The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Dean Howard Manor ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions of one count each of Murder in the Second Degree (N.Y. Penal L. § 125.25(1)), Criminal Possession of a Weapon in the Second Degree (former § 265.03(2)), and two counts of Criminal Possession of a Weapon in the Third Degree (former § 265.02(4), (7)). Petitioner was convicted in Monroe County Supreme Court following a jury trial before Justice David Egan, and was subsequently sentenced to 25 years to life on the murder conviction, consecutive to concurrent terms of 7 and 15 years on the weapons convictions, for a total of 40 years to life.*fn1
II. Factual Background and Procedural History
Petitioner's conviction stems from the shooting death of thirteen-year-old LaTesha Parson ("the victim") that took place near an elementary school on Sixth Street in the City of Rochester. The shooting was allegedly a botched drive-by shooting in retaliation for a previous robbery committed against the petitioner.
In the late afternoon on September 12, 2002, the victim was standing on the street with her father, brother, and cousin, when multiple shots were fired from a gold Nissan Maxima. Two bullets struck the victim. James Murray, the victim's cousin, identified the shooter as the petitioner.
Six weeks later, petitioner was in custody for an unrelated offense when he was interviewed by police investigators about the incident. Petitioner denied any knowledge regarding the shooting. Following the interview, petitioner made a telephone call to his friend, Larry Murell ("Murell"), mentioning "something about a gun." That call was monitored and recorded by police at the Monroe County Jail. Three days later, police executed a search warrant of Murell's residence and recovered the weapon that was confirmed to have fired the fatal shots. At trial, Murell testified that petitioner had given him the gun.
The gold Maxima that the witnesses described was recovered by police after it was reported abandoned. Among the items found in the car were documents bearing the name of petitioner's alias.
T. 212-213, 234-239, 240-243, 248, 252, 254-256, 270, 279-282, 293-294, 309-315, 394-399, 401-403, 669, 710-712, 727-735, 743-749, 805-808, 817.
Petitioner presented an alibi defense at trial. Defense counsel intended to call petitioner's aunt, Novella Copeland, as a defense witness to testify that her son admitted to committing the murder, and that she had seen the murder weapon in her home. Copeland's testimony was precluded by the trial court on hearsay grounds. Petitioner did not testify on his own behalf. T. 825-827, 844-877.
Following his conviction, petitioner filed a direct appeal to the Appellate Division, Fourth Department, which modified his sentence and unanimously affirmed the judgment of conviction as modified.*fn3 People v. Manor, 38 A.D.3d 1257 (4th Dept. 2007); lv. denied, 9 N.Y.3d 847 (2007).
This petition for habeas corpus followed, in which petitioner raises the following grounds for relief: (1) the telephone conversation between petitioner and Murell was not properly authenticated at trial; (2) the court erred in admitting the records of the telephone calls into evidence; (3) denial of the right to present a defense; (4) the sentences for the weapons possession convictions should have run concurrently to one another; (5) the evidence was legally insufficient to support the conviction; (6) trial counsel was ineffective; and (7) cumulative errors deprived petitioner of a fair trial. Petition ("Pet") at Attach. 8a-8m. (Dkt. #1). The respondent has submitted an answer and memorandum of law opposing the petition (Dkt. #12) and appendix of exhibits ("Appx.").
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
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "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," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). 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 decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be ...