The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
Petitioner Dwan Torres ("Petitioner") brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). Petitioner challenges his 1998 conviction in New York State Supreme Court, New York County, for rape in the first degree, rape in the second degree, and endangering the welfare of a child.
Petitioner asserts nine claims. He argues that: (1) the prosecution's medical expert witness usurped the jury's function (the "Medical Expert Witness Claim"); (2) the prosecutor misused Petitioner's false exculpatory statements (the "Misuse of Statements Claim"); (3) the trial court failed to instruct the jury that the false exculpatory statements could be considered only as evidence of consciousness of guilt (the "Consciousness of Guilt Charge Claim"); (4) testimony about the complainant's pregnancy and abortion, and the admission of fetal evidence were prejudicial (the "Prejudice Claim"); (5) trial counsel rendered ineffective assistance due to his failure to object to the bases of Claims 1-4 (the "Ineffective Assistance I Claim"); (6) the sentence imposed is excessive (the "Excessive Sentence Claim"); (7) the trial court improperly allowed a law enforcement official to communicate his opinion that rapists typically do not admit to the use of force (the "Detective's Testimony Claim");*fn1 (8) trial counsel rendered ineffective assistance due to his failure to object to evidence concerning uncharged crimes (the "Ineffective Assistance II Claim"); and (9) trial counsel rendered ineffective assistance due to his failure to request a missing witness charge (the "Ineffective Assistance III Claim").*fn2
The Court referred this matter to Magistrate Judge Kevin Nathaniel Fox. On December 13, 2007, Magistrate Judge Fox issued a Report and Recommendation (the "Report"), familiarity with which is assumed, recommending that the Court deny the Petition. (D.E. 11.) Petitioner filed timely objections to the Report.*fn3
For the reasons stated below, the Court considers the Petition de novo and DENIES the writ of habeas corpus.
By judgment entered June 2, 1998, Petitioner was convicted, after a jury trial, of (1) Rape in the First Degree, (2) Rape in the Second Degree, and (3) Endangering the Welfare of a Child. The trial court sentenced Petitioner to concurrent terms of (1) twelve and one-half to twenty-five years for his first-degree rape conviction, (2) two and one-third to seven years for his second-degree rape conviction, and (3) one year for his endangering the welfare of a child conviction.
Petitioner timely moved to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. (Resp.'s Decl. Ex. A, D.E. 8.) Petitioner argued that his trial counsel rendered ineffective assistance due to his failure to seek "to preclude the prosecution from introducing evidence of the complainant's pregnancy and abortion," including the admission of fetal evidence, despite "the concession that [Petitioner] had sex with the complainant."*fn5 (Id. ¶ 6.)
On October 15, 2002, the trial court denied Petitioner's CPL § 440.10 motion because (1) it rested on a record-based claim, which could not be raised on collateral review pursuant to CPL § 440.10(2)(b); (2) Petitioner failed to support his claim with an affidavit or other evidence pursuant to CPL § 440.30(4)(d); and (3) "the record as a whole establishes that [trial] counsel's decision not to object to the introduction of fetal evidence or testimony relating to the fact that the victim had an abortion was not a flaw, but rather a viable trial stratagem." (Resp.'s Decl. Ex. C 2-4.)
Petitioner timely sought leave to appeal the trial court's CPL § 440.10 ruling, and also timely filed a direct appeal of the June 2, 1998 judgment. The New York State Appellate Division, First Department (1) granted Petitioner leave to appeal the trial court's CPL § 440.10 ruling, and (2) consolidated this appeal with Petitioner's direct appeal. (Resp.'s Decl. Ex. F.) In this consolidated appeal, Petitioner raised Claims 1-7.*fn6 (See Resp.'s Decl. Ex. G.)
On January 22, 2004, the Appellate Division "unanimously affirmed" the October 15, 2002 ruling on Petitioner's CPL § 440.10 motion and the June 2, 1998 judgment. People v. Torres, 3 A.D.3d 433, 433-34 (N.Y. App. Div. 2004). The Appellate Division denied the Ineffective Assistance I Claim and the Excessive Sentence Claim on the merits.*fn7 Id. at 434. The Appellate Division denied Petitioner's other five claims on procedural grounds.*fn8 Id.
On February 9, 2004, Petitioner applied for leave to appeal to the New York State Court of Appeals. (Resp.'s Decl. Ex. J.) On April 9, 2004, the Court of Appeals denied Petitioner's application. People v. Torres, 811 N.E.2d 46 (N.Y. 2004).
Although the Report thoroughly analyzed the substantive merits of Claims 1-7, it did not consider (1) the implications of the Appellate Division's holding that Claims 1-4 were procedurally barred; (2) the required deference to state court adjudications; (3) the Detective's Testimony Claim as a separate claim; and (4) the Ineffective Assistance II Claim and the Ineffective Assistance III Claim raised in Petitioner's objections. The Court thus reviews the Petition de novo.
A. STANDARD OF REVIEW OF A HABEAS PETITION
The Antiterrorism and Effective Death Penalty Act of 1996 ("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 ...