Opinion
01 Civ. 4316 (KMW)(DF)
August 30, 2002
Mr. Alfred Lewis, Elmira, NY, pro se Petitioner.
Beth J. Thomas, Esq., Assistant Attorney General, New York, NY, for Respondent.
REPORT AND RECOMMENDATION
INTRODUCTION
Pro se petitioner Alfred Lewis ("Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County. Upon a jury verdict, Petitioner was convicted of criminal possession of a weapon in the third degree, criminal possession of stolen property in the third degree, attempt to commit grand larceny in the third degree, and possession of burglars' tools, and was sentenced to an indeterminate term of 20 years to life imprisonment. He is currently incarcerated at Elmira Correctional Facility ("Elmira").
Petitioner was transferred to Elmira after he filed his petition, which names as respondent the Acting Superintendent of the facility where Petitioner was previously incarcerated. Although, under Rule 2(b) of Rules Governing Section 2254 Cases in the United States District Courts, the Superintendent of Elmira would now be the appropriate respondent in this matter, the substitution would not affect the Court's analysis of Petitioner's claim.
Petitioner challenges his conviction on the ground that the trial court abused its discretion in refusing to admit certain evidence necessary for Petitioner's defense, thereby violating his right to a fair trial. (See Pet. at 5.)
"Pet." refers to Petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254, received by this Court's Pro Se Office on April 30, 2001.
Respondent argues that Petitioner's claim should be dismissed as procedurally barred and/or without merit. (See Resp. Mem. at 7-16.) For the reasons set forth below, I recommend that the petition be dismissed.
"Resp. Mem." refers to Respondent's Memorandum of Law in opposition to the petition, dated July 24, 2001.
FACTUAL BACKGROUND
Just after 12:00 a.m. on December 1, 1996, Officer Fabio Arevalo ("Arevalo"), Officer DelRuggiero ("DelRuggiero") and Lieutenant Marks ("Marks") were patrolling the 19th Precinct (reaching from 59th Street to 96th Street on the East Side of Manhattan), dressed in plain clothes and in an unmarked car. (Tr. at 259-61.) The officers were assigned to that area as a "Sex Pattern Crime Detail," searching for a serial rapist. (Id. at 260.) At approximately 3:25 a.m., the officers, who were near 90th Street and First Avenue, received a radio transmission and proceeded to 92nd Street and Fifth Avenue. (Id. at 261-62.) Arevalo subsequently exited the police car and approached a burgundy four-door Pontiac Grand Am (the "Pontiac") parked between 91st and 92nd Streets. (Id. at 262.) DelRuggiero and Marks followed directly behind him (id. at 264, 268), and two uniformed officers, Sergeant Manuel Bande ("Bande") and Officer Vincent Berpna ("Berpna") (id. at 312, 314), arrived at the Pontiac immediately thereafter (id. at 317). Arevalo testified that, from outside the driver's side window, he observed a man, wearing a dark hat and holding part of the car's ignition and screwdrivers in each hand, in the driver's seat of the Pontiac. (Id. at 262-63.) Arevalo and Bande further testified that the steering wheel of the Pontiac appeared to have been sawed through. (Id. at 264, 317.) Bande also noted that tools were scattered over the front seats. (Id. at 318.)
The transcript of Petitioner's trial is comprised of three parts. The first part (referred to herein as "Hearing Tr.") includes Petitioner's pre-trial Mapp/Wade/Dunaway hearing, which was conducted on May 12-13, 1997. The second part (referred to herein as "Tr.") includes Petitioner's Sandoval hearing, conducted on May 14, 1997, jury selection and trial, conducted on May 15 and May 16, 1997, and the jury's verdict, rendered on May 16, 1997. The third part (referred to herein as "Sentencing Tr.") includes Petitioner's sentencing hearing, conducted on June 2, 1997.
According to the testimony presented at trial, Arevalo tapped on the car window with a flashlight (Tr. at 265), and the officers ordered the man, later identified in court as Petitioner (id. at 263), to step out of the Pontiac (id. at 267, 319). Arevalo and Bande testified that the officers attempted to open the car doors, but found that they were locked. (Id. at 267-68, 321.) Petitioner began to exit the Pontiac approximately one minute later, and was pulled out of the car by Berpna. (Id. at 269, 321.) Bande and Berpna ordered Petitioner to place his hands on the vehicle, then patted down Petitioner, pulling from Petitioner's waistband a loaded 0.38 caliber revolver. (Id. at 269, 323-24.) Petitioner was then arrested and handcuffed. (Id. at 270-71).
Prior to driving Petitioner to the 19th Precinct, the officers recovered part of a car ignition, batteries, approximately seven screwdrivers, a cordless drill, pliers, a hammer, a hacksaw and other tools. (Id. at 271-72.)
PROCEDURAL BACKGROUND A. Pre-Trial and Trial Proceedings
On May 12 and May 13, 1997, a pre-trial Mapp/Wade/Dunaway hearing was held before the Honorable Marcy Kahn, in the Supreme Court of New York, New York County. (See Hearing Tr. at 1-109.) On May 14, 1997, a Sandoval hearing was held before the trial court judge, the Honorable Ronald Zweibel. (See Tr. at 1-12.)
This hearing was held pursuant to: (1) Mapp v. Ohio, 367 U.S. 643 (1961), to determine whether evidence was obtained in violation of Petitioner's Fourth Amendment right to be free from unreasonable search and seizure; (2) United States v. Wade, 388 U.S. 218 (1967), to determine whether Petitioner's pretrial identification was the result of impermissibly suggestive procedures; and (3) Dunaway v. New York, 442 U.S. 200 (1979), to determine whether there was probable cause for Petitioner's arrest.
A Sandoval hearing is a pre-trial hearing whereby a defendant, before deciding whether to testify, may seek an advance ruling from the court to prohibit the prosecution's use of prior criminal acts for impeachment purposes. See People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849 (1974).
Petitioner was tried by a jury on May 15 and 16, 1997. At trial, the prosecution called Officer Arevalo (id. at 259-312) and Sergeant Bande (id. at 312-33), who detailed the events leading up to Petitioner's arrest on December 1, 1996. The prosecution also called a ballistics expert, who testified that the gun found on Petitioner was operable (id. at 356-62), and an NYPD audio technician, who had received a 911 transmission on the night of Petitioner's arrest (see id. at 362-78). The prosecution also called Linda Lagonia ("Lagonia"), the driver of the Pontiac, who testified that she had parked the previously undamaged car on 92nd Street and Fifth Avenue on the night of December 1, 1996, and returned at approximately 4:00 a.m. the next morning to find the steering wheel sliced in half and the door lock damaged. (Id. at 405-10.) Lagonia further testified that she did not permit or authorize anyone to enter into the Pontiac that night, and that she did not own or carry a handgun. (Id. at 414-15.) Lagonia's father, the owner of the Pontiac, corroborated that the car was previously undamaged, and testified that he did not own any weapons. (Id. at 416-26.) The prosecution also called an automobile appraiser as an expert witness. (Id. at 378-83.)
Although the tape of that transmission was played at trial, it was not transcribed into the trial record, nor was it described otherwise at trial. (Tr. at 371-78.)
Petitioner, who represented himself throughout the course of the trial, testified on his own behalf. (Tr. at 429-83.) According to Petitioner, approximately one year before his arrest, Petitioner ordered an automotive locksmithing correspondence course from the National Radio Institute Schools. (Id. at 429.) After enrolling in this course, Petitioner decided that, in order to gain experience, he would contract himself out for locksmithing jobs, such as lock repair and emergency entry into vehicles. (Id. at 430.) To publicize his skills, Petitioner placed hand-printed advertisements listing his skills and contact information in mailboxes and houses in and around his neighborhood of Parkchester, in Bronx County. (Id.) According to Petitioner, a man identified as Jack Brown ("Brown"), an automobile repossessor, contacted him approximately one week before December 1, 1996, to hire him. (Id. at 430-32.) Petitioner testified that Brown showed him a November 22, 1996 letter written to Brown by a repossession company, identifying the serial numbers of cars the company wished to repossess on behalf of their clients. (Id. at 432-33; see Pet. Ex. 1A; see also discussion infra at 6-7.)
Petitioner further testified that, on the night of his arrest, at approximately 11:00 p.m., Brown picked up Petitioner and drove him to the vicinity of Fifth Avenue, looking for a particular automobile. (Tr. at 435-36.) According to Petitioner, once Brown located the car to be repossessed, which Petitioner later identified as the same Pontiac described by the prosecution's witnesses (id. at 437), Brown pointed it out to Petitioner, then parked several cars away from the car (id. at 436). Petitioner, alone, approached the Pontiac and opened the door to the car with a pair of pliers. (Id. at 437.) Petitioner testified that, as he sat on the car floor to work on the ignition, he felt a holstered gun on the floor behind him, and subsequently placed the gun in his pocket to keep it out of his way, with the intention of later turning it over to Brown. (Id.) After he returned to his work on the ignition, the police officers approached the car and arrested Petitioner. (Id. at 438.) Petitioner further testified that, when he did not see Brown during his arrest or at the police station the night of his arrest, he concluded that Brown had hired Petitioner to steal a car for him unknowingly. (Id. at 439.)
Although Petitioner at one point testified that the events in question took place on December 31, 1996 (see Tr. at 435), the remainder of the trial record makes clear that these events in fact occurred on December 1, 1996. Petitioner also challenged the time of his arrest, testifying that he was arrested at approximately 1:00 a.m., rather than at 3:30 a.m., as the police officers had testified. (Id. at 463.)
On cross-examination, Petitioner conceded that he did not own a license to carry any firearms (Id. at 451-52), and admitted to a prior conviction for armed robbery, in 1977 (id. at 452).
At the end of his direct testimony, Petitioner offered two documents in evidence. (Id. at 439-48.) The court received in evidence, although not for the truth of its contents, a card given to Petitioner by the National Radio Institute Schools, which stated that Petitioner was enrolled in a course in automotive locksmithing. (Id. at 440-42.) The second item was described by Petitioner as the first page of the letter he claimed to have been shown by Brown. (See id. at 433-34.) This document was dated November 22, 1996, and was addressed to Brown from "J. Mayer," a Vice President for Recon One Repossessions ("Recon One"). (See Pet. Ex 1A.) It identified Brown as a regional coordinator for Recon One, and stated:
I realize you have reported a shortage of capable field repossessors in your area.
However, I want you to burn midnight oil to find some and repossess these vehicles as fast as you can.
(Id.) Petitioner testified that he found this first page of the letter behind his bed after he was released on bail, but that he did not have the second page. (Tr. at 433-34.) According to Petitioner, the second page included a list of five vehicles in Brown's district that had been identified for repossession. (Id.)
The trial court excluded the one-page document (herein, the "Letter"), determining that there was an insufficient foundation for its admission. (Id. at 446.) The court indicated that, to be admissible as a business record, the necessary foundation would have to be laid either by the person who made the record, or by some other witness who could demonstrate that it was created in the ordinary course of business. (Id. at 447.) The court further concluded that the Letter improperly bolstered Petitioner's testimony (id. at 448), and noted to Petitioner that the Letter was "something that you are very capable — could have prepared yourself" (id. at 447).
On May 16, 1997, the jury found Petitioner guilty of criminal possession of a weapon in the third degree, criminal possession of stolen property in the third degree, attempted grand larceny in the third degree, and possession of burglars' tools. (Id. at 575-76.) On June 2, 1997, the court sentenced Petitioner, as a violent persistent felony offender, to concurrent sentences of 20 years to life imprisonment for criminal possession of a weapon, three and one-half to seven years for possession of stolen property, two to four years for attempted grand larceny, and one year for possession of burglars' tools. (Sentencing Tr. at 14-15.) Thus, Petitioner was sentenced to a maximum, indeterminate sentence of 20 years to life imprisonment. (Id. at 15.)
B. Direct Appeal
Petitioner timely appealed his conviction to the Appellate Division, First Department. In a pro se brief submitted to the Appellate Division in July 1999, Petitioner appears to have asserted eleven claims, including a claim that the court abused its discretion in refusing to admit the Letter, which was relevant to his defense. (See Affidavit of Beth Thomas in Opposition to Petition for a Writ of Habeas Corpus, sworn to July 24, 2001 ("Thomas Aff."), Ex. A at 29-30.)
Petitioner additionally claimed that: (1) his arrest was in violation of the Fourth Amendment; (2) the verdict was against the weight of the evidence; (3) the evidence was legally insufficient; (4) the court abused its discretion by denying Petitioner's motion to reverse the order of summations; (5) the court improperly denied Petitioner's motion for a trial order of dismissal; (6) the court improperly denied Petitioner's request for a jury charge regarding missing evidence; (7) the court permitted the prosecution to ask improper questions of Petitioner; (8) the prosecution offered an improper summation; (9) the court "did not marshal case evidence," thus "disabling [the] jury from reaching a proper verdict;" and (10) the court wrongly denied Petitioner's motion pursuant to New York Criminal Procedure Law Section 330.30. (See Thomas Aff. Ex. A at 18-33.) The State opposed each of these claims. (See id. Ex. B at 9-27.)
The State opposed Petitioner's claim, arguing that the Letter was hearsay evidence that did not meet any exceptions to the hearsay rule, and, furthermore, that the Letter was inadmissible as bolstering evidence. (See id. Ex. B at 19-20.)
On January 13, 2000, the Appellate Division affirmed Petitioner's conviction. See People v. Lewis, 268 A.D.2d 283, 700 N.Y.S.2d 710 (1st Dep't 2000). In its decision, the Appellate Division specifically addressed Petitioner's Fourth Amendment, legal sufficiency, weight of the evidence, and two prosecutorial misconduct claims. See id. With respect to Petitioner's other claims (including the single claim at issue here), the Appellate Division stated that it had "considered and rejected" those claims. See id.
In three letters dated February 2, 2000, and one letter dated February 27, 2000, Petitioner sought leave to appeal the affirmance of his conviction to the Court of Appeals. (See Thomas Aff. Ex. D.) In one February 2 letter, Petitioner reiterated that the trial court abused its discretion in excluding the Letter, creating a question of law "which ought to be reviewed by [the] Court." (Id.) The State did not respond to this application. (Resp. Mem. at 6.) The Court of Appeals denied leave to appeal on June 16, 2000. See People v. Lewis, 95 N.Y.2d 836, 713 N.Y.S.2d 143 (2000). The instant petition followed.
DISCUSSION
In his Petition, Petitioner claims that the trial court abused its discretion by refusing to admit the Letter, thus violating his right to a fair trial. (See Pet. at 5-5v; see also Pet. Mem. at 2.) Petitioner further argues that the trial court's alleged error was not harmless.
"Pet. Mem" refers to Petitioner's Memorandum of Law, received by this Court on October 15, 2001.
(Pet. Mem. at 2.)
Respondent counters that, given Petitioner's failure to present his claim in constitutional terms to the state courts, Petitioner's claim is procedurally barred, and that the claim is, in any event, without merit. (See Resp. Mem. at 7-16.)
I. LIBERALLY CONSTRUED, THE PETITION STATES A FEDERAL CLAIM.
As a general rule, state evidentiary rulings do not implicate federal law and are therefore not reviewable by federal courts. See Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998).
Instead, such rulings are generally left to the discretion of the trial court. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Thus, this Court may review a state court's allegedly erroneous evidentiary ruling only if it was so egregious that it rendered the petitioner's trial fundamentally unfair, in violation of the due process clause of the Fourteenth Amendment or the compulsory process clause of the Sixth Amendment. See Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973); Rosario v. Kuhlman, 839 F.2d 918, 924-25 (2d Cir. 1988) ("[E]rroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ [should] issue only where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.") (emphasis in original) (quotation marks and citation omitted); Schurman v. Leonardo, 768 F. Supp. 993, 1001 (S.D.N.Y. 1991) (same) (citation omitted); Copes v. Schriver, No. 97 Civ. 2284 (JGK), 1997 WL 659096, at *3 (S.D.N.Y. Oct. 22, 1997) (a habeas petitioner "must demonstrate that the alleged evidentiary error violated an identifiable constitutional right, and, in doing so, a petitioner bears a heavy burden because evidentiary errors generally do not rise to constitutional magnitude") (citation omitted).
In this case, it is difficult to say that Petitioner has asserted that the trial court's exclusion of the Letter violated any federal right. Yet, construing Petitioner's claim liberally, Petitioner may be arguing that the court violated his right to defend himself fully against the State's accusations, a right afforded to him under the due process clause and the compulsory process clause. See Chambers, 410 U.S. at 294 (1973) (citing In re Oliver, 333 U.S. 257, 273 (1948)); accord Rosario, 839 F.2d at 924; see, e.g., Roberts v. Scully, 875 F. Supp. 182, 184 (S.D.N.Y. 1995) (determining that "a trial court's decision to exclude portions of a defendant's proffered evidence can implicate the Fourteenth and Sixth Amendments, even when the judge's ruling is cast in terms of state evidentiary law," and construing petitioner's claims that such rulings violated his "right to present his defense" as federal claims). Such a constitutional claim, however, is procedurally defaulted.
Where a petitioner is proceeding pro se and "lack[s] . . . expertise," the Court "should review [his] habeas petition with a lenient eye." Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983); Richter v. Artuz, 77 F. Supp.2d 385, 392 (S.D.N.Y. 1999).
II. PETITIONER'S CLAIM IS PROCEDURALLY DEFAULTED. A. Petitioner's Claim Is Unexhausted.
As a first step in the analysis, it is necessary to determine whether Petitioner's claim is exhausted. A federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state courts, thereby affording those courts the "'opportunity to pass upon and correct' alleged violations of . . . prisoners' federal rights." Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)).
The standards for presenting federal constitutional claims to state courts are not so stringent as to require the recitation of "book and verse on the federal constitution." Picard, 404 U.S. at 278 (citation omitted). The state courts, however, must be "apprised of 'both the factual and the legal premises of the claim [the petitioner] asserts in federal court.'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc)) (alteration in original). Petitioners can ensure that state courts are "alerted to the fact that [they] are asserting claims under the United States Constitution," Duncan v. Henry, 513 U.S. 364, 365-66 (1995), by presenting their claims in a fashion demonstrating either (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) [an] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) [an] allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194; see also Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984). Once the state courts are apprised of the constitutional nature of a petitioner's claims, the exhaustion requirement is fulfilled when those claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (citation omitted).
Here, Petitioner never argued on direct appeal that due process or other constitutional considerations mandated that the court admit the Letter into evidence. Petitioner's only argument as to why this claim is exhausted is that, in his brief to the Appellate Division, he cited Jenkins v. McKeithen, 395 U.S. 411 (1959), which, he says, put the court on notice of a federally protected right. (See Petitioner's Traverse, dated September 7, 2001 ("Pet. Reply"), at 4.)
While egregiously erroneous evidentiary rulings can rise to the level of a constitutional violation (see discussion supra at 10-11), mere allegations of state evidentiary rule violations generally neither fall within the mainstream of federal constitutional litigation nor call to mind a right protected by the federal Constitution. See Duncan, 513 U.S. at 366; Petrucelli, 735 F.2d at 688-90; Colon v. Johnson, 19 F. Supp.2d 112, 118-19 (S. D.N.Y. 1998). Moreover, in Daye, the Second Circuit stated that, where an evidentiary ruling is challenged, even a reference to the "denial of a fair trial" (which Petitioner, in this case, never argued until the instant petition) is insufficient to put a state court on notice of a constitutional violation. See id., 696 F.2d at 193 (determining that defendant's claim that he was deprived of a fair trial because of the admission of hearsay evidence would not put the court on notice that the defendant claimed a violation of his constitutional right to be confronted by his accusers).
Furthermore, Petitioner's argument that he cited to Jenkins — without any explanation regarding the constitutional right at issue — is unavailing. In his brief to the Appellate Division, Petitioner cited Jenkins only for the proposition that relevant evidence is admissible. (See Thomas Aff. Ex. A at 29.) Moreover, there was no discussion in Jenkins on the question of whether due process mandated that the state court admit evidence found by the court to be hearsay. The Supreme Court in Jenkins focused on whether a state labor commission could limit the number of witnesses called by a defendant at a hearing before the commission, holding that due process required that a person investigated retain the right to confront and cross-examine witnesses against him, subject to "traditional limitations on those rights." See Jenkins, 395 U.S. at 428-29.
In Jenkins, the Court further explained:
We do not mean to say that the Commission may not impose reasonable restrictions on the number of witnesses and on the substance of their testimony; we only hold that a person's right to present his case should not be left to the unfettered discretion of the Commission.
Id. at 429.
While, under Daye, reliance on federal case law employing a constitutional analysis is a permissible method of exhausting a claim, 696 F.2d at 194, it does not mean that a passing reference to a federal case, in a discussion focused entirely on state law, and where the federal case does not stand for the specific proposition upon which Petitioner bases his claim for habeas relief, is sufficient to fairly apprise the state court of the due process violation now asserted. See Petrucelli, 735 F.2d at 689 ("A state court should not be expected to guess that an appellant who has cited to one case possibly employing constitutional analysis among a much larger number of state law cases is actually making a federal constitutional argument, especially where the petitioner's argument itself is made in a state law evidentiary context. Federal judges will not presume that state judges are clairvoyant."). Petitioner's claim is, therefore, unexhausted.
B. Petitioner's Claim Is Deemed Exhausted
When a petitioner presents an unexhausted claim, that claim will nonetheless be deemed exhausted if the petitioner no longer has an available remedy in state court. See Castille v. Peoples, 489 U.S. 346, 351 (1989); Bossett, 41 F.3d at 828-29 (citations omitted); Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991) (citations omitted). In this case, Petitioner raised his evidentiary claim in his one opportunity for direct appeal and could have, but did not, apprise the court of his claim in constitutional terms. Further, although Petitioner has not sought state collateral review in the form of a motion pursuant to New York Criminal Procedure Law Section 440.10, he would be precluded from doing so, as the facts relevant to Petitioner's claim appeared on the trial record, and Petitioner therefore could have raised his claim on his direct appeal. See N.Y. C.P.L. 440.10(2).
See N.Y. Court Rules § 500.10(a) (permitting only one application for leave to appeal); see also N.Y. Crim. Proc. §§ 450.10 and 450.15 (allowing a petitioner only one chance to appeal).
Because Petitioner now has no recourse to New York's courts to review his unexhausted claim, the claim is deemed exhausted. Bossett, 41 F.3d at 828-29; Grey, 933 F.2d at 120-21.
Petitioner is additionally prohibited from seeking state review of this claim pursuant to either a writ of error coram nobis, see Aparicio v. Artuz, 269 F.3d 78, 87 n. 1 (2d Cir. 2001) (common law writ of coram nobis available as a remedy only in those situations not explicitly covered by § 440.10, and "[t]hus far its use has been sanctioned by the Court of Appeals only in the context of ineffective assistance of appellate counsel") (citations omitted), or a state writ of habeas corpus, see People ex rel. Allah v. Leonardo, 170 A.D.2d 730, 565 N.Y.S.2d 331 (3d Dep't 1991) (state writ of habeas corpus unavailable where claim could have been raised on direct appeal) (citations omitted).
Yet, when a claim is deemed exhausted because of a procedural bar, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim."
Gray v. Netherland, 518 U.S. 152, 162 (1996); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001). Petitioner's claim is therefore procedurally barred, and cannot be reviewed by this Court unless Petitioner can overcome the procedural bar.
C. Petitioner Cannot Overcome the Procedural Bar.
In order to overcome a procedural bar, a petitioner must show: (1) both cause for failing properly to raise the claim in state court and prejudice resulting from the alleged constitutional error, or (2) that the failure to address the claim on habeas would result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this instance, Petitioner cannot satisfy either standard.
"Cause" for a procedural default is established when "some objective factor external to the defense" impeded the petitioner's efforts to comply with the state's procedural rule.
Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Ayuso v. Artuz, No. 99 Civ. 12015 (AGS) (JCF), 2001 WL 246437, at *8 (S.D.N. Y. Mar. 7, 2001). Specifically, cause for a default exists where a petitioner can show that (1) "the factual or legal basis for a claim was not reasonably available to counsel," (2) "'some interference by state officials' made compliance [with the procedural rule] impracticable," or (3) "the procedural default is the result of ineffective assistance of counsel." Bossett, 41 F.3d at 829 (citation omitted). "Prejudice" requires Petitioner to demonstrate that the alleged constitutional error worked to Petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
Here, Petitioner cannot demonstrate any "cause" for his procedural default. He has not shown, and cannot show, that the factual or legal basis for his defaulted claim was not reasonably available at the time of his applications to appeal. Petitioner could have raised, and in fact did, raise, his evidentiary claim on direct appeal, and clearly could have presented such claim in constitutional terms at that time. Nor has Petitioner alleged, and there is no evidence suggesting, that his failure properly to raise the claim resulted from either interference by state officials or ineffective assistance of appellate counsel. As Petitioner cannot show cause for his procedural default, this Court need not reach the question of whether Petitioner can show prejudice. See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) ("Since a petitioner who has procedurally defaulted in state court must show both cause and prejudice in order to obtain federal habeas review, we need not, in light of our conclusion that there was no showing of cause, reach the question of whether or not [petitioner] showed prejudice.").
The Court may also excuse a procedural default where the petitioner "can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Coleman, 501 U.S. at 750). This exception, however, is quite narrow; it is "concerned with actual as compared to legal innocence." Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Thus, to meet this standard, a petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496. "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995).
In this case, Petitioner has offered no new evidence, scientific or otherwise, demonstrating his actual innocence. Therefore, Petitioner has not made an adequate showing to satisfy the fundamental miscarriage of justice exception. Accordingly, even if the Court were to construe Petitioner's claim as a due process or other constitutional claim, the claim should be dismissed as procedurally barred.
CONCLUSION
For the foregoing reasons, I recommend that Petitioner's petition for a writ of habeas corpus be dismissed. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, United States Courthouse, 500 Pearl Street, Room 1610, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).