The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER*fn1
Pro se Petitioner Donnell Bludson brings this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, on the following grounds: (1) his right to a fair trial was violated when the trial judge allowed the prosecutor to cross-examine him about a previous plea discussion in which Petitioner had admitted his guilt; (2) he was convicted by a jury with a solitary racial composition and a juror "who said she would be uncomfortable judging anyone;" and (3) ineffective assistance of counsel under the Sixth Amendment. Dkt. No. 2, Pet. For the reasons that follow, it is recommended that the Petition be denied.
In 1998, an Onondaga Grand Jury indicted Petitioner on two counts of Murder in the Second Degree, two counts of Burglary in the First Degree, and Criminal Possession of a Weapon in the Second Degree.*fn2 Dkt. No. 14, Ashlyn Dannelly, Esq., Decl., State Court R. (hereinafter "R."), Ex. E, Pet'r Appellate Div. Br., App. (hereinafter "App.") at A9-10.*fn3 On February 2, 1999, after a jury trial, Petitioner was found guilty on all counts. R., First Hr'g Tr., dated Jan. 25-29, Feb. 1-2, 1999, (hereinafter "First Hr'g Tr.") at pp. 1522-26. On direct appeal however, the New York State Court of Appeals reversed the decision of the New York State Supreme Court, Appellate Division, Fourth Department, which had affirmed the decision. People v. Bludson, 736 N.Y.S.2d 289 (2001). The Court of Appeals ordered a new trial on the grounds that the trial court erred in denying Petitioner's challenges for cause against two prospective jurors. Id. at 291.
With the verdict overturned, Petitioner went to trial again. At trial, two eye witnesses testified that on May 10, 1998, Petitioner entered into the apartment of David Little and Jennifer Geigel, followed Little into the bathroom, and shot him several times with a gun. R., Ex. D, Second Hr'g Tr., dated Jan. 17, May 20, 22-24, 28-29, 2002, (hereinafter "Second Hr'g Tr.") at pp. 379-402 & 501-23. Geigel testified she met Petitioner, whose moniker is "Dog," and his friend Robert Saxon, whose nickname is "Whip Whop," in April 1998. Id. at p. 392. She stated that the day before her fiancé David Little was murdered, Little yelled at Petitioner because he was talking to Geigel through their kitchen window. Id. at pp. 394-96. Petitioner took the stand and testified that he moved to Syracuse with Robert Saxon around March 1998. Id. at pp. 686-87. He stated that Geigel and Saxon had a romantic relationship, and that on May 9, 1998, Saxon called Petitioner and asked him to check on Geigel because David Little had allegedly beaten her. Id. at p. 693.
According to Petitioner, on the date of the murder, he and Saxon went to Little's apartment and Petitioner stood outside while Saxon entered the apartment and returned shortly thereafter with a warm gun, which he handed to Petitioner. Id. at pp. 698-700.
On June 14, 2002, the jury convicted Petitioner on two counts of Murder in the Second Degree (N.Y. PENAL LAW §§ 125.25(1), (3)), two counts of Burglary in the First Degree (N.Y. PENAL LAW §§ 140.30(1), (2)), and one count of Criminal Possession of a Weapon in the Second
Degree (N.Y. PENAL LAW § 265.03). Second Hr'g Tr. at pp. 828-30. Petitioner was sentenced to twenty-five (25) years to life imprisonment for each count of second degree murder, eight and one third to twenty-five (8 1/3 - 25) years imprisonment for each first degree burglary count, and five to fifteen (5-15) years imprisonment for the second degree weapons possession charge; with the exception of one of the sentences for first degree burglary, the trial court ordered that all of the sentences would run concurrently. R., Ex. D, Sentencing Hr'g Tr., dated June 14, 2002 (hereinafter "Sentencing Tr."), at pp. 12-13.
Prior to perfecting his direct appeal, Petitioner filed a pro se motion to vacate the conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10(h) on the grounds that the police lacked probable cause to arrest him and that his arrest was illegal because it occurred inside a residence and without a warrant. R., Ex. F, Pro Se § 440 Mot, dated Nov. 25, 2003. The trial court denied his motion on both procedural and substantive grounds. R., Ex. F, Decision/Order, dated Mar. 16, 2004. Petitioner did not seek leave to appeal that decision.
Petitioner thereafter appealed to the New York State Appellate Division, Fourth Department, which unanimously affirmed the verdict. People v. Bludson, 788 N.Y.S.2d 758 (N.Y. App. Div. 4th Dep't 2005). The New York Court of Appeals denied leave to appeal. People v. Bludson, 801 N.Y.S.2d 806 (N.Y. 2005). Petitioner filed the instant habeas Petition on March 26, 2006. Dkt. No. 2, Pet.
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 Supreme Court of the United States; or
2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); Hawkins v. Costello, 460 F.3d 238 (2d Cir. 2006); DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
The petitioner bears the burden of proving by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234679, at *3 (S.D.N.Y. Aug. 28, 2003). The AEDPA also requires that "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also DeBerry v. Portuondo, 403 F.3d at 66; Boyette v. LeFevre, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).
The Second Circuit has provided additional guidance concerning application of this test, noting that:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
A state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion requirement with respect to a claim, petitioner must "present the substance of the same federal constitutional claim[s]" to the state courts "that he now urges upon the federal courts." Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (internal quotation marks omitted) (citing Turner v. Artuz, 262 F.3d 118, 123-24 (2d Cir. 2001)). "A federal constitutional claim has not been fairly presented to the State courts unless the petitioner has informed those courts of all the 'essential factual allegations' and 'essentially the same legal doctrine ...