The opinion of the court was delivered by: Dora L. Irizarry, District Judge
Pro se petitioner Timothy Lacewell seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 13, 2006, a jury in New York State Supreme Court, Richmond County, convicted petitioner of criminal possession of a controlled substance in the fourth degree, assault in the second degree, assault in the third degree, and resisting arrest [N.Y. Penal Law §§ 220.09(1), 120.05(3), 120.00(1), 205.30, respectively]. As to each of these crimes, respectively, petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of seven to fourteen years, a determinate prison term of seven years with five years of post-release supervision, and two definite terms of imprisonment of one year each, all to run concurrently.
On June 12, 2008, petitioner filed for habeas relief, arguing that: (1) the trial court erred by instructing the jury that they could consider petitioner's threat as evidence of consciousness of guilt; (2) the sentence is excessive; (3) the government offered perjurious testimony from an arresting police officer regarding the injuries that petitioner inflicted on him; and (4) petitioner's trial counsel was ineffective in failing to show such perjury. For the reasons set forth more fully below, the petition is denied in its entirety.
A. Summary of Charges and Trial
The defendant was arrested on October 14, 2003, and charged by indictment with the crimes of criminal possession of a controlled substance in the fourth degree, assault in the second degree, assault in the third degree, criminal harassment, and resisting arrest. These charges stemmed from a car stop that turned violent when the defendant attacked the police officers who detained and arrested him. During petitioner's trial, which began on January 20, 2005 in New York State Supreme Court, Richmond County, the government presented testimony from two plainclothes New York City police officers, Detective Paul Corcoran and Sergeant Anthony Cotroneo, and Emergency Medical Technician Michael Rodriguez, among others. The defendant did not testify.
Evidence adduced at trial showed that on October 14, 2003, Detective Corcoran and Sergeant Cotroneo approached a parked car where petitioner and a companion were sitting. (Tr. 589-91.)*fn1 The officers noticed what they believed to be a marijuana cigarette in the vehicle and smelled what they believed to be a combination of marijuana and PCP. (Tr. 596, 601-03, 827, 834.) Sergeant Cotroneo became concerned that petitioner was trying to conceal something and asked petitioner to exit the vehicle. (Tr. 827-28.) Petitioner responded by stepping out of the car and striking the sergeant in the face. (Tr. 828.) The two men then grappled with each other, exchanged additional punches, and petitioner bit Sergeant Cotroneo. (Tr. 604-05, 828-30.) Petitioner also punched Detective Corcoran and stomped on his hand while the detective attempted to restrain and handcuff petitioner. (Tr. 604-06, 829.)
After handcuffing petitioner, the officers searched petitioner's pockets and found two bags containing approximately one-quarter ounce of cocaine and 0.2 grams (approximately .00045 ounces) of PCP. (Tr. 518-21, 808-10.) Shortly thereafter, an emergency medical technician ("EMT") arrived to treat the officers' injuries. The EMT's ambulance call report indicates that Detective Corcoran complained primarily of a "hand injury," and also showed abrasions in "hands/face." (Pet'r Aff. in Supp. of Mot. to Vac. Ex. A; see also Tr. 557-61, 611-13, 832-33.) The officers then brought petitioner to the precinct for booking. (Tr. 613.) During booking, petitioner allegedly threatened Detective Corcoran and his family by claiming that he could get Corcoran's address from a friend who worked for EZ Pass.*fn2 (Tr. 617.)
Prior to closing arguments and final jury charges, defense counsel successfully moved to dismiss the criminal harassment charge, which was based on defendant's threat against Detective Corcoran during the booking process, on the basis that a single threat did not constitute a course of harassing conduct. (Tr. 905-06.) Though the harassment charge was dismissed, the prosecution requested leave to use petitioner's threat against Detective Corcoran as evidence of consciousness of guilt as to the remaining charges. (Tr. 910.) The prosecutor argued that petitioner made the threat to stop his arrest, and, as the evidence was no longer relevant to the dropped harassment charge, a jury instruction regarding consciousness of guilt was necessary to put the evidence in the proper context. (Tr. 911.) Defense counsel responded that the threat did not exhibit petitioner's consciousness of guilt, but merely his anger at being arrested. (Tr. 911.)
The court granted the prosecutor's request, agreeing that a consciousness of guilt instruction would assist the jury in placing the threat in the appropriate context. (Tr. 911.) The judge held that the jury could determine if there was an innocent explanation for the alleged threat-e.g., a mere expression of anger-or whether the threat was made, as the prosecution argued, to disrupt the booking process. (Tr. 911-12.) Defense counsel did not make a formal objection to this ruling, suggest an alternative charge, or ask that the evidence be stricken. (Tr. 911; Resp't Aff. in Opp'n ¶ 12.)
In its final charge, the court instructed the jury that petitioner's alleged threat to Detective Corcoran could be used as evidence of consciousness of guilt. It instructed the jury further that, even if they found that the threat was evidence of consciousness of guilt, it had only "slight [probative] value" and could not, without more, be the basis for a guilty verdict. (Tr. 1015.) The jury subsequently found petitioner guilty of all charges. (Tr. 1035-36.)
On April 7, 2005, the court determined that petitioner was a second felony offender under N.Y. Penal Law § 70.06, based upon his criminal history, and thus subject to an enhanced sentence. On April 13, 2005, the court imposed an indeterminate prison sentence of seven to fourteen years for the drug conviction, a determinate prison sentence of seven years (plus five years of post-release supervision) for the second degree assault conviction, and two determinate terms of imprisonment of one year each for the third degree assault and resisting arrest convictions. (Resp't Aff. in Opp'n ¶¶ 2, 15.) All sentences were to run concurrently. (Resp't Aff. in Opp'n ¶ 15.)
Petitioner timely appealed his convictions to New York State Supreme Court, Appellate Division, Second Department ("Appellate Division"). Petitioner argued that: (1) the trial court erred by admitting his threat as evidence of consciousness of guilt, and (2) his sentence was harsh and excessive in light of the 2004 amendments to New York State's sentencing scheme for drug offenders. (Resp't Aff. in Opp'n ¶ 17.) Petitioner reasoned that, because the harassment charge had been dismissed, any evidence of the threat was irrelevant and unfairly prejudicial to his defense of the remaining charges. (Pet. at 3A.) Petitioner contended that the jury did not need contextual clarification and should have been instructed to disregard the evidence entirely. (Id.) The prosecution responded that petitioner's appeal of the jury instructions was not preserved under N.Y. Crim. Proc. Law § 470.05(2), and that, even if there was error, it was harmless and should not be disturbed under the Appellate Division's "interest of justice" review power. (Resp't Aff. in Opp'n ¶ 18.) With respect to the harshness of petitioner's sentence, the prosecution argued that the court's sentence was supported by petitioner's pre-sentence report which detailed petitioner's criminal history since 1982 and described him as "defensive, smug, arrogant and unrepentant" and a "career criminal who has failed to benefit from his previous contacts" with the criminal justice system. (Resp't Aff. in Opp'n ¶ 19.) Since the trial court sentenced petitioner to concurrent rather than consecutive sentences, the prosecution argued that petitioner received all leniency he could reasonably expect. (Id.)
On October 16, 2007, the Appellate Division affirmed the conviction, holding that "any error in giving the [consciousness of guilt] charge was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his convictions." People v. Lacewell, 44 A.D.3d 876, 877 (2d Dep't 2007) (citing People v. Crimmins, 36 N.Y.2d 230, 241-42 (1975)). It further held that the court's sentence was not excessive. Id. Petitioner ...