-56. During the melee, Matthews heard eight or nine gun shots fired. T.58.
Ashanti Jones ("Jones") testified that at about 2:30 a.m. on the night of December 31, 1996, she was at the 3Ms with her cousin Aisha Stancil ("Stancil"). They were in the back room of the bar dancing to the dee-jay. Jones saw a man she knew as Tobori come into the back room holding a medium-sized silver handgun. T.114-15, 119. Jones saw the flash from the muzzle and said that he fired the gun "a lot" of times. T.116-17. While Cox was still shooting, Jones and Stancil started to run, but apparently Stancil had been shot and dropped to the ground. Jones testified that hundreds of people were packed in together in the back room into which Cox was shooting. T.120. Jones admitted on cross-examination that when Cox was firing the gun, he was pointing it down towards the ground, and was not shooting the gun at chest-level towards people.
Stancil testified that she saw the person she knew as Tobori shooting a silver-colored handgun towards where everybody was standing or dancing in the back room. T.223-24. Stancil recalled that "everybody was like on the floor trying to get away from him and he was aiming towards the crowd" of people down on the floor. T.224-26. Stancil began to run away but her legs gave out because she had been shot in the left shin. T.228. Stancil testified that nobody was standing near Cox while he was shooting, and he was not fighting or wrestling with anyone for control of the gun. T.229. Stancil stated that the doctors were unable to remove the bullet which remained lodged in her bone. T.232. On cross-examination, Stancil testified that she knew what she saw and that she saw Cox shoot her. T.238.
Naki Dante Marvin ("Marvin"), Stancil's boyfriend, testified that he was dancing in the back room with Stancil when a person he knew as Tobori (Cox) came into the club and said, "[W]here those mother fuckers at," and "pointed the handgun" and "just started shooting."
T.500. Marvin described the gun as a "big," "silver" 9-mm handgun.
T.502. Marvin grabbed Stancil and started running out of the bar.
Stephanie Flynn ("Flynn") testified that she was at the 3Ms when she heard something that sounded like "firecrackers" and started to run. On her way out, Flynn fell and hit a table. She did not realize that she had been shot in the leg until she got outside and was unable to bend her leg to get into the car. At the hospital, the doctors removed a bullet from her leg.
On the night of the incident, Erica Rivers ("Rivers") drove to the 3Ms in a white car with several individuals, including Cox and his uncle, Michael Cox. T.282-83. She was talking to Latosha Bryant in the back room when she heard gunshots. T.284-85. Rivers ducked and tried to get out through the side door. T.285. However, Rivers had been hit with a bullet in her lower right leg and collapsed. T.286-87. Rivers had three surgeries, including a skin graft procedure to fill in the hole left by the bullet wound. T.290-92. Rivers did not see who was doing the shooting and stated that she did not remember seeing Cox in the back room at the club that night. T.305.
Latosha Bryant ("Bryant") testified that she was at the 3Ms on the night of the incident sometime after 2 a.m. when she heard a gunshot. T.324. Bryant said that she did not run because there was nowhere to go due to how crowded it was. Id. She testified that she got shot in the left leg and fell to the ground, where she saw Cox pointing the gun and shooting at Antwan Giles ("Giles"). T.325, 327, 328. Giles was "balled up" on the ground in a "fetus position." T.326. Bryant recalled hearing from five to eight shots. T.328. Bryant estimated that Cox was standing about six to eight feet from Giles during the shooting. T.330. Bryant testified that, while at the 3Ms, she had heard about an earlier altercation in the bar, but she did not witness it. T.337.
Antwan Giles ("Giles") testified that he went to the 3Ms on January 31, 1996, arriving at about 12:45 a.m. Shortly after he got there, he saw his friend, Jabar Ellis, arguing with Michael Cox. T.361-62. Giles pulled Jabar away and took him out to the bar to cool off; Jabar ened up leaving to go home. T.362. Giles testified that Michael Cox approached him and told him to "stay out of it." T.363. Giles recalled that Cox "stepped up" when Michael Cox and Jabar were arguing. T.363. Giles told Cox that he (Giles) did not have anything to do with their argument and that he (Cox) should take his uncle (Michael Cox) home. T.365. Giles left the area and went back to the bar.
A little while later, Giles testified, he was in the back room when he heard gunshots and turned around. T.366, 369. He saw Cox with a chrome gun pointing towards him. T.369. Giles was "in shock" and threw his hands up in the air as Cox started shooting at him. T.369-70. Giles tried to run, but he was hit in his left thigh; he spun around and got shot again, which caused him to fall to the ground. T.371. Giles testified that there was nobody near Cox while Cox was shooting the gun. T.375-76. On cross-examination, Giles stated that Cox had an "attention zone looking for the people" and was "probably looking for [him]." T.397.
Camecia Walker ("Walker") was sitting in a car outside of the 3M Club on the night of the incident and had witnessed the earlier altercation involving Giles, Jabar, Michael Cox, and Cox. T.483-87. She later observed Cox, whom she knew from the neighborhood, exit the bar and remove a silver-colored object, which she believed to be a gun, from the trunk of a white car.
T.493-94. Walker heard a series of four or more shots and then people started exiting the bar; she saw Cox leave the bar after the gun shots had stopped. T.497.
The defense called Nicole Isom ("Isom"), an acquaintance of Cox's. She testified that she witnessed the earlier altercation at the 3Ms in which Michael Cox got struck on the head with a bottle. T.525. During the fight, as Cox was reaching down to help his uncle, Michael Cox, get up, Mark Florence ("Florence"), a cousin of Giles's, "pulled up his shirt" and "flashed" a gun. T.526. Florence said, "I'll shoot you," to Cox and Michael Cox. T.540-43.Then the fight was broken up. Isom testified that very soon thereafter, she heard "a bang, a boom," and she "just ran out."
T.530. She did not see who had fired the gun. Id.
Michael Cox, Cox's uncle, testified for the defense. He described himself as a crack addict with a long history of felony convictions--mainly for assaults and robberies. Michael Cox testified that on the night of December 31, 1996, he purchased some crack cocaine from Giles for $20. T.601-02. However, he was unhappy with the amount that he received for his money and complained to Giles about it. T.602. Michael Cox testified that Giles "got a couple [of] his friends around" and they all "started arguing" and "struggling [and] wrestling," and someone hit him in the back of the head with a bottle. T.602. According to Michael Cox, he heard gunshots while his nephew, Cox, was helping him up off the floor. T.614-15.
Officers John Chella ("Chella") and Patrick Stack ("Stack") testified that in December 1996 he became involved in an unrelated criminal investigation regarding weapons trafficking by Bobby Cox, who happened to be petitioner's uncle. T.307. On January 20, 1997, the two officers went to the home of Bobby Cox with a warrant to search for six specific weapons. They found three guns in the trunk of a 1979 Buick registered to Bobby Cox. T.308-09. Two of the guns found happened to be 9-mm semiautomatic pistols; one was a Remington Hi-Point and one was Keltec. T.309.
The ballistics expert testified at trial regarding the four projectiles and eight 9-mm shell casings recovered from the crime scene and the victims. T.408. He stated that six of the eight casings were fired from the assault weapon (a Remington Hi-Point 9-mm handgun) found in the trunk of Bobby Cox's car and introduced into evidence at trial as People's Exhibit 2. T.424-25. The expert testified that the Remington Hi-Point fired the two projectiles found in the back area of the bar, where people were dancing to the dee-jay. The expert also stated that the Remington Hi-Point was used to fire the bullets that were removed from Flynn and Rivers. T.426. In addition, there were two casings found in the front part of the bar which did not match People's Exhibit 2, the Remington Hi-Point. However, there was no testimony presented that a shooting had occurred in the front part of the bar on that New Year's Eve.
The police testified that Cox turned himself in on January 5, 1997. T.163-68. Cox agreed to waive his rights, and he gave a written statement admitting being at the 3Ms on the night of the incident and being involved in a fight. However, he denied any involvement in the shooting.*fn2
The jury returned a verdict convicting Cox of four counts of assault in the first degree (N.Y. Penal Law § 120.10(3)) with respect to Giles, Stancil, Bryant and Rivers. He was convicted of one count of assault in the second degree (N.Y. Penal Law § 120.05(2)) with respect to Flynn. Finally, Cox was convicted of two counts of criminal use of a firearm in the first degree (N.Y. Penal Law § 265.09) and one count of criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03). He was acquitted of the two counts of second degree burglary charged in the indictment. Cox was sentenced to seventeen and one-half to twenty-five years on the four counts of first degree assault, three and one-half to seven years on the count of second degree assault, twelve and one-half to twenty-five years on the two counts of first degree criminal use of a firearm, and seven and one-half to fifteen years one the count of second degree criminal possession of a weapon. All sentences were set to run consecutively to each other.
Represented by new counsel, Cox appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. He raised the following arguments: (1) prosecutorial misconduct on summation; (2) improper cross-examination by the prosecutor; and (3) harsh, excessive and vindictive sentence. The Fourth Department affirmed the conviction but modified petitioner's sentence on the law, holding that the sentences on the two counts of criminal use of a firearm in the first degree and one count of criminal possession of a weapon in the second degree run concurrently with the sentences imposed on their related assault counts. People v. Cox, 256 A.D.2d 1244, 684 N.Y.S.2d 366 (App. Div. 4th Dept. 1998) (citing, inter alia, N.Y. Penal Law § 70.25(2)). The New York Court of Appeals denied leave to appeal. People v. Cox, 93 N.Y.2d 923, 715 N.E.2d 509, 693 N.Y.S.2d 506 (N.Y. 1999).
On February 26, 1999, Cox filed a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in the trial court. He asserted the following claims: (1) evidence was adduced by the prosecution that was knowingly false; (2) Rosario*fn3 material was withheld from the defense; (3) newly discovered evidence; (4) Brady*fn4 material was withheld form the defense; and (5) defendant was denied the effective assistance of trial counsel. The prosecutor argued that the motion must be denied because all of the issues raised therein were apparent on the record and could have been raised on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(c). The trial court first considered the substance of petitioner's claims and found them without merit. As to the false evidence claim, the court held that Cox "failed to make any showing . . . that there was any evidence adduced by the prosecution or the court at the trial which they knew to be false[.]" April 13, 1999 County Court Order at 4*fn5 (citing N.Y. Crim. Proc. Law § 440.10(1)(c)). With respect to the Rosario and the Brady claims, the court held that petitioner's allegations were "unsupported by the record, and specifically disproved by the very documents submitted by [him] in 'support' of the 440 motion, which submissions clearly indicate that the information had been supplied by the prosecution and was known to the defense." Id. at 5, 6 (citations omitted). As to the claim of newly discovered evidence, the court found that contrary to petitioner's assertion, there "was no showing . . . of any newly discovered evidence in this case at all." Id. at 5. Finally, the court dismissed the ineffective assistance claim, which was "based primarily on counsel's failure to utilize purported impeachment material that was . . . undisputedly in counsel's possession." Id. at 6. The court stated that petitioner's argument "raise[d] no issue that could not be resolved on the trial court and which could, and should, have been raised on direct appeal." Id. The court went on to note that because all of petitioner's arguments were "adequately disclosed in the record[,]" C.P.L. § 440.10(2)(c) "require[d] that this Court deny the motion." Id. at 6-7.
Cox filed a second C.P.L. § 440.10 motion raising substantially the same issues as raised on the first motion. The trial court denied the motion in its entirety, holding that the issues raised therein could have been raised previously by Cox through the exercise of due diligence, but had not been. See June 28, 2001 County Court Order; see also N.Y. Crim. Proc. Law § 440.10(3)(a), (c).
Cox also filed two applications for a writ of error coram nobis in the Appellate Division. These motions were summarily denied on November 13, 2000 (People v. Cox, 277 A.D.2d 1062, 716 N.Y.S.2d 349 (App. Div. 4th Dept. 2000)), and June 7, 2002 (People v. Cox, 743 N.Y.S.2d 770 (App. Div. 4th Dept. 2002)). The New York Court of Appeals denied leave to appeal on January 16, 2003. People v. Cox, 99 N.Y.2d 581, 785 N.E.2d 739, 755 N.Y.S.2d 717 (N.Y. 2003).
On June 5, 2002, Cox filed his initial petition for federal habeas relief. See Docket #1. Cox sought and was granted several motions to hold the petition in abeyance so that he could return to state court and exhaust various claims. See Docket ## 11, 12, 19, 27, 28. Pursuant to this Court's order, Cox filed an amended petition on January 7, 2005, in which he raises the following grounds for relief: (1) the prosecutor committed misconduct on summation; (2) the prosecutor's cross-examination of a witness was improper; (3) the sentence was harsh and excessive, and also vindictive; (4) "falsified and tampered with evidence [was] used to obtain indictment and conviction"; (5) trial counsel was ineffective; (6) appellate counsel was ineffective; (7) the prosecution failed to establish petitioner's guilt beyond a reasonable doubt; and (8) the prosecutor "submitted false evidence by permitting Ms. Bryant to testify to removal of projectile where prosecutor knew that this evidence was false." Docket #21. Petitioner states that ground four is unexhausted. Id.
Respondent answered the amended petition on and submitted the exact same cursory memorandum of law that it did in opposition to petitioner's first petition. Respondent, in a remarkable lack of concern for his case, completely fails to acknowledge that petitioner has raised four additional grounds for relief and addresses only these issues: (1) the prosecution failed to turn over Brady material; (2) trial counsel was ineffective; (3) appellate counsel was ineffective; and (4) the prosecution failed to prove petitioner's guilt beyond a reasonable doubt. See Docket #23. The Court is at a loss as to why respondent failed to address the remaining four claims asserted in the Amended Petition and failed to take a position regarding the claim that petitioner asserts remains unexhausted. In its Answer to the Amended Petition, respondent takes the position that all of Cox's claims are exhausted, effectively stipulating that all of Cox's claims are exhausted, thereby waiving the defense of non-exhaustion. Accordingly, the Court will treat them as such. Respondent did argue, however, that the ineffective assistance of trial counsel claim is subject to a procedural default due to the trial court's dismissal of the claim pursuant to C.P.L. § 440.10(2)(c). However, because it is more efficient to dispose Cox's ineffective assistance of counsel claim on the merits, in the interest of judicial ...