Opinion
01-CV-3069 03-MISC-0066
August 20, 2003
MEMORANDUM, ORDER AND JUDGMENT
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
The evidence showed that on December 25, 1996, Melinda Lohier went to a family Christmas dinner at her cousin's house. At about 8 p.m., shortly after she returned to her Lenox Road residence in Brooklyn, petitioner (sometimes referred to as petitioner), Lohier's common-law husband, also arrived at the residence. Petitioner questioned Lohier about her activities and angrily demanded money from her. Lohier drove with petitioner and their three year-old son to a nearby ATM and withdrew money. In the car, with the child between them petitioner punched Lohier in the eye and chest, with a closed fist, causing Lohier's eye to swell and bruise. Petitioner then directed Lohier to drive home, petitioner left immediately and Lohier called the she resisted. Petitioner lifted Lohier's head and hit it against a night stand, after which Lohier was not able to struggle effectively and petitioner succeeded in inserting his penis into Lohier's vagina. At about 2 a.m., on December 26, 1996, petitioner awoke Lohier, forcefully separated her legs, and again inserted his penis into her vagina.
By orders of this court filed September 23, 2002, and December 11, 2001, appointed counsel was denied. Petitioner seeks a writ of habeas corpus on the following grounds:
POINT I: Petitioner was denied his constitutional right to due process where based upon the evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt and where the verdict was against the weight of the credible evidence. U.S. Const., XIV.
POINT II: The introduction of a prior 1994 misdemeanor assault conviction and the admission of this evidence in such quantity and repetitive nature was impermissibly prejudicial and deprived petitioner of his right to a fair trial. U.S. Const., XIV.
POINT III; Petitioner was denied his right to the effective assistance of counsel under both the federal and New York constitutions. U.S. Const., XIV.
POINT IV: Petitioner was denied his constitutional right to a fair trial by reason of prosecutorial misconduct. U.S. Const., XIV.
the second degree (P.L. § 120.05), two counts of assault in the third degree (P.L. § 260.11 [1]), and endangering the welfare of a child (P.L. § 260.10[1]). Petitioner was sentenced on December 4, 1997 and resentenced on June 3, 1998 to a period of incarceration of four to eight years on each count of rape in the first degree, two to four years on the two sexual abuse counts, one and one-half years to three years on the assault in the second degree counts, and one year on the endangering the welfare of a minor count, with all sentences to run concurrently.
Petitioner appealed. His conviction was affirmed. Leave to appeal to the Court of Appeals was denied.
The Appellate Division had modified the judgment by vacating the conviction for endangering the welfare of a minor, writing:
Appeal by the petitioner from (1) a judgment of the Supreme Court, Kings County (Dabiri, J.), rendered December 4, 1997, convicting him of rape in the first degree (two counts), sexual abuse in the first degree (two counts), assault in the second degree, assault in the third degree (two counts), and endangering the welfare of a minor, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, rendered June 3, 1998, modifying the sentence imposed on the convictions of sexual abuse in the first degree (two counts).
ORDERED that the judgment is modified, on the law, by count of the indictment; as so modified, the judgment is affirmed; and it further,
ORDERED that the amended judgment is affirmed.
The petitioner moved to set aside the verdict convicting him of endangering the welfare of a minor, on the ground that the evidence was legally insufficient. The People consented to the dismissal, but the trial court denied the motion. Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally insufficient to establish the petitioner's guilt beyond a reasonable doubt of endangering the welfare of a minor ( see, People v. Carr, 208 A.D.2d 855; see also, People v. Johnson, 261 A.D.2d 557; People v. Dash, ___ A.D.2d ___ [2d Dept, Sept. 27, 1999]).
However, the evidence was legally sufficient to establish the petitioner's guilt of the remaining counts beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt with respect to the remaining counts was not against the weight of the evidence ( see, CPL470.15[5]).
The petitioner's remaining contentions are either
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, 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." 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 as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, Ill (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. Berbary v. Torres, 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. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground," Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)). court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 99 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S.4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]He Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling). the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d Ill, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. 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). § 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). V. 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, 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 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.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal petitioner beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that petitioner violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal petitioner "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 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
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "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. 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 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, 2003 U.S. App. LEXIS 2511, at *78-*79 (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 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 U.S. 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 Claudia v. Scully, 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 favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319(1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue. XI. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694,
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. Artuz, ___ F.3d ___, No. 02-2320, slip op. at 10 (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").
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.
XIII. Analysis of Claims
A.
The claim that guilt was not established beyond a reasonable doubt is procedurally barred because it was not raised on petitioner's application for leave to the New York Court of Appeals. It is meritless on the facts. If believed by the jury, the complaining witness proved the case beyond a reasonable doubt.
B.
In his state court direct appeal, petitioner claimed, based on People v. Molineux, 168 Supp.2d 260, 276 (S.D.N.Y. 2000) ("Molineux is state law issue"). Thus, in presenting this claim to the state court, petitioner did not raise a constitutional issue. See Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984) (unelaborated reference to due process of law is not sufficient to inform state court of constitutional claim). By omitting what petitioner now claims is the constitutional nature of his Molineux claim from his state court appeal, petitioner forfeited his opportunity to exhaust his state court remedies with respect to this claim. Accordingly, absent a showing of cause for the default and resulting prejudice, or a fundamental miscarriage of justice, none of which petitioner has demonstrated, petitioner is procedurally barred from obtaining federal habeas relief based on this claim. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994).
In any event, petitioner's claim with meritless. For an erroneous evidentiary ruling to warrant habeas relief, a habeas petitioner must demonstrate that the purported error was so pervasive as to deny the petitioner a fundamentally fair trial. Dowling v. United States, 493 U.S. 342, 352 (1990). The Court of Appeals for the Second Circuit has set forth the following standard for federal habeas review of claims of improperly admitted evidence:
Whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been "crucial, critical, highly significant."Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982).
Under both state and federal law, although the prosecution may not introduce evidence of an uncharged crime to establish the petitioner's bad character or criminal propensity, the prosecution may introduce such evidence if it is offered to prove some relevant issue in the case and the probative value of the evidence exceeds the potential for prejudice to the petitioner. Fed.R.Evid. 404(b); United States v. Pipola, 83 F.3d 556, 565 (2d Cir.), cert. denied, Ill S.Ct. 183 (1996); People v. Ventimiglia, 52 N.Y.2d 350, 359-60, 438 N.Y.S.2d 261, 264 (1981); People v. Molineux, 168 N.Y. 264, 293 (1901). Moreover, under federal law, the trial court is given "broad discretion" regarding the admissibility of such evidence, and the court's ruling will not be overturned absent a clear abuse of discretion. United States v. Smith. 127 F.2d 214, 220 (2d cir. 1984).
Here, the trial court carefully weighed the potential for prejudice to petitioner against the People's need to present evidence addressing the relationship between the parties and the element of forcible compulsion for the rape charges. Moreover, although the court ruled that the People would be permitted to introduce on their direct case evidence of the underlying facts of an incident of February 4, 1994, which, according to the People's information, involved a prior sexual assault on Lohier by petitioner, when the People actually inquired about the prior assault, Lohier made no mention of the sexual nature of the assault. Hence, petitioner was not harmed by the court's ruling that evidence of the sexual nature of the assault was admissible. As to the testimony concerning the physical aspect of the assault, this testimony was probative of the forcible compulsion element of rape in the first degree, with which petitioner was charged in this This claim is meritless. See People v. DeLeon, 177 A.D.2d 641 (2d Dep't 1991); People's Brief to the Appellate Division at 27-29, Respondent's Exhibit B.
C.
On direct appeal, petitioner claimed that his trial counsel was ineffective. Petitioner's Main Brief to the Appellate Division, at 30-42. Petitioner raises this same claim in his habeas petition. The Appellate Division did not address the claim explicitly, but referred to it, along with petitioner's claim that evidence of a prior uncharged crime was improperly admitted and that the prosecutor engaged in misconduct, in ruling that "petitioner's remaining contentions are either unpreserved for appellate review or without merit." People v. Edme, 270 A.D.2d 497, 498, 706 N.Y.S.2d 341, 342 (2d Dep't 2000). Because the People made no preservation argument with respect to this claim on appeal, but made a preservation argument with respect to the claims concerning the evidence of uncharged crimes and prosecutorial misconduct (People's Brief to the Appellate Division at 26, 44-46) — the other claims referred to by the Appellate Division as either unpreserved or without merit — it seems that the Appellate Division's adjudication of petitioner's claim of ineffective assistance of counsel was on the merits. See Sellan v. Kuhlman, No. 99-2632, 2001 U.S. App. LEXIS 18325, * 25-26 (2d Cir. Aug. 14, 2001) (discussing factors to be considered in determining whether state court adjudication is on the merits, including whether history of the case suggests that state court was aware of non-substantive grounds for rejecting claim). Hence, petitioner is not entitled to habeas relief based on this claim unless the Appellate Division's adjudication of the claim was contrary to or an unreasonable application of of counsel is entirely without merit. Accordingly, the Appellate Division's denial of petitioner's claim was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. 28 U.S. § 224(d)(1).
This claim is denied as meritless.
D.
This court has examined the record. The petitioner's trial counsel did a decent job at the trial, pretrial and sentence. The judge was fair; her rulings were well within her discretion. When defense counsel objected the trial court took immediate protective action when appropriate. See Trial Transcript p. 194, 199; compared. 198.
E.
Petitioner's claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963), which he did not raise at trial, rests not on the prosecutor's failure to provide petitioner with particular information prior to trial, but on the prosecutor's failure to characterize that information as exculpatory of petitioner. The information at issue was not exculpatory. Hence, the prosecutor did not err in failing to characterize it as such. See United States v. LeRoy, 87 F.2d 610, 618, (2d Cir. 1982) (where petitioner is on notice of essential facts which would enable him to take advantage of exculpatory material, prosecutor's Brady obligation is satisfied).
F.
Petitioner's claim concerning the prosecutor's summation is procedurally barred from federal habeas review because petitioner did not present it to the state appellate court in federal U.S. 1048 (1984). Rather, petitioner argued that as a matter of state law, some of the prosecutor's summation comments, many of which he did not challenge at trial, were improper. By omitting what petitioner now claims is the constitutional nature of this claim from his state court appeal, petitioner forfeited his opportunity to exhaust his state court remedies with respect to this claim. Accordingly, absent a showing of cause for the default and resulting prejudice or a fundamental miscarriage of justice, none of which petitioner had demonstrated, petitioner is procedurally barred from obtaining federal habeas relief based on this claim. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Bossett v. Walker, 41 F.3d 825, 828-29 (2d cir. 1994).
G.
Petitioner's claim concerning the prosecutor's summation is procedurally barred because petitioner did not raise this claim in his application for leave to appeal to the New York Court of Appeals. He has not shown cause and prejudice or a fundamental miscarriage of justice attendant on this procedural default with regard to this claim either. See Bossett v. Walker, 41 F.3d at 828-29; McKinney's 2001 New York Rules of Court § 500.10(a); supra at 2, n. 1.
In any event, petitioner's challenges to the prosecutor's summation, most of which he did not raise at trial, are meritless and do not raise a federal constitutional issue. To entitle petitioner to federal habeas relief, it "is not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden v. Wainwright, 477U.S. 168, 181 (1986). Rather, the comments must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. at 181, quoting Donnelly v. entitled to habeas relief based on his summation claims.
This habeas corpus application is an important matter to petitioner. The court has considered all of his claims. Those claims not discussed in this memorandum are patently frivolous.
XV. Conclusion
The petition for a writ of habeas corpus is denied.
A certificate of appealability is not granted. Petitioner has made no substantial showing of the possible denial of a constitutional right. He may as already indicated, seek a further certificate of appealability from the Court of Appeals for the Second Circuit.