The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner William Smith ("Smith" or "petitioner") has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. §2254, seeking release from state custody on the basis that his judgment of conviction following a jury trial on two counts of Robbery in the First Degree, one count of Burglary in the First Degree and one count of Assault in the First Degree.
The prosecutor's proof at trial showed that on March 26, 1996, petitioner attacked the victim at her home, presumably with a knife, slitting her throat and inflicting numerous other wounds. The victim, who knew petitioner as "Billy Smith", identified him as her attacker. T.75.*fn1 She had seen him at her home three times before the incident. T.61, 63. On the first occasion, a few months before the incident, someone claiming to be petitioner's uncle introduced petitioner to the victim. T.62. Petitioner's uncle wanted petitioner to meet the victim because petitioner was "new in town". Id. Petitioner had been released from prison on January 16, 1996, about three months prior to the attack. T.197.
On the two other occasions that the victim saw petitioner at her house, petitioner claimed he was looking for her upstairs tenant, who rented the upstairs apartment to keep three pit bull dogs. T.49, 62-63. (The tenant with the pit bulls did, in fact, see petitioner at the victim's house on one of those occasions. T.50-51.) The victim suggested that her tenant had been selling drugs, given that her home was known as a "drug house" with a lot of "traffic" going through there.
T.85. The victim admitted to using drugs herself. T.85.
On the night of the attack, petitioner came over to the victim's house at about 9:00 p.m., knocked on the door, and announced that it was "Billy". T.63-64. Recognizing petitioner's voice, the victim let him in. T.64. Petitioner said that he and his girlfriend were having problems with their landlord and wanted to move out. T.65. It appears that petitioner knew that the victim's upstairs apartment was available for rent because the tenant with the pit bulls had vacated it.
T.65. According to petitioner, he wanted his girlfriend to meet the victim to discuss rent, and said he would return a while later. T.65.
At around 11:00 p.m., petitioner returned without his girlfriend, claiming that she was busy, but that she would call or page him when she was available. T.66. The victim asked petitioner to go home and wait at his house until his girlfriend was ready to meet with them.
T.66. Petitioner agreed. T.67.
As the victim turned and walked away, petitioner slit her throat, presumably with a knife.
T.67-68, 74. She tried to fight, but fell to the ground where petitioner slashed her again. T.68. She stayed on the floor in an attempt to prevent any further attack. T.68. Before she passed out, she saw petitioner reach down and take her watch. T.68-69
When she regained consciousness, petitioner was gone. T.69. She went to the phone, but the cord was cut. T.69. She removed the cut cord, plugged the phone into the wall outlet, called 911 and told them that she had been attacked by "Billy" T.69-70, 101-02. She was very weak and believed she was dying. T.70.
When the paramedics arrived at the scene, the victim said that she knew who attacked her. T.40, 47. She also told the police that her assailant was named "Billy". T.70-71. As for a description, the victim told the police that "Billy" was a short, black male with a light complexion, curly hair and a medium build. T.71. The victim was taken to the hospital, where she was admitted for five days. T.72. She received treatment for the slash to her neck and the numerous other wounds she received to her face, neck and arms. T.72. At the time of trial, the victim had nerve damage in one of her arms, which resulted in a loss of sensation to her fingers T.72. She also had scars from the attack. T.73. The treating physician at the hospital testified that the victim's injuries were not only life threatening, but also caused serious and protracted disfigurement. T.174-76.
Significantly, at the victim's house, the police found a piece of paper that said "Billy" and had a phone number on it. T.123-24, 146-47. The police obtained an address for the phone number through 911. T.124-25, 147. When the police arrived at the address, they met a woman who identified herself as either petitioner's mother or grandmother. T.143-44, 147). The woman owned the house there. T.143-44. The police asked to look inside the house, but they were not given permission to do so. T.134-35, 147- 48. People at the house kept asking the police, "what happened?" T.147-48). There were lights on inside the basement, but the police did not know who was there. T.135-36, 147-48. Ultimately, the woman who said she was petitioner's mother or grandmother directed the police to a home down the street where petitioner was living with his sister. T.136, 143-44, 148). When the police arrived at the home, petitioner's sister answered the door and said petitioner was not there. T.137, 247-48). The police searched the home by permission and did not find petitioner. T.137.
Petitioner presented evidence on his own behalf. In support of a defense of mis-identification, petitioner called his parole officer to testify that petitioner was released from prison on January 16, 1996. T.197, supposedly contradicting the victim's approximation that she had met petitioner for the first time in November or December of 1995. T.78-79. Petitioner also called his brother and sister in support of an alibi defense. They testified that petitioner was with them on the day of the crime from 7:00 p.m. until 11:00 p.m., when petitioner went to the store with his girlfriend for about ten minutes. T.210-14). Petitioner's sister testified that petitioner was home when the police arrived. T.218.
In rebuttal, the prosecution called a police officer who testified that when the police spoke to petitioner's sister, she stated that petitioner was not there. T.247-48.
The jury returned a verdict convicting Smith of first degree assault. He was sentenced as a persistent violent felony offender to a prison term of sixteen years to life.
After sentencing, Smith filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure ("C.P.L.") § 440.10 which was denied by the trial court. The Appellate Division denied petitioner's application for leave to appeal.
On direct appeal, the Appellate Division unanimously affirmed the judgment of conviction. Leave to appeal to the Court of Appeals was denied. People v Smith, 306 A.D.2d 861 (App. Div. 4th Dept.), lv. denied, 100 N.Y.2d 599 (N.Y. 2003).
Smith then filed this petition for a writ of habeas corpus in which he alleges the following grounds for relief: (1) ineffective assistance of trial counsel; (2) the prosecution violated its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963).
For the reasons set forth below, Smith's request for a writ of habeas corpus is denied and the petition is dismissed.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) 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; or (2) resulted in a decision that 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quotation omitted). Under the "contrary to" clause, "a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the 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).
III. " Adequate and Independent" State Ground Doctrine and Procedural Default
It is a well-settled aspect of federal habeas jurisprudence that if "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred" absent (1) a showing of cause for the default and actual prejudice attributable thereto, or (2) a showing that failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). A state ground will create procedural default sufficient to bar habeas review if the state ground first was an "independent" basis for the decision; this means that "the last state court rendering a judgment in the case clearly and expressly state[d] that its judgment rests on a state procedural bar." In addition, the state procedural bar must be "adequate" to support the judgment-that is, it must be based on a rule that is" 'firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Dunham v. Travis, 313 F.3d 724, 729 (2d Cir.2002) ("[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a ...