The opinion of the court was delivered by: Amon, District Judge
Respondent has moved to dismiss petitioner's application for a writ of habeas corpus. For the reasons set forth below, the petition is dismissed.
A. State Court Proceedings
On April 23, 1992, petitioner Dean Villante was convicted of second-degree robbery and third-degree robbery following a jury trial. He was sentenced to seven and one-half to fifteen years and three and one-half to seven years imprisonment, respectively, with both sentences to run concurrently. On direct appeal, Villante argued that the evidence was insufficient to convict. On May 2, 1994, the Appellate Division found the evidence to be sufficient and affirmed the conviction. People v. Villante, 611 N.Y.S.2d 569 (N.Y. App. Div. 1994). Leave to appeal to the New York Court of Appeals was denied on August 29, 1994. People v. Villante, 84 N.Y.2d 834 (N.Y. 1994). Villante filed his first § 440.10 motion to vacate the judgment, alleging certain Rosario materials were not turned over to him. On November 10, 1994, that motion was denied.
B. District Court Proceedings
On January 30, 1996, Villante filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the Southern District, which was subsequently transferred to the Eastern District to then District Court Judge Reena Raggi. In the petition he claimed: (1) that the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt; (2) that the prosecution failed to disclose exculpatory evidence; and (3) that his trial and appellate counsel were ineffective for failing to interview or call certain witnesses, not calling the defendant, and not introducing evidence to negate motive. In response to respondent's arguments that the second and third claims were not exhausted, Villante withdrew those claims by letter dated February 20, 1997, stating that he "would like the court to just consider my point that my conviction was based on illegally insufficient evidence in violation of the due process clause of the federal constitution . . . ." Judge Raggi referred the sufficiency claim to Magistrate Judge Arlene Lindsay for a report and recommendation.
In a letter to the Court dated April 14, 1997, Villante first raised his concern that he "still [did] not understand how [he could] be charged with three robberys [sic] stemming from one incident and be found guilty for [sic] the second and third [degree counts] and exonerated for [sic] the first [degree count]." Magistrate Judge Lindsay replied on April 17, 1997, informing Villante that his habeas petition was under consideration and that a copy of the Court's report would be forwarded Villante when the Court had finished reviewing his petition. By order dated September 9, 1997, Magistrate Judge Lindsay reported that the sufficiency claim was without merit and recommended that the petition be dismissed. By letter dated September 30, 1997, Villante requested that the Court reconsider its decision denying his prior motion for appointment of counsel and noted that he was "being found guilty twice for one crime. I was sentenced concurrently -- I should have been found guilty of Rob 3 and received 3 1/2 -7 as opposed to Rob 2 7 1/2 -15." On January 5, 1999, Judge Raggi agreed with the Magistrate Judge and dismissed the sufficiency claim. With respect to the double jeopardy claim, Judge Raggi stated: "To the extent petitioner asserts a double jeopardy challenge to the two crimes of conviction, this argument, raised for the first time in the objections to the magistrate's report, was not exhausted in the state courts. Since it is conceivable that this claim could be heard in state court, federal review is inappropriate." The Court dismissed the petition and denied a certificate of appealability.
C. Second Circuit Proceedings
Villante appealed the District Court's dismissal to the Court of Appeals for the Second Circuit, which granted a certificate of appealability limited to the issues of determining whether the unexhausted claim should be deemed exhausted because of procedural default, and if so, whether petitioner has shown cause for such procedural default. Before the Second Circuit, Villante argued that his double jeopardy claim should be deemed exhausted by reason of procedural default, but that his default was excused based on ineffective assistance of his counsel. On September 5, 2000, the Court of Appeals affirmed the District Court's dismissal of Villante's first habeas petition. Villante v. Demeski, 225 F.3d 647 (2d Cir. 2000) (table). The Court held that Villante's double jeopardy claim was exhausted by reason of procedural default, but that his default was not excused by good cause. The Court of Appeals noted that in order to base an argument of "good cause" on alleged ineffective assistance of counsel, a petitioner must have raised those ineffective assistance of counsel claims in state court. Villante failed to do so and thus could not argue that "good cause" excused his default on the double jeopardy claim.
D. Subsequent State Court Proceedings
On September 25, 2000, Villante, proceeding pro se, filed an application for a writ of error coram nobis in the Appellate Division. He claimed that his appellate counsel was ineffective for failing to argue the double jeopardy issue and for failing to argue that his trial counsel was ineffective for not moving to dismiss the third-degree robbery count on that double jeopardy ground. On March 25, 2002, the Appellate Division denied the petition, holding that "[a]ppellate counsel's failure to raise the issue of double jeopardy cannot be considered ineffective assistance of counsel because the defendant failed to raise that claim prior to the entry of the judgment of conviction." People v. Villante, 739 N.Y.S.2d 604 (App. Div. 2002). Villante's application for leave to appeal to the New York Court of Appeals was denied on May 10, 2002. People v. Villante, 98 N.Y.2d 656 (N.Y. 2002).
On October 19, 2002, Villante moved for a second time under § 440.10 to vacate his judgment, arguing that his trial counsel was ineffective for failing to argue the double jeopardy issue. In a decision dated April 9, 2003, the Supreme Court, Queens County, denied Villante's motion, holding that it was mandatorily procedurally barred under § 440.10(2)(c) because the alleged omission on the part of the trial counsel was a matter of record and should have been advanced on direct appeal. Alternatively, the court held that Villante's substantive claim was meritless because "the single de minimus omission [of counsel] does not remotely call into question the competence of trial counsel, and much less raise even a colorable claim that his representation was ineffective under either the state or federal constitution." The court also stated that Villante suffered no prejudice as "the omission, ...