The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Luis Gerena ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court of Robbery in the First Degree, Robbery in the Second Degree, and Burglary in the First Degree, following a jury trial before Judge Shirley Troutman. Petitioner was sentenced as a second felony offender to fifteen years imprisonment with five years of post-release supervision.
II. Factual Background and Procedural History
Petitioner's conviction arises out of an incident on January 23, 2004, wherein petitioner and two other men broke into a house on Buffalo's west side and robbed the occupants at gunpoint, seeking money and drugs. While petitioner's co-defendants ransacked the house, petitioner held down one of the occupants, Angel Gonzalez ("Gonzalez"), pointing a gun at his head. Gonzalez, a convicted drug dealer, knew all three men, including petitioner. The other occupant, Hector Leon-Figueroa ("Figueroa"), had managed to escape the house through the bathroom window and call the police. The three intruders left the house with clothing, boots, and a DVD player that were placed inside of a suitcase. About thirty to forty-five minutes later, Gonzalez saw petitioner standing outside of the supermarket located across the street from his house. He told Figueroa, who again called the police. Trial Tr. (II) at 320-29, 331-43, 350-51, 357-58, 403, 430, 436-37, 465.*fn1 Buffalo Police Officer William Rieman encountered petitioner standing in the lobby of the Tops Supermarket on Niagara Street, one block from the location of the robbery. Petitioner was advised of his Miranda warnings, and shortly thereafter, asked Officer Rieman, "If I tell you where we put the clothes and the backpack, do you think that they will drop the charges?" Rieman asked petitioner where the items were, and petitioner replied that they were in a gray Honda parked down the street. A search of the Honda, located about ten houses north of Gonzalez's apartment, revealed none of the stolen property. Neither the property nor a gun was ever recovered. Trial Tr. (II) at 570-75, 586-88, 592.
Petitioner was charged with Robbery in the First Degree (N.Y. Penal L. § 160.15(4)), Robbery in the Second Degree (N.Y. Penal L. § 160.10(1)), and Burglary in the First Degree (N.Y. Penal L. § 140.30(4)) under Erie County Indictment No. 196-2004. On December 16, 2004, petitioner's first trial ended in a mistrial when it was determined that his attorney, John Jordan, Esq. ("Jordan"), could be called as a witness. Petitioner was assigned new counsel, Thomas Farley, Esq. ("Farley") and a second trial was held over four days in May, 2005. The jury found petitioner guilty of all three counts in the indictment. Trial Tr. (II) 719-20. Following the verdict, petitioner submitted a letter to the county court alleging that Farley, his counsel at trial, was ineffective for failing to call a specific witness (Jordan) for the defense. The court relieved Farley from representing petitioner and assigned Terry Brennan, Esq. for the balance of the proceedings. See Hr'g Mins. dated 8/10/2005 at 4-6. Petitioner was subsequently sentenced as a second felony offender to fifteen years for each charge, to be served concurrently, along with five years of post-release supervision. Sentencing Tr. 9-10.
Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the following grounds: (1) ineffective assistance of trial counsel; (2) legally insufficient evidence to support the conviction; (3) the verdict was against the weight of the evidence; (4) the prosecutor's summation deprived petitioner of a fair trial; (5) the jury instructions were prejudicial; (6) petitioner's Miranda waiver was invalid; (7) the trial court erred in refusing to grant petitioner's motion to set aside the verdict; (8) there was no legal basis for sentencing petitioner as a second felony offender; and (9) the sentence was harsh and excessive. Resp't Exhibits ("Ex.") B. The Fourth Department unanimously affirmed the judgment of conviction. People v. Gerena, 49 A.D.3d 1204 (4th Dept.), lv. denied, 10 N.Y.3d 958 (2008).
Petitioner now seeks a writ of habeas corpus under 28 U.S.C. § 2254 on the same grounds enumerated in his appellate brief. See Amended Petition ("Pet."), Attach. at 1-11. For the reasons that follow, I find that petitioner is not entitled to habeas relief, and the petition is dismissed.
A. General Principles Applicable to Federal Habeas Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
2. Exhaustion Requirement and Procedural Default
"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 exhaustion requirement is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial ...