Summary
holding that a petitioner's claim that his sentence should be set aside because it violated a state statute was not reviewable in a federal habeas proceeding
Summary of this case from Bradley v. BurgeOpinion
02-cv-6802, 03-misc-0066
October 30, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on tins matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on December 27, 2002, Petitioner, sometimes referred to as defendant, claims:
Ground One: The detective's testimony, reiterating the eyewitness's description of his assailant and indicating that after speaking with the witness a wanted card was issued for appellant, improperly bolstered the critical identification in the case, thus depriving appellant of his due process right to a fair trial. U.S. Const., Amend. XIV; N.Y. Const., Art, 1 § 6.
The prosecution case rested entirely on the identification of petitioner by the complainant, Winston Page, and an accomplice witness. Three months after he was shot and his friend killed, Page selected petitioner from a lineup as one of the perpetrators and identified him again at trial. On direct and cross examination. Page testified that after the incident he gave the police a description of the man who had pointed a gun at him and told them he had seen him a few times before. The Court then allowed a detective to reiterate the specifics of Page's description and confirm that Page had in fact told him that he had seen the man before.
The prosecutor was then permitted to elicit from another detective that after showing Page some lineups and talking to him, he issued a wanted card for petitioner. The detective's testimony, elicited over counsel's objection, improperly bolstered Page's identification testimony thus, depriving petitioner of his due process of law and right to a fair trial.
Ground Two: The sentencing court illegally imposed consecutive sentences for felony murder and attempted assault in the first degree because the shooting that constituted the attempted assault was a material element of the robbery underlying the felony murder charge. C.P.L. § 70.25(2).
Concurrent sentences were mandated where petitioner offenses arose from a single act or omission which in itself constituted one of the offenses and was also a material element of the murder. The court must impose concurrent sentences if the jury convicts the petitioner of both crimes. Petitioner was charged with felony murder, while in the course of a robbery., he commits a murder; he must be sentenced currently. This is the law of the land.
The evidence supports the following statements;
On December 9, 1996, at approximately 8:00 p.m., defendant and three accomplices — Jermaine Dawson, Victor Mack, and Corey Williams — pushed their way into the "New Lots Express," a grocery store located at 404 New Lots Avenue in Brooklyn. Defendant had a .38 caliber revolver and Jermaine Dawson had a .357 magnum revolver. Upon their entry into the store defendant and his accomplices fired several shots. Once inside, defendant and his accomplices demanded money from employees and a customer in the store. During the course of the robbery, defendant and his accomplices shot Winston Page and Reginald Jaex. Winston Page was treated at Brookdale Hospital for gunshot wounds to his right side, left ankle, and left leg. Reginald Jaex, who was shot in the head, buttocks, and hand, died from a gunshot wound to the head.
Defendant was charged, by Kings County Indictment Number 2980/97, with one count of Murder in the Second Degree (N.Y, Penal Law § 125, 25[3]), two counts of Robbery in the First Degree (N.Y. Penal Law § 160.15, [2]), two counts of Robbery in the Second Degree (N.Y. Penal Law § 120.10); two counts of Attempted Robbery in the First Degree (N.Y, Penal Law § 110.00/160.15[1], [2]), one count of Attempted Robbery in the Second Degree (N.Y. Penal Law §§ 110.00/160.10[1]), one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 2( 55.03), and one count of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02).
Following a jury trial, defendant was convicted of one count each of Murder in the Second Degree (N.Y. Penal Law § 125.25)? Attempted Assault in the First Degree (N.Y. Penal Law § 110.00/120.10[1]), and Attempted Robbery in the First Degree (N.Y. Penal Law § 110.00/160.15[2]), On February 8, 1999, he was sentenced to concurrent terms of imprisonment of twenty-two years to life on the murder conviction and seven and one-half to fifteen years on the attempted robbery conviction, and also to a term of imprisonment of five to ten years on the attempted assault conviction to run consecutively to the murder sentence.
Defendant appealed from his judgment of conviction to the Appellate Division. See N.Y. Crim. Pro. Law § 450.10(1), In his brief, defendant claimed that: (1) the trial court denied defendant his due process right to a fair trial under the federal and state constitutions and improperly permitted the People to bolster the identification evidence, by admitting the detectives' testimony, reiterating the eyewitness's description of his assailant and indicating that after speaking with the witness a wanted card was issued for defendant; (2) the trial court violated New York Penal Law § 70.25 (2), by imposing consecutive sentences in this case.
On September 24, 2001, the Appellate Division unanimously affirmed defendant's judgment of conviction, People v. Davis, 286 A.D.2d 774, 730 N.Y.S.2d 736 (2d Dep't 2001). It held that the trial court properly imposed consecutive sentences under Penal Law § 70.25(2) because the evidence at trial established that defendant's acts underlying his crimes were separate and distinct. It rejected defendant's remaining claim, finding that it did not require reversal.
By letter dated October 4, 2001, defendant applied for permission to appeal from the Appellate Division's decision to the New York: Court of Appeals. See N.Y. Crim. Pro. Law g 450.90, 460.20. On November 27, 2001, defendant's application seeking leave to appeal to the New York Court of Appeals was denied. People v. Davis, 97 N.Y.2d 655, 737 N.Y.S.2d 56 (2001) (Wesley, J.).
Even though all claims have probably not been exhausted, the court exercises its discretion not to delay the case by requiring exhaustion since there is no merit to any of the claims.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly, Rather, that application must also be unreasonable." Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C, § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," Id. § 2244(d)(1)(A), A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired, See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion," Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C, g 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance arc in compliance with the applicable laws and rules governing filings. These usually prescribe, for example the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review), A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brow v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No, 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb, 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law," Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y, 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 US.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time," Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the Court of Appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations,Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 US. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en bane).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."), In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue),
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Hams v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bart left, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Civ. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted," Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence, Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial, Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding,"). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-SS (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional clam that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where mere was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense" U.S. Const, amend, VL This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984), In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, See also Wiggins v. Smith, 539 U.S. ___, No, 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cm 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697, In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold," Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome," Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation," Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because" [t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required, Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted, See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance," Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not He for mere errors of state Jaw. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S, 97, 108 (1976), The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA, See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997), To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) (Season challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 US. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y, June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) (Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 US, Dist. LEXIS 11032, at *15-*16 (E.D.N.Y, June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No, 01-2491, slip op, at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y, June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
A.
Defendant claims that he was denied his federal constitutional right to a fair trial as a result of some of the testimony of Detectives Burzotta and Lincoln, The challenged testimony was admissible, as a matter of state evidentiary law, because it was relevant to the reliability of Page's identification. In any event any possible error in allowing this testimony must be considered harmless in view of Page's strong identification testimony.
Federal habeas corpus review of state proceedings is limited to errors of a constitutional magnitude, which have denied a state defendant the fairness required under the Fourteenth Amendment, See 28 U.S.C. § 2254(a). The admission of evidence at a state's defendant's trial is a matter of state law and, generally, does not give rise to a claim of constitutional dimension unless the alleged error deprived defendant of a fundamentally fair trial. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); accord, Wtiset v. Lefevre, 924 F.2d 434, 439 (2d Cir. 1994). Specifically, "the erroneous admission of evidence rises to a deprivation of due process under the Fourteenth Amendment only if the evidence in question `was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). Here, the trial court arguably committed no error, let alone an issue rising to the level of a constitutional violation, and, thus, defendant is not entitled to habeas relief.
As a general rule, under People v. Trowbridge, 305 NT. 471, 113 N.E.2d 8411 (1953), a third party may not give testimony which explicitly bolsters another witness's prior identification. Such third-party testimony is not permitted because it is hearsay and because it may lead a jury to endow the identification with "an undeserved aura of trustworthiness," based on mere repetition of the fact that an identification was made. Trowbridge, 305 N.Y. at 477, 113 N.E.2d at 843; see People v. Bolden, 58 N.Y.2d 741, 743, 459 N.Y.S.2d 22 (19S2) (concurring opinion); People v. Johnson, 162 A.D.2d 471, 472, 556 N.Y.S.2d 685, 686 (2d Dep't 1990), Third-party testimony that implicitly bolsters another witness's identification is also not permitted. See People v. Howard, 87 N.Y.2d 940, 942, 641 N.Y.S.2d 222, 223 (1996) (error to permit officer to testify to the complainant's identification).
In this case, the challenged testimony was relevant to the reliability of Page's identification. Defense counsel arguably opened the door to the introduction of testimony regarding Page's description of defendant by questioning Page about this description. See Respondent's Exhibit B at 24, If the testimony cited by defendant constituted improper bolstering, the error was not so damaging to defendant as to violate defendant's constitutional right to a fair trial.
Any error in the admission of the challenged testimony was harmless under both the Brecht and Chapman standards. See Ryan v. Miller, 303 F.3d 231, 253-54 (2d Cir. 202) (observing that it is unclear which harmless error standard applies to post-AEDPA case). Under Brecht v. Abrahamson, 507 U.S. 619 (1993), an error is harmless if the error did not result in actual prejudice, that is, if the error did not have a substantial and injurious effect or influence in determining the jury's verdict. See Brecht, 507 U.S. at 637. Under Chapman v. California, 386 U.S. 18 (1967), an error is harmless if the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the jury's verdict. See Chapman, 386 U.S. at 24.
In this case, evidence of defendant's guilt was strong and compelling. First, on the night of the crime, Winston Page had ample opportunity to observe petitioner during the attack, a fact corroborated by the precision of Page's description of defendant to Detective Burzotta immediately thereafter as approximately "five foot seven with a slim build", with brown skin and light sideburns. See Respondent's Exhibit B at 27, Second, Page testified that he had seen defendant in the store earlier in the day on December 9, 1996, and that he had also seen defendant in the area of New Lots Avenue two or three times before then. See Respondent's Exhibit B at 28. Third, Page was certain that defendant was the perpetrator at the lineup conducted by Detective Lincoln on March 12, 1997, several months after the event, where he "immediately" recognized defendant. See Respondent's Exhibit B at 28, Finally, Page's testimony also agreed with the testimony of Corey Williams, defendant's accomplice, who testified that defendant was at the front of the group of accomplices who robbed the store, and that defendant "pulled out" a gun when he got to the door. See Respondent's Exhibit B at 28, Any error in the admission of the detectives' testimony was not significant.
This claim has no merit.
B.
Defendant's claim that his consecutive sentence should be set aside because it violates New York Penal Law § 70.25(2), is not re viewable in a federal habeas proceeding.
A writ of habeas corpus may be issued to a state prisoner only upon the ground that the prisoner is in custody "in violation of the Constitution or law or treaties of the United States. . . ." 28 U.S.C. § 2241 (c)(3). "A federal court may not issue the writ on the basis of a perceived error of state law," Pulley v. Harris, 46 U.S. 37, 41 (1984). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Under Penal Law § 70.25(2), a trial court must impose concurrent sentences "for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offences and also was a material element of the other." Defendant's claim that the sentencing judge failed to comply with this statute raises a question of state law. This claim is not reviewable in a federal habeas proceeding. See Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y.) (defendant's claim that he was denied his state statutory right to testify in the grand jury was not re viewable in a habeas proceeding), aff'd, 876 F.2d 890 (2d Cir.), cert. denied, 493 U.S. 850 (1989).
In any event, defendant's claim is meritless. Under the AEDPA, a federal court may issue a writ of habeas corpus only if a state court's adjudication of a federal constitutional claim is both incorrect and unreasonable under United States Supreme Court precedent. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000); Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000), cert. denied, 531 U.S. 1116 (2001). In this case, for the reasons set forth in the Appellate Division's decision, that court reasonably rejected this claim. See People v. Davis, 286 A.D.2d 774, 730 N.Y.S.2d 774, 730 N.Y.3.2d 736 (2d Dep't 2003).
This claim has no merit.
C.
No other possible claim rises above the frivolous,
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.