The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Petitioner is currently an inmate in the custody of the New York State Department of Correctional Services. Upon a state court jury conviction of three counts of assault, one count of criminal possession of a weapon, and two counts of intimidating a witness, petitioner was sentenced on December 19, 2001, to sixteen to eighteen years imprisonment.*fn1 The conviction and sentence were upheld on direct appeal, People v. Irwin,*fn2 774 N.Y.S.2d 237 (4th Dep't 2004), leave to appeal denied, 3 N.Y.3d 642 (2004); on a motion for a writ of error coram nobis, People v. Irwin, 845 N.Y.S.2d 211, 2007 WL 3332690 (4th Dep't 2007), leave to appeal denied, 10 N.Y.3d 766 (2008); and on a motion pursuant to N.Y.C.P.L. 440.10, People v. Irwin, (Jefferson Co. Ct. Jan. 20, 2009), leave to appeal denied (4th Dep't Sept. 22, 2009).
On August 16, 2004, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The amended petition (Dkt. No. 47) claims: (1) that the evidence at trial was insufficient to prove that the victim sustained a serious physical injury; (2) that petitioner was deprived of his right to be present at sidebar conferences; and (3) that defense counsel rendered ineffective assistance because (a) he failed to conduct an adequate investigation; (b) he failed to seek appropriate jury instructions; (c) he failed to object to the seating of a biased juror; (d) he failed to object to jury note-taking; (e) he did not understand the law and trial procedure; (f) he failed to advise petitioner concerning the benefits of a plea offer; (g) he failed to investigate facts that would have discredited a prosecution witness; (h) he failed to allow defendant to take the stand; (i) he failed to conduct testing on the weapon allegedly used in the assault; (j) he failed to object to materially incorrect facts at sentencing; and (k) the cumulative weight of the errors constituted ineffective assistance. Upon referral pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4, United States Magistrate Judge David R. Homer issued a Report and Recommendation (Dkt. No. 59) recommending that the amended petition be denied.
Petitioner filed an objection (Dkt. No. 60). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of the Report and Recommendation to which petitioner objects. As set forth below, the Court denies the amended petition.
The Court adopts Magistrate Judge Homer's thorough summary of the background of the case and the applicable law, and does not repeat it here.
Ground one of the amended petition claims that the evidence was insufficient to support a finding that the victim sustained a serious physical injury, an element of assault in the first degree under New York Penal Law § 120.10(1)-(3). Petitioner objects to Magistrate Judge Homer's recommendation that the amended petition be denied on this ground, and the Court reviews the issue de novo. On petitioner's direct appeal, the Fourth Department discussed and rejected the contention that the evidence was insufficient to establish the element of serious physical injury. See Irwin, 774 N.Y.S.2d at 237. Petitioner has not carried his burden of showing that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). The Court adopts Magistrate Judge Homer's discussion and recommendation on this issue.
Petitioner does not object to Magistrate Judge Homer's recommendation that the amended petition be denied insofar as it relies on the claim that he was wrongfully deprived of his right to be present at sidebar conferences. The amended petition is denied on this ground.
Petitioner also objects to Magistrate Judge Homer's recommendation to dismiss ground three of the amended petition. Although he found that some of the issues were unexhausted, Magistrate Judge Homer recommended that this Court exercise its authority to deny the amended petition "on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2); see Gandarilla v. Artuz, 322 F.3d 182, 186 (2d Cir. 2003); Manzullo v. People of New York, 2010 WL 1292302, *3 (E.D.N.Y. Mar. 29, 2010). In his declaration in support of the objection to the Report and Recommendation, petitioner's counsel argues that such claims should be deemed to be exhausted, but seeks to withdraw any unexhausted claims "in order to remove any possible impediment to this petition being granted[.]" It is not necessary for petitioner to withdraw any unexhausted claims; the Court exercises its authority under 28 U.S.C. § 2254(b)(2) to deny the amended petition on the merits, notwithstanding any failure to exhaust.
The federal standard for ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the petitioner must establish both that his attorney was ineffective and that the attorney's errors resulted in prejudice. Id. at 687. Under the Strickland standard:
Counsel is ineffective when her efforts fall below an objective standard of reasonableness. A defendant satisfies the prejudice prong by proving that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (citations and internal quotation marks omitted).
On a federal habeas challenge to a state court's determination that he was afforded effective assistance, a petitioner must establish that the state court's decision "was contrary to, or an unreasonable application of, Strickland." Id. at 123. There is no basis here to grant habeas relief under the "contrary to" clause, because there is no showing that the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or decided the case differently from the Supreme Court on a set of materially indistinguishable facts. See Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005). As for whether the state court "unreasonably applied" Strickland, the state court's decision is to be reviewed under "a more deferential standard than simply whether that decision was correct." Id. at 67. Rather, a federal court must find an "increment of incorrectness beyond error," although that "increment need not be great." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000).
On de novo review of the issue of ineffective assistance of counsel, the Court agrees with Magistrate Judge Homer's conclusion that in this case, the state court did not unreasonably apply Strickland. In particular, as to petitioner's claim that his counsel did not give him competent advice on whether to accept the plea offer or go to trial, the Court has reviewed the transcript of pretrial proceedings before Jefferson County Court Judge Kim Martusewicz on November 5, 2001, at which petitioner and his lawyer, Richard J. Graham, Esq., were present. Judge Martusewicz asked the Assistant District Attorney, Julie M. ...