The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Christopher Newton ("Newton"), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking review of his conviction in New York State Supreme Court (Monroe County) on charges of first degree robbery, first degree burglary, and second degree reckless endangerment. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
II. Factual Background and Procedural History
The conviction here at issue stems from two incidents which occurred ten days apart in the summer of 1999 in the City of Rochester and which involved the same victim--Newton's half-brother, Nekia Newton ("Nekia").*fn1 During the first incident on July 30, 1999, Newton confronted Nekia on Bowman Street while Nekia was a passenger in a car driven by Nekia's friend, Yolanda Hopkins ("Hopkins"). T.229-32.*fn2 As soon as Nekia noticed Newton's car coming from the opposite direction, he advised Hopkins to turn her vehicle around, which she did. T.232. Newton drove past Hopkins's car and, once he was directly in front of her, stopped suddenly, forcing Hopkins to do so as well. Newton and Nekia exited their respective vehicles, and Newton rushed Nekia. A brief struggle ensued in which Newton stabbed Nekia in the right lung with a knife. T.268-69. Newton returned to his car and drove forward for a short distance; he then put his car in reverse and drove backwards at a high rate of speed, striking Hopkins's vehicle and forcing Nekia to jump on the hood to avoid being hit. T.278.
The second incident, which occurred during the late night of August 8 or the early morning of August 9, 1999, was a home invasion staged by Newton and two other men. Newton and his cohorts forced their way into Nekia's house at gunpoint. T.195-96, 215, 297. One of the men brandished a gun at Rainell Burns ("Burns"), Nekia's girlfriend, told her to "Shut the fuck up," and forced her to lie on a bed in the downstairs bedroom. Meanwhile, Newton and the other perpetrator held Nekia at gunpoint in the living room and demanded money from him. T.196-97, 200, 299, 304.
Although each of the intruders wore a mask or a hooded jacket to conceal their identities, Burns was able to identify Newton based on her familiarity with his voice (she had known him for two years and had heard him speak approximately twenty times); recognition of his face (a portion of his face was visible despite his efforts at concealment); the fact that he called Nekia by his nickname, "Nicky;" and the fact that she heard Nekia refer to him as "Chris." T.198, 216-17. Although he appeared reluctant to implicate his half-brother at trial, Nekia testified that he recognized one of the intruders' voices as belonging to Newton. T.298.
At gunpoint, Newton stole a $411 blank money order and about $7 dollars in cash from Nekia's briefcase, as well as a gold chain from around Nekia's neck. T.279-80. As he was leaving, Newton announced, "You think I'm playing," and then fired a gun several times into the floor. T.200-02, 305. Newton and his two cohorts then fled.
Newton testified in his own behalf at trial. He admitted that, with respect to the July 30th incident, he had been in a fight with Nekia, but he denied having stabbed him. Newton further claimed that he accidentally backed his car into the one driven by Hopkins. With respect to the home invasion, Newton testified that he was at his sister's house during the time the incident occurred.
With respect to the July 30th incident involving the alleged stabbing and the backing-up of the car, the jury returned a verdict acquitting Newton of second degree assault(N.Y. Penal Law § 120.05(2)) and convicting him of second degree reckless endangerment (N.Y. Penal Law § 120.20). With regard to the home invasion, the jury convicted Newton as charged of three counts of first degree robbery (N.Y. Penal Law § 160.15(2)-(4)) and one count of first degree burglary (N.Y. Penal Law § 140.30(1)). Newton was sentenced to concurrent terms of imprisonment, the longest of which was twelve and one-half years.
On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction. People v. Newton, 298 A.D.2d 896, 748 N.Y.S.2d 93 (App. Div. 4th Dept. 2002). The New York Court of Appeals denied leave to appeal. People v. Newton, 99 N.Y.2d 562, 784 N.E.2d 87, 754 N.Y.S.2d 214 (N.Y. 2002). Newton collaterally attacked his conviction by means of a motion to vacate pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 and an application for a writ of error coram nobis. Both of these motions were denied.
Newton filed his original habeas petition in this Court on May 7, 2004 (Docket #1). He filed a proposed amended petition on April 11, 2006 (Docket ## 20-1, 20-2). The Court ordered that the original petition and the proposed amended petition be docketed as the amended petition. Based on the allegations in these docket items, it appears Newton has raised the following claims for relief: (1) trial counsel was ineffective in (a) failing to object to the cross-examination of petitioner concerning the circumstances of his arrest, (b) being "unprepared to face a request for a missing witness charge after petitioner testified that he had an alibi," (c) failing to request a jury instruction on the alibi defense, (d) failing to investigate petitioner's alibi witnesses, (e) failing to request a jury instruction on identification, (f) failing to object to the missing witness charge, (g) failing to "adequately cross-examine petitioner's brother," (h) failing to object when the "court erred by failing to require the jury to find that petitioner possessed a revolver as an element of the third, fourth, fifth, and sixth counts of the indictment," and (i) failing to move for a trial order of dismissal on the third, fourth, fifth, and sixth counts of the indictment on the ground that the evidence did not establish that petitioner was armed with, used, or displayed, what appeared to be a revolver; (2) appellate counsel was ineffective in (a) failing to argue that trial counsel was ineffective in failing to "object or request additional instruction when the trial court erred when it failed to marshal the evidence evenhandedly" and (b) failing to argue that trial counsel was ineffective in failing to request a jury instruction on identification; (3) the prosecutor knew or should have known that one of the victims, Nekia Newton, perjured himself at trial; (4) newly discovered evidence, in the form of a recantation by Nekia Newton, warrants overturning petitioner's conviction. The respondent answered the amended petition on June 12, 2006 (Docket ##26-1, 26-2). All of the grounds for relief raised herein appear to be exhausted and properly before this court. See 28 U.S.C. § 2254(b). For the reasons set forth below, the petition is denied.
To prevail under 28 U.S.C. § 2254, as amended in 1996 by the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
B. Merits of the Amended Petition
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 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 ...