The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Leonard Whitfield ("Whitfield"), filed a pro se Petition (Docket No. 1) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 7, 2001, asserting the following grounds for relief: (1) "ineffective assistance of counsel "; (2) "fair trial and due process"; and (3) "cruel and unusual punishment, Eighth Amendment violation". See Petition at 5-6 (Docket #1). Respondent answered the petition, arguing that Whitfield's ineffective assistance of counsel claims were unexhausted and that the petition should be dismissed as a mixed petition containing both exhausted and unexhausted claims. Respondent also asserted that those claims, along with Whitfield's other two exhausted claims, were without merit and could be dismissed pursuant to 28 U.S.C. § 2254(b). See Docket No. 7. Whitfield subsequently sought and received an order (Docket No. 12) from this Court*fn1 staying his habeas petition so that he could return to state court to exhaust his claims of ineffective assistance of trial counsel by means of a motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10. After exhausting those claims, Whitfield now has returned to federal court and has filed his amended petition containing the same claims he raised in his original petition. See Docket No. 13-1. The Court accordingly orders that the stay be lifted and will proceed to consider the merits of Whitfield's habeas claims as set forth in his amended petition (Docket No. 13-1).
II. Factual Background and Procedural History
The instant habeas petition stems from Whitfield's conviction, on a theory of accomplice liability, see N.Y. Penal Law § 20.00, on one count of first degree robbery (N.Y. Penal Law § 160.15(2)) and one count of fourth degree conspiracy (N.Y. Penal Law § 105.10(1)). The armed robbery occurred in the early morning hours of June 17, 1998, at Whitfield's place of employment, the Mobile Express Mart in the Town of Waterloo, New York. The robbery was carried out by Aldomond "George" Whitfield ("George") (the driver of the getaway car) and Robert Anthony ("Robert") (the gunman), two of Whitfield's friends. George and Robert subsequently pled guilty and agreed to cooperate with the prosecution in Whitfield's case. Also involved in the planning of the robbery were Whitfield's friends LaRyan Hennigan ("LaRyan") and Ray Hennigan ("Ray") who was George's cousin.
Whitfield, who was represented by assigned counsel from the public defender's office, elected to have a bench trial in Seneca County Court before Judge Dennis F. Bender. On the day trial was set to commence, defense counsel informed Judge Bender that Whitfield had informed him over the weekend that he had "absolutely no confidence" in counsel's ability to represent him and wanted new counsel substituted. 0128-0129.*fn2 Counsel indicated that Whitfield's request arose from their disagreement about Whitfield's desire to waive his right to a jury trial. 0129-30. Counsel nevertheless indicated that he was ready to proceed to trial. When the court asked Whitfield if he had "anything to add" to counsel's request, Whitfield simply replied, "No, Your Honor." 0130. Judge Bender denied the application, noting that it was "too little, too late" and that he had not heard "any particulars which would justify [the] application" which appeared to nothing more than a "stalling tactic" given the lateness of the request (minutes before trial was set to commence). 0130. Defense counsel then requested that the trial judge recuse himself on the basis that he had been involved in the plea allocutions of co-defendants George Whitfield and Robert Anthony. 0131. After hearing argument from defense counsel and the prosecutor, 0131 et seq., Judge Bender denied the recusal motion, 0135-36. Whitfield still elected to proceed with a bench trial.
The prosecutor introduced evidence to show that Whitfield had worked at the Express Mart on the night in question. When he got off his shift at 12:30 a.m., Whitfield had failed to lock the safe or take his bank bag to a bank depository, as he was required to do. T.103-04. Several of his friends, including Robert and George, were seen in the store a short time prior to the robbery; the surveillance videotape captured images of LaRyan and George talking with Whitfieldat about 11:15 p.m. and looking at the safe. See People's Exhibits 23, 28.
After he was done working, Whitfield, along with Robert, George and LaRyan, left the Mobil Express Mart in Whitfield's car. 0422, 0511. George testified that while they were driving, they all discussed the robbery and planned "how everything was going to go down." 0425. Whitfield indicated that he knew that they could get a gun from George's cousin, Ray . 0425. Robert's mother, Catherine McKoy ("McKoy"), testified that Whitfield had talked about robbing his employer "[o]ff and on for weeks" prior to the robbery in front of Robert, George and LaRyan, among others. 0323-24. Whitfield stated, "we should rob this mother fucker" and said that "they could get a lot of money behind [sic] robbing it, thousands." 0324. McKoy also testified that her son, Robert, told her about his involvement in the robbery a couple of days later. She said that Robert was evasive when she asked him if Whitfield had been involved. However, when Whitfield came to her house later that night, and she confronted him about it, he said that "Rob stood to do the most time in it" because his fingerprints were on the gun. 0329. McKoy admitted that she helped secrete the gun at her house and later threw it into a swamp, but eventually told the police about the gun's location when she was questioned.
Whitfield and his friends drove from Waterloo to Ray's mother's house to get the gun and were seen driving past the store about an hour before the robbery by Nancy Munoz, the co-worker who was the victim of the robbery. Whitfield was seen driving the car. 0192-93; 0424. Jomaine Bogan ("Bogan"), a neighbor of Ray Hennigan's and an acquaintance of Whitfield and his friends, saw Whitfield outside the house where the gun was obtained. Bogan overheard a conversation in which LaRyan asked Ray for "the burner" (the gun). Bogan said that Ray "handed the object [a .32-caliber loaded Mauser] to two people" and then stated that he handed it to LaRyan, his brother. Bogan admitted that Whitfield was standing with LaRyan at the time. 0487-88. They then drove to Robert's mother's house and surreptitiously obtained her car keys so that Robert and George could use that car for the robbery. 0430. After Robert and George completed the robbery, all four men met to divvy up the stolen money, which totaled between $800 and $900. 0443-44.
At about 4:00 a.m., Whitfield showed up at the Mobil Mart in the midst of the police investigation of the robbery and talked to the police, his manager, and his co-worker who had been the robbery victim. These individuals testified that Whitfield asked them what had happened, were there any suspects, and how much money had been taken.
About two days later, Whitfield and his cohorts apparently heard that Bogan was talking to Ray about the robbery and speculating that Whitfield and his friends had been involved. 0489-91. (Bogan had witnessed the incident in which Whitfield and LaRyan borrowed the gun from Ray) Bogan, an acquaintance of theirs, testified that Whitfield, LaRyan, George and Robert encountered him at a store in Seneca Falls "[b]ecause they heard that [he] was telling people they robbed the store." 0491.*fn3
Whtfield did not testify at trial or present witnesses. The theory of the defense was that the prosecution's evidence failed to prove that Whitfield had sufficient participation in the planning of the robbery Counsel attacked the credibility of accomplice testimony provided co-defendants George and Robert and argued that the testimony of other witnesses, namely, the store clerk and the store manager, did not link Whitfield to the commission of the crime.
Judge Bender returned a verdict finding Whitfield guilty of the robbery charge and the conspiracy charge; the petit larceny charge in the indictment was dismissed . Whitfield was sentenced to concurrent terms of imprisonment, the longer of which was 11 years to 22 years. The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the conviction. People v. Whitfield, 275 A.D.2d 1034 (App. Div. 4th Dept. 2000). The New York Court of Appeals denied leave to appeal.
This federal habeas petition followed. For the reasons set forth below, Whitfield's request for a writ of habeas corpus is denied.
The filing of Whitfield's petition post-dates the amendment of the federal habeas corpus statute on April 24, 1996, by the enactment of the Anti-terrorism and Effective Death Penalty Act ("AEDPA").AEDPA has "significantly curtailed the power of federal courts to grant the habeas petitions of state prisoners." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 399 (2000). Pursuant to AEDPA, when a state court has adjudicated a habeas petitioner's claims on the merits, habeas relief may not be granted unless the state court's holding was contrary to, or was an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or was based on unreasonable determination of the facts in light of the evidence presented in petitioner's state court proceeding. See 28 U.S.C. § 2254(d)(1), (2); Williams, 529 U.S. at 412-13. In order to grant the writ there must be "some increment of incorrectness beyond error," ...