DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Leslie Blair ("petitioner"), proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated pursuant to a judgment entered February 15, 2008, in Monroe County Court (Egan, J.), after a jury convicted him of one count of felony murder (N.Y. Penal Law § 125.25(3)). Petitioner is currently serving a prison sentence of 25 years to life.
II. Factual Background and Procedural History
Petitioner was convicted by a jury of shooting and killing Donovan Allen while petitioner and accomplices robbed Allen of 15 kilograms of cocaine. Petitioner filed a direct counseled appeal to the New York State Supreme Court, Appellate Division, Fourth Department, in which he argued that (1) the trial court interfered with the cross-examination of petitioner and (2) the trial court should have precluded evidence that petitioner had engaged in prior robberies with his co-defendants.
The Fourth Department unanimously affirmed petitioner's judgment of conviction. See
On February 24, 2014, petitioner filed a pro se application for a writ of error coram nobis to the Fourth Department, arguing that appellate counsel was ineffective for various reasons. The Fourth Department denied the application and the Court of Appeals denied leave to appeal. See
III. Standard of Review
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to this petition. AEDPA "revised the conditions under which federal courts may grant habeas relief to a person in state custody."
IV. Grounds Asserted in the Petition
A. Time-Barred Claims (Ground Five)
Ground five of the amended petition asserts that the verdict in petitioner's case was based on legally insufficient evidence and that petitioner is actually innocent. As respondent argues, these claims were included for the first time in the amended petition and do not relate back to the claims of the original petition. See
Petitioner's judgment of conviction became final on October 16, 2012, 90 days after the Court of Appeals denied his leave application on July 18, 2012. See 28 U.S.C. § 2244(d)(2);
B. Ineffective Assistance of Trial Counsel (Grounds One and Six)
Construing his claims liberally, petitioner contends that trial counsel was ineffective for (1) failing to argue that the People's proof was insufficient because petitioner was not charged with the felony crime underlying the felony murder charge; (2) failing to argue that petitioner was a non-culpable participant in the crime; (3) failing to object to jury instructions regarding accomplice liability; (4) failing to use unidentified impeachment evidence; and (5) failing to ensure that pretrial motions were resolved.
As respondent argues, these record-based claims are unexhausted because they were not raised on direct appeal or in a collateral motion pursuant to New York Criminal Procedure Law ("CPL") § 440.10. The claims are deemed exhausted but procedurally barred. See
C. Ineffective Assistance of Appellate Counsel (Grounds Two and Six)
Petitioner contends that appellate counsel was ineffective for various reasons. These issues were raised in petitioner's coram nobis motion, which the Fourth Department denied. The Fourth Department's denial of these claims was not contrary to, nor an unreasonable application of, relevant Supreme Court precedent. To establish ineffective assistance of counsel at either the trial or appellate level, a defendant first must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment" and second, that "there is a reasonable probability that, absent the errors [by counsel], the fact finder would have had a reasonable doubt respecting guilt."
The record in this case reveals that appellate counsel filed a "a thorough, well-researched brief in which [appellate counsel] persuasively argued" petitioner's points on appeal.
D. Trial Court Remarks During Cross-Examination (Ground Three)
Petitioner contends that the trial court's remarks and questioning of him during his cross-examination violated his Sixth Amendment rights. This argument is barred by an adequate and independent state law ground, because the Fourth Department specifically held that it was unpreserved for review. See, e.g.,
E. Sufficiency of the Indictment (Ground Four)
Petitioner's challenge to the sufficiency of the indictment is not cognizable on habeas review. "Habeas corpus is not available to test the sufficiency of the indictment."
For the foregoing reasons, petitioner's request for writ of habeas corpus is denied and the amended petition (Doc. 9) is dismissed. Because petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. The Clerk of the Court is directed to close this case.