The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner James Comfort ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his judgment of conviction entered on May 19, 2004 in Ontario County Court. Following a jury trial before Judge James R. Harvey, petitioner was convicted of two counts of second-degree rape, one count of third-degree rape, and four counts of endangering the welfare of a child.
II. Factual Background and Procedural History
Petitioner's convictions arise out of a series of incidents that occurred during August and September 2002, wherein petitioner engaged in sexual intercourse with three females, ages 13, 14, and 15, and solicited a fourth under-aged girl for sexual acts. Trial Tr. 100-19, 146-60, 187-205, 225-36, 241-47. As a result, petitioner was charged with one count each of Rape in the First Degree (New York Penal Law ("P.L.") § 130.35(1)), Rape in the Third Degree (P.L. § 130.25(2)), and Sexual Abuse in the First Degree (P.L. § 130.65(1)); two counts of Rape in the Second Degree (P.L. § 130.30(1)); and four counts of Endangering the Welfare of a Child (P.L. § 260.10(1)).
A jury trial was held in Ontario County Court before Judge James R. Harvey. Petitioner represented himself with the assistance of a court-appointed legal advisor. Petitioner did not testify on his own behalf, nor did he call any witnesses at his trial.
The jury found petitioner guilty of two counts of second-degree rape, one count of third-degree rape, and four counts of endangering the welfare of a child. He was acquitted of the first-degree (forcible) rape count, and the sexual abuse count was dismissed by the trial court after finding that the evidence before the Grand Jury was legally insufficient to support that charge. Trial Tr. 411-15, Ex. M at 15.
Petitioner was subsequently sentenced to indeterminate, consecutive terms of imprisonment totaling six to eighteen years on the rape convictions, and concurrent terms of imprisonment of one year for each count of endangering the welfare of a child. Sentencing Mins. 42-44.
Through counsel, petitioner filed a direct appeal to the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Comfort, 30 A.D.3d 1069 (4th Dept. 2006), lv. denied, 7 N.Y.3d 787 (2006). Petitioner also filed a pro se motion to vacate the judgment of conviction pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10, alleging that he was denied a fair trial as a result of juror misconduct. See Respondent's Exhibits ("Ex.") A. By written order, the county court denied the motion on the merits. Ex. C. Petitioner did not seek leave to appeal that decision.
On September 26, 2006, petitioner made an application for a writ of error coram nobis to the Appellate Division, Fourth Department, on the ground that he was denied the effective assistance of appellate counsel. Ex. H. That motion was denied by the Appellate Division without opinion. People v. Comfort, 35 A.D.3d 1294 (4th Dept. 2006). In his leave application to the New York Court of Appeals, he argued that his appellate counsel was ineffective, and that he was deprived of his due process rights because he was required to raise that claim in a coram nobis application rather than by way of a C.P.L. § 440.10 motion. Ex. K. Leave was denied by the Court of Appeals on June 14, 2007. Comfort, 9 N.Y.3d 841 (2007).
Petitioner then filed the instant petition ("Pet.") for habeas corpus pursuant to 28 U.S.C. § 2254, raising the following grounds for relief: (1) ineffective assistance of appellate counsel; (2) juror misconduct; and (3) the error coram nobis procedure in New York violates the Due Process Clause. Pet. ¶ 23(A)-(C). (Dkt. #1).
For the reasons that follow, the Court finds that petitioner is not entitled to the writ and the petition is dismissed.
A. General Principles Applicable to Federal Habeas 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 ...