The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Anthony Bennett ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered May 8, 1996, in New York State, County Court, Niagara County (Amy J. Fricano, J.), convicting him, after a jury trial, of two counts of Rape in the First Degree (N.Y. Penal Law ("Penal Law") § 130.35 , ), one count of Rape in the Second Degree (Penal Law § 130.30), and five counts of Sexual Abuse in the First Degree (Penal Law § 130.65 ,).*fn1
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
Under Indictment No. 94-440, Petitioner was indicted and charged with eleven counts of Sexual Abuse in the First Degree (Penal Law § 130.65 , ), four counts of Rape in the First Degree (Penal Law § 130.35 , ), and one count of Rape in the Second Degree (Penal Law § 130.30). The charges arose from incidents that occurred between 1991 and 1994 involving Petitioner and his three minor children, F.B., N.B. and A.B.*fn2 See Indictment No. 94-440.
Prior to trial, the People moved to introduce evidence of numerous incidents of domestic violence as prior bad acts and uncharged crimes. A Ventimiglia*fn3 hearing was conducted on March 27, 1996. At the close of the hearing, the trial court found that five of the eighteen incidents of prior domestic violence the People sought to introduce could be used in the People's case-in-chief. Hr'g Mins. [H.M.] 134. The trial court later modified its ruling to permit four acts when it discovered that one of the five acts occurred after the charged conduct. Trial Trans. [T.T.] 45-46.
During a three-day jury trial, F.B., N.B. and A.B., among others, testified for the People. Each of the children testified, with varying specificity, that they had witnessed various instances of domestic violence, wherein Petitioner had physically injured their mother Sencerray Jenkins ("Jenkins"). Additionally, F.B. testified that on numerous occasions, over a three-year period from 1991-1994, Petitioner touched her breasts and engaged in sexual intercourse with her. T.T. 49-106. N.B. testified that, on one occasion while she was living with her parents, Petitioner had "touched her butt." T.T. 229. She also testified that, during this time, Petitioner "used to pick [F.B.] up and carry her upstairs and put her in a room and lock the door." T.T. 230. She testified that she also saw Petitioner, on one occasion, touch A.B.'s "private" while Petitioner and A.B. were in the kitchen. T.T. 234. A.B. testified that, on several occasions while he was living with his parents, Petitioner touched his penis. He also testified that, during this time, he saw, on one occasion, Petitioner pick F.B. up in his arms and carry her upstairs. A.B. testified that, on this particular occasion, he went upstairs and found the bedroom door locked. A.B. testified that he heard his sister crying and heard her tell their father to "get off her." A.B. testified that, from a gap underneath the bedroom door, he could see his father's and sister's feet on the bedroom floor "moving around." T.T. 259-293.
Jenkins testified that Petitioner was the father of F.B., N.B., and A.B., and that she had been in a relationship with him for fourteen years. She testified that their relationship, overall, was a tumultuous one and that, on occasion, she was afraid of him. Jenkins also testified to various instances of domestic violence that she suffered at the hands of Petitioner, which resulted in physical injuries. Jenkins also testified that, one particular occasion, she walked into the living room and saw Petitioner touching A.B.'s penis. T.T. 136-167.
Petitioner did not testify at trial. Petitioner's parents, Evelyn and Otis Bennett, testified for the defense. T.T. 341-352, 406-412.
At the close of evidence, Petitioner's attorney successfully moved for the dismissal of count 1, counts 4 and 5, and counts 7 and 9 of the Indictment. The trial court dismissed counts 10 and 11 sua sponte. T.T. 419-424. Of the nine counts on which the jury was asked to deliberate, Petitioner was convicted on eight, as follows: (1) count two charging Sexual Abuse in the First Degree as alleged to have occurred between December 26 and 31, 1991 wherein he was charged with hand to breast contact with F.B. (on the basis of her age); (2) count three charging Sexual Abuse in the First Degree as alleged to have occurred between December 26 and 31, 1999 wherein he was charged with hand to breast contact with F.B. (by forcible compulsion); (3) count six charging Sexual Abuse in the First Degree as alleged to have occurred between December 15 and 31, 1992 wherein he was charged with hand to breast contact with F.B. (on the basis of her age); (4) count 8 charging Sexual Abuse in the First Degree as alleged to have occurred between January 1 and February 28, 1993 wherein he was charged with penis to vagina contact with F.B. (on the basis of her age); (5) count twelve charging Rape in the First Degree as alleged to have occurred between September 1 and 15, 1993 wherein he was charged with having had sexual intercourse with F.B. (on the basis of her age); (6) count thirteen charging Rape in the First Degree as alleged to have occurred between September 1 and 15, 1993 wherein he was charged with having had sexual intercourse with F.B. (by forcible compulsion); (7) count fourteen charging Rape in the Second Degree as alleged to have occurred between April 1 and June 30, 1994 wherein he was charged with having had sexual intercourse with F.B. (on the basis of her age); and (8) count sixteen charging Sexual Abuse in the First Degree as alleged to have occurred between April 1 and June 30, 1994 wherein he was charged with hand to buttocks contact with N.B. (on the basis of her age). Petitioner was found not guilty of count fifteen charging Sexual Abuse in the First Degree as alleged to have occurred between April 1 and June 30, 1994 wherein he was charged with hand to penis contact with A.B. (on the basis of his age). T.T. 512-535.
Petitioner was subsequently sentenced to an aggregate indeterminate term of 16 to 48 years imprisonment. Sentencing Mins. [S.M.] 10-14.
On June 6, 2008, the Appellate Division, Fourth Department ("Fourth Department") unanimously modified the judgment of conviction by reversing those parts convicting Petitioner of Sexual Abuse in the First Degree under counts two and three of the indictment. As modified, the judgment of conviction was affirmed, and leave to appeal was denied. People v. Bennett, 52 A.D.3d 1185 (4th Dep't 2008); lv. denied, 11 N.Y.3d 734 (2008).
This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) a Rosario violation; (2) ineffective assistance of trial counsel; (3) that the admission of evidence of uncharged crimes deprived him of his right to a fair trial; and (4) harsh and excessive sentence. See Pet. ¶ 22A-D (Dkt. No. 1).
III. General Principles Applicable to Habeas Review
A. The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "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." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (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; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. Exhaustion Requirement
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly ...