Opinion
02-CV-3117(JBW), 03-MISC-0066 (JBW)
October 15, 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
Petitioner (sometimes referred to as defendant) filed this petition on May 21, 2002, He makes the following claims:
Ground one: That the state failed to establish petitioner's guilt of attempted murder, attempted assault, and reckless endangerment beyond a reasonable doubt, and that the verdict was against the weight of the credible evidence.
Facts: The testimony at trial established that the petitioner knew that the complainant was never in danger of death or injury, since the complainant could breathe without oxygen supplementation for hours or weeks, the oxygen tubing was replaced almost immediately while the petitioner was still present, and he attempted to repair the compressor bottle within minutes of breaking it.
Ground two: The State failed to establish the petitioner's guilt of forgery, criminal possession of forged instruments and petit larceny beyond a reasonable doubt, and the verdict was against the weight of the credible evidence.
Facts: There was no evidence of anyone observing petitioner forge the complainant's signature on the two checks, the person who cashed them was not certain that it was appellant who presented them, and at least two people had access to the checks.
Ground three: Petitioner, who proceeded pro se, was deprived [of] a fair trial when the court showing partiality to the prosecution had no control over the complaining witness during the cross-examination by petitioner, allowing the witness to make evasive responses, and to make demeaning remarks, throughout the petitioner's cross-examination. Even though the petitioner requested the court to control the witness several times without the Court's intervention, thereby denying petitioner's due process rights to a fair trial free from partiality,
Ground four: The petitioner was denied a fair trial by the admission of prior uncharged crimes for which the people failed to show clear and convincing evidence that the petitioner in fact committed the crimes for which they were entered, and their admission to show intent when in closing arguments they were used to try to show identity by comparison of the signatures on both set of checks. Petitioner was denied due process when the checks entered were not the originals and the contents of the writing were in dispute. Also the signature was never proved to be petitioner's, thereby denying due process.
The evidence supports the following statements:
In the spring and summer of 1997, defendant lived with his mother, Francesca Lyons, at 451 Graham Avenue in Brooklyn, Because her breathing was impaired by various lung ailments, Francesca Lyons continuously breathed supplemental oxygen from an oxygen tank that was connected by a tube to an opening in her neck. A compressor humidified the oxygen coming from the tank.
On April 16, 1997, without his mother's permission, defendant used a credit card account in his mother's name to purchase two Western Union money orders for $1,000 each, which were made out to Delores Charette. The next day, April 17, 1997, defendant drove with Charette to a Western Union office in Hudson, New York, where Charette picked up and cashed the money orders.
On or about June 13, 1997, defendant signed his mother's name on one of her personal checks without her permission, and cashed the check, which was in the amount of $100, at a grocery store, Anthony Son, located at 433 Graham Avenue in Brooklyn. On or about June 14, 1997, defendant again signed his mother's name on one of her personal checks without her permission and cashed the check, which was in the amount of $60, at Anthony Son.
On August 3, 1997, after learning that his mother had made a criminal complaint against him to the police, defendant kicked Francesca Lyon's compressor, damaging it. He then yelled, "Die bitch," and disconnected the tube through which Francesca Lyons was breathing supplemental oxygen. The tube was reattached approximately five minutes later.
Defendant was arrested and was charged, by Kings County Indictment Number 8806/98, which charged him with one count each of Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25[1]), Attempted Assault in the Second Degree (N.Y. Penal Law §§ 110.00/120.05[2]), Attempted Assault in the Third Degree (N.Y. Penal Law §§ 110.00/120.00[1]), Reckless Endangerment in the First Degree (N.Y, Penal Law § 120.25), Reckless Endangerment in the Second Degree (N.Y. Penal Law § 120.20), and Grand Larceny in the Fourth Degree (N.Y, Penal Law § 155.30[1]); two counts each of Forgery in the Second Degree (N.Y. Penal Law § 170.10[1]), and Criminal Possession of a Forged Instrument in the Second Degree (N.Y. Penal Law § 170.25); and three counts of Petit Larceny (N.Y. Penal Law § 155.25).
Defendant was found guilty, after a jury trial, of one count each of Attempted Murder in the Second Degree, Reckless Endangerment in the First Degree, Attempted Assault in the Third Degree, and Grand Larceny in the Fourth Degree; two counts each of Forgery in the Second Degree and Criminal Possession of a Forged Instrument in the Second Degree; and three counts each of Petit Larceny.
On April 8, 1999, defendant was sentenced to a prison term of three and one-half to seven years on the reckless endangerment count to be served consecutively to concurrent prison terms of three and one-half to seven years on the counts of forgery and criminal possession of a forged instrument, two to four years on the grand larceny count, and one year on the petit larceny counts.
Defendant was also sentenced to concurrent prison terms of eight years on the attempted murder count and three months on the attempted assault count to be served concurrently with the other counts.
Defendant appealed his conviction to the Appellate Division claiming, among other things, that: 1) the People failed to prove defendant's guilt beyond a reasonable doubt; 2) the court failed to adequately control a prosecution witness during the witness's cross-examination; 3) evidence of uncharged crimes involving other forged checks was improperly admitted against the defendant; 4) the prosecutor improperly argued in summation that the evidence of the other forged checks established defendant's identity as the person who forged the checks underlying charges in the instant case; and 5) copies of checks were entered into evidence in violation of the best evidence rule.
On January 8, 2001, the Appellate Division, in a unanimous decision, affirmed defendant's judgment of conviction. People v. Lyons, 280 A.D.2d 615, 720 N.Y.S.2d 815 (2d Dep't 2001).
The Appellate Division held that the evidence of defendant's guilt was legally sufficient, Id. The Appellate Division also held that the trial court properly permitted the prosecution to introduce into evidence defendant's prior conviction. Id. It held that defendant's other claims were either unpreserved or without merit. Id.
Defendant applied for leave to appeal to the New York Court of Appeals. Defendant asked the Court of Appeals to review all the claims that he had raised in his appeal to the Appellate Division.
The New York Court of Appeals dented defendant's application for leave to appeal. People v. Lyons, 96 N.Y.2d 831, 729 N.Y.S.2d 452 (2001).
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 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 appeal11 docs 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 ` property 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 "pending" 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 does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 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 does 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 *4 ("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 entitled 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 it is 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 "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. Landy, 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, 6% 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 that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). 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 does 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 dented 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 Cir. 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 uncertainly 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. Coffins, 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 short, 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 right 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-"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 that "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 "reache[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." Purely 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 E2d 798, 803 (2d Cir. 1992), Appellate counsel does not have a duty to advance every nonfrivolous argument mat 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 that 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 lie 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 410, 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, Einaugler 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, 00-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-MISC-0066 (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-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-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-0806, 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
A.
The Appellate Division explicitly decided on the merits the claims that defendant raises in his habeas petition: that the evidence of defendant's guilt was legally insufficient and that the trial court improperly admitted evidence concerning the facts underlying defendant's prior conviction arising from his cashing of other forged checks. See People v. Lyons, 280 A.D.2d 615, 720 N.Y.S.2d 815 (2d Dep't 2001); see also Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Rejection of those claims was neither contrary to, nor involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court, Consequently, those claims are denied.
Those claims are without merit, The prior crimes were properly admitted in the exercise of discretion since they showed supplementation and motive.
B.
Defendant's claims regarding the admission of evidence of defendant's uncharged crimes and the alleged violation of the best evidence rule involve evidentiary issues that are matters of state law and do not involve federal constitutional questions. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (inquiry into whether evidence was admitted in violation of state law is not properly part of habeas review of state conviction); Roldan v. Artuz, 78 F. Supp.2d 260, 276 (S.D.N.Y. 1999).
Those claims are without merit since they appear to be acceptable evidentiary decisions not violating any constitutional right such as importation.
C.
Defendant's claim regarding the prosecutor's summation does not provide a basis to issue a writ of habeas corpus. "[T]he Supreme Court [has] instructed federal courts reviewing habeas claims premised upon prosecutorial misstatements in summation to distinguish between `ordinary trial error of a prosecutor and that sort of egregious misconduct . . . [which] amount[s] to a denial of constitutional due process'" Sales v. Harris, 675 F.2d 532, 541 (2d Cir.) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647-48), cert. denied, 459 U.S. 876 (1982), "Prosecutorial statements, even though they may be improper or unethical, are usually not enough to warrant granting a petition." Donaldson v. Dalsheim, 508 F. Supp. 294, 297 (S.D.N.Y.), aff'd, 672 F.2d (2d Cir. 1981), cert. denied, 455 U.S. 951 (1982). A prisoner is entitled to habeas corpus relief on the basis of a prosecutor's summation only if the prosecutor's summation was so fundamentally unfair as to deny the prisoner a fair trial, Castro v. Sullivan, 662F. Supp. 745, 751 (S.D.N.Y. 1987); Donnelly, 416 U.S. at 642-43, 645, 647-48.
Defendant's claim regarding the prosecutor's summation is without merit. The arguments responded to defendant's contentions and were appropriate.
D.
Defendant's claim regarding the trial court's alleged failure to adequately control a prosecution witness during the witness's cross-examination is without merit.
Defendant did not present to the trial court the claim that the court did not adequately control Francesca Lyons's behavior during defendant's cross-examination of her, While defendant at one point asked the court to "control" Francesca Lyons, the court sustained defendant's objections (416). Defendant did not thereafter complain that the court's sustaining of defendant's objections was an insufficient response to his request. Insofar as defendant is arguing that Francesca Lyons's conduct created a "circus atmosphere," that Francesca's hostile remarks toward him unfairly prejudiced him, or that Francesca's conduct prevented him from effectively cross-examining her, defendant also did not present those claims to the trial court. In the majority of instances when defendant objected to Francesca's remarks, the trial court sustained the objections (see, e.g., 313, 318, 319, 333, 336, 349, 350, 353, 354, 356, 369, 374, 394-96, 403-04, 408), Defendant never moved for a mistrial Hence, all of those claims are unpreserved for appellate review.
Defendant's motion for a mistrial at the end of Francesca Lyons's testimony did not preserve the claims that the trial court failed to control Francesca adequately, that her answers prejudiced him, or that her conduct prevented him from effectively cross-examining her. With respect to Francesca Lyons's conduct, defendant merely complained that, "at least 50 times during cross-examination," the defense objected to her "continuing on answers and just coming out and saying whatever she wanted at anytime" even though the trial court sustained the defense objections (483), That complaint neither criticized the court's conduct nor pointed out how Francesca Lyons's answers might have prejudiced him.
The trial court made an adequate effort to control Francesca Lyons's behavior. Contrary to defendant's assertion that the trial court allowed Francesca Lyons's "behavior to continue without an instruction or warning throughout nearly her entire cross-examination, the trial court, without any prompting from defendant, urged her to try not t get emotional and to answer the questions directly (313-14), and the court thereafter often intervened to instruct her on how to behave ( see, e.g., "[P]lease try to answer directly a question asked of you" [333]; "Don't say anything more out of line" [336]; "Wait for the question" [336]; "Try and control yourself" [340]; "Calm down and wait for the question" [343]; "No questions from the witness" [358]; "[I]n the interest of saving time, if you can answer a question `yes' or `no', please answer it `yes' or `no'" [432]).
The trial court's efforts to control Francesca Lyons's conduct were adequate under the circumstances. First, at the time she testified, Francesca Lyons was sixty-five yeras old; was suffering from chronic obstructive pulmonary disease, emphysema, and asthma; and had to breathe with the assistance of supplemental oxygen flowing through a tube into an opening in her neck. As the trial court noted, "[T]his woman is in dire straits" (321), Given Francesca Lyons's physical vulnerabilities, the trial court had to treat her more delicately than it might have treated a healthy witness. Second, given the hostile relationship between defendant and his mother — which was in part due to the fact that defendant's mother believed that defendant had attempted to kill her, had forged her personal checks, and had used her name without her permission to obtain money from Western Union — defendant's cross-examination of his mother had to be extremely provocative to her, Thus, the negative reaction of Francesca Lyons to defendant's cross-examination was almost unavoidable. Third — and perhaps because of the extreme provocation to Francesca Lyons inherent in defendant's cross-examination of her — it apparently was very difficult for her to control herself: despite the court's admonitions to Francesca Lyons, she persisted in making hostile remarks to defendant or otherwise answer defendant's questions inappropriately. In light of all these factors, it is unclear what more the trial court could have done to change Francesca Lyons's conduct, especially since her medical problems made it difficult for the court to chastise her more severely or to threaten her with contempt. As Dr. Sanders testified, a traumatic experience could cause her heart rate to increase, which could possibly lead to her dying.
This claim has no merit.
XIV. Conclusion
Those claims not discussed in this memorandum are frivolous,
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may, as already indicated, seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.