The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Terrence Slater ("Slater" or "Petitioner") proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated as the result of a judgment on August 14, 2007, in Ontario County Court of New York State, following a jury trial convicting him of Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law ("P.L.") § 220.39(1)), Criminal Possession of a Controlled Substance in the Third Degree (P.L. § 220.16(1)), and Criminal Possession of a Controlled Substance in the Fourth Degree (P.L. § 220.09(1)).
II. Factual Background and Procedural History
The convictions here at issue stem from Petitioner's sale of cocaine to a confidential informant for the Geneva Police Department on October 5, 2006. Also involved in the sale were Petitioner's acquaintances, Tawyna Allen ("Allen") and Patrick Ray ("Ray"). All three were arrested when the police raided Allen's apartment. Petitioner and Ray were charged separately with the same three crimes, and their cases were later consolidated for trial.
Allen pled guilty on April 24, 2007, to third degree criminal sale of a controlled substance, third degree criminal possession of a controlled substance, and fourth degree criminal possession of a controlled substance. She received five years of incarceration plus three years of post-release supervision.
On June 12, 2007, Petitioner and Ray proceeded to trial. A summary of the pertinent trial testimony follows.
1. The Prosecution's Case
Bernard Thomas ("Thomas"), a cocaine addict and police informant, encountered Allen at a drugstore on October 5, 2006, in Geneva, New York. Allen whispered into Thomas's ear, "Uncle Bernie, I got product[,]" meaning that she had drugs. She introduced Thomas to Petitioner and told Thomas that Petitioner could get drugs for him. T.344.
Later that night, Thomas went to Allen's apartment where Ray and Petitioner also were present. T.346-48. Petitioner pulled out a bag of crack cocaine from inside a chair, and from the couch, Ray pulled out a bag of crack cocaine wrapped up like a softball.
T.351. Petitioner and Ray asked if Thomas wanted to buy these drugs. They told him that if he knew other people who wanted drugs, he should let them know they would be selling out of Allen's apartment. Petitioner and Ray also told Thomas that if he brought new customers, they would give him free drugs in exchange. T.352.
After Thomas left Allen's apartment, he called the Geneva Police Department and told Detective Brian Choffin ("Choffin") of his meeting with Petitioner, Ray, and Allen. T.258-60, 354. Thomas met with Choffin and other police officers on Beacon Street, about a block from Allen's apartment, where the police searched Thomas, provided him with $50 of pre-recorded money, and placed a wire-transmitting device under his clothes. T.355, 358-60.
The next day, Allen called Thomas in the afternoon and told him that if he wanted to purchase crack he needed to come to her apartment before she and her friends left for the evening. T.354. When Thomas (wearing the wire-transmitter) arrived at Allen's apartment, he asked to buy $50 worth of crack cocaine, and gave $50 to Ray. T.358. Petitioner and Ray then went into the bathroom and one of them said that they would prepare a special bag of crack for Thomas. After Petitioner and Ray returned from the bathroom, one of them gave Thomas a bag containing four or five cellophane bags of crack. T.360.
Thomas left the apartment and met with Choffin and several other police officers, and turned over the drugs that he had purchased. The police searched Thomas and gave him $20 for his services. T.264, 361-62. Thomas also provided the police with a signed affidavit regarding his drug purchase which Choffin brought, along with a search warrant application, to a judge who issued a warrant authorizing a "no-knock" search of Allen's apartment and the individuals inside. T.270.
Later that day, Choffin and a team of officers rammed in the door to Allen's apartment where Allen, Petitioner, and Ray were present. T.392-93, 401-03, 444, 450. Petitioner and Ray attempted to flee by running into the bedroom, where they were apprehended.
T.275-76. Choffin recovered $20 of the prerecorded buy money from Ray's pants. T.281, 395. On a coffee table in the living room, the police found a glass plate with several rocks of cocaine on it, a razor blade, fifteen individually-wrapped pieces of cocaine, a box of sandwich bags, some zip-lock plastic bags and $241 in cash, $30 of which was pre-recorded buy money. T.298. The police also recovered nine individually-wrapped pieces of cocaine from a plate on the couch, a plastic bag containing 20 rocks of cocaine from the bedroom floor, and two individual rocks of cocaine from the floor outside the bedroom. T.295, 299, 301, 407-09.
A forensic chemist employed by the Monroe County Public Safety Laboratory testified that the substance recovered by the police during the execution of the search warrant was, in fact, cocaine.
Petitioner testified that he lived in Queens but had driven with Ray to Geneva on the afternoon of October 6, 2006, en route to visiting family in Rochester. T.504. Along the way, he lost contact with his family. Because Petitioner knew Allen in Geneva, they decided to stay with her until Petitioner could contact his cousin in Rochester. T.504-06, 516.
When Thomas arrived to Allen's apartment that day, Thomas and Allen went into the bathroom and closed the door. T.508. Petitioner could not hear anything. Thomas then left the apartment without a word. Petitioner was hungry, but there was no food in the refrigerator. Allen gave him money to buy food, and Petitioner gave Ray money to buy liquor. T.510. When Petitioner went into the bathroom to take a shower, he heard a booming sound and Allen scream. He ran into the bedroom, where he was arrested. At no point did he see any cocaine anywhere in the apartment. T.510-11.
3. The Verdict and Sentencing
On June 15, 2007, the jury returned a verdict finding Petitioner and Ray guilty of all charges in the indictment T.681-87. On August 14, 2007, the trial court sentenced Petitioner to determinate, concurrent prison terms of five years for the criminal sale conviction and three years for the fourth degree criminal possession count, to be followed by two years of post-release supervision, and a consecutive prison term of three years for the third degree criminal possession count, to be followed by two years of post-release supervision. S.20-21.
B. Post-Conviction Proceedings
Represented by new counsel, Slater appealed his conviction arguing that (1) the court improperly imposed consecutive sentences; (2) the court violated People v. Molineux, 168 N.Y. 264 (1901), by improperly permitting evidence of uncharged crimes that took place on the day before the crimes charged in this case;
(3) the court improperly refused to charge the jury that Allen's refusal to testify at trial under the Fifth Amendment should not create a negative inference against petitioner; and (4) Petitioner was improperly penalized for proceeding to trial since he received a sentence that was higher than the pre-trial plea offer. Petitioner filed a pro se supplemental brief arguing that (1) his trial counsel was ineffective because of a conflict with Petitioner; and (2) an affidavit by Allen purporting to exculpate Petitioner should have been offered into evidence under the declaration against penal interest exception to the hearsay rule.
The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction, and the New York Court of Appeals denied leave to appeal. People v. Slater, 61 A.D.3d 1328 (4th Dept.), lv. denied, 13 N.Y.3d 749 (2009).
Slater then pursued a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 arguing that (1) trial counsel was ineffective for failing to subpoena Allen to secure her attendance at trial, move to introduce Allen's affidavit under the declaration against penal interest exception, and request a bill of particulars; (2) the trial court failed to place its findings on the record regarding its order requiring Petitioner to wear a stun belt at trial; and (3) the trial ...