The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Thang T. Nguyen ("Petitioner" or "Nguyen"), filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of murder in the second degree (felony murder) (N.Y. Penal Law ("Penal Law") § 125.25(3)), two counts of burglary in the first degree (Penal Law § 140.30(1), (4)), and three counts of robbery in the first degree (Penal Law § 160.15 (1), (2), (4)). Judgment was entered on August 27, 1998, in New York State Supreme Court, Monroe County (Cornelius, J.). The Appellate Division, Fourth Department affirmed the conviction*fn1 , and the New York State Court of Appeals denied further review. People v. Nguyen, 309 A.D.2d 1269 (4th Dept. 2003), leave denied, 2 N.Y.3d 746 (N.Y. 2004).
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
By indictment number 92-0599A, Petitioner was charged with two counts of second degree murder (Penal Law § 125.25 (1), (3)), attempted murder in the second degree (Penal Law §§ 110.00, 125.25 (1)), two counts of burglary in the second degree (Penal Law § 140.30 (1), (4)), and six counts of robbery in the first degree (Penal Law § 160.15 (1), (2), (4)), arising out of the following incident. In the fall of 1991, Petitioner travelled to Rochester, New York from Oregon to cook at the Saigon Restaurant, owned by Chung Lam and his wife, Thu Lam. (T.*fn2 619-622). The Lam's purchased Petitioner's plane ticket and arranged for a place for him to stay, while they decided if he would work in the restaurant permanently. (T. 649-650). When he arrived, he stayed at the Lam's house, at 72 Veronica Drive in Rochester, for one night. (T. 622).
The Lam's soon decided not to hire Petitioner permanently, because they did not like his cooking. (T. 623-4). Petitioner had worked for the Lam's for approximately one week prior to his termination. (T. 625). The Lam's provided Petitioner with $1,000 and a plane ticket back to Oregon. (T. 625).
In January 1992, Petitioner and Thoan Van Luc ("Van Luc") visited Sang Ngo ("Sang") in Wichita, Kansas. Petitioner asked Sang to come to New York with him and Van Luc to assist them in robbing the Lam's. (T. 929-30). Petitioner and Van Luc stayed with Sang in Wichita for two days, and the three men and Sang's brother, Vu Ngo ("Vu"), left for New York on January 22, 1992, in Sang's blue Honda Accord. (T. 930-33). The men brought three hand guns with them, a 9 mm., a .38, and a .380. (T. 932). On the way to New York, the men stopped and purchased bullets for one of the guns.
On the evening of January 23, 1992, the four men arrived in Rochester, and rented a room at the Downtown Motor Lodge. (T. 934-5). The men stayed at the hotel for two nights while they planned the robbery. (T. 935-40). They drove past the Lam's home and restaurant several times, Petitioner instructed Van Luc on the layout of the house, and Van Luc drew a map of the house. (T. 935-940, 942). Then, in the late Saturday night early Sunday morning hours, on January 26-27, the men packed up their belongings at the hotel, planning to leave the state after committing the robbery. They left the hotel in Sang's car, brought the three guns, and drove to the Lam's house. (T. 942, 944-5). Petitioner carried the 9mm, Vu carried the .38, and Sang carried the .380. (T. 944). Sang parked the car about a block away from the Lam's house, and Petitioner and Vu went to the house and opened the back door by cutting a wire. (T. 945-7). Van Luc then went into the house with Petitioner and Vu. (T. 947).
Mrs. Lam was awakened by people screaming at the stairs, two of the men then entered her bedroom and demanded money and gold.
(T. 628). Mrs. Lam heard gunshots and saw her husband wrestling with a masked man in the hallway. (T. 628-31). She came out into the hallway and one man took a necklace off her neck and the neck of her brother-in-law, who was also staying in the Lam's house that night. (T. 630-31). One man then pushed Mrs. Lam, her children, and her brother-in-law into her daughter's bedroom and told them to lay down. (T. 563, 630). This man had a gun to Mrs. Lam's daughter's head. (T.560-62). The man continued to demand money and jewelry from Mrs. Lam and at one point fired his gun and hit a wall.
(T. 563, 631). Mrs. Lam testified that she also gave the man a diamond ring and diamond earrings. (T. 636). The man then left the bedroom where Mrs. Lam and her children were, and Mrs. Lam instructed her children to look for help as she went out of the room to help her husband (T. 636). Another gunshot was heard, and Mrs. Lam could still see someone with her husband, who was injured and laying in the hallway. (T. 632). The man with her husband cursed in Vietnamese and Mrs. Lam recognized the voice as Petitioner's. (T. 633).
Meanwhile, Sang, still outside, heard the gunshots and ran into the house. (T. 947-8). Sang heard yelling and crying and saw Petitioner wrestling with Mr. Lam. (T. 949). Sang tried to help Petitioner, but was shot in the stomach accidentally. (T. 949-50). Sang crawled into a bedroom where an old woman was crying and praying, and then heard two more gunshots. (T. 950-52). Sang called for his brother Vu to help him, and Vu called for Petitioner and Van Luc to carry Sang out to the car. (T. 953-55). The men then left the Lam's house.
Initially, Petitioner, Vu, and Van Luc wanted to take Sang to another state, but Sang insisted they take him to the hospital.
(T. 956). When they arrived at Rochester General Hospital ("RGH"), Sang instructed the three men to throw the guns out the window. Id. The weapons and some of the stolen jewelry were later recovered in the parking lot outside of the emergency department at RGH.
(T. 885-897, 761-763). Sang's brother Vu stayed with him at the hospital, and Tuyen and Mrs. Lam later identified Vu as the man that ordered them to stay in the bedroom. (T. 571, 640).
After the men had left the house, the Lam's daughter, Tuyen heard her mother scream for her father, and she tried to call 911 but the phone line had been cut. (T. 565). She could see her father lying on the ground in the hallway. Id. Mrs. Lam then instructed Tuyen to go to their neighbors house to get help.
(T. 566). As she walked past her mother and father to go downstairs she saw her father had been shot twice in the hip and once in the head and her mother was screaming for socks and cigarettes to seal up the wound. (T. 566-569). Mrs. Lam later identified Petitioner as the man who had shot her husband. Chung Lam died of a gunshot wound to the head. (T. 1192-1198).
Petitioner left the United States and was apprehended nearly six years later, in December 1997, by members of the Vietnamese Police in the Socialist Republic of Vietnam. He was later turned over to the United States Government, via agents from the Federal Bureau of Investigation in Bangkok, Thailand. He was then transported back to the United States and arrested by members of the Irondequoit Police Department at the John F. Kennedy Airport in New York City. People v. Nguyen, 177 Misc.2d 16 (N.Y. Sup. Ct. Monroe County 1998).
Following a jury trial, Petitioner was convicted of second degree murder (felony murder), two counts of first degree burglary, and three counts of first degree robbery. He appealed his conviction to the Appellate Division, Fourth Department, arguing that (1) the sentence imposed was improper and it was harsh and excessive; (2) the burglary and robbery convictions were "inclusory concurrent counts" of the felony murder charge under New York Law, and should be dismissed; (3) he received ineffective assistance of counsel; (4) his seizure in Vietnam without any extradition procedures violated due process;(5) the verdict was legally insufficient and against the weight of the evidence; and (6) he was deprived of a fair trial because the prosecution failed to preserve fingerprint evidence. See T. Appendix A. The Appellate Division affirmed defendant's conviction, after modifying his sentence, and held that (1) Nguyen failed to preserve his claim that he was denied a fair trial by the prosecutions failure to preserve fingerprint evidence; (2) he was not denied effective assistance of counsel; (3) his seizure in Vietnam did not violate due process under either the New York State or Federal Constitutions ; (4) the burglary and robbery convictions were not "inclusory concurrent counts" under New York State Law; (5) Nguyen failed to preserve his claim that the evidence was legally insufficient; (6) the verdict was not against the weight of the evidence; (7) the sentence should be modified so that the sentence imposed for the robbery convictions ran concurrently with the sentences imposed for second degree murder and burglary; and (8) the sentence was not otherwise harsh and excessive. People v. Nguyen, 309 A.D.2d 1269 (4th Dept. 2003), modified by 2 A.D.3d 1485 (4th Dept. 2003). The New York State Court of Appeals denied further review. People v. Nguyen, 2 N.Y.3d 746 (N.Y. 2004).
Petitioner then made a motion for a writ of error coram nobis, arguing that he was denied effective assistance of appellate counsel because appellate counsel failed to raise the following three issues on appeal: (1) the trial court's allegedly improper accessorial liability charge under Penal Law § 20.00; (2) ineffective assistance of counsel based on trial counsel's failure to object to the accessorial liability charge; and (3) the trial court's allegedly improper submission of an annotated verdict sheet. See T. Appendix K. The Appellate Division, Fourth Department denied the motion, and the ...