United States District Court, E.D. New YorkSep 22, 2003
01-CV-0499 (JBW), 03-MISC-0066 (JBW) (E.D.N.Y. Sep. 22, 2003)

01-CV-0499 (JBW), 03-MISC-0066 (JBW)

September 22, 2003


JACK WEINSTEIN, Senior District Judge

Evidence of petitioner's guilt was overwhelming. He sold heroin to an undercover police officer and was arrested, at the scene. Pre-recorded buy money was recovered from him. At his arrest, he stated, "I knew you were a cop. I shouldn't have sold to you."

A hearing was held in this matter — a privilege that is accorded to few habeas petitioners. Petitioner was given an opportunity to indicate why his petition should be granted. The court orally discussed those claims which were not patently frivolous and denied all of his claims as meritless. It dented his application for a writ of habeas corpus, It denied a certificate of appealability.

The judgment was vacated by the Court of Appeals for the Second Circuit, which instructed the court to "enter an opinion" specifically addressing each of petitioner's claims and to specify "the precedents it relied upon in rendering its oral decision," Ramirez v. Fisher, No. 01-2429, slip op. at 1 (2d Cir. May 12, 2003). Compare Summer v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit"); Miranda v. Bennett, 322 R3d 171, 175, 177 (2d Cir. 2003) (acknowledging that the Court of Appeals has an obligation to review a district court's conclusions of law de novo and that "in some cases, a lack of substance is plain from the face of the application, and the necessary determination can be made even if the district court has denied the petition with the tersest of orders"); Rudetiko v. Costello, 322 F.3d 168 (2d Cir. 2003) (withdrawing earlier opinion granting certificates of appealability in 16 cases because the opinion erroneously "gave some the impression that the Court believed that district judges were not giving thorough reviews to or conducting independent analyses of habeas petitions").

Although all of petitioner's claims appear — and appeared — frivolous on their face, in compliance with the directive from the Court of Appeals, this memorandum details the reasons for this court's denial of petitioner's habeas corpus application.

I. Facts and Procedural History

As noted above, petitioner was arrested after selling heroin to a police officer. He was in possession of pre-recorded buy money. He made an inculpatory statement at the time of his arrest.

Petitioner sought suppression of the physical evidence and of his statement. A hearing was held and the suppression motion was denied.

Petitioner was convicted, following a jury trial, of third degree criminal sale of a controlled substance. He was sentenced as a second felony offender to 10 to 20 years in prison.

His conviction was affirmed by the Appellate Division, Leave to appeal to the New York Court of Appeals was denied.

An application for a writ of error coram nobis, contending that petitioner received ineffective assistance of appellate counsel, was dented by the Appellate Division.

In his application for a writ of habeas corpus, petitioner claims that (1) he is entitled to a new suppression hearing because the prosecution failed to turn over as Rosario material the second page of a police report; (2) that the prosecutor's summation deprived him of a fair trial; and (3) he received ineffective assistance of appellate counsel because of counsel's failure to raise issues concerning the voir dire.


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 R3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part), Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," hi at 413, Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No, 01-2299, 2002 U.S, App, LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Torres v. Berbary, No, 02-2463, 2003 U.S. App. LEXIS 161(57, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C § 2254(e)(1).

III. Exhaustion

In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Limdy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir 1982) (en banc).

Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).

IV. Procedural Bar

A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.
Cotto v. Herbert, 331 E3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).

If a state court holding contains a plain statement that a claim is procedurally barred them the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S, 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v, Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit, `the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr, Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n, 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 R3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id.

V. Ineffective Assistance of Counsel

The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const, amend, VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation `fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002), A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697, In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001), The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694), Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).

As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law arc "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id. at 691, Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Rollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 321 F.3d at 136 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").

There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U, S, at 689.

Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v, Lord, No, 00 CIV. 5510, 2002 US, Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar, 18, 2002) (Magistrate's Report and Recommendation).

Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Sculty, 982 F.2d 798, 803 (2d Cir. 1992), Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v, Henderson 13 F.3d 528, 533 (2d Cir. 1994), Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state. . . . claim fell outside the wide range of professionally competent assistance," Id. (quotations omitted).

VI. Batson

"More than a century ago, the [Supreme] Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded." Batson v, Kentucky, 476 U.S. 79, 85 (1986) (citing Strauder v. West Virginia, 100 U.S. 303, 25 L, Ed. 664 (1880)). In Batson, the Court resolved certain evidentiary problems faced by defendants trying to establish racial discrimination in peremptory strikes. It established a three-step burden-shifting framework for the evidentiary inquiry into whether a peremptory challenge is race-based. First, the party challenging the other party's attempted peremptory strike must make a prima facie case that the nonmoving party's peremptory is based on race. Batson, 476 U.S. at 96-97. Second, the nonmoving party must assert a race-neutral reason for the peremptory challenge. Id. at 97-98. The nonmoving party's burden at step two is very low. Under Purkett v, Elem, 514 U, S, 765 (1995) (per curiam), although a race-neutral reason must be given, it need not be persuasive or even plausible. Id. at 768, Finally, the court must determine whether the moving party carried the burden of showing by a preponderance of the evidence that the peremptory challenge at Issue was based on race, Batson, 476 U.S. at 96, 98.

Throughout the three Batson steps, the burden remains with the moving party. "It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination," Parkett, 514 U.S. at 768. Typically, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed, Because the evidence on this issue is often vague or ambiguous, the best evidence often will be the demeanor of the attorney who exercises the challenge. Evaluation of the attorney's credibility lies "peculiarly within a trial judge's province." Wainwright v. Witt, 469 U.S. 412, 428 (1985).

VII. Certificate of Appealability

A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 2S U.S.C, g 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003), The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).

VII. Analysis of Claims

All of petitioner's claims have been exhausted, All are meritless under any standard of review. Unless otherwise noted, the claims are reviewed de novo.


Petitioner first claims that he is entitled to a new suppression hearing because the prosecution failed to turn over as Rosario material the second page of a detective's report prior to the detective's testimony at the pretrial suppression hearing. The second page of the report indicated that at 8:15 p.m. the detective began a new assignment. It contained no information directly pertinent to petitioner's arrest,

Pursuant to People v. Rosario, the state must provide a criminal defendant with the pretrial statements of any witness who will be called to testify on behalf of the prosecution. 173 N, E.2d 881, 883-84 (N, Y, 1961). Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Because a Rosario claim is purely a state right, embodying "`policy considerations grounded in state common law, not constitutional principles,'" the prosecutorial failure to turn over Rosario material is not subject to habeas review by a federal court. Whittman v. Sahourin, 2001 U.S. Dist. LEXIS 8049, at *12 (S.D.N.Y. June 12, 2001) (quoting Southland v. Walker, 1999 U.S. Dist. LEXIS 19327, at *9 (S.D.N.Y. Dec. 10, 1999)).

At any rate, the claim appears to have little substance even under state law. The Rosario rule, as codified in the New York criminal procedure law, obliges the prosecution to "make available to the defendant. . . . any written or recorded statement . . . made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony," N.Y, Crim. Pro, Law § 240, 45(1)(a). A similar rule holds with respect to discovery at pretrial hearings: "each party, at the conclusion of the direct examination of each of its witnesses, shall, upon request of the other party, make available to that party to the extent not previously disclosed; . . . Any written or recorded statement . . . made by such witness other than the defendant which relates to the subject matter of the witness's testimony." N.Y. Crim. Pro. Law § 240.44 (emphasis added).

The detective testified at the hearing about the circumstances of petitioner's arrest. He was the arresting officer, backing up the undercover officer who had bought the narcotics from petitioner. Among other things, the detective testified that he heard petitioner state to the undercover officer that he shouldn't have sold him the drugs because he knew the undercover was a police officer. The timing of the arrest or petitioner's statement was not at issue. The Appellate Division, in finding the Rosario claim meritless, stated:

The trial court properly denied the defendant's request to reopen the suppression hearing when the People failed to deliver, until trial, the second page of the arresting officer's daily Activity report, since it did not constitute Rosario material. The officer's direct testimony concerned the details of the so-called "buy-and-bust" operation which culminated in the defendant's arrest, and not the information contained in his daily activity report, which included the time he began his next assignment. Therefore, it did not "merit characterization as Rosario material"
People v. Ramirez, 687 N.Y.S.2d 381, 381-82 (App.Div. 1999) (citation omitted). This conclusion is reasonable. Although the log book might arguably have been useful to defense counsel to suggest that the detective had too little time to have participated in the arrest of petitioner and to have overheard his inculpatory statements, on this record there is no reasonable probability that the hearing court would have suppressed petitioner's statement or the physical evidence based on such a slender reed. Petitioner was not denied due process, Habeas relief on this claim is not warranted.

To the extent petitioner couches his claim as a violation of Brady v. Maryland, 373 U.S. 83 (1967), the claim is unexhausted. At any rate, it is meritless, The prosecution in a criminal matter has a constitutional obligation to disclose exculpatory evidence to the defendant, "A finding of materiality of the evidence is required under Brady." Giglio v. United States, 405 U.S. 150, 154 (1972). Exculpatory evidence is considered material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S, 667, 682 (1985)). Nondisclosure merits relief only if the prosecution's failure "`undermines confidence in the outcome of the trial.'" Kyles v. Whitly, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). The Supreme Court has rejected any distinction between impeachment evidence and exculpatory evidence. See Bagley, 473 U.S, at 676. Impeachment evidence "is `evidence favorable to an accused,' Brady, 373 U.S, at 87, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal," Id.

The detective's log report was turned over to the defense at the trial and was not withheld. Moreover, there is no reasonable probability that if the log report had been used by the defense a different trial result would have been reached. Habeas relief on this ground is not warranted.


Petitioner next claims that the prosecutor's summation deprived him of a fair trial. The Appellate Division deemed this claim procedurally defaulted because unpreserved. Because the claim is without merit — as the Appellate Division held in the alternative — this court need not decide whether the invoked procedural ground is adequate to bar review in federal court.

Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process, Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). Nonetheless, "when the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair." Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S, at 643). Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceedings. DeChristoforo, 416 U.S. at 643. In order to view any prosecutorial misconduct in context, "we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution, . . . Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted).

Defense counsel, in his summation asserted that the narcotics introduced into evidence at trial were not the same narcotics sold by petitioner. Counsel argued to the jury that the district attorney's office never explained how it was possible that the drugs recovered from petitioner weighed less when they arrived at the chemist for analysis. The prosecutor responded by recounting the chain of custody and stating that the detective did not weigh the evidence. Petitioner complains that there was no testimony at trial that the detective weighed the evidence, and that the prosecutor was thus testifying as an unsworn witness to facts not in evidence. In reviewing this claim, the Appellate Division concluded that "the comments made by the prosecutor during summation were either fair comment on the evidence, responsive to the defendant's summation, or not so prejudicial as to constitute reversible error in light of the overwhelming evidence of the defendant's guilt." Ramirez, 687 N.Y.S, 2d at 382 (citations omitted).

Even if the prosecutor's comment was improper, any error was harmless in light of the overwhelming evidence of petitioner's guilt. Petitioner was not denied a fundamentally fair trial by the prosecutor's comments. Habeas corpus relief is not warranted.


Finally, petitioner claims that, be received ineffective assistance of appellate counsel because appellate counsel failed to argue on appeal that the trial court improperly: (1) precluded petitioner from withdrawing a peremptory challenge; (2) denied petitioner's for-cause challenge to a prospective juror; and (3) found that petitioner had failed to make out a prima facie case of discrimination to support a Batson challenge. These claims of ineffectiveness were exhausted in petitioner's coram nobis application, where they were denied on the merits. Review proceeds under the deferential standards of AEDPA.

First, during a round of voir dire, defense counsel exercised peremptory challenges against two jurors. Upon reflection, he wished to withdraw those challenges. The prosecution consented to counsel's "reinstatement" of one juror (which resulted in petitioner saving a peremptory strike), but the prosecution did not consent to the reinstatement of the second challenged juror, The trial court refused to allow petitioner's counsel to backtrack and rejigger the panel. There was no abuse of discretion by the trial court; to the contrary, the trial court went out of its way to grant in part defense counsel's unreasonable request, There was no error, and appellate counsel was not ineffective for failing to raise this meritless claim on direct appeal.

Second, defense counsel made a for-cause challenge against a seventeen-year veteran of the New York City Police Department on the ground of an implied bias. The prospective juror stated during voir dire that he had made narcotics arrests and that he had testified in drug cases, He also stated that he would be impartial and would not favor police witnesses' testimony, The trial court refused the for-cause challenge. Petitioner had no peremptory challenges left and so could not remove the officer from the panel. Petitioner relies on a so-called "implied bias" statutory rationale for allow a challenge for cause:

A challenge for cause is an objection to a prospective juror and may be made only on the ground that . . . (c) He is related within the sixth degree by consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant; or that he is or was a party adverse to any such person in a civil action; or that he has complained against or been accused by any such person in a criminal action; or that he bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict,

N.Y. Crim. Pro. Law § 270.20 (emphasis added). The trial court did not abuse its discretion by failing to allow a for-cause dismissal of the officer from the jury panel based on this statutory criterion. Appellate counsel, at any rate, was no ineffective for failing to raise such a weak claim in lieu of other, stronger claims.

Third, petitioner complains that appellate counsel failed to raise a Batson claim on direct appeal. Defense counsel argued during voir dire that a pattern of discrimination had been established because the prosecution had exercised four peremptory challenges against African-American potential jurors from a total of six potential African-American jurors. According to the court and the prosecutor, however, peremptory challenges were exercised against only three potential African-American jurors in a venire pool that totaled 56 persons. The trial court concluded that this evidence alone was not sufficient to establish a prima facie case of discrimination, and the court therefore did not require the prosecutor to offer race-neutral reasons for the challenges. The trial court's decision is in line with New York case law interpreting the requirements of Batson. See, e.g., People v, Vidal, 622 N.Y.S.2d 323, 324 (App.Div. 1995) ("[I]n support of his Batson application, the defense counsel noted only the bare fact that the prosecutor exercised five of his eight peremptory challenges against black venire persons, In the absence of a record demonstrating other facts or circumstances supporting a prima facie case, we find `the defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination,'" (quoting People v Boiling, 591 N.E, 2d 1136 (N, Y. 1992)). Under these circumstances, appellate counsel's decision not to pursue a Batson claim on direct appeal was reasonable strategy and was not ineffective.

Petitioner's ineffective assistance of appellate counsel claim does not warrant habeas corpus relief.

VII. Conclusion

The petition for a writ of habeas corpus is denied,

A certificate of appealability is denied with respect to each of petitioner's claims because they appear to raise no substantial legal issues. Because the Court of Appeals, after its de novo review of this court's initial decision, appears to have found the possibility of sufficient merit in petitioner's claims to warrant further proceedings, the court may once again review them, should it grant a certificate of appealability. Petitioner is again reminded of his right to seek a certificate directly from the Court of Appeals for the Second Circuit.