MEMORANDUM AND ORDER

JOHN GLEESON, District Judge

Petitioner Mohammed Bhuiyan, an inmate at the Auburn Correctional Facility, seeks habeas relief from a judgment of conviction entered after a jury trial in state court. Oral argument was scheduled for August 27, 2004. Having reviewed all of the parties' submissions, I conclude that oral argument is unnecessary, and, for the reasons set forth below, deny the petition.

BACKGROUND

Chowdhury later identified Bhuiyan and Ahmed from a lineup as two of the three men who had pushed their way into his apartment and beaten and robbed him. Bhuiyan was charged with robbery and burglary in the first degree, two counts of robbery in the second degree, assault in the second degree, criminal possession of a weapon in the fourth degree, and unlawful imprisonment. A jury convicted him of robbery and burglary in the first degree, robbery and assault in the second degree, and unlawful imprisonment.

On direct appeal, Bhuiyan claimed only that the trial court had abused its discretion when it denied his request to file a late alibi notice. The Appellate Division, Second Department, affirmed Bhuiyan's conviction on June 24, 2002. People v. Bhuiyan, 744 N.Y.S.2d 875, 875-76 (2d Dep't 2002). Leave to appeal was denied on August 20, 2002. People v. Bhuiyan, 98 N.Y.2d 708 (2002) (Graffeo, J.).

On April 22, 2003, Bhuiyan filed a motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, claiming ineffective assistance of trial counsel. Bhuiyan's ineffective assistance claim was predicated only on trial counsel's failure to effectuate Bhuiyan's right to testify in the grand jury. The court denied Bhuiyan's motion as meritless, and the Appellate Division denied leave to appeal. In the instant petition, Bhuiyan raises the same two claims he raised in the state courts.

DISCUSSION

A. The Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if 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." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1175 (2003)).

However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt."Id. at 2151.

Under the "unreasonable application" standard set forth inWilliams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable.");Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.

This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."

B. Bhuiyan's Claims

1. Preclusion of the Alibi Witness

Bhuiyan claims that, in not allowing him to amend his notice of alibi to include additional witnesses, the trial court denied him his right to a fair trial. The relevant facts are as follows. Bhuiyan initially served notice on June 17, 1999, of his intent to call one alibi witness, Poly Kahn. According to Bhuiyan, Kahn would testify that Bhuiyan was at 230-39 88th Avenue, Bellerose, New York, at the time of the crime. On July 26, 2000, in the middle of Bhuiyan's second trial (the first had resulted in a hung jury), Bhuiyan sought to serve late alibi notice. Bhuiyan wanted to include as alibi witnesses two relatives of Kahn who lived with her at 230-39 88th Avenue. In support of this request, Bhuiyan claimed that he had only recently received the names of these witnesses the day before, from an investigator who had visited the residence. The trial court denied Bhuiyan's request:

Now that you're winding down the DA's case, almost at the end of the third year of trial, in terms of the ability of the DA to fairly investigate this, I cannot think of a more prejudicial scenario and within the entire context of all of this I would not allow those additional alibi witnesses.

(Tr. at 542-43.) Affirming, the Appellate Division held, "Since the defendant failed to demonstrate good cause for the untimely notice of additional alibi witnesses, the trial court providently exercised its discretion in precluding their testimony."Bhuiyan, 744 N.Y.S.2d at 876.

In Taylor v. Illinois, 484 U.S. 400 (1988), the Supreme Court, recognizing that "a trial court may not ignore the fundamental character of the defendant's right to offer the testimony of witnesses in his favor," held that

the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests. The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance.

A trial judge may certainly insist on an explanation for a party's failure to comply with a request to identify his or her witnesses in advance of trial. If that explanation reveals that the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness' testimony.

The Court specifically noted that, "[g]iven the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate." Id. at 412 n. 17. The Court found "ample room" in the adversary system for notice-of-alibi provisions, such as New York's, which are "designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence." Id. Indeed, it is "reasonable to presume that there is something suspect about a defense witness who is not identified until after the 11th hour has passed." Id. at 414. "[T]he court, as well as the prosecutor, has a vital interest in protecting the trial process from the pollution of perjured testimony." Id. at 417.

Based on these principles, the Court found that exclusion was appropriate on the facts of Taylor. "Regardless of whether prejudice to the prosecution could have been avoided" inTaylor, the case fit "into the category of wilful misconduct in which the severest sanction is appropriate." Id. Furthermore, the defendant's pretrial conduct gave "rise to a sufficiently strong inference that witnesses are being found that really weren't there, to justify the sanction of preclusion." Id.

Here, in the middle of the government's case at his second trial, Bhuiyan belatedly sought to introduce the testimony of two witnesses whom he claims would have provided an alibi by testifying that they were with Bhuiyan at the time of the crime. These facts give rise to a strong suspicion that the testimony of these witnesses would have been perjurious, and justify exclusion. The prosecution would have been severely prejudiced by the untimely notice of alibi. More important, Bhuiyan's claim that he discovered, through an investigator, these two additional alibi witnesses almost three years after the date of the crime is strained indeed; if Bhuiyan was with the witnesses at the time the crime was committed, he would not need an investigator to tell him so. In other words, the risk that Bhuiyan "found" witnesses "that really weren't there," id., is palpable. And if Bhuiyan did know of the two witnesses and chose not to disclose their existence until the middle of his second trial, that is just the sort of wilful gamesmanship the Supreme Court addressed in Taylor. Accordingly, on the facts here, the trial court acted well within its discretion when it precluded the testimony. In any event, the decision was not unreasonable. Therefore, this claim does not justify issuance of the writ.

2. Ineffective Assistance of Trial Counsel

Bhuiyan's claim of ineffective assistance of trial counsel, first raised in his § 440.10 motion, is based on his assertion that his attorney did not meet with him to discuss testifying before the grand jury, and failed to obtain his permission to waive his appearance, thereby depriving Bhuiyan of his opportunity to do so. In support of his § 440.10 motion, Bhuiyan provided an excerpt from page 15 of the log book kept by the New York City Department of Corrections. Bhuiyan claimed that that entry showed that his attorney had met with him on September 7, 1998, two months after the grand jury proceeding. In response, however, the government submitted the full page of entries for July 2, 1998, which showed that on that day, Bhuiyan's attorney visited him in a holding pen.

Based on the parties' submissions, the court made the following factual findings:

Examination of the full page 15 of the log book shows a sequence of entries beginning on June 9, 1998 and ending with July 9, 1998. The entry which defendant represents as occurring on September 7, 1998 at 3:10 appears clearly and unambiguously on July 2, 1998 at 3:10 (after an entry on July 2, 1998 at 3:00 and before an entry of July 3, 1998 at 12:30). Defendant's characterization in his Reply Motion of the People's exhibit as a "piece of illegible paper . . . which hardly can serve as a basis for controverting defendant's claim," is unpersuasive to the court.

CONCLUSION

So Ordered.