The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Lawrence Johnson ("Johnson"), initially filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the Court on November 17, 1999. See Docket #1. Respondent answered the petition on October 7, 2000. The Court denied Johnson's request for habeas relief in a decision and order entered August 12, 2003. See Docket #26. The Court held that Johnson's claims that the prosecutor failed to disclose exculpatory evidence and that his sentence was based on inaccuracies contained in the pre-sentence report were unexhausted but procedurally defaulted because Johnson had no avenues for review available in state court. As to Johnson's claim that he was improperly denied the right to testify before the grand jury, the Court found that it was not cognizable in a federal habeas corpus proceeding. The Court examined the merits of Johnson's remaining claims, namely, that he was denied due process because he was not afforded a formal mental health examination pursuant to New York Criminal Procedure Law 730.30; that he was denied due process based on the trial court's dismissal of a sworn juror for cause upon the prosecutor's request; that his cross-examination of a witness was improperly curtailed; and that he was denied the effective assistance of counsel. None of these claims were found sufficient to warrant habeas relief.
Shortly thereafter, Johnson retained Donald Thompson, Esq. to assist him in connection with the instant matter. The Court stayed the petition until September 22, 2003, to permit counsel to file additional pleadings for the purpose of augmenting the record. Counsel filed two supplemental affirmations and memoranda of law (Docket ##30, 33) in which he essentially reargues the claims raised in the initial habeas petition which, although previously addressed in the Court's August 12, 2003 decision, will be again addressed here. He also raises a new claim that Johnson's adjudication and sentence as a persistent felony offender violates the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. Respondent has submitted two memoranda of law in opposition to Johnson's pleadings. The matter is now fully briefed and ready for decision. For the reasons set forth below, the petition is denied.
In order to determine whether a petitioner is entitled to a grant of a writ of habeas corpus, a federal court must apply the standards of review set forth 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. AEDPA, provides, in relevant part, that
(d) [a]n 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 court proceedings unless the adjudication of the claim-(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2554(d)(1), (2). "[C]learly established Federal law" is comprised of "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions[.]'" Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000) (O'Connor, J., for the court)). A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. The "unreasonable application" prong comes into play where the state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. Simply because a federal habeas court "'concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly'" does not provide a basis for granting the writ. Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411)). Rather, the state court's application must also be "unreasonable." The Second Circuit has added the caveat that while "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions 'so far off the mark as to suggest judicial incompetence.'" Gilchrist, 260 F.3d at 93 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (in turn quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir.1999)).
1. Ineffective Assistance of Trial Counsel
In order to prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), a habeas petitioner must satisfy a two-part test. First, a petitioner must demonstrate that counsel's performance was so deficient that counsel was not functioning as "counsel" within the meaning of the Sixth Amendment to the Constitution. Id. at 688. In other words, a petitioner must show that his attorney's performance "fell below an objective standard of reasonableness." Id. Second, a petitioner must show that counsel's deficient performance prejudiced him. Id. at 694. To establish the "prejudice" prong of the Strickland test, a petitioner must show that a "reasonable probability" exists that, but for counsel's error, the outcome of the trial would have been different. Id. at 694. The issue of prejudice need not be addressed, however, if a petitioner is unable to demonstrate first that his counsel's performance was inadequate. "[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
b. Alleged Grounds of Ineffectiveness
i. Failure to Request Competency Hearing
Johnson contends that trial counsel, "instead of obtaining the services of a psychiatrist or psychologist or making a formal motion for a court-ordered examination, . . . relied, and allowed the lower court to rely upon the informal report of a nurse practitioner of unknown training or qualifications employed by a court-affiliated agency." Petitioner's First Affirmation and Memorandum of Law in Support of Writ of Habeas Corpus ("Pet'r Mem. 1") at 4 (Docket #30). Apparently, this nurse practitioner opined in her report that, based on an interview with Johnson conducted by her and a physician, Johnson was competent to proceed. Id. Johnson points to New York Criminal Procedure Law ("C.P.L.") 730.30, which "outlines in detail a rigorous procedure for determining competence" and argues that the "informal procedure acceded to by trial counsel and sanctioned by the lower ...