REPORT AND RECOMMENDATION

ALLEN G. SCHWARTZ, U.S.D.J.

Victor Ayuso brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for murder in the second degree following a jury trial in New York State Supreme Court, New York County. Mr. Ayuso contends that:

(1) the trial court violated his 6th and 14th Amendment rights by denying his motion to disband the jury panel; (2) he was denied his due process right to a fair trial by (a) prosecutorial misconduct in the opening statement and summation and (b) the trial court's limitation on his right to present a defense; (3) the reading back of testimony to the jury was prejudicial and led to an unreliable verdict; and (4) new evidence has been discovered that would likely have changed the jury's verdict. For the reasons set forth below,

I recommend that the petition be denied.

Background

A. Trial Testimony

On December 29, 1993, Blasina Valdez awoke at 7 a.m., and, between a half-hour and an hour later, she answered her doorbell. (Tr. 68-70, 75). The man at the door claimed he was the parole officer for Mrs. Valdez's 23-year-old son, Francis Valdez, and displayed a silver badge. (Tr. 30, 76). According to Mrs. Valdez this man was wearing grey pants, a blue blazer, and a tie. (Tr. 113). Francis was living with his mother after having been released on parole for a drug-related conviction. (Tr. 30-31, 53-54). Although the man at the door was not Francis' usual parole officer, Mrs. Valdez let him, woke Francis who was sleeping on the living room couch, and then returned to the kitchen at her son's request. (Tr. 65-66, 78-80). The man then handcuffed Francis and spoke to him, but Mrs. Valdez could not understand what they were saying. (Tr. 80-81, 109). The intruder reassured Mrs. Valdez in English that nothing was wrong and donned plastic gloves. (Tr. 82, 88). He proceeded to search Mrs. Valdez' bedroom, disconnected the phones in the home, and then confined Mrs. Valdez in her bedroom by tying the door shut. (Tr. 83-85). Through a crack in the door, she could see the man searching through Francis' closet. (Tr. 83-84). She observed him speak on a walkie-talkie, stating that "everything was okay," and then she heard a gunshot. (Tr. 87).

After she broke open the bedroom door, she called out Francis' name, and when he did not answer, she ran out of the house and screamed for help. (Tr. 87).

The police arrived on the scene soon after 9 a.m. (Tr. 150-51). They determined that Francis had been shot once in the head through a pillow. The police found a bag of marijuana on the table and .45 caliber cartridges on the couch near his bed. (Tr. 155-56, 168-69). Mrs. Valdez denied ever having seen either the drugs or the ammunition. However, she did state that a week before the murder, she had discovered a gun under a pillow on the couch and had told Francis to get it out of the house. (Tr. 97-98, 110-12, 142). Of the 51 fingerprints taken from the scene, 17 could be analyzed, but none matched those of the petitioner. (Tr. 298-300). Officer Chris Napolitano completed a police report based on information that his partner received from Mrs. Valdez. (Tr. 177-78). In the report, the shooter is described as a black man with short hair and no facial hair who spoke English without an accent, was six feet tall, weighed 200 lbs. and looked to be 40-45 years old. (Tr. 182-85). However, Mrs. Valdez later told one of the detectives handling the case, Madelyn Ruperto, that the shooter was either Hispanic or black with a receding hairline and mustache, and was 30-40 years old. (Tr. 307, 313-14, 347-48). Finally, Mrs. Valdez testified in court that the perpetrator had a complexion that was "a little dark" but did not identify him as a black man; she said that the intruder had a full head of very short brown hair and a mustache, spoke "perfect English" but with an accent, weighed 200 lbs, and appeared to be 39-41 years old. (Tr. 71-72, 95-96, 108, 115).

Most three months after the murder occurred, Mr. Ayuso voluntarily came to the precinct at the request of the police. (Tr. 340). Detective Ruperto interviewed him in Spanish because the petitioner preferred that language and spoke English with an accent. (Tr. 346, 358). According to Detective Ruperto, Mr. Ayuso told her that he shaved his head. (Tr. 353). The petitioner then participated in a lineup, and Mrs. Valdez identified him as the shooter. She subsequently identified him again at the trial. (Tr. 90-93).

The victim's brother, Edward Valdez, stated that Mr. Ayuso, who was 52 at the time of the crime, knew the victim: a few days before the murder, the petitioner had called the store where Francis and the petitioner's nephew Michael Smith worked, looking for both of them. (Tr. 241-42, 245, 247, 254-55, 462). Mr. Ayuso had also come to the store approximately one month before the shooting in search of Francis. (Tr. 247-48). Edward testified that the petitioner always spoke in Spanish. (Tr. 249-50, 253). Jose Paula, a cousin of the victim, testified that on the night of the murder, he went to the home of his friend Michael Smith, Mr. Ayuso's nephew. (Tr. 222-23, 232). Mr. Paula saw Mr. Ayuso there and, according to his later testimony, the petitioner did not have hair on the top of his head, had very short hair on the sides, and appeared to be 40 years old. (Tr. 233, 235). Mr. Paula stated that he overheard Mr. Ayuso that night speaking in English on the telephone. (Tr. 233, 235).

The defense argued that Mr. Ayuso could not have been the shooter because at the time of the murder he was with his sister and grandson. Furthermore, the defense claimed that he did not match the description given by Mrs. Valdez, the sole witness to the crime. In particular, the defense maintained that Mr. Ayuso could not have had short hair because he has been bald on the top of his head for some time; that he is in his 50's contrary to Mrs. Valdez's description; and that he speaks English with a strong accent, again in contrast to what Mrs. Valdez reported to the officers who arrived at the scene of the crime. According to the petitioner, he was having breakfast with his sister, Gloria Ayuso, and his two-year-old grandson at the time of the murder. (Tr. 464, 479). Mr. Ayuso stated that his daughter Daphne dropped off her son with him at his girlfriend's apartment, where he was then living, at approximately ten minutes before eight in the morning. (Tr. 466, 479). About twenty minutes later he and his grandson went to Gloria's apartment, who lived down the hall, to eat breakfast. (Tr. 435, 479). Mr. Ayuso also admitted that he had been convicted of several drug-related crimes. (Tr. 495, 498). Mr. Ayuso's girlfriend, Doris Cubiz, did not recollect the morning of December, 29, 1993, in particular, but testified that most mornings she left for work around 8 a.m., at which time Mr. Ayuso would still be in bed. (Tr. 427). On redirect, Ms. Cubiz stated that every morning Mr. Ayuso's daughter would bring her son over for Mr. Ayuso to babysit. (Tr. 436-37). Ms. Cubiz also testified that he was bald on the top of his head and that she had never seen him wear a blazer or a tie. (Tr. 428-29, 433). Mr. Ayuso's sister, Gloria Ayuso, testified that on December 29, 1993, she fixed breakfast for the petitioner and his grandson. They arrived at her apartment before 9 a.m. (Tr. 444-47, 453-54).

According to Ms. Ayuso, the petitioner came from Ms. Cubiz's apartment wearing jeans, a t-shirt, and slippers. (Tr. 460-61, 459). She remembered this day in particular because it was a friend's birthday, and this friend came over at 9 a.m. to go shopping. (Tr. 444-47, 453-54). Ms. Ayuso testified that the petitioner was bald on the top of his head and had been for at least five years. She commented that he shaved the sides of his head ever since he became bald. (Tr. 452-53).

B. Cross-Examination of Detective Ruperto

The defense attorney questioned Detective Ruperto repeatedly about other suspects who were investigated in connection with the murder. He was able to elicit from Detective Ruperto that the police investigated a woman who gave the victim money for drugs but did not get the full value of drugs in return (Tr. 330-31), a man who had allegedly made threats to the victim (Tr. 332), and another man with whom the victim had had an "incident" several years earlier. (Tr. 336). The defense attorney also questioned the detective about another man who may have been shot by the victim (Tr. 330-32), and a man whom the victim had threatened with a gun (Tr. 335). However, the detective never confirmed whether these individuals were investigated because the prosecutor's objections were sustained. (Tr. 330-32, 335-37).

C. Opening and Closing Statements

During his opening statement the prosecutor stated that: you're going to hear testimony about a man, Frances [sic] Valdez, a young man, twenty-three, twenty-four years of age who unfortunately, like so many young people in our society, had gotten himself into a little bit of trouble. More than a little bit of trouble. He got involved with drugs. He got involved with drugs that got him into trouble with the law and ultimately it caused him his death.

(Tr. 30). Later, in his closing, the prosecutor stated:

Well, from the very beginning, I told you this case was about a young man who unfortunately got involved in drugs, went to jail and that involvement ultimately cost him his life.

We knew Francis went to jail. We knew Francis was involved with drugs.

Guess, what else we found out? The defendant, three felony narcotic convictions, The defendant on federal — not state, I'm not talking state — federal parole. Narcotics. We find that out from the defendant himself.

(Tr. 546). Richard Harvey, the petitioner's attorney, never objected to any of these comments.

In his own summation, Mr. Harvey attempted to explain reasonable doubt, and the court sustained the prosecutor's objections:

MR. HARVEY: . . . If, when you've heard [Mr. Ayuso's] testimony and/or the testimony of any of the witnesses called by the defense, not just himself, if you're left thinking "I can't dismiss that. I can't ignore that," isn't that what amounts essentially to a reasonable doubt?

MR. RED ARROW [The Prosecutor]: Objection, Judge.

THE COURT: Yes, I sustain the objection. I'll explain reasonable doubt.

MR. HARVEY: His Honor will instruct you what reasonable doubt is. When he does so, I'd ask you to think of the defendant's testimony in particular; that of his witnesses as well. If any one of them or all of them together raised in your minds the feeling —

MR. RED ARROW: Objection.

THE COURT: I haven't heard what he's saying yet. I can't rule.

MR. Harvey: Thank you.

If any one of them raised in your minds the feeling that person sounds as if he might be telling the truth, that person sounds as if she has got it right, then you have no option in this case but to acquit, for this reason:

Once your [sic] left feeling that the defense may have got it right, then the prosecution cannot possibly have proved their case beyond a reasonable doubt.

MR. RED ARROW: Objection.

THE COURT: Your objection is sustained. You can disregard counsel's comments. You're supposed to comment on the evidence and the lack of it and not tell them what constitutes reasonable doubt.

(Tr. 523-24).

D. Verdict and Postrial Proceedings

On September 21, 1995, the jury found Mr. Ayuso guilty of second degree murder. His attorney filed a motion to set aside the verdict on November 10, 1995. (Memorandum of Law in Support of Motion to Set Aside Verdict and Order New Trial ("330 Motion") attached as Exh. 1 to Killian Aff.). In this motion, the petitioner argued that: (1) a read-back of Ms. Cubiz's testimony was prejudicial; (2) new evidence had been discovered that probably would have changed the verdict; (3) the defendant was entitled to a hearing to discover the extent of any jury misunderstanding due to the allegedly improper read-back testimony and to present the new evidence; and (4) the prosecutor's opening and closing statements were improper because he referred to the victim's death as being drug-related without an evidentiary foundation and attempted to impute motive from the petitioner's drug convictions in violation of the petitioner's right to a fair trial.

The new evidence proffered in the § 330 Motion consisted of an affidavit from the petitioner's daughter, Daphne Ayuso, who attested that she dropped off her son Jason with her father the morning of the murder just before 8 a.m. The following are excerpts from her affidavit:

I remember [Mr. Harvey] told us he wanted to have any evidence about where my father was on the day the murder happened. . . .

. . .

I remember telling my step-brother Orlando about my father taking care of Jason [the day of the murder] but I never spoke to Mr. Harvey about it. I assumed that Orlando would tell him since he was the one who had retained Mr. Harvey. Later on, when I wasn't asked to testify in the trial, I was surprised but I supposed Mr. Harvey knew what he was doing so I never asked him why he didn't ask me for my evidence. . . .

I will never forget the day he called to tell me the jury had found my father guilty. He said that he had talked to some of them and they had said they didn't believe my father could have done it if he was taking care of my son. But they never heard the evidence read back where Doris said she saw Jason every morning before she went to work. When he told me this, I said: "Why didn't you ask me to testify? I remember that week very well." Mr. Harvey seemed shocked and asked me why I never mentioned this to him before. I explained that I had told my brother and assumed he had told him. I don't understand anything about courts and I just thought they knew what they were doing and I shouldn't question it.

(Affidavit of Daphne Ayuso dated Nov. 10, 1995, attached to 330 Motion ("Daphne Ayuso Aff.") at 1-3). Mr. Harvey presents a different perspective of the events:

Although I had previously asked the family for all witnesses to the events of December 29th, particularly in the early morning, the only family members or others who ever indicated they had relevant testimony were Doris Cubiz, Gloria Ayuso and the late Mary Ferrer. I wondered why Daphne Ayuso had not mentioned the facts about her son to me but I also wondered that she never came to court even after I asked her to do so. It appeared to me that she was in denial and had a perhaps understandable desire to turn her back on the entire court process. I was left to assume that she simply had no memory of the day in question. . . .

Had I been aware of Ms. Ayuso's testimony, I would have called her since this evidence would have been crucial, and in no way cumulative, to establishing that the defendant was taking care of a small child at the very time when he was accused of perpetrating a brutal and vicious murder.

(Harvey Aff. at 3-4).

The trial judge denied the motion without comment and sentenced Mr. Ayuso to 25 years to life in prison on November 20, 1995. (Decision dated Nov. 20, 1995, attached as Exh. 3 to Killian Aff.; Killian Aff. ¶ 7).

In April 1998, the Legal Aid Society filed an appeal on behalf of Mr. Ayuso. The petitioner argued that the trial court improperly denied the motion to disband the panel in violation of the 6th and 14th Amendments and that the petitioner was deprived of his due process right to a fair trial by the prosecutor's improper summation and the court's limitation on the cross-examination by defense counsel about other potential suspects. On October 1, 1998, the Appellate Division, First Department affirmed Mr. Ayuso's conviction. People v. Ayuso, 254 A.D.2d 26, 679 N.Y.S.2d 103 (1st Dep't 1998). Leave to appeal to the Court of Appeals was denied on December 2, 1998. People v. Ayuso, 92 N.Y.2d 1028, 684 N.Y.S.2d 493 (1998). Finally, on November 10, 1999, Mr. Ayuso filed his habeas corpus petition.

Discussion

A. Jury Selection

The petitioner contends that the trial court improperly denied his request to disband the jury panel in violation of his Sixth and Fourteenth Amendment rights. This argument is without merit.

In response to questions posed during jury selection, one of the potential jurors stated that he lived three blocks away from the crime scene and that the defendant "kind of looks familiar to me." (V. Tr. 35). The trial judge then asked: "Would the fact that you lived three blocks away make you uncomfortable in sitting on this case?" (V. Tr. 35). To which the potential juror responded in front of the jury panel, "Yeah, I think it would." (V. Tr. 35). Thereafter, the judge excused the juror. After the panel left the courtroom, defense counsel argued that the panel should be dismissed because of the potential prejudice to the panel based on the excused juror's comment. The trial judge denied the request, and the Appellate Division later upheld his ruling, finding that the court had acted within its discretion. Ayuso, 254 A.D.2d at 26, 679 N.Y.S.2d at 103-04.

All defendants are entitled to a fair trial with jurors free from "predisposition about the defendant's culpability." Gomez v. United States, 490 U.S. 858, 873 (1989) (citation omitted). See also Irvin v. Dowd, 366 U.S. 717, 722 (1961) (defendant must receive "a fair trial by a panel of impartial, indifferent' jurors"). If there is unapproved private communication, contact, or tampering with a juror, the trial court should hold a hearing to determine whether it was harmful to defendant. See Remmer v. United States, 347 U.S. 227, 229-30 (1954); see also Smith v. Phillips, 455 U.S. 209, 217 (1982) ("due process does not require a new trial every time a juror has been placed in a potentially compromising situation;" hearing may be held to determine bias).

However, hearings are not required in all situations. Rather, the trial court has discretion to determine whether one is necessary, and such determinations are reviewable only for abuse of that discretion. See United States v. Diaz, 176 F.3d 52, 78 (2d Cir. 1999); Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994); United States v. Carmona, 858 F.2d 66, 69 (2d Cir. 1988) (per curiam).

In this case, there was no abuse of discretion. The potential juror simply stated that the defendant looked familiar, which was not unexpected given that the petitioner lived in same neighborhood as the juror. The fact that the petitioner looked familiar has no evidentiary value: there is no nexus between the possible recognition of Mr. Ayuso from the neighborhood and his involvement in the crime. Hence there is no reasonable possibility that the juror's statement polluted the rest of the panel.

B. Right to Present a Defense

The petitioner next argues that the trial court deprived him of his right to present a defense. In particular, he contends that the trial court prevented his attorney from enumerating examples of what would constitute "reasonable doubt" in his closing statement, did not allow the defense to fully cross-examine a police investigator about other possible shooters, and improperly admitted propensity evidence. These claims are without merit.

1. Limitations on Closing Statement

Trial courts have wide latitude in limiting the scope of closing arguments. See Herring v. New York, 422 U.S. 853, 862 (1975); Maiorino v. Scully, 746 F. Supp. 331, 337 (S.D.N Y 1990).

Allegations that the court improperly limited a summation are subject to harmless error analysis; to succeed with such a claim the effect on the petitioner must be both substantial and injurious. See Hernandez v. Dufrain, No. 95 Civ. 2487, 1996 WL 63054, at *6 (S.D.N.Y. Feb. 13, 1996).

In this case, the trial court properly limited defense counsel's closing statement in which he attempted to instruct the jury on reasonable doubt. See United States v. Wables, 731 F.2d 440, 449 (7th Cir. 1984) ("It is beyond question that `it [is] for the judge, not counsel, to explain the law to the jury.'") (citation omitted). Furthermore, even if the judge had overstepped his authority, the limitations on Mr. Harvey's closing were not so great as to have caused a substantial and injurious effect to the petitioner in the juror's deliberations.

2. Limitations on Cross-Examination The petitioner alleges that the trial court did not permit the defense to fully cross-examine Detective Ruperto about other suspects. A defendant has the right to confront his accusers and should be allowed to cross-examine them to elicit possible biases and motives for testifying. Davis v. Alaska, 415 U.S. 308, 315-16 (1974). This right is not absolute, however, and the "trial judge retains a wide latitude to exclude irrelevant, repetitive, or cumulative evidence." United States v. Holmes, 44 F.3d 1150, 1157 (2d Cir. 1995) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); see also Taylor v. Illinois, 484 U.S. 400, 410-13 (1988) (right to cross-examine not absolute); United States v. Rahme, 813 F.2d 31, 37 (2d Cir. 1987) (where trial judge limited cross-examination and defendant's claim that further cross-examination would have shown bias was speculative). Claimed violations of the right to confrontation are reviewed for abuse of discretion and are subject to harmless error analysis. See Henry v. Speckard, 22 F.3d 1209, 1215-16 (2d Cir. 1994); see also United States v. McGowan, 58 F.3d 8, 15-16 (2d Cir. 1995); Moe v. Walker, No. 97 Civ. 4702, 1999 WL 58691, at *5 (S.D.N.Y. Feb. 5, 1999).

Here, the trial court properly exercised its discretion. The defense attorney was able to elicit from Detective Ruperto that the police investigated a woman who may have felt cheated by the victim in a drug deal (Tr. 330-31), a man who had allegedly made threats to the victim (Tr. 332), and another man with whom the victim had had an "incident" several years earlier. (Tr. 336). The trial court allowed defense counsel to inquire about other suspects, and Mr. Harvey was also able to pose reasons why they were investigated. (Tr. 330-32, 335-37). The court acted will within its authority in limiting inquisition on these collateral issues. See United States v. Robbins, 197 F.3d 829, 845 (7th Cir. 1999) (district court properly limited cross-examination of law enforcement official when he was asked about the extent of his investigation); Vasquez v. Dipaolo, No. Civ. 96-12261, 1998 WL 428012, at *8 (D.Mass. July 23, 1998) (court reasonably limited cross-examination of investigators about other suspects).

C. Prosecutorial Misconduct in the Closing Statement

The petitioner also argues that the prosecutor's summation denied him a fair trial. He maintains that references to his three prior drug convictions and to the victim's involvement with drugs improperly implied that the murder was drug-related although no evidence had been admitted to support this theory. This claim is barred from review because it was rejected by the state court on independent and adequate state grounds. If a petitioner fails to comply with a state procedural rule when he presents the claim to the state court and the state court denies relief based on the procedural default, a federal court may not grant habeas corpus relief based on that claim. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977); Harris v. Reed, 489 U.S. 255, 262 (1989) (no habeas corpus review if state court already denied clam on "adequate and independent state grounds"); see also Hayes v. Coombe, 142 F.3d 517, 518 (2d Cir. 1998). Only those claims that the state court has "clearly and expressly" rejected based on a state procedural rule are barred from habeas corpus review in accordance with this doctrine. Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995) (citation omitted). See also Jones v. Vacco, 126 F.3d 408, 414 (2d Cir. 1997). However, if the state court did so rule, then the procedural bar applies even if the court also addressed the merits of the petitioner's claim in the alternative. See Harris, 489 U.S. at 264, n. 10; Wedra v. LeFevre, 988 F.2d 334, 338-39 (2d Cir. 1993); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

In this case, the petitioner raised his claim concerning the prosecutor's summation both in his 330 Motion and on appeal. The Appellate Division ruled against Mr. Ayuso on procedural grounds and on merits, stating that the "defendant did not preserve his current claims of error regarding comments of the prosecutor during summation and we decline to review them in the interest of justice. Were we to review them, we would find the comments to be proper." Ayuso, 254 A.D.2d at 26, 679 N.Y.S.2d at 104. Accordingly, the petitioner's claim is barred based on the state court's rejection of this claim on adequate and independent state grounds.

1. Cause and Prejudice A petitioner can avoid this procedural bar only by showing either (1) cause for the default and prejudice resulting from the alleged constitutional error, or (2) that the failure to review the claim by the federal habeas court would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; see also McClesky v. Zant, 499 U.S. 467, 494-95 (1991) (same); Murray v. Carrier, 477 U.S. 478, 488 (1986) (defining cause); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Cowan v. Artuz, 96 F. Supp.2d 298, 303 (S.D.N.Y. 2000); Abreu v. Kuhlmann, No. 99 Civ. 9726, 2000 WL 1773476, at *4 (S.D.N.Y. Dec. 4, 2000). Cause is established if "the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488; accord Coleman, 501 U.S. at 753; McClesky, 499 U.S. at 493. Examples of cause for default include a factual or legal basis for the claim that was not reasonably available, interference by officials that made compliance with the rule impracticable, or ineffective assistance of counsel. McClesky, 499 U.S. at 493-94; see also Coleman, 501 U.S. 752. To demonstrate prejudice, the alleged errors must have worked to the petitioner's "actual" and "substantial" disadvantage. United States v. Frady, 456 U.S. 152, 170 (1982). See also McClesky, 499 U.S. at 494.

The petitioner in this case has not argued or demonstrated cause. The decision of defense counsel not to object to the allegedly improper statements made by the prosecutor during summation was within the scope of appropriate trial strategy, and it appears from the record that the defense was not impeded by any external interference. It is unnecessary to examine whether the petitioner was prejudiced by the prosecutor's statements because the petitioner must demonstrate both cause and prejudice to overcome the procedural bar.

2. Miscarriage of Justice Even if the petitioner cannot establish cause and prejudice, he may still overcome the procedural bar if he shows that the failure to consider his claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 749-50 (citation omitted). See also Wainwright, 433 U.S. at 90-91; McClesky, 499 U.S. at 494; Murray 477 U.S. at 495-96; Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993). In addition to showing a meritorious constitutional claim, the petitioner must also present new evidence of his innocence. See Schlup v. Delo, 513 U.S. 298, 324-27 (1995); Coleman, 501 U.S. at 748; Murray, 477 U.S. at 496; Washington, 996 F.2d at 1447. Actual innocence is established where there is "a fair probability" that based on the evidence presented by the petitioner, the trier of fact would have "entertained reasonable doubt of [the petitioner's] guilt." Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 455, n. 17 (1986)). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup, 513 U.S. at 327.

The court may not use its independent judgment in determining whether reasonable doubt exists; "rather the [actual innocence] standard requires the district court to make a probabilistic determination about what reasonable properly instructed jurors would do." Id. at 329. However, in making its determination, the court is "not bound by rules of admissibility that would govern at trial." Instead the court may consider "relevant evidence that was either excluded or unavailable at trial." Id. at 327-28.

The petitioner has not met this standard. The new evidence of innocence that Mr. Ayuso presents consists of an affidavit from his daughter Daphne confirming that she dropped off her son with him the morning of the crime. (Daphne Ayuso Aff.). Daphne's statement corroborates Mr. Ayuso's statement and, to a more limited degree, Ms. Cubiz's statement that most mornings Daphne left her son with Mr. Ayuso. (Tr. 436-37, 464, 466, 479). Mr. Ayuso's sister, Gloria Ayuso, also confirmed that the grandson was with the petitioner the morning of the murder. (Tr. 445, 447). The jury in this case credited Mrs. Valdez's testimony over that of the interested alibi witnesses. Daphne Ayuso was simply one more such witness. Thus, Mr. Ayuso has also failed to demonstrate that the failure to review this claim would result in a miscarriage of justice.

D. Read-back Testimony, New Evidence, and the Prosecutor's Opening Statement

Finally, Mr. Ayuso claims (1) that the reading back of Ms.Cubiz's testimony was prejudicial and led to an unreliable verdict; (2) that new evidence, namely Daphne's affidavit, would have altered the verdict had the jury heard it; and (3) that the prosecutor's reference to the victim's death being drug-related in his opening statement violated the petitioner's right to a fair trial. These claims are unexhausted yet forfeited for habeas review because Mr. Ayuso is procedurally barred from raising them in state court.

1. Exhaustion Pursuant to 28 U.S.C. § 2254(b)(1)(A), a petitioner must exhaust all state remedies to the highest state court. See also Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991); Daye v. Attorney General of the State of New York, 696 F.2d 186, 190, n. 3 (2d Cir. 1982); Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981).

If exhaustion is impossible because of a state procedural bar, the claim is considered exhausted for purposes of habeas corpus review, but review is then forfeited on the basis of the doctrine of independent and adequate state grounds. See Gray v. Netherland, 518 U.S. 152, 162 (1996) ("the procedural bar [in state court proceedings] which gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim"); see also Coleman, 501 U.S. at 735 n. 1; Harris, 489 U.S. at 263 n. 9; Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991) (habeas review precluded where "New York procedural rules plainly bar petitioner from attempting to raise his" claims in state court).

In circumstances where there is a "clear" state procedural bar, the writ must be denied with prejudice as exhaustion is no longer available. Harris, 489 U.S. at 263 n. 9; see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (prisoner who failed to present claims for discretionary review to state supreme court had procedurally defaulted those claims for purposes of his petition for federal habeas relief); Gray, 518 U.S. at 161-62; Reyes v. Keane, 118 F.3d 136 (2d Cir. 1997).

The petitioner in this case never raised these claims on appeal, although he did raise them in his 330 Motion. Because they were not included in Mr. Ayuso's direct appeal, they have not been presented to the highest available state court and are therefore not exhausted. However, the claims are deemed exhausted because he has procedurally defaulted on the state remedies that were once available to him. The petitioner is only entitled to one direct appeal, see N.Y. Ct. Rules § 500.10(a), and is barred from any state collateral relief because he could have raised the claims in his direct appeal. See CPL § 440.10(2)(c); see also Reyes, 118 F.3d at 139 ("440.10(2)(c) mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record."); Levine, 44 F.3d at 126. But see People v. Mitchell, 78 A.D.2d 820, 820, 433 N.Y.S.2d 126, 126 (1st Dep't 1980) (denying claim of prosecutorial misconduct on appeal because the issue was not preserved but concluding that claim "may be pursued by an appropriate post-conviction motion (CPL § 440.10)").

In addition, the petitioner cannot obtain relief through a writ of coram nobis or a state writ of habeas corpus. See People v. Perez, 162 Misc.2d 750, 763, 616 N.Y.S.2d 928, 937 (1994) (writ of coram nobis is unavailable where § 440 motion is applicable); People ex rel. Allah v. Leonardo, 170 A.D.2d 730, 565 N.Y.S.2d 331 (3d Dep't 1991) (denying state writ of habeas corpus where claim could have been raised on direct appeal or motion to vacate judgment).

Due to Mr. Ayuso's forfeiture of his state remedies, the claims are considered exhausted yet procedurally barred from habeas corpus review.

2. Cause, Prejudice, Miscarriage of Justice As discussed above, this procedural bar may only be overcome by showing either cause for the default and prejudice resulting from the alleged violation of federal law or that there would be a miscarriage of justice if the claim was not reviewed. See Coleman, 501 U.S. at 750 (1991).

The petitioner has failed to argue or allege any facts demonstrating cause, prejudice, or a miscarriage of justice. There is no indication that there was any cause for not raising these claims on direct appeal, and the petitioner has not established that there is "a fair probability," that the jury would have "entertained reasonable doubt of his guilt" based on the new evidence. Lebron, 40 F.3d at 564 (quoting Kuhlmann, 477 U.S. at 455, n. 17).

Conclusion For the reasons set forth above I recommend that the petitioner's application for a writ of habeas corpus be denied and the petition be dismissed. Pursuant to 28 U.S.C. § 636 (b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this Report and Recommendation. Such objection shall be field with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Allen G. Schwartz, Room 1350, 500 Pearl Street, New York, New York 10007 and to the chambers of the undersigned, Room 1960. Failure to file timely objections will preclude appellate review.