United States District Court, E.D. New York
OPINION AND ORDER
SANDRA J. FEUERSTEIN, District Judge.
Before the Court is Kenneth Armstead's ("petitioner") application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, petitioner's application is DENIED and his petition is dismissed.
On November 20, 2007, petitioner, while on parole, sold crack cocaine to a confidential informant in Hempstead, New York. The confidential informant recorded the sale with hidden video and audio equipment while a police detective witnessed the transaction. Petitioner was indicted for the criminal sale of a controlled substance in the third degree (Penal Law § 220.39(1)), criminal possession of a controlled substance in the third degree (Penal Law § 220.16(1)), and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). Following a jury trial, petitioner was convicted on all three (3) counts. Petitioner was sentenced to concurrent determinate terms of three (3) and one-half years incarceration on the first two (2) counts and to a concurrent definite term of one (1) year of incarceration on the remaining count.
B. Relevant Procedural History
Defendant, represented by counsel, appealed his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department ("Appellate Division"). He argued that the jury's verdict was against the weight of the evidence based on flaws and inconsistencies in the confidential informant's testimony. By Decision and Order dated December 1, 2009 ("December 2009 Order"), the Appellate Division unanimously affirmed petitioner's conviction. Petitioner did not seek leave to appeal the ruling to New York's Court of Appeals.
On or about February 20, 2010, petitioner filed an application for a writ of error coram nobis alleging, inter alia, that his appellate attorney was ineffective for failing to argue that the prosecution had not proven petitioner's guilt beyond a reasonable doubt. He argued that during trial, the prosecutor presented evidence about crack cocaine instead of powdered cocaine, as was alleged in the indictment. In addition, petitioner claimed that his attorney was ineffective for not arguing that the indictment was jurisdictionally defective because the grand jury charged him with the sale of powdered, not crack, cocaine. Thus, the charges in the indictment were not proven by the crack cocaine evidence adduced at trial.
By Decision and Order dated August 17, 2010, the Appellate Division denied petitioner's application to vacate the December 2009 Order and held that petitioner failed to establish that he was denied effective assistance of appellate counsel. Petitioner sought and was denied leave to appeal to New York's Court of Appeals.
A. Legal Standard for a Writ of Habeas Corpus
"In reviewing a state prisoner's habeas corpus petition pursuant to 28 U.S.C. § 2254, a federal district court makes an independent determination as to whether the petitioner is in custody in violation of his rights under the Constitution, or any laws and treaties of the United States." McCool v, New York State, 29 F.Supp.2d 151, 157 (W.D.N.Y. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 730 (1991)).
As amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), 28 U.S.C. § 2254(a) provides that a "district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." A federal court may grant a writ of habeas corpus to a state prisoner where the federal claim was "adjudicated on the merits" in state court only when adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...