REPORT AND RECOMMENDATION
SARAH NETBURN, Magistrate Judge.
After a jury trial, petitioner Carlos Hernandez was convicted of Murder in the Second Degree, N.Y. Penal Law ("Penal Law") § 125.25(1), and sentenced to a prison term of 20 years to life. His conviction was unanimously affirmed by the Appellate Division of the New York Supreme Court, First Department (the "Appellate Division"). The New York Court of Appeals then denied leave to appeal, after which a post-judgment motion and appeal also were denied.
Hernandez now brings this pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. Hernandez asserts that a writ of habeas corpus should issue because his trial court attorney provided ineffective assistance of counsel, the government failed to produce police notes and documents relating to a government witness, and he was not provided sections of his trial's voir dice minutes. For reasons explained below, Hernandez's petition for a writ of habeas corpus should be DENIED in its entirety.
Hernandez's habeas petition arises from his conviction for the murder of Gilberto de los Santos Vasquez at the La Herradura Social Club (the "Social Club"), then located at 1347 E.L. Grant Highway, Bronx, New York. The following facts are derived from the records of Hernandez's suppression hearing and trial.
I. Factual Background
On February 16, 1997, Abigail Cintron received a phone call from de los Santos, asking her to meet him at the Social Club. At around 9:45 p.m., Cintron arrived outside of the Social Club, where she was greeted by de los Santos. After speaking briefly, they went inside. The Social Club was small and approximately twelve people were there at the time. De los Santos introduced Cintron to Pedro Tavares, and they joined him at a table, sitting for a few minutes before de los Santos rose to make a phone call.
Meanwhile, Hernandez, who was sitting at the bar, cracked a bottle and approached Cintron and Tavares. He argued with Tavares for a few minutes saying, according to Cintron, "I told you not to come here, I told you I didn't want to see you here, " and warning Tavares not to get involved because Hernandez's dispute was not with him. (Transcript ("T.") at A-439.) According to Cintron, Hernandez appeared to be holding something behind his back. Hernandez left and, approximately five to ten minutes after he had arisen to make a phone call, de los Santos returned to the table. He told Cintron that they had to wait only a few more minutes before they left. Before they could leave, however, Hernandez returned. Standing before de los Santos, who sat beside Cintron at the table, Hernandez said, "What was it that I told you, " and de los Santos responded, "Don't start again with all that." (T. at A-443.)
De los Santos tried to stand, but Hernandez pushed him down into his seat. Hernandez then slashed de los Santos in the neck with the broken bottle, cutting his throat in a downward motion. In response, de los Santos placed his hands around his neck but, according to Cintron, when he removed his hands "all the blood started to come out." (T. at A-474.)
Tavares then stood up, and Hernandez slashed him as well. Tavares's wound would require hospitalization. Hernandez was not charged with any crimes against Tavares.
Someone said, Let's go, " and pulled Hernandez out. (Id.) De los Santos tried to speak, but could not, walked a few steps and fell onto a chair and then to the floor. Cintron went to de los Santos and tried to stop the bleeding. When the emergency responders arrived, de los Santos was dead, lying in Cintron's lap.
At around 10:05 p.m., Detective Robert Colten arrived at the Social Club with Detective Alberto Rosario. The detectives questioned three or four witnesses. Colten was provided with a nickname and description of the person who had killed de los Santos. At around 10:40 p.m., Detective Maureen McMahon arrived at the Social Club. McMahon recovered a bloody bottle top next to de los Santos's body, which was still wet, as well as some glass that had blood on it.
The case then went "cold" until Colten received new information and Cintron subsequently identified Hernandez on March 20, 2002. On January 22, 2003, the Bronx County Grand Jury indicted Hernandez on charges of Murder in the Second Degree, with intent to cause death, Penal Law § 125.25(1), Murder in the Second Degree, with depraved indifference, Penal Law § 125.25(2), Manslaughter in the First Degree, Penal Law § 125.20, and Criminal Possession of a Weapon in the Fourth Degree, Penal Law § 265.01. On January 29, 2003, Hernandez was arrested.
II. Additional Conviction
On October 20, 2000, between de los Santos's death and Hernandez's arrest for his murder, Hernandez pled guilty in New York County Supreme Court to Criminal Possession of a Controlled Substance in the Second Degree, Penal Law § 220.18(1). On November 8, 2000, he was sentenced, pursuant to a plea agreement, to an indeterminate term of four years to life.
III. The Suppression Hearing
On November 1, 2004, Hernandez appeared before the Honorable Harold J. Silverman for a pre-trial Wade and Rodriguez hearing. No suppression hearing objection is raised in this habeas petition. On November 8, 2004, the hearing court issued a written decision denying Hernandez's Wade/Rodriguez motion.
IV. The Trial
Hernandez's trial was held before the Honorable Denis J. Boyle, in New York State Supreme Court, Bronx County. The government presented the facts discussed above, including testimony from Cintron, Tavares, McMahon, and Colten. Dr. James Gill, a medical examiner with the City of New York, and an expert in forensic pathology, testified that he had reviewed the autopsy report prepared by Doctor Joseph Cohen. He found that de los Santos had two sharp injuries or cuts on the left side of his neck, which caused fatal injury. The wounds were consistent with having been caused by a sharp object with a curve to it, like a broken bottle. No defensive wounds were present and, according to Dr. Gill, the findings were consistent with de los Santos being stabbed with one quick motion with a broken bottle before he had a chance to defend himself.
Hernandez then presented his defense. The trial judge informed the jury that the parties had stipulated that if Hernandez called Detective Frank Gallipani, an expert in latent fingerprint comparison, he would have testified that Hernandez's fingerprints did not match those recovered by McMahon at the Social Club on February 16, 1997, and that no usable fingerprints could be lifted from the Old English bottle admitted into evidence by the defense.
The trial judge also informed the jury that if Hernandez had called Johnny Mercado (the Social Club's bouncer) as a witness, he would have testified that he was working the door of the club and saw a "male Dominican" about thirty-eight to forty years old, "200 pounds, dark skin, " with an "earring in his left ear." (T. at A-1336.) That individual "hit another guy then he broke a bottle and hit the guy in the neck with the bottle. Another guy tried to hold the guy with the bottle. He was cut, also.... The guy who got cut on the neck, he tried to get out, but he fell by the stairs.... The guy who did the stabbing ran out and left. I called 911 when the fight started. The owner of the club told me to hurry up, the guy is going to die." (Id.) The parties also stipulated that Mercado did not drink alcohol before the February 16, 1997 incident, and that on October 27, 2004, Mercado viewed a photo array and made no identification.
On April 6, 2005, a jury convicted Hernandez of Murder in the Second Degree and sentenced him to a prison term of 20 years to life.
V. Hernandez's Direct Appeal
Hernandez appealed his case to the Appellate Division. Through counsel he claimed that: (1) the transcript of jury selection was incomplete and he should be allowed, if necessary, to supplement his brief as to any jury selection issues once it was completed; (2) the court erred in failing to conduct a Rodriguez hearing before the testimony of two witnesses; (3) the court should have charged the lesser included crime of Manslaughter in the Second Degree; (4) the failure to produce police notes of the witnesses' statements prejudiced Hernandez; and (5) the jury verdict was influenced by inappropriate prosecutorial commentary throughout the trial. In a pro se supplemental brief, Hernandez reiterated points (1) and (3) above and raised two additional claims: (i) the verdict was against the weight of evidence because there was no evidence presented of an intent to murder; and (ii) Hernandez's counsel was ineffective for failing to be aware of the law of lesser included offenses and failing to request an intoxication charge.
On January 27, 2011, the Appellate Division unanimously affirmed Hernandez's conviction. See People v. Hernandez , 915 N.Y.S.2d 76 (1st Dep't 2011). First, the Appellate Division found that Hernandez "expressly waived any claim that the court should have submitted manslaughter in the second degree as a lesser included offense." The court also rejected that claim "on the merits, since there [was] no reasonable view of the evidence that [Hernandez] recklessly caused his victim's death." Id . Second, the Appellate Division affirmed the adverse inference charge to the jury as a sufficient curative and rejected the constitutional claims with respect to Hernandez's argument that the nondisclosure of federal transcripts relating to a prosecution witness unfairly prejudiced his counsel's cross-examination. Id . Third, to the extent that the record permitted review of Hernandez's claims of ineffective assistance of counsel, the court found that Hernandez received effective assistance under state and federal law. Id . Fourth, the court rejected Hernandez's averment "relating to allegedly missing or unavailable transcripts of jury selection." Id.
By pro se letter dated February 16, 2011, and through counseled letter dated February 25, 2011, Hernandez applied for leave to appeal that decision to the New York Court of Appeals. In an order dated April 14, 2011, the New York Court of Appeals denied Hernandez's application. People v. Hernandez, 947 N.E.2d 1200 (N.Y. 2011) (table).
By pro se motion papers dated July 1, 2011, and pursuant to N.Y. Crim. Proc. Law. ("C.P.L.") § 440.10, Hernandez moved to vacate his judgment of conviction, claiming that trial counsel was ineffective for, inter alia: (1) failing to inform him of whether the plea offer would run concurrent with, or consecutive to, his narcotics possession sentence; (2) not knowing the law on lesser-included offenses; and (3) failing to seek an intoxication charge. On March 30, 2012, Justice Boyle denied Hernandez's post-judgment motion. On April 24, 2012, pursuant to C.P.L. § 460.15, Hernandez filed a pro se application to the Appellate Division for leave to appeal the denial of his motion. The Appellate Division denied Hernandez's application on September 25, 2012.
VI. Hernandez's Federal Habeas Corpus Petition
On November 7, 2012, Hernandez filed this pro se petition for writ of habeas corpus. On December 6, 2012, his petition was referred to a magistrate judge for a report and recommendation. On December 10, 2012, that referral was reassigned to my docket. On March 28, 2013, respondent filed his answer. On April 17, 2013, petitioner filed his reply, and the petition became fully briefed.
Hernandez's habeas corpus petition was timely filed. The Antiterrorism and Effective Death Penalty Act (the "AEDPA") requires a state prisoner whose conviction has become final to seek federal habeas corpus relief within one year. 28 U.S.C. § 2244(d)(1)(A). This one-year period serves the "well-recognized interest in the finality of state court judgments." Duncan v. Walker , 533 U.S. 167, 179 (2001). A petitioner's judgment becomes final 90 days from the date the New York State Court of Appeals denies leave to appeal - i.e., after the "period to petition for a writ of certiorari to the United States Supreme Court." Pratt v. Greiner , 306 F.3d 1190, 1195 & n.1 (2002).
The AEDPA tolls the one-year limitations period for the "time during which a properly filed application for State post-conviction or other collateral review.... is pending." 28 U.S.C. § 2244(d)(2). "The time that an application for state postconviction review is pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law." Evans v. Chavis , 546 U.S. 189, 191 (2006) (emphasis in original) (citing Carey v. Saffold , 536 U.S. 214 (2002)).
Here, Hernandez was convicted on April 6, 2005, and his conviction became final on July 13, 2011 - 90 days after the Court of Appeals denied leave to appeal. On July 1, 2011 - before his conviction became final - Hernandez moved to vacate the judgment. That motion was denied and, on September 25, 2012, the Appellate Division denied Hernandez's application for leave to appeal. His petition is dated November 1, 2012, and was docketed on November 7, 2012. Because Hernandez's petition was filed within the one-year limitation period, accounting for all proper tolling, it is timely.
A. Statement of Law
Before a federal court may review a petition for writ habeas corpus, a petitioner must exhaust his remedies in state court. To exhaust a claim, a petitioner must "invoke one complete round of the State's established appellate review process" before bringing the same claim in federal court. O'Sullivan v. Boerckel , 526 U.S. 838, 845 (1999); see 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, ... if he has the right under the law of the State to raise, by any available procedure, the question presented."); Baldwin v. Reese , 541 U.S. 27, 31 (2004). This "exhaustion requirement" is rooted in a "policy of federal-state comity, " Picard v. Connor , 404 U.S. 270, 275 (1971), "protect[s] the state courts' role in the enforcement of federal law[, ] and prevent[s] the disruption of state judicial proceedings, " Rose v. Lundy , 455 U.S. 509, 518 (1982). It ensures that state courts are given "a full and fair opportunity to resolve federal constitutional claims" before the claims are presented to federal courts. O'Sullivan , 526 U.S. at 845; Duncan v. Henry , 513 U.S. 364, 366 (1995).
To "properly exhaust" a claim, a petitioner must "fairly present" his claim in state court by alerting the state court of the federal nature of his claim using constitutional language. O'Sullivan , 526 U.S. at 848; Baldwin , 541 U.S. at 32 (finding inadequate exhaustion where state court would have to look to the record, beyond the petition or brief, to be aware of federal claim). A petitioner may not rely solely on general principles of fairness, and instead must refer to specific constitutional provisions or concepts. Compare France v. LeFevre, 83 Civ. 03829 (CSH), 1985 WL 503, at *2 (S.D.N.Y. Mar. 29, 1985) (reference to the right to "due process" or a "fair trial" is not alone sufficient to alert the state courts to the federal nature of a claim) with De La Cruz v. Kelly , 648 F.Supp. 884, 888 (S.D.N.Y. 1986) (finding that petitioner alerted the state court of the constitutional aspect of his claims when he argued that the challenged ruling denied him a fair trial and cited the Fourteenth Amendment). The legal doctrine asserted in the state courts does not need to be identical to that raised in the habeas petition, but the "nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye v. Att'y Gen. of New York , 696 F.2d 186, 192 (2d Cir. 1982).
The Court of Appeals for the Second Circuit applies the "fair presentation" standard liberally, allowing that a state court may be deemed to be on notice of the constitutional nature of a claim even if the petitioner did not specifically quote the United States Constitution. Notice will be found when the appellate brief shows "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Ramirez v. Att'y Gen. of New York , 280 F.3d 87, 95 (2d Cir. 2001) (citing Daye , 696 F.2d at 194). This position protects petitioners who rely on constitutional principles ...