The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Petitioner Rasheid K. Lott ("Petitioner"), through counsel, 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 September 25, 2006, in New York State, Supreme Court, Erie County (Penny M. Wolfgang, J.), convicting him, after a jury trial, of attempted Murder in the Second Degree (N.Y. Penal Law ("Penal Law") §§ 110.00, 125.25(1);
20.00), Assault in the First Degree (Penal Law § 120.10(1), 20.00), Kidnaping in the Second Degree (Penal Law §§ 135.20, 20.00), Criminal Use of a Firearm in the First Degree (Penal Law § 265.09(1), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03),*fn1 and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02(4)).
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
A. The Events of December 20, 1998
On December 20, 1998, Andre Banks ("Banks" or "the victim") arranged to go to Daron Baldon's ("Baldon") home at 286 Chelsea Place in the City of Buffalo, New York, to do some electrical work. Trial Trans. [T.T.] 296. Baldon and Petitioner picked Banks up in Baldon's vehicle. T.T. 298. Banks was a friend of Petitioner and Baldon, and had known both men for many years. T.T. 290-292. When they arrived at Baldon's home, Banks went to the front living room where a set of weights was located, and began to lift them. T.T. 299. After Banks finished lifting the weights, Baldon asked Banks if he wanted to buy a pair of Cartier-brand eyeglasses. T.T. 302. As Banks tried them on, Baldon sprayed Banks in the face with mace. T.T. 302-303. A fight ensued between Banks and Baldon for approximately four to five minutes. T.T. 303. Baldon then asked Petitioner, who was sitting on the couch, if he was going to help, which he did. T.T. 303-304, 326. According to Banks, "[i]t was two against one, [he] was just fighting for [his] life." T.T. 304. As the three men fought, Baldon put a handcuff on one of Banks' wrists and ordered him to sit down. T.T. 305. Both Baldon and Petitioner displayed pistols. T.T. 305. Baldon's gun was chrome, and Petitioner's gun was black. T.T. 305-306. Baldon then ordered Banks to put on the other handcuff. T.T. 306. Banks feared for his life. T.T. 307. Baldon told Banks to "run [his] shit," which Banks understood to mean that he should empty his pockets. T.T. 309. Banks pretended to put the other handcuff on his wrist and then attempted, unsuccessfully, to jump out a first floor window of the home. T.T. 306, 309-310. Banks tried successfully a second time. Banks crashed through the window and landed on a truck that was parked in the driveway. T.T. 306, 311-313. Banks slid down onto the ground off the truck. While he was on the ground, Banks heard numerous gunshots, which sounded different from each other. T.T. 314, 315-316. Banks was shot six times. T.T. 315. Banks then crawled away from the truck and to a house next door to avoid being shot again. T.T. 316-317. On cross-examination, Banks testified that he saw Baldon and Petitioner at the window before he escaped. T.T. 384-385, 392.
A short time later, police arrived at the scene and Banks told Officer Michael Brown of the Buffalo Police Department ("BPD") that he had been shot by Baldon and Petitioner. T.T. 474. Banks was taken to the hospital. While he was there, he made statements to Detective March Stambach of the BPD in which he described the events that had occurred at Baldon's home and identified Baldon and Petitioner as the individuals who had shot him. T.T. 424. He also told Detective Stambach that Petitioner had a .22 caliber gun and Baldon had a .45 caliber gun. T.T. 425. Later, police recovered four fired cartridge casings to a .22 caliber gun from the crime scene. T.T. 447. A handcuff box, one pair of silver handcuffs, a chemical spray box, a handcuff key, and one .45 caliber magazine with five live rounds of .45 caliber ammunition were also recovered by police from inside 286 Chelsea Place. T.T. 415-417. A bullet from a .22 caliber gun was also recovered from the victim's abdominal cavity. T.T. 448-450, 501. Dr. William H. Flynn, Jr. testified that he treated Banks at Erie County Medical Center on December 20, 1998. Dr. Flynn testified that two of the victim's wounds were life-threatening and required immediate emergency medical intervention to save his life. T.T. 495-498.
B. Petitioner's First Trial
Under Indictment No. 99-0678-001, Petitioner was charged, along with co-defendant Baldon, with Attempted Murder in the Second Degree (Penal Law §§ 110.00, 20.00, 125.25(1)), Assault in the First Degree (Penal Law §§ 20.00, 120.10(1)), Kidnaping in the Second Degree (Penal Law §§ 20.00, 135.20), and Attempted Robbery in the First Degree (Penal Law §§ 110.00, 20.00, 160.15(2)). Each defendant was also charged separately with Criminal Use of a Firearm in the First Degree (Penal Law § 265.09(1)(a)), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03), and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02). Petitioner was tried separately from co-defendant Baldon, and was found guilty, after a jury trial, of all charges, except the attempted robbery count. See Erie County Ind. No. 99-0678-001, dated April 15, 1999 at Resp't Ex. E.
Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department, alleging deprivation of his right to counsel. The Appellate Division, Fourth Department reversed his conviction and ordered a new trial. The appellate court determined that a reasonable probability existed that the deprivation of counsel during pre-trial proceedings resulted in Petitioner's conviction and therefore ordered that he be restored to his status post-indictment. People v. Lott, 23 A.D.3d 1088 (4th Dep't 2005).
Subsequently, Petitioner was retried on the entire indictment, including the attempted robbery charge for which he had been acquitted at his first trial. The results of the new trial were the same as the earlier trial, which resulted in Petitioner's conviction of all counts of the indictment, except the attempted robbery count. T.T. 669-670.
On September 25, 2006, Petitioner was sentenced as a persistent violent felony offender to concurrent indeterminate terms of twenty-five years to life for each ...