The opinion of the court was delivered by: Dora L. Irizarry United States District Judge
DORA L. IRIZARRY, United States District Judge
On April 24, 2006, pro se petitioner Terrence Platt ("Petitioner") filed the instant action, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See generally Docket Entry No. 1 ("Pet.").) The court construes the petition as raising two separate claims for habeas relief.*fn1 The Kings County District Attorney responded to the petition on June 27, 2006, opposing both claims. (See generally Docket Entry No. 4 ("Resp.").)
On July 19, 2006, the court granted Petitioner's motion to stay resolution of this action pending exhaustion of his available state remedies, and ordered him to notify the court within ten days of any state court decision being rendered. (See Docket Entry No. 6.)On October 2, 2009, having received no such notice, the court ordered Petitioner to provide a status report no later than November 6, 2009. Petitioner failed to comply by that date, and has failed to provide the court with any status report as of the date of this Order. Accordingly, the court deems his petition fully briefed, and for the reasons set forth below, denies the petition in its entirety.
On October 6, 1997, Petitioner and two accomplices fired pistols into a crowd at Coney Island in Brooklyn, New York. (Aff. of Keith Dolan in Opp'n to Pet. ("Aff.") ¶ 5--7.) Their intent in so doing was to kill a man named Anthony Dawson, in retaliation for an earlier assault by Dawson against a friend of theirs. (Id. ¶ 5.) Although they missed Dawson, two other people- both innocent bystanders-were hit by their bullets and killed. (Id. ¶ 7.) On May 3, 2000, Petitioner was convicted by a Kings County jury of two counts of Murder in the Second Degree, pursuant to N.Y.P.L. §125.25. The trial court subsequently sentenced Petitioner to two concurrent prison terms of twenty-five years to life. (Id. ¶ 10; see also Pet. 1.)
With the assistance of appellate counsel, Petitioner appealed his conviction on two grounds. (Aff.¶ 11.) First, he argued that the trial court had erred in refusing to submit to the jury a Second Degree Manslaughter lesser included offense charge. (Pet. 2.) Second, Petitioner argued that his sentence was excessive. (Id.) The Appellate Division rejected both arguments on November 18, 2002, finding that no reasonable view of the evidence adduced at trial could support a Second Degree Manslaughter charge, and that the sentence was not excessive. (Aff.¶ 15); see People v. Platt, 299 A.D.2d 496 (2d Dep't 2002). On November 22, 2002, again with the assistance of appellate counsel, Petitioner sought leave to appeal from the New York State Court of Appeals, which was denied on February 3, 2003. (Aff.¶ 16--18); see People v. Platt, 99 N.Y.2d 618 (2003).
On October 9, 2003, Petitioner moved pro se for a writ of error coram nobis, contending that he had been denied effective assistance of appellate counsel.(Aff.¶ 19; Pet. 3.) The Appellate Division assigned him new appellate counsel, and granted him leave to file a brief on the issues. See People v. Platt, 5 A.D.3d 402 (2d Dep't 2004). Petitioner did so, arguing that his original appellate counsel was constitutionally ineffective because he had failed to raise two issues on appeal: that the trial court had improperly dismissed one of the jurors, and that the trial court had improperly responded to a jury note without input from defense counsel. (Aff.¶ 22.) On September 26, 2005, the Appellate Division rejected both arguments and denied the application for a writ of error coram nobis. (Aff. ¶ 24); see People v. Platt, 21 A.D.3d 1124 (2d Dep't 2004). The Court of Appeals subsequently denied Petitioner's request to review the Appellate Division's decision. (Aff. ¶ 27); see People v. Platt, 5 N.Y.3d 884 (2005).
The two grounds raised by Petitioner in the instant habeas petition are substantially the same as those raised on appeal and in the petition for a writ of error coram nobis. First, he argues that the trial court's refusal to charge the jury as to the lesser included offense of Manslaughter in the Second Degree violated his due process rights. (Pet. 5.) Second, he argues that he was denied effective assistance of counsel because his original appellate counsel "fail[ed] to raise two meritorious issues on direct appeal." (Id. at 6.) These issues were, respectively, that the trial court: (1) improperly dismissed a juror; and (2) improperly failed to hear Petitioner's concerns regarding a juror request during deliberations. (Id.) Petitioner did not elaborate on either of his two grounds for habeas relief in the instant action, and set forth no supporting facts. (See id.) Petitioner makes no claim of actual innocence. (See generally Pet.)
Respondent contends that Petitioner's first ground for relief is not cognizable in a habeas action, as there is no established due process right to the jury charge requested by petitioner. (See Resp. 1--2.) Regarding Petitioner's second ground for relief, Respondent argues that the New York courts reasonably applied the relevant constitutional standards concerning effective assistance of counsel. (See id. at 5--6.) Furthermore, with respect to the two issues Petitioner's original appellate counsel failed to raise on direct appeal, Respondent argues that: (1) the trial court's decision to replace a sick juror with an alternate was within its discretion and resulted in no prejudice to Petitioner (see id. at 6--7); and (2) Petitioner's claim that the trial court failed to provide him a fair opportunity to be heard on a jury request is belied by the record. (See id. at 10--11.)
"[A] federal court may not grant the habeas petition of a state prisoner 'unless it appears that the applicant has exhausted the remedies available in the courts of the State; or that there is either an absence of available State corrective process; or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.'" Aparicio v. Artuz, 269 F.3d 78, 89--90 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)). To satisfy this exhaustion requirement, a petitioner must have presented the same constitutional claims that serve as grounds for his § 2254 action "to the highest court in the pertinent state." Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990). "Even where the Respondent does not challenge Petitioner's claims on exhaustion grounds, the Court has an independent obligation to ensure that this requirement has been met, unless expressly waived by the State." Cordero v. Rivera, 677 F. Supp. 2d 684, 696 n.3 (S.D.N.Y. 2009) (citing 28 U.S.C. § 2254(b)(3)).
With respect to the merits of a petitioner's claims, under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which governs review of petitions filed after 1996, federal courts may grant ...