The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner George Torres ("petitioner") has filed a timely petition for writ of a habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in Erie County Court of two counts of Assault in the Second Degree (N.Y. Penal L. § 120.05(3)), one count of Resisting Arrest (N.Y. Penal L. § 205.30), and one count of Obstructing Governmental Administration in the Second Degree (N.Y. Penal L. § 190.05). Petitioner was convicted following a non-jury trial before Judge Michael F. Pietruszka and subsequently sentenced as a second felony offender to five years imprisonment and five years of post-release supervision. Sentencing Tr. 4-6.
II. Factual Background and Procedural History
Petitioner's convictions stem from an incident that occurred on the morning of June 6, 2004, wherein Buffalo Police responded to a domestic violence call at a Bogardus Street residence and encountered petitioner, who was intoxicated, combative, and holding his 6-month old child "like a football." After officers were able to take the baby from petitioner, petitioner became belligerent and would not comply with the officers' requests. The officers attempted to restrain petitioner, but he resisted, refusing to allow the officers to handcuff him. As a result of the struggle, two police officers suffered torn ligaments and injuries to their hands. Trial Tr. 7-11, 15, 58-63, 88-91, 93, 110-112, 114-115, 133, 135, 190-194, 197, 202.
Petitioner, through counsel, raised three points on direct appeal: (1) the assault convictions were based upon insufficient evidence; (2) the obstructing governmental administration and resisting arrest convictions were based on insufficient evidence; and (3) the sentence was harsh and excessive. Resp't Exhibits ("Ex.") B. He also filed a pro se supplemental brief, in which he argued that: (1) he was entitled to a Huntley hearing; (2) the indictment consisted of duplicitous counts; and (3) a Brady violation deprived him of a fair trial. See Ex. B. The Appellate Division, Fourth Department, unanimously affirmed the judgment of conviction. See id.; People v. Torres, 38 A.D.3d 1348 (4th Dept. 2007), lv. denied, 9 N.Y.3d 852 (2007).
The instant petition for writ of habeas corpus was filed with this Court on January 11, 2008, wherein petitioner seeks relief on the following grounds: (1) petitioner was deprived of due process because of a Brady violation; (2) petitioner's arrest was not premised on probable cause; (3) petitioner was not advised of his Miranda warnings; and (4) the conviction was not based on legally sufficient evidence. Petition ("Pet.") ¶ 12. (Dkt. #1). The respondent has filed a response and memorandum of law opposing the petition. (Dkt. ## 7,8). For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.
A. General Principles Applicable to Federal Habeas Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
2. Exhaustion Requirement
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State...." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly ...