The opinion of the court was delivered by: John Gleeson, District Judge
FOR ONLINE PUBLICATION ONLY
Damon Warren, a prisoner incarcerated in the Green Haven Correctional Facility pursuant to a judgment of the New York State Supreme Court, Kings County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Warren challenges his conviction following a jury trial of one count of assault in the first degree, two counts of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. He seeks habeas relief on the nine grounds discussed below. For the reasons set forth below, the petition is denied.
The government's evidence at trial established that shortly before 2:00 AM on October 20, 2001, Warren, accompanied by an unnamed individual, repeatedly shot at the abdomen and lower back of the unarmed Jocelyn Pierre.
About an hour before the shooting, Brooklyn resident Greta Mack had looked out the window of her apartment and saw that her van was parked too far from the curb. She noticed two individuals standing near her car. One was the petitioner Damon Warren, known to Mack as "Bones." Mack had known Warren for ten years, and had attended bible classes with Warren's mother.
Mack went outside to move the car, but once she got into it, she decided to go to the store to get some beer, even though she already had had a couple of drinks. She went back inside to get her pocketbook. As Mack was leaving the building to return to her car, her son, John Mack, and his friends, Romain Abelson and Jocelyn Pierre saw her leaving and decided to join her.
As Mack was driving her van away from its parking space, she accidentally struck the parked car behind her, and its car alarm went off. Warren started to walk toward the van. Abelson, Pierre, Greta Mack and John Mack all exited the van. Sensing imminent danger, John urged his mother to return to her apartment, but to no avail. Greta Mack saw Warren shoot at Pierre. Greta and John Mack began to run away by the third shot. Warren started firing at them, but they were able to escape unharmed. When Pierre's friends came to his aid, Warren fired at them as well. As a result of Warren's acts, Pierre was permanently paralyzed.
Soon after the shooting, Police Officers Acomata and Hong arrived at the scene, where Hong recovered five spent shell casings from the ground near Pierre. Pierre was taken to Kings County Hospital. Detective Janet Davidson, the lead investigator, spoke with Pierre, Greta Mack, John Mack and Abelson. Davidson learned from them that Warren was the shooter and that he could be found at the home of his girlfriend, Lauren Valentin.*fn1 About two months later, other detectives from the precinct spotted Warren with a gun and called out his name, prompting Warren to flee into Valentin's apartment building. The detectives followed him, but were unaware that Warren's girlfriend lived in the building and were unable to find him. A few days later, Detective Davidson, accompanied by two other officers, went to Valentin's apartment. Valentin let them into her apartment, and called out for Warren to come out. He stepped out of a rear bedroom, at which point the officers arrested him. Warren was unarmed.
The detectives brought Warren to the precinct and advised him of his Miranda rights. Warren affirmatively acknowledged an understanding of his rights, but did not respond to Davidson when she said "Now that I have advised you of your rights, are you willing to answer questions?" Trial Tr. 308-314, 330. Davidson described why he had been arrested. Warren then denied committing any wrongdoing and said that he knew who shot Pierre, but could not divulge the information. The detectives returned to Valentin's apartment, and Valentin's mother Angela Irizarry consented to a search of the apartment, which yielded a loaded .22 Browning Buckmark caliber semi-automatic pistol from the hamper in the room where Warren had been arrested earlier. Back at the precinct, Warren later admitted that the gun was his, but claimed that he had gotten it from a cousin two to three days after the shooting of Pierre. Warren told Davidson that he know who shot Pierre, and that person looked like Warren, but he could not reveal the shooter's identity out of fear for his family's safety.
Detective Mark Basoa, an expert in firearms operability and microscopic comparisons, examined the .22 caliber Browning Buckmark semi-automatic pistol and the five shell casings recovered at the scene, and concluded that the shell casings were fired from that weapon.
B. The Procedural History
1. The Trial Court Proceedings
Warren was charged in an indictment with one count of attempted murder in the second degree, one count of assault in the first degree, two counts of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree. On November 15, 2002, the jury found Warren guilty of first-degree assault, both counts of second degree criminal possession of a weapon and third degree criminal possession of a weapon. The jury deadlocked on the attempted murder count and the trial court dismissed it on consent. Warren was sentenced as a second felony offender to concurrent prison terms of twenty-five years on the assault count, fifteen years for each second-degree weapon possession count, and three and one-half to seven years for the third-degree weapon possession count.
On appeal to the Appellate Division, Second Department, Warren argued that certain comments in the prosecution's opening statement and summation deprived him of a fair trial. In a pro se supplemental brief, Warren argued that (1) he was arrested without probable cause; (2) he was arrested in his girlfriend's apartment without a warrant and the apartment was illegally searched; (3) the police detective who interrogated him violated his Miranda rights; and (4) the government knowingly presented the perjured testimony of a police detective during a pretrial suppression hearing. On November 29, 2004, the Appellate Division affirmed the convictions, holding that his challenges to the prosecutor's remarks were "largely unpreserved for appellate review" and were in any case meritless because the remarks were either fair comment on the evidence, responsive to defense counsel's summation, or harmless error. People v. Warren, 785 N.Y.S.2d 498, 499 (2d Dep't 2004). The court then found that Warren's arrest was based on probable cause, that the hearing court had properly determined that Warren's pretrial statements to the police were voluntarily made after Warren had knowingly and intelligently waived his Miranda rights, and that his remaining contentions were either unpreserved for appellate review or without merit. Id. at 500. Warren sought leave to appeal, and the New York Court of Appeals denied that application on February 25, 2005. People v. Warren, 4 N.Y.3d 804 (2005) (Read, J.).
3. The State Post-Conviction Motions
On October 25, 2004, Warren filed a pro se motion in the New York Supreme Court to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10. Warren raised two claims: (1) the prosecutor failed to present Brady material to the grand jury; and (2) trial counsel was ineffective in failing to use various police reports and other documents in challenging the government's case. On March 1, 2005, the trial court denied Warren's § 440 motion pursuant to N.Y. Crim. Proc. Law § 440.10(2)(c) because both of his claims had appeared on the record and could have been raised on Warren's direct appeal; the court further held that, in any event, the claims were meritless. Warren's application for leave to appeal from the denial of his § 440 motion to the Appellate Division was denied on July 20, 2005.
On August 24, 2005, Warren filed a second pro se motion in the New York Supreme Court to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10. Warren raised the same claim of prosecutorial misconduct that appellate counsel had raised in Warren's main brief to the Appellate Division. On January 6, 2006, the trial court denied Warren's second § 440 motion as procedurally barred under N.Y. Crim. Proc. Law § 440.10(2)(a) because the claim had been previously determined on the merits during Warren's direct appeal. Warren's application for leave to appeal from the denial of his second § 440 motion to the Appellate Division was denied on May 9, 2006.
On July 3, 2006, Warren petitioned the Appellate Division for a writ of error coram nobis. Warren claimed that he had received ineffective assistance of appellate counsel claim, arguing that counsel (1) failed to raise a claim of ineffective assistance of trial counsel on the ground that counsel had failed to argue before the hearing court that Warren had invoked his Miranda rights; (2) failed to file a reply brief addressing a factual misstatement in the government's main brief; (3) failed to raise a claim of ineffective assistance of trial counsel based on the failure to call as witnesses Valentin and Irizarry to establish Warren's standing to contest his warrantless arrest in, and the subsequent search of, Valentin's apartment; (4) improperly raised on direct appeal an unpreserved claim of prosecutorial misconduct; and (5) failed to raise on direct appeal the claims raised by Warren in his first § 440 motion.
On October 17, 2006, the trial court denied Warren's petition for a writ of error coram nobis. People v. Warren, 821 N.Y.S.2d 924 (App. Div. 2006). Warren's application for leave to appeal from the denial of his petition was denied on February 28, 2007. People v. Warren, 8 N.Y.3d 886 (2007).
In the instant petition, dated July 13, 2007, Warren seeks relief on the following grounds: (1) the allegedly improper comments made by the prosecutor in his opening statement and summation deprived Warren of due process; (2) the police lacked probable cause to arrest him; (3) the police arrested him in Valentin's apartment without a warrant in violation of Payton v. New York, 445 U.S. 573 (1980), and he had standing to contest the subsequent search; (4) the state hearing court erred when it declined to suppress his post-arrest statements that were taken in violation of his Miranda rights; (5) the hearing court abused its discretion by crediting the testimony of Detective Davidson and the prosecutor committed misconduct at the hearing by presenting the perjured testimony of Detective Davidson; (6) the prosecutor failed to present exculpatory evidence to the grand jury; (7) his trial attorney rendered ineffective assistance of counsel; (8) duplicative of the first claim, the prosecutor's remarks during opening statement and summation denied him due process of law; and (9) appellate counsel rendered ineffective assistance.
Two of Warren's nine claims are in procedural default because Warren failed to raise them on direct appeal. Warren does not show cause for the default or prejudice resulting therefrom. He also fails to show that a miscarriage of justice would result if I do not review his claims. In any event, these procedurally defaulted claims are without merit. The remaining claims that are not procedurally barred are also without merit, as the rejection of those claims was not contrary to or an unreasonable application of clearly established federal law.