MEMORANDUM OPINION AND ORDER
JOHN G. KOELTL, District Judge.
The petitioner, Christian Melendez, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial, the petitioner was convicted of two counts of burglary in the first degree in violation of New York State Penal Law §§ 140.30(2) and 140.30(4), one count of burglary in the second degree in violation of New York State Penal Law § 140.25(2), one count of robbery in the first degree in violation of New York State Penal Law § 160.15(4), and one count of robbery in the second degree in violation of New York State Penal Law § 160.10(1).
The petitioner argues that a writ of habeas corpus should issue for two reasons. First, he argues that the trial court abused its discretion in ruling pursuant to People v. Sandoval , 314 N.E.2d 413 (N.Y. 1974) that the prosecution would be allowed to cross-examine him about his alleged gang affiliation and past history of uncharged robberies if he testified in his defense. The petitioner claims that this adverse ruling prevented him from testifying and thereby deprived him of due process in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Second, the petitioner argues that his aggregate eighteen-year sentence is excessive and was imposed in violation of the Eighth Amendment to the United States Constitution. For the reasons explained below, the petition for a writ of habeas corpus is denied.
On March 15, 2007, the petitioner was indicted for various burglary and robbery offenses arising out of an incident on February 19, 2007.
On March 10, 2008, the trial court held a hearing pursuant to People v. Sandoval , 314 N.E.2d 413 (N.Y. 1974), to determine the admissibility of certain of the petitioner's alleged prior bad acts for impeachment purposes. (Hr'g Tr. 17, Mar. 10, 2008.) The prosecution sought to cross-examine the petitioner, if he testified, about whether the petitioner had been convicted of a felony for attempted possession of a controlled substance in 2003, whether he was a high-ranking member of the Trinitarios gang, whether he robbed drug dealers for a living, and whether he had committed three unrelated and uncharged robberies prior to the robbery for which he was being tried. (Hr'g Tr. 17-19.) At the hearing, the prosecution stated that it had a good faith basis for those questions based on conversations between the petitioner and an informant at Riker's Island. (Hr'g Tr. 20.) The trial court ruled that the prosecution could inquire into each alleged prior bad act, but excluded certain details. (Hr'g Tr. 23-26.)
At trial, a witness testified that at around 3:00 p.m. on February 19, 2007, intruders entered an apartment occupied by the witness. (Trial Tr. 55-56.) The intruders were armed with pistols and revolvers. (Trial Tr. 56.) They tied the witness's hands and feet, assaulted him, and demanded that he tell them where his "stuff" was located. (Trial Tr. 55-59.) He further testified that the intruders also attacked his cousin. (Trial Tr. 65-66.) At trial, the cousin identified the petitioner and the petitioner's co-defendant as the two intruders who attacked him. (Trial Tr. 331.) A police officer who responded to the scene testified that he arrested the petitioner and his codefendant in the second floor hallway of the building where the crimes took place. (Trial Tr. 466-71.) The petitioner did not testify.
On April 2, 2008, after two days of deliberation, the jury returned a verdict of guilty on two counts of burglary in the first degree, one count of robbery in the first degree, one lesser included offense of burglary in the second degree, and one count of robbery in the second degree. (Trial Tr. 1839-41.) The jury acquitted the petitioner of one count of burglary in the first degree. (Trial Tr. 1840.) The petitioner was sentenced principally to an aggregate term of eighteen years imprisonment. (Sent'g Tr. 11-12, May 21, 2008.)
The petitioner filed a timely appeal to the Appellate Division, arguing that the trial court's Sandoval ruling was an abuse of discretion that prevented him from testifying and that his sentence was excessive and should be reduced. The Appellate Division, First Department unanimously affirmed the petitioner's conviction and sentence. People v. Melendez , 903 N.Y.S.2d 384, 385 (App. Div. 2010). The court held that the trial court's Sandoval ruling "balanced the appropriate factors and was a proper exercise of discretion." Id . Moreover, the court held that the prosecution had demonstrated a good faith basis for the questions by revealing the informant as the source of the information and calling him as a witness. Id . The court also noted that it "perceive[d] no basis for reducing the sentence."
The petitioner then applied for leave to appeal to the Court of Appeals. His counsel's letter to the Court of Appeals argued that the trial court's Sandoval ruling "was an abuse of discretion and denied appellant due process." (Steward Decl. Ex. D at 1.) The letter did not explicitly reference the petitioner's sentencing claim, but it asked the Court of Appeals to review "all claims in [his] brief." (Steward Decl. Ex. D at 2.) The application for leave to appeal was denied on August 31, 2010. People v. Melendez, 934 N.E.2d 901 (N.Y. 2010). This petition followed.
The petitioner filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 dated December 6, 2010.
Section 2254 provides that an application for a writ of habeas corpus shall not be granted unless the petitioner has exhausted all state judicial remedies for his claims. 28 U.S.C. § 2254(b)(1)(A); see also Ramirez v. Att'y Gen. of New York , 280 F.3d 87, 94 (2d Cir. 2001). However, a district court may deny a claim on the merits even if the claim has not been exhausted. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); see also Smith v. Lee, 10 Civ. 6941, 2012 WL 5288742, at *3 (S.D.N.Y. Oct. 26, 2012). ...