The opinion of the court was delivered by: Dora L. Irizarry United States District Judge
DORA L. IRIZARRY, U.S. District Judge
Petitioner Linwood Wright ("Wright" or "petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court construes the amended petition and supporting memoranda of law as raising an ineffective assistance of counsel claim, premised on counsel's alleged deficient performance and an alleged conflict of interest.*fn1 For the reasons set forth more fully below, the petition is denied in its entirety.
On October 16, 1999, after a trial by jury, petitioner was convicted in the New York State Supreme Court, Kings County, of second degree murder and second degree reckless endangerment. He received a prison sentence of twenty-five years to life for the murder conviction, one year of imprisonment for the reckless endangerment conviction, and two and one-third to seven years of imprisonment for violating probation, to be served consecutively. Petitioner appealed the conviction, alleging that: (i) the trial court erred in denying his request for new counsel, and (ii) certain comments in the prosecutor's opening statement rose to the level of prosecutorial misconduct. (Resp. Ex. 1.) The Appellate Division of the New York State Supreme Court, Second Department, affirmed the judgment, holding that the trial court properly exercised its discretion in denying petitioner's request for new counsel, particularly on the eve of trial, and that the prosecutorial misconduct claim was unpreserved or lacked merit. See People v. Wright, 287 A.D.2d 526 (2d Dep't 2001). On December 27, 2001, the New York State Court of Appeals denied petitioner's application for leave to appeal. See People v. Wright, 97 N.Y.2d 689 (2001).
On October 8, 2002, petitioner, pro se, moved to vacate the judgment pursuant to New York State Criminal Procedure Law § 440.10 claiming: (i) ineffective assistance of counsel because his trial counsel failed to consult with him, sufficiently investigate the case, impeach eyewitness testimony, and request a Rodriguez hearing to examine an eyewitness's familiarity with the petitioner, and (ii) prosecutorial misconduct. The Kings County Supreme Court denied petitioner's motion. See March 20, 2003 Decision and Order, Indictment No. 7138/98. The court expressly held that petitioner's ineffective assistance of counsel claim was procedurally barred as he failed to raise it on direct appeal. The court additionally held that both claims lacked merit. The Second Department denied leave to appeal on August 8, 2003.
On September 19, 2003, petitioner, acting pro se, filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry No. 1.) This pro se petition can be construed as alleging claims of (i) ineffective assistance of counsel for failure to investigate, consult, call favorable witnesses, and to use impeachment evidence, and (ii) prosecutorial misconduct for knowingly using false testimony. On January 5, 2005, petitioner moved to stay all proceedings in the instant action, to permit him to exhaust a Crawford claim in state court, (Docket Entry No. 13), which request the court promptly granted (Docket Entry No. 15). In state court, petitioner then moved, pro se, to vacate his judgment of conviction, contending that the admission of statements made by the victim violated his Sixth Amendment right to confrontation as announced in Crawford v. Washington, 541 U.S. 36 (2004). The King's County Supreme Court denied petitioner's motion on October 7, 2005, and the Appellate Division, Second Department denied leave to appeal on March 31, 2006.
On May 30, 2006, petitioner moved, pro se, in the instant action for leave to amend his petition to include a Crawford claim. (See Am. Pet., Docket Entry No. 18.) The court re-opened the instant action, and granted petitioner's motion, thereby amending the petition to include the Crawford claim. (See June 9, 2006 Electronic Order.) Petitioner retained counsel on September 25, 2006. (Docket Entry No. 22.) For reasons unknown to the court, on April 4, 2007, petitioner filed a second motion to amend the petition, raising claims of ineffective assistance of counsel and prosecutorial misconduct claims. (Docket Entry No. 30.) The parties then submitted briefs, which the court struck for vastly exceeding the court's page limitations. (December 3, 2007 Electronic Order.) Additionally, the court warned petitioner that if he and his counsel failed to brief the prosecutorial misconduct claim a second time, the court would deem that claim abandoned. The parties submitted revised briefs, again limited to a discussion of the ineffective assistance of counsel claim. The court deems petitioner's prosecutorial misconduct claim abandoned, pursuant to the court's December 3, 2007 Electronic Order. Thus, the court will limit its review to the ineffective assistance of counsel claim.
II. The Case Against Petitioner
On June 26, 1998, Jacob Allen was standing diagonally across the street from a barbershop located at 202 Jamaica Avenue, in Brooklyn, New York. (R. 493, 576.)*fn2 At trial, Allen testified that a Mazda MPV van pulled up outside of 202 Jamaica Avenue. (R. 496.) Wright exited the van, and it drove away. (R. 497.) Allen observed a heated exchange occur between Wright and the victim, Prescott Darren Desuze. (R. 497, 501.) Wright chased Desuze into the basement, and shortly thereafter, Allen heard gunshots and observed Wright fleeing. (R. 497.) As he ran from the basement, Allen noticed the handle of a handgun sticking out from Wright's belt. (R. 498, 503.) Allen did not go directly to the police after witnessing the incident as he thought other witnesses would come forward. (R. 506, 537-38.)
At approximately 7:15 p.m., Officers Thomas Perrone and Brian Maddaloni received a radio dispatch directing them to go to 202 Jamaica Avenue. (R. 442.) The officers arrived at the scene and found Desuze lying on the floor of the basement, with a gunshot wound to his chest.
(R. 443.) Desuze told the officers individually, on two separate occasions, that petitioner shot him. (R. 445, 549.) Officer Perrone testified that when he asked Desuze who had shot him, Desuze said "Linwood." Officer Perrone then asked Desuze if Linwood Street was where the perpetrator lived as there was a street named Linwood near his precinct. (R. 445.) Desuze responded by saying "Linwood Wright." (Id.) Officer Maddaloni also testified that when he asked Desuze who shot him, Desuze identified Linwood Wright. (R. 549.)
Green both heard shots but were unable to identify the shooter as they hid when the incident began. (R. 590-91, 609.) Green, too, was shot during this incident. (R. 610.)
At trial, petitioner denied that he was in New York on June 26, 1998, but admitted that he was in New York on June 25, 1998. (R. 767-68.) Petitioner testified that, on June 26, 1998, the day of the shooting, he was babysitting in Carlisle, Pennsylvania from early morning until the evening. (R. 769.) Petitioner then testified that he was at the home of Wayne Rideout in Pennsylvania for a couple of hours. (Id.) Rideout testified that petitioner visited his home around 11:00 p.m. on June 26, 1998, asked him to watch his van, and left after a couple of minutes. (R. 867-68.)
The police located and arrested petitioner in Carlisle, Pennsylvania on June 27, 1998. (R. 661.) The police found petitioner's MPV van and Buick car in Carlisle as well. (R. 643 and 650.) Petitioner was charged with Murder in the Second Degree (N.Y. Penal Law § 125.25) and Reckless Endangerment in the Second Degree (N.Y. ...