Opinion
02 Civ. 2126 (SHS) (AJP)
October 18, 2002
REPORT AND RECOMMENDATION
To the Honorable Sidney H. Stein, United States District Judge:
Pro se petitioner Daniel Figueroa seeks a writ of habeas corpus from his 1998 conviction upon a guilty plea in Supreme Court, New York County, of second degree burglary and attempted burglary, for which he was sentenced to concurrent terms of sixteen years to life imprisonment. (Dkt. No. 2: Pet. ¶ 1-5.) Figueroa alleges that: (1) he was denied effective assistance of counsel because his attorney failed during aWade hearing to cross-examine the detective who conducted the lineup at which a complaining witness identified Figueroa (Id. ¶ 12(A)), and (2) he was improperly sentenced (id. ¶ 12(B)).
For the reasons set forth below, Figueroas petition should be DENIED.
FACTS
The Wade Hearing
On March 2, 1998, pursuant to a burglary investigation, Detective Kenneth Comer of the Twentieth Precinct detective squad arranged for complainant Lyn Sohun to view a precinct lineup. (Ex. A: 9/10/98 Hearing Transcript ["Tr."] at 3-5.) Sohun identified Figueroa as the burglar that she saw on February 17, 1998, based on a six-man lineup that allowed Sohun both to view the six men and to hear their voices. (Id. at 5-6, 11-12.)
Referenced Exhibits are attached to the 9/4/02 affidavit of Assistant Attorney General Willa J. Bernstein. (Dkt. No. 9.)
At a Wade hearing held on September 10, 1998, Figueroas counsel moved pursuant to C.P.L. § 710.30 to suppress Sohun's lineup identification. (Tr. at 15.) Figueroa's counsel claimed that, although he received notice within fifteen days of arraignment of the forthcoming lineup, "[l]ineup is commonly meant to be a lineup of a corporeal, physical body viewing. There s never been an indication that this was a voice identification procedure. That, in fact, completely changes its nature." (Id. at 15-16.) The hearing court denied Figueroa's motion because the defense was given notice of the physical identification procedure and "[t]here's nothing in [Article] 710 that requires notice of an identification by voice, nor is there anything in 710 which makes the fine distinction that [Figueroa's counsel is] making." (Id. at 16; see id. at 17-18, 20-24.)
Following the hearing court's decision, Figueroa's counsel, after consulting with Figueroa, chose not to cross-examine Detective Comer, because he believed that cross-examination would waive appellate review of the court's denial of his preclusion motion. (Id.)
MR. AFFLER [Defense Counsel]: May I consult very briefly with my client, Judge?
THE COURT: Sure.
MR. AFFLER: Judge, I will not cross-examine further — not do any cross-examination or participation, because it is my position that this should be subject to preclusion.
THE COURT: Sir, that's nice, but, you know, what you are saying to me is that because there was a voice identification, right, that therefore the People cannot use that portion of this previous identification that was purely corporeal. You offer me no case law on the subject. You offer me nothing in the language of the statute on that subject, and if you are wrong, you are giving up your client's opportunity to cross-examine, and I think you are wrong.
MR. AFFLER: Unless the Court —
THE COURT: I am not forcing you to do it.
Let's understand something. I am just suggesting to you that you should seriously consider that you might be making a terrible mistake.
MR. AFFLER: Were the Court to direct a hearing to proceed on this lineup, regardless of the notice, and I participated in it, I would not be waiving anything, but I think I can't be in a position where I, on my own, am moving to suppress this because I believe I am waiving an important issue.
THE COURT: Sir, as long as you have thought it out and made that tactical choice, then that is your business. It is not mine.
MR. AFFLER: Thank you, Judge.
THE COURT: There are no further questions of the witness. . . .
THE COURT: Do you want to argue counsel?
MR. AFFLER: I feel — again I feel if I — if the Court allows me to — I believe if I make an argument, I may be waiving this issue, so —
THE COURT: Sir —
MR. AFFLER: I know it is my call, and I have discussed it with Mr. Figueroa.
THE COURT: It is your call. I have cautioned you against it, but it is your call. Alright. You don't want to argue.
(Id. at 17-19.) The judge upheld the lineup as not suggestive. (Id. at 20-27.)
Figueroa's Guilty Plea and Sentencing
On October 8, 1998, Figueroa pled guilty before then-Justice George B. Daniels to both second degree burglary and attempted burglary, in exchange for concurrent sentences of sixteen years to life. (Ex. B: 10/8/98 Plea Allocution at 4, 8-9.)
THE COURT: So you want to plead to burglary in the second degree?
[ADA] RADCLIFFE: Are you aware of both cases?
MR. AFFLER [Defense Counsel]: This would be if the Court would be willing to sentence concurrent 16 years.
THE COURT: He's a mandatory violent persistent?
MR. AFFLER: Right.
THE COURT: And so burglary in the second degree on the first count, attempted burglary in the second degree on the second count, with the minimum 16 to life to run concurrently in both cases?
MR. AFFLER: That would be the promise of the Court, judge?
THE COURT: Is that the People's position?
MS. RADCLIFFE: Yes.
THE COURT: I'd be willing to take it.
MR. AFFLER: Based on this discussion, and the discussions with Mr. Figueroa, I am authorized to withdraw his previously entered plea of not guilty to the indictment and enter a plea of guilty to counts one and three.
THE COURT: One and two.
MR. AFFLER: One and two, in full satisfaction of the indictment, with the understanding that the promised sentence on each count will be 16 years to life, and a further understanding that those sentences are to run concurrently with each other.
(Id. at 3-4, emphasis added.) As part of the plea allocution colloquy, Figueroa personally acknowledged that he was guilty and that he would receive a sixteen year to life sentence:
THE COURT: Mr. Figueroa, your attorney indicated that you wish to plead guilty to the first two counts of this indictment; to burglary in the second degree, as charged in the first count, which is a class C felony, and attempted burglary in the second degree on the second count, which is a class D felony, and that you wish to plead guilty to those two charges in full satisfaction of all the charges against you on this indictment. Is that what you want to do?
THE DEFENDANT: Yes, sir.
THE COURT: Have you fully discussed this plea with your attorney?
THE DEFENDANT: Yes.
THE COURT: Are you pleading guilty voluntarily and of your own free will?
THE DEFENDANT: Yes.
THE COURT: Has anyone forced you or threatened you to make this plea of guilty?
THE DEFENDANT: No.
THE COURT: Have any other promises been made to you to induce you to plead guilty or with regard to what sentence will be imposed, other than this Court's, that I will impose the agreed upon sentence, the minimum sentence that can be imposed in this case as a persistent violent felony offender, is 16 years to life on each of these counts. Those two sentences to run concurrently for a total of 16 to life. Has anyone promised you anything else?
THE DEFENDANT: No, sir.
(Id. at 4-5, emphasis added.) The court accepted the plea, and Figueroa admitted to the prior persistent violent felony. (Id. at 9-10.)
On October 22, 1998, Figueroa was sentenced by Justice Daniels as follows:
I will impose the agreed upon sentence on each count of the indictment. You're sentenced to a mandatory minimum sentence of sixteen years to life in prison as a mandatory violent persistent felon. Those sentences to run concurrently with each other for a total of sixteen to life.
(Ex. C: 10/22/98 Sentencing at 4, emphasis added.) Figueroa did not object to the sentence at either the plea hearing or the sentencing. (See generally Exs. B and C.)
Figueroa's Direct Appeal
Represented by new counsel, Figueroa asserted two claims on direct appeal to the First Department. (Ex. D: Figueroa 1st Dep't Br.) First, Figueroa argued that at the Wade hearing, his attorney abandoned his right to cross-examine the State's witness and to argue for suppression of identification evidence, on the mistaken belief that the State's notice pursuant to C.P.L. § 710 was inadequate. (Figueroa 1st Dep't Br. at 1, 5.) Figueroa asserted that there was no tactical basis for counsel's conduct, which, having deprived him of an opportunity to challenge the identification testimony, constituted ineffective assistance of counsel necessitating reversal of his conviction. (Id. at 5-12.)
Second, Figueroa claimed that his sentence of sixteen years to life for the attempted burglary was inappropriate, because, in his interpretation, the court promised to sentence him to the minimum allowable term, which would be twelve years to life for attempted burglary (although Figueroa conceded that the minimum for second degree burglary was sixteen years to life). (Id. at 12-13.) His brief cited only the New York Penal Law and a New York case; he did not cite any federal case or constitutional provision. (Id.) Figueroa merely sought resentencing on the attempted burglary charge and not on the burglary charge. (Id. at 13.)
On December 21, 2000, the First Department upheld the Figueroa's conviction, stating:
Defendant's ineffective assistance claim rests entirely on his counsel's strategic decision to abandon his motion to suppress identification testimony in order to avoid forfeiture, pursuant to People v. Kirkland ( 89 N.Y.2d 903), of his argument that such testimony should have been precluded for insufficient CPL 710.30 notice. This issue would require a CPL 440.10 motion in order to afford counsel an opportunity to explain his strategy. To the extent that the existing record permits review, we conclude that defendant received meaningful representation . . . Counsel's strategic choice was plausible, and the record establishes that it is highly unlikely that counsel's continued participation in the Wade hearing would have resulted in suppression of any identification evidence.
Defendant's contention concerning his sentence on his attempted burglary conviction is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant was sentenced in accordance with his negotiated plea.People v. Figueroa, 278 A.D.2d 139, 139, 717 N.Y.S.2d 592, 593 (1st Dep't 2000).
Figueroa's counsel sought leave to appeal to the New York Court of Appeals. (Ex. G: Figueroa 12/22/00 1/8/01 Letters to Court of Appeals.) Figueroa's first letter requesting leave to appeal merely enclosed the First Department's decision and copies of the parties' First Department briefs. (Ex. G: Figueroa 12/20/00 Letter to Court of Appeals.) The second letter addressed the ineffective assistance claim at length, but did not refer at all to the sentencing claim. (Ex. G: Figueroa 1/8/01 Letter to Court of Appeals.)
On February 23, 2001, the New York Court of Appeals denied leave to appeal. People v. Figueroa, 96 N.Y.2d 758, 725 N.Y.S.2d 285 (2001).
Figueroa's Federal Habeas Petition
Figueroa's timely-filed federal habeas corpus petition raised the same two claims he had previously raised in his direct appeal to the First Department: ineffective assistance of counsel at the Wade hearing and improper sentencing. (Dkt. No. 2: Pet. ¶ 12(A)-(B).)
On March 28, 2002, this Court held that Figueroa had not exhausted his ineffective assistance claim because he had not filed a C.P.L. § 440.10 motion. (Dkt. No. 4: 3/28/02 Order.) The Court instructed Figueroa to bring a C.P.L. § 440.10 motion in State court by April 29, 2002 and to "notify this Court within 30 days of the State court's decision on his C.P.L. § [440.10] motion (and any available appeal therefrom)." (Id.) The Court warned that if Figueroa did not "strictly comply with the time limits set forth above, his ineffective assistance habeas claim [would] be denied." (Id.)
On April 2, 2002, Figueroa requested an extension to comply with the Court's order, which the Court denied. (Dkt. No. 5: 4/9/02 Memo Endorsed Order.)
By July 19, 2002, the Court had not yet heard from Figueroa. (Dkt. No. 6: 7/19/02 Order.) Accordingly, the Court directed the State to respond to the petition and further held that:
Unless Figueroa already has filed a C.P.L. § 440 motion in state court and has merely failed to supply this Court with a copy (in which case he should supply the court with a copy immediately), it is now too late for Figueroa to do so (insofar as it affects this habeas petition).
(Id.) The Court has not received any further submissions from Figueroa.
ANALYSIS
For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.);Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at * 10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.),report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.);Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.),aff'd, 303 F.3d 411, 417 (2d Cir. 2002); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002).
Before the Court can determine whether Figueroa is entitled to federal habeas relief the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d)(1)-(2).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135.
Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000);Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).
Accord, e.g., Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002);Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, No. 02-5336, 2002 WL 1662700 (Oct. 7, 2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.
Accord, e.g., Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.
In Williams, the Supreme Court explained that "[u]nder the "unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term "unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id at 409 120 S.Ct. at 1521.
Accord, e.g., Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002);Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184;Lurie v. Wittner, 228 F.3d at 128-29.
The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord, e.g., Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184. Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed."Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 296 F.3d at 135. Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254 (d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir. 2002); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word "denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002). II. FIGUEROA'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM SHOULD BE DENIED AS UNEXHAUSTED BUT DEEMED EXHAUSTED AND PROCEDURALLY BARRED
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the "unreasonable application' or "contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:
We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Norde v. Keane, 294 F.3d at 410; Aparicio v. Artuz, 269 F.3d at 93.
Where the Appellate Division states that the claims are "'either unpreserved for appellate review or without merit,'" but it is clear from the record that a claim was preserved so that the decision must have been on substantive grounds, the Second Circuit "read[s] the state court's opinion as having adjudicated [the petitioner's] claim on its merits [and] [t]hus the unreasonable application standard of AEDPA applies." Ryan v. Miller, 303 F.3d at 246.
Figueroa asserts that his trial counsel's conduct at the Wade hearing constituted ineffective assistance of counsel. (Dkt. No. 2: Pet. ¶ 12(A).) Because, however, Figueroa failed to comply with the Court's March 28, 2002 Order (Dkt. No. 4: 3/28/02 Order) directing him to exhaust his ineffective assistance claim via a C.P.L. § 440.10 motion (see page 8 above), his ineffective assistance claim should be denied as unexhausted but deemed exhausted and procedurally barred.
A. The Unexhausted But Deemed Exhausted and Procedurally Barred Doctrine
For additional decisions by this Judge discussing the unexhausted but deemed exhausted and procedurally barred doctrine in language substantially similar to that in this entire section of this Report Recommendation see Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at * 13-15 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *15-16 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5-6 (S.D.N.Y. Jul. 12, 2001) (Peck, M.J.); Bailey v. People of State of New York, 01 Civ. 1179, 2001 WL 640803 at *3-4 (S.D.N.Y. Jun. 8, 2001) (Peck, M.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *7-9 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at * 5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.);Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.);Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.);Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).
Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254 (b)(1)(A); see, e.g. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732.
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732-34.
"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General of New York, 696 F.2d at 191. The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:
Accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Dave v. Attorney General, 696 F.2d at 194. B. Application to Figueroa's Ineffective Assistance Claim
Accord, e.g., Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997);Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688.
In this case, the First Department denied Figueroa's ineffective assistance of counsel claim, holding that the "issue would require a CPL 440.10 motion in order to afford counsel an opportunity to explain his strategy." People v. Figueroa, 278 A.D.2d 139, 139, 717 N.Y.S.2d 592, 593 (1st Dep't 2000). New York allows ineffective assistance of counsel claims to be brought via a collateral attack pursuant to C.P.L. § 440.10. See Hernandez v. Lord, 00 Civ. 2306, 2000 WL 1010975 at * 3 (S.D.N.Y. July 21, 2000) (Peck, M.J.) (citing federal and New York State cases); accord, e.g., Padilla v. Keane, 00 Civ. 1235, 2000 WL 1774717 at *2 (S.D.N.Y. Dec. 4, 2000) (Peck, M.J.).
The proper procedural vehicle under New York law for raising a claim of ineffective assistance of trial counsel is generally not a direct appeal but a motion to the trial court to vacate the judgment under New York Criminal Procedure Law Section 440.10. This is so because normally the appellate court has no basis upon which it would be able to consider the substance of such a claim until a record of the relevant facts has been made at the trial court level.Walker v. Dalsheim, 669 F. Supp. 68, 70 (S.D.N.Y. 1987).
See also, e.g., Otero v. Stinson, 51 F. Supp.2d at 417-420; Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at *4 (S.D.N.Y. Oct. 7, 1998);Walker v. Miller, 959 F. Supp. 638, 643-44 (S.D.N.Y. 1997) (McKenna, D.J. Peck, M.J.) (finding that state court remedies were not exhausted where § 440.10 motion did not advance all of the ineffective assistance of trial counsel allegations raised in habeas petitions); Elinger v. Miller, 928 F. Supp. at 294 ("Ineffective assistance of trial counsel motions . . ., ordinarily are made by a CPL § 440.10 motion before the trial court, or direct appeal where trial counsel's alleged incompetence could be determined from the existing record.").
This Court ordered Figueroa to bring a § 440.10 motion in state court within thirty days, and admonished him that if he "fail[ed] to strictly comply with the [thirty-day] time limits . . ., his ineffective assistance habeas claim [would] be denied." (Dkt. No. 4: 3/28/02 Order see page 8 above.) See, e.g., Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.) (where some of petitioner's claims are unexhausted, action should be stayed and petitioner given thirty days in which to file state action to exhaust unexhausted claims), cert. denied, 122 S.Ct. 506 (2001).
By Order dated April 9, 2002, the Court denied Figueroa's request for an extension of time to file the § 440.10 motion. (Dkt. No. 5: 4/9/02 Memo Endorsed Order.) Three months later, this Court noted that Figueroa did not appear to have filed the § 440.10 motion and that "it is now too late for Figueroa to do so" (Dkt. No. 6: 7/19/02 Order) — that is, any claim at that late date would be barred by the AEDPA's one year statute of limitations. See, e.g., Rodriguez v. Greiner, 99 Civ. 4475, 2002 WL 511555 at *4-5 (S.D.N.Y. Apr. 3, 2002) (dismissing habeas claim because, in violation of order, petitioner failed timely to return to state court to exhaust claim); cf. Reyes v. Keane, 118 F.3d 136, 139-40 (2d Cir. 1997) (unexhausted claims may be "deemed exhausted" and procedurally barred where petitioner no longer has remedies available in state court); Soto v. Greiner, 2002 WL 1678641 at * 14-15 ( cases cited therein) (discussing unexhausted but deemed exhausted and procedurally barred doctrine).
Accordingly, Figueroa's ineffective counsel claim should be dismissed for failure to comply with this Court's order to exhaust the claim.
III. FIGUEROA'S SENTENCING CLAIM SHOULD BE DENIED
Figueroa's habeas claim challenging his sentence should be denied because: (a) the claim is barred on adequate and independent state law grounds because Figueroa failed to object to the sentence at either the plea or sentencing hearings; (b) in any event, Figueroa's sentencing claim is unexhausted but deemed exhausted and procedurally barred because he failed to present the claim to the New York Court of Appeals.
A. Figueroa's Sentencing Claim is Barred on Adequate and Independent State Grounds
For additional decisions by this Judge discussing the adequate and independent state ground doctrine in language substantially similar to that in this entire section of this Report Recommendation, see Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *7-10 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *11-13 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *8-9 (S.D.N.Y. May 31, 2002) (Peck, M.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *20-21 (S.D.N.Y. May 15, 2002) (Berman, D.J. Peck, M.J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *8-11 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *7 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.);Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *9 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 209-14 (S.D.N.Y. 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted, 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.J.);Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (April 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.),aff'd, No. 99-2416, 205 F.3d 1324 (table) (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.);Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).
Figueroa failed to object to his sentence at any time during his plea hearing or sentencing. (Exs. B C; see pages 4-6 above.) As such, the First Department held that Figueroa's claim challenging his sentence of sixteen years to life imprisonment on his attempted burglary conviction was unpreserved. People v. Figueroa, 278 A.D.2d 139, 139, 717 N.Y.S.2d 592, 593 (1st Dep't 2000), appeal denied, 96 N.Y.2d 758, 725 N.Y.S.2d 285 (2001). Because the First Department's decision was based on adequate and independent state law grounds, Figueroa's sentencing claim is barred from federal habeas review.
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); see also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S.Ct. 851, 860-61 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Murray v. Carrier, 477 U.S. 478, 485-88, 496, 106 S.Ct. 2639, 2644-45, 2649-50 (1986); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999); Reves v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997);Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9;accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Garcia v. Lewis, 188 F.3d at 77-82; Glenn v. Bartlett, 98 F.3d at 724-25; see also, e.g., Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.
With respect to Figueroa's claim, the First Department held:
Defendant's contention concerning his sentence on his attempted burglary conviction is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant was sentenced in accordance with his negotiated plea.People v. Figueroa, 278 A.D.2d at 139, 717 N.Y.S.2d at 593.
State courts are not required to use any particular language:
We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559. Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review, see, e.g., Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992), here the First Department explicitly stated that it found Figueroa's sentencing claim to be unpreserved,People v. Figueroa, 278 A.D.2d at 139, 717 N.Y.S.2d at 593, and the fact that the First Department also stated the conclusion it would reach "[w]ere we to review" the claim does not change the result. See, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 810-11 n. 4 (2d Cir. 2000) ("where a state court says that a claim is "not preserved for appellate review' and then ruled "in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d at 724-25 n. 3 (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds). Thus, the First Department's decision rested on a state procedural ground.
See also, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10; Velasquez v. Murray, 2002 WL 1788022 at *8; Soto v. Greiner, 2002 WL 1678641 at *12; Larrea v. Bennett, 2002 WL 1173564 at *9 n. 8; Martinez v. Greiner, 2001 WL 910772 at *9 n. 9;Ferguson v. Walker, 2001 WL 869615 at *8 n. 19; Simpson v. Portuondo, 2001 WL 830946 at * 10; Simmons v. Mazzuca, 2001 WL 537086 at * 10 (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them);Jones v. Duncan, 162 F. Supp.2d at 208 (same); Yeung v. Artuz, 2000 WL 145103 at *10 (same); Cruz v. Greiner, 1999 WL 1043961 at *12-13 (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp.2d at 287;Torres v. Irvin, 33 F. Supp.2d at 274 (adequate and independent ground even though First Department "went on to dismiss the [judicial misconduct] claim on the merits"); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. Apr. 20, 1998); Vera v. Hanslmaier, 928 F. Supp. at 285; Liner v. Keane, 1996 WL 33990 at *7.
The New York Court of Appeals denied Figueroa's application for leave to appeal. People v. Figueroa, 96 N.Y.2d 758, 725 N.Y.S.2d 285 (2001). The Supreme Court held in Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id at 803 111 S.Ct. at 2594. Figueroa has presented no facts to rebut that presumption here.
Under New York Law, "[a]s a general rule points which were not raised at trial may not be considered for the first time on appeal." People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584 (1980) (citing C.P.L. § 470.05(2)). In order to preserve challenges to a sentence, defense counsel is required to object at the time sentence is imposed See, e.g., People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 470 (1990) (sentence claim unpreserved for review because neither the defendant nor his attorney objected to the sentence at the time the sentence was imposed); People v. Ruz, 70 N.Y.2d 942, 943, 524 N.Y.S.2d 668, 668 (1988) ("By not bringing this [sentencing challenge] to the attention of the court at the time of sentence, defendant failed to preserve it for our review."); People v. Ingram, 67 N.Y.2d 897, 899, 501 N.Y.S.2d 804, 805 (1986) (where "defendant failed to challenge his sentence before the trial court," sentencing claim "is not properly before us"); People v. Lemon, 62 N.Y.2d 745, 746, 476 N.Y.S.2d 824, 825 (1984) (Defendant did not alert the court about his sentencing claim "at the time of sentence, or by way of a motion for resentence, and thus no error of law has been preserved for our review."); People v. Wilson, 289 A.D.2d 1088, 1088, 735 N.Y.S.2d 463, 464 (4th Dep't 2001) ("By failing . . . to object to the sentence imposed on the ground that it was not the sentence promised pursuant to the terms of the plea bargain, defendant failed to preserve for our review her present contention that the imposition of consecutive rather than concurrent sentences violated Supreme Court's sentencing promise."), appeal denied, 98 N.Y.2d 656, 745 N.Y.S.2d 516 (2002); People v. Marshall, 276 A.D.2d 308, 308, 714 N.Y.S.2d 33, 34 (1st Dep't 2000) ("Defendant's challenge to the constitutionality of his mandatory minimum sentence requires preservation . . ., and we decline to review this unpreserved claim in the interest of justice."), appeal denied, 96 N.Y.2d 761, 725 N.Y.S.2d 287 (2001). Figueroa failed to object to his sentence at his plea allocution or at sentencing.
C.P.L. § 470.05(2) provides, in relevant part:
For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.
In People v. Fuller, 57 N.Y.2d 152, 455 N.Y.S.2d 253 (1982), the New York Court of Appeals applied a narrow exception to the preservation doctrine in a case where the trial court exceeded its statutory authority, thereby levying an unlawful sentence. Id. at 156-59, 455 N.Y.S.2d at 255-56; accord, e.g., People v. Samms, 95 N.Y.2d 52, 55-56, 710 N.Y.S.2d 310, 312-313 (2000) (failure to object at the time of sentencing did not render the challenge unpreserved, because the sentence was imposed in violation of a statutory mandate and therefore was unauthorized). Unauthorized sentencing, however, is not at issue in this case.
The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. at 485-92, 497, 106 S.Ct. at 2644-48, 2650 (same); Garcia v. Lewis, 188 F.3d at 79 ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citing Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995), Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)),cert. denied, 502 U.S. 883, 112 S.Ct. 236 (1991)); Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground); Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously . . . constitutes an adequate and independent basis for barring habeas review.").
Specifically, the Second Circuit and district courts within the Circuit have held that failure to object at the time of sentencing is an adequate and independent state ground sufficient to bar habeas relief of a sentencing-related claim. See, e.g., Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) (Where defendant did not raise his sentencing claim in trial court and the First Department affirmed without opinion, the affirmance was held to be based on adequate and independent state procedural grounds, for there was "no 'good reason' to believe that the Appellate Division's silence reflect[ed] a decision on the merits"); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at * 18-19 (S.D.N.Y. July 18, 2002) (Peck, M.J.) (First Department's holding that Green's "'constitutional challenge to the procedure under which he was sentenced as a persistent felony offender [was] unpreserved for appellate review and, in any event [was] without merit[,]'" was "based on an adequate and independent state law ground"); El v. Artuz, 105 F. Supp.2d 242, 250 (S.D.N.Y. 2000) ("The Appellate Division's finding that [petitioner's sentencing] claim was unpreserved constitutes an independent and adequate state ground that precludes federal habeas review absent 'good cause for and actual prejudice resulting from his noncompliance with the state's procedural rule.'").
Because there is an adequate and independent finding by the First Department that Figueroa procedurally defaulted on his sentencing claim, Figueroa would have to show in his habeas petition "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565. Figueroa has failed to allege cause and prejudice or that a fundamental miscarriage of justice would result if his sentencing claim is not addressed. Accordingly, because Figueroa failed to challenge at the time of sentencing the concurrent sentence of sixteen years to life, this claim is barred from habeas review.
See also, e.g., Schlup v. Delo, 513 U.S. at 324-27, 115 S.Ct. at 865-67 (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence").
The Court notes that Figueroa was sentenced to concurrent (rather than the legally permissible consecutive) sentences of sixteen years to life on both the burglary and attempted burglary counts, and his challenge that the minimum sentence would be twelve years to life applies only to the attempted burglary claim. (See pages 6-7 above.) Thus, even if Figueroa were resentenced as requested to twelve years to life for attempted burglary, he still would be serving sixteen years to life for burglary. He thus fails to show how he could be prejudiced, or how there could be a fundamental miscarriage of justice, even if his sentence on the attempted burglary count was erroneous.
B. In Addition, Figueroa's Sentencing Claim is Unexhausted, but Deemed Exhausted and Procedurally Barred, Because it Was Not Presented to the New York Court of Appeals
As discussed above, section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254 (b)(1)(A); see also cases cited at pages 14-15 above.
The Second Circuit has long held, and the Supreme Court confirmed, that "a state prisoner must present his claims to a state supreme [i.e., highest] court in a petition for discretionary review in order to satisfy the exhaustion requirement." O'Sullivan v. Boerckel, 526 U.S. 838, 839-40, 119 S.Ct. 1728, 1730 (1999); accord, e.g., Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000); Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.), cert. denied, 531 U.S. 819, 121 S.Ct. 59 (2000); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) ("To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims 'to the highest court of the pertinent state.'"), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991) ("a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition"); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) ("We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition," citing Daye); Daye v. Attorney General, 696 F.2d 186, 191 n. 3 (1982) ("Exhaustion of available state remedies requires presentation of the claim to the highest state court from which a decision can be had."); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at * 16 (S.D.N.Y. May 15, 2002) (Peck, M.J.).
Here, Figueroa's counsel's first letter to the New York Court of Appeals merely attached his First Department brief, and his follow-up letter discussed the ineffective assistance of counsel claim at length but contained not a word about the sentencing claim. (Ex. G: Figueroa Letters to N.Y. Ct. App.; see page 7 above.)
A mere reference to Figueroa's First Department brief is not sufficient to have exhausted the claims in the New York Court of Appeals, especially in light of his lengthy discussion of the ineffective assistance claim. In Grey v. Hoke, the petitioner argued one claim in his leave to appeal letter to the New York Court of Appeals, and also attached his Appellate Division briefs, which had raised that issue plus two others. 933 F.2d at 120. The Second Circuit held that the claims only referred to in his attached briefs were not exhausted:
Petitioner argues that by attaching his Appellate Division brief to his letter application to the Court of Appeals, he presented that court with an opportunity to rule on his sentencing and prosecutorial misconduct claims. He concedes, however, that his letter application requested that the Court of Appeals review only the search and seizure claim. The letter made no mention of the sentencing and prosecutorial misconduct claims. Under these circumstances, we disagree with petitioner's assertion that the Court of Appeals was presented with his sentencing and prosecutorial misconduct claims.
The fair import of petitioner's submission to the Court of Appeals, consisting of his brief to the Appellate Division that raised three claims and a letter to the Court of Appeals arguing only one of them, was that the other two had been abandoned. The only possible indication that the other two claims were being pressed was the inclusion of a lengthy brief originally submitted to another court. This did not fairly apprise the court of the two claims. We decline to presume that the New York Court of Appeals has "a duty to look for a needle in a paper haystack." For a federal court to hold that a state court had the opportunity to rule on a constitutional claim as to which no ruling was requested, and then to rule on the merits of the claim itself, would undermine the very considerations of comity that the rules of exhaustion were designed to protect.Grey v. Hoke, 933 F.2d at 120 (emphasis added citations omitted).
See also, e.g., Diguglielmo v. Senkowski, No. 01-2026, 42 Fed. Appx. 492, 2002 WL 1162791 at *3 (2d Cir. June 3, 2002) (leave application that "fully argued several state law claims and then made only a passing reference to other arguments raised in supplemental materials" was "inadequate to alert the New York Court of Appeals to other claims found in his Appellate Division materials" and therefore "'[did] not fairly present such claims for the purposes of the exhaustion requirement underlying federal habeas jurisdiction.'") (quoting Jordan v. Lefevre, 206 F.3d at 199); Ramirez v. Attorney General of the State of New York, 280 F.3d 87, 97 (2d Cir. 2001) (citation to petitioner's attached Appellate Division brief referring only to "this issue" "was not, therefore, a request "to consider and review' other issues raised in the referenced points of the brief." "References to attached briefs without more will preserve issues only if the Court of Appeals is clearly informed that the reference is asserting issues in those briefs as bases for granted leave to appeal."); Jamison v. Berbary, 2002 WL 1000283 at *17-19 ( cases cited therein) (petitioner's "passing reference to his First Department briefs in his leave application" did not fairly present the claim for exhaustion purposes); Bailey v. People of New York, 01 Civ. 1179, 2001 WL 640803 at *4-5 (S.D.N.Y. June 8, 2001) (Peck, M.J.) (petitioner's "mere enclosure of his Appellate Division briefs in his leave to appeal application, while discussing a single claim at length, is not sufficient" to have exhausted his other claims); Cook v. Pearlman, 212 F. Supp.2d 258, 263 (S.D.N.Y. 2002) (where petitioner's attached appellate brief raised three grounds for reversal, but his application only argued one of those grounds, the other two claims were not fairly presented to the Court of Appeals); Alston v. Senkowski, 210 F. Supp.2d 413, 417-18 (S.D.N.Y. 2002) (Stein, D.J.) (petitioner failed to fairly present his four constitutional claims to the Court of Appeals for exhaustion purposes when "his attorney merely made reference to the fact that he had enclosed the Appellate Division briefs [in his leave application] and stated that a further letter would follow");Valdez v. Mazzuca, No. 00-CV-4961, 2002 WL 1364089 at * 2 (E.D.N.Y. June 21, 2002) ("petitioner did not fairly present his ineffective assistance of trial counsel claim to the New York Court of Appeals because petitioner's application for leave to appeal discusses another claim but does not mention the ineffective assistance of trial counsel claim");Fernandez v. Artuz, 97 Civ. 2989, 2002 WL 977372 at * 2 (S.D.N.Y. May 9, 2002) (Petitioner failed to exhaust all other claims when he "only argued his confrontation claim to the New York Court of Appeals[,] . . . did not refer to any other claim in his leave application[, and] . . . merely stated that the Court of Appeals should grant his leave application '(for all of the foregoing reasons stated in appellant's brief.'"); Simpson v. Miller, No. 97 CV 2203, 2002 WL 923913 at *6 (E.D.N.Y. Apr. 30, 2002) (because "petitioner's application for leave to appeal discuss[ed] two other claims but [did] not mention the improper jury instruction and prosecutorial misconduct claims[,]" the latter two claims were not fairly presented to the Court of Appeals); Campos v. Portuondo, 193 F. Supp.2d 735, 745 (S.D.N.Y. Feb. 27, 2002) (Petitioner's "discussion of his single claim at length along with the submission attaching a brief containing additional claims '[did] not fairly apprise the state court of those remaining claims.'"); Kirby v. Senkowski, 97 Civ. 3329, 2001 WL 394862 at *6-7 (S.D.N.Y. Apr. 17, 2001) (sufficiency of evidence claim unexhausted where petitioner submitted Appellate Division briefs to New York Court of Appeals but failed to mention that claim anywhere in follow up leave letter which focused on other unrelated claims); Black v. McGinnis, 99 Civ. 0755, 2001 WL 209916 at *3-4 (S.D.N.Y. Mar. 1, 2001) (where petitioner's letter requested leave to appeal and was accompanied by appellate division briefs but did not identify any issue for appeal, claims were unexhausted); Snead v. Artuz, 99 Civ. 2406, 2001 WL 199409 at *3-4 (S.D.N.Y. Feb. 28, 2001) (where petitioner raised only one issue in leave to appeal letter, other issues unexhausted even though discussed in Appellate Division brief accompanying letter); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *24-25 (S.D.N.Y. June 6, 2000) (Peck, M.J.) (claims not exhausted where the application for leave to appeal to the New York Court of Appeals merely refers to the Appellate Division briefs without further elaboration of the claims); Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *3-6 (S.D.N.Y. July 5, 2000) (Peck, M.J.) (lengthy discussion of one issue plus submission of First Department briefs not sufficient to exhaust the issues raised only in the brief);Jordan v. Lefevre, 22 F. Supp.2d 259, 262 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.) (petitioner's "passing reference to the appellate briefs in the final paragraph of the application letter . . . coupled with the letter's lengthy discussion of [one of the claims, did] not fairly apprise the New York Court of Appeals of the three additional grounds," which were therefore held to be procedurally barred), aff'd in part rev'd in part on other grounds, 206 F.3d 196 (2d Cir. 2000);DeLeon v. Hanslmaier, No. CV-94-5512, 1996 WL 31232 at *3 (E.D.N.Y. Jan. 19, 1996) ("The fact that petitioner attached his brief submitted to the Appellate Division [with his application for leave to appeal to the Court of Appeals] is not enough to satisfy the exhaustion requirement."),aff'd No. 96-2210, 104 F.3d 355 (table) (2d Cir. 1996).
The district court decisions within the Circuit have even extended Grey's rule to situations in which the application for leave to appeal to the New York Court of Appeals explicitly refers to the Appellate Division briefs. For example, in Brooks v. Kelly, No. 88-CV-0631, 1993 WL 350188 (W.D.N.Y. Sept. 10, 1993), petitioner's application for leave to appeal stated that "'other significant issues are also presented which are thoroughly articulated in'" petitioner's Appellate Division briefs, which were attached. Id. at *2. The District Court held that the claim was not exhausted:
For a federal claim to be considered exhausted, it must have been presented to the highest state court. A petitioner is not deemed to have presented a claim to the New York State Court of Appeals simply by attaching an Appellate Division brief without further elaboration of the claim in the petition for leave to appeal. [Citing Grey v. Hoke.] Further, a petitioner has not fulfilled the exhaustion requirement by having made in the application for leave to appeal general reference to claims in the attached appellate brief meriting review.Brooks v. Kelly, 1993 WL 350188 at *3 (citations omitted emphasis added); see also, e.g., Jordan v. LeFevre, 22 F. Supp.2d at 268 ( cases cited therein).
Under Grey and its progeny, Figueroa's attaching of his First Department brief to his leave application clearly was not sufficient to exhaust his sentencing claim before the New York Court of Appeals.
Figueroa is now procedurally barred from raising his sentencing claim in the New York Court of Appeals. As the Second Circuit explained in Grey v. Hoke:
Here, New York procedural rules plainly bar petitioner from attempting to raise [the claims he raised before the Appellate Division but not in his application for leave to appeal] before the New York Court of Appeals. Petitioner cannot again seek leave to appeal these claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Court Rules § 500.10(a). Collateral review of these claims is also barred because the issues were previously determined on the merits on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(a); see also N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if a claim could have been raised on direct review). . . .
We agree with the state, however, that petitioner's forfeiture in state court of [the claims not adequately raised before the N.Y. Court of Appeals] bars him from litigating the merits of those claims in federal habeas proceedings, absent a showing of cause for the procedural default and prejudice resulting therefrom. Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-2509, 53 L.Ed.2d 594 (1977). Petitioner makes no showing of cause or of prejudice. The [claims not raised before the Court of Appeals] must therefore be dismissed without reaching the merits.Grey v. Hoke, 933 F.2d at 120-21. Here, Figueroa has not alleged cause and prejudice nor actual innocence. Thus, his habeas sentencing claim should be dismissed as procedurally defaulted.
Accord, e.g., Bailey v. People of New York, 2001 WL 640803 at *7;Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Perez v. Greiner, 2000 WL 915114 at *3; Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *26; Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *9 nn. 10-11 (S.D.N.Y. May 16, 2000) (Peck, M.J.) ( cases cited therein).
CONCLUSION
For the reasons set forth above, Figueroa's habeas petition should be DENIED, and a certificate of appealability should not issue.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Stein. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).