The opinion of the court was delivered by: Denise Cote, District Judge
Robert McGraw ("McGraw") brings this timely filed pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial on the charge of robbery in the first degree. The petition was referred to the Honorable Frank Maas for a report and recommendation (the "Report") on October 20, 2009. The Report was filed on April 27, 2011, and recommends that the petition be denied. McGraw's objections to the Report were received on June24, 2011. For the following reasons, the Report is adopted and the petition is denied.
The facts relevant to the petition are set out in detail in the Report and are summarized here. On November 14, 2002, McGraw entered a corporate cafeteria on the seventh floor of 300 Park Avenue in Manhattan and displayed a handgun. He grabbed cash that was being counted by an employee in the cafeteria office and took additional money from an unlocked office safe before fleeing the building. After the police made available a digital photograph of the robber that was retrieved from a surveillance camera, a tip to the "Crimestoppers" hotline led to McGraw's arrest on December 10, 2002.
McGraw's first trial ended in a mistrial in February 2004. During the initial round of jury selection for McGraw's second trial, McGraw's lawyer Paul Martin ("Martin") raised an objection under Batson v.Kentucky, 476 U.S. 79, 89 (1986), when the prosecutor struck two Hispanic and three African-American jurors. After the prosecutor represented that he had struck the jurors based on their education level or their prior involvement with the criminal justice system, the trial court ruled that the prosecution's non-discriminatory justifications were non-pretextual and therefore denied the defense's Batson application.
During McGraw's second trial, three eyewitnesses to the robbery and an elevator operator identified McGraw as the perpetrator. The defense called Michelle Freeman, a neighbor of McGraw's brother's girlfriend, as an alibi witness; she testified that she saw McGraw outside her home in Philadelphia at the time of robbery. The prosecution called McGraw's original lawyer, Barry Apfelbaum ("Apfelbaum") as a rebuttal witness. Apfelbaum testified that before McGraw was indicted, Apfelbaum had represented to the prosecution, based on information provided to him by McGraw, that during the robbery McGraw was at work elsewhere in Manhattan.*fn1
The jury convicted McGraw on one count of robbery in the first degree. The trial court found McGraw to be a persistent violent felony offender and sentenced him to an indeterminate term of twenty-five years to life imprisonment. McGraw appealed his conviction to the Appellate Division on five grounds: (1) Apfelbaum's rebuttal testimony improperly undermined McGraw's alibi defense; (2) Apfelbaum was ineffective because he withdrew from the case to testify as a prosecution witness; (3) the prosecutor improperly bolstered his witnesses' testimony by adducing evidence of prior eyewitness identifications and by eliciting a police detective's opinion that McGraw was the robber depicted in the surveillance photographs; (4) the jury's verdict was against the weight of the evidence; and (5) McGraw's sentence violated the Sixth and Fourteenth Amendments because a judge, rather than a jury, determined McGraw's status as a persistent violent felony offender. On May 8, 2007, the Appellate Division unanimously affirmed the conviction. People v. McGraw, 836 N.Y.S.2d 35 (1st Dep't 2007). The New York Court of Appeals denied leave to appeal on August 22, 2007. People v. McGraw, 9 N.Y.3d 878 (2007).
On August 18, 2008, McGraw moved pro se pursuant to N.Y. Crim. Proc. Law § 440.10 to vacate his conviction on the ground that he received ineffective assistance of counsel because: (1) his first lawyer, Apfelbaum, failed to request a hearing pursuant to Dunaway v. New York, 442 U.S. 200 (1979), to determine whether there was probable cause for McGraw's arrest; and (2) his second lawyer, Martin, failed to pursue the Batson claim raised during the initial round of jury selection at the second trial. On February 11, 2009, the trial court denied McGraw's motion on procedural grounds pursuant to § 440.10(2)(c), reasoning that McGraw's claims were not raised as part of his appeal to the Appellate Division. In addition, the trial court noted that McGraw had not met the due diligence standard pursuant to § 440.10(3)(a) because he waited three years to bring his motion and offered no explanation for the delay. The Appellate Division denied McGraw's application for leave to appeal the trial court's decision on July 28, 2009.
McGraw filed this pro se petition on October 7, 2009, challenging his conviction on six grounds: (1) that his sentence violates the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 566 (2000), because a judge, rather than a jury, determined his status as a persistent violent felony offender; (2) that several eyewitnesses were improperly permitted to bolster their in-court identifications through testimony concerning prior identifications; (3) that the conviction was against the weight of the evidence; (4) that his first attorney, Apfelbaum, provided ineffective assistance because he failed to request a Dunaway hearing; (5) that his second attorney, Martin, was ineffective because he failed to pursue a Batson claim during jury selection; and (6) that the prosecution improperly introduced, through the testimony of Apfelbaum, evidence that McGraw initially gave an alibi inconsistent with the alibi that he presented at trial.
On June 4, 2010, the respondent filed its opposition to McGraw's habeas petition. McGraw submitted his reply on July 23. On April 27, 2011, Magistrate Judge Maas filed his Report. The respondent argued in its opposition that many of McGraw's claims are barred by threshold issues of exhaustion or procedural default; the Report does not address these arguments, but instead examines the merits of all claims raised by McGraw and recommends that the petition be denied. By Order of May 18, McGraw was granted an extension of time to file objections to June 17. McGraw's objections were received on June 24.
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (citation omitted). De novo review is required before a district court can adopt those portions of a report to which a petitioner has objected. 28 U.S.C. § 636(b)(1)(C).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, modified the standard under which federal courts review § 2254 petitions where the state court has reached the merits of the federal claim. Habeas relief may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §§ 2254(d)(1), (d)(2). State court factual findings "shall be ...