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Johnson v. Kirkpatrick

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Aug 3, 2011
11 Civ. 1089 (CM) (AJP) (S.D.N.Y. Aug. 3, 2011)

Summary

noting that "most ineffective assistance of counsel claims . . . cannot be raised on direct state appeal but rather must be made through a C.P.L. § 440 motion"

Summary of this case from Fields v. Lee

Opinion

11 Civ. 1089 (CM) (AJP)

08-03-2011

LEROY JOHNSON, Petitioner, v. ROBERT KIRKPATRICK, Superintendent, Wende Correctional Facility, Respondent.


REPORT AND RECOMMENDATION ANDREW J. PECK, United States Magistrate Judge :

To the Honorable Colleen McMahon, United States District Judge:

Pro se petitioner Leroy Johnson seeks a writ of habeas corpus from his June 27, 2006 conviction, after a jury trial in Supreme Court, New York County, of two counts of first degree rape, three counts of first degree sodomy, two counts of first degree robbery, and one count of first degree burglary (Dkt No. 18: Trial Transcript ["Tr."] 838-40), and sentence of eight consecutive terms of 25 years imprisonment (Dkt No. 18: 6/27/06 Sentencing ["S."] 31). (See also Dkt. No. 1: Pet. ¶¶ 1-5.)

Pursuant to C.P.L. § 70.30(1)(c)(iii), the total sentence is deemed to be 50 years.

Johnson's habeas petition asserts that: (1) Johnson was denied legal counsel during questioning by police (Pet. ¶ 13; Pet. Att. at 7); (2) the police fabricated a statement later attributed to Johnson (Pet. ¶ 13; Pet. Att. at 8); (3) a sample of Johnson's DNA taken by police detectives during questioning was never presented to him or used at trial (Pet. Att. at 9); and (4) Johnson's prosecution was time-barred by "the 5 yrs statute of limitations" (Pet. ¶ 13; Pet. Att. at 10-11). Johnson's habeas petition also attached the Table of Contents pages of his First Department brief (Pet. Att. at 12-14) which asserted additional claims that: (1) Johnson "was deprived of the effective assistance of counsel when counsel failed to . . . develop a statute of limitations defense at trial . . . due to his erroneous belief that [this] was a purely legal issue that could not be submitted to the jury" (Pet. Att. at 13, Johnson 1st Dep't Br. Point II); and (2) "in light of the unusual circumstances arising from the delay in prosecution," Johnson's sentence violates his due process rights (Pet. Att. at 14, Johnson 1st Dep't Br. Point III).

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

FACTS

On November 18, 1996, Leroy Johnson forced his way into a Greenwich Village apartment where he raped, sodomized and robbed two women. (Dkt. No. 19: Axelrod Aff. Ex. B: Johnson 1st Dep't Br. at 3; Axelrod Aff. Ex. C: State 1st Dep't Br. at 1-2.) Semen recovered from the back of one of the victims was tested in 2005 and found to match Johnson's DNA. (Johnson 1st Dep't Br. at 3, 16, 19; State 1st Dep't Br. at 3-4.) Johnson was charged with robbery, burglary, and the rape and sodomy of both women. (Johnson 1st Dep't Br. at 1, 3; State 1st Dep't Br. at 4.) Pre-Trial Motion to Dismiss

In 1996, a sample of the perpetrator's DNA was taken from his ejaculate on the back of one of the rape victims. (Dkt. No. 19: Axelrod Aff. Ex. B: Johnson 1st Dep't Br. at 5; Axelrod Aff. Ex. C: State 1st Dep't Br. at 19.) This sample was analyzed using a 6-loci test and compared to the DNA of a suspect the police had in custody, but there was no match. (Johnson 1st Dep't Br. at 5-6; State 1st Dep't Br. at 19.) In March 2000, the New York City Police Department and the Office of the Chief Medical Examiner sent approximately 18,000 DNA evidence samples to be re-analyzed using a more modern 13-loci test. (Johnson 1st Dep't Br. at 4, 6; State 1st Dep't Br. at 19.) In April 2005, the DNA sample from the 1996 rape was analyzed using the 13-loci test, and matched a sample that had been obtained from Leroy Johnson while he was serving a sentence for a 1997 robbery conviction. (Johnson 1st Dep't Br. at 4-5; State 1st Dep't Br. at 20.) Police arrested Johnson on May 13, 2005. (Johnson 1st Dep't Br. at 14; State 1st Dep't Br. at 11.)

The trial judge, Justice Renee A. White, noted that the 6-loci DNA profile and the 13-loci DNA profile are not comparable. (See Johnson 1st Dep't Br. at 11; State 1st Dep't Br. at 22.)

Prior to trial, Johnson's counsel moved to dismiss the charges, arguing that the prosecution had not been commenced within the statute of limitations specified by New York Criminal Procedure Law § 30.10. (Johnson 1st Dep't Br. at 3-4; State 1st Dep't Br. at 18.) In 1996, when the rapes were committed, C.P.L. § 30.10 provided that a prosecution for rape, sodomy, robbery, or burglary (i.e., non-Class A felonies) had to be commenced within five years of the crime. See C.P.L.§ 30.10(2)(b) (as codified in 1996). C.P.L. § 30.10 also provided for tolling:

C.P.L. § 30.10 has since been amended to, inter alia, remove any statute of limitations for a prosecution for first degree rape or for any crime previously defined as sodomy. See C.P.L. §§ 30.10, 130.50.

4. In calculating the time limitation applicable to commencement of a criminal action, the following periods shall not be included:

(a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.
C.P.L. § 30.10(4)(a) (as codified in 1996).

Johnson's motion to dismiss asserted that Johnson's identity could have been ascertained as early as March 2000, when investigators began sending DNA samples to be analyzed using the 13-loci test and Johnson's DNA profile was present in the State's DNA databank. (Johnson 1st Dep't Br. at 4-5; State 1st Dep't Br. at 18-19.) Johnson argued that the C.P.L. § 30.10(4)(a)(ii) tolling ended in March 2000, meaning prosecution was time barred after March 2005, and since Johnson was not arrested until May 2005, the charges should be dismissed. (Johnson 1st Dep't Br. at 5; State 1st Dep't Br. at 18-19.)

The State countered that the police had exercised "'reasonable diligence'" from 1996 to 2005 while the identity of the perpetrator remained "'continuously unknown and continuously unascertainable'" and, as such, the C.P.L. § 30.10(4) tolling provision should apply to the entire period. (Johnson 1st Dep't Br. at 5; State 1st Dep't Br. at 20.)

Justice Renee A. White denied Johnson's motion. (See Johnson 1st Dep't Br. at 7-8; State 1st Dep't Br. at 20.) Justice White found that the backlog of 17,000 DNA samples awaiting retesting delayed analysis of the DNA sample from the 1996 crime. (See Johnson 1st Dep't Br. at 7-8; State 1st Dep't Br. at 20.) Justice White found that Johnson had failed to demonstrate that this delay represented a lack of reasonable diligence in determining the perpetrator's identity. (See Johnson 1st Dep't Br. at 8; State 1st Dep't Br. at 20.)

Johnson's new counsel moved to reargue, asserting that the police could have obtained a 6-loci DNA profile from the incarcerated Johnson in 2000, and failure to do so meant the police had not exercised reasonable diligence. (Johnson 1st Dep't Br. at 9; State 1st Dep't Br. at 21.) Johnson's counsel also argued that because Johnson's prior crimes fit the profile of the 1996 crime, failing to test his DNA as a potential suspect was a further failure of reasonable diligence. (State 1st Dep't Br. at 21.) Finally, Johnson's counsel argued that the DNA backlog should not give rise to an extended tolling period for the statute of limitations. (Johnson 1st Dep't Br. at 9; State 1st Dep't Br. at 21.)

The State responded that Johnson's profile in the State DNA databank was a 13-loci sample while the DNA from the 1996 crime scene was analyzed using a 6-loci profile, meaning no match was possible until the crime scene DNA was re-analyzed in 2005. (Johnson 1st Dep't Br. at 9-10; State 1st Dep't Br. at 22.) Furthermore, the State argued that failing to analyze Johnson's DNA while he was in prison was not a not a failure of due diligence, because the police would have needed probable cause to obtain a 6-loci sample from Johnson and his criminal history was not enough to amount to probable cause. (State 1st Dep't Br. at 22.) Instead, Johnson's DNA sample was acquired pursuant to a state statute that required violent felons to submit DNA samples to the New York State DNA databank, and not because he fit the profile of the perpetrator of this crime. (Johnston 1st Dep't Br. at 43, 44 n. 28; State 1st Dep't Br. at 22.)

Justice White again denied Johnson's motion to dismiss, finding that the State had "'exercised reasonable diligence to ascertain the identity of the perpetrator'" from the time of the crime through Johnson's May 2005 arrest. (See Johnson 1st Dep't Br. at 11; State 1st Dep't Br. at 22.) The Trial

On June 5, 2007, Johnson proceeded to a jury trial before Justice White in Supreme Court, New York County. (Dkt. No. 18: Tr. 1.)

The Prosecution Case

Around 5:00 p.m. on November 18, 1996, MG came home from work to a fourth floor apartment she shared with others in Greenwich Village. (Dkt. No. 18: MG: Tr. 460-62.) As she was unlocking the apartment door, a man approached her from behind, put his gloved hand over her mouth and held a knife to her throat. (MG: Tr. 466-67, 488, 502.) The man told MG that he would kill her if she screamed and that she should open the door and throw her keys on the ground. (MG: Tr. 466, 502.)

To protect the privacy of the victims, they will be referred to by their initials instead of their names.

Roommate KY was in the living room watching television when she "heard a commotion at the door." (KY: Tr. 527, 529; see MG: Tr. 467.) She saw a "six foot tall black man" wearing gloves and a knit cap pulled down to his upper lip. (KY: Tr. 529-30, 551.) The man was restraining MG and told KY that he had a gun. (KY: Tr. 530.) The man took a knit cap from a nearby coatrack and pulled it down over the hat he was already wearing, covering his face. (MG: Tr. 467, 503; KY: Tr. 531.)

The man pushed MG and KY into MG's bedroom and demanded money. (MG: Tr. 467; KY: Tr. 531-32.) MG gave the man some money and jewelry, but he asked for more. (MG: Tr. 468, 499; KY: Tr. 532.) MG offered him their TV, but the man said "'[n]o, I want money and money and jewelry.'" (KY: Tr. 532; MG: Tr. 469, 491.) Brandishing a six-inch knife, the man took KY to her room so that she could retrieve money and jewelry to give to him. (MG: Tr. 469-70; KY: Tr. 533-34.)

Returning with KY to MG's room, the man ordered the two women to take off their clothes. (MG: Tr. 469, 471; KY: Tr. 535.) Using a bed-sheet, he attempted to bind KY's wrist, but became agitated when he could not do so with his gloved hands. (MG: Tr. 472; KY: Tr. 536.) After the man threatened to kill both women, MG used the bed-sheet and clothing to bind KY's wrists and cover her eyes. (MG: Tr. 472; KY: Tr. 536, 547.) The man turned off the lights, shut the blinds and cut the chord of the telephone, claiming he had a friend who would be watching them from the building across the street. (MG: Tr. 473; KY: Tr. 535.) The man instructed the bound and blindfolded KY to go to the living room so that he could see her while he went into a bedroom with MG. (MG: Tr. 473, 489, 495; KY: Tr. 537.)

In the bedroom the man instructed MG to put a condom on his penis. (MG: Tr. 474-75, 505.) While threatening to kill her, the man forced MG to perform oral sex on him and he performed oral sex on her. (MG: Tr. 476-77.) The man ordered MG to get on her hands and knees and penetrated her vagina and anus. (MG: Tr. 477.) The man removed the condom, and MG felt him ejaculate onto her back before he took a towel and wiped the semen off of her. (MG: Tr. 478, 506.) Throughout his assault on MG, the man called out to KY that she would be next. (MG: Tr. 479; KY: Tr. 538.)

After binding MG's ankles and wrists, the man approached KY in the living room, pulled down her pants and inserted his penis into her vagina and anus. (MG: Tr 479-80; KY: Tr. 538.) The man stopped briefly to put his finger and mouth on KY's vagina, and resumed vaginal and anal penetration with his penis. (KY: Tr. 538-39.) KY felt the man ejaculate onto her back, after which he wiped her back with a towel. (KY: Tr. 539.) The man bound KY's ankles and placed her in one of the bedrooms, all the while threatening to kill her if she "snitched." (KY: Tr. 539, 541.)

MG and KY could hear the man rummaging through drawers in the apartment and running water from the bathroom. (MG: Tr. 481; KY: Tr. 541.) After some time they heard the apartment door close. (MG: Tr. 481; KY: Tr. 541.) MG crawled to KY in the adjoining room and the two untied each other. (MG: Tr. 482; KY: Tr. 541.) MG and KY were terrified that their attacker would kill them if they called the police, so MG called a friend instead. (MG: Tr. 482-83, 508; KY: Tr. 542.) While waiting for the friend to arrive, MG and KY observed that, in addition to the money and jewelry they had given him, the attacker had taken the sheets from the bed, the knit hat that he had used to cover his face, underwear from both women, MG's keys, KY's ID, the used condoms and the towel he used to wipe the semen off both women. (MG: Tr. 497-98; KY: Tr. 543.) At the friend's urging, MG called the police. (MG: Tr. 483, 508-09; KY: Tr. 542.)

The police took MG and KY to Saint Vincent's Hospital. (MG: Tr. 483, 512; KY: Tr. 543) Doctors and nurses performed a "rape kit" examination, taking swabs from various parts of MG and KY's bodies, including the area on their backs where their attacker ejaculated. (MG: Tr. 483-84, 513, 514; KY: Tr. 543-44.) The women also received medication to prevent pregnancy and HIV. (KY: Tr. 543-44.)

Both MG and KY went to the police station to view lineups. (MG: Tr. 498, 504; KY: Tr. 545.) MG could not identify her attacker visually because she had never seen his face. (MG: Tr. 498-99, 504-05.) The police asked MG to try to identify the man's voice. (MG: Tr. 498, 504.) MG thought one of the voices from the lineup sounded familiar, but the voice belonged to a filler. (MG: Tr. 499, 504-05.) KY was unable to identify anybody in the lineup. (KY: Tr. 545.)

The Office of the Chief Medical Examiner ("OCME") tested the swab taken from MG's back, developed a DNA profile and compared it to a DNA sample from a suspect, but there was no match. (Chernjawski: Tr. 570-71, 582.) The case remained unsolved. (Tacchi: Tr. 668.)

Nearly nine years later, on April 13, 2005, OCME tested the swab taken from MG's back using more modern technology and developed a 13-loci DNA profile. (Chernjawski: Tr. 578, 582-83.) OCME sent that DNA profile for comparison to the New York State DNA databank. (Chernjawski: Tr. 583-85.) On May 12, 2005, OCME was advised that there was a match with the DNA of Leroy Johnson. (Chernjawski: Tr. 585.) OCME gave the identification information to Det. Edward Tacchi, an investigator with the Manhattan Special Victims Squad. (Chernjawski: Tr. 585; Tacchi: Tr. 667-68.)

On May 13, 2005, Detectives Tacchi and Alan Sandomir traveled to the Bronx to find Leroy Johnson. (Tacchi: Tr. 670-71; Sandomir: Tr. 706.) The detectives saw Johnson in front of a building on Matilda Avenue, but as Det. Tacchi approached, Johnson ran into the building. (Tacchi: Tr. 671, 697; Sandomir: Tr. 706-07, 714.) Johnson was apprehended on Carpenter Avenue, near the rear of the building. (Tacchi: Tr. 672-74; Sandomir: Tr. 709.)

The detectives brought Johnson to the 26th Precinct and read him his Miranda rights. (Tacchi: Tr. 675-79, 699; Sandomir: Tr. 710.) Det. Tacchi showed Johnson photos of MG and KY as they appeared in 1996, and Johnson denied ever having seen them before, stating, "'I don't know them, I don't know them at all. What, were they raped or something? I don't know them.'" (Tacchi: Tr. 681, 687.) Johnson discussed his previous crimes with Det. Tacchi, describing how "'[u]sually it starts as a regular robbery, it starts off as a robbery then became rape,'" and that he would carry "'a knife, probably a usually small kitchen knife.'" (Tacchi: Tr. 685.) When Det. Tacchi asked Johnson about the 1996 robbery and rape of MG and KY, Johnson stated, in pertinent part:

"I don't know nothing about this crime. That's not me. I want a lawyer now. I don't know nothing about it. You're showing me shit . . . from 1996. I don't want a lawyer. I want to talk about it, let's finish this case. That's not me. It ain't me. You told me what happened, showed me the photos, you knew where I was. It's a crime I didn't commit, and it's old 1996. You knew where I was. . . . You woulda . . . got me, because the statute of limitations. You had years to pick me up. Why didn't you get me nine years ago. I don't know them at all. You had evidence back then. Locking me up for a crime in 1996. . . . If you have evidence, okay, in 1996, it should have popped up in the database. This can turn into a city lawsuit. . . . I'm going to sue the city for this."
(Tacchi: Tr. 689-90; see also Dkt. No. 1: Pet. Att. at 16-17 (Johnson handwritten statement).)

Pursuant to a court order, Det. Sandomir obtained a confirmatory swab from Johnson for DNA verification purposes. (Sandomir: Tr. 712.) Det. Sandomir submitted the swab to the OCME for DNA testing. (Sandomir: Tr. 713). OCME developed a DNA profile from Johnson's confirmatory swab, compared it to the sample obtained from MG's rape kit and found that they were a match. (Chernjawski: Tr. 585-86, 588-89, 653, 655.) An OCME expert testified that there was a one in one trillion chance that two people would have the same DNA profile as that developed from the semen in MG's rape kit. (Chernjawski: Tr. 592, 653.)

The Defense Case At Trial

Defense counsel moved to dismiss the charges claiming that the DNA evidence was faulty and was insufficient to establish the perpetrator's identity beyond a reasonable doubt. (Tr. 716.) Justice White denied the motion. (Tr. 716.)

The defense rested without calling any witnesses. (Tr. 717-20.)

Verdict and Sentence

The jury convicted Johnson of two counts of first degree rape, three counts of first degree sodomy, two counts of first degree robbery and one count of first degree burglary (Tr. 838-40.)

On June 27, 2006, Justice White sentenced Johnson as a predicate felon to a term of 25 years imprisonment on each of the eight counts, each to run consecutively. (Dkt. No. 18: S. 5, 31.) Pursuant to C.P.L. § 70.30(1)(c)(iii), the total sentence is deemed to be 50 years. Johnson's Direct Appeal

Represented by counsel from the Legal Aid Society, Johnson appealed to the First Department, claiming that: (1) the prosecution was time-barred by C.P.L. § 30.10 because the prosecution "failed to establish that [Johnson's] identity as the perpetrator and whereabouts were 'continuously unascertainable by the exercise of reasonable diligence' so as to toll the five-year statute of limitations" (Dkt. No. 19: Axelrod Aff. Ex. B: Johnson 1st Dep't Br. at 22-50); (2) Johnson "was deprived of the effective assistance of counsel when counsel failed to . . . develop a statute of limitations defense at trial - the only legitimate defense here - due to his erroneous belief that [this] was a purely legal issue that could not be submitted to the jury" (Johnson 1st Dep't Br. at 50-63); and (3) due to the "unusual circumstances arising from the delay in prosecution," Johnson's sentence is excessive so as to violate his due process rights (Johnson 1st Dep't Br. at 63-77).

On September 29, 2009, the First Department unanimously affirmed Johnsonn's conviction, holding in full:

The court properly denied defendant's motion to dismiss the action as time-barred. Defendant raises a statute of limitations claim that is indistinguishable from a claim this Court rejected in People v. Rolle, and we decline to revisit our prior holding.

Defendant claims that his trial counsel rendered ineffective assistance by failing to present a statute of limitations defense to the jury after the court denied his pretrial motion to dismiss the indictment. This claim is unreviewable on direct appeal because it involves matters outside the record concerning counsel's strategy. We note that the record suggests legitimate reasons for not pursuing a statute of limitations defense, and that counsel's statements to the court do not, under the circumstances, render a postconviction motion unnecessary. On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards. Even were we to assume that defense counsel erred in determining that the particular statute of limitations issue in this case, i.e., a reasonable diligence issue, was a matter of law to be decided only by the court, defendant has not shown that his counsel's decision affected the outcome of the proceeding or caused him any prejudice.

Defendant is not entitled to any reduction in his sentence as a matter of law, and we perceive no basis for reducing the sentence as a matter of discretion. To the extent that defendant is challenging the constitutionality of the statutory sentencing scheme as it applies to his situation, such claim is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.
People v. Johnson, 65 A.D.3d 975, 976, 886 N.Y.S.2d 375, 375-76 (1st Dep't 2009) (citations omitted).

Johnson sought leave to appeal on only two of the three grounds: statute of limitations and ineffective assistance of counsel. (Axelrod Aff. Ex. F: 12/11/09 Johnson Ct. App. Leave Letter at 2-10). On January 15, 2010, the New York Court of Appeals denied leave to appeal. People v. Johnson, 13 N.Y.3d 939, 895 N.Y.S.2d 330 (2010). Johnson's Federal Habeas Corpus Petition

Johnson's pro se habeas corpus petition asserts that: (1) Johnson was denied legal counsel during questioning by police and was assured "don't worry you will not need a lawyer" (Dkt No. 1: Pet. ¶ 13; Pet. Att. at 7); (2) while giving a statement to police, Johnson's "words [were] change[d] and the Detective put his ow[n] words in the statement" (Pet. Att. at 8; Pet. ¶ 13); (3) a sample of Johnson's DNA taken by police detectives during questioning was never presented to him or used at trial (Pet. Att. at 7); and (4) the prosecution "never showed any pro[of]" for why the case was not time-barred by "the 5 yrs statute of limitations" (Pet. Att. at 10-11; Pet. ¶ 13). Johnson's habeas petition also attached the Table of Contents pages of his First Department brief (Pet. Att. at 12-14), which in addition to raising the statute of limitations claim also asserted that: (1) Johnson "was deprived of the effective assistance of counsel when counsel failed to . . . develop a statute of limitations defense at trial - the only legitimate defense here - due to his erroneous belief that [this] was a purely legal issue that could not be submitted to the jury" (Pet. Att. at 13, Johnson 1st Dep't Br. Point II); and (2) "in light of the unusual circumstances arising from the delay in prosecution," Johnson's sentence violates his due process rights (Pet. Att. at 14, Johnson 1st Dep't Br. Point III).

ANALYSIS

I. THE AEDPA REVIEW STANDARD

Before the Court can determine whether petitioner is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).

See also, e.g., Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011); Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1418 (2009); Portalatin v. Graham, 624 F.3d 69, 78-79 (2d Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1691, 1693 (2011); Henry v. Poole, 409 F.3d 48, 67 (2d Cir. 2005), cert. denied, 547 U.S. 1040, 126 S. Ct. 1622 (2006); Howard v. Walker, 406 F.3d 114, 121-22 (2d Cir. 2005); Cox v. Donnelly, 387 F.3d 193, 197 (2d Cir. 2004); Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 541 U.S. 961, 124 S. Ct. 1713 (2004); Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'" (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S. Ct. 1611 (2002))).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S. Ct. at 1519. Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523. "That federal law, as defined by the Supreme Court, may be either a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42; accord, e.g., Davis v. Grant, 532 F.3d 132, 140 (2d Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). "A petitioner can not win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 341 F.3d at 110; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

Accord, e.g., Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.), cert. denied, 540 U.S. 1091, 124 S. Ct. 962 (2003); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S. Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S. Ct. 865 (2001).

Accord, e.g., Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 654 (2006) ("Given the lack of holdings from this Court regarding [this issue], it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"); Yarborough v. Alvarado, 541 U.S. 652, 661, 124 S. Ct. 2140, 2147 (2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Wiggins v. Smith, 539 U.S. 510, 519, 123 S. Ct. 2527, 2534 (2003); Lockyer v. Andrade, 538 U.S. 63, 71, 123 S. Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Portalatin v. Graham, 624 F.3d at 79 ("To qualify as 'clearly established' for the purposes of federal habeas review, a rule of law must be embodied in the 'holdings, as opposed to the dicta,' of Supreme Court precedent."); Georgison v. Donelli, 588 F.3d 145, 153-54 (2d Cir. 2009); Dunlap v. Burge, 583 F.3d 160, 164 (2d Cir.), cert. denied, 130 S. Ct. 642 (2009); Hargett v. Giambruno, 291 F. App'x 402, 403 (2d Cir. 2008); Howard v. Walker, 406 F.3d at 122; Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 541 U.S. 1047, 124 S. Ct. 2171 (2004); Yung v. Walker, 341 F.3d 104, 109-10 (2d Cir. 2003); Parsad v. Greiner, 337 F.3d at 181; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S. Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. at 1519-20.

Accord, e.g., Knowles v. Mirzayance, 129 S. Ct. at 1419 (The Supreme "Court has held on numerous occasions that it is not 'an unreasonable application of clearly established federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this [Supreme] Court." (quotation omitted)); Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1438-39 (2005); Bell v. Cone, 543 U.S. 447, 452-53, 125 S. Ct. 847, 851 (2005); Price v. Vincent, 538 U.S. 634, 640, 123 S. Ct. 1848, 1853 (2003); Lockyer v. Andrade, 538 U.S. at 73-74, 123 S. Ct. at 1173-74; Portalatin v. Graham, 624 F.3d at 79; Bierenbaum v. Graham, 607 F.3d 36, 47-48 (2d Cir. 2010), cert. denied, 131 S. Ct. 1693 (2011); Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 156 (2d Cir. 2009), cert. denied, 131 S. Ct. 320 (2010); Dunlap v. Burge, 583 F.3d at 164; Davis v. Grant, 532 F.3d at 140; Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1267 (2007); Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d 210, 219 (2d Cir.), cert. denied, 546 U.S. 889, 126 S. Ct. 215 (2005); Tueros v. Greiner, 343 F.3d at 591; Yung v. Walker, 341 F.3d at 109; DelValle v. Armstrong, 306 F.3d at 1200; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521. "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). This is a "'substantially higher threshold'" than incorrectness. Renico v. Lett, 130 S. Ct. at 1862; accord, e.g., Knowles v. Mirzayance, 129 S. Ct. at 1420. Federal habeas relief is precluded "so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). "This is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings.'" Cullen v. Pinholster, 131 S. Ct. at 1398 (citations omitted).

Accord, e.g., Cullen v. Pinholster, 131 S. Ct. at 1399; Waddington v. Sarausad, 555 U.S. 179, 190, 129 S. Ct. 823, 831 (2009); Brown v. Payton, 544 U.S. at 141, 125 S. Ct. at 1439; Wiggins v. Smith, 539 U.S. at 520, 123 S. Ct. at 2534-35; Bierenbaum v. Graham, 607 F.3d at 48; Brisco v. Ercole, 565 F.3d 80, 87 (2d Cir.), cert. denied, 130 S. Ct. 739 (2009); Jones v. West, 555 F.3d 90, 96 (2d Cir. 2009); Davis v. Grant, 532 F.3d at 140; Lynn v. Bliden, 443 F.3d 238, 246 (2d Cir. 2006), cert. denied, 549 U.S. 1257, 127 S. Ct. 1383 (2007); Howard v. Walker, 406 F.3d at 122; Parsad v. Greiner, 337 F.3d at 181.

See also, e.g., Renico v. Lett, 130 S. Ct. 1855, 1862 (2010); Waddington v. Sarausad, 555 U.S. at 190, 129 S. Ct. at 831; Yarborough v. Alvarado, 541 U.S. at 664, 124 S. Ct. at 2150; Wiggins v. Smith, 539 U.S. at 520, 123 S. Ct. at 2535; Price v. Vincent, 538 U.S. at 641, 123 S. Ct. at 1853 ("As we have explained: '[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.'" (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 360 (2002))); Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175; Dunlap v. Burge, 583 F.3d at 165-66 (A "federal court might agree with a petitioner that the relevant federal law should have been interpreted differently than the way it was interpreted by the state court yet still conclude that the state court's application of the federal law was not unreasonable."); Brisco v. Ercole, 565 F.3d at 87-88; Jones v. West, 555 F.3d at 96; Davis v. Grant, 532 F.3d at 140; Hawkins v. Costello, 460 F.3d at 243; Lynn v. Bliden, 443 F.3d at 246; Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 219; Cox v. Donnelly, 387 F.3d at 197; Eze v. Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

Accord, e.g., Yarborough v. Alvarado, 541 U.S. at 664, 124 S. Ct. at 2150; Wiggins v. Smith, 539 U.S. at 520-21, 123 S. Ct. at 2535; Price v. Vincent, 538 U.S. at 641, 123 S. Ct. at 1853; Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1174-75; Woodford v. Visciotti, 537 U.S. at 25-27, 123 S. Ct. at 360-61; Portalatin v. Graham, 624 F.3d at 79; Dunlap v. Burge, 583 F.3d at 165; Davis v. Grant, 532 F.3d at 140; Mosby v. Senkowski, 470 F.3d 515, 519 (2d Cir. 2006), cert. denied, 552 U.S. 836, 128 S. Ct. 75 (2007); Hawkins v. Costello, 460 F.3d at 243; Lynn v. Bliden, 443 F.3d at 246; Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Cox v. Donnelly, 387 F.3d at 197; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord, e.g., Brisco v. Ercole, 565 F.3d at 88; Jones v. West, 555 F.3d at 96; Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008) ("[W]e have observed that the 'unreasonable application' standard 'falls somewhere between merely erroneous and unreasonable to all reasonable jurists.'"); Davis v. Grant, 532 F.3d at 140; Lynn v. Bliden, 443 F.3d at 246; Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 219; Cox v. Donnelly, 387 F.3d at 197, 200-01; Yung v. Walker, 341 F.3d at 110; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d at 245; Loliscio v. Goord, 263 F.3d at 184.

"[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 541 U.S. at 664, 124 S. Ct. at 2149. "Even if the state court issued a decision 'contrary to' clearly established Supreme Court law, a petitioner 'cannot obtain relief . . . unless application of a correct interpretation of that [Supreme Court] decision leads to the conclusion that his rights were violated.'" Cousin v. Bennett, 511 F.3d 334, 339 (2d Cir.), cert. denied, 553 U.S. 1096, 128 S. Ct. 2910 (2008) (citation omitted).

The Supreme Court explained:

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.
Yarborough v. Alvarado, 541 U.S. at 664, 124 S. Ct. at 2149; accord, e.g., Harrington v. Richter, 131 S. Ct. at 786; Renico v. Lett, 130 S. Ct. at 1864; Knowles v. Mirzayance, 129 S. Ct. at 1420 (Where the Supreme Court "standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard."); Portalatin v. Graham, 624 F.3d at 79; Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d at 157; Dunlap v. Burge, 583 F.3d at 166; Hawkins v. Costello, 460 F.3d at 243.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.

Accord, e.g., Bierenbaum v. Graham, 607 F.3d at 47-48; Davis v. Grant, 532 F.3d at 140-41; Tueros v. Greiner, 343 F.3d at 591; Yung v. Walker, 341 F.3d at 109; see Yarborough v. Alvarado, 541 U.S. at 665-66, 124 S. Ct. at 2150-51 ("The petitioner contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." (citations omitted)).

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d at 109; accord, e.g., Cullen v. Pinholster, 131 S. Ct. at 1398; Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (per curiam) ("On federal habeas review, AEDPA 'imposes a highly deferential standard for evaluating state-court rulings' and 'demands that state-court decisions be given the benefit of the doubt.'" (citations omitted)); Renico v. Lett, 130 S. Ct. at 1862; Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853; Mosby v. Senkowski, 470 F.3d at 519. "[I]t is the petitioner's burden to demonstrate that the state court applied the relevant clearly established law to th[e] record in an unreasonable manner." Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir. 2009); accord, e.g., Cullen v. Pinholster, 131 S. Ct. at 1398 ("The petitioner carries the burden of proof."); Georgison v. Donelli, 588 F.3d at 154. As the Supreme Court explained:

If this standard is difficult to meet, that is because it was meant to be. . . . [§ 2254(d)] preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decisions conflict with [the Supreme] Court's precedents. It goes no further. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Harrington v. Richter, 131 S. Ct. at 786-87.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies.

Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning. And as this Court has observed, a state court need not cite or even be aware of [Supreme Court] cases under § 2254(d). Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.
Harrington v. Richter, 131 S. Ct. at 784 (citations to Sellan v. Kuhlman, 261 F.3d at 312, & other cases omitted); accord, e.g., Cullen v. Pinholster, 131 S. Ct. at 1402; Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853; Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Wilson v. Mazzuca, 570 F.3d 490, 499 (2d Cir. 2009) ("Where, as here, 'a state court fails to articulate the rationale underlying its rejection of a petitioner's claim, and when that rejection is on the merits, the federal court will focus its review on whether the state court's ultimate decision was an unreasonable application of clearly established Supreme Court precedent.'"). "'[A] habeas court must determine what arguments or theories . . . could have supporte[d] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.'" Cullen v. Pinholster, 131 S. Ct. at 1402.

See also, e.g., Wade v. Herbert, 391 F.3d 135, 140, 142 (2d Cir. 2004) (Appellate Division held claim was "'without merit.'" "Such a summary determination, even absent citation of federal case law, is a determination 'on the merits' and as such requires the deference specified by § 2254." Moreover, "[i]f any reasonable ground was available [for the state court's decision], we must assume the [state] court relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 543 U.S. 872, 125 S. Ct. 110 (2004); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition-the word 'denied'-triggered AEDPA deference.").

"When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 131 S. Ct. at 784-85.

"[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. at 1398.

Finally, in appropriate circumstances, "[i]f [the] court finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless." Howard v. Walker, 406 F.3d at 122.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); accord, e.g., Bierenbaum v. Graham, 607 F.3d at 48; Lynn v. Bliden, 443 F.3d at 246-47; Rosa v. McCray, 396 F.3d at 220. "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)); accord, e.g., Bierenbaum v. Graham, 607 F.3d at 48 ("A state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence."); Brown v. Alexander, 543 F.3d at 100; Lynn v. Bliden, 443 F.3d at 246-47.

II. JOHNSON'S FALSE EVIDENCE AND INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ARE UNEXHAUSTED AND BARRED FROM FEDERAL HABEAS REVIEW

A. The Exhaustion Doctrine: Background

Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S. Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S. Ct. at 1732.

See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S. Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S. Ct. 723 (1984).

The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and
having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. & Peck, M.J.); accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 843-48, 119 S. Ct. at 1732-34.

"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney Gen., 696 F.2d at 191. The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Cox v. Miller, 296 F.3d at 99; Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:

Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844, 119 S. Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S. Ct. at 512; Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir.), cert. denied, 540 U.S. 1046, 124 S. Ct. 804 (2003); Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002), cert. denied, 537 U.S. 1192, 123 S. Ct. 1273 (2003); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye v. Attorney Gen., 696 F.2d at 194.

Accord, e.g., Smith v. Duncan, 411 F.3d 340, 348 (2d Cir. 2005); Jackson v. Edwards, 404 F.3d 612, 618 (2d Cir. 2005); Rosa v. McCray, 396 F.3d 210, 217-18 (2d Cir.), cert. denied, 546 U.S. 889, 126 S. Ct. 215 (2005); St. Helen v. Senkowski, 374 F.3d 181, 182-83 (2d Cir. 2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 871 (2005); Cox v. Miller, 296 F.3d at 99; Ramirez v. Attorney Gen., 280 F.3d 87, 95 (2d Cir. 2001); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S. Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688.

The Supreme Court has confirmed the long-held view of the Second Circuit that "a state prisoner must present his claims to a state supreme [i.e., highest] court in a petition for discretionary review in order to satisfy the exhaustion requirement." O'Sullivan v. Boerckel, 526 U.S. at 839-40, 119 S. Ct. at 173.

Accord, e.g., Rosa v. McCray, 396 F.3d at 217; Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir.), cert. denied, 544 U.S. 1025, 125 S. Ct. 1996 (2005); Calderon v. Keane, 115 F. App'x 455, 457 (2d Cir. 2004); Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003); Ramirez v. Attorney Gen., 280 F.3d at 94; Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000); Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.), cert. denied, 531 U.S. 819, 121 S. Ct. 59 (2000); Bossett v. Walker, 41 F.3d at 828 ("To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims 'to the highest court of the pertinent state.'"); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991) ("a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition"); Pesina v. Johnson, 913 F.2d at 54 ("We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition," citing Daye); Daye v. Attorney Gen., 696 F.2d at 191 n.3 ("Exhaustion of available state remedies requires presentation of the claim to the highest state court from which a decision can be had.").

B. Johnson's False Evidence And Ineffective Assistance Of Counsel Habeas Claims Were Not Presented to the State Courts and Thus are Unexhausted

Johnson claims that the statement Det. Tacchi read at trial did not accurately reflect the statements he made during police questioning. (See page 13 above.) This claim is based on evidence outside the trial record. Similarly, as the First Department noted, Johnson's ineffective assistance of counsel claim was "unreviewable on direct appeal because it involves matters outside the record concerning counsel's strategy." People v. Johnson, 65 A.D.3d 975, 976, 886 N.Y.S.2d 375, 375-76 (1st Dep't), appeal denied, 13 N.Y.3d 939, 895 N.Y.S.2d 330 (2010).

During sentencing, Johnson told Justice White that Dets. Tacchi and Sandomir "basically add[ed] on what they wanted to add on into that letter [i.e., his statement], and that letter should have never been allowed in trial for the jury" (Dkt No. 18: S. 22), but made no mention of this claim during the trial itself. To prevail on this claim, Johnson would need to demonstrate what his true statement was and show Det. Tacchi's perjury; thus, this claim appears to lie outside the trial record. See generally, e.g., Polanco v. Ercole, 06 Civ. 1721, 2007 WL 2192054 at *7 (S.D.N.Y. July 31, 2007) (Claims are part of the record for direct appeal "only if all the factual information necessary to determine the claim appears in the trial record."). Even if Johnson's statements at sentencing made a record for the claim, he did not raise it on direct appeal. (See pages 11-12 above.)

Johnson alleges his trial counsel was ineffective for not presenting a statute of limitations defense to the jury. (See page 13 above.) As this claim is based on trial counsel's understanding of the law and counsel's strategy regarding potential defenses, it goes beyond the trial record. See, e.g., Washington v. Greiger, 00 Civ. 2383, 2001 WL 214236 at *3 (S.D.N.Y. Mar. 1, 2001) ("In New York, a claim that trial counsel was ineffective may be raised on direct appeal only if all of the factual information necessary to determine the claim appears in the trial record. Since the trial record does not normally contain the requisite information, such a claim must ordinarily be raised by way of a [C.P.L.] Section 440.10 motion . . . ." (citation omitted)); see generally, e.g., Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *19 n.27 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) ("[I]neffectiveness of counsel is usually not demonstrable on the trial record." (& cases cited therein)).

Claims based on evidence outside the trial record, including most ineffective assistance of trial counsel claims, cannot be raised on direct state appeal but rather must be made through a C.P.L. § 440 motion. See, e.g., Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *17 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *21 & n.34 (S.D.N.Y. June 3, 2003) (Peck, M.J.) ("[U]nder New York law, ineffective [trial] counsel claims involving matters outside the record . . . 'must be pursued by way of a CPL 440.10 motion.'" (citing cases)), report & rec. adopted, 2005 WL 730171 (S.D.N.Y. Mar. 31, 2005), aff'd, 224 F. App'x 44 (2d Cir. 2007); People v. Stevenson, 58 A.D.3d 948, 949, 870 N.Y.S.2d 637, 638 (3d Dep't) ("[I]nsofar as defendant's claims [including ineffective assistance claim] involve matters outside the record, they should be pursued via a CPL article 440 motion."), appeal denied, 12 N.Y.3d 860, 881 N.Y.S.2d 671 (2009); People v. Nason, 31 A.D.3d 818, 820, 819 N.Y.S.2d 790, 792 (3d Dep't) ("[M]ost of defendant's complaints concerning counsel involved matter dehors the record, which should be addressed by way of a CPL article 440 motion."), appeal denied, 7 N.Y.3d 869, 824 N.Y.S.2d 614 (2006); People v. Santer, 30 A.D.3d 1129, 1129, 816 N.Y.S.2d 444, 444 (1st Dep't) ("Since defendant's ineffective assistance of counsel claim turns on matters outside the record, . . . it is not reviewable on direct appeal and would require further record to be developed by way of a CPL 440.10 motion."), appeal denied, 7 N.Y.3d 928, 827 N.Y.S.2d 697 (2006).

Since Johnson never filed a C.P.L. § 440 motion alleging false evidence or ineffective assistance of trial counsel, and since there is no time limit for filing such a motion, that remedy was still available to Johnson in state court when he filed his federal habeas petition. See, e.g., Hernandez v. Lord, 00 Civ. 2306, 2000 WL 1010975 at *3 (S.D.N.Y. July 21, 2000) (Peck, M.J.).

C.P.L. § 440.10(1) provides: "At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that . . . (c) Material evidence adduced at a trial resulting in the judgment was false and was . . . known by the prosecutor or by the court to be false; or . . . (h) The judgment was obtained in violation of a right of the defendant under the constitution of . . . the United States." C.P.L. § 440.10(1)(c)-(h) (emphasis added).

C. Johnson's Unexhausted Claims are Deemed Deleted

With these two claims unexhausted, Johnson presents to this Court a habeas petition containing both exhausted and unexhausted claims. The Supreme Court addressed the issue of "mixed" petitions in Rhines v. Weber, holding in pertinent part:

Johnson's other four claims also are unexhausted, but are deemed exhausted and procedurally barred. (See Section III below.) A petition containing unexhausted claims and other unexhausted claims that are deemed exhausted is considered a mixed petition within the meaning of Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005). See, e.g., Castillo v. Murray, 04 Civ. 4112, 2005 WL 2373921 at *2 (S.D.N.Y. Sept. 28, 2005) ("[T]he Court noted that none of the claims in Castillo's petition were exhausted . . . . While [certain] claims . . . would be 'deemed exhausted.' Thus Castillo's petition presented both exhausted and unexhausted claims-commonly referred to as a 'mixed petition.'" (record citation omitted)); Rowe v. New York, 99 Civ. 12281, 2002 WL 100633 at *5 (S.D.N.Y. Jan. 25, 2002) (Lynch, D.J.) (Where petitioner's "first claim is unexhausted and his second claim is deemed exhausted but procedurally defaulted or without merit, then [petitioner's] is a so-called 'mixed petition' containing both unexhausted and (constructively) exhausted claims."); Priester v. Senkowski, 01 Civ. 3441, 2002 WL 1448303 at *8 (S.D.N.Y. July 3, 2002) (Mixed petitions include "petitions that consist of unexhausted claims alongside those that have been 'deemed' exhausted based on a procedural default.").

[I]t likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition. In such a case, the petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions.
Rhines v. Weber, 544 U.S. at 278, 125 S. Ct. at 1535 (citations omitted).

On the other hand, the Supreme Court cautioned that the stay and abeyance procedure should not be used if the petitioner does not demonstrate good cause for his failure to exhaust claims in state court. Rhines v. Weber, 544 U.S. at 277, 125 S. Ct. at 1535 ("Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court."); accord, e.g., Spurgeon v. Lee, No. 11-CV-00600, 2011 WL 1303315 at *3 (E.D.N.Y. Mar. 31, 2011) (Because "petitioner offers no explanation, let alone asserts 'good cause,' as to why he did not previously raise his . . . claim in state court," stay and abeyance denied as to those claims.); Redd v. Woughter, 09 Civ. 9819, 2010 WL 4983169 at *1 (S.D.N.Y. Dec. 3, 2010) ("[P]etitioner has not demonstrated good cause because the petitioner has not provided any reason for not exhausting his ineffective assistance of appellate counsel claim before bringing his current petition." Stay and abeyance denied.); Johnson v. Fischer, 06 Civ. 4759, 2010 WL 1779158 at *5-6 (S.D.N.Y. Apr. 23, 2010) (Finding lack of good cause and denying stay and abeyance where "[p]etitioner has provided no explanation for his failure to move for coram nobis relief at the conclusion of his appeal."); Jones v. Walsh, No. 08 CV 915, 2008 WL 2064555 at *6 n.4 (E.D.N.Y. May 12, 2008) (No showing of good cause where petitioner "has offered no reason for why he failed to exhaust his claims in state court." Stay and abeyance denied.).

Johnson has offered no explanation for why his state claims remain unexhausted, and therefore has not shown the requisite good cause to receive a stay and abeyance. Johnson has been on notice of the need to file a C.P.L. § 440 motion since September 2009, when the First Department advised him that his ineffective assistance of counsel claim "involve[d] matters outside the record" and that a "postconviction motion" would be necessary. People v. Johnson, 65 A.D.3d 975, 976, 886 N.Y.S.2d 375, 376 (1st Dep't 2009), appeal denied, 13 N.Y.3d 939, 895 N.Y.S.2d 330 (2010); see, e.g., Taylor v. Poole, 07 Civ. 6318, 2009 WL 2634724 at *25 (S.D.N.Y. Aug. 27, 2009) ("[N]othing in the record would justify granting a stay inasmuch as [petitioner] has not shown 'good cause' for the failure to present the claim earlier. To the contrary, the record reflects that [petitioner] has been aware that he was required to move to withdraw his guilty plea since at least March 30, 2004, when the Appellate Division specifically stated that the proper manner in which to challenge any sentence attributable to his plea was to move to withdraw the plea." (citation to Rhines omitted)); Horton v. Ercole, 557 F. Supp. 2d 308, 328 (N.D.N.Y. 2008) (Petitioner has not shown good cause for failure to exhaust ineffective assistance of appellate counsel claim where "[a]lthough he is aware that this claim must be raised in a state coram nobis petition in order to be properly exhausted, [petitioner] failed to file such a petition, and offers no explanation for that failure." (record citation omitted)). Thus, a stay and abeyance would be inappropriate here.

In Rhines the Supreme Court addressed such a situation:

[I]f a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.
Rhines v. Weber, 544 U.S. at 278, 125 S. Ct. at 1535. In this case, were the Court to dismiss Johnson's petition in its entirety, Johnson would be unable to re-file a federal habeas petition because the one-year AEDPA statute of limitations already has run. See 28 U.S.C. § 2244(d)(1). Therefore Johnson would have to either delete his unexhausted claims and have his other claims reviewed by the Court, or the entire petition would have to be dismissed and Johnson would have no federal review of his claims. The Court presumes that Johnson would prefer his unexhausted claims deleted and other claims reviewed, and the Court proceeds as such. See Reyes v. Morrissey, 07 Civ. 2539, 2010 WL 2034531 at *9 (S.D.N.Y. Apr. 21, 2010) ("On the assumption that Petitioner would prefer the Court to consider the majority of his claims, rather than dismiss the entire Petition outright and risk being barred from raising any of those claims again in federal court, this Court will proceed to consider the remainder of the claims." (fn. omitted)), report & rec. adopted, 2010 WL 2034527 (S.D.N.Y. May 19, 2010); accord, e.g., Taylor v. Poole, 2009 WL 2634724 at *25 n.11 ("The Court assumes that [petitioner] would prefer to have this [unexhausted and not stayed] claim omitted from his petition rather than having the entire petition dismissed."); Lee v. Paquin, No. 08-CV-697, 2009 WL 3047603 at *5 (W.D. Wis. Sept. 18, 2009) (Court "assume[s] that [petitioner] would prefer to exclude the unexhausted claims rather than have the petition dismissed in its entirety."); cf. Davis v. McKane, No. 05-3442, 2006 WL 3718181 at *4 (D. Kan. Dec. 13, 2006) (Where no good cause for failure to exhaust and thus no stay and abeyance, Court treats unexhausted claims as if petitioner had deleted them.), appeal dismissed, 241 F. App'x 507 (10th Cir. 2007); Butler v. Bershuis, No. 02CV394, 2005 WL 2417655 at *6 (W.D. Mich. July 12, 2005) (Where no good cause for failure to exhaust claim and thus no stay and abeyance, Court addresses merits of habeas claims rather than dismiss as mixed petition.), report & rec. adopted, 2005 WL 2417667 (W.D. Mich. Sept. 30, 2005). III. JOHNSON'S REMAINING CLAIMS ARE UNEXHAUSTED , BUT DEEMED EXHAUSTED AND PROCEDURALLY BARRED

The New York Court of Appeals denied Johnson leave to appeal on January 15, 2010, (see page 13 above), meaning his conviction became final on April 15, 2010. See, e.g., Pratt v. Greiner, 306 F.3d 1190, 1195 n.1 (2d Cir. 2002) ("A conviction becomes final for purposes of 28 U.S.C. § 2244(d) upon expiration of the ninety-day period to petition for a writ of certiorari to the United States Supreme Court."). Hence, any habeas petition filed after April 15, 2011 would be time barred because "the filing of [a] federal habeas petition does not statutorily toll the [one-year] AEDPA limitations period." King v. Greiner, 02 Civ. 5810, 2002 WL 31453976 at *1 (S.D.N.Y. Nov. 5, 2002) (Peck, M.J.) (citing Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120 (2001)), report & rec. adopted, 2003 WL 57307 (S.D.N.Y. Jan. 7, 2003).

A. Johnson's Remaining Claims Are Unexhausted

1. Johnson's Fifth Amendment and Brady Claims Were Not Raised On Appeal

Johnson alleges that his Fifth Amendment rights were violated because during police questioning he asked for a lawyer but was told "don't worry you will not need a lawyer" and was assured that once he wrote a statement and provided a DNA sample he would be allowed to go home. (Dkt. No. 1: Pet. ¶ 13; Pet. Att. at 7; see page 13 above.) Johnson also asserts that a DNA sample taken during police questioning was never returned to him and was never used at trial. (Pet. ¶ 13; Pet. Att. at 9.) Liberally construed, this allegation supports a claim that the State withheld potentially exculpatory material in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). However, Johnson never raised these claims to the First Department nor the New York Court of Appeals. (See Dkt. No. 19: Axelrod Aff. Ex. B: Johnson 1st Dep't Br. at 2; Axelrod Aff. Ex. D: Johnson 1st Dep't Reply Br. at 1; Axelrod Aff. Ex. F: 12/11/09 Johnson Ct. App. Leave Letter at 2-10; see pages 11-13 above.) Because Johnson failed to present these claims to the state courts, Johnson's Fifth Amendment and Brady claims are unexhausted. (See cases cited on pages 23-25 above.)

2. Johnson's Statute Of Limitations Claim Was Not Raised In Federal Terms

Johnson claims his prosecution was time-barred by "the 5 yrs statute of limitations" as then-codified in C.P.L. § 30.10, and thus his "constitutional rights" were violated. (Dkt. No. 1: Pet. ¶ 13; Pet. Att. at 10-11; see page 13 above.) Although Johnson's habeas petition mentions the "United States Constitution" and "constitutional rights," Johnson's appeal to the First Department and subsequent leave letter to the New York Court of Appeals raised solely a state law claim as to the interpretation of the tolling provision of C.P.L. § 30.10, without citing any federal case law and making no mention of any constitutional rights. (Pet. Att. at 10-11; Dkt. No. 19: Axelrod Aff. Ex. B: Johnson 1st Dep't Br. at 22-50; Axelrod Aff. Ex. D: Johnson 1st Dep't Reply Br. at 3-7; Axelrod Aff. Ex. F: 12/11/09 Johnson Ct. App. Leave Letter at 2-6.) As Johnson failed to raise his statute of limitations claim in federal constitutional terms, any federal claim he now raises was not properly exhausted before the New York courts. See, e.g., Fernandez v. Artus, 07 Civ 2532, 2009 WL 1586271 at *14 (S.D.N.Y. June 8, 2009) (Peck, M.J.) (Claim unexhausted where petitioner "'made no references to any federal constitutional issues or claims' in his leave letter." (citing cases)); Harrison v. Walsh, 06 Civ. 13328, 2007 WL 1576265 at *22 (S.D.N.Y. June 1, 2007) (Peck, M.J.) (Petitioner's C.P.L. § 30.10 claim "was not raised in a way to 'call to mind' due process issues. His present federal due process claim thus was not raised on direct appeal" and is therefore unexhausted.), report & rec. adopted, 2007 WL 2844867 (S.D.N.Y. Sept. 27, 2007); Rosario v. Walsh, 05 Civ. 2684, 2006 WL 1431410 at *16 (S.D.N.Y. May 25, 2006) (Peck, M.J.) (Claim unexhausted where petitioner "did not cite to the Constitution no[r] refer to 'due process,' 'fair trial,' or similar constitutional phrases; [petitioner] cited no federal cases nor state cases employing constitutional analysis."), report & rec. adopted, 2006 WL 1880958 (S.D.N.Y. July 5, 2006); see also Ayala v. Artus, No. 07-CV-0404, 2010 WL 1492232 at *9 n.4 (W.D.N.Y. Apr. 12, 2010) (Petitioner "argues that the trial court misapplied or misinterpreted the tolling provisions of CPL § 30.10 in denying his motion. Such a claim is a matter of state law that is generally not cognizable on habeas review.").

In any event, Johnson's C.P.L. § 30.10 statute of limitations claim fails on the merits as a matter of state law. See, e.g., Hardison v. Artus, 06 Civ. 0322, 2006 WL 1330064 at *10 n.27 (S.D.N.Y. May 16, 2006) (Peck, M.J.) ("New York courts have applied [the § 30.10] tolling provision to cases in which a defendant's identity was unknown until the advent of DNA profiling enabled identification through the State DNA data bank." (citing N.Y. cases)), report & rec. adopted, 2006 WL 1763678 (S.D.N.Y. June 23, 2006); People v. Ramos, 13 N.Y.3d 881, 881-82, 893 N.Y.S.2d 831, 831 (2009) ("The prosecution was not barred by the five-year statute of limitations pursuant to CPL 30.10(2)(b). Although the indictment was nearly 10 years after the incident, defendant's whereabouts were 'continuously unknown and continuously unascertainable,' despite the reasonable diligence of the detectives assigned to the case, until his DNA profile from the rape kit taken from the victim was matched to DNA evidence taken from defendant pursuant to a subsequent incarceration."); People v. Bradberry, 68 A.D.3d 1688, 1689-90, 891 N.Y.S.2d 850, 852 (4th Dep't 2009) (denying defendant's statute of limitations claim where the "delay was attributable to the lack of a DNA sample from defendant to compare with the DNA sample found at the rape and burglary scene, and the People did not obtain DNA material from defendant until after his sentencing on the 2005 manslaughter conviction. Consequently, defendant's identity was unknown until that time, and the limitations period was therefore tolled pursuant to CPL 30.10(4)(a) for five of the years between the commission of the crime and the discovery of defendant's identity."), appeal denied, 14 N.Y.3d 838, 901 N.Y.S.2d 145 (2010); People v. Grogan, 28 A.D.3d 579, 580-81, 816 N.Y.S.2d 93, 95 (2d Dep't) ("Contrary to the defendant's argument, the Supreme Court properly denied his CPL 330.30 motion to set aside the verdict on the theory that the indictment was jurisdictionally defective as the prosecution occurred outside of the five-year statute of limitation. Although the indictment was filed . . . eight years after the rape, the defendant's whereabouts were continuously unknown and continuously unascertainable by the exercise of reasonable diligence until the defendant's DNA profile from the rape kit was matched to the DNA profile in the CODIS databank."), appeal denied, 7 N.Y.3d 789, 821 N.Y.S.2d 819 (2006); People v. Lloyd, 23 A.D.3d 296, 297, 805 N.Y.S.2d 20, 21 (1st Dep't) ("The motion court properly denied defendant's motion to dismiss the indictment as time-barred. The applicable five-year statute of limitations was tolled pursuant to Criminal Procedure Law 30.10(4)(a)(ii) because defendant's identity and whereabouts were unknown following the attack and were unascertainable by the exercise of reasonable diligence. . . . After this 1996 crime, law enforcement authorities exhausted all reasonable investigative steps and when, years later, they acquired the ability to solve the crime by matching DNA, this case was one of about 16,000 similar 'cold cases' awaiting DNA comparison. Under these circumstances the record warrants the conclusion that the People acted with reasonable diligence in obtaining a DNA match." (citations omitted)), appeal denied, 6 N.Y.3d 755, 810 N.Y.S.2d 423 (2005).

3. Johnson's Excessive Sentence Claim Was Not Raised To The New York Court Of Appeals

Johnson's habeas petition attached the Table of Contents of his First Department brief, asserting that due to the "unusual circumstances arising from the delay in prosecution," Johnson's sentence was excessive, and the Court assumes that Johnson intended to raise that claim in federal court. (See page 13 above.) However, Johnson's leave to appeal letter only asked the New York Court of Appeals to review "issues concerning . . . tolling of the former five-year statute of limitations," and made no mention of his excessive sentence claim. (Dkt. No. 19: Axelrod Aff. Ex. F: 12/11/09 Johnson Ct. App. Leave Letter at 2-10; see pages 12-13 above.) By not including the excessive sentence claim in his leave letter, Johnson did not present the claim to the New York Court of Appeals. See, e.g., Smith v. Duncan, 411 F.3d 340, 345 (2d Cir. 2005) ("Generally 'we assume that the [New York] Court of Appeals would construe a petitioner's leave application as abandoning claims that the petitioner had pressed to the Appellate Division below' where those claims were not presented to the New York high court for review."); accord, e.g., Jackson v. Lee, 10 Civ. 3062, 2010 WL 4628013 at *19-21 (S.D.N.Y. Nov. 16, 2010) (Peck, M.J.) (& cases cited therein), report & rec. adopted, 2010 WL 5094415 (S.D.N.Y. Dec. 10, 2010). Therefore, Johnson's excessive sentence claim is unexhausted. (See cases cited on page 25 above.)

B. Johnson's Unexhausted Claims Are Deemed Exhausted And Procedurally Barred

"'For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9, 109 S. Ct. 1038, 1043 n.9 (1989))). "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., St. Helen v. Senkowski, 374 F.3d at 183; DiGuglielmo v. Smith, 366 F.3d at 135; McKethan v. Mantello, 292 F.3d at 122-23; Ramirez v. Attorney Gen., 280 F.3d at 94; Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S. Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.

Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004) ("even if a federal claim has not been presented to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it has become procedurally barred under state law."), cert. denied, 543 U.S. 1058, 125 S. Ct. 871 (2005); DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004) (petitioner's procedurally defaulted claims deemed exhausted where he could no longer obtain state-court review because of his procedural default); McKethan v. Mantello, 292 F.3d 119, 122-23 (2d Cir. 2002) (claims deemed exhausted where they were "procedurally barred for not having been raised in a timely fashion"), cert. denied, 129 S. Ct. 233 (2008); Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted."), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995).

As the Second Circuit has explained:

In New York, to invoke "one complete round of the State's established appellate review process," a criminal defendant must first appeal his or her conviction to the Appellate Division, and then must seek further review of that conviction by applying to the Court of Appeals for a certificate granting leave to appeal.
Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir.) (citation omitted; quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732 (1999)), cert. denied, 544 U.S. 1025, 125 S. Ct. 1996 (2005).

In this case, it is clear that Johnson is now barred from raising his Fifth Amendment, Brady, statute of limitations and excessive sentence claims before the New York Court of Appeals since he has already used his one opportunity for leave to appeal to that court. See N.Y. Comp. Codes R. & Regs. tit. 22, § 500.20(a)(2) (permitting only one application for leave to appeal).

Since these claims are record based, Johnson cannot raise them in a C.P.L. § 440 motion (see C.P.L. § 440.10(2)(c) (barring a collateral attack on claims that could have been raised on direct appeal)), or a state petition for a writ of habeas corpus (see People ex rel. Thorpe v. Smith, 67 A.D.3d 1135, 1135, 887 N.Y.S.2d 874, 874 (3d Dep't 2009) ("It is well settled that [state] habeas corpus relief is unavailable with respect to matters that could have been raised on direct appeal or in the context of a CPL article 440 motion."), appeal denied, 14 N.Y.3d 705, 899 N.Y.S.2d 129 (2010))

To avoid a procedural default on his unexhausted claims, Johnson would have to "show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claims will result in a 'fundamental miscarriage of justice,'" i.e., a showing of "actual innocence." Harris v. Reed, 489 U.S. at 262, 109 S. Ct. at 1043 (citations omitted); accord, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S. Ct. 851, 865-67 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 2557 (1991); see also, e.g., Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006); Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005); Smith v. Duncan, 411 F.3d 340, 347 (2d Cir. 2005); DeBerry v. Portuondo, 403 F.3d 57, 64 (2d Cir.), cert. denied, 546 U.S. 884, 126 S. Ct. 225 (2005); St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 871 (2005); DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir. 2004); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

Here, Johnson makes no showing of cause or prejudice, but instead questions why the perpetrator's DNA was found on only one of the victims and not the other. (Dkt. No. 1: Pet. Att. at 11.) Liberally construed, this might constitute an argument that Johnson is actually innocent, and hence his claims should be excepted from procedural default.

The Supreme Court has explained that the fundamental miscarriage of justice exception is "tied . . . to [a] petitioner's innocence" and exists to protect those who are "actually innocent." Schlup v. Delo, 513 U.S. at 321, 324, 115 S. Ct. at 864, 865. Because "'actual innocence' means factual innocence, not mere legal insufficiency," Bousley v. United States, 523 U.S. 614, 623- 24, 118 S. Ct. 1604, 1611 (1998); accord, e.g., Sweet v. Bennett, 353 F.3d 135, 142 (2d Cir. 2003); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002), "prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House v. Bell, 547 U.S. 518, 536-37, 126 S. Ct. 2064, 2076-77 (2006) (emphasis added); see also, e.g., Schlup v. Delo, 513 U.S. at 324-27, 115 S. Ct. at 865-67 (fundamental miscarriage of justice must be demonstrated by showing through "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence."); Murden v. Artuz, 497 F.3d 178, 194 (2d Cir. 2007) ("'To demonstrate actual innocence a habeas petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.' This requires 'a stronger showing' than the showing of prejudice necessary to prevail on an ineffective assistance claim. Actual innocence requires 'not legal innocence but factual innocence.'" (citations omitted)), cert. denied, 552 U.S. 1150, 128 S. Ct. 1083 (2008).

Accordingly, the fundamental miscarriage of justice exception is "extremely rare" and should be applied only in "extraordinary case[s]." Schlup v. Delo, 513 U.S. at 321-22, 115 S. Ct. at 865; see also, e.g., Morrison v. Ercole, 07 Civ. 3576, 2009 WL 161040 at *6 (S.D.N.Y. Jan. 16, 2009) ("The Second Circuit has emphasized that the type of evidence on which claims of actual innocence may be based is strictly limited and that petitioners must meet a 'demanding standard' in order to take advantage of this 'gateway.'").

Johnson fails to meet the heavy burden required in Schlup and House. As part of his petition, Johnson questions why the perpetrator's DNA was only recovered from one victim, when "if I suppose[d]ly done this to both victims . . . then they should of had my DNA on both victims." (Pet. Att. at 11.) This assertion of actual innocence falls well short of the standard as Johnson fails to provide any new evidence to support his actual innocence claim. Johnson's actual innocence claim fails because "[w]ithout any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Schlup v. Delo, 513 U.S. at 316, 115 S. Ct. at 861; accord, e.g., Jones v. Armstrong, 367 F. App'x 256, 259 (2d Cir.) (Petitioner "has not presented any new evidence that was not presented at his trial. Instead, he argues that the jury placed too much emphasis on the testimonial evidence and not enough emphasis on the physical evidence. This does not make out an actual innocence claim allowing this Court to disregard [petitioner's] procedural default."), cert. denied, 130 S. Ct. 3367 (2010); Celaj v. Artuz, 49 F.App'x 331, 334 (2d Cir. 2002) (quoting Schlup), cert. denied, 538 U.S. 912, 123 S. Ct. 1495 (2003); Rodriguez v. Marshall, No. 07-CV-1328, 2011 WL 2650196 at *4 (E.D.N.Y. June 29, 2011) ("[A] habeas petition alleging 'actual innocence' must provide 'new reliable evidence' of innocence 'that was not presented' at trial; a petitioner's bare statement that he is innocent is insufficient." (quoting Schlup)); Thomas v. Heath, 10 Civ. 5861, 2011 WL 1849097 at *6 (S.D.N.Y. May 16, 2011) ("To be credible, a claim of actual innocence must be supported by 'new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'" (quoting Schlup)); Lasso-Reina v. Haponick, 05 Civ. 8817, 2009 WL 3334843 at *9 (S.D.N.Y. Oct. 14, 2009) ("Moreover, the petitioner is expected to establish actual innocence based on new evidence rather than what was presented at trial."); Fernandez v. Artus, 07 Civ. 2532, 2009 WL 1586271 at *15 (S.D.N.Y. June 8, 2009) (Peck, M.J.) ("To claim actual innocence, a petitioner must show more than the prosecution's evidence was weak or even insufficient; rather, he must present new evidence (such as DNA evidence) of his innocence.").

As Johnson has not shown cause, prejudice or a fundamental miscarriage of justice, his Fifth Amendment, Brady, statute of limitations and excessive sentence habeas claims should be DENIED as unexhausted but deemed exhausted and procedurally barred from habeas review.

CONCLUSION

For the reasons discussed above, Johnson's habeas petition should be DENIED and a certificate of appealability should not issue.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Colleen McMahon, 500 Pearl Street, Room 1350, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge McMahon (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. DATED: New York, New York

If the pro se petitioner requires copies of any of the cases reported only in Westlaw, petitioner should request copies from defense counsel. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); SDNY-EDNY Local Civil Rule 7.2.

August 3, 2011

Respectfully submitted,

/s/_________

Andrew J. Peck

United States Magistrate Judge Copies to: Leroy Johnson

Susan Axelrod, Esq.

Judge Colleen McMahon


Summaries of

Johnson v. Kirkpatrick

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Aug 3, 2011
11 Civ. 1089 (CM) (AJP) (S.D.N.Y. Aug. 3, 2011)

noting that "most ineffective assistance of counsel claims . . . cannot be raised on direct state appeal but rather must be made through a C.P.L. § 440 motion"

Summary of this case from Fields v. Lee

stating that "most ineffective assistance of counsel claims cannot be raised on direct state appeal but rather must be made through a CPL § 440 motion"

Summary of this case from Burnett v. Lee

stating that "most ineffective assistance of counsel claims cannot be raised on direct state appeal but rather must be made through a CPL § 440 motion"

Summary of this case from Griffin v. Suffolk Cnty.
Case details for

Johnson v. Kirkpatrick

Case Details

Full title:LEROY JOHNSON, Petitioner, v. ROBERT KIRKPATRICK, Superintendent, Wende…

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Aug 3, 2011

Citations

11 Civ. 1089 (CM) (AJP) (S.D.N.Y. Aug. 3, 2011)

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