The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Ryan D. Porter ("Petitioner") has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered January 25, 2002 in New York State, County Court, Monroe County, convicting him, after a jury trial, of Robbery in the First Degree (New York Penal Law § 160.15 ), Tampering with a witness in the Third Degree (Penal Law § 215.11 ), and Intimidating a victim or witness in the Third Degree (Penal Law § 215.15 ).
For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
On November 18, 2000, Petitioner stole approximately $300 from Michael's Dry Cleaners ("Michael's") in the Town of Greece, County of Monroe, by holding the employee, Regina Margiotta ("Margiotta"), at gunpoint. Trial Transcript [T.] 177-83. Minutes after robbing the store, Petitioner returned to the store, held the gun up to Margiotta's head and said, "you know, you didn't see anything, you are going to be quiet. You are not going to say you saw anything. You don't remember anything." T. 184-85.
On September 21, 2001 a Wade hearing*fn1 was held in Monroe County Court where it was determined that Margiotta had identified Petitioner as the man who had robbed her at Michael's. Wade Hearing [W.H.] 8. The hearing demonstrated that on January 17, 2001, Sergeant Robert Trowbridge ("Trowbridge") of the Town of Greece Police Department visited Margiotta at her home to conduct a photo identification procedure as part of his investigation of the robbery of Michael's. W.H. 8-9. Trowbridge showed Margiotta six photographs and told her that "a person that she saw the evening of the incident may or may not be in the photo array," and Margiotta selected Petitioner's photo. W.H. 8. Following the Wade hearing, the court denied Petitioner's motion to exclude the identification testimony. W.H. 24.
On September 22, 2001, Margiotta received a telephone call at her home from a woman who identified herself as "Keesha." T. 195-99. After speaking with "Keesha" for approximately five to eight minutes, another person got on the phone and Margiotta recognized the voice as that of Petitioner. T. 195-99. Petitioner apologized for robbing Margiotta, explaining that "he was on heroin and... high at the time." T. 200. Petitioner then said, "you know, there is a trial coming up. I don't want you to testify," and offered Margiotta money. T. 200. Petitioner told Margiotta that he knew she had picked him out of a lineup and asked if he could have her promise that she wouldn't testify. T. 200. Margiotta responded, "[w]hat if I do?", to which Petitioner replied "that he didn't want to see anything bad happen to [Margiotta]." T. 200. Margiotta became hysterical and hung up the phone. T. 200-01. Five minutes later the phone rang again, Margiotta heard a voice say "Keesha," and then the phone was disconnected. T. 202-03. The phone rang again, Margiotta answered it, spoke with "Keesha" for about two minutes, and then hung up. T. 203-04. Margiotta notified the police of the phone calls, and then filed a report of the incident with the District Attorney's Office. T. 205.
Following a jury trial, Petitioner was convicted and received a fifteen year determinate sentence with five years post-release supervision on the Robbery count, and a two to four year sentence on both the Tampering and Intimidating counts, to run concurrently with each other, but consecutive to the Robbery count.
Petitioner appealed his conviction to the Appellate Division, Fourth Department, and his conviction was unanimously affirmed. People v. Porter, 2 A.D.3d 1429 (4th Dep't 2002), lv. denied 2 N.Y.3d 744 (N.Y. 2004).
On March 31, 2005, Petitioner filed a habeas corpus petition in which he raised two grounds for relief: (1) the jury may have convicted him of an unindicted act; and (2) the pre-trial photo array was unduly suggestive. Petition ["P."] ¶22A, B, Addendum ("Add."), Point I, II (Dkt. #1). On June 28, 2005, Petitioner filed a motion to stay and hold the petition in abeyance in order to completely exhaust his state judicial remedies regarding "additional issues" not included in the original petition. Petitioner's ["Pet'r"] Motion to Stay (Dkt. #8). The Court denied Petitioner's motion for a stay as premature, and directed him to submit an amended complaint including all claims, both exhausted and unexhausted, by August 12, 2005. Decision and Order, June 29, 2005 (Dkt. #9). The Court also ordered that, upon submission of the amended complaint, Petitioner could renew his request for a stay-and-abeyance. Id.
On August 25, 2005, Petitioner filed a proposed amended petition, which the Court treated as a motion to amend the petition, wherein he raised his two original claims and one additional claim - prosecutorial misconduct and unbalanced interested witness charge. See Amended Petition ["Am. Pet."], (Dkt. #10). Petitioner did not renew his request for a stay in the proposed amended petition. On October 28, 2005, Petitioner filed what was docketed as a "Response to Respondent's Memorandum" in which he renewed his request for a stay until an "additional claim" had been exhausted in the state courts. See Pet'r Response (Dkt. #15). On March 6, 2006, the Court granted Petitioner's motion to amend his petition and treated the document filed as Docket #10 as Petitioner's amended petition. See Decision and Order, March 6, 2006 (Dkt. #17). The Court did not expressly address Petitioner's renewed request for a stay-and-abeyance raised in Petitioner's "Response to Respondent's Memorandum" (Dkt. #15).*fn2
On May 22, 2007 Petitioner filed an application for a writ of error coram nobis in the Appellate Division, alleging ineffective assistance of appellate counsel, which was denied on July 6, 2007. People v. Porter, 42 A.D.3d 975 (4th Dep't 2007), lv. denied 9 N.Y.3d 963 (N.Y. 2007). On December 19, 2007, having exhausted this claim in state court, Petitioner filed a "Memorandum of Law in Support of Addendum to Petition for Writ of Habeas Corpus" in which he raised for the first time an ineffective assistance claim as his fourth claim for habeas relief. See Pet'r Memo (Dkt. #19).
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 than [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 ...