The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner David Smith brings this petition 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. Specifically, petitioner argues that he was denied the effective assistance of trial counsel because his attorney "failed to prepare for trial and needlessly revealed to the jury that [petitioner] was an admitted drug dealer who, according to a 'key' witness who did not testify at trial, had robbed the brothel involved in this case just two weeks prior to the charged robbery. . . ." 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, Kings County (Knipel, J.), petitioner was convicted of two counts of robbery in the first degree, N.Y. Penal Law § 160.15(4). Petitioner was sentenced, as a second violent felony offender, to two concurrent seventeen year prison terms.
Petitioner filed a pro se motion, pursuant to N.Y. Crim. Proc. Law § 440.30, to vacate his judgment of conviction, raising three claims: (1) defective grand jury presentation, (2) withholding of vital evidence, and (3) newly discovered evidence. In an order dated October 1, 2002, the Supreme Court denied petitioner's motion, holding, inter alia, that the claims were barred under N.Y. Crim. Proc. Law § 440.30(4)(a) for failure to allege any ground constituting a legal basis for the motion and under Section 440.30(4)(b) for failure to substantiate all essential facts. People v. Smith, Indict. No. 3470/01, pp. 2-3 (N.Y. Sup. Ct. Kings Co. Oct. 1, 2002).
On direct appeal to the Appellate Division, Second Department, with the aid of an attorney, petitioner claimed that he had been denied effective assistance of trial counsel. On November 29, 2004, the Appellate Division affirmed petitioner's conviction, holding that "the defendant received meaningful representation" and that "defense counsel presented a reasonable defense, interposed appropriate objections, and effectively cross-examined witnesses." People v. Smith, 12 A.D.3d 707 (N.Y. App. Div. 2004) (citations omitted). Petitioner's application for leave to appeal to the New York Court of Appeals was denied on January 28, 2005. People v. Smith, 4 N.Y.3d 767 (2005). On January 13, 2006, petitioner filed this petition for a writ of habeas corpus, claiming ineffective assistance of trial counsel, making the same argument he made to the Appellate Division.
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 the 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." Williams, 529 U.S. at 411. In order to grant the writ, there must be "[s]ome increment of incorrectness beyond error," although "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." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (citation and internal quotation marks omitted).
B. Merits of Petitioner's Claim
To succeed on an ineffective assistance of counsel claim, a petitioner must show that (1) counsel's performance fell below the objective standards of reasonableness dictated by prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-89, 694 (1984). Under the first prong, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (internal quotation marks omitted). To succeed on the second prong, a "defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Thus, the issue before this court is whether the state court unreasonably applied Strickland or made a decision that was contrary to Strickland. Williams, 529 U.S. at 367; Henry v. Poole, 409 F.3d 48, 67 (2d Cir. 2005), cert. denied, 126 S.Ct. 1622 (2006); Loliscio v. Goord, 263 F.3d 178,192-93 (2d Cir. 2001). As will be seen, petitioner has made no showing here that the Appellate Division either unreasonably applied, or made a decision contrary to, Strickland.
Petitioner asserts that he received ineffective assistance of counsel when his attorney "failed to prepare for trial and needlessly revealed to the jury that [petitioner] was an admitted drug dealer who, according to a 'key' witness who did not testify at trial, had robbed the brothel involved in this case just two weeks prior to the charged robbery . . ." Appellant's Br. ...