Opinion
02-CV-6357 (JBW), 03-MISC-0066
October 28, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary, This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on December 4, 2002. Petitioner, sometimes referred to as defendant, contends;
POINT NUMBER ONE
The introduction of inadmissible evidence at the Grand Jury presentment, in the form of [hearsay] and uncharged crimes evidence which the lower court found to be prejudicial impaired the integrity of the proceedings within the meaning of criminal procedure law 210.25(5), requiring a dismissal of the indictment, (see: 6 and 14 Amends, USCA and N.Y.S. Const, Article 1 Section 6).POINT NUMBER TWO
In this prosecution for Sexual offenses allegedly committed against a child, (A) the testimony of the People's expert witness regarding child Sexual Abuse Syndrome exceeded permissible bounds when the expert told the jury that, in his opinion, it was impossible for a 13-year old child to memorize a scripted presentation of fabricated testimony and (B) the prosecutor's remarks in summation stressing that aspect of the expert's testimony while also mischaracterizing the defense and referring to matters not in evidence, singly and in combination denied appellate-petitioner his Due Process right to a fair trial. (U.S. Const, Amend. 14; N.Y.S. Const. Article 1 Section 6),
The evidence supports the following statements:
In the summer of 1995, defendant began to live with Ruth Ash, Shana Ash's mother, at 653 Euclid Avenue in Brooklyn. During that time, defendant committed acts of sexual abuse against Shana Ash. Once between June 1 and August 1, 1995, when Shana Ash was nine years old, defendant rubbed his penis on her face and put his penis into her vagina, In December of 1995, when Shana Ash was ten years old, defendant put his penis in her mourn and her vagina and put his finger into her vagina and anus. On February 12, 1996, after Shana Ash and her family had moved to 536 Logan Street in Brooklyn, defendant again put his penis in Shana Ash's mouth.
For acts occurring between June 1 and August 1, 1995, defendant was charged under Kings County Indictment Number 8126/98 with Rape in the First Degree (N.Y. Penal Law § 130.35), Sexual Abuse in the First Degree (N.Y. Penal Law 5 130.65[3]) (two counts), Sexual Abuse in the Second Degree (N.Y. Penal Law § 130.60) (two counts), and Endangering the Welfare of a Child (N.Y. Penal Law § 160.10).
For acts occurring between December 1 and December 31, 1995, defendant was charged under Kings County Indictment Number 8126/98 with Rape in the First Degree (N.Y. Penal Law § 130.35), Sexual Abuse in the First Degree (two counts), Sexual Abuse in the Second Degree (N.Y. Penal Law § 130.60) (two counts), Aggravated Sexual Abuse in the Second Degree (N.Y. Penal Law § 130.6(5 [c]) (two counts); Sodomy in the First Degree (N.Y. Penal Law 130, 50[3], and Endangering the Welfare of a Child (N.Y. Penal Law § 260.10).
For acts occurring on February 1 and February 9, 1996", defendant was charged under Kings Counts Indictment Number 8126/98 with Rape in the First Degree (N.Y. Penal Law § 130.35, Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65) (two counts), Sexual Abuse in the Second Degree (N.Y. Penal Law § 130.60) (two counts), Sodomy in the Second Degree (N.Y. Penal Law § 13 0.50 [3]), and Endangering the Welfare of a Child (N.Y. Penal Law § 260, 10[1].,
On August 18, 1999, following a jury trial in New York Supreme Court, Kings County, the jury returned a verdict, finding defendant guilty of two counts of Sexual Abuse in the First Degree (N.Y. Penal Law § 130, 65[3]) and two counts of Endangering the Welfare of a Child (N.Y. Penal Law § 260.20).
On September 8, 1999, defendant was sentenced to consecutive prison terms of two to four years for the two counts of first-degree sexual abuse and concurrent prison terms of one year for the two counts of endangering the welfare of a child.
On September 23, 1999, the court resentenced defendant to consecutive prison terms of two to six years for the two sexual abuse convictions, with the two one-years sentences for the convictions of endangering the welfare of a child to run concurrently with the term of the first sexual abuse count.
Defendant appealed from his judgment of conviction to the Appellate Division, In the brief filed by his appellate counsel defendant raised the following claims:
(1) that the introduction of inadmissible evidence at the grand jury presentment, namely the medical records of the complainant's brother, containing hearsay and uncharged crimes evidence which the lower court found to be prejudicial, impaired the integrity of the proceeding within the meaning of Criminal Procedure Law § 210, 25(5), requiring dismissal of the indictment;
(2) that in this prosecution for sexual offense allegedly committed against a child, (a) the testimony of the People's expert witness regarding child sexual abuse syndrome exceeded permissible bounds when the expert told the jury that, in his opinion, it was impossible for a 13-year-old child to memorize a scripted presentation of fabricated testimony and (b) the prosecutor's remarks in summation stressing that aspect of the expert's testimony while also mischaracterizing the defense and referring to matters not in evidence denied defendant his due process right to a fair trial; and
(3) the court's manner of correcting defendant's partially illegal sentence was error requiring a modification of the sentence, and the sentence was otherwise unduly harsh and excessive and should be reduced in the interest of justice.
On November 13, 2001, by written decision and order, the Appellate Division ordered defendant's appeal held in abeyance and remitted the case to the New York Supreme Court, Kings County, to hear and report on whether the complainant's brother's hospital records were exhibited to the grand jury that indicted defendant. People v. Ocean, 288 A.D.2d 330, 733 N.Y.S.2d 619 (2d Dep't. 2001).
Following the submission of the original grand jury minutes and affidavits of the two grand jury stenographers, indicating that no medical records were exhibited or mentioned to the grand jury, the New York Supreme Court, Kings County issued a written report of findings, dated December 20, 2001, concluding that no medical records were exhibited to the grand jury.
On March 18, 2002, by written decision and order, the Appellate Division modified defendant's sentence relating to the December 1995 count of first-degree sexual abuse, reducing the prison term to two to four years and, as modified, unanimously affirmed defendant's judgment of conviction. People v. Ocean, 292 A.D.2d 545, 739 N.Y.S.2d 735 (2d Dep't 2002), With respect to defendant's grand jury claim, the Appellate Division stated, "We agree with the Supreme Court's factual finding, after conducting a review of the original transcript of the grand jury minutes, and sworn affidavits of the grand jury reporters, that there is no evidence that the medical records of the minor complainant and her brother were exhibited to the grand jury." Id., 292 A.D.2d at 546, 739 N.Y.S.2d at 736. The Appellate Division also ruled that defendant's argument that the testimony of the prosecution's expert improperly bolstered the complainant's testimony and defendant's challenges to the prosecutor's summation remarks were unpreserved for appellate review under New York Criminal Procedure Law section 470.05(2) and were, in any event, without merit. Id
By letter dated April 4, 2002, defendant's appellate counsel sought leave to appeal to the New York Court of Appeals. On July 10, 2002, defendant's application for leave to appeal to the New York Court of Appeals was denied by a judge of the New York Court of Appeals. People v. Ocean, 98 N.Y.2d 700, 747 N.Y.S.2d 419 (2002),
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, 117 (10th Cir. 1999)). Under the "contrary to" clause, "a. federal habeas court may giant 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," Over ton 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(c)(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 rim 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 Slate post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2), The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations, Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application, See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000), "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "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 arc 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, 153 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v, Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be dented 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 invoices 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 denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d 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 uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice., i.e., that he is actually innocent of the crime for which he has been convicted," Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002),
Because habeas corpus "is, at its core, an equitable remedy." Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted), To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 331, `To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in 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," Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003),
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id, at 691, Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy-a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511 at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689,
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it, See Rodriguez v. Hake, 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 art ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted, See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), Either a federal or a state law claim 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 Civ, 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-0060" (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-00G6 (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.
Complaints of Grand Jury errors do not implicate a federal issue since defendant has been found guilty after a trial. See Lopez v. Riley, 865 F.2d 30 (2d Cir. 1989),
This issue has no merit.
B.
Defendant's claim concerning the admission of testimony by the prosecution's expert. Dr. Lewittes, and certain summation remarks by the prosecutor is barred from federal habeas review on an adequate and independent state ground. At trial, defendant failed to preserve this claim (the claim lie raised in Point II of his Appellate Division brief) for appellate review, as required under New York's contemporaneous objection rule. See N.Y. Crim. Proc, Law § 470.05(2),
In its decision on appeal, the Appellate Division, citing New York Criminal Procedure Law section 470.05(2), expressly ruled that defendant had failed to preserve for appellate review his arguments concerning the expert's testimony and the prosecutor's summation. People v. Ocean, 292 A.D.2d 545, 546, 739 N.Y.S.2d 735, 736 (2d Dep't 2002).
Defendant's failure to make a specific objection at trial to the challenged expert testimony and remarks of the prosecutor is a procedural default that provides an adequate and independent state ground barring consideration of his claim on the merits in federal court unless defendant can show cause for the procedural default and resulting prejudice or a miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 729-32, 750 (1991); Harris v. Reed, 489 U.S. 255, 252 (1989); Murray v. Carrier, 477 U.S. 478, 492 (1986); Eagle v. Isaac, 456 U.S. 107, 110 (1982).
Mere errors of state criminal law do not entitle a petitioner to federal habeas corpus relief. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000 (1983). Habeas corpus relief will lie only if an error of state law impinged on the petitioner's federal constitutional rights. See Wainwright v, Goode, 464 U.S. 78, 83-84(1983).
A state court's evidentiary rulings normally do not present constitutional issues cognizable in a habeas corpus petition.
The propriety of comments made by a prosecutor on summation generally does not present a federal constitutional question. See Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Even if a prosecutor's remarks were undesirable or even universally condemned., that is not enough to show a constitutional violation. See Durden v. Wainwright, 477 U.S. 168, 181 (1986). Improper remarks by a prosecutor rise to the level of a federal constitutional violation only when the remarks were so prejudicial that they rendered the trial fundamentally unfair. Floyd v. Meacham, 907 F.2d 347, 355 (2d Cir. 1991); see Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974); Gonzalez v. Sullivan, 934 F.2d at 424. The challenged remarks of the prosecutor in this case did not rise to such a level.
Even if defendant's claims presented a federal question, they would not warrant relief under the federal habeas statute. Under section 2254(d) of the federal habeas statute, an application for a writ of habeas corpus "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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.
Section 2254(d)(1) of the amended habeas statute "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court," Williams v, Taylor, 529 U.S. 362, 412 (2000) (O'Connor, J.).
The Appellate Division reasonably rejected defendant's contentions concerning the testimony of the prosecution's expert and the prosecutor's summation. The Appellate Division's rejection of the arguments raised in Point II of defendant's Appellate Division brief, now raised in ground two of defendant's petition, was not contrary to, nor involved an unreasonable application of, "clearly established Federal law" as determined by the Supreme Court. 28 U.S.C § 2254(d)(1), Nor did the Appellate Division's determination involve an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2),
Defendant's argument in ground two that the court erred in allowing the prosecution's expert to testify concerning whether a child of the complainant's age could be coached to testify about sexual knowledge is not the basis for a constitutional objection. The Appellate Division observed that when the expert's testimony was elicited on direct examination, the trial court struck the question and answer and properly instructed the jury to disregard it, but on cross-examination, defense counsel opened the door to the issue, thereby allowing the prosecutor to explore on the subject on redirect examination. Ocean, 292 A.D.2d at 546, 739 N.Y.S.2d at 736.
Defendant also challenges the prosecutor's summation. Viewed as a whole and in the context of defense counsel's remarks, see Darden v, Wainwright, 477 U.S. at 179; United States v. Young, 470 U.S. 1, 12 (1985), the prosecutor's summation remarks did not amount to federal constitutional error. A criminal conviction "is not to be lightly overturned on the basis of a prosecutor's comments standing alone." Young, 470 U.S. at 11. The Appellate Division noted that the challenged comments "were either within the bounds of permissible rhetorical comment afforded counsel during summation, constituted fair comment on the evidence, or related to matters which were fairly inferable from the evidence." Ocean, 292 A.D.2d at 546, 739 N.Y.S.2d at 736.
Any error in the admission of the challenged portion of the testimony of the prosecution's expert or in the prosecutor's remarks was harmless, See Brecht v. Abrahamson, 507 U.S. 619, 637-39 (1993) (constitutional trial error does not warrant habeas relief unless error had substantial and injurious effect or influence on verdict); Bentley v. Scully, 41 F.3d 818, 825 (2d Cir. 1994), cert. denied, 516 U.S. 1152 (1996); People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213 (1975) in view of the strong evidence of guilt.
This series of claims has not merit,
XIV. Conclusion
The petition for a writ of habeas corpus is denied,
This case, involving a sex crime against a child creates some room for doubt about guilt,
A certificate of appealability is granted with respect to the testimony of the expert. In these sex issue cases the possibility of false charges is substantial. Petitioner may as already indicated, seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.