Opinion
99-CV-157A.
March 23, 2004
ORDER
On March 4, 1999, petitioner Rudolph Eady filed the instant petition for writ of habeas corpus, pro se, pursuant to 28 U.S.C. § 2254. The case was referred to Magistrate Judge Hugh B. Scott, pursuant to 28 U.S.C. § 636(b)(1), on July 16, 1999. On November 12, 2003, Magistrate Judge Scott filed a Report and Recommendation, recommending that the petition for writ of habeas corpus be dismissed and that a certificate of appealability should not issue.
Petitioner filed objections to the Report and Recommendation on November 26, 2003, and respondent filed a response thereto on January 9, 2004.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions of the parties, the Court adopts the proposed findings of the Report and Recommendation, with one clarification.
With regard to petitioner's claim that the jury considered "extra record" evidence during their deliberations, the Magistrate Judge found that the claim should be dismissed because petitioner failed to exhaust his remedies in state court. In his objections, petitioner states for the first time that he did, in fact, exhaust his remedies regarding this claim in state court. In his response to the objections, respondent admits that petitioner filed a motion under § 440.10 of the New York Criminal Procedure Law, that such motion was denied by the Monroe County Court on May 8, 1998, for failure to raise the claim on direct review, and that the Appellate Division, Fourth Department denied petitioner leave to appeal on August 7, 1998. Respondent states that such information was inadvertently omitted from the record before the Magistrate Judge.
Nevertheless, petitioner's claim must still be dismissed on procedural grounds. As the Monroe County Court held, under New York law, petitioner was procedurally barred from raising this claim in his § 440.10 proceeding because he failed to raise it on direct review. See N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if claim could have been raised on direct review). In the case of procedural default on a claim in state court, this Court may reach the merits of the claim "only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted). Because petitioner has not met nor even attempted to meet this standard, the Court does not reach the merits of his claim. See Jones v. Keane, 329 F.3d 290, 296 (2d Cir.), cert. denied, 124 S.Ct. 804 (2003).
Accordingly, for the reasons set forth in Magistrate Judge Scott's Report and Recommendation and herein, the Court grants respondent's motion to dismiss petitioner's petition for a writ of habeas corpus and orders the Clerk of Court to take all steps necessary to close the case.
The Court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right and therefore denies a certificate of appealability. 28 U.S.C. § 2253(c)(2).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith, and therefore denies leave to appeal in forma pauperis. Further requests to proceed on appeal in forma pauperis must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.