The opinion of the court was delivered by: Denise Cote, District Judge
Darrell Powell ("Powell") brings this timely pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on one count of First Degree Murder. This case was referred to Magistrate Judge Michael Dolinger for a report and recommendation ("Report"). The Report was filed on December 15, 2008, and recommends that the writ be denied. Powell has objected to the Report. For the following reasons, the Report is adopted, and the petition is denied.
The facts relevant to Powell's petition are set out in the Report and are summarized here. Powell participated in a contract killing organized by Christopher Rodriguez ("Rodriguez"). Rodriguez asked Powell to arrange for the murder of Eric Caceres ("Caceres"). After Powell agreed, Rodriguez gave him a "wad" of cash and a gun. Powell then gave the gun and $2,000 to his brother-in-law Cedric Darrett ("Darrett") to carry out the killing. Relying on a description of the intended victim, Darrett shot and killed a man with a build similar to that of Caceres on September 11, 1997. The victim was Freddy Pina ("Pina").
Police arrested Darrett soon after the shooting when he tried to drop the murder weapon in a nearby subway station. They showed him to the dying Pina, who identified Darrett as the shooter. Police arrested Powell later that day and brought him to an interview room at the 34th precinct, where police told him they were investigating a shooting from the previous night. Before Powell was given his Miranda rights he said "This looks like it is serious and I think I will wait for a lawyer." Police asked him no further questions. After Powell's cousin, Rosie Powell, spoke privately to him in the interview room she told Detective Gennaro Giorgio ("Giorgio") that Powell wanted a lawyer. Later that night, however, Powell told Giorgio that he wanted to speak to an Assistant District Attorney ("ADA").
ADA Alex Busansky came to the precinct and began interviewing Powell on videotape. He read Powell his Miranda rights and noted that Powell had previously told both Giorgio and his cousin that he wanted to speak to an attorney, then Busansky asked if Powell wished to speak to an attorney at that time. Powell said he did not. He signed a waiver of his Miranda rights and confessed to his role in Pina's murder.
Before trial, Powell moved to suppress this confession, alleging it was taken in violation of his right to counsel. After holding a hearing on the motion in August 1999, Justice Leslie Crocker Snyder of the New York Supreme Court denied Powell's motion. Justice Snyder characterized Powell's request for counsel as "equivocal," and noted that Powell had clearly waived any right to counsel after receiving his Miranda warnings.
On November 20, 2000, Powell's jury trial began in New York Supreme Court with Justice Snyder presiding. Before jury selection began, Justice Snyder conveyed a plea offer to Powell of nine to eighteen years' imprisonment. Powell declined. At trial, the jury heard, inter alia, Caceres testify about the drug debt Rodriguez owed him; they heard Rodriguez's friend who was with Rodriguez on the night of the shooting, Antonio Mesa ("Mesa"), describe the murder plot; they heard evidence of telephone calls between Powell, Rodriguez, and Darrett; and they heard Powell's confession. In charging the jury, Justice Snyder repeatedly stated that the State had the burden of proving that Powell had caused Pina's death and that Powell had acted in concert with Rodriguez and Darrett in causing that death while intending to cause Caceres's death. The jury convicted Powell.
On January 25, 2001, Justice Snyder sentenced Powell to life imprisonment without the possibility of parole. At the sentencing hearing Justice Snyder made two sets of comments that Powell later contested: one about Powell's counsel's arguments that the same prosecutor who had made a pre-trial plea offer of nine to eighteen years was now seeking a life sentence without parole;*fn1 another about Powell's alleged drug dealing.*fn2
Powell appealed his conviction and sentence to the Appellate Division, First Department. He argued that: (1) the evidence was insufficient to show he had the intent to kill Pina or that he caused Pina's death; (2) the trial court erred in refusing to charge fourth-degree criminal facilitation as a lesser included offense of the murder count; (3) the trial court erred in denying his motion to suppress his confession; (4) his trial counsel provided ineffective assistance because he failed to make a sufficiently specific dismissal motion for evidentiary insufficiency, and because he opened the door to the introduction of otherwise inadmissible inculpatory evidence; and (5) New York's first degree murder sentencing provisions infringed his right to equal protection and due process.
The Appellate Division reached the merits of Powell's appeal and affirmed his conviction and sentence. People v. Powell, 304 A.D.2d 410 (1st Dep't 2003). The court found the evidence warranted the conclusion that Darrett killed Pina as part of the murder scheme, and therefore the evidence was legally sufficient to establish Powell's guilt under the theory of transferred intent. Id. at 411. The Appellate Division held that the trial court did not err in omitting the fourth-degree criminal facilitation charge because that offense is not a lesser included offense of first degree murder under the hired killings provision. Id. The court found Powell's confession admissible on the grounds that Powell had made only an equivocal assertion of his right to counsel, and that he later requested to speak to the assistant district attorney and clarified to that assistant district attorney that he had not invoked his right to counsel and did not wish to do so. Id. As for the ineffective assistance of counsel claim, the Appellate Division held that a New York Criminal Procedure Law § 440.10 motion would be required to allow trial counsel to explain his actions. Id. Nonetheless, the court held that on the existing record Powell had received meaningful representation. Id. Finally, Powell's challenge to the sentencing scheme was denied as unpreserved. Id. at 412.
Powell sought leave to appeal to the New York Court of Appeals. He requested review of all his claims except for his ineffective assistance of trial counsel claim and his challenge of the sentencing statute. The Court of Appeals denied leave on December 29, 2003. People v. Powell, 807 N.E.2d 907 (2003). In April 2005, Powell filed a motion for a writ of error coram nobis in the Appellate Division, First Department to argue that he had received ineffective assistance of appellate counsel. That court denied the motion without opinion. People v. Powell, 2006 N.Y. App. Div. LEXIS 6738 (May 18, 2006), and the New York Court of Appeals denied leave to appeal on August 7, 2006. People v. Powell, 2006 N.Y. LEXIS 3113 (Aug. 7, 2006).
Powell filed his habeas petition in this court on April 6, 2005 and an amended petition on December 4, 2006. Powell's petition reasserts the basic claims he made to the Appellate Division. Powell does not assert the ineffective assistance of trial counsel claim he made in state ...