The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
Alfredo Gonzalez brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for criminal possession of a controlled substance in the third and fourth degrees following a jury trial in the County Court, Orange County. Mr. Gonzalez contends that (1) evidence introduced against him at trial was obtained in violation of his Fourth Amendment rights, (2) his due process rights were violated when the trial court failed to order an updated evaluation of his competency to stand trial, (3) he was denied effective assistance of counsel, and (4) improper comments by the prosecutor during summation denied him the right to a fair trial. The parties agreed that I would exercise jurisdiction for all purposes including final disposition pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the petition is denied.
On March 15, 2002, the petitioner was present in the apartment of his friend, Joseph Gibbs, in the City of Port Jervis, where the two of them had been smoking crack cocaine. (H. at 7, 48, 55-57; Tr. at 219).*fn1 The apartment was situated in the basement of a multifamily building. (H. at 31). At approximately 11:00 p.m., City of Port Jervis Police executed a no-knock search warrant at the premises. (H. at 7, 16-17, 22, 32-33; Tr. at 151, 155, 159, 165, 187-88, 213). They found Mr. Gibbs in the hallway between the bathroom and a bedroom. (H. at 7, 47; Tr. at 152). Mr. Gonzalez was sitting on a couch in the living room where the television was on. (H. at 7-8, 17-18, 23, 33-34; Tr. at 152, 155-56, 160, 166). He was fully clothed and wearing shoes. (H. at 18, 23, 34; Tr. at 160).
When the police searched the apartment, they did not locate any personal items belonging to the petitioner. (H. at 11, 18, 36-37). They did, however, discover $232 in currency in the petitioner's pocket and two bags of crack cocaine underneath the pillows on the couch where he had been sitting. (H. at 24, 28, 51; Tr. at 160-62, 167-68, 189-90). The cocaine appeared to be packaged for sale, as the two bags each contained numerous smaller packets of crack. (H. at 24; Tr. at 144, 163, 167-68, 176-77). When the police showed Mr. Gonzalez the cocaine, he denied that it was his and stated that he was just leaving. (H. at 24, 28; Tr. at 170). This conversation was conducted in English. (H. at 28-29; Tr. at 170).
Mr. Gonzalez was arrested and taken to the Port Jervis police station where a detective read him the Miranda warnings. (H. at 36-38; Tr. at 196-98). Then, in order to determine if the petitioner understood English, the detective had him read a portion of the warnings out loud. (H. at 43-44). Thereafter, Mr. Gonzalez agreed to answer questions and ultimately produced a four-page statement. (H. at 38-39, 60; Tr. at 200). In the statement, the petitioner admitted that the cocaine in the couch was his and stated that he sold a little and used a little. (Tr. at 202-03). He said that he had taken the train to Paterson that night, where he bought the crack for $300 before selling five or ten rocks. (Tr. at 203-04). Of the money found in his pocket, about $80 had come from selling crack. (Tr. at 204-05).
On April 22, 2002, the grand jury returned an indictment against Mr. Gonzalez and Mr. Gibbs. Both were charged with Criminal Possession of a Controlled Substance in the Third Degree in violation of New York Penal Law § 220.16(1) and Criminal Possession of a Controlled Substance in the Fourth Degree in violation of Penal Law § 220.09(1). (Indictment No. 2002-384 ("Indictment"), Exh. 1 of Respondent's Record of Exhibits ("Resp. Rec.")). Additionally, Mr. Gibbs was accused of Possession of a Controlled Substance in the Seventh Degree in violation of Penal Law § 220.03. (Indictment). Mr. Gibbs subsequently pled guilty to this last charge; he agreed to cooperate with the prosecution and was sentenced to time served. (Brief for the Respondent, submitted to the Appellate Division, Second Department ("Resp. App. Brief"), Exh. 9 of Resp. Rec., at 3 n.1).
After the indictment was returned, the court, at the request of defense counsel, ordered a mental examination of Mr. Gonzalez pursuant to New York Criminal Procedure Law § 730.30. (Appellant's Brief, submitted to the Appellate Division, Second Department ("Pet. App. Brief"), Exh. 8 of Resp. Rec., at 21). On the basis of that examination, the court found Mr. Gonzalez fit to stand trial. (Pet. App. Brief at 21).
As the case proceeded, Mr. Gonzalez's attorney made an omnibus motion that included an application to suppress the petitioner's statements as well as the narcotics that were recovered, arguing that this evidence was the fruit of an unlawful search. (Notice of Motion and Affidavit of Alex Smith dated July 26, 2002, Exh. 2 of Resp. Rec.). In a supplemental submission, counsel contended that as an overnight guest of Mr. Gibbs, the petitioner had a reasonable expectation of privacy in the apartment and therefore had standing to challenge the legality of the search. (Supplemental Affidavit of Alex Smith dated Aug. 23, 2002 ("Smith Supp. Aff."), Exh. 5 of Resp. Rec.). This contention was supported with the petitioner's affidavit, in which he attested:
On March 15-16, 2002, I was sleeping on the couch in Mr. Gibbs' living room. I was already asleep on the couch with a pillow and blanket when the police broke the door down. The police yanked me off the couch, struck me, and then searched the couch I had been sleeping on. Gibbs was sleeping in another room. (Affidavit of Alfredo Gonzalez dated Aug. 15, 2002, attached to Smith Supp. Aff., ¶ 1).
The Honorable Nicholas De Rosa, the presiding County Court Judge, held a hearing on the petitioner's suppression motion. During that proceeding, the prosecution presented testimony about the circumstances of the search and Mr. Gonzalez's arrest, as described above. The petitioner testified on his own behalf. He related that on the night in question he visited Mr. Gibbs, and they agreed that he would stay overnight because they were drinking and smoking crack. (H. at 48-49). When Mr. Gibbs retired to the bedroom, Mr. Gonzalez went to sleep on the couch in the living room. (H. at 49). According to the petitioner, and contrary to the testimony of the police witnesses, the lights and television were off, and he was sleeping with a blanket and pillow. (H. at 49-50). Mr. Gonzalez testified that when he was awoken by the police, he initially denied selling drugs, but then made false admissions when one of the officers punched him. (H. at 51-52).
He further stated that he did not understand the written statement that he signed at the police station. (H. at 52-55).
Judge De Rosa issued an oral decision at the close of the hearing, in which he credited the testimony of the police officers to the extent that it conflicted with that of Mr. Gonzalez. For example, Judge De Rosa noted that there was no corroboration of Mr. Gonzalez's assertion that he was a guest: "there was no luggage no overnight bag, no tooth brush, nothing, no cots, no pillows, no blankets." (H. at 79). Judge De Rosa concluded that "[t]he mere fact that the defendant feels as if he's going to nod out on someone's couch after ingesting alcohol or crack doesn't give that person standing as an overnight guest, or any other type of standing." (H. at 78-79). Accordingly, Judge De Rosa denied the motion to suppress.
The case proceeded to trial before a jury, and the parties presented substantially the same evidence that they had at the suppression hearing. At the close of the case, the jury found Mr. Gonzalez guilty on both counts. Judge De Rosa subsequently sentenced the petitioner as a second felony offender to an indefinite term of imprisonment of from eight to sixteen years on the charge of criminal possession of a controlled substance in the third degree and a term of from seven to fourteen years on the charge of criminal possession of a controlled substance in the fourth degree, the sentences to be served concurrently. (Resp. App. Brief at 2-3).
C. Post-Trial Proceedings
Mr. Gonzalez appealed, asserting essentially the same claims that he now raises in his habeas petition: (1) that he was wrongly denied standing to challenge the search, (2) that he should have received an updated competency examination, (3) that he was denied effective assistance of counsel, and (4) that the prosecutor committed misconduct during summation.
On November 13, 2007, the Appellate Division, Second Department issued a decision rejecting these arguments and affirming Mr. Gonzalez's conviction. People v. Gonzalez, 45 A.D.3d 696, 845 N.Y.S.2d 817 (2d Dep't 2007). The court found, first, that the suppression motion had been properly denied because Mr. Gonzalez had not established that he was more than a casual visitor and therefore lacked standing to contest the search. Id. at 696, 845 N.Y.S.2d at 818. Next, the court held that the petitioner's challenges to the prosecutor's summation had not been preserved for review and, even if they had, they were without merit, since the prosecutor's statements "constituted fair comment on or reasonable inferences drawn from the evidence, or were harmless error." Id. at 696-97, 845 N.Y.S.2d at 818. Third, the court deemed the claim of ineffective assistance of counsel to be meritless. Id. at 697, 845 N.Y.S.2d at 818. Finally, the court summarily rejected the argument that Mr. Gonzalez was entitled to a further review of his competency. Id. at 697, 845 N.Y.S.2d at 819.
The petitioner then sought leave to appeal to the New York Court of Appeals, reasserting the same four claims he had raised in the Appellate Division. (Letter of Warren S. Hecht dated Dec. 18, 2007, part of Exh. 12 of Resp. Rec.). That application was denied on March 31, 2008. People v. Gonzalez, 10 N.Y.3d 811, 857 N.Y.S.2d 44 (2008) (Table).
Mr. Gonzalez then submitted the instant petition. ...