The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner George Cotton ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Supreme Court of, inter alia, Criminal Possession of a Weapon in the Second Degree (former N.Y. Penal L. § 265.03(2)) entered on March 11, 2004, following a jury trial before Justice Francis A. Affronti. Petitioner is currently serving a determinate sentence of imprisonment of twenty years.
II. Factual Background and Procedural History
On March 28, 2002, petitioner shot to death rival drug dealer Chad Campbell ("Campbell" or "the victim") after Campbell had bested petitioner in a fist fight a week earlier. Police recovered shell casings at the scene and bullet casings from the victim's body, but no perpetrator was arrested in the months immediately following Campbell's murder. Approximately one year later, Rochester police pulled over the vehicle petitioner was driving for a traffic violation. Police conducted an inventory search and recovered a 9 millimeter handgun from the center console of petitioner's car. Testing the ballistics of the gun determined that it was the weapon used in Campbell's murder. Trial Tr. 337-43, 405-11, 467-69, 476-77, 510, 517, 520, 542.
Petitioner was charged in a seven-count indictment with two counts each of Murder in the Second Degree (N.Y. Penal L. § 125.25(1), (2)), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal L. § 265.03(2)), Criminal Possession of a Weapon in the Third Degree (N.Y. Penal L. § 265.02(4)); and one count of Suspended Registration (N.Y. Veh. & Traf. L. § 512). Following a jury trial, petitioner was acquitted of the murder of Chad Campbell but found guilty of two counts of third-degree weapon possession, one count of second-degree weapon possession, and one count of fourth-degree weapon possession (as a lesser-included offense of second-degree weapon possession). Trial Tr. 662-663.
At sentencing, the trial court dismissed the jury verdict for fourth-degree weapon possession as an inclusory, concurrent offense of third-degree weapon possession. Petitioner was then sentenced as a second felony offender to concurrent and consecutive terms of imprisonment totaling twenty years, with five years of post-release supervision. Sentencing Tr. 8, 18-22.
Petitioner, through counsel, filed a brief in the Appellate Division, Fourth Department, raising six issues for appeal: (1) the jury pool violated petitioner's right to a pool drawn from a fair cross section of the community; (2) the trial court erred in charging the statutory presumption contained in N.Y. Penal L. § 265.15(4); (3) legally insufficient evidence to support the conviction and the verdict was against the weight of the evidence; (4) the trial court should have suppressed the handgun found in petitioner's vehicle; (5) the trial court erred in imposing consecutive sentences; and (6) the sentence was harsh and excessive. See Respondent's Appendix ("Appx.") A. The Appellate Division unanimously affirmed the judgment of conviction. People v. Cotton, 38 A.D.3d 1189 (4th Dept. 2007). Petitioner then sought leave to appeal to the New York Court of Appeals on the jury pool, statutory presumption, and legal sufficiency issues. Appx. H. Leave was denied on May 4, 2007. Appx. K.
On June 19, 2008, petitioner filed the instant petition for habeas corpus (Dkt. #1) pursuant to 28 U.S.C. § 2254, wherein he raises the same claims as he did on direct appeal. Petition ("Pet.") ¶ 22(A)-(D) & Attach. The respondent has submitted an answer and memorandum of law in opposition to the petition (Dkt. ##10, 11).
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
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
2. Exhaustion Requirement and Procedural Default
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State ...." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). "The exhaustion requirement is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings, and is not satisfied unless the federal claim has been fairly presented to the state courts." Jimenez v. Walker, 458 F.3d 130, 148-149 (2d Cir. 2006) (internal citations and quotation marks omitted).
However, "[f]or exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state if it is clear that the state court would hold the claim procedurally barred.'" Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989); other citations omitted). Under such circumstances, a habeas petitioner "no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. Section 2254(b)." Grey, 933 F.2d at 120. The procedural bar that gives rise to the finding that the claim should be deemed exhausted works a forfeiture and precludes federal court litigation of the merits of the claim absent a showing of cause for the procedural default and prejudice resulting therefrom or by ...