The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Darrell Taylor ("petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on February 17, 2004, of Gang Assault in the First Degree (N.Y. Penal L. § 120.07)), and Assault in the First Degree (Penal L. § 120.10). Following a jury trial in Genesee County Court before Judge Robert Noonan, petitioner was sentenced as a second violent felony offender to concurrent, determinate terms of imprisonment of twenty-five years and five years of post-release supervision. Sentencing Tr. at 21-22.
II. Factual Background and Procedural History
On the morning of January 25, 2003, in Batavia, New York, petitioner and two accomplices*fn1 entered a home where James Wilcox ("the victim") was visiting his friend Marcia Weber ("Weber") and beat him with a baseball bat and a hammer while he sat and worked on a crossword puzzle. The victim suffered serious physical injuries that required him to spend several days in the hospital and left him with long-term vision impairment.
Petitioner was charged in Genesee County with Gang Assault in the First Degree (N.Y. Penal L. § 120.07), Assault in the First Degree (Penal L. § 120.10), and two counts of Burglary in the First Degree (Penal L. § 140.30, ). Following a jury trial, petitioner was found guilty of the assault charges and acquitted of the burglary charges. Trial Tr. 591. He was sentenced as a second violent felony offender to two concurrent, determinate terms of imprisonment of twenty-five years, and five years of post-release supervision. Sentencing Tr. 21-22.
Through counsel, petitioner filed an appellate brief raising six grounds: (1) the evidence was legally insufficient to support petitioner's convictions and the verdict was against the weight of the evidence; (2) the trial court erred in denying petitioner's motion to dismiss the case; (3) the trial court's partial denial of his Sandoval motion was improper; (4) the trial court improperly admitted into evidence of photograph of the victim; (5) the trial court erred in failing to charge third-degree assault as a lesser-included offense; and (6) the sentence was "cruel and inhumane." See Petitioner's ("Pet'r") Appellate Br. 2-44. In a supplemental pro se brief, petitioner claimed that he was denied effective assistance of trial counsel and also alleged a confrontation clause violation. See Pet'r Supplemental Br. 2-22. The Appellate Division, Fourth Department, unanimously affirmed petitioner's judgment of conviction, dismissing petitioner's claims on procedural grounds as well as on the merits. People v. Taylor, 19 A.D.3d 1100 (4th Dept.); lv. denied 5 N.Y.3d 810 (2005).
On March 5, 2005, petitioner filed a motion for vacatur pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10 on the basis of newly-discovered evidence. Petitioner produced an affidavit signed by his co-defendant, William Robinson, which purportedly exonerated petitioner. See Mot. dated 3/5/2005; Respondent's ("Resp't") Ex. J. The Genesee County Court denied petitioner's motion. See Decision and Order, No. 4575, dated 4/8/2005; Resp't Ex. K. Leave to appeal that decision was denied by the Fourth Department on November 28, 2005. Resp't Ex. N.
Petitioner then filed a timely petition for habeas corpus pursuant to 28 U.S.C. § 2254, alleging nine grounds for relief: (1) ineffective assistance of trial counsel; (2) a violation of petitioner's Sixth Amendment right to confrontation; (3) actual innocence; (4) the trial court erred in denying petitioner's motion to dismiss the case against him; (5) improperly admitted evidence; (6) the trial court erred when it refused to charge third-degree assault as a lesser-included offense; (7) insufficiency of the evidence; (8) the sentence is "cruel and inhumane"; and (9) the trial court improperly ruled on petitioner's Sandoval motion. For the reasons that follow, the petition for writ of habeas corpus is denied and the action is dismissed.
A. General Principles Applicable to Federal Habeas Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
2. Exhaustion Requirement
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048 (1984).*fn2
3. Adequate and Independent State Grounds Doctrine
"It is now axiomatic that 'cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred.'" Dunham v. Travis, 313 F.3d 724, 729 (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). "A habeas petitioner may bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Id. (citing Schlup v. Delo, 513 U.S. 298, 321 (1995); Murray v. Carrier, 477 U.S. 478, 496 (1986)).
Although the Supreme Court "has repeatedly cautioned 'that the [independent and adequate state law ground] doctrine applies to bar consideration on federal habeas of federal claims that have been defaulted under state law,'" id. (quoting Lambrix v. Singletary, 520 U.S. 518, 523 (1997) (emphasis added by Second Circuit), the Second Circuit has observed that "it is not the case 'that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be[,]'" id. (quoting Lambrix, 520 U.S. at 525 (stating that bypassing procedural questions to reach the merits of a habeas petition is justified in rare situations, "for ...