The opinion of the court was delivered by: Joseph F. Bianco, District Judge
DaShaun Reed seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. For the reasons set forth below, his petition is denied.
The evidence at petitioner's trial demonstrated that, on the evening of December 1, 1996, Anthony Gibson carried out a plan of revenge against Teisha Wood's ex-boyfriend because of his belief that her exboyfriend had killed his cousin. Gibson lured Wood and her friend, Antoinette Cherry, to a basement with the promise of a marihuana party. Once they arrived, they were surrounded by six armed men-including Reed-who were wearing scarves and masks to conceal their identities. Armed with a gun, a sword, and a stick, petitioner and the other accomplices forced the women to strip. Four of the men then took Woods into a smaller room in the basement, where they raped and sodomized her.
After the men ordered the women to dress, they gagged and bound them, placed them in a car, and drove them to a building at 93 Lewis Avenue, where they were taken to the rooftop by Gibson and petitioner. Gibson ordered the women to sit, and then shot both of them in the head. Cherry died, but Woods survived the assault, which required the removal of a bullet fragment from her scalp.
Reed was charged with two counts of second degree murder under (N.Y. Penal Law § 125.25, ) and single counts of second degree attempted murder (N.Y. Penal Law §§ 110.00/125.25), first degree kidnaping (N.Y. Penal Law § 135.25), second degree kidnaping (N.Y. Penal Law § 135.20), second degree assault (N.Y. Penal Law § 120.05), second degree criminal possession of a weapon (N.Y. Penal Law § 265.03), and third degree criminal possession of a weapon (N.Y. Penal Law § 265.02). The other participants in the offense were charged with the same crimes under a separate indictment, which also included charges for sex-related offenses for their participation in the rape and sodomy of the victims.
Reed's first trial ended in a mistrial because of an ill juror. After deliberations had begun, a juror informed the judge that he suffered from claustrophobia, and the close confines of the jury room were causing him to experience panic attacks.*fn1 The trial court questioned the juror to find ways around the problem, including a proposal to waive sequestration only as to him so that he could spend the night in his own bed. The juror explained that he had no control over the situation as he was "terrified of being in an enclosed room for any length of time" and that if he had to return the next day "it would repeat."*fn2 The juror explained that his panic attacks could cause him to be violent, and the trial judge noted for the record that he appeared visibly shaken.*fn3 Because no alternatives were available, the trial court declared a mistrial, over Reed's objection.*fn4
Reed's second trial ended in a mistrial because the jury was unable to reach a unanimous verdict. At that trial, Woods testified about her ordeal and indicated that, at one point, she heard one assailant refer to another as "Shaun." However, Woods was unable to identify her attackers because their faces were concealed by scarves and masks. Theresa Hines, a friend of the six defendants, also was called as a witness and testified that she was inside the car, with petitioner and other co-defendants, that transported the victims to 93 Lewis Avenue. She testified that, after Gibson and petitioner returned from escorting the victims to the rooftop, they spoke of the murder.
At Reed's third trial, he was convicted on the murder and kidnaping charges. At this trial, in addition to the testimony of Woods and Hines, co-defendant Elliot Johnson testified about petitioner's involvement in the events that led to the shooting of the women. Johnson corroborated Hines' testimony that Gibson and petitioner escorted the victims out of the car to the rooftop at 93 Lewis Avenue. The trial judge sentenced Reed to consecutive prison terms, totaling fifty years to life imprisonment.
Petitioner appealed to the New York Supreme Court, Appellate Division, Second Department (hereinafter "Appellate Division"), arguing, inter alia, that his conviction was infirm under the Double Jeopardy Clause of the Fifth Amendment because the trial judge erred in declaring a mistrial in his first trial over his objection. The Appellate Division unanimously affirmed the judgment of conviction.*fn5 Concerning the Double Jeopardy issue, the court held that the trial court properly discharged the juror and declared a mistrial because the juror's illness rendered him grossly unqualified for jury service, and no alternate juror was available.*fn6 The New York Court of Appeals denied permission for the petitioner to appeal further, by certificate dated January 30, 2004.*fn7
Parallel to his efforts on direct appeal in the New York state court system, petitioner filed a motion to vacate his judgment of conviction, pursuant to New York Criminal Procedure Law § 440.10. In his motion, he claimed, inter alia, that his conviction should be vacated because his trial counsel was ineffective for failing to investigate the case, prepare for trial, develop a defense, and present witnesses on the petitioner's behalf. His motion included affidavits from Theresa Hines, who recanted her trial testimony, and three purported alibi witnesses: Angela Coleman, Robert Atkins, and co-defendant Christopher Johnson. The court denied his motion on all grounds, and specifically found that the affidavits that he attached to his motion papers did not establish an alibi and were incredible.*fn8 The court denied a motion to renew and argue his § 440.10 motion,*fn9 and the Appellate Division denied leave to appeal from the denial of his motions to vacate the judgment on August 16, 2004.
By pro se application dated August 8, 2005, Reed petitioned this Court for a writ of habeas corpus. In his petition, Reed brings two challenges to his incarceration: (1) that his conviction violated the Double Jeopardy Clause of the Fifth Amendment, a claim which he argued on direct appeal; and (2) that his trial counsel rendered ineffective assistance under the dictates of the Sixth Amendment, a claim which he argued in his Section 440.10 motion to vacate his conviction.
To determine whether or not a petitioner is entitled to a grant of a writ of habeas corpus, a federal court must apply the standards of review provided in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No 104-132, 110 Stat. 1214, which provides, in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...