The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner, Darrin Singleton ("Singleton" or "Petitioner"), filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his custody, pursuant to a judgment entered February 17, 1998, in Monroe County Court, following a jury trial, convicting him of two counts of burglary in the first degree (Penal Law §§ 20.00, 140.30,) and two counts of attempted robbery in the first degree (Penal Law §§ 20.00, 110.00, 160.15,).
For the reasons set forth below, this petition is denied.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
By indictment number 541A/97, filed August 15th 1997 by a Monroe County Grand Jury, Petitioner was indicted with two counts of burglary in the first degree, two counts of attempted robbery in the first degree, unauthorized use of a motor vehicle in the first degree, and criminal possession of a weapon in the second degree, arising out of the following incident. (T. 2)*fn1 . In the late evening, early morning hours of April 26, 1997 Petitioner and two other men, Lawrence Grady and Demetrius Herring, drove to and parked behind a restaurant near 162 Fulton Avenue in Rochester, New York, with the intention of purchasing marijuana at the residence at 162 Fulton Avenue. (T. 108-9, 393). When they arrived at the location, after knocking on the door, Carmen Ortiz, the downstairs resident, came to the front door. (T. 165). Brian Brown, another downstairs resident, a woman called Twin, and 6 sleeping children were also in the apartment at this time. (T. 159-60). Ortiz told the three men to go to the side window of the house to purchase marijuana and closed the door. (T. 118). Herring then forced the door open and the three men entered the home. (T. 120). Petitioner and Herring were both armed with guns. (T. 122-124). At this time, Brian Brown ran to the back hallway of the residence which connected through a back stairway to an upstairs apartment, occupied by Ortiz's mother, Darlene Bovee. (T. 166-167, 236). Brown informed Bovee that three men with guns had broken into the downstairs apartment, and Bovee called 911. (T. 236). Petitioner demanded money and marijuana from Ortiz, and searched through the apartment, while Herring pushed Ortiz to the ground and placed his hands over her mouth. (T. 122-3, 170-2). Meanwhile, Lawrence Grady observed the scene from the doorway in the front room. (T. 123).
Petitioner then informed Herring and Grady that the Police had arrived. (T. 124). The three men ran to the back of the apartment and down the back stairwell to the basement where Petitioner and Herring placed the two guns under a rug. (T. 125). Herring and Petitioner then told Grady to go get the guns. (T. 125). Grady retrieved the guns and went back upstairs to the upstairs apartment where he encountered Darlene Bovee and pointed a gun at her, at which time she slammed her door shut. (T. 127). Grady then ran downstairs and threw the two guns in a garbage can. (T. 128).
At that time, Officer Timothy Waterman arrived at the location on Fulton Avenue. (T. 246). Officer Waterman observed that the front door was open, heard noises in the back of the house, and walked to the rear of the building where he observed two men exiting the back door. (T. 246-50). One of the men, identified as the Petitioner, approached Officer Waterman, who ordered Petitioner to get on the ground. (T. 251). Officer Waterman frisked Petitioner, and another officer, Officer Correa, took Petition into custody while Waterman and another police lieutenant took custody of Herring and Grady. (T. 252-56). Officer Waterman then searched the apartment and found the two guns in the garbage can where Grady had placed them. (T. 257).
At a show-up identification, Ortiz and Brown identified the Petitioner, and the other two men. (T. 179-182, 222). Grady, Ortiz, Brown and Waterman also made in-court identifications of Petitioner. (T. 108, 169, 217, 251).
At trial, Petitioner testified on his own behalf that he had not participated in the burglary and attempted robbery, but had been at the location merely to purchase marijuana. (T. 393). Petitioner denied any involvement in the burglary and attempted robbery. (T. 411).
At the conclusion of the trial, defense counsel requested an expanded eyewitness identification charge. (T. 466-7). The trial court rejected the charge as unnecessary because the case was not an alibi case and there was other evidence placing the Petitioner at the scene of the crime. (T. 467). The jury found the Petitioner guilty of two counts of burglary in the first degree and two counts of attempted robbery in the first degree. (T. 599).*fn2
Petitioner appealed his conviction to the Appellate Division, Fourth Department, alleging error due to the trial court's failure to give an expanded identification charge, and the trial court's failure to instruct the jury that the issue of identity must be proven beyond a reasonable doubt. People v. Singleton, 286 A.D. 2d 877 (4th Dept. 2001). The Fourth Department unanimously affirmed Petitioner's conviction reasoning that because the defendant did not present an alibi defense, and because the case was not a "close question of identity," the court did not err in denying Petitioner's request for an expanded identification charge. Id. In addition, the Fourth Department held that the trial court properly instructed the jury to find beyond a reasonable doubt that the defendant committed the crimes charged, and that this standard applied equally to issues of identification. Id. Petitioner then sought leave to appeal to the New York Court of Appeals which was denied. People v. Singleton, 97 N.Y. 2d 658 (N.Y. 2001).
Additionally, while Petitioner's appeal was pending, he filed a motion to vacate his conviction in Monroe County Court pursuant to New York Crim. Proc. Law ("C.P.L.") §440.10 claiming (1) ineffective assistance of trial counsel, and (2) newly discovered evidence derived from the Prosecutor's failure to produce favorable evidence pursuant to Brady v. Maryland, 373 U.S. 83.*fn3 In a Memorandum and Order dated February 16, 2001 (Mem. and Ord. 02/16/01), the trial court held that Petitioner's first claim lacked sufficient factual support, and his second claim was procedurally barred under C.P.L. §440.10(2)(c), as it was an issue of record and he did not raise it on direct appeal. Petitioner appealed this order to the Appellate Division, Fourth Department, which unanimously affirmed the order reasoning that the Petitioner could have discovered the favorable evidence with due diligence under C.P.L. 440.10 (1)(g), and that Petitioner did not adequately provide support his claim of ineffective assistance of counsel. People v. Singleton, 1 A.D. 3d 1020 (4th Dept. 2003). Additionally, the court found, on the merits, that a Brady violation did not occur, despite the exculpatory nature of the evidence, as the state is not required to turn over evidence that the defendant knows or should reasonably know exists. Id. Further leave to appeal this order was denied. People v. Singleton, 1 N.Y.3d 580 (N.Y. 2003).
Petitioner then filed a motion for a writ of error coram nobis based on ineffective assistance of appellate counsel. This motion and further leave to appeal were denied. People v. Singleton, 302 A.D.2d 1020 (4th Dept. 2003), lv. denied 99 N.Y.2d 658 (N.Y. 2003). Petitioner last filed a second motion pursuant to C.P.L. 440.10 in Monroe County Court claiming that the judgment was procured by fraud or duress by the prosecutor and that the prosecutor's actions prevented a prospective defense witness from testifying. In a Decision and Order dated September 24, 2004 (Mem. and Ord. 09/24/04), the court denied the motion based on insufficient factual support and because the allegations were substantially similar to those decided on Petitioner's first 440.10 motion. Leave to appeal this order was denied by the Fourth Department on January 19, 2005.
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 that [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 ...