The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Damion Saulters ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered January 9, 2002, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25) and Robbery in the First Degree (Penal Law § 160.15).
For the reasons stated below, habeas relief is denied and the petition is dismissed.*fn1
II. Factual Background and Procedural History
The charges arise out of an incident that occurred at 2 Daisy Street in the City of Buffalo on March 19, 1995, wherein George Baxter ("Baxter" or "the victim") was murdered in the course of a drug deal.
On the day of the murder, Petitioner went over to co-defendant William Brown's ("Brown") home to purchase crack cocaine from Andre Kelley ("Kelley"), their drug dealer. When Kelley did not show up at Brown's home, Brown and Petitioner took a taxicab to Baxter's home at 2 Daisy Street in the City of Buffalo for purposes of purchasing drugs. When Petitioner and Brown arrived, Baxter was home. Baxter called Kelley and a friend, Antonio Thompson ("Thompson"), to come over. Shortly thereafter, Thompson, along with his girlfriend, Leslie Nicole Houston ("Houston"), and her friend, Constance Bratton ("Bratton"), arrived at Baxter's home. About twenty minutes later, Kelley arrived at Baxter's home in a taxicab. Trial Transcript of 10/23/06-10/26/06 [T.T.] 38, 43-48.
Brown and Kelley proceeded to engage in a drug sale. During the sale, Petitioner pulled a small, black automatic handgun on Kelley. Petitioner stated, "you know what time it is." Petitioner instructed Kelley to get on the floor, and then instructed Thompson to pat Kelley down for a gun and take the drugs from his pockets. Petitioner also told Brown to flag the taxicab driver (who was a friend of Kelley's) to enter the home and then hit him in the head with a bottle when he entered. Brown signaled to the taxicab driver to come into the home, and then hid in the stairwell to the basement with a bottle in his hand. The taxicab driver entered the home and asked what was going on. In response, Kelley indicated that it was a "set up." Shortly thereafter, several gunshots were fired, and Brown ran out of the stairwell to find Baxter lying against a door with a bullet hole in his shoulder. Baxter died from multiple bullet wounds to the chest, back, and head. Brown ran to Thompson's house, where he saw Thompson's brother and two girls sitting on the porch. Eventually, Petitioner and Thompson arrived. Brown, Thompson, and Petitioner then took a taxicab to a house on East Delavan where Petitioner placed the gun inside a closet. While at this house, the three men discussed what had happened at Baxter's home, and Petitioner indicated that he thought he had killed Kelley*fn2 and Baxter. Before leaving the home on East Delavan, the three men divided up the money that they had taken from Kelley and discussed selling the drugs they had taken from him. T.T. 47-58, 175, 181-182.
Petitioner was indicted by an Erie County Grand Jury and charged with two counts of second degree murder, two counts of first degree robbery, two counts of second degree criminal possession of a weapon, two counts of first degree criminal use of a firearm, and one count of attempted second degree murder.
Petitioner proceeded to trial and was found guilty of one count each of second degree murder and first degree robbery. He was subsequently sentenced to concurrent, indeterminate terms of imprisonment of twenty-five years to life for murder and eight and one-third years to twenty-five years for robbery. Sentencing Mins. 6.
The Appellate Division, Fourth Department unanimously affirmed Petitioner's judgment of conviction on November 19, 2004. People v. Saulters, 12 A.D.3d 1178 (4th Dept. 2004); lv. denied, 4 N.Y.3d 803 (2005).
By motion dated June 25, 2005, Petitioner moved to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440.10 on the ground that he was denied the effective assistance of trial counsel. That motion was denied on procedural grounds for failure to properly raise the issue on direct appeal. See Mem. and Order of Erie County Supreme Court (Hon. Richard C. Kloch, Sr.), Ind. No. 95-0771-001, dated 11/03/05 (Pet'r Attach. C). Petitioner appealed that denial, which was denied by the Appellate Division, Fourth Department on May 10, 2007. See Decision of the Appellate Division, Fourth Department (Hon. Elizabeth W. Pine), Ind. No. 95-0771-001, dated 05/10/07 (Resp't Ex. D).
By motion for a writ of error coram nobis dated October 12, 2007, Petitioner challenged the effectiveness of appellate counsel. The Appellate Division, Fourth Department summarily denied Petitioner's motion. People v. Saulters, 46 A.D.3d 1476 (4th Dept. 2007); lv. denied, 10 N.Y.3d 816 (2008).
The instant habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) defects in the grand jury proceeding; and (2) ineffective assistance of appellate counsel. Petition [Pet.] ¶ 22A-B (Dkt. #1); Mem. of Law in Supp. of Habeas Corpus [Mem.], Points I-II (Dkt. #11); Supplemental Mem. ...