The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
Derick Newton ("Petitioner") brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. The petitioner was convicted in the New York State Supreme Court, New York County, for the Criminal Sale of a Controlled Substance in the Third Degree in violation of New York Penal Law section 220.39(1). The judgment was entered on September 10, 2007. As a predicate violent felony offender, the petitioner was sentenced to a term of six years imprisonment to be followed by a three-year term of post-release supervision. The petitioner's conviction was affirmed by the Appellate Division, First Department, and leave to appeal to the New York Court of Appeals was denied. People v. Newton, 872 N.Y.S.2d 106, 106 (App. Div.), leave to appeal denied, 909 N.E.2d 592, 592 (N.Y. 2009).
The petitioner subsequently made a motion pursuant to New York Criminal Procedure Law section 440.10 to vacate the judgment of conviction on the grounds that the trial court lacked subject-matter jurisdiction to decide his case because he was denied his right to testify before the grand jury in violation of New York Criminal Procedure Law section 190.50. By order dated August 21, 2009, the trial court denied the motion:
Under CPL § 440.10(2)(c), the court must deny a motion to vacate judgment when there are sufficient facts on the record concerning the issue raised to have allowed that issue to have been reviewed on direct appeal. Here, the defendant relies entirely on facts that appear on the record. He has offered no justification for the failure to raise this issue on his appeal. (Tarr Decl. Ex. G.) Leave to appeal to the Appellate Division was denied on October 1, 2009. (Tarr Decl. Ex. J.)
The petitioner asserts the following three claims in his habeas corpus petition: (1) the jury's guilty verdict was against the weight of the evidence; (2) the prosecutor's summation denied the petitioner a fair trial in violation of his due process rights; and (3) the trial court lacked subject-matter jurisdiction. (Habeas Pet. ¶ 13.)
The jury could reasonably have found the following facts. On December 9, 2006, the petitioner was arrested in front of 19 East 128th Street in Manhattan for assisting in the sale of crack cocaine to an undercover police officer. (Trial Tr. 39-40.)
Shortly after 8 p.m., the officer approached the petitioner outside a grocery store on the southwest corner of 130th Street and Madison Avenue and set up the drug purchase. (Trial Tr. 30, 32.) The undercover officer received support from a "ghost" officer who watched the entire transaction take place from a short distance away. (Trial Tr. 86-95.) The petitioner opened the door to the grocery store and called to Darrious Pettiford, who was inside, saying, "Yo come on, he needs some," indicating that the undercover officer had asked to purchase drugs. (Trial Tr. 32.) Pettiford exited the store and Pettiford, the petitioner, and the undercover officer walked down the block together. (Trial Tr. 33.) As they walked, Pettiford asked the undercover officer for money. The undercover officer gave him $30, and Pettiford handed him three clear plastic bags of crack cocaine. (Trial Tr. 33, 41.) While this was taking place, the petitioner was standing behind the undercover officer acting as a lookout. (Trial Tr. 33, 37.) The undercover officer then parted ways with the petitioner and Pettiford and informed his field team that he had made a positive buy. (Trial Tr. 38.) The petitioner and Pettiford were arrested by the field team approximately five to seven minutes later. (Trial Tr. 39.)
At trial, a jury found the petitioner guilty of the Criminal Sale of a Controlled Substance in the Third Degree. (Trial Tr. 169-170.) The petitioner's judgment of conviction was affirmed by the Appellate Division, First Department, and leave to appeal was denied by the New York Court of Appeals. Newton, 872 N.Y.S.2d at 106; leave to appeal denied, 909 N.E.2d at 592. The petitioner now brings a habeas corpus petition before this Court pursuant to 28 U.S.C. § 2254. For the following reasons, the petition is denied.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).
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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" the Supreme Court's result. Williams v. Taylor, 529 U.S. 362, 405 (2000).
A state court decision involves "an unreasonable application of . . . clearly established Federal law" when the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case . . . ." Jones v. Walsh, No. 06 Civ. 225, 2007 WL 4563443, at *5 (S.D.N.Y. Dec. 27, 2007) (quoting Williams, 529 U.S. at 407-08). To meet that standard, "the state court decision [must] be more than incorrect or erroneous . . . [it] must be objectively unreasonable." Jones, 2007 WL 4563443 at *5 (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). "[I]t is well established in [this] circuit that the objectively unreasonable standard of § 2254(d)(1) means that [a] petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003) (internal quotation marks omitted).
Because the petitioner is proceeding pro se, his petition is "read liberally and should be interpreted 'to raise the strongest arguments that [it] suggest[s].'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also Muir v. ...