The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Thomas King applies to this court under 28 U.S.C. § 2254 for a writ of habeas corpus, alleging that he is being held in custody in violation of the Constitution and laws of the United States pursuant to the judgment of a court of the State of New York. For the reasons set forth below, petitioner's application is denied.
Following a jury trial in New York Supreme Court, Kings County (George, J.), petitioner was convicted of one count of attempted murder in the second degree, N.Y. Penal Law §§ 110.00/125.25, in connection with the shooting of Walter Vanison. He was sentenced on December 18, 1998 to a prison term of twenty-five years to life.
On direct appeal to the Appellate Division, Second Department, petitioner raised four claims:
(1) the prosecution's late disclosure of tapes containing 911 calls violated the Rosario rule, as well as due process; (2) the trial court's refusal to admit one of the 911 calls into evidence violated the petitioner's right to present a defense; (3) petitioner's conviction was barred by New York's speedy trial law; and (4) the trial court's refusal to conduct a hearing concerning whether a detective took notes during a witness interview denied defendant a fair trial. By order dated October 21, 2002, the Appellate Division affirmed petitioner's conviction. People v. King, 298 A.D.2d 530 (2d Dep't 2002). With respect to the late disclosure of the 911 tapes, the court held that, since the evidence "was turned over prior to the applicable testimony and the defense counsel was afforded the opportunity to review the material and cross-examine the witness regarding the telephone call, . . . its untimely disclosure did not so substantially prejudice the defendant as to require a new trial." Id. at 531. The court found petitioner's remaining claims to be "without merit." Id. Petitioner's application for leave to appeal to the New York Court of Appeals was denied on April 17, 2003.
Petitioner filed a petition, dated July 17, 2003, for a writ of habeas corpus from this court. In it, he asserts the same claims that were asserted on direct appeal, except for the speedy trial claim, which is omitted.*fn1
Subsequently, on September 23, 2003, petitioner filed a motion in the Appellate Division for a writ of error coram nobis, claiming ineffective assistance of appellate counsel. Petitioner argued that his appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel based on trial counsel's failure to listen to the 911 tapes before cross-examining a prosecution witness. The motion was denied by the Appellate Division on February 9, 2004, and leave to appeal to the Court of Appeals was denied on June 23, 2004. On October 2, 2003, petitioner moved to vacate his conviction pursuant to N.Y. C.P.L. § 440.10, claiming ineffective assistance of trial counsel and prosecutorial misconduct. The motion was denied by order of the New York Supreme Court, Kings County (Silverman, J.) on January 21, 2004. The court held that both claims were statutorily barred.*fn2 It also noted that the claim of ineffective assistance of trial counsel was meritless. Petitioner was denied leave to appeal the denial of his Section 440 motion.
On the same day that petitioner filed the motion for a writ of error coram nobis, he wrote a letter to this court requesting that his habeas corpus petition be held in abeyance pending the outcome of the State court proceeding. That request was granted by order dated October 1, 2003. Following the denial of petitioner's motion for a writ of error coram nobis, petitioner made an application to this court, dated September 28, 2004, to reopen this case and for leave to amend his petition to add claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel. Such leave was granted by order dated October 20, 2004.
Taken in the light most favorable to the prosecution, the evidence at trial established the following facts: On November 1, 1995, at approximately 5:30 PM, Walter Vanison was shot twice in the face and twice in the back on the sidewalk in front of 19 Quincy Street in Brooklyn, New York. He had been walking with the petitioner, Thomas King, who was a friend of Mr. Vanison's sister, Charlotte Caldwell. Jacqueline Lonan witnessed the shooting from the window of her apartment, located on the fourth floor of 3 Quincy Street, and called 911. Ms. Lonan could not identify the shooter, but testified that she saw two men walking together, one tall and one short, and that the short man pulled out a gun and shot the tall man several times.
At the time of the shooting, business partners Carl Abbot and Shalom Neuman were working on a project at Neuman's studio, located at 25 Quincy Street. After hearing the gunshots, they went outside to investigate. Mr. Abbot approached Mr. Vanison, who was conscious, and began to talk to him. Mr. Vanison became agitated and declared: "I'm dead. I'm dead." When Mr. Abbot asked who shot him, Mr. Vanison replied, "King did it." In the meantime, Mr. Neuman called 911. Mr. Vanison also reported to police officers and emergency medical personnel, when they arrived at the scene, that petitioner was the shooter.
Before the Grand Jury, petitioner admitted to being with Mr. Vanison at the time of the shooting, but claimed that a third man approached them with a gun and shot Mr. Vanison. He also admitted to fleeing the scene and hiding from police after learning from Ms. Caldwell that Mr. Vanison had identified him as the shooter. The prosecution read a redacted version of petitioner's Grand Jury testimony into the record at trial.
As a result of the gunshot wounds, Mr. Vanison was immediately paralyzed and blinded in one eye. He died approximately one year later from complications caused by the gunshot wounds.
Petitioner's Request for the 911 Tapes
Prior to the trial, the defense requested that the prosecution turn over copies of any recordings of telephone calls to 911 concerning the shooting of Mr. Vanison, and provided a blank tape to the prosecution for that purpose. The prosecution did not turn over any recordings but did turn over transcripts of the relevant 911 calls, known as "sprint reports." On the first day of testimony, however, the prosecution admitted that it had the actual recordings in its possession. The following morning, the prosecution turned over two tapes containing 911 calls. One of these contained the call made by ...