REPORT AND RECOMMENDATION
PAUL E. DAVISON, Magistrate Judge.
On November 12, 2007, an Orange County jury convicted petitioner Luis Muriel Herrera (petitioner" or "defendant") of first degree attempted robbery, first degree burglary, second degree assault and fourth degree criminal possession of a weapon (a metal knuckle knife). Petitioner's conviction stemmed from a home invasion in the City of Newburgh. New York on November 6. 2006. He was sentenced on February 21, 2008 to concurrent, determinate terms of imprisonment often years (attempted robbery), twelve years (burglary), five years (assault) and one year (weapon possession), along with concurrent terms of five years post-release supervision on each of the felony counts. Petitioner is currently incarcerated at the Fishkill Correctional Facility in Beacon. New York.
Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Said petition is before me pursuant to an Order of Reference dated August 3, 2010 (Dkt. #3). For the reasons set forth below. I respectfully recommend that Your Honor deny the petition in its entirety.
A. The Crime
During the summer of 2006 through November 2006, petitioner frequented an apartment known as the "weed house" located at 178 Renwick Avenue in the City of Newburgh, New York. The "weed house" was also frequented by the Velasco brothers (Omario and Ricardo). Ramberto Vega and Angel Lahoz.
At the "weed house" on November 6, 2006, petitioner, Ricardo Velasco and Vega planned to rob the landlord of a building located at 84 City Terrace. At approximately 5:00 p.m. that evening. Ricardo drove petitioner, Vega and Omario Velasco to 84 City Terrace. Omario remained in the car while the others exited the vehicle. Ricardo knocked and Jesus Mejia, the building superintendent, opened the door. Petitioner and Vega pushed past Mejia and barged into the apartment. Vega then pistol-whipped Mejia. Ricardo left the apartment and returned to the car. Petitioner threatened Mejia with a knife and demanded money. Petitioner and Vega left when they discovered Mejia had no money. They returned to the car and the four men drove back to the "weed house."
B. Pre-Trial Proceedings
The grand jury returned its indictment against petitioner on April 27, 2007. On April 30, 2007, petitioner appeared with counsel and entered a plea of not guilty.
On or about June 18, 2007, petitioner's counsel filed an omnibus motion seeking various forms of pretrial relief including suppression of identification evidence. By Decision and Order dated July 21, 2007, the Orange County Court (De Rosa, J.) inter alia ordered a hearing pursuant to New York Criminal Procedure Law ("CPL") § 710.60(4) to determine the admissibility of any identification evidence. The hearing was held on July 24, 2007, during which the sole witness. Detective Steven Sager, testified as follows:
In April 2007, Detective Sager was employed by the Town of New Windsor Police Department and assigned to a Joint Crime Task Force charged with investigating numerous residential robberies (H. 7). On April 19, 2007, in conjunction with that investigation, Detective Sager conducted two separate interviews: the first with Ricardo Velasco and the second with Omario Velasco (H. 8. 12). Ricardo Velasco stated that he and a man he knew as "Junebo" met for the first time during the previous summer at the "weed house" (H. 22). Ricardo and Junebo "hung out" together at the "weed house" where they smoked marijuana, played video games and planned robberies (H. 22). For the purpose of confirming Junebo's identity, Detective Sager showed Ricardo a six-person photo array and asked him to identify the person he knew as Junebo (H. 9-10). Ricardo selected person number one, a photo of petitioner (H. 10-11). During the second interview. Omario Velasco stated that he "hung out" with Junebo at the "weed house" on multiple occasions (H. 12-13, 23). Omario also stated that he had been with Ricardo and Junebo on one occasion when a crime was committed (H. 23). Detective Sager showed Omario a fresh, unmarked copy of the same photo array shown to Ricardo and asked Omario if he could identify the person in the photos he knew as Junebo (H. 13-14). Omario selected petitioner's photo located in the array as person number one (H. 14).
Following Detective Sager's testimony, petitioner's counsel argued that the photo array was unduly suggestive because petitioner's photo depicted the only balding person with facial hair (H. 26). The Court issued an oral decision holding the identification admissible at trial because "neither the procedure nor the photo array was overly suggestive and was basically in the nature of a confirmatory ID in any event" (H. 29).
C. Request for Adjournment
Jury selection commenced on the morning of November 13, 2007. At approximately 1:30 p.m., as proceedings resumed following a lunch break, defense counsel requested a two-week adjournment of trial (T. 61-63). Defense counsel stated that he had been assigned to the case two weeks prior and had received the file from previous counsel one week prior (T. 61). He specifically noted that his investigator had unsuccessfully attempted to locate the victim of the November 27th robbery at the address specified in the indictment (2556 Route 9W, Cornwall, New York) which, defense counsel learned that morning, had been amended to 706 Gardnertown Road in the Town of Newburgh (T. 62). Indeed, the indictment had been amended in open court on July 24, 2007 and the corrected information matched the address contained in the bill of particulars (T. 62). Defense counsel argued that he had prepared for trial based upon the unamended indictment and, although he was aware of the address listed in the bill of particulars, for strategic reasons he declined to ask the district attorney about the discrepancy (T. 62-63). The trial court denied defense counsel's request for an adjournment because jury selection was already underway and, if the request was granted, the court would have to declare a mistrial (T. 64). Judge De Rosa also noted that defense counsel's investigator was "still employed" and that it was unlikely that the People would finish their case in three days (T. 64).
D. Direct Appeal
Petitioner (by and through counsel) timely appealed his conviction to the Appellate Division, Second Department on the following grounds: (1) the evidence was insufficient as a matter of law to corroborate the accomplice testimony and to establish that the knife (People's exhibit one) was a "metal knuckle knife" as defined in New York Penal Law § 265.00 (5-b) (Resp. Exhs., Exh. 6. at 43-45, 68-69); (2) petitioner was deprived of effective assistance of trial counsel due to the trial court's denial of an adjournment and trial counsel's failure to move for dismissal of the counts stemming from the November 6th incident (counts seven through eleven) based upon the lack of independent corroboration of the accomplice testimony (id. at 55-57, 62-65); (3) the identification procedure was unduly suggestive because (a) the detective indicated that a photo of petitioner was in the array and (b) the witnesses were shown the photo array five months after the crimes were committed (id. at 58-59): (4) petitioner's sentence was harsh, excessive and retaliatory (id. at 60-62): (5) petitioner was deprived of his fundamental right to be present at a material stage of the proceedings. i.e. during an off-the-record conversation between the court and Juror McCartney (id. at 65-67); and (6) the trial court failed to enter a conviction and sentence as to count eleven (criminal weapon possession - knife) and, instead, illegally sentenced petitioner on count ten (criminal weapon possession - gun) as to which he was acquitted (id. at 67-68). By Decision and Order dated December 22, 2009, the Second Department affirmed petitioner's judgment of conviction. People v. Muriel-Herrera , 68 A.D.3d 1135, 892 N.Y.S.2d 150 (2d Dep't 2009). Petitioner, by and through counsel, timely submitted an application for leave to appeal to the New York Court of Appeals, wherein he sought review of all of the claims raised in his appellate brief (Resp. Exhs. 161-63). The Court of Appeals denied petitioner leave to appeal on April 26, 2010. People v. Muriel-Herrera , 14 N.Y.3d 843, 927 N.E.2d 570, 901 N.Y.S.2d 149 (2010). Petitioner did not seek a writ of certiorari to the United States Supreme Court.
E. The Instant Petition and Application for Stay of Proceedings
Petitioner timely filed the instant Petition for a Writ of Habeas Corpus on or about June 30, 2010, wherein he seeks habeas review of the claims he raised on direct appeal. By letter dated October 12, 2010 (Dkt. #16), petitioner requested a stay of the proceedings to allow him to exhaust certain unidentified claims and thereafter file an amended petition. By Order entered November 4, 2010 (Dkt. #17), the undersigned directed petitioner to identify, within thirty days of said Order, all grounds set forth or to be set forth within his state petitions. On or about December 4, 2010, petitioner submitted a document entitled "Notice of Motion to Vacate Judgment & Set Aside Sentence" which identifies five claims to be (or that were) asserted in a CPL § 440.10 motion in Orange County Supreme Court: (1) the trial court erroneously prevented petitioner from introducing certain exculpatory evidence; (2) the indictment was improperly amended; (3) trial counsel was ineffective because he did not move to dismiss the counts stemming from the November 6th incident (counts seven through eleven); (4) the verdict is a "nullity" because no reasonable jury could have found petitioner guilty; and (5) petitioner's sentence violates due process. By Memorandum and Order dated January 11, 2011 (Dkt. #18), the undersigned stayed the proceedings pending the exhaustion of said claims and directed petitioner, within thirty days after a final state decision on said claims, to supplement the instant petition with any of the newly-exhausted claims.
By Decision and Order dated March 22, 2011, the County Court (De Rosa, J.) held as follows: (1) the majority of grounds cited appear on the record and either were or could have been raised on direct appeal (citing CPL § 440.10(2)); (2) petitioner's argument as to the issue of exculpatory evidence is meritless because the investigator's report and victim's statement were marked as exhibits at trial and used by defense counsel during cross-examination of the victim; and (3) because it appeared the transcript of the sentence was in error, the County Court set aside any sentence as to count ten and imposed sentence nunc pro tunc as to count eleven. Memo Endorsed Letter from respondent dated July 11, 2012 (Dkt. #21). Petitioner did not seek leave to appeal; respondent, however, sought reargument as to the County Court's Order setting aside petitioner's misdemeanor sentence. By Decision and Order dated June 21, 2011, the County Court granted respondent's motion and vacated the portion of its previous order setting aside the sentence "as it appears the issue was previously addressed by the Appellate Court." Id . Petitioner thereafter served respondent with a copy of his application seeking leave to appeal the June 21st Order. Id . By Memorandum Endorsement dated July 17, 2012 (Dkt. #21), the undersigned directed petitioner to advise this Court, in writing, by August 17, 2012: (1) whether there was any reason the stay should not be lifted; and (2) whether he intended to amend the instant petition. Petitioner failed to respond. Accordingly, on September 24, 2012, the undersigned ordered the stay lifted (Dkt. #22).
On or about October 8, 2012, petitioner submitted a Reply (Dkt. #23), wherein (1) he conceded that, because he did not perfect his appeal, the claims asserted in his § 440.10 motion were unexhausted and deemed procedurally barred, but (2) he argued that this Court should excuse his procedural default and review said claims due to his actual innocence. The Court notes, however, that petitioner did not file an Amended Petition despite the Court's prompting. Thus, the only claims presented for habeas review - ergo the only claims addressed in this Report and Recommendation - are those raised in his original petition.
A. Applicable Law
"Habeas review is an extraordinary remedy." Bousley v. United States , 523 U.S. 614, 621 (1998) (citing Reed v. Fancy , 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. § 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254(d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), are summarized below.
The AEDPA established a one-year statute of limitations for the filing of a habeas corpus petition seeking relief from a state court conviction. See 28 U.S.C. § 2244(d)(1). The one-year limitation period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...