REPORT-RECOMMENDATION

This matter has been referred to the undersigned by United States District Judge Frederick J. Scullin, Jr., pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).

Petitioner filed the instant habeas corpus petition on February 23, 1996. This court issued an Order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. fol. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent has filed his answer, together with the pertinent state court records and a memorandum of law.

Petitioner complains of a judgment of conviction rendered against him on May 8, 1991, in the Onondaga County Court wherein the petitioner was convicted by a jury of criminal sale of a controlled substance in the first degree (two counts), criminal sale of a controlled substance in the second degree, criminal possession of a controlled substance in the second degree (two counts), and criminal possession of a controlled substance in the third degree (four counts). Petitioner was sentenced to an aggregate indeterminate term of 27 years to life imprisonment. The Appellate Division, Fourth Department modified the sentence imposed on the third count of the indictment (criminal possession of a controlled substance in the third degree), reducing the minimum term from seven years to six and two-thirds years, and otherwise affirmed the conviction on November 18, 1992. People v. Encarnacion, 591 N.Y.S.2d 127 (4th Dep't 1992). The New York Court of Appeals denied leave to appeal on April 13, 1993. People v. Encarnacion, 615 N.E.2d 228 (1993). Petitioner's motion for leave to renew his appeal, which was construed as an application for writ of error coram nobis, was denied on October 1, 1993. People v. Encarnacion, 604 N.Y.S.2d 847 (4th Dep't 1993).

Petitioner's subsequent motion to vacate judgment pursuant to N.Y. Crim. Proc. Law § 440.10 was denied by the Onondaga County Court on February 16, 1994. Petitioner's application for leave to appeal to the Appellate Division, Fourth Department was denied on June 20, 1994. Petitioner's subsequent motion for a writ of error coram nobis was denied on November 15, 1994. Petitioner's motion to amend the remittitur affirming the judgment of conviction was denied by the Appellate Division on December 22, 1995.

Petitioner raises six claims in his application for habeas corpus relief. Petitioner alleges that (1) the trial court erred when it allowed an audio tape to be admitted into evidence; (2) petitioner received ineffective assistance of trial counsel; (3) petitioner received ineffective assistance of appellate counsel; (4) petitioner was denied a fair trial due to pretrial publicity and the presence of uniformed police officers in the courtroom; (5) the prosecutor's summation was highly inflammatory and prejudicial; and (6) petitioner's motor vehicle was improperly searched.

Respondent argues for dismissal of the petition, claiming that grounds one and six are not cognizable on federal habeas review; grounds two, three and five are without merit; and petitioner has procedurally defaulted on ground four.

For the following reasons, the court agrees with the respondent and recommends that the petition be denied and dismissed.

1. Facts:

Petitioner's conviction resulted from three incidents which occurred on June 25, June 29, and July 16, 1990, in Syracuse, New York.

On July 25, 1990, Syracuse Police Investigator Wallie Howard of the Central New York Drug Enforcement Task Force ("Task Force") and informant Greg Knighton met petitioner and Andres Loria-Solino in the parking lot of the Cana Brava night club to conduct an undercover purchase of narcotics. (Trial Tr. 199-203). The meeting had been arranged a couple of hours earlier by Knighton and petitioner. (Trial Tr. 227-30).

After being shown some money by Investigator Howard, petitioner left the parking lot and went to a residence on Warner Avenue. When petitioner returned to the parking lot approximately fifteen minutes later, he and Howard (who was carrying a scale) entered the club, while Loria-Solino acted as a "lookout." When they emerged from the club a few moments later, Howard gave petitioner a beeper number, and Howard and Knighton left the area. (Trial Tr. 205-08, 231-33, 247-49, 302-06). Petitioner told Loria-Solino that Howard "was going to buy every Monday." (Trial Tr. 307-08). Later that night, Howard and Investigator Jack Baum sealed the drugs purchased from petitioner into an evidence bag. (Trial Tr. 254-55).

On July 29, 1990, Investigator Howard and Agent Reginald Tillery of the United States Department of Justice Drug Enforcement Administration (also a member of the Task Force) met Loria-Solino in the Cana Brava parking lot at approximately 3:00 p.m. (Trial Tr. 437). Loria-Solino spoke with Howard, then left. (Trial Tr. 439-40, 465-66). He returned approximately twenty minutes later, and petitioner arrived on foot. All the men entered the Cana Brava. (Trial Tr. 440-41, 466-67). Howard and petitioner engaged in a conversation at the back of the club, but no drugs were purchased at that time. (Trial Tr. 441-44). Loria-Solino testified that he told petitioner not to sell drugs to Howard and Tillery because they were carrying weapons. (Trial Tr. 310).

Approximately 45 minutes later, Investigator Howard returned to the Cana Brava, leaving again after about five minutes. (Trial Tr. 468-69). Petitioner later told Loria-Solino that "he had sold to those people." (Trial Tr. 311).

On July 16, 1990, an audiotaped telephone conversation took place between petitioner and Investigator Howard about purchasing drugs. (Trial Tr. 313-16). Petitioner and Loria-Solino subsequently met Howard at the Cana Brava, at approximately 7:00 p.m., and went inside the club. (Trial Tr. 317, 470). A few moments later, Loria-Solino exited the club and walked around the parking lot to the back of the club. (Trial Tr. 471). After approximately ten minutes, Howard left the club. (Trial Tr. 318). Petitioner left shortly thereafter. (Trial Tr. 471-72). Petitioner told Loria-Solino that he had sold four ounces of drugs to Howard. (Trial Tr. 319-20).

On July 24, 1990, New York State Trooper Pamela Joanne Morris assisted a disabled car on Interstate 81. Petitioner and Loria-Solino were in the car, and followed Trooper Morris to the State Police substation in Lafayette, New York, where they were placed under arrest. (Trial Tr. 399-403, 473). A search of their car revealed a large amount of cash hidden in the air vent in the rear passenger seat. (Trial Tr. 197, 473-74). Some of the of the cash was identified as that used to purchase drugs from petitioner on July 16, 1990. (Trial Tr. 474-78).

2. Claims Not Cognizable on Federal Habeas Review:

A federal court may entertain a habeas petition only to the extent that it alleges custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Thus, claims based on violations of state law are not generally cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)) (additional citation omitted); Hameed v. Jones, 750 F.2d 154, 160 (2d Cir. 1984), cert. denied, 471 U.S. 1136 (1985).

a. Admission of Audiotape:

In his first ground for relief, petitioner claims that the trial court improperly admitted into evidence the audiotape of petitioner's conversation with Investigator Howard, who was murdered prior to petitioner's trial.

It is well established that "mere evidentiary errors generally do not rise to a constitutional magnitude." Aponte v. Scully, 740 F. Supp. 153, 158 (E.D.N.Y. 1990) (citations omitted). Because the admissibility of evidence in state court is thus a matter of state law, a federal habeas court may review only those evidentiary errors that "are so prejudicial as to constitute fundamental unfairness." Ip v. Henderson, 710 F. Supp. 915, 919 (S.D.N.Y.) (citation omitted), aff'd, 888 F.2d 1376 (2d Cir. 1989); accord Schurman v. Leonardo, 768 F. Supp. 993, 1001 (S.D.N.Y. 1991) (citation omitted). The erroneous admission of evidence constitutes fundamental unfairness only if the evidence is "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Johnson v. Ross, 955 F.2d 178 (2d Cir. 1992) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)); Aponte, 740 F. Supp. at 158-59 (citations omitted).

In the present case, the audiotape did not constitute material evidence. The tape related only to the transaction made on July 16, 1990. The jury heard evidence that $2,400 in marked currency which was used to purchase cocaine on that date was recovered from petitioner's vehicle. (Trial Tr. 474-78). Further, petitioner's co-defendant, Andres Loria-Solino, testified that petitioner admitted selling drugs to Investigator Howard on July 16, 1990 (Trial Tr. 319-20), and his testimony regarding the events surrounding the sale was corroborated by the police officers conducting surveillance on that date. Under these circumstances, no reasonable person would have doubted that petitioner sold drugs to Investigator Howard. The admission of the audiotape did not serve as the basis for petitioner's conviction. Ground one is thus not cognizable for federal habeas review.

b. Fourth Amendment Claims:

In his sixth ground for relief, petitioner claims that his motor vehicle was improperly searched. However, petitioner's Fourth Amendment claims are cognizable on federal habeas review only if he did not receive "an opportunity for full and fair litigation" of those claims in state court. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (quoting Stone v. Powell, 428 U.S. 465, 481-82 (1976)) (emphasis added in original).

In the Second Circuit, a state prisoner will be deemed to have been denied "an opportunity for full and fair litigation" of a Fourth Amendment claim only: "(a) if the state has provided no corrective procedures at all to redress the fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan, 975 F.2d at 70 (citations omitted). A federal habeas court cannot review the merits of a Fourth Amendment claim merely because it might have decided the claim differently, but must focus its inquiry on "the existence and application of the corrective [state] procedures themselves. . . ." Id. at 71.

In the instant case, it is clear that petitioner had ample opportunity to litigate his Fourth Amendment claims. The federal courts have "`approved New York's procedures for litigating Fourth Amendment claims . . . as being facially adequate.'" Id. at 70 n. 1 (quoting Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989)) (additional citations omitted). Moreover, there is no evidence of an "unconscionable breakdown" in New York's procedural scheme as a suppression hearing was held by the trial court. Because petitioner received an adequate hearing on his Fourth Amendment claims in state court, ground six of the petition is not cognizable on federal habeas review.

3. Procedural Default:

Federal habeas review is barred where a state court has rejected federal claims as defaulted pursuant to an independent and adequate state procedural rule, unless the petitioner can demonstrate cause for the default and actual prejudice resulting from the alleged violation of federal law, Coleman v. Thompson, 501 U.S. 722, 750 (1991), or establish that he is "probably . . . actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). If the last state court to render a judgment on the issue "clearly and expressly" stated that its judgment rested on a state procedural bar, federal habeas review is barred. Harris v. Reed, 489 U.S. 255, 262-63 (1989); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995).

In ground four of the petition, petitioner claims that he was denied the right to a fair trial because of pretrial publicity and the presence of uniformed police officers in the courtroom. Petitioner raised this claim in a motion to vacate judgment. The Onondaga County Court stated that "defendant's . . . claim is an issue which was, or could have been, raised on defendant's direct appeal [and] he is not entitled to raise it herein." (Decision and Order, Onondaga County Court, February 16, 1994 (Mulroy, J.)). The state trial court's ruling rested on an adequate and independent state procedural rule, N.Y. CRIM. PROC. LAW § 440.10(2)(a) (b), which provides that a court must deny a motion to vacate a judgment if the issue raised was previously determined on appeal from the judgment, or the judgment is appealable or pending on appeal and sufficient facts appear on the record to permit adequate review.

Petitioner has procedurally defaulted on ground four of the petition. Thus, petitioner must show cause for the default and prejudice resulting from the constitutional violation. Petitioner apparently claims that ineffective assistance of counsel caused the default. However, as discussed below, petitioner's ineffective assistance of counsel claim is without merit.

Petitioner has failed to show cause for his procedural default, and the state court records do not suggest that he is actually innocent. Therefore, it is unnecessary for the court to determine whether he has suffered actual prejudice. Stepney v. Lopes, 760 F.2d 40, 45 (2d. Cir. 1985). Ground four of the petition must be dismissed.

4. Ineffective Assistance of Counsel:

A claim of ineffective assistance of counsel is sustainable only if counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that absent counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686 (1984); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992) (citation omitted), cert. denied, 113 S.Ct. 2347 (1993). In applying this test, a reviewing court must be "highly deferential" and presume that counsel's conduct falls within the range of reasonable performance. Strickland, 466 U.S. at 689. Tactical decisions made after thorough investigation are "virtually unchallengeable." Id. at 690.

a. Trial Counsel:

In ground two of the petition, petitioner claims that he was denied the effective assistance of trial counsel. Petitioner claims that trial counsel failed to properly exercise peremptory challenges during the jury voir dire and, as a result, two jurors were seated on his jury who expressed an inability to remain impartial.

Two prospective jurors, Joseph Serbue and Mary Powell, responded affirmatively when asked by the trial court if they felt that their ability to be fair and impartial might be affected by the death of Investigator Wallie Howard (Trial Tr. 47-54), who was fatally shot on October 30, 1990, in an unrelated undercover drug investigation. The record shows that Joseph Serbue was removed for cause at the request of petitioner's trial counsel. (Trial Tr. 54). Although defense counsel's voir dire of Ms. Powell was not recorded, petitioner does not suggest that the voir dire was inadequate, or that petitioner's counsel was in any way restricted in his questioning of the prospective juror. See Willie v. Maggio, 737 F.2d 1372, 1381 (5th Cir. 1984).

Through three rounds of jury selection, the court excused ten prospective jurors after conversations with them at the bench, and the prosecutor then exercised seventeen peremptory challenges. Although petitioner's attorney did not seek Powell's removal from the jury, he did exercise peremptory challenges against seven other prospective jurors, (Trial Tr. 23-26, 55, 57-60, 72, 74-76, 85-87), and there is nothing in the record to suggest that counsel's representation fell below an objective standard of reasonableness with regard to jury selection.

Petitioner further complains that trial counsel failed to object to the presence of police officers dressed in full uniform who were observing the trial. However, the presence of uniformed police officers in the courtroom is not by itself so inherently prejudicial as to deny a defendant of his constitutional right to a fair trial. See Holbrook v. Flynn, 475 U.S. 560 (1986) (four state troopers in front row of spectator section as supplement to regular courtroom security not unconstitutional); Smith v. Farley, 59 F.3d 659, 664-65 (7th Cir. 1995) (prosecutor's ambiguous reference to unknown number of police officers in courtroom did not intimidate jury); Resnover v. Pearson, 754 F. Supp. 1374, 1389 (N.D.Ind. 1991) (presence of "large number" of police officers not unconstitutional); but cf. Woods v. Dugger, 923 F.2d 1454 (11th Cir. 1991) (presence of uniformed prison guards at trial of accused murderer of prison guard deprived defendant of fair trial based on rural nature of community; importance of prison in local economy; amount of pretrial publicity; community activism of victim's sister; composition of jury; and objections by defense counsel).

In the present case, the only evidence of the presence of police officers in the courtroom during petitioner's trial is a comment by defense counsel during summation and a statement in a newspaper article. In an attempt to convince the jury that petitioner had really been one of Howard's informants and not the object of the investigation, defense counsel questioned why so many officers were involved in the surveillance of one of the transactions. Counsel stated, "All these officers come to hear me speak this morning, and they don't have anything to do?" A newspaper article announcing petitioner's verdict stated that "[s]everal of Howard's colleagues from the Central New York Drug Enforcement Task Force were in the courtroom for [petitioner's] verdict. . . ." The article quoted the prosecutor as saying, "It was sort of like, when all is said and done, everybody wanted to say, `This one was for you, Wallie.'" (Petr.'s 440.10 Mot. Br., Ex. E (John O'Brien, Man Guilty of Selling Drugs to Slain Officer, SYRACUSE POST-STANDARD, April 3, 1991)).

There is nothing in the record to indicate that the jury was in any way intimidated by the presence of police officers during the closing arguments of petitioner's trial or at the reading of the verdict. It is not clear that the officers were in uniform or how many of them were present. Nothing in the record suggests that counsel's representation fell below an objective standard of reasonableness in failing to object to the officers' presence.

In light of the evidence presented at trial, it is unlikely that the result of the proceeding would have been different if defense counsel had objected to the officers' presence. Ground two of the petition is without merit and should be dismissed.

b. Appellate Counsel:

In ground three, petitioner claims that appellate counsel was ineffective because he failed to raise the claim that petitioner's trial counsel had been ineffective. However, as discussed above, the record does not support such a claim. Ground three of the petition should also be dismissed.

5. Prosecutorial Misconduct:

In his fifth ground for relief, petitioner claims that statements made by the prosecutor during closing argument were so prejudicial as to deprive petitioner of a fair trial. To obtain relief on a prosecutorial misconduct claim, a habeas petitioner must show that the prosecutor engaged in "egregious misconduct . . . amount[ing] to a denial of constitutional due process." Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). A prosecutor's conduct violates due process only if it deprives the defendant of a fair trial, Blissett v. LeFevre, 924 F.2d 434 (2d Cir. 1991) (citations omitted), cert. denied, 502 U.S. 852 (1991), and a court must review the allegedly improper conduct within the context of the entire trial to determine whether it amounted to "prejudicial error." Strouse v. Leonardo, 928 F.2d 548, 557 (2d Cir. 1991). In making this determination, the court must consider "the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct." United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990). "`[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's inappropriate comments standing alone' in an otherwise fair proceeding." United States v. Tutino, 883 F.2d 1125, 1136 (2d Cir. 1989) (quoting United States v. Biasucci, 786 F.2d 504, 514 (2d Cir. 1986) (citation omitted)) (citing United States v. Young, 470 U.S. 1, 11-12 (1985)), cert. denied, 493 U.S. 1081 (1990).

During his closing argument, the prosecutor characterized defense counsel's argument that petitioner was actually one of Investigator Howard's informants as a "slander to the dead" and said, "If you think for a minute that is what Wallie Howard was about, if you think for a minute that is what happened in this case, don't even go back in the Jury Box. It is ridiculous, offensive." (Trial Tr. 567-68). However, the prosecutor then went on to suggest how each piece of evidence supported the prosecution's case and failed to support defense counsel's argument.

Immediately following the prosecutor's summation, defense counsel moved for a mistrial based upon the prosecutor's comments. The motion was denied. (Tr. 578). Nonetheless, the trial judge instructed the jury that "arguments of counsel made during the course of trial are not to be considered by you as any evidence whatsoever" (Tr. 585), and added a corrective instruction to the end of the jury charge emphasizing that, although the prosecutor had been "quite emphatic about his summation," the jury was to judge the case on the facts alone and not be "motivated[,] inspired, or swayed by sympathy for anybody or against anybody." (Tr. 638). These instructions effectively mitigated any adverse impact the prosecutor's comments might have had on the jury. Further, since it is virtually certain, given the evidence presented at trial, that petitioner would have been convicted even if the prosecutor had not made the challenged remark, ground five of the petition must be dismissed. See Gatto v. Hoke, 809 F. Supp. 1030, 1037 (E.D.N.Y.) (citation omitted), aff'd 986 F.2d 500 (2d Cir. 1992).

WHEREFORE, based on the findings in the above Report, it is

RECOMMENDED that the petition be DENIED and DISMISSED.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is

ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.