Opinion
05 Civ. 3009 (RMB) (KNF).
May 7, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Jonathan Gibson ("Gibson"), proceeding pro se, brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petitioner alleges his confinement by New York State is unlawful because: (1) the police officers who effected his arrest lacked probable cause to do so; (2) the evidence presented at his trial was insufficient to prove his guilt beyond a reasonable doubt; (3) the trial court erred when it sentenced him as a persistent violent felony offender; and (4) the sentence imposed on him is cruel and unusual and, therefore, violative of the Eighth Amendment. The respondent opposes the petition contending: (a) the petitioner's Fourth Amendment claim is unexhausted and not cognizable on federal habeas corpus review; (b) the evidence presented at Gibson's trial was sufficient to prove his guilt beyond a reasonable doubt and the petitioner has failed to show that the state-court decision respecting this claim was contrary to or involved an unreasonable application of clearly established federal law; and (c) the petitioner's claim, that he was sentenced erroneously as a persistent violent felony offender, is unexhausted and meritless. The respondent has not addressed the petitioner's Eighth Amendment claim.
Following the submission of the respondent's opposition to the instant application for the writ, the petitioner sought a stay of the adjudication of his petition so that he could return to the state courts to exhaust available remedies respecting the following claims: (1) the alleged Fourth Amendment violation; (2) the trial court's improper adjudication of him as a persistent violent felony offender; (3) the ineffective assistance rendered to him by his trial counsel, occasioned by the attorney's failure to assert the instant Fourth Amendment claim; and (4) the ineffective assistance rendered to him by his appellate counsel in failing to raise, on direct appeal from the judgment of conviction, that Gibson's trial counsel rendered ineffective assistance to him.
The respondent opposed the petitioner's request for a stay because: (a) the petitioner failed to demonstrate good cause for his failure to exhaust his claims in the state courts; and (b) the claims Gibson wants to exhaust are meritless. In a reply to the respondent's opposition to the request for a stay of the proceedings, Gibson asked the Court to take judicial notice of an application for a writ of error coram nobis, he wishes to make in the New York State Supreme Court, Appellate Division, challenging the effectiveness of the assistance his appellate counsel rendered to him in connection with Gibson's appeal from his judgment of conviction.
"[C]ourts routinely take judicial notice of documents filed in other courts, not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991). However, Gibson stated in his motion for a stay and abeyance that he had not filed his coram nobis application in the state court and that he would submit it to the state court upon the Court's granting of his request that adjudication of his application for the instant writ be stayed. Therefore, it is not appropriate for the Court to take judicial notice of Gibson's coram nobis application, which, at the time of this writing, has not been filed with the state court.
Gibson has not raised his ineffective assistance of the appellate counsel claim in the state courts previously and, until now, had not raised it in connection with his petition for a writ of habeas corpus. The Court determined to treat the petitioner's reference to his coram nobis petition, in his reply, as a request to amend his habeas corpus petition to include, as a ground for relief, ineffective assistance of appellate counsel. The respondent opposes the petitioner's request to amend his habeas corpus petition on the ground that such an amendment would be futile. The petitioner's requests and the petition are addressed below.
II. BACKGROUND
On September 20, 1999, several police officers responded to a radio dispatch about a possible robbery that had occurred in the vicinity of Madison Avenue, between East 109th and East 110th Streets, in Manhattan. The radio dispatch informed that the robber was a man wearing a black and orange jacket and, further, that he was carrying a gun. Police officers arriving at the location saw Gibson, who was the only person in the vicinity who fit the description. When one of the police officers exited his police vehicle, Gibson asked if the officers were there for him. The police officer responded by saying: "Come here." Gibson started running and was chased by the officers. While in flight from the police officers, Gibson reached into the waistband of his pants, removed a gun and pointed it toward them for about four seconds.
One of the police officers subdued Gibson, who threw his gun into a puddle by the curb. The gun was retrieved by the police. It contained a fully loaded magazine; however, no bullets were found in the weapon's chamber. As police officers were attempting to restrain Gibson, he said: "What gun? That's not my gun!" After Gibson had been taken into custody and had received warnings, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), he told police officers he had found the gun in a car he believed had been stolen and that he had never before had a gun. Subsequent ballistic testing of the weapon, by police personnel, showed that the gun and its ammunition were operable.
Gibson was indicted by a New York County grand jury, which charged him with one count each of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Thereafter, Gibson sought to have statements he made to the police suppressed at his trial. A pretrial suppression hearing was held, pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), to determine whether the prosecution would be barred from using, at Gibson's trial, statements Gibson made prior to his arrest. The trial court denied Gibson's suppression motion on the ground that his statements were made voluntarily and spontaneously and were not the product of any custodial interrogation.
Gibson proceeded to trial before the court, without a jury. He was convicted for criminal possession of a weapon in the second and third degrees. At the commencement of his sentencing proceeding, Gibson requested that the transcript of a 1985 pleading proceeding be furnished to him so that he might challenge the prosecutor's attempt to have him adjudicated a persistent violent felony offender and sentenced accordingly. The sentencing proceeding was adjourned by the court to permit the prosecution to obtain and, thereafter, disclose to Gibson the requisite transcript.
When the sentencing proceeding was reconvened, the trial court determined, based upon its review of the record generated during a 1993 proceeding at which Gibson was adjudicated a persistent felony offender, because of his 1985 felony conviction, to adjudicate the petitioner a persistent violent felony offender. The court acted as it did because the prosecution could not locate a transcript of Gibson's 1985 pleading proceeding and, after reviewing the record of the 1993 proceeding, the court found that Gibson had been afforded his due process rights in 1993, since the record made clear that, in accordance with New York's Criminal Procedure Law ("CPL"), Gibson had examined the 1985 conviction at the 1993 proceeding and, thereafter, had elected not to challenge the 1985 conviction as being constitutionally defective. The trial court then sentenced Gibson, as a persistent violent felony offender, to concurrent indeterminate prison terms of sixteen years to life and twelve years to life, respectively.
On direct appeal, Gibson's counsel asserted that his conviction for criminal possession of a weapon in the second degree was based on legally insufficient evidence because the prosecution failed to prove Gibson's guilt beyond a reasonable doubt. Gibson filed a supplemental pro se appellate brief. In that document, Gibson argued that: (a) his Fourth Amendment right was violated because the police lacked reasonable suspicion to stop him when they encountered him on September 20, 1999; (b) the trial court failed to follow the applicable procedure for determining whether to sentence him as a persistent violent felony offender; and (c) his trial counsel rendered ineffective assistance to him because he advised Gibson to have a bench trial and to forgo a jury trial.
The New York State Supreme Court, Appellate Division, First Department, affirmed Gibson's conviction unanimously. It found the verdict, convicting Gibson for criminal possession of a weapon in the second degree, was based on legally sufficient evidence and was not against the weight of evidence. The Appellate Division rejected all the other claims presented to it, including those contained in Gibson's pro se supplemental appellate brief. See People v. Gibson, 309 A.D.2d 614, 765 N.Y.S.2d 609 (App.Div. 1st Dep't 2003). Thereafter, the New York Court of Appeals denied Gibson leave to appeal to that court. See People v. Gibson, 1 N.Y.3d 597, 776 N.Y.S.2d 229 (2004). This petition for a writ of habeas corpus followed.
III. DISCUSSION
Leave to Amend the Petition
Gibson wishes to amend his petition to add a claim of ineffective assistance of appellate counsel. The respondent opposes the requested amendment. He contends the claim is not exhausted and, furthermore, allowing Gibson to include it in his petition would be futile.
A habeas corpus petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. Fed.R.Civ.P. 15 governs a motion to amend a habeas corpus petition. See Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001). Where, as here, a responsive pleading has been served, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a). Absent "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.," leave to amend a pleading should be "freely given," in accordance with Fed.R.Civ.P. 15(a). Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962). Where "there is no merit in the proposed amendment, leave to amend should be denied." Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990). In the habeas corpus context, when a request is made to amend a petition, so as to include an unexhausted claim, granting such a request would be futile if a court also declined to use the stay and abeyance procedure while the petitioner exhausts his claim in the state courts. See Clancy v. Phillips, No. 04 CV 4343, 2005 WL 1560485, at *2 (S.D.N.Y. July 1, 2005); Ramdeo v. Phillips, No. 04-CV-1157, 2006 WL 297462, at *4 (E.D.N.Y. Feb. 8, 2006).
As noted above, Gibson wants to include a claim of ineffective assistance of appellate counsel in his habeas corpus petition. He has asked the Court to employ the stay and abeyance procedure while he returns to the state courts to exhaust unexhausted claims, including his ineffective assistance of appellate counsel claim. Since granting the request to amend the petition to add an unexhausted claim would be futile, if the Court denies Gibson's motion to stay the petition, that matter is addressed first.
Stay and Abeyance
An application for a writ of habeas corpus "shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Where a habeas corpus petition contains exhausted and unexhausted claims, a district court has the discretion to stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claim(s) only if: (a) "the petitioner had good cause for his failure to exhaust;" (b) "his unexhausted claims are potentially meritorious;" and (c) "there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Rhines v. Weber, 544 U.S. 269, 278, 125 S. Ct. 1528, 1535 (2005).
Although the Supreme Court has not defined "good cause" in the context of the stay and abeyance procedure, some courts have held, post-Rhines, that a claim of ineffective assistance of appellate counsel satisfies the "good cause" requirement. See Rhines v. Weber, 408 F. Supp. 2d 844, 848 (D.S.D. 2005); Aessa v. Annetts, No. 06 CV 5830, 2006 WL 3780392, at *2 (E.D.N.Y. Dec. 21, 2006); Ramchair v. Conway, No. 04 CV 4241, 2005 WL 2786975, at *17 (E.D.N.Y. Oct. 26, 2005); but see Vasquez v. Parrott, 397 F. Supp. 2d 452, 464-65 (S.D.N.Y. 2005). However, whether Gibson's ineffective assistance of appellate counsel claim satisfies the good cause requirement need not be determined if his claim is meritless. See Diaz v. Smith, No. 04 Civ. 1337, 2007 WL 946196, at *6, 14 (S.D.N.Y. Mar. 27, 2007); Wallace v. Artus, No. 05 Civ. 0567, 2006 WL 738154, at *4 (S.D.N.Y. Mar. 23, 2006).
Gibson asserts his appellate counsel rendered ineffective assistance to him by failing to raise the following claims to the Appellate Division: (a) ineffective assistance of trial counsel, predicated on trial counsel's failure to raise, in the trial court, that the initial stop and subsequent arrest of Gibson were illegal; and (b) Gibson's Fourth Amendment claim. The respondent contends the petitioner's ineffective assistance of appellate counsel claim is meritless because Gibson failed to show prejudice resulting from his trial counsel's failure to assert that the initial stop of Gibson and his subsequent arrest were illegal, since the trial court addressed the instant Fourth Amendment claim, sua sponte, and found it wanting. Moreover, according to the respondent, the claim was raised by the petitioner in his supplemental pro se appellate brief and was rejected by the Appellate Division.
To prevail on an ineffective assistance of counsel claim, a petitioner must show that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's error(s), the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-2065, 2068 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and the moving party "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound strategy.'" Id. at 689, 104 S. Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164). The Supreme Court has recognized that a criminal defendant's appellate counsel "need not advance every argument, regardless of merit, urged by the appellant." Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35 (1985) (emphasis in the original) (citing Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308). A petitioner may rebut the presumption of reasonableness accorded appellate counsel's performance by showing "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). "To establish prejudice in the appellate context, a petitioner must demonstrate that 'there was a 'reasonable probability' that [his] claim would have been successful before the [state's highest court].'" Id. at 534 (quoting Claudio v. Scully, 982 F.2d 798, 803 [2d Cir. 1992]).
Gibson asserts his appellate counsel presented an unsubstantiated argument, raising a "clearly and significantly weaker" issue: insufficiency of evidence, while ignoring a meritorious argument, that "'the anonymous' 911 tip [that prompted the police radio dispatch] never established reasonable suspicion of criminal activity, nor was there probable cause to arrest appellant." While the Court agrees with Gibson, that his appellate counsel presented an unsubstantiated and meritless argument on appeal, it finds that the instant Fourth Amendment claim, which Gibson asserts should have been presented by his appellate counsel, was presented to the Appellate Division by Gibson, in his pro se supplemental appellate brief.
The Court finds further that, inasmuch as the instant Fourth Amendment claim was presented to the Appellate Division and adjudicated on the merits, Gibson will not be able to show that, but for his appellate counsel's ineffective assistance, the outcome at the Appellate Division would have been different. Moreover, Gibson has failed to show a reasonable probability exists that if the instant Fourth Amendment claim had been presented to the New York Court of Appeals, it would have been successful. Since Gibson has failed to show that his ineffective assistance of appellate counsel claim is potentially meritorious, employing the stay and abeyance procedure, in the circumstance of the case at bar, is not warranted. Consequently, granting Gibson's request, to amend the petition to add his unexhausted ineffective assistance of appellate counsel claim, would be futile. Therefore, Gibson's motion for leave to amend his petition should be denied.
Fourth Amendment Claim
Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies. See 28 U.S.C. § 2254(b) and (c). To satisfy the exhaustion requirement, a habeas corpus petitioner must first "fairly present" his or her claim to the highest state court from which a decision can be rendered. See Daye v. Attorney General of New York, 696 F.2d 186, 191 n. 3 (2d Cir. 1982) (en banc). A claim is fairly presented to the state court if that court was informed of the factual and legal premises of the claim being asserted in federal court. See id. If material factual allegations or legal doctrine are presented in a federal habeas corpus petition that were not presented to the state court, the state court has not had a fair opportunity to rule on the claim. See id. at 191-92. Once a claim is fairly presented, "and having been denied relief, the petitioner must have utilized all available mechanisms to secure appellate review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981).
Here Gibson presented his Fourth Amendment claim, that he was stopped and arrested illegally, to the Appellate Division in hispro se supplemental appellate brief. However, a letter application, submitted by Gibson's counsel, seeking leave to appeal to the New York Court of Appeals, discussed only one claim at length that he wanted that court to review: the insufficiency of the trial evidence. In that same letter, Gibson's counsel made a cryptic reference to a procedural defect in the trial court's finding that Gibson was a persistent violent felony offender. Gibson's counsel concluded the letter application by stating: "Lastly, I have included a copy of the Appellate Division's opinion and Order, as well as copies of the briefs and motions filed by appellant and respondent."
"Arguing a single claim at length and making only passing reference to possible other claims to be found in the attached briefs does not fairly appraise the state court of those remaining claims." Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). The Court finds that the instant Fourth Amendment claim was not fairly presented to the state court for adjudication because Gibson's counsel failed to raise it in his application for leave to appeal to the New York Court of Appeals. Consequently, this claim is unexhausted for the purpose of the instant writ. However, when a claim has not been presented to a state court for adjudication, a federal court reviewing a habeas corpus petition may deem the claim exhausted "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
It appears that New York procedural rules bar Gibson from raising the instant Fourth Amendment claim before the New York Court of Appeals because he already sought leave to appeal to that court, which was denied. See People v. Hernandez, 253 A.D.2d 683, 680 N.Y.S.2d 74 (App.Div. 1st Dep't 1998) ("Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice."). Furthermore, where an appeal may be taken only by permission, pursuant to CPL § 460.20, the application for leave to appeal must be made within 30 days after service upon the prospective appellant of the order from which the appeal is taken. See CPL § 460.10(5)(a). Although a court may extend the time for taking an appeal after the prescribed period expires, an application for such relief must be made not more than one year after the time prescribed for taking an appeal has expired. See CPL § 460.30(1). In addition, collateral review of the petitioner's claim, in the trial court, is barred because the Appellate Division has previously rejected the claim on the merits. See CPL § 440.10(2)(a). Therefore, the Court finds that, since the instant Fourth Amendment claim is procedurally barred because Gibson has no available remedies in the state courts, the claim can be deemed exhausted.
A procedural default may be excused by a court if a habeas corpus petitioner can show cause for the default and prejudice resulting from it, or that the court's failure to consider the federal claim will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991). To establish cause, a petitioner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986). Objective factors that constitute cause include,inter alia, "some interference by officials" that made compliance with the applicable state procedural rule impracticable or "a showing that the factual or legal basis for a claim was not reasonably available to counsel."Id. Additionally, ineffective assistance rendered to a petitioner by counsel constitutes cause for a procedural default. However, generally, such a claim must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Id. at 489, 106 S. Ct. at 2646.
Gibson attempted to show cause for his procedural default by alleging ineffective assistance of appellate counsel. However, since the Court determined that Gibson failed to show that his ineffective assistance of appellate counsel claim is potentially meritorious and that his underlying Fourth Amendment claim was rejected on the merits by the Appellate Division, the Court finds that Gibson has failed to establish cause for his procedural default. Moreover, Gibson does not assert that the court's failure to consider his Fourth Amendment claim will result in a fundamental miscarriage of justice. Therefore, a review of Gibson's Fourth Amendment claim is not warranted.
Insufficient Evidence
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for a writ of habeas corpus with respect to a claim that has been adjudicated on the merits in state court proceedings will be granted only if such adjudication resulted in a decision that was: (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). The Supreme Court has interpreted "the contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1) as having independent meaning. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S. Ct. 1495, 1519 (2000). A state court decision is "contrary to" the Supreme Court's precedent: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law;" or (2) "the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that reached by the Supreme Court. Id. at 405, 120 S. Ct. at 1519. A decision is an "unreasonable application" of clearly established federal law, as determined by the Supreme Court, if: (1) "the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;" or (2) "the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407, 120 S. Ct. at 1520. If a state prisoner's federal claim was adjudicated on the merits, a federal court must presume any determination of a factual issue made by a state court to be correct and a habeas corpus petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Gibson's claim, that the evidence presented at his trial was legally insufficient to prove his guilt beyond a reasonable doubt on the charge of criminal possession of a weapon in the second degree, was rejected on the merits by the Appellate Division. Gibson asserts that "absent proof of intent beyond a reasonable doubt, the verdict was contrary to clearly established federal law."
However, Gibson has failed to rebut the presumption of correctness of the factual determination made by the Appellate Division and reproduced below:
Not only was defendant's possession of a loaded weapon presumptive evidence of his intent to use it unlawfully against another (Penal Law § 265.15[4]; People v. Chronopoul, 181 A.D.2d 686, [ 581 N.Y.S.2d 214 (App. Div. 2d Dep't)] [1992)], lv. denied 79 N.Y.2d 998, [584 N.Y.S.2d 453] [(1992)], but defendant also pointed it at the pursuing police officers, which warrants an inference of unlawful intent (id.).People v. Gibson, 309 A.D.2d at 614, 765 N.Y.S.2d at 609.
Moreover, Gibson has failed to demonstrate how the Appellate Division's decision is contrary to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979), the Supreme Court precedent that governs insufficiency of the evidence claims. Therefore, the Court finds that Gibson has not met the statutory burden imposed on him, and that granting a writ of habeas corpus on this claim is not warranted. See 28 U.S.C. § 2254(d) § 2254(e)(1).
Persistent Violent Felony Offender
Gibson asserts the trial court erred in adjudicating him a persistent violent felony offender because the prosecution did not prove "the constitutionality of every predicate conviction proffered for sentencing enhancement beyond a reasonable doubt." The respondent contends this claim is unexhausted because it was not presented to the Appellate Division "in federal constitutional terms" and it was never presented to the New York Court of Appeals. Alternatively, the respondent contends: (a) whether the trial court properly adjudicated petitioner as a persistent violent felony offender is a matter of state law and federal habeas corpus relief does not lie for errors of state law; and (b) the claim is meritless.
In his pro se supplemental appellate brief, Gibson claimed that the prosecution failed "to prove beyond a reasonable doubt that the defendant has been convicted of two or more predicate violent felonies" and the trial judge "did not follow process of a two pronged analysis as defined in CPL [§ 400.20(1)]" when he sentenced the petitioner as a persistent violent felony offender. Gibson made citation to the CPL and New York case law to support his claim. He did not alert the Appellate Division to the constitutional nature of his claim. In addition, although Gibson made a cryptic reference to this claim in his application for leave to appeal to the New York Court of Appeals, the reference was so oblique the factual basis for the claim was not articulated clearly and the reference to the claim failed to identify its constitutional underpinning. As a result, the Court finds that Gibson's claim, that the trial court erred in adjudicating him as a persistent violent felony offender, is unexhausted. However, this claim may be deemed exhausted because, for the reasons discussed above that will not be repeated here, Gibson is procedurally barred from bringing it in the state court. Gibson has failed to show cause for his procedural default or prejudice resulting from it. Moreover, he did not assert that the court's failure to consider this claim will result in a fundamental miscarriage of justice. Therefore, the court should deny Gibson habeas corpus relief based on this claim.
Cruel and Unusual Sentence
Gibson contends the enhanced sentence he received, resulting from the state court's adjudication of him as a persistent violent felony offender, violates the Eighth Amendment. The respondent did not address this claim in his opposition to the petitioner's application for the writ.
Gibson's Eighth Amendment claim is unexhausted because he failed to present it to the state court for adjudication. However, it may be deemed exhausted because, as discussed above, Gibson is procedurally barred from presenting it to the state court. See CPL §§ 460.10(5)(a), 460.30(1), and 440.10(2)(c). In the instant petition, Gibson has failed to present any arguments to: (a) show cause for his procedural default or any prejudice resulting from it; (b) demonstrate that the court's failure to consider his Eighth Amendment claim will result in a fundamental miscarriage of justice; or (c) support the merits of his Eighth Amendment claim. Therefore, the Court finds that no basis exists for granting Gibson habeas corpus relief based on this claim.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the court decline to: (i) permit Gibson to amend the petition; and (ii) stay adjudication of the petitioner's application for a writ of habeas corpus. Furthermore, I also recommend that the petition for habeas corpus relief be denied.
V. 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 (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 Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 500 Pearl Street, Room 650, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).