The opinion of the court was delivered by: Denise Cote, District Judge
Vernon Neil brings this timely pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on three counts each of Robbery in the First Degree, Rape in the First Degree, and Sodomy in the First Degree. This case was referred to Magistrate Judge Frank Maas for a report and recommendation ("Report"). The Report was filed on October 8, 2008, and recommends that the writ be denied. Neil has objected to the Report. For the following reasons, the Report is adopted, and the petition is denied.
The facts relevant to Neil's petition are set out in the Report and summarized here, or taken from the trial transcript. Neil was tried in New York Supreme Court, Bronx County. Justice Harold Silverman presided over the jury trial. Before jury selection began, Justice Silverman inquired as to whether Neil wished to exercise his right under People v. Antommarchi, 80 N.Y.2d 247 (1992), to be present during voir dire sidebars with prospective jurors. Neil's counsel initially stated that Neil did wish to be present at such sidebars. In response, Justice Silverman explained that if Neil chose to be present, he would be escorted to the sidebar by three court officers, and that the jury would know "immediately" that Neil was in custody. Neil's counsel then conferred with Neil and informed the court that at this point Neil did not wish to be present at such sidebars. Neil did not attend any voir dire sidebars with prospective jurors.
The evidence at trial established the following. On the morning of April 29, 1995, Neil approached Claudine,*fn1 who was walking along Fordham Road in the Bronx, and proceeded to rob her and rape her at gunpoint. During the rape, Claudine expressed that she had to go to the bathroom. She urinated and defecated on the ground, and then Neil continued the rape. Claudine stated that while being anally raped she "felt this little tingling in [her] anus so [she] knew that he was just about to ejaculate and he withdrew and it spilled all over the floor." At some point during the encounter Neil took Claudine's money, gold earrings, and watch, and he also took her credit card from her purse.
After notifying the police, the police took Claudine back to the lot where she was raped, where they saw Claudine's feces on the ground but did not collect a sample. Claudine was then taken to the hospital. She was asked by hospital staff not to use the bathroom before she was examined in order to preserve potential evidence, but she was unable to fulfill that request. The doctor examining Claudine found, inter alia, vaginal and anal lacerations consistent with forcible penetration. The doctor used a sexual assault kit to collect potential evidence.
That same morning, Neil approached two sisters, Kimberly and Vanessa, who were walking along Grand Concourse in the Bronx, and he proceeded to rob them and rape them at gunpoint. Neil stopped the rape when he saw two men on the roof of a car wash watching them, and wiped himself with a scarf the sisters gave him.
The sisters were taken to a hospital where Dr. Debra Rana conducted examinations, including the preparation of sexual assault evidence kits. Rana found that both sisters had, inter alia, vaginal lacerations. Rana also stated that Vanessa had a substance in her vaginal area that "smelled like semen."
Lynn Ezekial, a chemist employed by the New York City Police Department Crime Laboratory, tested the evidence collected in the three victims' sexual assault kits and the scarf Neil used to wipe himself following the rapes of Kimberly and Vanessa. Ezekial testified as an expert in serology, based upon her position, her prior experience analyzing sexual assault evidence, her membership in forensic associations, and her prior expert testimony. Ezekial stated that none of the evidence she analyzed tested positive for the presence of semen or sperm. She explained that there were several reasons semen or sperm may not be found in such tests of a victim who was forcibly raped, including if the perpetrator was wearing a condom, if the perpetrator did not ejaculate or ejaculated in a different area of the body than where the sample was taken, if the victim had either washed herself or urinated, if the sample was not taken from the vaginal cavity . . . [or] if the sample was taken from the part of the vagina that might not have had the deposit of semen because the semen does not get equally dispersed within the body cavity.
All three victims testified that they had picked Neil out of a lineup as the person who raped them. The three victims also identified Neil in court as the person who raped them.
Neil's defense was that these identifications were mistaken. He called two witnesses whose testimony suggested that it might not have been possible for a single rapist to have been at both crime scenes in the time frame established by the victims' testimony, as well as two alibi witnesses.
The jury returned a verdict of guilty on three counts each of Robbery in the First Degree, Rape in the First Degree, and Sodomy in the First Degree. Neil was sentenced by Justice Silverman on March 18, 1997. At his sentencing, Neil "claim[ed] that he did not realize that his first conviction was not a youthful offender adjudication."*fn2 Justice Silverman found Neil's belief "irrelevant" and found him to be a persistent violent felon under New York Penal Law § 70.08. Neil was sentenced to three consecutive prison terms of 25 years to life.
Neil appealed this conviction to the Appellate Division, First Department. He argued on appeal that: (1) he was coerced into waiving his Antommarchi rights by the trial judge's warning that court officers would escort him to the sidebars and cause the jury to see that he was in custody, and (2) his sentencing by the trial judge as a persistent violent felony offender was unconstitutional pursuant to the principles announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). In a pro se supplemental brief (and addendum to that brief), Neil also argued that (1) he was denied due process of law because (a) the People failed to collect and preserve potentially exculpatory DNA evidence, and (b) that Ezekial was unqualified to testify as an expert to certain matters; and (2) his trial counsel was constitutionally ineffective in failing to (a) investigate why DNA testing and fingerprint analysis was not done, (b) call an expert witness to rebut the People's experts, (c) adequately cross-examine the People's witnesses, and (d) object to certain testimony.
The Appellate Division affirmed the conviction in June 2006. People v. Neil, 818 N.Y.S.2d 46 (1st Dep't 2006). The court found that Justice Silverman's warning that court officers would escort Neil to voir dire sidebars did not coerce his waiver of his Antommarchi rights. As for Neil's challenge to his sentence, the court found that it was unpreserved and, in any event, without merit since Neil was adjudicated as a persistent violent felony offender "based entirely on his prior convictions." Id. at 47. As for Neil's ineffective assistance claims, the court noted that they involved matters outside the record and were thus unreviewable on direct appeal. The court noted, however, that to the extent these claims could be reviewed on the existing record, the trial counsel had provided effective assistance. Finally, the court "considered ...