The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Alfred Robinson, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Robinson is currently in the custody of the New York Department of Correctional Services, incarcerated at the Auburn Correctional Facility. Respondent has answered, and Robinson has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
After a jury trial, Robinson was convicted in the Onondaga County Court of Attempted Murder in the First Degree (N.Y. Penal Law §§ 110/125.27), Tampering with a Witness in the First Degree (N.Y. Penal Law § 215. 13), Assault in the First Degree (N.Y. Penal Law § 120.10), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03), Assault in the Second Degree (N.Y. Penal Law § 120.05), Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02), Bribing a Witness (N.Y. Penal Law § 215.00), Tampering with a Witness in the Third Degree (Penal Law § 215.11), and Tampering with a Witness in the Fourth Degree (N.Y. Penal Law § 215.10). The Onondaga County Court sentenced Robinson to an aggregate prison term of 351/2 years to life. Robinson timely appealed his conviction to the Appellate Division, Third Department, which affirmed his conviction in a reasoned decision, and the New York Court of Appeals denied leave to appeal on July 21, 2006.*fn2 Robinson timely filed his petition for relief in this Court on October 12, 2007.
II. GROUNDS RAISED/DEFENSES
In his petition Robinson raises six grounds: (1) he was denied the effective assistance of counsel; (2) he was denied his right to be present at all material stages of trial; (3) his inculpatory statement to the police was involuntary; (4) the evidence was insufficient to support the conviction of first-degree assault; (5) the prosecutor made improper comments during summation; and (6) he was denied a fair trial and due process (cumulative error). Respondent has not asserted any affirmative defenses.*fn3
Because the petition was filed after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Consequently, this Court cannot grant relief unless the decision of the state court "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States at the time the state court rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn5 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn6 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn9 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn10 Petitioner "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn11
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn12 In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn13
To the extent that the petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn14 A federal court must accept that state courts correctly applied state laws.*fn15 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn16 A federal court may not issue a habeas writ based upon a perceived error of state law unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn17
Ground 1: Ineffective Assistance of Trial Counsel.
In his petition Robinson contends that he was denied the effective assistance of trial counsel. Specifically, Robinson alleges that counsel: (1) allowed persistent bolstering of identification testimony throughout trial; (2) inexplicably waived a suppression hearing resulting in the admission into evidence at trial of an alleged admission; (3) failed to call a witness who allegedly could testify to the victim's inability to identify Robinson as the shooter or ask for a missing witness charge concerning that witness; (4) failed to call a police officer whose discussion with the victim immediately after the shooting was allegedly exculpatory; (5) failed to object to the hearsay testimony of two of the prosecution witnesses; (6) failed to object to the prosecutor's improper comments made during summation; (7) failed to ask for a limiting instruction, or a clarification of, the court's charge regarding the consciousness of guilt testimony of a witness; and (8) conceded Robinson's guilt on two of the charges.
Robinson raised this ineffective assistance of counsel argument on direct appeal. The Appellate Division summarily rejected Robinson's arguments, simply stating: "that defendant received meaningful representation."*fn18 Where the state court provides no reasoning when addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn19
In so doing, because it is not clear that it did not so do, this Court assumes that the state court decided the claim on the merits and the decision rested on federal grounds.*fn20 This Court gives the assumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn21
Under Strickland v. Washington,*fn22 to demonstrate ineffective assistance of counsel, Robinson must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn23 A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.*fn24 Robinson must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn25
Strickland and its progeny do not mandate this court act as a "Monday morning quarterback" in reviewing tactical decisions.*fn26 Indeed, the Supreme Court admonished in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.*fn27
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").*fn28
It is through this doubly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d)(1) standard.*fn29
While judicial inquiry into counsel's performance under Strickland must be highly deferential, it is "by no means insurmountable," but nonetheless remains "highly demanding."*fn30
"Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ and will be entitled to retrial."*fn31
Robinson bears the burden of proving that counsel's trial strategy was deficient. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"*fn32 "In determining whether the defendant received effective assistance of counsel, 'we will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight,' but rather, will defer to counsel's sound trial strategy."*fn33 "Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment."*fn34
"A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment."*fn35 The court must then consider those acts or omissions against "prevailing professional norms."*fn36 Even then, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."*fn37
The Appellate Division found that Williams was provided with meaningful representation. This Court is not bound by that determination, but must independently determine whether the application of the New York "meaningful representation" rule in this case was an unreasonable application of Strickland.*fn38
Robinson argues that trial counsel was ineffective for failing to object when the prosecution improperly elicited testimony from the two attending paramedics who responded to the scene of the incident, the mother of the victim, and the officer who arrested Robinson that the victim had identified him as the perpetrator.*fn39 Robinson contends that this testimony turned a one-witness identification into a five-witness identification, constituting improper bolstering, to which counsel should have interposed an objection.*fn40 New York's rules regarding bolstering are subject to several exceptions, including an exception for when the reliability or accuracy of an identification is brought into question.*fn41
In this case, it is evident that from the outset to the end, a substantial, if not the predominant, defense theory on the charges arising out of the shooting was the inability of the victim to identify Robinson as the perpetrator.*fn42 Robinson advances no argument that this was not a viable defense or that counsel was in any way ineffective for presenting this defense. Consequently, any objection would have been overruled under New York law. In the absence of a reasonable probability that the objection would have been sustained, it hardly constitutes ineffective assistance of counsel under Strickland-Hill to not have interposed the objection.
2. Waiver of Suppression Hearing
When he was arrested, Robinson stated to the arresting officer "so I guess he is talking now."*fn43 Robinson argues that trial counsel waived a suppression hearing and instead argued that the statement was not an admission but inadmissible hearsay. According to Robinson, counsel failed to establish that Robinson was in custody, represented by counsel, to whom the statement was made, to whom Robinson was referring, whether the officer asked questions before or after the statement, or whether Robinson asked to have his attorney present at any time. According to Robinson these were necessary to determine the voluntariness of the admission or confession. The Appellate Division found that the statement was made voluntarily, holding: "[c]ontrary to the contention of defendant, his statement to the arresting officer was spontaneous and was therefore properly admitted at trial."*fn44
The arresting officer testified at trial:
Q: Detective Schmidt, did you advise him what you were there for?
Q: Okay. What did you tell him?
A: I advised him that I was there to arrest him for attempted murder in the first degree, and criminal possession of a weapon in the first degree, for the shooting of Mr. Thihele Gaines.
Q: And did Mr. Robinson say anything to you at that time?
A: Yes, he did. He said, so I guess he's talking now.*fn45
Robinson does not argue that the determination of the Appellate Division was factually incorrect. Nor does Robinson provide any evidence that the questions he contends were never answered would have changed the outcome.*fn46 In particular, Robinson has not made any argument or presented any evidence that the strategy chosen, to challenge admissibility of the statement on the grounds that it was inadmissible hearsay, not an admission, was unsound under the circumstances. This Court cannot find that counsel was ineffective for pursuing that strategy.
3. Failure to Ask for a Missing Witness Charge as to Officer Lioto
This issue arises out of a police report which contains a statement attributed to the victim encased in quotation marks. When asked who had assaulted him, the victim answered "probably the guys who stabbed me." Robinson argues that trial counsel was ineffective in failing to request a missing witness charge with respect to Officer Lioto, the officer who rode in the ambulance with the victim and prepared the report containing the victim's statement. Although the police report itself was excluded from evidence, trial counsel was able to get the statement on the police report read verbatim into the record through a prosecution witness.*fn47 Robinson's position is that Officer Lioto could have added material information on the issue of the victim's identification of his shooter(s), i.e., the victim's inability to identify his shooters immediately following the shooting.
A "missing witness" charge allows the jury to draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of the facts.*fn48 To warrant a missing witness instruction, Robinson must establish that: (1) the witness had knowledge material to the trial; (2) the witness would naturally be expected to give non-cumulative testimony favorable to the party who failed to call the witness; and (3) the witness is available to the party who would be expected to call the witness.*fn49 Robinson's argument fails on the second prong. The alleged statement that the witness would have been expected to testify about and its source were bought to the attention of the jury. A defendant is not entitled to a missing witness charge where the testimony of the witness would have been merely cumulative of evidence already in the record.*fn50 The testimony of Officer Lioto would have been either cumulative or, as discussed in the immediately following discussion on the failure to call him as a witness, unfavorable to Robinson. Even if it is likely that a missing witness charge, if requested, would have been granted, ...