The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Gary Williams filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, 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 stated below, petitioner's application for a writ of habeas corpus is denied.
Following a jury trial in New York Supreme Court, Queens County (Buchter, J.), petitioner was convicted of sodomy in the first degree, N.Y. Penal Law § 130.50, one count of incest, N.Y. Penal Law § 255.25, and one count of menacing in the second degree, N.Y. Penal Law § 120.14. Following his adjudication as a mandatory persistent violent felony offender, pursuant to N.Y. Penal Law § 70.08, petitioner was sentenced to concurrent indeterminate prison terms of twenty-five years to life for the sodomy conviction and two to four years for the incest conviction, and to a concurrent, one year definite prison term for the menacing conviction.
On direct appeal to the Appellate Division, Second Department, petitioner raised two claims:
(1) the prosecutor engaged in repeated misconduct during summation; and (2) the trial court improperly instructed the jury with regard to the definition of reasonable doubt in a supplemental charge, because, in response to a note from the jury, the trial court instructed the jury that "the doubt of guilt is not reasonable if inferred of being based on the nature and quality of the evidence or the insufficiency of the evidence, it is based on some guess or whim or speculation unrelated to the evidence in this case." Tr. 487 (emphasis added).
On February 14, 2003, after petitioner filed his direct appeal, the People filed a motion before the trial court to resettle the record regarding the portion of the jury instructions challenged by petitioner on appeal. The People argued that, because of a stenographic error, the trial transcript, as relied on by petitioner in his appeal, was inaccurate and that the word "instead" should be substituted for the word "inferred." On April 29, 2003, the trial court granted the People's motion to resettle the record by substituting "instead" for "inferred." People v. Williams, No. 1336/00, slip op. at 2 (N.Y. Sup. Ct. Apr. 29, 2003)(Buchter, J.). Petitioner filed a notice of appeal, challenging the trial court's decision to resettle the record. In his reply brief, petitioner supplemented his second claim by arguing that the trial court erred by resettling the record without first conducting a hearing.
By order dated December 8, 2003, the Appellate Division affirmed petitioner's conviction. The Appellate Division held that petitioner's prosecutorial misconduct claim was "for the most part, unpreserved for appellate review" and, in any event, without merit because "the prosecutor's comments either were fair comment on the evidence, permissive rhetorical comment, responsive to the defense counsel's summation, or not so prejudicial as to constitute reversible error." People v. Williams, 2 A.D.3d 546 (2d Dep't 2003)(citations omitted).The Appellate Division further held that "the trial transcript has since been properly resettled to reflect that the challenged portions of the charge represented transcription errors." Id. (citations omitted). Finally, the Appellate Division held that petitioner's argument that the trial court erred by resettling the record without first conducting a hearing was without merit. Id. Petitioner's application for leave to appeal to the New York Court of Appeals was denied on February 26, 2004. People v. Williams, 1 N.Y.3d 636 (2004).
On May 10, 2005, petitioner filed an application for a writ of habeas corpus. The petition states the same grounds petitioner raised on direct appeal: (1) the prosecutor engaged in repeated misconduct during summation; and (2) the trial court improperly instructed the jury on the definition of reasonable doubt. In a letter dated September 28, 2005, petitioner requested that the court hold his petition in abeyance pending state court proceedings with respect to issues not raised in his original petition, or in the alternative, dismiss the petition without prejudice. Specifically, petitioner stated that he had filed a post-conviction motion, pursuant to N.Y. Crim. Proc. Law § 440.10, to vacate the judgment on the ground that he received the ineffective assistance of trial counsel. On December 21, 2005, the trial court denied petitioner's motion, stating that petitioner's claims were procedurally barred from review and, in any event, without merit because petitioner had received the effective assistance of counsel. People v. Williams, No. 1336/00, slip op. at 1-2 (N.Y. Sup. Ct. Dec. 21, 2005)(Buchter, J.). By order dated April 14, 2006, this court, in accordance with Rhines v. Weber, 544 U.S. 269, 277 (2005), denied petitioner's application for a stay without prejudice to re-filing his request by June 12, 2006, together with a showing: (1) of good cause for failure to exhaust his ineffective assistance of counsel claim; and (2) that the new claim is not plainly meritless.
In response to the court's order, petitioner submitted an undated letter, which was postmarked on June 6, 2006. Petitioner stated that he is a "dysfunctional illiterate" and asked someone to file the petition on his behalf, but that individual failed to include the claim that petitioner's conviction was against the weight of the evidence. Petitioner made no specific mention of his previously asserted ineffective assistance of trial counsel claim, but rather advised the court that he had just recently filed an application for a writ of error coram nobis in the Appellate Division, Second Department, claiming ineffective assistance of appellate counsel based on appellate counsel's failure to argue that petitioner's conviction was against the weight of the evidence. The Appellate Division denied petitioner's application, stating that petitioner has "failed to establish that he was denied the effective assistance of appellate counsel." People v. Williams, 31 A.D.3d 798 (2d Dep't 2006). On October 30, 2006, petitioner was denied leave to appeal to the New York Court of Appeals. People v. Williams, ---N.Y.3d --- (2006). By letter dated November 2, 2006, petitioner advised the court that his ineffective assistance of appellate counsel claim was exhausted and requested that the court permit him to amend his petition to assert this new claim. In light of petitioner's previously asserted interest in pursuing an ineffective assistance of trial counsel claim, the court will assume he seeks leave to amend to add that claim as well.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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(d). Determinations of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Under the "contrary to" clause, "a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412--13 (2000)(O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; see Carey v. Musladin, --- U.S. --- (2006)(noting that in the absence of applicable Supreme Court holdings, "it cannot be said that a state court unreasonably applied clearly established Federal law.") Under this standard, "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." Id. at 411. In order to grant the writ, there ...