The opinion of the court was delivered by: J. Paul Oetken, District Judge:
On September 20, 2006, Petitioner Thomas Witt ("Petitioner") was convicted after a jury trial of Assault in the Second Degree, a violation of New York Penal Law (the "Penal Law") § 120.05(2). The New York State Supreme Court sentenced Petitioner to a term of seven years with three years of post-release supervision. On November 22, 2010, Petitioner, proceeding pro se, filed the instant petition (Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, Dkt. No. 1 ("Petition")) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254"), on the grounds that: (1) the evidence was legally insufficient to support the conviction for Assault in the Second Degree; (2) it was error that the grand and petit juries were not informed that the witness against Petitioner was an accomplice as defined by New York Criminal Procedural Law ("N.Y. C.P.L.") § 60.22(2)(b); and (3) the sentence was harsh and excessive.
For the reasons set forth below, the Court denies Petitioner's habeas corpus petition.
According to the testimony presented at trial, Witt solicited sex from a female prostitute on March 14, 2006. (Trial Transcript, Dkt. No. 7 ("Trial Tr."), at 339, August 21, 2006.) The two traveled to the roof of a building where Witt demanded sex without payment. (Id.) When the woman refused, Witt began punching and beating her. (Id. at 340.) Witt then grabbed the victim's head and banged it against the side of the door. (Id.) It was shown at trial that the victim suffered multiple contusions, scratches, a bump on the back of her head, and a swollen eye. (Id. at 344-45, 347-48.) The victim testified at trial that the injury to the back of her head was caused by Witt's banging her head against the right edge of the doorway to the roof's landing, which was made of concrete or brick. (Id. at 347-48.)
The victim testified that, while Witt was beating her, and with his hand grasping her throat, he demanded money. (Id. at 340.) In response to the victim's insisting that she did not have any money, Witt "started hitting [her] harder and . . . started using both hands." (Id.) At trial, the victim testified that she was unaware that she had two dollars in her pocket when Witt took it from her. (Id.)
Petitioner was charged with one count of Robbery in the Second Degree, in violation of Penal Law § 160.10(2)(a), and one count of Assault in the Second Degree, in violation of Penal Law § 120.05(2).
Petitioner's trial was held on August 22, 2006. The Government presented testimony previously given by Petitioner on March 21, 2006. (Trial Tr. at 521-43.) The trial court found that Petitioner was dishonest when he claimed no involvement in the assault. (See Trial Tr. at 679-80; Sentence Transcript ("Sentence Tr."), appended to Trial Tr. at Dkt. No. 7, at 17-18 ("Mr. Witt tells such a story, at such a time, as he thinks will benefit him.").) In the March 21 testimony, Petitioner asserted that a man he knew from the neighborhood had asked him where he could find a prostitute. After taking the man to the prostitute, Petitioner asserted that he went to the back of the building to smoke crack cocaine and did not know what transpired in the building. (Trial Tr.at 526.) The evidence presented at trial directly contradicted these statements. (Id. at 331-520.) Petitioner did not call any witnesses at trial or present any evidence at trial. (Trial Tr.)
The jury convicted Petitioner of Assault in the Second Degree for causing physical injury to the victim by means of banging her head against a concrete or brick doorway. (Id. at 679-80.) The jury acquitted Petitioner of Robbery in the Second Degree. (Id.) The court sentenced him to a determinate prison term of seven years to be followed by a three-year term of post-release supervision. (Sentence Tr. at 19-20.)
B. Petitioner's Post-Conviction Appeal
On appeal in the New York Supreme Court Appellate Division, First Judicial Department, Petitioner argued that: (1) the evidence was insufficient to support the jury's verdict because the only evidence of the alleged injury suffered as a result of a dangerous instrument came from the witness's testimony unsupported by medical evidence; and (2) the imposed sentence was excessive given the discrepancy between the pretrial offer of a two-year sentence and Petitioner's serious psychiatric problems. (Id. at 12.) On November 18, 2008, the Appellate Division affirmed the judgment of conviction against Petitioner. Witt, 56 A.D.3d at 324.
Petitioner sought leave to appeal to the New York Court of Appeals, raising both of the arguments he made to the Appellate Division. The State opposed that application. (See Declaration in Opposition, Dkt. No. 8 ("Decl. in Opp."), Ex. E.) On January 16, 2009, Associate Judge Graffeo of the New York State Court of Appeals summarily denied Petitioner's application for leave to appeal. People v. Witt, 11 N.Y.3d 931 (2009).
Petitioner then filed with the state trial court a pro se motion, dated August 25, 2009, to vacate the judgment of conviction pursuant to N.Y. C.P.L. § 440.10. (Decl. in Opp., Ex. G.) Petitioner argued that the judgment against him should be vacated because neither the grand nor petit jury was charged that the testifying witness was an accomplice, making corroboration necessary under New York law for her testimonial statements. (Id.) Petitioner's argument was that, because the victim was a prostitute and Petitioner was attempting to obtain sexual services when the assault occurred, the victim was an accomplice as a matter of law. The court found that this argument had not been properly preserved at trial. On January 13, 2010, the New York County Supreme Court issued a summary order denying Petitioner's motion for re-argument. (Id., Exs. J, H.)
On January 26, 2010, Petitioner sought leave to appeal the denial of his § 440.10 motion to the Appellate Division, First Department. (Id., Ex. K.) The State opposed that application. On June 3, 2010, Justice DeGrasse of the Appellate Division denied Petitioner leave to appeal. (Id., Ex. M.)
On November 22, 2010, Petitioner filed the instant petition for a writ of habeas corpus, pursuant to Section 2254. Petitioner raises three grounds for habeas relief based on alleged errors by the State and the trial court. Petitioner argues (1) that the evidence was insufficient to support the jury's verdict; (2) that it was error for the grand and petit juries not to have been instructed that the witness against him was an accomplice as a matter of law, and that her testimony therefore required corroboration; and (3) that the imposed sentence was excessive.
The petition was filed in a timely manner. With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") on April 24, 1996, Congress set a one-year statute of limitations for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to a state court conviction. See 28 U.S.C. § 2244(d)(1). A judgment of conviction becomes final under AEDPA at the conclusion of the ninety-day period during which the petitioner could have sought certiorari review in the United States Supreme Court. Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). On January 16, 2009, Associate Judge Graffeo of the New York Court of Appeals denied Petitioner's application for leave to appeal. Witt, 11 N.Y.3d 931. Pursuant to AEDPA, Petitioner's conviction became final ninety days later on April 16, 2009. Petitioner then had one year from April 16, 2009 to file his petition for habeas relief. See 28 U.S.C. § 2244(d)(1).
The AEDPA limitations period is tolled with the proper filing of an application for state post-conviction relief. See 28 U.S.C. § 2244(d)(2); Smith v. McGinnis, 208 F.3d 13, 17-18 (2d Cir. 2000) (holding that one-year limitations period is suspended while properly filed applications for relief are pending in state court). In the instant case, Petitioner filed a pro se motion to vacate the judgment of conviction pursuant to N.Y. C.P.L. § 440.10 on August 25, 2009.*fn1 That application was pending from August 25, 2009 until the Appellate Division denied Petitioner leave to appeal on June 3, 2010, at which point further appellate review was unavailable.*fn2 As of June 3, 2010, Petitioner had 234 days, or until January 23, 2011, to file his petition for habeas corpus. Petitioner filed his petition for habeas relief within the limitations period on November 22, 2010.
A. Habeas Corpus in Federal Courts
A habeas petition is not a means to re-litigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 400-01 (1993). A prisoner seeking habeas relief is required under Section 2254 to show by a preponderance of the evidence that he is being held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Thus, the burden of proof is placed on a petitioner seeking relief. Jones v. Vacco, 126 F.3d 408, 415 (1997). An intermediate appellate court's denial of a claim based upon a state procedural bar and in the alternative on the merits creates an independent bar to habeas review, precluding a federal court from reaching the merits on the same claim. See, e.g., Brown v. Perlman, No. 07 Civ. 8672, 2008 U.S. Dist. LEXIS 37546, at *36-60 (S.D.N.Y. May 8, 2008).
A habeas court must defer to the assessments of the strength of the evidence and credibility of the witnesses that were made by the jury and may not substitute its own view of the evidence in their place. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). However, if a federal court is convinced that a prisoner's custody has violated the Constitution then "that independent judgment should prevail." Williams v. Taylor, 529 U.S. 362, 389 (2000).
According to AEDPA, a petitioner may obtain habeas relief only by showing that the state court decision (1) was "contrary to," or (2) 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). Section 2254(d)(1) applies only "with respect to claims adjudicated on the merits in state court." Williams, 529 U.S. at 412. The Second Circuit defines "adjudicated on the merits" to mean "a decision finally resolving the parties' claims, with res judicata effect, that is ...