The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Proceeding pro se, Angel Seda ("Seda" or "Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state custody pursuant to a judgment of conviction following a jury trial on charges of burglary in the second degree (N.Y. Penal Law § 140.25) (one count) and attempted burglary in the second degree (N.Y. Penal Law §§ 110.00, 140.25) (one count). Following a hearing, Seda was sentenced on December 17, 2004, as a persistent felony offender to two consecutive indeterminate terms of imprisonment of 22 years to life.
Petitioner's conviction was unanimously modified on direct appeal December 22, 2006, so that Petitioner's sentences would run concurrently with each other. The conviction was otherwise affirmed. People v. Seda, 35 A.D.3d 1162 (App. Div. 4th Dept. 2006). Permission to appeal to the state's highest court was denied on March 5, 2007. People v. Seda, 8 N.Y.3d 927 (N.Y. 2007). Petitioner's application for reconsideration was denied on May 25, 2007.
In his Petition for a Writ of Habeas Corpus, Seda challenges the effectiveness of his trial attorney and his sentencing under New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10.
During the pendency of the petition, Seda retained counsel, Norman Effman, Esq. Attorney Effman filed a Reply Memorandum of Law (Docket No. 16) in response to Respondent's Answer and Memorandum of Law in Opposition to the Petition (Docket Nos. 6 & 7). The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).(Docket No. 9).
II. Standard of Review under 28 U.S.C. § 2254(d)
When a petitioner "in custody pursuant to the judgment of a State court" seeks habeas review of "any claim that was adjudicated on the merits in State court," a habeas writ may issue only if the state court adjudication:
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1), (2). A state court decision is "contrary to" federal law as determined by the Supreme Court if either (a) "the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law," or (b) "the state court considers facts that are materially indistinguishable from a relevant Supreme Court case and arrives at an opposite result." Williams v. Taylor, 529 U.S. 362, 405 (2000)). An "unreasonable application" of clearly established federal law occurs if (a) " 'the state court identifies the correct governing legal rules from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case,' " or (b) the "state court invokes a Supreme Court case and unreasonably extends its legal principle to a new context where it should not apply, or fails to extend it where it should apply." Williams, 529 U.S. at 407.
III. Analysis of Petitioner's Habeas Claims
A. Ground One: "Ineffective Assistance of Trial Counsel"
1. Overview of the Strickland Standard
In order to prevail on a Sixth Amendment ineffectiveness claim, a defendant must prove (1) that trial counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. In Strickland, the Supreme Court said that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S. at 689. Thus, a defendant must overcome the "presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)); accord, e.g., Bell v. Cone, 535 U.S. at 698. A divided Second Circuit panel recently reiterated that court's previous holding that application of the New York state standard, e.g., People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981), is not "contrary to," 28 U.S.C. § 2254(d)(1), the principles set forth in Strickland, which has been deemed to be the "clearly established" Supreme Court law for evaluating claims of ineffective assistance of trial counsel. Rosario v. Ercole, 601 F.3d 118, 126 (2d Cir. 2010) ("Rosario I") ("We emphasize again that the New York state standard for ineffective assistance of counsel is not contrary to Strickland.") (citing Eze v. Senkowski, 321 F.3d 110, 123-24 (2d Cir. 2003); contrasting with Henry v. Poole, 409 F.3d 48, 70 (2d Cir. 2005) (recognizing that "in the absence of a contrary decision by this Court en banc, or an intervening Supreme Court decision, we are bound to follow the precedents . . . that the N[ew]Y[ork] Court of Appeals standard is not 'contrary to' Strickland")).
With relief under the "contrary to" clause not available to Seda under these circumstances, given the Second Circuit's most recent pronouncement in the Rosario cases, the remaining issue, then, is whether Petitioner can obtain relief on the ground that the state court's adjudication of his claim involved an "unreasonable application" of Strickland. The Second Circuit has stated that the level of "unreasonableness" that must be shown under 28 U.S.C. § 2254(d)(1) "falls somewhere between merely erroneous and unreasonable to all reasonable jurists." Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008) 8 (quoting Overton v. Newton, 295 F.3d 270, 277 (2d Cir.2002)). As the Circuit further explained in Eze v. Senkowski, 321 F.3d at 121, an unreasonable application of Supreme Court precedent means more than that the state court incorrectly applied the precedent; it had to apply the facts in an "objectively unreasonable manner." Id. There ...