ORDER and REPORT-RECOMMENDATION

GARY L. SHARPE, United States Magistrate Judge.

I. Background

Petitioner, pro se, Jonathan Williams, a/k/a Harold T. Griswold ("Williams") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on September 30, 1998 (Dkt. No. 1). This court issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, that directed the Office of the Attorney General for the State of New York ("Attorney General") to file a response (Dkt. No. 5). The Attorney General filed an answer and memorandum of law requesting dismissal of the petition (Dkt. Nos. 12-13), to which Williams filed a reply (Dkt. No. 16).

II. Discussion

A. State Court Proceedings

The testimony at trial revealed that on May 12, 1995, Gary Richards ("Richards") went to Victory Avenue in Schenectady, New York, to purchase crack cocaine. See Transcript of Trial of Williams (12/13/95) ("Tr.") at P. 828. An individual led Richards to a house on Chestnut Street where Richards met a man whom Richards later identified as Williams. Id. at PP. 861-62. After giving Williams $20.00 for some crack, Richards expressed his displeasure with the quality of the drug and requested his money back. Id. at P. 852. Williams lunged at Richards, but Richards blocked Williams with his arm. Id. at PP. 854-55. Richards left the house and went toward his car to leave the area. Id. at PP. 870-71. At around this time, Williams was heard exclaiming "I'm going to get the nigger, where's the nigger?" Id. at PP. 1173-74. He approached Richards' car and as he was driving away, Williams fired several shots into the rear of the automobile, severely injuring Richards. Id. at PP. 874-75, 1185-87.

Valerie J. Cherny ("Cherny"), who witnessed the shooting of Richards, Id. at PP. 1183-87, gave police a description of the assailant, from which a composite drawing of the suspect was made. See Hearing before the Hon. Michael C. Eidens ("Judge Eidens) (12/13/95) ("12/95 Hearing") at P. 18. On May 13, 1995, Williams was briefly questioned by members of the Police Department at which time he informed them that his name was Harold T. Griswold (12/95 Hearing at P. 179). He was then permitted to leave. Id. at PP. 31-32. Robert McHugh ("McHugh"), a police officer for the Schenectady Police Department, learned that Williams had previously used the alias Harold T. Griswold. Id. at PP. 33-34. McHugh obtained a photograph of Williams from the Spring Valley Police Department, Id. at PP. 34-35, and created a photo array of six individuals, including Williams. Id. at PP. 35-37. Cherny went to the police station and identified the photograph of Williams as a photograph of the individual she saw shooting at the car the previous day. Id at PP. 40-43. Richards also picked Williams out of the same photo array as the individual from whom he purchased crack cocaine on the day of the shooting. Id. at PP. 56-59.

Williams was arrested and subsequently charged by a Schenectady County Grand Jury on August 8, 1995, with second degree attempted murder, criminal possession of a weapon, criminal use of a firearm and several counts of first degree assault. See Indictment No. 595-16. Judge Eidens presided over the jury trial relating to these charges, and Williams was found guilty on all counts with the exception of one count of assault, and sentenced to eight and one-third (8 a) to twenty-five (25) years imprisonment on the attempted murder conviction, with lesser, concurrent terms on the remaining convictions. Pet at ¶ 3. Williams appealed his conviction and the Third Department, Appellate Division ("Appellate Division") affirmed, People v. Williams, 243 A.D.2d 833 (3rd Dep't 1997), and the Court of Appeals denied him leave to appeal. People v. Williams, 91 N.Y.2d 931 (1998).

B. Standards of Review

Prior to addressing the merits, the court addresses the standards of review now employed when considering federal habeas petitions.

Enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), brought about significant new limitations on federal power to grant habeas relief to a state court prisoner under 28 U.S.C. § 2254. Those new standards apply to petitions filed after the AEDPA's effective date even though they relate to convictions which predate enactment of the AEDPA. Williams v. Taylor, 529 U.S. 362, 402 (2000); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).

Under the AEDPA, a federal court may not grant habeas relief to a state prisoner on a claim that was adjudicated on the merits in state court proceedings unless 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.

The Second Circuit has provided additional guidance concerning application of this test, noting:

[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled?; 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent?; and, 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?

Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).

The AEDPA's standards of review only apply to federal claims which have been adjudicated on the merits in the state court. Washington v. Shriver, 255 F.3d 45, 52-55 (2d Cir. 2001). In these circumstances, deference is required even though the state court's decision lacks explicit reference to the federal claim or to federal case law. Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001). As that court explained:

the plain meaning of § 2254(d)(1) dictates our holding: 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.

Sellan, 261 F.3d at 312 (emphasis added).

Once the federal court has determined that the state court's decision has been decided "on the merits", the federal court may find that the state court's decision is "contrary to" established Supreme Court precedent only if the state court applied a rule that contradicts Supreme Court precedent, or decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Taylor, 529 U.S. at 405-06. Finally, in determining whether the decision was an "unreasonable determination" in light of the evidence presented, the federal court is not to determine whether the state court's finding was merely incorrect or erroneous, but instead whether it was "objectively unreasonable". Id. at 409; see also, Sellan, 261 F.3d at 315. This inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.

C. Merits of Petition

In his petition, Williams claims: (1) the photo array used by the police in obtaining an identification of him was unduly suggestive (Ground One); (2) the voir dire conducted of the jury was improper (Ground Two); (3) the trial court improperly denied defense counsel's challenge for cause of a juror (Grounds Three and Seven); (4) the trial court's Sandoval ruling constituted error (Ground Four); (5) evidence was admitted into trial in violation of a pretrial agreement between counsel (Ground Five); (6) his questioning by police was improper (Ground Six); and, (7) his sentence was harsh and excessive (Ground Eight).

1. Photo Array

Williams claims that the identification by Cherny and Richards of him in the photo array was improper because it "clearly shows that the defendant was in police custody, because it was taken at a police booking and shows the defendant wearing the slate around his neck by the customary chain." Pet. at attached P. 4.

The Supreme Court has established a two-part inquiry for evaluating in-court identification testimony based on pre-trial identification procedures. See Neil v. Biggers, 409 U.S. 188 (1972). The inquiry "requires (1) a determination of whether the identification process was impermissibly suggestive, and if so, (2) whether it was so suggestive as to raise a 'very substantial likelihood of irreparable misidentification.'" Id. at 196 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).

Whether a pre-trial identification procedure, such as a photo array, is so suggestive that it denies a defendant due process is a mixed question of law and fact. See Dickerson v. Fogg, 692 F.2d 238, 243 (2nd Cir. 1982) (citing Sumner v. Mata, 455 U.S. 591, 597 (1982) (per curiam)). Therefore, the Appellate Division's conclusion is not entitled to a "presumption of correctness" appropriate for determination of a factual issue. See 28 U.S.C. § 2254(e)(1); Francis S., 221 F.3d at 117. Nevertheless, Williams can only prevail on this Ground if the state court's decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" Francis S., 221 F.3d at 117 (citing 28 U.S.C. § 2254(d)(2)), or if the decision was contrary to, or unreasonable application of, clearly established federal law. Smith v. Sullivan, 1 F. Supp.2d 206, 211 (W.D.N.Y. 1998).

The Appellate Division discussed this aspect of Williams' appeal at some length, offering the following explanation for its rejection of the claim:

We find no merit to defendant's contention that the photo array from which he was identified was suggestive because it depicted him wearing a chain around his neck that was arguably similar to those used by some police agencies (though not the Schenectady Police Department) to hold up mug-shot placards. . . . Notably, all of the men depicted in the six-person array are shown in street clothing and, furthermore, the chain could be viewed as a mere piece of jewelry rather than as part of the booking process. Moreover, nothing in the record indicates that either witness had any knowledge of booking procedures at the Schenectady Police Department or elsewhere.

Williams, 243 A.D.2d at 836 (citations omitted).

This court's examination of the photo array that included Williams' photograph (Attachment to Dkt. No. 23), in conjunction with the case law referenced above, reveals that the Appellate Division's decision affirming Judge Eidens' ruling was reasonable. All six photographs in the array were pictures of black males with relatively short hair, little to no facial hair, and without any visible scarring or tattoos. Id.; see 12/95 Hearing at PP. 36-37. Additionally, each of these photographs depicts the individuals' head and torso, and bears a sufficient likeness to the defendant to be appropriate for a photo array. See Decision of Judge Eidens (01/02/96) at P. 12. Neither Cherny nor Richards mentioned the chain to police at the time of the identification and, as the Appellate Division noted, the chain does not indicate that he was in custody at the time of the photograph and could be considered jewelry. Finally, both Cherny and Richards identified Williams out of the photo array without any prompting by the police. Id.

Williams has not demonstrated that the Appellate Division's decision was an unreasonable determination of the facts in light of the evidence presented to Judge Eidens, or that it was contrary to, or involved an unreasonable application of, Neil. Therefore, the court recommends that this Ground in the petition be denied.

2. Voir Dire

Williams argues that during the voir dire of prospective jurors, the prosecutor "commented on evidence in the case several times in an inflammatory and very prejudicial manner also making himself an unsworn witness," and that as a result, he is entitled to a new trial. Pet. at attached P. 4.

Federal habeas review of a state court conviction is prohibited if a state court rests its judgment on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261-62 (1989); Garcia v. Lewis, 188 F.3d 71, 76 (2nd Cir. 1999). If the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar, then the federal court may not review the claim unless the petitioner demonstrates both good cause for and actual prejudice resulting from his noncompliance with the state's procedural rule. Garcia, 188 F.3d at 76-77 (citations omitted); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995). A further exception exists where the petitioner can show that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice;" namely, a person who is actually innocent has been convicted and incarcerated because of a constitutional violation. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Bousley v. U.S., 523 U.S. 614, 622 (1998); Strogov v. Attorney General of State of NY, 191 F.3d 188, 193 (2nd Cir. 1999), cert. denied, 530 U.S. 1264 (2000).

Thus, the court's initial inquiry must focus on whether Williams has, in fact, procedurally defaulted on this claim.

The Appellate Division denied this aspect of Williams' appeal, finding that it "was not preserved for appellate review by an appropriate objection." Williams, 243 A.D.2d at 838 (citing New York's Criminal Procedure Law ("CPL") § 470.05(2) (other citation omitted)). Thus, contrary to Williams' assertion (Dkt. No. 16 at Point 3), it is clear that he procedurally defaulted on this claim, and therefore, this Ground cannot be considered by the court unless he establishes cause and prejudice or that he is actually innocent of the crime. Tejeda v. U.S., 1999 WL 893275, at *4 (S.D.N.Y. Oct. 18, 1999).

To establish "cause," Williams must show that some objective external factor impeded his ability to comply with New York's procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); Restrepo v. Kelly, 178 F.3d 634, 638 (2nd Cir. 1999). Examples of external factors include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray, 477 U.S. at 488; United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1993). However, "[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488).

Williams has not established any cause for his procedural default as to this Ground. He has not offered any explanation as to why his counsel did not object to the prosecutor's comments during voir dire, and does not claim that his counsel was ineffective in failing to object at that time. Since Williams cannot establish cause for his procedural default, the court need not decide whether Williams suffered actual prejudice, because federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).

Moreover, the failure to consider the merits of this claim would not result in a fundamental miscarriage of justice which this Circuit has interpreted as amounting to "an unjust incarceration." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2nd Cir. 2000). Therefore, Williams is not entitled to habeas relief on this theory.

3. Jury Selection

In Grounds Three and Seven, Williams claims that Judge Eidens improperly denied the challenge for cause raised by his counsel as to a prospective juror. Pet. at attached P. 4. Specifically, Williams claims that the last juror tentatively seated at his trial, Juror No. 179, was acquainted with the prosecutor, and that Judge Eidens wrongfully denied Williams' challenge to this juror for cause. Consequently, Williams' counsel used his final peremptory challenge to remove that juror and was then unable to remove another juror (Juror No. 76), who indicated that he had been seated on a jury within the past two years, contrary to N Y Jud. L. § 524.

The Supreme Court has held that "while impaneling a jury the trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefore." Dennis v. United States, 339 U.S. 162, 168 (1950) (citations omitted). Actual bias, however, is not the mere existence of a preconceived notion as to the guilt or innocence of the defendant. Rather, it occurs when the juror cannot set aside that preconceived notion and render a decision based upon the evidence presented in court. See U.S. v. Sun Myung Moon, 718 F.2d 1210, 1218-19 (2nd Cir. 1983) (emphasis added), cert. denied, 466 U.S. 971 (1984); Irvin v. Dowd, 366 U.S. 717, 723 (1981). The question of a juror's potential bias is a factual issue best determined by the trial court's own determinations as to impartiality, credibility and demeanor. See Patton v. Yount, 467 U.S. 1025, 1036 (1984). Consequently, "[t]he appropriate inquiry on habeas review therefore is whether, in the totality of circumstances, the voir dire resulted in a jury that was so biased as to render petitioner's trial fundamentally unfair." Mitchell v. Herbert, 1998 WL 186766, at *2 (S.D.N.Y. Apr. 20, 1998) (citing Murphy v. Florida, 421 U.S. 794, 799 (1975)).

The Appellate Division considered Williams' claims regarding jury selection and found them to be without merit. Williams, 243 A.D.2d at 839-40. Thus, this court must consider whether that determination was contrary to, or an unreasonable application of, the Supreme Court law noted above.

During voir dire, Juror No. 179 indicated that he knew the grandmother of the Assistant District Attorney (Tr. at P. 60). However, this juror subsequently indicated that the acquaintanceship would have "nothing to do" with his ability to return a verdict based upon the evidence presented at trial. Id. at PP. 116-17. He also indicated that he would be able to follow the instructions given by Judge Eidens, Id. at P. 117, and, in response to a question from Williams' counsel, indicated that although he knew the Assistant District Attorney's grandmother, it would not "tip the scales even one inch, or one degree, or [any] small amount." Id. at P. 139. Thus, Judge Eidens properly denied counsel's challenge to this juror for cause.

As to Juror No. 76, who indicated that he had served on a civil case in the past two years, this juror nevertheless indicated that he could accept the distinctions between a civil case and a criminal case, Id. at P. 368, and no evidence has been presented by Williams that indicates that this juror ever indicated he could not be impartial. Thus, Williams has not established that this juror should have been removed from the jury for cause. However, even assuming, arguendo, that Williams is correct in his assertion that Juror No. 76 should not have been permitted to be a member of the jury due to his recent jury duty service, N.Y. Jud. L. § 524(b) specifically provides that "[n]othing contained in this section shall invalidate a verdict returned by a trial jury . . . when such trial . . . jury includes one or more trial . . . jurors not competent by virtue of such previous service." If Williams is not entitled to a new trial in state court based upon the alleged violation of New York's Judiciary Law, a fortiori he is not entitled to federal habeas relief on this claim.

Since Williams has not established that the Appellate Division's decision that rejected his challenges to the jury selection was contrary to, or an unreasonable application of, clearly established federal law, the court recommends that this Ground of the petition be denied.

4. Sandoval Ruling

In this claim, Williams argues that Judge Eidens improperly ruled that the prosecution could cross-examine Williams concerning the underlying facts of a 1990 charge alleging his unauthorized use of a motor vehicle, and a misdemeanor offense involving Williams which involved the use of a toy hand gun. Pet. at attached P. 4. Williams claims that because of Judge Eidens' rulings, he did not testify in his own defense. Id.

"It is well-settled that a petitioner's failure to testify at trial is fatal to any claims of constitutional deprivation arising out of a Sandoval-type ruling. . . . The reason that a habeas petitioner's failure to testify at trial is 'fatal to any claims arising out of a Sandoval type ruling' is that absent such testimony, a court has no 'adequate non-speculative basis upon which to assess the merits of that claim.'" McEachin v. Ross, 951 F. Supp. 478, 481 (S.D.N.Y. 1997) (quoting Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y.), aff'd mem., 940 F.2d 649 (2d Cir. 1991)); see e.g., Luce v. United States, 469 U.S. 38, 41 (1984) ("[a]ny possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative"); Shannon v. Senkowski, 2000 WL 1683448, at *6 (S.D.N.Y. Nov. 9, 2000) ("Second Circuit law has created a bright-line rule, however, barring habeas relief for allegedly erroneous Sandoval rulings in instances where a defendant elects not [to] testify") (citing cases); Beverly v. Walker, 899 F. Supp. 900, 909 (N.D.N.Y. 1995) (Scullin, J.) (petitioner's failure to testify at trial "is fatal to any claims arising out of a Sandoval type ruling"), aff'd, 118 F.3d 900 (2nd Cir.), cert. denied, 522 U.S. 883 (1997). Since Williams did not testify at his criminal trial, his Sandoval claim should be denied.

5. Voluntary Disclosure Agreement

Prior to Williams' criminal trial, his counsel and the Assistant District Attorney entered into a Voluntary Disclosure Agreement ("VDA"). See Appendix in Support of Appeal at P. A5. Williams argues that, during his trial, evidence that had not been previously disclosed to his counsel prior to trial pursuant to the terms of the VDA, was used by the prosecution against him. Pet. at attached P. 10.

Williams has not cited any specific instances during the trial when the Assistant District Attorney violated the terms of the VDA. Therefore, he has failed to sustain his burden of proof as to this claim. Whitaker v. Meachum, 123 F.3d 714, 716 (2nd Cir. 1997) (citing Walker v. Johnston, 312 U.S. 275, 286 (1941)) (petitioner has the burden of "sustaining his allegations by a preponderance of evidence" on collateral review) (other citations omitted); Khan v. U.S., 2000 WL 1738414, at *3 (S.D.N.Y. Nov. 22, 2000). Moreover, Williams has failed to establish that any of the evidentiary rulings of Judge Eidens either deprived him of a fundamentally fair trial, see DeLeon v. Hanslmaier, 1996 WL 31232 (E.D.N.Y. Jan. 19, 1996) (citing Taylor v. Curry, 708 F.2d 886 (2nd Cir.), cert. denied, 464 U.S. 1000 (1983) (other citation omitted) or "'had a substantial and injurious effect or influence in determining the jury's verdict.'" Senor v. Senkowski, 1999 WL 689477, at *12 (E.D.N.Y. Aug. 31, 1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)) (other citations omitted). Consequently, the court recommends that this Ground in the petition be denied.

6. Failure to Suppress Statements

Williams argues that when he was initially questioned by the police on May 13th, he was legally "in custody" and therefore, his comments to the police that day, (including his statement that his name was "Harold T. Griswold)," should have been suppressed because he was not read his Miranda rights at the time of questioning. Pet. at attached P. 4.

The Appellate Division considered Williams' challenge to the admission of the statements, and found that Judge Eidens "properly denied defendant's motion to suppress his oral statements." Williams, 243 A.D.2d at 835.

"[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Capellan v. Riley, 975 F.2d 67, 70 (2nd Cir. 1992) (citing Stone v. Powell, 428 U.S. 465, 481-82 (1976)). The Second Circuit has noted that review of Fourth Amendment claims in habeas petitions may only be undertaken in one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process. Capellan, 975 F.2d at 70 (citation omitted); Martinez v. Senkowski, 2000 WL 888031, at *7 (N.D.N.Y. June 28, 2000) (Scullin, C.J.).

New York State provides an opportunity for defendants to fully and fairly litigate Fourth Amendment claims. See CPL § 710; Capellan, 975 F.2d at 70 n. 1; Jackson v. Lacy, 74 F. Supp.2d 173, 176 (N.D.N.Y. Sept. 29, 1999) (McAvoy, C.J.) (adopting Report-Recommendation of Magistrate Judge). Specifically, CPL § 710.20 permits a criminal defendant to move to suppress evidence he believes was unlawfully or improperly acquired if he "has reasonable cause to believe that such may be offered against him in a criminal action." Id. Therefore, for Williams' Fourth Amendment claim to be cognizable in this habeas corpus proceeding, he must establish that there was a breakdown in the state process. See Capellan, 975 F.2d at 70. Although the Second Circuit has not defined exactly what constitutes an "unconscionable breakdown," it has said that some sort of "disruption or obstruction of a state proceeding" is typical of such a failure. Id. at 70 (quoting Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987)); see Stanley v. Kuhlman, 10 F. Supp.2d 250, 253 (E.D.N.Y. 1998) (unconscionable breakdown occurs when state fails to conduct reasoned inquiry into petitioner's claim).

Herein, Williams challenged the admission of the statements in the state court and on appeal. See Appellate Br. at PP. 7-9. He has not demonstrated that there was an "unconscionable breakdown" in the process below that warrants the granting of habeas relief on this claim. Therefore, the court recommends that this Ground be denied. Judge v. Kelly, 2001 WL 1558270, at *4 (S.D.N.Y. Nov. 30, 2001).

7. Harsh and Excessive Sentence

Finally, Williams claims that the sentence imposed on him — 8 a to 25 years imprisonment — "was just a little too much for a first time felony." Pet. at unnumbered P. 10.

"No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2nd Cir. 1992) (citing Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff'd mem., 875 F.2d 857 (2d Cir. 1989); see also, Jackson v. Lacy, 74 F. Supp.2d 173, 181 (N.D.N.Y. 1999) (McAvoy, C.J.) ("[i]t is well-settled . . . that a prisoner may not challenge the length of a sentence that does not exceed the maximum set by state law").

Since Williams does not argue that the sentence imposed on him by Judge Eidens was beyond the range permitted by New York, the court recommends that this Ground in the petition be denied.

WHEREFORE, based upon the above, it is hereby

RECOMMENDED, that Williams' habeas petition be DENIED and DISMISSED; and it is further

ORDERED, that the Clerk serve a copy of this Order upon the parties by regular mail; and it is further

ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.

NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.