The opinion of the court was delivered by: Mauskopf, United States District Judge.
Pending before this Court is Hector Frazier's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner Frazier ("petitioner") seeks relief from his conviction in the Supreme Court of the State of New York, Queens County for Robbery in the First Degree under New York Penal Law ("N.Y.P.L.") § 160.15. He was sentenced to twenty-two years of incarceration to be followed by five years of post-release supervision.
Petitioner asserts three grounds in support of his application: (1) denial of due process and violation of the prohibition against double jeopardy when sentencing judge did not inform petitioner of the post-release supervision portion of his sentence; (2) denial of due process through incorrectly sentencing petitioner as a persistent violent felony offender;*fn1 and (3) denial of constitutional rights through prosecutorial misconduct during the trial. (Pet. for Writ of Habeas Corpus ("Habeas Pet.") (Doc. No. 1) at 4, 6, 8.)
For the reasons set forth below, the petition is DENIED on all grounds.
On January 16, 2003, at approximately noon, John Yeamans was working as a chimney sweep on the roof of a house in Laurelton, Queens, when he noticed petitioner watching him from a car parked across the street. (Trial Tr. 216.) Ten to fifteen minutes later, when Yeamans descended from the roof and approached his work van parked nearby, petitioner drove away. (Id. 217.) A short time later, petitioner returned to the location of Yeamans' van by driving the wrong way on a one-way street. (Id.) Petitioner got out of his car and began to rummage around in the van. (Id. 217-18.) Petitioner approached Yeamans and asked him how much money he earned, and Yeamans replied that his income was not significant. (Id. 218.) Petitioner then pulled out a large handgun, demanded Yeamans' wallet, and threatened to kill Yeamans. (Id. 218-19.) Yeamans gave petitioner his wallet, which contained three hundred dollars cash, his driver's license, and two credit cards. (Id. 219.) Petitioner ordered Yeamans to lie down on the ground, but Yeamans jumped into the van. (Id. 220.) Petitioner pounded on the van door, yelling for Yeamans to get out. (Id.) Yeamans exited the van and backed away from petitioner. (Id.). He then threw his keys in the air and ran into a neighbor's backyard, while calling the police from his cell phone. (Id. 220, 222.)
When the police arrived, Yeamans recounted the incident, provided police with a description of petitioner, and indicated where petitioner had hit the van. (Id. 223-26.) The police were able to lift prints from the door, and those prints were matched to petitioner. (Id. 272, 279, 377-79.) On February 13, 2003, petitioner was arrested in connection to this robbery. (Id. 388.)
Petitioner was charged, by Queens County Indictment Number 501/03, with robbery in the first and second degrees (N.Y.P.L. §§ 160.15, 160.10[b]).
Petitioner proceeded to trial in the Supreme Court, Queens County (Aloise, J.). Yeamans testified and identified petitioner in court. The also prosecutor called William Umstead as an expert witness in fingerprinting and fingerprint analysis. (Id. 307.) At a recess taken during Umstead's testimony, petitioner's attorney observed the prosecutor conversing with Umstead at the witness stand. (Id. 331.) Petitioner's attorney moved for a mistrial as a result of this conversation. (Id. 332.) The court questioned the prosecutor and the witness as to the nature of their conversation. (Id. 331-32.) Umstead explained that they were talking about fingerprint comparison sheets, which the prosecutor had introduced into evidence. (Id. 332.) The fingerprint sheets showed blown-up images of the fingerprints taken from the van after the robbery and petitioner's fingerprints for the purposes of comparing the two images. (Id. 328.) The prosecutor further clarified that he was making sure he had provided petitioner's attorney with the fingerprint sheets being discussed. (Id. 333.) The court denied petitioner's motion for a mistrial. (Id. 332.)
On March 23, 2004, the jury convicted petitioner of Robbery in the First Degree. (Trial Tr. 484.)
At the sentencing, held on May 13, 2004, petitioner was adjudicated a second felony offender upon his admission to a 1997 conviction for Criminal Possession of Stolen Property in the fourth degree. (Sentencing Mins. at 3-4.) The trial court announced a sentence of twenty-two years of incarceration and concluded the proceedings. (Id. at 7.) However, a short time later, petitioner was returned to the courtroom because the sentencing court had realized it had forgotten to impose the mandatory term of post-release supervision. (Id.) The court then imposed a term of five years of post-release supervision to follow the imposed term of incarceration. (Id. at 8.) Petitioner is incarcerated pursuant to this judgment of conviction.
On appeal of his conviction to the Supreme Court of the State of New York, Appellate
Division, Second Department ("Appellate Division"), petitioner raised the following claims: (1) the prosecutor made improper remarks during his summation; and (2) petitioner's sentence was unduly harsh and excessive because the victim was not physically harmed and petitioner's prior convictions, only one of which was for a felony, were all for non-violent offenses. (Pet'r's App. Div. Br. at i.)
On August 25, 2005, petitioner filed a pro se supplemental brief. In the brief, dated February 23, 2006, petitioner raised the following claims: (1) the State failed to turn over alleged Rosario material; and (2) the trial court erred in failing to declare a mistrial or issue a curative instruction to the jury following prosecutor's conversation with a witness while the witness was still sworn in and on the stand. (Pet'r's App. Div. Supp. Pro Se Br. at 3.)
On December 19, 2006, the Appellate Division affirmed Petitioner's conviction and held that: (1) several of petitioner's complaints about the prosecutor's comments during summation were unpreserved for appellate review and that, in any event, any such errors were harmless due to overwhelming evidence of petitioner's guilt; (2) petitioner's sentence was not excessive; (3) petitioner's claim of alleged Rosario error was both unpreserved and without merit; and (4) "the remaining contentions raised in the supplemental pro se brief are without merit." People v. Frazier, 35 A.D.3d 759 (N.Y. App. Div. 2006).
Petitioner sought leave to appeal to the New York Court of Appeals, advancing all of the claims raised in the Appellate Division and adding a new claim, stating that he had not been informed of post-release supervision at the time of sentencing. At this time, the transcript of the sentencing minutes was incomplete and did not include the second call of the case, during which the post-release supervision was imposed. Thus, at this time, both parties and the state courts erroneously believed that the post-release supervision portion of the sentence had not been stated on the record. On April 12, 2007, his application was denied, with leave to renew within thirty days of the Court of Appeals decision in the then-pending case of People v. Louree, a case involving another post-release supervision issue. People v. Frazier, 8 N.Y.3d 946 (2007). On June 5, 2007, the Court of Appeals decided People v. Louree, 8 N.Y.3d 541 (2007). That same day, petitioner renewed his application of leave to appeal.
On July 19, 2007, the State moved in the Supreme Court, Queens County for an order directing that petitioner be resentenced for the purpose of clarifying the post-release supervision portion of his sentence. On September 21, 2007, the Court of Appeals granted petitioner's renewed application for permission to appeal with respect to his claim concerning the legality of ...