The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Melvin Moore ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered April 25, 2003, in New York State, County Court, Monroe County, convicting him, after a jury trial, of Rape in the First Degree (N.Y. Penal Law ("Penal Law") § 130.35), Sodomy in the First Degree (Penal Law § 130.50), Assault in the Second Degree (Penal Law § 120.05), Menacing in the Second Degree (Penal Law § 120.14), and Unlawful Imprisonment in the Second Degree (Penal Law § 135.05).
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
Petitioner was indicted by a Monroe County Grand Jury by Indictment No. 0814/2001 and charged with Rape in the First Degree, Sodomy in the First Degree, Assault in the Second Degree, Menacing in the Second Degree, Sexual Abuse in the First Degree, Sexual Abuse in the Second Degree, and Unlawful Imprisonment in the Second Degree. See Ind. No. 00811, dated 11/30/10 (Resp't App. B at 5-10). The charges arose from three separate incidents involving three separate female victims. In all three incidents, Petitioner attacked women who were walking down streets in the City of Rochester in the morning hours. The three incidents were tried together before the same jury, despite Petitioner's pre-trial request for severance. See Letter from Louis P. Pilato, Esq. to Hon. David Egan, dated 08/29/02 (Resp't App. B at 90); Decision of Supreme Court, Monroe County (Hon. David D. Egan), dated 09/26/02 (Resp't App. B at 102).
The Jennifer Antonetti Incident (Victim #1)
On the morning of December 25, 1999, 17-year-old Jennifer Antonetti ("Antonetti" or "Victim #1") left her home on Edison Street in the City of Rochester at approximately 9:30 a.m. to walk to her job at a local Wilson Farms store. As she walked toward the store, a car pulled up alongside her and the driver waived at her. Antonetti recognized the driver as Petitioner, who was a regular customer at the Wilson Farms store. Petitioner asked Antonetti if she wanted a ride to work, and Antonetti accepted. Trial Trans. [T.T.] 37-39.
Instead of driving Antonetti to work, Petitioner drove her to a house on the corner of Dorset and Bay Streets and parked in a garage. After parking the car, Petitioner exited the car and came to the passenger side where Antonetti was sitting. Petitioner grabbed Antonetti's arm and took her inside his home located at 854 Bay Street. Once inside, Petitioner told Antonetti to take her shoes off, which she did. Petitioner then directed Antonetti to the living room, where she sat on the couch. Petitioner found some glass cleaner and cleaned a table in the living room, and then told Antonetti to take off her coat. Antonetti refused, and Petitioner unzipped her coat and began kissing her neck. T.T. 40-45.
As Petitioner stood over Antonetti kissing her neck, she pushed him away with both of her hands. Petitioner held Antonetti down with his hands on her shoulders. Petitioner then pushed Antonetti onto another sofa in the living room, and got on top of her, trying to untuck her shirt. Antonetti protested and told Petitioner to stop. Petitioner stood up, put Antonetti in a bear hug, and carried her into his bedroom. Antonetti continued to plead with Petitioner to stop. T.T. 45-46.
Once in the bedroom, Petitioner put Antonetti down on the bed and began taking off her clothes. Petitioner partially took off Antonetti's pants and panties. Antonetti continued to protest. Petitioner held down Antonetti's legs and began licking her vaginal area. Antonetti begged Petitioner to stop. Petitioner then unzipped his pants and positioned himself on top of Antonetti, trying four or five times to insert his penis into her vagina. Petitioner eventually penetrated Antonetti, but she immediately pushed Petitioner off of her. Petitioner let go of her and she grabbed her things and started to leave. Petitioner asked Antonetti to wait until he deactivated an alarm, which she agreed to do, and then left the house. T.T. 45-50.
After leaving Petitioner's house, Antonetti proceeded directly to the Wilson Farms store where she worked. She arrived approximately five to ten minutes after escaping Petitioner. Once there, she told her ex-boyfriend, Ferron Scott ("Scott"), who also worked at the store, what had happened. T.T. 51-52, 91-93, 156-157.
The Tieshekia Frieson Incident (Victim #2)
On the morning of December 14, 1999, 18-year-old Tieshekia Frieson ("Frieson" or "Victim #2") was walking from her house to a bus stop at the corner of Garson Avenue and Webster Road when she encountered Petitioner. Frieson recognized Petitioner as the person who had previously approached her at the same bus stop and asked for her phone number. Frieson continued to walk toward the bus stop and Petitioner followed. Petitioner then indicated to Frieson that he had forgotten something, and asked Frieson to hold the bus for him. As Frieson went to walk away, Petitioner grabbed her from the left side. In his hand, Petitioner had a knife, which he placed on Frieson's throat. Frieson placed her hand between the knife and her throat to prevent the knife from cutting her. In doing so, the knife cut her hand in the middle of her thumb and index finger. Petitioner then tried to pull Frieson toward an abandoned house. Frieson screamed and fought with Petitioner, and, after several minutes, Petitioner let her go. Petitioner then ran around the abandoned house and through a nearby field. Frieson boarded the bus and went to work. Frieson's thumb and index finder were injured from where Petitioner held the knife up to her throat. The injury caused her physical pain and limited her ability to write and lift. T.T. 112-121.
The E'von O'Neill Incident (Victim #3)
On the morning of November 4, 1999, 12-year-old E'von O'Neill ("O'Neill" or "Victim #3") was walking to school when Petitioner approached her and asked her where the library was located. O'Neill told him she did not know, and Petitioner asked again. O'Neill continued walking and Petitioner came up behind her with a knife and told her to get into his car. O'Neill complied and Petitioner drove off. T.T. 172-175.
Petitioner drove to a house close to O'Neill's school, and Petitioner took O'Neill inside. Once inside, Petitioner eventually led her to the basement, in which there were various pieces of furniture. Petitioner told O'Neill to lie down on a couch, and O'Neill refused. Petitioner proceeded to get on top of O'Neill and put his hand on her vagina. O'Neill protested. Petitioner told O'Neill to take her pants off, which she refused to do. Petitioner took O'Neill's pants off and put his hand on her vagina again. O'Neill eventually broke free of Petitioner and ran out of the house and to her school. T.T. 175-178.
On January 28, 2004, a trial was held before the Hon. John J. Connell. Petitioner established that there was no scientific evidence, DNA or otherwise, tying him to any of the crimes. Petitioner testified in his own defense and also attempted to establish an alibi for each incident. The prosecution called various witnesses, including each of the victims. The prosecution also called Scott, who testified as to the statements made to him by Antonetti after the incident, and Investigator Albert Iacutone of the Rochester Police Department ("Investigator Iacutone"), who testified as to the line-up procedure he conducted for each of the three victims.
The jury found Petitioner guilty of five counts of the indictment, acquitting him of the two sexual abuse charges related to O'Neill (Victim #3). Petitioner was sentenced as a second violent felony offender to twenty-seven years in prison with five years post-release supervision. Sentencing Mins. [S.M.] 12-13.
Petitioner appealed his judgment of conviction, which was affirmed by the Appellate Division, Fourth Department on September 29, 2006. People v. Moore, 32 A.D.3d 1354 (4th Dep't. 2006); lv. denied, 8 N.Y.3d 847 (2007).*fn1
On or about March 26, 2004, while his appeal was pending, Petitioner filed a motion, pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440, to vacate his judgment of conviction. See Pet'r Motion to Vacate Judgment of Conviction, dated 05/26/04 (Resp't App. Q). That motion was denied on June 30, 2004 by the Monroe County Court, pursuant to C.P.L. § 440.10(2)(b), because the issues raised in Petitioner's motion were pending on appeal. See Decision & Order of the Monroe County Court (Hon. John J. Connell), dated 06/30/04 (Resp't App. T). Leave to appeal was denied on August 25, 2004. See Decision of the Appellate Division, Fourth Department (Hon. Robert G. Hurlbutt), dated 08/25/04 (Resp't App. W).
On or about March 21, 2007, Petitioner filed a second C.P.L. § 440 motion on the grounds that he received ineffective assistance of trial counsel. See Pet'r Motion to Vacate Judgment of Conviction, dated 03/21/07 (Resp't App. J). That motion was denied on May 9, 2007 by the Monroe County Court, pursuant to C.P.L. §440.10(2)(c), because the claim was a matter of record that could have been raised on direct appeal, but unjustifiably was not. See Decision & Order of the Monroe County Court, dated 05/09/07 (Resp't App. M). Leave to appeal was denied on August 17, 2007. See Decision of the Appellate Division, Fourth Department (Hon. Elizabeth W. Pine), dated 08/17/07 (Resp't App. P).
The instant habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds:*fn2 (1) the trial court erroneously denied his motion for a mistrial based on prosecutorial misconduct; (2) the trial court erroneously denied his motion for a mistrial based on an impartial jury; (2) the trial court erred in denying his motion to dismiss the indictment pursuant to C.P.L. § 30.30; (3) the trial court erred in allowing the testimony of Scott and Investigator Iacutone; (4) the trial court erred in failing to grant Petitioner's severance motion; (6) his sentence was harsh and excessive; (7) ineffective assistance of trial counsel; and (8) ineffective assistance of appellate counsel.*fn3
III. General Principles Applicable to Habeas Review
A. The AEDPA Standard of 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 unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. Exhaustion Requirement
"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 ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, ...