MEMORANDUM AND ORDER

JOHN GLEESON, District Judge

James Scott petitions for a writ of habeas corpus. For the reasons set forth below, the petition is denied.

BACKGROUND

The evidence at trial established the following facts. On April 16, 1995, at approximately 6:30 p.m., Anoopam Attari — a 22-year-old special education teacher and amateur photographer — was on the beach in Queens County photographing the sunset. Scott approached her, wielding a knife. He grabbed Attari and held her at knifepoint, fondling her breasts. When she tried to run away, he tackled her, tied her hands with her belt, and punched her in the face. He also ripped off pieces of Attari's shirt, forcing one into her mouth to gag her. Scott then forced Attari to take him to her car.

Once in the car, Scott drove to another parking lot, where he sexually assaulted Attari. He then drove to yet another parking area, where he sexually assaulted and raped her. He also repeatedly punched her in the face with his fists. Scott then stood up, kicked Attari in the stomach and back, and walked away.

Attari ran towards the street, flagged down a passing police car, and described her attacker to the police. The police drove her in the direction in which Scott had been walking. After approximately five minutes, Attari saw Scott and identified him to the police. When the police arrested him, they recovered a knife from his pocket. The DNA from the semen of Attari's attacker matched the DNA in a sample of Scott's blood.

Scott was charged with rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, kidnaping in the second degree, assault in the second degree, and criminal possession of a weapon in the fourth degree. Before his trial, Scott filed a pro se petition for a writ of habeas corpus in New York Supreme Court, Queens County, claiming that (1) the felony complaint had not been signed by the complainant; (2) insufficient evidence had been presented to the grand jury to sustain the indictment; (3) his property had been improperly seized; (4) the identification of him had been tainted; and (5) his blood samples had been improperly taken from him. On November 13, 1995, the court denied the motion.

After a jury trial, Scott was convicted of one count of rape in the first degree, one count of sodomy in the first degree, two counts of sexual abuse in the first degree, one count of assault in the second degree, and one count of criminal possession of a weapon in the fourth degree. He was sentenced (as a second violent felony offender) on August 1, 1996, to consecutive indeterminate prison terms of from 12 1/2 to 25 years for the rape, from 12 1/2 to 25 years for the sodomy, from three-and-one-half to seven years for one of the sexual abuse counts, and from three-and-one-half to seven years for the assault. All of these terms were ordered to run concurrently with an indeterminate prison term of from three-and-one-half to seven years for the second count of sexual abuse and a term of one year for the weapon possession.

In a pro se motion dated March 19, 1997, Scott sought to renew a pretrial speedy trial motion and to vacate his judgment of conviction on that ground. On May 1, 1997, the motion was denied. Scott sought leave to appeal the May 1, 1997, order, but leave to appeal was denied on July 15, 1997.

Scott filed another motion to vacate his judgment of conviction dated March 25, 1998. He alleged that the arresting officer, Keith Burkitt, tampered with evidence sent to the Office of the Chief Medical Examiner for DNA testing, as evidenced by a change in the voucher numbers of certain evidence. He also alleged that the police failed to keep a chain of custody document with respect to blood samples taken from him. Based on these allegations, he claimed that (1) the People failed to comply with their obligations under Brady v. Maryland, 373 U.S. 83 (1963); (2) his conviction was procured by duress; (3) material evidence adduced at trial was known to be false by the prosecution; (4) this information constituted newly discovered evidence; and (5) his conviction was obtained in violation of his state and federal constitutional rights.

On June 2, 1998, the Supreme Court denied Scott's motion. It stated as follows:

Defendant's assertion that the People tampered with the evidence retrieved from the victim because the "rape kit" evidence was initially vouchered under F845469, but later appeared under voucher F980796, is without merit. It is clear from the evidence presented that the "rape kit" was initially vouchered under F845469, and that such item was opened under police supervision and certain items removed and placed in a new voucher, F980796, which was then presented to the Medical Examiner's Office for the purpose of conducting DNA testing.

The chain of custody is unbroken. There is no evidence presented that the police "tampered" with these items in any way. There is also an unbroken chain of custody established as to the blood samples taken from the defendant for the purpose of comparison. These items were taken and vouchered. Such vouchered items were then presented to the Medical Examiner's Office for DNA testing. There is no evidence presented by defendant to refute the chain of custody.

A. The First Federal Petition

In a petition dated December 10, 1996, Scott moved in this Court for a writ of habeas corpus, claiming that the state court improperly denied his petition for collateral relief before receiving the People's opposition. Scott v. Bennett, 96 CV 6001. On June 13, 1997, the petition was denied on the ground that Scott's claim was unexhausted.

B. The Second Federal Petition

On February 23, 1999, Scott filed another habeas corpus petition in this Court. Scott v. Walker, 99 CV 1042. In addition to seeking a temporary restraining order directing immediate release from custody, Scott contended that (1) Police Officer Kevin Burkitt tampered with arrest evidence, (2) the prosecutor withheld exculpatory evidence, and (3) the state court violated Scott's constitutional rights to due process and equal protection of the law by entertaining the People's affidavit in opposition to petitioner's second section 440 motion in violation of New York Civil Practice Law and Rules section 2213(b)(c).

On August 23, 2000, I dismissed the petition without prejudice. Although Scott had litigated his claims in a collateral attack in state court, he had also raised them in his brief on his direct appeal, which by then had been perfected. Because Scott was attempting to simultaneously litigate his claims in both federal and state court, the petition was dismissed without prejudice to refiling it after Scott had exhausted his state remedies.

C. The Direct Appeal

On November 10, 1999, appointed appellate counsel filed a brief on Scott's behalf in the Appellate Division, Second Department. The brief raised four claims: (1) The hearing court improperly denied Scott's request to call the victim at the Wade hearing; (2) the trial court improperly allowed the arresting officer to testify about the description of the suspect he was looking for and that Scott had fit that description; (3) because the prosecution failed to establish a chain of custody for the victim's underwear, the underwear and DNA evidence derived from it should not have been allowed into evidence; and (4) the prosecutor's summation deprived Scott of a fair trial. In addition, in a pro se supplemental brief, Scott claimed that (5) the trial court had no jurisdiction to decide his state habeas corpus petition; (6) the trial court erroneously submitted to the jury evidence that was not marked as an exhibit; (7) the prosecutor withheld exculpatory material; (8) he was absent from a material stage of his trial; (9) the prosecutor improperly excluded prospective jurors because of their color; (10) the sentencing court erroneously adjudicated Scott a predicate violent felon; and (11) the trial court erroneously denied Scott's speedy trial motion.

On January 22, 2002, the Appellate Division affirmed Scott's judgment of conviction. People v. Scott, 736 N.Y.S.2d 691 (2d Dep't 2002). The court held that because Scott failed to raise a substantial issue as to the constitutionality of the identification procedure, the hearing court appropriately denied his request to have the victim testify at the suppression hearing. The court also held that Scott's claims of prosecutorial misconduct during the prosecutor's summation were unpreserved for appellate review and, in any event, without merit. Finally, the court concluded that petitioner's remaining contentions, including those raised in his pro se supplemental brief, were also unpreserved for appellate review and without merit. On February 9, 2002, Scott sought leave to appeal to the New York Court of Appeals from the Appellate Division's January 22, 2002, order. On May 24, 2002, the Court of Appeals denied leave to appeal. People v. Scott. 98 N.Y.2d 655 (2002) (Kaye, C.J.).

D. The Instant Petition

On November 19, 2001, while his direct appeal was pending, Scott filed the instant petition. In it, he contended that the delay of his direct appeal in the Appellate Division amounted to a denial of due process because it prohibited him from seeking federal habeas relief. After his direct appeal was decided, Scott filed yet another petition, which I deemed an amendment to the petition filed on November 19, 2001.

Scott raised 13 claims in his petition: (1) the trial court did not have jurisdiction to prosecute his case because the felony complaint contained hearsay statements; (2) the state court violated his constitutional rights by entertaining the prosecution's affidavit in opposition to petitioner's section 440.10 motion in violation of New York Civil Practice Law section 2214(b)(c); (3) the trial court erroneously denied his speedy trial motion; (4) the sentencing court erroneously denied his request for a hearing prior to adjudicating him a predicate violent felon; (5) Office Burkitt tampered with arrest evidence; (6) the prosecutor withheld exculpatory evidence; (7) the state hearing court improperly denied Scott's request to call the victim at the Wade hearing; (8) the prosecutor improperly excluded prospective jurors because of their color; (9) he was denied due process of law by the fact that he was absent from a material stage of the trial; (10) the trial court improperly allowed the arresting officer to testify about the description of the suspect he was looking for and that Scott fit that description; (11) the People failed to establish a chain of custody for the victim's underwear, and the DNA evidence derived from it should not have been allowed into evidence; (12) the prosecutor's summation deprived him of a fair trial; and (13) the trial court erroneously submitted to the jury evidence that was not marked as an exhibit.

DISCUSSION

A. The Standard of Review

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

A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413, A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case."Id. "In other words, a federal court may grant relief when a state court has misapplied a 'governing legal principle' to 'a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175(2003)).

Under the latter 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." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 72 U.S.L.W. 3278, at *7 (U.S. Oct. 20, 2003) (No. 02-1597) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). InterpretingWilliams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

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

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

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

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

B. Scott's Claims

1. The Speedy Trial Claim

Scott asserts that the state courts erroneously denied his request for relief under New York Criminal Procedure Law section 30.30. Under that provision, the People are required to be ready for trial within six months of commencement of the action. However, a claimed violation of section 30.30 is not cognizable on habeas review, as such relief can be granted only upon a showing that the state court judgment is based on a violation of federal law. See 28 U.S.C. § 2254(a).

It is true that the Sixth Amendment guarantees an accused the right to a speedy trial. See U.S. Const, amend. VI. Although respondents persuasively argue that Scott defaulted this claim in state court, I need not address that argument because the claim is patently without merit. The determination of whether pretrial delay violates the Sixth Amendment is governed by Barker v. Wingo, 407 U.S. 514, 530 (1972): see also Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003). Barker identified four factors "courts should assess in determining whether a particular defendant has been deprived of his right[:] Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 533. None of the four factors is either necessary to or sufficient for a finding of a deprivation of the right of speedy trial; rather, they must be considered together with such other circumstances as may be relevant as part of "a difficult and sensitive balancing process." Davis. 316 F.3d at 127,

Here, the delay between Scott's arraignment on the original complaint on April 17, 1995, and the commencement of his trial on May 6, 1996, was less than 13 months. That simply did not implicate Scott's constitutional speedy trial right, especially where, as here, the case involved serious criminal charges, and both a Wade hearing and DNA testing were necessary.

2. The Evidence Tampering and Chain of Custody Claims

Scott claims that Officer Burkett tampered with the evidence. The claim seems to be based entirely on the different voucher numbers assigned to the original swabs and the cuttings from the victim's underwear. He further claims that the failure to disclose this tampering violated the prosecutor's obligations under Brady v. Maryland, 373 U.S. 83 (1963).

Based on the evidence presented at trial, the trial court rejected Scott's claims. It found no evidence-tampering and an unbroken chain of custody of the blood samples taken from Scott. In this petition, Scott merely reiterates the flimsy allegations that were flatly rejected by the state court based on the evidence at trial. Those finding are presumed to be correct, and Scott has not rebutted them at all, let alone with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Accordingly, they are rejected.

3. The Batson Claim

On direct appeal, Scott's counsel did not raise a Batson claim. However, in a pro se supplemental brief, Scott challenged his conviction on the ground that the prosecutor had exercised peremptory challenges in a discriminatory manner.

Before the third round of jury selection began, Scott told the court that the defense wanted two jurors who had been challenged by the prosecutor in the first round. The court replied that the People apparently did not want them. Defense counsel then explained that, during the first round, 13 out of the 16 prospective jurors in the box were females. Of the three men, two were black, and the prosecutor had challenged both black men. Defense counsel argued that, although" [there] weren't that many" black males in the panel, a pattern of excluding them was established by the two challenges. (Voir Dire Tr. at 286-88).

The court replied that there was still a lot of jury selection remaining, that the second round had not included any black males, and thus there was "[v]ery little I could say about" the alleged pattern. (Id. at 289.) It stated that it would not "grant the Batson now," but would wait to see what would occur in the third round. (Id.)

In the third round, the People exercised a peremptory challenge as to Juror Johnson. Defense counsel started to make a Batson motion challenging that peremptory strike, but the court interrupted and asked the prosecutor for race neutral reasons for the challenge of Juror Johnson. The prosecutor cited the juror's statement that it would be difficult for him to convict someone based on the testimony of one witness, if there were two sides presented. The court noted that Johnson had also stated that he would make a decision based on what he heard. It then upheld the Batson challenge, and Johnson was seated as a juror. (Id. at 364-68.)

The People argued in the Appellate Division that any argument based on the use of peremptory challenges in the first round of jury selection was not preserved for appellate review. The trial court had explicitly invited defense counsel to renew the claim with respect to the first round (which was not even mentioned until after the second round) during the third round. (See id. at 290 ("[T]his is today when you're raising it now. And we didn't know in the second round there would be no blacks. Let's see what happens on the third round. You can raise your objection again and I'll look at it." (emphasis added)).) Although in the third round Scott's counsel raised a successful Batson claim with regard to Johnson, the claim relating to the round one peremptories was not renewed.

By finding the Batson claim (among others) both unpreserved for appellate review and lacking in merit, Scott 736 N.Y.S.2d at 692, the state court agreed with the People that Scott's Batson claim addressing the first round of jury selection had been waived. As a result, the state court's decision on this issue rests on both procedural and substantive grounds.

Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261 (1992);Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review. Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the states' interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [their] own errors"); see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").

A defaulted claim will be considered by the court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750; league v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing "'that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).

Here, Scott does not even attempt to show cause for the default. Indeed, he merely submits in support of the petition the identical argument he advanced in his pro se supplemental brief to the Appellate Division. Nor has Scott shown that a miscarriage of justice would ensue if his belated Batson challenge is not heard on the merits. Accordingly, his claim is rejected.

4. Burkett's Testimony About the Suspect

Officer Burkett arrested Scott shortly after the crimes were committed. He testified that he was canvassing the area, looking for a black male, approximately 30 to 40 years of age, wearing a yellow three-quarter length coat and a pair of white sweatpants. He approached Scott because he fit the description. (Trial Tr. at 35).

Scott claims that the testimony deprived him of a fair trial. Like theBatson claim, this claim is procedurally defaulted. It is baseless as well. There was no harm in Burkett explaining why he approached Scott, as opposed to others he may have seen on the street that day. The People were not required to leave the jury with the misimpression that Scott was selected at random. As for Scott's suggestion that this testimony "bolstered" the complainant's testimony, no such complaint is cognizable on habeas review. Besides, there was no bolstering. It was plain from the testimony at trial that whether Burkett approached and arrested the correct person depended entirely on the accuracy of the complainant's description to the police of her attacker. She testified at trial, and her testimony was accepted by the jury. That the jury learned the police arrested the person she described as the rapist did not deprive Scott of a fair trial.

5. Scott's Presence at Sidebar

At the outset of the trial, the trial court stated as follows with respect to Scott's right to be present at sidebar:

The circumstances involving this case, also during the course of a voir dire and during the course of the trial, Mr. Scott, there are many times when a sidebar conference may come to play. A sidebar conference generally concerns matters about the law but there also concerns certain issues that may arise. There's case law that says defendants have a right to be present at those sidebar conferences. I take a waiver of the defendant's presence from the sidebar conference. I can tell you it doesn't mean you don't know what's going on. Your attorney always have a right to talk to you whenever he chooses to. Any time you want to talk to him he can come back and talk to you. You can make decisions in terms of applications being made. All those aspects you have a right to know. I find during the course of the trial in front of the whole panel and everyone else concerned if there was a sidebar conference you would have to come up, you would have to come up with at least one, maybe two court officers. Your attorney is going to be there. The District Attorney is going to be there. The court stenographer is going to be there. I am going to have to be there and my law secretary. That's just a minimum of the number of people that have to be at sidebar. That happens from time to time. To me it looks like a circus. That's my opinion. So I take a defendant's waiver at the sidebar. It doesn't mean you have to waive. Talk it over with your attorney.

(Hr'g Tr. at 17-18 (May 8, 1996).) Scott indicated, both through counsel and personally, that he wished to waive his presence at sidebar conferences. (Id. at 19.) During jury selection, Scott withdrew the waiver to the extent peremptory challenges were exercised at sidebar. The trial court permitted the withdrawal and held no more sidebars, excusing the jury instead. (Voir Dire Tr. at 285-89.)

Scott asserts that discussions between the court and counsel regarding potential jurors before he withdrew his waiver violated his constitutional right to be present at a critical stage of the proceeding. The argument is frivolous. The record reveals a knowing, voluntary, counseled waiver and no prejudice whatsoever. The state court's rejection of this claim on both procedural and substantive grounds is unassailable.

6. The Prosecutor's Summation

Scott takes issue with the prosecutor's summation, contending specifically that it was prejudicial and deprived him of a fair trial. The Appellate Division found Scott's claim to be both unpreserved and lacking in merit. The Appellate Division was correct. I have read the prosecutor's summation and find it unobjectionable. True, the prosecutor stated that Scott committed an exceptionally brutal and heinous crime, but that is what the evidence established. The arguments about the victim's incentive and ability to correctly identify her attacker were entirely appropriate, and constituted fair response to the defense summation. Wholly apart from the procedural default, which Scott does not even address, his claim of prosecutorial misconduct is meritless.

7. The Remaining Claims

The rest of Scott's claims do not raise issues cognizable on federal habeas review. There is no constitutional right to a complaint containing only admissible evidence. Indeed, hearsay is acceptable and used in virtually every federal complaint. Thus, Scott's challenge to the "jurisdiction" of a state court based on the hearsay in the complaint has no merit. Similarly, Scott's challenges to the trial court's (1) acceptance of an affidavit from the People in opposition to his section 440 motion, and (2) refusal to hold a hearing on his predicate felon status, raise issues of New York criminal practice that may not form the basis of federal habeas relief. Finally, there is no constitutional right to have a complaining witness produced at a hearing that challenges identification procedures.

CONCLUSION

So Ordered.