The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
In October of 1998, a New York State Supreme Court jury found petitioner Johnny Onega guilty of murder, robbery, and criminal possession of a weapon. Onega now petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2254. Onega challenges the trial court's (1) refusal to hold a hearing on his motion to suppress evidence recovered from his girlfriend's apartment; (2) alleged admission of a hearsay statement by the girlfriend, who never testified at trial; and (3) failure to sanction the prosecution for not disclosing a witness's pre-trial statements.
For the reasons set forth below, petitioner's claims are without merit and the petition is DISMISSED in its entirety.
In July of 1996, petitioner and Rafael Pena traveled to Washington D.C., where they sold $125,000 worth of cocaine. (See Opp. Aff. (Doc. No. 5) at 2.) On July 7, the two men returned to New York City in Pena's car. (Id.) While parked near Pena's house in the Bronx, petitioner shot Pena in the head at close range as he sat in the passenger seat, killing him instantly. (Id.; Trial Transcript (Doc. No. 11) (hereinafter "Tr.") at 264*fn1 .) Petitioner then stole the narcotics proceeds and hid them inside stereo speakers located in the apartment of his girlfriend, Yesenia Renoso. (Opp. Aff. at 2; Tr. at 265.)
Later that morning the police discovered Pena's body in the car, now parked near the Queens-Brooklyn border, about four blocks from Renoso's apartment. (Opp. Aff. at 2; Tr. at 195, 202.) Pena's wife provided the police with Renoso's name and telephone number. (Tr. at 200.) After questioning, Renoso consented to a search of her apartment, where the police recovered the money. (Opp. Aff. at 2.) On July 12, petitioner was arrested and confessed to the murder and theft. (Id.)
Petitioner was indicted on three counts of Murder in the Second Degree, two counts of Robbery in the First Degree, one count of Criminal Possession of a Weapon in the Third Degree, and one count of Tampering with a Witness. (Reply Br. (Doc. No. 10) at 3; Opp. Aff. at 2--3.) Petitioner pleaded not guilty, and moved to suppress the money recovered during the search of Renoso's apartment. (Opp. Aff. at 3.) The court denied the motion without a hearing, because petitioner lacked standing to contest the entry and search. (Id.)*fn2
Petitioner's jury trial was held in October of 1998, before the Honorable Justice Timothy Flaherty, Supreme Court, Queens County. (Id. at 4.) Petitioner was convicted of Murder in the Second Degree, Robbery in the First Degree, and Criminal Possession of a Weapon in the Second Degree. (Id.) The court sentenced petitioner to respective concurrent prison terms of twenty-five years to life, twelve and one-half to twenty-five years, and seven and one-half to fifteen years. (Id.)
Petitioner appealed his conviction, claiming that the trial court improperly refused to hold a hearing on his motion to suppress the money recovered from his girlfriend's apartment, improperly admitted a detective's hearsay testimony that Renoso told the detective the location of the money, and failed to sanction the prosecution for not disclosing prior statements by its witness Francisco Mendez, as required by People v. Rosario, 9 N.Y.2d 286, 173 N.E.2d 881 (1961). (Id. at 4--5.) On November 10, 2003, the Appellate Division, Second Department, affirmed petitioner's conviction, holding that the trial court properly denied petitioner's motion to suppress the money without a hearing and that petitioner's other claims were "either unpreserved or without merit." People v. Onega, 1 A.D.3d 465, 766 N.Y.S.2d 888 (App. Div. 2d Dep't 2003). On January 29, 2004, petitioner was denied leave to appeal to the New York Court of Appeals. People v. Onega, 1 N.Y.3d 599 (2004) (table).
On March 28, 2005, petitioner moved pro se under § 440.10 of the New York Criminal Procedure Law ("CPL") to vacate his conviction on the ground that his trial attorney provided ineffective assistance. (See Reply Br., Ex. 1 ("Pet'r's § 440 Mot.").) Petitioner alleged that his attorney never advised him of two plea offers, and later failed to inform him that he could plead to the indictment and ask for the minimum sentence. (See Reply Br.Ex. 3 ("Pet'r's § 440 Reply"), at 5; Reply Br. Ex. 4 ("Pet'r's Supp'l Amdt.").) The state court held a hearing at which petitioner, his trial attorney, and the prosecuting attorney all testified. (See Reply Br.Ex. 7 ("Section 440 Hr'g Mins.").) The court denied the motion, finding that no plea offers were extended to petitioner. (Reply Br. Ex. 8 ("Section 440 Hr'g Order").) On March 5, 2007, the Appellate Division denied petitioner's application for leave to appeal. (Reply Br.Ex. 10.)
Two weeks later, petitioner timely applied for a writ of habeas corpus. (Pet. (Doc. No. 1).) His habeas petition raises three claims, all based on the claims in his direct appeal. First, petitioner argues that the trial court violated his Fourth Amendment rights when it refused to hold a hearing on his motion to suppress the money recovered from Renoso's apartment. (Pet. at 6; Reply Br. at 18--21.) Second, petitioner argues that his right to a fair trial was violated when the trial court admitted a detective's hearsay testimony that Renoso, who never testified at trial, told the detective the location of the money. (Pet. at 7.) Third, petitioner claims that the trial court should have sanctioned the prosecution for not disclosing witness Francisco Mendez's pre-trial statements. (Id. at 9.)
On November 5, the Queens County District Attorney's Office filed an opposition on respondent's behalf, addressing these three claims. On February 19, 2008, petitioner replied with an affidavit and memorandum of law in support of the petition. The reply filing acknowledges that the March 19, 2007, petition only "raised three claims," and references the hearing, hearsay, and pre-trial statement matters. (Reply Br.at 4.) The filing then belatedly attempts to raise a fourth claim of ineffective assistance of counsel, based on the arguments made at petitioner's § 440.10 hearing. (Id. at 10--17.) Respondent has not addressed petitioner's attempt to add this claim.
I. AEDPA Standard of Review
Under the Anti--Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "resulted in a decision that was contrary to, or involved 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), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).
A state court decision is "contrary to" clearly established federal law if it contradicts a decision by the Supreme Court or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir. 2006) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The phrase "clearly established Federal law" limits the law governing a habeas petitioner's claims "to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 365); accord Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).
"The 'unreasonable application' standard is independent of the 'contrary to' standard . . . [and] means more than simply an 'erroneous' or 'incorrect' application" of federal law. Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005) (citing Williams, 529 U.S. at 410--11). A state court bases its decision on an "unreasonable application" of Supreme Court precedent if it correctly identifies the governing legal rule, but applies it in an unreasonable manner to the facts of a particular case. See Williams, 529 U.S. at 413. A federal habeas court does not ask whether the state court's application of the governing law was erroneous or incorrect, but, rather, whether it was "objectively unreasonable." Id. at 408--10; see also Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("This presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
II. Petitioner's Ineffective Assistance Claim
The Court initially addresses petitioner's attempt to raise a claim of ineffective assistance of counsel, ...