The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
By a petition for a writ of habeas corpus, pro se petitioner James White ("White" or "Petitioner") seeks release from custody pursuant to 28 U.S.C. § 2254. Petitioner's custody arises from a judgment of criminal conviction rendered after a jury trial in Erie County Court in which he was found guilty of two counts of rape in the first degree (New York Penal Law ("P.L.") § 130.35(3)), one count of sexual abuse in the first degree (P.L. § 130.65(3)) and one count of endangering the welfare of a child (P.L.§ 260.10(1)). White was sentenced on May 19, 2000, to two determinate terms of imprisonment of 25 years for the two rape convictions, those sentences to be served consecutively to each other. A seven-year determinate term was imposed for the sexual abuse conviction, and a one-year definite term was imposed for the remaining count. Both of these sentences were ordered to be served concurrently with each other and with the two terms imposed for the rape convictions. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed Petitioner's conviction on June 13, 2003. People v. White, 306 A.D.2d 886 (App. Div. 4th Dept. 2003). The New York Court of Appeals denied leave to appeal on September 2, 2003. People v. White, 100 N.Y.2d 625 (N.Y. 2003).
White then sought to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10(1)(h) on the basis that he was denied his Sixth Amendment right to the effective assistance of counsel because counsel allegedly failed to advised him that he had an absolute right to testify in his own behalf, and that he could ignore counsel's advice that he not testify. White also claimed that his attorney prejudiced his defense by telling the jury in his opening statement that petitioner would testify, but then he resting without calling petitioner or offering an explanation in his summation for petitioner's failure to testify.
The trial court denied the motion on November 5, 2004, holding that because Petitioner failed to provide particulars of his prospective testimony, he had not shown the absence of a legitimate basis for counsel's conclusion that he should not testify. People v Rivera, 71 N.Y.2d 705, 709 (1988). The trial court also held that petitioner failed to provide any independent evidence supporting his contention that counsel erroneously advised him about whether to testify or about the nature of his right, as a defendant, to testify in his own behalf. The trial court observed that when Petitioner informed the court at trial that he did not wish to testify, there was no reasonable basis upon which to conclude that he did not know or was otherwise unaware that the decision to testify was ultimately his to make. Permission to appeal the denial of the C.P.L. § 440.10 motion to the intermediate state appellate court was denied on March 31, 2005.
White then filed this timely habeas petition in which he raises the same contentions set forth in his C.P.L. § 440.10 motion--that trial counsel rendered allegedly ineffective assistance in connection with his advising White about the right to testify and his statement to the jury during opening argument that White was going to testify. Respondent answered the petition arguing that the claim is unexhausted and possibly procedurally default but, in any event, without merit. The Court does not agree with respondent's non-exhaustion and procedural default arguments, as it reads the trial court's C.P.L. § 440.10 order as considering and denying White's ineffective assistance claim on the merits.*fn1
For the reasons set forth below, the petition is dismissed.
Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), to which this petition is subject, relief may not be granted unless the State court's adjudication of the merits of petitioner's Federal claim:
(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)(1), (2). As stated by the United States Supreme Court: Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J.); see also Sacco v. Cooksey, 214 F.3d 270, 273 (2d Cir.2000), cert. denied, 531 U.S. 1156 (2001). Thus, a Federal court may only grant habeas relief where the State court's application of clearly established Federal law was not only erroneous, but objectively unreasonable. Williams, 529 U.S. at 409; see also Yarborough v. Alvarado, 541 U.S. 652, 665 (2004) ("We cannot grant relief under AEDPA by conducting our own independent inquiry into whether the state court was correct as a de novo matter.").
The relevant federal law with respect to a claim of ineffective assistance of trial counsel is the performance and prejudice test articulated in Strickland v. Washington, 466 U.S. 668 (1984). As explained by the Second Circuit Court of Appeals, To establish that he was convicted in violation of his right to effective assistance of counsel, a claimant must satisfy both prongs of the two part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test is "rigorous," Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir.2001), and "highly demanding," Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). To satisfy it, ...