The opinion of the court was delivered by: Lawrence E. Kahn District Judge
MEMORANDUM-DECISION AND ORDER
A. State Court Proceedings
During the early morning hours of September 27, 1998, Amy Baker ("Baker") and her brother, Petitioner Clyde R. Thomas, Jr. ("Thomas" or "petitioner"), were at a local tavern in Ogdensburg, New York. See Transcript of Trial of Clyde R. Thomas, Jr. (8/10/99) ("Trial Tr.") at 61-63. At approximately 1:00 a.m., Thomas and other members of Baker's family who were at Nig's Tavern became embroiled in an argument with Baker because she was attempting to leave that bar with Brett Corkins ("Corkins"). Trial Tr. at pp. 64-67. When Corkins and Baker left the establishment together, Thomas pursued the two and eventually hit Corkins with a baseball bat.*fn2 Later on that same night, Christopher McDonald ("McDonald") punched an acquaintance, Heidi Badlam, while the two were at Nig's Tavern. Trial Tr. at pp. 320, 449. The two began exchanging blows, Trial Tr. at p. 321, and soon thereafter, Thomas approached McDonald and struck him in his head with a bat. Trial Tr. at pp. 252-53, 306-07, 321-22, 449.
As a result of the foregoing, on November 9, 1998 a St. Lawrence County grand jury indicted Thomas, in two separate indictments, charging him with the crimes of second degree assault. See Appellant's Appendix on Appeal ("App.") at pp. A2-3. St. Lawrence County
Court Judge Eugene L. Nicandri subsequently granted the prosecutor's motion to consolidate the two indictments, see App. at p. A11, and beginning on August 10, 1999, Thomas was tried before a jury on those charges in St. Lawrence County Court with Judge Nicandri presiding. The jury ultimately convicted Thomas of two counts of second degree assault, Trial Tr. at p. 482, and on September 7, 1999, Thomas was sentenced by the County Court to consecutive terms of six and one-half years imprisonment on each of his two convictions. Sentencing Tr. at pp. 14-15.
Thomas thereafter filed an appeal regarding his convictions and sentences with the New York State Supreme Court, Appellate Division, Third Department. On July 20, 2000, the Third Department affirmed Thomas' conviction relating to the assault on McDonald. People v. Thomas, 274 A.D.2d 761, 762-63 (N.Y. App. Div., 3d Dept. 2000). However, the Third Department concluded that there was insufficient evidence adduced at trial to establish Thomas' guilt for the second degree assault charge as to Corkins, and therefore reduced Thomas' conviction relating to Corkins to attempted second degree assault. Thomas, 274 A.D.2d at 761-62. As a consequence, the Third Department remitted the matter to the trial court for re-sentencing. Thomas, 274 A.D.2d at 763. At that re-sentencing, the County Court sentenced Thomas to an indeterminate term of two to four years imprisonment on the second degree attempted assault conviction, and a consecutive, six and one-half year determinate term of imprisonment on his second degree assault conviction. The Third Department unanimously affirmed those sentences on appeal. SeePeople v. Thomas, 283 A.D.2d 724 (N.Y. App. Div., 3d Dept. 2001).
In or about February, 2002, Thomas filed an application seeking a writ of error coram nobis with the Third Department ("February, 2002 Coram Nobis Application"). In that request, Thomas claimed that his appellate counsel, Richard V. Manning, Esq. ("Attorney Manning"), rendered ineffective assistance because he failed to argue on appeal that: 1) the County Court wrongfully deprived Thomas the opportunity to accept a plea proposal offered by the District Attorney; 2) the County Court wrongfully failed to provide the jury with an instruction required under New York's Criminal Procedure Law ("CPL"); 3) the burden of proof at trial was improperly shifted to Thomas by both the prosecution and the County Court; 4) Thomas was entitled to a new trial due to prosecutorial misconduct; and 5) Thomas was deprived of the effective assistance of trial counsel. See Memorandum of Law in Support of February, 2002 Coram Nobis Application ("February, 2002 Supporting Mem.") at pp. 1-17. The District Attorney opposed that application, Dkt. No. 49, and in its Decision and Order dated April 12, 2002, the Third Department denied that request for relief. See People v. Thomas, No. 13741 (N.Y. App. Div, 3d Dep't. Apr. 12, 2002) (Dkt. No. 43, Ex. 11) ("April, 2002 Order").
Thomas thereafter filed a second coram nobis application with the Third Department in September, 2003 ("September, 2003 Coram Nobis Application"). In that application, Thomas alleged that Attorney Manning labored under a conflict of interest when he represented Thomas on appeal because appellate counsel had previously prosecuted Thomas in counsel's prior capacity as the St. Lawrence County District Attorney. See Affidavit in Support of September, 2003 Coram Nobis Application at ¶¶ 9-31. On November 14, 2003, the Third Department issued a Decision and Order in which it denied and dismissed petitioner's September, 2003 Coram Nobis Application. SeePeople v. Thomas, No. 14937 (N.Y. App. Div., 3d Dep't. Nov. 14, 2003) (Dkt. No. 43, Ex. 13). On January 13, 2004, the Court of Appeals denied Thomas' application for leave to appeal that decision. See People v. Thomas, 1 N.Y.3d 602 (2004).
B. Proceedings in this Court
Thomas commenced this proceeding, pro se, on June 20, 2002. See Petition (Dkt. No. 1). On April 19, 2004, following various proceedings both in this action as well as in the state courts, which Thomas pursued while his federal habeas petition was stayed, petitioner filed an amended habeas petition in this action. See Dkt. No. 40 ("Am. Pet."). In that pleading, Thomas alleges that: 1) he was denied the effective assistance of appellate counsel; 2) the trial court improperly denied Thomas the opportunity to accept a plea proposal offered by the District Attorney's office; 3) the county court failed to provide the jury with an instruction required under the CPL when the prosecutor impeached his own witness; 4) the burden of proof was improperly shifted to the defense during the course of the criminal trial; 5) the prosecutor engaged in misconduct during the criminal proceedings below; and 6) he was denied the effective assistance of trial counsel. See Am. Pet. (Dkt. No. 40), Grounds One through Six.
On June 1, 2004, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to Thomas' amended petition. Resp. Mem (Dkt. No. 43). In his opposing memorandum, respondent asserts that Thomas is both procedurally barred from obtaining the relief he seeks as to the majority of his federal claims, and that none of the grounds advanced in the amended petition have merit. See Resp. Mem. (Dkt. No. 43) at pp. 6-15. On June 22, 2004, Thomas filed, with the permission of this Court, a traverse in further support of his amended petition. See Traverse (Dkt. No. 45).
In a Memorandum-Decision and Order issued on May 15, 2006, this Court denied various aspects of Thomas' amended petition, however, it determined that an evidentiary hearing was required in order to address adequately certain of the claims raised by Thomas in his amended pleading. See May, 2006 Order (Dkt. No. 51). This Court also appointed the Federal Public Defender for the Northern District of New York to represent petitioner at the scheduled hearing. May, 2006 Order (Dkt. No. 51) at pp. 43-44; see generally Rule 8(c) of the Rules Governing Section 2254 Cases and 18 U.S.C. § 3006A(a)(2).
On September 26, 2006, an evidentiary hearing was held at the James T. Foley United States Courthouse in Albany, New York at which testimony was received relating to the claims remaining in Thomas' amended petition, and the parties subsequently filed briefs in further support of their respective positions. See Dkt. Nos. 60-62.
As noted in this Court's May, 2006 Order, under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal courts may only grant habeas relief to a state prisoner under 28 U.S.C. § 2254 if the state court's adjudication of the claim is either contrary to, or involves an unreasonable application of, clearly established Supreme Court precedent, or if the state court's decision reflects an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See May, 2006 Order (Dkt. No. 51) at pp. 7-9; see also Jimenez v. Walker, 458 F.3d 130 passim (2d Cir. 2006).
B. Review of Thomas' Remaining Claims*fn3
1. Ineffective Assistance of Appellate Counsel
a. Clearly Established Supreme Court Precedent
The proper standard for evaluating a habeas petitioner's claim that his appellate counsel rendered ineffective assistance is the test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). SeeSmith v. Robbins, 528 U.S. 259, 287-89 (2000); Penson v. Ohio, 488 U.S. 75, 86-88 (1988). Under Strickland, to establish a violation of one's constitutional right to the effective assistance of counsel, a habeas petitioner must show both: I) that counsel's representation fell below an objective standard of reasonableness, measured in the light of the prevailing professional norms; and ii) resulting prejudice -- that is, a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 688-90.
b. Contrary To, or Unreasonable Application Of, Clearly Established Supreme Court Precedent
I. Plea Proposal Offered by the Prosecutor
As noted in the May, 2006 Order, petitioner argues, inter alia, that his appellate counsel improperly failed to argue on appeal that Thomas was wrongfully denied the opportunity to plead guilty prior to trial due to the County Court's arbitrary policy of refusing to consider plea bargains to criminal charges once a jury has been selected for a criminal trial. See May, 2006 Order (Dkt. No. 51) at pp. 11-14; see also Am. Pet. (Dkt. No. 5), Ground One.*fn4 In that Order, this Court further noted that the trial transcript appeared to suggest that the sole reason the trial court refused to allow Thomas to plead guilty to the reduced charge of second degree attempted assault charge immediately prior to the commencement of the criminal trial was the fact that a jury had already been chosen for that trial. See May, 2006 Order (Dkt. No. 51) at pp. 12-13 (citing Trial Tr. at pp. 42-43). Since such an arbitrary policy may have been contrary to Third Department precedent that existed prior to the time at which Thomas' appeal was perfected, e.g., People v. Compton, 157 A.D.2d 903, 903-04 (N.Y. App. Div., 3d Dep't. 1990), this Court determined that more evidence was necessary to address petitioner's claim relating to appellate counsel's failure to assert that petitioner was wrongfully denied the opportunity to plead guilty. May, 2006 Order (Dkt. No. 51) at pp. 13-14.
At the evidentiary hearing, appellate counsel explained the legal basis for his decision to refrain from asserting the above-referenced claim on appeal. Specifically, he noted that he had interpreted the portion of the trial transcript wherein the County Court declared that it would not permit Thomas to plead guilty in the following manner: the district attorney was putting on the record the fact that that plea offer had been made and refused because what, what -- when the Judge said something after that, the district attorney said that's fine with me. I understood that that plea had been made back before and had been refused, and the district attorney was just putting that back on the record for purposes of if he got convicted so probation would know there was some kind of colloquy about what he said about it, what probation would know.
Evidentiary Transcript (9/26/06) ("Evidentiary Tr.") (Dkt. No. 59) at 9. As support for this interpretation of that portion of the trial transcript, appellate counsel provided insight into the manner in which plea proposals are handled in St. Lawrence County Court. Specifically, appellate counsel noted that under the standard practices of that court, the trial judge: serve[s] upon counsel what's called a preliminary conference memorandum and pretrial scheduling order where he specifically states that if a plea is not entered by a certain date, the only plea that will be accepted will be to the top count of the indictment.
Evidentiary Tr. (Dkt. No. 59) at p. 11. Since no plea was tendered by Thomas prior to the date specified in that preliminary conference memorandum, see, e.g., Evidentiary Tr. (Dkt. No. 59) at 51, appellate counsel did not view the portion of the trial transcript cited above (see Trial Tr. at pp. 42-43) as evidence that a viable plea proposal was available to Thomas immediately prior to trial. See Evidentiary Tr. (Dkt. No. 59) at pp. 12, 54-55.
At the evidentiary hearing, appellate counsel also testified about facts germane to this claim, but which are not apparent from the state court record. Specifically, he testified that he recalled having a conversation where Thomas told him "that he had been offered a plea and he wasn't going to plead guilty because he wasn't guilty." Seeid.at 14. Appellate counsel therefore stated that he failed to raise an appellate claim regarding the above issue based upon his understanding of the way things work in St. Lawrence County "[a]nd [his] conversation with Mr. Thomas." See id. at p. 20.
Thus, the evidence adduced at the evidentiary hearing demonstrated that: I) no plea proposal was available to Thomas immediately prior to trial; and ii) Thomas had been afforded the opportunity to plead guilty in accordance with the terms of a pretrial scheduling order issued by the County Court, however he refused to plead guilty in light of his firm belief that he was innocent of all charges. Furthermore, since Thomas was never placed in a "no return"position in conjunction with any plea negotiations, see id. at p. 58, he could not establish that he was entitled to specific performance of any plea proposal. See, e.g. People v. ...