Bonilla v. Lee (35 F. Supp. 3d 551, 2014)

Citations

35 F. Supp. 3d 551

Full opinion text

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

Rene Bonilla brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial, the petitioner was convicted in the New York State Supreme Court, Bronx County of one count of murder in the second degree in violation of New York Penal Law § 125.25(1) and one count of attempted murder in the second degree in violation of New York Penal Law §§ 110.00 and 125.25(1). The petitioner was sentenced to consecutive terms of imprisonment of twenty-five years to life and twenty-five years. The judgment of conviction was affirmed on December 30, 2008 by the Appellate Division, First Department, 57 A.D.3d 400, 870 N.Y.S.2d 18 (2008), and leave to appeal to the Court of Appeals was denied on April 24, 2009. 12 N.Y.3d 814, 881 N.Y.S.2d 21, 908 N.E.2d 929 (2009). The petitioner subsequently filed two motions to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 in the trial court, and one motion for a writ of error coram nobis in the Appellate Division, First Department. All of these applications were denied and leave to appeal was denied.

In the present habeas petition, dated May 23, 2013, the petitioner claims that the trial court erred in failing to charge the jury with instructions on the justification defense, the affirmative defense of extreme emotional disturbance, and the lesser-included offense of manslaughter in the first degree. He also challenges the trial court’s imposition of consecutive sentences, and he alleges that his sentence should be reduced as excessive in the interest of justice. Finally, the petitioner brings various claims for denial of the effective assistance of counsel during the pretrial proceedings. For the reasons explained below, the petition for a writ of habeas corpus is denied.

The petitioner was indicted by grand jury on September 8, 2005. The Indictment charged him with murder in the second degree (Count One), murder in the second degree based on depraved indifference (Count Two), attempted murder in the second degree (Count Three), and criminal possession of a weapon in the second degree (Count Four). On May 11, 2007 a jury found the petitioner guilty of murder in the second degree and attempted murder in the second degree. (See Trial Tr. (“Tr.”) at 689-91.) On October 29, 2007, Justice Dominic Massaro sentenced the petitioner to consecutive prison terms of twenty-five years to life and twenty-five years for the murder and attempted murder convictions, respectively. 37 Misc.3d 1228(A), 964 N.Y.S.2d 61, 2012 WL 6051926 at *1 (Sup.Ct.2012).

The events leading to the petitioner’s conviction took place in the summer of 2005. Testimony at trial indicated that the petitioner and Leonardo De’Aza had been long-time friends, (Tr. at 101, 271, 467), but that in approximately July 2005, their relationship deteriorated after De’Aza’s uncle, Fernando, told De’Aza that the petitioner had robbed Fernando. (Tr. at 273; see also Tr. at 103-04.)

At trial, De’Aza and the petitioner both testified that they had altercations in the weeks that followed. De’Aza testified that the first altercation began when De’Aza approached the petitioner and the petitioner’s pregnant girlfriend in the street and asked the petitioner why he had robbed his uncle. (Tr. at 274-75.) According to De’Aza, the petitioner then threw a punch at De’Aza, a fistfight ensued, and De’Aza eventually knocked the petitioner out. (Tr. at 276.) The petitioner confirmed that this altercation had occurred, but he testified that De’Aza threw the first punch. (Tr. at 471.) No weapons were used during the fight. (Tr. at 276; see also Tr. at 470-71.)

According to the petitioner, two other altercations followed this initial encounter. First, a few days after the fistfight, De’Aza and a few of his associates approached the petitioner as he was riding his bicycle, knocked him off of it, beat him up, and stole the bicycle. (Tr. at 471-73.) One of the individuals had a knife. (Tr. at 473.) Then, a few days later, a group of De’Aza’associates attacked the petitioner and beat him up. (Tr. at 473-75.) De’Aza was not present during this last attack. (Tr. at 474.)

On September 5, 2005, the petitioner was staying in an apartment in a building at 526 East 138th Street in the Bronx. (Tr. at 476; see also Tr. at 373.) The petitioner testified that at some point between 4:00 and 5:00pm, the petitioner’s girlfriend called him and informed him that De’Aza was “looking for [him] with a gun and he wanted to kill [him].” (Tr. at 478.) She also said that De’Aza and two associates had come to her house looking for the petitioner. (Tr. at 478-79.)

Thé petitioner further testified that at some point later in the day he received two additional phone calls regarding De’Aza. During the second call, an unidentified individual informed the petitioner that “it was going around that [De’Aza] was looking for [him].” (Tr. at 480.) During the third call, a different individual told the petitioner that if De’Aza and his associates could not find the petitioner, they would attack his pregnant girlfriend. (Tr. at 480-81.)

The petitioner testified that after he received the third call, he “lost [his] head.” (Tr. at 481.) He then proceeded to the apartment at 526 East 138th Street, retrieved a .380 caliber handgun, and went to his girlfriend’s house to retrieve a hooded sweatshirt. (Tr. at 482-83.) At his girlfriend’s house, the petitioner told his girlfriend that he “was going to fix things with [De’Aza] because everything was a misunderstanding ... [and he] did not rob nobody.” (Tr. at 484.)

The petitioner testified that he then left his girlfriend’s house looking for De’Aza, and ultimately found him at Saw Mill Park. (See Tr. at 484.) De’Aza was “with two of his friends on the side of a car.” (Tr. at 485.) The petitioner was wearing the hooded sweatshirt with the hood over his head and the gun concealed in the front pocket. (Tr. at 486.)

According to the petitioner, as the petitioner approached De’Aza from across the street, De’Aza appeared to reach for something at his waist, which the petitioner thought was a gun. (Tr. at 486-88.) At this point the petitioner was “between a van and a car.” (Tr. at 488.) When the petitioner perceived De’Aza reaching for something, he shot at De’Aza twice. (Tr. at 488; see also Tr. at 510-11.)

The petitioner testified that he had no memory of what happened next because he “blanked out” after the first two shots. (Tr. at 488-89.)

In addition to the petitioner, four witnesses who were at or near Saw Mill Park at the time of the shooting testified at the petitioner’s trial. De’Aza’s mother, Sonia Alvarez, was in her home across the street from the park on September 5, 2005 when, at approximately 8:45 or 8:50pm, she heard two gunshots, then a pause, and then an array of additional gunshots. (Tr. at 107-OS.) She then heard people yelling from outside her house that her son had been shot. (Tr. at 109.) She ran to the park across the street and found her son, who was lying on the ground, injured but conscious, with people trying to put pressure on his wounds. (Tr. at 111.) She testified that De’Aza told her the petitioner had shot him, and that Naiesha Pearson had also been hit. (Tr. at 111.) Shortly thereafter De’Aza was transported away from the scene in an ambulance. (Tr. at 112.)

Taisha Pearson was also at the park at the time of the shooting. She testified that shortly before the first shots were fired, De’Aza was helping to fix her daughter Naiesha Pearson’s bicycle on the sidewalk by his parked car. (Tr. at 145, 147-48.) At 8:45pm, Taisha heard two gunshots. (Tr. at 149.) She then picked up her three-and-a-half-month-old daughter and ran to Naiesha, whom she observed leaning on a car. (Tr. at 149,152.) Taisha saw a man in a hooded sweatshirt standing in the middle of the street, which she thought was unusual given the warm weather. (See Tr. at 150-51.) When Tai-sha got to Naiesha, she saw the man in the sweatshirt standing over De’Aza shooting at him. (Tr. at 154-55.) The man fired about four shots at De’Aza from that position. (Tr. at 156.) Taisha lifted up Naie-sha’s shirt and saw that she had been shot in her chest. (Tr. at 157.) Eventually two police officers arrived and transported Tai-sha with her daughter to Lincoln Hospital. (Tr. at 158.)

De’Aza’s aunt, Hilda Alvarez, was also at the park at the time of the shooting. She testified that at approximately 8:45pm on September 5, De’Aza was on the sidewalk by his car helping Naiesha Pearson fix her bicycle. (Tr. at 170, 173.) Hilda was roughly twelve feet from De’Aza when she saw the petitioner run through a gap between two parked cars wearing a hooded sweatshirt, “put his hand in his pocket, and start[] firing.” (Tr. at 173-74, 176; see also Tr. at 178.) She then observed De’Aza attempt to push Naiesha away from him, but Naiesha was clutching his leg. (Tr. at 174.) When Naiesha fell, De’Aza attempted to coax the petitioner away from the children who were playing nearby. (Tr. at 175.) De’Aza then fell to the ground, and the petitioner stood over him and fired more shots at him. (See Tr. at 175-76.) Hilda heard the petitioner fire five shots before she saw him flee in the direction of the apartment on East 138th Street. (See Tr. at 176-77.) She saw a large crowd chase after the petitioner, but she stayed on the scene until an ambulance took De’Aza away. (See Tr. at 179-80.)

Elaine Cintron, Naiesha Pearson’s aunt and a friend of De’Aza, was also at the park during the shooting. She testified that she heard a “pop,” and then saw a man in a black hood standing in the street, emerging from between two vehicles parked on the street. (Tr. at 204-05.) Cintron saw the man fire two more shots at De’Aza, and then De’Aza went down. (See Tr. at 206-07.) At this point she saw Naiesha’s mother run to Naiesha, and then she saw the shooter stand over De’Aza and fire four more times. (Tr. at 208-09.) The shooter then ran from the scene. (Tr. at 209.) Cintron approached De’Aza, who was repeating the words, “Rene did it.” (Tr. at 212.) When police officers arrived, Cintron got in the police car with Taisha and Naiesha Pearson and went with them to Lincoln Hospital. (Tr. at 214.)

Finally, De’Aza testified that he was fixing Naiesha’s bicycle when he heard two people shouting, “Rene watch it, Rene, Rene.” (Tr. at 283.) De’Aza then heard shots from behind him, looked back and saw the petitioner standing in the street, attempted to grab Naiesha to cover her, and was hit with two shots in the back. (Tr. at 283.) De’Aza attempted to throw Naiesha off of him and was hit again in the side and fell to the ground. (Tr. at 283.) The petitioner then “came on top of [him],” fired two more shots, and then attempted to fire a final shot at De’Aza’s face, which De’Aza blocked with his hand. (See Tr. at 289-90.) De’Aza testified that the petitioner shot him five times and only stopped firing when his gun jammed. (Tr. at 290.) At some point while standing over De’Aza, the petitioner said, “I got you now.” (Tr. at 289.) De’Aza responded, “Do it,” and the petitioner shot him again. (Tr. at 289.) De’Aza thought he was dead. (Tr. at 290.) According to De’Aza’s testimony, De’Aza had nothing in his hand during the shooting. (Tr. at 344.)

De’Aza was hit by a total of five bullets. (Tr. at 286, 290.) He spent one to two weeks in the hospital receiving treatment, and at the time of trial he was still experiencing back pain and stomach pain, and had difficulty eating and drinking. (Tr. at 293.)

Naiesha Pearson was pronounced dead at Lincoln Hospital approximately forty-five minutes after she arrived there on the night of the shooting. (See Tr. at 158.) The cause of death was a gunshot wound to her chest. (Tr. at 359.)

The petitioner testified that he recalled eventually returning to the apartment at 526 138th Street after the shooting, where his girlfriend met him. (See Tr. at 489-92.) The girlfriend informed the petitioner that De’Aza had been shot and that a child had been killed. (Tr. at 492.)

After some time, people surrounded the building and started knocking on the door of the apartment. (Tr. at 492.) The petitioner fled the apartment onto the fire escape and was hit by a bottle and fell to the ground. (Tr. at 493.)

Detective Peter Tarsnane of the New York City Police Department testified that he was dispatched to the scene of the shooting on the night of September 5, 2005 and arrived there at approximately 9:30 or 9:45pm. (Tr. at 223-24.) When he arrived, “[t]here was hundreds of people out on the street, people running everywhere. There was a lot of yelling and screaming. ... [I]t was pandemonium....” (Tr. at 225.)

Detective Denis O’Sullivan was also dispatched to the scene that evening. (Tr. at 367.) When O’Sullivan arrived, De’Aza was still on the sidewalk lying face up on the ground, but O’Sullivan was unable to approach him because there were too many people around. (Tr. at 368.)

Later that night, O’Sullivan received an anonymous call that the petitioner was at 526 East 138th Street. (Tr. at 373.) At approximately 2:00am, Tarsnane and O’Sullivan both went to that address. (See Tr. at 227-28, 373.) O’Sullivan testified that the building at 526 East 138th Street was surrounded by a large group of people and several police officers who were attempting to secure the area. (Tr. at 374.) Tarsnane went through the building and out the back door and saw the petitioner lying on the ground in the back. (Tr. at 230-31.) O’Sullivan also found the petitioner lying in the backyard of the building. (Tr. at 374-76.) Tarsnane handcuffed the petitioner, and officers escorted him to a police car. (Tr. at 232.) The petitioner was then taken to the Detective Bureau at 1086 Simpson Street, where he was placed in a cell. (Tr. at 233-34, 376-78.)

Tarsnane and O’Sullivan both testified that the petitioner did not appear to be injured at the time of the arrest. (Tr. at 231, 376.) However, after arriving at the station, the petitioner complained of back pain, and the officers called for an ambulance to take him to the hospital. (See Tr. at 235, 378-79.) While they were waiting for the ambulance, O’Sullivan gave the petitioner a Miranda warning and the detectives then questioned the petitioner about the shooting. (Tr. at 237-46, 379-82.) After answering some questions, the petitioner agreed to give a statement, which Tars-nane recorded by hand. (Tr. at 244-45; see also Resp’t’s Opp’n, Ex. 22.)

After the petitioner gave his statement, the ambulance arrived and took him to Jacobi Hospital. (Tr. at 250-51, 382.) Approximately twelve hours later, O’Sullivan visited the petitioner in the hospital with Assistant District Attorney (“ADA”) Jeremy Shockett and another detective, (Tr. at 384), and ADA Shockett interviewed the petitioner about the shooting. (Tr. 385-86; see also Resp’t’s Opp’n, Ex. 23.) Shockett gave the petitioner a Miranda warning and the interview was recorded. (Resp’t’s Opp’n, Ex. 23 at 1-3; Tr. at 385.)

On September 8, 2005, the petitioner was indicted by grand jury. On April 20, 2006, the petitioner filed a motion to dismiss the Indictment and to suppress the statements made by the petitioner following his arrest. (See Resp’t’s Opp’n, Ex. 21.) Following a Huntley/Dunaway hearing, Justice Michael Gross denied the petitioner’s motions. (See Apr. 26, 2007 Hr’g Tr. (“Hr’g”) at 73-84.) Detective Tars-nane’s transcription of the statement given by the petitioner at the Simpson Street Detective Bureau was entered into evidence and read for the jury during trial. (Tr. at 246-50.) An audio recording of ADA Shockett’s interview of the petitioner was also entered into evidence and played for the jury during trial. (Tr. at 391-93.)

Jury selection began on April 30, 2007, and trial began on May 2, 2007. After both parties had rested, the court denied defense counsel’s request for a charge on the defense of justification, the affirmative defense of extreme emotional disturbance, and the lesser-included offense of manslaughter in the first degree. (See Tr. at 569-70.) Counts Two and Four of the Indictment-charging depraved indifference murder and criminal possession of a weapon, respectively — were stricken, and the jury was charged on Counts One and Three-murder in the second degree and attempted murder in the second degree. (See Tr. at 573-74, 659-66.) With respect to Count One, the court gave a transferred intent charge, 870 N.Y.S.2d at 20, explaining that the jury could convict if it found that the petitioner caused the death of Naiesha Pearson with the intent to cause the death of De’Aza. (See Tr. at 661.)

On May 10, 2007, the jury returned a verdict of guilty on both counts. (See Tr. at 689-91.) Judgment was entered on June 14, 2007, and amended on October 29, 2007. 870 N.Y.S.2d at 19. The petitioner was ultimately sentenced to consecutive terms of twenty-five years to life and twenty-five years. Id. The petitioner appealed, and his conviction was affirmed by the Appellate Division, First Department on December 30, 2008. See id. Leave to appeal to the New York Court of Appeals was denied on April 24, 2009. 12 N.Y.3d 814, 881 N.Y.S.2d 21, 908 N.E.2d 929. The petitioner then brought various applications for post-conviction relief in state court, including two motions to vacate his judgment pursuant to New York Criminal Procedure Law § 440.10 in the trial court, and a motion for a writ of error coram nobis in the Appellate Division, First Department. All of these applications were denied. (Resp’t’s Opp’n, Exs. 10-11, 14-15, 18-20.)

The present petition pursuant to 28 U.S.C. § 2254 was signed on May 23, 2013 and received by the Court on May 30, 2013.

II.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), a federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.2006); Sookoo v. Heath, No. 09cv9820, 2011 WL 1542543, at *3 (S.D.N.Y. Apr.21, 2011).

A state court decision is contrary to clearly established Federal law “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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to” the Supreme Court’s result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Sookoo, 2011 WL 1542543, at *3.

A state court decision is “an unreasonable application of ... clearly established Federal law” if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Williams, 529 U.S. at 407-08, 120 S.Ct. 1495. To meet that standard, “the state court decision must be more than incorrect or erroneous[,] ... it must be objectively unreasonable.” Jones v. Walsh, No. 06cv225, 2007 WL 4563443, at *5 (S.D.N.Y. Dec. 27, 2007) (quoting Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). “[I]t is well established in [this] circuit that the objectively unreasonable standard of § 2254(d)(1) means that [a] petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.” Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir.2003) (internal quotation marks omitted); see also Sookoo, 2011 WL 1542543, at *3.

Section 2254 provides that any factual issues resolved by the state court shall be presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Williams v. Artus, 691 F.Supp.2d 515, 523 (S.D.N.Y.2010).

Because the petitioner is proceeding pro se, his petition is “read liberally and should be interpreted to raise the strongest arguments that [it] suggest[s].” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)); see also Brito v. Brown, No. 09cv5754, 2011 WL 1542516, at *3 (S.D.N.Y. Apr. 21, 2011).

III.

In the petitioner’s first set of claims for relief, the petitioner argues that the trial court denied him the right to a fair trial by failing to charge the jury with: (1) the defense of justification; (2) the affirmative defense of extreme emotional disturbance; and (3) the lesser-included offense of manslaughter in the first degree.

The Supreme Court has instructed that a state court’s failure to give a particular jury instruction does not raise a federal question unless the failure to give the instruction “so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). Federal courts “must of course defer to state-court interpretations of the state’s laws, so long as those interpretations are themselves constitutional” when deciding whether the evidence requires a particular jury instruction under state law. Davis v. Strack, 270 F.3d 111, 123 n. 4 (2d Cir. 2001).

In deciding if the failure to give a jury instruction on a particular defense violated the petitioner’s federal due process rights, a court must first find that the petitioner was “erroneously deprived of a jury instruction to which he was entitled under state law.” Id. at 123. If the court makes that finding, it must then ask whether the failure to give the requested charge was so harmful as to make the conviction unfair. Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir.2005); Graham v. Lape, 476 F.Supp.2d 399, 404 (S.D.N.Y. 2007).

In his first claim for relief, the petitioner argues that he was entitled to a justification charge under New York law, and that the trial court’s denial of his request for this charge amounted to a violation of his due process rights. On direct appeal, the petitioner challenged the trial court’s failure to give the justification charge, and the Appellate Division unanimously held that the trial court had not erred in denying the charge. See 870 N.Y.S.2d at 19-20.

The Appellate Division concluded:

The court properly determined that no reasonable view of the evidence, viewed in a light most favorable to defendant, supported the submission of a charge on justification. Defendant ... admitted that he carefully concealed a pistol in his clothing and went to a park to confront the victim.... The evidence also established that at one point defendant straddled the victim while he lay helpless on the ground and continued to fire at him. Even under defendant’s account of the incident, his claimed belief that the victim’s hand motion signified imminent use of deadly force was not objectively reasonable. Furthermore, the evidence demonstrated that defendant could have retreated even after the victim made the alleged hand motion, as well as that it was unreasonable for defendant to fire numerous shots. It was also an unreasonable use of force, under the circumstances presented, to fire shots in close proximity to a crowd of people, which was the circumstance that caused the death of the child.

Id. (internal citations omitted).

New York law provides that a court “must instruct a jury on the defense of justification ‘if on any reasonable view of the evidence, the fact finder might have decided that the defendant’s actions were justified.’ ” People v. Cox, 92 N.Y.2d 1002, 684 N.Y.S.2d 473, 707 N.E.2d 428, 429 (1998) (quoting People v. Padgett, 60 N.Y.2d 142, 468 N.Y.S.2d 854, 456 N.E.2d 795, 797 (1983)). “In determining whether the jury should be given a particular charge, the trial court must look to all of the evidence introduced at trial and view it in a light most favorable to the defendant.” People v. Dolan, 51 A.D.3d 1337, 858 N.Y.S.2d 490, 492 (2008). “A court need not charge justification if no reasonable view of the evidence establishes the elements of the defense.” People v. Reynoso, 73 N.Y.2d 816, 537 N.Y.S.2d 113, 534 N.E.2d 30, 31 (1988); see also People v. Butts, 72 N.Y.2d 746, 536 N.Y.S.2d 730, 533 N.E.2d 660, 663 (1988) (“The rule is that the jury must be instructed on all claimed defenses which are supported by a reasonable view of the evidenee-not by any view of the evidence, however artificial or irrational.”).

New York Penal Law § 35.15(2) provides in relevant part that a person may not use deadly physical force against another unless that person “reasonably believes that such other person is using or about to use deadly physical force.” However, even in such case, “the actor may not use deadly physical force if he or she knows that with complete personal safety[ ] to oneself and others he or she may avoid the necessity of so doing by retreating.” N.Y. Penal Law § 35.15(2)(a).

The justification defense consists of objective and subjective prongs: the defendant must subjectively believe that deadly physical force was necessary to defend himself against the imminent use of deadly physical force, and this belief must be objectively reasonable. Matter of Y.K., 87 N.Y.2d 430, 639 N.Y.S.2d 1001, 663 N.E.2d 313, 315 (1996); People v. Wesley, 76 N.Y.2d 555, 561 N.Y.S.2d 707, 563 N.E.2d 21, 24 (1990); People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41, 52 (1986). Additionally, the defense of justification is unavailable if the defendant is the initial aggressor in the encounter with the victim. People v. Petty, 7 N.Y.3d 277, 819 N.Y.S.2d 684, 852 N.E.2d 1155, 1161 (2006); People v. Morales, 11 A.D.3d 259, 782 N.Y.S.2d 437, 438 (2004).

No reasonable view of the evidence supports a justification charge in this case. De’Aza testified that he had been involved in a physical altercation with the petitioner at some point during the summer of 2005, and the petitioner testified that there were two additional altercations between the petitioner and De’Aza or De’Aza’s associates in the weeks leading up to the shooting. (See Tr. 276-77, 470-74.) However, the petitioner himself testified that none of these altercations involved firearms, and that they did not cause him to fear for his safety. (See Tr. at 476, 517-19.) Moreover, it is well-settled under New York law that a “defendant, ... in order to avail himself of the justification defense, cannot be responding to the past use of deadly force, but only to its present or imminent use.” People v. Roldan, 222 A.D.2d 132, 647 N.Y.S.2d 179, 183 (1996). Accordingly, these incidents, without more, do not support a justification charge.

The petitioner also testified that he received three phone calls on the day of the shooting from various individuals who indicated that De’Aza was threatening to use violence against the petitioner or the' petitioner’s pregnant girlfriend. {See Tr. at 478-81.) To the extent that the petitioner argues these phone calls support a justification defense, that argument is without merit in light of the petitioner’s undisputed conduct before, during, and after the shooting. See Dolan, 858 N.Y.S.2d at 492 (“In determining whether the jury should be given a particular charge, the trial court must look to all of the evidence introduced at trial ....” (emphasis added)). The petitioner testified that he prepared for the incident by retrieving a gun from the apartment where he was staying and a hooded sweatshirt from his girlfriend’s house and then affirmatively searching for De’Aza in the neighborhood. (See Tr. at 482-84.) Four eyewitnesses testified that after the first two shots were fired, the petitioner stood over De’Aza, who was lying on the ground, and fired multiple additional shots. (See Tr. at 154-56, 175, 209, 289.) De’Aza testified that while the petitioner was standing over him, the petitioner said, “I got you now” and then fired a final shot at' De’Aza’s head. (Tr. at 289-90.) Uncontroverted testimony also established that the petitioner fled the scene after the shooting. (See Tr. at 176, 489.) This conduct precludes any reasonable inference that the petitioner was acting in self-defense at any point during the shooting. See People v. Henriquez, 238 A.D.2d 268, 650 N.Y.S.2d 138, 139 (1996) (“[The] defendant’s methodical conduct both during and immediately after the shooting! ] belies defendant’s claim that he was acting in self-defense.”); see also People v. Holden, 260 A.D.2d 233, 689 N.Y.S.2d 40, 40 (1999) (finding no justification defense warranted, even crediting the defendant’s testimony that the victim fired the first shot, where the “defendant ... precipitated the gunfight by arming himself and displaying a firearm before he had any reason to believe that his victim was about to use deadly force against him”).

The petitioner testified that he had not planned to shoot De’Aza when he sought him out in the evening of September 5, 2005, and that he only started shooting when De’Aza reached for something at his waist, which the petitioner thought was a gun. (See Tr. at 484, 486.) However, aside from the petitioner’s own testimony, there is no support for this assertion in the record. To the contrary, the undisputed testimony from multiple sources, including the petitioner himself, indicated that the petitioner methodically prepared for the encounter with De’Aza, affirmatively sought it out, initiated it when he arrived at the park, and then fled from the scene when it was over. In light of this testimony, the record, taken as a whole, does not yield any reasonable inference that the petitioner was acting in self-defense when he shot De’Aza. See Morales, 782 N.Y.S.2d at 438; Holden, 689 N.Y.S.2d at 40; Henriquez, 650 N.Y.S.2d at 139. Moreover, the undisputed testimony also indicated that the petitioner continued to fire at De’Aza from point blank range after De’Aza had already been incapacitated and any conceivable threat from him had been neutralized. These shots fired at an immobilized victim rule out any reasonable inference that the petitioner’s actions at the park on the night of the shooting were taken in self-defense.

Furthermore, even crediting the petitioner’s unsupported assertion that he was acting in self-defense during the entire course of the shooting, the petitioner cannot plausibly argue that he did not know he had a reasonable means of safe retreat as an alternative to firing multiple rounds at De’Aza in a crowded park. Under New York law, the justification defense is unavailable if a defendant knows he could have safely retreated. People v. Russell, 91 N.Y.2d 280, 670 N.Y.S.2d 166, 693 N.E.2d 193, 196 (1998). In this case, multiple witnesses testified that the shooting began when the petitioner emerged from between two cars and opened fire, (see Tr. at 173-74, 176, 204-05), and the petitioner’s own testimony corroborates these facts. (See Tr. at 488, 524.) Thus, even if De’Aza posed a credible threat to the petitioner’s safety, the petitioner plainly avoided an opportunity for safe retreat. See Roldan, 647 N.Y.S.2d at 183; People v. Vasquez, 161 A.D.2d 678, 555 N.Y.S.2d 451, 452 (1990). Accordingly, there is no reasonable inference from the record that the petitioner’s only available means of avoiding an imminent threat of deadly physical force was firing multiple shots in a crowded park with children present. The trial court therefore properly denied the petitioner’s request for a justification charge, and the Appellate Division properly concluded that the petitioner was not entitled to this charge under New York law.

Finally, the Court notes for purposes of completeness that even if the trial court had erred in failing to give the justification charge, this error would not be a basis for habeas relief. “[I]n order to obtain a writ of habeas corpus in federal court on the ground of error in a state court’s instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.” Davis, 270 F.3d at 123 (citations omitted). “Because an omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law, [a] petitioner bears a heavy burden in showing that the failure to instruct rises to the level of a constitutional violation.” Buckner v. Burge, No. 06cv1180, 2010 WL 1328982, at *8 (E.D.N.Y. Mar. 31, 2010) (internal citations and quotation marks omitted). “In determining when the refusal to charge the jury on an affirmative defense is sufficiently harmful to violate federal due process, the Second Circuit has focused on the issues of whether the affirmative defense was central to the petitioner’s theory at trial and whether that defense was made out by credible evidence.” Id. at *9.

Here, given that the petitioner admitted that he shot both victims, (see Tr. at 486, 510-11), the justification defense was clearly central to his case. Nevertheless, the justification defense was not supported by any credible evidence. Rather, the crucial support for the defense were portions of the petitioner’s own testimony in which he claimed that his purpose for seeking out De’Aza at the park was merely to speak with him, and that De’Aza appeared poised to pull a gun on him when De’Aza reached for something at his waist. In order to credit this testimony, the jury would have had to parse it from substantial and well-corroborated portions of the rest of the petitioner’s testimony indicating that the petitioner methodically prepared for the encounter, concealed a weapon, and fired it at De’Aza in a crowded park in spite of an obvious opportunity for retreat. There is no plausible circumstance under which the jury would have parsed the petitioner’s testimony in this way and credited only those portions of it that were uncorroborated. See Blazic v. Henderson, 900 F.2d 534, 542-43 (2d Cir.1990); Buckner, 2010 WL 1328982 at *9. The justification theory was therefore far from the sort of “highly credible defense” that has warranted habe-as relief in cases where a trial court has erroneously failed to give a requested instruction. Davis, 270 F.3d at 131. Rather, it was a “fantastic, improbable defense that the jury was unlikely to adopt,” and any error in the failure to charge justification would therefore not have rendered the trial unfair in violation of the petitioner’s due process rights. Buckner, 2010 WL 1328982, at *10.

In sum, then, the refusal of the trial court to give the justification charge did not violate state law or the petitioner’s due process rights, and the petitioner’s first claim for relief must therefore be denied.

Next, the petitioner argues that his due process rights were violated when the trial court refused to charge the jury on the affirmative defense of extreme emotional disturbance. The first step in addressing this claim is to assess whether the petitioner was “erroneously deprived of a jury instruction to which he was entitled under state law.” Davis, 270 F.3d at 123.

The Appellate Division rejected the petitioner’s claim on direct appeal that the trial court erred in failing to instruct the jury on the affirmative defense of extreme emotional disturbance:

[V]iewing the evidence in a light most favorable to defendant, there was no reasonable view of the evidence to support that defense. Even accepting defendant’s account of the incident and his claim of being in great fear of the surviving victim, the evidence failed to establish that defendant suffered from any mental infirmity at the time of the shooting, and it also showed that he acted with a high degree of self-control that was inconsistent with the extreme emotional disturbance defense.

870 N.Y.S.2d at 20 (citations omitted).

Under New York law, extreme emotional disturbance is a partial affirmative defense to the crime of second degree murder. See N.Y. Penal Law §§ 125.25(1)(a) & 125.20(2). Thus, “a defendant who proves by a preponderance of the evidence that he or she committed a homicide while under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse is guilty of manslaughter and not murder.” People v. Roche, 98 N.Y.2d 70, 745 N.Y.S.2d 775, 772 N.E.2d 1133, 1137-38 (2002). An instruction on extreme emotional disturbance would have allowed the jury to consider the offense of manslaughter in the first degree under New York Penal Law § 125.20(2). See id.

For a defendant to be entitled to an instruction on extreme emotional disturbance under New York law, “sufficient evidence must be presented for the jury to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied.” People v. Moye, 66 N.Y.2d 887, 498 N.Y.S.2d 767, 489 N.E.2d 736, 738 (1985) (citation omitted).

The defense of extreme emotional disturbance requires evidence that the defendant suffered from “a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control.” Roche, 745 N.Y.S.2d 775, 772 N.E.2d at 1138; see also People v. Matthews, 220 A.D.2d 822, 632 N.Y.S.2d 298, 300 (1995) (noting that the defense is “characteristically associated with] loss of complete control”). This defense consists of a subjective and an objective component. First, the defendant must prove that the defendant acted under the influence of an extreme emotional disturbance. Second, the defendant must prove that there was a reasonable explanation or excuse for the disturbance. Roche, 745 N.Y.S.2d 775, 772 N.E.2d at 1138. The objective element is “determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for the emotional disturbance was reasonable.” Id. (citations omitted). In determining whether a defendant has acted out of a loss of self-control, courts typically consider the defendant’s conduct before and after the homicide in question. See Wilson v. Phillips, No. 05cv1208, 2010 WL 545862, at *7 (E.D.N.Y. Feb. 16, 2010); Zamora v. Phil lips, No. 04cv4093, 2006 WL 2265079, at *6 (E.D.N.Y. Aug. 8, 2006).

Here, the petitioner argues that the cumulative effects of the altercations with De’Aza and the threats allegedly conveyed to him from De’Aza on the day of the shooting caused him to lose self-control. Indeed, the petitioner testified that he “lost [his] head” after receiving a phone call indicating that De’Aza had threatened to harm his pregnant girlfriend, (Tr. at 481), and that he “blanked out” during the second part of the shooting. (Tr. at 488-89, 531-32, 541.) However, the undisputed testimony also indicates that after receiving the alleged threatening phone calls, the petitioner prepared for the shooting by retrieving a gun and a hooded sweatshirt from two separate locations, that he told his girlfriend he was going to have a talk with De’Aza when he found him, and that he carefully sought out De’Aza. These preparations are inconsistent with a loss of self-control sufficient to warrant an extreme emotional disturbance charge under New York law. See, e.g., Delgado v. Walker, 798 F.Supp. 107, 114 (E.D.N.Y.1992) (emphasizing that deliberate acts prior to a shooting negate the basis for an extreme emotional disturbance charge).

Similarly, the petitioner’s actions subsequent to the shooting undermine the petitioner’s assertion that he lost control. According to his own testimony, the petitioner left the scene after the shooting and returned to the apartment building where he had been staying. (See Tr. at 490, see also Tr. at 176, 209, 230-31.) At some point thereafter, the petitioner’s girlfriend met him and explained to him that two individuals had been shot, including a child. (Tr. at 491-92.) When a crowd of people appeared to be attempting to enter the apartment, the petitioner fled down the fire escape and eventually fell to the ground, (see Tr. at 493; see also Resp’t’s Opp’n, Ex. 23 at 21-26), at which point the police apprehended him. (Tr. at 231-32.)

These attempts to avoid apprehension “reveal [an] enduring regard for self-preservation” that undermines any claim that the petitioner lost self-control during the shooting. Wilson, 2010 WL 545862, at *8; see also Shiwlochan v. Portuondo, 345 F.Supp.2d 242, 269 (E.D.N.Y.2004) (“[L]eaving the scene of the crime and taking other steps to avoid apprehension have been found to be inconsistent with the loss of control associated with an [extreme emotional disturbance] defense.” (citation omitted)), aff'd, 150 Fed.Appx. 58 (2d Cir.2005) (summary order); Roche, 745 N.Y.S.2d 775, 772 N.E.2d at 1139 (finding that the defendant’s “attempt to evade detection” undermined the basis for a defense of extreme emotional disturbance).

Given the petitioner’s undisputed conduct before, during, and after the shooting, no reasonable view of the evidence would have permitted a finding that the petitioner satisfied either prong of the requirements for the defense of extreme emotional disturbance under New York law, and the trial court therefore did not err in denying the petitioner’s request for an instruction on extreme emotional disturbance. See Wilson, 2010 WL 545862, at *8; Zamora, 2006 WL 2265079, at *6-7. There was no reasonable view of the evidence that the petitioner acted under the influence of an extreme emotional disturbance or that the petitioner’s responses were reasonable. The petitioner’s claim that his due process rights were violated when the trial court failed to give a charge on extreme emotional disturbance is, accordingly, without merit, and his claim for habeas relief on this basis must be denied. See Moronta v. Griffen, No. 13cv4081, 2014 WL 956297, at *8-9 (S.D.N.Y. Mar. 11, 2014).

Third, the petitioner argues that his due process rights were violated when the trial court refused to charge the jury on the lesser-included offense of manslaughter in the first degree.

The petitioner raised this claim on direct appeal, and the Appellate Division rejected it as a matter of state law:

Defendant was charged with the murder of the child bystander under a transferred intent theory. The court properly refused to submit manslaughter in the first degree as a lesser included offense, since there was no reasonable view of the evidence, viewed, once again, most favorably to defendant, that he merely intended to inflict serious physical injury on the surviving victim but not death. Defendant’s course of conduct, even as he described it in his testimony, established that he kept firing at the victim for the purpose of killing him.

870 N.Y.S.2d at 20.

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Supreme Court held that due process requires the submission of jury instructions on lesser-included offenses in capital cases but declined to consider whether such instructions are required in non-capital cases. Id. at 638 n. 14, 100 S.Ct. 2382. The Courts of Appeals are in some disagreement about whether the failure to include a lesser-included offense instruction can rise to the level of a constitutional violation in a non-capital case. See Robertson v. Hanks 140 F.3d 707, 709-11 (7th Cir.1998) (summarizing cases). The Court of Appeals for the Second Circuit has not decided the question. See Jones v. Hoffman, 86 F.3d 46, 48 (2nd Cir.1996). However, in Jones, the Court of Appeals held that a claimed error in failing to include a lesser-included offense instruction in a non-capital case is not a cognizable claim in a habeas corpus proceeding. Id. The Court of Appeals reasoned that under Teague v. Lane, a habeas petition cannot be used to apply a new rule of law. 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Court of Appeals also held that none of the exceptions to Teague would apply to allow consideration of a claimed constitutional violation for failure to include a lesser-included offense instruction in a non-capital case. Jones, 86 F.3d at 48. Therefore, Jones and Teague preclude consideration of the petitioner’s claim that he was entitled to the lesser charge of manslaughter in the first degree. See Brito, 2011 WL 1542516, at *7; Till v. Miller, No. 96cv4387, 1998 WL 397848, at *4 (S.D.N.Y. July 16, 1998).

For the sake of completeness, the Court also notes that the petitioner’s third claim for habeas relief fails to estab.lish a violation of state law. Under New York law, in order to establish entitlement to a lesser-included offense charge, a defendant must make two showings: “it must now be shown that, in theory, the charged, greater crime could not be committed without the lesser offense also being committed and, additionally, that in the particular case the jury would be warranted in finding that the defendant committed the lesser but not the greater crime.” People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376, 377 (1982) (per curiam). In order to warrant a first-degree manslaughter charge under state law, the evidence, when viewed in the light most favorable to the petitioner, must have supported the reasonable view that the petitioner intended to cause serious physical injury rather than death. People v. Gauze, 3 A.D.3d 538, 770 N.Y.S.2d 749, 750 (2004); People v. Spears, 271 A.D.2d 464, 707 N.Y.S.2d 127, 128 (2000).

There is no reasonable view of the evidence in this case that would have supported a finding that the petitioner committed first-degree manslaughter rather than second-degree murder. The undisputed testimony of multiple eyewitnesses established that the petitioner fired multiple shots at De’Aza from close range, and then stood over De’Aza and continued to fire at him from point-blank range. (See Tr. at 175-76, 207-09, 289.) De’Aza testified that the petitioner said, “I got you now.” (Tr. at 289). Under such circumstances, there can be no reasonable inference that the petitioner intended merely to injure De’Aza, rather than to kill him. See, e.g., People v. Simmons, 97 A.D.3d 842, 948 N.Y.S.2d 681, 683 (2012); Spears, 707 N.Y.S.2d at 128; People v. Kelly, 221 A.D.2d 661, 633 N.Y.S.2d 845, 846 (1995). The petitioner did not controvert this eyewitness testimony—instead, he merely testified that he had no memory of firing the last few shots at De’Aza. Accordingly, no reasonable view of the evidence would have supported the lesser-included offense charge under state law.

For these reasons, the petitioner’s claim that he was deprived of his right to due process when the trial court failed to.give the lesser-included offense charge is without merit, and the petitioner’s third claim for habeas relief must therefore be denied.

IV.

In his next set of claims, the petitioner challenges the sentence imposed by the trial court. First, he claims that the imposition of consecutive sentences in his case violated New York Penal Law § 70.25(2); second, he claims that his sentence should be reduce as excessive; and third, he claims that the imposition of consecutive sentences in his case violated the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

In support of his fourth claim for relief, the petitioner argues that the imposition of consecutive sentences violated New York Penal Law § 70.25(2) because the counts for which he received consecutive sentences did not arise out of separate and distinct acts. Under § 70.25(2), “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission ... the sentences ... must run concurrently.” The petitioner was ultimately sentenced to two terms of imprisonment to run consecutively: one term of twenty-five years to life on the count of murder in the second degree, and one determinate term of twenty-five years on the count of attempted murder.

This claim, without more, is not cognizable on habeas review because it amounts to an allegation that the state court erroneously applied state law. See Estelle, 502 U.S. at 67-68, 112 S.Ct. 475 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”); Thomas v. Larkin, No. 12cv2899, 2013 WL 5963133, at *13 (E.D.N.Y. Nov. 7, 2013) (“[W]hether the sentencing court properly applied New York State Penal Law § 70.25 in determining that [the petitioner’s] sentences were consecutive rather than concurrent is not cognizable on federal habeas review.”); Bryant v. Graham, No. 08cv4666, 2011 WL 3876972, at *11 (E.D.N.Y. Sept. 1, 2011) (same); Davis v. Greiner, No. 02cv6802, 2003 WL 23198786, at *12 (E.D.N.Y. Oct. 30, 2003) (same).

In any event, it is clear that the petitioner’s consecutive sentences were not imposed in violation on New York Penal Law § 70.25(2). For purposes of Section 70.25(2), each act of “pulling a trigger to discharge a firearm” is a “separate and distinct act.” People v. McKnight, 16 N.Y.3d 43, 917 N.Y.S.2d 594, 942 N.E.2d 1019, 1023 (2010).

On direct appeal, the Appellate Division rejected the petitioner’s claim as a matter of state law. The Appellate Division explained:

The People met their burden of establishing the legality of the consecutive sentences imposed. Although defendant’s intent with respect to each act was to kill the surviving victim, he committed separate and distinct acts when he fired his first shot, which killed the child, and then fired several more shots, seriously injuring the intended victim.

870 N.Y.S.2d at 20 (internal citations omitted).

The testimony at the petitioner’s trial established that Naiesha Pearson was hit by one of the several bullets fired at De’Aza. (See Tr. at 355 (testimony by medical examiner confirming one gunshot wound during Pearson’s autopsy); see also Tr. at 153-54 (testimony by eyewitness explaining that after Pearson was hit, the petitioner stood over De’Aza and fired more shots at him).) Testimony also established that multiple other bullets hit De’Aza. (See Tr. at 286.) Thus, at least some of the shots fired at De’Aza constituted “separate and distinct acts” from the shot that hit Pearson, and consecutive sentences were therefore permissible under the statute. See McKnight, 917 N.Y.S.2d 594, 942 N.E.2d at 1028; People v. Azaz, 10 N.Y.3d 873, 860 N.Y.S.2d 768, 890 N.E.2d 883, 884 (2008).

For these reasons, the petitioner’s fourth claim for habeas relief must be denied.

In his fifth claim for relief, the petitioner argues that his sentence is excessive, and that it should be reduced in the interest of justice to concurrent terms of imprisonment. Because this claim was not raised in any state court forum, it is unexhausted. See, e.g., Sookoo, 2011 WL 1542543, at *7; Williams v. Corcoran, No. 07cv2182, 2008 WL 394806, at *2 (S.D.N.Y. Feb. 13, 2008). However, 28 U.S.C. § 2254(b)(2) provides that “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” If unexhausted claims are “plainly meritless,” the district court can dismiss such claims on the merits. Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005); see also Artus, 691 F.Supp.2d at 526.

The petitioner’s fifth claim is plainly meritless. Although New York’s Appellate Division has the power, pursuant to New York Criminal Procedure Law § 470.15(3), to reduce a sentence in the interest of justice, a claim for a reduction in sentence pursuant to § 470.15 does not, without more, raise a federal constitutional issue and is therefore not cognizable on habeas review. See Medina v. Greene, No. 03cv8646, 2004 WL 2809196, at *5 (S.D.N.Y. Dec. 7, 2004). The petitioner does not challenge his sentence as constitutionally disproportionate, and because the sentence falls within the range prescribed by state statutory law, the length of the sentence cannot be a basis for federal habeas relief. Thomas v. Senkowski, 968 F.Supp. 953, 956 (S.D.N.Y.1997).

In his sixth claim for relief, the petitioner argues that his sentence is unconstitutional because it was imposed in violation of the rule stated by the Supreme Court in Apprendi. The respondent argues that this claim has been procedurally defaulted, and that, in any event, it is without merit.

In addressing the petitioner’s challenge to his consecutive sentences on direct appeal, the Appellate Division held that the claim was “unpreserved and without merit,” 870 N.Y.S.2d at 20, thus relying on New York’s preservation policy, codified in New York Criminal Procedure Law § 470.05(2). Section 470.05 grants an appellate court the discretion to decline to review claims if they were not sufficiently presented to, or decided by, the trial court. See Ashley v. Burge, No. 05cv4497, 2006 WL 3327589, at *4 (S.D.N.Y. Nov. 3, 2006).

Where “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 unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate 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); see also Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002); Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir.2003); Ashley, 2006 WL 3327589, at *4. An independent state law ground “will be deemed ‘adequate’ only if it is based on a rule that is ‘firmly established and regularly followed’ by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.1999) (citation omitted).

Here, the Appellate Division relied on New York’s preservation policy as an independent ground for rejecting the petitioner’s Apprendi claim. Cf Ashley, 2006 WL 3327589, at *5. Moreover, no basis has been proffered for doubting the consistency with which New York courts apply the preservation rule to claims such as the petitioner’s, and courts have generally concluded that the preservation rule is an adequate state law ground as applied under similar circumstances. See, e.g., Ortiz v. Bradt, No. 13cv5420, 2013 WL 5775695, at *2 (E.D.N.Y. Oct. 25, 2013); Mendez v. Graham, No. 11cv5492, 2012 WL 6594456, at *10 (E.D.N.Y. Dec. 18, 2012); see also Garcia, 188 F.3d at 79 (“[W]e have observed and deferred to New York’s consistent application of its [preservation policy].”). Finally, the petitioner has offered no reason for his failure to comply with New York’s preservation policy, and there is no basis to conclude that this Court’s failure to address his Appren-di claim would result in a fundamental miscarriage of justice. Accordingly, the petitioner’s Apprendi claim is procedurally barred.

In any event, it is also plain that the Apprendi claim is without merit. In Ap- prendí, the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. at 490,120 S.Ct. 2348. The petitioner argues that the imposition of consecutive sentences under New York Penal Law § 70.25(2) violated this rule because it was premised on factfinding unrelated to the petitioner’s criminal history-namely, the finding that the attempted murder of De’Aza and the murder of Pearson involved “separate and distinct acts.”

This argument is foreclosed by the Supreme Court’s decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). In Ice, the Supreme Court faced an Apprendi-based challenge to the imposition of consecutive sentences under an Oregon statute that permitted consecutive sentencing for defendants convicted of crimes “that do not arise from the same continuous and uninterrupted course of conduct,” as determined by the sentencing judge. See 555 U.S. at 165, 129 S.Ct. 711 (quoting Or.Rev.Stat. § 137.123(2)). Reasoning that Apprendi had relied on the jury’s historic role, and that, historically, juries played no role in the decision of whether to impose concurrent or consecutive sentences, the Court declined to apply Apprendi to the decision of whether sentences should be imposed consecutively. Id. at 168-72, 129 S.Ct. 711. In light of Ice, the petitioner’s Apprendi-based challenge to the imposition of consecutive sentences in his case is without merit. See Webb v. Walsh, No. 07cv2655, 2010 WL 2985879, at *5-6 (E.D.N.Y. July 23, 2010); Lasso-Reina v. Haponick, No. 05cv8817, 2009 WL 3334843, at *14-15 (S.D.N.Y. Oct. 14, 2009).

For the foregoing reasons, the petitioner’s sixth claim for relief must be denied.

In his final set of claims, the petitioner challenges the effectiveness of his trial counsel. First, the petitioner claims that he was denied the effective assistance of counsel during the plea stage because his trial counsel failed to communicate the terms of a plea offer to him that he would have accepted if he had known about it. Second, the petitioner claims that his trial counsel was ineffective for failing to secure his right to testify before the grand jury. Third, the petitioner claims that his trial counsel was ineffective for failing to challenge the Indictment as defective. And fourth, the petitioner claims that his trial counsel was ineffective for failing to argue successfully for the suppression of his post-arrest statements to law enforcement.

Any claims of ineffective assistance of counsel must be evaluated under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on these claims, the petitioner must show both (1) that his counsel’s performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) that counsel’s deficient performance was prejudicial to the petitioner’s case. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005). Self-serving conclusory allegations to this effect are insufficient to establish ineffective assistance of counsel. United States v. Torres, 129 F.3d 710, 715-17 (2d Cir.1997); United States v. Gonzalez, 970 F.2d 1095, 1099-1101 (2d Cir.1992); see also Dedushaj v. Graham, No. 07cv5401, 2008 WL 4858242, at *2 (S.D.N.Y. Nov. 7, 2008).

A petitioner cannot meet the first prong of the Strickland test merely by showing that his counsel employed poor strategy or made a wrong decision. Instead, the petitioner must establish that his counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir.2002) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052); see also Hernandez v. United States, 280 F.Supp.2d 118, 122 (S.D.N.Y.2003). Indeed, there is a “strong presumption” that the defense counsel’s conduct fell within the broad spectrum of reasonable professional assistance, and a defendant has the burden of proving “that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (citing Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052).

To satisfy the second prong of Strickland, the petitioner must show that “there is a reasonable pr