The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner George Johnson ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Genesee County Court of Assault in the First Degree (former N.Y. Penal L. § 120.10(1)); Attempted Assault in the First Degree (N.Y. Penal L. §§ 110.00/120.10(1)); and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal L. § 265.02(3)) following a jury trial before Judge Robert C. Noonan. Petitioner was sentenced to aggregate terms of imprisonment totaling 20 years.
II. Factual Background and Procedural History
Petitioner's conviction stems from an incident wherein he confronted two individuals while armed with a metal pipe, swinging at one and striking the other in the face, causing multiple fractures to the victim's jaw. Petitioner was charged in Genesee county with one count each of first-degree assault, attempted first-degree assault, and third-degree weapon possession. The matter was tried over four days in Genesee County Court. On July 20, 2006, the jury found petitioner guilty of all three counts of the indictment. T. 664.*fn1 Petitioner was subsequently sentenced as a second violent felony offender to determinate terms of imprisonment of twenty years for the assault count and ten years for the attempted assault, and an indeterminate term of three and one-half to seven years for the weapon possession. All sentences were ordered to run concurrently. S. 18-19. In connection with the sentence, the Court issued orders of protection for the benefit of the victims with an expiration date of January 7, 2034, or 8 years beyond the maximum period of incarceration.
Petitioner appealed the judgment of conviction to the Appellate Division, Fourth Department, raising the following points for review: (1) legally insufficient evidence to support the conviction for assault and attempted assault; (2) the verdict was against the weight of the evidence; (3) the prosecutor's summation was improper; (4) the duration of the orders of protection was excessive; (5) ineffective assistance of trial counsel; and (6) the sentence was harsh and excessive. See Resp't Exhibits ("Ex.") A. The judgment of conviction was unanimously affirmed by the state appellate court. People v. Johnson, 50 A.D.3d 1537 (4th Dept. 2008), lv. denied, 10 N.Y.3d 935 (2008).
In his pro se petition for writ of habeas corpus (Dkt. #1), petitioner contends that (1) the evidence was legally insufficient to sustain the conviction; (2) the verdict was against the weight of the evidence; (3) the prosecutor made improper remarks on summation; and (5) ineffective assistance of trial counsel. See Petition ("Pet."), Attach. 7(a) et seq.
Petitioner subsequently made a motion with this Court to hold the case in abeyance and amend his petition to include additional, unexhausted claims of ineffective assistance of counsel (Dkt. ## 26, 27). The Court granted petitioner's request on June 11, 2010 (Dkt. # 32). He did not, however, return to state court to exhaust those claims, nor did he file an amended petition. Accordingly, the Court will vacate the stay entered on June 11, 2010, and proceed to evaluate all of the claims raised in his original petition.
For the reasons that follow, the petitioner is not entitled to the writ, 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 ...