The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
DECISION AND ORDER SUPERINTENDENT
Proceeding pro se, Dwayne Mellerson ("Mellerson" 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 in New York State Supreme Court (Erie County) on charges of assault in the first degree (New York Penal Law ("P.L.") § 120.10(3); assault in the second degree (P.L. § 120.05(1)); and burglary in the first degree (P.L. § 140.30(2)). Mellerson received and is currently serving concurrent determinate terms of 25 years, to be followed by a mandatory five-year term of post-release supervision.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, the petition is dismissed.
The relevant trial testimony is summarized below, in the Court's discussion of Mellerson's claim regarding the insufficiency of the evidence supporting the convictions.
III. 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.
IV. The Exhaustion Requirement
A habeas petitioner must have exhausted all state remedies before seeking federal habeas relief. See 28 U.S.C. § 2254(b)(1); Daye v. Attorney Gen'l of N.Y., 696 F.2d 186, 190 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). In order for a claim to be considered exhausted, it must have been presented fully and fairly in federal constitutional terms to the State courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Daye, 696 F.2d at 191.A claim is exhausted if it has been "fairly presented" to the state court. Daye, 696 F.2d at 191. To fairly present a federal constitutional claim, the petitioner must have set forth for the state court all the essential factual allegations and legal premises now being asserted in federal court. Id.
V. The Adequate and Independent State Ground Doctrine and Procedural Default
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (citations and internal quotations omitted). Even where the state court also considers a petitioner's arguments on the merits, that is of no moment because "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris, 489 U.S. at 264 n. 10; accord Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995).
To establish a "fundamental miscarriage of justice" requires a demonstration of "actual innocence." See, e.g., Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (citing Sawyer v. Whitlety, 505 U.S. 333, 339 (1992) (."The miscarriage of justice exception is concerned with actual as compared to legal innocence."). The Supreme Court has emphasized that the exception has a "narrow scope," Sawyer, 505 U.S. at 339. "To be credible," a claim of actual innocence must be based on reliable evidence not presented at trial[,]" Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); accord Calderon, 505 U.S. at 339.
VI. Analysis of the Petition
A. Ground One: Claims Attacking the Strength of the Evidence
1. Verdict Unsupported by Legally Sufficient Evidence
The law governing habeas relief from a state conviction based on insufficiency of evidence is well established. A petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court of the State of N.Y., 109 F.3d 836, 840 (2d Cir.1997). A habeas court will uphold a state criminal conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)); see also Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir.2002) ("[W]e review the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial."); Policano v. Herbert, 430 F.3d 82, 86 (2d Cir.2005) (" '[I]n a challenge to a state criminal conviction brought under 28 U.S.C. § 2554[,] . . . the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.' ") (quoting Jackson, 443 U.S. at 324, 99 S.Ct. 2781).
Even when "faced with a record of historical facts that supports conflicting inferences, [this Court] must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.1994). Thus, a reviewing court may not grant relief on a sufficiency claim unless the record is "so totally devoid of evidentiary support that a due process issue is raised." Bossett v. Walker, 41 F.3d 825, 830 (2d Cir.1994).
When considering the sufficiency of the evidence of a state conviction, "[a] federal court must look to state law to determine the elements of the crime." Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir.1999). Here, Mellerson was charged with and convicted of assault in the first degree (P.L. § 120.10(3)) and burglary in the first degree (P.L. § 140.30(2)). Under New York law, a person is guilty of assault in the first degree when, " under circumstances evincing a depraved indifference to human life,  he recklessly engages in conduct which creates a grave risk of death to another person, and  thereby causes serious physical injury to another person." N.Y. Penal Law § 120.10(3). "Serious physical injury" means "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." N.Y. Penal Law § 10.00(10). A person is guilty of burglary in the first degree under P.L. § 140.30(2) "when he knowingly enters or remains unlawfully in a dwelling with the intent to commit a crime therein, and when in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime . . . [c]auses physical injury to any person who is not a participant in the crime . . . ." N.Y. PENAL LAW § 140.30(2).
At trial, the jury was presented with two versions of the events that occurred on May 13, 2000. The victim, Anne Scalfani ("Anne"), testified that she met Petitioner for the first time at 4:00 a.m. on May 13, when he came over with her friend Henry "Bo" Robins (T.104; numbers in parentheses preceded by "T." refer to pages of the trial transcript). While she was showing Petitioner to the bathroom, he grabbed her arm and attempted to force herself on her sexually. Anne rebuffed his advances (T.106-107) and pushed him away.
When she returned, she told Bo what had transpired and asked that he and Petitioner leave (T.107). Petitioner told her that he was going to get more drugs at Bo's house and asked if he could return to her house. Anne told him to leave his cell phone number and she would call him to let him know if he could come over (T.108).
When Anne called Bo later and was informed by him that Petitioner was on the way to her house, she immediately called Petitioner and told him that it was not a good idea because her sister would be home soon (T.120). Over the next few minutes, Petitioner made multiple calls to Anne. He eventually arrived at her house and began banging on her door trying to gain entry (T.128) . When Anne opened the door to ask him to leave, Petitioner punched her in the face causing her to fall down the stairs into the basement (T.128). Petitioner followed her down the stairs, punching her in the face and head as she faded in and out of consciousness (T.131).
At the trauma room of the hospital, still bloody, beaten, and incoherent, Anne falsely told Amherst police officer Eric Davis that she had been sexually assaulted by a man named Shelton Harland ("Harland") in his car (T.231- 232). DNA testing performed on sperm found in Anne's vagina revealed that it matched a person named Craig Lewis ("Lewis"), who was not involved in this matter.
Two weeks later, during a conversation with Detective Gary Dudek at the hospital, Scalfani recanted her story about Harland, and identified Petitioner as the person who had attacked her at her house (T.267). Petitioner was never charged with any type of sexual assault in connection with the incident.
Leah Paolini ("Leah"), and the victim's sister, Laura Scalfani ("Laura"), corroborated Anne's testimony that she had called them both several times that morning when she became aware that Petitioner was on his way over to her home and while he was outside banging on her door demanding entry (T.62, 246-248).
Petitioner's version of events came in the form of his statement to police two weeks after the crime. Petitioner admitted being at Anne's home with Bo, and later returning to Anne's place after he had taken Bo home (T.455). Petitioner also admitted that there were several telephone calls between him and Anne before his arrival. However, Petitioner denied assaulting Anne, telling police that he departed when she denied him entry into her home (T.460). Petitioner's cell phone records demonstrated no usage of his phone during the critical time of the assault.
The prosecution introduced evidence from Bo Robins that Petitioner had called him on the morning of May 13th. When Mrs. Robins refused to awaken her husband to speak to Petitioner unless it was "a matter of life and death", Petitioner told her it was. Mrs. Robins hung up on him (T.372). Later that day when he finally spoke to Bo, Petitioner apologized to him for an "altercation" he had with Anne, admitting that he "slapped" her (T.380, 384).
Petitioner's defense at trial was that the victim was a drug addict who was assaulted by her ex-boyfriend or her drug dealer. (T.531, 547). Defense counsel argued that the jury should accept Petitioner's statement to the police that he complied with the victim's request to leave her home, and that he had nothing to do with her assault. Also suggested as an alternative theory was that the victim's recall was so damaged by alcohol and drugs that she mistakenly or wrongly accused him of the crime and had been assaulted by Harland or Lewis. (T.531, 547, 553). Defense counsel emphasized the lack of forensic evidence linking Petitioner to the crime scene, and the fact that the victim gave a statement to police stating that Petitioner raped her--an assertion contradicted by the DNA test results which showed that the sperm sample taken during the rape-kit was a match with Carl Lewis. (T.550). To this end, counsel attacked Anne's credibility by reminding the jury that she told the police that Petitioner raped her and still maintained this, in spite of DNA testing that excluded Petitioner as the source of the semen found in her vagina (T.550).
As Mellerson points out, the intoxication level of the victim and primary prosecution witness in this case was extremely high. "Indeed, [the victim] consumed conspicuous amounts of cocaine, along with alcohol and heroin, on the evening in question--all of which was made known to the trier of fact through the extensive cross-examination of defendant's skilled trial counsel." People v. Mellerson, Indictment No. 00-0961-001, 2001 WL 1729715, at *2. The trial court found that, notwithstanding the witness' copious ingestion of drugs and alcohol, her testimony, although inconsistent in some respects, was "not rendered incredible as a matter of law simply because the defendant finds it to be unworthy of belief." Id. Under both New York State and Federal law, "[t]he credibility of the victim and the weight to be accorded her testimony were matters for the jury." Id. (citing People v. Gruttola, 43 N.Y.2d 116).
As the trial court held in denying Mellerson's motion to set aside the verdict under C.P.L. § 330.30, "[t]he testimony of the victim identifying defendant as her assailant, coupled with corroborative testimony of others as to defendant's use of force against her and to absence of defendant's cell phone use during the critical time of the assault, was sufficient to justify the jury's decision to find defendant criminally responsible for the acts charged. The evidence adduced at trial provided a 'valid line of reasoning and permissible inferences which could lead a rational person to conclu[de]' that defendant was guilty beyond a reasonable doubt." People v. Mellerson, Indictment No. 00-0961-001, 2001 WL 1729715, at *2, 2001 N.Y. Slip Op. 40596(U) (N.Y. Sup. Nov. 21, 2001) (unreported opn.) (quotation omitted). The trial court further observed, "[t]he proof, though perhaps not 'overwhelming', was certainly sufficient to sustain the jury's verdict." Id. Subsequently, on direct appeal, the Appellate Division held that the "conviction of both offenses is supported by legally sufficient evidence, and the verdict on both offenses is not against the weight of the evidence[.]" People v. Mellerson, 15 A.D.3d at 965. These rulings did not misapply the stringent standard in Jackson v. Virginia, 443 U.S. at 319; nor were they "objectively unreasonable" applications of Jackson v. Virginia under 28 U.S.C. § 2254(d)(1).
2. Verdict Against the Weight of the Evidence
Any claim by petitioner that a witness' testimony was unworthy of belief is not reviewable in habeas proceedings since credibility determinations are the province of the jury. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim because "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; stating that it must defer to the jury's assessments of both of these issues); see also United States v. Vasquez, 267 F.3d 79 (2d Cir. 2001) ( "The jury chose to believe the witnesses' testimony despite any inconsistencies. We will defer to the jury's assessment of credibility." ) (citing United States v. Payton, 159 F.3d 49, 56 (2d Cir.1998) ("Where there is conflicting ...