The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
The petitioner, Dean Lopez, brings this petition for habeas corpus under 28 U.S.C. § 2254 seeking to vacate his conviction on a single count of burglary in the second degree following a jury trial in state court. He alleges as the basis for his petition the ineffective assistance of trial counsel.
The record reflects the following relevant facts. On December 18, 2002 at around 11 p.m., Peter McCormick returned home to his apartment located on the Upper East Side of Manhattan to discover that his laptop computer, sports watch, and some rolled change were missing. He also found that a statuette and a decorative artillery shell casing that he had placed on the windowsill by the fire escape had been moved, and that there were new markings on his front door. (Trial Transcript ("Tr.") 31-35.) Mr. McCormick then called the police. After the police responded and learned that the shell casing had been moved, they dusted the casing for fingerprints. The police found and preserved two fingerprints on the shell casing. (Tr. 54-57.) After analysis, the police determined that the two fingerprints recovered from the casing positively matched the petitioner's fingerprints. (Tr. 96.) On January 22, 2003, after the positive fingerprint match, the police arrested the petitioner in connection with the burglary of Mr. McCormick's apartment. (Tr. 119.)
The petitioner was charged with Burglary in the Second Degree under N.Y. Penal Law § 140.25(2), which provides that a person is guilty of Burglary in the Second Degree when the person "knowingly enters or remains unlawfully in a building with intent to commit a crime therein" and the building is a dwelling. Harry Hertzberg, Esq. represented the petitioner at trial. In his opening statement, Mr. Hertzberg argued that the petitioner could not have entered the apartment through either the door or the fire escape window because the door was still locked when Mr. McCormick returned home and there was a "grating" on the fire escape window that prevented entry. (Tr. 16-17.) Mr. Hertzberg further suggested in his opening that the petitioner's fingerprints were on the shell casing because the petitioner was on the fire escape and "may have reached in and touched the shell casing." (Tr. 19.) In his summation, Mr. Hertzberg attacked the credibility of Mr. McCormick as a witness and questioned why the police did not dust for fingerprints on the front door or in the kitchen, where Mr. McCormick had kept the missing rolled change and sports watch. (Tr. 136-37.) At trial, contrary to Mr. Hertzberg's suggestion that there was a "grating" on the fire escape window, Mr. McCormick testified that there were in fact no security bars on his window. (Tr. 26-27, 30-31.) This was confirmed by photographs of the apartment windows depicting fire escape metal work outside the window but no bars on the window itself. (Tr. 29; Appendix to Petitioner's Brief ("Pet'r App.") 17.) The prosecution relied primarily on the two fingerprints on the shell casing that positively matched the petitioner's fingerprints (Tr. 11-13) and Mr. McCormick's testimony establishing that the shell casing had not been out of his possession since 1990 (Tr. 37-38), that he last cleaned it in about 1995 (Tr. 37), and that he had never seen the petitioner before trial (Tr. 41).
The jury returned a guilty verdict, and the petitioner was sentenced to a prison term of 16 years to life as a persistent violent felony offender. The petitioner filed a direct appeal through new counsel. The New York State Supreme Court, Appellate Division, First Department affirmed the petitioner's conviction. See People v. Lopez, 812 N.Y.S. 2d 99 (App. Div. 2006). The court rejected a claim that trial counsel was ineffective for failing to request a circumstantial evidence charge. The court also noted that the defendant's remaining ineffective assistance of counsel claims, including challenges to trial counsel's preparation and strategy, were not reviewable on direct appeal and would require a further record to be developed. The court then explained: "On the existing record, to the extent it permits review, we find that defendant has failed to demonstrate he did not receive effective assistance of counsel under the state and federal standards . . . . [T]he evidence of defendant's guilt was overwhelming, and '[c]counsel may not be expected to create a defense when it does not exist.'" Id. (internal citations omitted). The petitioner's application for leave to appeal to the New York State Court of Appeals was denied. See People v. Lopez, 853 N.E.2d 255 (N.Y. 2006).
The petitioner then moved before the trial court to vacate the judgment of conviction under New York Criminal Procedure Law § 440.10(1)(h), asserting that he had been denied effective assistance of counsel at trial. The petitioner's motion was denied without a hearing. (Pet'r App. 35.) The trial court noted that "trial counsel's choice was among strategies that were very unlikely to succeed." The trial court reiterated that "counsel may not be expected to create a defense when it does not exist." The court rejected the defendant's argument that trial counsel should have suggested that the defendant might have touched the shell casing at some unspecified time in the past. The court found the argument unlikely to be convincing. The court also noted that trial counsel for the defendant told the defendant's new attorney that the defendant had said that there were bars on the window and there was no denial by the defendant. The court also found that defense counsel could reasonably have chosen not to argue the issue of intent in his summation. (Pet'r App. 38-39.) The petitioner's application for leave to appeal the Order to the Appellate Division was denied. (Pet'r App. 40.) The petitioner subsequently filed this motion asserting that he had been denied the effective assistance of counsel at trial.
The petitioner argues that Mr. Hertzberg's performance at trial was ineffective because he failed to investigate the crime scene, causing him to misstate the facts at trial and adopt a flawed trial strategy; he failed to argue that the petitioner lacked the intent to commit a crime; he failed to request a jury instruction on circumstantial evidence when the evidence was purely circumstantial; and he failed to object to testimony establishing that the petitioner was unemployed.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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)(1)-(2); see also Knowles v. Mirzayance, 129 S.Ct. 1411, 1414-15 (2009); Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006); Walker v. Girdich, 410 F.3d 120, 122 (2d Cir. 2005).
A state court decision is "contrary to" clearly established 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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" the Supreme Court's result.
Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision involves "an unreasonable application of ... clearly established Federal law" when the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular state prisoner's case." Id. at 407-08.
To meet that standard, "the state court decision [must] be more than incorrect or erroneous"; it "must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). "[I]t is well established in [this] [C]circuit that the objectively unreasonable standard of § 2254(d)(1) means that [a] petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003) (internal ...