The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Charles Sullivan ("petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of two counts each of Attempted Murder in the Second Degree (N.Y. Penal Law ("P.L.") §§ 125.25, 110.00, 20.00), Assault in the Second Degree (P.L. §§ 120.05, 20.00), and Reckless Endangerment in the First Degree (P.L. § 120.25); and one count each of Assault in the First Degree (P.L. § 120.10, 20.00) and Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03). Petitioner was convicted in Erie County Court following a jury trial before Judge Michael D'Amico. He was subsequently sentenced to concurrent terms of imprisonment, the longest of which is twelve years with five years of post-release supervision. Sentencing Mins. at 4.
II. Factual Background and Procedural History
Petitioner's convictions stem from a May 6, 2000 drive-by shooting on Moselle Street in the City of Buffalo, wherein petitioner fired shots at five adults and one child, striking and injuring three of the adults.
At petitioner's trial, witnesses for the prosecution testified that they recognized petitioner in his car, heard him speak, and saw flashes of fire from his window. One of the witnesses was petitioner's ex-girlfriend. Trial Transcript ("Tr.") 88-90, 137-39, 179-81. A Colt.45 caliber pistol, forensically connected to the shooting, was seized from Archie Price on May 24, 2000, who testified that he purchased the gun from petitioner shortly after the shooting for $250. Tr. 228-30, 283, 287-88. According to the prosecution's witnesses, the shooting was believed to be in retaliation for a prior robbery committed against the petitioner by some of the victims. Tr. 73-78, 118, 129-30, 134, 171-74.
The defense called two witnesses at trial to offer alibis. Petitioner did not testify in his own behalf.
B. Appeal and Post-Conviction Relief
Through counsel, petitioner filed a brief on direct appeal, raising seven points. See Respondent's Exhibit ("Ex.") B. He also filed a pro se supplemental brief containing three additional grounds for appellate review. See Petitioner's ("Pet'r") Pro Se Supplemental Br. dated 8/8/2004. The Appellate Division, Fourth Department, unanimously modified petitioner's judgment on the law by reducing the mandatory surcharge and crime victim assistance fee, and affirmed the judgment as modified. People v. Sullivan, 12 A.D.3d 1046 (4th Dept. 2004), lv. denied, 4 N.Y.3d 803 (2005).
On July 18, 2005, petitioner brought a motion pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440.10 seeking to vacate the judgment on the following grounds: (1) the prosecutor knowingly adduced false evidence in the grand jury and at trial; (2) Rosario and Brady violations; (3) ineffective assistance of trial counsel; and (4) newly-discovered evidence. Ex. D. The county court denied petitioner's claims on procedural grounds and also on the merits. See Memorandum and Order, No. 00-1232-001, dated 2/10/2006; Ex. D. Leave to appeal that decision was denied on July 7, 2006. Ex. D.
C. Petition for Habeas Corpus
Petitioner then filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging the following grounds for relief: (1) the trial court abused its discretion in failing to preclude the prosecution's ballistics evidence / Rosario violation; (2) the trial court erred in refusing to deliver a missing witness charge; (3) the indictment was constructively amended; (4) the indictment was obtained by the use of false evidence; (5) ineffective assistance of trial counsel; (6) a Brady violation as to the status of a police informant; and (7) the county court improperly denied petitioner's § 440.10 motion / newly-discovered evidence. See Petition ("Pet.") ¶ 12(a)-(g) (Dkt. #1). He has also provided the Court with a memorandum of law in support of the petition. (Dkt. #15). For the reasons that follow, the petition for habeas corpus is denied and the action is dismissed.
A. General Principles Applicable to Federal Habeas Review
1. AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds ...