The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Petitioner pro se, Sivad Davis ("Davis") is currently an inmate in the custody of the New York State Department of Correctional Services ("DOCS") at Woodbourne Correctional Facility. On March 25, 1998, a jury in Broome County found Davis guilty of robbery in the first degree. As a second felony offender, Davis was sentenced to eighteen years imprisonment. Davis is currently serving that sentence. Davis now seeks a writ of habeas corpus under 28 U.S.C. § 2254 claiming (1) ineffective assistance of trial counsel and (2) ineffective assistance of appellate counsel. For the reasons that follow, it is recommended that the petition be denied.
On May 4, 1997, a robbery occurred at the Giant Food Market in Binghamton, New York. People v. Davis, 260 A.D.2d 726, 726 (3d Dep't 1999). Approximately $27,300 was stolen by an individual armed with a gun. Id. On July 9, 1997, Davis was indicted and charged with one count of robbery in the first degree, specifically aiding and abetting, and one count of criminal possession of a weapon in the fourth degree. Sullivan Aff. (Dkt. Nos. 13-6 at 70-71; 13-17, Ex. Q at 3-4) ¶ 4; Dkt. No. 13-6, Ex. F. at 21. On July 15, 1997, Davis was arraigned in Broome County Court and the prosecution declared its readiness for trial. Sullivan Aff. ¶ 3. On July 28, 1997, Davis's trial counsel, Michael Sullivan, requested discovery material. Id. ¶ 4.
On December 3, 1997, Sullivan moved to dismiss the indictment on speedy trial grounds (Dkt. Nos. 13-6 at 69-71; 13-17, Ex. Q)*fn2 and Davis appeared in county court. Dkt. No. 14-2. During the appearance, the court stated that Davis' case had been postponed due to court congestion, scheduled a suppression hearing for December 18, and confirmed with the prosecution its readiness to proceed. Dkt. No. 14-2 at 2-5, 8. Additionally, Davis' counsel confirmed the acceptance of appropriate discovery materials, though complained of an inordinate delay in receiving the paperwork and failure to be furnished with specific reports. Id. at 6. The court reserved the matter for further discussion at the suppression hearing. Id. at 6-7. The issue was never again addressed.
On December 18, 1997, Davis attended the suppression hearing represented by Sullivan and argued that his statements and the results of searches should be suppressed. Dkt. No. 14-1. Davis' counsel extensively cross-examined the investigator. Dkt. No. 14-1 at 32-40, 44-45. Davis also testified during which Sullivan objected multiple times during cross-examination and opposed the prosecution's request for an adjournment to call an additional witness. Id. at 50-54, 63, 64, 65-66, 71, 72-74, 78, 80-81. Sullivan was successful in preventing the adjournment and further testimony from the investigator. Id. 81-82. Sullivan also delivered a persuasive argument to the Court, but the court ultimately upheld the admissibility of the statements and evidence from the searches. Id. at 82-84, 91-98.
Davis' trial commenced on January 27, 1998. Dkt. Nos. 14-3. On the morning of May 4, 1997, Davis and his friend, "Ace," were driven in a white vehicle to Davis' former apartment for Davis to retrieve either mail or stereo speakers. T. 378, 622, 642-43.*fn3
Davis and Ace could not enter the building complex and Ace told Davis that he would return to the car shortly. T. 548, 622-23, 643. Davis entered a Giant store and approximately one minute after Davis left the store, it was robbed by an armed man. T. 623-24. Surveillance cameras appeared to show Ace holding up the store at gunpoint. T. 551-52, 625. Police found Martin, the driver of the car. T. 332-37. Through Martin, police identified Davis and questioned him at the precinct. T. 545-47, 620, 640-41. Davis voluntarily waived his constitutional rights and provided a statement. T. 545-47, 620, 640-41. Police then obtained a search warrant and searched Davis' apartment, recovering from the bedroom money and clothes similar to those worn by the robber. T. 563-65, 629-33.
Throughout the trial, Sullivan thoroughly cross-examined each witness. T. 239-50, 253-256, 264-67, 276-77, 279-80, 288-94, 295-97, 304-05, 350-58, 359-60, 366, 415-26, 428-40, 443-45, 494-517, 524-25, 576-91, 612-14, 637-46, 651, 655-56, 657, 658, 666-67. Sullivan also made objections throughout the trial, strenuously argued various points, and won, a motion in limine. T. 307-13. Sullivan also moved for dismissal at the conclusion of the prosecution's case. T. 668-69. Sullivan actively participated in the charge conference at the conclusion of the trial. T. 673-79. Sullivan also moved for a direct verdict after the guilty verdict was read, and sought Davis' release pending sentencing. T. 775-76.
Davis was found guilty and sentenced as indicated above. Davis, 260 A.D.2d at 727. Davis appealed the judgment of conviction represented by appellate counsel Mitchell Kessler, Esq., challenging (1) the weight and sufficiency of the evidence, and (2) whether allowing the prosecutor to replay the surveillance video for the jury during deliberations violated Davis' rights. Dkt. No. 13-1, Ex. A at 2; see also Davis, 260 A.D.2d at 727. Kessler submitted a memorandum of law and supporting evidence, arguing that the jury's verdict was troublesome due to gaps in the record which did not support Davis' conviction and that the court improperly delegated its judicial responsibilities to the prosecutor when it allowed the prosecutor to present video evidence to the jury. Dkt. No. 13-1, Ex. A at 10-16. The Appellate Division affirmed the conviction and sentence. Davis, 260 A.D.2d at 727-30. On June 23, 1999, the New York Court of Appeals denied Davis's application for leave to appeal. People v. Davis, 93 N.Y.2d 968 (1999); Dkt. No. 13-5, Ex. E at 2.
On November 16, 2007, Davis moved pro se to vacate the conviction. Dkt. No. 13-6, Ex. F; Dkt. No. 13-7, Ex. G. On March 28, 2008, the county court denied Davis' motion. Dkt. No. 13-10, Ex. J at 2-3. On July 2, 2008, the Appellate Division denied Davis' request to appeal. Dkt. No. 13-13, Ex. M at 2. Davis' motion for leave to appeal to the New York Court of Appeals was denied. Dkt. No. 13-16, Ex. P at 2; see also People v. Davis, 11 N.Y.3d 735 (N.Y. 2008). This action followed.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court may grant habeas review only if state court proceedings "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," 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). "Under the 'contrary to' clause, a federal habeas court may grant the writ 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, 412--13 (2000). "Under the 'unreasonable application' clause, a federal court may review the habeas petition if the state court's application of Supreme Court precedent was 'objectively unreasonable.'" Id. at 409.
A federal court may review a habeas corpus petition if it is timely filed. 28 U.S.C. § 2244(d).To be timely, a petition must be filed within one year after the date when the decision becomes "final by the conclusion of direct review or the expiration of the time for seeking such review." Id. at (d)(1)(A).On June 23, 1999, the New York Court of Appeals denied Davis's application for leave to appeal. See Davis, 93 N.Y.2d 968. Davis' conviction became final ninety days later, on August 24, 1999, when his opportunity to petition the United States Supreme Court for certiorari expired.See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Davis had one year from that date, or until August 24, 2000, to file a habeas corpus petition. 28 U.S.C. §2244(d)(1). The petition here was filed ...