The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Ronald McFadden ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered May 28, 2004, in New York State, Supreme Court, Monroe County, convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") §§ 20.00, 125.25) and Attempted Robbery in the First Degree (Penal Law §§ 20.00, 110.00, 160.15).
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
On June 29, 2003, Petitioner and co-defendant, Anthony Garrett ("Garrett"), attempted to rob Andrew Attinasi ("Attinasi" or "the victim") on East Main Street in the City of Rochester. Garrett was armed with a .22 caliber sawed-off shotgun*fn1 and Petitioner acted as the lookout. The victim was walking down the street with two female friends when Garrett, wielding his weapon, approached the group from behind and demanded money. Petitioner approached Attinasi and the women from the roadside and stood by while Garrett shot and killed Attinasi. Petitioner was positively identified by the two surviving witnesses and acknowledged to police his role as the lookout/accomplice. According to Petitioner, he and Garrett had been driving around with a .22 caliber shotgun looking for someone to rob. Petitioner had agreed to act as the lookout and to watch for police while Garrett committed the robbery. Petitioner further admitted that after Garrett shot the victim, he and Garrett fled the scene. Trial Transcript [T.T.] 308-336, 342-371, 413-414.
Petitioner was indicted by a Monroe County Grand jury and charged with the attempted robbery and felony murder of Attinasi. See Ind. No. 0037C (Respondent's Appendix C). After a jury trial, Petitioner was found guilty of Murder in the Second Degree and Attempted Robbery in the First Degree. Petitioner was sentenced to 25 years to life on the murder conviction and 15 years determinate on the attempted robbery conviction. Sentencing Minutes [S.M.] 13.
Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department on the following grounds:
(1) ineffective assistance of trial counsel; and (2) the verdict was against the weight of the evidence. The Appellate Division, Fourth Department unanimously affirmed Petitioner's conviction on April 20, 2007. People v. McFadden, 39 A.D.3d 1211 (4th Dept. 2007), lv. denied, People v. McFadden, 9 N.Y.3d 867 (2007).
On or about February 13, 2007, during the pendency of his direct appeal, Petitioner filed a motion to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, on the ground that the prosecutor engaged in misconduct and violated his right against self-incrimination. That motion was denied by the Monroe County Court on April 20, 2007. See Order of the Monroe County Court (Hon. Dennis M. Kehoe), Ind. No. 03/0347C, dated 04/20/07. Petitioner failed to appeal the denial of the motion to the Appellate Division, Fourth Department.
On or about October 2, 2007, Petitioner filed the instant habeas petition, wherein he seeks relief on the following grounds:
(1) his conviction was obtained by a violation of his right against self-incrimination; (2) illegal consolidation of indictments; (3) the prosecution was permitted to use false and suppressed evidence at trial; (4) ineffective assistance of counsel. Petition [Pet.] ¶12A-D. (Dkt. #1).
On or about November 29, 2007, Petitioner filed a motion to vacate the sentence, pursuant to CPL § 440.20, based upon newly discovered evidence. That motion was construed as a motion to vacate the judgment, pursuant to CPL § 440.10, and denied by the Monroe County Court on January 22, 2008. See Decision and Order of the Monroe County Court (Hon. Dennis M. Kehoe), Ind. No. 03/0347C, dated 01/22/08. Petitioner failed to appeal the denial of the motion to the Appellate Division, Fourth Department.*fn2
III. General Principles Applicable to ...