The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Earnest Hawkins, Jr. ("petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Supreme Court of Robbery in the First Degree (N.Y. Penal L. § 160.15(4)) and Grand Larceny in the Fourth Degree (§ 155.30(5)) rendered on April 6, 2004, following a non-jury trial before Justice Joseph D. Valentino. Petitioner was sentenced to a determinate sentence of ten years imprisonment on the robbery count, concurrent to an indeterminate sentence of two to four years on the grand larceny count.
II. Factual Background and Procedural History
On January 23, 2003, David Douglas ("Douglas") was leaving a store in the area of Clifton Street and Jefferson Avenue in the City of Rochester around 8:00p.m. when he was robbed at gunpoint of cash and identification cards by petitioner and another man. T. 33- 45, 58.*fn1 Douglas knew both men from around the neighborhood. Id. When confronted by the police with the allegations that he had robbed Douglas, petitioner stated that he had "beat his ass" but that no gun was involved. According to petitioner's statement, Douglas made up the robbery incident because petitioner had been involved in a sexual relationship with Douglas' sister. T. 134-37. At his trial, petitioner's girlfriend testified that she was scheduled to work until 9:00p.m. the night of the robbery, and that petitioner usually stayed home to watch their child while she was at work. T. 103-11.
The court found petitioner guilty of the crimes charged. T. 193-94. He was subsequently sentenced as a second felony offender to ten years determinate on the robbery count concurrent to two to four years on the grand larceny count. S. 18.
Through counsel, petitioner filed a brief in the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. Peoplev.Hawkins, 41 A.D.3d 1314 (4th Dept. 2007); lv. denied, 9 N.Y.3d 923 (2007). Petitioner also brought two pro se motions pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440.10/20 to vacate his conviction and sentence on the grounds of newly-discovered evidence, ineffective assistance of counsel, and because he was not provided with a copy of his pre-sentence investigation report. Resp't Appendix ("Appx.") G & J. Both motions were denied. Appx. I & L.*fn2
Petitioner then filed a timely petition for writ of habeas corpus with this Court, seeking relief on the following grounds:
(1) petitioner was denied his right to a jury trial; (2) the convictions were not supported by the weight of the evidence;
(3) the sentence is harsh and excessive; and (4) ineffective assistance of trial counsel. Petition ("Pet.") ¶ 12. (Dkt. #1). Shortly after paying the filing fee, petitioner filed a motion for leave to proceed in forma pauperis. (Dkt. #2).
For the reasons that follow, the Court finds that petitioner is not entitled to the writ, and the petition is dismissed. Petitioner's motion to proceed as a poor person is also denied as moot.
A. General Legal Principles
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 ...