The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Curtis Pucci ("Petitioner"), timely filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his custody. Petitioner was convicted, following a jury trial, in absentia,*fn1 of Assault in the Second Degree (N.Y. Penal Law § 120.05(2)), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03(2)), two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02(1)), and two counts of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01(4)).
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner's conviction arose out of an altercation which occurred on May 5, 2001, during which petitioner struck his roommate about the head with homemade brass knuckles and threatened to kill him with a .380 caliber handgun. Trial Transcript ("T.") 325-335. The victim was treated at Rochester General Hospital for multiple head lacerations, facial swelling, abdomen and lower back swelling, and a Grade III concussion. T. 277-80. In a search of a common storage area in the multi-family apartment building where petitioner resided, police located brass knuckles, .380 caliber handgun, .380 caliber ammunition, and several long guns owned by the Petitioner. T. 437-442.
On February 28, 2002, after being brought in on a bench warrant, Petitioner was sentenced as a second violent felony offender to an aggregate determinate sentence of fifteen years and five years of post-release supervision. See Sentencing Minutes 14-15.
Petitioner's conviction and sentence were affirmed on direct appeal to the Fourth Department on March 19, 2004. People v. Pucci, 5 A.D.3d 1099 (4th Dep't 2004). Petitioner then filed a New York Criminal Procedure Law (C.P.L.)§ 440.10 motion which was denied on April 19, 2005. See Resp't App. R. Petitioner was denied leave to appeal this ruling. See Resp't App. U. Petitioner was granted a writ of error coram nobis by the Fourth Department on March 17, 2006 and was afforded a second de novo appellate review. People v. Pucci, 27 A.D.3d 1200 (4th Dep't 2006). The Fourth Department affirmed Petitioner's conviction for the second time on February 2, 2007. People v. Pucci, 37 A.D.3d 1068 (4th Dep't 2007). Petitioner filed an application for leave to appeal to the Court of Appeals, which was denied. People v. Pucci, 8 N.Y.3d 949 (2007).
Petitioner brought the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's claims are as follows: 1) violations of his Fourth Amendment rights, 2) ineffective assistance of counsel, 3) insufficient evidence to sustain each charge, 4) judicial misconduct, 5) prosecutorial misconduct, 6) the verdict was against the weight of evidence, and 7) cumulative error resulting in an unjust trial. See Petition 20-110.
III. GENERAL PRINCIPLES APPLICABLE TO HABEAS REVIEW
A. The AEDPA Standard of Review
Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), the federal court may only grant habeas relief to a state prisoner on claims that were adjudicated on the merits in state court and resulted in a decision which was contrary to or involved an unreasonable application of clearly established Supreme Court precedent or was based on an unreasonable determination of facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1),(2); Switzer v. Graham, No. 05-CV-6706, 2010 WL 1543855, *2 (W.D.N.Y. Apr. 16, 2010). A writ of habeas corpus may not be granted solely because the federal court would have ruled differently on the issue; the decision must have been unreasonable due to an "additional increment of incorrectness." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Determinations of fact made by a state court are presumptively correct unless Petitioner has proven otherwise by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003).
B. Exhaustion Requirement
Before a federal court may grant habeas relief, Petitioner must have exhausted all available state remedies through either direct appeal or collateral attack on his conviction. 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994). To fulfil this requirement, Petitioner's federal claims must have been presented to the highest state court. O'Sullivan, 526 U.S. at 844; Bossett, 41 F.3d at 828. A claim which has not been fairly presented may be deemed exhausted if it is clear that the claim would be procedurally barred by the state court. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Federal courts are prohibited from granting habeas petitions where the Petitioner's claims have not been exhausted, however, it is within their discretion to deny a Petitioner's unexhausted claims. See 28 U.S.C. § 2254(b).
C. The Adequate and Independent State Ground Doctrine
Federal habeas courts will not review a state decision which rests "on a state law ground that is independent of the federal question and adequate to support the judgment." Cotto v. Herbert, 331 F.3d 217,238 (2d Cir. 2003). This applies to independent state law grounds, substantive or procedural, which are firmly established and regularly followed by the state. Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2006)(citing Lee v. Kemna, 534 U.S. 362, 375 (2002)). Federal review is proscribed where a state court holding plainly stated that the claim was procedurally barred, even if the state court also reached the merits of that claim. Switzer, No. 05-CV-6706, 2010 WL 1543855, *2. To overcome this bar, a petitioner must evince a constitutional violation which resulted in a fundamental miscarriage of justice. Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002).
A. Fourth Amendment Violations
On direct appeal, Petitioner alleged that the trial court erred in summarily dismissing Petitioner's motion to suppress evidence, that Petitioner was erroneously denied standing to contest a police search, and that the evidence obtained in the search should have been excluded as "fruit of the poisonous tree." See Resp't App. E. These claims were found to be without merit by the Fourth Department. See Pucci, 37 ...