Opinion
No. 01 Civ. 7191 (LAP) (KNF).
March 31, 2005
REPORT and RECOMMENDATION
TO THE HONORABLE LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Herbert Harris ("Harris"), proceeding pro se, has petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that his confinement by New York state is unlawful because: (1) his grand jury and trial proceedings did not comport with the requirements of due process because the complaining witness was unable to communicate effectively either directly or through an interpreter and the court failed to replace the interpreter assigned to assist the witness at those proceedings; (2) the trial court erred in denying petitioner's pretrial motion to suppress identification testimony without first conducting a Wade hearing on this issue; (3) the trial court's instruction to the jury suggested improperly that the petitioner was present at the crime scene; however, the trial court refused to give the jury a curative instruction; (4) insufficient evidence was offered at trial to prove petitioner's guilt beyond a reasonable doubt; and (5) the prosecutor committed misconduct.
A hearing held pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967), determines whether procedures used to identify the defendant as the perpetrator of a crime were proper.
Additionally, although petitioner did not include a claim of ineffective assistance of counsel in his habeas corpus petition, he has asked the court to consider this claim in his memorandum of law submitted in support of the petition. Petitioner alleges that his trial counsel was ineffective because he: (i) failed to move for a mistrial when the complaining witness: (a) stated repeatedly at trial that he had recognized petitioner at a prior proceeding, and (b) admitted at trial that he was unable to understand the court interpreter at the grand jury proceedings; and (ii) failed to present the testimony of three alibi witnesses to contradict the complaining witness's testimony.
The respondent opposes petitioner's application for habeas corpus relief. He contends that the application should be denied because the petitioner is procedurally barred from obtaining habeas corpus relief on the claims he has asserted or those claims were previously adjudicated on the merits in the state courts and the determinations reached in those courts are consistent with Supreme Court precedent.
II. BACKGROUND
At 4:30 in the morning on June 1, 1996, Alpha Omar Sysavne ("Sysavne") was driving his cab to Manhattan from the Bronx when he was hailed by the petitioner. According to Sysavne, before entering the cab, petitioner called to Robert Lee ("Lee"), his co-defendant, who was standing nearby. After petitioner and Lee entered the cab, one of the two men stated that they wanted to go to West 148th Street and Seventh Avenue in Manhattan; however, when they reached that location, one of the two men changed the destination to West 147th Street and Seventh Avenue. When Sysavne brought the cab to a stop, Harris exited the vehicle.
At trial, Sysavne recalled that Harris stood directly in front of the cab, although Sysavne also testified that Harris stood about thirty feet away from the cab. While Harris was outside the cab, Lee robbed Sysavne at gunpoint, and then exited the cab, whereupon Sysavne drove his car toward Harris. Harris jumped out of the way, picked up a rock and threw it at the cab, shattering the vehicle's front windshield, then fled the scene and, together with Lee, entered a building on West 147th Street. Sysavne drove to a police station and reported the robbery. Two officers accompanied him to the scene of the robbery, where Sysavne observed and identified petitioner and Lee. According to Sysavne, petitioner had by then changed his clothes. Petitioner and Lee were arrested and searched by a police officer, who testified that he did not recover any property from them at the time. In addition, police officers who searched the area testified that the gun allegedly used in the robbery was never recovered.
Pretrial Motion
By motion dated July 31, 1996, petitioner requested, inter alia, a Wade hearing on the issue of the suppression of identification testimony. Petitioner contended that the identification of him by Sysavne was the result of improper suggestion by the police. In opposing the motion for a Wade hearing the prosecution argued, among other things, that since there had been no police-arranged identification procedure, the petitioner had not established a factual dispute requiring a hearing.
The court, in a pretrial decision and order dated September 10, 1996, denied petitioner's motion for a Wade hearing. The court found that "[t]he Grand Jury minutes reflect that the defendant was pointed out by the complainant to the police, in close proximity in both time and place, after the alleged robbery, hence, there was no police-arranged confrontation and no issue of suggestiveness to litigate."
Jury Instruction
During their deliberations, the jurors delivered a note to the trial judge requesting, inter alia, a supplemental instruction on the issue of accessorial liability. Responding to the request, the trial judge informed the jurors that "the [P]eople contend under our law, which makes one person criminally liable for the conduct of another person, [that] defendant Harris is criminally liable for the acts and conduct of defendant Lee. . . . This is really the essence of this acting in concert. The People are seeking to hold Mr. Harris liable for the actions of Mr. Lee which they maintain they have proven."
Petitioner's trial counsel objected to the supplemental instruction on the ground that it "seemed to negate any element of my main defense, which is identification." Trial counsel went on to say that the jury could find that Harris was "not present whatsoever and find him not guilty on those grounds and find Mr. Lee guilty." Trial counsel stated that, although the court had indicated it did not intend to change the instruction, he wanted to make sure his objection was preserved for the record.
In response to trial counsel's objection, the trial judge stated that she had previously given a lengthy instruction concerning identification, that both attorneys had addressed the issue in their summations, and that the jury had not asked to have the identification portion of the instruction read back to them. The trial judge concluded that it appeared that the jury understood the identification issue and that it was implicit in the instructions that, if the jury found that Harris was not present while the crime was being committed, they could not find that he had the requisite criminal intent.
The Trial Court's Decision to Set Aside the Verdict
On September 15, 1997, following a jury trial in New York State Supreme Court, New York County, petitioner was found guilty for robbery in the first degree, see N.Y. Penal Law § 160.15, and robbery in the second degree, see N.Y. Penal Law § 160.10. By motion dated October 8, 1997, petitioner moved to set aside the verdict on the grounds that it was against the weight of the evidence and there was insufficient evidence to prove beyond a reasonable doubt that petitioner had acted in concert with Lee to commit robbery. Following oral argument, the trial court set aside the jury verdict and dismissed the indictment against petitioner.
In setting aside the jury's verdict, the trial court ruled that, viewing the evidence in the light most favorable to the prosecution, there was insufficient evidence to establish petitioner's guilt beyond a reasonable doubt. Specifically, the trial court found that the prosecution had failed to prove either that Harris intentionally aided Lee or that Harris had acted with the requisite mental culpability for the crime. Therefore, the trial court concluded, the prosecution failed to establish that Harris had acted in concert with Lee.
Reversal of the Trial Court's Decision and Reinstatement of the Verdict
The prosecution appealed the vacatur of the jury's verdict to the New York State Supreme Court, Appellate Division, First Department. On April 11, 2000, the Appellate Division unanimously reversed the trial court's order and reinstated the verdict convicting petitioner for robbery in the first and second degrees. See People v. Harris, 271 A.D.2d 258, 706 N.Y.S.2d 392 (App.Div. 1st Dep't 2000).
In reversing the trial court's ruling, the Appellate Division stated that "a 'community of purpose,' as well as Harris's full knowledge of Lee's intentions, were evidenced by Harris's action of entering the cab with Lee after Lee called him over, standing nearby as the crime took place, throwing a rock at the cab's window, fleeing into the same location as Lee and then walking with him after the crime, whereupon defendants were arrested by the police." Id. at 258-59, 392 (citations omitted). The court also found that Harris' change of clothing prior to his arrest "evidenced a consciousness of guilt," and that "[s]ince the evidence provided a basis from which to infer that Harris acted as a lookout, in addition to proving that Harris acted in concert with Lee, it also proved that Harris was 'actually present,' supporting his conviction of robbery in the second degree. . . ." Id. at 259, 392.
As petitioner noted in his letter application for leave to appeal to the New York Court of Appeals, the Appellate Division mistakenly found that Lee had hailed the cab and then called Harris over, whereas the record indicates that it was Harris who hailed the cab. As petitioner acknowledged, however, this was an "error of minor significance."
After the Appellate Division rendered its decision, petitioner applied for leave to appeal to the New York Court of Appeals. His application was denied on July 21, 2000. See People v. Harris, 95 N.Y.2d 853, 714 N.Y.S.2d 4 (2000). Thereafter, petitioner moved to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, on the grounds that: (1) the prosecutor failed, during grand jury proceedings, to obtain a new interpreter for the complaining witness who had stated that he could not understand the interpreter who was assigned to assist him; and (2) he received ineffective assistance of trial counsel. Petitioner's CPL § 440.10 motion was denied on November 27, 2001.
On remand, petitioner was sentenced to concurrent terms of three to six years imprisonment for first-degree robbery, and two and one-quarter to four and one-half years imprisonment for second-degree robbery.
Direct Appeal
Petitioner appealed from the judgment of conviction to the Appellate Division. On his direct appeal, petitioner raised the following claims: (i) the trial court erred in denying his motion to suppress identification testimony without first conducting aWade hearing; (ii) the trial court's supplemental instruction to the jury suggested improperly that petitioner was present at the scene of the crime and the trial court failed improperly to give a curative instruction, and (iii) the trial and grand jury proceedings did not "meet state and federal due process standards of fairness."
The Appellate Division rejected all of the bases on which Harris urged it to upset his conviction. The court found that the denial of Harris' motion to suppress identification testimony was proper because the prosecution's submissions, which Harris did not dispute, established that the identification procedure, "rather than being a police canvass, had been completely civilian-initiated, so that it was outside the category of identifications subject to Wade hearings." People v. Harris, 288 A.D.2d 20, 732 N.Y.S.2d 219, 220 (App.Div. 1st Dep't 2001). The court concluded that there was no factual issue warranting a hearing. See id. at 20, 220.
Furthermore, the Appellate Division found that the trial court's supplement charge on accessorial liability was not rendered defective by the absence of any mention of the identification issue because identification had been the principal issue at trial and the court had given an extensive identification instruction in its main charge. See id. The court found that Harris' "remaining contentions" had not been preserved for appellate review, and the court declined to exercise its discretion to review them in the interest of justice. However, the court noted that, were it to review these claims, it would reject them. See id. at 21, 220. Accordingly, petitioner's conviction was affirmed unanimously. Petitioner's application for leave to appeal to the New York Court of Appeals was denied on March 6, 2002. See People v. Harris, 97 N.Y.2d 755, 742 N.Y.S.2d 615 (2002).
Petition for Writ of Habeas Corpus
On August 2, 2001, Harris petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Harris contended that his confinement by New York state was unlawful because the evidence presented at his trial was insufficient to permit a jury to return a verdict of guilty for the crimes of robbery in the first and second degrees. In August 2002, petitioner filed a motion seeking to be released on bail pending a decision on the merits of his habeas corpus petition and a motion for a default judgment against the respondent. By memorandum and order dated December 9, 2002, the Court denied the motions. Thereafter, petitioner requested permission to amend his petition for a writ of habeas corpus and to submit a supplemental memorandum of law in support of the petition. By order dated June 3, 2003, the Court granted petitioner's application. In his amended petition, Harris alleged, in addition to his claim that there was insufficient evidence to support his conviction, the claims of error described above. Additionally, as noted, in his memorandum of law submitted in support of the petition, which is dated July 28, 2003, petitioner presented an additional claim, that is, ineffective assistance of counsel.
III. DISCUSSION
Failure of Grand Jury and Trial Proceedings to Comport with Due ProcessPetitioner contends that the "[g]rand jury and trial proceedings did not meet State and Federal Due Process Standards of fairness" because, during the grand jury proceedings, "the complaining witness could not understand the court appointed interpreter, and was not given one he could understand, after making this fact known." Petitioner maintains that the complaining witness also had difficulty understanding the interpreter who was assigned to assist him at trial.
A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). This proscription applies even in those circumstances where a state court expressly relies on a procedural default as an individual and adequate state law ground but, nevertheless, rules in the alternative on the merits of the federal claim, see Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990), or indicates the conclusion it would reach were it to review the claim, see Simmons v. Mazzuca, No. 00 Civ. 8174, 2001 WL 537086, at *10 (S.D.N.Y. May 21, 2001). However, a habeas corpus petitioner may bypass the independent and adequate state law ground by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice will attend (that is, that the petitioner is actually innocent of the crime for which he was convicted), if the claim is not reviewed by the habeas court. See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989).
The Appellate Division did not dispose of Harris' claim, that his grand jury and trial proceedings did not comport with the requirements of due process, on the merits. Rather, the court found that Harris' claim was not preserved for appellate review and noted, alternatively, that were the court to review the claim, it would find that the claim lacked merit.
Under the CPL, review of the merits of a claim is procedurally barred unless "a protest . . . was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." CPL § 470.05(2); see also Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999). Moreover, the Second Circuit has held that a state appellate court's refusal to review the merits of a claim because of a defendant's failure to comply with the state's contemporaneous objection rule constitutes an adequate and independent state ground that precludes federal habeas corpus review. See Garcia, 188 F.3d at 79. This is so even where, as here, the appellate court speaks to the merits of the claim in an alternative holding. See id. at 76, 77. Therefore, the appellate court's decision rested on a state law ground that was independent of the federal question raised by petitioner's trial court jury instruction claim and adequate to support the judgment.
The New York Court of Appeals denied petitioner leave to appeal the intermediate appellate court's decision without issuing an opinion, thereby creating the presumption that it adopted the judgment on the same grounds. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594 (1991). Accordingly, petitioner's claim that the grand jury and trial proceedings failed to comport with the requirements of due process is barred from federal habeas corpus review.
As noted above, Harris may bypass the independent and adequate state law ground upon which the Appellate Division resolved this claim by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice will attend if the claim is not reviewed by this court. However, Harris has not presented any evidence to the Court which demonstrates cause for the default or prejudice resulting therefrom. Moreover, nothing in the record before the Court establishes that a fundamental miscarriage of justice would occur if petitioner's claim were not entertained by a federal court. Hence, petitioner has not overcome the procedural default that has occurred with respect to this claim in his petition. Therefore, petitioner is not entitled to habeas corpus relief on this claim.
Denial of Motion to Suppress Identification Testimony
Petitioner maintains that the trial court erred in denying petitioner's motion to suppress identification testimony without first affording petitioner an opportunity to litigate this issue in a pretrial Wade hearing. Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication 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 was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
In this case, the Appellate Division adjudicated on the merits Harris' claim that the trial court erred in denying his motion to suppress identification testimony without first conducting a pretrial Wade hearing. Therefore, it is incumbent upon Harris to establish that the decision reached by the Appellate Division on this claim was either: (a) contrary to or an unreasonable application of federal law as enunciated by the Supreme Court of the United States; or (b) grounded on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Harris has done neither. Since Harris has not met the burden placed upon him by 28 U.S.C. § 2254(d), he is not entitled to habeas corpus relief based on this claim. The Trial Court's Jury Instruction
Although not necessary for an adjudication of the instant petition, it is worth noting that, where there is a contention that a pretrial identification was the result of impermissibly suggestive procedures, a Wade hearing is advisable; however, there is no per se rule compelling such a hearing in every case. See Watkins v. Sowders, 449 U.S. 341, 349, 101 S. Ct. 654, 659 (1981). Moreover, the information needed for an assessment of the reliability of identification testimony usually can be elicited through cross-examination. See id.
Petitioner contends that the trial court erred in failing to mention the identification issue in its supplemental instruction to the jury on accessorial liability which was delivered in response to a note from the deliberating jury requesting further instructions on that subject. According to the petitioner, the trial court's language in the supplemental charge had the potential to persuade one or more of the jurors that petitioner was at the crime scene. In addition, petitioner maintains that the trial court erred when it refused to give the jury a curative instruction.
This claim was denied by the Appellate Division on the merits. Consequently, as discussed earlier in this writing, in order to prevail on this claim, petitioner would need to establish that the determination reached in the state court was not consistent with Supreme Court precedent. However, it does not appear that the petitioner has exhausted his state court remedies with respect to this claim, as he is required to do before seeking habeas corpus relief.
A habeas corpus petition brought by a state prisoner shall not be granted unless "the applicant has exhausted the remedies available in the courts of the State; or . . . there is an absence of available State corrective process; or . . . circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). Furthermore, "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by an available procedure, the question presented." 28 U.S.C. § 2254(c).
To satisfy the exhaustion doctrine, a habeas corpus petitioner must meet a two-pronged test. First, the petitioner must "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye v. Attorney General of New York, 696 F.2d 186, 190-91 n. 3 (2d Cir. 1982) ( en banc). A claim is "fairly presented" if the state courts are informed of "both the factual and the legal premises of the claim [asserted] in federal court." Id. at 191. Second, "having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure state [appellate] review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).
"Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims." Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citations omitted). A state defendant may put a state court on notice that it is to decide a federal constitutional claim in several ways, including:
(a) reliance on pertinent federal cases employing constitutional analysis,
(b) reliance on state cases employing constitutional analysis in like fact situations,
(c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye, 696 F.2d at 194.
In this case, although Harris presented the factual and legal premises of his claim concerning the trial court's supplemental jury instruction on accessorial liability to the Appellate Division, he failed to present the claim in such a way as to implicate a federal constitutional issue. In the portion of his brief to the Appellate Division that was devoted to the issue of the trial court's supplemental jury instruction, the petitioner failed to cite a single federal case, as required by the firstDaye factor set forth above. As to the second Daye factor, the Court has examined the state authorities that were cited in petitioner's appellate brief and finds that, while they address fact situations that are similar to those presented here, no case directly employs a federal constitutional analysis in disposing of a claim concerning the adequacy of a jury instruction. Moreover, it does not appear that petitioner either asserted his claim "in terms so particular as to call to mind a specific right protected by the Constitution" or alleged "a pattern of facts that is well within the mainstream of constitutional litigation," as required by the third and fourth Daye factors enumerated above.
Furthermore, although petitioner's letter application seeking leave to appeal to the New York State Court of Appeals presented the contention that the trial court's supplemental jury instruction was improperly suggestive, the claim was not presented in a manner that would call to mind a specific federal right. Therefore, this claim is unexhausted under the applicable standard.
If a state prisoner has not exhausted his state remedies with respect to a claim and he no longer has a state forum in which to raise the claim, the claim may be deemed exhausted but procedurally barred. See Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994). Under New York law, a defendant is permitted only one opportunity to apply for leave to appeal to the New York Court of Appeals. See N.Y. Ct. Rules § 500.10(a). In this case, Harris cannot seek leave to appeal his claim in the New York Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. Therefore, Harris' claim may be deemed exhausted. Moreover, Harris' inability to return to state court constitutes an adequate and independent state law ground upon which his claim is procedurally defaulted. See Acosta v. Giambruno, 326 F. Supp. 2d 513, 522 (2004) (citingColeman, 501 U.S. at 731, 111 S. Ct. at 2554-55); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (finding that for exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred).
As noted earlier in this writing, Harris may overcome the procedural default that has occurred with respect to this claim by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice will attend if the claim is not reviewed by this court. However, Harris has not presented any evidence to the Court which demonstrates cause for the default or prejudice resulting therefrom. Moreover, nothing in the record before the Court establishes that a fundamental miscarriage of justice would occur if petitioner's claim were not entertained by a federal court. Hence, neither of these exceptions is applicable here. Therefore, for the reasons set forth above, Harris is not entitled to habeas corpus relief on this claim.
As noted above, the Appellate Division decided this claim on the merits. However, even if the claim were not procedurally barred, Harris has not shown, pursuant to 28 U.S.C. § 2254(d), that the Appellate Division's determination that the trial court's supplemental jury instruction was proper was inconsistent with Supreme Court precedent.
Insufficiency of the Evidence
Harris asserts that he is entitled to habeas corpus relief because his conviction for robbery in the first and second degrees was based upon insufficient evidence. The Appellate Division adjudicated this claim on the merits at the time that it reversed the order of the trial court setting aside the jury verdict convicting Harris for these offenses. Therefore, as noted above, 28 U.S.C. § 2254(d) requires Harris to demonstrate that the determination reached by the Appellate Division was contrary to or involved an unreasonable application of clearly established federal law, as set forth by the Supreme Court, or that it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the proceedings conducted by the state court.
Here, again, Harris has failed to carry the burden imposed upon him by statute. Harris has not shown how the Appellate Division's determination, that the evidence presented at trial was sufficient for a reasonable jury to return a verdict of guilty against him with respect to the crimes of robbery in the first and second degrees, was in tension with Supreme Court precedent. Therefore, Harris has not established that he is entitled to habeas corpus relief on this claim. Prosecutorial Misconduct
Although it is not necessary for an adjudication of the instant petition, the Court notes that a habeas corpus petitioner who claims that there was insufficient evidence to support an underlying conviction faces a heavy burden: he or she must demonstrate that, upon "viewing the evidence in the light most favorable to the prosecution," it cannot be said that " 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, 318-19, 99 S. Ct. 2781, 2789 (1979).
Harris contends that the prosecution violated his due process rights by: a) failing to provide the complaining witness with an adequate interpreter during grand jury proceedings; b) permitting the complaining witness to give perjured testimony without correcting it; and c) in summation, inaccurately characterizing the arguments offered on the defendant's behalf so that the burden of proof was shifted to the defense.
As noted above, a habeas corpus petitioner must exhaust the remedies available in the state courts before seeking habeas corpus relief, unless there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of the applicant. In this case, the petitioner has not presented his prosecutorial misconduct claim either to the Appellate Division or to the New York Court of Appeals. Thus, petitioner has not provided "the State [with] an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Acosta, 326 F. Supp. 2d at 521 (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512) (internal quotation marks omitted). Moreover petitioner has not shown that there was an absence of available state corrective process by which he might have secured review of this claim. Hence, the claim is unexhausted. However, because petitioner, who previously sought leave to appeal in state court, no longer has a forum in which to raise the claim, the claim may be deemed exhausted but procedurally barred.
Since Harris has procedurally defaulted on his claim, he is not entitled to the relief he seeks through the instant application for a writ of habeas corpus unless, as noted earlier in this writing, he can demonstrate cause for his procedural default, prejudice attributable thereto or that a fundamental miscarriage of justice would attend if the court declined to entertain the claim asserted in this portion of his application for the writ. Harris has not presented any evidence to the court establishing either cause and prejudice for his procedural default or that a miscarriage of justice would attend if the court did not entertain his claim. Consequently, he is not entitled to habeas corpus relief based on the instant claim.
Ineffective Assistance of Counsel
In his memorandum of law in support of the instant petition, Harris has presented a claim of ineffective assistance of counsel which he asks the court to review "in the interest of justice." Harris contends that his trial counsel was ineffective because he: (i) failed to move for a mistrial when (a) the complaining witness stated repeatedly at trial that he had recognized petitioner at a prior proceeding, and (b) admitted at trial that he was unable to understand the court interpreter at the grand jury proceedings; and (ii) failed to present the testimony of three alibi witnesses to contradict the complaining witness's testimony.
As noted above, petitioner previously requested and received permission to amend his petition for a writ of habeas corpus and to submit a supplemental writing in support of the petition. Petitioner has not moved to amend the petition a second time; however, the Court construes his pro se submissions liberally and "interpret[s] them to raise the strongest arguments they suggest." Wright v. Comm'r of Internal Revenue, 381 F.3d 41, 44 (2d Cir. 2004). Accordingly, the Court understands petitioner's request that it review his ineffective assistance of counsel claim "in the interest of justice" to be equivalent to a motion to amend.
Rule 15 of the Federal Rules of Civil Procedure ("Rule 15") governs motions to amend a petition for a writ of habeas corpus.See Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 81(a)(2);Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001); Fama v. Comm'r of Correctional Servs., 69 F. Supp. 2d 388, 393 (E.D.N.Y. 1999). Rule 15 provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a).
In this case, responsive pleadings were filed both to Harris' original habeas corpus petition and to the amended petition now before the Court. Consequently, since the respondent has not provided "written consent" to an amendment of the petition, "leave of court" is required. Furthermore, "[i]n the absence of any apparent or declared reason — such as 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 the allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962).
The Court finds that leave to amend the petition should not be granted in this case because the petitioner has unduly delayed the assertion of his new claim. Petitioner has offered no explanation for his failure to raise his new claim at the time that he filed his amended petition in June 2003, nor has he provided the Court with any facts that demonstrate that the basis for this claim, which was raised in a CPL § 440.10 motion in August 2001, was not known to or was otherwise unavailable to him when he filed his amended petition.Cf. Whelan v. Bank United of Texas, No. 97 Civ. 0479, 1999 WL 285502, at *2 (S.D.N.Y. May 6, 1999) (finding that court may deny motion to amend "when the movant knew or should have known of the facts upon which the amendment is based when the original pleading was filed, particularly when the movant offers no excuse for the delay"). Therefore, the Court finds that petitioner has been inexcusably dilatory in seeking to amend his habeas corpus petition to add his ineffective assistance of counsel claim.See Littlejohn, 271 F.3d at 363 ("[A]lthough Rule 15 requires that leave to amend be 'freely given,' district courts nonetheless retain the discretion to deny that leave in order to thwart tactics that are dilatory. . . .").
Furthermore, the Court finds that an amendment of the petition to add Harris' new claim would be futile. In reviewing petitioner's CPL § 440.10 motion to set aside the verdict, the trial court adjudicated his ineffective assistance of counsel claim on the merits. However, Harris has not shown how the trial court's determination that petitioner received effective assistance of counsel was inconsistent with Supreme Court precedent as set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Thus, because Harris has not met the burden placed upon him by statute, see 28 U.S.C. § 2254(d), he has not established that he is entitled to habeas corpus relief on this claim. Therefore, an amendment of the petition to include this claim would be futile and the claim should be dismissed.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus 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 ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Preska. 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 (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, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).