The opinion of the court was delivered by: Sand, J.
Petitioner Winston Gajadhar brings this timely pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he alleges he is being held in custody in violation of his federal constitutional rights. Petitioner's claim arises from a judgment of conviction entered after a jury trial in the New York Supreme Court, New York County for Murder in the Second Degree and Attempted Robbery in the First Degree. Petitioner was sentenced to concurrent, indeterminate prison sentences of twenty years to life on the murder count and five to fifteen years on the attempted robbery count. Petitioner alleges five violations of his federal constitutional rights: (1) dismissal of two jurors without an adequate inquiry; (2) improper comments by the prosecutor during opening and closing statements; (3) insufficiency of the evidence; (4) deprivation of the fundamental right to a jury trial of twelve members; and (5) denial of effective assistance of trial counsel. For the following reasons, the petition for a writ of habeas corpus is denied.
The evidence at trial demonstrated that on January 19, 1994, Petitioner and an armed accomplice visited the Manhattan apartment where Sammy Fiki and his brother, Mosad Elfeky, had established an office for their taxi business. At that time, Petitioner operated a business in Brooklyn called "Blessing Auto Collision." The business specialized in buying damaged police cars at auctions, repairing the cars, and then reselling them to be used as New York taxis. In late 1993, a dispute ensued between Petitioner and Fiki over repairs that Petitioner had done for Fiki. Petitioner believed that Fiki owed him $1500. When Petitioner and his accomplice entered the apartment, his accomplice demanded that Fiki turn over the money. Fiki denied knowing about the money Petitioner believed that he was owed. Petitioner then told his accomplice to "take care" of Elfeky. (Resp. Opp. 2.) Elfeky began to struggle with Petitioner and his accomplice. Hishaim Omar, who had been sleeping in an adjacent bedroom, walked into the vestibule and saw the fight between Elfeky, Petitioner, and his accomplice. Omar noticed that Petitioner's accomplice had a gun, and Petitioner told Omar not to get involved.
Petitioner's accomplice shot Elfeky in the chest and then turned to Omar and shot him in the abdomen. Fiki called 911 from the office phone and provided the operator with his address and a description of Petitioner's accomplice. While Fiki was still on the phone with the operator, Petitioner's accomplice shot him in the abdomen. Petitioner and his accomplice fled the apartment. Police and emergency medical personnel arrived at the apartment shortly thereafter. Fiki, Omar and Elfeky were all taken to the hospital. Elfeky was pronounced dead soon after arriving at the hospital. Omar and Fiki suffered severe internal injuries but survived after extensive surgeries. Omar and Fiki both told detectives that Petitioner was one of the men that had attacked them. Detectives went to Petitioner's apartment and place of work but could not locate him. The police believed that Petitioner had returned to his native country, Trinidad.
On February 28, 1994, a Grand Jury charged Petitioner with two counts of murder in the second degree, one under the theory that he intentionally caused the death of Elfeky, the other under a felony murder theory, alleging that he had caused Elfeky's death during the course of an attempted first degree robbery. Petitioner was also charged with attempted first degree robbery, and two counts each of attempted second degree murder and assault in the first degree with respect to the shootings of Omar and Fiki. In January 1999, the police learned that Petitioner had returned to the United States but were not able to arrest him. When Petitioner flew back to Trinidad on January 23, 1999, he was stopped by an immigration official who suspected that he was using a falsified passport. The Trinidadian officials learned Petitioner's true identity and of the pending murder charge, and on December 10, 1999, Petitioner was extradited to the United States to face the charges against him.
Petitioner's jury trial began on September 13, 2002. On October 10, 2002, after two days of jury deliberations, one of the deliberating jurors fell ill and was admitted to the hospital. The juror was expected to remain in the hospital for over a week. Petitioner opposed a mistrial and waived, orally and in writing, his right to a twelve-person jury. The jury proceeded with only eleven jurors. Petitioner was convicted of felony murder and attempted robbery in the first degree and acquitted of the remaining charges. Petitioner was sentenced to concurrent sentences of twenty years to life and five to fifteen years for the murder and robbery charges, respectively. Petitioner's conviction was affirmed by the New York Supreme Court, Appellate Division, First Department, People v. Gajadhar, 38 A.D.3d 127 (2007), and the New York Court of Appeals, People v. Gajadhar,9 N.Y.3d 438 (2007).
"It is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner may only bring a claim under 28 U.S.C. § 2254 on the grounds that his or her custody is "in violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). A claim under Section 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), will only succeed if the petitioner shows that the state court decision was either "contrary to, or involved an unreasonable application of, clearly established federal law," or "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).
With respect to the "contrary to" clause, the writ may be issued if (1) the state court decision is contrary to Supreme Court precedent on a question of law; or (2) if the state court decision addresses a set of facts "materially indistinguishable" from a relevant Supreme Court case and arrives at a result different than that reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent when the state court either "identifies the correct governing legal rule from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. In order to establish that a state court decision is an unreasonable application, the state court decision must be "more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The decision must be "objectively unreasonable." Id. Factual determinations made by the state court are presumed to be correct, and the petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Prior to seeking habeas relief, a petitioner must exhaust all available state remedies. See, e.g., Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). In order to exhaust his or her claim, a defendant must give the state's highest court "a fair opportunity to pass on his [or her] federal claim." Morgan, 204 F.3d at 369. Respondent ...