The opinion of the court was delivered by: Gary L. Sharpe United States District Judge
MEMORANDUM-DECISION AND ORDER
According to the evidence adduced at trial, on January 2, 2005, twelve year old Yunis Johnson was awoken at around 5:20 a.m. by the sound of tapping on her bedroom window on Albany Street, in Albany, New York. See Transcript of Trial of Harold Johnson (6/6/05) ("Trial Tr.") at pp. 66-67. Petitioner, pro se Harold Johnson ("Johnson"), who is Yunis' father, was outside, and asked her to let him into the apartment she shared with her siblings and their mother, Altamese Johnson ("Altamese"). Id. at pp. 67-68. Yunis let Johnson in through the front door of the apartment and then went back to bed. Id. at p. 67. At the time, Altamese was asleep in her bed with her seven-year-old daughter and two-year-old granddaughter, however she awoke when Johnson entered the bedroom. Id. at pp. 162-64. He then began to yell about a black car in her driveway and "a man." Id. at pp. 164-65. When Johnson briefly left the bedroom, Altamese ran to the dresser where she had left a medical device that enabled her to summon help. Id. at p. 165. When Johnson returned to the bedroom, Altamese told him that she had used her medical device to request help. Id. at p. 167. Johnson continued towards her, however, holding a hammer above his head. Id. As he brought the hammer down toward her face, she fainted. Id. at 167-68. When Altamese thereafter regained consciousness, Johnson was gone, and police and medical personnel soon arrived at the scene. Id. at p. 172.
Albany Police Officer Amy Morgan arrived at Altamese's Albany Street residence soon after she requested assistance through the medical device. Id. at p. 86. The officer found Altamese to be "obviously stunned," and observed that the left side of her face was "very swollen" and bloody. Id. at p. 89. After Altamese informed the officer that she had been hit with a hammer, Officer Morgan noticed a hammer on the floor which the officer recovered as evidence. Id. at pp. 91-92. Upon arriving at the Albany Medical Center Hospital, the victim was treated for a fractured nose and received stitches under her left eye. Id. at p. 173. She had also sustained swelling and bruises to the left side of her face and to her arms. Id. at pp. 173-74.
Doctor Patrick Caulfield was Altamese's treating physician. Dr. Caulfield examined Altamese on January 7, 2005, at which time he noticed that her left eye was "just about swollen shut" and the surrounding tissue was "fairly severely injured." Id. at p. 310. Dr. Caulfield also testified about the victim's medical history, which included a diagnosis of the blood disease sarcoidosis. Id. at p. 296. The doctor explained that, while that disease does cause swelling and discoloration of skin, most of the soft tissue damage to Altamese's face and arms, as depicted in photographs taken at Albany Medical Center, was unrelated to her medical condition. Id. at pp. 296-301. Dr. Caulfield further testified that some of the bruises on her arms were circular, and consistent with trauma that could be inflicted with the head of a hammer. Id. at pp. 305-06.
During the course of their criminal investigation, law enforcement agents submitted swabs used on the head and handle of the hammer taken from the crime scene to the New York State Forensic Investigation Center. Id. at pp. 256-57, 350-51. New York State forensic scientist Timothy Goble, who performed forensic testing on the biological material found on the swabs, determined that Altamese's deoxyribonucleic acid ("DNA") was present on both the handle and head of the hammer. Id. at pp. 360-61. Goble could not definitively state that additional biological evidence that had been found on the handle of the hammer belonged to Johnson, however he could not be excluded as a contributor of that biological material. Id. at p. 361.
The record further reflects that on January 4, 2005, at approximately 8:00 a.m., Johnson approached Albany Police Officer Sean Haley and told him that Johnson was aware that the police were looking for him because of an altercation he had had with his wife. Id. at p. 282. He was then transported to the police station, where he told the police that he had punched his wife, but did not hit her with a hammer. Id. at p. 286.
As a result of the foregoing, on February 8, 2005, an Albany County grand jury returned Indictment No. 22-9182 which charged Johnson with Burglary in the First Degree, contrary to New York's Penal Law ("Penal Law") § 140.30(2); Attempted Assault in the First Degree, in violation of Penal Law §§ 110/120.10(1); Assault in the Second Degree, contrary to Penal Law § 120.05(2); Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law § 265.02(1); and Endangering the Welfare of a Child, contrary to Penal Law § 260.10(1).*fn1
On June 6, 2005, Johnson's jury trial on the foregoing charges commenced in Albany County Court with Albany County Court Judge Joseph C. Teresa presiding.
In his defense to the charges, Johnson's counsel called forensic pathologist Jeffrey Hubbard, who testified that the bruises, swelling and lacerations Altamese sustained to her face were consistent with trauma inflicted by either a hammer or a fist, or by any other object that did not have a sharp, cutting edge. Id. at pp. 382-83. However, Dr. Hubbard believed it was more likely that those injuries were caused by a fist than a hammer. I d. at pp. 391-92. Dr. Hubbard also opined that the bruises on Altamese's left arm were the result of sarcoidosis, and not as a result of being hit by a hammer, because a hammer would have left C-shaped marks rather than the circular bruises she sustained. Id. at pp. 385-87.
Albany County Sheriffs Deputy Mark Duda testified on behalf of the defense. That witness testified that when Johnson was advised that a court order that permitted law enforcement agents to obtain a DNA sample from Johnson had been secured, he declared: "[I'm] willing to give the test. You're not going to find anything[.]" Id. at p. 411.
Johnson's defense to the burglary charge included the testimony of Spero Damopoulos, who had employed Johnson for several years and had known him for twelve years. Id. at p. 395.
Damopoulos testified that Johnson lived with Altamese and her family, because Damopoulos had picked him up at the Albany Street address on the way to work many times, and he had had dinner there. Id. at pp. 395-97. Chenequa Johnson ("Chenequa"), Johnson's daughter by a previous marriage, testified that she saw Altamese visiting Johnson at the County Jail, and that her father lived with Altamese on Albany Street. Id. at pp. 403-04.
Johnson also testified on his own behalf. He claimed that he lived at the Albany Street residence in late 2004, but noted that Altamese regularly cast him out of their apartment if he failed to "give her... money." Id. at pp. 413-14. Johnson also stated that he was living with Altamese from Christmas Eve, 2004 through New Year's Day of 2005. Id. at pp. 418-19. He further claimed that he went to work on January 1, 2005, and was thereafter in the company of friends until 5 a.m. on January 2nd. Id. at pp. 419-20. When he arrived at the house, he rang the doorbell of Johnson's apartment but no one answered. Id. at p. 420-22. He then knocked on the bedroom window of his daughter, Yunis, who let him in the house through its front door. Id. at p. 422. When Johnson asked Yunis whether she had told Altamese that she was letting him in, Yunis informed him that she had. Id. As Johnson walked Yunis back to her bedroom, he saw that the back door of the apartment was ajar. Id. at pp. 422-23. Johnson became angry because the open door had placed Yunis in danger. Id. at p. 423. He then entered Altamese's bedroom and began yelling at her, asking her why she had left the door open. Id. Around that time, Johnson jumped out of bed, startling him. Id. Because Altamese had stabbed Johnson in the past, including one incident that required 365 stitches to treat, Johnson believed Altamese was reaching for the knife she kept near her bed so he punched her twice in the face. Id. at pp. 428-29.
In explaining the circumstances surrounding his contact with law enforcement agents, Johnson testified that a police officer whom he knew told him that the police were looking for Johnson and that he should turn himself in. Id. at p. 436. He thereafter decided to surrender to the authorities. Id.
Johnson also testified that he was repeatedly the victim of Altamese's violence, and that he had previously shoved -- but never punched -- his wife. Id. at p. 440. He also noted that Altamese had visited him in jail "quite a few times," and told him that she would do "whatever it takes" to facilitate his release. Id. at pp. 448-49. Johnson also claimed that Altamese told him that she did not tell law enforcement agents that he hit her with a hammer. Id. at p. 449.
At the conclusion of his trial, the jury found Johnson guilty of assault in the second degree and criminal trespass in the second degree, but not guilty of the burglary in the first degree, attempted assault in the first degree, and criminal possession of a weapon in the third degree charges. Id. at pp. 611-14.
By affidavit dated July 22, 2005, Johnson's counsel filed a motion pursuant to New York's Criminal Procedure Law ("CPL") § 330.30 to set aside the jury's verdict (Dkt. No. 7-2) ("§ 330 Motion"). In that application, counsel argued, inter alia, that the jury's not guilty verdict regarding the criminal possession of a weapon charge was inconsistent with its guilty verdict concerning the second degree assault charge, and that the prosecution had failed to establish the elements of the second degree assault charge. Id. The District Attorney opposed that motion, and on August 4, 2005, just prior to sentencing, the County Court denied Johnson's § 330 Motion in its entirety. See Transcript of Sentencing of Harold Johnson (8/4/05) at pp. 2-3. That court thereafter sentenced Johnson, as a predicate felon, to a determinate term of seven years imprisonment on the second degree assault conviction and a concurrent, one year term of imprisonment on the second degree criminal trespass conviction, to be followed by five years post-release supervision. Id. at p. 9.
Johnson appealed his convictions to the New York State Supreme Court, Appellate Division, Third Department. In that appeal, appellate counsel claimed, inter alia, that: i) the verdict was inconsistent and repugnant; ii) Judge Teresi erred in not instructing the jury that if it found Johnson not guilty of criminal possession of a weapon, then it must also acquit him of the second degree assault charge, and that trial counsel was ineffective for failing to object to the jury's inconsistent verdict; iii) Johnson's conviction of assault in the second degree was against the weight of the evidence and the evidence was insufficient to support such conviction. See Dkt. No. 7-4. In its decision dated May 17, 2007, the Third Department unanimously affirmed Johnson's judgment of conviction. People v. Johnson, 40 A.D.3d 1270 (3d Dept. 2007). His subsequent application for leave to appeal that determination was denied by New York's Court of Appeals. People v. Johnson, 9 N.Y.3d 877 (2007).
Johnson commenced the present action, pro se, on November 4, 2008. See Dkt. No. 1.
In his habeas petition, he claims that: i) his conviction of assault in the second degree was against the weight of the evidence and not supported by legally sufficient evidence; ii) trial counsel's failure to: (a) request a jury charge directing that such body deliver a consistent verdict; and (b) preserve an inconsistent verdict claim for appellate review through a contemporaneous objection, constituted ineffective assistance of counsel; and iii) Johnson was wrongfully subjected to Double Jeopardy due to the procedure adopted by New York for challenging inconsistent verdicts. See Petition, Grounds One through Three.
On April 30, 2009, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to Johnson's petition and provided the Court with copies of state court records relating to his conviction. See Dkt. Nos. 6-7. Attached to respondent's answer is a memorandum of law in opposition to the petition. See Attachment to Dkt. No. 6 ("Resp. Mem."). In that memorandum, respondent claims that Johnson is procedurally barred from obtaining the relief he seeks as to some of his claims, and that all of his grounds for relief are without merit. Id.
On June 18, 2009, Johnson filed a Reply in further support of his habeas petition. Dkt. No. 8 ("Reply"). This matter is currently before this Court for disposition.
A. Procedurally Barred Claim
Respondent initially contends that Johnson has failed to fully exhaust his claims challenging the effectiveness of his trial counsel. See Resp. Mem. at pp. 14-16.*fn2 In that ground, Johnson argues that his trial counsel rendered ineffective assistance by failing to request that Judge Teresi charge the jury that if it found Johnson not guilty of criminal possession of a weapon in the third degree, then it must also acquit on him of the second degree assault charge. See Petition, Ground Two. That claim further contends that trial counsel rendered ineffective assistance by failing to timely move to set aside the verdict as inconsistent or repugnant. Id.
It is well-settled that a federal district court " 'may not grant the habeas petition of a state prisoner unless it appears that the applicant has exhausted the remedies available in the courts of the State....' " Shabazz v. Artuz, 336 F.3d 154, 160 (2d Cir. 2003) (quoting Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001)); see also Hill v. Mance, 598 F.Supp.2d 371, 375 (W.D.N.Y. 2009). This is because "[s]tate courts, like federal courts, are obliged to enforce federal law." Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)) (other citations omitted). As the Supreme Court noted in O'Sullivan, "[c]omity... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary ...