Vellonv.David

United States District Court, E.D. New YorkNov 11, 2003
01-CV-6505 (JBW) 03-MISC-0066 (JBW) (E.D.N.Y. Nov. 11, 2003)

01-CV-6505 (JBW) 03-MISC-0066 (JBW)

November 11, 2003


MEMORANDUM, JUDGMENT ORDER


JACK WEINSTEIN, Senior District Judge

The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

Petitioner was charged with three counts of sexual abuse in the second degree, sodomy in the second degree, two counts of incest, rape in the third degree, endangering the welfare of a child and sexual abuse in the third degree.

The evidence supported the following statement of facts: Sometime in June of 1995, petitioner entered the bedroom in his house where his thirteen years old daughter was sleeping. He touched her vagina and breasts. In December of 1995, he again entered his daughter's bedroom, removed her underwear and kissed her vagina. In May of 1997, the victim was again sleeping when petitioner entered the bedroom, pulled down her underpants and placed his penis inside her vagina. Subsequently, after watching a music video that depicted a girl being raped by her father and then telling her boyfriend, the victim broke down in August 1997 and told her boyfriend what her father, petitioner, had been doing to her. Petitioner was arrested.

At the trial the court heard extensive testimony from the victim about petitioner's abuse and the music video that prompted her to come forward. After the first day of jury deliberations, an article appeared in the New York Daily News describing the reaction of the musical group upon hearing that their video had prompted someone (the victim) to report that she was being sexually abused. The petitioner moved for a mistrial on the grounds that the article gave credence to the victim's testimony and to the theory of the prosecution's case.

The court spoke to each juror individually about whether she or he had read or discussed the article. It determined that no juror had been influenced. At a later point in deliberations, a juror informed the court that he had overheard a conversation between two people regarding the musical group and the impact of its music video on a sexual abuse victim. The court received assurances from the juror that overhearing the conversation had not affected his ability to be fair and impartial. The jury found the petitioner guilty on all of the counts in the indictment.

He was sentenced to indeterminate consecutive prison terms of from two and one-third to seven years for the sodomy conviction and of from one and one-third to four years for the rape conviction. He was also sentenced to concurrent prison terms of from one and one-third to three years for each of the two incest convictions, one year each for the three second-degree sexual abuse and the endangering convictions, and to ninety days for the third-degree sexual abuse conviction.

Petitioner's conviction was affirmed on direct appeal. People v. Mellon, 275 A.D.2d 471, 716 N.Y.S.2d 350 (2d Dept. 2000). Leave to appeal to the New York Court of Appeals was denied. People v. Vellon, 95 N.Y.2d 970, 716 N.Y.S.2d 350 (2d Dept. 2000). A motion to vacate the judgment of conviction pursuant to section 440.10 of the New York Criminal Procedure Law was denied,

In his application for a writ of habeas corpus, petitioner claims that (1) he was denied effective assistance of trial counsel because of trial counsel's failure to (i) ensure that the petitioner had an interpreter, (ii) ensure that the petitioner was promptly arraigned after he was arrested and indicted, (iii) put petitioner on the stand despite his expressed desire to testify, and (iv) call other witnesses to establish, petitioner's innocence; (2) petitioner was not present at sidebars during the trial; (3) he was never arraigned after he was arrested; (4) the jury was not sequestered as petitioner's counsel had requested; and (5) one or more jurors should have been disqualified due to their knowledge of media coverage.

II. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in 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 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to 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, I, 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," Id. at 413, Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, In order to grant the writ there must be "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 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1).

III. Exhaustion

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

Pursuant to AEDPA, a district court may 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 Slate, 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.

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

When a state court "says that a claim is `not preserved for appellate review' and then 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 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there arc "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. Certificate of Appeal ability

A certificate of appealability maybe 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 28 U.S.C. § 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. Artvz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at * 15 (2d Cir. July 18, 2003).

This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit, See Sumner 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").

VI. Analysts of Claims

All of petitioner's claims have been exhausted

A.

Petitioner first claims that he was denied the effective assistance of trial counsel. He alleges that counsel refused to call him to testify in his own defense, He names several witnesses that counsel elected not to call as witnesses, maintaining that the "missing witnesses" could have verified his innocence. They included the victim's younger sister whom trial testimony established was sleeping in the same room while petitioner sexually abused the victim.

Petitioner alleges that counsel neglected to secure a Spanish interpreter even though, as petitioner claims, counsel knew that the petitioner did not speak English, He also attributes to ineffective counsel a failure to ensure that he was properly arraigned after his arrest.

The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence," 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). In giving meaning to this requirement the courts must be guided by its purpose — "to ensure a fair trial;" 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 "mere 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 "reaches 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, 460 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 "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 will 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. Hollins, 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 implied 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"), Despite Eze, 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 cowl 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).

Arraignment

Petitioner claims that counsel did not ensure that he was arraigned promptly after arrest, The trial court held that the he was procedurally barred from raising defects in his arraignment, The court also found as a factual matter that petitioner had been arraigned. The court, however did not discuss the timing of the arraignment. Except under certain circumstances, this court may not review a claim that was defaulted in state court pursuant to an independent and adequate state procedural rule, Coleman v. Thompson, 501 U.S. 722 (1991). No evidence indicates that the arraignment was improper. Denying the claim will not result in a "fundamental miscarriage of justice." Granting of the writ is not warranted in these circumstances.

Missing Witnesses

Petitioner names several witnesses that counsel declined to call as witnesses. Portions of the "missing" testimony would have been excluded under the New York rape shield law. N.Y.C.P.L. § 60, 42. Petitioner intended to elicit testimony regarding his daughter's sexual activity, The trial court consistently excluded testimony regarding the victim's sexual history. Counsel's decision not to elicit admissible testimony from other witnesses constituted strategic choices and did not fall below "an objective standard of reasonableness under prevailing professional norms." Strickland, 446 U.S. at 687-88, The claim is meritless.

Interpreter

Petitioner claims that counsel failed to secure an interpreter. In his affidavit to support his motion to vacate judgment, petitioner claims that he "requested [an] interpreter," Vellon Sec. 440.10 Aff. ¶ 6. "[A]n indigent defendant who could speak and understand no English would have a right to have his trial proceedings translated so as to permit him to participate effectively in his own defense, provided he made an appropriate request for aid." United States ex. rel. Negron v. New York, 434 F.2d 386, 390 (2d Cir. 1970). The record demonstrated that petitioner understood English.

He was able to understand and answer questions in English, Counsel referred to petitioner during trial, stating, "my client understands English and my client speaks English," Trial Proceedings at 605, During his indictment proceedings, petitioner answered "yes" when asked if lie understood several lengthy statements in English. Indictment Proceedings at 4. Not surprisingly, the record indicates only that the he "articulated" better in his "native tongue," Spanish. Trial Proceedings at 605, Counsel also assured the trial court that he had "no problem communicating with him [in English]," Id. at (506, The trial court's factual conclusions are eminently reasonable, and granting of the writ is not warranted in these circumstances.

Petitioner's Right to Testify

Petitioner complains that he "wanted to testify." Vellon Sec. 440.10 Aff. ¶ 6, He also claims that counsel" never explained when he could" testily. Id. He alleges that his confusion made him unaware that when the defense rested, his opportunity to testify was terminated. The Supreme Court has ruled that the accused's right to testify at his trial is grounded in the Due Process Clauses of the Fifth and Fourteenth Amendments, U.S. Const, amends. V, XIV, VI; Rock v. Arkansas, 483 U.S. 44, 51 (1987), and the Compulsory Process Clause of the Sixth Amendment, U.S. Const, amend, VI; Rock, 483 U.S. at 52. "It is one of the rights that are `essential to due process of law in a fair adversary process,'" Rock, 482 U.S. at 51 (quoting Faretta v. California, 422 U.S. 806, 819 n. 15 (1975)), "The necessary ingredients of the Fourteenth Amendments guarantee that no owe shall be deprived of liberty without due process of law include a right to be heard and to offer testimony," Id. The defendant's waiver of the right to testify must be "knowing" and "intelligent." Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973).

The Court of Appeals for the Second Circuit held that "the decision to testify belongs to the defendant and may not be made for him by defense counsel," Brown v. Artuz, 124 F.3d 73, 78 (2d Cir. 1997). Although the defendant's right to testify is "personal to the defendant," Id at 77. the trial court has no general obligation to "inform a defendant of the right to testify and ascertain whether the defendant wishes to waive that right." Id. at 79. A charge that defense counsel has overridden the defendant's right to testify is "a component of the effective assistance of counsel" and must "satisfy the two-prong test established in Strickland v. Washington Id. at 79.

The trial court held that counsel's decision not to call petitioner did not constitute ineffective assistance of counsel. His motion to vacate does not indicate that he told counsel that he wanted to testify, Vellon Sec. 440.10 Aff. ¶ 6, His affidavit only states that he "wanted to testify," Id, In his petition to this court, he claims that "he told [counsel] that he wanted to tell his side of the story," Vellon Pet. ¶ 12, F. (emphasis added). There is no record indicating whether counsel expressly advised him of his right to testify. Based on a review of the record, the trial court concluded that it was "unlikely" that counsel failed to inform him of his right. Given his assertions that he wanted to testify, it is likely that he was aware of his right to testify.

The trial record indicates that the court was preparing for petitioner's testimony. The trial court's language suggests that the decision to call petitioner to the stand was equivocal, using the phrase "if he testified," In the following exchange, the trial court appeared certain that petitioner would take the stand:

Court: All right, you had an application yesterday regarding the interpreter. Let's deal with that now.
Counsel: Yes, As I said at sidebar, Judge, my client understands English and my client speaks English but my client cannot articulate very well in English and I am requesting that we have an interpreter so that he can speak as well as he can and articulate as well as he can in his native tongue which is Spanish.
Court: All right, I asked you to put it on the record because I wouldn't want anyone to misconstrue in the future the fact that there was an interpreter during his testimony but there was none during the time he sat at the defense table, Counsel: I understand that, Judge.
Court: I assume you have no problem communicating with him.
Counsel: Absolutely not.

Court: In any language?

Counsel: No.

Court: So we will do that when he testifies. I guess you are ready to proceed?
Counsel: Yes, I am.

Trial Proceedings at 605-06 (emphasis added).

Counsel's request for an interpreter suggests that he was at least contemplating calling petitioner. For whatever strategy, counsel decided to rest before calling him, When counsel informed the trial court that he was resting his case; petitioner remained silent. Trial Proceedings at 642. He in no way voiced his desire to testify. See, e.g., Acevedo v. Demeskie, 1999 U.S. Dist. LEXIS 22072, *5-6 (E.D.N.Y. 1999) ("[T]he Petitioner's barebones assertion that his attorney failed to determine whether he understood that he had the right to testify . . . is insufficient to establish a violation of his right to testify,"). The evidence indicates that he understood English at the time of the trial, He was aware of his right to testify. This court's and respondents' attempts to obtain a letter from petitioner's trial counsel regarding this matter were unsuccessful. In any event, petitioners inaction and silence after defense rested was a demonstrable waiver of his right to testify. This waiver was knowing and intelligent. The claim is meritless.

B.

Petitioner claims that his due process rights were violated because he was not present at sidebars during his trial. He also claims that he did not understand what action transpired at the sidebars. Petitioner has not established the nature of the sidebars, at what stage in the trial they occurred or whether his presence was necessary. A criminal defendant has the fight "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 5 (1975). The "right to be present is not absolute: it is triggered only when the defendant's `presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,'" Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-06 (1934)).

The trial court held that petitioner was procedurally barred from raising the issue of his presence or absence at sidebar discussions. If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative, see Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989), "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, Here, petitioner has not provided the Court with any new evidence to substantiate an actual innocence claim, and he, therefore, cannot rely on the miscarriage-of-justice exception to obtain habeas review of his procedurally-barred claims. See Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).

In any event, the court has no reason to believe that petitioner's presence at sidebar discussions-where defense counsel was already present-would have altered the outcome of the trial. Petitioner was denied no due process rights. Granting of the writ is not warranted in these circumstances.

Petitioner next claims that he was not arraigned when arrested. The trial held that petitioner was procedurally barred from raising this issue, In any event, the trial court found as a factual matter that petitioner had been arraigned-Granting of the writ is not warranted in these circumstances.

D.

In addition, petitioner claims that the trial court erred in not sequestering the jury during deliberations. The trial court held that petitioner was procedurally barred from raising the issue of jury sequestration. It was a matter of record that could have been raised on direct appeal. "The decision to sequester the jury to avoid exposure to publicity is committed to the discretion of the court, and failure to sequester the jury can rarely be grounds for reversal." United States v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989). Although there is a constitutional right to a fair and impartial jury, no court has ruled that the sequestration of a jury is a "fundamental or constitutionally guaranteed right." Young v. Alabama, 443 F.2d 854, 856 (5th Cir. 1971). The jury was not tainted, was not prejudiced as a result of being separated, rather than sequestered, and there was no resulting "constitutional violation," See Lydon v. Kuhlman, 62 F. Supp.2d 974, 979 (E.D.N.Y. 1999), The granting of the writ is not warranted in these circumstances.

E.

Lastly, petitioner claims that the trial court's failure to declare a mistrial and award him a new trial upon discovery that members of the jury had been exposed to media coverage related to his trial violated his constitutional right to due process, "[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation," Smith v. Phillips, 455 U.S. 209, 217 (1982), The trial court is given responsibility for discovering and purging prejudicial jurors and the havoc their biases can wreak on the fairness of the judicial process. In conducting a trial, the courts require "a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Id.

In petitioner's case, the trial court questioned each juror individually as to whether he or she had been exposed to the article and whether anything in the article affected the juror's ability to remain fair and impartial, Similarly, one juror informed the court that he had overheard a conversation related to petitioner's trial. The court questioned him extensively regarding his ability to remain fair and impartial, At the conclusion of the trial court's in camera investigations, the trial court remained assured of the jury's impartiality.

As the Supreme Court stated in Smith v. Phillips, "it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote," Id The record indicates that the trial court was respectful of the "ultimate inquiry" when examining an intrusion-media or otherwise-upon a jury's deliberations: "Did the intrusion affect the jury's deliberations and thereby its verdict?" United States v. Loan, 507 U.S. 725, 739 (1993), This court is satisfied with the trial court's examination of possible bias among jurors and agrees that no juror could be considered "grossly unqualified to serve" on the jury. N.Y. C.L.S. C.P.L, § 270.35(1); People v. Rodriguez, 71 N.Y.2d 214, 219 (1988). The petitioner was not denied due process rights. Granting of the writ is not warranted in these circumstances.

VII Conclusion

The petition for a writ of habeas corpus is denied.

No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.

SO ORDERED.