Montalvo v. Annetts

Full title: RAUL MONTALVO, Plaintiff, -against- PAUL ANNETTS, Superintendent, Walkill…

Court: United States District Court, S.D. New York

Date published: Dec 17, 2003

02 Civ. 1056 (LAK) (AJP) (S.D.N.Y. Dec. 17, 2003)

Opinion

02 Civ. 1056 (LAK) (AJP)

December 17, 2003

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

Pro se petitioner Raul Montalvo seeks a writ of habeas corpus from his June 15, 1994 conviction in Supreme Court, New York County, of first degree robbery and sentence of six to eighteen years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Montalvo's habeas petition alleges that: (1) the trial judge's repeated questioning of defense witnesses violated his due process and fair trial rights and showed judicial bias (Pet. ¶ 12(A)); (2) he was arrested without probable cause and the evidence resulting from the arrest should have been suppressed (Pet. ¶ 12(B)); (3) he was denied the right to testify before the Grand Jury (Pet. ¶ 12(C)); (4) trial counsel rendered ineffective assistance by (a) failing to move to dismiss the Grand Jury indictment for not allowing Montalvo to testify and (b) failing to call impartial, non-family alibi witnesses (Pet. ¶ 12(D)); and (5) appellate counsel rendered ineffective assistance by (a) failing to fully raise the judicial bias claim, (b) failing to argue that Montalvo's right to testify before the grand jury was violated, and (c) failing to raise ineffective assistance of trial counsel (Pet. ¶ 12(E)).

For the reasons set forth below, Montalvo's petition should be DENIED.

FACTS

Montalvo was arrested on June 24, 1993 and indicted on July 9, 1993 in connection with a robbery committed on June 16, 1992. (Dkt. No. 17: State Br. at 2-4.)

Grand Jury Proceedings

When Montalvo was arraigned on June 26, 1993, Montalvo's counsel notified the District Attorney and the judge, pursuant to C.P.L. § 190.50, that Montalvo wished to testify before the grand jury. (Dkt. No. 1: Pet. ¶ 12(C); Dkt. No. 18: Berstein Aff. Ex. F: ADA Hechtman Aff. ¶ 6 Ex. A thereto.)¹ On June 28, 1993, the first Grand Jury voted "no true bill," but Montalvo was indicted for the robbery by a second grand jury on July 9, 1993. (Pet. ¶ 12(C).) Montalvo did not testify before that second grand jury, but there is no evidence that defense counsel objected pursuant to C.P.L. § 190.50. (Pet. ¶ 12(C); Ex. F: ADA Hechtman Aff. ¶¶ 7-8.)

1 Unless otherwise indicated, references to exhibits are to those attached to the April 10, 2003 Declaration of Assistant Attorney General Willa J. Bernstein, Dkt. No. 18.

The Pre-Trial Suppression Hearing

Montalvo moved to suppress his property that was seized at the time of his arrest, his statements to the police, and witnesses' line-up identifications, on the ground that his warrantless arrest was not supported by probable cause. (See Dkt. No. 19: Suppression Hearing Transcript ["H."] 244.) The trial court (Justice Alvin Schlesinger) held a Huntley-Mapp-Wade-Dunaway suppression hearing on January 5-6, 1994. (H. 1, 4, 51.) Detective Thomas Delaney, the arresting officer, and Veronica Williams, an eyewitness, testified at the hearing.

Detective Delaney's Hearing Testimony

At approximately 2:00 p.m. on June 16, 1992, Detective Delaney responded to a report of an armed robbery at Ralph Esmerian's jewelry store. (Delaney: H. 14-15.) The large safe was open, with empty jewelry trays "tossed around on the floor" and several pieces of duct tape in "various locations" throughout the office. (Delaney: H. 16-17.) "There were several video cameras located at various locations in the office area." (Delaney: H. 18.) "Each video camera had its own recording, and . . . tapes were recovered from the videos." (Delaney: H. 18-19, 30.) Detective Delaney viewed the videotapes, which displayed the sequence of events on the day prior to and day of the robbery. (Delaney: H. 31-32.) In addition, stills from the video were made to aid in the identification of the three robbers. (Delaney: H. 35, 40-43.)

The store's owner, Ralph Esmerian, told the police that the robbery was committed by someone who had called himself Mr. Sadrikur,² a female alleged to be his girlfriend, and a second male posing as a chauffeur. (Delaney: H. 19-20, 25.) While the female was putting on the necklace, "Sadrikur came [up to Esmerian], put a gun to his head and forced him to the floor." (Delaney: H. 21.) Esmerian described Sadrikur as a "male, white, possibly Hispanic, of a stocky build . . . [a]pproximately five foot ten, [with] a moustache,. . . [and] well-dressed." (Delaney: H. 20, 149.) Sadrikur and his male accomplice bound Esmerian with duct tape and emptied the safe's contents into a brown box. (Delaney: H. 22.) Esmerian valued the stolen jewelry at $4.5 million. (Delaney: H. 46.)

2 The alias used by the robber will be spelled "Sadrikur" throughout this Report Recommendation, although it is spelled differently throughout the Hearing and Trial Transcripts and the parties' briefs. Other spellings throughout the record include Sadreker, Sadrekar, and Sandrikar.

Esmerian also informed Detective Delaney that Sadrikur and the two others had come to his office numerous times during June, including June 15, the day before the robbery. (Delaney: H. 23-25.) On the initial visit in June, Sadrikur, accompanied only by the other male, indicated that he wished to look at jewelry for his girlfriend. (Delaney: H. 25.) The day before the robbery, Sadrikur visited Esmerian's store two times and was accompaniedby the chauffeur and his girlfriend the second time. (Delaney: H. 25-26.)

The "break" in the investigation came in early September 1992, when Detective Delaney "received a phone call from a Mr. Moriarty, who is an employee of a company called G.I. A. or Gemological Institute of America," who said he "had two stones that he believed were taken during [the] Esmerian robbery." (Delaney: H. 48-50, 53.) Moriarty informed Detective Delaney that Esmerian had contacted him after the robbery requesting that G.I.A. "be on the lookout for any stones that belonged to him that may have previously been graded by G.I. A." (Delaney: H. 50, 53.)

Moriarty indicated that stones had been submitted by a company called "M.D.M." (Delaney: H. 54.) Detective Delaney went to M.D.M. on September 9-10, 1992, and one of the co-owners, Val Braverman, told him that these two stones were "only part of a larger parcel of stones that he had [purchased from] Mr.Harati." (Delaney: H. 54-57.) Detective Delaney consulted a gem identification expert, Stacey Steiger, who examined those stones and "felt that most of those stones would have been part of the Esmerian property that was stolen." (Delaney: H. 59.)

Detective Delaney located the house where Harati had taken Braverman to buy the jewels: a "large, white building, [with] two columns by the entranceway,. . . a circular walkway going from the street up to the main door[, and] . . . a driveway on the right side of the house," in Bayside, Queens. (Delaney: H. 61-63.) Detective Delaney ran the license plate of the car in the driveway; it was registered to Yosef Harati. (Delaney: H. 63.) The house was owned by Ishai Karniel, who owned with Harati a jewelry company called Atlas. (Delaney: H. 64.)

Detective Delaney obtained the phone records from the house, which showed a number of calls made in June 1992 to Gladys Montalvo, including calls made on the day before and the day of the robbery. (Delaney: H. 65-67.) That phone number and the name Gladys Montalvo had appeared previously in the investigation. (Delaney: H. 67-68.) The second male being sought for the robbery, Jose Arana, had been arrested on a different charge and a telephone book recovered from him contained this particular number, as well as the name and address of the Atlas Corporation, owned by Harati, and Raul Monalvo's phone number. (Delaney: H. 68-72, 75.)

On June 24, 1993, Detective Delaney went to Gladys Montalvo's residence and observed Raul Montalvo approaching. (Delaney: H. 75-77.) Detective Delaney identified himself and "placed [Montalvo] under arrest" for robbery. (Delaney: H. 79, 86, 163-64.) The police seized Montalvo's shoulder bag, which contained a phone book with Arana's phone number. (Delaney: H. 80-84.)

As soon as Montalvo was in the car, Detective Delaney "advised him of his rights." (Delaney: H. 86, 165-66.) When asked if he understood his rights, Montalvo nodded his head "up and down" and said "'yes.'" (Delaney: H. 89.) Specifically, in response to the question "'are you willing to answer questions,'" Montalvo responded "'[y]es.'" (Delaney: H. 90.)

Shortly after arriving at the precinct, Montalvo was taken into an interview room. (Delaney: H. 93-94.) At around 7 p.m., prior to the first interview, Detective Delaney informed Montalvo that he was being arrested for the June 1992 robbery of the Esmerian jewelry company, and that "the rights [that were] given [to] him in the car still applied at that time, and [Montalvo] indicated that he understood." (Delaney: H. 94, 113, 117.) Montalvo "denied having committed any robbery." (Delaney: H. 94.)

During this interview, Detective Delaney showed Montalvo stills from the surveillance tapes of the three robbers and pictures of Harati and Karniel; Montalvo identified the "chauffeur" in the surveillance photos from the robbery as Jose Arana, and said he also knew Harati as the owner of the Atlas Corporation. (Delaney: H. 95, 117.) When showed a photograph of Karniel, Montalvo indicated that he "recognized the face" as that of another Atlas owner but "didn't know the name." (Delaney: H. 95.) Montalvo denied knowing the identity of either "Sadrikur" or the woman with him during the robbery, but thought he had seen the woman with Arana. (Delaney H. 94-96, 117-18.)

Shortly after 10 p.m., Esmerian viewed a line-up that included five fillers and Montalvo, who chose to stand in position five. (Delaney: H. 97-98, 107, 170.) During the line-up, Esmerian said "number five was the guy that robbed him," but there were "a few things . . . that made him less than a hundred percent positive." (Delaney: H. 103, 173.) However, when they "stepped out of the lineup room" Esmerian said that "he was certain that [number five] was the man who robbed him." (Delaney: H. 104-05, 174-76.) A photograph of this lineup was offered into evidence at the hearing. (Delaney: H. 105-06.)

Following the line-up, Montalvo requested that he be allowed to call his sister and called her twice, at 9:45 and 10:30 p.m. (Delaney: H. 166-68.) During Montavlo's second conversation with his sister, Detective Delaney overheard Montalvo say that he "may need a lawyer." (Delaney: H. 166-69.)

Detective Delaney intervewed Montalvo a second time around 11:00 p.m. (Delaney: H. 96-97.) Detective Delaney again advised Montalvo of hisMiranda rights, and Montalvo said "yes" to each and every question, including that he was willing to answer questions; he also acknowledged those rights in writing. (Delaney: H. 111-13, 119.) The second interview consisted of further discussion about the photos: Montalvo admitted to knowing Arana from childhood and Harati from the Atlas Corporation. (Delaney: H. 120.) He also indicated that he recognized Kamiel from Atlas, but did not know his name. (Delaney: H. 120-21.) Finally, when shown a picture of the female involved in the robbery, Montalvo said that "he thought he had seen her in the company of Arana." (Delaney: H. 121.)

A second line-up was conducted on October 26, 1993, with Montalvo in the number two position. (Delaney: H. 122-23, 126, 177.) Four witnesses viewed the line-up: Veronica Williams, Trudy Tripolone, Penny Proddow, and Rachel Epstein, all of whom were present at the Esmerian company either the day before or the day of the robbery. (Delaney: H. 123, 129-32.) During the line-up, Williams indicated that number "two could be the person, but she wasn't positive." (Delaney: H. 126, 179.) Following the line-up, she commented that she was "pretty sure" it was number two. (Delaney:H. 127-28, 179-80.) Tripolone thought it was the person "at the end," that is, one of the fillers. (Delaney: H. 129-30, 182.) Proddow indicated that "it could be number five," but said it was "a hunch." (Delaney: H. 131, 183.) Epstein indicated that "it could be number three, "but that it could be"[t]wo, three or four, I'm not sure." (Delaney: H. 132, 183.) Aphotograph of this lineup was introduced into evidence at the hearing. (Delayey:H. 128-29, 132-34.) The lineup was done in the presence of Montalvo's counsel. (Delaney: H. 123.)

Veronica Williams' Hearing Testimony

Veronica Williams also testified at the suppression hearing. (Williams: H. 187.) On June 15, 1992, the day prior to the robbery, Williams noticed two males and one female with bleached blond hair talking with Esmerian about some jewelry. (Williams: H. 191-94.) After the three left, she told Esmerian that "[t]his is not your type of clientele." (Williams: H. 196.) At the October 26, 1993 line-up, in the viewing room she stated that she "thought it was number two," but "it might also be number three." (Williams: H. 197, 199, 206.) When Williams left the viewing room and was taken to another room to sign her line-up form, she told Detective Delaney that" it was definitely number two." (Williams: H. 199-201.)

Justice Schlessinger's Suppression Decision

At the conclusion of the hearing, Justice Schlessinger denied Montalvo's motions to suppress his statements from the day of his arrest, the property seized from him on that date, and the line-up identifications by witnesses Esmerian, Williams, Proddow, and Epstein. (See generally H. 244-72.)

Justice Schlessinger held:

[B]ased on the information available to the police on the date of the Defendant's arrest, that is, June 24 of '93, I think there was probable cause to arrest the defendant: that I think that is found primarily on the striking resemblance to the defendant and the pictures provided by the police and the photographs, and the fact that there were calls from the house in the end of June in which the jewels are seen by Mr. Braverman, this being a week or so after the robbery, calls to this defendant's home in the Bronx, plus the fact that Mr. Arana identified as the so-called chauffeur had the telephone number of the defendant in the Bronx as well as the telephone number of the intermediary, Mr. Harati, who brought Mr. Braverman to the white house and who was a partner with the gentleman who owned the white house. I think there was sufficient probable cause to have arrested the defendant at the time of his arrest [in] June.

. . . .

With respect to the property seized from the defendant at his arrest, I find again as I've indicated that there was probable cause to arrest the defendant. The seizure of the property was pursuant to a lawful arrest, and the motion to suppress is denied. . . .

With respect to the statements made by the defendant both at approximately 7:00 o'clock in the evening on the day of the arrest and at 11:00 o'clock on the day of the arrest, I find that immediately at 5:00 o'clock at the time of his arrest . . . I find that beyond a reasonable doubt the defendant was given and read his Miranda warnings: that he understood the same and he knowingly, voluntarily and intelligently waived the same. Therefore the motion to suppress the statement made at approximately 7:00 o'clock in the evening is in all respects denied. . . . With respect to the second statement, I find, as I've indicated, beyond a reasonable doubt, that the defendant was given his Miranda warnings at the 11:00 o'clock session; that he understood those warnings and knowingly and intelligently waived the same. . . . [T]he statement . . . to his sister that he might need a lawyer is not a request for a lawyer made to law enforcement people. . . . In any event some half hour later the defendant was indeed asked whether he needed a lawyer, and he indicated he did not, that he wished to make a statement and indeed he did make a statement. The motion to suppress the statement made at approximately 11:00 o'clock on the 24th of June of'93 is in all respects denied.

With respect to the first lineup seen by Mr. Esmerian, there is nothing in the judgment of the court that would call particular attention to the defendant in that lineup. All the people appear to be reasonably alike, both in facial looks and physical attributes . . . and I find that the lineup itself was not so necessarily suggestive as to give rise to any substantial risk of misidentification.

With respect to the second lineup, I make the same findings.

(H. 257, 267-70.) The Prosecution Case At Trial

On the prosecution's case," [t]he main evidence against [Montalvo] consisted of two days of surveillance videotape depicting the three robbers on the day of the robbery and the day before, and the testimony of two eyewitnesses who made separate lineup identifications. . . ." (Ex. A: Montalvo 1st Dep't Br. at 2: see also id. at 8-10, describing videotapes'contents.) Esmerian testified at trial, similar to what Detective Delaney testified at the suppression hearing that Esmerian had told him. (See Ex. A: Montalvo 1st Dep't Br. at 3-7; Ex. C: State 1st Dep't Br. at 16-28.) Detective Delaney (and others) described how the police located Montalvo, and Detective Delaney testified about Montalvo's statements. (See Ex. A: Montalvo 1st Dep't Br. at 10-15; Ex. C: State 1st Dep't Br. at 28-37.)

The Defense's Alibi Case At Trial and the Judge's Questions to Defense Witnesses

For the defense case, Montalvo "and three of his family members . . . testified that [Montalvo] was attending his step daughter's graduation at the time of the robbery." (Ex. A: Montalvo 1st Dep't Br. at 2; see id. at 15-17; Ex. C: State 1st Dep't Br. at 37-46.)

During the testimony of the defense witnesses, Justice Schlesinger posed his own questions, primarily during direct examination. (See Ex. A: Montalvo 1st Dep't Br. at 18.) This began with the defense's first witness, Julia Rodriguez, the mother of Montalvo's girlfriend:

Q [DEFENSE COUNSEL]: Mrs. Rodriguez, did you attend the graduation of your granddaughter [on June 16, 1992]?

A Yes, sir.

Q What time did you go to the graduation?

A I went to the graduation at about 12:00 or 12:15, between 12:00 and 12:30.

THE COURT: Is that when you arrived or when you left your house?

THE WITNESS: No, I left the house about 11:00 o'clock.

THE COURT: And you arrived when?

THE WITNESS: To the train it took about an hour.

THE COURT: So what time did you get —

THE WITNESS: About 12:00 — between 12:00 to 12:30.

THE COURT: Okay. And where was the graduation that you went to?

THE WITNESS: At Lehman College.

THE COURT: Okay. Was it in a building?

THE WITNESS: Well, that's a big —

. . . .

Q [DEFENSE COUNSEL]: Who did you meet there?

THE COURT: If you met anyone.

Q [DEFENSE COUNSEL]: If you met anybody.

A Yes, my daughter, and the little kid.

(Dkt. No. 21: Trial Transcript ["Tr."]: J. Rodriguez: Tr. 960-62.)

The defense continued direct examination of Julia Rodriguez regarding whether Montalvo was present when she arrived at the graduation ceremony. (J. Rodriguez: Tr. 962-63.) This line of questioning prompted the following inquiries from the judge:

THE COURT: All right, and you say you saw [Montalvo] at the graduation?

THE WITNESS: Yes.

THE COURT: At what time did you see him at the graduation, in terms of the time you arrived in the building?

THE WITNESS: Okay, we met — we went inside, make a line, and then we went upstairs, and then we all sit down together.

THE COURT: Okay, and what time did you first see the defendant?

THE WITNESS: At what did what? Excuse me, sir?

THE COURT: Did you first see the defendant?

Q [DEFENSE COUNSEL]: What time did you first see Raul?

A Downstairs.

Q [DEFENSE COUNSEL]: What time?

A Well, about 12:30.

THE COURT: So he was there shortly after you arrived?

THE WITNESS: Right.

(J. Rodriguez: Tr. 963-64.)

Following this exchange, defense counsel elicited testimony regarding photographs taken at the graduation ceremony. (J. Rodriguez: Tr. 965.) The judge interrupted defense counsel to ask whether the pictures had been taken inside or outdoors. (J. Rodriguez: Tr. 965-67, 969-71.) This was followed by questions by the judge as to the time the photographs were taken:

THE COURT: All right, Miss Rodriguez — Miss Rodriguez, how many kids graduated that day?

THE WITNESS: How many kids?

THE COURT: Yes, do you remember?

THE WITNESS: I don't know.

THE COURT: More than five?

THE WITNESS: More than five.

THE COURT: More than —

THE WITNESS: A lot. A lot.

THE COURT: What's approximately "a lot"?

THE WITNESS: Oh, I don't know. I don't remember.

. . . .

THE COURT: You got there around 12:30. What time did the ceremony begin?

THE WITNESS: About 1:00 o'clock, 1:15.

THE COURT: Okay. And about how long did the ceremony in the building take?

THE WITNESS: It finished about 3:00.

THE COURT: It finished at 3:00, and what happened — what did you do at 3:00?

THE WITNESS: At 3:00 o'clock? We stand up and we went downstairs.

. . . .

THE COURT: And you went outside?

THE WITNESS: Outside.

THE COURT: And is that when these pictures were taken?

THE WITNESS: Yes, sir.

(J. Rodriguez: Tr. 973-75.)

The defense called Sherrise Rodriguez as the next witness (S. Rodriguez: Tr. 1023), and asked about her attendance of the graduation ceremony (S. Rodriguez: Tr. 1028-31), during which the judge interjected the following:

Q [DEFENSE COUNSEL]: Now, Sherisse, when you went to the graduation, you say you went there with Raul, your mother and your baby brother, and you got there by cab. What time did you get there, if you recall?

A Around 12:00.

. . . .

Q What did you do —

THE COURT: What time did you leave?

THE WITNESS: 11:30.

THE COURT: You left your house at 11:30?

THE WITNESS: Yes.

Q And you got there around 12:00?

A Yes.

(S. Rodriguez: Tr. 1031-32.) Defense counsel's questioning continued, and the judge interjected again:

Q Now during the ceremony, were you seated with your parents, with Raul and your mother?

A No.

Q And when for the next time did you see Raul and your mother?

A After the graduation.

Q And where was that?

A In front of Lehman College.

Q And —

THE COURT: Excuse me? In front of what?

THE WITNESS: Lehman College.

THE COURT: Is that outside the building where the ceremony was?

THE WITNESS: Yes, outside the building-no, in the building, and after the graduation is when I seen my family.

THE COURT: Okay. Let me ask you this: What time did the ceremony begin?

THE WITNESS: 1:00.

THE COURT: And was every graduate given a separate diploma at that proceeding?

THE WITNESS: Yes.

THE COURT: And about how many graduates were there?

THE WITNESS: I'm not sure.

. . . .

THE COURT: Do you have some idea?

THE WITNESS: Around a hundred. I'm not sure.

THE COURT: Okay. And were any speeches made?

THE WITNESS: Yes.

THE COURT: Did they seem to you to be pretty long?

THE WITNESS: Yes.

THE COURT: Okay. And about what time was all of this finished with, all the big ceremony? What time was that?

THE WITNESS: Around 3:00.

THE COURT: Okay. And [at] 3:00 o'clock what happened? What did you do?

THE WITNESS: We marched outside, and we went to our families and took pictures.

THE COURT: Okay, and it was at that time that you say you saw the defendant?

THE WITNESS: Yes.

THE COURT: And where did you see the defendant?

THE WITNESS: He was waiting for me right in the front. . . . In front of Lehman College.

(S. Rodriguez: Tr. 1032-35.)

Montalvo's counsel next questioned Sherisse to show she had not seen Montalvo since his arrest:

Q Where have you seen him, since his arrest in this case? Have you seen him?

A Oh, no. No.

Q Raul was not living with your mother . . . at the time of the arrest, was she [sic]?

A No.

Q When did they break up?

THE COURT: Do you know what the date of the arrest was?

THE WITNESS: No.

THE COURT: So how would you know if your mother was with him at that time or not?

THE WITNESS: I'm not sure. He would go — I'm not sure what day the arrest was, but I hadn't seen him, and he wasn't living with us.

THE COURT: So since what time was he not living with you?

THE WITNESS: Since after graduation.

THE COURT: Oh.

(S. Rodriguez: Tr. 1037-38.)

The defense next called Denise Deliz, Montalvo's girlfriend at the time of the graduation. (Deliz: Tr. 1073-74.) During initial questioning by defense counsel regarding her recollection of events on June 16, 1992, the judge inquired as to the specific time Deliz left her house and arrived at the graduation ceremony, as well as what time her mother arrived at the ceremony. (Deliz: Tr. 1076-78.) Shortly thereafter, the following exchange occurred:

Q Denise, what time — now the graduation — what time did it start?

A It started at 1:00, but actually it started a few minutes after 1:00 o'clock.

THE COURT: Well, how can it start at 1:00 when it actually started at —

THE WITNESS: It was to start at 1:00 o'clock, but it started maybe like 1:15, 1:20.

THE COURT: Well can you explain what that means?

THE WITNESS: Well because they didn't get started until a little after 1:00 o'clock. It said 1:00 o'clock.

THE COURT: So it didn't get started at 1:00. It started at what, 1:15, 1:20?

THE WITNESS: Yes, 1:15. 1:15.

THE COURT: All right.

(Deliz:Tr. 1081.)

During Deliz's cross-examination, the Assistant District Attorney asked about the clothing worn by Montalvo on the day of the graduation. (Deliz: Tr. 1085.) The judge joined in this inquiry:

Q Miss Deliz, at that graduation ceremony and afterwards, did Raul Montalvo the defendant, have either a suit or a coat and tie?

. . . .

A He had a shirt and tie. Yes, he was dressed for the graduation.

THE COURT: Did he have a jacket?

THE WITNESS: I don't remember him having the jacket on.

Q Do you know where the jacket was?

A Yes. It was probably on top of the chair.

THE COURT: But did he bring one when you left your house?

THE WITNESS: Yes, yes, yes. He did have a jacket. He had a suit on when we left.

THE COURT: A jacket that matched his pants?

THE WITNESS: Yes.

THE COURT: So it would be a suit?

THE WITNESS: A suit.

THE COURT: What color was the suit?

THE WITNESS: I don't remember.

THE COURT: Was it dark or light?

THE WITNESS: Dark.

(Deliz: Tr. 1085.)

The final defense witness was Montalvo himself. (Montalvo: Tr. 1107.) During direct examination, the judge inquired into the relationship between Montalvo and Deliz and about Montalvo's employment history. (Montalvo: Tr. 1109-14.) Defense counsel questioned Montalvo about his attendance at his step-daughter's graduation ceremony, and the judge interjected:

Q Were you there for the entire period of the graduation?

A Yes.

Q What time did you leave Lehman College —

THE COURT: Well what time did the graduation ceremony start?

THE WITNESS: It started at 1:00 — it started at 1:00, but I think — it stated that it was going to start at 1:00, but we didn't get into the hall until about 1:00, — 1:15, 1:30, something like that.

THE COURT: And it started at that time?

THE WITNESS: Excuse me?

THE COURT: The ceremony started about that time?

THE WITNESS: Yes, about 1:15, 1:30.

THE COURT: And how long did it last?

THE WITNESS: It lasted till about — about two hours.

THE COURT: And what time did you get out approximately?

THE WITNESS: Between 3:15, 3:30.

THE COURT: And where did you go when the ceremony was over? . . . .

THE WITNESS: [W]e went to a restaurant.

THE COURT: After the ceremony?

THE WITNESS: After the ceremony, yes.

THE COURT: And what time did you leave the restaurant?

THE WITNESS: Before we went to the restaurant we took pictures and everything, and we said hello to friends and all of that.

THE COURT: Where did you do all of this?

THE WITNESS: . . . . Outside Lehman College. And then we went to the restaurant.

(Montalvo: Tr. 1115-17.)

During Montalvo's cross-examination by the prosecution, the judge posed questions:

Q Now isn't that a fact that you have seen Harati . . .? . . . .

A Yes. I told [Detective Delaney] that I've seen him walking — when I walk in the [Atlas] company, when I was bussed [sic] in, I walked in and I seen him . . .

THE COURT: You said a few moments ago you told us you met Mr. Harati outside the building.

THE WITNESS: Yes, I met him.

THE COURT: Are you now saying you met him inside the jewelry business office?

THE WITNESS: No, no, could I — I talk? I met Mr. Harati a long time ago outside the building with Arana, and then one day when I went to meet Arana at Atlas Company, I went walking in. I've seen him there like from a distance. That's what I mean.

(Montalvo: Tr. 1145-46.) Later during Montalvo's cross-examination, the judge again interjected:

Q And what would occur between you and Joe [Arana] on the three or four occasions when you met him at the Atlas Corporation . . .? . . . .

A Yes, we were meeting some girls.

THE COURT: Were you aware at that time that Arana was in the jewelry business?

THE WITNESS: No. I didn't even know he was in the jewelry business.

THE COURT: You say you had no idea.

THE WITNESS: No idea.

THE COURT: He never discussed why you were meeting him in front of that building?

THE WITNESS: No. He would call and tell me to meet him there, and we would have some lunch with some girls. You know.

(Montalvo: Tr. 1165-66.)

Following Montalvo's testimony, the defense rested and the jury was excused for the evening. (Tr. 1181-83.) The following day, before the jury entered, defense counsel applied for a special jury instruction to cure the judge's questioning of defense witnesses. (Tr. 1186.) Defense counsel noted that he put his entire defense case on from 3:40 to 6:40 p.m., and argued that by interceding and proceeding to cross examine each defense witness, the judge "did something he did not do with relation to the People's case." (Tr. 1186.) Defense counsel argued that this showed "a degree of favoritism, or . . . a question of disbelief." (Tr. 1187.) The judge responded that:

Let me tell you that I was in a certain haste yesterday because it had been the scheduling that, arranged with counsel, that the entire case be finished and we would have summations completed by yesterday. For one reason or another there were delays through the day and the actual case did not end until some time after 7:00 o'clock. To the extent that this court asked any questions of the witnesses called by the defense first, it was done to increase the pace, and secondly to clarify certain matters for the jury. With respect to the comparison with my questions on the People's case, a review of the record will indicate that I did precisely the same thing with the People's witnesses in order to increase the pace and to further enlighten and elucidate what was in some respects not very clear for this jury. . . .

(Tr. 1188-89.) Nevertheless, the judge agreed that "it might be appropriate . . . to tell the jury that [he had] no opinion whatever in regard to anything [he had] done, said or asked has indicated any opinion whatsoever of this court regarding this case." (Tr. 1189.) Defense counsel responded, "[t]hank you, your honor." (Tr. 1189.) During his instructions to the jury, the judge delivered that promised instruction:

I think it well to advise you again, that the court has no opinion whatever regarding the facts of the case, regarding the guilt or innocence of this defendant. . . . I would also suggest to you that nothing that I have done in the course of the trial by reason of questions put to witnesses or otherwise is meant in any way to convey to you any opinion whatsoever regarding the facts or regarding the guilt or innocen[c]e of this defendant.

(Tr. 1317-18.) Defense counsel did not object to the charge. (Tr. 1355.)

Verdict and Sentence

The jury found Montalvo guilty of first-degree robbery. (Tr. 1400-03.) On June 15, 1994, the judge sentenced Montalvo to six to eighteen years imprisonment. (See Pet. ¶ 3; Ex. A: Montalvo 1st Dep't Br. at 1, 37.) Montalvo's Direct Appeal

On appeal to the First Department, Montalvo's new counsel raised a single claim: that the trial judge violated Montalvo's rights to due process and a fair trial by extensively questioning defense witnesses, which "highlighted evidence favorable to the prosecution," and conveyed "a general skepticism" about the truthfulness of the defense witnesses and gave the impression that judge believed Montalvo was guilty. (Ex. A: Montalvo 1st Dep't Br. at 37-38.)

The First Department granted Montalvo permission to file a pro se supplemental brief to challenge the suppression ruling, but not to raise complaints of ineffective trial counsel. (Ex. B: 7/25/96 1st Dep't Order.) Montalvo's pro se supplemental brief asserted that the basis for his arrest was not the alleged "striking resemblance" between the pictures and video of "Sadrikur" and Montalvo, but information that must have come from an informant's tip. (Ex. B: Montalvo Pro Se Supp. 1st Dep't Br.)

On June 16, 1998, the First Department unanimously affirmed Montalvo's conviction, holding in full:

Defendant's argument that the trial court's questioning of his alibi witnesses denied him a fair trial is unpreserved for appellate review as a matter of law for failure to object, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court acted within reasonable limits to clarify confusing testimony, and that its questioning was not so excessive as to warrant reversal in light of the court's appropriate curative instructions.

We have reviewed defendant's remaining arguments, including those contained in his pro so supplemental brief, and find them to be without merit.

People v. Montalvo, 251 A.D.2d 136, 137, 672 N.Y.S.2d 738, 738 (1st Dep't 1998) (citations omitted).

The New York Court of Appeals denied leave to appeal on October 27, 1999. People v. Montalvo, 92 N.Y.2d 950, 681 N.Y.S.2d 481 (1998).

Montalvo's C.P.L. § 440.10 Motion

On October 16, 1997, while his direct appeal was pending, Montalvo filed a pro se C.P.L. § 440 motion with supporting affidavits. (Ex. E: Montalvo § 440 Affs.) Montalvo's first affidavit alleged that failure to allow him to testify before the Grand Jury violated his due process right pursuant to the Fifth Amendment and C.P.L. § 190.50. (Ex. E: Montalvo § 440 1st Aff.) Montalvo's second affidavit asserted that trial counsel was ineffective for: (1) failure to ensure that he would be able to testify before the grand jury, (2) failure to call alibi witnesses who were not family members, and (3) faulure to adequately prepare for trial. (Ex. E: Montalvo § 440 2d Aff.)

On November 30, 1998, Justice Tejada found that "since there was sufficient facts in the record to allow the defendant to raise this issue on appeal and he failed to do so the motion must be denied." (Ex. G: 11/30/98 Justice Tejada Order, citing C.P.L. § 440.10(2)(b).)

On February 8, 1999, Montalvo applied for leave to appeal the denial of his C.P.L. § 440 motion. (See Dkt. No. 17: State Br. at 11-12; Ex. G: Montalvo 1st Dep't § 440 Br. at 2.) On May 27, 1999 the First Department granted leave to appeal "to the extent that [Montalvo] claims ineffective assistance of trial counsel." (Ex. G: Montalvo 1 st Dep't § 440 Br. at Ex. A-2: 5/27/99 1st Dep't Order.)

Montalvo's pro se brief appealing the § 440 decision nevertheless argued both that his trial counsel was ineffective and that he was denied his right to testify before the Grand Jury. (Ex. G: Montalvo 1st Dep't § 440 Br. at 10-24.) On April 11, 2000, the First Department upheld Justice Tejada's § 440 ruling, stating: "Defendant's motion was properly denied (see CPL 440.30[4]). Defendant's moving papers did not establish that he was denied his right to effective assistance of counsel at any stage of the proceedings." (Ex. I: 4/11/00 1 st Dep't Order.) The New York Court of Appeals denied leave to appeal on December 14, 2000. (See Dkt. No. 17: State Br. at 13.)

Montalvo's Coram Nobis Petition

In March 2001, Montalvo filed a coram nobis petition in the First Department alleging that his appellate counsel was ineffective for failing to raise (1) the judicial bias claim (Ex. J: Montalvo Coram Nobis Aff. at 26-28), (2) violation of Montalvo's right to testify before the grand jury (id. at 28-30), and (3) ineffective assistance oftrial counsel (id. at 31). On November 1, 2001, the First Department denied Montalvo's coram nobis petition without opinion.People v. Montalvo, 288 A.D.2d 962, 734 N.Y.S.2d 528 (1st Dep't 2001).

Montalvo's Federal Habeas Corpus Petition

On or about November 8, 2001, Montalvo filed his federal habeas corpus petition alleging that: (1) the trial judge's repeated questioning of defense witnesses violated his due process and fair trial rights and showed judicial bias (Dkt. No. 1: Pet. ¶ 12(A)); (2) he was arrested without probable cause and the evidence resulting from the arrest should have been suppressed (Pet. ¶ 12(B)); (3) he was denied the right to testify before the Grand Jury (Pet. ¶ 12(C)); (4) trial counsel rendered ineffective assistance by (a) failing to move to dismiss the Grand Jury indictment for not allowing Montalvo to testify and (b) failing to call impartial, non-family alibi witnesses (Pet. ¶ 12(D)); and (5) appellate counsel rendered ineffective assistance by (a) failing to fully raise the judicial bias claim, (b) failing to argue that Montalvo's right to testify before the grand jury was violated, and (c) failing to raise ineffective assistance of trial counsel (Pet. ¶ 12(E)).

ANALYSIS

I. THE AEDPA REVIEW STANDARD ³

3 For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *15-17 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *12-14 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Wilder v. Herbert, 03 Civ. 0397, 2003 WL 22219929 at *4-6 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *14 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *7-9 (S.D.N.Y. July 29, 2003) (Peck, M.J.): Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 *11-13 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at * 16-18 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *5-6 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *8-10 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *6-8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.);Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Aramas v. Donnellv, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.);Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.);Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodnguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.),report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Herman, D. J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411, 417 (2d Cir. 2002), cert. denied, 123 S.Ct. 1353 (2003);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S.Ct. 1787 (2003).

Before the Court can determine whether Montalvo is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) 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) . . . 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)(1)-(2).⁴

4 See also, e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003); Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)): Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a beavy burden on habeas petitioners.").

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.⁵ Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.⁶ "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

5 Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert. denied, No. 03-6999, ___ S.Ct. ___, 2003 WL 22438191 (U.S. Dec. 15, 2003); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001):Clark v. Stinson, 214 F.3d 315.320 (2d Cir. 2000) cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

6 Accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003); Lockver v. Andrade, 123 S.Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003); Parsad v. Greiner, 337 F.3d at 181: DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.),cert. denied, 123 S.Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.⁷

7 Accord, e.g., Price v. Vincent, 123 S.Ct. 1848, 1853 (2003); Locker v. Andrade, 123 S.Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v. Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135: Kennaugh v. Miller, 289 F.3d at 42: Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that" [u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523.⁸ However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law."Id. ⁹ Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.¹⁰ "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).¹¹

8 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2534-35:Parsad v. Greiner, 337 F.3d at 181.

9 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535:Price v. Vincent, 123 S.Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 360 (2002)); Lockver v. Andrade, 123 So. Ct. at 1175; Eze v. Senkowski, 321 F.3d at 124-25;DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

10 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535;Price v. Vincent, 123 S.Ct. at 1853; Lockver v. Andrade, 123 S.Ct. at 1174-75; Woodford v. Visciotti, 537 U.S. at 25-27, 123 S.Ct. at 360-61; Eze v. Senkowski, 321 F.3d at 125: Rvan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002);Yung v. Walker, 296 F.3d at 135: Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

11 Accord, e.g., Eze v. Senkowski, 321 F.3d at 125;Rvan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135: Loliscio v. Goord, 263 F.3d at 184: Christie v. Hollins, 2003 WL 22299216 at *3.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed."Kennaugh v. Miller, 289 F.3d at 45.¹²

12 Accord, e.g., Tueros v. Greiner, 343 F.3d at 591;Yung v. Walker, 296 F.3d at 135.

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312: accord Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002)("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference.").¹³ "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).¹⁴ Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA,de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

13 Accord, e.g., Dallio v. Spitzer, 343 F.3d at 559-60;Parsad v. Greiner, 337 F.3d at 180-81; Cotto v. Herbert, 331 F.3d 217.230 at Cir. 2003); Eze v. Senkowski, 321 F.3d at 121: Rvan v. Miller, 303 F.3d at 245; Add v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S.Ct. 694 (2002); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002): Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
The Second Circuit "recognize [d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314: accord, e.g., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v. Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

14 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)). II. UNDER STONE v. POWELL , MONTALVO'S CLAIM THAT THE POLICE LACKED PROBABLE CAUSE TO ARREST HIM DOES NOT PROVIDE A BASIS FOR HABEAS RELIEF ¹⁵

15 For additional decisions authored by this Judge discussing theStone v. Powell standard on habeas review in language substantially similar to the legal analysis in this entire section of this Report Recommendation, see McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *14-17 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Briggs v. Phillips, 02 Civ. 9340, 2003 WL 21497514 at *4-6 (S.D.N.Y. June 30, 2003); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *13-16 (S.D.N.Y. June 17, 2003) (Peck, M.J.);Tibbs v. Greiner, 01 Civ. 4319, 2003 WL 1878075 at *11-13 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.);Lesane v. Dixon, 01 Civ. 9867, 2002 WL 977528 at *4 (S.D.N.Y. May 13, 2002) (Peck, M.J.); Herring v. Miller, 01 Civ. 2920, 2002 WL 461573 at *2-3 (S.D.N.Y. Mar. 27, 2002) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *9 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *4 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Roberson v. McGinnis, 99 Civ. 9751, 2000 WL 378029 at *5 (S.D.N.Y. Apr. 11, 2000) (Batts, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *24 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.);Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *9 (S.D.N.Y. Oct. 29, 1999) (Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 274-75 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 804-05 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.).

Montalvo asserts that he was arrested without probable cause and therefore the property seized and the line-up identifications obtained should have been suppressed as fruits of the unlawful arrest. (Dkt. No. 1: Pet. ¶ 12(B).) On direct appeal, Montalvo argued that the basis for his arrest was information supplied by an informant, not the pictures from the video tape of the Esmerian robbery. (Ex. B: Montalvo Pro Se 1st Dep't Supp. Br.) Montalvo argued that on a police DD5 report, "a confidential DEA informant names [Montalvo]. And then on follow-up #59, the same DEA informant, after viewing the video of the robbery, says that [the] perpetrator is" Montalvo. (Id.) Montalvo argues that the police must establish that the informant had some basis for the knowledge he transmitted. (Id.) Because there is "no indication of the source of the hearsay, it is not possible to determine the informant's basis of knowledge," thus "the evidence is insufficient to support a finding of probable cause," and therefore Montalvo asserts that the results of the line-up are fruits of an illegal arrest. (Id.) The First Department rejected this claim as "without merit." People v. Montalvo, 251 A.D.2d 136, 137, 672 N.Y.S.2d 738, 738 (IstDep't 1998) (quoted at page 23 above).

Montalvo's Fourth Amendment claim must be assessed by reference to the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), which precludes habeas review of Fourth Amendment claims that have been litigated in state court:

[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.

Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53 (1976) (fns. omitted).¹⁶

16 Accord, e.g., Withrow v. Williams, 507 U.S. 680, 682-86, 113 S.Ct. 1745, 1748-50 (1993); McCleskv v. Zant, 499 U.S. 467, 479, 111 S.Ct. 1454, 1462 (1991); Fowler v. Kelly, No. 95-2527, 104 F.3d 350 (table), 1996 WL 521454 at *3 (2d Cir. Sept. 16, 1996); Capellan v. Rilev, 975 F.2d 67. 69-71 (2d Cir. 1992): Grew. Hoke. 933 F.2d 117. 121 (2d Cir. 1991); Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1987).

The Second Circuit, sitting en banc, has concluded thatStone v. Powell permits federal habeas review of exclusionary rule contentions only in limited circumstances:

If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted.

Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (citations omitted), cert. denied, 434 U.S. 1038, 98 S.Ct. 775 (1978).¹⁷

17 Accord, e.g., Graham v. Costello, 299 F.3d 129.133-34 T2d Cir. 2002): Branch v. McClellan, No. 96-2954, 234 F.3d 1261 (table), 2000 WL 1720934 at *3 (2d Cir. Nov. 17, 2000); Capellan v. Rilev, 975 F.2d at 70; Aziz v. Warden of Clinton Correctional Facility, 92 Civ. 104, 1992 WL 249888 at *3 (S.D.N.Y. Sept. 23, 1992), affd, 993 F.2d 1533 (2d Cir.), cert. denied, 510 U.S. 888, 114 S.Ct. 241 (1993): Allah v. LeFevre, 623 F. Supp. 987, 990-92 (S.D.N.Y. 1985); see also, e.g., Smith v. Senkowski, No. 97 CV 1280, 1999 WL 138903 at *6 (E.D.N.Y. Mar. 10, 1999) (Petitioner claimed he was arrested without probable cause and that his pretrial statements therefore should have been suppressed. "A federal court is not permitted to judge the merits of the state court's decision. The Court need only find that the State's procedure for resolving Fourth Amendment claims is 'facially adequate' and that no unconscionable breakdown' of the process occurred in the petitioner's case. An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the petitioner's claim.") (citing Capellan v. Riley, 975 F.2d at 71).

Here, Montalvo litigated his Fourth Amendment claim at the pretrial suppression hearing and on direct appeal (in his pro se supplemental brief) to the First Department. (See pages 2-9, 23 above.) Thus, the state corrective process was not only available, but was employed for Montalvo's Fourth Amendment claim, which therefore cannot support a habeas corpus petition. See, e.g., Gandarilla v. Artuz, 322 F.3d 182, 185 (2d Cir. 2003) ("[T]he merits of a Fourth Amendment challenge are not reviewable in a federal habeas proceeding if a defendant has had a fair opportunity to litigate that question in State court . . ."); Graham v. Costello, 299 F.3d at 134 ("[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the [state] court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief."); Blagrove v. Mantello, No. 95-2821, 104 F.3d 350 (table), 1996 WL 537921 at *2 (2d Cir. Sept. 24, 1996) (where defendant's "Fourth Amendment issues were raised before the trial court in the suppression hearing and before the Appellate Division in [his] pro se brief defendant's "Fourth Amendment argument is barred [from federal habeas review] because the issue was fully and fairly litigated in the state courts."); Capellan v. Riley, 975 F.2d at 70 n. 1 (noting that "the 'federal courts have approved New York's procedure for litigating Fourth Amendment clai . . .'"); McPhail v. Warden. Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983) (New York's procedure for litigating a Fourth Amendment claim in a criminal trial complied with requirement that state provide an opportunity to litigate such claims).¹⁸

18 See also, e.g., Montero v. Sabourin, 02 Civ. 8666, 2003 WL 21012072 at *5 (S.D.N.Y. May 5, 2003) (" [H]abeas review of Fourth Amendment claims that were, or could have been, previously litigated in state court are barred by Stone v. Powell. . . . It has long been acknowledged that New York provides adequate procedures under C.P.L. § 710 et seq., for litigating Fourth Amendment clai"); Ferron v. Goord, 255 F. Supp.2d 127, 130-31 (W.D.N. Y. 2003) ("The Second Circuit has noted that Stone requires only that the 'the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim.") (quoting Gates v. Henderson, 568 F.2d at 839); Baker v. Bennett, 235 F. Supp.2d 298, 307 (S.D.N.Y. 2002) ("The state court need only grant a petitioner 'anopportunity for full and fair litigation of a fourth amendment claim.'") (quoting Capellan v. Riley, 975 F.2d at 70);Fayton v. Goord, 01 Civ. 2912, 2001 WL 694573 at *1 (S.D.N.Y. June 18, 2001) (" Since this petition is based on a fully and fairly litigated Fourth Amendment claim . . . such relief cannot be granted."); Gumbs v. Kelly, 2000 WL 1172350 at *10 (New York's procedure for litigating Fourth Amendment claims provides full and fair opportunity to litigate claim); Hunter v. Greiner, 99 Civ. 4191, 2000 WL 245864 at *6 (S.D.N.Y. Mar. 3, 2000).

Montalvo's claim that the police lacked probable cause to arrest him, and thus that his statements, seized property, and line-up identifications are fruits of that unlawful arrest, is a Fourth Amendment claim that is not cognizable on habeas review. E.g., Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986) (Even where state conceded that petitioner's arrest lacked probable cause, petitioner's claim that his post-arrest questioning was fruit of the illegal arrest was barred because New York "clearly provided" petitioner with "an opportunity fully and fairly to litigate" the Fourth Amendment claim.); Chavis v. Henderson, 638 F.2d 534, 538 (2d Cir. 1980) (Petitioner's claim "that his arrest was without probable cause and that therefore the identification evidence should have been excluded, was properly rejected by the district court. [Petitioner] made no showing . . . that he had been precluded from a full and fair opportunity to litigate this issue in the state courts. Under Stone v. Powell . . ., he may not urge the same grounds for federal habeas corpus relief"), cert. denied, 454 U.S. 842, 102 S.Ct. 152 (1981); Roberson v. McGinnis, 2000 WL 378029 at *5 (UnderStone v. Powell, the Court was precluded from reviewing petitioner's claim that his conviction was based on his confession and the identification testimony obtained as a result of his unlawful arrest. Petitioner had the opportunity to fully and fairly litigate this Fourth Amendment claim during his pretrial suppressing hearing and First Department appeal.); see, e.g., Pina v. Kuhlmann, 239 F. Supp.2d 285, 289 (E.D.N. Y. 2003) (Habeas review unavailable for petitioner's claim that since the police lacked probable cause to arrest him, his post-arrest statements should have been suppressed. "It is well settled that such claims are not cognizable for habeas corpus review where the State has provided a full and fair opportunity to litigate this issue."); Manning v. Strack, No. CV 99-3874, 2002 WL 31780175 at *4 (E.D.N.Y. Oct. 11, 2002) (Raggi, D.J.) ("Stone v. Powell prohibits habeas review of [petitioner's] Fourth Amendment claim" that "he was arrested without probable cause" and that his "identifications and . . . statements should have been suppressed as the fruits of this unlawful arrest." Petitioner "was afforded a full evidentiary hearing on his arrest challenge, as well as one appeal of right and one opportunity to move for leave to appeal."); Senor v. Greiner, No. 00-CV-5673, 2002 WL 31102612 at *10-11 (E.D.N.Y. Sept. 18, 2002) (Habeas claim barred where petitioner argued that he was arrested without probable cause and line-up identifications therefore should have been suppressed. Petitioner "cannot claim that the state lacked sufficient procedures for redress of his Fourth Amendment claims because the courts in this circuit have expressly approved New York's procedure for litigating such clai . ." nor has petitioner "alleged that an unconscionable breakdown in the process occurred.");Bilbrew v. Garvin, No. 97-CV-1422, 2001 WL 91620 at *4-5 (E.D.N.Y. Jan. 10, 2001) (Where petitioner "was not denied the opportunity to litigate his Fourth Amendment claims in the state courts, [the habeas court] will not consider" petitioner's claims "that his statements to the police and the station house identifications of him should have been suppressed as 'fruits' of an unlawful arrest. . . . made without probable cause."); Ortiz v. Artuz, 113 F. Supp.2d 327, 335-36 (E.D.N.Y. Sept. 8, 2000) ("Petitioner argue[d] that he was arrested without probable cause in violation of the Fourth Amendment and that his pretrial statement and the identification procedure should have been suppressed as the fruit of the illegal arrest." Because "[t]he hearing court conducted a reasoned inquiry into petitioner's claim and determined that there was probable cause for his arrest, and the Appellate Division affirmed on the merits. . . . petitioner's Fourth Amendment claim is unreviewable by this Court"), aff d. No. 00-2713, 36 Fed. Appx. 1, 2002 WL 126131 (2d Cir. Jan. 28, 2002), cert. denied, 536 U.S. 909, 122 S.Ct. 2367 (2002).¹⁹

19 See also, e.g., Dawson v. Donnelly, 111 F. Supp.2d 239, 247 (W.D.N.Y. 2000) (Where petitioner's habeas claim that "he was under arrest when he confessed and that there was no probable cause for his arrest" was also raised in a pretrial suppression motion and in his direct state appeal, the state courts gave petitioner "a full and fair opportunity to litigate the claim. Therefore, this Court is precluded from addressing it in the context of a Federal habeas proceeding, and the claim must be dismissed."); Senor v. Senkowski, No. 97-CV-4929, 1999 WL 689477 at *8 (E.D.N.Y. Aug. 31, 1999) (Habeas court cannot consider petitioner's claim that his "arrest violated the Fourth Amendment, and that the line-up identifications were fruit of that unlawful arrest."); Joyner v. Leonardo, 99 Civ. 1275, 1999 WL 608774 at *3-4 (S.D.N.Y. Aug. 12, 1999) (Petitioner's claim that the police lacked probable cause to arrest him and that his subsequent identifications should be suppressed was "rejected under the doctrine established by the Supreme Court in Stone v. Powell . . .");France v. Artuz, No. 98-CV-3850, 1999 WL 1251817 at *6 (E.D.N.Y. Dec. 17, 1999) (Where petitioner's habeas claim that his statements should be suppressed because he was arrested without probable cause was addressed during a pretrial suppression hearing, his claim was denied "[b]ecause petitioner was given a full and fair opportunity in the state courts to litigate this Fourth Amendment issue . . .");Ouinones v. Keane, 97 Civ. 3173, 1998 WL 851583 at *4-5 (S.D.N.Y. Dec. 7, 1998) (Habeas court barred from considering petitioner's claim that his statements should be suppressed because he "was detained without probable cause when he gave the statements.");Maldonado v. Giambrum, 98 Civ. 0058, 1998 WL 841488 at *2 (S.D.N.Y. Dec. 3, 1998) (Petitioner "claim[ed] that the police did not have probable cause to place him under arrest and, for that reason, the evidence acquired after the arrest should not have been admitted at his trial." Because petitioner was "afforded an adequate opportunity to address this fourth amendment claim in the state court proceedings. . . . [the habeas court] need not consider [petitioner's] claim."); Sansalone v. Kuhlmann, 96 Civ. 9231, 1998 WL 804693 at *1 (S.D.N.Y. Nov. 16, 1998) (Parker, DJ.) (Petitioner's "claim, alleging that a lack of probable cause for his arrest warranted suppression of . . . identification testimony . . . [is] precluded from review here because the issues were fully and fairly litigated both in pre-trial hearings and on direct review."); Moreno v. Kelly, 95 Civ. 1546, 1997 WL 109526 at *8 (S.D.N.Y. Mar. 11, 1997) (Where petitioner alleged that his arrest was not based on probable cause and "that all post-arrest identifications should therefore be suppressed as the fruits of an unconstitutional arrest," petitioner's claim was "not a basis for federal habeas relief." Because the trial court held a combined identification, suppression, and probable cause hearing, which was reviewed on direct appeal, petitioner "received a 'full and fair' opportunity to litigate his Fourth Amendment claim in the state courts and this [habeas] court has no authority to revisit the issue." Petitioner's "contention that the trial court's pre-trial determination was incorrect does not entitle him to federal habeas review.");Burton v. Senkowski, No. CV-94-3836, 1995 WL 669908 at *4 (E.D.N.Y. Nov. 5, 1995) ("[Stone v.] Powell and its progeny" barred review of petitioner's claims that his arrest lacked probable cause and that his line-up identification should have been suppressed as fruit of this unlawful arrest.).

Accordingly, because Montalvo had a full and fair opportunity to litigate his Fourth Amendment claim in state court, his claim that the police lacked probable cause to arrest him and that the statements he made, the property seized from him, and the line-up identifications obtained should have been suppressed as fruit of his unlawful arrest should be denied as not cognizable on habeas review.

III. MONTALVO'S CLAIM THAT HIS RIGHTS WERE VIOLATED BECAUSE HE WAS NOT PERMITTED THE RIGHT TO TESTIFY BEFORE THE GRAND JURY DOES NOT PROVIDE A BASIS FOR HABEAS RELIEF

Montalvo's claim that he was denied the right to testify before the grand jury (Pet. ¶¶ 12(C); see page 2 above) is not cognizable on habeas review. "A jury conviction transforms any defect connected with the grand jury's charging decision into harmless error, because the trial conviction establishes probable cause to indict and also proof of guilt beyond a reasonable doubt." Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *11 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.) (citing cases), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); see. e.g., United States v. Mechanik, 475 U.S. 66, 68, 106 S.Ct. 938, 940 (1986) ("The petit jury's verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for which they were convicted. Therefore, the convictions must stand despite the [grandjury] rule violation."); Davis v. Mantello, No. 01-2264, 42 Fed. Appx. 488, 490-91, 2002 WL 1032687 at *2 (2d Cir. May 22, 2002) ("Claims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court.") (citing cases), cert. denied, 123 S.Ct. 1803 (2003); Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) ("If federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in federal court.");Palmer v. Greiner, 00 Civ. 6677, 2003 WL 22019740 at *6 (S.D.N.Y. Aug. 22, 2003); ("[F]ederal habeas courts are precluded from reviewing claims based on procedural deficiencies in state grand jury proceedings."); Marrero v. Senkowski, 01 Civ. 5867, 2003 WL 21750137 at *11 (S.D.N.Y. July 28, 2003) ("As a matter of law, any errors in a state grand jury proceeding are not cognizable on federal habeas corpus review because 'such errors are rendered harmless once a defendant has been convicted by a petit jury.'"); Bingham v. Duncan, 01 Civ. 1371, 2003 WL 21360084 at *4 (S.D.N.Y. June 12, 2003) ("[C]laims of error relating to state grand jury proceedings are not cognizable on federal habeas review, since '[t]he right to testify before a grand jury is a state statutory right, and is not of constitutional dimension.'"); Figueroa v. Donnelly, 02 Civ. 6259, 2003 WL 21146651 at *8 (S.D.N.Y. May 16, 2003) ("[I]t has been consistently held that claims of error in a state grand jury proceeding are not cognizable for federal habeas corpus review after a petit jury has convicted the petitioner. . . ."): Pena v. Fischer, 00 Civ. 5984, 2003 WL 1990331 at *8 (S.D.N.Y. Apr. 30, 2003) (Grand jury claims are not cognizable on habeas "since claims regarding state grand jury proceedings raise no federal constitutional issues."); Gates v. Senkowski, 02 Civ. 5957, 2003 WL 1563777 at *2 (S.D.N.Y. Mar. 17, 2003) (Kaplan, D. J.) ("The right to appear before the grand jury is secured by New York State criminal law, and not by the federal Constitution.") (citation omitted).²⁰

20 See also, e.g., James v. United States, 00 Civ. 8818, 2002 WL 1023146 at *12 (S.D.N.Y. May 20, 2002) (§ 2255 petition; "It is well established that a guilty verdict at trial remedies any defects or errors in the grand jury indictment."); Lemons v. Parrot, 01 Civ. 9366, 2002 WL 850028 at *5-6 (S.D.N.Y. May 2, 2002); Barnes v. Giambruno, 01 Civ. 8965, 2002 WL 850020 at *7 (S.D.N.Y. May 2, 2002); Burgess v. Bintz, 00 Civ. 8271, 2002 WL 727011 at *4 (S.D.N.Y. Apr. 24, 2002); McMoore v. Miller, No. 9:98CV1915, 2002 WL 975305 at *8 (N.D.N.Y. Apr. 19, 2002); Ballard v. Costello, No. Ol-CV-1000, 2001 WL 1388297 at *2 (E.D.N.Y. Nov. 2, 2001); Davis v. Portuondo, 00 Civ. 8928, 2001 WL 1273801 at *6 (S.D.N.Y. Oct. 23, 2001) ("[A]n error in grand jury proceedings is necessarily rendered harmless by a trial jury's subsequent finding of guilt beyond a reasonable doubt."); Bramble v. Smith, 96 Civ. 5905, 1998 WL 395265 at *18 (S.D.N.Y. July 15, 1998) ("claims of error relating to state grand jury proceedings are not cognizable on federal collateral review."); Spulka v. Walker, 97 Civ. 1879, 1998 WL 274287 at *2 (S.D.N.Y. May 27, 1998) ("[T]he guilty verdict of the petit jury cured any defect in the grand jury proceeding."); Green v. Artuz, 990 F. Supp. 267, 273 n. 8 (S.D.N.Y. 1998) ("The right to testify before a grand jury is a state statutory right, and is not of constitutional dimension."); Velez v. People of the State of New York, 941 F. Supp. 300, 315-16 (E.D.N.Y. 1996); Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y.) (Petitioner's "first claim, that the state grand jury proceeding was unlawful," alleges that the prosecutor failed to re-call him to finish testifying before the grand jury. "However, there is no federal constitutional right to a grand jury in a state criminal proceeding. The right to a grand jury is a matter of New York State law and as such is not reviewable on a petition for habeas corpus."), aff'd, 876 F.2d 890 (2d Cir.), cert. denied, 493 U.S. 850, 110 S.Ct. 148 (1989).

Montalvo's conviction renders any failure to allow him to testify before the grand jury harmless error. His grand jury claim is not cognizable on habeas review.

IV. MONTALVO'S JUDICIAL BIAS CLAIM IS BARRED BY AN ADEQUATE AND INDEPENDENT STATE GROUND ²¹

21 For additional decisions by this Judge discussing the adequate and independent state ground doctrine in language substantially similar to that in this entire section of this Report Recommendation,see Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *7-ll (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at * 18-21 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *8-ll (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *7-10 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *11-13 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *8-9 (S.D.N.Y. May 31, 2002) (Peck, M. J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.): Jamison v. Berbarv, 01 Civ. 5547, 2002 WL 1000283 at *20-21 (S.D.N.Y. May 15, 2002) (Berman, D. J. Peck, M. J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *8-ll (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.),report rec. adopted, 2003 WL 1936191 (S.D.N.Y. Apr. 23, 2003) (Mukasey, D.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *7 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002) (Swain, D.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *9 (S.D.N.Y. May 21, 2001) (Peck, M.J.);Jones v. Duncan, 162 F. Supp.2d 204, 209-14 (S.D.N.Y. 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted, 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.J.), affd, No. 01-2701, 77 Fed. Appx. 546, 2003 WL 22134571 (2d Cir. Sept. 15, 2003); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (April 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796.1999 WL 1051107 at *12(S.D.N.Y. Nov. 19, 1999)(Pauley, DJ. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at * 12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, No. 99-2416, 205 F.3d 1324 (table), 2000 WL 246226 (2d Cir. Feb. 22, 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.),certificate of appealability denied, 2000 WL 8249 (S.D.N.Y. Jan. 4, 2000); Torres v. Irvin, 33 F. Supp.2d257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).

Montalvo's counsel failed to object during trial to the judge's questioning of defense witnesses. However, at the conclusion of the trial, defense counsel requested a curative instruction as to the judge's questioning. (Tr. 1186; see pages 21-22 above.) The judge explained that he interjected "to increase the pace, and . . . to clarify certain matters for the jury," but nevertheless thought it appropriate "to tell the jury that [he had] no opinion whatever in regard to anything [he had] done, said or asked has indicated any opinion whatsoever of this court regarding this case." (Tr. 1189). Defense counsel responded, "[t]hank you, your honor." (Id.) The judge gave the promised instruction to the jury (Tr. 1317-18, quoted at page 22 above), and defense counsel made no objection to the judge's instructions to the jury. (Tr. 1355.)

On direct appeal, the First Department held that Montalvo's "argument that the trial court's questioning of his alibi witnesses denied him a fair trial is unpreserved for appellate review as a matter of law for failure to object . . ." People v. Montalvo, 251 A.D.2d 136, 137, 672 N.Y.S.2d 738, 738 (1st Dep't 1998). Since the First Department's decision was based on adequate and independent state law grounds, Montalvo's judicial bias claim is barred from federal habeas review.

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted).²²

22 See also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S.Ct. 851, 860-61 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991): Murray v. Carrier, 477 U.S. 478, 485-88, 496, 106 S.Ct. 2639, 2644-45, 2649-50 (1986);Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999); Reyes v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108.117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quotingGlenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in analternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."): Garcia v. Lewis, 188 F.3d at 77-82: Glenn v. Bartlett, 98 F.3d at 724-25: see also, e.g., Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejectsaclaim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.

With respect to Montalvo's judicial bias claim, the First Department held:

Defendant's argument that the trial court's questioning of his alibi witnesses denied him a fair trial is unpreserved for appellate review as a matter of law for failure to object, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court acted within reasonable limits to clarify confusing testimony, and that its questioning was not so excessive as to warrant reversal in light of the court's appropriate curative instruction.

People v. Montalvo, 251 A.D.2d at 137, 672 N.Y.S.2d at 738 (citations omitted).

State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.

Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559.

Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review, see, e.g., Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) ("We have found a state court's reliance on a state procedural bar to be ambiguous, and thus refused to invoke a procedural bar, where . . . the state court rejected defendant's claims on appeal as 'either meritless orunpreserved.'"): Tankleff v. Senkowski, 135 F.3d 235, 247(2d Cir. 1998): Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992), here the First Department explicitly stated that it found Montalvo's claim to be unpreserved, People v. Montalvo, 251 A.D.2d at 137, 672 N.Y. So.2d at 73 8, and the fact that the First Department also stated the conclusion it would reach" [w]ere [it] to review" the claim does not change the result. See, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 810-11 n. 4 (2d Cir. 2000) ("where 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 at 724-25 n. 3 (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds); Campos v. Portuondo, 193 F. Supp.2d 735, 744 n. 4 (S.D.N.Y. 2002) ("The language used by the Appellate Division in Campos' case is in contrast with the language used in those cases where the state court found a claim to be 'either meritless or unpreserved.' Unlike the conjunctive 'and,' the use of the disjunctive 'or' in such cases obviously does not clarify whether the court's ruling rests on a procedural bar."), aff'd, 320 F.3d 185 (2d Cir.), cert. denied, 124 S.Ct. 415 (2003); Jones v. Duncan, 162 F. Supp.2d at 211 ("The First Department's use of the conjunctive 'and' rather than the disjunctive 'or' clearly shows that the First Department found these claims to be unpreserved.").²³ Thus, the First Department's decision unambiguously rested on a state procedural ground.²⁴

23 See also, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10; Figueroa v. Greiner, 2002 WL 31356512 at *10 (decision that claim is unpreserved but were it to be reviewed is without merit, sufficient for procedural bar); Velasquez v. Murray, 2002 WL 1788022 at *8; Soto v. Greiner, 2002 WL 1678641 at *12; Larrea v. Bennett, 2002 WL 1173564 at *9 n. 8; Martinez v. Greiner, 2001 WL 910772 at *9 n. 9;Ferguson v. Walker, 2001 WL 869615 at *8 n. 19;Simpson v. Portuondo, 2001 WL 830946 at *10; Simmons v. Mazzuca, 2001 WL 537086 at * 10 (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them): Yeung v. Artuz, 2000 WL 145103 at* 10 (same): Cruz v. Greiner, 1999 WL 1043961 at *12-13 (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274 (adequate and independent ground even though First Department "went on to dismiss the [judicial misconduct] claim on the merits"); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. Apr. 20, 1998);Vera v. Hanslmaier, 928 F. Supp. at 285; Liner v. Keane, 1996 WL 33990 at *7.

24 The New York Court of Appeals denied Montalvo's application for leave to appeal. People v. Montalvo, 92 N.Y.2d 950, 681 N.Y.S.2d 481 (1998). The Supreme Court held in Y1st v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803, 111 S.Ct. at 2594. Roberts has presented no facts to rebut that presumption here.

Under New York Law, "[a]s a general rule points which were not raised at trial may not be considered for the first time on appeal." People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584 (1980) (citing C.P.L. § 470.05(2)).²⁵ In order to preserve his judicial bias claim for appellate review, Montalvo was required to object at trial to the judge's questions of defense witnesses. E.g., C.P.L. § 470.05(2); see Roberts v. Batista, 2003 WL 1900866 at *9 n. 12 (extensively citing federal and state cases concerning failure to preserve objections to prosecutor's remarks on summation); see also cases cited at pages 49-51 below. Montalvo's counsel, however, did not make a single objection to the judge's questioning of witnesses. (See pages 10-21 above.)

25 C.P.L. § 470.05(2) provides, in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.

C.P.L. § 470.05(2) (emphasis added).

Both the Supreme Court and the Second Circuit have held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. at 485-92, 497, 106 S.Ct. at 2644-48, 2650 (same); Garcia v. Lewis, 188 F.3d at 79 ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citingBossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, USS.Ct. 1436 (1995). Fernandez v. Leonardo, 931 F.2d 214. 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)).cert. denied, 502 U.S. 883, 112 S.Ct. 236 (1991)): Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground); Figueroa v. Greiner, 2002 WL 313 56512 at * 11-12 ("The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground."): Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously . . . constitutes an adequate and independent basis for barring habeas review.").

Specifically, the New York courts and the Second Circuit have held that it is necessary to object to the judge's interference in questioning witnesses, and that the failure to do so is an adequate and independent state ground sufficient to bar habeas relief. E.g., People v. Charleston, 56 N.Y.2d 886, 887, 453 N.Y.S.2d 399, 400 (1982) ("A question of law for review in this court is presented on a claim of excessive interference by the Trial Judge when there has been an objection at trial in some form sufficient to give the judge an opportunity to correct the problem . . .");²⁶ People v. Darling, 276 A.D.2d 922, 924, 714 N.Y.S.2d 393, 396 (3d Dep't 2000) ("[D]efense counsel never moved for recusal . . . or voiced any objection to [the court's] conduct at trial. Thus, defendant's present claims of judicial bias and prejudice are . . . unpreserved for review . . ."), appeal denied, 96 N.Y.2d 733, 722 N.Y.S.2d 800 (2001); People v. Smith, 251 A.D.2d 226, 227, 674 N.Y.S.2d 682, 683 (1st Dep't) ("Having failed to object to the individual instances of questioning by the court, or any pattern of questioning, this claim is unpreserved for appellate review . . ."), appeal denied, 92 N.Y.2d 930, 680 N.Y.S.2d 472 (1998); People v. Graziano, 151 A.D.2d 775, 775, 543 N.Y.S.2d 107, 108 (2d Dep't) ("In order to preserve a claim that a trial court improperly participated in the questioning of witnesses and helped develop the prosecutor's case, [defense] counsel must object to the court's interference."), appeal denied, 74 N.Y.2d 809, 546 N.Y.S.2d 567 (1989); People v. Casasnovas, 108 A.D.2d 923, 924, 485 N.Y.S.2d 813, 814 (2d Dep't 1985) ("The court's participation in the questioning of the witnesses was not objected to, and therefore the issue has not been preserved."); see, e.g., Garcia v. Warden. Dannemora Corr. Facility, 795 F.2d 5, 7 (2d Cir. 1986) (" [A]s a general rule, New York appellate courts will not even consider claims of excessive interference by a trial judge unless timely objections were addressed to the judge's course of conduct in such a manner as to put him on notice that his conduct was felt to be improper." Where "[d]efense counsel objected to several questions posed by the court, but only on the ground that they were leading or otherwise improper, not because it was the judge who had asked them," counsel was "barred . . . from arguing judicial improprieties for the first time in the Appellate Division.") (citing People v. Charleston): Fauntleroy v. Artuz, No. 00 CV 2209, 2003 WL 22670906 at *5 (E.D.N. Y. Oct. 31, 2003) (Petitioner's habeas petition claimed "that the trial court denied him a fair trial when it unduly interfered with direct and cross-examination of certain witnesses in a way that bolstered the government's case and indicated to the jury a bias against" petitioner. Habeas court determined that the Appellate Division's conclusion that petitioner's claim "was unpreserved for appellate review" rested on an adequate and independent state procedural ground and found the claim procedurally barred): Martinez v. Greiner, 01 Civ. 2911, 2003 WL 1936191 at *3 (S.D.N.Y. Apr. 23, 2003) (Mukasey, D.J.) ("I agree with Magistrate Judge Peck that the First Department's finding of procedural default" for defense counsel's failure to object to extensive judicial questioning of witnesses, "is an independent and adequate state ground that precludes review by this [habeas] court."), adopting report rec., 2001 WL 910772 at *10 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.). Montalvo's counsel never objected during the course of the trial to the judge's questioning of defense witnesses.

26 "'Because a court is entitled to question witnesses to clarify testimony and to facilitate the progress of the trial, a defense attorney cannot be expected to enter an objection to the Trial Judge's conduct at the first sign of judicial overbearance.' Nonetheless, after it becomes 'clear that the Judge intends to exceed his permissible role and assume the advocate's function' . . . it is incumbent upon defense counsel at least to attempt to register some protest to that conduct to preserve the matter for appellate review." People v. Charleston, 56 N.Y.2d at 887, 453 N.Y.S.2d at 400 (quoting People v. Yut Wai Tom, 53 N.Y.2d 44, 55, 439 N.Y.S.2d 896, 902(1981)).

Even if the Court were to construe defense counsel's request at the end of trial for a curative instruction as a sufficient objection, Montalvo's habeas claim still is unpreserved for habeas review, since the trial judge gave the requested instruction and defense counsel failed to object to the curative instruction. (See page 22 above.) Thus, no objection is preserved for review. E.g., People v. Moses, 126 A.D.2d 755, 755-56, 511 N.Y.S.2d 338, 339 (2d Dep't) ("The defendant's contention that the trial court improperly participated in the cross-examination of one of the defendant's alibi witnesses is unpreserved for appellate review. When the defendant raised an objection to the court's questioning, the court indicated that it would instruct the jury, in its charge, that they should not infer that the court was taking the side of any of the attorneys. Defense counsel assented to this course of conduct and did not move for a mistrial. The error is, therefore, unpreserved."),appeal denied, 70 N.Y.2d 715, 519 N.Y.S.2d 1051 (1987);see, e.g., Gonzalez v. Miller, No. 99-2514, 1 Fed. Appx. 71, 74, 2001 WL 38248 at *3 (2d Cir. Jan. 12, 2001) ("[A] fair or substantial basis [for the state court's finding of procedural default] existed, as the petitioner did not object to the court's curative instructions or move for a mistrial on the ground that the curative instructions were inadequate."), cert. denied, 534 U.S. 918, 122 S.Ct. 267 (2001); Reardon v. Richardson, 956 F.2d 391, 391 (2d Cir. 1992) (prosecutorial misconduct claim procedurally barred from habeas review because defense counsel failed to move for a mistrial after trial judge gave requested curative instruction):Carter v. Scully, 557 F. Supp. 626, 630 (S.D.N.Y 1982) ("[A]fter the trial judge denied [petitioner's] motion for a mistrial and offered a curative instruction, it was incumbent upon [petitioner] to make known any further objections on this point before the trial ended. Since [petitioner's] attorney unreservedly accepted the instruction, [petitioner] failed to preserve this claim as a question of law for appeal, according to New York procedural rules."), aff'd, No. 82-2094, 697 F.2d 288 (table) (2d Cir. June 11, 1982), cert. denied, 459 U.S. 1148, 103 S.Ct. 791 (1983).²⁷

27 See also, e.g., People v. Tardbania, 72 N.Y.2d 852, 853, 532 N.Y.S.2d 354, 354 (1988) ("In some instances where the defendant objected, the objection was sustained and adequate curative instructions were given and in other instances no objection was taken. Therefore, no issue has been preserved for review by this court."); People v. Smith, 294 A.D.2d 454, 454, 741 N.Y.S.2d 744, 744 (2d Dep't) ("The defendant's trial counsel did not object further or take exception. The curative instructions therefore must be deemed to have corrected the errors to the defendant's satisfaction, and his claim on appeal is unpreserved for appellate review."), appeal denied, 98 N.Y.2d 702, 747 N.Y.S.2d 421 (2002); Doyle v. Nusser, 288 A.D.2d 176, 176-77, 733 N.Y.S.2d 84, 84-85 (2d Dep't 2001) ("Since the defendants failed to object to the curative instruction as given, this issue is also unpreserved for appellate review."); People v. Reding, 167 A.D.2d 716, 717, 564 N.Y.S.2d 489, 490 (3d Dep't 1990) ("Defendant's objection to that testimony, however, was not preserved for our review because defendant's counsel stipulated to the curative instruction given by County Court and thereafter made no further objections or requests for additional instructions."), appeal denied, 77 N.Y.2d 999, 571 N.Y.S.2d 925 (1991); People v. Foster, 156 A.D.2d 252, 252, 549 N.Y.S.2d 1, 2 (1st Dep't 1989) ("Appellant's challenge to the identification charge was not objected to at trial, and we note that trial counsel even conceded that the instruction was 'sufficient.' As such, it is not preserved for review as a matter of law."), appeal denied, 75 N.Y.2d 868, 553 N.Y.S.2d 299 (1990): People v. Jalah, 107 A.D.2d 762, 763, 484 N.Y.S.2d 116, 116-17 (2d Dep't 1985) ("Although the prosecutor made certain improper remarks with respect to presumption of innocence, the court's immediate curative instructions were sufficient to dispel whatever prejudicial effect such remarks may have had. . . . Moreover, since defendant did not request additional instructions or seek a mistrial, the court must be deemed to have cured the error to defendant's satisfaction."); People v. Baldo, 107 A.D.2d 751, 752, 484 N.Y. So.2d 114, 115 (2d Dep't 1985) (" [W]ith respect to the prosecutor's remark concerning the defendant's failure to report the crime to the police as being evidence of her guilt, the defense counsel's objection thereto was sustained and immediate curative instructions were given. Since the adequacy of the court's curative instructions was never challenged, the defendant's objection to the comment was not preserved for appellate review.").

Because there is an adequate and independent finding by the First Department that Montalvo procedurally defaulted on his judicial bias claim, Montalvo would have to show in his habeas petition "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 v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565.²⁸ Ineffective assistance of counsel can, of course, represent cause for a procedural default. See, e.g., Murray v. Carrier, 477 U.S. 478 at 488, 106 S.Ct. at 2645 (1986); Reves v. Keane, 118 F.3d at 139;Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Wilder v. Herbert, 03 Civ. 397, 2003 WL 22219929 at *9 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.);Besser v. Walsh, 02 Civ. 6775, 2003 22093466 at *32 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.); Sanchez v. Green, 02 Civ. 4803, 2003 WL 132538 at *2 (S.D.N.Y. Jan. 16, 2003) (Peck, M.J.); Aramas v. Donnelly, 2002 WL 31307929 at *6 n. 7 ( cases cited therein). However, because the Court finds Montalvo's trial counsel was not ineffective, see Point V.B below, Montalvo's judicial bias claim is barred from habeas review.

28 See also, e.g., Schlup v. Delo, 513 U.S. at 324-27, 115 S.Ct. at 865-67 (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence").

V. MONTALVO'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SHOULD BE DENIED

Montalvo's habeas petition alleges that his trial counsel was ineffective for (a) failing to move to dismiss the grand jury indictment for not allowing him to testify and (b) failing to call impartial, non-family alibi witnesses at trial. (Dkt. No. 1: Pet. ¶ 12(D).) Montalvo also claims that his appellate counsel was ineffective for (a) failing to fully raise the judicial bias claim, (b) failing to argue that Montalvo's right to testify before the grand jury was violated, and (c) failing to raise ineffective assistance of trial counsel. (Pet. ¶ 12(E).)

A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ²⁹

29 For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26-28 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.);McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at * 17-18 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 SL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.),report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.): Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *14-16 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *26-28 (S.D.N.Y Dec. 20, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *13-14 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-ll (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at * 16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.);Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-ll (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at * 15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.);Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Boyd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064.³⁰

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).³¹

30 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535;Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 1850(2002).

31 Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 So. Ct. at 1852: Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001);Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance.Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "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." M. at 694, 104 S.Ct. at 2068.³²

32 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2542;Bell v. Cone, 535 U.S. at 695, 122 S.Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95: Sellan v. Kuhlman, 261 F.3d at 315: DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).
"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Stickler v. Greene, 527 U.S. 263, 289-91, 119 S.Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"): Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 ("The result of a 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."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility."Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953; cfid. at 297-301, 119 S.Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.³³

33 Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.³⁴

34 See also, e.g., Yarborough v. Gentry, 124 S.Ct. 1, 5-6 (2003); Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d at 199.

The Strickland test applies to appellate as well as trial counsel. See, e.g., Smith v. Robbins, 528 U.S. at 285, 120 So. Ct. at 764.³⁵ A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonable in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mavo v. Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett, 2002 WL 1173564 at *18 n. 30 (discussing the issue of whether a federal or state standard should apply).

35 Accord, e.g., Evitts v. Lucev, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37 (1985);Frederick v. Warden. Lewisburg Corr. Fac., 308 F.3d 192, 197 (2d Cir. 2002), cert. denied, 537 U.S. 1146.123 S.Ct. 946 (2003): Aparicio v. Artuz, 269 F.3d at 95: Sellan v. Kuhlman, 261 F.3d at 319; McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d at 533; Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347 (1993); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990); Ortiz v. United States, 01 Civ. 9990, 2002 WL 31427356 at *4 (S.D.N.Y. Oct. 30, 2002); Senor v. Greiner, No. OO-CV-5673, 2002 WL 31102612 at *8 (E.D.N.Y. Sept. 18, 2002); King v. Greiner, 210 F. Supp.2d 177, 182-83 (E.D.N.Y. 2002).
For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of appellate counsel, in language substantially similar to the balance of this section of this Report Recommendation, see Maldonado v. Greiner, 2003 WL 22435713 at *28; Besser v. Walsh, 2003 WL 22093477 at *34; Guzman v. Fischer, 2003 WL 21744086 at *11:Larrea v. Bennett, 2002 WL 1173564 at *18; Rivera v. Duncan, 2001 WL 1580240 at *10; Fluellen v. Walker, 2000 WL 684275 at * 12: Dukes v. McGinnis, 2000 WL 382059 at *9;Lugo v. Kuhlmann, 68 F. Supp.2d at 371; Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 277; Ehinger v. Miller, 942 F. Supp. 925, 932 (S.D.N.Y. 1996) (Mukasey, D. J. Peck, M.J.); Benn v. Stinson, 917 F. Supp. 202, 205 (S.D.N.Y. 1995) (Stein, DJ. Peck, M.J.).

Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)).³⁶ Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues.Lugo v. Kuhlmann, 68 F. Supp.2d at 371-72.³⁷ Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85.

36 Accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.");Jackson v. Leonardo, 162 F.3d at 85; Mavo v. Henderson, 13 F.3d at 533.

37 Accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 So. Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216 (1984).

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)).³⁸ "For AEDP A purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfiedStrickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852; see also Yarborough v. Gentry, 124 S.Ct. at 4.

38 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535;Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852; Sellan v. Kuhlman, 261 F.3d at 315.

B. Montalvo's Claims of Ineffective Trial Counsel are Meritless

Montalvo argues that he was denied effective assistance of counsel because trial counsel (1) "failed to object or move to dismiss after Grand Jury Violation;" and (2) "failed to contact interested and impartial non-family alibi witnesses who were willing to testify, including Mrs. Jane Reynolds."³⁹ (Pet. ¶ 12(D).) 1. Counsel's Failure to Move for Dismissal After the Alleged Violation of Montalvo's Right to Testify Before the Grand Jury

39 Montalvo's petition asserts that his trial counsel was ineffective in "six ways" and refers to "other claims" of ineffective assistance besides the two listed. The State does not address any of these additional grounds. Montalvo's § 440 brief lists six claims of ineffective assistance including: counsel's failure to

[a] adequately investigate all matters pertaining to the defense of defendant, [b] make effort to contact alibi witnesses, [c] insure that client had opportunity to testify before grand jury, [d] preserve favorable evidence which tends to exonerate defendant, [e] present the best witnesses [not only interested witnesses], [f] an attorney has duty and obligation to be truthful with client.

(Ex. E: Montalvo § 440 Br.)

Even if this statement in Montalvo's § 440 brief could be liberally construed to raise these additional grounds, the claims would still be denied. Montalvo's assertions about counsel's shortcomings are far too conclusory and vague to support a claim for habeas corpus relief. See, e.g., McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *25 n 56 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.) ( cases cited therein); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *36 n. 91 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.).

Montalvo claims that he was denied the effective assistance of counsel because his trial counsel did not move for dismissal after the alleged violation of Montalvo's right to testify before the grand jury. (Pet. ¶ 12(D). There is no federally-cognizable ineffective assistance claim concerning advice regarding the state grand jury process. As the Second Circuit explained:

We also reject the petitioner's argument that his claim should be interpreted as a claim for ineffective assistance of counsel based on his attorneys failure to secure his right to testify before the grand jury. . . . A defendant's right to testify before the grand jury is not a constitutional right; rather, it is a statutorily created right. N.Y. Crim. Proc. Law § 190.50(5). New York courts have consistently held that counsel's failure to ensure that the defendant testifies before the grand jury does not amount to ineffective assistance of counsel.

Davis v. Mantello, No. 01-2264, 42 Fed. Appx. 488, 491 n. 1, 2002 WL 1032687 at *2 n. 1 (2d Cir. May 22, 2002) (emphasis added; citing cases), cert. denied, 123 S.Ct. 1803 (2003);accord, e.g., Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *15 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.) ( cases cited therein),report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); see also, e.g., Turner v. Fischer, Nos. 01-CV-3251, 03-MISC-0066, 2003 WL 22284177 at *6 (E.D.N.Y. Aug. 20, 2003) (Weinstein, DJ.) (Even "[a]ssuming . . . counsel waived [petitioner's] right to appear before the grand jury without petitioner's permission, petitioner cannot demonstrate that he was prejudiced thereby. He was afforded a jury trial and was convicted by a petit jury after testifying before it. Any prejudice suffered by petitioner was rendered harmless by his conviction at trial by the petit jury, which assessed his guilt under a heightened standard of proof."); Keeling v. Varner, Nos. 99-CV-6565, 03-MISC-0066, 2003 WL 21919433 at *7 (E.D.N.Y. June 17, 2003) (Weinstein, D. J.) ("Petitioner claims his counsel was ineffective because he did not inform him of his right to testify before the grand jury. . . . Claims regarding the conduct of the grand jury are not cognizable in a habeas proceeding where a petit jury has heard the evidence and convicted defendant. . . . Counsel was not ineffective in this regard. Petitioner's fair trial and due process rights were not infringed.");Wilson v. Breslin, 217 F.R.D. 119, 126 (E.D.N.Y. 2003) (Weinstein, DJ.) (Even if petitioner was denied his right to testify before the grand jury, trial counsel was "not ineffective for failing to raise this claim before the trial court" since "[h]abeas relief is not warranted on this ground. The evidence of guilt at trial made irrelevant whatever grand jury error existed."); Bingham v. Duncan, 01 Civ. 1371, 2003 WL 21360084 at *4 (S.D.N.Y. June 12, 2003) (Rejecting petitioner's claim that counsel was ineffective for failing to secure petitioner's right to testify before the grand jury: "Given that any defect in the grand jury proceeding was cured by petitioner's subsequent conviction,. . . it necessarily follows as a matter of law that petitioner cannot establish that any errors made by his trial counsel with respect to the grand jury proceeding prejudiced him, thereby foreclosing the possibility of a Sixth Amendment violation.") (internal quotation omitted); Hutchings v. Herbert, 260 F. Supp.2d 571, 578 n. 2 (W.D.N.Y. 2003) (Petitioner's "guilty plea cured any defect in the grand juryproceeding caused by the State's alleged failure to give [petitioner] an opportunity to appear before that body. It necessarily follows as a matter of law that [petitioner] cannot establish that any errors made by his trial attorney with respect to the grand jury proceeding prejudiced him, thereby foreclosing the possibility of a Sixth Amendment violation." Also, by failing to show "what he would have told the grand jury that would have prevented his indictment," petitioner "failed to demonstrate any prejudice from the alleged failure of his attorney to ensure an opportunity for him to testify before the grand jury.") ( cases cited therein); Cates v. Senkowski, 02 Civ. 5957, 2003 WL 1563777 at *3 (S.D.N.Y. Mar. 17, 2003) (Kaplan, D.J.) (Rejecting petitioner's claim that counsel was ineffective for failing to ensure petitioner's ability to testify before the grand jury: "Even if petitioner could establish that his counsel's assistance fell below an objective standard, he definitely has not satisfied Strickland's requirement of prejudice. . . . [CJonviction by the petit jury cures any prejudice from such an error during the grand jury proceedings."); Acosta v. Couture, 99 Civ. 9727, 2003 WL 272052 at *8 (S.D.N.Y. Jan. 23, 2003) ("'[C]ounsel's failure to secure [a defendant's] right to testify before the grand jury does not, by itself, establish ineffective assistance of counsel.'. . . Although [petitioner] had a state statutory right to testify before the grand jury, he did not have a constitutional right and counsel's decision not to have him testify does not render his performance deficient.") ( cases cited therein) (quoting Boyd v. Hawk, 965 F. Supp. 443, 451 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).⁴⁰

40 See also, e.g., Lemons v. Parrot, 01 Civ. 9366, 2002 WL 850028 at *6 (S.D.N.Y. May 2, 2002) (petitioner's "ineffective assistance claim is denied because his failure to testify in front of the grand jury did not prejudice his defense" since he was convicted by the trial jury); Ballard v. Costello, No. 01-CV-1000, 2001 WL 1388297 at *2-3 (E.D.N.Y. Nov. 2, 2001); Davis v. Portuondo, 00 Civ. 8928, 2001 WL 1273801 at *6 (S.D.N.Y. Oct. 23, 2001); Thompson v. Kelly, No. 97-CV-258, 1999 WL 166820 at *2 (W.D.N.Y. Feb. 4, 1999) (because "claims of error relating to state grand jury proceedings are not cognizable on federal habeas corpus review,. . . [i]t necessarily follows as a matter of law that [petitioner] cannot establish that any errors made by his trial counsel with respect to the grand jury proceeding prejudiced him, thereby foreclosing the possibility of a Sixth Amendment violation."); Bramble v. Smith, 96 Civ. 5905, 1998 WL 395265 at *18 (S.D.N.Y. July 15, 1998) ("even if counsel failed to inform Petitioner of his right to testify before a grand jury, this does not state a claim for ineffective assistance of counsel underStrickland because Petitioner cannot show prejudice," since "[u]nder federal law, a jury conviction transforms any grand jury defect connected with the charging decision into harmless error because the trial conviction establishes not only probable cause to indict, but proof of guilt beyond a reasonable doubt."); Velez v. People of the State of New York, 941 F. Supp. 300, 316 (S.D.N.Y. 1996); cf Boyd v. Hawk, 965 F. Supp. at 451 (" [Petitioner] fails to allege or show prejudice, i.e., he presents no argument that if he had appeared before the grand jury, the grand jury's action would have been any different. . . . Given the overwhelming evidence of [his] guilt, including his admission to participating in a scheme to defraud, and the low burden of proof for obtaining an indictment, it is unlikely that the grand jury would have voted not to indict [him] if he had appeared before them.").

Montalvo's ineffective assistance of trial counsel claim, based on counsel's failure to preserve his right to testify before the grand jury, is meritless. Because any defect in the grand jury proceedings was cured by the petit jury conviction, Montalvo cannot show any prejudice from counsel's alleged failure.

2. Counsel's Failure to Call Non-Family Alibi Witnesses

Montalvo alleges that defense counsel's choice of witnesses "tended to prejudice the case and the defendant" (Ex. E: Montalvo § 440 Br.) because

[t]he only witnesses put on by the defense were family members or very close friends, persons that the prosecution and Court could deem "interested witnesses" to the jury. Defendant had, along with people who had attended graduation ceremonies with him, given to trial counsel the names of persons who could testify as to defendants' whereabouts at the times in question. [Defense counsel] failed in serious respects by not investigating . . . potential non interested parties.

(Montalvo § 440 Br.)

Courts in this Circuit have made clear that "[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial."United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.),cert. denied, 484 U.S. 958, 108 S.Ct. 357 (1987); accord, e.g., Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *37 (S.D.N.Y. June 17, 2003) (Peck, M.J.); see also. e.g., United States v. DeJesus, No. 01-1479, 57 Fed. Appx. 474, 478, 2003 WL 193736 at *3 (2d Cir. Jan. 28, 2003) ("A trial counsel's 'decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.' United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999). Because of this inherently tactical nature, the decision not to call a particular witness generally should not be disturbed." Counsel's decision not to call a character witness was grounded in strategy and not deficient, "even though [defendant] requested that she do so and provided her with contact information for potential witnesses."), cert. denied, 123 S.Ct. 2110 (2003):United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) ("A failure to call a witness for tactical reasons of trial strategy does not satisfy the standard for ineffective assistance of counsel."), cert. denied, 123 S.Ct. 1949 (2003): United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied, 526 U.S. 1164, 119 S.Ct. 2059 (1999); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.), cert. denied, 522 U.S. 846, 118 S.Ct. 130 (1997); Nieves v. Kelly, 990 F. Supp. 255, 263-64 (S.D.N.Y. 1997) (Cote, D.J. Peck, M.J.); Rodriguez v. Mitchell, 92 Civ. 2083, 1993 WL 229013 at *3, 5 (S.D.N.Y. June 24, 1993) ("Counsel's decision not to call a witness, if supported by valid tactical considerations, does not constitute ineffective assistance of counsel.").

More importantly, "[g]enerally, the decision whether to pursue a particular defense is a tactical choice which does not rise to the level of a constitutional violation. . . . [T]he habeas court 'will not second-guess trial strategy simply because the chosen strategy has failed . . .,' especially where the petitioner has failed to identify any specific evidence or testimony that would have helped his case if presented at trial." Jones v. Hollins, 884 F. Supp. 758, 765-66 (W.D.N.Y. 1995) (citations omitted),aff'd, 89 F.3d 826, 1995 WL 722215 (2d Cir. 1995); accord, e.g., Skinner v. Duncan, 2003 WL 21386032 at *37; see, e.g., United States v. Vegas, 27 F.3d 773, 777-78 (2d Cir.) ("As is often the case when convicted defendants complain after-the-fact of their lawyers' trial performance, we find that the choices made by the attorney were matters of trial strategy; because counsel's strategy was a reasonable one, these claims do not show incompetence"; not ineffective to pursue entrapment defense rather than innocence defense), cert. denied, 513 U.S. 911, 115 S.Ct. 284 (1994); Lawson v. Caspari, 963 F.2d 1094, 1096 (8th Cir. 1992) (counsel not ineffective for failing to call alibi witnesses he did not believe were credible, especially where counsel "presented a theory of the case by pointing out the 'weaknesses in the state's case and rais[ing] serious questions about the credibility of the state's sole eyewitness.'");Harris v. Hollins, 95 Civ. 4376, 1997 WL 633440 at *6 (S.D.N.Y. Oct. 14, 1997) (counsel not ineffective for not securing alibi witnesses where counsel presented a vigorous defense).⁴¹

41 See also, e.g., LaFrance v. Mitchell, 93 Civ. 0804, 1996 WL 741601 at *2 (S.D.N.Y. Dec. 27, 1996) ("It is quite evident that the decision to omit this [alibi] defense was a sound one and that the basis for an effective alibi defense simply did not exist.");Johnson v. Mann, 92 Civ. 1909, 1993 WL 127954 at *1 (S.D.N.Y. Apr. 20, 1993) (counsel not ineffective for strategic decision to attack identification of petitioner rather than to rely on an "inherently suspect" alibi defense); Munoz v. Keane, 777 F. Supp. 282, 288-89 (S.D.N.Y. 1991) ("Given the overwhelming evidence that [petitioner] participated in the drug transaction at issue, it was reasonable for defense counsel to conclude, as a strategic matter, that presenting testimony of the alleged alibi witnesses would be damaging to [petitioner's] case."), aff'd sub nom. Linares v. Senkowski, 964 F.2d 1295 (2d Cir.), cert. denied, 506 U.S. 986, 113 S.Ct. 494 (1992); Minor v. Henderson, 754 F. Supp. 1010, 1017-18 (S.D.N.Y. 1991) (counsel not ineffective for tactical choice not to present alibi defense where evidence petitioner believed supported such defense did not exist); Buitrago v. Scully, 705 F. Supp. 952, 954 (S.D.N.Y. 1989) (counsel not ineffective for failing to present alibi witness where petitioner fails to show witness would provide alibi).

Moreover, a petitioner may not merely allege that certain witnesses might have supplied relevant testimony, but must state exactly what testimony they would have supplied and how such testimony would have changed the result. See, e.g., Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) ("To affirmatively prove prejudice [from counsel's failure to investigate], a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial.");Skinner v. Duncan, 2003 WL 21386032 at *38: Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *33 n. 59 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *24 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Greenidge v. United States, No. 01 CV 4143, 2002 WL 720677 at *2 (E.D.N.Y. Mar. 27, 2002) (§ 2255 case; petitioner's ineffective assistance of counsel claim has no merit where petitioner "nowhere specifies how the testimony of those witnesses [counsel purportedly failed to call] would have been helpful to his defense.").⁴²

42 See also, e.g., Lou v. Mantello, No. 98-CV-5542, 2001 WL 1152817 at* 10(E.D.N.Y. Sept. 25, 2001) ("Habeas claims based on 'complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified [to] are largely speculative.'") (citations omitted): Muhammad v. Bennett, 96 Civ. 8430, 1998 WL 214884 at *1 (S.D.N.Y. Apr. 29, 1998) ("petitioner's speculative claim about the testimony of an uncalled witness" is insufficient to show ineffective assistance of trial counsel); Burke v. United States, 91 Civ. 468, 1992 WL 183752 at *2 (S.D.N.Y. July 22, 1992) (petitioner's "contention that he was denied effective assistance of counsel" where "his attorney failed to subpoena several witnesses who would have aided his defense is wholly insufficient given [petitioner]'s failure to set forth who the specific witnesses are or their relevant testimony."); Croney v. Scully, CV-86-4335, 1988 WL 69766 at *2 (E.D.N.Y. June 13, 1988) ("Petitioner's contention that assignment of an investigator would have been helpful to his defense is conclusory and speculative. Petitioner must show not only that the testimony would have been favorable, but also that the witness would have testified at trial."), aff'd, 880 F.2d 1318 (2d Cir. 1989).

Montalvo's ineffective assistance claim for trial counsel's failure to call Mrs. Reynolds and other non-interested witnesses should be denied because Montalvo names only one "non-interested" witness, a Mrs. Jane Reynolds (Pet. ¶ 12(E)), and fails to indicate what she would have testified to and if she was even willing to testify. Moreover, to the extent Mrs. Reynolds would have simply stated that Montalvo was at the graduation ceremony, her testimony would have been cumulative of the other alibi witnesses (see pages 10-19 above).⁴³ "The failure to call cumulative or repetitive witnesses is neither ineffective nor prejudicial." Skinner v. Duncan, 2003 WL 21386032 at *38 (citing cases); see, e.g., United States v. Luciano, 158 F.3d at 660 ("The decision not to call a particular witness is typically a question of trial strategy that appellate courts are ill-suited to second guess." Where the witness defendant asserts counsel should have called "would have testified in a manner corroborative of another witness[,] counsel might well have regarded the testimony as unnecessarily cumulative."), cert. denied, 526 U.S. 1164, 119 S.Ct. 2059 (1999); Cotto v. Lord, 99 Civ. 4874, 2001 WL 21246 at *16 n. 6 (S.D.N.Y. Jan. 9, 2001) (rejecting claim that counsel was ineffective for failing to call additional family members where petitioner "made no showing as to which other family members should have been called, what their testimony would have been and why that testimony would not have been cumulative of what the petitioner and [other witness] could provide."), aff'd, No. 01-2056, 21 Fed. Appx. 89, 2001 WL 1412350 (2d Cir. Nov. 8, 2001); White v. Keane, 51 F. Supp.2d 495, 505 (S.D.N.Y. 1999) (Court rejected petitioner's claim that counsel was ineffective for failing to call witnesses where their testimony was "speculative, repetitive, vague, or related solely to the issue of credibility of one of the People's many witnesses.") (record citations omitted); Treppedi v. Scullv, 85 Civ. 7308, 1986 WL 11449 at *3 (S.D.N.Y. Oct. 9, 1986) ("Since the effect of the presentation of additional alibi witnesses would have been cumulative at best, the failure of counsel to call additional alibi witnesses cannot be considered an error that deprived the defendant of a fair trial."),aff'd, 847 F.2d 837 (2d Cir. 1988); see also, e.g., United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990) ("The Constitution does not oblige counsel to present each and every witness that is suggested to him. In fact, such tactics would be considered dilatory unless the attorney and the court believe the witness will add competent, admissible and non-cumulative testimony to the trial record.").

43 The State also argues that Reynolds testimony that Montalvo attended the graduation would have been cumulative of the photographs in evidence, which themselves established that Montalvo was at the graduation "at some point." (Dkt. No. 17: State Br. at 51.) Moreover, Reynolds' proposed testimony, like the photographs, was entirely consistent with the prosecution's theory of the case: that Montalvo committed the robbery, then went to the graduation, "arriving in time to take photographs with his alibi witnesses after the ceremony ended." (Id.) According to the State, "it is obvious that [Montalvo] had enough time to leave the scene of the robbery and arrive uptown in time for the picture taking, and Mrs. Reynolds' supposed testimony would have added nothing that the documentary proof of the photos had not already established." (Id.)

As this Court has previously held, "'[t]he decision of whether to call or bypass a particular witness is a question of trial strategy which courts will practically never second-guess. . . . In the instant case, the testimony of any of these witnesses may have as likely exposed inconsistencies and weaknesses in defendant's case as have lent support to Petitioner's defense. Additionally, a defendant's conclusory allegations about the testimony of uncalled witnesses are insufficient to demonstrate prejudice.'" Cromwell v. Keane, 2002 WL 929536 at *24 (quoting Ozuru v. United States, No. 95 CV 2241, 1997 WL 124212 at *4 (E.D.N.Y. Mar. 11, 1997), aff'd, 152 F.3d 920 (2d Cir. 1998),cert. denied, 525 U.S. 1083, 119 S.Ct. 828 (1999));accord, e.g., Skinner v. Duncan, 2003 WL 21386032 at *40.

Montalvo's habeas claim that trial counsel was ineffective for not calling certain witnesses should be denied.

C. Montalvo's Ineffective Assistance of Appellate Counsel Claims are Meritless 1. Counsel's Failure to More Fully Expand the Judicial Bias Claim to Pre-and Post-Trial Proceedings

Montalvo claims his appellate counsel was ineffective for "only argu[ing] Judicial Bias in the limited context of the trial and not for all aspects of my proceedings from . . . Bail Hearing to . . . Sentencing Hearing." (Pet. ¶ 12(E).) In his coram nobis motion, Montalvo argued that

the Judicial Bias claim [to the First Department] should have also addressed the interference with . . . trial counsel's summation at the suppression hearing, the pre-determination of the suppression hearing, and the summary denial of [Montalvo's] pro se motions at the sentencing hearing, disregard for my effective assistance at sentencing and the improper enhancement of [Montalvo's] sentence because [he] did not "cooperate" with the District Attorney's investigation.

(Ex. J: Montalvo Coram Nobis Br. at 27.) Montalvo's claim is meritless for several reasons.

First, while Maldonado criticizes appellate counsel for raising the judicial bias claim because counsel should have known the issue was not preserved for appeal (Ex. J: Montalvo Coram Nobis Br. at 27), the claims of judicial bias during pre- or post-trial proceedings that appellate counsel allegedly should have raised were also unpreserved. As discussed at pages 47-50 above, a timely objection is required to preserve a claim of judicial bias. Because Montalvo's trial counsel did not object to the judge's conduct during these pre-and post-trial proceedings, the claim was unpreserved for appellate review. Appellate counsel's failure to raise an unpreserved claim, therefore, does not constitute ineffective assistance. See, e.g., Lugo v. Kuhlmann, 68 F. Supp.2d 347, 372-73 (S.D.N.Y. Oct. 7, 1999) (Patterson, D.J. Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 148 (S.D.N.Y. July 9, 1999) (Scheindlin, DJ. Peck. M.J.); see also, e.g., Aparicio v. Artuz, 269 F.3d 78, 96, 99 (2d Cir. 2001) (Appellate counsel was not ineffective for failing to raise particular claim where "any efforts by Petitioner's appellate counsel to make this argument would have been futile because the argument had already been waived by trial counsel's failure to raise the objection."): Turnery. Sabourin, 217 F.R.D. 136, 145 (E.D.N.Y. 2003) (Weinstein, DJ.) ("Because trial counsel did not preserve the issue, appellate counsel acted reasonably by opting not to raise the inevitably barred claim on direct appeal in lieu of other, arguably stronger claims. Appellate counsel was not ineffective in this regard.");Giraldi v. Bartlett, 108 F. Supp.2d 321, 335 (S.D.N.Y. 2000) ("Failure to raise an unpreserved claim on appeal did not result in ineffective assistance of appellate counsel . . ."), affd, No. 00-2592, 27 Fed. Appx. 75, 2001 WL 1561802 (2d Cir. Dec. 3, 2001).

Second, Montalvo's claim must be rejected as entirely speculative. Montalvo asserts that his bail hearing, suppression hearing, and bail reduction hearing transcripts (which Montalvo also faults appellate counsel for not obtaining) would "probably show the source of the Judicial Bias" (Ex. J: Montalvo Coram Nobis Br. at 26, emphasis added.) "A mere allegation of judicial bias or prejudice unsupported by references to the record cannot in and of itself establish a federal constitutional violation." Copeland v. Walker, 258 F. Supp.2d 105, 134 (E.D.N.Y. 2003); see, e.g., Zarelli v. New York City Bd. of Educ., No. 99-7016, 199 F.3d 1325 (table), 1999 WL 1012449 at *1 (2d Cir. 1999) (rejecting claims of judicial bias as "wholly conclusory"); Vitranschart. Inc. v. Lew, 00 Civ. 3618, 2003 WL22137134 at *2 (S.D.N.Y. Sept. 15, 2003) ("[M]ere bald speculations of bias and prejudice do not suffice to show partiality."); Francolino v. Kuhlman, 224 F. Supp.2d 615, 641 (S.D.N.Y. 2002) (Rejecting judicial bias habeas claim where petitioner "never explained] how [trial judge's] alleged bias influenced her rulings, or even directly argue[d] that [the judge's] rulings were unsound." "In the absence of any specificity or legal analysis, this Court cannot entertain [petitioner's] claim."); People v. Holmes, 255 A.D.2d 145, 145, 679 N.Y.S.2d 578, 579 (1st Dep't 1998) ("[D]efendant failed to support his claim of . . . judicial bias with anything other than conclusory allegations."), appeal denied, 93 N.Y.2d 853, 688 N.Y.S.2d 501 (1999); see also cases cited at page 60 n. 39 above.

Accordingly, because Montalvo has not shown how he was prejudiced by the judge's conduct before and after trial, the First Department would have denied the claim. It is well settled that appellate counsel cannot be faulted for bringing a meritless claim. See, e.g., Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *41 n. 64 (S.D.N.Y. Oct. 28, 2003) (Peck, MJ.) ( cases cited therein).

2. Appellate Counsel's Failure to Argue a Violation of Montalvo's Right to Testify Before the Grand Jury

Montalvo claims his appellate counsel was ineffective for failing to argue that the State violated Montalvo's right to testify before the grand jury. (Ex. J: Montalvo Coram Nobis Br. 28-32.) Specifically, Montalvo claims that the First Department would have dismissed the indictment if appellate counsel argued that the prosecution never provided his trial counsel with C.P.L. § 190.50 notice, ordered Montalvo produced, or informed the grand jury foreperson that Montalvo wished to testify. (Montalvo Coram Nobis Br. at 29.) Montalvo claims that although the grand jury claim was not preserved at the trial level, appellate review would have been permitted by his separate claim that trial counsel was ineffective for failing to move for a dismissal of the indictment. (Id.)

Montalvo's claim is meritless. First, because trial counsel did not move for dismissal of the indictment, as Montalvo concedes in ¶ 12(D) of his petition, any claim relating to the grand jury was unpreserved for the First Department's review. People v. Pressley, 94 N.Y.2d 935, 936-37, 708 N.Y.S.2d 32, 33-34 (2000) (Court of Appeals found unpreserved defendant's claim that the State violated grand jury notice requirement under § 190.50(5) because defendant never raised statutory violation before the trial court.); People v. Wade, 268 A.D.2d 448, 448, 701 N.Y.S.2d 631, 632 (2d Dep't) ("The defendant contends that the indictment should be dismissed on the ground that he was denied his right to testify before the Grand Jury. Having failed to move to dismiss the indictment within five days after his arraignment, the defendant waived this argument."), appeal denied, 95 N.Y.2d 838, 839, 713 N.Y.S.2d 145, 146 (2000); People v. Brooks, 247 A.D.2d 486, 486, 669 So.2d 294, 294-95 (2d Dep't) (Defendant's claim that he was denied the right to testify before the grand jury was "unpreserved for appellate review" because "defendant failed to raise it as a ground for the dismissal of the indictment, thereby waiving it."),appeal denied, 91 N.Y.2d 970, 672 N.Y.S.2d 850 (1998);People v. Varriale, 238 A.D.2d 208, 208, 656 N.Y.S.2d 864, 864 (1st Dep't 1997) (" Since defendant failed to move to dismiss the indictment on the ground that he was deprived of the right to testify before the Grand Jury, appellate review of that issue is foreclosed.");People v. Patterson, 189 A.D.2d 733, 734, 593 N.Y.S.2d 8, 9 (1st Dep't) (Defendant's claim "that he was denied his right to testify in the grand jury" because the prosecutor failed to serve him with notice of the time and place he would be produced was unpreserved for review), appeal denied, 81 N.Y.2d 975, 598 N.Y.S.2d 776 (1993); People v. Maldonado, 176 A.D.2d 586, 586, 574 N.Y.S.2d 749, 750 (1st Dep't 1991) ("Defendant never moved to dismiss the indictment within five days of arraignment on the basis that he was deprived of his right to testify before the Grand Jury . . . Nor did defendant raise any such claim before the trial court. His present claim is therefore unpreserved for appellate review as a matter of law. . . .").⁴⁴ Because appellate counsel cannot be faulted for failing to raise an unpreserved issue, omission of this claim did not constitute ineffective assistance of appellate counsel.See cases cited at page 71 above.

44 See also, e.g., People v. Workman, 277 A.D.2d 1029, 1031, 716 N.Y.S.2d 198, 201 (4th Dep't 2000) ("Defendant's objections to the Grand Jury proceedings are not preserved for [appellate] review because defendant did not move to dismiss the indictment . . ."),appeal denied, 96 N.Y.2d 764, 725 N.Y.S.2d 291 (2001);People v. Gordon, 277 A.D.2d 1053, 1053, 716 N.Y.S.2d 839, 840 (4th Dep't 2000) ("The alleged incident of misconduct concerning the Grand Jury is not preserved for our review because defendant failed to move to dismiss the indictment . . ."), appeal denied, 96 N.Y.2d 759, 72 N.Y.S.2d 285 (2001); People v. Sheltray, 244 A.D.2d 854, 854, 665 N.Y.S.2d 224, 225 (4th Dep't 1997) (Defendant argued on appeal that the Grand Jury proceedings were defective, but "[b]y failing to submit a written motion to dismiss on those grounds within 45 after arraignment, defendant waived his right to a determination of hose issues and failed to preserve them for [appellate] review."), appeal denied. 91 N.Y.2d 897, 669 N.Y.S.23 12 (1998); People v. Hill, 236 A.D.2d 799, 800, 653 N.Y.S.2d 880, 880 (4th Dep't) ("Defendant's argument that the Grand Jury was not property instructed . . . is not preserved for our review because defendant did not move to dismiss the indictment on that ground."), appeal denied, 89 N.Y.2d 1036, 659 N.Y.S.2d 867 (1997).

Moreover, Montalvo fails to show any prejudice from appellate counsel's decision to forego this claim: nowhere does Montalvo even suggest what he would have testified to before the grand jury and how that testimony would have changing its decision to indict him. See, e.g., Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *6 (S.D.N.Y. May 2, 2002) ("[B]ecause [petitioner] was found guilty by the petit jury, we find any error that prevented [petitioner] from testifying in front of the grand jury to be harmless. [Petitioner] has not stated what he would have told the grand jury if he had the opportunity to testify; hence [petitioner] 'has failed to show any prejudice resulting from the alleged failure of his attorney to secure an opportunity for him to testify before the grand jury.") (fn. omitted). The Court can only assume that Montalvo wouldhave testified exactly as he did during the trial (before the petit jury that convicted him), which further weakens any claim that he was prejudiced by not testifying before the grand jury. See, e.g., Davis v. Portuondo, 00 Civ. 8928, 2001 WL 1273801 at *6 (S.D.N.Y. Oct. 23, 2001) ("[A]n error in grand jury proceedings is necessarily rendered harmless by a trial jury's subsequent finding of guilt beyond a reasonable doubt. . . . Certainly, that is true in this case, where [petitioner's] testimony at trial was disbelieved by the petit jury, and there is no reason to believe that the grandjury would have found him more credible. Since the evidence against him was overwhelming and the grand jury need only find probable cause in order to indict, there is no reasonable likelihood that the outcome would have been different had the petitioner been advised of his right to testify."); Bramble v. Smith, 96 Civ. 5905, 1998 WL 395265 at * 18 (S.D.N.Y. July 15, 1998) (Petitioner could not show prejudice where "the opportunity Petitioner claims to have been denied by counsel's purported error — the chance to tell his side of the story to the grand jury — was afforded him at trial, under a more favorable burden of proof than would have applied in the grand jury, and the petit jury rejected Petitioner's version of events and convicted him."). 3. Appellate Counsel's Failure to Argue that Montalvo Received Ineffective Assistance of Trial Counsel

Montalvo alleges that appellate counsel should have argued ineffectiveness of trial counsel on direct appeal. (Pet. ¶ 12(E).) The Court assumes Montalvo is claiming that appellate counsel should have raised the trial counsel errors alleged in his federal habeas petition, which he previously raised in his § 440 morion (Ex. E) and appeal (Ex. G). The First Department denied the ineffective trial counsel claims on the merits. (Ex. I: 4/11/00 Order.) Accordingly, the Court finds that Montalvo was in no way prejudiced by appellate counsel's decision to forego a trial counsel ineffectiveness claim. See, e.g., Bingham v. Duncan, 01 Civ. 1371, 2003 WL 21360084 at *5 (S.D.N.Y. June 12, 2003) ("As to appellate counsel's failure to raise certain claims on direct appeal, petitioner cannot demonstrate the requisite prejudice. Petitioner's pro se supplemental brief presented all of the issues he wished to raise . . ."); Haves v. Coombe, 96 Civ. 865, 1996 WL 650728 at *6 (S.D.N.Y. Nov. 7, 1996) ("[P]etitioner has not shown that he was prejudiced by appellate counsel's omission. Petitioner raised [the omitted] claim in his own pro se brief to the Appellate Division, and the Appellate Division considered and rejected it."), aff'd, 142 F.3d 517 (2d Cir. 1998X cert. denied, 525 U.S. 1108, 119 S.Ct. 879 (1999).

Moreover, this Court has rejected on the merits Montalvo's ineffective trial counsel claims. (See pages 60-70 above.) Appellate counsel cannot be faulted for not raising meritless arguments as to trial counsel's effectiveness. See, e.g., Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *41 (S.D.N.Y. Oct. 28, 2003) (Peck, MJ.) ( cases cited therein.)

CONCLUSION

For the foregoing reasons, Montalvo's habeas petition should be DENIED, and a certificate of appealability should not issue.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992);Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).