The opinion of the court was delivered by: John Gleeson, United States District Judge:
Damion Henry, who is currently incarcerated at Green Haven Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial in the Supreme Court of New York, Kings County, Henry was convicted of one count of criminal possession of a weapon in the second degree and three counts of menacing in the second degree. Henry was sentenced (as modified on appeal) to concurrent terms of imprisonment of 15 years on the weapon possession charge and one year on the menacing charge, to be served consecutively to a 25-year sentence he was already serving for a prior conviction for attempted murder. Henry now seeks habeas relief from his conviction and sentence on the following grounds: (1) he was denied effective assistance of counsel based on trial counsel's failure to request a Frye hearing with respect to the admissibility of the results of Low Copy Number ("LCN") DNA testing; (2) he was denied due process based on the failure of the trial court to consider the reliability and admissibility of LCN DNA testing; and (3) his sentence violated the Eighth Amendment. See Pet. at 1-3, ECF No. 1. For the reasons stated below, the portion of Henry's petition based on the claim for ineffective assistance of counsel is stayed and held in abeyance to allow Henry to exhaust his state court remedies before seeking relief in federal court.
The state presented evidence of the following facts at trial: At approximately 4:30 a.m. on January 21, 2006, Henry attempted to enter the Ragtop Lounge, a nightclub in the East Flatbush neighborhood of Brooklyn. Tr. at 33-34.*fn1 He had a loaded 9-millimeter Uzi firearm in his waistband. Two bouncers searched Henry's waistband, and when they felt the gun they refused to allow Henry to enter the club. Tr. at 34-37. Henry became agitated and threatened to shoot the bouncers if they continued to refuse his entry. Tr. at 130. From the sidewalk a short distance from the entrance, Henry took the gun out of his waistband, cocked it, pointed it at the bouncers, and fired at least one shot. A bullet struck the door of the nightclub. Tr. at 130-31. Henry then began running away from the club.
When Henry was only two or three storefronts from the club, Sergeant Ajay Kapur and Officer Andrew Rydlewski, who had been summoned by the bouncers, exited their vehicles, drew their guns, and told him to stop. Henry started to run faster, and as the police officers chased him, he pointed his gun over his shoulder and fired several shots at the officers. The officers returned fire, injuring Henry and stopping him. Tr. at 220-23, 311-13.
Henry was arrested and charged with multiple counts of attempted murder, attempted aggravated murder, attempted assault, attempted aggravated assault, criminal possession of a weapon, menacing, and reckless endangerment.
During trial, the prosecution introduced DNA evidence found on the Uzi that was used to fire shots at the police officers. Kira Keblish, a supervisor at the forensic biology department of the New York City Office of Chief Medical Examiner, described the "Low Copy Number" ("LCN") DNA testing procedure, which was used to identify Henry's DNA on the Uzi. The LCN testing procedure was used to amplify the very low amount of DNA found on the weapon, 160 picograms.*fn2 Keblish, who performed the DNA analysis, testified that the amplification was repeated three times, and that the DNA profile is used only if the results match at least two of the three times. Keblish concluded that the DNA taken from the Uzi matched Henry's DNA. Tr. at 517-35.
During cross-examination, defense counsel elicited testimony from Keblish that LCN DNA testing was not a traditional, widely-used DNA testing method like Polymerase Chain Reaction and Short Tandem Repeat ("PCR" and "STR") testing but rather a newer method. Keblish testified that under the traditional PCR and STR testing procedures, her laboratory could test DNA samples of as low as .15 nanograms. Keblish acknowledged that the FBI did not use LCN DNA testing and that she did not know of any other lab in the United States that used the LCN DNA testing procedure. Tr. at 535-67.
After a jury trial, Henry was convicted of one count of criminal possession of a weapon in the second degree and three counts of menacing in the second degree. He was acquitted of all other charges.
On direct appeal, Henry's appellate attorney, Lynn W.L. Fahey, argued that Henry's trial attorney was constitutionally ineffective for failing to request a Frye hearing despite being aware that the LCN DNA testing procedure was a new, non-traditional technique. See Def's App. Br., ECF No. 5-1. Fahey also argued that the imposition of the maximum 15-year sentence for criminal possession of a weapon in the second degree, to run consecutively to Henry's pre-existing 25-year sentence, was excessive. The Appellate Division observed that to the extent the ineffective assistance claim was premised upon the issue of whether LCN DNA testing is generally accepted in the scientific community, it was unreviewable because the issue was a "matter outside of the record." People v. Henry, 914 N.Y.S.2d 288, 289 (2d Dep't 2011). The court added that to the extent that the ineffective assistance claim could be reviewed through the record, Henry was not deprived the effective assistance of counsel. Id. On the excessive sentence claim, the court held that "[t]he sentence imposed upon the defendant's conviction of criminal possession of a weapon in the second degree was not excessive." Id.
Henry's appellate lawyer sought leave to appeal the decision to the New York Court of Appeals, and on August 4, 2011, Associate Judge Susan Read of the Court of Appeals denied leave. People v. Henry, 17 N.Y.3d 817 (2011).
Henry timely filed this petition on October 17, 2012, claiming that he is entitled to a writ of habeas corpus under 28 U.S.C. § 2254 on the three grounds set forth above.
In his reply to the government's opposition memo, Henry informed the Court that he had filed a § 440.20 motion to set aside his sentence with the New York Supreme Court, Kings County on March 22, 2013. See Pet'r's Reply at 12, ECF No. 8 at 1. The basis of that pending § 440.20 motion is that the sentence imposed constituted cruel and unusual punishment in violation of the Eighth Amendment. See Aff. in Supp. of Mot. Set Aside Sentence at 1, ECF No. 8 at 20.
I heard oral argument of the petition on April 16, 2013. Henry appeared by videoconference from the facility ...