The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Christian Gomez ("Petitioner") proceeding pro se, brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to challenge his conviction on one count of Criminal Sale of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.43(1)), and one count of Criminal Sale of a Controlled Substance in the Second Degree (N.Y. Penal Law § 220.41(1)), following a jury trial in Supreme Court, New York County. Petitioner claims that his Sixth Amendment rights were violated due to: (1) the improper admission of hearsay testimony at trial; (2) ineffective assistance of trial counsel; and (3) ineffective assistance of appellate counsel. After a thorough review of the petition and the trial record, Magistrate Judge Theodore H. Katz issued a Report and Recommendation ("R & R") on April 10, 2009, recommending that the Petition be denied with prejudice. Petitioner timely submitted objections to the R & R.*fn2 Upon this Court's careful review of all the submissions in this case, the R & R is adopted in its entirety and the petition is denied with prejudice.
The facts and procedural background of this case were extensively outlined in Judge Katz's R & R, and familiarity therewith is presumed. As such, the Court will briefly summarize only the facts most pertinent to the petition.
The Investigation and Arrest
Petitioner's convictions arise from two sales of crack cocaine to an undercover police officer, one of which occurred on September 7, 2001 and the other on October 3, 2001.
From May to October 2001, the New York City Police Department conducted a narcotics investigation in which an undercover officer ("UC 5673") and a field team frequented the general area of 1624 Amsterdam Avenue at least three times per week, in which they focused in particular on the activities at two businesses: El Dorado Restaurant ("El Dorado") and J & C Communications Multi-Service ("J & C Communications"). Trial Transcript ("Tr.") at 70-73, 76. The investigation involved several purchases of crack cocaine, including the two transactions relevant here. Id. at 183-212, 217-30. On September 7, 2001, UC 5673 entered El Dorado to negotiate a narcotics purchase with Elio Roche, a subject of the investigation from whom UC 5673 previously had purchased narcotics. Id. at 83-86, 197. When Petitioner approached UC 5673, the latter indicated that he only wanted to deal with Roche, as he had not previously seen Petitioner. Roche assured UC 5673 that "it was okay, he's cool, everything is all right." Tr. at 189. According to UC 5673, Roche also stated "[w]e are all in this together."*fn3 After some negotiation, Petitioner left the restaurant, then returned and delivered a bag of crack cocaine to Roche, who subsequently passed the bag on to UC 5673. Id. at 191. After examining the contents of the bag, UC 5673 paid Roche $1,950 for the sixty-five grams of crack cocaine. Id. at 191, 210-11. The contents of the bag were later tested and confirmed to contain two and one-quarter ounces and three grains of cocaine. Id. at 237-38.
On October 3, 2001, UC 5673 and a field team again monitored 1624 Amsterdam Avenue. Id. at 119-20. When UC 5673 entered El Dorado, he requested fifteen grams of crack cocaine from Petitioner and settled on a price of thirty dollars per gram. Id. at 225. As before, Petitioner exited the restaurant to retrieve the narcotics, but on this occasion, upon his returning to the restaurant, personally handed the bag to UC 5673. Id. at 228. After inspecting the contents of the bag, UC 5673 paid Petitioner $450. Id. at 229. Subsequent tests of the contents of the bag by a police chemist revealed that the bag contained one-half ounce and eight and one-half grains of cocaine. Id. at 236-37. Petitioner was arrested pursuant to a warrant on October 24, 2001. Id. at 137-38.
After a trial by jury, Petitioner was convicted of Criminal Sale of a Controlled Substance in the First and Second Degrees. Id. at 437. Following Petitioner's conviction, the court adjudicated Petitioner a second felony offender, and sentenced him on March 19, 2003 to concurrent indeterminate terms of fifteen years to life imprisonment for the first-degree sale charge, and six years to life imprisonment for the second-degree sale charge. 3/19/03 Tr. at 12. On appeal, Petitioner argued that the trial court violated his Sixth Amendment right to confront the witnesses against him by allowing UC 5673 to testify as to Roche's out-of-court statement that "it was okay, he's cool, everything is all right." The New York State Supreme Court Appellate Division rejected Petitioner's argument and affirmed his conviction. See People v. Gomez, 801 N.Y.S.2d 294 (1st Dep't 2005). According to the Appellate Division, Petitioner's claim failed procedurally because the claim was not preserved for review, but even if the argument were properly before the court, there was no error because the statement was admissible as background evidence to explain the officer's conduct. Id. at 828. The Court of Appeals denied Petitioner's request for leave to appeal. See People v. Gomez, 811 N.Y.S.2d 343 (2006).
Subsequently, on February 23, 2006, Petitioner moved pro se to vacate the judgment of conviction, pursuant to N.Y. Crim. Proc. Law § 440.10, based on ineffective assistance of trial counsel. See Declaration of Ashlyn Dannelly, Esq. ("Dannelly Decl."), Exhibit ("Ex.") F. Petitioner asserted that he received ineffective assistance from his trial counsel because his counsel (1) failed to object when UC 5673 testified about co-conspirator Roche's hearsay statement that "its okay, we're all in this together," and (2) failed to question Petitioner about the truthfulness of his co-conspirator's statement. Id. The motion was denied on May 4, 2006. See id. Ex. I. On September 14, 2006, the Appellate Division denied Petitioner leave to appeal. See id. Ex. L. Subsequently, on February 22, 2007, Petitioner filed a pro se petition for a writ of error coram nobis in the Appellate Division, claiming that he received ineffective assistance from appellate counsel because appellate counsel failed to argue that trial counsel provided ineffective assistance. In his petition, Petitioner contended that trial counsel's performance was ineffective because he should have moved to dismiss the first-degree sale count, arguing that the evidence was insufficient to support Petitioner's conviction. See id. Ex. M. The Appellate Division summarily denied coram nobis relief on May 24, 2007, and Petitioner sought leave to appeal the denial to the New York Court of Appeals. See id. Ex. O. Petitioner's request was denied on August 22, 2007. See id. Ex. Q.
Petition for Writ of HabeasCorpus
In Petitioner's pro se petition for a writ of habeas corpus, dated October 3, 2007, Petitioner contends that: (1) Roche's statement to UC 5673 that "it was ok, it's cool, everything is alright" was hearsay and therefore deprived Petitioner of his Sixth Amendment right to confront witnesses; (2) Petitioner's trial counsel was ineffective for failing to object to admission of the hearsay statement;*fn4 and (3) appellate counsel was ineffective for failing to argue that the weight of the narcotics was insufficient to support Petitioner's conviction for first-degree criminal sale of a controlled substance. The matter was assigned to me and referred to Judge Katz to prepare an R & R. On April 10, 2009, Judge Katz found that the trial evidence was sufficient to permit a reasonable jury to convict Petitioner, and recommended that this Court deny the petition with prejudice. R & R at 32. Petitioner's timely objections challenged Judge Katz's conclusions as to Petitioner's third claim, and reasserted Petitioner's position that he received ineffective assistance from appellate counsel ...