The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Willie Jones ("Petitioner" or "Jones"), filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his custody. Petitioner was convicted, following a jury trial in New York Supreme Court, Erie County, of attempted robbery in the first degree (New York Penal Law ("Penal Law") §§ 110.00, 160.15 ) and criminal possession of a weapon in the third degree (Penal Law § 265.02 ). For the reasons set forth below, this petition is denied.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
By indictment number 01-2513-001, Petitioner was charged with attempted robbery in the first degree, attempted robbery in the second degree (Penal Law § 110.00, 160.10 ), criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 ), arising out of the following incident. On November 26, 2001, at approximately 6 p.m., Timothy Whalen, was leaving his job at St. James School on Hastings Avenue in Buffalo, New York to get supplies from another school. (T. 24).*fn1 As he was getting into his truck, Petitioner twice yelled, "Praise the Lord," to Whalen, and Whalen responded with the same. (T. 24-5). Petitioner then approached Whalen, who was inside the truck, knocked on the window and told Whalen that he and his pregnant wife needed a ride. (T. 25). Whalen initially refused, but agreed to give Petitioner and the pregnant woman a ride after Petitioner said a prayer and told Whalen he was friends with the Pastor at the church at St. James, and he and his wife attended church every Sunday. Id. Petitioner then asked Whalen to take them to a gas station on Bailey Avenue. (T. 26). When they started to drive towards the gas station, the woman handed Petitioner, who was seated in front, a bottle of beer in a brown paper bag. (T. 28, 69). Petitioner then became aggressive towards Whalen, called him a "white mother fucker" who "hated niggers," and asked Whalen to give him money because his wife had not eaten all day. (T. 29). Whalen refused, and Petitioner continued to demand money in the same aggressive manner. (T. 29-30). Whalen then saw a police car driving in the same direction, and sped up to reach them. (T. 30). At this point, Petitioner raised the bottle toward Whalen, and ordered him to turn left and saying, "I'm going to jack you up." Id. Whalen then leaned on the horn, sped up and hit the police car from the rear. (T. 31). Whalen jumped out of the car and told the police that Petitioner was attempting to carjack him and attempting to steal money from him. (T. 31). A female police officer, Dena Fera, approached the car, spoke with Whalen briefly, and removed the bottle from the truck and threw it in a trash can.
(T. 69). Petitioner was then arrested and taken to the police station with the pregnant woman, who he told police was his friend, not his wife. (T. 75-77). The woman was deaf, and could not speak, read or write, and the police were unable to identify who she was or where she lived. Id. She was subsequently released from custody. Id.
Petitioner was convicted of attempted robbery in the first degree and criminal possession of a weapon in the third degree, following a jury trial in Erie County Supreme Court. Petitioner appealed his conviction to the Appellate Division, Fourth Department arguing the following: (1) insufficient evidence to support the conviction for attempted robbery; (2) the trial court failed to properly charge the jury on the definition of a "dangerous instrument" under the Penal Law; (3) prosecutorial misconduct during prosecutor's opening and closing statements; (4) ineffective assistance of counsel; and (5) the sentence was harsh and excessive. State Court Records, Exhibit B, Brief for Defendant-Appellant at 22. The Appellate Division unanimously affirmed his conviction, holding that defendant failed to preserve for review his claims that there was insufficient evidence to support the robbery conviction, that the trial court's jury instructions were erroneous, and that there was prosecutorial misconduct. People v. Jones, 13 A.D.3d 1192 (4th Dept. 2004). The Appellate Division also held that the prosecutorial misconduct claim lacked merit, that the Petitioner was provided "meaningful representation, and that the sentence was not unduly harsh or severe. Id. at 1192-3. The New York State Court of Appeals denied further review. People v. Jones, 4 N.Y. 3d 799 (N.Y. 2005).
III. GENERAL PRINCIPLES APPLICABLE TO HABEAS REVIEW
A. The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254 (d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently that [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F. 3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-410. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted). Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. §2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. Exhaustion Requirement
"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 remedies available in the courts of the State..." 28 U.S.C. §2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly ...