The opinion of the court was delivered by: John G. Koeltl, District Judge
Petitioner Anthony Jones, who appears pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted in the New York State Supreme Court, New York County, of one count of attempted criminal possession of a weapon in the second degree and three counts of attempted criminal possession of a weapon in the third degree, and was sentenced to one indeterminate prison term of fourteen years to life for the former count, and three indeterminate terms of two to five years for the latter three counts, all to be served concurrently. (Sentencing Transcript ("S.") at 19.)
For the reasons explained below, the petition for habeas corpus is denied.
The record submitted in connection with the present application discloses the following facts.*fn1 In the late fall of 1999, Christopher Brown ("Brown"), a police informant acting at the request of Drug Enforcement Administration ("DEA") Special Agent William Perry ("Agent Perry"), contacted his longtime friend Maunzel Ojeah ("Ojeah") about finding a cocaine supplier for Brown. (Trial Transcript ("Tr.") 312-17.) On November 11, 1999, Agent Perry and Brown drove Ojeah to a restaurant in Newark, New Jersey, to discuss a drug transaction and to call Damar Rodriguez ("Rodriguez"), whom Ojeah had recommended as a supplier. (Tr. 315, 317; Brief for Defendant-Appellant to Appellate Division, First Department dated June 2003 attached as Ex. A to the Declaration of Frederick Wen in Opposition to Habeas Petition dated Sept. 28, 2006 ("Wen Decl.") at 3; Brief for Respondent to Appellate Division, First Department dated December 2003 attached as Ex. B to Wen Decl. at 4.) At the restaurant, Ojeah called Rodriguez, who identified himself as "Panama" (Ex. B at 4), and Agent Perry spoke with both Rodriguez and the petitioner, who identified himself as Rodriguez's "Uncle Teeza". (Tr. 319, 321; Ex. B at 4.) Both Rodriguez and the petitioner agreed to sell three kilograms of cocaine to Agent Perry for $75,000. (Tr. 321-22; Ex. A at 4; Ex. B at 4.) While both parties initially disagreed on a location to complete the transaction (Tr. 323; Ex. A at 4; Ex. B at 4), they eventually settled on New York City (Tr. 323-24; Ex. B at 5).
On the morning of November 15, 1999, Rodriguez, the petitioner, Agent Perry, and DEA Special Agent Gregory Hilton ("Agent Hilton"), the acting group supervisor for the sting operation (Tr. 228), agreed to meet at 7:00 p.m. that evening on the corner of West 31st Street and Eighth Avenue in Manhattan (Tr. 326; Ex. B at 5). With numerous agents conducting surveillance in and around the vicinity (Tr. 228-29, 240-43, 345-47, 397-99; Ex. B at 5), and Agents Hilton and Perry waiting at their parked van (Tr. 329-30, 401-02; Ex. B at 5), Ojeah retrieved Rodriguez and the petitioner, who introduced themselves as "Panama" and "Uncle Teeza", respectively (Tr. 348; Ex. A at 5; Ex. B at 5). Rodriguez and the petitioner stated that they were ready to go ahead with the transaction and asked whether Agent Hilton, who was using the undercover name "Malique" at the time, had the money and a hotel room; Agent Hilton assured them he had both. (Tr. 208, 210.) The petitioner asked repeatedly to see the money but Agent Hilton refused to comply until he saw the cocaine. (Tr. 210-13.) Both parties eventually agreed that the petitioner and Rodriguez would bring their car around and the parties would simultaneously count the money and the drugs from inside their respective vehicles. (Tr. 211-12; Ex. A at 5; Ex. B at 6.)
As Rodriguez and the petitioner left to retrieve their car, they met up with George Rodriguez, the third member of their group, and proceeded to Pennsylvania Station. (Tr. 252-54, 404-05.) The agents who were following the three men contacted Agent Hilton to appraise him of the situation, and he ordered them to arrest the petitioner, Damar and George Rodriguez for conspiracy to sell cocaine. (Tr. 253.) The agents apprehended the suspects in the rotunda of Pennsylvania Station. (Tr. 261-62, 367, 407.) As Special Agent Mathias Koppinger ("Agent Koppinger") searched the petitioner, he found a Bryco 59 semi-automatic .9 millimeter handgun in the petitioner's jacket which appeared to be operational and was loaded with eight rounds of ammunition in the magazine and one in the chamber. (Tr. 263-65, 462.) As he removed the gun, Agent Koppinger said "thank you for not shooting me with this," to which the petitioner replied, "why would I do that, I have no beef with you." (Tr. 265-66.)
The three men were taken to a holding cell in the Amtrak police command center. (Tr. 268-70, 374.) The arresting officer seized the property recovered from the defendants, including the Bryco handgun found on the petitioner and another Ruger handgun that Damar Rodriguez attempted to conceal in the holding cell. (Tr. 377.) The officer noticed that the serial number on the Bryco handgun was gouged out so "as to make it unreadable." (Tr. 442.) The weapon was taken to a ballistics lab where the assigned detective determined that although the handgun appeared to be operational, and had been fired at some point, it was in fact inoperable because the firing pin was broken. (Tr. 478, 481-83, 494.)
At the petitioner's arraignment, which took place before the results came back from the ballistics lab regarding the operability of the Bryco handgun, the petitioner allegedly told his former attorney, Michael Stokamer ("Stokamer"), that the gun was inoperable. (Ex. A at 8; Ex. B at 13.) Stokamer removed himself from the case, and the petitioner's trial attorney, Gary Sunden, attempted to call him as a witness to testify to these statements. (Ex. A at 8; Tr. 498-500.) The court denied this request, finding that "the only way to put the defendant's state [of] mind, technically, when it's an element of the crime is for [the defendant] to testify at trial. Other than that it's pure hearsay." (Tr. 504.) The petitioner did not testify at trial.
On May 2, 2001, the jury found the petitioner not guilty on five counts, which included attempted first and second degree robbery, attempted second degree grand larceny, and second and third degree criminal possession of a weapon. The jury found the petitioner guilty of four counts, namely attempted second degree criminal possession of a weapon and three counts of attempted third degree criminal possession of a weapon. See People v. Jones, 771 N.Y.S.2d 644 (App. Div. 2004) (attached as Ex. C to Wen Decl.).
The trial judge sentenced the petitioner as a persistent violent felony offender to an indeterminate term of fourteen years to life imprisonment for the second degree conviction, and as a second felony offender for three indeterminate, two-to-five-year terms for each of his third degree convictions, all to be served concurrently. (S. 19.)
The petitioner timely appealed the judgment to the New York State Supreme Court Appellate Division, First Department, on two grounds: (1) whether the petitioner was denied his right to present a defense and his due process right to a fair trial when the court refused to admit testimony from his former attorney (Mr. Stokamer) that petitioner told him, at arraignment and before the ballistics testing, that the gun he was charged with possessing was inoperable; and (2) whether the third degree counts should be dismissed in the interests of justice. (See Ex. A at 2.) On February 19, 2004, the Appellate Division unanimously affirmed the judgment below. Jones, 771 N.Y.S.2d at 644. The court held that it was proper for the trial court to exclude defendant's exculpatory statement made to his prior attorney as inadmissible hearsay. Id. (citing People v. Reynoso, 534 N.E.2d 30 (N.Y. 1988)). The court declined to review the petitioner's argument that he was entitled to introduce the statement pursuant to his constitutional right to present a defense because the argument was "concededly unpreserved and we decline to review it in the interests of justice." Id. The court went on to find that if it were to review this claim on the merits, it would find that the defendant had no constitutional right to introduce "his own self-serving statement, which was neither reliable nor critical to his ...