The opinion of the court was delivered by: Andrew T. BAXTER,*fn1 United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner filed this application for habeas corpus relief on August 11, 2006. (Dkt. No. 1). Petitioner was convicted of two counts of Attempted Murder, First Degree; Assault, Second Degree; Criminal Possession of a Weapon, Second Degree; Criminal Possession of a Weapon, Third Degree; and Resisting Arrest. People v. Rudolph, 16 A.D.3d 1151, 1152 (2005). Petitioner raises six numbered grounds for relief in his application for habeas relief. Grounds One and Two allege that there was insufficient evidence to prove that petitioner intended to cause the death of the two victims. (Pet. ¶¶ 12(A) & (B)). Grounds Three, Four, and Six are challenges to his sentences. (Pet. ¶¶ 12(C), (D), & (F)). Ground Five alleges that the weapons possession charges should have been dismissed because the gun should have been suppressed. (Pet. ¶ 12(E)).
Respondent filed his opposition papers on November 9, 2006, arguing, inter alia, that petitioner failed to exhaust his state court remedies with respect to two of his claims. (Resp. Mem. of Law, Dkt. No. 7). Respondent claimed that petitioner's sentencing claims were "partially unexhausted" and not cognizable on habeas review. (Resp. Mem of Law at 28--30). Respondent also argued that the challenge to petitioner's weapons convictions was unexhausted and barred by Stone v. Powell, 428 U.S. 465 (1976). (Resp. Mem. of Law at 31--33).
Petitioner filed a motion on May 23, 2007, to voluntarily dismiss his petition so that he could return to state court to exhaust his claims. (Dkt. No. 13). Instead of allowing petitioner to withdraw his application, Chief Judge Norman A. Mordue stayed the action, and instructed petitioner to commence the appropriate state court action within 30 days and file reports with this court every 60 days. (Dkt. No. 17). Petitioner failed to comply with Chief Judge Mordue's order, and the action was dismissed without prejudice on May 1, 2008. (Dkt. No. 19). Petitioner filed a motion to reopen his case on May 29, 2008, which was granted by an order dated July 17, 2008. (Dkt. Nos. 21, 26). Petitioner filed status reports in December 2008, January 2009, March 2009, May 2009, July 2009, September 2009, and December 2009. (Dkt. Nos. 31, 32, 33, 34, 35, 36, 37, 38).
Petitioner's status report filed in December 2009 included a request that the stay continue until petitioner could receive his trial transcripts.*fn2 (Dkt. No. 38). In response to petitioner's request, the court directed petitioner to file by March 31, 2010, "a short statement of why he needs the transcripts in this action, including an explanation of how the transcripts relate to the existing grounds . . . ." (Dkt. No. 40). In his letter of response, petitioner did not indicate why he needed the transcripts or how they related to the existing grounds in his petition.*fn3 (Dkt. No. 41). This court found that petitioner would not be prejudiced by lifting the stay, and by an order entered May 4, 2010, the stay was lifted and petitioner's case was restored to this court's active docket. (Dkt. No. 42). Petitioner was given until June 7, 2010, to file a traverse, if he so desired.
Id. Petitioner filed a letter on June 7, 2010, which indicated that he was not filing a traverse.*fn4 (Dkt. No. 43).
On March 25, 2002, petitioner pulled a loaded semiautomatic handgun from his jacket pocket and fired it near a police officer's head who was trying to handcuff petitioner.*fn5 A second officer tackled petitioner from behind, and they both struggled to gain control of the handgun. During the struggle, petitioner pointed the gun at the second officer's face and then held it against the second officer's chest. A third officer ultimately wrested the gun from petitioner's hand. An Oneida County Grand Jury charged petitioner with two counts of Attempted Murder in the First Degree (N.Y. PENAL LAW §§ 110.00, 125.27(1)(a)(i), (b)), one count of Assault in the Second Degree (N.Y. PENAL LAW § 120.05(3)), one count of Criminal Possession of a Weapon in the Second Degree (N.Y. PENAL LAW § 265.03(2)), one count of Criminal Possession of a Weapon in the Third Degree (N.Y. PENAL LAW § 265.02(4)), one count of Reckless Endangerment in the First Degree (N.Y. PENAL LAW § 120.20), two counts of Menacing in the Second Degree (N.Y. PENAL LAW § 120.14(1)), and one count of Resisting Arrest (N.Y. PENAL LAW § 205.30).
B. State Court Proceedings
Petitioner was convicted of two counts of Attempted Murder, First Degree; Assault, Second Degree; Criminal Possession of a Weapon, Second Degree; Criminal Possession of a Weapon, Third Degree; and Resisting Arrest. People v. Rudolph, 16 A.D.3d 1151, 1152 (2005). Petitioner was sentenced to two indeterminate sentences of 25 years to life for the attempted murder counts; a 7-year sentence for the assault count, a 15-year sentence for the second-degree weapon possession count, a 5-year sentence for the third-degree weapon possession count, and a 1-year sentence for the resisting arrest count. The two 25-years to life sentences and the 15-year sentence were each to run consecutively, with the other sentences to run concurrently.
On March 18, 2005, the Appellate Division, Fourth Department, modified petitioner's sentence and ordered that the 15-year sentence for second-degree weapon possession must run concurrently with the two 25-years to life terms. People v. Rudolph, 16 A.D.3d at 1153. The New York Court of Appeals denied leave to appeal on August 11, 2005. People v. Rudolph, 5 N.Y.3d 809 (2005). Although this action was stayed in 2007 so that petitioner could return to state court and ...