The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Jeffrey L. Haberer ("petitioner") has brought a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Cattaraugus County Court of Sodomy in the First Degree (N.Y. Penal L. § 130.50(3)) and two counts of Endangering the Welfare of a Child (N.Y. Penal L. § 260.10(1)). Petitioner's judgment of conviction was entered on June 16, 2003, following a jury trial before Judge Larry M. Himelein. Petitioner was sentenced as a second felony offender to a determinate sentence of imprisonment of twenty-two years for the sodomy charge, concurrent to one year terms for each count of endangering the welfare of a child.
II Factual Background and Procedural History
Petitioner's convictions stem from various incidents wherein petitioner played pornographic movies in front of, and had sexual contact with his girlfriend's two daughters, ages 8 (Victim #1) and 11 (Victim #2). In a seven-count indictment, petitioner was charged in Cattaraugus County with one count each of Sodomy in the First Degree and Rape in the First Degree, three counts of Sexual Abuse in the Second Degree, and two counts of Endangering the Welfare of a Child.
Petitioner's trial began on April 29, 2003. The prosecution introduced evidence that, on multiple occasions, petitioner played pornographic movies in front of the girls, fondled them, made sexual remarks towards them, and engaged in oral sex with Victim #1. Trial Tr. 63-112.
The defense called several witnesses, including petitioner, who denied having sexual contact with either victim. Trial Tr. 128-179.
On May 1, 2003, the jury found petitioner guilty of the sodomy and endangering charges and not guilty of the rape and sexual abuse charges. Trial Tr. 269-271.
Petitioner submitted counseled and supplemental pro se briefs to the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Haberer, 24 A.D.3d 1283 (4th Dept. 2005); lv. denied, 7 N.Y.3d 756 (2006). A motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. § 440.10 followed, which was denied by the county court on procedural grounds. Leave to appeal that decision was not sought.
The instant petition for habeas corpus (Dkt. #1) was filed on December 12, 2007, alleging the following ground for relief:
(1) the indictment was duplicitous; (2) the indictment/bill of particulars were deficient; (3) Victim #1 lacked sufficient capacity to testify before the grand jury and at trial; (4) the indictment was obtained by the use of perjured testimony; (5) the evidence at trial was insufficient to support petitioner's conviction; (6) the state obtained the indictment by withholding exculpatory/impeaching evidence; (7) prosecutorial misconduct deprived petitioner of a fair trial; (8) ineffective assistance of trial counsel; (9) juror bias; and (10) the sentence was harsh and excessive. Petition ("Pet.") ¶ 22(A)-(J) (Attachment). The respondent has filed an answer and memorandum of law opposing the petition (Dkt. ##15, 16), as well as an index of the state court records ("Ex."). On July 8, 2010, petitioner filed a traverse/memorandum of law responding to the respondent's papers (Dkt. #33). 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 limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness 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) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds ...