The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner, Oscar Thagard ("petitioner"), challenges his conviction in Erie County Court of Robbery in the Second Degree (N.Y. Penal Law § 160.10(2)(a)) following a jury trial before Judge Michael D'Amico on January 30, 2004.
II. Factual Background and Procedural History
Petitioner's conviction arises out of an incident that occurred in the evening hours of January 2, 2003, as Tammy Aikin ("Aikin" or "the victim") was walking from an Elmwood Avenue grocery store to her home on Hodge Street in the City of Buffalo. Aiken was crossing the street onto Oakland Place, when petitioner came out from behind a bush and attempted to grab her purse. After a brief struggle, during which Aikin had the opportunity to examine her attacker's face, petitioner ran off with the victim's change purse and identification. Aikin recognized the man's face and clothing from an earlier encounter at the front entrance of the grocery store.
Gordon Anderson, who lived on Oakland Place, heard Aikin's screams and went outside. He observed a black male running fast toward Bryant Street. He then approached Aikin to assist her in gathering her belongings and walked her home. Once Aikin arrived back at her apartment, she called 911. As a result of the altercation, Aikin sustained injury to her shoulder and could not work for two months. Trial Tr. 53-54,57, 59-60, 64, 68-69, 82-89, 127, 155-58, 177-78.
Buffalo Police detectives were eventually able to identify petitioner as a possible suspect by working with security personnel at the grocery store, where the petitioner had been seen from a security camera loitering at the front entrance. Aikin then identified petitioner from a photo array. Trial Tr. 200-204, 222-e. After a Wade*fn1 hearing, the county court denied petitioner's motion challenging the propriety of the identification procedure. Hr'g Tr. 17-19. During the trial, the court allowed the prosecution to introduce evidence of the victim's identification of the petitioner from a photo array after finding that defense counsel had opened the door to the testimony. Trial Tr. 141-43. Petitioner did not testify at trial.
Petitioner was convicted of second-degree robbery, and was subsequently sentenced as a second felony offender to a determinate term of imprisonment of eight years. Sentencing Tr. at 7.
Through counsel, petitioner submitted a brief to the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Thagard, 28 A.D.3d 1097 (4th Dept.), lv. denied, 7 N.Y.3d 795 (2006).
Petitioner then filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that: (1) his trial counsel was constitutionally ineffective; (2) he was deprived of a fair trial and due process; and (3) that the sentence is harsh and excessive. (Dkt. #1). For the reasons that follow, I find that petitioner is not entitled to habeas relief, and the petition 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. Adequate and Independent State Ground Doctrine
It is a well-settled aspect of federal habeas jurisprudence that if "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" absent (1) a showing of cause for the default and actual prejudice attributable thereto, or (2) a showing that failure to consider the claims will result in a "fundamental miscarriage of justice," i.e., that the petitioner is actually innocent. Coleman v. Thompson, 501 U.S. 722, 750 (1991). A state ground will create procedural default sufficient to bar habeas review if the state ground first was an "independent" basis for the decision; this means that "the last state court rendering a judgment in the case clearly and expressly state[d] that its judgment rests on a state procedural bar." In addition, the state procedural bar must be "adequate" to support the judgment-that is, it must be based on a rule that is "'firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" ...