The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Julius L. Hutcherson, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Hutcherson is currently in the custody of the New York Department of Correctional Services, incarcerated at the Auburn Correctional Facility. Respondent has answered, and Hutcherson has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following two separate jury trials, Hutcherson was convicted in the Broome County Court of Robbery in the First Degree (N.Y. Penal Law § 160.15(2)), and Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16(12)). As a second felony offender, the Broome County Court sentenced Hutcherson to a determinate prison term of 25 years plus five years of supervised release on the first-degree robbery conviction, to be served consecutive to an indeterminate term of 121/2 years to 25 years on the third-degree controlled substance conviction. Hutcherson timely appealed his convictions and sentences to the Appellate Division, Third Department, which affirmed his convictions and sentences, and the New York Court of Appeals denied leave to appeal on April 6, 2006.*fn2
On May 27, 2007, Hutcherson, appearing pro se, filed a motion to vacate his conviction under N.Y. Criminal Procedure Law § 440.10 in the Broome County Court. The Broome County Court denied his motion in an unpublished, reasoned decision,*fn3 and the Appellate Division, Third Department, denied leave to appeal on November 7, 2007.*fn4 The next day, November 8, 2007, Hutcherson filed a second § 440.10 motion to vacate his conviction in the Broome County Court. On November 13, 2007, Hutcherson filed a motion to set aside his sentence under N.Y. Criminal Procedure Law § 440.20 in the Broome County Court. The Broome County Court consolidated the two motions and denied them in an unpublished, reasoned decision on January 3, 2008.*fn5 The Appellate Division, Third Department, summarily denied leave to appeal on May 27, 2008.*fn6 On January 24, 2008, while his second § 440.10 motion was pending, Hutcherson filed a petition for a writ of error coram nobis in the Appellate Division, Third Department. The Appellate Division summarily denied Hutcherson's petition without opinion or citation to authority in an unpublished decision.*fn7 The New York Court of Appeals denied leave to appeal on August 8, 2008.*fn8 Hutcherson timely filed his petition in this Court on June 26, 2007, and his amended petition on December 11, 2008.
II. GROUNDS RAISED/DEFENSES
In his amended petition, Hutcherson raises four grounds for relief: (1) violation of his Miranda rights;*fn9 (2) ineffective appellate counsel (failure to raise issues); (3) failure of the prosecution to turn over materials in violation of Brady;*fn10 and (4) police misconduct (witness tampering).*fn11 Respondent asserts no affirmative defenses in his Answer.*fn12
This Court notes that Hutcherson refers to seven grounds in his traverse: (1) failure to prove each element of the crime; (2) and (3) two separate claims of ineffective trial counsel; (4) ineffective appellate counsel; (5) confrontational clause violation; (6) a Miranda violation; and (7) denial of the right to present evidence that another had committed the crime. It appears that Hutcherson raised grounds (1), (2), and (3) in his original petition, but did not include them in his amended petition. In compliance with the terms of this Court's Order,*fn13 Respondent has not responded to any ground other than those raised in the amended petition.
"The petition must: (1) specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; [and] (3) state the relief requested . . . ."*fn14 As the Supreme Court has stated:
Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important . . . ."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." (internal quotation marks omitted)). Accordingly, the model form available to aid prisoners in filing their habeas petitions instructs in boldface:
"CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge.
And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date."
Petition for Relief From a Conviction or Sentence By a Person in State Custody, Habeas Corpus Rules, Forms App., 28 U.S.C., P. 685 (2000 ed., Supp. V) (emphasis in original).
A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to "show cause why the writ should not be granted." § 2243. Under Habeas Corpus Rule 4, if "it plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court," the court must summarily dismiss the petition without ordering a responsive pleading. If the court orders the State to file an answer, that pleading must "address the allegations in the petition." Rule 5(b).*fn15
"The 'original pleading' in a habeas proceeding is the petition as initially filed."*fn16 A habeas petition may be amended as provided in the rules of procedure applicable to civil actions.*fn17 Amendment of pleadings in civil actions is governed by Federal Rule of Civil Procedure 15. Normally, a pleading that has been amended in accordance with Rule 15 supersedes the pleading it modifies.*fn18 Once an amended pleading is interposed, the original pleading has no further function in the case.*fn19 Thus, claims asserted in the original pleading are normally deemed waived or abandoned if not replicated in the amended pleading.*fn20 Accordingly, this Court declines to address any ground raised by Hutcherson, other than the four grounds raised in his amended petition; the grounds to which Respondent responded.
Because the petition was filed after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Consequently, this Court cannot grant relief unless the decision of the state court "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn21 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn22 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn23 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn24 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn25 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn26 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn27 Hutcherson "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn28
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn29 In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn30
Ground 1: Miranda Violation
At the time of, or shortly after, his arrest, Hutcherson made two statements to a police officer: "I'm glad I got caught" and "the gun at the Red Roof Inn wasn't loaded." Hutcherson argues that these two statements, made before he was informed of his Miranda rights, should have been suppressed. After holding a Huntley hearing,*fn31 the trial court found as true the testimony of the police officer that the statements were made spontaneously, not as a result of police interrogation.*fn32 On direct appeal, the Appellate Division, without discussion, accepted the trial court's finding:
Following his arrest one year after the robbery, defendant spontaneously disclosed to a police officer that "he had screwed up and that he was glad he was caught" and further stated that the gun at the subject hotel "wasn't loaded."*fn33
The privilege against self-incrimination while an individual is in custody embodied in Miranda is not whether he is allowed to talk with the police without the benefit of warnings and counsel, but whether he can be interrogated.*fn34 "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today."*fn35
In this case, the trial court found, as a factual matter, that the challenged statements were made spontaneously, not as the result of police interrogation. Hutcherson's arguments are basically nothing more than an attack on the testimony of the police officer. Hutcherson misperceives the role of a federal court in a federal habeas proceeding attacking a state-court conviction. This Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. The role of this Court is to simply determine whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain the finding of fact.*fn36 In the absence of clear and convincing evidence to the contrary, this Court is bound by that factual finding.*fn37 Such is the case here.
On the record before it, this Court cannot say that the decision of the Appellate Division was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn38
Hutcherson is not entitled to relief under his first ground.
Ground 2: Ineffective Assistance of Appellate Counsel
Hutcherson contends that appellate counsel was ineffective in failing to raise certain issues on appeal. As a result, Hutcherson was forced to raise them himself in his own pro se brief and in his petition for a writ of error coram nobis. Specifically, in his amended petition, Hutcherson refers to "destruction of evidence, confrontational clause, etc." Under Strickland,*fn39 to demonstrate ineffective assistance of counsel, Hutcherson must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn40 A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.*fn41 Hutcherson must show that his appellate counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn42 The failure of appellate counsel to raise meritless or weak issues does not constitute ineffective assistance of counsel.*fn43 "However, a petitioner may establish constitutionally inadequate performance if he shows that [appellate] counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker."*fn44
Hutcherson raised his ineffective assistance of appellate counsel arguments before the Appellate Division, Third Department, in his petition for a writ of error coram nobis. The Appellate Division summarily rejected Hutcherson's petition without opinion or citation to authority.*fn45 Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn46 In so doing, because it is not clear that it did not so do, this Court assumes that the state court decided the claim on the merits and the decision rested on federal grounds.*fn47 This Court gives the assumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn48
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").*fn49
It is through this doubly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d)(1) standard.*fn50
1. Destruction of Evidence
Although Hutcherson does not identify the destroyed evidence in his petition, in his Traverse Hutcherson identifies the destroyed evidence as a vehicle in the possession of the police. Hutcherson contends that appellate counsel, in not raising the destruction of the evidence on direct appeal, ignored decisions of the Appellate Division, Third Department. Hutcherson does not ...