The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Brandon Hall ("Hall" or "petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a guilty plea in Monroe County Court on two counts of Murder in the First Degree (N.Y. Penal Law § 125.27(1)(a)(viii)) and two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25(1)). Hall was sentenced to life imprisonment without parole on each count of Murder in the First Degree, to run concurrent to consecutive terms of 25 years to life on each count of Murder in the Second Degree.*fn1
II. Factual Background and Procedural History
In the early morning hours of October 14, 1998, Brandon Hall was leaving a bar with his step-brother and two friends, Charles Affeldt ("Affeldt"), age 21, and Raymond Ricchueto ("Ricchueto"), age 17. As the four young men walked to their cars, Hall pulled out a handgun and shot Affeldt in the head at point-blank range. When Ricchueto started to run, Hall shot him multiple times in the leg, chest, and head. The shootings occurred, seemingly, without any provocation. Meanwhile Hall's step-brother, Brian Deloach, screamed for Hall to stop shooting. S. 13.*fn2 Hall then fled the scene in his car. S. 13.
Hall pleaded guilty to two counts of Murder in the First Degree and two counts of Murder in the Second Degree for the intentional killings of Affeldt and Ricchueto. On direct appeal, Hall raised three issues: (1) that the statute governing the plea agreement was unconstitutional; (2) the prosecution abused the subpoena process; and (3) the plea of guilty to charges of Murder in the First Degree and Murder in the Second Degree violated the constitutional prohibition against double jeopardy. The Appellate Division, Fourth Department concluded that Hall's plea was valid, and that his right to appeal the remaining issues was waived upon his plea of guilty. Hall's conviction was thus affirmed and further leave to appeal was denied. People v. Hall, 291 A.D.2d 143 (4th Dept.), lv denied 98 NY3d 651 (2002). Additionally, the Appellate Division's denial of Hall's petition for a writ of error coram nobis was affirmed. People v. Hall, 306 A.D.2d 957 (4th Dept.), lv denied 100 N.Y.2d 642 (2003).
Petitioner then brought this petition ("Pet.") for habeas relief pursuant to 28 U.S.C. § 2254, stating that, (1) the statute governing the plea agreement was unconstitutional; (2) his conviction violated the constitutional prohibition against double jeopardy; (3) ineffective assistance of appellate counsel; and (4) the prosecution abused its subpoena power, tainting the petitioner's plea. Pet. at ¶ 22 (Dkt. #1).
Respondent answered the petition, arguing: (1) petitioner's claim attacking the constitutionality of the plea agreement is without merit; (2) the claim of double jeopardy is procedurally defaulted as waived by the guilty plea; (3) the ineffective assistance of counsel claim is without merit; and (4) the prosecution's abuse of authority for issuance of a subpoena is a question of state law, and unexhausted to the extent that it implicates a question of federal law. Hall then moved to stay the petition to allow him to return to state court to exhaust his claim for ineffective assistance of trial counsel. That motion was denied without prejudice. See Hall v. Conway, 2008 WL 2559371 (W.D.N.Y. June 23, 2008).
While his motion to stay was pending, Hall filed a motion in state court seeking to vacate his conviction pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10. He asserted that due to ineffective assistance of trial counsel, (1) he was coerced into pleading guilty by threats of the death penalty; and (2) he was wrongly convicted of two counts of Murder in the Second Degree (as inclusory concurrent counts of Murder in the First Degree). The first ground was summarily denied pursuant to C.P.L. 440.10(2)(c) for failing to raise the issue on direct appeal.*fn3
The second ground was dismissed for lack of merit, and the state court concluded that Hall had received meaningful representation. People v. Hall, No. 1998-0720 Order, 10/7/2008.*fn4
For the reasons that follow, the Court finds that the petitioner is not entitled to habeas corpus relief.
III. General Principles Applicable to Habeas Review
A. The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "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," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). 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 Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091, 124 S.Ct. 962 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. Exhaustion Requirement
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that. . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been ...