The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
Pro se petitioner Olavi Linares seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction in New York State Supreme Court, Bronx County, for the criminal sale and criminal possession of a controlled substance.
Petitioner asserts eight claims.*fn1 He argues that: (1) the police lacked probable cause to arrest or search him (the "Probable Cause Claim"); (2) the drug evidence produced at his trial was the product of a deficient chain of custody (the "Chain of Custody Claim"); (3) his jury was "hastily empaneled" and his trial counsel did not exercise peremptory challenges in a "meaningful manner" (the "Jury Empaneling Claim"); (4) his jury was prejudiced by the introduction of a photograph into evidence (the "Photograph Claim"); (5) his trial counsel rendered ineffective assistance (the "Ineffective Assistance Claim"); (6) the evidence presented at his trial was legally insufficient to convict (the "Insufficient Evidence Claim"); (7) the trial judge was biased against him (the "Biased Judge Claim"); and (8) he was the victim of prosecutorial vindictiveness (the "Prosecutorial Vindictiveness Claim").
The Court referred this Petition to Magistrate Judge Kevin Nathaniel Fox. On August 20, 2007, Magistrate Judge Fox issued a Report and Recommendation ("Report"), familiarity with which is assumed, recommending that the Court deny the Petition. Petitioner filed timely objections to the Report.*fn2 For the reasons stated below, the Court considers the Petition de novo and DENIES the writ of habeas corpus.
On September 6, 2001, a jury convicted Petitioner of (1) Criminal Sale of a Controlled Substance in the Third Degree; and (2) Criminal Possession of a Controlled Substance in the Seventh Degree. The trial court sentenced Petitioner to concurrent terms of imprisonment of 7 1/2 to 15 years for his sale conviction and one year for his possession conviction. Petitioner timely appealed his conviction to the New York State Appellate Division, First Department, which affirmed his conviction on May 30, 2003. See People v. Linares, 759 N.Y.S.2d 76 (N.Y. App. Div. 2003). On August 22, 2003, the New York State Court of Appeals denied Petitioner's application for leave to appeal. See People v. Linares, 798 N.E.2d 355 (N.Y. 2003).
On direct appeal, Petitioner raised, inter alia, the Insufficient Evidence Claim (Claim 6). Petitioner did not raise Claims 1-5 or 7-8. Petitioner has not pursued state collateral review of his conviction.
Although the Report thoroughly analyzed the substantive merits of Petitioner's claims, it did not consider Petitioner's failure to exhaust state remedies with respect to Claims 1-5 and 7-8. The Court therefore reviews the Petition de novo.*fn4
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that a federal court may hear a petition for habeas corpus "only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
If a claim has been adjudicated on the merits in state court,*fn5 the Court may not grant a habeas petition unless the state court's adjudication of that claim:
(1) resulted in a decision that 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) resulted in a decision that 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). A state court decision is "contrary to" clearly established federal law if it "applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from a [Supreme Court decision] and nevertheless arrives at a [different] result." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" of federal law is not merely an incorrect application, but rather "falls somewhere between 'merely erroneous and unreasonable to ...