The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Jamar T. Jones ("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 Murder in the Second Degree (N.Y. Penal L. § 125.25(1)), Attempted Murder in the Second Degree (N.Y. Penal L. §§ 110.00, 125.25(1)), Assault in the Second Degree (N.Y. Penal L. § 120.10(1)), and Criminal Possession of a Weapon in the Second Degree (former N.Y. Penal L. § 265.03(2)) following a jury trial before Judge Shirley Troutman. Petitioner was sentenced to an aggregate term of imprisonment of 50 years to life.
II. Factual Background and Procedural History
On May 2, 2005, petitioner shot Courtney Meadows ("Meadows") and James Webster ("Webster") following a confrontation. Meadows was shot in the head, the back, and twice in the chest, and subsequently died from his injuries. Webster survived the attack, and testified at petitioner's trial. Two witnesses to the shooting, Ronald Showers ("Showers") and Nathaniel Harris ("Harris"), identified petitioner in a police photo array and also testified for the prosecution.
Over defense counsel's objection, the trial court permitted the prosecution to introduce evidence that petitioner had assaulted Harris one to two weeks prior to the incident. In addition, the court overruled counsel's objection to the admission into evidence of Meadows' autopsy photographs. Trial Tr. 377-79, 388, 400-05, 463-70, 472, 482-83, 553, 646, 654, 650.
A Wade*fn1 hearing was held on August 3 and August 18, 2005, during which Buffalo detectives testified that they showed Showers, who had witnessed the shooting, numerous photographs of persons named Jerome and Jamar. Showers identified the 56th photograph shown to him as petitioner. Wade Hr'g Tr. 5-8, 18-19, 28-29.
Petitioner did not testify in his own behalf at trial. Eyewitness Robert Kuczka, testified for the defense.
On October 7, 2005, petitioner was found guilty of all four counts of the indictment and was subsequently sentenced on January 18, 2006, to aggregate terms of imprisonment totaling 50 years to life. Sentencing Tr. 9-10.
Through counsel, petitioner filed a brief with the Appellate Division, Fourth Department, in which he raised the following issues for appeal:
(1) the trial court denied petitioner a fair trial by allowing the prosecution to introduce uncharged crimes;
(2) petitioner was denied a fair trial when the court allowed the prosecution to introduce prejudicial photographs into evidence;
(3) the pre-trial identification procedure was unduly suggestive; and (4) the sentence was unduly harsh and excessive and the sentencing court failed to consider all relevant factors in pronouncing petitioner's sentence. See Pet'r Appellate Br. 7-32. The Appellate Division unanimously affirmed the judgment of conviction on September 28, ...