The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner David Frazier ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction in Monroe County Supreme Court of Attempted Murder in the First Degree (N.Y. Penal L. §§ 125.27(1)(a)(vi), 110.00), Criminal Possession of a Weapon in the Second Degree (former § 265.03(2)) and Criminal Possession of a Weapon in the Third Degree (former § 265.02(4)) following a jury trial before Judge Joseph D. Valentino. Petitioner was sentenced to an indeterminate term of imprisonment of twenty years to life.
II. Factual Background and Procedural History
Petitioner's conviction stems from an incident that occurred on the evening of July 18, 2003, wherein petitioner pointed a loaded, sawed-off shotgun at Roy Warner ("the victim").
At approximately 10:54pm on July 18, 2003, Monroe County Sheriff's Deputy Kimberly Doerr ("Doerr") was on routine road patrol in the area of Chili Center when she received a call regarding a person pointing a gun at someone on Scottsville Road in the Town of Chili. The call indicated that the suspects, described as two black males, had left the scene in a blue car. Doerr received further information that one of the suspects was tall, thin and dressed in dark clothing, and that one of the men was wearing a do-rag on his head. Hr'g Mins. dated 5/20/2004 at 5-7.
Doerr began driving toward the reported location, and, as she approached the intersection of Ballantyne and Scottsville Roads, she observed a blue vehicle with two black male occupants with short hair or possibly a do-rag. The vehicle was stopped at a traffic light heading northbound, away from the location of the incident, and Doerr observed that the driver of the vehicle was not wearing a seatbelt. Hr'g Mins. 8-9, 18, 34-35, 37, 41.
Doerr began following the blue car, and, after waiting for back-up to get closer to her position, she initiated a traffic stop of the vehicle. Once the vehicle was stopped, she saw the passenger, later identified as the petitioner, throw what appeared to be a shotgun out of the passenger-side window.*fn1 Doerr then ordered the occupants to put their hands up. When the petitioner complied, Doerr saw him "pull[ ] something off of his head." A black and grey scarf was later found on the floor on the passenger side of the car. Also recovered from the vehicle was another shotgun, ammunition, and rubber gloves. Hr'g Mins. 10-17.
Petitioner was identified by the victim, and provided a written statement to police after his arrest acknowledging his involvement in the incident. Resp't Appx. B at 15.
Following his conviction, petitioner filed a brief in the Appellate Division, Fourth Department, raising two points on appeal: (1) the trial court erred in refusing to suppress evidence seized by police from the vehicle in which he was a passenger; and (2) petitioner was denied due process because the police did not electronically record his interrogation. Resp't Appx. A. The Appellate Division unanimously affirmed the judgment of conviction. People v. Frazier, 52 A.D.3d 1317 (4th Dept. 2008), lv. denied, 11 N.Y.3d 788 (2008).
This habeas corpus petition followed, in which he raises the same claims as he did on direct appeal. For the reasons that follow, petitioner is not entitled to the writ, and the petition is dismissed.
A. Standard of Review for Federal Habeas ...