The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The petitioner, Vincent Chambers, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 17, 2001, the petitioner was convicted after a jury trial in New York State Supreme Court, Bronx County, of Manslaughter in the First Degree (N.Y. Penal Law § 125.20). The petitioner was sentenced as a persistent felony offender to an indeterminate prison term of twenty-five years to life.
The petitioner appealed to the New York State Supreme Court, Appellate Division, First Department, which, on May 13, 2003, unanimously affirmed the petitioner's judgment of conviction. People v. Chambers, 758 N.Y.S.2d 799 (App. Div. 2003). The petitioner's application for leave to appeal to the New York State Court of Appeals was denied on July 11, 2003. People v. Chambers, 796 N.E.2d 481 (N.Y. 2003).
The petitioner subsequently moved in the New York State Supreme Court, Bronx County, to vacate his sentence pursuant to New York Criminal Procedure Law § 440.20. The court vacated the petitioner's sentence and ordered a re-sentencing hearing. After holding a re-sentencing hearing, the court re-sentenced the petitioner as a mandatory persistent violent felony offender pursuant to New York Penal Law § 70.08 and New York Criminal Procedure Law § 400.16 to an indeterminate prison term of twenty-five years to life. (See Killian Decl. Exs. 12-15.)
The petitioner brought several additional collateral challenges in state court to his conviction and sentence. Each of these challenges is detailed below and was unsuccessful.
In his petition for habeas corpus in this case, the petitioner challenges his conviction on multiple grounds. First, the petitioner alleges judicial and prosecutorial misconduct with respect to a videotaped statement by the petitioner that was allegedly suppressed at the grand jury proceedings and at trial, and with respect to a witness that he alleges was improperly recalled to the stand and allowed to offer "false testimony." The petitioner also alleges prosecutorial misconduct based on the prosecutor allegedly "forcing" witnesses to testify through harassment and coercion, and making an "inflammatory" remark that "assassinated" the petitioner's character while he was on the stand. Next, the petitioner claims that he received ineffective assistance of trial counsel because trial counsel engaged in sidebar discussions outside of his presence and trial counsel failed to challenge the constitutionality of his original sentencing proceedings. The petitioner also claims that the grand jury proceeding was defective because the petitioner's videotaped statement was suppressed and therefore there was insufficient evidence to support the indictment, and the indictment improperly charged the petitioner with depraved indifference murder. Finally, the petitioner claims that his sentence as a persistent violent felony offender is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). The petitioner moves for an evidentiary hearing on all of his claims.
The record reflects the following relevant facts. On May 14, 2000, the petitioner was riding his bike and stopped to talk to some "associates" outside 15 Marcy Place in the Bronx. (Tr. 399.) While he was talking with his associates, Jafaar Booker, the victim, who the petitioner believed to be a gang member, attempted to speak to the petitioner. (Tr. 399-400, 402-03.) The petitioner asked Booker not to "say two words to [him]," after which the petitioner claims that Booker walked towards the petitioner and told him to get off of his bike. (Tr. 403.) According to the petitioner, as he was getting off his bike, Booker grabbed the petitioner's twenty-inch chain with a religious medal and took it from the petitioner. (Tr. 403.) At this point, the petitioner and Booker began to fight with one another, "tussling" and "wrestling." (Tr. 404, 406.)
According to witnesses, in the course of the fight, the petitioner pulled out a knife. (Tr. 124, 317.) Booker ran from the petitioner and when the petitioner chased him Booker and two other men allegedly pinned the petitioner down on a car and attempted to take the knife from him. The petitioner claims that Booker beat him with a black metal cane and bit him in the face. (Tr. 406, 409). An eye-witness corroborated that Booker hit the petitioner twice in the head with the cane. (Tr. 316-17, 333-34, 351.) According to witnesses, however, Booker appeared to be using the cane to protect himself from the petitioner, who had broken free of the men holding him down on the car and was pursuing Booker with the knife. (Tr. 126, 316-317.) Raphael Vasquez, an eye-witness, heard Booker tell the petitioner that he would put down the cane if the petitioner put down the knife. (Tr. 317-19.) Vasquez testified that the petitioner responded by saying "Fuck that, I'm going to do what I got to do," and then ran at Booker, pushing him up against a gate and stabbing him in the chest. (Tr. 317-19, 351, 375-76.) The petitioner wiped off the knife, put it in his pocket, and began to ride his bike away from the scene. (Tr. 199, 319-20.) As he was riding his bike, the petitioner took off his shirt and threw it on the sidewalk. (Tr. 125, 135-36.)
After being stabbed, Booker ran towards Jerome Avenue, where a police precinct and fire department were located, holding his hand over his bleeding chest. (Tr. 135, 168-69, 219-20, 241.) Booker approached Police Officer David McNamee who was parked outside the fire department, and told Officer McNamee that he had been stabbed in the heart. (Tr. 220, 241-42.) After Officer McNamee radioed that somebody had been stabbed and requested medical assistance, Booker said he felt dizzy and sat down on the back of a fire truck. (Tr. 243.) Shortly after, Booker laid down on the ground. (Tr. 244.) Officer McNamee asked Booker twice who had stabbed him, but Booker was unable to answer before he lost consciousness. (Tr. 244-45.) Booker died and the petitioner was arrested two days later. (Tr. 282-86.)
During the trial, the petitioner admitted to stabbing Booker, but asserted an affirmative defense of justification based on Booker's alleged conduct leading up to and during the fight. (Tr. 460-63, 487, 500, 507-09, 586-87.)
On August 3, 2001, the jury found the petitioner not guilty of Murder in the Second Degree based on intent or depraved indifference, but guilty of Manslaughter in the First Degree. (Tr. 595-96.) On September 17, 2001, the petitioner was sentenced as a persistent felony offender to an indeterminate sentence of twenty-five years to life in prison. (Sent. Tr. 32.)
The petitioner appealed his conviction to the Appellate Division, First Department, and argued that the verdict was against the weight of the evidence. In an opinion dated May 13, 2003, the Appellate Division unanimously rejected the petitioner's claims. People v. Chambers, 758 N.Y.S.2d 799 (App. Div. 2003). The court held that "[t]he verdict was based on legally sufficient evidence and was not against the weight of evidence." Id. It further held that the jury "properly credited evidence that disproved [the petitioner's] justification defense beyond a reasonable doubt," in part based on evidence that the petitioner pursued Booker when Booker was fleeing. Id. The petitioner's application for leave to appeal to the New York State Court of Appeals was denied on July 11, 2003. People v. Chambers, 796 N.E.2d 481 (N.Y. 2003).
The petitioner moved in the New York Supreme Court, Bronx County, to vacate his sentence pursuant to New York Criminal Procedure Law § 440.20, claiming that his sentence violated Apprendi because the trial court "unintentionally" adjudicated him a "discretionary" persistent felony offender and that he received ineffective assistance counsel at the sentencing proceeding. (Killian Decl. Ex. 5.) Although the petitioner did not elaborate how counsel was ineffective at sentencing, the state court granted the petitioner's motion to vacate and ordered a re-sentencing hearing based on trial counsel's silence throughout the sentencing proceeding and the sentencing court's failure to make clear at the original proceeding that the petitioner was being sentenced as a mandatory persistent violent felony offender rather than a discretionary persistent felony offender. (Killian Decl. Ex 12.)
The petitioner also claimed that his sentence as a persistent violent felony offender should be vacated because he had not committed two prior violent felony offenses and his prior convictions were unconstitutional. (Killian Decl. Ex. 5.) The state court held an evidentiary hearing to determine if the petitioner had previously been convicted of the two violent felony offenses alleged by the prosecutor, and if those convictions were unconstitutional. In an order dated March 10, 2006, the state court found that the prosecutor had met his burden as to both issues. (Killian Decl. Ex. 14.) The court determined that the petitioner should be sentenced forthwith as a mandatory persistent violent felony offender pursuant to New York Penal Law § 70.08 and New York Criminal Procedure Law § 400.16. (Id.) The petitioner was sentenced to an indeterminate prison term of twenty-five years to life.
After the state court issued the March 10, 2006 decision re-sentencing the petitioner as a persistent violent felony offender, the petitioner filed pro se papers titled "Quantum of Proof and Notice of Allegations and Evidence Warranting Dismissal with Prejudice," in which he raised many of the same issues regarding the grand jury proceeding and the trial raised in this petition. In a supplemental order issued on March 30, 2006, the state court denied all of the petitioner's claims. (Killian Decl. Ex. 15.) The court specifically noted that the petitioner's complaints about his trial "to wit, prosecutorial misconduct, false testimony, conflicts of interest, abuse of process, character assassination, double jeopardy, judicial error, etc.," were "conclusory and insufficient to warrant either the relief requested or an evidentiary hearing." (Id. at 2.) The court also noted that "all of these concerns dealt with matters of record and could have been raised on direct appeal." (Id.)
While the petitioner's motion to vacate his sentence was still pending, he moved in the Appellate Division, First Department, for a writ of error coram nobis, alleging ineffective assistance of appellate counsel. (See Killian Decl. Ex. 16.) Specifically, the petitioner alleged that his appellate counsel was ineffective for failing to raise claims of ineffective assistance of trial counsel, prosecutorial misconduct, and judicial error. The petitioner also claimed ineffective assistance of appellate counsel based on counsel's alleged failure to advise the petitioner of his option to submit a supplemental brief to the Appellate Division on direct appeal. In an order dated December 9, 2004, the Appellate Division, First Department denied the petitioner's request. People v. Chambers, 787 N.Y.S.2d 674 (App. Div. 2004).
Following his re-sentencing, the petitioner filed a second appeal, through assigned appellate counsel, with the Appellate Division, First Department. (Killian Decl. Ex. 18.) The petitioner claimed that the prosecution failed to prove beyond a reasonable doubt that he had at least two prior violent felony convictions, and that his sentence as a persistent violent felony offender was unconstitutional under Apprendi and its progeny. On November 27, 2007, the court unanimously affirmed the trial court's judgment and found that the prosecution did establish beyond a reasonable doubt that the petitioner had committed two prior violent felonies, and that the procedure used pursuant to the persistent violent felony offender statute was not unconstitutional. People v. Chambers, 846 N.Y.S.2d 151 (App. Div. 2007). The petitioner's application for leave to appeal to the New York Court of Appeals was denied on February 28, 2008. People v. Chambers, 883 N.E.2d 1259 (N.Y. 2008).
The petitioner also filed a pro se motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, alleging judicial error and misconduct, prosecutorial misconduct, ineffective assistance of counsel, and that the grand jury testimony was legally insufficient to support the indictment. (Killian Decl. Ex. 22.) The petitioner alleged that the trial court erred when it did not dismiss one of the two Murder in the Second Degree charges because intentional murder and depraved indifference murder are inconsistent with one another. The petitioner further claimed that the trial court committed judicial misconduct by including depraved indifference murder in the jury charge, allowing a witness to be recalled and thus testify twice after observing the trial, instructing the jury that the petitioner's videotaped statement which was only referenced at trial was insufficient evidence of justification, allowing the petitioner to be tried on charges not contained in the indictment, making "caustic remarks," failing to allow trial counsel to obtain a copy of the victim's criminal record for use at trial, and failing to include the lesser offense of Manslaughter in the Second Degree in the jury instructions. In his reply papers, the petitioner also alleged prosecutorial misconduct because the People omitted the petitioner's videotaped statement from the grand jury proceedings and the trial allegedly violating their Brady obligations, allegedly assassinated the petitioner's character when he was on the stand, allowed a witness to offer false testimony and inserted its own views about the petitioner's guilt, made an inflammatory remark, and forced witnesses to testify. The petitioner claimed ineffective assistance of counsel alleging that trial counsel failed to urge the trial court to dismiss the depraved indifference murder count and that trial counsel failed to exercise the petitioner's right to be present at all sidebar discussions.
In an order dated July 3, 2008, the court denied the petitioner's motion to vacate his conviction. (Killian Decl. Ex. 26.) Citing New York Criminal Procedure Law § 440.10(2)(c), the court ruled that "all of the [the petitioner's] arguments here (including Antommarchi-style [sidebar] issues) relate to matters of record -- and, therefore, if not previously raised and already determined could have -- with due diligence on [the petitioner's] part -- been so raised, either on direct appeal or on a prior CPL 330 motion. Therefore, there is no basis for consideration and/or reconsideration at this time." (Id.) The court also noted that it was unnecessary to evaluate the petitioner's claims regarding the inclusion of depraved indifference and intentional Murder in the Second Degree in the indictment and jury charge because the petitioner was acquitted of both charges, so any concern regarding the charges would be "wholly academic." (Id.)
The petitioner sought leave to appeal from that order, and on October 23, 2008, petitioner's application was ...