The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Terrance Rayford ("Rayford" or "petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c).
Rayford is currently incarcerated as a result of his conviction on September 30, 1999, on various drug charges, for which he received an indeterminate sentence of 5 to 10 years after being adjudicated as a second felony offender.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On September 3, 1998, Officer Andrew Santell ("Santell") of the Rochester Police Department was assigned to attempt an undercover purchase of cocaine from an apartment building located at 247 Meigs Street. At about 1:16 a.m., Santell, wearing a body wire and dressed in street clothes, approached 247 Meigs Street, opened the outer door of the house, and knocked on the second, inner door. T.186-87, 189-91.*fn1 This door contained a glass pane through which Santell could see but not clearly. Moments later, a black male, later identified as Rayford, stepped into the area where Santell was standing. Santell testified that they were about two to three feet away from each other. Santell was able to clearly see the man because the light from the streetlamp across the street from the house and the light that was on inside the vestibule behind the inner door. Santell, who had experience conducting buy-and-bust drug transactions, testified that he concentrated on the man's face during the encounter, which took about a minute and a half. T.195-96.
When Rayford appeared, Santell asked for two "dime bags" (i.e., ten-dollar bags of cocaine). Rayford walked back through the inner door and closed it; Santell observed him walk about five to ten feet away from the door, bend down, and then return to the inner door. Rayford opened the inner door and handed Santell two dime bags of a white, powdery substance later determined to be cocaine, for which Santell paid in pre-recorded buy money. T.193-94. Santell took the bags and walked away, broadcasting a description of the man who had sold him the drugs--a six-foot-tall black male wearing a green shirt and black nylon pants. T.195-96.
As the "take-down" team of police officers approached 247 Meigs Street, Rayford ran back inside the locked inner door and disappeared up the stairs. E.g., T.195, 264-66. While the other officers engaged in a foot-chase with the suspect, Santell returned to the house and found a cache of drugs and money (including the buy money) hidden under the carpet in the hallway.
T.200, 201. When the officers returned, unsuccessful in their attempt to find the suspect, they knocked on the door of apartment number one, located just next to the inside door of the building. Upon entering, they found a letter in the apartment addressed to Rayford. T.267-68. An individual named John Maslyn testified for the prosecution that he knew Rayford personally and that Rayford lived in the first apartment at 247 Meigs Street.
Santell was shown a photographic array shortly after the drug buy which contained a photograph of Rayford. T.239-40. However, he was unable to identify the person who had sold him the cocaine at 247 Meigs Street in the photographic array. T.240-41, 255-56. At the time he was shown the array, Santell said that he "couldn't pick anyone out with 100 percent certainty" and that was why he did not identify anyone. T.255-56.
On November 12, 1998, after viewing a corporeal line-up, Santell identified Rayford as the person who had sold him the drugs T.209-11.*fn2 Santell admitted that Rayford was the only individual who was in both the photographic array and the line-up. T.241. The prosecution played an audiotaped recording of the transaction that was alleged to have occurred between Santell and Rayford regarding the cocaine. Santell testified that he recognized his voice on the tape, and identified the other voice as Rayford's.
The jury returned a verdict finding Rayford guilty as charged in the indictment. He was sentenced to an indeterminate term of incarceration of 5 to 10 years. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the judgment of conviction entered in Monroe County Court against Rayford. The New York Court of Appeals denied leave to appeal. Rayford filed a C.P.L. § 440.10 motion for vacatur in 2001 in Monroe County Court; this was denied and leave to appeal to the Appellate Division also was denied.
In his original habeas petition filed on November 15, 2002, Rayford raised the following three claims which had been raised by his appellate counsel on direct appeal: (1) the verdict was against the weight of the evidence; (2) the line-up identification procedure was unduly suggestive; and (3) the sentence was harsh and excessive. See Petition (Docket No. 1). After respondent answered the petition, on May 13, 2004, Rayford sought and ultimately received from the Court (Scott, M.J.) a stay of the proceedings pursuant to Zarvela v. Artuz so that he could return to state court to exhaust two claims of ineffective assistance of trial counsel relating to counsel's failure to introduce certain medical records of the petitioner and failed to conduct an audibility hearing and retain a voice analysis expert with regard to a tape-recorded conversation between petitioner and the police officer from whom he was alleged to have purchased the drugs. Magistrate Judge Scott's stay Order contained two conditions--that Rayford commence exhaustion proceedings in state court within 30 days of the Order dated September 24, 2004, granting the stay, and that Rayford return to this Court within 30 days of those proceedings being completed.*fn3
At the beginning of March 2008, this Court issued an Order Show to Cause requesting that Rayford provide a status update information as to whether he had completed the exhaustion process. Although Rayford timely responded to orders from the Court, the information he provided makes clear that Rayford has failed to meet the second condition of the stay, which required him to, sua sponte, notify the Court that he had completed the exhaustion process. It turns out that the Appellate Division denied leave to appeal in March 2006--meaning that the exhaustion process has been complete for two years, and yet Rayford did not notify the Court of this fact in a timely manner, as he was required to do pursuant to the stay order. Rayford has been on notice since the issuance of the stay order in 2004 that his failure to comply with either of the two conditions ...