The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Petitioner Michael Sturdivant ("petitioner") was convicted in the New York State Supreme Court, Queens County, after a trial by jury, of criminal possession of a controlled substance in the third degree (N.Y. Penal Law § 220.16), and criminal possession of a controlled substance in the fifth degree (N.Y. Penal Law § 220.06), on September 27, 2002. Prior to sentencing, petitioner moved to set aside the verdict on the ground of juror misconduct, pursuant to N.Y. Crim. Proc. Law § 330.30(2). On November 6, 2002, the trial court denied the motion and sentenced petitioner to concurrent prison sentences of four and one-half to nine years for the third degree conviction, and two to four years for the fifth degree conviction.
The Appellate Division of the New York State Supreme Court, Second Department, affirmed the judgment on April 26, 2004. People v. Sturdivant, 6 A.D.3d 733, 775 N.Y.S.2d 535 (2d Dep't 2004). On June 30, 2004, the New York Court of Appeals denied petitioner's leave to appeal. People v. Sturdivant, 3 N.Y.3d 648, 782 N.Y.S.2d 419 (2004).
On June 29, 2005, after filing the instant petition, petitioner filed a motion pro se to vacate judgment, pursuant to N.Y. Crim. Proc. Law § 440.10, alleging that: (1) petitioner's trial counsel "was guilty of ineffective assistance of counsel and legal malpractice"; (2) the district attorney "is in violation of the State Administrative Procedure Act and has committed administrative and investigatory abuses and has not performed his purely ministerial duties as mandated by State Law"; and (3) the trial court judge "did not uphold his Article VI duty to uphold the Constitution of the United States of America and that he is guilty of Breach of Duty, Breach of Obligation, Breach of Contract, and the violation of the New York State Constitution." (Pet'r § 440.10 Mot. to Vacate J. at 1). On August 19, 2005, the Queens County Supreme Court denied petitioner's motion. People v. Sturdivant, No. N10159-2002 (N.Y. Sup. Ct. Aug. 19, 2005) (Blumenfeld, J.). Petitioner did not seek leave to appeal the decision.
Petitioner filed the instant petition for a writ of habeas corpus pro se, pursuant to 28 U.S.C. § 2254, on August 27, 2004, in the United States District Court for the Southern District of New York. By order dated December 2, 2004, the petition was transferred to the United States District Court for the Eastern District of New York. Petitioner challenges his conviction on the grounds that
(1) the Appellate Division failed to rule on an issue concerning an experiment by jurors that deprived him of his right to confront witnesses and his right to be present, and (2) the prosecution withheld potentially exculpatory DNA evidence. In his reply brief, petitioner further challenges his conviction on the ground that he was denied effective assistance of counsel because trial counsel did not present witnesses or petition the court to submit DNA evidence. For the reasons set forth below, the petition is denied in its entirety.*fn1
At approximately 6:15 a.m. on February 15, 2002, Officer Patrick Corcoran, assigned to the Housing Bureau of the New York City Police Department, was patrolling the roof of the Queensbridge Houses, located at 40-03 12th Street, Queens County. (R. at 485-87.)*fn2 Officer Corcoran noticed petitioner standing in front of the building below. (R. at 488.) Over the course of about five minutes, he observed two different individuals approach petitioner, appear to shake hands with petitioner, and then walk away from petitioner. (R. at 488-89.) In order to get a better view, Officer Corcoran proceeded to the lobby of the building, where he observed petitioner through a window in the lobby door. (R. at 489.) Officer Corcoran saw an unidentified male approach petitioner and hand him what appeared to be money, in exchange for a small object. (R. at 490.) Officer Corcoran then left the lobby, and as he approached petitioner, petitioner started to walk away. (Id.) Officer Corcoran ordered petitioner to stop and put his hands on a nearby fence. (Id.) As petitioner put his hands on the fence, he spit a bag out of his mouth and onto the ground. (R. at 491-92.) After arresting petitioner, Officer Corcoran picked up the bag and placed it in a narcotics envelope. (R. at 492.) Officer Corcoran then placed the narcotics envelope in the console of the police van in which he transported petitioner to the police station. (R. at 493.)
Upon arriving at the police station, Officer Corcoran turned over custody of petitioner and the narcotics envelope to the desk sergeant, Sergeant Loria. (R. at 493-94, 549.) Sergeant Loria took the bags of cocaine out of the narcotics envelope and placed them inside a larger narcotics envelope.
(R. at 494.) After watching Sergeant Loria seal the envelope, Officer Corcoran wrote his name, shield number, precinct number, and date on the larger envelope. (R. at 494, 508-9, 548.) Officer Corcoran advised Sergeant Loria that he had witnessed petitioner spit the bags of cocaine from his mouth. ( R. at 548-49.)
Shaker Elsherbini, a chemist with the New York City Police Department, received the sealed narcotics envelope from the evidence clerk inside the police laboratory. (R. at 566-67.) After conducting numerous tests on the powdery substance inside the bags in the narcotics envelope, Mr. Elsherbini determined that it contained cocaine. (R. at 579-583.) At trial, it was revealed that the outer bag petitioner spit out of his mouth was a blue or bluish-black color and the eleven smaller bags of cocaine inside were made of clear plastic bags. However, when Officer Corcoran vouchered the bags, he wrote down that the color of the outer bag was clear. (R. at 541-43, 550-55.) At trial, Officer Corcoran testified that the color description he gave of the outer bag on the voucher form was a typo, and that the bags of cocaine in evidence were the same as those he recovered from petitioner.
After the jury verdict, defense counsel and two assistant district attorneys interviewed two members of the jury. (Welkes Affirm. at 3-4.)*fn3 One juror indicated that a blue plastic bag from the trash can in the jury room had been used to help resolve the discrepancy between the color of the bags of cocaine in evidence and the color description Officer Corcoran had used on the standard voucher form. (Id.) Based on this conversation, petitioner moved to set aside the verdict, pursuant to N.Y. Crim. Proc. Law § 330.30(2)*fn4 , alleging juror misconduct. On November 6, 2002, the trial court denied petitioner's motion. The court stated that petitioner failed to show that there had been an improper influence in the jury room or that petitioner had been prejudiced. Specifically, the court stated that petitioner had "failed to show that the use of the blue plastic was 'not within the common ken of juror experience and knowledge.'" People v. Sturdivant, No. QN10159/2002, at *3 (N.Y. Sup. Ct. Nov. 6, 2002) (Blumenfeld, J.) The court further stated that the jurors had merely made a point as to how people describe color, which did not alter the fact that the actual items in evidence were in the jury room with them. The trial court then sentenced petitioner to concurrent prison sentences of four and one-half to nine years for criminal possession of a controlled substance in the third degree, and two to four years for criminal possession of a controlled substance in the fifth degree.
On appeal from his judgment of conviction, petitioner raised two issues: (1) the evidence was legally insufficient to support his conviction beyond a reasonable doubt because the prosecution failed to prove that petitioner actually possessed the drugs that were recovered; and (2) petitioner was deprived of his due process right to a fair trial and the right to confrontation by the jurors' use of a blue plastic bag to conduct an experiment in the jury room during deliberations. In affirming petitioner's judgment of conviction, the Appellate Division found the evidence legally sufficient to establish petitioner's guilt beyond a reasonable doubt, and was satisfied that the guilty verdict was not against the weight of the evidence. The court further found that:
[T]he Supreme Court correctly denied the defendant's motion to set aside the verdict pursuant to CPL 330.30(2) on the ground of juror misconduct. The defendant failed to establish that the jurors conducted an experiment not within the common ken of juror experience and knowledge concerning a material issue in the case, or that they in fact conducted an experiment.
Sturdivant, 6 A.D.3d at 734. (citations omitted). The Court of Appeals denied petitioner's leave to further appeal his criminal ...