Opinion
99-CV-4675 (JEW) 03-MISC-0066 (JBW)
October 30, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on August 10, 1999. Petitioner (sometimes referred to as defendant) claims:
Appellate Counsel was ineffective by his failure to raise ineffective assistance of trial counsel due to the proposition that trial counsel suppressed evidence from the Suppression Hearing Court that was favorable to the Petitioner, and that such evidence was a matter of record.
The Constitutional Rights of the Petitioner were violated when he was not given Miranda Warnings while in custody.
Evidence obtained through the involuntary consent to search petitioner's home, violated his Fourth Amendment Rights,
The Prosecutor's Elicitation of Uncharged Crimes During Petitioner's Trial deprived Petition of his Constitutional Right to a Fair Trial.
He is also possibly claiming that the sentence was unduly harsh.
The evidence supports the following statements.
On September 27, 1991, at about 11:50 p.m., defendant, armed with a .22 caliber handgun, shot and killed Isaac Williams, and shot and wounded Darrell Patter son.
For these acts, defendant was charged, by Nassau County Indictment number 80577, with two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25), one count of Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25[1]), and one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03).
Defendant was convicted, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law § 125.25), Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110,00/125.25 [1]), and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03). On April 11, 1994, defendant was sentenced to prison terms of twenty-five years to life on the murder count and eight and one-third to twenty-five years on the attempted murder count. These sentences were ordered to run consecutively. In addition, defendant was sentenced to a prison term of five to fifteen years on the weapon possession count. This sentence was ordered to run concurrently with the sentences for the murder and attempted murder counts.
Defendant appealed from the judgment of conviction against him. His assigned appellate counsel filed a brief on defendant's behalf with the New York State Appellate Division, Second Department (hereafter referred to as the "Appellate Division"), In his brief, defendant raised the following four claims: (1) the statements that he made to the police should have been suppressed because they were the product of a custodial interrogation without the benefit of Miranda warnings; (2) certain physical evidence should have been suppressed because it was seized during a search without proper consent; (3) a single question posed by the prosecutor deprived him of a fair trial; and, (4) his sentence was excessive.
In an order dated February 13, 1996, the Appellate Division unanimously affirmed the judgment of conviction against defendant. People v. Davis, 224 A.D.2d 541, 637 N.Y.S.2d 977 (2d Dept. 1996).
The Appellate Division determined that defendant's initial statement — that he was the shooter — was not the product of a custodial interrogation, but rather, was a spontaneous statement made after the police informed him that they were investigating a shooting, The court found that this statement, therefore, was admissible at trial The Appellate Division further determined that defendant's subsequent statements — in which defendant explained his version of the events that led up to the shooting — were the product of a custodial interrogation and that the police should have informed defendant of hisMiranda rights. It held that although these statements should have been suppressed, in light of the overwhelming evidence of defendant's guilt, any error in admitting them at trial was harmless.People v. Davis, 224 A.D.2d at 542, 637 N.Y.S.2d at 978.
The Appellate Division held also that the physical evidence seized from defendant's home was admissible at trial The court found that defendant's mother had voluntarily consented to the search of the premises and that defendant himself had informed the police where the evidence was located and had voiced no objection to their taking the evidence from the house,People v. Davis, 224 A.D.2d at 543, 637 N.Y.S.2d at 978,
In addition, the Appellate Division found that defendant's sentence was not excessive, and that his remaining contention — that a single question posed by the prosecutor rendered his entire trial unfair — was unpreserved for review. Id.
Defendant filed an application for permission to appeal to the New York State Court of Appeals, seeking to raise the same claims that he had raised in the Appellate Division. On June 19, 1996, defendant's application was denied. People v. Davis, 85 N.Y.2d 936 (1996).
(In an earlier petition dated April 3, 1997, defendant had applied,pro se, to this court for a writ of habeas corpus. In his petition, defendant alleged the following grounds: (1) certain statement that he made to the police should have been suppressed because they were the product of a custodial interrogation without the benefit of Miranda warnings; (2) certain physical evidence should have been suppressed because it was improperly seized; and, (3) a question posed by the prosecutor deprived him of a fair trial. In a letter dated August 13, 1998, defendant requested that the court hold his petition in abeyance, or, in the alternative, dismiss the petition without prejudice so that he could exhaust a claim of ineffective assistance of counsel in the state courts. By order dated October 21, 1998, this court granted defendant's request to withdraw his petition, and the petition was dismissed without prejudice,)
In a petition dated October 23, 1998, defendant applied, pro se, to the Appellate Division for a writ of error coram nobis, In his petition, defendant requested that the Appellate Division set aside its affirmance of the judgment of conviction against him on the ground that his appellate attorney provided him with ineffective assistance of counsel. Defendant alleged that appellate counsel was ineffective for failing to assert that trial counsel was ineffective, based on trial counsel's failure to present the testimony of defendant's mother at the pretrial suppression hearing. Defendant asserted that, had his mother testified at the hearing, she would have refuted the police testimony, and therefore, the gun and clothing obtained by police would have been suppressed.
In an order dated March 1, 1999, the Appellate Division denied defendant's application for a writ of error coram nobis. People v. Davis, App. Div. No. 94-03683 (2d Dept. Mar. 1, 1999).
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 Ctr. 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 R.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 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. Artutz, 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 R.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. § 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, S (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are 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 lime to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdick, 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. 215, 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. Brown 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 Brawn, 1998 WL 75(586 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 U.S.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 may despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time," Smaldone v. Senfowski, 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 Civ. 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 U.S. 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 banc).
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 mat 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 Harris 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. Bartlett, 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 Cir. 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. Deto, 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 arc 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, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim 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 there 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, VI. 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 Cir. 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," Lindstandt 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. Hake, 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 non frivolous 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 lie for mere errors of state law. 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) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-G066 (JBW), 2003 U.S. 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 1105(5, 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 (JEW), 2003 U.S. 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 alleges that he is entitled to relief because the inculpatory statements that he made to the police, after he admitted that he was the shooter, should not have been admitted at trial because they were obtained while he was in custody without the benefit of Miranda warnings. The Appellate Division found that these statements — in which defendant gave his version of the sequence of events that led to the shooting, including that he had had a fight with Miller, that Miller had threatened him, and that Miller had inflicted a bruise on him which he showed to the police — were made while defendant was in custody without the benefit of Miranda warnings and should have been suppressed. 224 A.D.2d at 542; 637 N.Y.S.2d at 6768. The Appellate Division found that the admission of these statements was harmless in light of the overwhelming evidence of defendant's guilt, Id. Because this decision comports with decisions of the United States Supreme Court, and because it is supported by the trial record, defendant's current claim cannot provide him with relief in this habeas corpus proceeding This decision was based on a reasonable determination of the facts in light of the evidence presented at trial.Where there was arguably no reasonable possibility that the jury would have acquitted defendant if the inadmissible statements had not been admitted at his trial, precedent permitted the Appellate Division to find that any error in the admission of the statements was harmless, See generally Arizona v. Fulimante, 499 U.S. 279 (1991) (harmless error rule applicable to admission of involuntary confessions); People v. Crimmins, 36 N.Y.2d 230 (1975). Because the Appellate Division's determination of harmlessness was not contrary to Supreme Court precedent, and because it did not involve an unreasonable application of that precedent to defendant's case, defendant is not entitled to reliefSee 28 U.S.C. § 2254(d)(1), When viewed in the context of the entire proceeding and in light of the overwhelming, uncontradicted evidence of defendant's guilt, the Appellate Division's finding — that the admission of defendant's inadmissable statements was harmless — was a reasonable determination of the facts presented in this case. See 28 U.S.C. § 2254(d)(2).
At trial, the prosecution presented uncontradicted evidence which established defendant's guilt. Six eyewitnesses testified to the actual shooting. All of these eyewitnesses unequivocally identified defendant as the shooter. Two of the eyewitnesses were passengers in the vehicle into which defendant fired the gun at close range. One of the passenger — eyewitnesses, Darrel Patter son, was the shooting victim who survived. He saw defendant with the gun and recognized it as a. 22 caliber gun. Just before the shooting, defendant showed the gun to two other eyewitnesses. The prosecution presented scientific and physical evidence, which corroborated the testimony of the six eyewitnesses, This evidence included the, 22 caliber gun which was recovered from defendant's home and six shell casings which were recovered from the scene of the shooting. The prosecution's evidence established that the six shell casings had been fired from the gun found in defendant's home. All of this uncontradicted evidence established that defendant, armed with a, 22 caliber gun, fired at close range into a vehicle, killing Williams and wounding Patterson.
B.
Defendant claims, that the police unlawfully searched his mother's home; they improperly obtained her consent to the search. According to defendant, the property seized should have been suppressed following the pretrial hearing. Under Stone v. Powell, 428 U.S. 465 (1976)j this Fourth Amendment claim is not reviewable in a habeas corpus proceeding because defendant was provided a full and fair opportunity to litigate the claim in the state court.
Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that petitioner be granted federal habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial. Stone v. Powell, 428 U.S. at 482.See also McPhail v. Warden. Attica Correctional Facility, 707 F.2d 67 (2d Cir. 1983); Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977), cert. denied, 434 U.S. 1038 (1978). Defendant had an opportunity to litigate fully and fairly his Fourth Amendment claim. The court conducted a pretrial hearing at which defendant had the opportunity to cross-examine each of the prosecution's witnesses, present his own evidence, and advance any applicable legal arguments in support of his suppression motion. The propriety of the hearing court's suppression ruling was reviewed by the Appellate Division. Because the New York state cowls afforded defendant the opportunity to litigate his Fourth Amendment claim fully and fairly, that claim is not subject to review in a petition for a writ of habeas corpus. See Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991) (defendant's Fourth Amendment claim dismissed where defendant made no argument that he was denied opportunity to litigate his Fourth Amendment claim fully and fairly in the state courts).
As the hearing record demonstrates, the police officer properly obtained a lawful consent to search the house from defendant's mother, Prior to obtaining her consent, the officer informed her of her legal rights, and obtained a signed statement in which she gave the police permission to search the house, Defendant's claim that the police improperly searched the house is belied by the hearing record. The federal court will presume that the state court's factual findings following the hearing are correct, 28 U.S.C. § 2254(e)(1);Marshall v. Lonberger, 459 U.S. 422 (1983); Summer v. Mata, 449 U.S. 539 (1981). The hearing court's findings, which were affirmed by the Appellate Division are supported by the record. See People v. Davis, 224 A.D.2d at 542, 637 N.Y.S.2d at 978; Respondent's Appellate Division Brief at 46-51,
This claim lacks merit,
C.
At trial, defendant called Troy Bryant to testify in his behalf. The prosecutor cross-examined this witness about the events that led up the to shooting, including the fight between defendant and Aleya Miller earlier that evening, including whether defendant had threatened to kill Miller, Without stating any grounds, defense counsel voiced an objection, The court sustained the objection, and the witness did not answer the question. Defendant did not thereafter request any curative or limiting instructions, nor did be move for a mistrial In his brief to the Appellate Division, defendant alleged that this question deprived him of a fair trial. The Appellate Division declined to consider the claim because defendant had not preserved it for appellate review.
In his petition, defendant, claims that this single unanswered question posed by the prosecutor rendered his entire trial unfair. Because of comity and federalism concerns, as well as the requirement that states by given the first opportunity to correct their own mistakes, federal courts generally may not entertain claims of constitutional violations that have been procedurally barred from appellate review in the state courts,See Coleman v. Thompson, 501 U.S. 722, 729-32 (1991);Teague v. Lasne 489 U.S. 288, 298-99 (1989); Reed v. Ross, 468 U.S. 1, 11 (1984), In Harris v. Reed, 489 U.S. 255 (1989), the Supreme Court held that this procedural bar applies in habeas corpus proceedings in any case where the state court's decision contains a "plain statement" that it is relying, at least in part, on the appropriate state procedural rule in deciding the claim. In tins case, the Appellate Division found that defendant had failed to adhere to state procedural rules for review of his claim.
Defendant failed to alert the trial court to the grounds for his objection regarding the prosecutor's question. See N.Y. Crim. Proc. Law § 470.05(2); People v. Tevaha, 84 N.Y.2d 879, 881 (1994); People v. Fleming, 70 N.Y.2d 947, 948 (1988);People v. West, 56 N.Y.2d 662, 663 (1982), Once the objection was sustained, defendant did not request any curative or limiting instructions to the jury and he did not move for a mistrial. People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9 (1981); People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75 (1981); People v. Cruz, 147 A.D.2d 584, 537 N.Y.S.2d 878 (2d Dept. 19891: see also People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208 (1975), His omissions prevented direct appellate review of his claim except in the appellate court's exercise of its limited interest of justice jurisdiction. See, N.Y. Crim, Proc, Law § 470.05(2), The Appellate Division decision contains a "plain statement" that it was relying on that state procedural rule in deciding the claim. People v. Davis, 224 A.D.2d at 542, 637 N.Y.S.2d at 978 ("defendant's remaining contention is unpreserved for appellate review").
Federal habeas corpus review of this claim is barred because defendant's procedural default provides a state ground for rejecting defendant's claim. That ground is both independent of any alleged underlying federal issue and adequate to sustain the conviction, See Coleman v. Thompson, 501 U.S. at 729-32; Harris v. Reed, 489 U.S. at 255; Engle v. Isaac, 456 U.S. at 129; Vargas v. Keane, 86 F.3d 1273, 1281 (2d Cir. 1996)
In a federal habeas corpus proceeding, a federal court may only reach the merits of a procedurally barred claim if a defendant has established either (1) cause for his procedural default and resulting prejudice,see Wainwright v. Sykes, 433 U.S. at 87-91, or (2) that the federal court's "failure to consider the claim will result in a fundamental miscarriage of justice," Coleman v. Thompson, 501 U.S. at 750.
Defendant fails to show cause or resulting prejudice. Defendant has never claimed that trial counsel was ineffective for failing to specify the grounds for his objection to the question, or for failing to take further action once the objection was sustained. Defendant was not prejudiced by the question because it was never answered and the jury was instructed that questions were not evidence. See Murray v. Carrier, 477 U.S. 468, 488-91 (1986); United States v. Frady, 456 U.S. 152, 168 (1982).
The overwhelming eyewitness and scientific evidence establishes that the failure to grant relief will result not in a "fundamental miscarriage of justice."
This claim lacks merit.
No other 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.