The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner James Lewis ("Lewis" or "petitioner") has filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Yates County Court on one count of Criminal Possession of a Forged Instrument in the Second Degree, a class D felony.
II. Factual and Procedural History
Following a jury trial in Yates County Court before Judge W. Patrick Falvey, Lewis was convicted of Criminal Possession of a Forged Instrument in the Second Degree (N.Y. Penal Law § 170.25) and Petit Larceny (N.Y. Penal Law § 155.25). On June 1, 1999, a hearing was held on the issue of whether to sentence the petitioner as a persistent felony offender. The trial court found that Lewis was a persistent felony offender and sentenced him to a term of imprisonment of fifteen years to life on the forged instrument count and one year on the petit larceny count to run concurrently to one another. Sentencing Tr., R. 702.*fn1
The conviction arises out of an incident that took place on April 18, 1998, at the P&C Grocery Store in Penn Yan, New York. James Lewis presented a check drawn by John Staples to a cashier, Connie Benson ("Benson") to be cashed. The check was made out to and apparently endorsed by Dana Bratcher. Along with the check, Lewis also presented an identification card with Dana Bratcher's name on it. Shortly before the petitioner approached the cashier, a woman had presented Benson with a check, also from John Staples, made out to Tracy Arnold. Finding it unusual that two checks would be presented from the same unfamiliar endorser, Benson took the petitioner's check back to her manager, Robert Uhle ("Uhle"). Uhle turned the in-store security camera in the direction of the counter, onto the petitioner. Uhle approved the check and sent Benson back to the counter, who then cashed the check for Lewis.
Petitioner was arraigned in Yates County Court on June 25, 1998. The prosecution served two notices pursuant to Criminal Procedure Law ("C.P.L.") § 710.30.*fn2 The first notice pertained only to the prosecution intent to introduce evidence of the petitioner's statements made to the police. R. 96. The second contained a notice of intent to introduce evidence of another statement by the petitioner, and the identification testimony by Uhle, Ken Wilson, Steve Baker, and Mike Iacucci. R. 95. On November 5, 1998, the Yates County Court held a series of pre-trial hearings, including a Wade hearing to determine whether the identification testimony referred to in the second § 710.30 notice was admissible.*fn3 Hearings Tr., R. 274-316. The trial court ruled that the identification testimony of all four persons referred to in the notice was admissible. Decision and Order, 11/20/98, R. 162. All four of the witnesses (Ule, ken Wilson, Steve Baker and Mike Iacucci) testified at Lewis's trial. Benson, the clerk who cashed the petitioner's check, also testified, but was not previously named in either notice.
In June 1999, petitioner moved the Yates County Court to set aside the judgment of sentence pursuant to C.P.L. § 440.20, and brought a motion for vacatur under C.P.L. § 440.10 shortly thereafter. R. 1-19, 22-35. Both were denied by the state court in a decision dated December 17, 1999. R. 38-40. Leave to appeal the decision was denied by the Appellate Division, Fourth Department, on May 3, 2000. R. 49. On direct appeal, the Fourth Department unanimously affirmed Lewis's conviction. People v. Lewis, 292 A.D.2d 814 (4th Dept.), lv. denied 98 N.Y.2d 677 (2002). He next brought a motion for writ of error coram nobis to the Fourth Department alleging ineffective assistance of appellate counsel. R. 761-780. This motion was denied as well. People v. Lewis, 306 A.D.2d 957 (4th Dept.), lv. denied 100 N.Y.2d 622 (2003).
Lewis brought a subsequent C.P.L. § 440 motion in February, 2004, which was denied by the Yates County Court. R. 795-805, 808-809. Leave to appeal was again denied by the Fourth Department. R. 815. Lewis petitioned this Court for habeas corpus relief under 28 U.S.C. § 2245 (Dkt. #1), which was stayed pending the outcome of Lewis's § 440 motion in state court. (Dkt. #16).*fn4 In the instant habeas petition, Lewis raises five claims: 1) petitioner did not receive proper notice of the prosecution's intent to call an identification witness; 2) ineffective assistance of trial counsel; 3) ineffective assistance of appellate counsel; 4) insufficient evidence to support the conviction; and 5) the sentence as a persistent felony offender was in violation of the rule of Apprendi v. New Jersey. (Dkt. #14). Respondent has submitted an Answer and Memorandum of Law arguing for the denial of the writ on procedural grounds as well as on the merits. (Dkt. #18, 19).
For the reasons that follow, the petition is dismissed.
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1),(2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
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 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en ...