The opinion of the court was delivered by: John Gleeson, United States District Judge:
Derrick Hatcher, a prisoner incarcerated at Upstate Correctional Facility, petitions for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from a judgment of the New York State Supreme Court, Kings County. After a jury trial, Hatcher was convicted of first-degree attempted robbery and fourth-degree criminal weapon possession. Appearing pro se, Hatcher contends, among other things, that the evidence against him was insufficient and that the trial judge erred in his instructions to the jury. Oral argument, at which Hatcher appeared by videoconference, was heard on July 8, 2010. For the reasons set forth below, the petition is denied.*fn1
The evidence at trial established the following series of events. In late November 2006, Gilford Burry was walking on a street in Brooklyn when he came upon Hatcher. Hatcher offered to sell Burry cell phones, CD players, and a pair of Nike Air Jordans. Burry declined the offer.
Late on December 5, 2005, Burry finished work at the CVS store on 9th Street in Park Slope and took the A Train towards his home in Crown Heights. After getting off the subway, he went to the window of a bodega at the intersection of Nostrand Avenue and Atlantic Avenue, roughly a block away from where he had first encountered Hatcher, to buy some mints. According to Burry, just after he bought the mints, he felt a hard object in his lower back. When he turned around, he saw Hatcher holding a screwdriver. Hatcher said "give me some money, I need some money." Tr. 30-31.*fn2 Burry testified at trial that Hatcher made a jabbing motion with the screwdriver and said "you wanna feel this?" Tr. 34-35, 47.
Burry refused to comply with Hatcher's demand, saying "I don't want to fight with you, I want to go home, I'm tired." Tr. 34-35. Hatcher blocked Burry's path to a nearby phone box, and the two men continued arguing while several bystanders looked on. After a few minutes, Police Officer Robert Smith and his partner arrived at the scene. Smith, who testified at trial that he saw Hatcher holding an object as he approached the two men, arrested Hatcher and recovered a screwdriver from his front jacket pocket.
B. The Procedural History
On December 23, 2005, Hatcher was indicted by a King's County grand jury on charges of first-degree attempted robbery, third-degree attempted robbery, fourth-degree attempted grand larceny, attempted petit larceny, and criminal possession of a weapon in the fourth degree.
The trial began on October 16, 2006. The government called Burry and Smith to testify. At the conclusion of the prosecution case, the defense moved to dismiss the case "based on the fact that [the People] have not made out a prima facie case." Tr. 81. The judge denied the motion. The defense offered no case, but renewed its motion to dismiss on the ground that "they haven't made out a case beyond a reasonable doubt as a matter of law." Tr. 86. Again, the motion was denied.
At the close of evidence, the judge asked the parties whether either side had a specific request to charge. Hatcher's attorney replied "No." Tr. 82. After a brief discussion of the counts the jury would be asked to consider, the judge asked the lawyers whether they had "any other questions about the charge." Tr. 85. Hatcher's attorney raised no questions.
The judge charged the jury on the presumption of innocence in the following fashion:
Throughout these proceedings the defendant is presumed to be innocent. As a result, you must find him not guilty unless on the evidence presented at this trial today you conclude that the People have proven the defendant guilty beyond a reasonable doubt.
The defendant is not required to prove or to disprove anything. The burden of proof remains only and always upon the People. The People have the duty to prove the defendant guilty beyond a reasonable doubt. That means that before you can find the defendant guilty of any crime submitted to you today, you must be satisfied that the People have proven beyond a reasonable doubt every element of that crime and that the defendant is the person who committed that crime.
The burden of proof never shifts from the People to the defendant. If the People fail to satisfy their burden of proof, you must find the defendant not guilty. Conversely, if the People do not satisfy their burden of proof, you must find the defendant guilty.*fn3 Tr. 122-23.
In addition, the charge outlined the elements of all five crimes charged in the indictment. Twice, the judge made mistakes as to the names of the offenses. First, when instructing the jury on attempted robbery in the third degree, the judge referred once to robbery in the fourth degree, a non-existent crime under New York law. Tr. 132. Second, in the course of instructing the jury on attempted grand larceny in the fourth degree, the judge referred at one point to grand larceny in the first degree. Tr. 134. Hatcher's attorney did not call the court's attention to these errors.
On October 17, 2006, the jury found Hatcher guilty of attempted robbery in the first degree and criminal possession of a weapon in the fourth degree. It was therefore unnecessary for the jury to decide whether Hatcher was guilty of third-degree attempted robbery or fourth-degree attempted grand larceny.
The parties returned for sentencing on November 6, 2006. At the outset of the sentencing proceedings, Hatcher's counsel noted that he had not moved to set aside the verdict at the end of the trial, and, without elaboration, asked the judge for that form of relief "for the record." S. 3. The motion was denied. Justice Heffernan adjudicated Hatcher a persistent violent felony offender and sentenced him to the minimum punishment: concurrent prison terms of 16 years to life for the attempted robbery conviction and one year for the weapon ...