The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Edward Laraby ("Laraby" or "petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on May 30, 2002 in Cayuga County Court on two counts of Attempted Murder in the First Degree (N.Y. Penal Law §§ 110.10/125.27(1)(a)(iii), (1)(a)(iv)) and one count of Attempted Escape in the Second Degree (N.Y. Penal Law §§ 110.10/205.10) following a jury trial before Judge Peter E. Corning. Laraby was sentenced to concurrent terms of 25 years to life in prison for the two attempted murder convictions and a concurrent term of one year for the attempted escape conviction. These sentences were ordered to run consecutively with the 25-year-to-life prison term that petitioner was already serving at the time of the crime. For the reasons that follow, Laraby's petition for habeas relief is denied and this action is dismissed.
II. Factual and Procedural History
In July, 2001, while serving a 25-year-to-life sentence in Auburn Correctional Facility in New York State on a conviction of sexual abuse and attempted assault, petitioner was temporarily confined under guard at the Auburn Memorial Hospital after complaining of chest pains. On July 29, 2001, while one of the two corrections officers assigned to guard him left briefly for the restroom, Laraby took the nurses' call cord, wrapped it around Correction Officer Patrick Kealy's ("Kealy") neck, and attempted to strangle him. During the struggle, the officer managed to free himself, but sustained injuries to his chest, arms, and neck.
Petitioner was charged with two counts of Attempted Murder in the First Degree and one count of Attempted Escape in the Second Degree. See Respondent's ("Resp't") Ex. B at 6 (Dkt. #5). Following his arraignment on October 12, 2001, Laraby's trial counsel filed a notice of intent to present psychiatric evidence pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 250.10.*fn1 See Resp't Ex. B at 16. The trial court granted petitioner's motion to "hire a psychiatrist to evaluate those aspects of the case that you feel are relevant to that, [sic] possible defenses that would be available" Ex. J, Mot. Tr. at 3. In a written decision and order, the trial court memorialized its oral findings, and granted petitioner's application for a preliminary psychiatric evaluation. Ex. B at 22. The record does not indicate, however, that any psychiatric evaluation was ever conducted.
At trial, Laraby testified on his own behalf. He admitted that he had placed the call cord around Officer Kealy's neck, but claimed that he had done so only to facilitate his own escape, and did not intend to kill the officer. T. 300-04.*fn2 He further testified that he was motivated to escape because his life was in danger as a result of being identified as a "snitch" who had cooperated with corrections officials trying to locate weapons at the facility. T. 273-75. According to petitioner, the prison administration had received anonymous notes threatening Laraby. Petitioner was placed in protective custody after being stabbed by another inmate, but the threats of violence and harassment continued. T. 273-93. Petitioner requested, but was denied a justification charge by the court.*fn3
During final jury instructions, the trial court gave an extensive charge on the issue of intent without objection by petitioner. T. 401-02, 417-19. The jury found Laraby guilty on all counts. T. 439-42. He was then sentenced as a second felony offender to concurrent terms of 25 years to life on the attempted murder convictions and a concurrent definite sentence of one year on the attempted escape.*fn4 Sentencing Tr. 3, 8-15. The sentences were to run consecutively to the 25-years-to-life sentence that petitioner was already serving at the time he committed the instant crimes. Id. at 16.
In a pro se motion dated September 14, 2002, Laraby moved to vacate his judgment of conviction under C.P.L. § 440.10(1)(h), arguing that he had received ineffective assistance of counsel and suffered from a mental disease or defect. Ex. B 253-64. The state court summarily denied petitioner's motion, citing C.P.L. § 440.10(2)(B), as the claims were reviewable in petitioner's pending appeal. Ex. B at 249.
Petitioner, through counsel, raised six claims on direct appeal to the Appellate Division, Fourth Department, alleging:
(1) ineffective assistance of trial counsel; (2) that the trial court failed to comply with the procedural mandates of C.P.L. § 730; (3) the jury instructions improperly defined the substantive crimes and the element of intent; (4) the court deprived petitioner of a fair trial for refusing to instruct the jury on the defense of justification; (5) insufficient evidence to support the verdict and the verdict was against the weight of the evidence; and (6) the county court erred in denying petitioner's 440.10 motion without an evidentiary hearing. See Resp't Ex. A.
The Appellate Division unanimously affirmed petitioner's judgment of conviction and the court's §440.10 decision. People v. Laraby, 4 A.D.3d 749 (4th Dept. 2004). Leave to appeal the conviction to the New York Court of Appeals was also denied. People v. Laraby, 2 N.Y.3d 802 (2004).
Laraby then brought this petition for habeas corpus, alleging five grounds for relief. (Dkt. #1).
A. 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).
2. Exhaustion Requirement and Procedural Bar
"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 ...