REPORT AND RECOMMENDATION
LORNA G. SCHOFIELD, District Judge.
Pro Se Petitioner Jose Acosta ("Acosta"), a New York State prisoner at Sullivan Correctional Facility, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 27, 2007, Acosta was convicted of robbery in the third degree (N.Y. Penal Law § 160.05) and sentenced to a prison term of fifteen years to life. Acosta contends that his conviction violates the United States Constitution because (1) the sentencing court failed to properly implement New York's persistent felon statute by not allowing him to controvert the constitutionality of his past convictions and by failing to affirmatively state why his history and character warranted an extended sentence, (2) appellate counsel provided ineffective assistance in failing to argue that the trial court erred in not giving a missing witness charge for the Cantonese-speaking police officer, and (3) appellate counsel provided ineffective assistance in failing to argue that Acosta was improperly sentenced as a persistent felony offender. For the reasons set forth below, I recommend that the Petition be DENIED.
A. Factual History
On July 7, 2006, Acosta stole a gold chain and jade pendant from Puiling Wong's ("Wong") neck. (Trial Tr. at 32-33, 35.) While being chased by Wong, Acosta crashed into Police Officer Barbera ("Barbera"). Barbera arrested Acosta and retrieved the stolen property. ( Id. at 116-17.) Wong had a "slight cut" with "very little blood" on her lower lip, and pain in her neck. (Trial Tr. at 48, 66.)
A few minutes later, a Cantonese-speaking police officer arrived at the scene, ( see Trial Tr. at 52), where he asked Wong what happened and if she needed medical assistance. (Trial Tr. at 79-80.) The officer told Wong that "[the Police] have known about this guy for quite some time, but we don't have any evidence to put him in." (Trial Tr. at 80.) Because Wong did not speak English and Barbera did not speak Cantonese, Barbera spoke only to the translating officer about the events. Wong did, however, make gestures to Barbera about the chain and her neck. Barbera interpreted these gestures to mean that the chain belonged to Wong. Neither Wong nor Barbera recalled the translator's name, and Barbera did not write the officer's name on any paperwork. (Trial Tr. at 79, 192-93.)
At trial, Acosta wanted to call the Cantonese-speaking police officer as a witness but could not because his identity was unknown. (Aff. in Supp. of Pet'r's Mot. to Set Aside Guilty Verdict ("Pet'r's Aff. to Set Aside Verdict") ¶ 23.) The court denied Acosta's request for a missing witness charge. ( Id. ¶ 68). Acosta was found guilty of robbery in the third degree, a class "D" non-violent felony, (Sentencing Tr. at 2), and on November 27, 2007, was sentenced as a persistent felony offender to a jail term of fifteen years to life. ( Id. at 42-43).
B. Procedural History
Acosta filed a motion to vacate his sentence pursuant to New York Criminal Procedure Law ("CPL") § 440.20 on December 19, 2007, arguing that the persistent felon statute was unconstitutional in violation of the Sixth and Eighth Amendments. (Aff. in Support of Pet'r's Mot. to Set Aside Sentence ("Pet'r's Aff. to Set Aside Sentence") ¶ 1). His motion was denied. (Decl. of Paul M. Tarr in Opp'n to Pet.'s Pet. ("Tarr Decl."), Ex. C.)
Acosta moved for leave to appeal to the Appellate Division, First Department. He argued that (1) the trial court exceeded its constitutional authority in sentencing him as a discretionary persistent felony offender, (2) in denying his CPL § 440.20 claim, the court improperly relied on People v. Rivera, 5 N.Y.3d 61 (2005), and (3) the constitutionality of New York's persistent felony offender statute was "in play" in state and federal courts. (Tarr Decl., Ex. D.) Additionally, Acosta filed a motion to consolidate his direct appeal and CPL § 440.20 appeal. ( Id. ) The motion to consolidate was granted. (Tarr Decl., Ex. F.)
Acosta filed a direct appeal on June 27, 2008, arguing that (1) the conviction was against the weight of credible evidence and based on legally insufficient evidence, (2) the trial court failed to impose any sanction for the arresting officer's failure to produce Rosario material, (3) his sentence as a persistent felony offender exceeded the applicable maximum in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and (4) the sentence imposed was harsh and an abuse of discretion.
The Appellate Division unanimously affirmed the lower court's decision, holding that Acosta's conviction was based on legally sufficient evidence. See People v. Acosta, 61 A.D.3d 608 (2009). The court also denied Acosta's CPL § 440.20 motion. Id. The Court of Appeals denied leave to appeal on October 27, 2009. People v. Acosta, 13 N.Y.3d 834 (2009).
Acosta filed a pro se petition for a writ of error coram nobis on March 22, 2010, for ineffective assistance of appellate counsel because counsel omitted "significant and obvious" issues, including the court's failure to (1) give a missing witness charge for he Cantonese-speaking officer or (2) properly implement New York's persistent felony offender law. (Def.'s Pet. for Writ of Error Coram Nobis at 2; Aff. in Opp'n to Def.'s Appl. for Writ of Error Coram Nobis at 5). On December 9, 2010, the Appellate Division denied Acosta's coram nobis petition. People v. Acosta, 2010 N.Y. Slip Op. 90150(U) (NY) (N.Y.A.D. 1st Dept. Dec. 9, 2010). Acosta's application for leave to appeal was filed on January 3, 2011, and denied by the Court of Appeals on March 2, 2011. People v. Acosta, 16 N.Y.3d 827 (2011).
Acosta filed a second CPL § 440.20 motion on March 18, 2011, arguing that the sentencing court failed to properly implement New York's persistent felony offender law (1) by not allowing him to contest the constitutionality of his two previous felony convictions, and (2) by not affirmatively stating why his history and character, and the circumstances of his criminal conduct, warranted an extended sentence. The trial court denied Acosta's motion without a hearing on May 11, 2011. His application for leave to appeal was denied on November 17, 2011.
Acosta filed his Petition for a writ of habeas corpus on November 14, 2011, while his CPL § 440.20 appeal was still pending. He was granted sixty days to file an Amended Petition, (Docket No. 5), which was filed on February 22, 2012, and ...