The opinion of the court was delivered by: John Gleeson, United States District Judge
Claude Holland, currently incarcerated in Eastern Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his New York Supreme Court conviction of criminal possession of a controlled substance in the first degree. Holland, appearing pro se, alleges violations of his rights under the Sixth and Eighth Amendments of the United States Constitution based primarily on allegedly improper remarks made by the prosecutor at summation. For the reasons stated below, the petition is denied.
The government's evidence at trial established that on October 27, 2001, police executed a search warrant on a Brooklyn apartment and arrested the three people inside --petitioner Claude Holland, his friend Walter Hughley, and Shanaye Hughley, Walter's niece. Holland ran out of the kitchen and upstairs when the police entered, and he was apprehended in a second floor bathroom. The police found chunks of crack cocaine and a fork in the kitchen sink; the faucet was running and the cocaine was wet. They also found a pound and a half of cocaine, bottles of cutting agents, two small electronic scales, and an assortment of baggies in plain view throughout the apartment. In addition, the police recovered approximately $40,000 cached throughout the apartment and discovered $1,400 in Walter Hughley's pocket.
Holland and the Hughleys were tried jointly. Holland did not testify at trial. Shanaye Hughley testified that the apartment belonged to her mother, Anita Lee, and that Shanaye, her uncle Walter, and Holland had only visited the apartment on the date of their arrest to pick up some possessions of Ms. Hughley that her mother was threatening to discard.
During the prosecutor's cross-examination of Shanaye Hughley, Holland's attorney sought a sidebar and protested that supervisors from the district attorney's office were making "inappropriate" facial expressions as Ms. Hughley testified. Tr. at 1439-40. The court gave a general instruction admonishing the audience to refrain from having "obvious reactions to any of the questions or answers being given during this testimony." Tr. at 1441.
During the defense summation, counsel for Shanaye Hughley sought a sidebar, and told the court that members of the district attorney's office were "whispering and saying object, object, object," while defense counsel addressed the jury. Tr. at 1525. The judge said that he "did not observe or hear anything," and that he would watch the audience closely. Tr. at 1527.
At the beginning of her summation, the prosecutor stated that Holland and his co-defendants were "part and parcel" of "a real life drug dealing enterprise." Tr. at 1550. She later repeated this assertion and stated that Anita Lee was also "part of this drug dealing operation." Tr. at 1572. Defense counsel objected and moved for a mistrial. When the court denied the motion, the following exchange occurred:
THE COURT: Motion denied. Do not use the phrase anymore. You have exceptions. (Back in open court.)
MS. PATTON [the prosecutor]: Anita Lee is not a defendant in this case. So let's deal with the three defendants that are on trial in this case. I submit to you that this type of drug dealing enterprise is a valuable commodity.
MR. CASTRO [counsel for Holland]: Objection.
MR. RUSSO [counsel for Shanaye Hughley]: Objection.
THE COURT: I just told you not to use ...