The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner David McCrone, appearing pro se, has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is currently in the custody of the New York State Department of Corrections incarcerated at the Eastern Correctional Facility serving two consecutive terms of 10 years each upon conviction of two counts of Robbery in the Second Degree (N.Y. Pen. Law § 160.10) in the Broome County Court. Respondent has answered the petition and Petitioner has filed his traverse.*fn1
Petitioner timely appealed his conviction to the Appellate Division, Third Department, which affirmed on November 18, 2004, and the New York Court of Appeals denied leave to appeal on February 10, 2005. People v. McCrone, 784 N.Y.S.2d 683 (N.Y.A.D. 2004), lv. denied, 828 N.E.2d 92 (Table) (N.Y. 2005). On April 6, 2006, Petitioner filed a motion to vacate the judgment under N.Y. Crim. Proc. Law §§ 440.10/440.20 in the Broome County Court. The Broome County Court denied the motion on September 25, 2006,*fn2 and the Appellate Division, Third Department, denied leave to appeal on December 11, 2006. Petitioner timely filed his petition in this Court on December 18, 2006.*fn3
The evidence upon which he was convicted is described in the decision of the Appellate Division (784 N.Y.S.2d at 684):
Evidence adduced at that trial established that during the evening of April 15, 2001 and the early morning of April 16, 2001, defendant robbed two different Broome County convenience stores after displaying what appeared to be a gun to the store clerks. Although the clerks were themselves unable to positively identify defendant as the perpetrator (he was wearing a hooded sweatshirt to conceal his face), several other witnesses, including two accomplices, identified him as the person depicted in still photographs from video cameras in the stores. Evidence was also adduced that defendant implicated himself in both robberies to fellow inmates after his arrest.
Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state courts was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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); Williams v. Taylor, 529 U.S. 362, 405--406 (2000); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard). In applying this standard, this Court reviews the last reasoned decision by the state court, Jones v. Stinson, 229 F.3d 112, 118 (2d Cir.2000), which in this case was that of the New York Appellate Division, Third Department, affirming his conviction and the Broome County Court in denying his §§ 440.10/440.20 motion. In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
If a federal claim has not been adjudicated on the merits, AEDPA deference is not required. Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003). In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo. DeBerry v. Portuondo, 403 F.3d 57, 67 (2d Cir. 2005). Where there is no reasoned decision of the state court addressing the ground or grounds raised by the Petitioner on the merits and no independent state grounds exist for not addressing those grounds, this court must decide the issues de novo on the record before it. See Spears v. Greiner, 459 F.3d 200, 203-04 (2d Cir. 2006) (applying the Strickland standards).
To the extent that Petitioner alleges errors of state law, they are beyond the purview of this Court in deciding a petition for federal habeas corpus relief. This Court may only address violations of federal law. 28 U.S.C. § 2254(d); Estelle v. McGuire, 502 U.S. 62, 67--68 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law. Today, we reemphasize that it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions.") (citations and internal quotation marks omitted). It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). It is also presumed that the state court knew and correctly applied state law. See Walton v. Arizona, 497 U.S. 639, 653 (1990) overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In his petition before this Court, Petitioner raises four grounds: (1) Denial of equal protection because his court-appointed counsel had accepted a position with the prosecutor's office before trial (conflicted counsel);*fn4 (2) The trial court impermissibly considered Youthful Offender convictions in imposing sentence; (3) Petitioner was denied effective assistance of counsel in that counsel failed to (a) pursue Rodriquez/Wade/Cardona hearings, (b) utilize available defense witnesses, (c) use pretrial statements of certain witnesses for impeachment, (d) object to the use of notebooks by jurors, (e) recall a witness after another witness had testified, (f) move for a mistrial when the prosecution failed to call a listed witness, and (g) request a missing witness charge; (h) use a surveillance video from another robbery that Petitioner had not committed, (i) object to Court's reliance on arrests that were dismissed, and (j) admitted Petitioner's guilt at sentencing; and (4) Actual innocence. Respondent concedes that Petitioner has exhausted his state court remedies with respect to all grounds raised.*fn5
Ground 1: Conflicted Counsel
In disposing of this issue, the Appellate Division held (784 N.Y.S.2d at 684--85):
Defendant initially contends that he was denied the effective assistance of counsel because of a claimed conflict of interest on the part of his trial counsel and counsel's failure to call a particular witness at trial. With respect to the alleged conflict of interest, the record reveals that prior to trial, defense counsel informed County Court that he accepted a position with the District Attorney's office to commence on a date beyond the pendency of defendant's case. Although the court was initially inclined to grant his request to be relieved as counsel and assign a new lawyer, defendant stated on the record that he wanted this particular lawyer to continue to represent him. County Court acceded to defendant's request. Defendant now takes issue with the court's decision, claiming that it failed to make a proper inquiry about this conflict of interest and defendant's waiver thereof. We are unpersuaded.
First, defense counsel's future duties as an Assistant District Attorney did not pose a conflict of interest since defendant's trial was slated to end well in advance of this new employment (cf. People v. Shinkle, 51 N.Y.2d 417, 420, 434 N.Y.S.2d 918, 415 N.E.2d 909  ). Even assuming that defense counsel's future employment did pose a conflict, such conflict did not "operate[ ] on the defense" in this case (People v. Abar, 99 N.Y.2d 406, 409, 757 N.Y.S.2d 219, 786 N.E.2d 1255  ). The record plainly reveals that, despite his future employment with the District Attorney's office, defense counsel actively participated in the trial, competently adduced proof establishing the defense theory of the case (i.e., that defendant was wrongfully accused) and vigorously cross-examined all prosecution witnesses on his or her past inconsistent statements, criminal history and/or motives to testify against defendant. In particular, defense counsel took an aggressive stance against a police investigator and the Assistant District Attorney prosecuting the case (i.e., his future colleague) in suggesting that they threatened one of the accomplices if he did not testify against defendant.
Defense counsel also emphasized to the jury that the two store clerks, who were the only eyewitnesses to the robberies without a criminal record and/or motive to testify against defendant, were unable to positively identify defendant as the perpetrator and, in fact, described the perpetrator as one with a different ethnicity than that of defendant. He relatedly emphasized the lengthy criminal histories of most of the People's witnesses and the benefits they received for testifying. Consistent with the defense theory of the case, defense counsel delivered cogent opening and closing arguments with a "quality over quantity" theme in attacking the People's case against defendant. While the jury ultimately convicted defendant, the verdict was not attributable to any alleged conflict on the part of his defense counsel. Nor does the single claimed omission of failing to call a particular witness warrant a finding that counsel was ineffective, particularly where defense counsel successfully obtained a missing witness charge concerning this very person.
Where a Sixth Amendment right to counsel exists, "there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271 (1981). "[A] defendant has suffered ineffective assistance of counsel in violation of the Sixth Amendment if his attorney has (1) a potential conflict of interest that resulted in prejudice to the defendant, or (2) an actual conflict of interest that adversely affected the attorney's performance." United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994). An actual conflict exists when the interests of counsel and defendant "diverge with respect to a material factual or legal issue or to a course of action." Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993), quoting Cuyler v. Sullivan, 446 U.S. 335, 356 n.3 (1980). It may be fairly said that in this case an actual conflict existed. Assuming that counsel was in fact conflicted, whether potentially or actually, does not carry the day for Petitioner. If the conflict was potential, Petitioner at the very least must show some prejudice he suffered by reason of the conflict. United States v. Matera, 489 F.3d 115, 125 (2d Cir. 2007). If it was actual, prejudice is presumed only if the conflict adversely affected counsel's performance. Strickland v. Washington, 466 U.S. 668, 692 (1984), quoting Cuyler v. Sullivan, 446 U.S. at 350.
The Appellate Division found that, counsel's future employment notwithstanding and counsel's expressed qualms about continued representation, his performance in defending Petitioner was not adversely affected. This finding is amply supported by the record. Based upon the record, this Court cannot say that the decision of the Appellate Division was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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). Nor can this Court find that the state court unreasonably applied the correct legal principle to the facts of the Petitioner's case within the scope of Lockyer--Williams; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable. Petitioner is not entitled to relief on his first ground.
Ground 2: Consideration of Youthful Offender Convictions
Although the issue was raised in his direct appeal, the Appellate Division did not expressly address this issue. However, this Court notes that the appropriateness of using the youthful offender convictions as a factor in imposing a sentence does not run afoul of the Constitution or federal law. See United States v. Jackson, 504 F.3d 250, 251--53 (2d Cir. 2007) (holding that federal courts may consider New York youthful offender convictions as predicate offenses in enhancing federal sentences). Thus, as noted above, as an issue of state law it is beyond the purview of this Court in a federal habeas proceeding. Petitioner is not entitled to relief on his second ground.
Ground 3: Ineffective Assistance of Counsel
To demonstrate ineffective assistance of counsel, Petitioner must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. Petitioner must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. Hill v. Lockhart, 474 U.S. 52, 57 (1985). Strickland and its progeny do not mandate this court act as a "Monday morning quarterback" in reviewing tactical decisions. Indeed, the Supreme Court admonished in Strickland, 466 U.S. at 689 (internal citations and quotation marks omitted):
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the ...