The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner pro se Charles Simms ("Simms" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in state custody. Sims is incarcerated pursuant to a judgment of conviction entered against him following a jury trial of four counts of robbery in the second degree, which arose out of two separate incidents.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
II. Factual Background and Procedural History
What follows is a summary of the prosecution's proof at trial. Shortly before 3:00 a.m., Simms and a confederate entered an A-Plus Mini-Mart at 1140 Lyell Avenue in the City of Rochester. One employee, April Swaney, was working at the time. Simms asked Swaney what time the bus came and then immediately drew out a gun, which Swaney believed to be a real firearm, but which was actually a pellet gun. While brandishing the gun, Simms demanded that Swaney give them all the money in the till and threatened to kill her if she did not comply. Swaney turned over to Petitioner the contents of the cash register, along with several packs of Newport brand cigarettes. Simms and his cohort departed, but returned soon thereafter and demanded more money. When Swaney told him all the rest of the money was in a safe, he ran out of the store again.
Several hours later, Simms entered another A-Plus Mini-Mart located at 217 Scottsville Drive. The only store clerk working at the time was Corey Pratt. Simms asked him where the candy was. Petitioner picked out two 10-cent pieces of gum, paid for them, then turned to his associate and said, "[D]o it." Petitioner's co-defendant then pulled out the pellet gun, and demanded money. Pratt, who "thought [the pellet gun] was a pistol," pulled the cash drawer out of the register and put it on the counter. Simms and his cohort emptied the cash register of its contents and then fled.
After being apprehended by the police, Simms confessed to robbing both convenience stores. In addition, both robberies were captured on the stores' video-monitoring security system, and recordings of the two incidents robberies were played for the jury.
The jury convicted Simms of all four charges as set forth in the indictment.
B. Sentencing and the Direct Appeal
Upon the prosecutor's motion, and following a hearing, Simms was adjudicated a persistent felony offender under N.Y. Penal Law § 70.10. For the convictions resulting from the robberies committed on Lyell Avenue, Simms was sentenced to concurrent terms of 25 years to life. For the convictions stemming from the robberies committed on Scottsville Drive, Simms was sentenced to concurrent terms of 25 years to life. The two sets of sentences were set to run consecutively, for an aggregate sentence of 50 years to life.
On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed Petitioner's conviction. People v. Simms, 24 A.D.3d 1281 (App. Div. 4th Dept. 2005). Leave to appeal the to the New York Court of Appeals was denied. People v Simms, 6 N.Y.3d 838 (N.Y. 2006).
This timely habeas petition (Docket No. 1) followed in which Simms alleges the following grounds for relief: (1) ineffectiveness of trial counsel at a pre-trial suppression hearing;
(2) erroneous rulings of the trial court amounting to a deprivation of the constitutional right to due process; (3) erroneous denial of the motion to dismiss the indictment based on an alleged violation of the Interstate Agreement on Detainers ("IAD"); (4) unconstitutionality of New York's Persistent Felony Offender ("PFO") Statute; and (5) harshness and excessiveness of the consecutive sentences.
In his Answer and Opposition and Memorandum of Law (Docket No 5), Respondent has conceded that the first two claims are properly exhausted but asserts that they are without merit. Respondent asserts that Petitioner's other claims, regarding the trial court's denial of his motion for a dismissal of his indictment based on an alleged violation of the Interstate Agreement on Detainers, whether the New York State Persistent Felony Offender sentencing statute is constitutional, and whether the imposed sentence was harsh and excessive, are "otherwise without merit or unreviewable."
For the reasons that follow, the claims are denied and the Petition is dismissed.
III. Applicable Legal Principles
Federal habeas review is available for a State prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Errors of state law are not subject to federal habeas review. See, e.g., Estelle v McGuire, 502 U.S. 62, 67-68 (1991); Cupp v Naughten, 414 U.S. 141, 146 (1970).
Because Simms' petition, filed in 2007, postdates the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered titles of the U.S.C.), AEDPA's revisions of 28 U.S.C. § 2254 govern the proceeding. Lurie v. Wittner, 228 F.3d 113, 120-21 (2d Cir. 2000) (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1518, 146 L.Ed.2d 389 (2000); Lindh v. Murphy, 521 U.S. 320, 322-23, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997); Tankleff v. Senkowski, 135 F.3d 235, 242 (2d Cir.1998). The Second Circuit has summarized the requirements placed upon a habeas petitioner by the AEDPA standard as follows:
Under AEDPA, to prevail on a petition for a writ of habeas corpus, a petitioner confined pursuant to a state court judgment must show that the court's "adjudication of the claim ... 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). "[C]learly established Federal law" refers to holdings of the Supreme Court, as opposed to dicta, as of the time of relevant state court decisions. Carey v. Musladin, 549 U.S. 70, 74-75, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is "contrary to" 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, 529 U.S. at 413, 120 S.Ct. 1495. An "unreasonable application" occurs when a "state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the [petitioner's] case." Id. "Unreasonableness is determined by an 'objective' standard." Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir.2005) (quoting Williams, 529 U.S. at 409, 120 S.Ct. 1495)..
Friedman v. Rehal, 618 F.3d 142, 152-153 (2d Cir. 2010) (Korman, D.J., sitting by designation) The Supreme Court has stated that "unreasonableness" should not be conflated with "clear error" because "[t]he gloss of clear error fails to give proper deference to state courts." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). "[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. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001). However, "the 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).
"[A] 'state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment.' " Jimenez v. Walker, 458 F.3d 130, 142 (2d Cir.2006) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001) (quotation and alteration marks omitted)). Where a claim has been "adjudicated on the merits," 28 U.S.C. § 2254(d), "deference [is] mandated under AEDPA," Sellan, 261 F.3d at 310, in the federal habeas court's review of petitioner's claim. All of Simms' claims have been adjudicated on the merits by the state courts.
IV. Analysis of the Petition
A. Ground One: Ineffectiveness of Trial Counsel at the Suppression Hearing
Petitioner claims his Sixth Amendment right to counsel was violated at his suppression hearing when the trial court refused to appoint an attorney who was, according to Simms, "conflict-free", and by the trial court's ruling which allowed him (Simms) to act as co-counsel for the remainder of his suppression hearing.
1. Overview of the Law on Conflicts of Interest
To establish that trial counsel's performance was constitutionally deficient, a defendant must show that "the lawyer's performance 'fell below an objective standard of reasonableness' and that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.'" Bell v. Miller, 500 F.3d 149, 155 (2d Cir.2007) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); accord, e.g., Torres v. Berbary, 554 F.3d 322, 325 (2d Cir. 2009). "Strickland made clear that even if counsel's performance is found professionally unreasonable, 'any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.'" Torres, 554 F.3d at 325 (quoting Strickland, 466 U.S. at 692). The inquiry thus turns to "'whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'" Id. (quoting 466 U.S. at 695). When a criminal defendant claims that defense counsel was "burdened by an actual conflict of interest," a "limited presumption of prejudice" is warranted. Strickland, 466 U.S. at 692; accord, e.g., Torres, 554 F.3d at 325. However, "the presumption of prejudice attaches 'only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that "an actual conflict of interest adversely affected his lawyer's performance."'" Torres, 554 F.3d at 325 (quoting Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)).
2. Factual Background Pertinent to this Claim
Prior to the start of Petitioner's suppression hearing, the trial court granted his motion for new counsel, and James Hinman Esq.,was assigned to represent him. Shortly after Attorney Hinman was appointed, Petitioner began submitting pro se applications directly to the trial court in an attempt to bypass his newly assigned attorney. Petitioner made numerous interjections and outbursts throughout the suppression hearing, and had to be repeatedly admonished not to act in a "disruptive" manner. He also continued to submit pro se applications to the court, notwithstanding the fact that he was represented by counsel. See 9/30/94 Tr. at ...