The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Wellmon McCallie ("McCallie" or "Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254 on the basis that he is being unconstitutionally held in state custody. McCallie, a persistent felony offender, is currently serving a 20-year-to-life sentence pursuant to a judgment of conviction entered against him in New York State Supreme Court (Erie County) following a jury trial on one count of robbery in the first degree (New York Penal Law § 160.15(3)) and one count of criminal possession of a weapon in the third degree.
The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
II. Factual Background and Procedural History
Vasily Kondatuyk ("Kondatuyk"), the manager of the meat department at a grocery store in the City of Buffalo, testified that on the morning of October 24, 2003, Petitioner came to his counter and asked for steak. Kondatuyk gave him about $36.00 worth of meat. Petitioner then left the store without paying for it. Kondatuyk ran after Petitioner, who had gotten into the passenger seat of a car in the parking lot. Kondatuyk stood in front of the car but it kept going, so he jumped onto the hood in an attempt to stop the thief. Finally, the car stopped.
By that point, Timothy Wagner ("Wagner"), the store owner, had approached the group. McCallie got out of the car. Wagner and Kondatuyk told McCallie to give back the meat. McCallie, however, had different plans: he took out a knife and waved it at them before running off down the street with the meat.
A fairly lengthy chase ensued as Kondatuyk pursued McCallie on foot, down the street through backyards and over fences. The chase ended when McCallie arrived a fence too high for him to scale. Kondatuyk demanded that McCallie return the meat and reached out his hand to grab it. McCallie, but when he reached for it, the defendant threw wood at him and cut his right hand with a knife (28- 30).
Wagner, the store owner, related that when he arrived on the scene, he saw his employee on the hood of a car. The driver pulled over and said he did not know the meat thief (McCallie). Wagner testified that McCallie got out of the car and began brandishing a knife at them. McCallie refused to drop the meat and ran away.
When Kondatuyk returned to the store, he showed Wagner the cut on his hand received from McCallie. Wagner provided first aid to Kondatuyk.
Officer Greg Kwiatkowski of the Buffalo Police Department responded to the 911 call. Upon arrival at where Kondatuyk had McCallie cornered against the fence, he saw McCallie throw a dolly cart at Kondatuyk. Officer Kwiatkowski chased McCallie and grabbed him. McCallie announced he had a gun and he and Officer Kwiatkowski struggled. A second police officer arrived and recovered a knife from McCallie, which he testified was in McCallie's hand.
Petitioner admitted he stole the steaks from the store, but said he never had a knife and that he left the meat in the car before running away. He claimed that the store employee hit him with a stick and that the police officer beat him.
On February 2, 2007, the Appellate Division unanimously affirmed the judgment of conviction. People v. McCallie, 37 A.D.3d 1129 (App. Div. 4th Dept. 2007). Permission to appeal to the New York Court of Appeals was denied on May 7, 2007. People v. McCallie, 8 N.Y.3d 987 (N.Y. 2007).
B. The Federal Habeas Proceeding
In his petition, McCallie raised four grounds for relief. Respondent answered the petition acknowledging that they had been exhausted on direct appeal, but arguing that several of the claims were procedurally defaulted. Respondent also argued that none of the claims has merit. Petitioner then filed a reply memorandum of law in which he, among other things, asserted new claims not raised in the initial petition. Respondent filed a motion to dismiss these claims (Docket No. 14) on the basis that they were unexhausted. Petitioner filed a response (Docket No. 17) and a brief (Docket No. 18) in opposition to Respondent's motion to dismiss.
The only two new claims that this Court found in Petitioner's reply papers were (1) trial counsel was ineffective in failing to question a juror's ability to be impartial and (2) the trial court failed to hold a hearing on McCallie's request for substitute counsel. Keeping in mind that pro se petitioners are afforded considerable latitude in their pleadings, the Court will deem the two new claims raised in the response papers as being part of the petition. The first claim is unexhausted but procedurally defaulted, and must be dismissed. The second claim is exhausted, having been raised on direct appeal. It is without merit, however, as discussed below.
The claims raised in the petition itself are also without merit and do not form a basis for habeas relief. For the reasons that follow, then, the petition is dismissed. Respondent's motion to dismiss is denied as moot.
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "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." Id. § 2254(d)(2); see also Williams v. Taylor, 529 U.S. 362 (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.
IV. Analysis of the Claims Raised in the Petition
A. Ground One: The trial court's Sandoval*fn1 ruling was erroneous and prejudicial, and denied Petitioner his due process right to a fair trial. (Petition, ¶22(A))
In Petitioner's direct appeal, he claimed that the trial court's Sandoval ruling allowing the prosecutor to cross-examine him about certain prior convictions and bad acts was unfairly prejudicial. The Appellate Division ruled this claim was unpreserved for appellate review because he failed to object to the trial court's ultimate Sandoval ruling. People v. McCallie, 37 A.D.3d at 1130 (citing, inter alia, People v. McMillon, 32 A.D.3d 1300, 821 N.Y.S.2d 531.
Respondent argues that the Appellate Division relied upon an adequate and independent state ground to dismiss the Sandoval claim, and therefore it is procedurally defaulted. The Court agrees with Respondent.
The Supreme Court has held that claims underlying a habeas petition may be procedurally barred from habeas review if they were decided at the state level on adequate and independent procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729-33 (1991). The procedural bar applies when a state court's decision contains a "plain statement" that it is relying on an "adequate" state law as an "independent" basis for denying the claim. Id. at 722, 729. There is no question that the Appellate Division explicitly invoked and actually relied upon New York's contemporaneous objection rule (C.P.L. § 470.05(2)) as an independent basis for its disposition of the Sandoval claim; it did not rule in the alternative on the merits of the claim. Furthermore, C.P.L. § 470.05(2) was "'adequate' to support the judgment" because that contemporaneous objection is "firmly established and regularly followed," Ford v. Georgia, 498 U.S. 411, 423-24 (1991), by the New York courts to deny similar claims.
To avoid the preclusive effect of this procedural default, McCallie must demonstrate cause for the default and actual prejudice, or that the failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Cause may be established by "showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that 'some interference by officials' . . . made compliance impracticable . . . [or that] the procedural default is the result of ineffective assistance of counsel." Murray v Carrier, 477 U.S. 478, 488 (1986). To show prejudice, a habeas petitioner must show "not merely that the errors at his trial created a possibility of prejudice, ...