The opinion of the court was delivered by: Denise Cote, District Judge:
Petitioner Anthony Windley ("Windley") filed this petition for a writ of habeas corpus on February 7, 2011. On March 23, this Court ordered the respondent to answer the petition and referred the action to Magistrate Judge Debra Freeman for the preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b). On December 6, 2012, Magistrate Judge Freeman issued a Report recommending that the petition be dismissed.
On January 23, 2013, the Court received Windley's objections to the Report. Windley's objections were filed on the Electronic Case Filing system on February 5, 2013. Having considered those objections, the petition is denied for the following reasons.
Petitioner is a four-time convicted felon. He has previously pleaded guilty to attempted murder in the second degree, attempted criminal sale of a controlled substance in the fifth degree, and the federal crime of being a felon in possession of a firearm. On November 23, 2005, Windley was convicted following trial of two counts of felony criminal possession of a controlled substance in the third degree, one count of misdemeanor criminal possession of a controlled substance in the seventh degree, and two counts of felony conspiracy in the fourth degree. Windley was adjudicated as a persistent felony offender and sentenced under New York Penal Law Section 70.10.
On March 20, 2007, Windley appealed his conviction to the First Department of the Appellate Division. On appeal, Windley raised a claim that his adjudication as a persistent felony offender by a judge rather than a jury violated his rights under the Sixth and Fourteenth Amendments. The Appellate Division denied this claim on the merits and affirmed Windley's conviction on December 13, 2007. People v. Windley, 847 N.Y.S.2d 533, 534 (1st Dep't 2007). Petitioner then sought leave to appeal to the Court of Appeals and his request was denied on January 28, 2008.
Petitioner originally filed his habeas corpus petition on August 19, 2008, but withdrew this petition in order to exhaust additional claims in state court. Windley then filed a motion under Section 440.10 of the New York Criminal Procedure Law in Bronx County Supreme Court on February 23, 2009. His motion raised a claim of ineffective assistance of counsel based on roughly five alleged shortcomings in the representation he received from trial counsel Robert Walters ("Walters"): 1) counsel deprived petitioner of his right to testify; 2) counsel failed to pursue and convey plea opportunities; 3) counsel failed to object at critical stages of the trial; 4) counsel allegedly opened the door to harmful testimony that was previously held inadmissible; and 5) counsel failed to investigate and to prepare adequately, both prior to and during trial. The state court rendered a decision dismissing some of Windley's claims, held an evidentiary hearing, and then rendered a decision denying, in relevant part, Windley's claims that Walters denied Windley his right to testify and failed to pursue or convey plea opportunities.
Windley's present petition raises two claims. First, petitioner claims that his constitutional right to a jury trial was violated because a judge, rather than a jury, adjudicated and sentenced him as a persistent felony offender. Second, petitioner claims that he was deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments. Petitioner's second claim is based on the same five grounds raised in his 440.10 motion. Magistrate Judge Freeman's Report recommends the petition be dismissed. Windley filed timely objections to some, but not all of Magistrate Judge Freeman's determinations.
Where a state court has reached the merits of a federal claim, habeas relief may not be granted unless the state court's decision was "contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §§ 2254(d)(1), (d)(2). State court factual findings "shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
A reviewing court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The court shall make a de novo determination of those portions of the Report to which objection is made. United States v. Male Juvenile, 121 F.3d 24, 28 (2d Cir. 1997). To accept those portions of the report to which no timely objection has been made "a district court need only satisfy itself that there is no clear error on the face of the record." Wingate v. Bloomberg, No. 11 Civ. 188 (JPO), 2011 WL 5106009, at *1 (S.D.N.Y. Oct. 27, 2011) (citation omitted).
Windley first argues that his sentencing under New York Penal Law § 70.10 as a persistent felony offender by a judge rather than a jury violated his Sixth and Fourteenth Amendment rights to have a jury decide facts that enhanced his sentence. He claims that the Appellate Division's dismissal of his claim is an unreasonable application of clearly established federal law as ...