The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
REPORT-RECOMMENDATION & ORDER*fn1
Petitioner Lucas Rodriquez, pro se, is an inmate in the custody of the New York State Department of Correctional Services. After a jury trial in September of 2001 in New York State Supreme Court, Oneida County, Petitioner was found guilty of one count of Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Third Degree. Dkt. No. 32. Petitioner was sentenced to serve a prison term of twenty-five years-to-life. Id.
Petitioner's conviction was affirmed by the Appellate Division, Third Department, and leave to appeal to the Court of Appeals was denied. People v. Rodriquez, 24 A.D.3d 1321 (N.Y. App. Div. 2005), leave denied 6 N.Y.3d 817 (2006).
Petitioner then commenced the present action. Dkt. No. 1 at 12. However, the action was later stayed, upon Petitioner's request to return to the state courts to exhaust additional claims. Dkt. Nos. 14, 16.
While this action was stayed, Petitioner filed a motion to vacate judgment under N.Y. C.P.L. § 440.10 ("CPL § 440 motion") on December 13, 2007. Ex. G. The motion was denied by the Oneida County Court on February 4, 2008. Ex. I. Leave to appeal was denied by the Appellate Division on August 4, 2008. Ex. K.
Petitioner also filed a petition for writ of error coram nobis on November 13, 2008. Ex. L. The petition was denied by the Appellate Division on March 20, 2009. Ex. N. Leave to appeal to the New York Court of Appeals was denied on August 12, 2009. Ex. P; People v. Rodriquez, 13 N.Y.3d 749 (2009).
On August 19, 2009, Petitioner advised the Court that he was denied leave to appeal to the New York Court of Appeals with regard to his petition for writ of error coram nobis, and requested an extension of time to file an amended petition. Dkt. No. 29. The Court granted Petitioner's request, and lifted the stay. 08/24/09 Text Order.
Petitioner then filed the present amended petition, raising the following grounds for habeas relief: (1) trial counsel rendered ineffective assistance of counsel; (2) appellate counsel rendered ineffective assistance of counsel; (3) the trial court erred by allowing the prosecutor to improperly impeach witnesses, and by admitting the handgun into evidence; and (4) the evidence was insufficient to convict Petitioner of one of the weapon possession charges. Dkt. No. 32. For the reasons which follow, it is recommended that the petition be denied.
On February 10, 2001, James Freeman drove two individuals to the corner of James and Neilson Streets in Utica, New York. TT*fn2 268, 272-75, 299-300, 543-46. The two individuals planned to meet Petitioner, who was their friend, at this location. TT 268-71, 296-99, 543. While they approached the meeting location, Petitioner was standing on the corner and talking with Michael Daley. TT 275-76, 545-46. Daley tried to run away. TT 546, 550. Petitioner shot Daley in the forehead, causing Daley to fall to the ground. TT 275-76, 336, 364, 547. Petitioner then shot Daley three more times in the face at close range. TT 289, 314, 336, 347-49, 359, 364, 378, 548. Petitioner fled. TT 278. The two individuals exited the vehicle and also ran. TT 277-80, 302-03, 323-25, 548-49. Emergency personnel later arrived at the scene, and pronounced Daley dead. TT 456-57. He was eighteen years old.*fn3 TT 240.
Petitioner was charged with committing two counts of murder in the second degree ("intentional murder," and "depraved indifference murder"). See TT 781-84. He was also charged with two counts of criminal possession of a weapon in the third degree. TT 803. He was convicted of the first count of murder in the second degree ("intentional murder"), and the two counts of criminal possession of a weapon in the third degree. Id.
A. Applicable Standard of Review
When reviewing a habeas petition, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States. 28 U.S.C. § 2241(c). Relief does not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); DiGuglielmo v. Smith, 366 F.3d 130, 136-137 (2d Cir. 2004). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim that was adjudicated on the merits in state court proceedings unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1); Carey v. Musladin, 127 S.Ct. 649, 653 (2006); Campbell v. Burgess, 367 F. Supp. 2d 376, 380 (W.D.N.Y. 2004).
A decision is adjudicated "on the merits" when it finally resolves the claim, with res judicata effect, based on substantive rather than procedural grounds. Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001). This is so, "even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Id. at 312. To determine whether a state court has adjudicated a claim "on the merits," a federal habeas court must examine three "clues"*fn4 to classify the state court decision as either (1) fairly appearing to rest primarily on federal law or to be interwoven with federal law; or (2) fairly appearing to rest primarily on state procedural law. Jimenez v. Walker, 458 F.3d 130, 145 (2d Cir. 2006). ...