The opinion of the court was delivered by: Dora L. Irizarry, District Judge
Pro se petitioner Darryl Phillips is currently serving a twelve-year sentence following his July 22, 2004 conviction in New York State Supreme Court, Richmond County, for sodomy in the first degree ("sodomy"), New York Penal Law § 130.50, three counts of sexual abuse in the first degree ("sexual abuse"), New York Penal Law § 130.65, and endangering the welfare of a child ("endangering the welfare of a child"), New York Penal Law § 260.10. Pursuant to
28 U.S.C. § 2254, he challenges his conviction by contending that: (1) the trial court erred by admitting the victim's out-of-court statements under the "prompt outcry" hearsay exception; (2) the trial court erred by admitting allegedly unresponsive and prejudicial testimony of the victim's grandmother; (3) the victim's in-court identification of the petitioner was improperly coached by a court officer; (4) he received ineffective assistance of counsel; (5) certain prosecution witnesses were incredible; (6) the prosecution made improper comments during summation; (7) the two alternate jurors should not have been dismissed prior to deliberations; and (8) he has never seen People's Trial Exhibit Number 3. For the reasons set forth below, the petition is denied.
In February 2003, petitioner moved into the home of his grandmother, Juanita Armstrong, at 565 Bristol Street in Brooklyn, New York (the "apartment"). (Trial*fn1 Transcript ("Tr.") at 17.) Also living at the apartment were petitioner's aunt, Cynthia Armstrong, and Cynthia's two daughters, Tara*fn2 (the "victim") and Lisa Armstrong. (Tr. at 12-13.) Tara testified at trial that, on May 31, 2003, petitioner forced her to touch his penis and perform oral sex on him in the kitchen of the apartment. (Tr. at 113-19.) Tara further testified that petitioner inserted his penis into her vagina on multiple occasions, including in the bathroom of the apartment and in the hallway outside the apartment. (Tr. at 119, 122-24.) Tara reported these events to her mother Cynthia on June 16, 2003. (Tr. at 125.) Cynthia then told Juanita, who asked the petitioner to leave the house. (Tr. at 22-24, 38.) None of the Armstrong women called the police at that time. (Tr. at 23.) Tara was taken to the hospital on June 19, 2003, and the police were notified of the alleged incidents. (Tr. at 23, 78.) Petitioner returned to the Armstrong residence on August 2, 2003, accompanied by his other grandmother and an unidentified aunt and cousin. (Tr. at 25.) Upon seeing the petitioner, Juanita called the police, whereupon petitioner was arrested. (Tr. at 26, 86-88.)
Trial against petitioner commenced on July 15, 2004. On July 22, 2004, the jury convicted petitioner of sodomy, three counts of sexual abuse, and endangering the welfare of a child. (Tr. at 241.) On August 11, 2004, the trial court sentenced the petitioner to twelve years in prison. Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division"), arguing that the trial court erred by admitting: the victim's out-of-court statements under the "prompt outcry" hearsay exception, and prejudicial and unresponsive testimony of the victim's grandmother. Petitioner also later filed a supplemental pro se brief, arguing that: (1) the victim's in-court identification of the petitioner was improperly coached by a court officer; (2) certain prosecution witnesses should not have been credited by the jury; (3) certain actions and statements at trial did not appear on the record; (4) there was no evidence of forcible compulsion; and (5) he received ineffective assistance of counsel.
The Appellate Division affirmed the conviction. People v. Phillips, 45 A.D.3d 702 (2d Dep't 2007). The court agreed with petitioner that "the [trial court] should have instructed the jury to disregard certain testimony of the complainant's grandmother as prejudicial and non-responsive." Id. However, the court found that this error was "harmless beyond a reasonable doubt" because the evidence of petitioner's guilt was "overwhelming." Id. The court further held that the petitioner "failed to preserve for appellate review his contention that the [trial court] erred in admitting testimony of a 'prompt' outcry of sexual abuse . . . ." Id. (citations omitted). The court further held that the petitioner had "failed to object to those portions of the prosecutor's summation which he [challenged] on appeal, and consequently, his contentions in [that] regard [were] unpreserved for appellate review." Id. (citations omitted). Lastly, the court held that the remaining claims, raised by petitioner in his pro se brief, were without merit. Id.
On March 12, 2008, the Court of Appeals denied petitioner's application for leave to appeal. People v. Phillips, 10 N.Y.3d 815 (N.Y. 2008). Petitioner did not seek a writ of certiorari from the United States Supreme Court. He timely filed this petition for a writ of habeas corpus on April 28, 2008.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") narrowed the scope of federal habeas review of state convictions when the state courts have adjudicated a petitioner's federal claims on the merits. Under the AEDPA standard, which governs the review of petitions challenging state convictions entered after 1996, federal courts may grant habeas relief only if the state court's adjudication on the merits:
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A decision is "contrary to" 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, 412 (2000). An "unreasonable determination" is one in which "the state court identifie[d] the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively reasonable." Id. at 409. "[A] ...