The opinion of the court was delivered by: Dora L. Irizarry United States District Judge
DORA L. IRIZARRY, U.S. District Judge
Pro se*fn1 petitioner Bladimil Arroyo is currently serving a twenty-year-to-life prison sentence following his March 25, 2003 conviction in New York State Supreme Court, Kings County, for murder in the second degree ("murder"), New York Penal Law ("NYPL") § 125.25(3), two counts of attempted robbery in the first degree ("attempted robbery"), NYPL §§ 110.00/160.15(2), and one count of assault in the second degree ("assault"), NYPL § 120.05(6). In this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner claims that:
(1) he received ineffective assistance of counsel; (2) the lineups conducted by law enforcement were impermissibly suggestive; and (3) the trial court erred in basing his sentence on crimes of which the jury acquitted him. For the reasons set forth below, the petition is denied in its entirety.
After leaving a nightclub on September 16, 2001, Chris Greene and Gabor Muranyi were approached by petitioner and Edwin Lorenzo ("co-defendant"). (Trial Transcript ("Trial Tr.") 414:14-20, 422:6-16.) Petitioner and his co-defendant pointed guns at Greene and Muranyi and demanded their money and valuable possessions. (Trial Tr. 422-26.) Greene stabbed Lorenzo in defense, but Muranyi was fatally shot. (Trial Tr. 141:7-12, 432:4-10.) At the time of the shooting, N.Y.P.D. Officers Michael Monteverde and Paul Saez were standing at a nearby corner. Monteverde heard the gunshots and shortly thereafter observed co-defendant's fleeing car driving along 42nd street. The rear passenger side window was down, so Montverde saw petitioner as the car passed him. (Trial Tr. 66-68.) The officers hurried into Monteverde's personal car, followed Lorenzo's car for approximately one-half of a city block, and observed the assailants get out of the parked car and run into a brownstone. (Trial Tr. 72:19-25, 74:11-14, 75:22, 100:17-20.) As the officers were searching the brownstones for the assailants, Lorenzo, who was bleeding from his stab wound, left one of the brownstones, re-entered his car, and sped away. (Trial Tr. 76:16, 77:2-4.) The officers attempted to give chase, but lost sight of the car and returned to the area where Lorenzo had parked his car earlier. Upon arrival, the officers noticed a trail of blood leading from the curb (where Lorenzo's car had been parked) up to petitioner's apartment building at 455 42nd Street. (Trial Tr. 78:10-15.) Once backup arrived, officers followed the blood trail to petitioner's apartment, entered and arrested him. (Trial Tr. 81.)
At the police station, petitioner was given his Miranda warnings, and he subsequently signed a Miranda waiver form. (Trial Tr. 249:21-25.) Later that day, petitioner made three statements and participated in two lineups. (Trial Tr. 51, 91, 326, 363.) Petitioner's first statement, made at 7:00 a.m., put him at the scene of the crime, but did not inculpate him in the robbery or murder. (Trial Tr. 253, 255.) Between 8:00 a.m. and 12:00 p.m., the police were told that Muranyi had been shot and stabbed. (Trial Tr., 271:20-23, 377:16-22.) At approximately 12:45 p.m., the interviewing officer, Detective Keating, walked into petitioner's holding cell, told petitioner that he wanted to speak with him about inconsistencies in his story, and informed him that someone had been shot and stabbed. Petitioner then admitted to stabbing the murder victim but denied shooting him. (Huntley Hr'g Tr. 14:19-25, 30:9-20, 31:10-15; Trial Tr. 267-72, 275:13-14, 319.) Between 2:50 and 3:00 p.m., Officer Monteverde and Greene separately viewed the lineups. (Wade Hr'g Tr. 28-29.) Monteverde identified petitioner; Greene did not. (Wade Hr'g Tr. 28:23-24, 29:17.) At 3:17 p.m., petitioner made his videotaped third statement, which is consistent with his second statement and shows petitioner acknowledging and waiving his Miranda rights. (Trial Tr. 515:1-6, 540:10-11.) An autopsy later revealed that the murder victim had suffered a gunshot wound and not a stab wound. (Trial Tr. 391:9-10.)
A Wade*fn2 hearing to assess the suggestiveness of the lineups was held on March 22, 2002. After hearing testimony regarding the manner in which the lineups were conducted, the trial court denied petitioner's request to have the lineup identification suppressed as suggestive. (Wade Hr'g Tr. 51:16-21.) The trial court also held a Huntley*fn3 hearing to assess the voluntariness of petitioner's statements on April 18, 2002. At the Huntley hearing, defense counsel elicited testimony from the interviewing detective regarding the voluntariness of petitioner's statements, including any substantive conversations the detective had with petitioner and petitioner's treatment while being held. (Huntley Hr'g Tr. 18-35.) In addition, counsel also called petitioner's mother to testify as to the circumstances of petitioner's arrest at his home. (Huntley Hr'g Tr. 46-52, 65-67 72:9-11.) At the conclusion of the hearing, counsel only moved to suppress petitioner's statements based on an alleged Payton*fn4 violation, i.e., the legality of petitioner's arrest, and decided to forego the Huntley challenge. (Huntley Hr'g Tr. 72:19-24.) Although the court noted that the Payton issue should have been raised before the start of the Huntley hearing, the court nevertheless addressed the merits of the alleged Payton violation, finding the mother's testimony incredible and denying the motion to suppress the statements on that basis. (Huntley Hr'g Tr. 71:1-17; 77-78.)
The trial against petitioner commenced on November 13, 2002. On November 25, 2002, the jury convicted petitioner of murder, two counts of attempted robbery, and assault. (Trial Tr. at 754: 16-25.) On March 25, 2003, the trial court sentenced petitioner to twenty-years-to-life in prison. (Sentencing Hr'g Tr. 7:9-10.) Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division"), arguing that: (1) he was denied effective assistance of counsel because his attorney failed to move for the suppression of his statements on Huntley grounds; (2) the lineups conducted by law enforcement were impermissibly suggestive because his clothing, skin tone, hairline and facial hair made him stand out; and (3) the court improperly sentenced petitioner based on crimes of which the jury acquitted him.
The Appellate Division affirmed the conviction. People v. Arroyo, 38 A.D.3d 792 (2d Dep't 2007). The court held that defense counsel's failure to challenge the voluntariness of petitioner's statements to the police did not constitute ineffective assistance of counsel, and that any error was not prejudicial due to the "overwhelming evidence" of petitioner's guilt. Id. at 792-793. The court further held that the trial court properly declined to suppress the lineup identification evidence because any minor differences in clothing and skin tone were "insufficient to render the lineup unduly suggestive." Id. at 793. Lastly, the court held that petitioner's claim that the sentencing court "improperly imposed a sentence based on crimes of which he was acquitted [was] unpreserved for appellate review . . . [and in] any event, this contention [was] without merit." Id. (internal citations omitted).
On June 6, 2007, the New York State Court of Appeals denied petitioner's application for leave to appeal. People v. Arroyo, 9 N.Y.3d 839 (2007). Petitioner did not request a writ of certiorari from the United States Supreme Court, and his conviction became final at the expiration of the 90-day period for seeking certiorari. See 28 U.S.C. § 2244(d)(1)(A) (2010); see also Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). He timely filed this petition for a writ of habeas corpus on September 15, 2008.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal courts may grant habeas relief only if the state ...