OPINION ORDER

HAROLD BAER, JR., District Judge[fn*] [fn*] Michelle Hwang, a spring 2005 intern in my Chambers, and currently a second-year student at Fordham University School of Law, provided substantial assistance in the research and drafting of this Opinion.

Jesus Melenciano ("Melenciano") petitions this Court, pursuant to 28 U.S.C. § 2254 (d)(1) and (d)(2), for a writ of habeas corpus. Petitioner claims that: (1) Detective McCarthy's trial testimony constituted impermissible hearsay; (2) the trial court failed to conduct a proper inquiry into alleged premature jury deliberations, (3) an ineffective assistance claim in that trial counsel failed to: (i) make a Batson challenge during the jury selection and (ii) report the allegation that two jurors made racial slurs during a witness' testimony; and, (4) that the evidence upon which Petitioner was convicted failed to prove beyond a reasonable doubt that he was guilty of second degree murder. For the following reasons, Jesus Melenciano's petition for habeas corpus is DENIED.

I. BACKGROUND

A. Factual Background

On July 10, 1993, Nereida a.k.a. LaChina Lorenzo ("Lorenzo") was on 167^th Street between Jerome and River Avenues when she witnessed four shooters approach and murder Vallejo. (Tr. at 57:23 — 58:1; 60:25 — 61:15.) Lorenzo recognized two of the shooters — Jesus Melenciano and his brother. (Tr. at 61:16 — 62:16; 63:22 — 24.) According to Lorenzo, Jesus Melenciano and his brother followed Vallejo until he reached a van, and once behind the van, Melenciano shot him. Lorenzo witnessed Vallejo fall to the ground after additional shots were fired. (Tr. at 64:1 — 65:17; 109.)

Meanwhile, Juan Rivera ("Rivera"), the other victim, was in front of a public telephone booth on 167^th Street when he was shot on the right side of his chin and on the left side of his neck. (Tr. at 197:22 — 198:3; 201:13 — 202:8; 209:16 — 210:12.) Rivera did not see the shooters, but noticed that the bullets had been fired from the direction of 167^th Street and River Avenue. (Tr. at 202:13 — 24.).

The evening of the murder, Detective McCarthy interviewed Lorenzo and she failed to mention that she recognized the shooters. (Tr. at 114:15 — 20.) Instead, she informed the detective that she immediately ran into the building when she heard the shots. (Tr. at 348:16 — 25.) Later, on July 12, 1993, Lorenzo recanted her story and provided Detective McCarthy with the first names of two shooters, and showed him where Jesus Melenciano lived. (Tr. at 66:14 — 16.). Subsequently, on July 27, 1993, Lorenzo identified Jesus Melenciano as the shooter in a lineup and he was arrested. (Tr. at 70:4 — 23; 337:19 — 338:10.)

B. Procedural History

On May 25, 1995, a Bronx County jury found Petitioner guilty of Murder in the second degree, N.Y.P.L. § 125.25, Attempted Murder in the second degree, N.Y.P.L. §§ 110/125.25[1], and Criminal possession of a weapon in the second degree. N.Y.P.L. § 265.03. (Tr. 698:18 — 699:1.) New York State Supreme Court Judge Marcus sentenced Petitioner, a repeat felony offender, to prison terms of 25 years to life for the crime of Murder in the second degree, 6 to 12 years for the crime of Attempted Murder in the second degree, and 6 to 12 years for the crime of Criminal possession of weapon in the second degree, to run concurrently. Sentence, People v. Melenciano (Ind. No. 5540-93) (Jun. 12, 1995).

Petitioner appealed to the New York State Supreme Court, Appellate Division, First Department, which affirmed the conviction:

[Melenciano's] verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. The court was not obligated to discharge a juror who gave indications of a hope and/or expectation that deliberations would not continue overnight. The court conducted a suitable inquiry wherein the juror unequivocally stated that she was nevertheless willing to be sequestered and that she had an open mind about the case. Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.

On January 2, 2001, Petitioner filed a pro se motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440.10 and alleged ineffective assistance of counsel. Judge Marcus denied the motion. Dec. Or., People v. Melenciano (Ind. No. 5540-93) (Apr. 25, 2002). The Appellate Division denied Petitioner's application for leave to appeal the denial of his motion to vacate. See People v. Melenciano (Ind. No. 5540-93) (Jun. 27, 2002) ("I, Eugene L. Nardelli, a Justice of the Appellate Division, First Judicial Department, do hereby certify that, upon application timely made by the above-named defendant for a certificate pursuant to Criminal Procedure Law, section 460.15, and upon the record and proceedings herein, there is no question of law or fact presented which ought to be reviewed by the Appellate Division, First Judicial Department, and permission to appeal from the order of the Supreme Court, Bronx County, entered on or about April 25, 2002, is hereby denied.").

Petitioner filed the instant petition for habeas corpus on October 22, 2002 in the United States District Court for the Southern District of New York. (Dckt. 2.)

C. Exhaustion of State Remedies

Federal habeas relief will not be granted unless the petitioner has exhausted the remedies available at the state level. See 28 U.S.C. § 2254(b)(1)(A); Wilkinson v. Dotson, 125 S.Ct. 1242, 1245 (2005). In particular, a petitioner must fairly present the factual and legal premises of his claims to the highest court of the state and must alert the state court of the constitutional nature of his claims. See Williams v. Walsh, No. 02 Civ. 7633, 2004 WL 275489, at *2 (S.D.N.Y. Dec. 1, 2004) (Baer, J.). Here, a review of Petitioner's prior submissions and record demonstrates the exhaustion of the remedies available in state court. See Staley v. Greiner, No. 01 Civ. 6165, 2003 WL 470568, at *5 (S.D.N.Y. Feb. 6, 2003) ( citing Klein v. Harris, 667 F.2d 274 (2d Cir. 1981) ("no appeal to the New York Court of Appeals lies from an order denying a motion for leave to appeal to the Appellate Division")).

II. STANDARD OF REVIEW

Section 2254(d) of Title 28 of the United States Codes, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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.

III. DISCUSSION

A. Detective McCarthy's Inferential Hearsay

Federal courts will not review a question of federal law decided by a state court if the state court's decision rested onboth (1) an "independent" state law ground and (2) the state law ground was "adequate" to support the judgment. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729 (1991); see Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003). However, an exception to the independent and adequate state ground doctrine exists. Federal courts' review of procedurally defaulted claims is permitted where a petitioner "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; see also Dixon v. Miller, 293 F.3d 74 (2d Cir. 2002). I. Independent State Grounds

It is clear that the Appellate Division denied Petitioner's hearsay claim solely on independent state law grounds. While the Appellate Division's decision made no specific reference to New York's contemporaneous objection rule, Respondent's brief included an argument that Petitioner's hearsay claim should be denied in accordance with the contemporaneous objection rule. ( See Aff. in Opp'n, Ex. 2. Resp'ts Br., at 21.) It is well established that "silent affirmance is presumed to be based on an adequate and independent state procedural ground, unless there is "good reason" to question this." Elliott v. Kuhlmann, No. 97 Civ. 2987, 2004 WL 806986, at *10 (S.D.N.Y. Apr. 9, 2004) ( citing to Coleman, 501 U.S. 722, and Quirama v. Michele, 983 F.2d 12 (2d Cir. 1993)). Here, as in Quirama and Elliot, Petitioner failed to present a "good reason" to determine that the Appellate Division rejected Petitioner's hearsay claim on the merits, rather than on the asserted procedural ground. The affirmation of Petitioner's conviction should be construed as an implicit acceptance of the State's argument that Petitioner's claim is procedurally barred pursuant to New York law.

Moreover, a brief statement by the state court that an issue is "unpreserved" is sufficient to serve as an independent state procedural bar. See Williams, No. 02 Civ. 7633, 2004 WL 2754859, at *3 (Baer J.). As such, the Appellate Division's decision, which states that Petitioner's "remaining contentions are unpreserved," was sufficient to show that the Appellate Division was relying on an independent state ground. See Ayala v. Walsh, No. 02 Civ. 6319, 2005 WL 292751 at *3, (S.D.N.Y. Feb. 7, 2005) (denied habeas relief of the petitioner's claim based on the Appellate Division finding that "remaining contentions are unpreserved").

2. Adequate State Grounds

A state procedural bar is "adequate" when based on a "firmly established and regularly followed" state rule. Cotto, 331 F.3d at 238-39. However, the Second Circuit has articulated a narrow exception. A state procedural bar is insufficient to bar federal review when the petitioner sufficiently demonstrates that the "asserted state grounds are inadequate to block adjudication of the federal claim" or "the exorbitant application of a generally sound rule renders the state ground inadequate." Id. at 239 ( citing Lee v. Kemna, 534 U.S. 362, 381 (2002)). For this limited exception to apply, the court must evaluate three factors:

(1) [W]hether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state case law indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

Here, Petitioner's impermissible hearsay claim was adjudicated on "adequate" state grounds and the exception articulated in Cotto does not apply. First, whether the state court relied on New York's contemporaneous objection rule is "less applicable" here because "the lack of a contemporaneous objection would not, almost by definition, be mentioned by the trial court" and "involves a certain degree of speculation." Id. at 242-243. "[T]he purpose of the contemporaneous objection rule is to give the trial court a clear opportunity to correct any error." Id. Had Petitioner timely raised his objection, the trial court may well have arrived at a different conclusion. Id. Petitioner, however, failed to make a timely objection and, consequently, failed to put the trial court on notice. Accordingly, the trial court's failure to recognize New York's contemporaneous objection rule, and whether perfect compliance with the rule would have changed the trial court's decision, are not helpful to the Petitioner. Id. at 243.

Second, state case law demonstrates that there was a failure of compliance with the state rule. See People v. Aponte, 759 N.Y.S.2d 486, 488-89 (1st Dep't 2003). Under New York law, "in order to preserve [an] inadmissible hearsay claim for appellate review," the defendant "was required to object at trial to the alleged admission of the hearsay testimony." Soto v. Greiner, No. 02 Civ. 2129, 2002 WL 1678641, at *12 (S.D.N.Y. Jul. 24, 2002). Here, however, Petitioner failed to object contemporaneously to Detective McCarthy's alleged hearsay testimony.

Third, the state interest behind the contemporaneous objection rule is "to ensure that the parties draw the trial court's attention to any potential error while there is still an opportunity to address it." Cotto, 331 F.3d at 245. Petitioner's claim does not present sufficient justification to overcome the state interest in efficient trial procedure. In fact, Petitioner's failure to comply with the contemporaneous objection rule was a strategic decision designed to further the examination of Detective McCarthy. See Dec. Order, People v. Melenciano at *7-8 (Ind. No. 5540-93) (Apr. 25, 2002). Accordingly, Petitioner failed to substantially comply with the state procedural rule, and compliance serves a legitimate governmental interest. See Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999).

In accordance with the independent and adequate state grounds doctrine as articulated by the Supreme Court in Coleman and interpreted by the Second Circuit in Cotto, Petitioner's first claim for habeas corpus, that Detective McCarthy's testimony consisted of impermissible hearsay, is barred from federal review. 3. Exception to the Independent and Adequate State Grounds Doctrine

Petitioner maintains that his counsel's failure to object to Detective McCarthy's impermissible testimony was the "cause" for the procedural default. To excuse any default, Petitioner must demonstrate "cause" and "prejudice", or show that "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Lee v. Kemna, 534 U.S. 362, 387 (2002). The Second Circuit has determined that a strategic decision cannot constitute prejudice because it is a "conscious, reasonably informed decision made by an attorney with an eye to benefiting his client." Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001). The failure to object to McCarthy's testimony constituted a strategic decision designed to minimize the overall impact of his testimony and benefit Petitioner. See Dec. Order, People v. Melenciano (Ind. No. 5540-93) (Apr. 25, 2002) at *7-8. Indeed, the court will not disturb counsel's decision because it was "strategic" and the sort of "conscious, reasonably informed decision made by an attorney with an eye to benefiting his client that the federal courts have denominated "strategic" and been especially reluctant to disturb." Pavel, 261 F.3d at 218. Petitioner has failed to demonstrate "a fundamental miscarriage of justice, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002).

Accordingly, the exception to the independent and adequate state ground doctrine does not apply to Petitioner's claim and is barred from federal review.

B. Premature Jury Deliberation and Court's Inadequate Inquiry

Before summations and the court's final jury instruction, a juror informed a court officer that she would not stay at the hotel during deliberations and subsequently failed to bring the necessary clothing for an overnight deliberation. (Tr. 522:6 — 10; 523:19 — 22.) The trial judge inquired: "Now, I heard from one of the court officers that you made a statement yesterday about not going to the hotel." (Tr. 523:19 — 524:2.) The juror answered, "Well, we all —" but did not complete her sentence. Id. She then explained that her comment to the court officer was "a figure of speech." Id. Petitioner maintains that the juror's comments indicate that the questioned juror and other jurors engaged in premature deliberations and that the court's failure to conduct an in camera inquiry of the jurors constituted a violation of Petitioner's Sixth Amendment due process rights.

Where the trial court "instructs a jury to refrain from premature deliberation. . . . and the jury nonetheless discusses the case before the close of trial, that premature jury deliberation may constitute juror misconduct." United States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (emphasis added). The court's "investigation of juror misconduct or bias is a `delicate and complex task.'" Id. ( citing United States v. Abrams, 137 F.3d 704, 708 (2d Cir. 1998) (per curiam). The trial court is afforded broad flexibility due to its unique position to observe the jury on a daily basis, United States v. Peterson, 385 F.3d 127, 134 (2d Cir. 2004), and the court's treatment of juror misconduct and its decision on a jury's impartiality are reviewed for abuse of discretion only, and " only if juror misconduct and actual prejudice are found." Cox, 324 F.3d at 86 (emphasis added).

Despite the trial court's undisputed instructions to jurors that they should "keep an open mind" during the trial and not to discuss the case amongst each other until the deliberation began (Voir Dire Tr. 383:10 — 384:14), a juror engaged in a conversation with a court officer. (Tr. 521:17 — 522:2.) With Petitioner and his trial counsel's consent, and in the presence of the prosecutor, the trial court conducted an adequate inquiry of the juror and determined that the juror did not engage in premature deliberation. (Tr. 522:4 — 525:25.) While Petitioner's trial counsel indicated that he believed the juror was lying to the court, "a court should generally presume that jurors are being honest" absent contrary evidence. Id. at 87.

Here, the court did not abuse its discretion by accepting the juror's account and, therefore, the trial court reasonably concluded that the juror was impartial. See United States v. Thai, 29 F.3d 785, 803 (2d Cir. 1994).

C. Ineffective Assistance Of Counsel

Petitioner also asserts that ineffective assistance of counsel was the cause for the lack of: (1) a Batson challenge during the jury selection and for not reporting allegations of racial slurs made by two jurors; and, (2) an objection to court's inadequate inquiry of premature jury deliberations.

According to Strickland, a petitioner is required to (a) establish that "under prevailing norms of practice," the representation "fell below an objective standard of reasonableness," and (b) "affirmatively prove prejudice." Strickland v. Washington, 466 U.S. 668, at 687 — 88, 693 — 94 (1984). To satisfy the second Strickland requirement, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Holland v. Jackson, 124 S.Ct. 2736, 2738 (2004) (quoting Strickland). Further, the reviewing court must "recognize that counsel is strongly presumed to have rendered adequate assistance and [to have] made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690; see also Brown v. Senkowski, No. 97 Civ. 3682, 2004 WL 2979792, at *22 (S.D.N.Y. Dec. 14, 2004).

1. Failure to Make a Batson Challenge

First, Petitioner claims that ineffective assistance of counsel led to the failure to make a Batson objection to the government's exclusion of Hispanic jurors. To sustain a Batson claim on habeas review, a petitioner must demonstrate a prima facie Batson violation. See Overton v. Newton, 295 F.3d 270 at 278-280 (2d Cir. 2002) (a petitioner bears "the burden of articulating and developing the factual and legal grounds supporting his Batson challenge before the trial court").

Here, the trial court noted that the State used four of nine peremptory challenges it exercised against prospective Hispanics jurors while defense counsel used six of his thirteen peremptory challenges it exercised to exclude all the remaining Hispanic jurors. See Dec. Order, People v. Melenciano (Ind. No. 5540-93) (Apr. 25, 2002) at *8 — 9 ("there is no indication that the defendant's claim that the People excluded all Hispanics from the jury is true"). Petitioner failed to present a scintilla of evidence that the Government's peremptory challenges were utilized in a manner that would maintain a prima facie Batson challenge. Moreover, the absence of juror diversity alone is insufficient to satisfy the prima facie Batson requirement. See United States v. Udogwu, No. 03 Civ. 422, 2003 WL 21344749, at *2 (S.D.N.Y. Jun. 9, 2003) (holding there was no basis for trial counsel to raise a Batson challenge where the petitioner claimed the jury was "monochromatic" when, in fact, the jury consisted of at least two Hispanic names and an Asian name and also other prospective minority jurors were dismissed during voir dire at defendant's request or with their consent). Indeed, trial counsel's failure to pursue a meritless Batson challenge cannot be the foundation for Petitioner's ineffective assistance counsel. See Curry v. Burge, No. 03 Civ. 901, 2004 WL 2601681, at *33 (S.D.N.Y. Nov. 17, 2004).

Accordingly, Petitioner's ineffective assistance of counsel based on the failure to make a Batson challenge is DENIED.

2. Juror Racism

Petitioner also claims that ineffective assistance of counsel led to the failure to report allegations of racial slurs made by two jurors. To satisfy the prejudice requirement, a petitioner "must present evidence, not mere conclusory allegations" that trial counsel overlooked juror's racist comments. See, e.g., Brown v. Artuz, 124 F.3d 73, 80 (2d Cir. 1997) ("[E]ven if Brown's conclusory allegation raised an issue on the performance prong of Strickland . . . Brown cannot satisfy the prejudice prong of the Strickland test"); see also United States ex. rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (when "allegation of ineffectiveness of counsel centers on a supposed failure to investigate, we cannot see how . . . the petitioner's obligation can be met without a comprehensive showing as to what the investigation would have produced").

Assuming arguendo that two jurors made racially charged comments about a witness on the stand, there is no evidence that the verdict would have been different. See Brown, 124 F.3d at 81. In the absence of any contrary evidence, it is presumed that the trial counsel's decision was sound trial strategy that constitutes objective performance. See Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("When counsel focuses on some issues [and excludes] others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect"); see also Jacobs v. Horn, 395 F.3d 92, 118 (3d Cir. 2005) (finding that trial counsel's failure to ask questions about racial prejudice amongst potential jurors was, absent any record to the contrary, a sound trial strategy). Indeed, trial counsel reasonably concluded that that the trial court was aware of jurors' racial comments and any motion would do more harm than good.

Petitioner failed to demonstrate actual bias or objectively unreasonable performance by his trial counsel and, therefore, his ineffective assistance of counsel claim is DENIED.

3. Premature Jury Deliberation

Lastly, this Court has already concluded that a juror did not engage in premature jury deliberation and the trial court did conduct an adequate investigation of the juror misconduct. Where the underlying claim is without merit, the claim of ineffective assistance of counsel for not raising the issue during the trial is, likewise, meritless. See United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) (Counsel's "failure to make a meritless argument does not amount to ineffective assistance."); see also Muniz v. United States, No. 04 Civ. 10209, 2005 WL 589396, at *5 (S.D.N.Y. Mar. 14, 2005) (the same). As such, his premature jury deliberation ineffective assistance of counsel is also DENIED.

D. Sufficiency Of Evidence and Guilt Not Proven Beyond Reasonable Doubt

Petitioner maintains that his murder conviction was against the weight of the evidence and his guilt was not proven beyond a reasonable doubt. In particular, Petitioner maintains that a sole identifying witness' statements to police were insufficient, her testimony at trial contained numerous inconsistencies and falsehoods, and no other evidence linked him to the crime.

Evidence is sufficient to support a conviction if "after viewing the evidence in the light most 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); see United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004) (same). The Second Circuit has held that the "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal." Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). In addition, "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979).

This Court agrees with the Appellate Division's holding "the verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility." People v. Melenciano, 281 A.D.2d 255 (1st Dep't. 2001). Lorenzo witnessed Petitioner and his brother approach Vallejo hiding behind a van and fired their guns at him. (Tr. at 64:12 — 65:17.) She also witnessed Vallejo fall to the ground after he was shot again. (Tr. at 109:1 — 19.) Rivera simultaneously heard shots being fired and was struck in the chin and neck by bullets. (Tr. at 197:22 — 198:3; 201:13 — 202:8; 209:16 — 210:12.) Medical and ballistic witnesses corroborated the testimony of Lorenzo that Vallejo had been shot multiple times. (Tr. at 297:7 — 298:23; 390:3 — 14.) Lastly, while there were inconsistencies in Lorenzo's testimony, it was a matter of credibility for the jury to determine.

Accordingly, the evidence was constitutionally sufficient for a rational trier of fact to conclude that Petitioner was guilty of Murder in the second degree and Attempted Murder in the second degree. Therefore, Petitioner's final claim for habeas relief is DENIED.

IV. CONCLUSION

For the aforementioned reasons, Jesus Melenciano's petition for habeas relief is DENIED. The Clerk is instructed to close this motion and any other open motion, and remove this case from my docket.

IT IS SO ORDERED.