The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Cornelius Redden ("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 two counts of Criminal Possession of a Weapon in the Third Degree (former N.Y. Penal L. § 265.02(4) & (5)(ii)), Unlawful Possession of Marijuana (N.Y. Penal L. § 221.05), and two violations of the New York Vehicle and Traffic Law. The judgment of conviction, entered November 29, 2001, followed a jury trial before Judge Timothy Drury. Petitioner was sentenced as a persistent felony offender to concurrent, indeterminate terms of nineteen years to life for the weapons counts and an unconditional discharge for each of the remaining counts.
II. Factual Background and Procedural History
On May 18, 2000, at approximately 12:30p.m., petitioner was observed driving a damaged car backwards down Kosciuszko Street in the City of Buffalo by two uniformed police officers traveling in a marked patrol vehicle. T. 20-21.*fn1 The officers approached the vehicle, which at that point had stopped, and ascertained that the driver and sole occupant, petitioner, did not possess a driver's license. T. 24. He was asked to exit the car and used the passenger side door to do so; the driver's side was damaged. T. 73. Petitioner was then arrested for driving without a license and was told by officers to put his hands on the hood of the vehicle for a pat-down. T. 27. As petitioner placed his hands on the car, he abruptly started to run. Both officers chased petitioner, who was found several minutes later hiding in the attic area of a house at 117 Kosciuszko. Officers found $2,000 in cash and a plastic bag of marijuana in the pockets of petitioner's jacket, in addition to the keys to the damaged car petitioner had been driving. While petitioner was secured in a patrol car, Officer Julie Ledwin used the keys to enter the vehicle. Inside, she found a loaded pistol.
T. T. 30, 32, 34-35, 36-38, 79-80, 107-08.
Following the jury's guilty verdict, petitioner was adjudicated a persistent felony offender by the trial court. The county court also denied motions to set aside the verdict pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 330.30. Petitioner was subsequently sentenced to concurrent terms of imprisonment totaling 19 years to life, which he is presently serving.
Petitioner's conviction was unanimously affirmed by the Appellate Division, Fourth Department, on March 17, 2006. People v. Redden, 27 A.D.3d 1173 (4th Dept. 2006). Permission to appeal to the New York Court of Appeals was denied on July 6, 2006, see Redden, 7 N.Y.3d 793, and reconsideration of the application was denied on October 31, 2006. Redden, 7 N.Y.3d 869.
Petitioner then filed a motion to set aside his sentence pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440.20(1). See Resp't Exhibits ("Ex.") D. That motion was denied by the county court on June 15, 2005. See Mem. & Order, Ind. No. 00-1050-001, Erie County Court (Drury, J.) dated 6/15/2005 (Ex. D). Leave to appeal that decision was denied on May 9, 2006. See Order, KA-05-01881, App. Div. (Pine, A.J.) dated 5/9/2006 (Ex. D).
This habeas petition followed, in which petitioner alleges the following grounds for relief: (1) the physical evidence seized from petitioner's vehicle was the result of an illegal search and should have been suppressed at trial; (2) the evidence of weapon possession was legally insufficient; (3) the county court erred in denying petitioner's motion to set aside the verdict pursuant to C.P.L. § 330.30 on the basis of newly-discovered evidence; (4) the trial court abused its discretion in adjudicating petitioner a persistent felony offender; and (5) petitioner was denied the effective assistance of counsel at sentencing. Petition ("Pet.")
¶ 12(a)-(e); Pet'r Mem. Points I-V. For the reasons that follow, the Court finds that petitioner is not entitled to the writ, and the petition is dismissed.
A. General Principles Applicable to Federal Habeas Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "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), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established 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 v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[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." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This 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).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091(2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
2. Exhaustion Requirement
A federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state courts, thereby affording those courts the "opportunity to pass upon ...