The opinion of the court was delivered by: Gershon, United States District Judge:
On May 8, 2001, petitioner Narval Narcissi was convicted, following trial by jury, of Criminal Possession of a Weapon in the Second Degree (New York Penal Law ("Penal Law") § 265.03(2)). Narcissi is serving a determinate term of imprisonment of 15 years to be followed by two and a half years of post-release supervision. Now before this court is Narcissi's writ of habeas corpus pursuant to 18 U.S.C. § 2254 challenging his conviction based upon ineffective assistance of appellate counsel. For the reasons set forth below, the petition is denied.
The evidence at trial established that petitioner, along with three other men, planned to commit a robbery. While planning the robbery in a car, petitioner shot one of his confederates, Hugh McCalla. Petitioner fled New York, ultimately arriving in Toronto, Ontario, where he was arrested on September 27, 1999 by Constable Bishop of the Toronto Police.
Petitioner was charged with two counts of Murder in the Second Degree (Penal Law § 125.25 (1), (2)); one count of Attempted Murder in the Second Degree (Penal Law §§ 110, 125.25 (1)); two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 (2)), one for a .357 Magnum and one for a .380 pistol; and two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02).
On October 15, 1999, during a conference before the Honorable Jeffrey Lebowitz of the Queens County Criminal Court, David Cohen, Esq., who was representing Narcissi, stated, "I just had an opportunity to speak to [Narcissi] and go over the complaint and charges, and he has indicated to me that he does not want to testify in front of the grand jury . . . ." (Prelim. Conference Tr. 3, Oct. 15, 1999.) The grand jury indicted Narcissi. On December 17, 1999, petitioner moved, pursuant to New York Criminal Procedure Law ("CPL") § 190.50(5)(a), to dismiss the indictment on the ground that he had been deprived of his statutory right to testify before the grand jury. On February 7, 2000, Judge Hanophy of the New York State Supreme Court, Queens County, issued an order directing a hearing to determine petitioner's § 190.50(5)(a) motion. Both petitioner and Cohen testified at the hearing. Narcissi testified that he told Cohen's secretary and left numerous messages for Cohen indicating that he wanted to testify before the grand jury. Cohen testified that he spoke to Narcissi about the consequences of testifying before the grand jury and that Narcissi decided not to testify. In his decision denying petitioner's motion, Judge Hanophy found "the testimony of Mr. David Cohen to be the trustworthy and credible version of the events as they occurred and [Narcissi's] testimony to be most incredible and unworthy of belief." (Mem. Den. Pet'r Mot., Mar. 31, 2000.)
Petitioner proceeded to trial before the Honorable Robert C. McGann and a jury.
At trial, the State's evidence showed that on April 29, 1999, Narcissi and three other men decided to rob a drug dealer. Narcissi was sitting in the back seat of a car behind the driver, Hugh McCalla. Gregory Hinds was in the front seat on the passenger's side of the car, and Sean Grant was in the back seat behind Hinds. The car was parked on the corner of Liberty Avenue and Farmers Boulevard in Queens, New York. While in the car, in order to facilitate the robbery, Grant borrowed a .380 pistol from Hinds and petitioner borrowed a .357 Magnum from McCalla. McCalla also had a knife, which he carried on his person at all times.
Petitioner testified that he was in the car for the purposes of planning and committing a robbery. Petitioner admitted that he possessed a .357 Magnum, which he borrowed from McCalla, and which he intended to use to commit the robbery. According to the petitioner, during the course of planning the robbery in the car, a dispute that he and Grant had previously had with McCalla and Hinds arose again. Suddenly, during the dispute, Grant shot Hinds in the back of the head and fled. Narcissi testified that he then observed McCalla bending down and making movements like he was searching for something in the front seat. Narcissi believed McCalla was looking for his knife; fearing for his life, Narcissi shot McCalla in the base of the rear of his skull.
In his instructions to the jurors before they retired to deliberate, Judge McGann informed the jury of all the statutory elements of all the charges, including the weapons possession charges. (Trial Tr. 737-742, 750.) Judge McGann also instructed the jury that the defense of justification was not applicable to the weapons possession charges. Id. Narcissi did not object to any of these instructions. During deliberations, the jury sent a note to Judge McGann asking for the definition of the crimes of Criminal Possession of a Weapon in the Second and Third Degrees. In response to the note, Judge McGann reiterated all the statutory elements of those crimes. The jury acquitted Narcissi of the murder and attempted murder counts, but convicted him of Criminal Possession of a Weapon in the Second Degree for possession of the .357 Magnum. On June 14, 2001, Narcissi was sentenced to 15 years' incarceration.*fn2
Narcissi appealed his judgment of conviction to the Appellate Division, Second Department, arguing that his sentence was excessive and should be reduced in the interest of justice. On August 4, 2003, the Appellate Division affirmed the sentence without opinion. People v. Narcissi, 307 A.D.2d 1076 (2d Dept. 2003). Petitioner did not seek leave to appeal to the New York Court of Appeals.
Petitioner then filed a motion to vacate the judgment of conviction, in the Supreme Court, Queens County, pursuant to CPL § 440.10. Petitioner argued that he had not received proper notice that Constable Bishop would testify at trial and that Bishop's testimony was false. In an order dated September 13, 2004, Judge McGann denied petitioner's motion as procedurally barred because his two claims were on the record and could have been raised on direct appeal and as substantively without merit because petitioner did not offer any basis upon which Bishop's testimony should have been excluded. (Order Den. Pet'r. Mot., Sept. 13, 2004.) Judge Spolzino denied petitioner's application for permission to appeal the September 13, 2004 order to the Appellate Division on February 10, 2005.
While his post conviction motion was pending in state court, Narcissi filed a federal habeas corpus petition. Narcissi v. Phillips, No. 04-CV-3220, Jul. 28, 2004. On August 30, 2004, this court dismissed that petition, without prejudice, for failure to exhaust all available state court remedies.
On February 17, 2005, petitioner sought a writ of error coram nobis from the Appellate Division, alleging ineffective assistance of appellate counsel. Narcissi argued that his appellate counsel was ineffective because appellate counsel failed to argue on direct appeal that the trial court erred by: (1) giving improper supplemental jury instructions as to Criminal Possession of a Weapon in the Second Degree; (2) permitting Constable Bishop to testify as to an inculpatory statement made by Narcissi; (3) allowing the prosecutor to amend the indictment to specify the type of weapon petitioner was charged with possessing; and (4) allowing the prosecutor to change his theory of the case with respect to petitioner's intended use of the gun. Petitioner's appellate counsel submitted an affidavit in response to the petition. In it, appellate counsel argued that he addressed all meritorious claims on appeal. Petitioner's motion was denied on June 27, 2005. People v. Narcissi, 19 A.D.3d 708 (2d Dep't 2005), lv. denied, 5 N.Y.3d 855 (2005).
Narcissi filed a second petition for a writ of habeas corpus, on November 26, 2005. Narcissi v. Connolly, No. 05-CV-5710, Nov. 26, 2005. Narcissi argued that he was denied effective assistance of appellate counsel. On January 3, 2006, this court denied Narcissi's second habeas petition as untimely. Id. Petitioner appealed the denial of his petition, and on July 25, 2006 the Court of Appeals for the Second Circuit issued a mandate vacating this court's order and remanding the case to this court to give Narcissi the opportunity to present arguments as to why his petition was not time-barred. Narcissi v. Ercole, No. 06-0707-PR, Feb. 14, 2006. Upon remand, this court determined that the additional evidence submitted by petitioner demonstrated that his petition was timely. Narcissi v. Connolly, No. 05-CV-5710, Nov. 26, 2005. On October 2, 2006 the court issued an order to show cause directing a response to the habeas petition.
On October 11, 2006, petitioner moved the Supreme Court, Queens County, pursuant to CPL § 440.20, to set aside his sentence, arguing that the Department of Corrections improperly added a term of five years' post-release supervision to his sentence that was neither ordered by the sentencing judge nor in his judgment and conviction. While his § 440.20 motion was pending, petitioner moved this court for, and respondent consented to, a stay of his federal habeas proceedings until the resolution of his CPL § 440.20 motion in ...