The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Gabriel Wheeler petitions this court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction following trial of two counts of Robbery in the First Degree, Robbery in the Second Degree, Criminal Possession of a Weapon in the Second Degree, two counts of Criminal Possession of a Weapon in the Third Degree, and Criminal Possession of Stolen Property in the Fifth Degree. For the following reasons, the petition is denied.
The evidence at Wheeler's trial demonstrated the following facts. On June 9, 1999, at approximately 3:25 a.m., on 100th Street near the corner of Northern Boulevard, Wheeler and his co-defendant, Manny Davis, stopped Melvin Grant and Leonardo Blanco as they were walking to Blanco's car. (Trial Transcript (hereinafter "Tr.") at 730-33.) Wheeler and his co-defendant approached Grant and Blanco and asked them the time and where they could get a cab. (Id.) Wheeler ran in front of the men and brandished a gun in front of Blanco. (Id. at 733.) Co-defendant Davis ordered Grant to lie down on the ground as Davis went through each man's pockets. (Id. at 738-40.) Davis took the men's money, keys, wallet and gold chain. (Id.) Blanco was then ordered to lie down next to Grant, and Wheeler and Davis left the area. (Id. at 741-42.) Wheeler and Davis were stopped ten minutes later by the police when the cab they were in was being driven erratically. (Id. at 478-80.) The police recovered a plastic shopping bag from the back of the cab which contained a loaded, defaced chrome-plated handgun. The bag also contained Blanco's wallet and beeper, as well as Grant's beeper. (Id. at 482-84, 787-89.) Police also found Blanco's gold chain around Wheeler's neck. (Id.) Blanco and Grant arrived at the scene within fifteen minutes of the robbery, and they identified Davis and Wheeler as the men who had robbed them. (Id. at 773-74.)
B. Pre-trial and Trial Procedures
Wheeler was charged with four counts of Robbery in the First Degree, four counts of Robbery in the Second Degree, Criminal Possession of a Weapon in the Second Degree, two counts of Criminal Possession of a weapon in the Third Degree, and Criminal Possession of Stolen Property in the Fifth Degree. (Id. at 56-64.) The People presented Wheeler and his co-defendant with a joint plea bargain that offered them a sentence of ten years in exchange for pleading guilty. Because Wheeler's co-defendant refused to accept the plea, Wheeler was precluded from accepting the plea, and the case went to trial. After a jury trial, Wheeler was convicted of two counts of Robbery in the First Degree, Robbery in the Second Degree, Criminal Possession of a Weapon in the Second Degree, two counts of Criminal Possession of a Weapon in the Third Degree, and Criminal Possession of Stolen Property in the Fifth Degree. (Id. at 1195-97.)
At the time this crime was committed, Wheeler was on parole from a 1995 conviction for Robbery in the Second Degree. At sentencing, Wheeler was adjudicated a second violent felony offender according to New York Penal Law. (Sent. Tr. at 4-6.)*fn1 Wheeler was sentenced to concurrent terms of fifteen years for Robbery in the First Degree, fifteen years for Robbery in the Second Degree, twelve years for Criminal Possession of a Weapon in the Second Degree, three and one-half years for Criminal Possession of a Weapon in the Third Degree, and one year for Criminal Possession of Stolen Property. (Id. at 16-17.)
D. State Appeals/Post Judgment Motions
Wheeler appealed his conviction to the Appellate Division, Second Department. Wheeler claimed that: (1) he was denied the right to a jury of his choice when the trial court improperly discharged two sworn jurors; and (2) the court was vindictive when it sentenced Wheeler to fifteen years rather than ten years, which was offered by the People as part of a plea bargain. (See Petitioner's Appellate Division Brief ("Pet'r App. Brief"), Ex. A.) On May 19, 2003, the Appellate Division affirmed the conviction, finding that the trial court properly exercised its discretion in discharging two sworn jurors on the ground that they were unavailable for continued service, and that the court did not impose an enhanced sentence because Wheeler exercised his right to trial. People v. Wheeler, 767 N.Y.S.2d 638 (App. Div. 2003). On February 25, 2004, the New York Court of Appeals denied Wheeler permission to appeal further. See People v. Wheeler, 777 N.Y.S.2d 34 (2004).
On November 5, 2004, Wheeler moved pro se, pursuant to Criminal Procedure Law section 440, for an order vacating his sentence. In his motion, Wheeler claimed that: (1) the trial court violated the applicable sentencing statute that adjudicated him a second violent felony offender; (2) his sentence as a second violent felony offender violated Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) his attorney provided ineffective assistance when he advised Wheeler not to challenge his adjudication as a second violent felony offender. (See Wheeler's first motion to set aside sentence ("Pet'r initial 440"), Ex. F.)
On January 18, 2005, New York Supreme Court Justice Sheri S. Roman denied Wheeler's petition. Justice Roman noted that Wheeler's adjudication as a second violent felony offender was based upon a conviction for Robbery in the Second Degree for which he was sentenced to an indeterminate term of imprisonment of 4-12 years on May 16, 1995. The crime for which Wheeler now stands convicted occurred on June 9, 1999, well after his prior conviction. Thus, the court found that Wheeler did not show that he was improperly sentenced according to the state sentencing statute. (See Court's Order denying Wheeler's initial 440, Ex. H.) The court also noted that the issue of Wheeler's enhanced sentence was previously raised on his direct appeal, and the court found the claim to be without merit. (Id.) Regarding Wheeler's Apprendi claim, the court found that Apprendi is not applicable to New York's enhanced sentences for persistent felony offenders. (Id.) The court also concluded that Wheeler's counsel was not ineffective for not requesting a predicate felony hearing because Wheeler did not state any grounds upon which his prior conviction could have been challenged or show how any such challenge could have been successful. (Id.) On May 17, 2005, the Appellate Division, Second Department, denied Wheeler's application for leave to appeal the court's decision. (See Appellate Division's first order denying leave, Ex. I.)
On February 23, 2005, Wheeler filed a second pro se motion for an order vacating his sentence. In this motion, Wheeler contended that his prior undischarged sentence should run concurrent to his newly-imposed sentence. (See Pet'r second 440 Ex. J.) In a Memorandum dated April 20, 2005, Justice Roman denied Wheeler's second motion, noting that because Wheeler was adjudicated a second violent felony offender, he was sentenced under New York Penal Law section 70.25(2)(a), which mandates that such a defendant's newly-imposed sentence must run consecutively with a prior undischarged sentence. (See Court's Order denying Wheeler's second 440 Ex. L.) On July 14, 2005, the Appellate Division, Second Department, denied Wheeler's application for leave to appeal the court's decision to the New York Court of Appeals. (See Appellate Division's second order denying leave, Ex. M.)
On April 12, 2006, Wheeler filed a pro se petition with this Court for a writ of habeas corpus, raising the six claims that were submitted to the state courts and described above. The motion to proceed in forma pauperis was granted on October 11, 2005. On March 23, 2006, the case was re-assigned to the undersigned from the Honorable Nicholas G. Garaufis. Oral argument was held regarding the instant petition on July 20, 2006.
To determine whether or not a Wheeler is entitled to a grant of 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 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. § 2254. "Clearly established Federal law" is comprised of "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision." Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).
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; see also Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006). A decision is an "unreasonable application" of clearly established federal law if a 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; see also Earley, 451 F.3d at 74.
AEDPA establishes a deferential standard of review- "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 250 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). The Second Circuit has noted that although "[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)); accord Earley, 451 F.3d at 74.
When reviewing a habeas petition, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241; see also Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam); Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 277 (2d Cir. 2003). Federal habeas corpus relief does not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); DiGuglielmo v. Smith, 366 F.3d 130, 136-37 (2d Cir. 2004); Lydon v. Kuhlman, 62 F. Supp. 2d 974, 977-78 (E.D.N.Y. 1999).
III. EXHAUSTION OF CLAIMS
A state prisoner seeking federal habeas review of his conviction must ordinarily first exhaust available state remedies. Daye v. Attorney General, 696 F.2d 186, 190-91 (2d Cir. 1982); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Nelson v. George, 399 U.S. 224, 229 (1970). The exhaustion doctrine requires a prisoner seeking habeas corpus to have given state courts a fair opportunity to pass upon his federal claim(s). Daye, 696 F.2d at 190; see also Picard, 404 U.S. at 275. Exhaustion of state remedies requires that a petitioner have presented his claim, setting forth the same factual and legal premises presented in his federal petition, to the highest state court from which a decision can be had. Daye, 696 F.2d at 191 (citing Developments in the Law-Federal Habeas Corpus, 83 HARV. L. REV. 1038, 1096 (1970)); see also Grey v. Hoke, 933 F.2d 117, 119-20 (2d Cir. 1991).
"A habeas petitioner's federal constitutional claims may be considered exhausted when the claims were `fairly' - though not explicitly - presented to the state courts." Holland v. Scully, 797 F.2d 57, 64 (2d Cir. 1986) (citing Daye, 696 F.2d at 191); see also Picard, 404 U.S. at 275; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000) (holding that petitioner's claim that "the evidence was insufficient" was sufficient to exhaust his claims); Bennet v. Artuz, 285 F. Supp. 2d 305, 311 (E.D.N.Y. 2003). The constitutional claim made in federal court "need not be identical with the one advanced to the state court, but it must be its `substantial equivalent.'" Fielding v. LeFevre, 548 F.2d 1102, 1107 (2d Cir. 1977) (quoting Picard, 404 U.S. at 275, 277).
A habeas petition which contains both exhausted and unexhausted claims is known as a "mixed petition." When a petitioner submits a mixed petition to the court, the court may dismiss petitioner's unexhausted claim(s), stay consideration of the exhausted claim(s), and allow petitioner an opportunity to amend the petition after he returns to state court to satisfy the exhaustion requirement. See Zarvela v. Artuz, 254 F.3d 374, 379-82 (2d Cir. 2001); see also Rhines v. Walker, 544 U.S. 269, 275-88 (2005). However, the stay and abeyance procedure is only appropriate when the district court determines that there was good cause for the petitioner's failure to exhaust his claims first in state court. Rhines, 544 U.S. at 275-88. Even when such good cause exists for failure to present a state claim, it is an abuse of discretion for a district court to stay a petition containing unexhausted claims that are plainly meritless. See id.; see also Bryant v. Grenier, No. 02 Civ. 6121 (RMB) (RLE), 2005 U.S. Dist. LEXIS 28105, at *4-5 (S.D.N.Y. Nov. 15, 2005); cf. 28 U.S.C. § 2254(b)(2). The respondent correctly notes that, in lieu of the "stay and abeyance" procedure, the court may dispose of unexhausted claims on the merits, or may deny a mixed petition in its entirety. See 28 U.S.C. § 2254(b)(2).
The law is unsettled in the Second Circuit regarding the proper response to habeas petitions containing unexhausted claims. A majority of district courts in the Second Circuit dismiss unexhausted claims that are "patently frivolous." McFadden v. Senkowski, 421 F. Supp. 2d 619, 621 (W.D.N.Y. 2006); see, e.g., Naranjo v. Filion, No. 02 Civ. 5449, 2003 WL 1900867, at *8 (S.D.N.Y. Apr. 16, 2003) (footnote omitted) (citing Hammock v. Walker, 224 F. Supp. 2d 544, 549 (W.D.N.Y. 2002); Cruz v. Artuz, No. 97-CV-2508 (FB), 2002 U.S. Dist. LEXIS 11150, at *25-26 (E.D.N.Y. June 24, 2002)).*fn2 Other federal district courts in the Second Circuit will dismiss an unexhausted claim if it does not ...