The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Russell J. McCoy has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is currently in the custody of the New York Department of Correctional Services at the Cayuga Correctional Facility, Moravia, New York.
After a trial by jury in the Broome County Court Petitioner was convicted of burglary in the second degree and criminal possession of stolen property in the fifth degree (theft of an air compressor and other tools from a dwelling where he had previously resided as a guest of its lawful tenants, Daniel Marvin and Rose Marvin) and sentenced as a second felony offender to a 10-year determinate prison term. Petitioner timely appealed his conviction to the Appellate Division of the New York Supreme Court raising the following grounds: (1) insufficiency of the evidence; (2) inadequate instructions; (3) prosecutorial misconduct; and (4) the sentence he received was unduly harsh and should be reduced in the interests of justice. The Appellate Division affirmed Petitioner's conviction, People v. Webster, 736 N.Y.S.2d 157 (N.Y. App. Div.2002). The New York Court of Appeals denied leave to appeal without opinion on April 3, 2002, 771 N.E.2d 844 (N.Y.2002) (Table). Petitioner's conviction became final 90 days later, Tuesday, July 2, 2002, when his time for petitioning the U.S. Supreme Court for certiorari expired, and his time to file a federal habeas petition expired one year later, July 2, 2003. Pratt v. Greiner, 306 F.3d 1190, 1195 (2d Cir.2002).
On December 3, 2002, Petitioner filed a motion for an order vacating the judgment under N.Y. CRIM. PROC. LAW § 440.10 ("§ 440.10 motion"), with the County Court, Broome County alleging: (1) denial of effective assistance of counsel; (2) the prosecution failed to disclose a pending criminal charge and prior conviction of a prosecution witness; and (3) juror misconduct. The Broome County Court denied the motion on February 27, 2003, and Petitioner was denied leave to appeal by the Appellate Division on April 17, 2003. On April 6, 2003, Petitioner timely filed his petition in this Court and on July 21, 2003, an amended petition was filed.
ISSUES RAISED/STANDARD OF REVIEW
In his amended petition Petitioner raises five grounds: (1) insufficiency of the evidence;
(2) a violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) prosecutorial misconduct (improper closing argument); (4) inadequate and incorrect jury instruction; and (5) ineffective assistance of counsel. Petitioner raised the first, third, and fourth grounds on direct appeal and the second (if it was properly raised all) and fifth grounds in his § 440.10 motion. Respondent concedes that Petitioner has exhausted his state-court remedies on all grounds except the second.
Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decisions of the New York courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or were "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); Williams v. Taylor, 529 U.S. 362, 405--406 (2000); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard). In applying this standard, this Court reviews the last reasoned decision by the state court, Jones v. Stinson, 229 F.3d 112, 118 (2d Cir.2000), which in this case was that of the New York Supreme Court, Appellate Division on the direct appeal and the New York County Court, Broome County on the § 440.10 motion. In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
To the extent that Petitioner alleges errors of state law, they are beyond the purview of this Court in deciding a petition for federal habeas corpus relief. This Court may only address violations of federal law. 28 U.S.C. § 2254(d); Estelle v. McGuire, 502 U.S. 62, 67--68 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law. Today, we reemphasize that it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions.") (Citations and internal quotation marks omitted)).
Ground 1: (Insufficiency of the Evidence). In rejecting Petioner's arguments before that court, the Appellate Division held:
Defendant contends initially that the evidence at trial failed to establish the "unlawful access" element of burglary in the second degree (see, Penal Law § 140.25) because he had resided at the dwelling with the tenants' permission shortly before the tools wereremoved and believed he had permission to re-enter the premises. To establish that he reasonably believed such permission had been given, defendant cites the testimony of Rose Marvin confirming that she never told him that he could not return to the premises after he moved out. Daniel Marvin testified, however, that when he told defendant to move out, he had stated that he and his wife were "cutting him off access as soon as he moved". Any arguable conflict between these testimonies presented an issue of credibility for the jury to determine (see, People v. Liotta, 274 A.D.2d 751, 753, 712 N.Y.S.2d 65; People v. Parkinson, 268 A.D.2d 792, 793-794, 702 N.Y.S.2d 216, lv. denied 95 N.Y.2d 801, 711 N.Y.S.2d 169, 733 N.E.2d 241). Since the jury clearly credited Daniel Marvin's testimony, the evidence supports the finding of unlawful access. Our independent review of the trial evidence (see, People v. White, 261 A.D.2d 653, 656, 690 N.Y.S.2d 300, lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949) also leads us to conclude that the jury accorded the evidence its proper weight (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Thus, we find that defendant's burglary conviction is supported by legally sufficient evidence and is not against the weight of evidence.
The constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original). It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must undertake its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n. 16. This Court must also be ever mindful of the deference owed to the trier of fact and the sharply limited nature of constitutional sufficiency review. Wright v. West, 505 U.S. 277, 296 (1992). Where, as in this case, the question is one of credibility, the finding of the jury carries the day. See Schup v. Delo, 513 U.S. 298, 330 (1995); West v. Wright, supra.
Petitioner argues that the Appellate Division "twisted the facts to fit the statute." In his memorandum of law in support of the petition and traverse, Petitioner points to several instances in which the testimony of prosecution witnesses was inconsistent and contradictory. Primarily, Petitioner claims that he had the permission of the tenant of record to enter the premises; thus, according to Petitioner, he could not have committed burglary under New York law.
Petitioner misperceives the role of a federal court in a habeas proceeding challenging a state-court conviction. This Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. Under Jackson, the role of this Court is to simply determine whether there is any evidence, if accepted as credible by the jury, sufficient to sustain conviction of the crime with which a petitioner is charged, as determined by state law. Petitioner bears the burden of establishing by clear and convincing evidence that the factual findings of the jury were erroneous; a burden Petitioner has failed to carry. Whether or not the facts fit the crime of burglary under New York law is a question of state law that is beyond the purview of this Court in a federal habeas proceeding. The Appellate Division of the New York Supreme Court upheld Petitioner's conviction on direct appeal and the New York Court of Appeals denied review. Thus, this Court must assume that there was sufficient evidence to convict Petitioner of the crime of burglary as that crime is defined by New York statute as interpreted and applied by the New York courts.
This Court cannot say that the decision of the New York Appellate Division was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or 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). Nor can this Court find that the New York Appellate Division unreasonably applied the correct legal principle to the facts of the Peitioner's case as required by Lockyer--Williams; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable.
Petitioner is not entitled to relief under his first ...