Roa v. Portuondo (548 F. Supp. 2d 56, 2008)

United States District Court for the Southern District of New York 2008-04-22

Citations

Full opinion text

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION

P. KEVIN CASTEL, District Judge.

In January 1995, petitioner Rudy Roa was convicted of two counts of Second Degree Murder, one count of Second Degree Attempted Murder and two counts of First Degree Robbery after trial by jury in New York Supreme Court, New York County. In the aggregate, Roa was sentenced to thirty-three and one-third years to life in prison. Prior to sentencing Roa, the Honorable Frederic Berman, then a Justice of the Supreme Court, New York County, observed that “in [his] twenty two years as a Judge [he had] not had a case which [he] felt was more cruel and vicious.”

Roa filed a petition for a writ of habeas corpus on July 31, 2002. (Doc. # 1.) The prior history of this proceeding is set forth in the September 10, 2007 Report and Recommendation (the “R & R”) of Magistrate Judge Frank Maas. (Doc. # 47.) This matter was reassigned to this Court on October 16, 2006. (Doc. # 36.) Roa filed an amended habeas petition (the “Amended Petition”) on December 14, 2006. (Doc. #42.)

In the forty-eight page R & R, Magistrate Judge Maas, recommended that Rudy Roa’s Amended Petition be denied. Roa requested an extension to file objections to the R & R by letter dated October 22, 2007. I ordered that the final deadline to file objections be extended to November 30, 2007. (Id.) Roa’s objections were not received by the Court until December 4, 2007. (Doc. # 48.) The objections filed by Roa are undated and nothing in the record indicates when they were delivered to prison officials for mailing. However, because Roa is an incarcerated pro se petitioner, his objections were received less than one week after the deadline and no objection regarding timeliness has been made, I will consider the petitioner’s objections.

Through the lens of petitioner’s objections, I have conducted a de novo review of the record. 28 U.S.C. § 636(b); Rule 72, Fed.R.Civ.P. For the reasons that follow, I adopt the R & R in its entirety and dismiss the Amended Petition.

I. Procedurally Defaulted Claims

Judge Maas correctly observed that several claims in the Amended Petition related to Roa’s post-arrest statement and to an alleged ineffective assistance of counsel may not be considered by this Court because Roa procedurally defaulted on those claims in state court. Procedural defaults in state court divest federal courts of jurisdiction to hear the defaulted claims unless the petitioner demonstrates “cause for the default and actual prejudice as a result of the alleged violation of federal law, or ... that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred .... ”). Showing cause for default requires a petitioner to put forth “some objective factor external to the defense” which caused the claim not to have been previously raised. Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir.1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Objective impediments to compliance with the procedural rules which would excuse a petitioner’s noncompliance for habeas purposes include: 1) the factual or legal basis of a claim was not reasonably available to petitioner’s counsel; 2) interference by officials made compliance impracticable; and 3) ineffective assistance of counsel. Murray, 477 U.S. at 488, 106 S.Ct. 2678.

To demonstrate “actual prejudice” under the standard for excusing a procedural default, a habeas petitioner must show the constitutional errors raised in the petition actually and substantially disadvantaged petitioner’s defense so that he was denied “fundamental fairness.” Id. at 494, 106 S.Ct. 2678. To show that the district court’s failure to hear the claims will result in a fundamental miscarriage of justice, a petitioner must show that he is “actually innocent.” Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir.2001) (citing Coleman, 501 U.S. at 748-50, 111 S.Ct. 2546). With respect to the ineffective assistance of counsel impediment, the Second Circuit has held that defense counsel’s “ineptitude [must] rise[ ] to the level of a violation of a defendant’s Sixth Amendment right to counsel” to establish cause for procedural default in the context of a habeas petition. Id. at 91 (citations omitted). As outlined below, petitioner cannot meet the standards required to have the defaults excused on any of the procedurally defaulted claims.

a. Post-Arrest Statement Claims

The Amended Petition asserts that Roa’s post-arrest statement was introduced into evidence at trial in violation of his Sixth Amendment right to counsel. Roa raised this claim, prior to perfecting his direct appeal, in the first of three section 440.10 motions he filed in an attempt to have his conviction vacated. (Amended Petition, Ex. E at 1.) The trial court rejected Roa’s claim because section 440.10(2)(b) requires the denial of a motion to vacate a judgment when, at the time of the motion, the subject judgment is either still appealable or the appeal is pending. N.Y.Crim. Proc L. § 440.10(2)(b). Roa’s subsequent direct appeal failed to assert that claim, thus, it was not exhausted at the state level. It is now, however, incapable of being exhausted because New York law permits criminal defendants only one direct appeal and one application for leave to appeal to the Court of Appeals. Spence v. Sup’t, Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir.2000). Moreover, Roa cannot obtain collateral review of this claim in state court because once a defendant has prosecuted his direct appeal, he may not obtain review of an issue that could have been included in that appeal. Id.; Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546 (if no procedural avenue remains to exhaust a claim in state court, the claim is procedurally defaulted for federal habeas purposes). Thus, Judge Maas correctly concluded that because the Sixth Amendment post-arrest statement claim was not included in Roa’s direct appeal, it is in procedural default and this Court is divested of its jurisdiction to consider its merits.

The claim that Roa was not adequately informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before being questioned in police custody suffers from the same procedural malady. That claim was first made in an omnibus pretrial motion which the trial court denied. Roa subsequently failed to include it in his direct appeal or in any of his post-conviction motions. Because Roa procedurally defaulted on that claim by not including it in his direct as-of-right appeal or in any of his section 440.10 motions, this Court lacks jurisdiction to hear it. See Coleman, at 750, 111 S.Ct. 2546.

The admissibility of Roa’s post-arrest statement is also challenged on due process and equal protection grounds in the Amended Petition, but, like the Miranda claim, those claims were not raised in either his direct appeal or in any of his post-conviction motions and cannot be exhausted now because of the one-appeal limit imposed by New York law. Spence, 219 F.3d at 170. They are therefore procedurally defaulted and not properly before this Court.

As observed by Judge Maas, Roa’s defaults cannot be excused by establishing cause, actual prejudice or a fundamental miscarriage of justice with respect to the claims relating to his post-arrest statement. He has shown no objective impediments to compliance stemming from either a lack of information available to his attorney or from official interference; nor has he demonstrated that any constitutional errors denied him fundamental fairness.

Roa has also failed to show that he is actually innocent under any standard. Roa admitted he entered the apartment where the robbery, murder and attempted murder took place with the intent to conduct a robbery with a gun. (Hearing Tr. at 31-36.) This admission is corroborated by Roa’s fingerprints which were found on a light fixture which concealed a hidden void used as a drug cache. (Id.) At his trial, the only question before the jury was whether Roa or his accomplice fired the shots. An eyewitness testified that it was Roa who ordered her to “get down” on the floor before stealing her jewelry, murdering her boyfriend and then shooting her in the back of the head. (Tr. 93-96, 113-114, 190.) In the face of this evidence against him, Roa replies that “Petitioner has always asserted that he is innocent, but does not have the proof (other that [sic] his own testimony) to prove it.” (Pet. Objections at 2). Petitioner has not made an adequate showing that he is actually innocent of the crimes for which he was convicted for purposes of being excused from his procedural defaults.

In addition, Roa has not demonstrated that the defaults relating to his post-arrest statement claims may be excused because they were caused by ineffective assistance of counsel. Although he asserts his trial counsel failed “to properly preserve and argue” his right to counsel while making his post-arrest statement, he ignores the fact that his trial counsel raised that issue during a pretrial suppression hearing. (Hearing Tr. 105-115,177-78.)

Moreover, Roa’s procedural defaults cannot be excused by his appellate counsel’s failure to raise his post-arrest statement claims on appeal because putting forward the strongest issues on appeal at the expense of leaving others out does not constitute ineffective assistance of counsel. To establish ineffective assistance of appellate counsel through failure to include claims in an appeal, a petitioner must establish that counsel failed to raise “significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994); Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (for habeas purposes, defense counsel assigned to prosecute appeal does not have constitutional duty to raise every nonfrivolous issue). There is a “strong presumption that [counsel’s] conduct falls within the wide range of reasonable professional assistance” thus requiring a petitioner to “overcome the presumption that, under the circumstances, the challenged action might be considered sound ... strategy.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citation and internal quotation marks omitted).

While it is true that appellate counsel failed to assert the Miranda, Fifth and Fourteenth Amendment claims related to Roa’s post-arrest statement on appeal, nothing in the record indicates that the issues argued on appeal were “clearly and significantly weaker” than the post-arrest statement claims made in the Amended Petition. Mayo, 13 F.3d at 533. Indeed the trial court concluded that the Miranda claim, raised during a pretrial suppression hearing, was meritless because of its factual finding that Roa was fully advised of his Miranda rights before knowingly and voluntarily waiving them and that the police were not aware Roa had retained counsel in this case at the time he made his post-arrest statement. (Appendix, Exh. B at 15.) In habeas proceedings, state court findings of fact are presumed to be correct and petitioners have the burden of rebutting the state court’s findings by clear an convincing evidence. See Leslie v. Artuz, 230 F.3d 25, 31 (2d Cir.2000). On this record, Roa has not and cannot meet this burden.

b. Ineffective Assistance of Counsel Claims

Separate from the issue of whether ineffective assistance of counsel can excuse Roa’s procedurally defaulted claims is the issue of whether certain of the ineffective assistance of counsel claims raised in the Amended Petition are themselves procedurally defaulted. Roa claims his trial lawyer’s failure to object to bolstering of testimony by the prosecutor and to the court’s jury instruction regarding eyewitness testimony deprived him of his constitutional right to counsel. Like the claims related to his post-arrest statement, these claims, initially made in his second section 440.10 motion, submitted after his direct appeal was perfected, are procedurally defaulted. In denying the 440.10 motion, the state court held that the claims should have been raised on direct appeal as they were based entirely on facts contained within the record on appeal. (Ex. J. at 4-5.) Because the trial court ruled these claims procedurally barred, they cannot be heard by this Court. Coleman, 501 U.S. at 750, 111 S.Ct. 2546.

In Roa’s third 440.10 motion, he claimed, as he does in his Amended Petition, that his trial counsel provided ineffective assistance because he failed to contact Roa’s prior counsel and would not allow Roa to testify on his own behalf. Although the state court rejected these claims as unmer-itorious, it also deemed them procedurally barred because Roa was not justified in failing to raise them in his prior section 440.10 motions. N.Y. C.P.L. § 440.10(3)(c) (state court “may deny a motion to vacate a judgment when ... [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so.”) The claims are procedurally defaulted for habe-as purposes because a state court’s reliance on a procedural bar prohibits a petitioner from seeking habeas review even though the state court ruled on the merits in the alternative. Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996) (procedural default is an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits.). However, even if these claims were not procedurally defaulted, they nonetheless would fail on the merits.

Roa contends that had his prior attorney been contacted by his trial counsel, she could have testified at the pretrial suppression hearing that she represented Roa, not only on a past, unrelated case, but also on the present case. This testimony would have resulted in the suppression of his post-arrest statement, Roa asserts, and failing to call her violated his constitutional right to counsel. Judge Maas concluded correctly, however, that, in light of a sworn affirmation submitted by Roa’s prior attorney in which she stated that “at the times of any statements allegedly made to law enforcement officials” she represented Roa “in connection with outstanding felony bail jumping charges in New York County Supreme Court,” she could not have later testified with any measure of credibility that Roa had also retained her to represent him in this case prior to his arrest. (May 5, 1993 Affirm. Of Susan M. Russell, Esq., ¶ 13.) In view of the prior affidavit, Roa’s trial counsel cannot be faulted for failing to call Roa’s prior attorney to testify in a suppression hearing.

With respect to the merits of Roa’s contention that his constitutional rights were violated by his trial attorney’s failure to call him as a witness, he claims that he wanted to testify on his own behalf but was “coerced” by his attorney into waiving that right. In rejecting this claim in Roa’s third 440.10 motion, the trial court stated:

The defendant stated that he understood his options and that he did not need to discuss them further with [trial counsel]. Now, all of the sudden, ... the defendant claims that, contrary to what he informed the judge while speaking on the record, he really did not understand his rights. This claim is contradicted by the record.

(Appendix, Exh. L.) As Judge Maas correctly concluded, this claim is without merit. The record reveals that Roa was fully informed by the trial court of his “absolute right to testify” and given an opportunity to further consider his decision not to. (Trial Tr. at 520-21.) Roa passed on that opportunity and voluntarily declined the option to testify in open court. (Id.)

II. Unexhausted Claims

Unlike a proeedurally defaulted claim, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) allows federal courts to exam the merits of unexhausted claims and deny a writ of habeas corpus based on that examination. 28 U.S.C. 2254(b)(2). Here, Judge Maas determined it prudent to examine the merits of Roa’s unexhausted claims because of the lengthy period of time this case has been pending in federal court. After doing so, he recommended that all of the ineffective assistance of trial counsel and appellate counsel claims be dismissed as meritless. Judge Maas recommended the same with respect to Roa’s claim that the Appellate Division violated his Fifth and Fourteenth Amendment due process and equal protection rights by failing to address facts or hold hearings in connection with its decision denying petitioner relief. Having determined Judge Mass’s recommendations to be correct, I comment briefly on those claims.

a. Ineffective Assistance of Trial Counsel

i. Pre-Indictment Delay

Roa contends that trial counsel should have but failed to request a Singer hearing to challenge the prosecution’s delay in arresting and indicting him after he was identified by the police. See People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17, 376 N.E.2d 179 (1978) (unjustifiable lengthy delay in commencing prosecution may require dismissal even without a showing of actual prejudice). The prosecution intentionally delayed arresting and indicting him, Roa claims, so that the police could get his statement without his counsel being present. Judge Maas correctly concluded that this unexhausted claim is meritless because, inter alia, the record reveals the delay of approximately nine months was justified and not part of a strategy to deny Roa his constitutional rights. Extensive efforts were made to apprehend Roa from the time he was identified until he was apprehended. The detective in charge of the case conducted surveillance of Roa’s neighborhood, circulated flyers containing Roa’s photograph and created “wanted cards” to give to fellow officers. (Suppression Hearing Tr. at 16-18, 86-88.) While it is true that during the nine months between his identification and his arrest Roa had voluntarily surrendered in connection with another alleged crime and had made court appearances in connection therewith, the detective in charge of this case testified that he was unaware of those circumstances and that had he been aware, Roa “would have been apprehended a lot sooner.” (Id. at 88.) Roa’s unexhausted pre-indictment delay claim is without merit.

ii. Cross Examination of Detective Im-perato / Pretrial Investigation

Roa claims that he received ineffective assistance of counsel because trial counsel did not ask the detective in charge of investigating the crime for which Roa was convicted whether he knew that Roa was not “on the run” from police and that he had, in fact, turned himself in connection with an unrelated ease. However, the prosecution never argued that Roa was “on the run” or otherwise seeking to avoid apprehension, and, as Judge Maas observed, no competent criminal defense attorney would needlessly seek to inform a jury of his client’s involvement in other crimes. Thus, petitioner’s proposed area of inquiry would have been counterproductive. Trial counsel’s failure to pursue this line of questioning with the detective does not constitute ineffective assistance of counsel.

Roa also asserts that his trial counsel was constitutionally ineffective because he conducted an inadequate pretrial investigation which failed to apprise him that the lineup in which Roa was identified by the victim-eyewitness was tainted. Roa contends that he told his trial counsel that the detective in charge of investigating the crimes for which he was convicted took a photograph of him prior to the lineup and likely showed it to the victim-eyewitness, enabling her to quickly pick him as the perpetrator. Specifically, Rod claims:

Counsel was informed by the defendant at the hearings that “detective Imperato took a[P]olaroid photograph of me, by myself, in the absence of counsel, before the line-up” and “that I was the only one wearing a burgundy sweatshirt that stood out”, the defendant also informed counsel that “if the witness was shot in the head as they claim and has problems with her vision”, the detective could have shown her that photo, which was probably the reason the witness identified me as the perpetrator so quickly.

(Appendix, Exh. H at 6-7.) Judge Maas’s R & R, however, correctly concludes that this claim is meritless because, inter alia, the victim-eyewitness knew Roa before the crime occurred and had identified him in a photo array only a few days after the crime was committed, months before the lineup of which petitioner complains. (Hearing Tr. at 52; Trial Tr. at 114-15.) Trial counsel’s refusal to pursue a purely speculative line of inquiry at Roa’s behest did not constitute ineffective assistance of counsel.

Citing prison visitation logs as evidence that the time trial counsel spent conferring with him was inadequate, Roa contends he received ineffective assistance of counsel because of trial counsel’s failure to adequately prepare for trial. Roa also points to trial counsel’s entreaties that he accept a plea as support for the assertion that trial counsel did not adequately prepare. The state court rejected this claim, made in Roa’s second 440.10 motion, as “insufficient to substantiate the claim of deprivation of effective counsel.” (Appendix, Exh. J at 3) Judge Maas reached the same conclusion. Indeed, Roa has failed to make a showing that any additional time spent with him or otherwise preparing for trial would have changed the result of the trial — and that is what Strickland requires. 466 U.S. at 691, 104 S.Ct. 2052 (“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”).

iii. Bolstering

Separate from Roa’s procedurally defaulted claim of ineffective assistance of counsel based on trial counsel’s failure to object to prosecutorial bolstering is the claim that the alleged bolstering independently violated his Fourteenth Amendment due process and equal protection rights. The independent bolstering claim, however, appears to be a mislabeled improper vouching claim. In general, a prosecutor may not “vouch for their witnesses’ truthfulness” or “express ... personal belief[s] or opinion[s] as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” U.S. v. Modica, 663 F.2d 1173, 1178-79 (2d Cir.1981) (citation and internal quotation marks omitted). Notwithstanding the rule against prosecutorial vouching, improper remarks by prosecutors “justify a reversal ... only if it caused the defendant substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process.” U.S. v. Carr, 424 F.3d 213, 227 (2d Cir.2005) (citation and internal quotation marks omitted); Modica at 1182 (defendant was not substantially prejudiced or deprived of a fair trial despite numerous improper remarks by prosecutor).

Petitioner complains of two statements made by the prosecutor during trial about the eyewitness identification of Roa, one during the government’s opening statement and one made during its closing argument. In her opening statement, the prosecutor described to the jury how the victim-eyewitness had previously identified Roa as the man who shot her and killed her boyfriend and said “I expect she’ll still remember what he looked like and she’ll be able to identify him in court.” (Trial Tr. 21-22.) During her closing, the prosecutor said several times, “I submit to you” followed by various iterations of statements describing the eyewitness’s identification of Roa as truthful and correct. (Trial Tr. at 574, 578-79, 583-84, 594.) Judge Maas concluded that the prosecutor’s remarks during her opening- statement were permissible as an overview of what the government believed and expected the evidence would show and were not improper vouching for the eyewitness or an improper expression of the prosecutor’s personal beliefs. Regarding the remarks made during the prosecutor’s closing argument, Judge Maas concluded they were not improper as they referenced the evidence that was presented and expressed no personal opinions. See United States v. Perez, 144 F.3d 204, 210 (2d Cir.1998) (prosecutor’s arguments not improper simply because they begin with, “I submit”). Judge Maas is correct on both accounts. Roa’s constitutional rights were not violated by the prosecutor’s statements.

b. Ineffective Assistance of Appellate Counsel

Roa’s appellate counsel was constitutionally ineffective, the Amended Petition asserts, because he failed to include an argument in the appellate brief that trial counsel was constitutionally ineffective for failing to object to the trial court’s eyewitness testimony jury charge. Although appellate counsel did brief the argument that the court’s jury charge was inadequate, he did not assert that trial counsel was ineffective for failing to object to that charge. After the Appellate Division declined to review the claim, Roa asserted ineffective assistance of trial counsel in a 440.10 motion based on trial counsel’s failure to object. Roa made this claim notwithstanding the Appellate Division’s statement that had the claim been preserved, it would have found that the trial court “delivered a full and complete identification charge.” People v. Roa, 270 A.D.2d 103, 103, 704 N.Y.S.2d 470 (1st Dep’t 2000). The claim challenging trial counsel’s decision not to object to the jury charge was deemed procedurally barred by the state court because it should have been included in Roa’s direct appeal. Roa, now asserts, however, that the jury instruction violated his Fifth and Fourteenth Amendment due process rights in addition to his Sixth Amendment right to effective appellate counsel.

In the due process context, a habeas petitioner is not entitled to relief unless “there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution.” Jones v. United States, 527 U.S. 373, 390, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (internal quotation marks and citation omitted). Whether the jury instruction violated the petitioner’s Fifth and Fourteenth Amendment rights turns on “whether the ailing-instruction by itself so infected the entire trial that the resutling conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) (internal quotation marks and citations omitted). As already noted, it cannot be seriously disputed that Roa was in the apartment on the day of the shootings intending to commit a robbery with a gun. Thus, Judge Mass concluded correctly that, in that context, the jury charge regarding eyewitness identification was sufficient to enable the jury to decide the narrow issue of whether Roa or his cohort fired the shots.

With respect to the ineffective assistance of appellate counsel claim, it is foreclosed by the rigorous standard enunciated in Strickland, 466 U.S. at 689, 104 S.Ct. 2052 and Jones, 527 U.S. at 390, 119 S.Ct. 2090. In addition, and as Judge Maas correctly concluded, the instruction given conformed to the recommended practice in New York courts and incorporated the expanded pattern jury instructions lauded by the Second Department in People v. Daniels, 88 A.D.2d 392, 401, 453 N.Y.S.2d 699 (2d Dep’t 1982). It thus cannot be said that the instruction violated due process.

c. Alleged Constitutional Violation by the Appellate Division

Finally, Roa’s claim that the Appellate Division denied him his Fifth and Fourteenth Amendment due process and equal protection rights fails. The specific claim is that the Appellate Division violated Roa’s constitutional rights by failing to address the facts as presented by Roa, failing to cite any case law in its decision rejecting Roa’s appeal and petition for a writ of coram nobis, and failing to order a hearing prior to issuing a summary order. Judge Maas correctly concluded that the record was sufficient for the Appellate Division to determine the merits of Roa’s claims without a hearing and that it is well within the Appellate Division’s right to reject claims summarily.

III. Conclusion

The Amended Petition is DENIED. The Clerk is directed to enter judgment in favor of respondent.

Petitioner having not made a substantial showing of the denial of a constitutional right on any ground, a certificate of ap-pealability will not issue. 28 U.S.C. § 2253; Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir.1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir.1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE P. KEVIN CASTEL

FRANK MAAS, United States Magistrate Judge.

I. Introduction

In 1992, petitioner Rudy Roa (“Roa”) and Steven Rodriguez (“Rodriguez”) entered an apartment in Upper Manhattan hoping to obtain money and drugs through the use of force. In the course of the ensuing robbery, they fatally shot the occupant of the apartment and wounded his girlfriend. Following a trial in Supreme Court, New York County, the jury convicted Roa on two counts of Murder in the Second Degree, one count of Attempted Murder in the Second Degree, and two counts of Robbery in the First Degree. Thereafter, on March 22, 1995, Justice Frederic Berman, before whom the case was tried, sentenced Roa to prison terms which, in the aggregate, amounted to a sentence of thirty-three and one-third years to life.

Roa now brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254 (“Section 2254”), to challenge his conviction on numerous grounds. His original pro se petition was filed on July 1, 2002. After extensive litigation relating to the timeliness of that petition and the exhaustion of his claims, Roa filed an amended petition on August 7, 2006. (Docket No. 42 (“Petition” or “Pet.”)). For the reasons that follow, that Petition should be denied. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Roa should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.

II. Background

A. Factual History

On the evening of January 7, 1992, Juan Munoz (“Munoz”) and his girlfriend, Evelyn Rivera (“Rivera”), were in his apartment at 618 Academy Street in Upper Manhattan. (Tr. 73-74). At approximately 10 p.m., Rivera responded to a knock on the front door. Looking through the peephole, she saw Roa and a second man she did not recognize. (Id. at 74-76, 148). Rivera recognized Roa because she had seen him with Munoz on prior occasions. (Id. at 114-15). Although Rivera asked Munoz not to open the door, he permitted the two men to enter the apartment. (Id. at 76, 145, 166). Knowing that Munoz sometimes sold drugs out of his apartment and wishing not to be involved, Rivera went to a nearby store. (Id. at 76, 141-42). By the time she returned to the apartment five minutes later, Roa and the other man were no longer there. (Id. at 76-77).

Approximately one hour later, Roa returned to Munoz’s apartment in the company of a different man, later identified as Rodriguez. (Id. at 77-78, 148-49, 157-58). After gaining entry into the apartment, Roa and Rodriguez followed Munoz into the kitchen, while Rivera remained on the couch. (Id. at 79-80). Several moments later, Rivera heard the sounds of a struggle. (Id. at 80). Roa then entered the living room and directed Rivera at gunpoint to “get on the floor.” (Id. at 82-83). In response to Roa’s questions, Rivera said that she had no knowledge of any money or drugs in the apartment, but added that she would not provide the information even if she did. (Id. at 85,186). Roa then left Rivera with Rodriguez and brought Munoz into the bathroom, where he demanded that Munoz turn over his money and drugs. (Id. at 84-85). Although Munoz initially protested that he had neither money nor drugs in the apartment, he later agreed to give Roa what he wanted. (Id. at 84-87).

Subsequently, Roa brought Rivera into the bedroom, to which Rodriguez also had taken Munoz. (Id. at 89-90). After telling Rivera that he would not injure her, Roa directed them both to lie on the bedroom floor. (Id. at 89, 92). Rivera complied, but Munoz refused to do so, protesting that Roa had gotten what he wanted and should leave. (Id. at 90-92).

By this point, Rivera and Munoz had already had their hands tied behind their backs. (Id. at 92). From her position on the floor, Rivera could see that Roa had his gun pointed at Munoz. (Id. at 93-95). Although Rivera could not see Rodriguez, she heard him tell Roa to “just kill them and get it over with.” (Id. at 94). Rivera pleaded with Roa not to kill Munoz, but soon heard two gun shots and saw Munoz fall to the floor. (Id. at 94-96). Roa then shot Rivera in the back of her head. (Id. at 95-96). After Roa and Rodriguez fled from the apartment, Rivera crawled to Munoz and then into the hallway of the building, where a neighbor spotted her. (Id. at 96-98).

The police arrived at the building shortly thereafter. The officers found Rivera in the hallway bleeding from her head and radioed for an ambulance, which transported her to Harlem Hospital. (Id. at 40-41, 97-98). Munoz was in the bedroom, where he had sustained fatal gunshot wounds to his head. (Id. at 42, 500-06). Among the items recovered from the apartment during a subsequent investigation were a .25-caliber semi-automatic pistol, the separate slide for that weapon, and several discharged .25-caliber shells. (Id. at 227-231, 235-44, 283, 286). Despite the state of “disarray” in the apartment, the police also noticed a partially-open trap door, which hid a “vacant space” in the ceiling of the bedroom. (Id. at 42-43). Roa’s fingerprints were on the light fixture concealing the trap door. (Id. at 273-74).

The police ballistics squad later determined that two bullets removed from Munoz’s head by the New York City medical examiner had been fired from the .25-caliber pistol recovered in the apartment. (Id. at 383-84, 392-98, 500-06). The medical examiner established that these shots were fired at close range. (Id. at 503).

B. Pretrial Proceedings

1. Arrest and Indictment

Roa was arrested on October 10, 1992. (H.18). Thereafter, on October 30, 1992, he and Rodriguez were named in an indictment charging them each with two counts of Murder in the Second Degree (intentional and felony murder), one count of Attempted Murder in the Second Degree, two counts of Robbery in the First Degree, two counts of Robbery in the Second Degree, and one count of Assault in the First Degree. (See Resp’t’s Mem. at 2-3).

2. Suppression Hearing

Roa moved to suppress his post-arrest statement to the police on the grounds that he had not been advised of his Miranda rights, and that it was taken in violation of his right to counsel because he was represented by an attorney in connection with an unrelated case at the time it was made. (See Ex. A at 8). Roa also moved to suppress all of the identification evidence. (Id. at 7).

At a hearing on December 6, 1994, Detective Anthony Imperato (“Det.Imperato”) testified that an anonymous source had advised him within days after the shootings that Roa was one of the persons responsible. (H.9). After receiving the tip, Det. Imperato assembled a photo array that included a photograph of Roa and showed it to Rivera, who was in a New Jersey hospital. (Id. at 10, 12-13). Rivera identified Roa from the photo array as one of the men involved in the shootings. (Id. at 13-15). Following the identification, Det. Imperato prepared an “investigation card” and caused department “circulars” to be distributed to other members of the New York City Police Department to ensure that he would be contacted upon Roa’s arrest. (Id. at 16-18).

Det. Imperato also visited Roa’s apartment several times between January and October of 1992 in an effort to locate him. (Id. at 86-87). Det. Imperato testified that he was unaware during this period that Roa had appeared regularly in state court between April and August of 1992 in connection with the prosecution of other unrelated charges. He later learned, however, that Roa had retained Susan Russell, Esq. to represent him in that earlier case. (Id. at 87-88). As Det. Imperato explained, he knew that a warrant for Roa’s arrest had been issued in that case, but did not know that Roa had surrendered because the New York City Police Department was not involved in his return to court. (Id. at 88).

Det. Imperato testified further that he learned of Roa’s arrest at approximately 5 a.m. on October 10, 1992. (Id. at 18-19). After the arrest, the police permitted Roa to make one telephone call, which he placed to a woman named Wanda. (Id. at 38, 114). Det. Imperato began his interview of Roa shortly after that call. (Id. at 22). At the outset of the interview, Det. Imperato stated that the police were investigating Roa’s possible involvement in a murder, and he then advised Roa of his Miranda rights. (Id.). Roa waived those rights in writing without asking to speak to a lawyer or mentioning Ms. Russell. (Id. at 22-25, 101, 105, 107-08, 110, 112).

At the conclusion of the interview, Det. Imperato reduced Roa’s statement to a writing that Roa signed after he was afforded an opportunity to review it and make corrections. In his signed statement, Roa confirmed that he had gone to the apartment with the intention of committing a robbery, but contended that Rodriguez was the person who shot Munoz and Rivera. (Id. at 27-31).

Almost immediately after Roa signed the statement, Det. Imperato received a telephone call from Ms. Russell, who had learned from Roa’s family that Roa was at the police station. Ms. Russell told Det. Imperato that Roa had an “outstanding case.” He responded that “it didn’t really make a difference.” (Id. at 113).

Later the same day, the police conducted a lineup for Rivera, which consisted of Roa and five police officer “fillers,” four of whom were Hispanic. Ms. Russell was present during the lineup at which Rivera identified Roa as the shooter. (Id. at 117-18,124).

Det. Imperato was the only witness at the suppression hearing who gave testimony relevant to Roa’s pretrial motions. Following the completion of the hearing, Justice Berman issued a written decision denying Roa’s motion to suppress on December 20, 1994. (See Ex. B). In his decision, the Justice concluded that neither the photo array nor the lineup was unduly suggestive. (Id. at 14). The Justice further rejected Roa’s contention that he was “not in a position to waive his Miranda rights” prior to being questioned simply because he was then being “represented by an attorney on a prior, unrelated pending charge.” (Id. at 15).

3. Motion to Sever

On the date that he denied Roa’s suppression motion, Justice Berman also inquired from the bench whether either defendant wished to move for a severance on the ground that each defendant was alleging that the other was the shooter. (See id. Attach, at 2-3). After Rodriguez’s counsel made that motion, Justice Berman granted a severance and scheduled Roa’s trial to proceed first. (Id. at 3-4).

C. Trial

Roa’s trial began on January 5, 1995. (Tr. 1). The two principal prosecution witnesses were Rivera and Det. Imperato. Rivera testified about the events of January 7, 1992, and identified Roa in court as the man who had committed the robbery and shot Munoz and her while their hands were bound. (Id. at 79, 136, 176-77). Det. Imperato testified about his interview of Roa and read into the record Roa’s signed confession, in which he conceded that he had gone to the apartment with Rodriguez to rob Munoz at gunpoint, but contended that he was not the person who had fired the gun. (Id. at 413-32).

There was no defense case. (See id. at 523-24).

D. Verdict and Sentencing

On January 22,1995, the jury returned a verdict of guilty on each of the charges presented for its consideration: two counts of Murder in the Second Degree, one count of Attempted Murder in the Second Degree, and two counts of Robbery in the First Degree. (Id. at 685-86).

Roa was sentenced on March 22, 1995. Before imposing sentence, Justice Berman characterized the shooting of the two bound victims as an “assassination,” commenting that “in [his] twenty two years as a Judge [he had] not had a case which [he] felt was more cruel and vicious.” (S.8-9). The Justice noted further that Roa would have faced a death sentence had New York’s then newly-enacted capital punishment statute been in effect at the time Roa shot Munoz. (Id. at 10). The Justice then sentenced Roa to terms which, in the aggregate, amounted to a prison sentence of thirty-three and one-third years to life. (Id. at 11).

E.Subsequent Procedural History

1. First Motion to Vacate Judgment of Conviction

On February 11, 1997, Roa moved pro se, pursuant to Section 440.10 of the New York Criminal Procedure Law (“CPL”), for an order vacating his judgment of conviction on the grounds that: (a) the trial court lacked “jurisdiction” to sentence him to consecutive prison terms; (b) the prosecutor had introduced his post-arrest statement in violation of his Sixth Amendment rights; and (c) his trial counsel provided ineffective assistance because he failed to question Det. Imperato about Roa’s other pending case. According to Roa, such cross-examination of Det. Imperato would have shown that Roa “had a bench warrant” but “turned [him]self in,” and that the detective therefore could have located him earlier. (See Pet. ¶ 12(a); Ex. E (“First 440.10 Motion”)).

On March 14, 1997, Justice Berman denied this motion on the ground that each of the issues raised could be presented as part of Roa’s direct appeal, which had yet to be perfected. (See Ex. G). Thereafter, on September 16, 1997, the Appellate Division denied Roa’s application for leave to appeal that decision. See People v. Roa, No. M-3342, 1997 N.Y.App. Div. LEXIS 9987, at *1 (1st Dep’t Sept. 16, 1997).

2. Direct Appeal

On August 6, 1999, James Nolan, Esq., who had been appointed as Roa’s appellate counsel, filed a brief on Roa’s behalf without his knowledge or consent. In that brief, Mr. Nolan argued that (a) the trial court had deprived Roa of due process by failing to instruct the jury properly with respect to its evaluation of eyewitness testimony, and (b) the sentence that Roa received was excessive. (See Ex. C). On August 30, 1999, after receiving a copy of that brief, Roa requested the assignment of new appellate counsel, or, in the alternative, leave to file his own pro se brief because Mr. Nolan allegedly had failed to raise important legal issues. (See Ex. M at 8). On November 16, 1999, the Appellate Division denied that motion. (See id.).

On March 14, 2000, the Appellate Division unanimously affirmed Roa’s conviction, concluding that the jury charge claim was unpreserved and meritless, and that Justice Berman had not abused his sentencing discretion. See People v. Roa, 270 A.D.2d 103, 704 N.Y.S.2d 470 (1st Dep’t 2000). Thereafter, Mr. Nolan sought leave to appeal to the Court of Appeals, again without Roa’s knowledge or consent. (See Pet. ¶¶ 9, 10; Ex. M at 9 n. 2). On July 28, 2000, the Court of Appeals summarily denied that application. See People v. Roa, 95 N.Y.2d 857, 714 N.Y.S.2d 8, 736 N.E.2d 869 (2000). Mr. Nolan did not thereafter file a petition for a writ of cer-tiorari on Roa’s behalf. (See Pet. ¶ 10(g)).

3. First Habeas Petition

Roa’s original habeas petition, dated July 1, 2002, was received by this Court’s Pro Se Office on July 11, 2002. (See Docket No. 1).

4. Second Motion to Vacate Judgment of Conviction

On August 27, 2002, Roa again moved pursuant to CPL § 440.10 for an order vacating his judgment of conviction, this time arguing that his trial counsel, Harold Schwartz, Esq., had rendered ineffective assistance. (See Pet. ¶ 12(b); Ex. H (“Second 440.10 Motion”)). On December 16, 2002, Justice Eduardo Padró denied the Second 440.10 Motion. (See Ex. J).

Roa’s first claim in his Second 440.10 Motion was that Mr. Schwartz should have requested a Singer hearing rather than merely filing a CPL § 30.30 motion challenging the prosecution’s pre-indictment delay. In People v. Singer, 44 N.Y.2d 241, 254-55, 405 N.Y.S.2d 17, 376 N.E.2d 179 (1978), the New York Court of Appeals held that the People must establish good cause for “protracted” preindictment delay, but are entitled to an evidentiary hearing in order to meet their burden. Rejecting Roa’s Singer claim, Justice Pa-dró noted that Roa did not allege that he had drawn Mr. Schwartz’s attention to any problems arising out of the pre-arrest delay, failed to address Mr. Schwartz’s reasons for not submitting a Singer motion, and had not shown any prejudice. (See Ex. J at 2-3). As the Justice explained, Roa’s “barebone conclusion [was] insufficient to substantiate his [Singer ] claim.” (Id. at 3 (citation omitted)).

Roa’s second contention was that Mr. Schwartz’s failure to prepare adequately for trial was established by his entreaties to Roa to plead guilty, his failure to question Det. Imperato during the pretrial hearing about a photograph of Roa that had been taken before the lineup, and the fact that he never visited Roa at a Department of Correction facility. The Justice rejected the merits of this claim as well because (a) Roa admitted that he had met with his counsel in the court’s holding facilities, (b) the failure to inquire about the photograph was “not indicative of [a] failure to conduct [a] pre-trial investigation,” and (c) counsel might reasonably have concluded that a plea was the best option for Roa given the prospect that he would be convicted following a trial. (Id. at 3-4).

Roa also argued in his motion that Mr. Schwartz failed to object to a portion of the prosecutor’s opening statement and certain trial testimony that constituted improper “bolstering.” (Ex. H at 8-9). Rather than addressing the merits of these claims, the Justice held that Roa’s arguments were based entirely on the trial record and therefore should have been raised on direct appeal. Because they were not, the Justice declined to consider them on collateral review. (See Ex. J at 4 (citing CPL § 440.10(2)(c))).

The Justice also rejected on procedural grounds Roa’s final claim that Mr. Schwartz should have objected to the trial court’s identification charge. As noted above, the Appellate Division previously had rejected Roa’s claim regarding the charge as unpreserved and meritless. Justice Padró declined to consider the same claim, repackaged as an ineffective assistance of counsel claim, because it was based entirely on the trial record and could have been raised on direct appeal. (Id. at 5).

On April 3, 2003, the Appellate Division summarily denied Roa’s application for leave to appeal the denial of his Second 440.10 Motion. People v. Roa, No. M-358, 2003 N.Y.App. Div. LEXIS 3627, at *1 (1st Dep’t Apr. 3, 2003).

5. Third Motion to Vacate Judgment of Conviction

On August 28, 2004, Roa filed a third motion pursuant to CPL § 440.10, again based on the alleged ineffective assistance of his trial counsel. This time, Roa alleged that Mr. Schwartz had not contacted his prior counsel, Ms. Russell, prior to the suppression hearing, or honored his request to testify on his own behalf. (See Pet. ¶ 12(c); Ex. K (“Third 440.10 Motion”)).

Justice Padró denied the Third 440.10 Motion on March 21, 2005. (See Ex. L). As the Justice explained, Roa’s failure to raise either of his new claims in his Second 440.10 Motion precluded his attempt to raise them in his Third 440.10 Motion. The Justice also found that both branches of Roa’s motion were meritless because Roa (a) had “failed to demonstrate the absence of legitimate reasons for counsel’s failure to procure Ms. Russell’s testimony at the hearing,” and (b) clearly understood that he had a right to testify at trial and knowingly waived that right on the record. (Id. at 3-4).

On March 21, 2005, the Appellate Division summarily denied Roa’s application for leave to appeal from the denial of his Third 440.10 Motion. See People v. Roa, No. M-1835, 2005 N.Y.App. Div. LEXIS 6862, at *1 (1st Dep’t June 14, 2005).

6. Motion for Writ of Error Coram Nobis

On February 22, 2005, Roa filed a motion for a writ of error coram nobis alleging that he had been denied the effective assistance of appellate counsel because Mr. Nolan failed to argue on appeal that: (a) the police violated his right to counsel; (b) the police obtained his confession in violation of his Miranda rights; (c) the prosecution improperly “bolstered” its witness’ testimony; and (d) Mr. Schwartz failed to (i) object to the prosecution’s “bolstering,” (ii) object to the court’s jury charge, (iii) move to dismiss the charges because of the prosecution’s preindictment delay, or (iv) conduct a sufficient pretrial investigation. (See Pet. ¶ 12(d); Ex. M).

The Appellate Division denied Roa’s motion summarily on June 16, 2005. (See Pet. ¶ 12(d)). Thereafter, Roa sought leave to appeal to the Court of Appeals. On January 31, 2006, that application was denied. See People v. Roa, 6 N.Y.3d 780, 811 N.Y.S.2d 347, 844 N.E.2d 802 (2006).

7. Subsequent Proceedings in this Court

a. Prior Litigation

On September 11, 2002, Chief Judge Mukasey referred this case to me for a report and recommendation. (Docket No. 4). Thereafter, on November 13, 2002, the respondent moved to dismiss Roa’s initial petition on the ground that it was untimely. (Docket No. 6). On March 28, 2003, I recommended that this motion be granted. (Docket No. 9 (“First Report”)).

Subsequently, on May 17, 2004, Judge Mukasey rejected my recommendation and denied the respondent’s motion, relying, in part, on reply papers that Roa had submitted to him, but which I was unable to locate before issuing the First Report. Judge Mukasey also remanded the case to me, directing that I “develop the facts relevant to Roa’s claim that [he was entitled to equitable tolling because he] was never notified of the appellate decisions in his case and ... could not otherwise have learned of those dispositions through reasonable diligence.” (See Docket No. 16 (“Remand”) at 11). Judge Mukasey further indicated that I “should try to locate Roa’s [First 440.10 M]otion and decide which claims in Roa’s habeas petition are exhausted and which claims remain unex-hausted.” (Id. at 13).

Although Judge Mukasey expressly noted that there might not be a need for a “full-blown evidentiary hearing,” (id. at 11), I concluded that some discovery was necessary. (Docket No. 17). Accordingly, on May 25, 2004,1 directed that counsel be appointed for Roa pursuant to the Criminal Justice Act. (See id.). Murray Singer, Esq. subsequently was appointed as Roa’s counsel. (See id.).

An evidentiary hearing then was held before me on November 19, 2004. The testimony and other evidence adduced at the hearing established that Roa had not been notified of the progress of his direct appeal. (See Docket No. 26 at 10-11, 19-20, 37-40). Nevertheless, Roa regularly checked the Table of Cases in West’s New York Digest in an effort to monitor the status of his appeal. (See id. at 45). After not hearing anything for nearly three years, Roa wrote to the Appellate Division in 2002, learning for the first time that his direct appeal had been denied. (Id. at 43). He filed his initial petition less than two months later. (See Docket No. 1).

For these reasons, I concluded in a second Report and Recommendation that Roa was “entitled to have the time for the filing of his petition equitably tolled from July 28, 2000 [the date the Court of Appeals denied Mr. Nolan’s application for leave to appeal], until May 16, 2002 [the date the Court of Appeals denied Roa’s pro se request for the same relief].” (Docket No. 29 (“Second Report”), at 21). I also concluded, however, that most of the claims that Roa sought to pursue were unex-hausted, and that the Court therefore did “not presently have the jurisdiction to hear those claims.” (Id. at 19-21).

Regrettably, my Second Report failed to state that Roa should be given time to exhaust his unexhausted claims in accordance with the procedures set forth in Zarvela v. Artuz, 254 F.3d 374, 381-82 (2d Cir.2001). Focusing on my comments regarding a lack of jurisdiction, Judge Muka-sey therefore dismissed Roa’s habeas petition by order dated January 27, 2006. (Docket Nos. 31, 32). Evidently believing that he had the right to pursue his claims despite the dismissal, Roa submitted a new petition to the Pro Se Office on April 24, 2006, which was assigned a new docket number. See Roa v. Smith, 06 Civ. 3682(MBM)(FM).

The dismissal of Roa’s original petition plainly was a mistake. Moreover, because I had recommended that the limitations period be equitably tolled only until May 16, 2002, Roa’s new habeas proceeding would have been time barred if the dismissal of the initial petition remained in effect. For these reasons, by order dated July 13, 2006, Judge Mukasey dismissed Roa’s second petition and amended his January 27 order nunc pro tunc to dismiss only the unexhausted claims in Roa’s initial petition; Judge Mukasey also stayed any further proceedings regarding the remaining claims so that Roa could exhaust his unexhausted claims in state court. (Docket No. 33).

With the case thus back on track, I directed, by order dated July 17, 2006, that Roa serve and file his amended petition and any additional supporting papers by August 18, 2006. (Docket No. 34). On or about August 14, 2006, Roa filed his amended Petition. (Docket No. 42). Thereafter, on October 16, 2006, this proceeding was reassigned to Your Honor following Judge Mukasey’s retirement. (Docket No. 36). After the reassignment, the respondent submitted his opposition papers on November 3, 2006. (Docket Nos. 38, 39). On January 10, 2007, Roa submitted reply papers. (Docket No. 43 (“Reply”)). The matter is consequently now fully briefed.

b. Roa’s Claims

In his Petition, Roa asserts that:

• He was denied his Sixth Amendment right to counsel, as well as his rights to due process and equal protection under the Fifth and Fourteenth Amendments, because the police questioned him outside the presence of an attorney who had been appointed to represent him in another case and whose presence he had requested.

• He was denied his Fifth Amendment right to a fair trial, as well as his rights to equal protection under the Fifth and Fourteenth Amendments, because his “illegally signed confession” was admitted into evidence at trial, thereby requiring him to be a witness against himself.

• He was denied his Sixth Amendment right to remain silent, as well as his New York State constitutional rights, when the prosecutor introduced a statement at trial that he allegedly did not make.

• He was denied the effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments, because his trial counsel failed to ask Detective Imperato certain questions relating to an outstanding bench warrant.

• He was denied his Sixth Amendment right to compulsory process, and therefore his rights to due process and equal protection under the Fifth and Fourteenth Amendments, because he wanted to call an attorney who had been appointed to represent him in another ease, as well as testify in his own defense, but his trial attorney refused to call the attorney or him as witnesses.

• He was denied his Sixth Amendment right to effective assistance of counsel, and therefore his rights to due process and equal protection under the Fifth and Fourteenth Amendments, because his trial counsel failed to call a witness in his favor, failed to request a hearing regarding pre-indictment delay, failed to conduct any pretrial investigation, failed to object to the trial court’s jury instruction regarding eyewitness testimony, failed to object to the prosecution’s “bolstering” of witness testimony, failed to raise his “right to counsel” argument, and coerced him into waiving his right to testify after preventing him from testifying.

• He was denied his rights to due process, a fair trial, and equal protection under the Fourteenth Amendment because the prosecution “bolstered” witness testimony.

• He was denied his Fifth Amendment right to due process by reason of excessive pre-indictment delay.

• He was denied his Sixth Amendment right to effective assistance of counsel, and therefore his rights to due process and equal protection under the Fifth and Fourteenth Amendments, because his appellate counsel failed to raise “obvious and stronger” issues on direct appeal.

• He was denied his rights to due process and equal protection under the Fifth and Fourteenth Amendments because the Appellate Division failed to consider his appeal properly.

(Pet. at 4-7).

III. Discussion

A. Standard of Review

A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petitioner thus has the burden of proving, by a preponderance of the evidence, that his rights have been violated. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir.1997).

Section 2254, as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides, in part, that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

28 U.S.C. § 2254(d)(1) (emphasis added).

As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir.2000), the Supreme Court has “construed the amended statute so as to give independent meaning to ‘contrary [to]’ and ‘unreasonable.’ ” “Under the' ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause, a federal habeas court should “ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. This standard does not require that reasonable jurists would all agree that the state court was wrong. Id. at 409-10, 120 S.Ct. 1495. Rather, the standard “falls somewhere between ‘merely erroneous and unreasonable to all reasonable jurists.’ ” Jones v. Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir.2000)).

Section 2254(d)(2) also authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court “resulted in a decision that was based on an unreasonable determination of the facts in light of the e