MEMORANDUM AND ORDER

STERLING JOHNSON, JR., District Judge

Petitioner Fred Brown, a/k/a James Mallard (hereinafter, "Petitioner"), appearing pro se, has petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 ("§ 2254"). For the reasons stated below, the petition for habeas corpus is denied.

BACKGROUND

A second police officer, Daniel Florenco, testified that he received a radio transmission from Seniuk, responded to the location of the limousine dealership, did not initially see the first limousine, and began a canvass of the area. He further testified that he eventually observed a limousine being driven by Williams, gave a high-speed chase, and apprehended and arrested Williams. (Tr. at 392-405.)

An employee of the limousine company testified that the two limousines were the property of the dealership, but that the two North Carolina license plates found on the vehicles did not come from the premises. (Tr. at 456.)

During the trial, allegations were raised regarding the alleged bias and misconduct of two of the members of the jury. Alternate juror Joanne Longobardi was alleged to have reacted visibly and negatively to defense counsel. (Tr. at 496-98, 518, 528.) When questioned by the trial court, she acknowledged having "come to conclusions about [the lawyers'] ability" and having commented "this is crazy" to another juror, Vito Capri. (Tr. at 528-29.) In addition, one of the trial witnesses reported that these same two jurors had visited the office of the District Attorney during the trial. (Tr. at 511-12.) When the trial judge learned of this visit, he questioned both jurors separately about the visit. (Tr. at 522-529.) Although the visit appeared to have no connection to the case on trial, the court excused both jurors. (Tr. at 536.) In addition, Longobardi was chastised for her behavior. (Tr. at 539.) The trial court then questioned the remaining jurors individually about any conversations or other communication with the excused jurors. (Tr. at 540-552.) The court made a determination that the remaining jurors were free from taint. (Tr. at 552.)

At the conclusion of trial, the jury found Petitioner guilty of two counts of Criminal Possession of Stolen Property in the Second Degree, two counts of Criminal Possession of Stolen Property in the Fourth Degree, two counts of Grand Larceny in the Second Degree, two counts of Grand Larceny in the Fourth Degree, one count of Burglary in the Third Degree, and two counts of Unauthorized Use of a Vehicle in the Third Degree. (Tr. at 764-66.) Following a hearing, Petitioner was sentenced by Justice Stanley B. Katz, as a Second Felony Offender, to seven and one-half to fifteen years on the second-degree stolen property counts, to run concurrently with lesser sentences on the other charges.

Following his conviction, Petitioner filed several motions in state court: a direct appeal, three separate motions to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10, two motions to set aside his sentence pursuant to N.Y. Crim. Proc. Law § 440.20, and petitions for a writ of habeas corpus and a writ of error coram nobis. All of these motions were denied. Petitioner originally filed his federal habeas corpus petition on March 3, 1999, before his direct appeal had been heard or any of his claims exhausted in state court. Thereafter, Petitioner filed a series of amendments and supplements, adding several additional claims. On March 1, 2002, upon Petitioner's request, this Court stayed the petition while state claims were pending. The federal petition was reopened on June 23, 2003, after Petitioner filed a "Resubmitted Petition" raising several additional claims. Respondent filed its opposition to the petition on June 3, 2004, responding to some, but not all of Petitioner's added claims.

Including each of the amendments, supplements, and "resubmitted" papers filed by Petitioner, the Court finds that Petitioner has raised the following specific claims: 1) the prosecutor committed misconduct by a) knowingly introducing perjured testimony at trial, and b) failing to turn over impeachment and exculpatory evidence; 2) jury selection proceedings continued in the absence of Petitioner; 3) Petitioner received ineffective assistance of trial counsel because he was denied counsel of his own choosing and because trial counsel spoke too quietly to be heard, asked for a guilty verdict, advised Petitioner not to testify, was reprimanded by the court, failed to investigate Petitioner's claim that other officers effected his arrest, failed to call co-defendant Eric Williams as a witness, and did not inquire into an alleged missing Police Communication tape; 4) the evidence at trial was insufficient for conviction; 5) the jury committed misconduct and the trial court erred in denying the Defense motion for a mistrial; 6) grand jury proceedings were defective; 7) appellate counsel was ineffective; 8) the trial court was biased against Petitioner; 9) the District Attorney's Office deliberately destroyed evidence after the trial; 10) Petitioner's sentence as a second felony offender was unconstitutional because it was based on an unconstitutional North Carolina conviction; and 11) Petitioner was not advised of his right to appeal at the sentencing hearing.

DISCUSSION

I. Exhaustion Requirement

For a federal habeas court to consider a claim, the Antiterrorism and Effective Death Penalty Act ("AEDPA") requires that the applicant have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A).See Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). "[T]he petitioner must have presented the legal and factual basis of the claim to every state court with jurisdiction to hear the claim," Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), exhausting all the remedies available in state courts, or must demonstrate that "there is an absence of available State corrective process." 28 U.S.C. § 2254(b)(1). Where the petitioner had an opportunity to raise the claim, but did not, and is now without a state forum for this claim, the claim is deemed exhausted, but procedurally barred from federal habeas review.Harris v. Reed, 489 U.S. 255, 263 (1989); Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991).

In any case of procedural default, the "federal courts may address the merits of a claim . . . only upon a showing of cause for the default and prejudice to the petitioner," Bossett, 41 F.3d at 829, or if "failure to consider the federal claim will result in a fundamental miscarriage of justice," Harris, 489 U.S. at 262. See also Coleman v. Thompson, 501 U.S. 722, 750 (1991). "Cause" for a procedural default may exist where a petitioner can show that "the factual or legal basis for a claim was not reasonably available to counsel, . . . some interference by officials made compliance impracticable, . . . [or] the procedural default is the result of ineffective assistance of counsel." Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal quotation marks and citations omitted). The "fundamental miscarriage of justice" exception to procedural bar has been interpreted by the Supreme Court to mean "actual innocence."Murray, 477 U.S. at 496 ("[W]e think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.").

In this case, Petitioner has failed to exhaust two of his claims. Petitioner did not present his claims that he was not present during the conclusion of jury selection and that he was not advised of his right to appeal at the sentencing hearing in any of his previous state court motions. Petitioner does not allege any cause for this default, nor does he claim an "actual innocence" exception to the procedural requirement. Furthermore, the Court finds that the factual basis for making both of these claims would have been apparent from the trial and sentencing transcripts. At this point, Petitioner no longer has any state court remedies by which he might raise these claims. Accordingly, these claims are deemed exhausted, but procedurally barred, and will not be considered by this Court.

II. Procedural Bar

Federal courts also may not consider the merits of federal constitutional claims on habeas review when a state court has already found those claims to be procedurally barred by an adequate and independent state ground. See Coleman, 501 U.S. at 730; Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977). As noted above, a petitioner's procedural default may only be excused if he can show both cause and prejudice or a fundamental miscarriage of justice. Wainwright, 433 U.S. at 87.

Several of the claims raised in Petitioner's federal habeas petition were already raised and dismissed on procedural grounds in his state petitions pursuant to N.Y. Crim. Proc. Law § 440.10. In its June 12, 2002 opinion, the New York Supreme Court found that all of Petitioner's claims related to the police communication report could have been raised in prior motions, that his claims related to his co-defendant's plea allocution were "previously determined upon appeal or could have been so determined," that the claims regarding ineffective assistance of trial counsel were based on facts appearing on the record and could have been reviewed on direct appeal, and that the challenge to the second felony offender adjudication should have been raised at the Second Felony Offender hearing. People v. Brown, Ind. No. 2217/96, CPL § 440.10 Dec. at 3 (N.Y.Sup.Ct. June 12, 2002) (Katz, J.) (citing N.Y.C.P.L. § 440.10(2)(a) and (c); § 440.10(3)(a); and § 440.20(3)).

This Court finds that Petitioner's claim regarding his Second Felony Offender status was procedurally barred on independent and adequate state grounds and thus may not be considered by this Court. However, the Court finds that the "independent" state procedural bar is not "adequate" to bar federal habeas review of the remaining claims. In fact, Petitioner did raise these other claims in his pro se addendum to his direct appeal, and the New York Supreme Court did not indicate whether it was denying these claims on the basis of procedural grounds or on the merits. See People v. State, 709 N.Y.S.2d 413, 413-14 (2000) ("To the limited extent that the defendant's remaining contentions, including those raised in his supplemental pro se brief, are preserved for appellate review, they are without merit."). Accordingly, those claims may be heard here.

III. Standard of Review

Under AEDPA, a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if the federal court concludes that 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; or (2) resulted in a decision that 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). A state court decision is "contrary to" clearly established Federal law where "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 v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). A state court decision involves an "unreasonable determination of the facts" where the state court correctly identifies the governing legal principle from Supreme Court precedent, but unreasonably applies that principle to the facts of the petitioner's case. Id. at 413. Thus, a federal court may only grant habeas relief where the state court's application of clearly established federal law was not only erroneous, but objectively unreasonable. Id. at 409. The federal court may not substitute its judgment for that of the state court.

Federal claims which have not been adjudicated on the merits are reviewed under the de novo pre-AEDPA standard. Washington v. Schriver, 255 F.3d 45 (2d Cir. 2001). This Court finds that under the applicable standards of review, none of Plaintiff's claims may serve as the basis for habeas relief.

IV. Petitioner's Claims Regarding False Testimony and Missing Evidence

The majority of Petitioner's claims rest on what he claims is false and missing evidence regarding the car chase during which he was arrested. Petitioner argues that the primary witness against him at trial, Seniuk, gave false testimony regarding his role in Petitioner's arrest. As evidence, Petitioner points to a police radio communication report covering events from 5:15 a.m. to 6:31 a.m. and discrepancies between this report and Seniuk's testimony regarding the time of the chase and arrest, the street upon which the chase was reported to have occurred, and the license numbers of the stolen limousines involved. (See Pet'r's filings dated 12/8/99, 7/28/00, 10/12/00, and 3/20/03.) Petitioner also claims that he overheard Officer Seniuk and other police officers making a deal by which Seniuk would get credit for Petitioner's arrest. (Pet'r's 12/8/99 Amendment, 11.) Petitioner contends that another tape exists of radio communications during the period from 5 a.m. to 5:16 a.m., the time during which his car chase occurred. (Pet'r's 12/8/99 Amendment, 12.) He argues that this "missing" tape would confirm that another officer arrested Petitioner. He also claims that Seniuk removed Petitioner's wallet from his pocket and planted it in the first limousine, and notes that the wallet was not vouchered when Petitioner was processed for arrest. (Pet'r's 3/29/99 Supplemental Mem., 3-4.)

Petitioner relies on these claims to assert that the prosecutor committed misconduct by knowingly introducing this allegedly fabricated evidence and perjured testimony, and by suppressing the allegedly exculpatory evidence of the "missing" tape. In addition, Petitioner argues the ineffective assistance of trial counsel for failing to secure the missing tape or to investigate Petitioner's claims regarding this evidence and of appellate counsel for failing to raise these issues on appeal. (Pet'r's 3/20/03 Supplement, 46-7.) Petitioner further contends that the state grand jury proceedings were defective because of the introduction of this allegedly false evidence. (See Pet'r's filings dated 12/8/99, 10/12/00 and 3/20/03.)

This Court finds that all of Petitioner's claims regarding these allegations are without merit. Having carefully examined the trial record, the Court agrees with Petitioner that the police communication tape made at 5:20 a.m. refers to the car chase involving his co-defendant and not the chase in which Petitioner was apprehended. However, the Court rejects Petitioner's claim that this is evidence of false testimony. In fact, that police communication tape was never introduced during Petitioner's trial, nor did any witness claim that the tape concerned the chase involving Petitioner and not his co-defendant. The Court also rejects Petitioner's assertion that another tape was withheld from Petitioner in violation of the prosecution's responsibilities under Brady. Seniuk acknowledged at trial that he did communicate with the police dispatcher during and after the chase. (Tr. at 370, 257-58.) He testified that "My first radio communication was when we hit 214 Street and Whitehall Terrace. I informed other [illegible] the dispatcher that I was following a limousine, that it was possibly stolen. When he had exited the car, I put over another communication saying that the individual who was in that car had exited and we began to pursue him on foot." (Tr. at 257-58.) Although Petitioner is now unable to get access to that tape or a transcription, it is clear that he had access to it at trial. In fact, Defense Counsel played a tape recording of this communication, outside of the presence of the jury, in order to refresh the officer's recollection of what he said over the radio. (Tr. at 371-73.) Counsel's apparent goal was to get Seniuk to acknowledge that at the time he apprehended Petitioner, he told the dispatcher "we have one." (Tr. at 375.) It is unclear what use Counsel intended to make of this admission. In any case, since this tape was used by the Defense at trial, Petitioner's claim that it was withheld by the prosecution is clearly false.

Petitioner argues that his current inability to obtain the tape or transcription is evidence that the Police Department deliberately destroyed the tape in response to or in disregard of his request for its discovery. (See Pet'r's 9/19/01 and 11/8/01 Amendments.) In response to one of Petitioner's subsequent Freedom of Information Law requests, he received a letter from the Police Department Legal Bureau indicating that it was unable to locate the requested documents because "Sprint 1996 (destroyed Op order 2001)." (Pet'r's 9/19/01 Amendment, Ex. C, 8/3/01 Letter from Police Dep't Legal Bureau.) This Court rejects Petitioner's arguments regarding the destruction of the 1996 communication reports, as the letter supports an inference that all the Sprint reports for 1996 were destroyed, as part of usual police procedure.

Furthermore, the Court rejects, as a self-serving fabrication, Petitioner's contention that his wallet was removed from his pocket and planted in the second limousine. The Court finds that Petitioner's wallet was not vouchered because, Seniuk testified, it was returned to him at the time of his arrest. (Tr. at 288.) There is no other evidence that would support Petitioner's claims regarding the wallet. Although Petitioner claims that Seniuk learned of Petitioner's identity during the initial arrest by removing the wallet from his pocket and examining his drivers' license, there is no evidence to suggest that Seniuk announced his identity prior to searching the first limousine, or that Petitioner refused to identify himself at the time of his arrest. Likewise, there is no independent evidence to support Petitioner's claim that another officer effected his arrest. The jury apparently credited Seniuk's testimony regarding the details of the chase and his arrest of Petitioner.

In sum, the Court finds no evidence that any witness gave false testimony. Accordingly, Petitioner's claims based on these allegations will be dismissed.

V. Prosecutorial Misconduct

Petitioner claims that the prosecutor committed misconduct by knowingly presenting false evidence and failing to turn over exculpatory evidence, in violation of Brady. As just discussed, the Court finds no evidence that Seniuk's testimony was false or that another police communication tape existed, let alone that it would have exculpated Petitioner.

Petitioner also claims that the prosecutor erred by suppressing exculpatory evidence in the form of his co-defendant's statements allegedly exonerating Petitioner. Petitioner contends that Williams stated in his plea agreement that he acted alone. In fact, this claim is factually incorrect. Williams' plea allocution does not mention Petitioner or anyone else by name at all. Yet Williams acknowledged that he committed the charged crimes while "aiding another." (See Ind. No. 2217/97, Plea Transcript of Eric Williams, at 6.) Thus, the Court finds that the plea allocution does not exonerate Petitioner and thus is notBrady material that should have been given to Petitioner. The prosecutorial misconduct claim is denied.

VI. Sufficiency of the Evidence

Petitioner argues that he was denied due process of law because the prosecution failed to prove his guilt beyond a reasonable doubt. He offers no facts nor legal arguments in support of this claim in any of his papers filed with this Court. The Supreme Court has held that a challenge on the grounds of insufficient evidence is a valid federal constitutional claim. Virginia v. Jackson, 443 U.S. 307, 314 (1979). This claim was adjudicated on the merits by the New York State Appellate Division, which found that the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt, and that the jury's verdict was not against the weight of the evidence. People v. Brown, 709 N.Y.S.2d 413 (N.Y.App.Div., 2d Dep't, 2000). This standard of review is consistent with established federal law. See Jackson, 443 U.S. at 319 ("[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."). Having reviewed Petitioner's claim and the trial record, this Court finds that the jury could reasonably have credited Seniuk's testimony and reasonably inferred from the break-in, the discovery of Petitioner's wallet and the stolen keys in the other limousine, and the presence of burglar's tools and the transferred license plates that Petitioner was involved in the burglary and the larceny of the keys and both limousines. At trial, the Defense moved to dismiss the charges other than those regarding his unlawful possession of the limousine which he was driving. (Tr. at 504-510, 552-563.) The trial court denied these motions, but did permit amendments to the indictment to make it more clear that Petitioner was being charged with liability for the theft of two different limousines as well as the other crimes. (Id.) This Court agrees with the trial court that the evidence was sufficient to support a finding that Petitioner was involved in the burglary of the dealership and the larceny of the keys and both limousines. Accordingly, there are no grounds for habeas corpus relief on this claim.

VII. Grand Jury Proceedings

Petitioner also contends that his right to due process was violated by defective grand jury proceedings, because of the alleged introduction of hearsay testimony and false evidence regarding the circumstances of Petitioner's arrest. (See Pet'r's 12/8/99 and 10/12/00 Amendments.) Petitioner's allegation does not raise a federal question that is cognizable in federal habeas corpus review. Any possible defect in grand jury proceedings becomes harmless error upon the entry of a jury conviction on the allegedly defective indictment. The trial conviction establishes proof of guilt beyond a reasonable doubt, a far more protective standard than the probable cause standard needed for a grand jury to bring an indictment. See United States v. Mechanik, 475 U.S. 66, 70 (1986) ("[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt."); Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (applying the Mechanik standard to federal habeas review of state grand jury proceedings). This claim is dismissed.

At any rate, Petitioner's claim regarding the evidence presented to the grand jury is without merit. As this Court already found, there is no evidence that Seniuk's testimony was false. Nor is there any reason to believe that Seniuk's testimony regarding his own involvement in the car chase involving Petitioner was based on inadmissible hearsay.

VIII. Ineffective Assistance of Trial Counsel

Petitioner argues that he was denied the effective assistance of trial counsel on the basis of several alleged errors. Some of these claims are unexhausted or procedurally barred by an independent and adequate state ground. Petitioner raised in his third § 440.10 motion his claims regarding Counsel's failure to demand discovery of the allegedly "missing" tape or his co-defendant's plea allocution, his apparent failure to carry out his proposed "secret summation" (see Tr. at 373), and his request that the jury find Petitioner guilty on the unauthorized use of a motor vehicle charge. The state court found that Petitioner's claims were barred because they were based on facts appearing on the record and thus could have been reviewed on direct appeal. Ind. No. 2217/96, June 12, 2002 Dec., at 2 (N.Y.Sup.Ct.). Accordingly, these claims are also barred from federal habeas review and will not be considered by this Court.

Petitioner failed to exhaust his claim that the trial court denied his request for replacement of counsel. (See 3/29/99 Supplement and 12/8/99 Amendment.) If, indeed, Petitioner made such a request prior to or during trial, the facts supporting his motion and the circumstances of the trial court's denial would have been apparent on the trial record and should have been raised in his direct appeal. Petitioner did raise this claim in his second state § 440.10 motion of June 24, 1999, but it was not addressed by the district attorney nor considered by the state court. Thus, this claim is unexhausted and must be dismissed.

At any rate, this claim would not serve as the basis for habeas relief in any event. Petitioner does have a limited right to counsel of his own choosing. Wheat v. United States, 486 U.S. 153, 159 (1988) (acknowledging that the Sixth Amendment right to counsel includes a criminal defendant's qualified right to be represented by the counsel of his choice). "This qualified right may be overcome when it is outweighed by competing interests in the fair administration of justice or maintaining orderly trial procedures." Lainfiesta v. Artuz, 253 F.3d 151, 154 (2d Cir. 2001) (quoting Wheat, 486 U.S. at 159). Thus, "[a] defendant with assigned counsel cannot decide for no good cause on the eve or in the middle of trial that he will have another attorney represent him." United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972). At that point, a defendant must show good cause for seeking a substitution, "such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict." United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972). See also United States v. Schmidt, 105 F.3d 82, 89 (2d Cir. 1997) ("Resolution of whether [the defendant's] decision to proceed pro se was voluntary hinges on whether defendant's objections to her present counsel had such merit as to entitle her to have new counsel appointed.")

In Petitioner's case, there is no evidence that Petitioner made such a request nor presented a "seemingly substantial complaint about counsel" that would require the trial court to make further inquiry into Petitioner's preference for new counsel. See McKee v. Harris, 649 F.2d 927, 933 (2d Cir. 1981) (holding that the trial court should inquire into the reasons for dissatisfaction where a defendant voices a seemingly substantial complaint about counsel); Calabro, 467 F.2d at 986; Schmidt, 105 F.3d at 89 (the inquiry is whether defendant's objections to counsel have merit so as to entitle defendant to have new counsel appointed).

Petitioner's remaining claims regarding the assistance of counsel were raised in his direct appeal and denied, presumably on the merits, and thus will be considered by this Court. Petitioner alleges that trial counsel spoke too low to be understood (see 3/8/99 Supplement and 12/8/99 Amendment), advised Petitioner not to testify (see 10/12/00 Amendment), and frequently argued with the trial judge (see 3/20/03 Supplement, at 47).

To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy the stringent two-pronged standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that counsel's performance was deficient by demonstrating that counsel's assistance fell below an objective standard of reasonableness under "prevailing professional norms." Id. at 687-88. Second, a defendant must show that the deficient performance prejudiced the defendant. In so doing, a defendant must establish that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 694.

In making the first determination, courts must not utilize hindsight, but rather view the facts as of the time of counsel's conduct. Id. at 690. Moreover, since a fair assessment of attorney performance is inherently difficult, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" or might be considered sound trial strategy under the circumstances. Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Additionally, a court need not determine whether counsel's performance was deficient before considering whether the defendant suffered any prejudice as a result of the attorney's conduct. Id. at 697.

Petitioner's claims that Counsel's voice was too low to be understood and that Counsel was admonished by the trial court may not serve as the basis for habeas relief. On several occasions, the trial court did ask Counsel to raise his voice. (Tr. at 320, 349, 624, 625, 634.) However, most of these comments were made during Counsel's summation, when he was directly addressing the jury and not speaking in the direction of the judge. There is no indication that the jury was unable to understand Counsel's arguments or that any prejudice flowed from Counsel's low voice. It is clear from reviewing the transcript that Defense Counsel had a somewhat testy relationship with the trial court. On several occasions, Counsel argued with the court or was prompted by the trial judge to move along with his questioning. (Tr. at 281-82, 340, 351, 360, 381, 382, 423, 499, 503, 593.) However, the Court construes most of these incidents as zealous advocacy for his client rather than an indication of error. There is certainly no indication that the judge made any negative rulings in response to these exchanges or that any other prejudice accrued to Petitioner. The record indicates that the trial judge was also brusque with the prosecutor. (Tr. 531.)

There is also no indication that Defense Counsel prevented Petitioner from testifying in his own defense. It is clear from the record that Petitioner did not make the final decision not to testify until the last minute. (Tr. at 428, 513, 563.) In fact, the court granted a final recess at the close of the State's case in order to give Petitioner and Counsel an opportunity to confer before the Defense rested. (Tr. at 563, 566.) Petitioner does not actually claim that Counsel prevented him from testifying; rather, he argues that Counsel discouraged him from doing so. This was likely a sound strategic decision, one that Petitioner could have contravened, and that certainly does not indicate any error.

The Court finds that Counsel's performance was within "the wide range of reasonable professional assistance" required byStrickland. Thus, the ineffective assistance of trial counsel claim is denied.

IX. Ineffective Assistance of Appellate Counsel

Petitioner also argues that appellate counsel was ineffective because he failed to argue on appeal the ineffectiveness of trial counsel or any of the claims Petitioner submitted in his pro se brief to the Appellate Division.

This claim was raised and denied in Petitioner's state petition for a writ of error coram nobis, People v. Brown, 748 N.Y.S.2d 71, and thus the AEDPA standard of review applies. Accordingly, the Court may only consider whether the Appellate Division's denial of this claim was in accord with the standard established by the United States Supreme Court in Strickland v. Washington, which also applies to the evaluation of appellate counsel. See Smith v. Murray, 477 U.S. 527, 536-37 (1986) (citing the Strickland standard while considering the performance of appellate counsel); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992) ("[O]ur Circuit has also adopted theStrickland two-prong test in assessing the effectiveness of appellate counsel."). Furthermore, the Supreme Court has specifically stated that appellate counsel is not required to bring every non-frivolous issue requested by the defendant. Jones v. Barnes, 463 U.S. 745, 754 (1983). In order to meet the first prong of Strickland, Petitioner must demonstrate that his appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker."Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

Applying this standard, it is clear that Petitioner's argument is without merit. The four arguments that counsel did pursue on appeal, three of which Petitioner continued to argue in his collateral challenges, appeared colorable from the face of the record. While the reviewing courts ultimately rejected the arguments on their merits, each at least contained a prima facie argument. The claims that Petitioner now alleges should have been introduced were in fact raised by Petitioner in his pro se brief to the Appellate Division. The State responded to most of these claims and they were summarily denied by the appeals court. People v. Brown, 709 N.Y.S.2d 413 (N.Y.App. Div., 2d Dep't 2000). This Court has also reviewed each of these claims which may be reviewed in federal court and found each of them lacking in any support in the record. Accordingly, the Court finds that Appellate Counsel was reasonable in not raising issues that were without merit.

X. Juror Bias and the Denial of the Motion for a Mistrial

Petitioner also claims that his trial was tainted by the bias and misconduct of two of the jurors, that their misconduct tainted the remainder of the jury, and that the trial court erred in denying Petitioner's request for a mistrial. These concerns were raised during trial and the trial court conducted an investigation into the alleged misconduct. The court corrected any potential bias by excusing the two jurors and individually questioning the others. The trial court determined that the remaining jurors were impartial and Defense Counsel accepted this finding at trial. (Tr. at 552.)

This proceeding was in accord with the United States Supreme Court's standard for allegations of juror misconduct. In Smith v. Phillips, the Supreme Court found that "due process does not require a new trial every time a juror has been placed in a potentially compromising situation. . . . Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." 445 U.S. 209, 217 (1982). The Supreme Court held that in order to meet this burden, the trial court could hold a hearing involving the relevant parties and consider the jurors' testimony regarding their ability to remain unbiased. Id. In the case at bar, the trial judge did just that. Accordingly, this Court finds that any potential prejudice was corrected by the trial court, and thus, the requirements of due process were met. Petitioner's habeas claim involving juror misconduct and bias is denied.

XI. Trial Court Bias

Petitioner also argues that he was denied a fair trial by the alleged bias of the trial court against defense counsel and the impact this may have had on the jury's verdict. Petitioner argues that the judge repeatedly denigrated defense counsel, as part of an "intentional pattern to make the jury aware of the court's personal feelings about the case and counsel." (10/12/00 Amendment, at 18.)

Due process requires a trial of fundamental fairness. However, the Due Process Clause "establishes a constitutional floor, not a uniform standard." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Accordingly, "a habeas petitioner must show that the trial judge's intervention in a jury trial reached a `significant extent' and was adverse to a `substantial degree.'" Francolino v. Kuhlman, 365 F.3d 137, 143 (2d Cir. 2004) (quoting Daye v. Attorney General of New York, 712 F.2d 1566, 1572 (2d Cir. 1983) ("A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits.").

Petitioner alleges no set of facts which would meet this exacting standard. As discussed above, the record shows that the court did reprimand Defense Counsel on several occasions. The judge also reprimanded the prosecutor. These comments did not reach a "significant extent." Petitioner now claims that the alleged misconduct of alternate juror Longobardi and her apparent disdain for Defense Counsel were a consequence of the trial court's lack of respect for counsel and his arguments. Having reviewed the entire transcript of the trial, this Court does not find that the trial judge's comments to the attorneys evidenced disrespect or provided any other excuse for Longobardi's conduct. In any case, the trial court questioned her about her behavior, reprimanded her in no uncertain terms, and excused her from the trial. Accordingly, there was no adverse effect on Petitioner. This claim, too, is denied.

CONCLUSION

For the foregoing reasons, Petitioner's application for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. See Miller-El v. Cockrell 537 U.S. 322, 336 (2003) (reiterating the standard for issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c)). 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.

SO ORDERED.