The opinion of the court was delivered by: John G. Koeltl, District Judge
This is a petition for habeas corpus pursuant to 28 U.S.C. § 2254 brought by New York State prisoner Conrad Wicks, who is currently incarcerated at the Eastern New York Correctional Facility in Napanoch. Following a jury trial, the petitioner was convicted of two counts of Criminal Possession of a Weapon in the Third Degree. One count related to possession of a defaced firearm in violation of New York Penal Law § 265.02(3), while the other related to possession of a loaded and operable firearm not in his home or place of business in violation of § 265.02(4). The petitioner was sentenced as a persistent violent felony offender to concurrent, indeterminate prison terms of fifteen years to life for each count. The Appellate Division, First Department, subsequently modified the petitioner's sentence by reducing the sentence relating to the count of possessing a defaced firearm to three and one-half to seven years because that count is not classified as a violent felony, but it otherwise affirmed the petitioner's conviction. People v. Wicks, 768 N.Y.S.2d 596 (App. Div. 2003). The petitioner's application for leave to appeal was denied. People v. Wicks, 808 N.E.2d 1293 (N.Y. 2004) (table).
The petitioner argues that (1) the evidence was legally insufficient to prove his guilt; (2) the prosecutor committed misconduct in his opening statement and summation; (3) defense counsel provided ineffective assistance by failing to challenge the fact that the complaining witness did not testify; (4) the police did not have probable cause to arrest the petitioner and therefore all the evidence recovered should have been suppressed; (5) adjudication of the petitioner as a persistent violent felony offender violated Apprendi v. New Jersey, 530 U.S. 466 (2000); and (6) the prosecutor committed violations of Brady v. Maryland, 373 U.S. 83 (1963), and People v. Rosario, 173 N.E.2d 881 (N.Y. 1961), by failing to disclose evidence relevant to the impeachment of the eyewitness, Alpha Diaby.
For the reasons explained below, the petition for habeas corpus is denied.
The following is a summary of the relevant facts*fn1
At about 2:30 a.m. on December 10, 1998, a cab driver, Alpha Diaby, observed the petitioner holding a gun to the head of a tall, thin African-American woman while another man stood by her side. (Ex. G at 6; Ex. F at 3.) As the petitioner and the other man walked away from the scene, the woman approached the cab and said to one of the passengers, "They just robbed me and . . . stole my purse." (Ex. G at 6-7; Ex. F at 4.) Diaby began following the two men in his cab, and the men then split up. (Ex. G at 7; Ex. F at 4.) In order to continue his pursuit, Diaby ran two red lights before being pulled over by Officer Frank Orosz and Sergeant Michael Sullivan. (Ex. G at 7; Ex. F at 4.) As the officers approached Diaby, he pointed to the petitioner, who was pulling at the doors of a building, and Diaby yelled to the officers that the man "over there" had "just robbed" a woman. (Ex. G at 8; Ex. F at 5.) The petitioner looked in the direction of the officers, began to run, and entered into an alley where he was chased by officer Orosz who was yelling, "Police, don't move." (Ex. G at 8; Ex. F at 5.)
Officer Orosz, while chasing the petitioner, observed the petitioner reach into his waistband or pocket, pull out a hat, and throw it on the ground and then pull out what appeared to be a gun, which the petitioner also threw on the ground. (Ex. G at 9; Ex. F at 6.) The pursuit ended when Officer Orosz and Sergeant Sullivan tackled the petitioner and handcuffed him. (Ex. G at 9; Ex. F at 6.) Shortly thereafter, Officer Orosz and other officers returned to the spot where the petitioner had thrown the objects. Officer Orosz found a hat, and Officer Christopher O'Connor found a holster, a gun about thirty or forty feet away from the holster with a bullet in the chamber, and a magazine about four or five feet from the gun. (Ex. G at 9-10; Ex. F at 7.) The serial number on the gun was scratched off. (Ex. G at 11.)
Officers later noticed that some components of the magazine, such as the "floorplate" and spring plate, were missing, and Officer Orosz and Sergeant Sullivan returned to the scene and recovered the missing components several hours later by searching under parked cars with a flashlight. (Ex. G. at 10-11; Ex. F at 8.) Each of the recovered pieces fit correctly and the gun was successfully reassembled. (Ex. G at 11; Ex. F at 8.) Detective Mark Basoa of the Police Department later determined that the reassembled gun and the ammunition were operable, and he testified that the gun was operable even without the magazine attached provided that a bullet was loaded in the chamber. (Ex. G at 11-12; Ex. F at 10.)
On September 8, 1999, the jury found the petitioner guilty of two counts of Criminal Possession of a Weapon in the Third Degree, but charges of two counts of Robbery in the First Degree, one count of Robbery in the Second Degree, and one count of Criminal Possession of a Weapon in the Second Degree were dismissed after the jury failed to reach a verdict. (Ex. F at 9-11.) On September 30, 1999, the petitioner was adjudicated a mandatory persistent violent felony offender, and on October 5, 1999 he was sentenced to two concurrent sentences of fifteen years to life in prison. (Ex. F at 11.) The petitioner filed a timely notice of appeal.
Following unsuccessful efforts to obtain records relating to Diaby, and after he had previously filed and withdrawn an application to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10, on August 27, 2002 the petitioner filed a new pro se motion pursuant to § 440.10 to vacate the judgment of conviction, arguing that the prosecutor withheld evidence relevant to impeaching Diaby in violation of Brady and Rosario, and that his counsel provided ineffective assistance. (See Ex. A to Gill Decl.) The Supreme Court, New York County, denied the petitioner's motion by order dated November 25, 2002. (Ex. C to Gill Decl.) The court found that at the time of Diaby's testimony, he had no criminal record or pending immigration proceeding, and therefore there was no exculpatory or impeachment evidence that the prosecution was obliged to disclose to the defense. (Id. at 9-10.) The court further found no support for an ineffective assistance of counsel claim based on a failure to challenge the fact that a complaining witness did not testify at trial because the robbery and second degree weapon possession charges were ultimately dismissed and because the argument could have been raised on direct appeal. (Id. at 11.)
The petitioner sought leave to appeal the denial of his § 440.10 motion to the Appellate Division, First Department. (Ex. D to Gill Decl., at 4.) The Appellate Division granted leave to appeal, consolidating the appeal with the petitioner's direct appeal from his judgment of conviction. (Exs. D & E to Gill Decl.)
In November 2001, in connection with the direct appeal, the petitioner's counsel filed a brief in the Appellate Division raising the following claims: (1) the evidence was legally insufficient to prove the petitioner's guilt beyond a reasonable doubt; (2) the petitioner's sentence should be modified by vacating one of the two counts of Criminal Possession of a Weapon in the Third Degree because they were based on the possession of the same weapon; (3) the petitioner's sentence as a persistent violent felony offender for the non-violent count of possession of a defaced weapon, alternatively, should be vacated; (4) the sentence for the count of possession of a loaded firearm should be vacated and remanded for resentencing because the judge improperly relied on allegations of which the petitioner was not convicted; and (5) the sentences should be reduced in the interest of justice. (See generally Ex. F to Gill Decl.) In addition, after his § 440.10 motion was denied, the petitioner filed a supplemental pro se brief in which he claimed that (1) all evidence recovered should have been suppressed because the police did not have probable cause to arrest him and (2) the prosecutor committed misconduct in his opening statement and summation.*fn2
The Appellate Division unanimously modified the petitioner's sentence on the conviction for Criminal Possession of a Weapon in the Third Degree based on possession of a defaced weapon in violation of Penal Law § 265.02(3). People v. Wicks, 768 N.Y.S.2d 596 (App. Div. 2003). The court also found the verdict was based on legally sufficient evidence, declined to dismiss the concurrent count based on possession of the same gun, and held that the petitioner received effective assistance of counsel. Id. at 596-97. The court "considered and rejected" all other claims raised in the petitioner's appeal, "including those contained in his pro se supplemental submissions." Id. at 597. Leave to appeal to the Court of Appeals was denied. People v. Wicks, 808 N.E.2d 1293 (N.Y. 2004) (table).
The petitioner then filed this petition pursuant to 28 U.S.C. § 2254. The petitioner subsequently requested a stay of his petition so that he could exhaust a series of claims under Apprendi that he was pursuing by way of a Criminal Procedure Law § 440.20 motion in the New York State Supreme Court. This Court denied the request in view of the fact that the respondent did not oppose allowing the petitioner to amend his petition to add an Apprendi claim and did not argue that such a claim was unexhausted. The petitioner then filed an amended petition which included an Apprendi claim, and the amended petition is currently before the Court. The respondent concedes that all claims raised in this petition were exhausted in the state court.
Because a state court previously adjudicated all of the petitioner's claims on the merits, this Court evaluates the petitioner's claims using the deferential standard of review set forth in 28 U.S.C. ...