Opinion
03 Civ. 1471 (LAK)
October 9, 2003
ORDER
Petitioner was convicted on June 13, 1998 of second degree murder in the New York Supreme Court, New York County. The judgment was affirmed by the Appellate Division, and the New York Court of Appeals denied leave to appeal. People v. Hernandez, 287 A.D.2d 267, 730 N.Y.S.2d 712 (1st Dept. 2001), leave to appeal denied, 97 N.Y.2d 729, 740 N.Y.S.2d 702 (2002). His application for collateral relief pursuant to N.Y. Crim. Proc. L. § 440.10 was denied on February 27, 2002. He now seeks a writ of habeas corpus alleging that (1) the trial court erroneously permitted directed evidence of uncharged crimes during the People's direct case, (2) the prosecutor deprived him of a fair trial by eliciting inadmissible evidence from a witness, shifting the burden of proof, vouching for the credibility of one of the People's witnesses and "spout[ing] prejudicial comments in summation," and the People failed to prove his guilt beyond a reasonable doubt.
The first ground of the petition has been procedurally defaulted and forfeited for the reasons set forth in the respondent's answer at paragraphs 16-19. In any case, the claim is without merit as petitioner has failed to demonstrate that the state courts' rejection of this claim resulted in an adjudication that was contrary to, or involved an unreasonable determination of, clearly established Federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). Indeed, the question whether the Constitution forecloses propensity evidence, which is the focus of petitioner's complaint, never has been decided by the Supreme Court. Estelle v. McGuire, 502 U.S. 62, 72 n. 5 (1991). Further, the evidence was not admitted to show propensity, but on the question of motive and thus would have been proper under Estelle in any event.
The second ground, prosecutorial misconduct, has been procedurally defaulted and forfeited for the reasons set forth in the answer at paragraphs 26-31. In any case, the claim would lack merit because there has been no showing thatthe state courts' determination, even if erroneous, transgressed the standards set in 28 U.S.C. § 2254(d).
Petitioner's attack on the sufficiency of the evidence, ground three, which was rejected by the state courts, is entirely without merit.
Accordingly, the petition is denied and the case dismissed. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.