The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
A. Proceedings in State Court
On March 28, 2003, Petitioner Jasib Headley and a person identified as "Puda" mistakenly shot Ronnie Davis ("the victim") with a 9 mm handgun and a .32 caliber handgun after the victim exited the Vinny Mart, a convenience store, on Chenango Street in Binghamton, New York. See TT*fn1 at 319-20, 417-19. They believed that the victim was an individual named Ratike, whom Devaughn Ballard had told them to kill. See id. at 415-19. Petitioner shot the victim five times. See id. at 319-20, 419. Petitioner and Puda ran away. See id. at 319, 419.
Police responded to the scene. See id. at 258-59. The victim was transported to a hospital where he died as a result of the gunshot wounds. See id. at 221-27. Petitioner later confessed to the shooting when speaking with Binghamton Police Investigator Brett Surace. See id. at 415-16.
Petitioner was charged with committing two counts of murder in the second degree ("intentional murder" and "depraved indifference murder"). See Dkt. No. 42-16 at 5-9. He was also charged with committing conspiracy in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. See id.
At trial, Matthew Young, who testified pursuant to an agreement with the District Attorney's Office, stated that, two weeks before the shooting, he heard Petitioner, Ballard, and Puda discussing plans to kill Ratike whom Ballard claimed had been disrespectful to him. See TT at 300-10. On the night of the shooting, Young drove Petitioner and Puda to the vicinity of the convenience store and parked the vehicle. See id. at 313-14. Petitioner and Puda exited the vehicle. See id. at 318. Shortly thereafter, Young heard gunshots. See id. at 318-19. Petitioner and Puda returned to Young's vehicle and told Young to drive. See id. at 319-20. While he was driving, Young heard Petitioner say that he thought he "hit somebody" and that he heard someone say, "Ow." See id. Young drove the vehicle to his niece's house where Petitioner and Puda hid the guns. See id. at 321, 323-25. Ballard then arrived and informed them that the wrong man was shot. See id. at 323-24.
Lisa Mack, who received favorable treatment from the District Attorney's Office, also testified at trial. See TT at 384-85. She testified that she saw Young, Puda, Ballard, and Petitioner together in Ballard's apartment a few hours before the shooting. See id. at 377.
Investigator Brett Surace also testified at trial. See id. at 405-34. He explained that Petitioner was arrested in Brooklyn. See id. at 408. Petitioner was taken to the local precinct where several officers questioned him. See id. at 409. Initially, Petitioner denied being involved in the shooting. See id. at 414-15. However, once Investigator Surace was alone with Petitioner, Petitioner admitted that Ballard sent him after Ratike and that he fired the .32 caliber handgun. See id. at 415-19. Investigator Surace then left the office in order to obtain "some writing materials so [he] could take a written statement from [Petitioner]." See id. at 422. However, when he returned to the office, Petitioner asked for an attorney. See id. at 431-32. Investigator Surace also stated that the oral confession was not taped because the interview took place in an office that had no recording equipment due to crowding at the precinct. See id. at 408-10, 428.
Petitioner was convicted of the first count of murder in the second degree ("intentional murder"), conspiracy, and the two counts of criminal possession of a weapon in the third degree. See id. at 564-65. Petitioner was sentenced to serve a prison term of thirty-three years-to-life. See id.
The Appellate Division, Third Department affirmed Petitioner's conviction, and the Court of Appeals denied Petitioner leave to appeal. See People v. Headley, 38 A.D.3d 1007 (3d Dep't), leave denied, 9 N.Y.3d 865 (2007).
On September 6, 2007, Petitioner commenced the present action, pro se, seeking a writ of habeas corpus. See Dkt. No. 1. However, before Respondent filed a response to the petition, Petitioner, on March 6, 2008, filed a motion to stay his petition in order to permit him to exhaust a claim that trial counsel was ineffective. See Dkt. No. 9. The Court granted Petitioner's motion. See Dkt. No. 13.
On March 2, 2009, Petitioner filed a letter-motion in which he asked that the Court lift the stay. See Dkt. No. 20. Petitioner stated that, on December 8, 2008, the Broome County Court denied his motion pursuant to New York's Criminal Procedure Law § 440.10 ("§ 440 motion"), which he had filed on May 14, 2008, and that the Appellate Division, Third Department, denied leave to appeal on February 11, 2009. See id. Petitioner requested an additional ninety days to file an amended petition to include the newly exhausted claims and to "amplify the claims currently before the court." See id.
In an Order dated March 16, 2009, the Court lifted the stay and directed Petitioner to file an amended petition within sixty days of the date of the Order. See Dkt. No. 21.
On May 15, 2009, Petitioner filed an amended petition along with several state-court records. See Dkt. No. 22. However, after a review of the amended petition, it was unclear whether Petitioner intended to abandon two particular claims in his original petition or whether his amended petition was intended to supplement the original petition. See Dkt. No. 23. Therefore, the Court provided Petitioner with an opportunity to file a second amended petition. See Dkt. Nos. 23, 25.
On July 22, 2009, Petitioner filed a second amended petition in which he raised the following grounds for habeas relief: (1) trial counsel was ineffective for failing to investigate and present a viable alibi defense, conduct an adequate pretrial investigation, impeach a prosecution witness with a prior inconsistent statement, and object to a prosecution witness' "prejudicial testimony during cross examination"; (2) the verdict was against the weight of the evidence; and (3) his conviction on two counts of criminal possession of a weapon was improper because those counts stemmed from the same incident. See Dkt. No. 26 at 7-19.
On September 14, 2009, Ruth M. Liebesman, Esq., entered an appearance on behalf of Petitioner. See Dkt. No. 27. Counsel moved for an extension of time to file a memorandum of law in support of Petitioner's second amended petition. See Dkt. No. 28. On September 15, 2009, the Court granted the motion and gave counsel until November 16, 2009, to file a memorandum of law. See Dkt. No. 29. On November 11, 2009, counsel moved for a second extension of time to file a memorandum of law. See Dkt. No. 30. On November 12, 2009, the Court granted that request and gave counsel until December 21, 2009, to file a memorandum of law. See Text Order dated November 12, 2009. On December 21, 2009, counsel filed a memorandum of law along with several exhibits. See Dkt. No. 31. In the memorandum of law, counsel asserted the same arguments that were raised in the pro se second amended petition but also argued that trial counsel was ineffective by making an improper comment during summation. See id.
The Court directed a response to the second amended petition in a Memorandum-Decision and Order dated December 22, 2009. See Dkt. No. 32. Thereafter, on three occasions, the New York State Attorney General's Office, acting on behalf of Respondent, requested an extension of time in which to file a response. See Dkt. Nos. 33, 35, 37. The Court granted all three requests. See Dkt. Nos. 34, 36, 38. On June 4, 2010, Respondent filed a response to the second amended petition along with a memorandum of law and relevant state-court records.*fn2 See Dkt. Nos. 40-43. The Court ordered Petitioner to file any traverse within thirty days. See Dkt. No. 38.
On June 22, 2010, Petitioner's counsel filed a motion for a sixty-day extension of time in which to file a traverse. See Dkt. No. 44. The Court granted counsel a thirty-day extension. See Text Order dated June 24, 2010.
On July 29, 2010, Petitioner's counsel filed a motion to stay the second amended petition. See Dkt. No. 45. The Court denied the motion without prejudice because it did not comport with Local Rule 7.1(a)(1). See Text Order dated July 30, 2010. Petitioner's counsel then filed a second motion to stay. See Dkt. No. 46. On August 13, 2010, Respondent filed a response in opposition to the motion to stay the petition. See Dkt. Nos. 48-49. On August 23, 2010, this Court denied the motion to stay with prejudice. See Dkt. No. 50. In the interim, on August 2, 2010, Petitioner's counsel filed a traverse. See Dkt. No. 47.
The enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006), that a federal court may award habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication resulted in an outcome that: (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
Id. at 73 (quoting 28 U.S.C. § 2254(d)) (footnote omitted);*fn3 see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005) (quotation omitted); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (quotation omitted); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001) (quotation omitted).
In providing guidance concerning application of this test, the Second Circuit has observed that a state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [Williams v. Taylor, 529 U.S. 362] at 405-06, 120 S.Ct. 1495 [(2000)]; Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001) . . . . [A] state court's decision is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts" of the case before it. Williams, 529 U.S. at 413, 120 S.Ct. 1495.
Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007); see also Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
Significantly, a federal court engaged in habeas review is not charged with determining whether the state court's determination was merely incorrect or erroneous, but instead whether such determination was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000); see also Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001) (citation omitted). Courts have interpreted "objectively unreasonable" in this context to mean that "'some increment of incorrectness beyond error'" is required for the habeas court to properly grant the application. Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
2. Review of Claims - Effectiveness of Trial Counsel
Petitioner argues that defense counsel, Michael S. Fauci, ("counsel") was ineffective by failing to (1) present an alibi defense, (2) conduct an adequate pre-trial investigation, (3) object to prejudicial cross-examination testimony of Matthew Young, and (4) impeach Charles Lewis. See Dkt. No. 26 at 7-17. Respondent argues that the state court's rejection of Petitioner's claims of ineffectiveness of trial counsel was not contrary to, or did not involve an unreasonable application of, clearly established Supreme Court precedent. See Dkt. No. 41 at 26-48.
In his § 440 motion, Petitioner raised the aforementioned claims. See Dkt. No. 42-9. The County Court, Broome County, rejected Petitioner's arguments. See Dkt. No. 42-12. As the Court will discuss in more detail, this determination was not contrary to, or did not involve an unreasonable application of, clearly established Supreme Court law.
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. To establish a violation of this right to the effective assistance of counsel, a habeas petitioner must show both (1) that counsel's representation fell below an objective standard of reasonableness, measured in the light of prevailing professional norms; and (2) resulting prejudice, that is, a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 688-90 (1984); Wiggins v. Smith, 539 U.S. 510, 521 (2003) (noting that "the legal principles that govern claims of ineffective assistance of counsel" were established in Strickland.). There is a strong presumption that counsel's conduct fell within the wide range of reasonable assistance and that counsel's actions constituted sound trial strategy under the circumstances. See Cuevas v. Henderson, 801 F.2d 586, 589-90 (2d Cir. 1986) (quotation omitted).
a. Counsel's Conduct in General
The record shows that counsel's performance was objectively reasonable. Before trial, counsel filed appropriate pre-trial motions, including an omnibus motion to dismiss the indictment and suppress evidence. See Dkt. No. 42-16 at 10-24. During the suppression hearing, counsel vigorously cross-examined witnesses. See id. at 72-158. Counsel also made several objections. See id. at 121, 123, 138, 139. Counsel also highlighted the fact that Petitioner was sixteen-years old at the time that the police interviewed him and was "chained to a chair" during that time. See id. at 150. At the end of the hearing, the trial court denied the motion to suppress with one exception. See id. at 153. The court suppressed Petitioner's request for an attorney, which he made to Investigator Surace. See id.
During other hearings, counsel requested the prohibition of television cameras because Petitioner did not want his image on television. See Dkt. No. 42-16 at 51-52, 67. ...