The opinion of the court was delivered by: Block, Senior District Judge:
Petitioner, George Philips, was convicted of several sex offenses by a Queens County jury and pleaded guilty to similar charges in Nassau County. On May 23, 2011, the Court issued a memorandum and order ("M&O") denying his two petitions for writs of habeas corpus under 28 U.S.C. § 2254. Now proceeding pro se, he moves to "reconsider and vacate" the M&O pursuant to Federal Rules of Civil Procedure 59(e) and 60(b).*fn1 For the following reasons, the motions are denied.
Philips's submission is a page-by-page critique of the Court's M&O. The first 9 pages are devoted to perceived errors and omissions in Part I of the M&O. Rather than address each individually, the Court need only point out that matters presented in that section were background only and not part of the Court's legal analysis. Since errors in Part I-if any there were-did not affect the disposition of Philips's claims, they are not grounds for reconsideration. Accordingly, the Court proceeds to the challenges to the substance of the M&O.
A. Fourth Amendment Challenges (Claims 1-3)
The Court held that Philips's first three claims were barred by Stone v. Powell, 428 U.S. 465 (1976). See M&O at 13. Philips responds that the Queens County suppression judge was biased because he "relied on the direct testimony of detectives instead of their testimony on cross-examination." Mot. for Reconsideration at 10 (emphasis omitted). The record reflects that the judge considered all of the testimony; that he chose to resolve inconsistencies against Philips does not demonstrate bias. In any event, Philips does not offer any evidence of bias in the appellate court that reviewed and upheld the denial of Philips's Fourth Amendment challenges.
B. DNA Evidence (Claim 4)
The Court held that Philips had not established that admission of DNA evidence against him was contrary to, or 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). Philips argues, at length, that this claim was preserved. That is irrelevant inasmuch as the Court resolved the claim on the merits. See M&O at 15 ("The Court need not address Philips's argument that it should disregard the procedural bar as an 'exorbitant' application of New York's preservation rules because his challenge to the DNA evidence fails on the merits.").
Philips next argues that the Court erred in considering "only" Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), in connection with his challenge to the DNA evidence. However, the only other case he offers as representing clearly established Supreme Court law at the time his conviction became final is Crawford v. Washington, 541 U.S. 36 (2004). Although the Court did not cite Crawford, a necessary implication of its holding that the applicability of the Confrontation Clause to lab test results was not clearly established until Melendez-Diaz was decided in 2009 is that the principle was not clearly established at the time Crawford was decided in 2004. Therefore, the admission of the DNA evidence was not contrary to, or an unreasonable application of, Crawford.
Finally, Philips challenges that Court's conclusion, mentioned above, that Melendez-Diaz announced a new rule of law that does not apply to convictions-like Philips's-that became final before 2009. However, he does not present any overlooked facts or intervening law that alters the Court's conclusion to follow the weight of authority on that issue in the absence of any Supreme Court or Second Circuit authority. See M&O at 14 (citing Likely v. Ruane, 642 F.3d 99 (1st Cir. 1999), Watson v. Artus, 2010 WL 5060861 (S.D.N.Y. July 22, 2010), and Vega v. Walsh, 2010 WL 2265043 (E.D.N.Y. May 28, 2010).
C. Prosecutorial Misconduct (Claim 5)
With respect to Philips's challenges to the Queens prosecutor's closing summation, the Court held that they were procedurally barred and, in the alternative, that they did not demonstrate that the Appellate Division's affirmance was contrary to, or an unreasonable application of, Supreme Court precedent. See M&O at 15-16 & n.8. Philips challenges both holdings in his motion for reconsideration, but the Court need only address the latter. Philips focuses on the Queens prosecutor's conceded "lies" during summations, but there is no evidence that the jury ignored its duty to determine the facts based on the evidence, and not on alleged misstatements of the record by counsel.
With respect to Philips's Brady claims, he accuses the court of limiting his claims to the 911 call by Gerald Lavin. Regardless of the number of Brady violations Philips intended to assert, they were all waived (with respect to the Nassau County case) by his guilty plea. See M&O at 16. In reaching that conclusion, the Appellate Division applied state waiver law, and Philips has not persuaded the Court that the Constitution compels a different result.
Philips argues that the Brady violations were also relevant to the Queens case. Be that as it may, the Court is at a loss to find those claims asserted to either an appellate brief or § 440.10 motion addressed to the Queens convictions. Therefore, there ...