MEMORANDUM, JUDGMENT ORDER

JACK WEINSTEIN, Senior District Judge

The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims,

I. Facts and Procedural History

Petitioner was tried for narcotics possession crimes. He was arrested at Kennedy Airport after a customs inspector examined a bottle of rum in petitioner's possession, smelled a strong chemical odor upon opening the bottle, and performed a field test indicating that the substance in the bottle was cocaine. Petitioner was convicted by a jury of criminal possession of a controlled substance in the first, third and seventh degrees. He was sentenced to concurrent prison terms of 15 years to life, 4-1/2 to 9 years and 1 year for the respective convictions.

Petitioner appealed his conviction to the Appellate Division, arguing that (1) the trial court's Sandoval ruling (allowing the prosecution to impeach petitioner with evidence of his prior felony convictions should he choose to testify) was an abuse of discretion; (2) the trial court erred in summarily denying his pro se speedy trial motion; and (3) his conviction for seventh degree criminal possession of a controlled substance should be dismissed as an inclusory concurrent count; and (4) his convictions for third degree possession and first degree possession violated double jeopardy principles. The Appellate Division remitted the matter to the trial court to either entertain petitioner's speedy trial motion or state on the record its reasons for refusing to address it. Upon remitter, the trial court refused to entertain the motion, concluding (hat it was poorly written, that trial counsel had refused to adopt it and that it had been submitted as a dilatory tactic designed to delay the trial. When the matter was returned to the Appellate Division, the court vacated petitioner's conviction for seventh degree drug possession and affirmed the judgment as modified, noting that the trial court providently exercised its discretion in declining to entertain petitioner's pro se speedy trial motion. Leave to appeal to the New York Court of Appeals was denied.

Petitioner filed an application for a writ of error coram nobis before the Appellate Division, claiming that his appellate counsel was ineffective. The application was denied.

In his application for a writ of habeas corpus, petitioner raises the same claims he pressed on direct appeal, that (1) the trial court's Sandoval ruling (allowing the prosecution to impeach petitioner with evidence of his prior felony convictions should he choose to testify) was an abuse of discretion; (2) the trial court erred in summarily denying his pro se speedy trial motion; and (3) his conviction for seventh degree criminal possession of a controlled substance should be dismissed as an inclusory concurrent count; and (4) his convictions for third degree possession and first degree possession violated double jeopardy principles,

II. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("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 it 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).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan. v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this 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). Under the Unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, Under this standard, "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," Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "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." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003), Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(c)(1).

III. Exhaustion

In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991), The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

Pursuant to AEDPA, a district court may now, in its. discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An 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."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).

IV. Procedural Bar

A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "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, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 2(54 n, 10 (1985) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filian, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.

V. Certificate of Appeal ability

A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [s]ubstantial showing of the denial of a constitutional right) required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).

This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").

VI. Analysis of Claims

Petitioner's claims are exhausted and were rejected on the merits in the state courts, Review proceeds under the deferential standards of AEDRA.

A

Petitioner first claims that the trial court's Sandoval ruling (allowing the prosecution to impeach petitioner with evidence of his prior felony convictions should he choose to testify) was an abuse of discretion. Because petitioner did not testify at trial, this claim is not cognizable on habeas review. See Luce v. United States, 469 U.S. 38, 43 (1984) ("to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify"); Grace v. Artuz, No. 00-CV-1441, 2003 U.S. Dist. LEXIS 6969, at *26 (E.D.N.Y. Apr. 22, 2003) ("petitioner's claim as to the impropriety of the Sandoval ruling does not raise a constitutional issue cognizable on habeas review"). Habeas corpus relief is not warranted on the claim.

B

The state courts never resolved whether there had been a speedy trial violation. The trial court, upon remittur, refused to entertain the pro se claim because petitioner was represented by counsel that refused to adopt the motion and because the motion appeared to be a dilatory tactic, The Appellate Division reasonably concluded that this ruling was not an abuse of discretion. Absent invocation of his right to represent himself without the assistance of counsel pursuant to Faretta v. California, 422 U.S. 806 (1975), petitioner was not entitled to have his pro se motions entertained by the court alongside those of counsel. Cf. Jones v. Barnes, 463 U.S. 745, 754 (1983) (holding in appellate context that "nothing in the Constitution" requires judges to "second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every `colorable' claim suggested by a client"); McKaskel v. Wiggins, 465 U.S. 168, 183 (1984) (no right to hybrid counsel); People v. Rodriguez, 95 N.Y.2d 497, 502 (2000) (because a criminal defendant is not entitled to hybrid representation at trial court has discretion to decide whether to entertain a pro se motion).

The state courts' refusal to entertain petitioner's speedy trial claim was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. Review by a federal court of the merits of the underlying speedy trial claim would be inappropriate. Habeas corpus relief on this ground is not warranted.

C

Petitioner claims that his conviction for seventh degree criminal possession of a controlled substance should be dismissed as an inclusory concurrent count. Petitioner received relief on this claim from the Appellate Division, which vacated his conviction of this crime and dismissed the count from the indictment. The claim as raised in this habeas proceeding is denied as moot.

D

Finally, petitioner claims that his convictions for third degree possession and first degree possession violated double jeopardy principles because both convictions were based on the same factual predicate,

The Double Jeopardy Clause of the Fifth Amendment provides that "no person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. In Benton v. Maryland, the Supreme Court held that the Double Jeopardy Clause was incorporated against the states by way of the Due Process Clause of the Fourteenth Amendment. 395 U.S. 784, 794 (1969). The protections of the Double Jeopardy Clause extend not only to successive prosecutions for the same offense but also, as is allegedly the case here, to "multiple punishments for the same offense," North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794, 802-03 (1989). "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not," Blockburger v. United States, 284 U.S. 299, 304 (1932),

Pursuant to New York's penal law, a person is guilty of criminal possession of a controlled substance in the first degree "when he knowingly and unlawfully possesses . . . one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of four ounces or more." N.Y. Penal Law § 220, 21(1), A person is guilty of criminal possession of a controlled substance in the third degree "when he knowingly and unlawfully possesses . . . a narcotic drug with intent to sell it." Each of these crimes requires proof beyond a reasonable doubt of a fact which the other does not. To be guilty of First degree possession, the prosecution must show that a defendant possessed a proscribed narcotic weighing four ounces or more, with no necessity of demonstrating intent to sell the narcotic. Guilt of third degree possession requires a showing of intent to sell, without the need to demonstrate a minimum quantity in the defendant's possession. There was no double jeopardy violation in the instant case. Habeas corpus relief is not warranted on this claim.

VII. Conclusion

The petition for a writ of habeas corpus is denied.

No certificate of appeal ability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.

SO ORDERED.