The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner ("Pace" or "Petitioner"), by his attorney Roger W. Wilcox, 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 April 17, 1998. Following a jury trial, Petitioner was convicted of two counts each of murder in the second degree (N.Y. Penal Law § 125.25(2),(3)) and criminal use of a firearm in the first degree (N.Y. Penal Law §265.09 (1)(a), (b)), and four counts of robbery in the first degree (N.Y. Penal Law §160.15 (1)-(4)). For the reasons set forth below, this petition is denied.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner, by indictment number 97-013, was charged with three counts of murder in the second degree, four counts of robbery in the first degree, two counts of criminal use of a firearm in the first degree, and one count of criminal possession of a weapon in the second degree, arising out of the following incident.
(T. 345).*fn1 On November 10, 1996, in Niagara County, Petitioner and another individual*fn2 entered the Center Court Mini-mart, forcibly stole cash from the clerks, Farook Amir and Ashraf Rizak, and shot and killed Amir with a shotgun. (T. 373-85, 819). Rizak testified at trial that he could not identify the two men because they were wearing masks and gloves. (T. 378). The People presented evidence that two young girls, Latoya Lane and Dawn Shipp, saw Pace outside of the store near the time of the crime. (T. 609-10, 483). In addition, Petitioner revealed that he had committed the crimes to Jeffrey Faso, a fellow inmate at the Niagara County Jail, while Petitioner was awaiting trial. (T. 808-820). In his conversation with Faso, Petitioner admitted that he had committed the crimes and he revealed the location of the unrecovered shotgun, which Police were ultimately unable to locate. (T. 818-19). During the conversation with Faso, Petitioner also asked about the strength of the People's evidence and the possibility that DNA and other physical evidence could be recovered. (T. 816-18). Petitioner's father testified that Petitioner was at home on November 10, 1996 at the time of the crime. (T. 999-1004).
Petitioner was convicted by a jury and found guilty of two counts of murder in the second degree, four courts of robbery in the first degree, and two counts of criminal use of a firearm.
(T. 1226-8).*fn3 Petitioner appealed his conviction to the Appellate Division, Fourth Department, claiming that the verdict was against the weight of the evidence; that the court erred in refusing to instruct the jury that if Jeffrey Faso's testimony was discredited the jury was required to acquit Petitioner; that the lower court should have barred testimony by Jeffrey Faso under the attorney-client privilege; and that his sentence was unduly harsh. People v. Pace, 305 A.D.2d 984, 985 (4th Dept. 2003). The Appellate Division affirmed Pace's conviction, holding that the verdict was not against the weight of the evidence, the court properly instructed the jury, and the sentence was not unduly harsh. Id. Pace's claim that Jeffrey Faso's testimony should be barred under the attorney-client privilege was procedurally barred, but the court noted that it was, nevertheless, without merit. Id. (Citing People v. Belge, 50 A.D.2d 307, 309 (4th Dept. 1977), for the proposition that the attorney-client privilege protects only confidential communications). The New York Court of Appeals denied further review. People v. Pace, 100 N.Y. 2d 585 (N.Y. 2003).
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 a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F. 3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-410. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This 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). Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. §2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
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, 115 S.Ct. 1436 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly ...