The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Lee Shorter ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered January 28, 2003, in the County Court, State of New York, Ontario County, convicting him, after a jury trial, of Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law ("Penal Law") § 220.39(1)) and two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law §220.03). For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
The charges arise out of an incident that occurred on June 20, 2002 in which Petitioner sold crack-cocaine to a confidential police informant.
By Ontario County Indictment Number 02-07-130, the grand jury charged Petitioner with one count each of Criminal Possession of a Controlled Substance in the Third Degree, Criminal Sale of a Controlled Substance in the Third Degree, and Criminal Possession of a Controlled Substance in the Seventh Degree. Petitioner was offered a plea deal, but elected to proceed to trial before the Honorable Craig J. Doran on January 21, 2003.
On June 19, 2002, Victor Fantauzzi ("Fantauzzi"), a confidential informant for the United States Drug Enforcement Administration ("DEA"), met Petitioner at "Unique Styles" ("Unique") clothing store in Geneva, New York. Fantauzzi told Petitioner that he wanted to buy crack-cocaine from him, and the two arranged to meet at Unique the following day to consummate the sale. Trial Transcript (T.T.) 368-72.
On June 20, 2002, prior to the sale, DEA agents outfitted Fantauzzi with a cassette recorder and radio transmitter, and monitored him from a nearby surveillance van. Inside the store, Fantauzzi encountered Petitioner and Herman Parker ("Parker"), the store owner, who Fantauzzi had met twice before. Fantauzzi gave Petitioner $200 in cash in exchange for 3.5 grams of cocaine (commonly referred to as "an eight ball"). During the transaction, Petitioner told Fantauzzi that he had two bags of crack cocaine left over from fifteen bags that he had the day before. Petitioner also asked Fantauzzi whether he would deal drugs for Petitioner at a local bar. After the sale, Fantauzzi was picked up by the DEA agents who retrieved the transmitter and cassette recorder. Fantauzzi also gave them the drugs that he purchased from Petitioner. T.T. 291-98, 341-47, 373-89, 447, 462-63, 502-16, 558-60.
At approximately 4:00 p.m. on June 27, 2002, DEA agents, working with members of the Geneva City Police Department and the Ontario County Sheriff's Office, executed a search warrant at Unique clothing store in Geneva, New York. Present at Unique at the time the warrant was executed were Petitioner, Parker, and two other individuals. When law enforcement officials entered the store, they ordered everyone to lie on the floor. Everyone complied except for Petitioner, who ran to the back of the store and threw a paper towel containing eleven small bags of crack-cocaine onto a stack of shirts. The drugs were recovered, and Parker denied that they were his drugs. The police also seized two utility bills addressed to Petitioner at the Unique street address. Petitioner stated that he was unemployed when he was arrested. T.T. 313-19, 470-78, 498, 518-28, 560-78, 630-50, 690-701.
Petitioner called Parker to testify in his defense. Parker testified that he was serving a six to twelve year sentence for selling crack-cocaine to Fantauzzi on June 6, 13, and 27 of 2002. He admitted to having prior convictions for Criminal Sale of a Controlled Substance and for Criminal Possession of a Controlled Substance. He stated that he had known Petitioner for twenty years and considered him a lifelong friend. He testified that he, and not Petitioner, owned Unique and that he had paid Petitioner to put the store's utility bill in Petitioner's name because Petitioner had better credit. He admitted that he was a drug dealer and indicated that Petitioner was a drug user who had never dealt drugs. T.T. 710-12, 718-27.
On June 27, 2002, Parker began smoking crack-cocaine at 8:00 a.m. and continued throughout the day. Parker recalled that Petitioner arrived at the store one or two minutes before the police executed the search warrant. He further stated that Petitioner did not run to the back of the store when the police entered but immediately complied with the police directive to lie on the floor. Parker said that when the police found the paper towel containing the eleven bags of cocaine, Parker announced "[a]nything you find here belongs to me." Parker claims that Petitioner adamantly denied to the police that he possessed the drugs. T.T. 712-16, 737, 754-65.
3. Verdict and Sentencing
On January 24, 2003, the jury returned a verdict of guilty on the charge of Criminal Sale of a Controlled Substance in the Third Degree and two counts of Criminal Possession of a Controlled Substance in the Seventh Degree, and acquitted him of Criminal Possession of a Controlled Substance in the Third Degree. T.T. 911-12. On January 28, 2003, Petitioner was sentenced, as a second felony offender, to eight to sixteen years imprisonment on the sale count and one year on each of the possession counts --- with one year to run consecutive and one year to run concurrent to the sale count. Sentencing Minutes (S.M.) 12-13.
B. Petitioner's Direct Appeal
1. Direct Appeal to the Appellate ...