The opinion of the court was delivered by: Kenneth M. Karas, District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Pro se Petitioner Roman Silva ("Petitioner") brings this writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for robbery in the first degree, petit larceny, and criminal possession of a weapon in the fourth degree. The case was referred to Magistrate Judge Lisa Margaret Smith for review, pursuant to 28 U.S.C. § 636(b).*fn1 On June 9, 2009, Magistrate Judge Smith issued a thorough Report and Recommendation ("R&R"), concluding that this Court should deny the Petition in all respects. For the reasons stated herein, the Court adopts the conclusions of the R&R and denies Petitioner's claims for habeas relief.
Although the Court assumes the Parties' general familiarity with the factual and procedural background of this case as set forth in the R&R, the Court will briefly summarize the facts most salient to the Petition.
A. Offense and Conviction
On January 18, 1999, Petitioner stole a power washer from a Sears department store in Newburgh, New York; two Sears employees followed Petitioner out into the parking lot, where Petitioner lunged at one of the employees with a screwdriver, threatened to kill him, and then ran away. After a jury trial in New York Supreme Court, Orange County, Petitioner was convicted of robbery, petit larceny, and criminal possession of a weapon, and was sentenced to thirteen years' imprisonment and five years' post-release supervision.
On direct appeal, Petitioner argued that "the verdict of guilt went against the weight of the evidence," that the prosecution "failed to prove the elements of Robbery in the First Degree and the elements of Criminal Possession of a Weapon in the Fourth Degree," that Petitioner was "denied the effective assistance of counsel," and that "the sentence was excessive and/or illegal under the circumstances." (Resp't's R. of Exs. ("Resp't Ex.") Ex. 10, at 5.) In supplemental briefing, Petitioner also argued that "the trial court erred in denying [Petitioner's] motion to dismiss the indictment" for "insufficiency of evidence" before the grand jury, and that Petitioner was "denied his due process [right] to a fair trial when the prosecutor went beyond the prescribed boundaries of the Court's Sandoval . . . ruling" in making certain statements during summation. (Resp't Ex. 16, at 1, 7, 25 (format altered from original).) The Appellate Division unanimously affirmed Petitioner's conviction, rejecting each of Petitioner's arguments. See People v. Silva, 760 N.Y.S.2d 876 (App. Div. 2003). That court stated:
The defendant failed to preserve for appellate review his contentions as to the legal sufficiency of the evidence of his guilt of the crimes of robbery in the first degree and criminal possession of a weapon in the fourth degree. In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish his guilt of those crimes beyond a reasonable doubt. Minor discrepancies between the testimony of witnesses is not sufficient to show that a witness's testimony was incredible as a matter of law. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence.
Since the convictions were based on legally sufficient trial evidence, the denial of the defendant's motion to dismiss the indictment based on the alleged insufficiency of the Grand Jury evidence is not reviewable on appeal.
The defendant's contention that certain remarks made by the prosecutor during summation were improper is unpreserved for appellate review because the remarks were not objected to at trial. In any event, the remarks constituted fair comment on the evidence and were responsive to the arguments and issues raised by the defense.
The defendant received the effective assistance of counsel. The sentence imposed was not excessive.
Id. at 876-77 (internal citations omitted).
The New York Court of Appeals summarily denied Petitioner leave to appeal. See People v. Silva, 807 N.E.2d 909 (N.Y. 2003).
C. Post-Judgment Motions in State Court
Prior to the Appellate Division's affirmance on direct appeal, Petitioner also moved to vacate his judgment pursuant to N.Y. Crim. Proc. L. § 440.10, and moved to set aside his sentence pursuant to N.Y. Crim. Proc. L. § 440.20.
In his motion to vacate the judgment, Petitioner argued that "(1) the prosecution withheld Rosario and Brady material; (2) he was deprived the effective assistance of counsel; and (3) the prosecutor used false testimony at trial." (Resp't Ex. 12, at 00258.) The Orange County Court judge denied Petitioner's motion, holding that (1) Petitioner's claim "that the prosecutor improperly withheld documents" was based only on Petitioner's "unsupported allegations contained in [h]is own affidavit," (2) Petitioner's alleged conflict with his attorney was "not a legal conflict" but only "a problem between the [Petitioner] and the law firm . . . over fees and which attorney would represent him at trial" and there was "nothing to support a finding of ineffective assistance of counsel based upon the [Petitioner]'s submission to t[he c]court," and (3) the alleged instances of "false testimony" were merely "discrepancies between trial testimony, Grand Jury testimony, and the prior statements of some witnesses," which were "available to the [Petitioner] for use at trial" and "do not rise to the level of being categorized as false testimony," and in any event "could have been raised on appeal." (Id. at 00258-59.)
In his motion to set aside his sentence, Petitioner argued that "(1) the [prosecution]'s statement pursuant to CPL § 400.21 failed to set forth the periods of incarceration which tolled the ten-year eligibility limit for a second felony offender; (2) the statement was invalid because it failed to comply with CPL § 400.21(3); and (3) . . . the [Petitioner] is not properly a second felony offender." (Resp't Ex. 13, at 00261.) The Orange County Court judge denied Petitioner's motion, holding that, as to Petitioner's first two arguments, the "conclusive documentary proof" showed that the prosecution's statement complied with CPL § 400.21, that "[n]o objection was raised to the statement's form or its contents at the time" of sentencing, and Petitioner "admitted his status as a second felony offender at th[at] time." (Id.) As to Petitioner's third argument, the court held that even if the time that Petitioner was "on work release and was not actually incarcerated . . . should be excluded for tolling the ten-year limit," Petitioner would "still be a second felony offender" and thus "has failed to show that any such exclusion would change the result." (Id. at 00262.)
The Appellate Division denied leave to appeal the County Court's denial of Petitioner's §§ 440.10 and 440.20 motions. (Resp't Ex. 19, at 00349.)
Petitioner, proceeding pro se, filed the instant Petition on October 12, 2004, asserting eight grounds for habeas relief. First, he contends, the Appellate Division's affirmance on direct appeal was an unreasonable application of clearly established Supreme Court precedent. (Pet. ¶ 12.) Second, Petitioner claims that the Appellate Division's denial of Petitioner's challenge to his indictment was an unreasonable application of clearly established Supreme Court precedent. (Id. (format altered from original).) Third, Petitioner asserts that he was denied effective assistance of counsel due to his attorneys' "fail[ure] to be informed of the basic facts." (Id. (format altered from original).) Fourth, Petitioner contends that he was denied his due process right to a fair trial due to the prosecution's failure to disclose Brady material. (Id.) Fifth, Petitioner alleges that he was denied his due process right to a fair trial due to the prosecutor's use of "testimony he knew or should have known to be false." (Id. (format altered from original).) Sixth, Petitioner argues that he was denied his due process rights due to the prosecution's failure to comply with CPL § 400.21 during sentencing. (Id.) Seventh, Petitioner says that he was denied due process "when the court penalized him for having exercise[d] his right to a jury tr[ia]l." (Id. (format altered from original).) Eighth, Petitioner claims that the denial of his "motion to vacate the judgment was an unreasonable application of clearly established Supreme Court precedent." (Id. (format altered from original).)
Magistrate Judge Smith concluded that all of Petitioner's claims to habeas relief were without merit. She recommended that the Petition should be dismissed, that a certificate of probable cause should not issue, and that the Court should certify that an appeal would not be taken in good faith. (R&R 26-27.) Petitioner filed timely objections to the R&R, specifically objecting to the R&R's conclusions as to his first, third, and fourth claims, and stating that he "denies" "any other allegations" in the R&R. (Affirmation in Reply to R&R ("Obj.") 1, 5, 6, 7.)