Shields v. Duncan

Full title: JOHN R. SHIELDS, Petitioner, -against- GEORGE B. DUNCAN, Superintendent of…

Court: United States District Court, E.D. New York

Date published: Oct 20, 2003

02-CV-6713 (JBW), 03-MISC-0066 (JBW) (E.D.N.Y. Oct. 20, 2003)

Opinion

02-CV-6713 (JBW), 03-MISC-0066 (JBW)

October 20, 2003

MEMORANDUM, JUDGMENT ORDER

JACK WEINSTEIN, Senior District Judge

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 January 20, 2002. Petitioner (sometimes referred to as defendant) claims (emphasis in original):

1) The oral, written, and video statements, obtained from the defendant, as well as the other physical evidence, garnered by the police, should have been suppressed as having been obtained as the product of Constitutional Violations.

2) The defendant was denied the effective assistance of counsel by the failings of counsel as follow: To argue at the Pre-Trial hearing for suppression of the statements and other evidence, obtained as a result of Constitutional Violations of the defendant; To raise the affirmative defense of Extreme Emotional Disturbance: and to request a charge to the jury of Voluntariness.

3) Based as it was on evidence that was unreliable and of insufficient weight the verdict cannot be supported and is in violation of the defendant's Constitutional Rights to be convicted only were [ sic] guilt has been established beyond a reasonable doubt.

4) The sentence imposed on the defendant was unduly harsh and Excessive and should be Reduced in the Interest of Justice, When the defendant not knowingly and Intelligently Waived his Rights and gave a consent to search his house and provide a Videotaped statement, give[n] while the defendant was clearly under the influence of drugs and alcohol,

The evidence supports the following statement:

On October 10, 1999, at about 5:45 a.m., at their home in Uniondale, New York, petitioner accused his wife, Michele Mays, of being unfaithful and aimed a shotgun at her. Petitioner demanded that she admit to her infidelity, He then killed her with shotgun fire. When the police arrived, they found, among other things, the shotgun and forty-five packets of cocaine.

Petitioner was charged, by Nassau County Indictment 422N/00, with intentional murder (N.Y. Penal Law § 125.25[2]), and fourth-degree criminal possession of a control led substance (N.Y. Penal Law § 220, 09),

On April 17, 18, and May 2, 2000, the County Court conducted a hearing to determine whether the police had probable cause for petitioner's arrest and whether petitioner's pretrial statements and the physical evidence recovered from his home would be admissible at his trial, At the hearing, police officers testified to what they found at the scene of the shooting and to petitioner's various inconsistent explanations of the events at that time. Detectives testified to the circumstances surrounding petitioner's oral, written, and videotaped confessions, to petitioner's written consent to search his home, and to the physical evidence that was recovered,

At the end of the hearing, petitioner's counsel acknowledged that the police had probable cause to arrest petitioner, and that petitioner's statements and the physical evidence obtained pursuant to the consent search would be admissible at the trial (H 182-85).

In a written decision arid order dated May 2, 2000, the County Court noted that petitioner had conceded his suppression claims, and, in any event, it found that the police had probable cause for petitioner's arrest, that the physical evidence was properly seized as either in plain view or pursuant to a valid consent, and that petitioner's statements were voluntarily given. Petitioner's motion to suppress was "denied in all respects" (Decision and Order at 7-9).

On October 10, 1999, petitioner lived at 615 Uniondale Avenue in Uniondale, with his wife, Michele Mays, Michel's sixteen-year-old son Brian, petitioner's son Shamel, petitioner's brother Ray Shields, and Ray's girlfriend, Nakeisha Brown (323-26, 385-88). Brian Mays and Nakeisha Brown both testified at petitioner's trial,

Just before 6 a.m. on Sunday morning, October, 10, 1999, Ray Shields and Nakeisha Brown were asleep in their room when Michele Mays entered, followed by petitioner. They were arguing and wakened Brown (388-89, 404). Petitioner was repeating something about a man being in Mays's closet (389, 406, 412), On prior occasions, too, Brown had heard petitioner accuse Mays of having been with a former boyfriend, Flave" (411-12). Mays implored Ray to make petitioner leave her alone (390).

Petitioner stepped out of the bedroom for a moment, and when he returned he had a shotgun in his hands (390), Petitioner stood in front of Mays, pointing the gun at her with both hands; holding the gun at about shoulder-height with one hand at the back of the gun and the other toward the middle, the gun was pointed at her head and neck, about three feet away (390-92, 304), Petitioner was repeating, "[S]top fuckin' lying to me. Tell me the truth right now, " All of a sudden, the gun went off and Mays fell (392, 407). No one grabbed for the gun before it went off (393).

After his wife fell, petitioner kept saying he could not believe it and tried to awaken Mays (Brown; 395, 408), He then went into Brian Mays's bedroom on Brian's bed, and told him to call the police (328, 357, 408),

Police Officer David Desenchak, Robert Bacich, and Brian Par pan testified to what they encountered at the scene of the crime (358-82, 413-19, 425-37). Petitioner told them differing versions of the incident. First, he said that someone was in the house and shot his wife (417, 429), Then, he said that his wife had been holding the gun, and it went off when his brother Ray grabbed for it (417, 430). The officers were of the opinion that petitioner was under the influence of alcohol, but that he was not so drunk; that they had difficulty understanding what he was saying (376-77, 379, 418-19, 433-34, 436-37),

Detectives John Volpe and Jerald Mullen testified to the circumstances surrounding petitioner's waiver of his Miranda rights, his oral and written confessions, and his written consent to search his home (576-645, 646-78), He gave the detectives several different versions of the incident. First, he claimed that Mays had been holding the shotgun and that it went off when he grabbed for it (584). A short time later, he said that his brother had shot Michele (586). Finally, he admitted that he pointed the shotgun at his wife, that he told her not to lie to him, and that it went off while he was holding it (593-95).

Detectives John Lapine and Robert DiPietro testified to the search of petitioner's home and the recovery of the shotgun, various shells, a wallet containing petitioner's Social Security card and forty-five packets of cocaine, a crack pipe, and small bag with an additional amount of cocaine (463-85, 529-39), The parties stipulated that the glassine envelopes found in the wallet contained cocaine weighing.129 ounces, and that the bag found in the second-floor master bedroom contained, 001 ounces of cocaine (695-96).

Assistant District Attorney Daniel Looney testified about the circumstances surrounding petitioner's videotaped statement (684-86). The videotape was played for the jury (689). In the tape, petitioner claimed that, at first, he pointed the gun toward the window. When Mays told him that she was going to tell him the truth and admitted to having had sex with Flave in the bed she shared with petitioner, petitioner moved the gun toward her. He said at various limes that Mays pushed the barrel and the gun went off, and that it went off when his brother Ray pushed his hand ( see transcript of videotape, pp. 60-65).

Deputy Chief Medical Examiner Tamara Bloom performed the autopsy on Michele Mays and testified that, based upon the track of and stippling around the wound, Mays had been kneeling or sitting two to five feet from the muzzle of the gun when the shot was fired (498, 506, 512). The shot went into her left shoulder and chest and perforated her lungs, aorta, and spinal cord (495). Dr. Bloom also opined that, if someone had tried to move the muzzle with his or her hand, there would have been signs of burning or soot on the hand. Michele Mays's hands had no such signs (510).

Detective Robert Nemeth of the Scientific Investigation Bureau of the police department testified that the shotgun found in petitioner's backyard was operable, and the fragments and pellets recovered from Mays's body were consistent with the type of buckshot found in a shell from the shotgun (544-56), Nemeth testified also that, because the trigger of the gun required six to six and one-half pounds of pressure, the gun would not fire simply because someone banged on the muzzle, or because the gun was shaken up and down (551-52).

The defense presented no witnesses at the trial (697). The trial court submitted to the jury, in the alternative, two counts of second-degree murder (intentional and depraved-indifference), the lesser crimes of second-degree manslaughter and criminally negligent homicide, and one count of criminal possession of a controlled substance in the fourth degree.

The jury found petitioner guilty of depraved-indifference murder and the drug-possession charge (873-74).

On December 4, 2000, petitioner was sentenced to an indeterminate prison term of twenty-one years to life for die murder and a concurrent indeterminate prison term of five to ten years for the drug possession (S, 17-18, 29),

In papers dated April 25, 2001, and supplemented on May 31, 2001, petitioner moved the County Court, Nassau County, for an order vacating his judgment of conviction on the ground of ineffective assistance of trial counsel, He claimed that his trial counsel failed to prepare adequately for trial, failed to seek a competency examination, and failed to raise the affirmative defenses of extreme emotional disturbance and insanity. In addition, petitioner argued that his conviction should be vacated on the basis of newly discovered evidence, consisting of videotapes of his treatment in jail after the murder, which he claimed should have been turned over to the defense prior to trial as Rosario material ( see People v. Rosario, 9 N.Y.2d 286).

In an order dated September 25, 2001, the County Court denied petitioner's motion, holding that he had failed to offer any evidence supporting his claims of incompetence, insanity, or extreme emotional disturbance, and that, therefore, he had not established that the representation afforded him was less than "meaningful" for failing to raise those claims (citing People v. Baldi, 54 N.Y.2d 137). With respect to the alleged newly discovered evidence and Rosario violation, the court found that, because the videotapes were made after the crimes and did not record any of the People's witnesses at the trial, they did not constitute Rosario material,

Petitioner did not seek permission to appeal from the September 25, 2001 order of the County Court.

In his direct appeal from his judgment of conviction, petitioner, by assigned counsel, raised four claims: (1) the trial court should have suppressed petitioner's statements and the physical evidence because he was too intoxicated to have validly waived his Miranda rights or consent to a search; (2) petitioner was denied the effective assistance of trial counsel; (3) the evidence of petitioner's guilt was legally insufficient and against the weight of the evidence; and (4) petitioner's sentence was unduly harsh and excessive,

In a Decision and Order dated June 3, 2002, the Appellate Division held that petitioner's suppression claim was unpreserved for appellate review because he had withdrawn it at the close of the hearing, and that, in any event, the claim was meritless. The court held further that the evidence of petitioner's guilt was legally sufficient, the verdict was not against the weight of the evidence, and petitioner's remaining claims were without merit. People v. Shields., 295 A.D.2d 374 (2d Dept. 2002).

In an application for leave to appeal to the New York Court of Appeals, petitioner raised the same claims he raised in the Appellate Division. Leave to appeal to the Court of Appeals was denied on October 8, 2002. People v. Shields, 98 N.Y.2d 772 (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 man 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 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 `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 docs 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.V. 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 latitude11 in meeting filing requirements, Brown v. Superintendent, 1998 US, 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 al *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 ease 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 jurisdiction al and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable lolling . . . 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. 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 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 US, 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 event11 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.11 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. 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, S7-88 (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 o flack 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 alter 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 mat 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, 53S (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 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 mat 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 me 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-OS60, 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, 9S-CV-7S37, 00-MTSC-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 doubt11 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.

Petitioner claims that his statements and the physical evidence obtained pursuant to his consent to search should have been suppressed because he was too intoxicated to have executed a knowing, intelligent, and voluntary waiver of his Miranda rights or a valid consent to search. Because petitioner waived this claim at the conclusion of his suppression hearing, and the Appellate Division denied the claim expressly on the procedural ground that it was unpreserved for appellate review, this claim is barred from federal habeas review.

Because of comity and federalism concerns, and the requirement that states be given the first opportunity to correct their own mistakes, federal courts generally may not entertain claims of constitutional violations that have been procedurally barred from review in the state courts, See Coleman v. Thompson, 501 U.S. 722, 729-32 (1991); Teague v. Lane, 489 U.S. 288, 298-99 (1989); Reed v. Ross, 468 U.S. 1, 11 (1984); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977). In Harris v. Reed, 489 U.S. 255, 261 (1989), the Supreme Court held that this procedural bar applies in habeas corpus proceedings in any ease where the state court's decision contains a "plain statement" that it is relying, at least in part, on the appropriate state procedural rule in deciding the claim,

Here, the Appellate Division made just such a plain statement:

The petitioner's contention that his waiver of his Miranda rights . . . and his consent to search his residence were rendered ineffective by intoxication is not preserved for appellate review . . . because the petitioner withdrew his objection to the admission of his statement to law enforcement officials and certain physical evidence seized from his residence.

People v. Shields, 295 A.D.2d 374 (2d Dept, 2002) (citations omitted). That the Appellate Division noted that the claim was, in any event, without merit does not render the procedural bar any less explicit or dispositive in this federal habeas corpus proceeding, See Harris v. Reed, 489 U.S. 264 n. 10; Lewis v. Garcia, 188 F.3d 71, 77 (2d Cir. 1999).

There was no impediment to preserving this claim for appellate review other than defense counsel's decision to make a candid assessment of the law and the facts. Moreover, because the arguments in favor of suppression were entirely meritless, petitioner cannot demonstrate any prejudice resulting from his counsel's concessions or from this court's inability to reach the merits of this claim. Nor does petitioner offer a colorable claim of a fundamental miscarriage of justice. The Supreme Court has defined a fundamental miscarriage of justice in this context to be the conviction of a person who is actually innocent of the crime. See Schlup v. Delo, 513 U.S. 298, 322-23 (1995), Petitioner has not made a showing of actual innocence. He does not dispute that he wielded the gun that killed his wife. Thus, his claim is procedurally barred from review in this habeas corpus proceeding,

In any event, as the Appellate Division concluded in its alternative holding, petitioner's claim is without merit, See People v. Shields, 295 A.D.2d 374, Evidence of a defendant's intoxication is but one factor in determining whether a waiver is knowing and intelligent. See, e.g., Alvarz v. Keane, 92 F. Supp.2d 137, 150 (E.D.N.Y. 2000); Avincola v. Stinson, 60 F. Supp.2d 133 160 (S.D.N.Y. 1999), Here, although there was evidence that petitioner had been drinking or using drugs, the changing versions of his story indicated a considered, deliberate attempt to divert responsibility to his brother and then to portray the shooting as an accident. Hence, contrary to petitioner's claims, his statements revealed a clearness of mind and an understanding of what he was saying.

Petitioner's videotaped statement, together with the testimony of the police witnesses who testified that petitioner was lucid, albeit upset, fully supports the state appellate court's conclusion that his intoxication claim was meritless. Absent clear and convincing evidence to the contrary — which is totally lacking here — the state court's decision that petitioner's degree of intoxication was not so great as to vender him unable to execute a valid waiver of rights will be presumed to be correct. See 28 U.S.C. § 2254(e)(1), The state court's decision is not erroneous, much less so "unreasonable" as to warrant habeas corpus relief. See 28 U.S.C. § 2254(d).

To the extent that petitioner might also be claiming that the police lacked probable cause for his arrest, this claim is baited from habeas review for two reasons. Like petitioner's intoxication claim, his probable cause claim was unpreserved for appellate review in the state courts ( see Coleman v. Thompson, 501 U.S. at 729-32). In addition, this Fourth Amendment claim is baited pursuant to Stone v. Powell, 428 U.S. 465 (1976), since there was a full hearing on the matter. The hearing record reveals that petitioner was not arrested until after he told the police contradictory versions of his wife's shooting and Nakeisha Brown told the police that petitioner shot his wife. Given these facts, the officers had probable cause for petitioner's arrest.

This series of claims has no merit.

B.

Petitioner claims, as he did on his direct appeal, that he is entitled to habeas corpus relief because his trial counsel was ineffective for: (1) conceding, at the close of the suppression hearing, the admissibility of the evidence; (2) failing to raise the affirmative defense of extreme emotional disturbance; and (3) failing to request a jury instruction on the voluntariness of petitioner's oral, written, and videotaped statements.

To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate that, in light of all the circumstances, the acts or omissions of counsel fell outside the wide range of professional competence, and that the petitioner suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 690 (1984); Lindstadt v. Keane, 239 F.3d 191, 193-99 (2d Cir. 2001), To meet this substantial burden, petitioner must overcome the strong presumption that his counsel rendered adequate assistance and exercised reasonable professional judgment. Strickland, 466 U.S. at 688-89; United States v. Cronic, 466 U.S. 648, 658 (1984); Lindstadt, 239 F.3d at 199.

In the context of a habeas corpus proceeding, a petitioner must also establish that the decision of the state court denying relief on this basis was "objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, Petitioner cannot sustain this heavy burden.

Counsel's decision to concede, at the close of the suppression hearing, the lawfulness of petitioner's arrest and voluntariness of his statements was tactically sound. Petitioner's counsel could reasonably conclude that there were no viable arguments to be made for suppression. Counsel's professional judgment in this regard was validated by the order of the County Court, which — notwithstanding that petitioner's counsel had effectively withdrawn his suppression motion — analyzed the testimony at the hearing, found probable cause for petitioner's arrest, and concluded that petitioner's consent to search and waiver of Miranda rights were knowing, intelligent, and voluntary. Because any arguments to the contrary would have been futile, petitioner's counsel cannot be faulted for failing to make them.

Counsel's decision to use petitioner's pre-trial statements in his defense of petitioner demonstrated reasonable professional judgment. Faced with overwhelming evidence that petitioner shot his wife, petitioner's counsel argued that petitioner was too intoxicated to form the intent to kill, and that the shooting was no more than a tragic accident. In support of that theory, counsel pointed to those portions of petitioner's statements wherein he tried to explain that the shooting was an accident. Furthermore, although realizing that there was no sound basis for suppression of the statements and physical evidence, defense counsel, by obtaining a hearing on the suppression motion, gained valuable pre-trial discovery that would not have been otherwise available.

Petitioner's contention regarding the affirmative defense of extreme emotional disturbance misapprehends the applicability of that defense to the defense theory at his trial. It was defense counsel's strategy to: (1) rebut the intentional murder with the evidence of intoxication; (2) argue that the shooting was an accident in any event; and (3) if the jurors found petitioner criminally liable, to have them return a verdict of guilty of one of the lesser crimes of second-degree manslaughter or criminally negligent homicide.

This was a reasonable strategy, and the defense of extreme emotional disturbance did not fit within it. First, because it is an affirmative defense, the burden would have been on the petitioner to establish that he was acting under the influence of such a disturbance. See N.Y. Penal Law § 25.00(2); People v. Roche, 98 N.Y.2d 70 (2002), Second, in order to raise a defense of extreme emotional disturbance, petitioner's counsel would have had to acknowledge that the killing was intentional ( see N.Y. Penal Law § 125.20[2]), thereby eliminating any chance petitioner had of being convicted of the lesser claims of second-degree manslaughter or criminally negligent homicide ( see N.Y. Penal Law §§ 125, 15[1], 125.10),

Counsel was well aware that, along with intentional murder, petitioner was also charged with depraved indifference murder ( see N.Y. Penal Law § 125.25[2]), and that the defense of extreme emotional disturbance is not a defense to depraved-indifference murder. See People v. Fardan, 82 N.Y.2d 638 (1993). Because depraved-indifference murder is the crime for which petitioner was convicted, it is difficult to see how he was prejudiced by his trial counsel's failure to seek a jury charge on extreme emotional disturbance, Counsel cannot be faulted for opting for the theory that had the most chance of success and for wanting to avoid, as a matter of trial strategy, the presentation of inconsistent defenses.

Petitioner's trial counsel was not remiss for failing to request a jury instruction on the voluntariness of petitioner's statements, The likelihood that the jury would have found petitioner's statements involuntary was extremely small And, as already noted, as long as the statements were admitted into evidence, petitioner's counsel chose to use them to support his theory that the shooting was an accident.

This claim has no merit.

C.

No other possible claim rises above the frivolous

XIV. Conclusion

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 certificate of appealability from the Court of Appeals for the Second Circuit,

SO ORDERED.