MEMORANDUM ORDER

LEONARD SAND, Senior District Judge

Petitioner Michael-Tony Velez was convicted by a jury in the New York Supreme Court on November 25, 2003 of two counts of assault in the second degree, criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the fifth degree, criminal possession of a controlled substance in the seventh degree, and unlawful possession of marijuana. He was acquitted of one count of assault in the second degree. Petitioner was sentenced as a persistent violent felony offender to a term of fifteen years to life. The Appellate Division affirmed the conviction and the New York Court of Appeals denied leave to appeal. People v. Velez, 798 N.Y.S.2d 905 (N.Y.App.Div. 2005), lv. denied, 6 N.Y.3d 760 (2005). Petitioner brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2000). For the reasons stated below, this petition is denied.

I.

Petitioner was arrested on July 16, 2002 on the street near Times Square after an altercation on a subway platform. Petitioner's version of the events differs significantly from the prosecution's.

The prosecution presented evidence that, while patrolling the subways in plainclothes, Sergeant Joseph Boorman saw petitioner waving a knife and threatening to kill another man on the subway platform. He displayed his shield, drew his gun and yelled "Police, don't move." Petitioner saw him and fled up the stairs. Boorman put his gun away, radioed for assistance and took up chase. When he reached the street Boorman enlisted the help of uniformed police officers Victor Mele and Michael Badagliacca who had heard his call over the radio. The two joined the chase in their patrol car. In the course of the pursuit, petitioner thrust his knife at Boorman several times and Boorman fell onto a subway grate injuring himself. After pursuing petitioner down Eighth Avenue, Mele and Badagliacca left their car, chased the petitioner on foot, tackled him, and with the help of another responding officer, Maurice Hernandez, subdued him. Both Mele and Badagliacca suffered partial shoulder separations in the struggle. The arresting officers searched the petitioner after he had been handcuffed and recovered a folding knife and cocaine wrapped in tinfoil from his pockets and six glassine envelopes containing marijuana and PCP from a bag that he was carrying. (See Resp.'s Br. at 2-4.)

Petitioner, on the other hand, claims that he was the victim of a vast police conspiracy. He claims that after he exited the subway train on his way to report for community service (resulting from his arrest the previous day for allegedly smoking marijuana), he was attacked by a dark-skinned man wielding a knife. Petitioner disarmed his assailant, who then ran off. Petitioner later claimed that his assailant was a police officer Vasquez (who he claims is now in federal custody) and that the knife he was wielding was the very same knife that had been confiscated from petitioner at his arrest the previous day. (See Petr.'s Request for Findings of Fact Conclusions of Law, Feb. 27, 2006.) Petitioner then caught up with his friend Eric Brown who had already started up the subway stairs and had not seen the incident. He told Brown that someone had just tried to rob him and ran away. As the two were leaving the platform, petitioner saw his assailant approach him again from behind a wooden divider. He also saw another man — Sergeant Boorman — approach him from the other side and pull out what he thought was a gun. At no time did Boorman display a badge or identify himself as a policeman. Petitioner fled up the stairs, but did not know if Boorman followed him. He later encountered plainclothes police officers who displayed badges and ordered him to stop. Though he told them he was the victim of a robbery attempt, they took him into custody, recovered the knife and marijuana, and told him he had assaulted three police officers. Petitioner denies ever being chased by the police or struggling with Mele and Badagliacca. He claims that the cocaine and PCP were planted on him by the arresting officers. (See Resp.'s Br. 4-6.)

After trial, the jury acquitted petitioner of the second degree assault on Boorman, but convicted him on the remaining counts.

II.

The petition before the Court raises twenty-three grounds for relief. Many of them are overlapping or redundant. A pro se litigant's pleadings, however, are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Petitioner essentially raises ten claims: (1) Fourth Amendment violations, (2) ineffective assistance of counsel, (3) prosecutorial misconduct, (4) judicial misconduct, (5) that he was deprived of his right to testify before the grand jury, (6) that the jury charge deprived him of due process, (7) that he had no access to the trial record, (8) that his sentence was illegal, (9) that the indictment was insufficient, and (10) that the trial court had no jurisdiction over his sentencing.

Petitioner's remaining grounds are noncognizable. In his first and twentieth grounds, petitioner claims that he was acquitted of "all events which gave rise to an unlawful arrest." To the extent that petitioner is claiming that he is incarcerated after an acquittal, the record clearly shows that he was convicted on six other counts. To the extent that petitioner is claiming that his acquittal on one count of assault shows that the police had no probable cause to arrest him on the other assault and drug charges, that contention is more appropriately considered as a Fourth Amendment claim. Petitioner's fifth, eleventh, and eighteenth grounds do not state a claim on which this Court can grant relief. It is impossible to discern petitioner's meaning in his fifth ground when he claims that his conviction "as related to the knife" violated his privilege against self-incrimination. Ground eleven, where petitioner states that he "also addresses collateral estoppel," is similarly inscrutable. In ground eighteen, he simply asserts that he is a United States citizen.

A. Fourth Amendment Claims

In his fourth, fifth, sixth, seventh, nineteenth, and twenty-first grounds, petitioner alleges that he was arrested without probable cause and that he was subject to an unlawful search after his arrest in violation of the Fourth Amendment. As a result, he claims that the knife and drugs found on his person and in his bag are fruit of the poisonous tree and should have been excluded from evidence.

In Stone v. Powell, 428 U.S. 465 (1976) the United States Supreme Court held that a federal court is barred from reviewing Fourth Amendment claims on habeas so long as the state has provided the petitioner with a full and fair opportunity to litigate his claims. The Second Circuit has held that Fourth Amendment claims should be entertained on habeas only if the state has provided "no corrective procedures at all" or if the defendant was prevented from using a corrective procedure because of an "unconscionable breakdown in the underlying process."Cappellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 839-40 (2d Cir. 1977)). Petitioner has not shown, or even alleged, that New York State failed to provide an appropriate forum for adjudicating Fourth Amendment claims, or that there has been an "unconscionable breakdown" in the process of adjudicating his claims. Because petitioner had a full and fair opportunity to litigate his Fourth Amendment claims in state court, this Court has no authority to grant him habeas relief on those grounds.

B. Ineffective Assistance of Counsel

In his second, third, seventeenth and twenty-second grounds, petitioner claims that he was deprived of his right to the effective assistance of counsel during pre-trial and trial because he had no representation until after the second indictment was returned and because his trial counsel colluded with the prosecutor and judge to prevent a potential defense witness from testifying.

The Appellate Division held that petitioner's "ineffective assistance of counsel claim rests primarily on matters outside the record and is thus unreviewable on direct appeal. To the extent that the present record permits review, it establishes that defendant received effective assistance of counsel." People v. Velez, 798 N.Y.S.2d 905, 906 (N.Y.App.Div. 2005). To the extent that petitioner is raising on-the-record claims in this habeas petition, they have been adjudicated on the merits and this Court must apply the standard set out in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d) (2000). A federal habeas court may grant the writ only if the state court proceeding "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." Id.; see also Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

The Supreme Court set out the test for ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a Sixth Amendment claim, petitioner must show that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome," and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 694, 689. A reviewing court should "assess counsel's overall performance throughout the case in order to determine whether the `identified acts or omissions' overcome the presumption that counsel rendered reasonable professional assistance." Kimmelman v. Morrison, 477 U.S. 365, 386 (1986).

This Court cannot say that the Appellate Division was unreasonable in applying the Strickland standard to petitioner's case. Petitioner's claim that he was not represented until after the second indictment was returned is contradicted by the record. Petitioner concedes in an affidavit submitted to the state court that he was represented by Attorney Hershel Katz at the time the state sought the superceding indictment. (See Ex. II, ¶ 8 attached to Jan. 6, 2006 Petition for Writ of Habeas Corpus.) Additionally, counsel informed the trial court on May 22, 2003 that he had represented petitioner since his arraignment the day after his arrest. (See Resp. Br. at 19 (citing Trial Tr. at 76)). There is evidence that petitioner's counsel was not present in court on two instances (January 27, 2003 and February 13, 2003), but on both instances the case was simply adjourned. See Decision and Order, People v. Velez, Ind. No. 166/2003 (Apr. 21, 2003) (Ulliver, J.) (attached as Ex. IV:A to Jan. 6, 2006 Petition).

Petitioner's claim that counsel colluded with the prosecutor and judge to prevent the testimony of a potential defense witness, Eric Brown, is also not supported by the record. The record shows that neither petitioner's investigator nor petitioner himself was able to secure Eric Brown's appearance at trial (see Resp.'s Br. at 19 (citing Pretrial Tr. at 6-14, 33-34, 78-82; Trial Tr. at 122-23, 125-28, 235-36)) and petitioner points to no record evidence of collusion.

As the trial judge noted, counsel made an omnibus motion, conducted pretrial discovery, filed a speedy trial motion, cross examined witnesses, and "argued legal issues at the pretrial hearing and at trial in a thorough, professional and effective manner." (See Decision of Justice Hayes, Nov. 10, 2003, quoted in Resp.'s Decl. Ex. B at 16.) The Appellate Division could reasonably have found that counsel's performance on the whole "fell within the wide range of reasonable professional assistance," or that any errors were not so prejudicial as to "undermine confidence in the outcome." Strickland, 466 U.S. at 689, 694.

To the extent that this habeas petition raises issues outside the record, petitioner has not exhausted available state remedies on those issues. See Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (petitioner must present to the state court "both the factual and legal premises of the claim he asserts in federal court"). Petitioner could have raised his outside-the-record claims in a motion to vacate his conviction pursuant to N.Y. Criminal Procedure Law § 440.10 (McKinney 2005). Because § 440.10 motions can be brought at any time after entry of judgment, this avenue of relief remains open and petitioner is not procedurally barred from pursuing it. A habeas court may, however, deny on the merits a habeas petition containing unexhausted claims if those claims are "plainly meritless." 28 U.S.C. § 2254(b)(2); Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a district court would abuse its discretion to stay a mixed petition when unexhausted claims are plainly meritless). To the extent that petitioner's nonspecific claims of ineffective assistance and collusion between counsel, the prosecutor, and the trial judge raise issues outside the record, they are plainly meritless. Petitioner offers no non-record evidence of misconduct nor any evidence of an agreement among his lawyer, the prosecutor and the judge. Therefore to the extent that any portion of petitioner's ineffective assistance of counsel claim is unexhausted, it is plainly meritless and should be dismissed.

C. Prosecutorial Misconduct Claims

In his ninth, sixteenth, seventeenth and twenty-second grounds, petitioner alleges prosecutorial misconduct because the prosecutor failed to disclose exculpatory and discovery material and colluded with defense counsel and the trial judge to prevent a witness from testifying. As discussed in Part II.B. supra, petitioner has offered no evidence of any conspiracy to prevent the testimony of Eric Brown and therefore, although the claim is unexhausted, it must be dismissed as plainly meritless.

Petitioner's claim that the prosecution failed to disclose exculpatory evidence in violation of the principles the Supreme Court set out in Brady v. Maryland, 373 U.S. 83 (1967) was considered and rejected by the Appellate Division. See Velez, 798 N.Y.S.2d at 906. That decision was neither contrary to nor an unreasonable application of federal law. To establish a Brady violation, the petitioner must show that the evidence at issue was favorable to his case either because it was exculpatory or impeaching, that the evidence was suppressed by the state, and that prejudice ensued. Strickler v. Green, 527 U.S. 263, 281-82 (1999). Petitioner has not shown that the evidence he claims was withheld (videotapes, 911 tapes, and police notes) even exists, let alone that it is material and exculpatory enough to "undermine confidence in the outcome of the trial." Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). Therefore it was not unreasonable for the state court to find that there was no Brady violation.

On his more general claim of prosecutorial misconduct, it was not unreasonable for the state court to find that petitioner did not offer sufficient evidence to show that the prosecutor's actions "sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process."Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

D. Judicial Misconduct Claims

E. Grand Jury Claim

supra, Ungar v. Sarafite376 U.S. 575584 Alexander v. Louisiana405 U.S. 625633see See Lopez v. Riley865 F.2d 3032See id. See Teague v. Lane 489 U.S. 288297-98Bossett v. Walker41 F.3d 825 828-29

F. Jury Charge Claim

In his eighth ground, petitioner claims that the jury charge on second degree assault deprived him of due process because the trial judge added wording from the model charge for cause of death. The propriety of a state court's jury charge is a matter of state law and therefore not cognizable on habeas review unless it goes beyond a mere misstatement of state law and violates a right guaranteed by federal law. See Cupp v. Naughten, 414 U.S. 141, 146 (1973), Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Petitioner's unspecific claim of a due process violation is not supported by any evidence that would show that the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147.

G. Access to Trial Record Claim

In his thirteenth ground, petitioner claims that he has been denied access to the trial record and hearing record for direct appeal. Petitioner did not, however, alert the state court to the constitutional nature of his claim. In Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 2001) (en banc), the Second Circuit held that a petitioner has exhausted a claim if, in his application to the state court, he: (1) relied on pertinent federal cases employing constitutional analysis, (2) relied on state cases employing constitutional analysis in like fact situations, (3) asserted his claims in terms so particular as to call to mind specific rights protected by the Constitution, or (4) alleged a pattern of facts well within the mainstream of constitutional litigation.

Petitioner did not address his access to the trial record in his brief before the Appellate Division and, in fact, that brief contained citations to the record. (See, e.g., Petr.'s App. Div. Br. at 10 ("this testimony comes from page 148 lines 23-25 . . .").) In his application for leave to appeal to the Court of Appeals, petitioner did include the following sentences: "further your appellant was never provided with a single sheet of the Trial and Hearing Record for the Appeal before the court. As your Appellant, informed Hon. Chief Judge Kaye the Very Father John R. Burns, was unable to obtain the trial record, hearing record nor grand jury records, nor was the Corporation Counsels Office able to obtain the Record . . . both were informed the records were sealed as a result of the case being dismissed. . . ." (Petr.'s Letter to Judge Graffeo, Nov. 5, 2005 attached as Ex. E to Resp. Decl.) Petitioner did not cite any cases that would alert the state court to the constitutional nature of the claim. And because the claim was raised in the context of an assertion that petitioner's lawyer was unable to locate and discovery disclosures or Brady material, it did not call to mind specific rights protected by the Constitution or allege a fact pattern well within the mainstream of constitutional litigation. Cf. Griffin v. Illinois, 351 U.S. 12 (1956) (holding that requiring indigent defendants to pay for trial transcripts for appeal violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment). It is not even clear from petitioner's application for leave to appeal which record he had difficulty obtaining or whether he followed the correct steps to obtain the record. Therefore petitioner's claim that he was unconstitutionally denied access to the trial record was not exhausted and because no avenue of state relief remains open, the claim is procedurally barred. See Teague, 480 U.S. at 297-98;Bossett, 41 F.3d at 828-29.

H. Constitutionality of Sentence Claims

I. Sufficiency of Indictment Claim

Apprendi v. New Jersey530 U.S. 466Apprendi See id. Almendarez-Torres v. United States523 U.S. 224239-45 See Teague 489 U.S. at 297-98Bossett41 F.3d at 828-29

J. Jurisdictional Claim

In his twenty-third ground, petitioner argues that the six month delay between his conviction and sentencing caused the trial court to lose jurisdiction over his case. Petitioner relies on People v. Harper, 520 N.Y.S.2d 892 (N.Y. Crim. Ct. 1987), which held that a twelve year delay in sentencing caused the court to lose jurisdiction. The court in Harper relied on both state and federal law in reaching this decision citing Pollard v. United States, 352 U.S. 354 (1957) in which the Supreme Court assumed arguendo that sentencing fell under the Sixth Amendment's "speedy trial" guarantee, but held that the delay in the completion of Pollard's prosecution did not violate the Constitution because it was not "purposeful or oppressive." Id. at 361-62. The state court's determination that petitioner's "claim of unconstitutional delay in sentencing is meritless,"Velez, 798 N.Y.S.2d at 906, was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. There simply is no Supreme Court precedent that clearly establishes that a delay in sentencing works a Sixth Amendment violation and the state court could reasonably have found that the delay was not purposeful or oppressive.

III.

SO ORDERED.