The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner John Lopez, currently an inmate at Auburn Correctional Facility, brings this petition for habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his constitutional rights. Lopez claims that: (1) that his right to counsel was violated; (2) the trial court violated his due process rights under the Fourteenth Amendment; (3) he was denied effective assistance of counsel under the Sixth and Fourteenth Amendments, and (4) his sentence violated the Eighth Amendment because it was "illegal and extremely harsh and excessive." For the following reasons, the petition is denied.
The charges against petitioner arise from an altercation on May 27, 1999, at 152nd Street and Wales Avenue in the Bronx, that quickly escalated into a fight. Petitioner's brother was punched senseless-- "knocked out" by, "Caballo," a friend of Ruben Turull ("Turull"). An ambulanced was called, and Turull helped petitioner's brother into the ambulance, and told petitioner, who had not witnessed the event, what had happened.
A few days later, on May 31, 1999, Mr. Turull was standing at the same street corner with his three-year-old daughter, Iris Turull, and a friend, Jessica Serrano ("Serrano"). Petitioner drove by with two others, pointed a silver .38 caliber revolver at Turull called out, "I got you now motherfucker," and fired. Iris was shot in the head, and died a few hours later. Serrano was shot in the leg. Others nearby were not hurt.
On April 11, 2001, following a jury trial, petitioner John Lopez was convicted of Murder in the Second Degree (New York Penal Law § 125.25 ), Attempted Murder in the Second Degree (NYPL §§ 110 / 125.25  [a class B felony]), and Assault in the First Degree (NYPL § 120.10  [a class B felony]). The Supreme Court, Bronx County sentenced petitioner to an indeterminate term of imprisonment of 25 years to life, and determinate terms of 15 years, and 25 years, respectively. Petitioner was sentenced to these terms to run consecutively, that is, 65 years to life, as a second violent felony offender under NYPL § 70. 04*fn1
On appeal to the Appellate Division, First Department, petitioner argued two points: 1) His right to counsel under the state and federal constitutions was violated when he made an unequivocal statement expressing his desire for an attorney to the Assistant District Attorney interviewing him ignored said request and continued questioning and 2) Prosecutorial misconduct occurred in the form of inappropriate summation comments designed to arouse the jury's passions (Pet. Br. at 57-58). Petitioner also filed a pro se supplemental brief arguing eight additional claims.
On January 29, 2004, the Appellate Division affirmed petitioner's conviction. The court held that petitioner's request for counsel, mid --interview, was vague, and did not constitute an "unequivocal invocation of his right to counsel." People v. Lopez, 770 N.Y.S.2d 854 (N.Y.App. Div. 1st Dept. 2004). The Appellate Division held also that petitioner's trial was fair, that he had received sufficient assistance of counsel, and that there was no legal basis for reducing his sentence. Id.
Petitioner then moved pursuant to N.Y. Crim. Proc. Law §§ 440.10 and 440.20 to vacate his judgment of conviction and to set aside his sentence similar grounds. The Supreme Court, Bronx County denied this application on December 21, 2006. Aff. In Opp'n, Ex. 15.
Petitioner now petitions this court for a writ of habeas corpus claiming that: (1) his right to counsel was violated; (2) the trial court committed errors that denied him his right to a fair trial; (3) he received ineffective assistance of counsel, and (4) petitioner's sentence was "illegal and extremely harsh and excessive."
Persons in state custody resulting from a conviction in state court may petition for federal habeas corpus relief on the ground that their custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The application cannot be granted unless the petitioner has exhausted all available state court remedies, or the state remedies are absent or ineffective. 28 U.S.C. § 2254(b)(1). The court may deny a petition on the merits regardless of whether state remedies have been exhausted. 28 U.S.C. §2254(b)(2). The court cannot grant the writ where the state court adjudicated the claim on the merits unless that adjudication "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 "resulted in a decision that was based on an unreasonable interpretation of the facts in light of the evidence presented in the ...