The opinion of the court was delivered by: Norman A. Mordue Chief, United States District Judge
MEMORANDUM-DECISION AND ORDER
A. State Court Proceedings
The state court records reflect that on December 9, 1999, Dan Murtha was a student at the State University of New York at Albany who lived in the Steinmetz Hall dormitory. See Transcript of Trial of Marlon E. Jones (9/5/00) ("Trial Tr.") at pp. 156-57. At about 2:00 a.m. on December 9th, Murtha heard a knock on the door to his dorm room. Trial Tr. at p. 158. An acquaintance of Murtha, Greg Able, answered the door, Trial Tr. at p. 158, and a large hispanic male and a black male, later identified by Murtha as petitioner, pro se Marlon Jones, entered the room. Trial Tr. at pp. 159-60, 176. Once inside, the men began demanding money and drugs from the occupants. Trial Tr. at p. 163. When the hispanic male pushed Murtha, the two become embroiled in a fight which ended when Jones brandished a 9mm handgun. Trial Tr. at pp. 163-64.
After it became apparent that there were no drugs in the room, Jones placed the gun against Murtha's neck and directed him to call someone and have marijuana brought to the dorm room. Trial Tr. at pp. 165-66. Murtha placed the call, during which he surreptitiously advised the friend whom he had called that Murtha was in trouble. Trial Tr. at pp. 167-68. Shortly thereafter, as Jones was standing in the room, Murtha noticed that Jones had pointed the gun he was holding toward the ground, which action prompted Murtha to lunge at Jones in an effort to wrest the gun away from him. Trial Tr. at pp. 169-71. During that struggle, the bandana that had been obscuring Jones's face since he entered the room came down, exposing his face. Trial Tr. at pp. 173-74.*fn1 The hispanic male then hit Murtha, which enabled Jones to recover the gun. Trial Tr. at pp. 175-76. At about that time, someone knocked on Murtha's door. Trial Tr. at pp. 176-77. The hispanic male opened the door, revealing the presence of approximately one dozen people in the hallway. Trial Tr. at pp. 177-78. Upon seeing those individuals, Jones and his accomplice left the room, and fled the scene by a nearby staircase. Trial Tr. at p. 178.
Later that same day, at about 4:00 p.m., Murtha and another roommate entered the university's cafeteria and Murtha noticed that one of the individuals working in the cafeteria resembled the black male who had robbed him at gun point earlier that morning. Trial Tr. at p. 180. Jones noticed Murtha and eventually called him over to the food service counter. Trial Tr. at pp. 180-81. As Murtha approached Jones, they had a conversation regarding the events that had transpired earlier that day, which ended when Jones informed Murtha that he "shouldn't have been a hero." Trial Tr. at p. 181. Soon thereafter, Murtha left the area and reported the incident to security personnel at the university. Trial Tr. at p. 182. Murtha thereafter spoke with Investigator Wendy Knoebel of the State University of New York ("SUNY") at Albany's police division, and informed her what had transpired that evening. Trial Tr. at pp. 182-83.
During the course of her investigation into the crimes, Investigator Knoebel created a photographic array of potential suspects to be viewed by Murtha in order to ascertain whether he could identify the perpetrator of the crime. See Transcript of Suppression Hearing (5/31/2000) ("Suppression Tr.") at pp. 17, 36-37. The initial photo array shown to Murtha did not contain a picture of Jones, and Murtha did not identify any of the individuals in the array as a perpetrator. See Suppression Tr at pp. 37-38. Approximately five hours later, Investigator Knoebel replaced one of the photographs in the array with a picture of Jones -- whom she then believed might be a suspect in crimes -- and left the remaining photographs undisturbed. When the investigator showed this "second" array to Murtha, he positively identified Jones as the individual who had previously entered Murtha's room in the early morning hours of December 9, 1999. See Suppression Tr at pp. 38-39, 41. Subsequent to that identification, Investigator Knoebel applied for and was granted an arrest warrant relating to Jones.*fn2
On December 12, 1999, Investigator Knoebel arrested Jones. Trial Tr. at pp. 226-28. At the time of his arrest, Jones was carrying a purple book bag. Trial Tr. at p. 227. Investigator Knoebel searched that bag at that time and discovered, inter alia, a 9mm handgun, 59 packets of crack cocaine, a red bandana, and a black hood. Trial Tr. at p. 229. Jones was then transported to the SUNY police station where he was advised of his Miranda rights.*fn3 Trial Tr. at p. 242. After he acknowledged those rights and agreed to speak to law enforcement agents without an attorney being present, Jones spoke with the police and eventually provided them with a written statement in which he admitted that he had been in possession of the handgun at the time of his arrest, Trial Tr. at p. 246, however he did not implicate himself in the crime that occurred at Murtha's dormitory room. Trial Tr. at pp. 246-47.*fn4
As a result of the foregoing, on January 28, 2000, an Albany County grand jury returned a five count indictment against Jones. See Indictment (reproduced in Appellant's Appendix on Appeal ("App.") at pp. A2- 6). In that accusatory instrument, Jones was charged with: first degree robbery (Count One); robbery in the second degree (Count Two); criminal possession of a weapon in the second degree (Count Three); third degree criminal possession of a controlled substance (Count Four); and criminal possession of a controlled substance in the fourth degree (Count Five).
A pretrial suppression hearing was held before County Court Judge Thomas A. Breslin on May 31, 2000. At the conclusion of that proceeding, Judge Breslin denied Jones' motion to preclude Murtha from making an in-court identification of Jones, and also denied Jones' motion to suppress the items seized from Jones at the time of his arrest. See App. at pp. A38-42. Judge Breslin also denied Jones' motion for severance of the robbery charges from the weapon and drug possession charges. See App. at p. A58.
Beginning on September 5, 2000, a jury trial was held regarding the foregoing charges in Albany County Court with Judge Breslin presiding. See Trial Tr. At the conclusion of that proceeding, the jury acquitted Jones of both robbery charges, but convicted him of criminal possession of a weapon in the second degree, in violation of N.Y. Penal Law § 265.03(2); criminal possession of a controlled substance in the third degree, in violation of N.Y. Penal Law § 220.16(1); and criminal possession of a controlled substance in the fourth degree, in violation of N.Y. Penal Law § 220.09(1). See Trial Tr. at pp. 477-80.
On November 17, 2000, Jones appeared before Albany County Court Judge Dan Lamont for sentencing on the above convictions. At that proceeding, the court initially considered Jones' motion to set aside the verdict which he filed pursuant to Section 330.30(1) of New York's Criminal Procedure Law ("CPL"). See Transcript of Sentencing (11/17/00) ("Sentencing Tr.") at p. 5. After denying that application, id. at p. 6, and finding that Jones was a second felony offender, id. at pp. 6-7, Judge Breslin sentenced Jones to a determinate term of fourteen years imprisonment on the weapons possession conviction, and indeterminate terms of five to ten years imprisonment on each of the two drug convictions, with those sentences to be served concurrent to each other but consecutive to the term of imprisonment imposed on Jones relating to the weapons possession conviction. See Sentencing Tr. at pp. 13-15. Judge Breslin further ordered that those sentences were to be served consecutive to any undischarged term of imprisonment that Jones was still required to serve that related to his prior criminal conviction. Sentencing Tr. at pp. 15-16.
Petitioner appealed the foregoing to the New York State Supreme Court Appellate Division, Third Department. On January 2, 2003, that court unanimously affirmed Jones' convictions and sentences. See People v. Jones, 301 AD.2d 678 (3d Dep't 2003). Jones' application for leave to appeal that decision to the New York Court of Appeals was denied by that court on February 27, 2003. People v. Jones, 99 N.Y.2d 616 (2003).
The records also reflect that in May, 2001, while his appeal was pending, Jones filed a motion to vacate his judgment of conviction pursuant to CPL § 440.10 ("May, 2001 CPL Motion"). That application was opposed by the Albany County district attorney, and in a Decision/Order dated July 9, 2001, Judge Lamont denied that application.
On August 31, 2005, Jones filed an application seeking a writ of error coram nobis in which he alleged that he received the ineffective assistance of appellate counsel. That application was denied by the Appellate Division in a decision dated November 15, 2005, and New York's Court of Appeals denied Jones' application for leave to appeal that decision in its order filed February 6, 2006. See People v. Jones, 6 N.Y.3d 814 (2006).*fn5
On April 9, 2004, Jones filed a pro se petition in this District seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. No. 1. By order filed May 12, 2004, this Court directed Jones to file an amended pleading if he wished to proceed with this action, see Dkt. No. 2, and on May 28, 2004, Jones filed that amended petition. See Dkt. No. 3.*fn6 This Court reviewed Jones' amended petition and thereafter directed the respondent to file his response to that submission. See Dkt. No. 5.
On November 9, 2004, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to Jones' amended petition. See Dkt. No. 10.
On February 4, 2005, Jones filed a motion that requested that this Court stay this matter while he pursued his coram nobis application in the state courts. Dkt. No. 14. This Court granted that request on July 14, 2005, Dkt. No. 17, and, after that challenge was denied by the Appellate Division, Jones requested that the stay herein be lifted and that he be permitted to file a second amended petition in this action. See Dkt. No. 24. On October 30, 2006, Magistrate Judge David R. Homer granted Jones' application to lift the stay and also granted Jones' motion to amend. See Dkt. No. 33. On October 30, 2006, Jones filed a second amended pleading in this action. See Dkt. No. 34 ("Am. Pet.").
In his amended petition, Jones argues that: i) his trial counsel rendered ineffective assistance when he failed to obtain a ruling on Jones' application which argued that the arrest warrant was obtained as a result of an unduly suggestive photo array utilized by law enforcement agents; ii) appellate counsel was ineffective because he failed to argue that Jones' trial counsel rendered ineffective assistance; and iii) the County Court improperly imposed consecutive sentences on Jones. See Am. Pet., Grounds One through Three. In the supporting memorandum of law he filed in support of that amended pleading, in addition to reasserting these three claims, Jones also claims, in the portion of that memorandum which he has labeled as "Ground One," that he was denied the opportunity to adequately litigate his Fourth Amendment claim in the state courts below. See Dkt. No. 41 ("Supporting Mem.") at pp. 17-19.*fn7
On November 15, 2006, respondent filed a memorandum of law in opposition to Jones' amended pleading in which he argues that Jones' request for federal habeas intervention must be denied. See Dkt. No. 35 ("Resp. Mem."). Petitioner thereafter submitted a "traverse" in further support of his amended habeas application. See Dkt. No. 38.
The April, 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("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."
Id. at 73 (quoting 28 U.S.C. § 2254(d));*fn8 see also DeBerry 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. [Taylor, 529 U.S.] 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); see also Williams 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; see also Sellan 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 ...