The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Derrick Floyd ("petitioner"), has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Supreme Court of Criminal Possession of a Weapon in the Second Degree (former N.Y. Penal L. § 265.03(2)). Petitioner was convicted following a jury trial before Justice Russell P. Buscaglia, and was subsequently sentenced to a determinate term of imprisonment of fifteen years plus five years of post-release supervision.
II. Factual Background and Procedural History
On the night of February 18, 2005, a birthday party took place at the Palace Nightclub at Main and Balcom Streets in the City of Buffalo. T. 532.*fn1 Although the party was private, the general public was still allowed to enter the bar. T. 534. At some point during the early morning hours of February 19, several young people entered the bar that looked like they were associated with a gang.
T. 569. Around 2:30a.m., there was an argument on the dance floor and security guards began to escort patrons out of the club.
T. 535-536, 572-573. As people were being removed by security, gunshots were fired outside. T. 538-539, 575. When the commotion subsided, Curtis Holloway ("the victim") was seen lying in the doorway of the bar. T. 383. He was shot in the back, left thigh, and left foot, and subsequently died as a result of multiple gunshot wounds. T. 1108-1109.
Petitioner was identified by two patrons as having a weapon in his hand at the time of the incident. T. 371, 385, 438, 736. One of those patrons testified that he observed petitioner fire the handgun into the crowd, towards the front door of the club. T. 734-735. The manager of the club also testified that he had seen petitioner at the Palace Nightclub that night, as he was familiar with petitioner through his family and from the neighborhood.
T. 571-572. The Palace Nightclub bartender also recalled serving the person she identified as the petitioner a "double shot" of Hennessy Cognac. T. 543.
Petitioner presented an alibi defense at trial, calling two witnesses that testified to petitioner's presence at his sister's home on the night of February 18-19. T. 1131-1133, 1141-1143, 1147, 1119-1195. Additionally, petitioner testified in his own behalf, claiming that he was on probation at the time, and was at his sister's home between 9:00 and 9:30p.m. in compliance with his 10:00p.m. curfew. 1233, 1235.
The jury found petitioner guilty of second-degree weapon possession*fn2 and was sentenced as a second felony offender to a determinate, fifteen-year term of imprisonment, followed by a five-year period of post-release supervision. S. 11.*fn3
B. Direct Appeal and Post-Conviction Remedies
Through counsel, petitioner filed a brief in the Appellate Division, Fourth Department, in which he raised the following issues for appeal: (1) he was denied his constitutional right to be present at a material stage of trial when the trial court conducted an in camera hearing outside of his presence; (2) the prosecutor's improper cross-examination of an alibi witness deprived petitioner of a fair trial; (3) the pre-trial identification procedures were unduly suggestive; (4) the trial court failed to inquire as to a potential conflict of interest; (5) a Batson violation; (6) the verdict was against the weight of the evidence; and (7) the sentence was harsh and excessive. See Petitioner's ("Pet'r") Appellate Br. 9-42 (Ex. B.). The Fourth Department unanimously affirmed the judgment of conviction. People v. Floyd, 45 A.D.3d 1457 (4th Dept. 2007); lv. denied, 10 N.Y.3d 811 (2008).
Petitioner then filed the instant petition for habeas corpus (Dkt. #1), alleging the same grounds as he did on direct appeal. See Petition ("Pet.") ¶ 12(A)-(G). 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 ...