The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Petitioner commenced this action pro se pursuant to 28 U.S.C. § 2254 alleging Respondent is holding him in custody in violation of his federal Constitutional rights. Petitioner claims that: (1) his Constitutional right to a fair trial was impeded when the trial court judge held an ex parte meeting with Petitioner's expert witness and influenced her to not testify; (2) his right to a fair trial was denied when the prosecution withheld exculpatory material in violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) the court should have sua sponte held a competency exam; (4) the court violated his due process rights when the blood alcohol test he allegedly was coerced into taking was admitted into evidence; and (5) his Sixth Amendment right to counsel was violated when the trial court relieved his three court-appointed attorneys.
On October 7, 2002, after being observed crossing traffic lines, Petitioner was pulled over on the suspicion that he was driving while intoxicated. A field sobriety test was administered, consisting of the horizontal gaze nystagmus test and the walk-and-turn test, both of which Petitioner failed. The arresting officer also testified at trial that Petitioner "appeared" intoxicated, that he could smell alcohol on the Petitioner and there was alcohol in the vehicle. Petitioner was arrested and read his Miranda rights, Miranda v. Arizona, 384 U.S. 436 (1996), after which he admitted to drinking "two beers" that evening. Petitioner then began to belch for 15-20 minutes which prevented the police from administering a chemical breathalyzer test due to the belching bringing residual alcohol into his mouth. As a result, Petitioner was transported to Albany Medical Center for a blood sample to test his blood/alcohol content. Petitioner claims he was coerced into consenting to the blood sample. Petitioner's signature appears on the blood sample consent form with the words "no court order" and "told I must take field test" in his handwriting.
On August 11, 2003, Petitioner was convicted by a jury of two counts of Driving While Intoxicated in violation of N.Y. Veh. & Traf. Law §§1192 (2) and (3). Upon appeal, the Appellate Division, Third Department, reversed Petitioner's conviction of Driving While Intoxicated in violation of N.Y.Veh & Traf. Law §1192(2) and affirmed Petitioner's conviction of a violation of N.Y.Veh. & Traf. Law §1192 (3).People v. Grune,12 A.D.3d 944 (3d Dept. 2004). The § 1192(2) count was reversed due to a finding that the evidence of blood alcohol content (BAC) was admitted without proper foundation. The other count was affirmed based on the results of the field sobriety tests, Petitioner's admissions, and a finding that there was no significant probability of acquittal had the BAC been excluded. Grune,12 A.D.3d at 946.
Petitioner claims his right to a fair trial was violated when New York State Supreme Court Judge Teresi had an ex parte communication with Petitioner's expert witness, Sister Phyllis Herbert (Herbert). Herbert is the director of the Albany Honor Court, a program of the State Division of Probation and Correctional Alternatives. She had worked with Judge Teresi for several years. Petitioner's counsel, Randall Kehoe (Kehoe), advised Judge Teresi that he intended to call Herbert as a witness. During a lunch recess, Herbert went to Judge Teresi's chambers to discuss another case pending before him. No one else was present during this meeting. Herbert told Judge Teresi that she would be testifying that afternoon. Even though Kehoe had informed Judge Teresi that Herbert would be called as a witness, Judge Teresi acted surprised and stated he was unaware Herbert "did that" and thought she normally remained "neutral". Herbert told Judge Teresi she was asked to testify about Petitioner's blood/alcohol content. Judge Teresi did not interrupt her or indicate to her that they should not discuss her intended testimony. After speaking with Judge Teresi, Herbert decided she would no longer testify for Petitioner. Herbert told Kehoe that she had met with Judge Teresi and was concerned that if she were to testify it might affect her neutrality in Albany Honor Court matters.
When the trial resumed, Kehoe stated on the record that Herbert had abruptly withdrawn and requested a continuance to locate another expert witness. Kehoe's request was denied. Judge Teresi did not at any time, on or off the record, disclose to anyone his ex parte communications with Herbert. Judge Teresi was later censured for the ex parte communications with Herbert. (N.Y. Comm'n. on Judicial Conduct Determination.)
A federal court considering a habeas petition challenging a state court judgment is governed by 28 U.S.C. § 2254, as amended in 1996 by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). A writ of habeas corpus will not be granted unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court; or 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. §§2254(d)(1) and (2). A state court adjudication is "contrary to clearly established federal law only 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." Rodriguez v. Miller, 439 F.3d 68, 73 (2d Cir. 2006) (alterations in original). In addition, under the unreasonable application clause of the AEDPA, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case."Id.
A federal claim will not be procedurally defaulted "unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255 (1989)). "When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). "When there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst, 501 U.S. at 803.
With these standards in mind, the Court will address the Petition for a Writ of Habeas Corpus.