REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Kimba M. Wood, United States District Judge:

Pro se petitioner Digno Velazquez seeks a writ of habeas corpus from his 1998 conviction in Supreme Court, New York County, of robbery and criminal possession of a weapon, for which he was sentenced to eight years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5.) Velazquez alleges that (1) the trial court denied him "due process by precluding evidence that complainant ([Velazquez's] common-law wife) was using the money [Velazquez] gave her from an income tax refund to buy cocaine" (Pet. ¶ 13(1)), and (2) "[t]he prosecutor's summation violated due process by advocating a shift of the burden of proof, improperly vouched for complainant's testimony, denigrated the defense case, and engaged in blatant misrepresentations" (Pet. ¶ 13(2)).

For the reasons set forth below, Velazquez's petition should be DENIED.

FACTS

The Prosecution Case

Velazquez had been living with Marisol Flores off and on since 1994 or 1995, as well as with their three-year-old son and Flores' daughter. (Dkt. No. 9: Flores: Trial Transcript ["Tr."] 201, 203-04, 228.) According to Flores, she and Velazquez were "having a lot of problems" and Velazquez "was supposed to get another apartment." (Id. at 205, 230, 253.) A few days before the incident, Velazquez received a check from the IRS and, according to Flores, Velazquez gave her half the money, twelve hundred dollars, "to go buy the kids beds and some stuff the kids need." (Id. at 208-09, 229, 232.)

On the morning of March 20, 1998, Velazquez took Flores' daughter to school and returned to the apartment. (Id. at 205, 230.) Flores prepared to go buy beds for the children. (Id. at 206.) Velazquez told Flores that he wanted to go with her, but she refused. (Id. at 207-08.) He became angry and demanded half the money he had given her. (Id. at 208.) She again refused, but offered him $200. (Id. at 210-11, 254-55.) Velazquez began "going in [Flores'] closets, [her] purses, in the bedroom, started looking all around the house" to find the money. (Id. at 210.) Velazquez was "ranting and raving that he wanted his money" and then "grabbed a knife that was on the counter, and grabbed [Flores'] hair and twisted it and put the knife to [her] throat." (Id. at 210-11, 212, 236-37, 256-57.) Flores told him to stop, to which Velazquez responded, "`Bitch, give me the money or I'm going to kill you.'" (Id. at 214, 256-57.) During the struggle, Flores claimed that she "put [her] hand in between the knife and [her] neck," causing a "slight nick" on her right hand. (Id. at 214-15, 238.)

Flores agreed to give Velazquez the money, which she had hidden under her daughter's mattress. (Id. at 209, 218, 236, 238-39.) Velazquez dragged her into the bedroom, threw off the mattress and grabbed Flores' wallet. (Id. at 218.) Velazquez then "elbowed [her] back down and . . . punched [her] . . . knock[ing] the wind out of [her.]" (Id. at 219, 239.) Velazquez left the apartment and did not return. (Id. at 219, 224.)

When police officers Paul Arundell and Joseph Doyle arrived on the scene, Flores was "very frantic, she was crying, she was hysterical, pacing back and forth." (Arundell: Tr. 171-73; see also Doyle: Tr. 196; Flores: Tr. 221.) She had no apparent cuts or bruises. (Arundell: Tr. 189-90.) The police looked around the apartment and saw that the contents of the hall closet had "spilled all over the hallway." (Id. at 174, 183; see also Doyle: Tr. 193, 196-97.) Flores explained what had happened and took the officers into the bedroom where they saw the mattress that was "partially onto the ground." (Arundell: Tr. 174-75, 177.) The officers vouchered the knife that Flores showed them. (Id. at 175-77, 185-86; Doyle Tr. 194-95.) An ambulance arrived about fifteen minutes after the police. (Arundell: Tr. 178-82; Doyle: Tr. 197; Flores: Tr. 247.) Flores had no injuries other than the pain in her chest and the small nick on her finger. (Flores: Tr. 221-22, 247.) However, she did not show the paramedics her finger because it was "a little nick," nor did she expose her bruised chest to them. (Id. at 222, 260.)

According to Sean Urbano, an employee with the Administration for Children's Services, Velazquez told him in an interview a week after the incident that during the argument over the money, he "did pick up a knife, but he did not intend to harm" Flores. (Urbano: Tr. 273, 276.)

After Urbano's testimony, the prosecution rested. (Tr. 279.)

The Defense Case

Velazquez testified that he cashed an IRS refund check for $2,396 on March 17. (Velazquez: Tr. 283-84, 295, 330-31.) Contrary to Flores' testimony that Velazquez gave her $1200, Velazquez testified that he gave only $200 to Flores "[t]o buy [his] son a bed" (id. at 284-85, 297, 302) and $200 to Flores' mother "as a gift as a son-in-law" (id. at 296). The remaining money he kept in his wallet in his pants pocket, and always carried it with him when he left the apartment. (Id. at 285, 293, 302.) On March 20, when he returned from taking Flores' daughter to school, Flores was angry with him, asking, "where's the money?" (Id. at 285-86.) Velazquez told Flores that he would not give her any more money because of "the way she is." (Id. at 306.) Flores told Velazquez to leave the apartment. (Id. at 287, 300.) Velazquez went to the hallway closet and "pulled out the suitcase, started packing up [his] clothes." (Id. at 287, 308.) When he turned around, Flores had a knife in her hand and said, "`You are not leaving the house until you give me the money.'" (Id. at 287, 321.) Velazquez responded that he would not give her more money as he had already bought her $200-$300 of groceries. (Id.) Velazquez claimed that Flores "came towards [him] with [the] knife" and tried to cut the pants pocket where his money was. (Id at 287 311-13.) He grabbed her and knocked the knife out of her hands. (Id. at 287, 313-14, 320-22.) Velazquez was scared and ran out of the apartment, leaving his belongings behind. (Id. at 287, 290-91, 311.) After he left the apartment, Velazquez called Flores to talk to his son. (Id. at 288.) Flores told him that he was "`not going to see your son no more'" and that he "`ain't your son no more. You're just a sperm donor.'" (Id.) Velazquez responded, "`Fine, I'll see you in Family Court then.'" (Id.) Flores shot back, "`I'm going to make sure you go to jail for the rest of your life, for a long time.'" (Id.)

Velazquez testified that he and Flores had argued the day before the incident. (Id. at 289.) Before Velazquez could testify to the reason for the argument, the prosecutor objected and the court questioned the relevance of the testimony. (Id.) At side bar, defense counsel told the court that on March 19, Velazquez and Flores "got in an argument because . . . [Flores] bought I think crack-cocaine and they got into an argument over that." (Id.) The argument on March 20 was "a spill over" of the first argument. (Id.) The trial court held there was "no relevance at all" to the testimony. (Id.) Defense counsel did not further object or further explain the relevance of the testimony.

Velazquez denied that he put a knife up to Flores' throat, grabbed her hair, hit her in any way, or took money from her. (Velazquez: Tr. 292-93.) On cross-examination, Velazquez testified that Urbano was not telling the truth when he testified that Velazquez had picked up a knife during the argument. (Id. at 315-16.) Velazquez said he told Urbano that Flores "had the knife and [he] knocked the knife [out of] her hand." (Id. at 316.) Velazquez also denied that he told the arresting police officer, "`It was my money from my tax. I gave it to her and I wanted it back. She got mad, threw the money at me. I picked it up and left.'" (Id. at 318.) On cross-examination, the prosecutor also brought out that Velazquez had been convicted of five prior felonies and three misdemeanors. (Id. at 303-04.)

John Heer, the Medical Technician who examined Flores, testified that he found no knife injuries on her hands and no discoloration or trauma to her chest where she claimed Velazquez elbowed her. (Heer: Tr. 377, 379, 381, 384.) He did find a small abrasion about an eighth of an inch long, "like a rug burn," on her left hand. (Id. at 379-80, 385.)

Patricia Bennett, Velazquez's parole officer, attempted to arrange a meeting with Flores to ascertain if her injuries were severe enough that a violation of parole should be filed against Velazquez. (Bennett: Tr. 360-63.) On March 24, Flores told Bennett that Velazquez "was trying to take her children away. He did not cut her. She cut herself when she grabbed the knife and she would rather see [Velazquez] in jail than for him to get her kids." (Id. at 363 see also id. at 368-69, 3 74-75.) Flores told Bennett that she was not beaten by Velazquez, but that he did pull her hair. (Id. at 367, 373.) On the same day, Velazquez told Bennett that "this entire argument was over a thousand dollars that he had given her to use for some beds for the kids." (Id. at 368.)

The Prosecutor's Summation

In her summation, the prosecutor said that the case came down to an issue of credibility:

As [defense counsel] pointed out, it's a case of credibility. . . . [Y]ou have heard two distinct versions of what happened inside the apartment March 20, 1998.

. . . [T]he Judge will instruct you [about] the tools and factors that you may consider when deciding whether or not a particular witness is credible, and whether or not what they are telling you is something believable. When you apply all the tools to the testimony that you received in this case, you will determine that it was the victim, Miss Flores, who gave you the credible testimony and you will reject the defendant's version of what happened March 20th.

(Prosecutor's Summation: Tr. 401-02.) The prosecutor said that the jury should consider the witness's demeanor, the witness's motive in testifying, corroboration of the testimony by other witnesses, and a common sense notion of whether the testimony made sense. (Id. at 402-03.)

The prosecutor claimed that Flores was "candid" and her demeanor indicated that "you can rely on her credibility." (Id. at 404, 405.) As for the remainder of the People's witnesses, "[t]here was nothing about their demeanor that would suggest that they were presenting anything more than candid responses to you to the questions presented." (Id. at 405-06.)

The prosecutor asked the jury to "[c]ompare those witnesses to the demeanor of [Velazquez] when he testified." (Id. at 406.) The prosecutor claimed:

[Velazquez] was not candid. I had to repeatedly ask him questions to get him to finally admit the answers to me. Not even big issues. I asked if he lived in the apartment on and off over the past three years prior to March 98. It took four questions to get him to admit, in fact, he had not lived there continuously, but finally he admitted that.

He was evasive. I asked him questions and he would frequently not respond to the specific question but he would answer as if responding to something else and [was] more than willing to throw in extra information not asked of him, self-serving [he] thinks.

(Id. at 406-07.) The prosecutor further described Velazquez as "defensive," "arrogant," and not "forthright" due to his "body language, his lack of eye contact and his overall demeanor when he testified." (Id. at 407.)

The prosecutor asked the jury to "compare Miss Flores' motive" in testifying with Velazquez's motive (Id. at 416), and claimed, "I think it's obvious to everyone in the room, the person with the biggest stake in the outcome of the case is the defendant, Digno Velazquez" (id. at 407-08).

Now, what motive has the defense presented to you with respect to Miss Flores, what motive to lie? . . . Well, let me tell you what motive she obviously does not have.

She obviously has no financial gain at stake in the outcome of this case. Never going to see the money that [Velazquez] robbed from her again. That's a done deal, the outcome of the case does not change that.

. . . This is not a child support hearing. This is not Family Court and absolutely nothing happening in this case . . . would affect what, if anything, might happen in a Family Court proceeding with regard to this family.

Now, [defense counsel] would have you believe that this whole story was cooked up by Miss Flores as some sort of plot against [Velazquez] all because of a custody dispute over her son. Well again, this isn't the forum for that. This case is about whether or not [Velazquez's] conduct on March 20th, 1998, constituted certain crimes that he's been charged with.

The custody of their son is not decided in this proceeding. That's an entirely separate issue. This Court has no jurisdiction over Family Court matters. What would motivate her to come in and give the story, it's not affecting the [custody proceeding] at all for her to come in and testify in this proceeding.

If you believed [Velazquez's] testimony, certainly you would find Miss Flores could have no motive, whatsoever, to come in and testify he did something bad. As [Velazquez] told you, he was the model father and child care provider. He was cooking, cleaning in the apartment, giv[ing] money when he had it.

Finally, ladies and gentlemen, if her motive in this case is as [defense counsel] would . . . suggest, to sew up the custody issue — first, this is not Family Court, but secondly, that means she would still have to go to Family Court. She gains nothing coming here.

(Id. at 408-12.) The prosecutor "compare[d] Miss Flores' motive with" Velazquez's, noting, that he "has an interest in the outcome. Nobody stands to lose anything but [Velazquez] from this case." (Id. at 416.)

The prosecutor argued that Flores' testimony was consistent with the physical evidence, the knife, and the cut on her finger, as well as with her prior statements and the testimony of the other witnesses. (Id. at 418.) She added, Velazquez "himself corroborates almost [Flores'] entire story" (Id.), except "with regard to those few facts that comprise the elements of this case" (Id. at 420). The prosecutor argued that while Flores' testimony throughout the case was consistent, Velazquez's testimony was "consistent with absolutely nothing, with no previous statements that he has made." (Id. at 431-33.) According to the prosecutor, Velazquez "didn't tell Miss Bennett that he got arrested a few days later as a result of this incident. That's something he was required to do as a parolee. That shows you that he was conscious of his own guilt." (Id. at 433-34.) The prosecution said that Velazquez's "direct and cross-examination testimony was not consistent." (Id. at 436.)

Referring to the fact that Velazquez had claimed to give away only $400 of his tax refund, keeping the rest in his wallet, the prosecutor asked, "Does it make sense to you, as residents of Manhattan that you will walk around with two thousand dollars cash in your back pocket, in your wallet, on the subway, when you go to the store to buy groceries? . . . or would most people be afraid to carry that kind of money around on —" (Id. at 437.) Defense counsel objected to "that line of what most people would do," but the trial court overruled the objection saying, "[t]his is argument and again the jury can accept it or reject it." (Id. at 437.) This was the only time during the prosecutor's summation that defense counsel objected.

In concluding, the prosecutor added, "[w]hen you look at all the credibility factors you will determine [Velazquez's] testimony should not be credited and the testimony of Miss Flores should be." (Id. at 442.)

Verdict and Sentencing

On November 9, 1998, Velazquez was convicted of first degree robbery and third degree criminal possession of a weapon, and found not guilty of child endangerment. (Tr. 495-97.) On November 23, 1998, Velazquez was sentenced as a predicate felon to eight years imprisonment for robbery and a concurrent term of three and half to seven years imprisonment on the weapons charge. (11/23/98 Sentencing Transcript at 2-4, 12.)

Velazguez's Direct Appeal to the First Department

In January 2001, represented by counsel, Velazquez appealed his conviction to the First Department. (Ex. A: Velazquez 1st Dep't Br.) Velazquez asserted that the trial court violated his due process rights and his right to present a defense when it precluded his testimony "that the argument the day of the incident was an extension of an earlier argument about [Flores'] use of [Velazquez's] tax refund to buy crack cocaine." (Id. at 18.) Since the case "was primarily a credibility contest between [Velazquez] and Flores," the testimony was relevant because it "would have given the jury a reason to accept [Velazquez's] account of the incident and reject" Flores' version. (Id. at 18-19; see also id. at 18-25.)

Velazquez's second ground for appeal was that the prosecutors's summation violated his right to a fair trial by "repeatedly shifting the burden of proof by implying that the defense was obliged to present evidence establishing that Flores had a motive to lie; improperly vouching for Flores' absence of motive to lie by arguing that [Velazquez's] criminal trial had "absolutely' no bearing on the custody of her children; making ad hominem attacks against [Velazquez]; and engaging in blatant misrepresentations of the testimony to support the prosecution case." (Id. at 26; see also id. at 26-35.)

The People responded that Velazquez's first appeal ground (exclusion of evidence of the prior day's argument) was not preserved for appeal because at trial, "Defendant never argued that the [trial] court's ruling violated his constitutional right to present a defense. Further, when the trial court ruled the proposed testimony irrelevant, defendant did not request a mistrial on that ground," as required by state case law. (Ex. B: State 1st Dep't Br. at 16, citing N.Y. cases.) As to the prosecutor's summation issues, the People responded that "as defendant concedes (Defendant's [1st Dep't] Brief at 35), he failed to object to any of the alleged improper comments," and thus "has failed to preserve the issue for appellate review." (State 1st Dep't Br. at 21.)

On December 4, 2001, the First Department upheld Velazquez's conviction:

The court properly exercised its discretion when it precluded [Velazquez] from testifying that on the night before the incident, he and [Flores] argued about [her] drug use, since that argument was not relevant to any issue presented at trial. The theory of admissibility raised by [Velazquez] for the first time on appeal contradicts the defense he raised at trial. To the extent that [Velazquez] is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice. Were we to review such claim, we would find no deprivation of [Velazquez's] right to present a defense.

[Velazquez's] challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks on summation generally constituted fair comment on the evidence in response to the defense summation and that they did not deprive [Velazquez] of a fair trial.

People v. Velazquez, 289 A.D.2d 19, 19-20, 733 N.Y.S.2d 605, 605-06 (1st Dep't 2001) (citations omitted, emphasis added).

On January 30, 2002, the New York Court of Appeals denied leave to appeal. People v. Velazquez, 97 N.Y.2d 709, 739 N.Y.S.2d 111 (2002). Velazguez's Present Federal Habeas Corpus Petition

Velazquez's timely-filed federal habeas corpus petition is dated March 4, 2002 and was received by this Court's Pro Se Office on March 18, 2002. (Dkt. No. 2: Pet. at 1, 6.) Velazquez alleges: (1) that the trial court denied him "due process by precluding evidence that complainant ([Velazquez's] common-law wife) was using the money [Velazquez] gave her from an income tax refund to buy cocaine" (Pet. ¶ 13(1)), and (2) "[t]he prosecutor's summation violated due process by advocating a shift of the burden of proof, improperly vouched for complainant's testimony, denigrated the defense case, and engaged in blatant misrepresentations." Pet. ¶ 13(2).)

ANALYSIS

I. VELAZQUEZ'S HABEAS CLAIM CHALLENGING THE PROSECUTOR'S SUMMATION IS BARRED BY ADEQUATE AND INDEPENDENT STATE GROUNDS

The First Department held Velazquez's due process claim challenging the prosecutor's summation was unpreserved. People v. Velazquez, 289 A.D.2d 19, 20, 733 N.Y.S.2d 605, 605 (1st Dep't 2001), appeal denied, 97 N.Y.2d 709, 739 N.Y.S.2d 111 (2002), quoted at page 12 above. Because the First Department's decision was based on adequate and independent state law grounds, Velazquez's habeas claim challenging the prosecutor's summation is barred from federal habeas review.

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); see also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S.Ct. 851, 860-61 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Murray v. Carrier, 477 U.S. 478, 485-88, 496, 106 S.Ct. 2639, 2644-45, 2649-50 (1986); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999); Reves v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must `clearly and expressly state that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.") (emphasis in original); Garcia v. Lewis, 188 F.3d at 77-82; Glenn v. Bartlett, 98 F.3d at 724-25; see also, e.g., Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.

With respect to Velazquez's claim that the prosecutor's summation violated his right to a fair trial, the First Department held:

[Velazquez's] challenges to the prosecutors summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks on summation generally constituted fair comment on the evidence in response to the defense summation and that they did not deprive [Velazquez] of a fair trial.

People v. Velazquez, 289 A.D.2d at 20, 733 N.Y.S.2d at 605-06.

State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.

Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559. Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found to be too ambiguous to preclude habeas review, see, e.g., Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1991), here the First Department explicitly stated that it found Velazquez's claims to be unpreserved, People v. Velazquez, 289 A.D.2d at 20, 733 N.Y.S.2d at 605-06, and the fact that the First Department also stated the conclusion it would reach "[w]ere we to review" the claims does not change the result. See e.g., Fama v. Commissioner of Correctional Servs., 235 F.3d 804, 810-11 n. 4 (2d Cir. 2001) ("where a state court says that a claim is "not preserved for appellate review' and then ruled "in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d at 724-25 n. 3 (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds) Thus, the First Department's decision rested on a state procedural ground.

Under New York law, in order to preserve challenges to the prosecution's summation, defense counsel is required to object, but no objection was made to any of the challenged statements (see pages 9-10 n. 3 above). E.g., C.P.L. § 470.05(2); People v. Harris, 2002 WL 1461372 at n. 18 (N.Y.Ct.App. July 9, 2002) ("Defendant did not object to many of the specific comments during the summation and the few objections defendant did raise were all of a general nature; his complaints are thus unpreserved."); People v. Tonge, 93 N.Y.2d 838, 839-40, 688 N.Y.S.2d 88, 88 (1999) ("Defense counsel made only a general objection to the prosecutor's remark at summation; a party's failure to specify the basis for a general objection renders the argument unpreserved for this Court's review."); People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 816 (1994); People v. Dien, 77 N.Y.2d 885, 885-86, 568 N.Y.S.2d 899, 899-900 (1991); People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 442-43 (1981); see, e.g., Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *11 n. 38 (S.D.N.Y. July 12, 2001) (Peck, M.J.) ("Under New York law, in order to preserve his claims for appellate review, [petitioner] was required to raise his challenges to the prosecutor's alleged errors in summation by way of specific objections before the trial court, and, if his objections were sustained, seek further relief.") (extensively citing New York cases); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *10 n. 27 (S.D.N.Y. May 21, 2001) (Peck, M.J.) (citing New York cases); Chisolm v. Headley, 58 F. Supp.2d 281, 286-87 n. 2 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, CPL § 470.05, is an adequate and independent state ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. at 485-92, 497, 106 S.Ct. at 2644-48, 2650 (same); Garcia v. Lewis, 188 F.3d at 79 ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citing Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995), Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)), cert. denied, 502 U.S. 883, 112 S.Ct. 236 (1991)); Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground); Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously . . . constitutes an adequate and independent basis for barring habeas review.").

Specifically, the Second Circuit (and district courts within the Circuit) have held that failure to object to the prosecutor's summation is an adequate and independent state ground sufficient to bar habeas relief. See, e.g., Vargas v. Keane, 86 F.3d 1273, 1280 (2d Cir.) (petitioner's claim barred from habeas review for failure to object to prosecutor's summation statements), cert. denied, 519 U.S. 895, 117 S.Ct. 240 (1996); Reardon v. Richardson, 956 F.2d 391, 391-92 (2d Cir. 1992); Oliver v. Beaver, 01 Civ. 2566, 2002 WL 1285355 at *1 (S.D.N.Y. June 10, 2002) (In habeas review, "[f]ailure to object at the time of the summation is an adequate state ground for affirming the conviction."); Thomas v. Garvin, 97 Civ. 1136, 2001 WL 1131992 at *4 (S.D.N.Y. Sept. 21, 2001); Gonzalez v. Portuondo, 00 Civ. 1357, 2001 WL 856600 at *6 (S.D.N.Y. July 30, 2001); Simpson v. Portuondo, 2001 WL 830946 at *11 n. 38; Simmons v. Mazzuca, 2001 WL 537086 at *10 n. 27; Bodine v. Brunelle, No. 97-CV-57, 2000 WL 362027 at *15 (W.D.N.Y. Mar. 29, 2000); Nieves v. Artuz, 97 Civ. 7792, 1999 WL 1489145 at *6 (S.D.N.Y. Oct. 22, 1999) ("It is undisputed that no objection was made to the prosecutor's summation at trial. Therefore, the claim can no longer be raised in state court, so it is exhausted for habeas corpus purposes."); Chisolm v. Headley, 58 F. Supp.2d at 286-87 n. 2; Vera v. Hanslmaier, 928 F. Supp. at 285.

Because there is an adequate and independent finding by the First Department that Velazquez procedurally defaulted on his prosecutor summation claim, Velazquez would have to show in his habeas petition "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 v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565. Velazquez has failed to allege cause and prejudice or that a fundamental miscarriage of justice would result if his claims are not addressed.

Therefore, Velazquez's prosecutor summation habeas claim is barred from habeas review.

II. VELAZQUEZ'S HABEAS CLAIM THAT HIS TESTIMONY WAS IMPROPERLY PRECLUDED IS NOT PROCEDURALLY BARRED BUT FAILS ON THE MERITS

A. Velazquez's Testimony Claim Is Not Procedurally Barred

In denying Velazquez's claim that he was precluded from testifying about the prior argument with Flores, the First Department held that:

The Court properly exercised its discretion when it precluded [Velazquez] from testifying that on the night before the incident, he and [Flores] argued about [her] drug use, since that argument was not relevant to any issue presented at trial. The theory of admissibility raised by [Velazquez] for the first time on appeal contradicts the defense he raised at trial. To the extent that [Velazquez] is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice.

People v. Velazquez, 289 A.D.2d 19, 19, 733 N.Y.S.2d 605, 605 (1st Dep't 2001) (citations omitted), appeal denied, 97 N.Y.2d 709, 739 N.Y.S.2d 111 (2002). The First Department's ruling that the constitutional claim was procedurally barred ordinarily would bar federal review on adequate and independent state grounds. (See Point I above.)

However, this Court believes that Velazquez did in fact preserve his right to appeal on this issue. In order to preserve an issue for appeal, C.P.L. § 470.05(2) provides that a

protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal. In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

C.P.L. § 470.05(2). After amendment to C.P.L. § 470.05(2) in 1986, "[n]ow a question of law is preserved if the point was expressly decided by the trial court in response to a protest, even though the protesting party overlooked that point when articulating the protest." Preiser, Practice Commentaries, 43 N.Y. C.P.L. § 470.05(2) at 11.

At trial, the prosecutor objected when defense counsel asked Velazquez about his argument with Flores the evening before the incident. (Velazquez: Tr. 289.) When the judge at side bar inquired into the relevance of the testimony, defense counsel explained:

On the 19th, evening. This is on the — 20th was a spill over. They had got into an argument because the money spent, she bought I think crack-cocaine and they got into an argument about that.

(Id.) The trial judge did not ask defense counsel to elaborate, but sustained the prosecutor's objection, saying that he saw no relevance to this evidence. (Id.) Defense counsel's oblique explanation does not make clear that defense counsel sought to elicit information about the prior evening's argument about Flores' drug use in order to show that Velazquez would not have given Flores as much money as she claimed because she could not be trusted with it. (See Ex. A: Velazquez 1st Dep't Br. at 18-19.) Velazquez's appellate counsel explained the excluded testimony's use more clearly on appeal: Velazquez's "goal was to prove to the jury that he would not have given Flores as much money as she claimed he did because she could not be trusted with it and to buttress his contention that it was Flores who attacked him with the knife because she was attempting to get money to fuel her drug habit. . . . [This testimony] would have given the jury a reason to accept [Velazquez's] account of the incident and reject [Flores'] version . . . (Velazquez 1st Dep't Br. at 18-19; see also id. at 21-22.)

In its brief to the First Department, the prosecution argued that the claim was unpreserved because "to preserve a constitutional issue for review, defendant must state the specific grounds for objection, followed by a motion for a mistrial," and Velazquez did neither. (Ex. B: State 1st Dep't Br. at 16, citing cases.) It is perhaps noteworthy that the First Department did not cite these cases — since they do not support the proposition — nor did the First Department state that Velazquez was required to move for a mistrial. And the First Department cited no C.P.L. provision or case, nor did it explain why in its view the constitutional claim was unpreserved. This Court has not found any support for the prosecution's claim as to evidence proffered by the defense and objected to by the prosecution.

Velazquez's claim appears to have been preserved for appellate review and this Court thus would not be barred from reviewing the claim on the merits. In any event, the issue of whether the claim is procedurally barred is at best difficult and the claim is more easily decided, and denied, on the merits. Cf., e.g., Sito v. Senkowski, No. 91 CV 1266, 1998WL 120293 at *1 (E.D.N.Y. Mar. 12, 1998) ("The State contends that petitioner's ineffective assistance of counsel claims are not exhausted. Since, in any event, the claims are without merit, it is not necessary to consider the issue of exhaustion."). The Court therefore turns to the merits of this claim.

B. The AEDPA Review Standard

Before the Court can determine whether Velazquez is entitled to federal habeas relief for his claim that he was denied his right to present a defense, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress siguificantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any 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) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519 Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 2002 WL 1393902 at *5

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.

In Williams, the Supreme Court explained that "[u]nder the "unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term `unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1521.

The Second Circuit has explained "that while `[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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord Yung v. Walker, 2002 WL 1393902 at *4; Loliscio v. Goord, 263 F.3d at 184. Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 2002 WL 1393902 at *4 Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 2002 WL 1393902 at *4.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

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 v. Kuhlman, 261 F.3d at 312; accord, e.g., Aeid v. Bennett, No. 02-2089, 2002 WL 1466807 at *3 (2d Cir. July 8, 2002); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word "denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).

The First Department held that Velazquez failed to preserve for appeal his claim that he was denied his due process right to present a defense. People v. Velazquez, 289 A.D.2d 19, 19, 733 N.Y.S.2d 605, 605 (1st Dep't 2001), appeal denied, 97 N.Y.2d 709, 739 N.Y.S.2d 111 (2002). As discussed above, it appears that the claim is not procedurally barred. The First Department went on to discuss the merits of Velazquez's claim, stating: "Were we to review such claim, we would find no deprivation of [Velazquez's] right to present a defense." 289 A.D.2d at 19-20, 733 N.Y.S.2d at 605. Because of the First Department's alternative holding on the merits, to the extent the federal courts reach the merits, the deferential AEDPA review standard applies. See Rivera v. Duncan, 2001 WL 1580240 at *8 ("The Second Circuit has not decided the appropriate AEDPA review standard in such a case [where the state court finds the claim procedurally barred and without merit] — which is not surprising, because usually such a state court holding would preclude any federal habeas review."); accord Green v. Herbert, 2002 WL 1587133 at *11.

C. The First Department's Denial of Velazquez's Claim That His Testimony Was Improperly Precluded Is Not An Unreasonable Application of Supreme Court Precedent

For Velazquez to succeed on his claim that his testimony about the prior evening's argument with Flores was improperly excluded, he must establish (1) that the trial court's evidentiary ruling was erroneous as a matter of state law, (2) under United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392 (1976), that exclusion of the evidence deprived him of a fair trial, and (3) under the AEDPA, that the First Department's affirmation of the trial court's ruling constituted an objectively unreasonable application of the Agurs standard See e.g., Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *89 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.).

In his First Department brief, Velazquez argued that, since the case "was primarily a credibility contest between [Velazquez] and Flores," the testimony was relevant because it "would have given the jury a reason to accept [Velazquez's] account of the incident and reject" Flores' version. (Ex. A: Velazquez 1st Dep't Br. at 18-19.) Velazquez's trial counsel, however, failed to articulate to the trial judge this relevance of the testimony. While this Court — with the benefit of hindsight, including the benefit of the arguments in Velazquez's First Department brief — might have ruled differently on the issue of relevance, the trial judge properly exercised his discretion given that all he had was defense counsel's vague proffer regarding the relevance of the testimony. The decision to exclude testimony as irrelevant is left to the trial court's discretion The trial judge's decision to preclude the testimony was not an error of state law.

Further, even if the trial judge exercised his discretion improperly, considering the deference required under the AEDPA, this Court cannot find that the trial court's preclusion of the testimony and the First Department's affirmation of the trial court's ruling constituted an objectively unreasonable application of the Agurs standard, particularly in light of the evidence against Velazquez. See also, e.g., Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *23 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.) (discussing habeas legal standard governing the right to present a defense citing cases).

CONCLUSION

For the reasons discussed above, the Court should deny Velazquez's habeas corpus petition. Since Velazquez has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. 28 U.S.C. § 2253.