Gillespie v. Miller

Full title: ANTHONY GILLESPIE, Petitioner, v. DAVID L. MILLER, Respondent

Court: United States District Court, S.D. New York

Date published: Jul 29, 2004

04 Civ. 0295 (LAP) (AJP) (S.D.N.Y. Jul. 29, 2004)

Opinion

04 Civ. 0295 (LAP) (AJP).

July 29, 2004

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Loretta A. Preska, United States District Judge:

Pro se petitioner Anthony Gillespie seeks a writ of habeas corpus from his September 27, 1999 conviction of second degree burglary and sentence to fifteen years imprisonment as a predicate felon. (Dkt. No. 2: Pet. ¶¶ 1-5.) See People v.Gillespie, 287 A.D.2d 288, 288, 731 N.Y.S.2d 21, 22 (1st Dep't 2001), appeal denied, 97 N.Y.2d 754, 742 N.Y.S.2d 614 (2002).

Gillespie's habeas petition raises four grounds: (1) prosecutorial misconduct by submitting insufficient evidence to the grand jury (Pet. ¶ 13(1)); (2) the prosecutor violated theBrady rule by failing to give defense counsel the police lab report (Pet. ¶ 13(2)); (3) he was denied his due process right to a fair trial due to: (i) admitting Molineux evidence even though the menacing charge had been withdrawn; (ii) failing to dismiss a juror whose "first husband was killed in a terrorist bombing"; (iii) failing to issue a supplemental instruction to the jury; (iv) concealing jury notes from defense counsel; (v) depriving petitioner of his right to be present during read-back of the jury's notes (Pet. ¶ 13(3)); and (4) he was denied effective assistance of appellate counsel (Pet. ¶ 13(4)). (See generally Dkt. No. 10: Gillespie Br.; Dkt. No. 11: Gillespie 6/28/04 Letter to Court.)

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

FACTS

Petitioner Anthony Gillespie was arrested on Thanksgiving Day, November 26, 1998, and charged with second degree burglary and menacing. (State Opening: Trial Transcript ["Tr."] 411-12.) The charges stemmed from Gillespie's placing a bottle that looked like a "Molotov cocktail" at the front apartment door of his former girlfriend, Bridgette Brooks.

Gillespie's Relationship with Former Girlfriend Bridgette Brooks

At trial, Gillespie's former girlfriend, Bridgette Brooks, testified to the events of Thanksgiving Day, 1998, and to background information concerning Gillespie's violent relationship with her. (See generally Brooks: Tr. 542-619.) The prosecutor informed the jury that testimony concerning the couple's history was to show the "context of [their] relationship" so the jury could understand Brooks' legitimate fear on Thanksgiving Day. (State Opening: Tr. 404; State Closing: Tr. 719.) The evidence was introduced to demonstrate that Gillespie "was willing to hurt her before and that he would intend to hurt her again. And he knew that she knew that and that's why even more that bottle was threatening because she knew he would do something like this. Because he had hurt her before. The bottle was placed there to scare her." (State Closing: Tr. 719.) The judge gave the jury a limiting instruction that it could not be considered as propensity evidence but solely as to Gillespie's intent in placing the bottle at Brooks' door. (Charge: Tr. 746-47.)

During their four-year tumultuous relationship, Gillespie lived with Brooks and her two sons, ages nine and sixteen, in Brooks' 426 West 27th Street apartment from 1995 to 1996. (Brooks: Tr. 543, 546, 578.) Brooks asked Gillespie to move out due to the negative impact of their frequent arguments on her children, but she continued to date Gillespie despite their ongoing fights. (Brooks: Tr. 546-47, 551.)

Brooks testified that twice during their fights, Gillespie threatened to kill or injure her by vowing to "fire bomb," or "burn [her] out" of, Brooks' apartment. (Brooks: Tr. 552, 588, 617.) Brooks also testified that Gillespie resorted to violence during arguments, such as in July 1996, when Gillespie shoved Brooks into a wall, leaving her with a broken shoulder, stitches for a four-inch wound on her head, and the inability to work for weeks. (Brooks: Tr. 548-50.) Brooks declined to press charges against Gillespie for that incident, and she continued dating Gillespie because he promised he would "never do anything like that again and that he didn't mean it." (Brooks: Tr. 551.) Defense counsel did not object to Brooks' testimony regarding Gillespie's past violence and threats. (Tr. 542-53.) Indeed, defense counsel followed up on the incident during cross examination, to show that despite this history, Brooks continued to date Gillespie and even invited him over for Thanksgiving. (Brooks: Tr. 606-09.)

In July 1998, Brooks finally ended her relationship with Gillespie because she could no longer endure the constant fighting, did not want to continue subjecting her children to it, and felt they should "just be friends." (Brooks: Tr. 547-48, 553-54, 579.) When Gillespie called Brooks a week before Thanksgiving in 1998 and informed her that he had nowhere to go for Thanksgiving, she invited him to Thanksgiving dinner at her apartment. (Brooks: Tr. 554, 580-81.) Thanksgiving Day, November 26, 1998

On Thanksgiving Day, November 26, 1998, Gillespie came to Brooks' apartment, but around four o'clock in the afternoon they started arguing when Gillespie made inappropriate remarks in front of Brooks' son Lavert. (Brooks: Tr. 556.) Amidst the yelling, Brooks told Gillespie "this is not working I'm going to make you a plate [of food] and why don't you just leave." (Brooks: Tr. 556, 584.) Gillespie was slow to leave so Brooks told him to "please speed it up" and to "please stay away from me." (Brooks: Tr. 556, 584.) Before walking out the door, Gillespie told Brooks, "I'm going to fire bomb you." (Brooks: Tr. 557, 587, 612-13.) Brooks told him to "go now." (Brooks: Tr. 557.) About five to ten minutes after Gillespie left, Brooks and her children heard a loud bang on the door and discovered that Gillespie had thrown the plate of food she had given him all over the door. (Brooks: Tr. 557, 586.) Brooks said she then "g[o]t in a huge argument" with Gillespie, who was standing down the hallway, and he "told me I better watch my back and he said my mother should also watch her back." (Brooks: Tr. 557-58.) Brooks' sixteen year old son became very upset, and Brooks continued to tell Gillespie "to leave" as she yelled to her younger son, Lavert, to call 911. (Brooks: Tr. 558, 590, 614.) Brooks finally saw Gillespie going down the stairs to leave as she was cleaning up the food outside her door with her son. (Brooks: Tr. 559, 592-93, 611-12.)

Police Officers Bibbons and Correa responded to the 4:15 p.m. 911 call and arrived at Brooks' apartment a few minutes later. (Bibbons: Tr. 434-36; Correa: Tr. 520-21; Brooks: Tr. 595.) The officers observed the splattered food, and found Brooks to be "upset." (Bibbons: Tr. 436, 471-72; Correa: Tr. 521-22.) Brooks told the police that Gillespie had threatened to kill her, her mother and her son. (Bibbons: Tr. 504-05.) Officers Bibbons and Correa obtained a description and picture of Gillespie from Brooks, and at approximately 4:40 p.m., they performed a vertical search of the building, checking each of the twelve floors and the two stairwells. (Bibbons: Tr. 437-42, 485-91; Correa: Tr. 522-25.) The officers prepared a a report and left the building without having found Gillespie. (Bibbons: Tr. 443, 473-74, 491; Correa: Tr. 525.)¹ Officer Bibbons testified that the building is locked, is not open to the public, and has signs warning "no trespassing and violat[o]rs would be prosecuted." (Bibbons: Tr. 444-45.)

1 On cross-examination, defense counsel brought out that in the domestic incident report Brooks wrote for the police, she wrote that Gillespie threatened to shoot her but not that he threatened to fire bomb her. (Gillespie: Tr. 596-97; see also Defense Closing: Tr. 674-75.) Defense counsel also argued that the officers did not do a vertical search, or not a thorough one, so that there was insufficient evidence that Gillespie left the building (and thus could not have illegally re-entered). (E.g., Defense Closing: Tr. 663-71, 683-85.)

Brooks testified that after the police left, she and her children were very upset, and they were too scared to even take a plate of food to her disabled and ailing mother who lived four blocks away. (Brooks: Tr. 561.) At around 6:45 p.m., Brooks and her children heard a knock at her door, and as Brooks looked through the peep hole, she saw Gillespie "backing away from the door with something shiny in his hand which [Brooks] thought was to be a lighter." (Brooks: Tr. 561-62, 593, 598.) Brooks smelled smoke and fire, but was afraid to open the door until she heard her neighbors in the hallway. (Brooks: Tr. 562-63, 598-99.) When she opened the door, she saw "what [she] thought to be a [M]olotov cocktail," but upon closer inspection, she realized it was empty. (Brooks: Tr. 563, 569, 601-02.) Immediately, she closed and locked the door and called the police. (Brooks: Tr. 564.) Brooks said that even though it was empty, "it didn't make me feel a whole lot better because I thought he could still do this at any time . . . and I was afraid . . . for my life." (Brooks: Tr. 569.) She added that she felt it was "like more than a warning that he's going to try to kill [her] and it's not just [her], it's [her] children and to [her] nothing that any kind of argument doesn't warrant that." (Brooks: Tr. 618-19.)

Officers Bibbons and Correa returned at around 7:00 p.m. and "intersected" Gillespie standing outside behind Brooks' building. (Bibbons: Tr. 445-49, 492-94; Correa: Tr. 526-27.) After asking Gillespie to identify himself, the officers handcuffed him; Officer Correa remained with Gillespie while Officer Bibbons went upstairs to Brooks' apartment where, directly in front of Brooks' door, he saw the bottle with "a little smoke coming from the top of it." (Bibbons: Tr. 451-54; 494-95; Correa: Tr. 527-28.) Officer Bibbons testified that "the first thing I did think I thought it was a Molotov cocktail." (Bibbons: Tr. 453-54, 511.) When Officer Bibbons noticed "the paper . . . wasn't actually burning," he picked up the bottle and discovered that "it was a 22 ounce [B]allentine beer bottle it had a brown paper bag stuffed in it and it had a little bit of liquid on the bottom." (Bibbons: Tr. 454, 458, 512.) The liquid did not smell like gasoline. (Bibbons: Tr. 497-98.) Officer Correa testified that when Officer Bibbons later showed him the bottle, "it looked like a Molotov cocktail." (Correa: Tr. 528.)

At trial, both sides made clear that the "Molotov cocktail" was a fake that could not explode because the liquid in it was not ignitable. The prosecutor, in his opening statement, said that it was simply "a bottle with a piece of paper in it. It wasn't a real Molotov cocktail. It couldn't have exploded." (State Opening: Tr. 403.) The prosecutor noted that the evidence about the bottle was to show the jury that the bottle "looked frightening. Looked threatening. Looked like a Molotov cocktail." (State Opening: Tr. 404.) A photograph of the bottle taken at the precinct and the bottle itself were introduced into evidence. (Tr. 457-60; see also, Correa: Tr. 532-33.) Brooks testified that the beer bottle did not come from her apartment, because she kept no alcoholic beverages around, and she did not see Gillespie drink beer or bring beer to her apartment that day. (Brooks: Tr. 565-66.)

Due to the incident, Brooks was "very upset" and "much more visibly shaken th[a]n [when the officers were] there the first time." (Bibbons: Tr. 455.) Brooks told Officer Bibbons about smelling the smoke and seeing Gillespie, and that she was "really frightened . . . scared." (Bibbons: Tr. 513-15.) The prosecutor argued that Gillespie was angry with and intended to scare Brooks, and knocked on her door so that she would know what he did. (State Closing: Tr. 698, 701-02, 718.) "He knocked and he lit the paper so she could smell the smoke . . . Imagine smelling smoke after the defendant had told you I'm going to burn you out." (State Closing: Tr. 718-20.) The prosecutor explained that the jury should consider Gillespie's "threats and look at the context of their relationship" to understand that Gillespie willfully and purposely intended to put Brooks in fear for her life. (State Closing: Tr. 718-19.)

After Gillespie was arrested, he called Brooks six to ten times from jail, apologized for "Thanksgiving Day," said that "he didn't mean it," and tried to convince Brooks not to appear in court so that he would not have to be in jail. (Brooks: Tr. 570-73, 618.) Verdict and Sentence

The jury found Gillespie guilty of second degree burglary. (Verdict: Tr. 783-86.)² On September 27, 1999 Gillespie was sentenced to fifteen years imprisonment as a predicate felon. (9/27/99 Sentencing Transcript at 6-7, 19-21.)

2 Because the prosecution had two theories — either that Gillespie re-entered Brooks' building to menace her or remained in the building after she told him to leave in order to menace her (e.g., Tr. 721-22), the judge used a special verdict sheet:

With respect to the verdict sheet, . . . I'm going to ask the jury if they find the defendant guilty of burglary in the second degree, to check off whether it is on the basis of unlawfully entered with intent to commit a crime therein or he unlawfully remained with the intent to commit a crime therein.

(Tr. 725-26.) The judge said he did this because the defense disagreed that unlawfully remaining could constitute burglary, so this would give the appellate courts a clear record which a general verdict would not. (Tr. 726, 772-73; see also Charge: Tr. 758-79 (explaining the elements of second degree burglary to the jury, under both the unlawful entry and unlawful remaining theories, in order to commit "menacing," which the judge also explained).) The defense objected to the verdict sheet. (Tr. 777.) The jury found Gillespie guilty under the unlawful re-entry theory. (Verdict: Tr. 783-86.)

Gillespie's Direct Appeal

Gillespie's appointed appellate counsel filed a brief raising two issues: that the annotated special verdict sheet was improper and that the trial judge had penalized Gillespie for exercising his right to trial by significantly increasing his sentence over the offered plea sentence of five years. (Ex. A: Gillespie 1st Dep't Br. at 8-12, 13-15.)³

3 References to Exhibits ("Ex.") are to the exhibits to the affidavit of Assistant Attorney General Danielle L. Attias, Dkt. No. 7.

Gillespie filed a supplemental pro se brief to the First Department, claiming that:

(1) the trial judge erred in submitting jury instructions on menacing when the menacing claim was withdrawn, and that the evidence of "burglary" was insufficient (Ex. B: Gillespie Supp. Pro Se 1st Dep't Br. at 6-7); and (2) he was deprived of a fair trial and due process by cumulative trial errors including: (i) admission of prior bad acts evidence, (ii) introduction of the "Molotov cocktail" to prove intent to menace when the police lab report was negative, (iii) refusing to exclude a juror whose husband had been killed in a terrorist bombing, (iv) biased remarks by the trial judge, (v) submitting the unlawfully remained theory to the jury, and (vi) insufficient evidence of burglary (Ex. B: Gillespie Supp. Pro Se 1st Dep't Br. at 7-11).

The First Department affirmed Gillespie's conviction. People v. Gillespie, 287A.D.2d 288, 731 N.Y.S.2d 21 (1st Dep't 2001). The bulk of its opinion dealt with the annotated verdict sheet, which the First Department found proper and, in any event, not prejudicial to Gillespie. Id. at 288-89, 731 N.Y.S.2d at 23. The First Department also held:

We have reviewed defendant's other points, including those raised pro se, and find them to be without merit.

Id. at 289-90, 731 N.Y.S.2d at 23.

Gillespie's appellate counsel sought leave to appeal to the New York Court of Appeals, indicating two issues presented: (1) the annotated verdict sheet and (2) the sentencing issue. (Ex. E: 11/13/01 Letter to N.Y. Ct. App.) Appellate counsel submitted a three page single-spaced follow-up letter, dealing with the annotated verdict sheet issue. (Ex. E: 12/10/01 Letter to N.Y. Ct. App.) That letter ended by stating:

The need for guidance from this Court is clear. Appellant thus respectfully requests that this leave application be granted. The relevant minutes are enclosed, as is the supplemental pro se brief appellant filed in the First Department. . . . (Ex. E: 12/10/01 Letter to N.Y. Ct. App. at 3.) The prosecutor's response letter addressed only the annotated verdict sheet issue. (Ex. F: State 12/21/01 Letter to N.Y. Ct. App.)

On March 15, 2002, the New York Court of Appeals denied leave to appeal. People v. Gillespie, 97 N.Y.2d 754, 742 N.Y.S.2d 614 (2002).

Gillespie's C.P.L. § 440 Motion

Gillespie filed a pro se C.P.L. § 440.10 motion to vacate the judgment on November 8, 2001 claiming, in relevant part: (1) aBrady violation for failure to provide the police lab report; (2) prosecutorial misconduct in submitting the bottle as evidence to mislead the grand jury and petit jury and improper prosecutorial instructions to the grand jury; and (3) insufficient evidence to prove intent to commit the underlying offense of menacing. (Ex. H: Gillespie C.P.L. § 440 Motion.)

On July 26, 2002, the trial judge denied Gillespie's motion, noting that every issue raised was "procedurally barred because it was either previously decided on appeal, could have been raised on appeal but was not, or was not preserved at trial." (Ex. I: 7/26/02 Justice Corriero Decision at 2.) In addition, Justice Corriero held that none of the issues raised in Gillespie's § 440 motion had substantive merit. (Ex. I: Justice Corriero Decision at 3-5.)⁴

4 Gillespie moved for reconsideration of the denial of his C.P.L. § 440 motion on August 15, 2002. (Ex. M: Gillexpie § 440 Notice of Motion for Reconsideration.) Justice Corriero denied the motion to reconsider on November 12, 2002. (Ex. N: 11/12/02 Justice Corriero Decision on Motion for Reconsideration.)

On August 26, 2002, Gillespie sought leave to appeal the denial of his § 440 motion to the First Department. (Ex. J: Gillespie Notice of Motion to Appeal.) The First Department denied leave to appeal on October 22, 2002. (Ex. L: 1st Dep't Certificate Denying Leave.)

Gillespie's Coram Nobis Petition

On September 3, 2002, Gillespie filed an application for a writ of error coram nobis to the First Department, alleging that his appellate counsel was ineffective for not arguing on appeal that Gillespie was denied a fair trial based on: (1) absence of defendant at trial; (2) trial court concealing jury notes from defense counsel; and (3) trial court's failure to issue supplemental jury instructions in response to a jury note. (Ex. O: Gillespie Coram Nobis Br. at 7-9, 14.)

On July 10, 2003, the First Department denied Gillespie's coram nobis application, and the New York Court of Appeals denied leave to appeal. People v. Gillespie, 307 A.D.2d 782, 764 N.Y.S.2d 59 (1st Dep't), appeal denied, 100 N.Y.2d 642, 769 N.Y.S.2d 208 (2003).

Gillespie's Federal Habeas Corpus Petition

Gillespie filed his present federal habeas corpus petition on October 27, 2003, alleging: (1) prosecutorial misconduct by submitting insufficient evidence to the grand jury (Dkt. No. 2: Pet. ¶ 13(1)); (2) the prosecutor violated the Brady rule by failing to give defense counsel the police laboratory report showing that the substance in the bottle was not ignitable (Pet. ¶ 13(2)); (4) he was denied his due process right to a fair trial due to: (i) admitting Molineux prior bad acts evidence even though the menacing charge had been withdrawn, (ii) failing to dismiss a juror whose "first husband was killed in a terrorist bombing," (iii) failing to issue a supplemental instruction to the jury, (iv) concealing jury notes from defense counsel, and (v) depriving petitioner of his right to be present during read-back of the jury's notes (Pet. ¶ 13(3)); and (5) he was denied effective assistance of appellate counsel (Pet. ¶ 13(4)).

ANALYSIS

I. THE AEDPA REVIEW STANDARD ⁵

5 For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see, e.g., Castro v. Fisher, 04 Civ. 0346, 2004 WL 1637920 at *12-14 (S.D.N.Y. July 23, 2004) (Peck, M.J.); Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL 1627220 at *7-9 (S.D.N.Y. July 21, 2004) (Peck, M.J.); Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *8-10 (S.D.N.Y. June 16, 2004) (Peck, M.J.); Brown v. Fischer, 03 Civ. 9818, 2004 WL 1171277 at *4-6 (S.D.N.Y. May 27, 2004) (Peck, M.J.); Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at *10-13 (S.D.N.Y. Mar. 19, 2004) (Peck, M.J.);Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *22-24 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Hernandez v.Filion, 03 Civ. 6989, 2004 WL 286107 at *8-10 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *14-16 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *12-14 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing my earlier cases); 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, 2002) (Scheindlin, D.J.), aff'd, No. 02-2540, 368 F.3d 179 (table), 2004 WL 1094269 (2d Cir. May 18, 2004); 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), cert. denied, 537 U.S. 1245, 123 S.Ct. 1353 (2003);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, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 538 U.S. 978, 123 S.Ct. 1787 (2003).

Before the Court can determine whether Gillespie 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).⁶

6 See also, e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 124 S.Ct. 1713 (2004);Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)); Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners.").

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 1519.⁷ 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 1523.⁸ "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., DelValle v. Armstrong, 306 F.3d at 1200.

7 Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert. denied, 124 S.Ct. 962 (2003); 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 So. Ct. 865 (2001).

8 Accord, e.g., Yarborough v. Alvarado, 124 S.Ct. 2140, 2147 (2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2534 (2003); Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 124 S.Ct. 2171 (2004); Parsad v. Greiner, 337 F.3d at 181; DelValle v.Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v.Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v.Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S.Ct. 251 (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 1519-20.⁹

9 Accord, e.g., Price v. Vincent, 538 U.S. 634, 123 S.Ct. 1848, 1853 (2003); Lockyer v. Andrade, 123 S.Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v.Armstrong, 306 F.3d at 1200; 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 So. Ct. at 1523.¹⁰ However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "anunreasonable application of federal law is different from an incorrect application of federal law." Id. ¹¹ Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.¹² "Objectively unreasonable" is different from "clear error."Lockyer v. Andrade, 538 U.S. at 75, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, 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 (quotingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).¹³ "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v.Alvarado, 124 S.Ct. at 2149.¹⁴

10 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2534-35; Parsad v. Greiner, 337 F.3d at 181.

11 See also, e.g., Yarborough v. Alvarado, 124 So. Ct. at 2150; Wiggins v. Smith, 123 S.Ct. at 2535; Price v.Vincent, 123 S.Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 360 (2002)); Lockyer v.Andrade, 538 U.S. at 75, 123 S.Ct. at 1175; Eze v.Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

12 Accord, e.g., Yarborough v. Alvarado, 124 S.Ct. at 2150; Wiggins v. Smith, 123 S.Ct. at 2535; Price v.Vincent, 123 S.Ct. at 1853; Lockyer v. Andrade, 538 U.S. at 75, 123 S.Ct. at 1174-75; Woodford v. Visciotti, 537 U.S. at 25-27, 123 S.Ct. at 360-61; Eze v. Senkowski, 321 F.3d at 125; 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.

13 Accord, e.g., Eze v. Senkowski, 321 F.3d at 125;Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Christie v.Hollins, 2003 WL 22299216 at *3.

14 The Supreme Court explained:

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.

Yarborough v. Alvarado, 124 S.Ct. at 2149.

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 45.¹⁵

15 Accord, e.g., Tueros v. Greiner, 343 F.3d at 591;Yung v. Walker, 296 F.3d at 135; see Yarborough v.Alvarado, 124 S.Ct. at 2150-51 ("The petitioner contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.") (citations omitted).

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 Early v.Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. Apr. 20, 2004) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.);Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("InSellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference.").¹⁶ "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v.Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).¹⁷ Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v.Herbert, 331 F.3d at 230.

16 Accord, e.g., Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81; Cotto v.Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v.Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S.Ct. 694 (2002); Norde v.Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
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., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v.Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

17 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'"Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

Gillespie's ineffective assistance of appellate counsel claim, raised in his coram nobis petition, was denied by the First Department without opinion. People v. Gillespie, 307 A.D.2d 782, 2003 N.Y. App. Div. LEXIS 8136 (1st Dep't), appeal denied, 100 N.Y.2d 642, 769 N.Y.S.2d 208 (2003). Thus, AEDPA deference applies. See, e.g., Sellan v. Kuhlman, 261 F.3d at 312;Jenkins v. Artuz, 294 F.3d at 291.

As to Gillespie's other claims, as discussed below, since the claims are procedurally barred, the Court will not review the merits of the claims, and thus the merits AEDPA review standard does not come into play.

II. GILLESPIE'SHABEAS CLAIMS, OTHER THAN HIS INEFFECTIVE APPELLATE COUNSEL CLAIM, ARE PROCEDURALLY BARRED FROM HABEAS REVIEW

Gillespie's first three habeas claims — prosecutorial misconduct, Brady violation, and denial of a fair trial (Dkt No. 2: Pet. ¶¶ 13(1)-(3)) — are procedurally barred from habeas review because: (a) the claims he raised in his supplemental pro se brief to the First Department were not presented to the New York Court of Appeals, and (b) the claims he raised in his C.P.L. § 440 motion were denied on an adequate and independent state procedural ground. A. The Exhaustion Doctrine: Background ¹⁸

18 For additional decisions by this Judge discussing the unexhausted but deemed exhausted and procedurally barred doctrine in language similar to that in this section of this Report Recommendation, see, e.g., Castro v. Fisher, 04 Civ. 0346, 2004 WL 1637920 at *26-27 (S.D.N.Y. July 23, 2004); Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL 1627220 at *10-11 (S.D.N.Y. July 21, 2004); Hernandez v. Fillion, 03 Civ. 6989, 2004 WL 286107 at *16-17 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.),report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.); Maldonado v. Greiner, 01 Civ. 0799, 2003 WL 22435713 at *26 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Wilder v. Herbert, 03 Civ. 397, 2003 WL 22219929 at *6-9 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.);; Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *30-32 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *6-8 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.);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.) (citing my prior opinions); 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).¹⁹ 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, 526 U.S. at 845, 119 S.Ct. at 1732.

19 See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 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 So. Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984).

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, 526 U.S. at 843-48, 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 Gen., 696 F.2d at 191.²⁰ 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., Cox v. Miller, 296 F.3d at 99; 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:

20 Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir.), cert. denied, 124 S.Ct. 804 (2003); Cox v.Miller, 296 F.3d 89, 99 (2d Cir. 2002), cert. denied, 123 So. Ct. 1273 (2003); 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.

Daye v. Attorney Gen., 696 F.2d at 194.²¹ B. Gillespie's Claims Raised In His Supplemental Pro Se Brief To The First Department Are All Unexhausted and Procedurally Barred 1. Gillespie's Claims Are Unexhausted Because Gillespie Failed to Present Them to the New York Court of Appeals

21 Accord, e.g., Cox v. Miller, 296 F.3d at 99;Ramirez v. Attorney Gen., 280 F.3d 87, 95 (2d Cir. 2001);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.

On direct appeal, Gillespie's appellate counsel raised two claims before the First Department, and Gillespie raised additional claims in his supplemental pro se brief. (See pages 8-9 above.) The First Department denied the claims in Gillespie's pro se brief as "without merit." People v. Gillespie, 287 A.D.2d 288, 289-90, 731 N.Y.S.2d 21, 23 (1st Dep't 2001); see page 9 above. Gillespie's appellate counsel's letter to the New York Court of Appeals seeking leave to appeal presented two issues for appeal: (a) the annotated verdict sheet, and (b) a sentencing issue. (Ex. E: 11/13/01 Letter to N.Y. Ct. App.; see page 9 above.)²² Defense counsel's follow-up letter to the New York Court of Appeals spent three single spaced pages talking about the annotated verdict sheet issue, then ended with this paragraph:

22 Counsel's initial letter to the Court of Appeals stated:

Pursuant to C.P.L. 460.20, I am submitting this letter as an application for permission to appeal to the Court of Appeals in the above-named case. . . . I am enclosing copies of the briefs filed in the Appellate Division and that Court's decision, with notice of entry.

The issues presented are (1) whether the submission, without defense counsel's consel's consent, of an annotated verdict sheet, requiring the jury to choose between two alternate theories of burglary, constituted reversible error, and a new trial must therefore be ordered; and (2) whether the sentencing court impermissibly penalized appellant for exercising his right to a trial, by sentencing him to 15 years' imprisonment, a term three times as long as that offered for a plea.

(Ex. E: 11/13/01 Letter to N.Y. Ct. App.)

The need for guidance from this Court is clear. Appellant thus respectfully requests that his leave application be granted. The relevant minutes are enclosed, as is the supplemental pro se brief appellant filed in the First Department. . . .

(Ex. E: 12/10/01 Letter to N.Y. Ct. App.; see pages 9-10 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, 173 (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 Gen., 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.");Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *12 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *16 (S.D.N.Y. May 15, 2002) (Peck, M.J.).

A mere reference to Gillespie's supplemental pro se First Department brief is not sufficient to have exhausted the claims in the New York Court of Appeals, especially in light of the lengthy discussion of the two separate claims by his appellate counsel. 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 referred to only 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). Subsequent cases have extended Grey to situations where, as here, the defendant discussed one or more issues at length and also referred to enclosed Appellate Division briefs, without specifically asking that the Court of Appeals review the other issues in the enclosed briefs.²³

23 See, e.g., Diguglielmo v. Smith, 366 F.3d 130, 134-135 (2d Cir. 2004) (declining petitioner's request to overrule the Grey v. Hoke and Jodan v. Lefevre principle that merely attaching an appellate brief without explicitly alerting the New York Court of Appeals to each claim raised does not fairly present such claims for exhaustion purposes);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 Gen., 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."); Figueroa v. Greiner, 2002 WL 31356512 at *12-13 (merely attaching and mentioning First Department brief is not sufficient to exhaust claims in the New York Court of Appeals especially in light of lengthy discussion of other claim); 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, 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) (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 '[f]or all of the foregoing reasons stated in appellant's brief.'"), aff'd, No. 02-2399, 82 Fed. Appx. 48, 2003 WL 22454487 (2d Cir. Oct. 29, 2003), cert. denied, 124 S.Ct. 1687 (2004); 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. 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.'"), aff'd, 320 F.3d 185 (2d Cir.), cert. denied, 124 S.Ct. 413 (2003); Kirby v. Senkowski, 141 F. Supp.2d 383, 391-93 (S.D.N.Y. 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), aff'd, No. 01-2347, 61 Fed. Appx. 765, 2003 WL 1973614 (2d Cir. Apr. 23, 2003); 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.) ( cases cited therein) (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); Brooks v. Kelly, No. 88-CV-0631, 1993 WL 350188 at *3 (W.D.N.Y. Sept. 10, 1993) ("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.") (citations omitted).

In 2000, the Second Circuit revisited Grey in two cases. InJordan v. LeFevre, 22 F. Supp.2d at 267, the petitioner clearly raised his Batson claim in his letter seeking leave to appeal to the New York Court of Appeals, but "[a]fter discussing the Batson issue at length, Jordan's counsel asked for leave to appeal '[f]or all of these reasons and the reasons set forth in his Appellate Division briefs,' and noted that '[i]n support of his application, Mr. Jordan relies on this letter and on the briefs he filed in the Appellate Division.'" Jordan v.LeFevre, 22 F. Supp.2d at 267. This Court held the non-Batson claims to be unexhausted, and the Second Circuit affirmed that view, explaining that "arguing one claim in his letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction. . . . Counsel may not transfer to the state courts the duty to comb through an applicant's appellate brief to seek and find arguments not expressly pointed out in the application for leave." Jordan v.LeFevre, 206 F.3d at 199 (emphasis added). The Second Circuit affirmed the exhaustion issue "substantially for the reasons set out in [this Court's] thorough opinion and order. . . . Jordan v. LeFevre, 22 F. Supp.2d 259, 266-69 (S.D.N.Y. 1998)."Jordan v. LeFevre, 206 F.3d at 199.²⁴

24 The second of those Second Circuit cases, Morgan v.Bennett, 204 F.3d 360 (2d Cir.), cert. denied, 121 S.Ct. 59 (2000), does not require a different conclusion. In Morgan, the petitioner's counsel did not argue any of the petitioner's claims in detail in his leave to appeal letter to the New York Court of Appeals. 204 F.3d at 369. Instead, petitioner's counsel's letter commenced with a brief description of the judgment of conviction and the Appellate Division's affirmance of same. Id. The letter then concluded with the following language:

I am enclosing copies of the briefs filed in the Appellate Division and that Court's order and opinion. Please advise me of the judge designated to decide this application so that I may send that judge a follow-up letter in support of the application. We request this Court to consider and review all issues outlined in defendant-appellant's brief and pro se supplemental brief.

Morgan v. Bennett, 204 F.3d at 369-70 (emphasis added). After he was informed of the assigned judge, Morgan's counsel sent the assigned judge a follow-up letter — discussing one issue in detail and drawing the Court's attention to another issue raised in the petitioner's pro se brief. Id. at 370. The Second Circuit held that counsel's statement in her initial letter to the Court of Appeals which expressly "'request[ed] this Court to consider and review all issues outlined in defendant-appellant's brief and pro se supplemental brief' submitted to the Appellate Division" was "sufficiently specific to alert the Court of Appeals that Morgan sought review of all of the issues raised in his pro se supplemental Appellate Division brief." Id. at 370-71. In distinguishing Morgan in Jordan, the Second Circuit made clear that it was the explicit request to review all issues in the Appellate Division briefs that made the difference: "Had appellant more clearly stated that he was pressing all of the claims raised in the attached brief, or had his letter made no argument in detail but rather only 'request[ed that the Court of Appeals] consider and review all issues outlined in defendant-appellant's brief, 'the result here would be different and the remaining claims would have been fairly presented to the Court of Appeals." Jordan v. LeFevre, 206 F.3d at 199 (citingMorgan v. Bennett, 204 F.3d at 370-71). Here, there was no such request to review all of the issues in Gillespie's pro se First Department brief.

Here, as in Jordan, Gillespie's counsel merely made a passing reference to his pro se First Department brief in his leave application that discussed the verdict sheet claim in great detail. Such an indirect reference is insufficient under Grey and Jordan to put the New York Court of Appeals on notice that it should review the claims in Gillespie's pro se brief as well, and would require state courts to look for a "needle in a hay stack" while a petitioner argues "one claim in his letter while attaching an appellate brief without explicitly alerting the state court to each claim." Jordan v. LeFevre, 206 F.3d at 198-99.

Thus, Gillespie did not fairly present the claims in his supplemental pro se First Department brief, and, as such, they are unexhausted for purposes of habeas review.

2. Gillespie's Claims Are Unexhausted But Deemed Exhausted and Procedurally Barred

Gillespie is now procedurally barred from raising these claims 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 117, 120-21 (2d Cir. 1991).²⁵

25 Accord, e.g., Maldonado v. Greiner, 01 Civ. 0799, 2003 WL 22435713 at *25-26 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.);Wilder v. Herbert, 03 Civ. 397, 2003 WL 22219929 at *7-9 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *31-32 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *13-14 (S.D.N.Y. Oct. 18, 2002 (Peck, M.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *20 (S.D.N.Y. May 15, 2002) (Peck, M.J.) ( cases cited therein);Bailey v. People of New York, 01 Civ. 1179, 2001 WL 640803 at *7 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Perez v. Greiner, 99 Cif. 11806, 2000 WL 915114 at *3 (S.D.N.Y. July 5, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *26 (S.D.N.Y. June 6, 2000) (Peck, M.J.); 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).

Thus, because Gillespie can no longer appeal the claims in his pro se appellate brief to the New York Court of Appeals, those claims are unexhausted but deemed exhausted and procedurally barred. Nor has Gillespie even argued "cause" (for the cause and prejudice exception), nor a showing of "actual innocence." Thus, his habeas claims raised in his pro se supplemental First Department brief are barred from habeas review.

C. Gillespie's Habeas Claims Raised in His C.P.L. § 440 Motion Were Denied on Adequate and Independent State Grounds and Thus Are Not Cognizable on Habeas Review ²⁶

26 For additional decisions by this Judge discussing the adequate and independent state ground doctrine, see, e.g., Castro v. Fisher, 04 Civ. 0346, 2004 WL 1637920 at *21 n. 30 (S.D.N.Y. July 23, 2004) (citing prior opinions).

The remaining claims (again, aside from the ineffective assistance claim) that Gillespie raises in his habeas petition were raised by him in his C.P.L. § 440 motion. (See page 10 above.) Because the trial judge denied Gillespie's § 440 motion on the ground that every issue raised was "procedurally barred because it was either previously decided on appeal, could have been raised on appeal but was not, or was not preserved at trial." (Ex. I: 7/26/02 Justice Corriero Decision at 2.) Those grounds present an adequate and independent procedural bar to habeas review of the claims raised in Gillespie's C.P.L. § 440 motion.

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).²⁷

27 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);Reyes 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, 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.

The trial judge denied Gillespie's § 440 motion on the grounds,inter alia, that the claims were raised on direct appeal or could have been raised on direct appeal, citing C.P.L. § 440(10)(2)(a), (c) 3(a).²⁸ (See page 10 above.)

28 C.P.L. § 440.10 provides in pertinent part:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:

(a) The ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue; or . . .

(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . .

3. Notwithstanding the provisions of subdivision one, the court may deny a motion to vacate a judgment when:

(a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal. This paragraph does not apply to a motion based upon deprivation of the right to counsel at the trial or upon failure of the trial court to advise the defendant of such right. . . .

The cases in this Circuit hold that C.P.L. § 440.10(2) is an "adequate and independent" state procedural ground barring federal habeas review. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Dorsey v. Irvin, 56 F.3d 425, 426 (2d Cir. 1995); Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (§ 440.10(2)(c) is adequate and independent state ground); Ramos v. Costello, 96 Civ. 3659, 1997 WL 231129 at *2 (S.D.N.Y. May 7, 1997) ("The procedural ground on which the state court denied his § 440.10 motion" — "namely, that they were barred by a New York rule precluding claims that could have been raised on direct appeal but were not" — "is an independent and adequate state ground that prevents him from asserting those claims in a federal habeas corpus proceeding absent cause and prejudice."); Wells v. LaFavre, 96 Civ. 3417, 1996 WL 692003 at *3 (S.D.N.Y. Dec. 2, 1996) ("C.P.L. § 440.10(2) presents an adequate and independent state ground for denying Petitioner relief.").²⁹

29 See also, e.g., Flowers v. Irvine, No. 94-CV-2240, 1995 WL 669913 at *4 (E.D.N.Y. Oct. 31, 1995) ("The state court dismissed his claim as 'procedurally defective' because he could have argued this claim previously on direct appeal to the Appellate Division . . . and did not. The decision of the state court in this case clearly rested on state law."); Sykes v.Scully, No. 90-CV-4302, 1992 WL 151896 at *2 (E.D.N.Y. June 16, 1992) ("§§ 440.10(2)(a) and 440.20(2) mandate that such claims are barred from review. This court therefore treats such claims as exhausted and procedurally barred under state law . . .");Esquilin v. Walker, No. CV-91-4608, 1992 WL 151903 at *3 (E.D.N.Y. June 16, 1992) ("Collateral review is barred since the claim was raised on direct appeal to the Appellate Division. N.Y.C.P.L. § 440.10(2)(a) (collateral review unavailable for claims raised on direct appeal). . . . Therefore, the claim of prosecutorial misconduct must be denied as barred by an independent and adequate state procedural ground."), aff'd, 990 F.2d 624 (2d Cir. 1993).

Because there is an adequate and independent finding by the state § 440 court that Gillespie had procedurally defaulted on all of the claims in his § 440 motion, Gillespie 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. Gillespie does not allege cause, prejudice or a fundamental miscarriage of justice.

* * * * *

Thus, all of Gillespie's habeas claims, except his ineffective assistance of appellate counsel claim, are procedurally barred, and this Court need not, and will not, reach the merits of those claims.

IV. GILLESPIE'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SHOULD BE DENIED A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ³⁰ 1. The Strickland Standard

30 For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see, e.g., Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at *20-22 (S.D.N.Y. Mar. 19, 2004); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *39 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *27 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26-28 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.);Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.). report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.);Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.) (citing my earlier opinions on this issue); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, No. 02-2540, 368 F.3d 179 (table), 2004 WL 1094279 (2d Cir. May 18, 2004); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 So. Ct. 1787 (2003).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord, e.g., Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v.Washington, 466 U.S. at 688, 104 S.Ct. at 2064.³¹

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).³²

31 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 1850 (2002).

32 Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 So. Ct. at 2068-69. Put another way, the "defendant must show 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, 104 S.Ct. at 2068.³³

33 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S.Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).

"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 So. Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 So. Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 ("The result of a 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."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953; cf. id. at 297-301, 119 S.Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'"Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quotingStrickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.³⁴

34 Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.³⁵

35 See also, e.g., Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 5-6 (2003); Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted);Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d at 199. 2. Strickland and Appellate Counsel

The Strickland test applies to appellate as well as trial counsel. See, e.g., Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 764 (2000).³⁶ A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v.Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *18 n. 30 (S.D.N.Y. May 31, 2002) (Peck, M.J.) (discussing the issue of whether a federal or state standard should apply), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, No. 02-2540, 368 F.3d 179 (table), 2004 WL 1094269 (2d Cir. May 18, 2004).

36 Accord, e.g., Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37 (1985); Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 197 (2d Cir. 2002),cert. denied, 537 U.S. 1146, 123 S.Ct. 946 (2003); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v.Kuhlman, 261 F.3d 303, 319 (2d Cir. 2001); McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 520, 115 So. Ct. 81 (1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347 (1993);Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990).

Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)).³⁷ Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d 347, 371-72 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.).³⁸ Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85.

37 Accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); Mayo v. Henderson, 13 F.3d at 533.

38 Accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 S.Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216 (1984).

3. Strickland and the AEDPA Review Standard

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'"Aparicio v. Artuz, 269 F.3d 78, 95 n. 8 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(d)(1)).³⁹ "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision appliedStrickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852; see also Yarborough v.Gentry, 540 U.S. 1, 124 S.Ct. 1, 4 (2003).

39 See also, e.g., Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003); Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 1852 (2002); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

B. Gillespie's Claims of Ineffective Appellate Counsel Should Be Denied

Gillespie alleges that his appellate counsel was ineffective for failing to assert well reasoned arguments and, instead, asserting weak claims. (Dkt. No. 2: Pet. ¶ 13(4); e.g., Ex. O: Gillespie Coram Nobis Br. at 11.) Gillespie claims that the two issues raised for appellate review by his counsel were a "[d]ead bang argument with [no] merit," and that "had counsel challenged the colorable issue . . . the result of appellate direct appeal would have been different." (Ex. O: Gillespie Coram Nobis Aff. at 3.) Specifically, Gillespie's habeas petition claims appellate counsel failed to argue that he was denied a fair trial because of: (1) his absence at trial when the jury submitted notes; (2) the trial court's withholding jury notes from defense counsel; and (3) the trial court's failure to issue supplemental jury instructions. (Ex. O: Gillespie Coram Nobis Br. at 7-9, 14; Dkt. No. 2: Pet. ¶ 13(4).) While Gillespie criticizes appellate counsel for raising weak arguments, the claims Gillespie asserts his appellate counsel should have raised are totally without merit.

1. Counsel's Failure to Object to Gillespie's Absence at Trial

Gillespie asserts that appellate counsel should have raised on appeal his absence at the conclusion of trial. After the jury was given instructions and excused to deliberate (Tr. 769-77), defense counsel went back on the record in Gillespie's absence to record his objection to the jury instructions to claim that menacing should have been submitted to the jury as a "lesser included offense" (Tr. 779-82).

Under both federal and state law, a defendant in a state criminal trial "has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2533 n. 15 (1975); accord, e.g., Bryant v.Bennett, 00 Civ. 5692, 2001 WL 286776 at *3 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); see also, e.g., People v. Roman, 88 N.Y.2d 18, 25-26, 643 N.Y.S.2d 10, 14 (1996) (defendants have a right to be present at every "material stage" of trial where he "'can potentially contribute to the proceeding.'"; "[W]hen the proceeding involves a question of law or procedure, hearings on those matters do not involve any potential for meaningful input by a defendant, and presence is not required."); People v.Rolle, 4 A.D.3d 542, 543, 771 N.Y.S.2d 704, 705 (2d Dep't Feb. 23, 2004); People v. Russo, 4 A.D.3d 777, 777-78, 771 N.Y.S.2d 768, 768-69 (4th Dep't Feb. 11, 2004), appeal denied, ___ N.Y.S.2d ___ (May 14, 2004).

Gillespie was present during trial through the jury charge and had the opportunity to contribute and consult with his attorney, and was only absent when his attorney made an additional objection to the jury instructions to place it on the record for later appeal. Thus, Gillespie was not absent during a "material" stage of his trial. See, e.g., Rushen v. Spain, 464 U.S. 114, 119 n. 2, 104 S.Ct. 453, 456 n. 2 (1983) (the right to be present at all critical stages of the proceedings is subject to harmless error analysis), cert. denied, 495 U.S. 910, 110 So. Ct. 1937 (1990); Diaz v. Herbert, 317 F. Supp.2d 462, 475(S.D.N.Y. 2004). A defendant's presence is not required at discussions involving matters of law held simply to preserve the issue for appellate review. See, e.g., DePallo v. Burge, 296 F. Supp.2d 282, 289 (E.D.N.Y. 2003) (Weinstein, D.J.) (defendant's presence is not required in "circumstances involving matters of law or procedure that have no potential for meaningful input from a defendant." Specifically, it is not mandated at an ancillary proceeding where the purpose is "simply to place on the record matters which had already occurred," and to memorialize the matter for appellate review.); Key v.Artuz, No. 99-CV-161, 2002 WL 31102627 at *7 (E.D.N.Y. Sept. 16, 2002) ("A jury charge conference and sidebar discussions where only questions of law were addressed are not 'material' under this definition."); People v. Roman, 88 N.Y.2d at 25-26, 643 N.Y.S.2d at 14 ("[B]ecause only defense counsel (and not the defendant personally) may argue or choose a strategem when the proceeding involves a question of law or procedure, hearings on those matters do not involve any potential for meaningful input by a defendant, and presence is not required.").

2. Appellate Counsel's Failure to Object as to the Jury Notes and the Court's Lack of Supplemental Jury Instructions

After the jury began to deliberate, at 2:15 p.m., the jury submitted a note requesting to see the People's exhibit of the bottle. (Ex. U: Court Ex. 5, 2:15 p.m. note.) At 3:20 p.m., the jury's second note requested clarification on the use of circumstantial evidence and further explanation of the two addresses associated with Brooks' building's entrances. (Ex. U: Court Ex. 6, 3:20 p.m. note.) Shortly thereafter, at 4:00 pm, the judge received a note that the jury had reached a verdict. (Ex. U: Court Ex. 7, 4:00 p.m. note.) The minutes of the trial reflect no discussion or response to the first two notes. (See Tr. 782-83.) Gillespie was returned to court and the verdict received. (Tr. 783-86.)

Gillespie's appellate counsel thoroughly explained to Gillespie her decision not to appeal about the judge's failure to respond to the jury notes. (Ex. O: Gillespie Coram Nobis Pet., Att. Ex. A: 5/17/02 letter.) Appellate counsel legitimately reasoned that the forty minutes between the jury's second note and their reaching a verdict demonstrated that the jury solved the question for themselves, and Gillespie was not prejudiced by the court's failure to further instruct the jury. (Id.) Appellate counsel further advised Gillespie that the jury's findings rested on their believing Brooks' testimony, rather than any problem with the "very good and very detailed" jury instructions. (Ex. O: Gillespie Coram Nobis Pet., Att. Ex. A: 6/7/02 letter.)

Appellate counsel made a reasonable professional judgment that the better course was to pursue the stronger issue on appeal (i.e., the annotated verdict form), rather than Gillespie's minor arguments about the jury notes (which are meritless). The decision to respond to a jury note turns on the precise circumstances of each case and is within the sound discretion of the trial judge. See, e.g., United States v. Young, 140 F.3d 453, 456-57 n. 2 (2d Cir. 1998) (where judge failed to respond to a jury note before taking the verdict when no further request for instruction from the jury was received, it was not plain error); see also, e.g., United States v. Shomorin, No. 03-16606, 97 Fed.Appx. 753, 754, 2004 WL 1161447 at *1 (9th Cir. May 19, 2004) (District Court's failure to respond to a jury note seeking clarification of jury instruction was harmless error because it did not have a "substantial and injurious effect or influence in determining the jury's verdict," quoting Brecht v.Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714 (1993));Franza v. Stinson, 58 F. Supp.2d 124, 146 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.) (the jury, not the petitioner, is the best judge of whether the jury received a meaningful response to its jury notes and whether it needed further instruction). It is well-settled that appellate counsel cannot be faulted for failing to raise a meritless claim. E.g., Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at *23 (S.D.N.Y. Mar. 19, 2004) (Peck, M.J.); see, e.g., Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *34 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *28 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v.Greiner, 01 Civ. 799, 2003 WL 22435713 at *41 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.) ( cases cited therein.)

In any event, the Court cannot say that the First Department unreasonably applied Strickland to these facts. Accordingly, under the deferential AEDPA review standard, Gillespie's claim of ineffective appellate counsel should be denied.

CONCLUSION

For the reasons discussed above, Gillespie'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 receipt 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 Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. 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).