The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Pro se petitioner Larry Johnson ("Johnson") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. Johnson was convicted in a judgment rendered on May 11, 1999, following a jury trial, in County Court, Suffolk County, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. He was sentenced to an indeterminate term of 10 to 20 years' imprisonment.
Johnson challenges his conviction on the following grounds: (1) he was denied a fair trial when the court allowed testimony from law enforcement officers about the procedures of buy/bust operations and the modus operandi of drug sellers; (2) he was denied effective assistance of appellate counsel because, among other things, his appellate counsel failed to argue an alleged violation of the trial court's pre-trial ruling and failed to adequately argue his agency defense. For the reasons set forth below, the petition is denied.
The following is a summary of the facts adduced at Johnson's trial. On November 6, 1998, Detective Vincent Alese, who was an undercover officer (hereinafter "UC") with the Suffolk County Police Street Enforcement Unit, was posing as a drug purchaser for a buy/bust operation in the area of Bay Shore, Suffolk County. (Tr. 40, 46.)*fn1 Alese was working alone and had a tape recorder, two-way transmitter, and a oneway transmitter hidden in his car. (Tr. 46, 48, 63, 103.) Alese drove around the area and had conversations with three or four people before pulling over and parking on Brook Avenue and North First Street at about 10 p.m. (Tr. 48, 51, 85.) Johnson, who was walking on the street, nodded to Alese and approached the vehicle. (Tr. 52.) Alese asked Johnson if Tina was out. (Tr. 105.) Alese chose that name because he knew that Tina had been picked up in that area as a drug peddler the prior week and was unavailable that night. (Tr. 88-89.) After Alese asked Johnson if he was working, Johnson inquired as to what Alese needed. (Tr. 52, 92.) Alese asked for "One 20." (Tr. 52.) Johnson told Alese to shut off his vehicle and Johnson then walked away to an area out of Alese's view. (Tr. 51-52.)
Shortly thereafter, Johnson returned and got into Alese's vehicle. (Tr. 53.) Johnson then directed Alese to drive to Union Boulevard where they parked. (Tr. 53-54.) After parking, Johnson asked Alese for the $20 up front. (Tr. 54.) Alese provided the money, but asked for something with Johnson's name on it as collateral in return. (Tr. 54-55.) In response to that request, Johnson handed Alese property receipts that contained both Johnson's name and signature, which Johnson had received from the Suffolk County Jail in connection with a prior arrest and incarceration. (Ex. 2; Tr. 54-59.) Johnson then exited the vehicle and walked out of Alese's sight. (Tr. 60, 93-94.) Johnson returned a short time later and told Alese that he had to go to Silky's because Petey did not have anything. (Tr. 60, 95.) Again, at Johnson's instructions, they drove to the parking lot of Nippy's Nursery at Union Boulevard and Lakeview. (Tr. 60-61.) Johnson then entered a house on Lakeview, in which Alese observed that there were at least two people. (Tr. 61-62, 95-96.) While he waited for Johnson to return, Alese directed the backup team on the one-way transmitter as to how they would arrest Johnson. (Tr. 75, 98.) Johnson subsequently exited the house and returned to Alese's car. (Tr. 62.) Johnson then handed Alese crack cocaine and Alese returned Johnson's collateral. (Tr. 60-62, 75.) Johnson told Alese that he did not chip any crack cocaine off for himself. (Tr. 63, 96.)
Although Alese led Johnson to believe he was taking him back to their meeting point, Alese headed to a pre-arranged location on Pennataquit Avenue, where the backup planned to pull the car over. When the backup team attempted to pull the car over, Johnson wanted Alese to get rid of the crack. Alese then palmed the package and told Johnson that he had swallowed the crack. When Alese and Johnson exited the vehicle, the backup team falsely stated that they saw cocaine on the front seat and arrested Alese and Johnson. (Tr. 77, 99-100, 115-17.)
In addition to Alese, two members of the arrest team - Sergeant William Bundrick and Detective Michael O'Conner - testified about the arrest. Bundrick testified that, after Alese gave the arrest signal, Bundrick arranged for the takedown. When he arrived at the arrest scene, he saw Johnson in the front passenger seat of Alese's vehicle. (Tr. 137-39.) O'Conner testified that, after he pulled over Alese's vehicle on Pennataquit, he opened the passenger door of Alese's vehicle, identified himself to the passenger, asked that they step out of the car, and then arrested the passenger. O'Connor identified Johnson as the passenger. (Tr. 141-45.) The tape-recording of the undercover transaction between Alese and Johnson also was admitted into evidence. (Tr. 64-78; Ex. 3 and 4.)
Johnson was charged with one count of criminal sale of a controlled substance in the third degree (N.Y. PENAL LAW § 220.39) and one count of criminal possession of a controlled substance in the third degree (N.Y. PENAL LAW § 220.16). After a jury trial, Johnson was found guilty as charged on both counts, which are class "B" felonies. On May 11, 1999, Johnson was sentenced, as a prior felony offender, to two concurrent indeterminate terms of ten to twenty years' imprisonment.
On February 22, 2000, Johnson brought a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") section 440.10 on the following grounds: (1) the evidence before the grand jury was insufficient; (2) the evidence before the trial court was insufficient; (3) the trial court erred in admitting testimony concerning Johnson's prior convictions; (4) the trial court erred in allowing, as background evidence, testimony concerning the modus operandi of street level narcotics dealers; and (5) prosecutorial misconduct occurred when the prosecutor used testimony that was known to be false. That application was denied on August 31, 2000.
By Order of the New York Supreme Court, Appellate Division, Second Department ("Second Department"), counsel was assigned in forma pauperis to pursue an appeal. On appeal, Johnson's counsel raised the following claims: (1) the trial court deprived the appellant of a fair trial by improperly permitting the introduction of background testimony regarding "buy and bust" operations, including statistical evidence, to prove Johnson's criminal conduct in the instant case; (2) Johnson's sentence was harsh and excessive; (3) the trial court deprived Johnson of a fair trial by improperly allowing the introduction of evidence showing that Johnson had been incarcerated just prior to his arrest on the charged offense; and (4) the prosecution failed to disprove beyond a reasonable doubt that Johnson was acting as an agent for the police officer who had purchased the controlled substance.
On December 30, 2002, the Second Department unanimously affirmed his conviction. People v. Johnson, 753 N.Y.S.2d 91 (App. Div. 2002). On March 14, 2003, the New York Court of Appeals denied Johnson's application for leave to appeal. People v. Johnson, 99 N.Y.2d 629 (2003). On June 30, 2003, the Court of Appeals rejected Johnson's motion for reconsideration of the denial of leave to appeal. People v. Johnson, 100 N.Y.2d 562 (2003).
On November 10, 2003, Johnson also challenged the effectiveness of his appellate counsel in an application for a writ of error coram nobis. On February 23, 2004, the Second Department unanimously denied that application. People v. Johnson, 771 N.Y.S.2d 712 (App. Div. 2004). On May 19, 2004, the New York Court of Appeals denied ...