The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Pro se petitioner Steven Battle is currently serving a thirteen-year prison sentence following his conviction in New York State Supreme Court, Richmond County, for Robbery in the Second Degree, New York Penal Law § 160.10(1), Assault in the Second Degree, New York Penal Law § 120.05(5), and Criminal Possession of Ammunition, New York Admin. Code § 10-131(I). Pursuant to 28 U.S.C. § 2254, he challenges his conviction, claiming that: (1) he was denied a fair hearing on his allegation of juror misconduct because the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division") refused to release the names and addresses of all the jurors; (2) juror misconduct denied him an impartial jury; (3) the trial court gave an unbalanced charge under Allen v. United States , 164 U.S. 492 (1896); and (4) the trial court mishandled a note from a juror that explained her assessments of the prosecution's case. For the reasons set forth below, the petition is denied.
On December 19, 1999, at approximately 1:35 P.M., Dennis Powell walked past petitioner on his way to baby-sit his godchildren. (Trial Transcript ("TR") at 166-67.) Petitioner and Powell had known each other for approximately three or four years. (Tr. at 159-60.) At the time, Powell was wearing a Rolex watch, an earring, and a chain with a medallion. (Tr. at 167.) At approximately 1:45 P.M. that same day, petitioner and an accomplice knocked on the door of the apartment where Powell was baby-sitting. (Tr. at 155-57.) When the door was opened,*fn1 petitioner's accomplice held Powell up at gun point while petitioner ordered Powell to hand over his watch, wallet, and jewelry. Powell complied. Petitioner also snatched the chain from Powell's neck. (Tr. at 156-159.) Then, petitioner beat Powell in the face with the gun, knocked him to the ground, and petitioner repeatedly stomped him. (Tr. at 18, 156, 159.)*fn2 All of this occurred in the presence of Powell's three godchildren, all of whom had known petitioner for years and had seen him almost every day. (Tr. at 29-32, 35-37, 57, 62-64, 75-80, 126-127, 129-33.)
After petitioner and his accomplice left, one of the children called the police. (Tr. at 91.) Shortly afterwards, Officer Lawrence Fiorello and his partner arrived.
(Tr. at 3-4, 91.) According to Officer Fiorello, Powell told him that he knew the person who robbed him, and he would "take care of it in his own way." (Tr. at 9.) An ambulance then took Powell to Brookdale Hospital, where he was treated. (Tr. at 2-6, 9, 13.)
Two days after the robbery, Detective John Williams interviewed Powell by telephone. During this interview, Powell identified petitioner as the robber and assailant and provided petitioner's address. (Tr. at 181-82, 184, 203-04.) On December 21, 1999, at 6:00 P.M., Detective Williams, along with other officers, went to that address. (Tr. at 183-84.) Petitioner saw the police approaching and ran into his mother's apartment, where the police pursued and arrested him. (Tr. at 185-86.) The police recovered Powell's Rolex watch from the room to which petitioner had fled as well as .38-caliber bullets on his person.*fn3 (Tr. at 161, 186-191.)
Powell testified before the Grand Jury, where he explained that petitioner robbed and assaulted him. (Tr. at 153-59.) At trial, however, Powell changed his testimony. He denied that petitioner robbed and assaulted him and claimed that his godchildren were not present during the robbery. (Tr. at 228-29.) Powell acknowledged that he had previously identified petitioner as his robber and assailant. (Tr. at 228). Powell also testified about two events that occurred between that identification and when he called the prosecutor to change his story.
(Tr. at 257.) On the first occasion, a group of men approached Powell and threatened him. One of them said, "My man can't stay in jail." (Tr. at 250.) One of those men had a gun. (Tr. at 276.) The second occasion was when petitioner's father offered to pay Powell for the jewelry that was taken. (Tr. at 253-257.)
On September 20, 2000, at 12:15 P.M., the jury began to deliberate. That afternoon, the court received several notes from the jury requesting Powell's grand jury testimony, trial exhibits, and additional instructions on reasonable doubt, which the court provided. (Tr. at 368-370.) At 3:20 P.M., the jury sent another note indicating that they had reviewed the case and were hung. (Tr. at 370.) With the consent of the parties, the court responded by instructing the jury to "make further effort and resume deliberations." (Tr. at 371.)
At 4:18 P.M., the jury sent another note, stating that it was deadlocked "eleven to one, but one juror is absolutely not willing to work with the other jurors." (Tr. at 372.) The court asked the parties for their opinions on how to handle the note, and they agreed that the court should instruct the jury to continue their deliberations. (Tr. at 371-372.) The court instructed the jury as follows:
There is a tendency in human nature sometimes to become personally and even unreasonably stubbornly attached to a position for which we have argued. Whether or not such a thing has occurred as a result of your deliberations, of course, we have no way of knowing. But I ask each of you to reflect on the possibility that such a thing has occurred and to re-examine your position on the basis of your reflection. If you are in the minority, consider whether your position is well taken in light of all the elements and the fact that the majority has a different view. If you're in the majority, consider whether your position is well founded.
You are not persuaded solely because of the opinion of fellow jurors or for the purpose of returning a verdict, but those persuaded that guilt has not been established beyond a reasonable doubt as to a given charge are reminded that mathematical certainty, proof beyond all doubt is not required. Those persuaded that guilt has been established beyond a reasonable doubt as to a given charge are reminded that a mere probability of guilt is insufficient. It is your duty to those who hold a different view to listen with a disposition receptive to a reasonable and persuasive point and a willingness to change your mind, if appropriate on the basis of such a point. If stubbornness or a capricious attitude have [sic ] crept into your deliberations, please try to eliminate them and make every effort to reach an unanimous verdict. (Tr. at 372-374.) Neither party objected to these instructions.
Later that day, the court notified the parties that one of the jurors, Jocelyn Smith, a law student, had sent a three-page note. (Tr. at 375, 380.) The court clerk who had delivered the note explained that he believed the note contained Smith's explanation for her position in the deliberations. (Tr. at 375, 381.) Petitioner's counsel asked the court to read the note before the parties, but the court expressed concern that doing so may result in a mistrial if the note contained confidential information about the deliberations.*fn4 (Id .) Therefore, the court decided that, before reading the note, it would speak with Smith to determine whether it contained such information. (Tr. at 375-380).
Smith explained to the court that the other jurors knew she wrote the note and it set forth her position and the underlying reasons. (Tr. at 381-382.) In light of her explanation, the court decided not to read the note and reminded Smith that the deliberations "are confidential and for the ears of the members of the jury alone and not appropriately published to the world at large or even to the Court and counsel." (Tr. at 381-382.) The court then called the jury into the courtroom and re-emphasized to them that they should keep their deliberations confidential. (Tr. at 383-84.)
Before the jury resumed their deliberations the next morning, the court read Smith's note to and with the consent of the parties. (Tr. at 387-389.) In the note, she explained that, after considering all of the evidence, she believed that the "State ha[d] not met its burden of proof for most of the counts of the indictment." (Tr. at 390.) Furthermore, she had been unable to convince the remaining jurors of her position, and they were unable to convince her, and she "cannot see any chance of [their] respective positions changing." (Id .) Smith also explained why she believed the prosecution had not met its burden. (Tr. at 391-96.) When asked by the court, neither counsel commented on the note. (Tr. at 397.) The jury then resumed deliberations. (Id .)
During the deliberations, the jury requested to review the physical evidence and portions of the trial testimony of the three children who witnessed the robbery. (Court Exs. 8 & 9; Tr. at 397-99.) The court provided this evidence, and later that day, the jury reached a verdict. (Tr. at 397-98.) The jury found petitioner guilty of Robbery in the Second Degree, Assault in the Second Degree, and Criminal Possession of Ammunition, but it acquitted him of ...