The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
James Hines filed this pro se Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, alleging that his present confinement is in violation of his constitutional rights. Hines's specific grounds for habeas relief are as follows: (1) the prosecutor didn't answer one of his pre-trial discovery demands; (2) narcotic evidence presented at his trial was improperly tested; and (3) ineffective assistance of counsel. Dkt. No. 1, Pet. For the reasons that follow, it is recommended that the Petition be denied.
By an Indictment, dated June 11, 2002, an Albany County Grand Jury charged Petitioner and Yolanda King, his one-time girlfriend, with Criminal Possession of a Controlled Substance in the Second Degree, Criminal Possession of a Controlled Substance in the Third Degree, and Criminally Using Drug Paraphernalia. Dkt. No. 8, State Court R. (hereinafter "R."), Ex. H, Pet'r § 440 Mot., Appx. at A6-A8, Indictment Nos. D020924 & D020925, dated June 11, 2002. Subsequently,
Yolanda King pleaded guilty to Criminal Possession of a Controlled Substance in the Third Degree in full satisfaction of the Indictment against her.*fn1
At Petitioner's jury trial, the following testimony was adduced. Police Officer Robert Schunk testified that on April 28, 2002, he responded to a 911 call reporting a "white female screaming and possibly getting beaten" at 125 Philip Street in Albany, New York. R., Trial Tr., dated Mar. 3, 2003, at p. 79. Schunk was greeted at the door by Jeanette Hines, a black female of no relation to Petitioner, who said there was no problem and allowed Schunk to enter the apartment so he could investigate. Id. at pp. 80-81. After Schunk entered the apartment, a white female emerged from the kitchen, who, upon questioning, also denied there was any problem. Id. at p. 82. When Schunk asked if there was anyone else in the apartment, Hines told him there were two people in the rear bedroom. Id. Schunk was proceeding down the hallway toward the back of the apartment when he saw Petitioner exit the rear bedroom, leaving the door ajar. Id. at p. 83. Schunk smelled marijuana coming from the bedroom and asked Petitioner if he had been smoking marijuana, to which Petitioner answered affirmatively. Id. Schunk looked through the crack in the open bedroom door and observed Yolanda King sitting on a mattress next to a plate of crack cocaine. Id. at p. 84.
Schunk arrested Petitioner and, after ordering King out of the bedroom and obtaining her consent to search the room, he recovered 95.8 grams of crack cocaine, 21 "tie-offs," each containing a small quantity of crack cocaine wrapped in plastic, a Tupperware container, large and small ziplock bags, a cell phone, a marijuana cigarette, and business cards with the title "Big Man" on one side of the cards and a telephone number with a dollar sign and "50 up" on the other side. Id. at pp. 86-87. The telephone number on the cards matched the cell phone recovered in the bedroom. Id. at pp. 106-07.
Yolanda King testified that she had been dating Petitioner for two months prior to their arrest on April 28, 2002. The day before such event, King and Petitioner obtained crack cocaine in Manhattan, with plans to sell it in Albany. Id. at pp. 180-84, 193, 202, & 214. On the morning of April 28th, King saw Officer Schunk outside the apartment and alerted Petitioner, who was at that time smoking a marijuana cigarette in their bedroom. Id. at pp. 178-79 & 197. King watched as Petitioner left the bedroom and "walked right into [Schunk's] arms." Id. at p. 259.
Jeanette Hines testified that she helped create the business cards for Petitioner, whose street name was "Big Man." Id. at pp. 308-10. Hines acknowledged that she gave Officer Schunk consent to search the bedroom. Id. at p. 317. Petitioner did not testify nor present any evidence at trial. See generally Trial Tr.
On May 14, 2003, a jury convicted Petitioner of Criminal Possession of a Controlled Substance in the Second Degree (N.Y. PENAL LAW § 220.18(1) amended by 2004 N.Y. SESS. LAWS, ch. 738 (McKinney)),*fn2 Criminal Possession of a Controlled Substance in the Third Degree (N.Y. PENAL LAW § 220.16(1)), and Criminally Using Drug Paraphernalia (N.Y. PENAL LAW § 220.50(2)).
Trial Tr. at pp. 458-60. Petitioner was sentenced as a second felony offender to concurrent, indeterminate prison terms of ten (10) years to life on the second degree drug possession count, ten (10) to twenty (20) years on the third degree drug possession count, and one (1) year on the drug paraphernalia count. R., Sentencing Tr., dated May 14, 2003, at pp. 23-24.
Prior to sentencing, on April 28, 2003, Petitioner filed a N.Y. CRIM. PROC. LAW ("CPL") § 330 Motion to Set Aside the Verdict, in which he raised the following arguments: (1) the evidence was legally insufficient to convict and the verdict was against the weight of the evidence; (2) there was no probable cause for his arrest; (3) the prosecutor failed to turn over certain letters written by Petitioner to Yolanda King; (4) the trial court improperly ordered Defendant to turn over to the prosecution certain letters from King to Petitioner; (5) a hearing was necessary to investigate King's statement in one of her letters that the prosecutors "wanted me to lie on you;" and (6) the prosecution did not prove beyond a reasonable doubt that the substance recovered from the apartment was in fact cocaine because the chemist testified that she had not tested the cocaine sample against which the substance was tested. R., Ex. A, Pet'r § 330 Mot. Br. The trial court summarily denied Petitioner's § 330 Motion. Sentencing Tr. at p. 3.
Thereafter, Petitioner filed a direct appeal to the New York State Supreme Court Appellate Division, Third Department, raising the following grounds for relief: (1) the trial court failed to give jury instructions on accomplice corroboration; (2) the evidence was legally insufficient to convict; (3) ineffective assistance of counsel; (4) lack of probable cause for his arrest; and (5) unduly harsh and excessive sentence. R., Ex. C, Pet'r App. Div. Br. at pp. 5-14. The Appellate Division unanimously denied Petitioner's appeal, affirming his conviction. People v. Hines, 24 A.D.3d 964 (N.Y. App. Div. 3rd Dep't 2005). Petitioner's request for leave to appeal to the Court of Appeals was also denied. People v. Hines, 6 N.Y.3d 834 (2006).
On February 14, 2007, Petitioner filed a Motion to Set Aside the Verdict pursuant to CPL § 440.10 raising, inter alia, the three grounds for relief brought in the instant Habeas Petition. R., Ex. H, Pet'r § 440 Mot. The trial court denied the Motion, stating that "[e]ach of these issues was, or could have been, raised on  [direct] appeal." Id., Ex. K, Order, dated Apr. 2007,*fn3 at p. 3. The Appellative Division subsequently denied Petitioner leave to appeal. Id., Ex. M, Order, dated July 9, 2007.
The instant Habeas Petition was filed on August 31, 2007. Dkt. No. 1. Respondent concedes that the Petition is timely and that all of the claims have been properly exhausted. Dkt. No. 7, Resp't Mem. of Law at pp. 11-12
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either
1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...