The opinion of the court was delivered by: Sand, J.
Petitioner Jaysen Ventura, appearing pro se, filed the instant petition pursuant to 28 U.S.C. § 2254, in which he alleges that he is being held in state custody in violation of his federal constitutional rights. Petitioner's first trial in the Supreme Court of the State of New York, Bronx County ended in a mistrial. Upon retrial, Petitioner was convicted of one count of manslaughter in the first degree and one count of assault in the first degree, and was sentenced to thirty years imprisonment. Petitioner now raises four grounds for relief. First, he alleges that his retrial violated the constitutional prohibition of double jeopardy. Second, he claims that the verdict was against the weight of the evidence. Third, he alleges ineffective assistance of trial counsel. Fourth, he alleges ineffective assistance of appellate counsel.
For the reasons set forth below, the petition is denied in its entirety.
The evidence at Petitioner's second trial showed that on January 18, 2000, around 9:45 p.m., Petitioner was smoking marijuana with Derrick Brooks, Ivan Torres, and others in the lobby of a building in the Bronx, New York housing project where Petitioner and Brooks lived. Petitioner and Brooks had a brief altercation resulting in a "play fight," after which Petitioner left. Tr. Oct. 2002 at 47:22--50:1, 571:25--574:2.*fn1
Shortly thereafter, a man entered, pulled out a black 0.9 millimeter semi-automatic gun, and began firing, killing Torres and seriously wounding Brooks. Id. at 50--52. After being taken to the hospital, Brooks told police that he had been shot by two masked men. According to Brooks' testimony at trial, he did not identify Petitioner because he intended to seek revenge himself and did not want to cooperate with the police. Id. at 80:7--25. Brooks changed his story after learning that his mother had spoken with detectives and identified Petitioner as the assailant. Id. at 82:9--17. After this conversation, John Wynne, then a detective with the New York City Police Department, began looking for Petitioner. Id. at 149:1--20. Wynne was assisting Detective Jeffrey Kaplowitz, who was assigned to the case. Id. at 147:17--19.
Petitioner was arrested on January 29, 2000, and brought to the 42nd Precinct. Id. at 513:20--514:5. Detectives Kaplowitz and Wynne arrived at the 42nd Precinct between noon and 1:00 p.m., and subsequently transferred Petitioner to the 48th Precinct. Id. at 513:20--22, 515:20--23. Detective Wynne read the Miranda warnings to Petitioner from a card which Petitioner signed and Detective Wynne initialed at 2:00 p.m. Id. at 155:1--6; 159:6--160:1. Detective Wynne then transcribed a statement from Petitioner, stating that Brooks attempted to slash Petitioner with a razor; Petitioner left to retrieve his gun, after Brooks taunted him to do so; and when Petitioner returned, he fired only after Brooks drew his razor again. Id. at 166:6--167:4. At 6:46 p.m., Petitioner made a videotaped statement to an assistant district attorney at the Bronx Homicide Task Force where he repeated these allegations. Moore Decl. Ex. 21. The weapon used to kill Torres and wound Brooks was recovered on April 3, 2000, by Detective Robert Rodriguez of the Bronx Warrants Squad of the New York City Police Department. Tr. Oct. 2002 at 437:1-- 438:15. Detective Rodriguez was executing an arrest warrant for one Patricia McFadden, and recovered the weapon from the room of one Clyde Darrisaw, who was arrested that day. Id. at 457:17--19, 458:13--22.
Petitioner was indicted on February 22, 2000, Indictment Number 789/00, and charged with two counts of murder in the second degree, one count each of manslaughter in the first degree and attempted murder in the second degree, two counts of assault in the second degree, two counts of criminal use of a firearm in the first degree, and one count of criminal possession of a weapon in the second degree. Petitioner moved to suppress the statements he made to the police; on October 29, 2001, a hearing was held in the Supreme Court of the State of New York, Bronx County. Petitioner's motion was denied in its entirety on November 16, 2001.
Petitioner's first trial commenced on January 2, 2002. Deliberations began on January 18, 2002. On January 22, the second day of deliberations, the jury sent a note stating that it could not reach a verdict; the jury resumed deliberations after the trial court delivered an instruction following Allen v. United States, 164 U.S. 492 (1896). Tr. Oct. 2002 at 706:23--710:11. Later that day the jury requested an instruction on reasonable doubt. Id. at 713:1--7. On January 23, the jury sent another note stating that it could not reach a verdict. Id. at 723:3--5. On January 25, the fourth day of deliberations, the prosecutor stated to the trial court that he had received intelligence that Petitioner, while being transported back to Rikers Island, told another inmate that "he felt good" about the case because there were two members of the Bloods gang on the jury. Id. at 766:25-- 767:3. Based on this information, the prosecution ran the names of various jurors through the "Bronx DA system," a public record, and found four jurors who had lied with respect to being defendants in criminal proceedings. Id. at 753:20--21. Juror No. 2, Richard Carney, had been issued a desk appearance ticket in 1995 for possession of heroin; the case remained unresolved. Id. at 754:16--19. Juror No. 3, Gaylord Brown, had been arrested for felony assault in 1996 and pleaded guilty to harassment. Id. at 756:4--10. Juror No. 4, Diane Alexander, was convicted of petit larceny on November 21, 1984. Id. at 757:11--18. Juror No. 9, Sherene Graham, had divulged one previous felony conviction, but failed to disclose seven other convictions. Id. at 758:23--25. The prosecutor asserted that Bloods members in the audience made hand signals to defendant during the trial, that Graham was a member of the Bloods, and that she made a thumbs-up sign to someone in the audience. Id. at 763:25--764:7; 765:1--24. The prosecutor later clarified that the intelligence identifying Graham as a member of the Bloods was incorrect. Id. at 785:18--25.
The prosecutor moved to disqualify the four jurors, and in the alternative for a mistrial. Id. at 768:10--15. The trial court inquired of the four jurors in question, all of whom admitted to their prior convictions and claimed that they could and would be impartial in their deliberations. Id. at 793--807. The court then denied the prosecutor's request to discharge the four jurors, and deliberations resumed. Id. at 820:20--24. On Monday, January 28, 2002, the jurors sent a note stating that they could not reach a decision. Id. at 826:4--7. The court declared a mistrial on agreement of both parties. Id. at 827:11--24, 829:4--16. On February 1, 2002, Petitioner moved for an order granting dismissal of the indictment on the ground that the prosecutor had tampered with a deliberating jury. On March 8, 2002, the court denied the motion. Moore Decl. Ex. 4. On August 22, 2002, Petitioner moved for an order vacating the court's November 16, 2001 order denying his earlier motion to suppress his pretrial statements; the court denied the new motion on October 3, 2002. Petitioner was retried, and on November 14, 2002, he was convicted of Manslaughter in the First Degree, New York Penal Law § 125.20, and Assault in the First Degree, New York Penal Law § 120.10, and sentenced to consecutive terms of imprisonment of twenty-two and eight years respectively.
Petitioner appealed his conviction to the Supreme Court of New York, Appellate Division, First Department. On appeal, Petitioner raised two claims. First, Petitioner alleged that his first mistrial was intentionally provoked by the Assistant District Attorney, violating his rights of due process and against double jeopardy. Second, Petitioner alleged that the jury's verdict of guilty was against the weight of the evidence, because that evidence clearly indicated that his confessions were involuntary and false. The Appellate Division unanimously affirmed Petitioner's judgment of conviction on December 14, 2004. See People v. Ventura, 786 N.Y.S.2d 469 (N.Y. App. Div. 2004). Petitioner applied for leave to appeal that decision to the New York Court of Appeals, which denied his application on March 31, 2005. See People v. Ventura, 4 N.Y.3d 836 (N.Y. 2005) (unpublished table decision).
On March 28, 2006, Petitioner filed a petition for a writ of habeas corpus to this Court under 28 U.S.C. § 2254. Petitioner moved this Court to stay this petition on June 21, 2006, so that he could exhaust his claims of ineffective assistance of trial and appellate counsel in state court; this motion was granted on June 27, 2006. Moore Decl. Exs. 11, 14. Petitioner filed a petition for a writ of error coram nobis in the Appellate Division, First Department on March 21, 2007. Moore Decl. Ex. 15. This petition was denied on June 3, 2008. Moore Decl. Ex. 18. The New York Court of Appeals denied Petitioner leave to appeal the Appellate Division's decision on December 16, 2008. Moore Decl. Ex. 19. In January 2009, Petitioner filed in this Court a second memorandum in support of his petition for a writ of habeas corpus.