The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The petitioner, appearing pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking an Order vacating his judgment of conviction. After a jury trial in New York State Supreme Court, New York County, the petitioner was convicted of two counts of criminal sexual acts in the first degree, two counts of sexual abuse in the first degree, one count of robbery in the first degree, one count of attempted robbery in the first degree, and one count of assault in the second degree. He was sentenced as a second violent felony offender to an aggregate sentence of twenty-five years imprisonment. The judgment of conviction was entered on March 21, 2005. The conviction was affirmed on appeal. People v. Martin, 854 N.Y.S.2d 702 (App. Div. 2008). Leave to appeal to the Court of Appeals was denied. People v. Martin, 893 N.E.2d 451 (N.Y. 2008).
The petitioner argues in his petition before this Court that (a) the State failed to prove the petitioner's guilt beyond a reasonable doubt, (b) the trial judge deprived the petitioner of a fair trial by denigrating his trial counsel, (c) the petitioner's trial counsel failed to provide effective assistance, (d) the trial court abused its discretion in its Sandoval ruling and the prosecutor went beyond the ruling, thereby denying the petitioner a fair trial, (e) the State failed to prove the fifth count of assault in the second degree, and, (f) the court violated the petitioner's due process rights and his right to confront witnesses against him by prohibiting the defense counsel from asking certain questions of a witness under New York State's "rape shield" law.
The Court has received and reviewed the August 19, 2010 Report and Recommendation by Magistrate Judge John C. Francis IV, which recommends that the petition be denied. The Court has also received the petitioner's objections to the Report and Recommendation. The petitioner raises three objections to the Report and Recommendation. First, the petitioner argues that the testimony of the two victims was implausible and contradictory and that the prosecution therefore failed to prove the petitioner's guilt beyond a reasonable doubt. He argues that the Magistrate Judge erred in reaching a contrary conclusion. Second, the petitioner argues that the trial judge denigrated his trial counsel and thereby denied the petitioner due process, and that the Magistrate Judge erred in finding this argument without merit. Third, the petitioner argues that he was afforded ineffective assistance of trial counsel, and that the Magistrate Judge erred in rejecting this argument.
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), the Court has reviewed de novo the parts of the Magistrate Judge's disposition to which the petitioner has objected. For the reasons explained below and in the Magistrate Judge's thorough Report and Recommendation, the Court finds that the objections are unfounded, and the Court adopts the findings of Magistrate Judge Francis's Report and Recommendation.
A petitioner challenging the sufficiency of the evidence supporting the conviction must overcome a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (internal citations and quotation marks omitted). A reviewing court must view "the evidence in the light most favorable to the prosecution," and may only grant habeas relief if the petitioner has shown that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979); see also Garbutt v. Conway, 668 F.3d 79, 81 (2d Cir. 2012) (per curiam). In making this determination, a reviewing court may not "make its own subjective determination of guilt or innocence." Herrera v. Collins, 506 U.S. 390, 402 (1993) (quoting Jackson, 443 U.S. at 320 n. 13). To the contrary, the reviewing court must defer to the jury in making "assessments of the weight of the evidence or the credibility of witnesses" and construe "all possible inferences that may be drawn from the evidence" in the prosecution's favor. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); see also Williams v. Artus, 691 F. Supp. 2d 515, 527-28 (S.D.N.Y. 2010).*fn1
In his Report and Recommendation, Magistrate Judge Francis found that a rational trier of fact could have found the petitioner guilty of the offenses at issue beyond a reasonable doubt. The petitioner objects on the grounds that the testimony of the two victims was not credible. The petitioner also argues that the testimony of the two victims was mutually inconsistent and that parts of the testimony were inconsistent with prior statements to the police and before the grand jury.
The petitioner's objection is without merit. There was sufficient evidence before the jury to establish the petitioner's guilt beyond a reasonable doubt. As the Appellate Division found in affirming the defendant's conviction: "[t]he verdict was based on legally sufficient evidence . . . There is no basis for disturbing the jury's determination concerning credibility, including its acceptance of the testimony of the two victims and rejection of that of defendant." Martin, 854 N.Y.S.2d at 703. As Magistrate Judge Francis correctly noted, so long as the jury believes the sections of the testimony of witnesses that allege the defendant committed the necessary elements for each offense, it may find him guilty beyond a reasonable doubt regardless of whether other aspects of the testimony may be unreliable. (Report and Recommendation at 27)(citing United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994))("Where there are conflicts in the testimony, we must defer to the jury's resolution of [them].") With respect to the argument that the victims gave inconsistent testimony before the grand jury, and in statements to the police, inconsistencies in testimony are normally for the jury to resolve.
See, e.g., Quartararo v. Hanslmaier, 186 F.3d 91, 95, 96 (2d Cir. 1999) (citing Herrera v. Collins, 506 U.S. 390, 401 (1993) (federal habeas courts must not assume "the position of a thirteenth juror[;]" "inconsistencies were for the jury to resolve[,]" not the district court)). In this case, the petitioner has failed to show that he ever introduced at trial prior inconsistent statements before the grand jury. Similarly, the petitioner did not introduce a prior statement to police for one victim. (See Tr. At 88-89.) While a prior inconsistent statement to the police from the other victim was used on cross-examination of that witness (Tr. 326-28), the inconsistency did not undermine the sufficiency of the evidence against the petitioner. Accordingly, there is no merit to the petitioner's objection. For the reasons explained in detail in Magistrate Judge Francis's Report and Recommendation, the petitioner has not demonstrated that a rational trier of fact could not have found him guilty beyond a reasonable doubt of the offenses for which he was convicted.
The petitioner objects to the Magistrate Judge's rejection of his claim that the trial judge denigrated his trial counsel and thereby deprived him of his due process right to a fair trial. "[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky v. United States, 510 U.S. 540, 555 (1994). The reviewing court should not determine whether it feels "the trial judge's conduct left something to be desired," but rather whether the trial judge's conduct "so impressed the jury with the trial judge's partiality . . . that this became a factor in determining the defendant's guilt . . . . " United States v. Pisani, 773 F.2d 397, 402 (2d Cir. 1985). Accordingly, statements made outside the presence of the jury do not affect the fairness of the trial. See Zinman v. Black & Decker (U.S.), Inc., 983 F.2d 431, 436 (2d Cir. 1993) (citing United States v. DiTommaso, 817 F.2d 201, 221 (2d Cir. 1987)). Therefore, reviewing courts should examine only those statements made in the presence of the jury. See Rivas v. Brattesani, 94 F.3d 802, 805 (2d Cir. 1996) (citing Zinman, 983 F.2d at 436.) Also, while it is ...