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finding that ineffective assistance of counsel claim did not relate back
Summary of this case from Howard v. ErcoleOpinion
CV 00-6047(SJ)(VVP).
November 18, 2005
REPORT AND RECOMMENDATION
Judge Sterling Johnson, Jr. has referred to me for a Report and Recommendation, pursuant to 28 U.S.C § 636(b)(1), Allen Porter's ("Petitioner") petition for a writ of habeas corpus, contesting his state court conviction on two counts of murder in the second degree, for the shooting deaths of Charles Bland and Cherrie Walker, and one count of criminal possession of a weapon in the second degree. ( See Am. Pet. ¶ 4.) The seven habeas claims before this court are grounded on Petitioner's arguments that he suffered deprivations of his constitutional rights because of (1) various errors allegedly committed by the trial court; (2) an inconsistent verdict; (3) the improper imposition of consecutive sentences; (4) the failure to dismiss the indictment; and (5) the ineffective assistance of appellate counsel. ( See Am. Pet. App. 2-4.)
For the reasons discussed below, the undersigned respectfully recommends that the instant petition be DENIED.
BACKGROUND
I. Facts
The following facts were adduced from transcripts of Petitioner's trial and related proceedings, and from various submissions filed by Petitioner and Respondent in state courts and this court.
A. Ms. Vanessa Thomas
During the evening of December 30, 1991, a flurry of telephone conversations took place between Vanessa Thomas, Cherrie Walker, and Petitioner leading up to the murders of which Petitioner was convicted. That night, Thomas, a resident of the Woodside Housing Projects in Queens, received a call from a friend and one of the victims, Cherrie Walker. (Sept. 18, 1995, Trial Tr. 460.) Walker also resided in the Woodside Projects. ( Id.) During this telephone conversation, Walker told Thomas that she was upset because Petitioner had just called her home and spoke to her boyfriend, Charles Bland, also known as "Tiz." ( Id. at 463.) Walker then asked Thomas to tell Petitioner not to call Walker's home anymore since Petitioner had apparently caused bad feelings with his phone calls. ( Id.) After hanging up with Walker, Thomas spoke to Petitioner on the phone and relayed Walker's message to Petitioner. ( Id. at 463.) In response, Petitioner laughed and asked Thomas if Bland was at Walker's apartment. ( Id.) Thomas replied that she was unsure and Petitioner asked Thomas to call Walker and find out "because he wanted to speak to [Bland] about some business." ( Id.) Thomas then spoke with Walker and learned that Walker, Bland, and Walker's four-year old son, Melvin Reid, were planning on going to a restaurant that night. ( Id. at 464-65.)
In testifying about the relationship between Petitioner and Bland, Thomas stated that both individuals were involved in selling drugs in the Woodside Projects but had "their turf" and did not work together. ( Id. at 457.) Thomas's boyfriend, Nathaniel Wright also testified that Petitioner and Bland "didn't have a good relationship" and had "shot at each other a few different times." (Sept. 19, 1995, Trial Tr. 640-41.)
Less than an hour later, Petitioner called Thomas who, after relaying Walker's restaurant plans to Petitioner, was asked if she knew the name of the restaurant. ( Id. at 465.) Thomas was unsure and Petitioner asked Thomas to beep him on his pager when she saw Bland, which Thomas agreed to do. ( Id.) After approximately twenty to thirty minutes, Thomas spotted Bland in the courtyard of the Woodside Projects, and proceeded to beep Petitioner. ( Id. at 468.) After beeping Petitioner, Thomas continued to look out of her window and noticed two black males. ( Id. at 469-70.) Thomas described them as wearing bulky clothing and that by "[t]he way they were walking [she] could tell that they had guns." ( Id. at 470.) The two men were seen entering into Walker's building. ( Id. at 471.) Thomas became worried and beeped Petitioner "911". ( Id. at 473.) However, Thomas's fears were allayed when she saw Walker, Bland, and Reid leave the apartment building, but she lost sight of them after they turned a corner. ( Id.) She then beeped Petitioner "911" for the second time. ( Id. at 474.) Petitioner, however, never responded to any of Thomas's "beeps". ( Id. at 473-74.)
While still looking out the window, Thomas saw her seventeen-year-old son walking in the courtyard. ( Id. at 474.) Thomas instructed her son to go around the corner and check on Walker and Reid. ( Id. at 475.) When her son returned, Thomas left her apartment and proceeded in the same direction as Walker, Bland, and Reid. ( Id.) She found Walker dead in Bland's car. ( Id. at 476.)
A few hours after her discovery, Thomas observed Petitioner from her window exit a jeep with dark windows, owned by an individual known only as "Butt-Butt." ( Id. at 497.) During the same late evening to early morning hours, Thomas received a phone call from Petitioner, who told Thomas that he and Wright had been planning to kill Bland for months. ( Id. at 499.) B. Ms. Jacqueline Aviles
A pre-trial Rodriguez hearing was conducted to test the constitutional propriety of allowing Ms. Aviles to make an in-court identification of Petitioner. ( See Sept. 15, 1995, Trial Tr. 106-48). See also People v. Rodriguez, 79 N.Y.2d 445 (1992) (holding that where "a citizen identification [is] `merely confirmatory' . . . that the People [bear the burden of showing] that the protagonists are known to one another, or [if] there is no mutual relationship, that the witness knows defendant so well as to be impervious to police suggestion."). The judge ultimately allowed Aviles to identify Petitioner at trial, finding that Aviles had "ample opportunity to be familiar with [Petitioner]" and that there was "no improper suggestiveness on the part of the People." (Trial Tr. 147.)
On the night of December 30, 1991, while Thomas was participating in the various phone calls detailed above, Jacqueline Aviles was returning from a Chinese restaurant to her apartment in the Woodside Projects. (Sept. 15, 1995, Trial Tr. 184.) As Aviles was walking through the projects, she recognized Petitioner and Butt-Butt. ( Id. at 184-85.) Aviles was acquainted with Petitioner having met him in-person on past occasions during a three- to four-year period. ( Id. at 186-92.) Aviles was acquainted with Butt-Butt because he was known throughout the projects as a drug dealer and had been pointed out to Aviles on previous occasions. ( Id. at 185-86.) Aviles was approximately twenty-five feet from Petitioner and Butt-Butt when she first recognized them. ( Id. at 198.) The surrounding area was illuminated by street lights. ( Id. at 193.)
As Aviles continued walking she saw Petitioner and Butt-Butt jump a railing into a parking lot. ( Id. at 201-02.) Petitioner and Butt-Butt then approached the driver's side of Bland's car and began arguing loudly with Bland who was seated in the driver's seat. ( Id. at 206-07.) Aviles saw a woman seated next to Bland. ( Id. at 207.) As the argument was becoming louder and more heated, Bland tried to open the car door but Petitioner kicked it closed. ( Id. at 206-07.) Petitioner then took out a gun and fired several shots into the car. ( Id. at 208.) This entire sequence was illuminated by several light fixtures. ( Id. at 208-09, 212.) Immediately after Petitioner fired into the car, Aviles saw several individuals approach the back of the car and start shooting. ( Id. at 210-11.) Aviles then turned and ran for cover in a nearby park. ( Id. at 211.)
C. Mr. Nathaniel Wright
Nathaniel Wright was Thomas's boyfriend and also a resident of the Woodside Projects. (Sept. 18, 1995, Trial Tr. 437; Sept. 19, 1995, Trial Tr. 614.) Since 1988, Petitioner and Wright have been friends. (Sept. 19, 1995, Trial Tr. 614-15.) In 1991, Wright began selling drugs with a group of individuals that included Bland. ( Id. at 618.) During that same period, Petitioner was selling drugs but with a different group, including Butt-Butt. ( Id. at 621-22.) Despite their competing affiliations, Wright and Petitioner remained friends. ( Id. at 621.)
Wright and Petitioner had a close mutual friend, Maurice Simms, also known as Shaheim. ( Id. at 624-25, 628-29.) In 1991, Shaheim was selling drugs in the Woodside Projects, and concerns arose among the drug-dealing community when Shaheim began "undercutting" the other dealers. ( Id. at 625-26.) Shaheim was later shot to death in Woodside in May 1991. ( Id. at 628, 631.) During Shaheim's funeral, Wright and Petitioner made a pact, vowing to kill whomever was responsible for Shaheim's death. ( Id. at 633-65.)
Wright subsequently concluded that Bland had killed Shaheim, and shared this belief with Petitioner. ( Id. at 644-45.) One source of this information came from Bland's girlfriend, Walker, who, during the heat of an argument with Bland, "blurted out" that Bland was the one who had shot Shaheim to death. ( Id. at 636.) This was overheard by Wright. ( Id.) In addition, Wright had a conversation with Bland in the fall of 1991, where Bland insinuated that he would launch a pre-emptive strike against Petitioner before Petitioner could get to Bland for having killed Shaheim. ( Id. at 642-43.) Wright confided this message to Petitioner and Butt-Butt. ( Id. at 643.) All three individuals then entered into an agreement to murder Bland. ( Id. at 645.)
On December 30, 1991, Wright heard shots fired while playing pool in the Woodside Projects community center. ( Id. at 653.) Wright headed towards a gathering of people in the parking lot near Bland's car. ( Id. at 654.) Wright saw Bland slumped over the passenger's side and Walker sitting upright on the passenger's seat. ( Id. at 655.) Later that night, Wright spoke to Petitioner on the phone. ( Id. at 657.) Petitioner asked if Wright was all right and Wright informed Petitioner of Walker's death. ( Id.) Petitioner responded to the effect of "it was too late" and "[i]t was in the mix." ( Id.) After this telephone conversation, Wright met with Petitioner and Butt-Butt in Butt-Butt's jeep. ( Id. at 658-59.) While in the jeep, a discussion took place, which involved Petitioner, where the participants spoke about having killed Walker but not her child. ( Id. at 662.)
D. Ms. Stephanie Castro
Stephanie Castro was friends with Petitioner and a resident of the Woodside Projects at the time of the murders. (Sept. 21, 1995, Trial Tr. 786, 789.) Castro also occasionally sold drugs for Petitioner and Butt-Butt. ( See id. at 791, 794-95.) On the night Bland and Walker were murdered, Petitioner had come by Castro's building to exchange some money and drugs with Tony, Castro's boyfriend. ( Id. at 824.) After the exchange, Petitioner went over quickly to Castro, who was also outside with Tony, and told her "now we got them, mother fucker." ( Id.)
After the murders, Castro went to the police precinct and moved out of the Woodside Projects. ( Id. at 828-29.) Approximately three days after the murders, Castro received threatening phone calls from Butt-Butt and Petitioner, in which Butt-Butt told her "you're dead." ( Id. at 833.)
II. Procedural History
A. Jury Verdict and Sentence
Pursuant to a jury verdict, Petitioner was convicted by judgment dated January 31, 1996, of murder in the second degree (two counts) and criminal possession of a weapon in the second degree. Petitioner was sentenced by Judge Phyliss Orlikoff-Flug to consecutive indeterminate terms of 20 years to life imprisonment for the first count of murder in the second degree, 25 years to life imprisonment for the second count of murder in the second degree, and three to nine years imprisonment for criminal possession of a weapon in the second degree.
B. Petitioner's Direct Appeal
Around October 1997, Petitioner appealed from the January 31, 1996 judgment to the Appellate Division, Second Department, raising the following grounds: (1) the trial court refused to give a curative instruction after previously stricken testimony was read back to the jury; (2) the admission of prior crimes evidence when motive and identity could have been proven by other evidence; (3) the introduction of portions of a witness's grand jury testimony on redirect examination as a prior consistent statement when there was no suggestion that witness's testimony had been fabricated; (4) the inconsistency of the verdict; and (5) the imposition of consecutive, rather than concurrent, where the underlying crimes contained the "same essential elements." (Br. of Pet'r-Appellant at 3, People v. Porter, No. 96-01334.) Petitioner based his arguments solely on New York law.
Subsequently, on or around April 30, 1998, Petitioner filed a supplemental pro se brief, raising the sole issue of whether the "trial court abused its discretion when, after a finding that a misdemeanor drug charge was improperly joined with homicide related charges, it fashioned a remedy which improperly amended the indictment thereby causing [Petitioner] prejudice, denying him of his state and federal constitutional due process rights." ( Pro Se Supplemental Br. of Pet'r-Appellant at i, People v. Porter, No. 96-01334.) In support of his claim, Petitioner cited, among other authorities, the Fifth and Fourteenth Amendments of the United States Constitution. Id.
On or around December 7, 1998, the Appellate Division unanimously affirmed Petitioner's conviction but modified his sentence such that the sentence for Petitioner's conviction of the weapons possession charge ran concurrently with his sentence on the first count of second degree murder. See People v. Porter, 681 N.Y.S.2d 348 (App.Div. 1998). In modifying Petitioner's sentence, the Appellate Division found that "the People had failed to establish that possession of the gun was an act separate from the shootings" as is required for imposition of a consecutive sentence. Id. (citations omitted). The court, however, refused to modify the consecutive sentences on Petitioner's convictions on two counts of second degree murder, finding that "[a]lthough the murders occurred in the course of a single transaction, the firing of multiple shots at the victims constituted separate acts such that consecutive sentences were permissible." Id. (citations omitted).
All of Petitioner's other claims were rejected as meritless. Particularly, on the curative instruction claim, the court found that while the trial court "should have instructed the jury to disregard the inadmissible testimony after the readback, in light of the overwhelming evidence of [Petitioner's] guilt, there is no significant probability that he would have been acquitted if the curative instruction had been repeated." Id. (citation omitted). As such, the court found the error to be harmless. Id. With regard to Petitioner's claim that the admission of certain prior crimes evidence had deprived him of a fair trial, the Appellate Division found that the evidence was properly admitted "to establish his motive to commit the crimes charged and to complete the narrative of the events leading up to the double murders." Id. (citations omitted).
On or around December 23, 1998, counsel for Petitioner sent a letter to Chief Judge Judith Kaye of the New York Court of Appeals seeking leave to appeal the decision of the Appellate Division. (Resp't Ex. E.) In the letter, counsel for Petitioner reiterated all the points argued on appeal and also addressed the exhaustion requirement for purposes of federal habeas review, citing Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991). (Resp't Ex. E.) With the exception of Grey v. Hoke, however, the letter did not refer to federal authority or raise any constitutional issues.
Shortly after sending the December 23rd letter, counsel for Petitioner sent another letter, this time addressed to Judge Howard Levine and dated January 12, 1999. (Resp't Ex. F.) In this letter, which counsel for Petitioner described as an "amplification" of her previous correspondence with the court, counsel advanced additional arguments, based on the appellate claims, as to the appropriateness of discretionary review. Again, however, counsel did not refer to any federal authority or raise any federal constitutional issues in the January 12th letter. On or around June 22, 1999, the Court of Appeals denied Petitioner's application for leave to appeal. People v. Porter, 93 N.Y.2d 976 (1999) (Levine, J.).
C. The Instant Habeas Proceeding
On or around September 21, 2000, Petitioner filed a petition for writ of habeas corpus which was received by this court on October 6, 2000. Docket No. 1. Respondent subsequently filed a motion to dismiss on the ground that the petition was untimely. Docket No. 7. While a decision on this motion was pending, Petitioner filed an amended petition on November 6, 2002, repeating the six claims raised in the original petition and also raising, for the first time, an ineffective assistance of appellate counsel claim. (Am. Pet. App. 2-4.)
On or around August 19, 2003, in an effort to exhaust the ineffective assistance claim, Petitioner filed a motion to vacate judgment in the Appellate Division, Second Department raising the same claim. (Pet'r Mot. to Stay Ex. A.) The Appellate Division eventually denied Petitioner's motion to vacate, finding that "[Petitioner] failed to establish that he was denied the effective assistance of appellate counsel." People v. Porter, 770 N.Y.S.2d 874 (2004). The Court of Appeals denied Petitioner's application for leave to appeal. People v. Porter, 782 N.Y.S.2d 417 (2004) (Kaye, C.J.).
In conjunction with the motion to vacate, Petitioner filed a motion to stay the instant proceedings in this court, (Pet'r Mot. to Stay Ex. 1.), which the Respondent opposed. (Resp't Letter Opp. Mot. to Stay 1.) As the court never rendered a decision on the motion to stay, all of Petitioner's claims are considered to have been preserved for review while Petitioner sought to exhaust his ineffective assistance claim, and are therefore addressed in this report and recommendation.
After numerous adjournments, see, e.g., Docket Nos. 16, 17, 18, 19, 20, 21, 25, 33, 35, and several orders directing Respondent to submit a response to Petitioner's habeas application, see, e.g., Docket Nos. 29, 31, 34, Respondent eventually filed opposition papers on August 19, 2005, see Docket No. 38.
On September 23, 2005, this court granted Petitioner a thirty-day extension to file a reply to Petitioner's opposition. Docket No. 43. A copy of the order was mailed to Petitioner on the same day. As of the date of this report and recommendation, Petitioner has not filed his reply papers despite having been afforded the opportunity to do so. See Rule 5(e), Rules Governing Section 2254 Cases in the United States District Court — 28 U.S.C. § 2254 (amended Apr. 26, 2004) ("The petitioner may submit a reply to the respondent's answer or other pleading within a time fixed by the judge.") (emphasis added). Thus, the court will proceed to address the instant petition.
III. Petitioner's Claims
Petitioner raises seven claims in his amended petition, arguing that he was deprived his constitutional rights because of (1) the denial of Petitioner's request to give curative instructions to the jury after previously stricken testimony was read back; (2) the improper admission of prior crimes evidence concerning Petitioner's drug-related activities which were unnecessary to establish identity and motive; (3) the introduction of grand jury testimony as prior consistent testimony without the proper foundation; (4) the existence of an inconsistent and repugnant verdict; (5) the imposition of consecutive sentences for Petitioner's conviction on two-counts of second-degree murder with respect to two separate victims; (6) the trial court's refusal to dismiss the indictment in its entirety after having dismissed an unrelated drug possession charge; and (7) the ineffective assistance of appellate counsel for failing to raise the issue of an allegedly erroneous charge. (Am. Pet. App. 2-4.)
DISCUSSION
I. Timeliness of the Original Petition Under 28 U.S.C. § 2244(d) Statute of Limitations
Prior to addressing Petitioner's claims individually, the court must resolve the threshold issue of whether the original petition was filed within the applicable one-year limitations period as provided in 28 U.S.C § 2244(d). Respondent contends that the one-year period expired on September 20, 2000 and that Petitioner ran afoul of the period by filing his petition on or after September 21, 2000, the day the petition was signed. (Resp't Mot. to Dismiss 9.)
The statutory limitations period prescribed in 28 U.S.C. § 2244(d)(1) provides, in pertinent part,
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of — (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
Furthermore, in determining the date on which judgment becomes final for purposes of triggering the section 2244(d)(1) limitations period, the Second Circuit has explicitly held that
[T]he AEDPA limitations period specified in Section 2244(d)(1)(A) does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired.Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).
Applied to the present matter, the limitations period for Petitioner began to run on September 20, 1999 and terminated on September 20, 2000. These dates are computed as follows: Petitioner's application for leave to appeal to the New York Court of Appeals was denied on June 22, 1999. See People v. Porter, 695 N.Y.2d 976 (1999). Subsequently, Petitioner had ninety days, or until September 20, 1999, in which to seek a writ of certiorari pursuant to Rule 13(1) of the Supreme Court Rules. Petitioner never sought such review and, accordingly, the judgment became final on September 20, 1999. See Williams, 237 F.3d at 151. Petitioner then had one year, or until September 20, 2000, to file a timely habeas petition. See 28 U.S.C. § 2244(d)(1)(A); Lu v. Phillips, No. 03-CV-2558, 2005 WL 1889461, at * 1 (E.D.N.Y. Aug. 4, 2005) (Dearie, J.) (citation omitted); Dowtin v. Cohen, No. 99-CV-323, 2005 WL 697981, at *4 (E.D.N.Y. Mar. 25, 2005) (Weinstein, J.) (citations omitted).
Under Rule 6(a) of the Federal Rules of Civil Procedure, when computing statutory time periods, the day of the event from which the time period is calculated is not included.
With the limitation period established, to determine the timeliness of a habeas petition the court looks at when the petition was submitted to prison officials for mailing. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001) (concluding "that the district court properly extended the prison mailbox rule to petitions for writs of habeas corpus."). Where it is unclear when a pro se state prisoner mailed his or her habeas petition, the court assumes that the petition is filed on the day it is signed and dated. See, e.g., Lu v. Phillips, 2005 WL 1889461, at *1 (citing Adeline v. Stinson, 206 F.3d 249, 251 n. 1 (2d Cir. 2000)); Rosa v. Walker, No. 00-CV-2059, 2002 WL 1467737, at *1 n. 2 (E.D.N.Y. May 10, 2002) (Raggi, J.). Even if a habeas petitioner fails to file within the limitation period, the petition may still be deemed timely by virtue of an equitable toll. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Equitable tolling applies only in cases where a petitioner demonstrates "extraordinary circumstances [which] prevented him from filing his petition on time." Id. (citation omitted). Moreover, "the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Id. (citation omitted).
In vigorously arguing that this court find his habeas application timely, Petitioner does not offer any proof other than his own statements made in an unsworn declaration. Petitioner states in his declaration that he had given his habeas petition to prison officials for mailing on September 15, 2000, but, for some unknown reason, the petition was never delivered to or received by the court. (Pet'r Decl. ¶ 7.) Petitioner further states that, on the same day he mailed his petition, he was transferred to the Anna Cross Correctional Facility on Rikers Island, New York for purposes of providing testimony in another criminal matter. ( Id.) Petitioner also claims that on or around September 20, 1999, he discovered that his initial petition was not received by the court. ( Id. ¶ 16.) After speaking with Ralph Vega, a clerk at this court's Pro Se Office, who told Petitioner that such a delay in processing was normal and that he should "give it a couple of days," Petitioner proceeded in a diligent manner to file another petition. ( Id. ¶¶ 16-17.) However, since Petitioner was at another correctional facility at the time he "did not have the necessary documentation in his possession to prepare [the] petition and was able to do so only via [a] third party." ( Id. ¶ 17.) Petitioner ultimately filed the instant petition on or around September 21, 2000, which was received by the court on October 6, 2000.
Although Respondent contests most of Petitioner's factual assertions (Resp't Reply Aff. to Pet'r Decl. ¶¶ 4-6) he similarly does not offer any corroborating proof to supplement the meager factual record on the timeliness issue. Thus, if such evidence indeed existed, Respondent has passed up an opportunity to conclusively rebut Petitioner's claims. See, e.g., Valverde v. Stinson, 224 F.3d 129, 135 (2d Cir. 2000) (petitioner's sworn statements held sufficient to defeat the respondent's motion to dismiss where "[t]here is no evidence in the record rebutting [the petitioner's] assertions.").
The Second Circuit's opinion in Valverde v. Stinson, provides considerable guidance. In Valverde, the Court of Appeals faced a petitioner's sworn affirmation asserting that his petition was untimely because prison authorities had confiscated his papers. The court concluded that, if proved, this would constitute "extraordinary circumstances" such that equitable tolling should apply. 224 F.3d at 133-34. The Valverde court thus found that the petitioner's sworn affirmation as to the fact of confiscation "was sufficient to permit him to survive the respondent's motion to dismiss." Id. at 134-35. The sworn affirmation was not sufficient, however, to establish the petitioner's right to the ultimate relief of equitable tolling. Id. at 135 ("Although [the petitioner's] sworn statements are adequate to counter the motion to dismiss, they are not sufficient to establish his ultimate entitlement to equitable tolling.") (citing Philips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (per curiam)). Rather, the Second Circuit remanded the case for the development of a further factual record on the confiscation issue. Id.
The court is also satisfied that Petitioner's declaration "substantially" conforms to the requirements set forth in 28 U.S.C. § 1746, under which an unsworn declaration made under the penalty of perjury carries the same evidentiary weight as, among other things, an affidavit.
Applying Valverde here, the court concludes that Petitioner's declaration, under the penalty of perjury, is sufficient to counter Respondent's motion to dismiss. The court rejects Respondent's suggestion that accepting Petitioner's claims would "open the door for abuse of the statute's strict requirement by other inmates." (Resp't Reply Aff. to Pet'r Decl. ¶ 4.) Here, the court accepts Petitioner's factual assertions solely for the purpose of deciding that, at this juncture, Respondent's motion to dismiss should be denied. As in Valverde, those assertions "are not sufficient to establish [the petitioner's] ultimate entitlement to [either a finding that an earlier petition was filed on September 15, 2000 or] to equitable tolling." Valverde, 224 F.3d at 135.
The court does not recommend, however, that an evidentiary hearing or any other form of fact-finding be conducted Cf. Mateos v. West, 357 F. Supp. 2d 572, 577 (E.D.N.Y. 2005) (Garaufis, J.) (rejecting the petitioner's argument that Valverde provides for a per se right to equitable tolling or an evidentiary hearing). As set forth below, the court recommends that Petitioner's claims be dismissed for a variety of reasons unrelated to the timeliness of the petition, thus obviating the need to address the issues of timeliness and equitable tolling.
II. Timeliness of the Amended Petition Under Federal Rule of Civil Procedure 15
Having found the original petition timely for purposes of deciding Respondent's motion to dismiss, the court must address the additional matter of whether the amended petition, filed on November 20, 2002, is timely. Of particular importance is an ineffective assistance of counsel claim which was asserted for the first time in the amended petition. The court concludes that all the claims contained in the amended petition are timely except for the ineffective assistance claim.
In the recent Supreme Court case of Mayle v. Felix, Justice Ginsburg concisely set forth the procedural framework for amending habeas petitions:
The Civil Rule governing pleading amendments, Federal Rule of Civil Procedure 15, made applicable to habeas proceedings by [28 U.S.C.] § 2242, Federal Rule of Civil Procedure 81(a)(2), and Habeas Corpus Rule 11, allows pleading amendments with "leave of court" any time during a proceeding. Before a responsive pleading is served, pleadings may be amended once as a "matter of course," i.e., "without seeking court leave." Amendments made after the statute of limitations has run relate back to the date of the original pleading if the original and amended pleadings "ar[i]se out of the conduct, transaction, or occurrence."125 S.Ct 2562, 2569 (2005) (citations omitted).
The court finds that at the time the amended petition here was filed, Petitioner qualified for an amendment as a "matter of course" since no responsive pleading had been served. In the context of Rule 15(a) of the Federal Rules of Civil Procedure, the law is settled that a motion to dismiss is not deemed a responsive pleading. See Leone v. Creighton, No. 92-CV-1321, 1995 WL 151771, at *1 (E.D.N.Y. Mar. 28, 1995) (Block, J.) (collecting cases). Thus, Respondent's motion to dismiss on timeliness grounds did not prevent Petitioner from amending his petition as a matter of right.
Since the amended petition was filed well after the § 2244 one-year statute of limitations period had expired on September 20, 2000, the court must decide whether the amended petition "relates back" to the original petition. In Mayle, the Court established the standard for application of the relation back doctrine to habeas petitions: "So long as the original and amended petition state claims that are tied to a common core of operative facts, relation back will be in order." 125 S.Ct at 2574 (footnote omitted). The Second Circuit, in a pre- Mayle decision, stated that "`[t]he pertinent inquiry [governing relation back for habeas claims] . . . is whether the original complaint gave the defendant fair notice of the newly alleged claims.'" Fama v. Comm'r of Corr. Services, 235 F.3d 804, 815 (2d Cir. 2000) (citation omitted).
The court has no trouble finding that the first six claims in the amended petition qualify for relation back. These claims essentially repeat and, to some extent, clarify the claims initially asserted in the original petition. As such, the amended claims relate back to those in the original petition because they are clearly "tied to a common core of operative facts." See, e.g., Mayle, 125 S.Ct at 2574 n. 7. Moreover, to the extent the first six amended claims may be deemed "newly alleged claims," the original petition provided Respondent with sufficient notice for purposes of relation back since these claims reallege what had already been asserted in the original petition. See Reid v. United States, 371 F. Supp. 2d 417, 423 (S.D.N.Y. 2005) ("`An untimely amendment to a § 2255 motion, which, by way of additional facts, clarifies or amplifies a claim or theory in the original motion may, in the trial court's discretion, relate back to the date of the original motion. . . .'") (quoting Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001)).
As a reminder, the first six claims in the amended petition deal with (1) the denial of Petitioner's request to give curative instructions to the jury after previously stricken testimony was read back; (2) the improper admission of prior crimes evidence concerning Petitioner's drug-related activities which were unnecessary to establish identity and motive; (3) the introduction of grand jury testimony as prior consistent testimony without the proper foundation; (4) the existence of an inconsistent and repugnant verdict; (5) the imposition of consecutive sentences for Petitioner's conviction on two-counts of second-degree murder with respect to two separate victims; and (6) the trial court's refusal to dismiss the indictment in its entirety after having dismissed an unrelated drug possession charge. (Am. Pet. App. 2-4.) The original petition was handwritten and set forth six claims. While Petitioner did not specify the constitutional basis underlying these claims, the factual allegations of each one are the same as those contained in the first six amended claims. ( Compare Pet. App. 1-4 with Am. Pet. App. 2-4.)
As for the ineffective assistance of counsel claim, the court concludes that relation back is not warranted. In his ineffective assistance claim, Petitioner argues that his appellate counsel was constitutionally deficient for failing to contest an allegedly erroneous jury charge that instructed the jury it could find Petitioner guilty of murder even if it found Petitioner was not at the scene of the crime. Since none of the claims in the original petition are based on this jury charge, a common core of operative facts does not exist for purposes of relation back.
To be sure, the facts underlying the ineffective assistance claim as well as, perhaps, all the claims contained in the original petition, are based generally on events which occurred during Petitioner's trial. However, Justice Ginsburg specifically rejected the proposition that, for relation back purposes, "the trial itself is the `transaction' or `occurrence' that counts" in determining whether a common core of operative facts exists. Mayle, 125 S.Ct at 2572-73. It remains the case that the "essential predicate" of Petitioner's ineffective assistance claim rests upon a distinct factual event, i.e., a specific jury instruction that Petitioner's guilt did not hinge on his presence at the scene of the murder. See id. at 2573. And, in the words of the Mayle court, "the dispositive question in an adjudication of that claim would be," 125 S.Ct at 2573, the propriety of the jury instruction, particularly, whether it was erroneous as a matter of law, since only then could Petitioner's appellate counsel be found constitutionally ineffective. See Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001) ("To merit habeas relief [for an ineffective assistance claim], `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.'") (citation omitted). Thus, the ineffective assistance claim fails the Mayle standard and relation back is not warranted.
This situation differs markedly from that in Serrano v. Burge, No. 03-CIV-8639, 2005 WL 2063765, at *4 (S.D.N.Y. Aug. 22, 2005), where Magistrate Judge Ellis, applying Mayle, found relation back proper. The original petition in Serrano contained claims based on the allegedly improper admission of evidence and prosecutorial misconduct. Id. The ineffective assistance of counsel claim for which petitioner sought relation back was based on appellate counsel's failure to raise those factual allegations as arguments on direct appeal. Id. Thus, the Serrano court found that "[a]lthough the ineffective assistance claim was based on a new theory of relief, it [arose] from the same facts as the original habeas petition," and the benefits of relation back applied. Id.
Similarly, nothing on the face of the original petition would have given Respondent fair notice of a prospective ineffective assistance claim based on the failure of appellate counsel to raise the issue of an allegedly erroneous jury charge, which it should be pointed out, was asserted more than two years after the limitations period had expired. See, e.g., Williams v. Donnelly, No. 00-CV-4448, 2005 WL 2290592, at *29 (E.D.N.Y. Apr. 12, 2005) (Mann, Mag. J.) (finding ineffective assistance of counsel claim did not qualify for relation back where original petitions, filed approximately three years earlier, contained "allegations of prejudicial error only on the part of the prosecutor and trial judge" would not have given fair notice of ineffective assistance claim).
Accordingly, the court recommends that Petitioner's ineffective assistance claim be dismissed as untimely. The ensuing analysis will thus be limited to addressing the remaining six claims in the amended petition.
III. State Court Exhaustion — First Five Amended Claims
Of these six amended claims, the court ultimately concludes that five should not be reviewed on the merits as not having been properly exhausted in the state courts. Because the exhaustion requirement plays such a critical role in the instant matter, the court finds it instructive to begin with the rationale underlying habeas exhaustion principles, which is predicated on the doctrine of comity:
These are (1) the denial of Petitioner's request to give curative instructions to the jury after previously stricken testimony was read back; (2) the improper admission of prior crimes evidence concerning Petitioner's drug-related activities which were unnecessary to establish identity and motive; (3) the introduction of grand jury testimony as prior consistent testimony without the proper foundation; (4) the existence of an inconsistent and repugnant verdict; (5) the imposition of consecutive sentences for Petitioner's conviction on two-counts of second-degree murder with respect to two separate victims. (Am. Pet. App. 2-3.)
The court is aware that 28 U.S.C. § 2254(b)(2) provides the authority to address the merits of a habeas petition, despite non-exhaustion, as long as such review results in a denial of the petition. However, as the legislative history of the above provision makes clear, district courts are to exercise this authority for denying an unexhausted petition on its merits when doing so "would avoid the waste of State and federal resources that . . . results when a prisoner present[s] a hopeless petition [and] is sent back to the State courts to exhaust State remedies." 137 Cong. Rec. S3191-02, 3220 (daily ed. Mar. 13, 1991) (statement of Sen. Thurmond). Furthermore, the majority of the courts in this circuit have relied on a "patently frivolous" standard in triggering § 2254(b)(2) review. See Brown v. State of New York, 374 F. Supp. 2d 314, 318 (W.D.N.Y. 2005) (citing Naranjo v. Filion, No. 02-CIV-5449, 2003 WL 1900867, at *8 (S.D.N.Y. Apr. 16, 2003) (collecting cases)) (footnote omitted). However, the court need not decide whether § 2254(b)(2) review is warranted in the present situation. Such review is, after all, discretionary, and the court believes the correct approach in this case, especially considering that the state courts had already rendered judgment on Petitioner's claims, is to adhere to the habeas procedural framework.
"State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violated federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. This rule of comity reduces friction between the state and federal court systems by avoiding the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance."Smith v. Duncan, 411 F.3d 340, 347 (2d Cir. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)). Thus, the exhaustion requirement is not merely some procedural technicality created to impede the ability of prisoners to seek their release by filing a writ of habeas corpus. See Rose v. Lundy, 455 U.S. 509, 522 (1982) ("[A] total exhaustion rule promotes comity and does not unreasonably impair the prisoner's right to relief. . . ."). Rather, "it expresses respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
But see Rose, 455 U.S. at 522 (Blackmun, J., concurring) (arguing that the "`total exhaustion' rule, now adopted by this Court . . . operates as a trap for the uneducated and indigent pro se prisoner-applicant."). See also O'Sullivan, 526 U.S. at 850-62 (Stevens, J., dissenting) (criticizing majority's "unwise" decision to require, for purposes of exhaustion, habeas petitioners to seek discretionary review of all their habeas claims from the state's highest court as part of a complete round of the state appellate review process, which "will impose unnecessary burdens on habeas petitioners.").
The exhaustion requirement is codified under 28 U.S.C § 2254(b)(1)(A), and extends to every federal habeas claim alleged by the petitioner. See Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). Particularly, the exhaustion requirement prohibits the granting of an application for a writ of habeas corpus unless Petitioner has exhausted the remedies available in the courts of the state in which he or she was convicted. See 28 U.S.C § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971); Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). This, in turn, "requires . . . that state prisoners give state courts a fair opportunity to act on their claims." O'Sullivan, 526 U.S. at 844 (citing 28 U.S.C. § 2254(c)) (additional citations omitted). Thus, a petitioner is not deemed to have exhausted the available state remedies if he or she has the right under state law to raise, by any procedure, the question presented. 28 U.S.C. § 2254(c). This has been interpreted by the Supreme Court to require the invocation of "one complete round of the State's established appellate review process," including an application to "a state court of last resort when that court has discretionary control over its docket." O'Sullivan, 526 U.S. at 843, 845.
Moreover, the exhaustion requirement is not satisfied until the petitioner has "fairly presented" the federal claim to the highest court of the state. See Picard, 404 U.S. at 275 ("We emphasize that [for purposes of exhaustion] the federal claim must be fairly presented to the state courts."). As the late Justice Brennan, in expressing the importance of the "fair presentation" requirement, cautioned,
[I]t is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.Id. at 275-76 (citations omitted).
A claim may be "fairly presented" to the state courts if "the legal basis of the claim made in state court was the `substantial equivalent' of that of the habeas claim." Daye, 696 F.2d at 192 (quoting Picard, 404 U.S. at 278) (additional citations omitted). "This means, in essence, that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id. Additionally, a habeas petitioner may "fairly present" his or her federal claims "even without citing chapter and verse of the Constitution," by the following four methods, first summarized by the Second Circuit in Daye v. Attorney General of New York:
(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.696 F.2d at 194.
Here, the court looks at the six amended claims as they were presented to the state courts to determine whether exhaustion requirements were satisfied. Respondent argues that the first five claims ("original claims") — the ones contained in the main appellate brief — have not been exhausted since, during the appellate proceedings, they were "raised exclusively as . . . state-law claim[s]; [and] no mention of the United States Constitution or of federal case law was made." (Resp't Mem. Opp. Am. Pet. 15.) It is only in Petitioner's supplemental pro se brief, Respondent further asserts, that Petitioner, for the first time, cited to federal law in support of his additional indictment claim.
The court agrees with Respondent that Petitioner has failed to "fairly represent" his original claims to state court for purposes of federal habeas review. The court has read the main appellate brief and is unable to find any citation or reference to federal law. Furthermore, the New York cases relied upon by Petitioner in his main appellate brief neither resemble "state cases employing constitutional analysis in like fact situations," nor do they "analyze similar contentions in constitutional terms." Daye, 696 F.2d at 194-96.
In his first claim asserted on direct appeal regarding the trial court's alleged "reversible error" in refusing to provide certain curative instructions, Petitioner cites to People v. Crimmins, 36 N.Y.2d 230 (1975). This case contained a discussion on the constitutional requirement of a fair trial and was analyzed in length by the Daye court, which found that citations, in an Appellate Division brief, to Crimmins and another New York state case, People v. DeJesus, 42 N.Y.2d 519 (1975), "in the context of [the petitioner's] factual assertions were sufficient to give the state courts notice that . . . a constitutional claim [was being asserted]." Daye, 696 F.2d at 195-96. However, Petitioner cites Crimmins only for the proposition that the curative instruction error was not harmless. As other courts in this circuit have held, citing Crimmins in the harmless error context is not sufficient to alert the state courts to the constitutional nature of Petitioner's claim. See, e.g., Haymon v. New York, 332 F. Supp. 2d 550, 554 (W.D.N.Y. 2004); Glisson v. Mantello, 287 F. Supp. 2d 414, 419-20 (S.D.N.Y. 2003); Canteen v. Kelly, No. 86-CIV-3951, 1989 WL 116287, at *6 n. 3 (S.D.N.Y. Sept. 27, 1989). Thus, the curative instruction claim remains unexhausted.
Lastly, Petitioner has failed to satisfy the third and fourth exhaustion methods listed in Daye. The court notes at the outset that "not every event in a criminal proceeding that might be described as `unfair' would be a violation of the defendant's rights under the Constitution." Daye, 696 F.2d at 193. Thus, "[i]n order to determine . . . whether a claim that the defendant has been denied a `fair trial' involves a constitutional claim, one must look to the factual allegations supporting the claim." Daye, 696 F.2d at 196; see also Edkin v. Travis, 969 F. Supp. 139, 141-42 (W.D.N.Y. 1997) (applying the Daye analysis to "reversible error" appellate claims).
Petitioner couched his arguments on appeal in terms of "reversible error" or "fairness." However, having studied the factual bases underlying those claims, the court concludes Petitioner's contentions would not "alert the state court that a federal due process claim was being asserted." Daye, 696 F.2d at 196. Simply put, each point argued by Petitioner in his main appellate brief, while perhaps posing a fair ground for appeal under state law, would not have "fairly alerted" the state courts to its "constitutional nature." Id. at 193. Since, on direct appeal, Petitioner has failed to fairly represent his original claims to the state courts, he has, therefore, also failed to satisfy the exhaustion requirement for purposes of federal habeas review.
( See, e.g., Br. of Pet'r-Appellant at 34 ("The trial court committed reversible error when it refuses to give curative instruction. . . ."), 37 ("The appellant was denied a fair trial by the improper introduction of evidence of uncharged crimes. . . .), 43 ("It was error for the prosecution to read the eyewitness's entire narrative Grand Jury testimony to the witness. . . ."), 51 ("The court committed reversible error by refusing to cure [repugnant and inconsistent] jury [verdict]."), 52 ("It was error to sentence the appellant to consecutive terms on . . . [counts of intentional murder and depraved indifference murder].").)
IV. State Court Exhaustion — Petitioner's Application Letters to the New York Court of Appeals
Perhaps realizing for the first time that he might have to seek collateral review in the federal courts, counsel for Petitioner specifically addressed the habeas exhaustion requirement in a letter to the Court of Appeals seeking leave to appeal the Appellate Division's decision. After asking the Court to review all the claims originally raised in the appellate briefs and reciting each one individually, counsel for Petitioner stated the following:
I specifically ask your Court to review each and every point pursuant to the authority of Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991). The [Petitioner] thus preserves all of his rights under 28 U.S.C. 2254(b), which indicates that applicants for habeas corpus relief must exhaust whatever remedies are available in the courts of this state and, as the federal courts have held, in doing so a petitioner must present his federal constitutional claims to the highest court of this state before a federal court may consider the merits of any petition. This application should serve to preserve whatever rights the appellant may have for review in federal court.
(Resp't Ex. E.) Respondent cites two reasons as to why this statement is insufficient for purposes of exhaustion. First, Respondent argues that "[Petitioner] has not fairly presented a claim in state court if [Petitioner] did not raise it in an appeal as of right to the Appellate Division but only sought to raise it in application for discretionary review in the New York State Court of Appeals." (Resp't Mem. Opp. Am. Pet. 15-16.) Second, Respondent argues that the claims were not exhausted because "at no time did [P]etitioner identify a federal claim, mention a constitutional right that was violated, refer to a federal case or a state-law case that relied upon the equivalent federal standards, or even refer to the relevant amendment of the Constitution." ( Id. at 16.)
Contrary to Respondent's suggestion (Resp't Mem. Opp. Am. Pet. 16) Petitioner's reliance on Grey v. Hoke is, in some senses, correct. In Grey, the Second Circuit found certain claims not presented to the New York Court of Appeals in the habeas exhaustion context because the petitioner in that case had failed to specifically mention those claims in his leave application. 933 F.2d at 120. Petitioner has obviously made an effort to avoid a similar result by specifically listing in the letter application each and every claim he had raised in his appellate briefs.
The court agrees that Petitioner's letter application did not exhaust the claims currently sought for federal habeas review, although not precisely for the reasons advanced by Respondent.
For instance, Respondent's reliance on Castille v. Peoples, 489 U.S. 346 (1989) to support his first argument is misplaced. Castille stands for the proposition that a claim is not "fairly presented" for purposes of federal habeas exhaustion when "the claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless `there are special and important reasons therefor.'" 489 U.S. at 351 (quoting Pa. R. App. Proc. 1114) (emphasis added). While still generally applicable in determining the fair presentation and exhaustion of claims contained in an application for discretionary review, see, e.g., Casey v. Moore, 386 F.3d 896, 916-17 (9th Cir. 2004) (applying Castille to an application for discretionary review sought from the Washington State Supreme Court), the court finds Castille inapplicable in the present context because Petitioner's claims were not raised for "first and only time" in his letter application to the Court of Appeals, cf. Clinkscale v. Carter, 375 F.3d 430, 439-440 (6th Cir. 2004) (finding Castille distinguishable because the petitioner had already raised the claim at issue on direct appeal). Petitioner made clear in his letter application that he was seeking review of all his appellate claims, which, of course, he had already asserted on direct appeal. Petitioner did not raise any claims for the "first and only time" in the letter, and thus, Castille is inapposite.
It seems, at least in the view of this court, that Respondent's dual contentions are more properly asserted in unison. Essentially, the synthesis of Respondent's non-exhaustion arguments is that Petitioner has failed to "fairly present" his claims to the Court of Appeals because he had failed to do so in the first instance on direct appeal, and Petitioner's leave letter was insufficient to remedy this defect. Thus stated, the court agrees with Respondent and concludes that Petitioner has failed to comply with the exhaustion requirement through his leave letter to the New York Court of Appeals. The court reaches this conclusion, not because an application letter to the state's highest court is, itself, insufficient for purposes of habeas exhaustion, see, e.g., Morgan v. Bennet, 204 F.3d 360, 369-71 (2d Cir. 2000) (finding claim fairly presented when made in initial letter application to the New York Court of Appeals); rather, the court finds Petitioner has failed to exhaust his claims for reasons similar to those underlying the earlier conclusion of non-exhaustion at the appellate division stage, i.e., that Petitioner has failed to fairly present his claims, this time to the New York Court of Appeals.
To be "fairly presented," and therefore " properly exhausted," claims must be raised to the state courts in a manner "such that the state court had a fair opportunity to act." Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (citation omitted). Thus, in Galdamez, 394 F.3d at 76-77, where the Second Circuit found that the petitioner had exhausted his habeas claims, the court noted that the petitioner had fairly presented his claims to the Appellate Division. Id. at 76 ("It is not in dispute that [the petitioner's] Appellate Division briefs fairly presented his claims. . . ."). The court concluded that "[b]ecause the briefs fairly presented [the petitioner's] federal claims, and [his] leave application reasonably could be construed only as a request for further appellate review of all the issues in the attached briefs, we hold that [the petitioner] properly exhausted his federal claims before the Court of Appeals." Id. (citations omitted).
As discussed above, Petitioner here did not fairly present his constitutional claims to the Appellate Division, thus failing to comply with the first step of the Galdamez analysis. Therefore, even though Petitioner alerted the Court of Appeals to the claims for which he sought additional review by separately listing each one, he still had not properly alerted any state court to the "constitutional nature" of the claims as required for "fair presentation." As a result, he failed to allow state courts a fair opportunity to pass on such claims. See Daye, 696 F.2d at 192-93.
A step, the court notes, at which many habeas petitions founder due to overly general application letters. See, e.g., Gillespie v. Miller, No. 04-CIV-295, 2004 WL 1689735, at *11 n. 25 (S.D.N.Y. Jul 29, 2004) (collecting cases) (Peck, Chief Mag. J.).
In theory at least, Petitioner could have fairly presented his claims to the state courts by directly alerting the Court of Appeals to the constitutional nature of his claims in his application letter, thus satisfying the habeas exhaustion requirement. Cf. Baldwin v. Reese, 541 U.S. 27, 32 (2004) ("[O]rdinarily, a state prisoner does not `fairly present' a claim to a state court if that court must read beyond a petition [for discretionary review] or a brief (or similar document) that does not alert it to the presence of a federal claim in order to find material . . . that does so.") (emphasis added). Indeed, Petitioner attempts to achieve this objective by referencing the Second Circuit's decision in Grey v. Hoke, 933 F.2d at 117, and reciting, in brief fashion, the relevant habeas exhaustion framework. Petitioner also sent a follow-up letter addressed to Judge Levine, which Petitioner described as an "amplification" of his initial application letter.
Ultimately, however, the court concludes that Petitioner has failed to fairly present his claims through his application letters to the New York Court of Appeals. Petitioner's initial letter essentially repeats, without any elaboration of constitutional relevance, what had already been asserted to the Appellate Division. Thus, it was nothing more than a restatement of the issues. Petitioner's citation to Grey v. Hoke was similarly inadequate to alert the Court of Appeals to the constitutional ramifications, if any, of his claims. The facts and analysis in Grey v. Hoke do not, in any way, highlight constitutional issues which may be associated with Petitioner's claims. Petitioner's discussion of the relevant exhaustion requirements, a topic addressed in Grey v. Hoke, does not suffice. Rather, what is required is some mention of constitutional authority or some discussion of constitutional principles related to the specific claims raised by Petitioner. Here, Petitioner did not even mention a constitutional amendment in presenting his claims. Cf. Salcedo v. Artuz, 107 F. Supp. 2d 405, 415 (S.D.N.Y. 2000) ("Merely mentioning a constitutional amendment in a point heading fairly presents the constitutional claim to state courts.") (citing Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992)).
The court is mindful of the fact that at this point in the state appellate process, whether due to ignorance of the law or other reasons, another pro se habeas petitioner may also have committed the same or similar errors in habeas exhaustion procedure as those impeding Petitioner at the present juncture. However, the court points out that both of Petitioner's application letters were drafted by an attorney, and, furthermore, that counsel for Petitioner went out of her way to bring the exhaustion issue to the attention of this state's highest court. Thus, it is somewhat a mystery to this court — and unfortunate for Petitioner — how such a critical misstep could have been made.
Petitioner's follow-up letter also failed to fairly present his claims. No factual allegations were asserted by Petitioner which could have alerted the court to the presence of constitutional issues. See, e.g., Daye, 696 F.2d at 196-97. The sole case cited to in the second letter, People v. Montanez, 41 N.Y.2d 53 (1975), in support of the argument that the trial court's admission of certain prior crimes evidence was not harmless error, was similarly devoid of constitutional analysis. Accordingly, the claims remain unexhausted.
Respondent properly brings the court's attention to Jackson v. Edwards, 404 F.3d 612 (2d Cir. 2005). In addressing the exhaustion of Petitioner's claims, Respondent opines that "even after Jackson only petitioner's claims regarding the absence of a remedial jury charge, the court's failure to dismiss the indictment, and the prosecutor's use of a witness's grand jury testimony are even arguably exhausted." (Resp't Mem. Opp. Am. Pet. 17-18.) While Respondent should be commended for satisfying its ethical obligation of disclosing adverse and controlling legal authority, the court disagrees with Respondent that Jackson applies at all to the instant matter.
N.Y. Code of Professional Responsibility, DR 7-106(B)(1) (McKinney 2005) ("In presenting a matter to a tribunal, a lawyer shall disclose [c]ontrolling legal authority known to the lawyer to be directly adverse to the position of the client and which his not disclosed by opposing counsel."); cf. Cicio v. City of New York, 469 N.Y.S.2d 467, 469 (App.Div. 2d Dep't 1983) ("The function of an appellate brief is to assist, not mislead, the court. Counsel have an affirmative obligation to advise the court of adverse authorities, though they are free to urge their reconsideration.") (citations omitted).
The Jackson court framed the issue before it as follows: "Where state and federal claims share the same legal standard, has a federal claim been `fairly presented' when the state court necessarily rejects the federal claim in ruling on the state claim?" Id. at 620. The Second Circuit answered this question in the affirmative. The key to the disposition in Jackson rested upon the finding that the factual allegation of the claim — the failure of the trial court to instruct the jury on justification — "was so harmful as to deny the defendant due process." Jackson, 404 F.3d at 621. The Jackson court reasoned that even though the petitioner, on appeal, addressed the justification instruction issue on the basis of state law without implicating constitutional due process concerns, the factual allegations were such that the Appellate Division would have been alerted to the constitutional nature of his claim. See id. In the words of the Jackson court, "[w]here the absence of the required justification defense so clearly deprived Jackson of due process, his state law claim was not merely `somewhat similar' to that of his federal claim; it was `virtually identical.'" Id. (quoting Duncan v. Henry, 513 U.S. 364, 366 (1995)).
The court provides the following background facts of Jackson only because they are instructive in understanding the Second Circuit's decision in the case. Jackson, the petitioner, was a superintendent of an apartment building in Brooklyn, New York. One night, Jackson was at the building to change the locks of an apartment which had been vacated earlier. During the course of his duties, he had encountered Ula Hall, a former occupant of the now-vacated apartment, who had moved to the floor below. Upon Jackson's request, Ula handed over her keys to the old apartment. Both parties, however, began arguing about food that was stored in the refrigerator of the vacated apartment. Ula claimed that the food was hers while Jackson understood the food to belong to another tenant, Patricia Drummond. The argument ended when Ms. Drummond arrived at the apartment and claimed the food as hers. When Ula returned downstairs, she was asked about the dispute by several relatives, and an individual by the name of Selwyn Anthony Brown, urged Ula to get the keys back from Jackson. Eventually, Brown, who was heavily intoxicated, approached Jackson, and "a loud, hostile argument ensued." While details of the altercation are disputed, several witnesses testified that Brown had physically assaulted Jackson. Ultimately, Jackson took a gun out of his pocket and shot Brown, who later died from the gunshot wound. Jackson surrendered to the police a few hours after the shooting. 404 F.3d at 615-16.
At the charging stage of Jackson's trial, defense counsel requested a justification charged, arguing "that Jackson was justified in using deadly force because he reasonably believed such force was necessary to protect himself from an imminent assault or robbery by Brown or to defend against a burglary of the apartment." Id. at 616. The trial court denied this request. Id.
Contrary to the claim in Jackson, none of Petitioner's claims were of the type that would have "unavoidably raised the entirety of his federal claim[s]," even if Petitioner had not argued due process on direct appeal. Id. Rather, the court finds Petitioner's claims more akin to those "raised daily in [the Appellate Division]." Duncan v. Smith, 411 F.3d 340, 350 (2d Cir. 2005) (distinguishing Jackson where counsel for petitioner, "throughout his appellate brief . . . classified the failure to admit the 911 call [the claim at issue] as `reversible error' but nothing more."). In short, despite Jackson's further "refinement" of the "fairly present" standard, Petitioner's factual allegations are not of the nature and quality that would have alerted a state court to the constitutional nature of his claims.
Despite Petitioner's failure to fairly present his claims to the state courts, he may still be accorded the benefit of exhaustion if his claims are deemed to be "procedurally barred." See Castille, 489 U.S. at 351-52 ("[E]xhaustion may nonetheless exist . . . if it is clear that [the petitioner's] claims are now procedurally barred. . . .") (citations omitted). "In such a case, [Petitioner] no longer has `remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey, 933 F.2d at 120. See also 28 U.S.C. § 2254(c). The court concludes, pursuant to Grey v. Hoke, that Petitioner's claims are now procedurally barred and may be deemed exhausted under AEDPA:
Here, New York procedural rules plainly bar petitioner from attempting to raise his [habeas] claims 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). No purpose would be served by requiring petitioner to return to state court for further proceedings before considering any of the claims raised in his habeas petition. Cf. Petrucelli v. Coombe, 735 F.2d [684, 687 (2d Cir. 1984)] (requiring total exhaustion before consideration of any claim presented in federal habeas petition).933 F.2d at 120-21. The Petitioner's first five amended claims here are in precisely the same procedural posture as those found procedurally barred in Grey v. Hoke.
However, the inquiry does not end there. While procedurally barred claims may, perhaps, survive dismissal on the basis of non-exhaustion, there is still the very likely scenario that Petitioner's claims are now procedurally defaulted, thus warranting dismissal on that ground. As the Second Circuit in Aparicio v. Artuz, observed:
[The] apparent salve [of procedural bar-exhaustion] proves to be cold comfort to most petitioners because it has been held that when "the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred," federal habeas courts also must deem the claims procedurally defaulted.269 F.3d 78, 90 (2d Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). Thus, applying Aparicio, Petitioner's claims are procedurally defaulted and must be dismissed. See also Grey, 933 F.2d at 121 ([P]etitioner's forfeiture in state court of his [habeas] claims bars him from litigating the merits of those claims in federal habeas proceedings.") (citing Murray v. Carrier, 477 U.S. 478, 492 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-91(1977)).
At first blush, one may arrive at the conclusion that the procedural bar and procedural default doctrines are the same things but with different labels. This, however, is not the case as Judge McLaughlin explained in Aparicio:
[D]ismissal of a habeas claim on the ground that it was procedurally defaulted "differs crucially" from a dismissal for failure to exhaust state remedies. Turner [ v. Artuz, 262 F.3d 118, 122 (2d Cir. 2001)]. Dismissal for a procedural default is regarded as a disposition on the habeas claim on the merits. This means that any future presentation of the claim would be a second or successive habeas petition, requiring authorization by this Court pursuant to 28 U.S.C. § 2244(b)(3)(A). Id. (citing Carter v. United States, 150 F.3d 202, 205-06 (2d Cir. 1998)). For a procedurally defaulted claim to escape this fate, the petitioner must show cause for the default and prejudice, or demonstrate that failure to consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually innocent).Aparicio, 269 F.3d at 90 (citations omitted). Here, Petitioner has shown neither cause and prejudice nor actual innocence. Accordingly, the court recommends that Petitioner's first five amended claims be dismissed as procedurally defaulted.
V. State Court Exhaustion — Pro Se Supplemental Brief Claim
The court concludes that Petitioner's indictment claim in his pro se supplemental brief (also the sixth claim in the amended petition) is exhausted for purposes of federal habeas review. Respondent does not contest this. (Resp't Mem. Opp. Am. Pet. 15 n. 3.)
As the only argument raised in his supplemental pro se brief, Petitioner frames the indictment claim as follows:
[The] trial court abused its discretion when, after a finding that a misdemeanor drug charge was improperly joined with homicide related charges, it fashioned a remedy which improperly amended the indictment, thereby causing appellant prejudice, denying him of his state and federal constitutional rights. U.S.C. V, XIV; Art. I, § 6; CPL §§ § 210.35(5)[;] 210.25; 200.70(2)(c); 200.20(2)(b).
( Pro Se Supplemental Br. of Pet'r-Appellant at 7.) Furthermore, in the body of his argument, Petitioner asserted that the trial court's failure to dismiss the indictment had denied him "his State and Federal constitutional rights to Equal Protection and Due Process" citing, in part, the Fifth and Fourteenth Amendments of the federal constitution. Id.
The Second Circuit's decision in Reid v. Senkowski, 961 F.2d at 374, is controlling. In Reid, the court found a claim "fairly presented" where the question presented contained a reference to the deprivation of the "appellant's right to due process of law" and the relevant point heading cited the Fourteenth Amendment of the United States Constitution. Id. at 376. Here, Petitioner's situation is no different since he cites to the United States Constitution in the point heading as well as the main text of his argument. Therefore, the court finds the supplemental indictment claim fairly presented to the Appellate Division for purposes of habeas exhaustion.
VI. Federal Habeas Review — Pro Se Supplemental Brief Claim
Despite proper exhaustion, the court finds that Petitioner's claim that his due process rights were violated by the trial court's refusal to dismiss the entire indictment after having dismissed a drug possession charge is not cognizable in a habeas corpus proceeding. In essence this claim rests on the premise that the grand jury proceedings were somehow defective because the indictment rendered by the grand jury improperly joined a misdemeanor drug possession offense with the second degree murder and weapons possession charges on which Petitioner was convicted.
In Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989), the Court of Appeals held that claims of deficiencies in state grand jury proceedings are not cognizable on habeas review. In doing so the Lopez court adopted the reasoning of the Supreme Court in United States v. Mechanik:
Accord Kemp v. Conway, No. 03-CV-5439, 2005 WL 107096, at *6 (S.D.N.Y. Jan. 14, 2005); Brown v. Menifee, No. 99-CV-1258, 2004 WL 1810341, at *7 (E.D.N.Y. Aug. 9, 2004) (Johnson, J.); Lombard v. Mazzuca, No. 00-CV-74622, 2003 WL 22900918, at *6 (E.D.N.Y. Dec. 8, 2003) (Gleeson, J.) (footnote omitted); Barnes v. Giambruno, No. 01-CV-8965, 2002 WL 850020, at *7 (S.D.N.Y. May 2, 2002); Beverly v. Walker, 899 F. Supp. 900, 908 (N.D.N.Y. 1995).
"[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt."Id. (quoting 475 U.S. 66, 70 (1986)). It thus follows that "[if] federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court." Lopez, 865 F.2d at 32.
In the alternative, this court also agrees with Respondent that since "there is no federal constitutional right to trial by indictment in a state-court prosecution" (Resp't Mem. Opp. Am. Pet. 44) the defective indictment claim should not be reviewed by a federal habeas court. Several other courts in this circuit have reached a similar conclusion. See, e.g., Staley v. Greiner, No. 01-CIV-6165, 2003 WL 470568, at *11 (S.D.N.Y. Feb. 6, 2003) (Freeman, Mag. J.) (rejecting the petitioner's claim that indictment was improperly "amended" as not cognizable on habeas review because "[t]he right to have state charges presented to a grand jury is a state-created right, not a federal right.") (citing Rodriguez v. Senkowski, No. 92-CIV-5484, 1995 WL 347204, at *2 (E.D.N.Y. May 31, 1995)); see also Franklin v. Phillips, No. 05-CV-329, 2005 WL 2085944, at *9 (E.D.N.Y., Aug. 29, 2005) (Gleeson, J.) (citations omitted); Montalvo v. Annetts, No. 02-CIV-1056, 2003 WL 22962504, at *17 n. 20 (S.D.N.Y. Dec. 17, 2003) (Peck, Mag. J.) (collecting cases); Pena v. Fischer, No. 00-CIV-5984, 2003 WL 1990331, at *8 (S.D.N.Y. Apr. 30, 2003) (citations omitted). Accordingly, the court recommends that Petitioner's indictment claim be dismissed as not cognizable on federal habeas review.
CONCLUSION
For the foregoing reasons, the undersigned respectfully recommends that Petitioner's habeas corpus petition be DENIED in all respects. Since Petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. See 28 U.S.C. § 2253(c)(2).
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Any objections to the Report and Recommendation above must be filed with the Clerk of the Court with a copy to the undersigned within 10 days of receipt of this report. Failure to file objections within the specified time waives the right to appeal any judgment or order entered by the District Court in reliance on this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298 (2d Cir. 1992), cert. denied, 113 S. Ct. 825 (1992); Small v. Secretary of Health and Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).