The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
Petitioner Arthur Alston, an inmate acting pro se, filed a petition under 28 U.S.C. §2254 for a writ of habeas corpus on March 13, 2007 .*fn1 The parties have consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. §636(c) . For the following reasons, I order that the petition be DENIED.
Petitioner was charged in an indictment (No. 2002-0617) with criminal possession of a controlled substance in the third degree (N.Y. Penal Law §220.16(1)) and criminally using drug paraphernalia in the second degree (N.Y. Penal Law §220.50). Arraignment, November 13, 2002. The indictment arises from a June 18, 2002 search warrant executed at petitioner's residence at 945 North Plymouth Avenue, Rochester, New York. T, p. 171.*fn2 Petitioner's fiancé, Doloris Serrant, resided at the residence with their two children. T, pp. 379-381.
In the attic of the residence, officers recovered, inter alia, one hundred dollars, several bags of crack cocaine, unused zip lock baggies of the type commonly used to package cocaine for street sale, and mail addressed to petitioner. T, pp. 178-180. Following the search, petitioner gave the following sworn statement: "I sell drugs to help provide for my family. I'm the one who sells. My wife is not involved with it. I do it just for my family. I keep the money and the drugs together upstairs". T, p. 307. However, at the trial, petitioner testified that the drugs were not his and that his sworn statement was the product of police coercion. T, pp. 420-424. Ms. Serrant also testified that the drugs belonged to her. T, pp. 383, 386-387.
Prior to trial, the court (Hon. Frank P. Geraci, Jr., Monroe County Court Judge) denied petitioner's motion pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974) which sought to preclude the prosecutor from cross-examining petitioner regarding his prior convictions because the prior convictions bore on petitioner's credibility. April 7, 2003 Proceeding, pp. 3-6. Consequently, at trial, petitioner was cross-examined concerning his prior convictions. T, pp. 434-438.
There were also two previous "controlled buys" at petitioner's residence that were not the subject of the charges in the indictment. On several occasions prior to trial the prosecutor indicated that he would not introduce evidence of the these two sales. January 6, 2003 Proceeding, p. 3; April 7, 2003 Proceeding, p. 7. However, during defense counsel's cross-examination, Officer David Swain was asked "what factors made you decide to charge him with Intent to Sell?". In response, he testified, inter alia, "that they were executing a search warrant based upon the fact that drug sales were coming from the apartment". T, p. 349. The court ordered the response stricken from the record and instructed the jury to disregard it. Id. Petitioner's motion for a mistrial was also denied. T, pp. 351-352.
The jury found petitioner guilty of criminal possession of a controlled substance in the third degree. T, 516. Petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of six to twelve years. April 29, 2003 Sentencing, pp. 6, 14.
On appeal, petitioner argued that Officer Swain's testimony concerning the prior drug sales at the residence was improper, that the court's Sandoval ruling was erroneous, that statements in the prosecutor's summation deprived him of a fair trial, and that his sentence was harsh and excessive. Appendix B. The Appellate Division, Fourth Department, affirmed petitioner's conviction (People v Alston, 27 AD3d 1141 (4th Dept. 2006)) and leave to appeal to the Court of Appeals was denied. See People v. Alston, 6 N.Y.3d 892 (2006).
The Habeas Corpus Petition
Petitioner seeks a writ of habeas corpus on the grounds (1) that he was entitled to the disclosure of the identity of the informant who provided information supporting the search warrant; (2) that Officer Swain's testimony concerning the prior controlled buys was prejudicial; (3) that the court's Sandoval ruling was improper; and (4) that his sentence is harsh and excessive. Petition , pp. 6-7.
A. Exhaustion and Procedural Default
A petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack on his conviction before he may ...