The opinion of the court was delivered by: John Gleeson, United States District Judge
Elkyn Tabares petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his April 2006 convictions after a jury trial in New York State Supreme Court, Queens County, of criminal sale of a controlled substance in the third degree, reckless endangerment in the first degree, and endangering the welfare of a child. Appearing pro se, Tabares seeks habeas relief on the grounds that: (1) there was insufficient evidence on which to convict him of the reckless endangerment offense; (2) he was denied a fair trial as a result of the prosecutor's unfavorable characterization of him during summation; and (3) he received ineffective assistance of counsel due to his counsel's failure to make the sufficiency challenge and failure to object to the prosecutor's comments during summation. Oral argument, at which Tabares appeared by videoconference, was heard on December 1, 2010. For the reasons stated below, Tabares's petition is denied.
The government's evidence at trial established that on March 23, 2005 at approximately 6:00 PM, Detective Luis Arroyo, who was acting in an undercover role, was in the vicinity of 94th Street and 40th Drive in Queens. In a conversation with an unidentified male Arroyo referred to as "JD Flaco", Arroyo arranged to buy as much cocaine as $20 would purchase. JD Flaco made a telephone call, took $20 in prerecorded buy money from Arroyo, and approached the green Blazer that arrived in response to his call. JD Flaco handed the buy money to Tabares, who was driving the Blazer. Tabares handed the money to a woman beside him in the passenger seat. He then reached down within the vehicle and handed some white paper packets to JD Flaco, who in turn walked back to Arroyo and handed him one of the paper packets.
Arroyo, who was wearing a transmitter, told his colleagues to follow the Blazer as it left the scene, and Detective Michael Donovan did so. Donovan placed a bubble light on his dashboard in an attempt to get Tabares to pull over, but it had the opposite effect: Tabares sped up on the snow-covered streets and led Donovan on a mile-long chase. Tabares, who at one point increased the speed of the Blazer up to approximately 40 miles per hour, ran several stop signs and red lights, and his driving caused other cars to swerve out of his way on the narrow, two-way streets. Finally, after the Blazer "skidded out," Donovan was able to block it with his own vehicle.
The prerecorded buy money was recovered from Tabares's female passenger, Margie Perez. In the back seat there was a boy, Sebastian Munoz, who was about five to seven years old and was not wearing a seat belt.
Tabares was charged with criminal sale of a controlled substance in the third degree, reckless endangerment in the first degree, and endangering the welfare of a child. On April 24, 2006, a jury found him guilty of all counts. He was sentenced on May 18, 2006 as a second felony offender to concurrent terms of imprisonment of nine years on the drug count, three and one-half to seven years on the reckless endangerment count, and one year on the endangering count.
Lynn W.L. Fahey, Miller's appellate counsel, contended on appeal that:
(1) the evidence was insufficient to support the reckless endangerment
conviction, and in any event the conviction was against the weight of
(2) there was prosecutorial misconduct in summation,
which deprived Tabares of a fair trial, and trial counsel was
ineffective in failing to object to it; and
(3) the sentence was excessive.
On March 10, 2009, the Appellate Division, Second Department, affirmed the Supreme Court's judgment of conviction. People v. Taberas, 875 N.Y.S.2d 172 (2d Dep't 2009).*fn1 The court rejected the sufficiency claim as both unpreserved for appellate review and without merit, and further rejected the claim that the verdict was against the weight of the evidence. The prosecutorial misconduct claim was also rejected both on procedural grounds and on the merits, and the ineffective assistance and excessive sentence claims were rejected on the merits. Id. at 173. On April 30, 2009, a judge of the New York Court of Appeals denied Tabares's application for leave to appeal the Appellate Division's decision. People v. Taberas, 12 N.Y.3d 822 (2009) (Graffeo, J.).
Tabares's timely petition for habeas relief makes three claims. First, it challenges the sufficiency of the evidence supporting the reckless endangerment conviction. Second, it contends that prosecutorial misconduct in summation deprived Tabares of his due process right to a fair trial. Finally, the petition claims that Tabares received ineffective assistance of counsel in that trial ...