The opinion of the court was delivered by: James K. Singleton, Jr. Senior United States District Judge
MEMORANDUM-DECISION AND ORDER
Jesse Lewis, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2004 judgment of conviction entered in the Ulster County Court on charges of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, criminal sale of a controlled substance in the second degree (two counts), criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the fourth degree. Petitioner seeks relief on the grounds that: (1) the convictions violated due process because the jury's verdict was not supported by sufficient evidence and was against the weight of the evidence; (2) admission at trial of hearsay statements from a confidential informant violated the confrontation clause of the Sixth Amendment; (3) the trial court's failure to grant a mistrial after the prosecutor violated the court's Sandoval ruling deprived Petitioner of a fair trial; (4) the trial court's failure to suppress evidence violated Petitioner's Fourth Amendment rights; (5) admission of inaudible and incomplete audio tapes violated his right to a fair trial; and (6) shackling of Petitioner throughout his trial in the presence of the jury violated his right to a fair trial. See Docket Nos. 1 (Pet.); 2 (Mem.). The Government has filed a Response. See Docket Nos. 9 (Response); 11 (Mem.). Petitioner filed a Traverse. Docket No. 16.
The Supreme Court of New York, Appellate Division, Third Department, briefly summarized the facts of the case:
In 2002, the State Police Mid-Hudson Drug Enforcement Task Force was engaged in an undercover narcotics investigation in Ulster County and, in September of that year, defendant became a target of the investigation. During the course of that investigation, from September 2002 through November 2002, State Police undercover officers and a confidential informant engaged in numerous conversations and drug transactions with defendant and co-defendants, during the course of which many of the conversations between the confidential informant and defendant and an undercover officer and defendant were tape-recorded.
At the conclusion of the investigation and following the execution of a search warrant at the premises where defendant resided, defendant was indicted and charged with criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, four counts of criminal sale of a controlled substance in the second degree and five counts of criminal possession of a controlled substance in the third degree. Following defendant's unsuccessful attempt to suppress the use of the tape recordings and the evidence seized from his residence during execution of the search warrant, defendant was tried and convicted of the crimes of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, two counts of criminal sale of a controlled substance in the second degree, two counts of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. Defendant was thereafter sentenced, as a second felony offender, to an aggregate prison term of 15 years to life.
Petitioner appealed the conviction arguing that: (1) the verdict was against the weight of the evidence; (2) the admission of the confidential informant's statements violated the confrontation clause of the Sixth Amendment; (3) the trial court erred in denying him a mistrial after the prosecutor violated the trial court's Sandoval ruling; (4) the trial court erred in denying his suppression motion; (5) the trial court erred when it admitted the partially inaudible and incomplete audio tapes. Docket No. 10, Attach. 1. The Appellate Division affirmed Petitioner's convictions in a reasoned opinion on January 5, 2006. Lewis, 806 N.Y.S.2d at 320. Petitioner sought leave to appeal to the New York Court of Appeals. Docket No. 10, Attach. 5. Petitioner abandoned his claim that the verdict was against the weight of the evidence, but otherwise raised the same arguments in his application for leave that he had raised before the Appellate Division. See id. at 8-19. The Court of Appeals denied leave to appeal without comment on July 14, 2006. Docket No. 10, Attach. 6.
On July 17, 2006, Petitioner filed a motion pursuant to N.Y. Criminal Procedure Law ("C.P.L.") § 440.10 to vacate the judgment of conviction. Docket No. 10, Attach. 7. Petitioner argued that he was denied a fair trial when the trial court allowed him to remain shackled with leg irons throughout the trial without any justification. Id. Petitioner also argued that his trial counsel was ineffective for failing to object to the leg irons. Id. The county court denied the motion pursuant to C.P.L. § 440.10(2)(c), because Petitioner could have raised the issue on direct appeal and had unjustifiably failed to do so. Docket No. 10, Attach. 10. Leave to appeal to the Appellate Division was denied on January 31, 2007. Docket No. 10, Attach. 12.
The instant petition followed, being timely filed on March 20, 2008. Docket No. 1.
Because the instant petition was filed after April 24, 1996, any claim therein that was adjudicated by a state court on the merits is governed by the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). A decision is adjudicated "on the merits" when it finally resolves the claim, with res judicata effect, based on substantive rather than procedural grounds. Id. at 311-12. This is so, "even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Id. at 312.
Under the deferential standard of review imposed by AEDPA, a writ of habeas corpus shall not be granted unless the state 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 determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision involves an unreasonable application of Supreme Court case law if it "identifies the correct governing legal principle from [the Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case." Id. To qualify as "unreasonable," it must be objectively unreasonable, a substantially higher threshold than merely incorrect. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939 (2007).
The Supreme Court has also explained that clearly established Federal law "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. In the absence of a holding of the Supreme Court regarding the issue presented on habeas review, "it cannot be said that the state court unreasonably applied clearly established Federal law." Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 654 (2006) (internal quotation marks removed). Finally, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome. Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328 (2007) (adopting the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637--38 (1993)).
In applying this standard, this Court reviews the last reasoned decision by a state court. Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). The Court presumes that the state court's findings of fact are correct, unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The presumption of correctness applies to findings by both state trial and appellate courts. Whitaker v. Meachum, 123 F.3d 714, 715 n.1 (2d Cir. 1997).
Claims that have not been adjudicated by a state court on the merits are reviewed de novo based on the record before the Court. See Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003).
I - Insufficiency of the Evidence
Petitioner claims that his convictions violated due process because the jury's verdict was not supported by sufficient evidence and was against the weight of the evidence. Respondent contends this claim is unexhausted, procedurally barred and meritless.
"A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it." Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005). In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to appeal. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). Claims are fairly presented to the New York Court of Appeals when the application for leave to appeal clearly states that all claims in the attached brief are being pressed or no arguments are made in detail but simply requests review of all issues outlined in the brief. Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000); see also Morgan v. Bennett, 204 F.3d 360, 369--90 (2d Cir. 2000). Where the application for leave to appeal refers to specific claims raised before the Appellate Division but omits mention of others, the unmentioned claims are deemed abandoned. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Where the application for leave to appeal argues one or more specific claims but only makes a passing reference to possible other claims found in the attached briefs, the claims mentioned in passing have not been fairly presented to the Court of Appeals. Jordan, 206 F.3d at 198.
A claim that is now procedurally defaulted by state law "meets the technical requirements for exhaustion" because "there are no state remedies any longer 'available' to him." Coleman v. Thompson, 501 U.S. 722, 732 (1991); see also Grey, 933 F.2d at 120. However, in such instances the petitioner must show "cause for the procedural default and prejudice resulting therefrom." Grey, 933 F.2d at 121 (citing Murray v. Carrier, 477 U.S. 478, 485, 496 (1986)).
Here, Petitioner clearly abandoned his claims concerning sufficiency and weight of the evidence when he omitted them from his application for leave to appeal. See Grey, 933 F.2d at 120; Jordan, 206 F.3d at 198. However, these claims are technically exhausted because Petitioner cannot return to state court to raise them.*fn1 See id. As Petitioner has failed to allege or demonstrate cause for the default or prejudice therefrom, the Court cannot reach the merits. See id. at 121.
Even if these claims were not procedurally barred, the Court would find them meritless. First, the claim that the verdict is against the weight of the evidence is a state law claim that is not cognizable on federal habeas review. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) ("assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues" ). Second, the record demonstrates that there was sufficient evidence against Petitioner to support the verdict. For each of the counts for which Petitioner was convicted, an undercover detective arranged the drug transactions with Petitioner either over the phone or in person. When the no-knock warrant was served at Petitioner's residence, Petitioner was seen dropping the marked currency from the last transaction onto the floor. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Appellate Division's determination that the jury's verdict was based on sufficient evidence was clearly a reasonable application of Jackson.
II - Confrontation Clause
Citing Crawford v. Washington, 541 U.S. 36, 54 (2004), Petitioner asserts that his Sixth Amendment right to confront the witnesses against him was violated when the trial court allowed an undercover detective to testify at trial to the out-of-court statements of a confidential informant. Specifically, Petitioner appears to be referring to out-of-court statements made by the ...