The opinion of the court was delivered by: Randolph F. Treece U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER*fn1
Pro se Petitioner Malcolm Stallworth was convicted of criminal possession of a controlled substance in the third and fifth degrees by a jury in New York State Supreme Court, Onondaga County. State Ct. R. on Appeal (hereinafter "R."), Trial Tr., dated Apr. 8-11, 2002 (hereinafter "Trial Tr."), at 595-96. On May 3, 2002, he was sentenced to indeterminate concurrent terms of imprisonment of eight and one-third (8 a) to twenty-five (25) years for the third degree conviction, and two and one-third (2 a) to seven (7) years for the fifth degree conviction. R., Sentencing Tr., dated May 3, 2002, at 9 (hereinafter "Sentencing Tr."). Petitioner presently seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging that (1) the evidence at trial was insufficient and the verdict was against the weight of the evidence; (2) ineffective assistance of counsel; and (3) an unduly harsh and excessive sentence was imposed. Dkt. No. 1, Pet at ¶¶ 12-13. For the reasons that follow, the Petition is DENIED.
The following facts were adduced at trial. On August 8, 2001, John Pilger purchased a couple hundred dollar's worth of cocaine from Brittany West. Trial Tr. at 310-12. Later that night, Pilger picked up West and another woman and drove them to the Knights Inn, where they used the drugs. Id. The next morning, West told Pilger to rent another room because her dealer, Dooley, was coming. Id. at 314. Pilger went to the ATM machine for cash, rented a second room, and gave the room-key to West. Id. at 314-15. At some point thereafter, Pilger, West, and another woman whom West had picked up earlier that day, got into an argument in the Inn's parking lot. As a result of the commotion, the Inn manager approached Pilger and asked him to leave. Id. at pp. 320-21. When the manager accompanied Pilger back to the room, he saw drug paraphernalia and called the police. Id. at 321.
Deputy Alissa Verzino responded to the call. Id. at 289. Sometime prior to this, Petitioner had arrived at the hotel and was standing outside the second room Pilger had rented. Id. at 279. Verzino spoke to West and Petitioner, who both stated that Petitioner had just then arrived in order to give West a ride. Id. at 295-96. Verzino concluded they had not done anything illegal and allowed the two to leave. Id. at 290-91.
Pilger was arrested, taken to the sheriff's department station, and put in a holding cell. Id. at 324-25. While there, his cell phone rang, displaying a caller identification (ID) number of 395-5119. Id. at 360. Detective Daniel Brogan answered the phone, but the caller, who identified herself as Brittany West, thought she was talking to Pilger. Id. at 360-61. Posing as Pilger, Brogan told West that he needed more drugs. Id. at 361. Brogan also heard a male voice in the background, creating a three-way conversation. Id. at 362. West asked Brogan if he had money and they arranged for Brogan to call back. Id.at 363. When Brogan called back on Pilger's phone, he connected to the voicemail recording, which said: "This is Dooley, leave a message." Id. at 368. Brogan did not leave a message but called back a second time shortly thereafter. Id. at 368. A male voice, identifying himself as "Dooley" answered. Id. at 368-69. In their conversation, Brogan insinuated to Dooley that he desperately needed drugs and had the money to pay for them. Id. at 369. Brogan did not mention the drugs by name for fear that it would make Dooley suspicious. Id. at 399. Dooley passed the phone to West to set up a meeting place and they eventually settled on the Pilot truck stop. Id. at 371-72.
Brogan directed his surveillance team to the Pilot truck stop. Id. at 407. Detective Edward K. Brisson observed Petitioner drive into the parking lot at the truck stop, with West in the passenger seat, and park. Id. at 408 & 410. Brisson approached the vehicle as other members of the team activated their emergency lights and moved their cars so as to foreclose any possible escape. Id. at 409-10. He then asked Petitioner if he knew why he was there, to which Petitioner responded that he did not, but also stated that there were no drugs in the car that he was aware of. Id. at 410. Detective Brogan arrived at the scene after Petitioner and West had been taken into custody. Id. at 375. He searched Petitioner's car and found a cell phone whose number matched the number he had called earlier to set up the sting. Id. at 377.
Thereafter, West admitted she had drugs on her person, and during a strip search at the police station, removed drugs which had been secreted in her vagina. Id. at 446-47. Brisson tested the recovered substance and confirmed it to be cocaine. Id. at 413. Laboratory testing confirmed that 1,410 milligrams of cocaine was recovered. Id. at 463. Later, when filling out the arrest reports, Petitioner informed Brisson that his nickname was Dooley. Id. at 421.
At the end of his jury trial, Petitioner was convicted of criminal possession of a controlled substance in the third and fifth degrees. Id. at 595-96. He filed a New York Criminal Procedure § 330.30(1) motion to set aside the verdict on the grounds that misrepresentations were made during the pre-trial Sandoval*fn2 hearing with respect to two prior convictions that the trial judge deemed admissible on cross examination. R., § 330 Mot. Tr., dated May 3, 2002, at 2 (hereinafter "Mot. Tr."). At the motion hearing, Petitioner showed that the felony convictions the judge found would be admissible on cross-examination had in fact been disposed of as misdemeanors. In addition, Petitioner's attorney stated that although Petitioner had repeatedly informed him of the inaccuracy, he did not believe Petitioner and therefore only objected to the prior convictions on grounds of relevance, not mistake. Id. at 6-7. Petitioner argued that counsel had been ineffective in ignoring his repeated assertions of error concerning the prior convictions and in overriding his desire to testify as a result. Id. at 18. The court rejected his arguments and denied the motion. Id. at 19-20.
Thereafter, Petitioner was sentenced to indeterminate concurrent terms of imprisonment of eight and one-third (8 a) to twenty-five (25) years on the third degree charge, and two and one-third (2 a) to seven (7) years on the fifth degree charge. Sentencing Tr. at 9. The New York State Supreme Court, Appellate Division, Fourth Department, affirmed the conviction and the New York State Court of Appeals denied leave to appeal. People v. Stallworth, 767 N.Y.S.2d 357 (N.Y. App. Div., 4th Dep't 2003), lv. denied, 808 N.E.2d 369, (N.Y. Ct. App. 2004). Petitioner filed the instant Habeas Petition on October 8, 2004.
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either
1) resulted in a decision that was contrary to, or involved an unreasonable application, of, clearly established Federal law, as determined by the ...