The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Curtis Middlebrooks ("Middlebrooks" or "petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that his conviction on one count of first degree assault (N.Y. Penal Law § 120.10(3)) was unconstitutionally obtained. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
II. Factual Background and Procedural History
The conviction here at issue stems from an incident that occurred at the apartment of Maleaka Wilson ("Wilson"), one of Middlebrooks' girlfriends and the mother of his son. Apparently, Wilson discovered that Middlebrooks was spending time with another of his girlfriends. Angered at this, Wilson set fire to a pile of several articles of Middlebrooks clothing at her apartment. Later, when Middlebrooks came over to Wilson's apartment, they quarreled. Middlebrooks stated that he was "going to burn her like she had burned his clothes." He advanced upon her, backing her into a corner, whereupon he doused her clothing (which was on her person) with nail polish remover, and tossed two lit matches on her. Wilson started to roll around on the floor in an attempt to extinguish the flames. Middlebrooks came to her aid with a blanket. Wilson survived the attack, but sustained serious injuries.
Middlebrooks elected to forego a jury trial and had a bench trial in Supreme Court for Erie County (Rossetti, J.). Middlebrooks was found guilty of first degree assault and was sentenced to the maximum sentence possible, a twenty-five-year determinate term.
On direct appeal, Middlebrooks' appellate counsel raised six issues: (1) defendant's inculpatory statements made to the police should have been suppressed because they were obtained in violation of his right to counsel, since he was represented on unrelated pending drug charges; (2) the trial court erred in precluding cross-examination of the victim regarding her psychiatric history; (3) the prosecution's expert witness presented testimony which lacked a sufficient foundation and should not have been admitted because the trial court failed to conduct a Frye hearing; (4) the prosecution committed a Brady violation by failing to timely disclose a plea agreement it had made with the victim, who was Middlebrooks' co-defendant in the pending drug case; (5) defendant was denied his statutory right to a "speedy trial" under C.P.L. § 330.30(1)(a); and (6) the verdict was against the weight of the evidence. The Appellate Division, Fourth Department, unanimously affirmed his conviction on December 30, 2002. People v. Middlebrooks, 300 A.D.2d 1142 (App. Div. 4th Dept. 2002). In his leave application, appellate counsel did not include the weight-of-the-evidence claim or the Confrontation Clause claim alleging the improper limitation on cross-examination of the victim. The New York Court of Appeals denied leave to appeal on March 27, 2003. Middlebrooks also sought a writ of certiorari from the United States Supreme Court, which was denied on April 4, 2005.
Middlebrooks then collaterally attacked his conviction in state court in a variety of motions. On May 12, 2004, Middlebrooks brought a coram nobis application alleging that appellate counsel had been ineffective for, among other things, failing to argue that the trial court erroneously failed to refer to the burden of proof when it announced the verdict. This was denied by the Appellate Division in a summary order. People v. Middlebrooks, 8 A.D.3d 1133 (App. Div. 4th Dept. 2004). The New York Court of Appeals denied leave to appeal on October 5, 2004. People v. Middlebrooks, 3 N.Y.3d 741 (N.Y. 2004).
Middlebrooks instituted a state-law habeas corpus petition in Wyoming County Court, again alleging that the trial court had erred in announcing its verdict. This was denied on procedural grounds in a memorandum decision and order on March 15, 2005. Middlebrooks did not seek review from the Appellate Division but instead proceeded directly to the New York Court of Appeals, which denied leave to appeal on procedural grounds on March 27, 2007. People ex rel. Middlebrooks v. Conway, 8 N.Y.3d 907 (N.Y. 2007).
Middlebrooks filed a motion pursuant to C.P.L. § 440.20 in Erie County Court seeking to set aside his sentence, which was denied on May 31, 2005. The Appellate Division denied leave to appeal on August 17, 2007.
In 2005, while he still had motions pending in state court, Middlebrooks filed his federal habeas petition in this court. The form petition he submitted did not contain any grounds for relief. (Docket No. 1). After respondent filed an answer and memorandum of law addressing issues that Middlebrooks could be raising, the Court (Foschio, M.J.) required Middlebrooks to file an amended petition setting forth the factual and legal bases for his claims and identifying which of these claims had been exhausted.
The somewhat convoluted procedural history of this case is succinctly explained by Judge Foschio in the most recent order filed (Docket 27). There, Judge Foschio directed Middlebrooks to submit a second amended petition, and authorized the inclusion of two new grounds for relief not originally raised in the first amended petition. (Docket No. 27). Middlebrooks has filed a second amended petition which contains six grounds: (1) when announcing the verdict, the trial court failed to state on the record whether the prosecution had proven the elements of the crime charged beyond a reasonable doubt; (2) New York State violated his rights under the Fourteenth Amendment by failing to afford petitioner a remedy, besides a direct appeal, to challenge a constitutional violation occurring at trial; (3) the trial court violated his Confrontation Clause rights by restricting his cross-examination of the victim about her psychiatric history; (4) appellate counsel rendered ineffective assistance; (5) he was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466, because the trial court relied on facts not found by a jury, other than his prior conviction, to enhance his sentence; and (6) the prosecution committed a Brady violation by failing to timely disclose a plea agreement made with the victim in a pending drug case. As respondent points out, Ground Six alleging the Brady claim was not raised in the first amended petition and was not covered by Judge Foschio's most recent order. Respondent argues that for these reasons, the Brady claim should not be addressed by this Court. Respondent has, however, addressed the merits of that claim and argues that it, like the other five, does not warrant habeas relief.
For the reasons that follow, the petition is denied.
III. Analysis of the Claims Raised in the Second Amended Petition
The trial court failed to apply the correct burden of proof, as demonstrated by the fact that when announcing the verdict, the trial court failed to state on the record whether the prosecution had proven the ...