The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Ricardo Bonilla ("petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Livingston County Court of Attempted Assault in the First Degree (New York Penal Law §§ 110.00,120.10); Assault in the Second Degree (Penal Law § 120.05); and Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01).
FACTUAL AND PROCEDURAL HISTORY
On November 11, 2000, petitioner stabbed Justin Stanley with a steak knife during a bar fight. Petitioner was convicted on July 19, 2001 following a jury trial before Judge Gerard Alonzo in Livingston County Court. He was sentenced as a second felony offender to concurrent, determinate prison terms of ten years on the attempted assault count, five years on the second-degree assault count, and one year on the weapon possession count.
On Friday, November 10, 2000, at approximately 7:30 p.m., petitioner was drinking beer with some friends at the home of Maria Cruz in the Village of Mount Morris, New York. That evening petitioner, a Hispanic male, wore a white cut-off jersey-style shirt, with an eggplant-colored shirt underneath. He also had a goatee-style beard. Around 9:00 p.m., Maria's brother Pedro made himself a sandwich in the kitchen using a green-handled steak knife. Pedro thereafter saw the petitioner take the same steak knife and place it in his [petitioner's] pocket. Around 9:30 p.m., petitioner, Pedro, and their friends left Maria's house and went to Fred's Tavern. T. 167-69, 184-87, 196, 259, 302, 319-20, 325-26.*fn1
Luisa Cruz, petitioner's girlfriend, met the group at the bar with her sister. Justin Stanley ("Stanley" or "the victim"), a friend of Luisa's, was also at the bar. Later in the evening, petitioner became upset and poured a beer on Luisa. Petitioner then walked out of the bar, with Luisa following. Stanley also went outside to make sure Luisa was "okay". Petitioner and Luisa argued, and petitioner told her that "he had a knife and that he wasn't afraid to use it". Luisa, however, did not see the knife. She then went home to take a shower and returned to the bar at about midnight. T. 192-94, 304-05, 309-10, 321.
Sometime around midnight, a confrontation occurred between Stanley and several Hispanic men outside of the bar. During the melee, petitioner walked up to Stanley, stabbed him in the left side, and said "this is what you're fucking dealing with when you fuck with my friends." As Stanley fell to the ground, he grabbed petitioner, ripping the petitioner's shirt. Petitioner then ran off around the building. A short time later, Petitioner returned to Fred's Tavern, shirtless, and told his friends, "I fucked up." multiple times. He and his friends then left the bar. T. 165, 167-71, 201, 203, 205-08, 224, 297-99, 317-19.
Stanley suffered a puncture wound in his chest that required stitches. Police Officers Kenneth Mignemi and Dana Carson recovered a green-handled steak knife wrapped in a shirt from a garbage can in the front of Fred's Tavern, and another shirt several feet from the garbage can. Both shirts were identified as the clothing the petitioner was wearing the night of the fight, and the knife was identified as the one used to stab Stanley. When tested by a forensic biologist at the Monroe County Public Safety Laboratory, one shirt and the knife were found to contain human blood. Hours later, Mount Morris Police Officers found petitioner at a friend's house, curled up in a ball hiding beneath a bedroom window. Police Officer Kenneth Mignemi knocked on the door several times and ordered petitioner to leave the house, and, approximately 20 minutes later, petitioner came out and was arrested. T. 171-72, 237, 246, 251, 266, 268-73, 319-20.
Defense counsel called three witnesses to testify regarding the identification of the clothing recovered from the scene at Fred's Tavern. Mario Lopez testified that one of the shirts found at the scene outside of Fred's Tavern belonged to Edwin Hernandez. Lopez further testified that he saw the petitioner at the bar, but did not see him after the fight ended. Maria Cruz, petitioner's friend and sister of Luisa and Pedro Cruz, testified that one of the shirts recovered at the scene belonged to Leo Sanchez, and the other belonged to Edwin Hernandez. She also recalled that the petitioner, Pedro, and Luisa were at her apartment before they went to Fred's Tavern that night, and that she did own light-green steak knives. Maria insisted, however, that the steak knife recovered at the scene did not belong to her and that she was not missing any knives from her apartment. She further recounted that the petitioner had a thin goatee and wore a beige-colored fleece with a hood the night of the stabbing. Maria admitted that she did not see the fight outside of Fred's Tavern that evening. T. 330-33, 338-42.
Finally, Jose Pimentel Diaz, a friend of the petitioner, testified that one of the shirts recovered belonged to Edwin Hernandez and that Hernandez was wearing the shirt on the night of the fight. Diaz also testified that although he saw petitioner that night at Fred's Tavern, the petitioner was not outside during the fight. Diaz acknowledged that he did not see the stabbing.
Petitioner, through counsel, appealed his conviction to the Appellate Division, Fourth Department, contending that: (1) the evidence presented at trial was legally insufficient; (2) the prosecutor failed to timely disclose Brady material; (3) the verdict was against the weight of the evidence; (4) the trial court erroneously denied petitioner's request to discharge trial counsel; (5) petitioner's right to self-representation was violated by the trial court's refusal to hear his pro se claims; (6) petitioner was improperly sentenced as a second felony offender; and (7) the sentence was harsh and excessive. See Petitioner's ("Pet'r") App. Br. (Dkt. #8). Petitioner also filed a pro se supplemental brief claiming that: (1) the prosecution failed to provide sufficient notice of a statement allegedly made by him; (2) the prosecution committed a Brady/Rosario violation by failing to disclose the criminal record of one of their witnesses; and (3) the prosecutor's inflammatory summation remarks deprived him of a fair trial. See Pet'r Supp. Br. (Dkt. #8).
The Fourth Department unanimously affirmed petitioner's conviction. People v. Bonilla, 298 A.D.2d 871 (4th Dept. 2002) lv. denied 100 N.Y.2d 536 (2003). The Appellate Division rejected all petitioner's claims and concluded that the contentions in his pro se brief also lacked merit.
C. Post-Conviction Relief
On February 8, 2005, petitioner filed a motion for vacatur pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, alleging that he had been denied his constitutional rights to effective assistance of trial counsel and a fair trial. See Pet'r 440.10 Mot. (Dkt. #27). Specifically, petitioner maintained that trial counsel was ineffective because she failed to impeach the credibility of some of the prosecution's witnesses with their criminal histories and for inconsistent testimony. As to his due process claim, petitioner contended that he had been denied a fair trial based on arresting Officer Kenneth Mignemi's alleged perjured testimony at trial. The state court denied the motion on all grounds on procedural grounds and alternatively on the merits. Decision and Order, No. 2000-287, 8/3/2005. (Dkt. #27).
On May 12, 2005, petitioner filed a petition for writ of error coram nobis in the Appellate Division, Fourth Department, alleging that he had been denied effective assistance of appellate counsel "because counsel failed to raise issue [sic] on his direct appeal that would have been [sic] reversed or at the very least resulted in modification" of his conviction, and set forth five grounds for relief. Pet'r Coram Nobis Mot. (Dkt.# 27). The Appellate Division denied his motion on September 30, 2005. People v. Bonilla, 21 A.D.3d 1443 (4th Dept.), lv. denied 5 N.Y.3d 881 (2005).
D. Petition for Habeas Corpus
Petitioner filed an initial habeas corpus petition pursuant to 28 U.S.C. § 2254 on March 23, 2004. (Dkt. #1). This Court subsequently granted petitioner a stay nun pro tunc so as to allow him to exhaust additional claims before state court. (Dkt. #20). Following exhaustion, the stay was lifted, and petitioner filed an amended habeas petition on May 22, 2006. (Dkt. #22). In his amended petition, petitioner raised the four original claims that he raised in his initial petition for habeas corpus: (1) the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963); (2) the conviction was against the weight of the evidence and the evidence at trial was legally insufficient; (3) prosecutorial misconduct; and (4) the trial court erroneously denied petitioner's request to substitute counsel. Amended Pet. ¶ 12(A)-(D). (Dkt. #22). Petitioner also raised the newly exhausted claims presented in his post-conviction motions: (5) ineffective assistance of trial counsel; (6) the use of perjured testimony deprived him of a fair trial; and (7) ineffective assistance of appellate counsel. Amended Pet. ¶ 12(D), Attach. at 10-11. (Dkt. #22).
For the reasons that follow, the Court finds that the petitioner is not entitled to habeas corpus relief and this petition is dismissed.
GENERAL PRINCIPLES APPLICABLE TO FEDERAL HABEAS REVIEW
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 and Procedural Default
"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 banc), cert. denied, 464 U.S. 1048 (1984). "The exhaustion requirement is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings, and is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Jimenez v. Walker, 458 F.3d 130, 148-149 (2d Cir. 2006) (internal citations and quotation marks omitted).
However, "[f]or exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state if it is clear that the state court would hold the claim procedurally barred.'" Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989); other citations omitted). Under such circumstances, a habeas petitioner "no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. Section 2254(b)." Grey, 933 F.2d at 120. The procedural bar that gives rise to the finding that the claim should be deemed exhausted works a forfeiture and precludes federal court litigation of the merits of the claim absent a showing of cause for the procedural default and ...