OPINION AND ORDER

DENISE COTE, District Judge

On May 10, 2001, Budha Tor's ("Tor") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was received by the Pro Se Office of this Court. In his timely petition, Tor challenges his murder conviction on the basis of three alleged constitutional errors committed during the course of his trial. First, Tor claims that the prosecution failed to disclose evidence favorable to him. Second, Tor alleges that he received ineffective assistance of trial counsel. Third, he claims that the trial court's instructions to the jury impermissibly removed elements of the offense of second degree murder from the jury's consideration.

On June 15, 2001, the case was referred to Magistrate Judge Theodore H. Katz for a Report and Recommendation ("Report"), which was issued on May 22, 2003. The Report recommends that the petition be denied, and that a certificate of appealability not issue. Tor has filed objections to the Report. This Opinion adopts in large part Judge Katz' analysis of Tor's claims. The petition is denied.

Background

Tor is currently serving an indeterminate sentence of twenty — five years to life imprisonment for a 1993 conviction for murder in the second degree. The evidence at trial established the following. On April 4, 1988, Detective Salvatore Lifrieri ("Lifrieri") responded to a report of a deceased female lying in the alleyway of 1910 Morris Avenue, in the Bronx. Lifrieri testified that the body was lying beneath a column of windows leading to the building's common kitchen area, and that the victim's upper torso was concealed by a large plastic garbage bag. Lifreiri observed that part of the wall just outside of the kitchen area appeared to have been wiped clean.

An autopsy of the victim, Marilyn Williams ("Williams"), revealed that she had two external skull fractures on the right side of her head, consistent with having been hit by a hammer. The medical examiner testified that a hammer blow to the head could cause a body to shake. The medical examiner also testified that the victim's other injuries were consistent with having been thrown from a third — story window. A toxicology report revealed that Williams had used cocaine within a few hours of her death.

Lifrieri testified that in the days following the discovery of Williams' body, he unsuccessfully canvassed the building for potential witnesses. One of the people whom he interviewed was the petitioner, who lived on the third floor. Lifreiri also looked for other clues, but found nothing of use. Lifrieri testified that, for example, the black garbage bag that had partially covered the victim's body was tested for latent fingerprints, but none were found. Without any solid leads, the investigation became inactive.

Lifrieri testified to another event that occurred at 1910 Morris Avenue approximately one month after Williams' death. In the same alleyway, under the same column of windows where Williams' body had been found, Lifrieri found a man and a woman lying on the concrete floor. The couple had fallen from the fourth floor of the Morris Avenue building.

In June of 1989, Derrick Ward ("Ward") was serving a nine month sentence for petit larceny. He shared a cell with Tor. Tor told Ward that around Easter of the previous year, he had killed somebody. According to Ward, Tor spotted a woman idling on a stoop and asked her if she wanted to "hang out." Tor and the woman went his apartment, where he gave her a hit of crack. Tor and the woman subsequently engaged in sexual intercourse, during which Tor reached for a hammer and struck the woman on the head. The woman fell down and started shaking. Tor struck her with the hammer a second time, after which she stopped shaking. Tor then got a large black plastic bag, put the woman in it, and carried her down the hall to the common kitchen. As he was carrying her, the woman's arm fell out of the bag and streaked the wall with blood. Upon reaching the kitchen, Tor threw the woman, who was still in the bag, out of the kitchen window. Tor then cleaned up the blood on the windowsill and the kitchen wall. Ward testified that Tor also told him that, on another occasion, a couple who lived on the floor above Tor began fighting and fell out of their window, landing in the yard below him. About two weeks after the confession, Ward contacted the Bronx County District Attorney's Office regarding Tor's statements.

Post — Trial Proceedings

In August 1994, Tor moved pro se before the Supreme Court, Bronx County to vacate his judgment of conviction, pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h) ("Section 440.10 motion"). In support of his Section 440.10 motion, Tor alleged that the prosecution failed to turn over impeachment information in accordance with its obligation underPeople v. Rosario, 9 N.Y.S.2d 448 (1961). Tor also claimed that he was denied the effective assistance of trial counsel because counsel failed to introduce evidence of forensic reports regarding body tissue and blood that were allegedly recovered in the courtyard of an adjacent building, and to alert the court that such evidence was never turned over to the petitioner. One month later, Tor filed a "Supplemental Addendum" to his Section 440.10 motion, alleging additionalRosario violations and ineffective assistance of counsel claims. On November 18, 1994, the Supreme Court, Bronx County, denied Tor's motion as procedurally improper, on the ground that a direct appeal was pending, and there were sufficient facts in the record for the appellate court to determine the ineffective assistance claim. The court went on to conclude that, even if it were to address the substantive claim, it would still deny the motion. That same month, Tor moved the New York Appellate Division, First Department, for permission to appeal the denial of his Section 440.10 motion. The request was denied.

In September 1995, Tor again made a Section 440.10 motion to the Supreme Court, Bronx County, to vacate his judgment. This time, Tor claimed that the trial court improperly instructed the jury on the three elements of second degree murder. In December, the court denied Tor's motion on procedural grounds, but indicated that, were it to address the merits of the motion, it would have upheld the jury charge. In January 1996, Tor asked the Appellate Division, First Department, for permission to appeal the Supreme Court's denial of his motion. In an April 1996 decision, the court granted Tor leave to appeal and consolidated the appeal with Tor's direct appeal.

On direct appeal, Tor's newly assigned appellate counsel raised issues regarding jury selection, the sufficiency of the evidence, and the excessiveness of Tor's sentence. In March 2000, the Appellate Division affirmed Tor's judgment of conviction. Tor was denied leave to appeal to the New York Court of Appeals.

Discussion

The court shall make a de novo determination of those portions of the Report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Thereafter, a district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of a magistrate judge. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994), aff'd, 77 F.3d 578 (2d Cir. 1996).

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), changed the landscape of federal habeas corpus review by "significantly curtail[ing] the power of federal courts to grant habeas petitions of state prisoners." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001). Under AEDPA, a petition for habeas by a state prisoner may not be granted with respect to any claim adjudicated on the merits in state court, unless the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(1)-(2) (2003). Federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d 104, 109 (2d Cir. 2003).

Petitioner's Right to Exculpatory Material

In his petition, Tor claims that the State failed to preserve the black garbage bag in which the victim was found, and to turn over test results performed on the bag in violation of Bradv v. Maryland, 373 U.S. 83 (1963). Although Lifrieri testified that the garbage bag had been tested for fingerprints and that none were found, the bag was no longer in police custody at the time of trial.

The Report correctly finds that Tor's non — disclosure argument is unexhausted because he failed properly to alert the state court to this federal constitutional claim. Tor's repeated citation to People v. Rosario, 213 N.Y.S.2d 448 (1961), a state rule, did not fairly present the federal claim to the state court. See Johnson v. State of New York, No. 01 Civ. 4219 (GEL), 2002 WL 1974048, at *2 (S.D.N.Y. Aug. 26, 2002). Despite Tor's failure to exhaust hisBrady claim, the Report properly dismissed the claim on the merits. See 28 U.S.C. § 2254(b)(2);Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002).

Strickler v. Greene, 527 U.S. 263, 281-82 (1999), describes the elements of a Brady violation. First, the evidence must be material and favorable to the accused, "either because it is exculpatory, or because it is impeaching." Id. at 282. Second, the evidence must have been suppressed by the State, either willfully or inadvertently. Id. Finally, the petitioner must demonstrate that prejudice ensued because of the suppression. Id. If the State failed to preserve evidence that may have been exculpatory if it were available to be tested, the petitioner must show that the destruction or loss of the evidence was in bad faith. Arizona v. Youncrblood, 488 U.S. 51, 57-58 (1988).

Tor's suggestion that fingerprints might have been found on the bag that would have been exculpatory is speculative, conclusory, and without evidentiary support. The evidence at trial showed that the bag had been tested for fingerprints and that none had been recovered. Moreover, Tor does not allege bad faith in the loss of the plastic bag. Since Tor is unable to show that the evidence withheld by the prosecution would have been favorable to his case, or that the State acted in bad faith in failing to preserve the bag, his Brady claim is properly dismissed on the merits.

Ineffective Assistance of Counsel

Tor contends that he was denied effective assistance of counsel because his trial attorney: (1) failed to object to the prosecution's reference to the black garbage bag in summation; (2) failed to question Detective Lifrieri about his statement that no fingerprints were found on the black plastic bag; (3) failed to introduce lab reports "which reveal that important crime scene evidence was vouchered, and submitted to [the] lab" for fingerprint testing; and (4) failed to make use of "other crime scene reports," which showed inconsistencies in the testimony of prosecution witnesses.

Some question exists as to whether Tor has exhausted all of his available state remedies. The Report extensively analyzes the history of Tor's State appeals and correctly determines that his claim of ineffective assistance of counsel is exhausted since it is now procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 n.l (1991). The Second Circuit explains the consequences of a procedural default as follows: "For a procedurally defaulted claim to [succeed], the petitioner must show cause for the default and prejudice, or demonstrate that failure to consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually innocent)."Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001). Thus, unless a petitioner can demonstrate a cause for his failure to raise the procedurally — barred claim and prejudice resulting therefrom, or that a fundamental miscarriage of justice would occur from the failure to entertain his claims, federal habeas review of Tor's ineffective assistance of counsel claim is barred.

Tor cannot show cause for the default. "[T]he cause standard requires the petitioner to show that some objective factor external to the defense impeded counsel's efforts to raise the claim in state court."McCleskv v. Zant, 499 U.S. 467, 493-94 (1991) (citation omitted); see also Bloomer v. United States, 162 F.3d 187, 191 (2d Cir. 1998). Nothing in the record reveals any external factors that prevented Tor from including his ineffective assistance claims in his direct appeal. Because Tor cannot establish cause for the procedural default, the issue of prejudice need not be discussed.

Tor also cannot demonstrate that failure to consider his claim would result in a fundamental miscarriage of justice. A fundamental miscarriage of justice occurs only in the extraordinary case "where a constitutional violation has probably resulted in a conviction of one who is actually innocent." Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (citation omitted). "To establish actual innocence, petitioner must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. (citingBousley v. United States, 523 U.S. 614, 623 (1998)).

Tor does not point to any evidence not presented at his trial that could establish his innocence. Instead, he faults his attorney for failing to make use of evidence that was either unavailable or not exculpatory. For example, as discussed supra, Tor's speculation that fingerprints could have been lifted from the black garbage bag that would show his innocence contradicts direct evidence showing that the police unsuccessfully attempted to gather prints from the garbage bag at a time when they had no suspects or leads and thus a strong incentive to gather fingerprint evidence. Tor's strongest claim in this regard points to the prosecution's failure to test the blood found on another resident's bed at 1910 Morris Avenue, suggesting that the murder was committed by the occupant of the other room. As the Report notes, however, testimony regarding the presence of blood in another resident's room, and the police's failure to test it, was presented to the jury. In the absence of any other evidence suggesting Tor's innocence, it cannot be held that a miscarriage of justice would result from Tor's procedural default.

In his objection to the Report, Tor contends that his ineffective assistance claim is not procedurally defaulted, and thus not subject to an "actual innocence" standard. He relies on Massaro v. United States, 123 S.Ct. 1690, 1694 (2003), in which the Supreme Court held that an ineffective assistance of counsel claim may be brought for the first time in a habeas petition, "whether or not the petitioner could have raised the claim on direct appeal." Massaro is inapposite, however, since it concerns habeas petitions for federal prisoners, filed pursuant to 28 U.S.C § 2255. In contrast, Tor is a state prisoner who brings this petition pursuant to 28 U.S.C. § 2254. Petitioner's ineffective assistance of counsel claim is therefore denied. Erroneous Jury Instructions

Tor claims that the trial court impermissibly removed two elements of the offense of second degree murder from the jury's consideration, in violation of due process. New York's definition of murder in the second degree states, "A person is guilty of murder in the second degree . . . [w]hen with intent to cause the death of another person, he causes the death of such person. . . ." N.Y. Penal Law § 125.25. Tor contends that the court's jury charge conflated the first and third elements of the offense; namely, the "intent" element with the "causes the death of such person" element. Although Tor does not state so directly, he appears to claim that the conflation impermissibly shifted the burden of proof from the prosecution onto him.

Like his ineffective assistance of counsel claim, Tor raised this claim in his Section 440.10 motion, which the court declined to hear because it could have been raised on direct appeal. It was never raised on direct appeal, however, and no further direct appeal is permitted. The Report correctly determined that this claim is deemed exhausted since it is procedurally defaulted. Even if Tor's claim were not procedurally barred, however, it would still be denied.

Both the Report and the state court, in its denial of Tor's leave to appeal the denial of his Section 440.10 motion, found that the charge carefully explained the elements of second degree murder and the burden of proof. After summarizing his lengthy instruction on the three elements of the crime, in which he delineated what the jurors had to find in order to prove each element, the judge added, "[I]f each of those three elements has been proved to your satisfaction beyond a reasonable doubt, the defendant must be found guilty. . . ." (Emphasis supplied.)

In Tor's objection to the Report, he cites Cox v. Donnelly, 267 F. Supp.2d 418 (E.D.N.Y. 2003), as support for his claim that the jury instruction at his trial relieved the prosecution from the burden of proving intent. Tor's reliance on Cox is misplaced. In Cox, the petitioner objected to the following sentence in the charge: "[t]he law states that a person intends the consequences of his acts." Id. at 422. The judge in Tor's trial, however, was careful not to imply any mandatory presumptions. At Tor's trial, the court instructed that, "a jury is permitted but in no way required to infer that a person . . . intends the . . . consequences of his knowing acts. . . . You're not in any way required to draw any such inference." This charge did not improperly shift the prosecution's burden. "A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved." Francis v. Franklin, 471 U.S. 307, 314 (1985). Tor's jury instruction claim is denied.

Conclusion

The petition for a writ of habeas corpus is denied. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted.Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). In addition, I find, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).

SO ORDERED.