The opinion of the court was delivered by: Katherine B. Forrest, District Judge:
MEMORANDUM OPINION AND ORDER
Petitioner Emmanuel Pierre ("petitioner") filed a timely pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 15, 2008 (the "petition"). A jury in the Supreme Court of the State of New York convicted petitioner of one count of Murder in the Second Degree (N.Y. Penal Law § 125.25). On that conviction, petitioner was sentenced to a term of imprisonment of twenty-five years to life. The Appellate Division, First Department unanimously affirmed the conviction on June 21, 2007, and the New York Court of Appeals subsequently denied petitioner leave to appeal. People v.
Pierre, 838 N.Y.S.2d 546 (App. Div. 2007), lv. denied, 842 N.Y.S.2d 792 (2007).
Petitioner challenges his conviction on the same five grounds he previously raised in the state court below: (1) the verdict was against the weight of the evidence; (2) there was no reasonable view of the evidence to support the trial court's charge to the jury that petitioner could also be convicted of committing the crime as an accomplice of his friend Joshua Cayenne; (3) the trial court improperly precluded defense counsel from eliciting exculpatory evidence; (4) the trial court admitted into evidence hearsay testimony regarding computer "instant messages" and telephone voice mail; and (5) the sentence was excessive. (See generally Dkt. No. 1.)
On April 15, 2009, this Court allowed petitioner to amend his petition in order to assert an ineffective assistance of counsel claim on the grounds that his trial counsel failed to
(i) properly investigate petitioner's claim for actual innocence; and (ii) object to the trial court's exclusion of statements from two unavailable witnesses. See Pierre v. Ercole, 607 F. Supp. 2d 605 (S.D.N.Y. 2009).
For the reasons set forth below, the petition is DENIED.
I. FACTUAL BACKGROUND*fn1
In January 2002, petitioner found out that Sandra Bonaventure, with whom petitioner was romantically involved, was pregnant with his child. Petitioner entreated her to abort the child, but she resisted, and his entreaties became threats.
After the school year ended, on June 19, 2002, Ms. Bonaventure came to visit petitioner at his home in Brooklyn to discuss her pregnancy. Evidence shows that Ms. Bonaventure took a Metro North train, and then the subway, to the Utica Avenue station in Brooklyn, arriving in the early morning on June 20. Telephone records show that she communicated by phone call and text message with petitioner during her trip to Brooklyn, the last such communication taking place around 2:50 a.m. Thereafter, petitioner murdered Ms. Bonaventure. An autopsy revealed that Ms. Bonaventure was about seven months pregnant and that her cause of death was asphyxiation.
Sometime between 3:30 and 4:00 a.m. the morning of June 20, petitioner drove the victim's body to the home of his friend, Joshua Cayenne, whom he had told about Ms. Bonaventure's pregnancy and her refusal to have an abortion. Petitioner and Cayenne then drove into Manhattan and deposited the body in a deserted section of a far-west midtown block. Cayenne took Ms. Bonaventure's credit card which he found lying in the car.
A homeless man found Ms. Bonaventure's body five days later and alerted the police. The police traced Ms. Bonaventure's credit card to Cayenne and arrested him, upon which Cayenne admitted to his role in aiding petitioner to dispose of the victim's body. The police arrested petitioner on April 15, 2003.
The State argued during petitioner's trial that petitioner murdered Ms. Bonaventure to free himself from the obligations associated with supporting a baby. Cayenne testified that petitioner had arrived at his home in the early morning hours on June 20, 2002 with the body of the victim in the car, and that he assisted petitioner in disposing of the victim's body.
Petitioner's counsel argued that it was actually Cayenne who committed the murder and later named petitioner as the perpetrator to receive a drastically reduced sentence for his cooperation, namely a probationary sentence with no jail time.
On April 6, 2005, a jury in the Supreme Court of the State of New York found petitioner guilty of one count of Murder in the Second Degree.
Petitioner appealed his conviction based on the five grounds stated above. On June 21, 2007, the Appellate Division, First Department unanimously affirmed petitioner's conviction, and the New York Court of Appeals subsequently denied petitioner leave to appeal. Pierre, 838 N.Y.S.2d 546, lv. denied, 842 N.Y.S.2d 792.
As stated, the petition raises the same five grounds for relief that were ultimately denied by the First Department. Upon filing the petition, petitioner simultaneously requested a stay to exhaust his state court remedies. The Court denied the motion for a stay without prejudice, as the petition presented no unexhausted claims. See Pierre v. Ercole, 594 F. Supp. 2d 469 (S.D.N.Y. 2009).
Petitioner subsequently amended his petition on April 14, 2009 to add an ineffective assistance of counsel claim that he had been concurrently pursuing in the Supreme Court of the State of New York by way of a CPL § 440.10 motion. (Dkt. No. 4.) He claimed that his trial counsel provided ineffective assistance in failing to (1) advise petitioner of his right to waive trial by jury and opt for a bench trial, (2) investigate properly petitioner's claim for actual innocence, and (3) object to the court's exclusion of the statements of two unavailable witnesses.
This Court granted in part petitioner's motion to amend, allowing the amendment with respect to his second and third ineffective-assistance claims. The Court also construed petitioner's motion to amend to include a renewal of his motion for a stay, and stayed the federal proceeding pending resolution of petitioner's CPL § 440.10 motion and exhaustion of his state remedies. See Pierre, 607 F. Supp. 2d at 605. The Supreme Court of the State of New York ultimately rejected those ineffective counsel claims when it denied petitioner's CPL § 440.10 motion. People v. Pierre, No. 1746-02 (Apr. 9, 2009), lv. denied, No. 1746-02 (N.Y. App. Div. June 30, 2009). The Court lifted the stay on September 10, 2009. (Dkt. No. 5.)
On February 18, 2010, petitioner sought leave to amend his petition for the second time in order to add three new claims that he had not directly pursued in state court: (1) that respondent misstated the cell phone record evidence it cited at trial; (2) that his trial counsel was ineffective for failure to object to the exclusion of certain testimony; and (3) that his trial counsel was ineffective for failure to take certain measurements of a car and a driveway. (Dkt. No. 25.) On the first issue, the Court concluded that petitioner did not need to further amend his petition and was free to raise the issue in his reply papers. On the second issue, the Court noted that it had already granted petitioner leave to amend on that point. On the third issue, the Court denied petitioner's leave to amend on the "measurement evidence" issue because he had failed to present the issue to the state courts, barring its consideration in the federal proceeding. See Pierre v. Ercole, 08 Civ. 10849, 2010 WL 1375141, at *5-6 (S.D.N.Y. Mar. 26, 2010). Insofar as petitioner was implicitly seeking to stay the case, this Court also refused to stay petitioner's case for a second time in order to permit him to exhaust the "measurement evidence" theory because petitioner did not show good cause for failing to raise the issue on direct appeal or in his first CPL § 440.10 motion, despite having understood the need to exhaust the state court remedies in his first motion to amend. See id. at *4.
On April 2, 2010, petitioner moved this Court to reconsider its denial of his leave to amend with regard to the "measurement evidence" theory. (Dkt. No. 29.) On April 12, 2010, the Court deferred decision on that motion, instructing that it would address the motion when deciding the merits ...