The opinion of the court was delivered by: Spatt, District J.
MEMORANDUM OF DECISION AND ORDER
Rajin Charles (the "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
The petitioner seeks to vacate a May 14, 1999 judgment of conviction and sentence, which were entered after a jury convicted him of two counts of Attempted Murder in the Second Degree; two counts of Assault in the First Degree; one count of Criminal Possession of a Weapon in the Third degree; and one count of Criminal Possession of a Weapon in the Second Degree.
The charges for which the petitioner was convicted arose out of the shooting of two individuals on Middle Neck Road, in Great Neck, New York. On May 8, 1998, at approximately 9:45 p.m., Jamalle Moody, Suresh Persuad, Craig Cohn, Adam Cohn, and the twenty-two-year-old petitioner were walking on Middle Neck Road near Great Neck Road in Great Neck, New York. As the group was walking, they encountered David Vacquez and his cousin Wandy Leonardo. Vacquez and Adam Cohn bumped into each other, causing Vacquez to bump into Leonardo. The groups exchanged words, and someone in the petitioner's group drew a gun and shot Vacquez in the right arm and Leonardo in the abdomen. At the trial, Vaquez, Leonardo, and both Cohn brothers identified the petitioner as the shooter.
The defendant testified in his own behalf. According to the petitioner, it was Leonardo and Vacquez that bumped into Adam Cohn. During the ensuing argument, Leonardo took off his jacket and stated "this is his fucking town, what are you going to do about it." According to the petitioner, in response to Leonardo, Adam Cohn pulled out the gun and fired it in Leonardo's direction.
On December 16, 1998, the jury returned a verdict of guilty on two counts of Attempted Murder in the Second Degree; two counts of Assault in the First Degree; one count of Criminal Possession of a Weapon in the Third degree; and one count of Criminal Possession of a Weapon in the Second Degree.
On May 14, 1999, the Honorable Paul E. Kowtna of the County Court for the County of Nassau sentenced the petitioner to two consecutive terms of twelve and one-half to twenty-five years for the Attempted Murder convictions; two consecutive terms of seven and one-half to fifteen years under the Assault count, to run concurrent with the Attempted Murder sentences; seven and one-half to fifteen years for Criminal Possession of a Weapon in the Third Degree, concurrent with the other sentences; and three and one-half to seven years for Criminal Possession of a Weapon in the Second Degree, also concurrent with the other sentences. The trial court also ordered the petitioner to pay restitution in the amount of $26,072.56. On October 20, 2003, the New York Supreme Court, Appellate Division, Second Department, affirmed the conviction, People v. Charles, 309 A.D.2d 873, 766 N.Y.S.2d 42 (2d Dep't 2003), and on February 14, 2004, the New York Court of Appeals denied leave to appeal, People v. Charles, 1 N.Y.3d 625, 808 N.E.2d 1283, 777 N.Y.S.2d 24 (2004).
On April 18, 2002, approximately three years after the date of his conviction and sentence but while his direct appeal to the Appellate Division was pending, the petitioner made a motion to vacate his judgment of conviction pursuant to Section 440 of New York's Criminal Procedure Law. In an order dated July 23, 2002, the Honorable Frank A. Gulotta, Jr. of the Nassau County Court denied the petitioner's Section 440 motion. On October 2, 2002, the Appellate Division denied leave to appeal the denial of the Section 440 motion.
On November 17, 2004, Charles filed this petition, raising four arguments in support of habeas corpus relief: (1) ineffective assistance of counsel; (2) he was deprived of a fair trial by introduction of evidence of an uncharged crime; (3) his sentence was excessive; (4) the cumulative effect of all of the errors resulted in the denial of a fair trial.
Initially, the Court notes that it is mindful that the petitioner is proceeding pro se and that his submissions should be liberally construed in his favor. See Chang v. United States, 250 F.3d 79, 86, n.2 (2d Cir. 2001).
The Antiterrorism and Effective Death Penalty Act (the "AEDPA") provides that a federal habeas court may grant habeas relief to state prisoners with respect to any claim that was adjudicated on the merits in state court proceedings only if the 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); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005) (discussing the federal habeas review standard set forth in Section 2254). It is well-settled that a state court's findings of fact are entitled to a "presumption of correctness" that the petitioner in question must rebut by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
"A state-court decision is 'contrary' to clearly established federal law within the meaning of § 2254(d)(1) if it is 'diametrically different' from, 'opposite in character or nature' to, or 'mutually opposed' to the relevant Supreme Court precedent." Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000)) (internal quotation marks omitted). A state court decision involves "an unreasonable application" of clearly established Federal law if the state court applies Federal law to the facts of the case in an objectively unreasonable manner. See Brown v. Payton, 544 U.S. 133, 125 S.Ct. 1432, 1439, 161 L.Ed. 2d 334 (2005) (citing Williams, 529 U.S. at 405, 120 S.Ct. 1495); Serrano v. Fischer, 412 F.3d 292, 296 (2d Cir. 2005) (citations omitted). "[I]it is well-established in [this] Circuit that the 'objectively unreasonable' standard of § 2254(d)(1) means that [a] petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Rosa v. McCray, 396 F.3d 210, 219 (2d Cir. 2005) (citing Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003)).
Under the AEDPA, a court does not decide "whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Brown v. Greiner, 409 F.3d 523, 533 (2d Cir. 2005); see also Williams, 529 U.S. at 405, 120 S.Ct. at 1495.
It is well-settled that "federal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed. 2d 606 (1990)). In this regard, the United States Supreme Court opined that "it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed. 2d 385 (1991). On the contrary, "a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68, 112 S.Ct. at 480 (citations omitted).
B. As to the Petitioner's Claims
Considering the petitioner's pro se status and the lack of argument contained in his habeas petition, the Court will consider the petitioner's arguments as they were raised by his appellate counsel in his briefs filed with the Appellate Division on the direct appeal and the papers that he submitted in support if his Section 440 motion.
1. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, the petitioner must demonstrate:
(1) that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that he was prejudiced by his counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984). In applying the above two-prong test, "judicial scrutiny of counsel's performance must be highly deferential" and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. The relevant inquiry focuses "on the fundamental fairness of the proceeding whose results are being challenged." Id. at 696, 104 S.Ct. at 2069. "The court's central concern is not with 'grading counsel's performance' but with discerning 'whether despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.' " United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 696-97, 104 S.Ct. at 2069).
The burden is on the petitioner to "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Indeed, as the Supreme Court has noted, "there are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Id.
With respect to the second prong, the petitioner can only establish prejudice if there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993), abbrogated on other grounds by Massaro v. United States, 538 U.S. 500, 23 S.Ct. 1690, 155 L.Ed. 2d 714 (2003).
At the trial, the petitioner was represented by Alan E. Kudisch, Esq. The petitioner argues that his trial attorney was ineffective for several reasons: (1) he failed to object to "inadmissible and extremely damaging" evidence; (2) he elicited prejudicial testimony from prosecution witnesses; (3) he failed to object to improper remarks at summation; (4) he was generally unprepared at trial; and (5) he failed to advise the petitioner of a plea offer of three to six years.
a. As to the Introduction of Inadmissible Evidence
Adam Cohn testified that after the shooting he first ran to a restaurant. When Cohn left the restaurant, he encountered the petitioner. The petitioner suggested to him that they take a bus, which they rode to "a marine academy." Adam Cohn and the petitioner then rode the bus back to the Great Neck train station.
Q: While you were with [the petitioner] on the bus did you talk about what just happened?
Q: What did you talk about?
A: He said if my brother rats him out, Craig, that he would kill him.
Q: And what do you mean by that?
Q: Did you make a response? Did you say anything back?
A: No. (Tr. at 337-43). The petitioner argues that Adam Cohn's testimony regarding this threat against Craig Cohn constituted inadmissible evidence of an uncharged crime, and that his ...