Summary
denying unexhausted claim in mixed petition where the "petitioner offer[ed] no facts whatever to bear out his assertion that the prosecutor intentionally presented unspecified false evidence at trial"
Summary of this case from Monroe v. SmithOpinion
06 Civ. 2054 (LAK).
September 15, 2006
ORDER
Petitioner was convicted in New York Supreme Court, New York County, of two counts of forgery in the second degree and two counts of offering a false instrument for filing in the first degree and sentencing principally to a term of imprisonment of four to eight years. The conviction was affirmed by the Appellate Division and leave to appeal was denied. People v. Pettus, 20 A.D.3d 369, 799 N.Y.S.2d 53 (1st Dept.), Iv. denied, 5 N.Y.3d 855, 806 N.Y.S.2d 175 (2005). His motion to vacate the conviction pursuant to N.Y. Crim. Proc. L. § 440.10 was denicd as was his application to appeal from that order. He now seeks a writ of habeas corpus, arguing that (1) he was tried in the wrong county, (2) the grand jury minutes should be released, and (3) the prosecutor intentionally presented unspecified false evidence at trial.
This is a mixed petition, as it includes unexhausted claims. The Court nevertheless may deny it on the merits pursuant to 28 U.S.C. § 2254(b)(2), at least of the claims are plainly meritless. See Resp. Mem. at 13 n. 6.
The venue claim and the request for disclosure of grand jury minutes are frivolous, as they present only state law issues not cognizable in a federal habeas proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68.
Although federal courts are obliged to construe pro se filings like that here "to raise the strongest arguments that they suggest," Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996), "wholly conclusory and inconsistent allegations" nevertheless are insufficient. See Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993). Petitioner offers no facts whatever to bear out his assertion that the prosecutor intentionally presented unspecified false evidence at trial. In consequence, that claim too is frivolous.
It is unexhausted as well.
Accordingly, the petition is denied and the proceeding dismissed. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.