Opinion
01-CV-2300, 03-MISC-0066
October 20, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary, This memorandum briefly addresses petitioner's claims,
I. Facts and Procedural History
This petition was filed on April 10, 2001, Petitioner, sometimes referred to as defendant, claims:
Ground One: The conviction and sentence under which petitioner is imprisoned are unlawful and void because of multiple violations of petitioner's right to "due process" of law guaranteed by the Fourteenth Amendment to the Constitution of the United States, and Article 1 § 6, of the New York State Constitution. When in summation the prosecutor made very prejudicial remarks concerning the petitioner's demeanor during the complainant's "emotional testimony" demanding to know "[w]hat's so funny," and pointing in contrast to the tearful response of the prosecutor and the jurors to that testimony, Ground Two: The petitioner's unalienable right to a fair trial was abridged; when in summation the prosecutor shifted the burden of proof upon the petitioner, whereas he the prosecutor stated to the jury "If the petitioner did not commit this crime, why did he not tell us who did while he was on the stand." These actions and remarks made by the prosecutor were certainly in direct violation of the petitioner's right to be judged by the evidence adduced at trial, and not by the overzealousness of the prosecutor,
The evidence supports the following statements:
On July 19, 1997, at approximately 10:00 p.m., Dale Lilly was walking with his brother and sister-in-law, Fred and Jackie Culbert, when he heard someone yell "watch your back." Mr. Lilly turned and saw petitioner, whom he had known for many years, Petitioner and Mr. Lilly began righting over a woman they were both dating, Mr. Culbert broke up the fight and he, Mrs. Culbert, and Mr. Lilly went to a nearby park.
On the way home from the park, at approximately 11:40 p.m., Mr. Lilly and Mr. and Mrs. Culbert stopped to talk to some friends on 122nd Avenue in Queens County, As they were speaking to their friends, a car pulled up and petitioner jumped out and pointed a gun at them. Mr. Lilly pushed Mrs. Culbert out of me way just before petitioner started shooting. Petitioner shot Mr. Lilly three times in the back. As petitioner was running from the scene, he was observed by police officers throwing a gun into some bushes. He was apprehended and identified by Mr. Lilly and Mrs. Culbert. As a result of the injuries suffered from being shot by petitioner, Mr. Lilly is paralyzed from the waist down and will never walk,
For these acts, petitioner was indicted for Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25(2)), Assault in the First Degree (N.Y. Penal Law § 120.10(1)), two counts of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(1), (4)), and Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25), (Queens County Indictment Number 2292/97).
At trial, Mr. Lilly and Mrs. Culbert described the shooting in detail and identified petitioner as the shooter. Undercover Police Officers Patrick O'Brien, Michael Culver, and Sean McLaughlin testified that they were assigned to the street crime unit that night and were in an unmarked vehicle in an abandoned lot between 122nd Avenue and Farmers Boulevard when they heard the shots fired, The officers testified that when they drove out of the lot and onto 122nd Avenue, they saw petitioner running and, as he ran, petitioner threw a gun over his shoulder, Detective Thomas White testified that he recovered the gun at the scene and that no fingerprints were found on the gun. Detective Joseph Ramirez testified that he tested the gun, that it was operable, and that there was evidence of discharge.
Petitioner testified that he and Mr. Lilly had known each other for fifteen to twenty years. He stated that he was at 186-19 122nd Avenue at the time of the shooting, had heard the shots, and had tried to see where they were coming from, but there bad been complete mayhem on the street and he was unable to identify the shooter. Petitioner maintained that he had not shot the victim.
At the conclusion of the trial, petitioner was convicted of all the charges in the indictment. On March 31, 1998, the court sentenced petitioner to determinate prison terms of twenty years for the attempted murder conviction, fifteen years for the assault conviction, and five years for one of the weapon possession counts. Additionally, he was sentenced to indeterminate prison terms of from two to four years on the other weapon possession and the reckless endangerment convictions.
After petitioner filed a timely notice of appeal in the Appellate Division, Second Department, he requested and received permission to prosecute his appeal as a poor person.
In a brief filed in March of 1999, petitioner, through his counsel, claimed that he was denied a fair trial by comments that the prosecutor made in summations. Specifically, petitioner complained, first, about the prosecutor contrasting Mr. Lilly's testimony about his injuries to petitioner smiling during that testimony, and rhetorically asking petitioner what was so funny. Petitioner claimed that this was not only an attack on petitioner's character, but it was also a comment on matters not in evidence. Second, petitioner argued that the prosecutor appealed to the jury's emotion by focusing its attention on the victim's detailed testimony about his injuries. And, third, petitioner contended that the prosecutor shifted the burden of proof by commenting that although petitioner chose to testify, he merely denied being the shooter, but failed to provide any information about who the shooter may have been.
On November 15, 1999, the Appellate Division, Second Department, affirmed petitioner's judgment of conviction. The court held that petitioner's contention that he was denied a fair trial due to the prosecutor's comments during summation was without merit, People v. Cooper, 266 A.D.2d 402, 697 N.Y.S.2d 523 (2d Dept. 1999).
Petitioner sought leave to appeal the Appellate Division's decision to the New York Court of Appeals, In the leave application, petitioner's raised the same arguments about the prosecutor's summation that he had in the Appellate Division.
On January 14, 2000, petitioner's application for leave to appeal to the New York Court of Appeals was denied, People v. Cooper, 94 N.Y.2d 878, 705 N.Y.S.2d 10 (2000).
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA11), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d), An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "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," Francis S, v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No, 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug, 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1),
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion," Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations, Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar," (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz., 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures," Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending11 includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal docs not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Civ. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements, Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb, 23, 1998). But "[it] has long been recognized that ignorance docs not excuse lack of compliance with the law," Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at M ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably, Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances,' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time," Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) Although state prisoners are not entitle to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if ills sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the 11 relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the Court of Appeals has explained.,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical, A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice, He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 168 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,"), In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10(S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says mat a claim is "not preserved for appellate review" and then rules 11 in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 199(5), When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling docs not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02 — 2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Civ. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted," Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial, Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful," Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in abort, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense," U.S. Const. amend. VI This tight to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose-11 to ensure a fair trial"-and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984), In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and mat "there is a reasonable probability that, but for counsel's unprofessional errors) the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002), A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed," Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "re-ache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001), The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18(2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694), Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation," Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy-a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient, performance must be exhausted, See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar, 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim mat was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance," Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lic for mere errors of state law, Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice,'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)), Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson., 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant,'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410t 414-15 (5th Cir. 1982), This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307; 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Eitiaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist, LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, OO-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MTSC-006G (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-OOG6 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00s-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-OS06, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice," Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated, on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
The Appellate Division's decision that petitioner's contentions about the prosecutor's summation comments were meritless is entitled to deference. Petitioner cannot show that that court's conclusion that the complained-of comments did not deny petitioner a fair trial was contrary to, or an unreasonable application of, clearly established Supreme Court law.
A state prisoner's habeas corpus petitioner "shall not be granted with respect to any claim that was adjudicated on the merits" in state court unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established" Supreme Court law, 28 U.S.C. § 2254(d)(1). This standard requires deference to state-court determinations on the law and is different from the previous dc novo standard because even an incorrect determination must be upheld if it is reasonable. Williams v. Taylor, 529 U.S. 362, 410 (2000).
The Appellate Division's decision rejecting petitioner's claim constitutes an adjudication on the merits. The court specifically stated that petitioner's claims about the prosecutor's summation were11 without merit." It did not suggest that it disposed of the claim on procedural grounds. People v. Cooper, 266 A.D.2d 402, 697 N.Y.S.2d at 523. Its decision is entitled to section 22541s deferential standard of review.
Applying that deferential standard of review to this case, the state court's determination cannot be said to have resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court law. Here, the relevant cases of Supreme Court are Donnelly v. DeChristoforo, 416 U.S. 637 (1974), Darden v. Wainwright, 477 U.S. 168 (1986), United States v. Young, 470 U.S. 1 (1985), and Dunlop v. United States, 165 U.S. 486 (1897). These eases set the criteria under which claims of prosecutorial misconduct must be judged. There is no indication that the Appellate Division misapplied these cases in deciding petitioner's prosecutorial misconduct claim. Nor does the instant case present a set of facts that is materially indistinguishable from any Supreme Court decision that arrives at a result different from the state court's determination. See Williams v. Taylor, 529 at 406-407, Only if petitioner can establish "an unreasonable application" of these principles can he prevail on his claim.
For a petitioner to establish a claim of constitutional error on the ground of prosecutorial misconduct, "it is not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. at 181. "The relevant question, the Supreme Court has held, is whether the prosecutor's comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (quoting Donnelly v. DeChristoforo 416 U.S. at 637). Even though a federal appellate court might he inclined to exercise its supervisory powers to correct an error tried in the federal court, this fact alone does not establish the existence of a due process violation.
In evaluating allegedly improper comments made by a prosecutor. The Court has looked to whether the comments manipulated or misstated evidence, and to whether they implicated other specific rights of the accused, such as the right to counsel or the right to remain silent. Darden v. Wainwright, 477 U.S. at 182, The Court has considered whether the objectionable comment was invited by the defense, whether the court issued appropriate instructions to the jury, how heavily the evidence weighed against petitioner, and to the opportunity of the defense to address or counter the prosecutor's allegedly improper comments. Id. at 182-83; see United States v. Young, 470 U.S. at 13; Donnelly v. DeChristoforo, 416 U.S. at 645. The Court has repeatedly affirmed the principle that the People's summation "must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error." United States v. Young, 470 U.S. at 13.
Neither of the challenged comments so infected the trial with unfairness mat petitioner was denied due process. In the context of the entire summation, these two isolated comments did not affect the jury's verdict, especially given the court's instructions to the jury. The trial court took pains to admonish the jury that the testimony and evidence presented during the trial was the only evidence it could consider in reaching a verdict, that it was the jurors' recollection of the evidence that mattered, and that the arguments of counsel did not constitute evidence, (Preliminary Instructions: 19; Charge: 251-252). The court instructed the jurors that they alone were the judges of the facts of the case and must follow the law as the court explained it (Preliminary Instructions: 22, 26, 29; Charge: 250). It explained that each juror must decide the case using his or her own individual judgment and that it was each juror's duty to agree upon a verdict free of sympathy, bias, or prejudice, and without the surrender of his or her own personal, conscious opinion in view of the evidence (Charge: 252, 266-267). It explained that petitioner was entitled to every inference in his favor that could reasonably be drawn from the evidence (Charge: 254). Finally, the court charged the jury on the presumption of petitioner's innocence and on the People's unwavering burden of proving petitioner's guilt beyond a reasonable doubt (Preliminary Instructions; 12-17; Charge: 263-266), In light of the court's extensive instructions, it is highly unlikely that jurors were improperly influenced by any of the prosecutor's remarks.
That the prosecutor rhetorically asked petitioner what he thought was so funny during the victim's testimony would have had no affect on the verdict. The prosecutor was pointing out what the jurors undoubtedly had seen for themselves when the victim had testified; that petitioner was smiling during that testimony. Although defense counsel moved for a mistrial after he heard the comment, he did not challenge the veracity of the statement. The court had specifically Instructed the jury that what the attorneys said did not constitute evidence; thus, if any tiling, the prosecutor's question to petitioner constituted nothing more than a rhetorical flourish.
The prosecutor's query concerning why petitioner did not say who the shooter was when he was on the stand did not deny petitioner a fair trial, though the remark would have been better omitted When the prosecutor made this statement, petitioner's counsel did not object to it, which can be viewed as some indication that the misconduct was not so severe as to warrant reversal. See United States v. Melendez, 57 F.3d 238, 242-243 (2d Cir. 1995) ("[T]he absence of [a mistrial] motion provides some indication that the improper remark was not perceived as rendering the trial unfair. . . ."). Nor was there any danger that the jury took this remark to mean that petitioner had to prove something. Petitioner's counsel highlighted the burden of proof in his summation. He told the jury that petitioner was presumed innocent, and that he did not have to prove that someone else did it in order for the jury to find him not guilty (Defense Summation; 215). The prosecutor also told the jury that petitioner was presumed innocent and that the burden of proof was on the prosecutor (Prosecution Summation: 232-233), Given that all parties, including the court, informed the jury that petitioner did not have to prove anything, there was no danger that the prosecutor's comment shifted the burden of proof, and caused the jury to conclude that to maintain his innocence, petitioner had to establish who the actual shooter was, Under these circumstances the Appellate Division's decision that petitioner's contention that the prosecutor's comments denied him a fair trial was without merit was a reasonable one.
Given the strength of the evidence against petitioner, none of the prosecutor's comments could have prejudiced him. See Brecht v. Abrahamson, 507 U.S. 619 (1993).
This claim has no merit.
B.
No other possible claim is more than frivolous
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible dental of a constitutional right. Ho may as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.