Opinion
01-CV-8523 (JBW); 03-MISC-0066 (JBW)
October 16, 2003
MEMORANDUM JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed December 19, 2001. Petitioner (sometimes referred to as defendant) claims:
1) Evidence was insufficient to prove petitioner's guilt beyond a reasonable doubt.
2) State court arbitrarily denied petitioner the chance to demonstrate that his appellate counsel was ineffective.
The evidence supports the following statement:
At 9;30 a.m. on June 10, 1996, Rebecca Gonzalez was awakened by the sounds coming from the front door to her basement apartment. She picked up a hammer that was at her bedside and went into the living room. There, she saw petitioner — whom she had never seen before — holding her television set (R. Gonzalez: 295-296, 307-309), The lights were on in the living room, and Ms. Gonzalez had an unobstructed view of petitioner's face. Ms. Gonzalez asked petitioner what he was doing, and he ran (R. Gonzalez: 296, 299, 309).
She chased after petitioner without over losing sight of him. He ran into the other apartment in the basement, and she chased him into the kitchen. Petitioner then turned around. faced her. and said, "Get out of here" (R. Gonzalez, 300, 309-310J, Fearful, Ms. Gonzalez left the apartment to alert the owner of the building, Alfonso Bienvenido, who lived in another apartment (R. Gonzalez: 300, Bienvemido: 321).
After speaking with Mr. Bienvenido, Ms. Gouzalez went back to her apartment, where she saw that her front door was "destroyed." Neither the chain nor the "plate." worked, and she could not lock the door (R. Gonzalez: 301-302, 311). Her television and her other belongings were still in the apartment (R. Gonzalez; 313). Ms. Gonzalez left the apartment building and called her husband, Henry Gonzalez; he came home from work (R, Gonzalez: 302; H. Gonzalez; 328), When he got there, Mr. Hernandez noticed that the front door was in a different condition from when he had left that morning. The lock was broken, and the left side of the door where the lock was, was damaged (H. Gonzalez: 329), The door was repaired at a cost of between $80 and $90 (R Gonzalez: 330).
Eight days later, on June 18, 1996, at about 7:00 p.m., the Hemandezes were standing in front of the apartment building when Ms. Hernandez saw petitioner enter the building with three other people. Mr. Gonzalez called the police (R. Hemandez: 303-304; H, Gonzalez: 331).
When Police Officer Alan Rodgers and his partner arrived, Ms. Gonzalez and her husband went with them to the other basement apartment — the same apartment that Ms. Gonzalez had chased petitioner into the day ho broke into her home — where, with her husband as an interpreter, Ms. Gonzalez pointed out petitioner to the police as the man she saw in her apartment on June 10, 1996 (R Gonzalez: 302-305, 214-317; H. Gonzalez: 332-333; Rodgers: 348-350).
Petitioner did not present any witnesses or evidence on his behalf (Proceedings: 335).
On March 4, 19 PS, petitioner was sentenced as a persistent violent felony offender to an indeterminate prison term of from sixteen years to lire for a burglary conviction to be served concurrently with a definite one-year prison term for a criminal mischief count.
In (he Appellate Division, petitioner argued that the prosecution failed to prove his guilt beyond a reasonable doubt because the sole eyewitness had little opportunity to observe the perpetrator, never gave the police a description of him, and first identified petitioner as the perpetrator one week after the burglary.
Petitioner sought permission tom the Appellate Division to file a prose supplemental brief and for copies of the transcripts of the state proceeding, On Match 17, 1999, the Appellate Division denied petitioner's motion.
In February 2000, petitioner made a pro se motion to the Appellate Division to reargue the denial of his motion to file a supplemental brief and for transcripts. The court denied this motion on March 9, 2000.
On August 14, 2000, four-judge panel of the Appellate Division, Second Department. unanimously affirmed petitioner's judgment of conviction, People v. Gonzalez, 275 A.D.2d 377. 713 N.Y.S.2d 123 (2d Dept. 2000). The court held that petitioner's legal sufficiency claim was unpreserved for appellate review. Viewing the evidence in the light most favorable to the prosecution it was legally sufficient to establish petitioner's guilt beyond a reasonable doubt. The court held that the verdict was not against the weight of the evidence. Id.
Petitioner sought leave to appeal the Appellate Divisions decision to the New York Court of Appals.
On November 9, 2000, petitioner's application for leave to appeal to the New York Court of Appeals was denied. People v. Gonzalez, 95 N.Y.2d 934, 721 N.Y.S.2d 611 (2000).
Subsequently, in January 2001, petitioner made a pro se motion in (he Appellate Division. seeking a free copy of the trial transcripts, Petitioner argued that the transcripts were necessary for him to file a coram nobis motion to show that he was denied the effective assistance of appellate counsel Petitioner argued that he needed the transcripts to show that appellate counsel was ineffective for failing to raise on appeal claims that the trial court failed to submit a lesser included offense to the jury and gave an improper reasonable doubt jury instruction.
On February 22, 2001, the Appellate Division denied this application.
In March 2001, petitioner submitted a pro se motion to the Appellate Division, seeking reargument of its decision denying him a free set of the trial transcripts. The court denied his application on May 3, 2001.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was Adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in me State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178, (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to (hat reached by [foe Supreme Court] on a question of law or if the state court decides a case differently than this Cowl has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identities the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly, Rather, that application must also be unreasonable." Id. at 411, In order to grant the writ there must be "sonic increment of incorrectness beyond error," although "the increment need not be great otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 221 F.3d 100, (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, AS determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug, 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir Aug. 7, 2003), Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filling of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1), This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App, LEXIS 6745, at *22 (2d Cir. 2003); see also Sup, Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24. 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosia v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or oilier collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are incompliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it most be lodged, and the requisite filing fee, . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application, See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000), "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further Appellate review is Unavailable under the particular state's procedures," Bennett, 199 F.3d at 120, Carey v. Saffold, 536 U.S. 214 (2002) (folding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not to 11 AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition he decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA Statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 73686, at *4 (S.D.N.Y. Feb. 23, 1998), But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within toe meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001). Dunean reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000), Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a property filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that ho acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA," Baldayaque v. United States, No. 02.2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking (he "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained.
If [the Imitations period] were interpreted as Petitioner argues, the result would be impractical A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court, to "continue" his federal remedy, without running a foul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114(2d Cir. 2000) (quoting Graham v. Johnson, 168 F.3d 762. 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989), "This exhaustion requirement is . . . grounded in principles of comity in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court" Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may MOW, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits. notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,"), In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived (he exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y, 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule. "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in 3 fundamental miscarriage of justice" Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial count's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with me rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" SO long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved, See Glenn v. Bartlett, 98 F.3d 721. 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit, `the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 310 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given. because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at * 15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comlty and finality that inform the concepts of cause and prejudice mast yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensuro that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful" Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizeble in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding,"), A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.*" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense," U.S. Const. amend, VI. This right to counsel is "the right to effective assistance of counsel," McMann v. Richardson, 397 U.S. 759, 771 n, 14 (1970) (emphasis added), The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of ("reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op, at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002), A "reasonable probability is "a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order. and "[i]f It is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001), The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation," Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691 Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical export was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.* Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it, See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 15923, at *34-*35 (S.D.N.Y, Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland lost was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Seully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745. 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for aw ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness" which Is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United Stares v. Agurs, 427 U.S. 97, 108 (1976), The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt (list would have existed on the record without it In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Walnwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This teat applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt. the relevant question, for this court is whether, after vie viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner "hears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Etnaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997), To the degree petitioner claims the verdict was against the weight of the evidence, such a claim docs not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615. 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20. 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20. 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JEW). 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniguez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op, at 6-13 (2d Cir. Aug. 7, 2003) (Public trial): Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 2003 U.S. Dist LEXIS 9886, at *12-*14 (E.D.N.Y, June 12 2003) (shifting burden of Proof), Jelinek v. Costella 247 F. Supp.2d 212, 266-67 (E.D.N.Y, 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11023, at *6(E.D.N.Y, June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13. 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the Jury's verdict," and that the error resulted in "actual prejudice." Brocht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless, if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694. 2003 U.S. App, LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
A.
When petitioner raised a claim on direct appeal that the state failed to prove his guilt of second-degree burglary and fourth-degree criminal mischief beyond a reasonable doubt, the Appellate Division rejected the claim because petitioner failed to preserve it for appellate review. Petitioner raises this same claim in his petition, It is barred from review in this, court because of petitioner's failure to comply with New York's preservation rule, Petitioner cannot show both cause and resulting prejudice for his procedural default, or, alternatively, that there would be a fundamental miscarriage of justice should the Court not review his claim.
A state court's reliance on a state procedural ground as a basis for rejecting a claimed violation of a state prisoner's constitutional rights constitute an "adequate and independent state ground" that generally precludes federal habeas review. Harris v. Reed, 489 U.S. 255, 261-62 (1989); see Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995). More specifically, a petitioner who failed — pursuant to state procedural law — to property preserve a claim for state appellate review is procedurally barred from obtaining federal habeas corpus review of that claim if the last reasoned opinion in the state courts contains a "plain statement" that the state court relied, at least in part, on the state procedural bar as the basis for rejecting the claim, Coleman v. Thompson, 501 U.S. 722, 739 (1091); Harris v. Reed, 489 U.S. at 261-62; Engle v. Issac, 456 U.S. 107, 124-25 (1982) (failure to make contemporaneous objection to jury instructions in compliance with state law constitutes a procedural default); Rosenfield v. Dunham, 820 F.2d 52, 54 (2d Cir), cert. denied, 484 U.S. 968 (1987) ("[w]hen a state appellate court refuses to consider the merits of a defendant's claims on account of his procedural failure to preserve his rights by objection at the time, then a federal court may not review those merits in a collateral habeas corpus proceeding").
Here, the Appellate Division's decision contains a plain statement that it was rejecting petitioner's legal sufficiency claim based on his failure to comply with state procedural rules. That COM specifically held that "[petitioner's] contention that the evidence was insufficient to establish his identity beyond a reasonable doubt as the perpetrator of the crimes is unpreserved for appellate review." People v. Gonzalez, 275 A.D.2d at 377; 713 N.Y.S.2d at 123. Under New York law, a defendant has to preserve a claim of error in the state trial court to be entitled to review of that claim in the appellate court, See N.Y. Crim. Proc. Law § 470, 05(2).
Constitutionally ineffective assistance of counsel can constitute cause only if an independent Sixth Amendment claim has been previously submitted to the state courts. See Edwards v. Carpenter, 529 U.S. 446 (2000); Murray v. Carrier, 477 U.S. at 468, The alleged ineffective-assistance-of-counsel claim must be exhausted like any other federal constitutional claim, even if the claim is being raised only to establish "cause" to excuse a procedural default regarding an unrelated constitutional claim, Id.; Murray v. Carrier, 477 U.S. at 488-491.
Petitioner cannot show that he would be prejudiced should the court not review his legal sufficiency claim because the claim has no merit. In a challenge to a state criminal conviction brought under 28 U.S.C. § 2254, a petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the ground that the evidence is insufficient to establish his guilt, Fama v. Commissioner of Correctional Services, 235 F.3d 804 (2d Cir. 2000), The avidence is viewed in the light most favorable to the prosection, and the petitioner is entitled habeas relief only if it is found that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319(1979); Fama v. Commissioner of Correctional Services, 235 F.3d at 804. Under this standard, a habeas court most draw all inferences and resolve all credibility issues in favor of the presecution. Jackson v. Virginia, 443 U.S. at 319. Moreover, a habeas court may neither "disturb the jury's findings with respect to witnesses' credibility" United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), not "make credibility judgements about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989). Under this "rigorous standard", a "federak habeas corpus court faced with a record of historical facts that suports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prsecution, and must defer to that resolution." Wheal v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994), quoting Jackson v. Virginia, 443 U.S. at 326.
Here, contrery to petitioner's claim, his identity as the man who broke into the Gonzalezes' home was established beyond a reasonable doubt. Because the lights were on, Ms. Gonzalez had ample opportunity to observe petitioner's face (R. Gonzalez, 296). In addition, Ms. Gonzalez chased petitioner into another apartment, where she again came face to face with him (K. Gonzalez, 309-310).
This calim has no merit.
B.
Petitioner claimed in state court that he was entitled to a free copy of the trial transcript properly prepare a coram nobis motion challenging the effectiveness of his appellate attorney. Petitioner now claims in this Court that the state court's decision not to provide him with a free copy of the transcripts arbitrarily denied him the opportunity to demonstrate that his appellate counsel was ineffective. Petitioner's contention that he was entitled to the transcripts to pursue his collateral remedies is not based on clearly established federal law.
Under the AEDPA, a state prisoner's habeas corpus petition "shall not be granted with respect to any claim that was adjudicated on the merits" in state court unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established" Supreme Court law, 28 U.S.C. § 2254(d)91). This standard requires deference to state-court determinations on the law and is different from the previous de novo standard because even an incorrect determination must be upheld if it is reasonable. Williants v. Taylor, 529 U.S. 362, 410 (2000).
"The threshold question is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court convictions became final." Williams v. Taylor, 529 U.S. at 390, A petitioner must "identify a clearly established Supremo Court precedent that hears on his claim." Loliscio v. Goord, 263 F.3d 178, 191 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.2d 303 (3d Cir. 2001). If petitioner has failed in this task, the District Court need go no further. Sellan v. Kuhlman, 261 F.3d at 309.
No Supreme Court case has held that a petitioner is entitled to a free set of the trial transcripts in order to prepare for collateral attacks on his judgment of conviction, While the Court has held that an indigent defendant is entitled to a free copy of the transcript to assist him or her on the direct appeal, Mayer v. City of Chicago 404 U.S. 189 (1971); Griffin v. Illinois, 351 U.S. 12 (1956), the Court has never held that there is a similar right when a defendant is pursuing a collateral motion in state court. See, e.g., Buford v. Henderson, 524 F.2d 147, 151 (2d Civ. 1975) (Supreme Court has never held that a defendant is entitled to free transcripts to pursue a habeas corpus petition in federal court). The Court has expressly left open the question of whether a defendant is entitled to a free set of the trial transcripts to pursue collateral remedies. See Wade v. Wilson, 396 U.S. 282 (1970).
Although petitioner claimed in his January 2, 2001 motion seeking the free transcripts that he needed the transcripts to show that appellate counsel improperly Failed to raise claims that the trial court's failure to submit a lesser included offense to the jury and to issue a proper reasonable doubt instruction, petitioner failed to show that he could not have brought these claims without the transcripts. In the state court, defendants, it is reported, routinely submit coram nobis motions challenging the effectiveness of their appellate counsel without the benefit of the trial transcripts. These motions are responded to by the prosecution and addressed by the courts, The Appellate Division, Second Department, reportedly retains one copy of the transcript should a defendant raise an issue that necessitates its use. Despite not having a copy of the trial transcripts, petitioner was not prevented from articulating claims challenging the effectiveness of his appellate counsel.
Appellate counsel appears to have filed an appropriate brief based upon the facts and law of the case. The brief was examined by this court. A transcript would not have helped.
This claim has no merit.
C.
No other possible claim is more than frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may, as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.