The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Marc St. Paul ("Petitioner" or "St. Paul"), timely filed a 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, on November 25, 2002, in New York Supreme Court, Chemung County (Buckley, J.), of robbery in the second degree (N.Y. Penal Law ("Penal Law") §§ 20.00, 160.10 (2)(b)) and unauthorized use of a motor vehicle in the third degree (Penal Law § 165.05). Petitioner's conviction was affirmed by the Appellate Division, Third Department, and the New York State Court of Appeals denied leave to appeal. People v. St. Paul, 3 A.D.3d 604 (3rd Dept.), leave denied, 2 N.Y.3d 761 (2004).
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
By indictment number 2004-249, petitioner was charged with three counts of robbery in the first degree (Penal Law 165.15), two counts of robbery in the second degree, and six counts of kidnapping in the second degree (Penal Law 135.20), arising out of the following incident. On September 21, 2001, Autumn Milton ("Milton") permitted Petitioner and Douglas Lopez ("Lopez"), both of whom had been living with Milton for approximately one month, to use her car. (T.*fn1 73-4). Milton called Petitioner several times to ask him to return the car, but Petitioner and Lopez did not return to Milton's house until the next morning. (T. 74-5). Milton's three children and two younger sisters were in the house at that time. (T. 76). When they entered the house, Petitioner sat on the couch with Milton in the living room, and Lopez went into the dining room where Milton could not see him. (T. 77). Milton asked Petitioner to give her the car keys and leave the house. (T. 77-8). Lopez then came in the living room, spoke to Petitioner, and asked Milton if she wanted them to leave. (T. 78). Milton said, "yeah," and Lopez left the room again and returned with a rifle. Id. Lopez then said, "It's not going down like that," and Milton grabbed her son and ran into the kitchen. (T. 80). Milton then called the rest of the children into the kitchen. Id.
Petitioner and Lopez then came into the kitchen and paced around talking to each other. Id. Then, Petitioner asked Milton to talk to him in the bathroom. (T. 81). Milton followed Petitioner to the bathroom and he told her that if she cooperated she and the children would not be hurt, at which point Lopez came into the bathroom and asked if they had a deal. (T. 82). Petitioner told Lopez he had not yet informed Milton of the "deal." (T. 83). Petitioner then told Milton that Lopez wanted money. Id. Milton said she did not have any money, and Lopez said he knew that she did. Id. At that point, Milton asked them if they would leave if she gave them money, and she went upstairs to get $500 that was in her bedroom. Id. She gave the $500 to Lopez, and Lopez asked her for her jewelry. (T. 84). Petitioner took off Milton's jewelry and gave it to Lopez. Id.
Petitioner and Lopez talked to each other, and then told Milton that they needed to tie up her and her children "for [their] safety." (T. 85). They forced Milton and her children upstairs and tried to tie up her son who began running around and "throwing a fit," at which point, Milton asked if she could tie up the children so that Petitioner and Lopez could leave. Id. Milton tied up her children with bed sheets, and then Lopez tied up Milton. (T. 88). Lopez put tape over the sheets to secure them. Id. Petitioner brought Milton a bowl because she was getting sick, and turned on music and a fan. (T. 90). Petitioner and Lopez then left in Milton's car. (T. 90-3).
After the two men left, Milton's daughter managed to break free and go across the street to call 911. (T. 90-1). When the police arrived, Milton also noticed that Petitioner and Lopez had taken a camcorder and a cordless phone. (T. 93). They had left the rifle in the living room. (T. 94). Petitioner was later apprehended driving Milton's car with Lopez and two female passengers. (T. 172). Jewelry, money, ammunition, and a tape dispenser were found on Lopez's person, and the camcorder and cordless phone were found in the car. (T. 173, 186-7, 193, 237-40). Petitioner later told police that "things had gotten out of hand" and that he was "trying to get everybody in the house to chill out." (T. 267). He also told police that it was his idea to tie the children and Milton up so that no one would get hurt and so he and Lopez could leave the house. (T. 286).
Following a jury trial, Petitioner was convicted of robbery in the second degree*fn2 and unauthorized use of a motor vehicle in the third degree.*fn3 Petitioner made a motion to set aside the verdict pursuant to C.P.L § 330.30, arguing that the verdict was inconsistent because he was acquitted of third degree robbery*fn4 and one count of second degree robbery*fn5, but convicted of one count of second degree robbery; that the verdict was against the weight of the evidence; and that he was denied effective assistance of counsel. See Answer*fn6, Exhibits A-C. By Memorandum and Order, dated November 19, 2002, Chemung County Court denied Petitioner's motion because Petitioner did not object to the verdict prior to the jury being discharged; the verdict was not against the weight of the evidence; and Petitioner received effective assistance of counsel, despite counsel's failure to object to the allegedly inconsistent verdict. See Answer, Exhibit D. The Court reasoned that having secured acquittals on nearly all of the counts in the indictment, there was a "distinct possibility that some, if not all, of those acquittals [would] be transformed into guilty verdicts" had counsel made a timely objection to the verdict. Id.
Petitioner then appealed his conviction to the Appellate Division, Third Department, arguing (1) the verdict was inconsistent; (2) ineffective assistance of counsel*fn7; and (3) the evidence was insufficient to support the conviction for robbery in the second degree; and (4) the conviction was against the weight of the evidence. See Answer, Exhibit E. The Appellate Division affirmed his conviction, holding that Petitioner's claim that the verdict was inconsistent was unpreserved for appellate review, but that "the result would be no different if we were to consider it in the interest of justice because we would conclude that the jury did not reach and inherently self-contradictory verdict." St. Paul, 3 A.D.3d 604, 605-6 (3rd Dept. 2004). The Appellate division also held that the evidence was legally sufficient to support the robbery conviction, the verdict was not against the weight of the evidence, and Petitioner received "meaningful and effective representation". Id. at 606. With respect to his claim for ineffective assistance of counsel based on counsel's failure to object to the inconsistent verdict, the Appellate Division specifically held that counsel's strategic choice to not object was reasonable because had the charges been resubmitted to the jury, the jury could have reversed its decision to acquit Petitioner on some of the charges. Id.
Petitioner made a motion to reargue his appeal because the Appellate Division "misapprehended the relevant facts and misapplied the controlling case law in determining whether the verdict was inconsistent." See Answer, Exhibit I. The Appellate Division denied the motion. See Answer, Exhibit J. The New York State Court of Appeals denied further review. People v. St. Paul, 2 N.Y.3d 765 (N.Y. 2004).
Petitioner then filed a petition for a writ of error coram nobis in the Appellate Division, arguing ineffective assistance of appellate counsel because counsel failed to argue that the trial court improperly admitted a statement he made to police. See Answer, Exhibit M. The Appellate Division denied his petition, and the Court of Appeals denied further review. See Answer, Exhibit N and P.
III. GENERAL PRINCIPLES APPLICABLE TO ...