The opinion of the court was delivered by: Neal P. Mccurn Senior United States District Judge
MEMORANDUM-DECISION AND ORDER
A. State Court Proceedings
According to the testimony adduced at trial, in the early evening of May 25, 1997, James Gaston walked to his cousin's house on Merriman Avenue in the City of Syracuse, New York. See Transcript of Trial of Emmanuel T. Johnson (5/4/98) ("Trial Tr.") at 286. Gaston briefly visited with his cousin, Rose Anne Kerce, and others in the home at the time and then began walking on Massena Street in Syracuse. Trial Tr. at 290, 378-79, 438. Moments after he left the house, its occupants heard two gunshots. Trial Tr. at 297, 380, 439. One of the people inside the home immediately looked out the window and observed a person with a stocky build, wearing a dark brown hooded sweatshirt, place something inside his clothing. Trial Tr. at 440-44. Kerce and the others soon left the house and saw Gaston laying on the street in a pool of blood. Trial Tr. at 290, 299, 384, 444-45. Around that same time, a neighbor heard what she believed were firecrackers, and when she looked out the window, she saw a body laying on the ground near Kerce's house and a man running from the scene. Trial Tr. at 343-54.*fn1 Officers from the Syracuse Police Department were soon called to the scene, however when they arrived they determined that the victim had already expired. Trial Tr. at 267, 275, 317. A subsequent autopsy of Gaston established that he had died from a gunshot wound that had lodged in his spine.*fn2 Trial Tr. at 730-732.
The testimony at trial also established that Johnson owned the gun which the prosecution established was the murder weapon. Specifically, a witness at Johnson's trial, Charles Williams, testified that in the spring of 1997, he had purchased a .38 caliber revolver from a "crack addict" who lived on the south side of Syracuse. Trial Tr. at 457. Williams stated that one morning in May, 1997, he gave that gun to Johnson. Trial Tr. at 465-67. As Johnson took the gun, he informed Williams that he needed some money and that he intended to rob some drug dealers.
Trial Tr. at 468-469. At that time, Williams agreed to assist Johnson in the robbery, and the two made plans for Johnson to pick Williams up at his house later that same day. Trial Tr. at 469, 471. When Johnson attempted to pick up Williams that evening, however, he decided not to accompany Johnson. Trial Tr. at 471. Johnson then left Williams' house. Id.
The following day, Williams learned that a man had been murdered the previous night in the area where Johnson indicated he had planned on committing the robbery. Trial Tr. at 472-73. When Williams asked Johnson later that day whether he was involved in the homicide, he admitted that on the night Gaston was killed, Johnson had approached a black man from behind, placed a .38 revolver to his head, and directed the victim to surrender his money. Trial Tr. at 477-78. Williams further testified that Johnson admitted that he fired his gun but missed the man, but that when the man attempted to wrest the gun from Johnson, he fired the gun a second time, shooting him.*fn3 Trial Tr. at 478. Johnson also admitted that he wiped the gun clean of his fingerprints and removed the remaining bullets from the gun's chamber. Trial Tr. at 479-80.
The records also reflect that at approximately 2:00 a.m. on May 31, 1997, officers from the Syracuse Police Department responded to a call of a "suspicious person" on South McBride Street in Syracuse. Trial Tr. at 504-07, 557-60, 595-96. Upon arriving at that location, law enforcement agents observed a black male near the side of the house who began running when the officers looked in his direction. Trial Tr. at 508-09, 561. Officers James LoCastro and John Hamblin then began pursuing the man. Trial Tr. at 509-10. As Officer LoCastro drew near the suspect, the officer observed the individual reach into his waist and remove a black revolver. Trial Tr. at 510, 513. The chase continued until the man jumped over a fence and Officer LoCastro lost sight of him. Trial Tr. at 511. Other officers, however, had been advised of the chase and as a result the man, who was subsequently identified at trial as petitioner, pro se Emmanuel T. Johnson, was eventually apprehended on South McBride Street. Trial Tr. at 512, 569, 600. At the time he was caught, Johnson, who was wearing a brown hooded sweatshirt, was no longer in possession of a revolver. Trial Tr. at 510, 570. The police, however, soon located a .38 caliber revolver in the area near where Johnson had been apprehended. Trial Tr. at 514-15. Subsequent ballistics testing of that revolver established that the bullet that killed the victim had been fired from that weapon. Trial Tr. at 667-668, 672, 783.
As a result of the foregoing, an Onondaga County Grand Jury returned a multi-count indictment against Johnson. See Indictment No. 97-0984-1 ("Indictment"). In that accusatory instrument, Johnson was charged with two counts of murder in the second degree, contrary to New York Penal Law ("Penal Law") §§ 125.25(1) and 125.25(3), respectively; attempted robbery in the first degree, in violation of Penal Law §§ 110.00 and 160.15(2); second degree criminal possession of a weapon, in violation of Penal Law § 265.03; and criminal possession of a weapon in the third degree, contrary to Penal Law § 265.02(4). See Indictment.*fn4
Johnson's jury trial on those charges commenced in Onondaga County Court on May 4, 1998 with County Court Judge William J. Burke presiding. At the conclusion of that trial, the jury convicted Johnson of all charges. Trial Tr. at 919-20.
Johnson appeared before Judge Burke for sentencing on June 3, 1998. At that time, he was sentenced by the County Court to concurrent terms of imprisonment of twenty five years to life on each of the two murder convictions, and lesser, concurrent sentences on the attempted robbery and second degree weapons possession convictions. See Transcript of Sentencing of Emmanuel T. Johnson (6/3/98) at 7-8. Judge Burke also sentenced Johnson to a term of three and one-half to seven years imprisonment on the third degree criminal possession of a weapon conviction, with that sentence to run consecutive to the other sentences imposed on Johnson. Sentencing Tr. at 7-8.
Petitioner appealed the judgment of conviction to the New York State Supreme Court Appellate Division, Fourth Department. In counsel's appellate brief filed on Johnson's behalf, counsel argued that: i) Judge Burke improperly discharged a sworn juror during the course of Johnson's trial; ii) the County Court erred in sentencing Johnson to a consecutive sentence on the third degree criminal possession of a weapon conviction; and iii) Judge Burke committed error when he failed to inspect the Grand Jury minutes. See Appellate Brief on Appeal (3/18/99) ("App. Br."). That appeal was opposed by the Onondaga County district attorney, and in its Memorandum and Order dated October 1, 1999, the Appellate Division affirmed Johnson's convictions and sentences. People v. Johnson, 265 A.D.2d 858, (4th Dept. 1999). Johnson's application for leave to appeal that decision was denied by the New York Court of Appeals on January 10, 2000. People v. Johnson, 94 N.Y.2d 881 (2000).
On March 17, 1999, Johnson filed his initial motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL"), § 440.10 ("March, 1999 CPL Motion"). In that application, Johnson argued that: i) the doctrine of collateral estoppel barred relitigation of the charges brought against Johnson in Count Five of the Indictment; and 2) the wrongful inclusion of that charge in the Indictment fatally impaired the integrity of the criminal proceedings below. See Dkt. No. 31, Exh. 7. That motion was opposed by the Onondaga County District Attorney, Dkt. No. 31, Exh. 8, and in his Decision and Order dated April 7, 1999, Judge Burke denied that application. See Dkt. No. 31, Exh. 9 ("April, 1999 Order").
On February 27, 2000, petitioner filed a second motion to vacate his conviction pursuant to CPL § 440.10. Dkt. No. 31, Exh. 10 ("February, 2000 CPL Motion"). In that application, Johnson alleged that he was denied the effective assistance of trial counsel because counsel failed to: i) object to the County Court's decisions which discharged one juror and permitted another sworn juror to remain on the panel; ii) object to the prosecutor's summation; and iii) request a charge which instructed the jury that Williams was an accomplice as a matter of law. See Dkt. No. 31, Exh. 10. That application was opposed by the District Attorney, see Dkt. No. 31, Exh. 11, and presiding Onondaga County Court Judge Anthony Aloi thereafter denied Johnson's motion in his Decision and Order dated July 17, 2000. See Dkt. No. 31, Exh.12 ("July, 2000 Order").
On March 9, 2000, Johnson filed a petition for writ of error coramnobiswith the Fourth Department in which he claimed, inter alia, that he was denied the effective assistance of appellate counsel. See Dkt. No. 31, Exh.16 ("Coram Nobis Application"). Specifically, he claimed that his appellate attorney:
i) discouraged Johnson from filing a pro se appellate brief;
ii) failed to argue that trial counsel was ineffective; and
iii) failed to claim that the prosecution improperly bolstered one of its witnesses in its summation. See Coram Nobis Application. The Appellate Division denied Johnson's writ on June 16, 2000. People v. Johnson, 273 A.D.2d 950 (4th Dept. 2000).
On or about June 13, 2001, Johnson filed a third CPL motion to vacate his conviction in Onondaga County Court. See Dkt. No. 31, Exh.17 ("June, 2001 CPL Motion"). In that challenge to his conviction, Johnson argued that the prosecutor wrongfully tried Johnson because the fifth count in the Indictment was improperly included in that accusatory instrument. That application was opposed by the District Attorney, and in his Decision and Order dated September 27, 2001, Judge Aloi denied that collateral challenge. See Dkt. No. 31, Exh. 20 ("September, 2001 Order").
Johnson filed a writ of habeas corpus in this District on October 28, 2002. Dkt. No. 1. United States District Judge Thomas J. McAvoy thereafter directed Johnson to file an amended petition if he wished to proceed with this action, Dkt. No. 3, and on November 21, 2002, Johnson filed that pleading. Dkt. No. 5. In his Decision and Order filed December 5, 2002, Judge McAvoy dismissed this action because the documents before the Court suggested that Johnson's action was time-barred in light of the one year statute of limitations imposed on federal habeas petitions under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). See Dkt. No. 7. Johnson appealed that order to the Second Circuit, Dkt. No. 13, however he subsequently withdrew that appeal, Dkt. No. 15, and filed another amended petition in this action. See Dkt. No. 17 ("Am. Pet."). In that amended pleading, Johnson asserts several grounds in support of his request for federal habeas intervention. Specifically, he argues that: i) he received the ineffective assistance of trial counsel; ii) a juror committed misconduct during the course of Johnson's criminal trial; iii) the trial court abused its discretion in declining to provide the jury with a requested instruction; iv) the prosecutor committed misconduct in the related criminal matter; v) the doctrine of collateral estoppel barred his prosecution on the fifth count in the Indictment; vi) he received the ineffective assistance of appellate counsel; and vii) the sentence imposed on him by the County Court is illegal. See Am. Pet., Grounds One through Seven.
Judge McAvoy reviewed Johnson's amended petition, vacated his prior order dismissing this action as time-barred, and thereafter directed the Office of the Attorney General for the State of New York to file a response to Johnson's amended petition. Dkt. No. 18.*fn5 On October 20, 2003, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer in opposition to Johnson's amended habeas application. Dkt. No. 31. Respondent also filed a memorandum of law in which he requests dismissal of the petition. Dkt. No. 32 ("Resp. Mem."). In opposing Johnson's amended petition, the respondent argues that Johnson is procedurally barred from asserting several of the claims raised therein, and that none of his claims have merit. See Resp. Mem. Petitioner thereafter filed a traverse in further support of his amended petition, Dkt. No. 35 ("Traverse"), and on January 5, 2006, this matter was reassigned to the undersigned for disposition pursuant to the order of then-Chief Judge Frederick J. Scullin, Jr. See Dkt. No. 39.
A. Ineffective Assistance of Appellate Counsel*fn6
i. Applicable Standard of Review
The enactment of the AEDPA brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) that: a federal court may award habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication resulted in an outcome that: (1) 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) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Rodriguez, 439 F.3d at 73 (quoting 28 U.S.C. § 2254(d));*fn7 seealsoDeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). In providing guidance concerning application of this test, the Second Circuit has recently noted that:
[A] state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [Williams v. Taylor, 529 U.S. 362,] at 405-06 ; Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001).... [A] state court's decision is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts" of the case before it. Williams, 529 U.S. at 413.
Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007); seealsoWilliams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
Significantly, a federal court engaged in habeas review is not charged with determining whether the state court's determination was merely incorrect or erroneous, but instead whether such determination was "objectively unreasonable." Williams, 529 U.S. at 409; seealsoSellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). Objectively unreasonable in this context has been interpreted as meaning that "'some increment of incorrectness beyond error is required'" for the habeas court to properly grant the habeas application. Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quoting Francis S., 221 F.3d at 111).
ii. Clearly Established Supreme Court Precedent
The Sixth Amendment to the United States Constitution provides that: "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const., Amend. VI. To establish a violation of this guarantee of the effective assistance of counsel, a habeas petitioner must show both: i) that counsel's representation fell below an objective standard of reasonableness, measured in the light of the prevailing professional norms; and ii) resulting prejudice, that is, a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-90 (1984); Wiggins v. Smith, 539 U.S. 510, 521 (2003) ("the legal principles that govern claims of ineffective assistance of counsel" were established in Strickland).
Moreover, it is well-settled that the Sixth Amendment's right to the effective assistance of counsel requires that indigents be provided with effective counsel for their first appeal as of right. Douglas v. California, 372 U.S. 353, 358 (1963). Consequently, an individual is entitled to the effective assistance of appellate counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14. (1970). The proper standard for evaluating a claim that appellate counsel was ineffective is the test enunciated in Strickland. SeeSmith v. Robbins, 528 U.S. 259, 287-89 (2000); Penson v. Ohio, 488 U.S. 75, 86-88 (1988).
iii. Contrary To, or Unreasonable Application of, Clearly Established Supreme Court Precedent
In his amended petition, Johnson claims that appellate counsel's performance was deficient because he: 1) only presented three arguments in support of Johnson's appeal, all of which were "weak;" 2) did not assert an ineffective assistance of trial counsel claim; and 3) discouraged Johnson from filing a pro se appellate brief. See Am. Pet., Ground Six. This Court will review these theories seriatim.
1. Adequacy of Appellate Brief
In considering petitioner's claim that his appellate counsel asserted "weak" arguments on appeal, this Court has reviewed the brief filed by such counsel on Johnson's behalf.*fn8 That review has made it apparent to this Court that appellate counsel's strategy was reasonable and sound, and that the claims asserted in his brief were cogently argued. In this regard, the Court notes that although Johnson now argues that counsel's appellate arguments were "significantly weak in merit," see Supporting Mem. at 22, two of the grounds asserted by Johnson in his pro se petition are identical to points that were argued by appellate counsel in support of Johnson's appeal. Compare Am. Pet., Grounds One, Seven with App. Br., Points One, Two. The fact that Johnson has asserted two of the very same claims raised by counsel on appeal in Johnson's amended petition casts significant doubt on his claim that counsel wrongfully asserted those claims on appeal.
Since nothing before the Court suggests that the appellate brief filed by counsel was deficient, petitioner's ineffectiveness claim challenging the quality of counsel's appellate arguments must fail. E.g. Gonzalez v. Duncan, No. 00-CV-2857, 2001 WL 726985, at *6 (E.D.N.Y. June 22, 2001) (denying habeas claim alleging ineffective assistance of appellate counsel where appellate brief reveals sound appellate strategy on part of attorney); Davis v. Keane, No. 99 CV 71, 2001 WL 13288, at *6 (E.D.N.Y. Jan. 4, 2001) (same), aff'd, No. 01-2110, 2002 WL 2009559 (2d Cir. Sept. 3, 2002).
2. Failure to Argue Ineffective Assistance
In support of Johnson's argument that his appellate counsel wrongfully failed to assert an ineffective assistance of trial counsel claim, petitioner asserts four distinct theories which he argues substantiates this claim. See, e.g., Am. Pet., Grounds One, Six. The Court considers each of these theories in turn.
Johnson initially faults his appellate counsel for failing to argue that Johnson's trial counsel did not properly contest the County Court's decision to discharge a juror who had been empaneled for Johnson's trial. Supporting Mem. at 22.
As noted above, Charles Williams, a prosecution witness, testified that Johnson admitted to Williams that petitioner had shot someone during a robbery on the date alleged in the Indictment. Williams also provided testimony that linked Johnson to the weapon used during that crime. The record reflects that the day after Williams' testimony, one of the petit jurors approached the trial court and, in the presence of the prosecutor and defense counsel, that juror informed Judge Burke that the previous evening, the juror was at an arcade when Williams approached the juror and advised him that Williams had not wanted to testify. Trial Tr. at 544. Williams then asked the juror whether he believed Johnson was guilty of the charges. Id. The juror informed Williams that he did not know whether Johnson was guilty because the trial was still in progress, and then walked away from that encounter. Trial Tr. at 545. The juror stated that approximately one hour after that incident, Williams again approached the juror and reiterated his question as to whether the juror believed Johnson was guilty of the charges. Trial Tr. at 545.
After the County Court expressed its belief that the juror could not remain on the panel, defense counsel opined that a mistrial should be declared in light of Williams' interaction with the juror. Trial Tr. at 545-46. The court denied that application, but noted that, "[b]ased upon what [the juror] told me, with the contact that was made to him by Williams, ... [m]y discretion says to me in fairness to both parties that he shouldn't be permitted to be seated here now." Trial Tr. at 549-50.
Petitioner now argues that trial counsel should have requested that the County Court provide a more detailed explanation on the record for its decision to remove the juror, in compliance with CPL § 270.35,*fn9 and that counsel's failure to make such a demand was error.
However, this argument overlooks the fact that it was readily apparent to defense counsel, the prosecutor and the court that the juror's interaction with Williams the previous evening necessitated the juror's removal from the panel. As noted above, defense counsel argued that the fact that Williams had approached the juror warranted the declaration of a mistrial. Trial Tr. at 545-46. Furthermore, trial counsel subsequently noted on the record that because of that juror's interaction with Williams, whom counsel characterized as a "very important witness" for the prosecution, such juror "ha[d] to be removed" from the panel. Trial Tr. at 633-34. ...