Soto v. Greiner

Full title: ALBERT SOTO, Petitioner, v. CHARLES GREINER, Superintendent, Green Haven…

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

Date published: Jul 24, 2002

02 Civ. 2129 (SHS) (AJP) (S.D.N.Y. Jul. 24, 2002)

Opinion

02 Civ. 2129 (SHS) (AJP)

July 24, 2002

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge.

To the Honorable Sidney H. Stein, United States District Judge:

Pro se petitioner Albert Soto seeks a writ of habeas corpus from his 1999 conviction in Supreme Court, Bronx County, of the second degree murder of Steven Ocasio for which Soto was sentenced to 25 years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5.) Soto alleges that he was "denied his right to confrontation and a fair trial by the admission of the deceased['s] hearsay statements." (Pet. ¶ 13.) Specifically, Soto incorporates by reference in the petition his First Department brief, which alleges that the trial court: (1) improperly admitted Ocasio's fiancée's testimony that two weeks before the murder, Ocasio told her that he had had an argument with Soto, and (2) improperly permitted Ocasio's fiancée to testify that Ocasio told her, "You know who did this," after the trial court had precluded the testimony. (Ex. 1: Soto 1st Dep't Br. at 13-24).¹ In amendments to his petition, Soto asserts a variety of other allegations that may or may not have been meant to be federal habeas claims, but which the Court is treating as such. (See Dkt. No. 13: Soto 4/22/02 Aff.; Dkt. No. 14: Compl.; Dkt. No. 15: Mot. to Dismiss.) Specifically, Soto alleges that the prosecutor engaged in misconduct, that the hearsay instruction was defective, that the evidence was not legally sufficient to prove guilt beyond a reasonable doubt, and that the photo array and lineup were suggestive. (Soto 4/22/02 Aff. at 1; Compl. at 4-7; Mot. to Dismiss at 3-5.)

1 Referenced Exhibits are contained in the May 2002 Affidavit of Assistant District Attorney Mary B. McGarvey-Depuy in Opposition to Soto's Petition for Habeas Corpus. (Dkt. No. 5.) Soto's First Department Brief also is an exhibit to his petition.

FACTS

Trial Testimony of Suhaydes Garcia About Soto's Murder of Steven Ocasio

Steven Ocasio was shot on June 6, 1997, at approximately 10:00 p.m. in front of his apartment on East 165th Street in the Bronx; the only witness to the crime was Suhaydes Garcia, Ocasio's fiancée and mother of their child. (Ex. 1: Soto 1st Dep't Br. at 2; Garcia: Trial Transcript ["Tr."] 225.)²

2 The pretrial and trial transcript is Docket Nos. 10-11; the sentencing transcript is Docket No. 12.
The prosecution's other witnesses were: Detective Karen Endhl (Tr. 97-119), of the Crime Scene Unit (Tr. 97), who testified that no ballistics evidence was recovered from the crime scene (Tr. 117-18); Police Officer Christopher Kelly (Tr. 19-54), who testified that he reported to the crime scene (Tr. 122, 125); Dr. Zoiya Schmuter (Tr. 307-41), the medical examiner (Tr. 307-08), to testify to the cause of Ocasio's death i.e., from gunshot wounds e.g., Tr. 333); Detective Charles Koch (Tr. 344-58), to testify about firearms and ballistics); Detective Dennis Kelly (Tr. 359-95) who testified about the information he received from Garcia (e.g., Tr. 365), and the DMV search he conducted (Tr. 369-70, 382) and Garcia's lineup identification of Soto (Tr. 384-90). The defense rested without calling any witnesses. (Tr. 395.)

According to Garcia, she first saw Soto approximately two weeks before the murder as she and Ocasio were walking during the day. (Tr. 253-54.) Ocasio directed her attention to Soto and told her that he, Ocasio, "had had an argument with" Soto. (Tr. 254.) She was standing less than three feet away from Soto and had an unobstructed view of his face. (Tr. 256-57.) Soto had a white bandage on his face near his left eye. (Tr. 259.) Soto asked Ocasio whether Ocasio's son, who was walking with them at the time, was "his seed." (Tr. 258.) Garcia, however, did not know Soto's name. (Tr. 252.)

At this point, the trial court gave a curative instruction with respect to Garcia's testimony that Ocasio told her he had an argument with Soto:

What the deceased may have said to the witness is not admitted for the truth of the content of the statement, that is, the deceased's statement is not proof that what he said happened did, in fact, happen. . . . What the witness said the deceased told her is admitted only for the jury to determine whether what the witness says the deceased told her was believable and, if so, what effect if any that statement had on directing the witness's attention to the defendant, and thus what effect, if any, it had on the accuracy [of] her identification [of] the defendant, no other purpose.

(Tr. 255-56.)

Garcia testified that she again saw Soto near her home "a couple of days" before the murder driving a light-blue van. (Tr. 259-61.) Soto got out of his van and spoke with Ocasio, but Garcia did not hear what they said. (Tr. 262-63, 278.) Garcia noticed that Soto was no longer wearing the bandage near his eye but that his face was scarred. (Tr. 262, 264.) After the conversation, Soto left in his van. (Tr. 279.)

On the night of June 6, 1997, Garcia, Ocasio, and their son were in front of Ocasio's apartment when, according to Garcia, Soto pulled up in the light-blue van. (Tr. 229-30.) Garcia looked over at the van and had an unobstructed view of Soto. (Tr. 231, 233-36, 240, 277.) Ocasio yelled to Soto that "[t]he kid was coming on Friday." (Tr. 230, 232, 235, 291.) Soto responded, "What?", and motioned for Ocasio to approach the van. (Tr. 232-33, 235, 291.) As Ocasio reached the vanes window, Soto shot Ocasio. (Tr. 240-41, 298.) Ocasio fell to the ground. (Tr. 243.) Soto drove away and Garcia did not see the van's license plate number. (Jr. 244, 281.) Garcia ran to Ocasio, who said to her, "Ma, I love you. You know who did this." (Tr. 245-46; see page 5 below.) Ocasio died that night before Garcia could talk to him again. (Garcia: Tr. 248.)

Garcia spoke with Detective Christopher Kelly that night, describing Soto and his van. (Tr. 248-50.) Garcia told the police that she had seen Soto previously. (Tr. 250, 252-53.) The description Garcia gave the police was based on her observations "on one of those prior occasions before the shooting," not "upon how [she] observed him . . . on the day of the shooting." (Tr. 284-85.) Soto was later apprehended and, on December 12, 1997, Garcia picked him out of a lineup, identifying him as Ocasio's killer. (Tr. 265-69.) Garcia testified at trial that she had "no doubt at all" that defendant Soto was the person who shot Ocasio, adding: "I could put my life on it." (Tr. 282.)

Soto's Motion In Limine Regarding Garcia's Testimony

Outside the jury's presence before Garcia testified, defense counsel moved in limine to bar as hearsay Ocasio's statement pointing out Soto as the man with whom he had argued. (Tr. 156-57.) Soto's counsel urged the court to limit Garcia's testimony to the fact that her attention was focused by the deceased on Soto "for unspecified reasons." (Tr. 175-76.) Further, counsel moved to bar Garcia from testifying that Ocasio said "you know who did this." (Tr. 158-60.) Defense counsel argued that this was "a possible identification which I can't cross examine." (Tr. 159.)

The trial judge decided to hear Garcia's testimony outside the jury's presence to hear what the issues about her testimony really were. (Tr. 203; see Garcia: Tr. 204-13.) After hearing Garcia, the trial judge excluded the statement that "[y]ou know who did this," even though it "may qualify as an excited utterance," because "the statement is not sufficiently probative . . . to the issue of identification [since t]here is nothing to show that the statement of the deceased is, in fact, a reference to the defendant as the perpetrator." (Tr. 215.) The trial judge admitted Garcia's testimony that Ocasio pointed out Soto and said "Ma, that's the kid I had an argument with." (Tr. 217-19.) The trial judge, however, stated that he would instruct the jury that Ocasio's statement was not admitted for the purpose of proving that Ocasio and Soto did argue, but only to explain why Garcia would pay close attention to Soto. (Tr. 220-21.) Defense counsel deemed the curative instruction "fine." (Tr. 221.)

The Readback of Garcia's Testimony During Deliberations, the Verdict and Sentencing

The transcript reflects that Garcia testified that, after Soto shot Ocasio, she ran to Ocasio, who said to her, "Ma, I love you. You know who did this." (Tr. 246.) This statement would have violated the judge's in limine ruling. (Tr. 215.) During the readback, before that was read to the jury, the prosecutor brought to the trial court's attention that the transcript showed Garcia uttering the precluded statement. (Tr. 608-09.) The trial judge concluded that either the statement had not been made, or it was made so quietly that the jury could not have heard it. (Tr. 609.) The trial judge said he "was listening very intently, to make sure that ["Ma, I love you"] was all that was said. I would have taken an oath that the words, you know who did this were not spoken." (Tr. 610.) Further, the trial judge stated that neither counsel had heard the statement, nor did there appear to be any reaction from the jury during the readback when the readback included only the statement "he said Ma, I love you."³ (Tr. 610.) The trial judge concluded, "If, in fact, the witness said this, it must have been so under her breath, so quietly that only the court reporter, who is sitting on top of the witness could hear." (Tr. 610.) The trial judge nevertheless asked defense counsel at sidebar during the readback and again during the colloquy after the readback, if the court should "take any action with respect to the jurors." (Tr. 610, 612.) Defense counsel conceded that he did not hear Garcia say the questioned words in her testimony and he felt that a curative instruction would be "counterproductive" and, after consulting with Soto, advised the court to "leave things as they are." (Tr. 611-13.)

3 The transcript states only that the requested portions of Garcia's testimony were read back. (Tr. 597: "Whereupon, the requested testimony was read back by the Court Reporter.") After the readback was complete, the trial court explained, "During the read back . . ., Mr. MacDonald was reading ahead of the reporter and noticed [the testimony] and properly asked for an immediate sidebar. And we addressed the issue at the side bar before the particular matter was read back to the jury." (Tr. 608-09.) The trial judge instructed the court reporter not to read the precluded testimony after the mistake was discovered. The trial judge also stated, "It's also important to point out [that when] we read back her testimony . . . [the precluded statement] was not in it." (Tr. 613; see also Dkt. No. 12: 3/4/99 Sentencing Transcript ["S."] 7.)

The jury returned a verdict of guilty to second degree murder. (Tr. 610-19.)

During sentencing on March 4, 1999, the trial judge reiterated what had happened during the readback and provided some additional information to the parties:

THE COURT: . . .

As you may recall during the read back to the jury one of the questions to the eye witness in substance was what did the deceased say to her. And we all hear her say in substance . . . something like Ma, I love you. When we got to the read back before that question and answer was read back to the jury [ADA] MacDonald noticed that the answer was Ma, I love you. You know who did it, or words to that effect.

[ADA] MAC DONALD: That's correct, your Honor.

THE COURT: In a motion by the defense, outside the presence of the jury, indicated that these words, you know, who did it could not be placed before the jury and could not be said. Mr. MacDonald called an immediate bench conference. We saw the words and I literally struck the words from the record drawing a line from them, and directing the court reporter not to read them back to the jury. And of course, she did not. And none of the jurors gave any facial expressions to indicate that they did not hear something that they heard the first time around.

We made a record at that time. I did not believe the statement had been made. None of us heard the statement being made. [Defense counsel] Mr. Katz on behalf of his client was asked whether he wished to make an application relative to what transpired. [He] discussed the matter with his client and said in effect no.

By happenstance, I was talking to one of the reporters who was involved in transcribing this trial, Deidre Randles. She was not the reporter who took down the eye witness testimony on this subject. And I simply remarked to her that she was not the reporter involved in taking down this particular information. She then indicated to me that the reporter who did take material down was having trouble reading her notes as to what was said and that she, Miss Randles, helped her out. Helped her out in part from what she knew from hearing the defense's application outside the presence of the jury as to what the deceased said, and that appears to explain [how] the portion of the statement that I struck got into the minutes. But I'm still convinced that did not come out of the mouth of the eye witness. You know, you did not object at the time.

I have given you my best recollection and happenstance of a conversation with Miss Randles. I did not set out and inquire of her or of any reporter what had taken place. But she volunteered that information. If you want a hearing with respect to that, I'll give it to you.

MR. KATZ [Soto's counsel]: Judge, based on the totality of what occurred and the record that we made, the decision is that we made — as well as primarily the decisions we made, meaning myself and my client, at the time of the trial, that I do not believe that there is an issue. But if there is an issue, then whoever reviews this at another time will take whatever appropriate measure they feel they should on behalf of Mr. Soto.

THE COURT: So, you're not asking me for a hearing at this time?

MR. KATZ: Not at this time.

(S. 6-10.)

The trial judge sentenced Soto to twenty-five years to life imprisonment. (S. 12.)

Soto's Direct Appeal to the First Department

In May 2000, represented by the Legal Aid Society, Soto appealed his conviction to the First Department on the sole ground that he was "denied his right to confrontation and a fair trial by the admission of [Ocasio's] hearsay statements" to Garcia. (Ex. 1: Soto 1st Dep't Br. at 13-24.)

First, as to Garcia's testimony that Ocasio told her "that's the kid I had an argument with," Soto argued that the hearsay statement was "unnecessary" since the State could have accomplished its goal of showing why Garcia paid attention to Soto by "simply eliciting from Garcia that [Ocasio] had said something which caused her to focus" on Soto. (Soto 1st Dep't Br. at 16.) Further, according to Soto, the statement created "the possibility of prejudice" and "did not qualify for admission under any exception to the rule against hearsay." (Id.) Soto argued that the trial court's curative instruction — that the statement could only be taken as a reason for Garcia to notice Soto — "failed to lessen the prejudice" caused by "this explosive testimony." (Soto 1st Dep't Br. at 16-17.)

Second, Soto claimed that the second statement, "You know who did this," was also inadmissible hearsay. (Soto 1st Dep't Br. at 18.) Soto noted that, "[t]hough there was a dispute as [to] whether the jurors heard Garcia testify to that statement, the record, as transcribed by the official court reporter, does include that statement. . . ." (Id.) Soto argued that under the "presumption of regularity," the court reporter is presumed to have accurately recorded Garcia's testimony. (Id.) Soto also asserted that the hearsay statement was not admissible as an excited utterance. (Soto 1st Dep't Br. at 19-21.)

Soto argued that these issues were fully preserved for appellate review, as defense counsel "moved, before Suhaydes Garcia testified in front of the jury, to bar her from repeating the hearsay statements made to her by Steven Ocasio." (Soto 1st Dep't Br. at 22.) Soto further claimed that the admission of these statements was not harmless, because the other evidence against Soto was "not overwhelming": "the prosecutor, on summation, conceded that the 'crux' of the case was Suhaydes Garcia's identification of [Soto]." (Id.)

On December 19, 2000, the First Department upheld Soto's conviction:

The court properly admitted testimony that, two weeks prior to his murder, the deceased pointed out defendant to the witness, his fiancée, and identified him as a person with whom he had been involved in an argument. As the court carefully instructed the jury, this evidence was not received to prove the truth of the matter asserted, but rather to show the effect it had on the ability of the witness to accurately identify defendant.

Defendant's claim that certain testimony that had been precluded by the court was introduced nonetheless is unavailing because it rests upon an error in the trial transcript. During jury deliberations this issue came to the attention of the court, which subsequently conducted an inquiry of the court reporter and found the typed transcript to be in error. Defendant expressly waived any objection to this determination. In any event, we conclude that the People have rebutted the presumption of regularity and that the court's determination was correct.

People v. Soto, 278 A.D.2d 112, 113, 719 N.Y.S.2d 1, 2 (1st Dep't 2000) (citations omitted).

On June 22, 2001, the New York Court of Appeals denied leave to appeal. People v. Soto, 96 N.Y.2d 868, 730 N.Y.S.2d 42 (2001).

Soto's C.P.L. § 440 Motion

On September 2, 2001, Soto filed a pro se motion to set aside his conviction pursuant to C.P.L. § 440.10 on the grounds that (1) there "was no evidence which was legally sufficient to estab[l]ish beyond a reasonable doubt every element of such offense," and (2) "the prosecution rel[ied] on hearsay testimony." (Ex. 4: Soto C.P.L. § 440 Aff. ¶ 1.)

On December 19, 2001, the trial judge denied Soto's C.P.L. § 440 motion:

[Soto's] claims, as best as they can be discerned, are that the evidence was insufficient to justify the conviction, and the court impermissibly admitted certain testimony claimed to have been hearsay. This Court, at the trial, found the evidence of guilt sufficient to justify the verdict; and that ruling was subject to appellate review on the appeal from judgment. (Nothing the defendant has advance[d] would change this Court's initial ruling.) The "hearsay" testimony issue was argued on the appeal from the judgment and the Appellate Division held that the testimony was properly admitted.

In its present posture, therefore, the claims advanced are not properly reviewable in a post-judgment motion.

(Ex. 6: 12/19/01 § 440 Order.) Soto did not seek leave to appeal to the First Department.

Soto's Petition for Writ of Habeas Corpus

Soto's timely-filed pro se habeas corpus petition is dated March 4, 2002 and was received by this Court's Pro Se Office on March 7, 2002. (Dkt. No. 2: Pet. at 1, 6.) Soto's habeas petition alleges that the trial court: (1) improperly admitted Ocasio's statement to Garcia two weeks before the murder that Ocasio had had an argument with Soto, and (2) improperly permitted Garcia to testify that Ocasio told her, "You know who did this," after the trial court had precluded the testimony. (Pet. ¶ 13, incorporating Soto 1st Dep't Br. at 16, 18.)⁴

4 In three documents that the State and this Court construe as amendments to his habeas petition, Soto asserts several additional claims. (See Dkt. No. 13: Soto 4/22/02 Aff; Dkt. No. 14: Compl.; Dkt, Nos. 9, 15: Mot. to Dismiss.) In an "Affidavit" dated April 22, 2002, Soto claims that "the prosecutor misle[d] the jury to believe that [Detective] Kelly . . . was assigned to the case when [the] arrest I.D. . . . states that he was not" which he claims was prosecutorial misconduct and a "miscarriage of justice which was prejudicial and [caused] bias to the petitioner." (Soto 4/22/02 Aff. ¶ 4.) In a "Complaint" dated April 25, 2002, Soto further alleges that Detective Kelly's testimony that Soto owned a blue Chevy van was "prejudicial" because Detective Kelly "failed to state that the Department of Motor Vehicle records also stated that [Soto's] license and vehicle registration were on suspension" since May 25, 1997. (Compl. at 4.) Soto also claims in his Complaint that "the cumulative effect of grand jury statements . . . proves, that the District Attorney[']s remarks/statement went far beyond fair comments on the evidence." (Compl. at 5.) Soto also alleges that he was deprived of due process and a fair trial "by the use of [a] constitutionally defective . . . 'Curative Instruction'" when the judge instructed the jury on the purpose of Garcia's testimony regarding Ocasio and Soto's fight. (Compl. at 6-7.) In a "Notice of Motion" dated June 6, 2002, Soto claims, as he did in his C.P.L. § 440 motion, that "[t]he evidence here was not legally sufficient to prove beyond a reasonable doubt . . . every element of the offense." (Mot. to Dismiss at 4.) Soto further claims that the photo array and lineup were suggestive because he "was the only perp exhibited with a scar on his face." (Mot. to Dismiss at 3.) As explained on pages 32-36 below, these claims are all deemed unexhausted but procedurally barred from habeas review.

ANALYSIS

THE AEDPA REVIEW STANDARD⁵

Before the Court can determine whether Soto is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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) . . . 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)(1)-(2).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.⁶ Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.⁷ "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 2002 WL 1393902 at *5.

6 Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

7 Accord, e.g., Yung v. Walker, No. 01-2299, 2002 WL 1393902 at *4 (2d Cir. June 27, 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.⁸

8 Accord, e.g., Yung v. Walker, 2002 WL 1393902 at *4; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." IA. at 409, 120 S.Ct. at 1521.⁹

9 Accord, e.g., Yung v. Walker, 2002 WL 1393902 at *4; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . 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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord Yung v. Walker, 2002 WL 1393902 at *4; Loliscio v. Goord, 263 F.3d at 184. Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 2002 WL 1393902 at *4. Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 2002 WL 1393902 at *4.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254 (d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Aeid v. Bennett, No. 02-2089, 2002 WL 1466807 at *3 (2d Cir. July 8, 2002); Jenkins v. Artuz, Nos. 01-2355, 01-2328, 2002 WL 483547 at *6 (2d Cir. Apr. 1, 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word "denied" — triggered AEDPA deference."); Norde v. Keane, No. 01-2049, 2002 WL 483488 at *7 (2d Cir. Mar. 29, 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).¹⁰ On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).

10 The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Norde v. Keane, 2002 WL 483488 at *7; Aparicio v. Artuz, 269 F.3d at 93.

In denying Soto's appeal, the First Department held that the trial court had "properly admitted testimony" regarding Garcia's encounter with Soto two weeks before the murder. Therefore, the First Department adjudicated this claim "on the merits," and the deferential AEDPA review standard applies. As explained below, Soto's claim regarding the statement, "You know who did this," is barred on independent and adequate state law grounds. (See Point III below.) Similarly, Soto's amended claims (see fn.4 above) are unexhausted in state court and procedurally barred from habeas review. (See Point IV below.)

II. THE FIRST DEPARTMENT'S DISMISSAL OF SOTO'S CLAIM REGARDING THE ADMISSION OF THE STATEMENT THAT OCASIO PREVIOUSLY ARGUED WITH SOTO WAS NOT AN UNREASONABLE APPLICATION OF SUPREME COURT PRECEDENT

A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings¹¹

11 For additional cases authored by this Judge discussing the habeas corpus review standard for claims of error in state evidentiary rulings, in language substantially similar to that in this entire section of this Report Recommendation see Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *15-16 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *5-6 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.).

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'").¹² Thus, a habeas petitioner must demonstrate that the allegedly-erroneous state court evidentiary rulings violated an identifiable constitutional right. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) ("The [habeas] court must determine whether the exclusion [of testimony] was an error of constitutional dimension. . . ."); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial.") (emphasis in original), cert. denied, 464 U.S. 1000, 104 S.Ct. 503 (1983). That is a "heavy burden, for 'generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.'" Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).¹³

12 See also, e.g., Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *12 nn. 19-20 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (citing cases); Roldan v. Artuz, 78 F. Supp.2d 260, 276 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Grant v. Demskie, 75 F. Supp.2d 201, 209 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.), aff'd 234 F.3d 1262 (2d Cir. 2000); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4-5 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5-6 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.).

13 See also, e.g., Roldan v. Artuz, 78 F. Supp.2d at 276 (citing cases); Grant v. Demskie, 75 F. Supp.2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *5; James v. Senkowski, 1998 WL 217903 at *5.

The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.¹⁴ See e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constitutional magnitude); Jones v. Stinson, 94 F. Supp.2d at 391-92 (once the habeas court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis).¹⁵

14 This assumes that the petitioner has not attacked the constitutionality of the state evidentiary rule itself. See Jones v. Stinson, 94 F. Supp.2d 370, 387 n. 19 (E.D.N.Y.) (distinguishing between cases "where an evidentiary rule was correctly applied as a matter of state law, but is either unconstitutional on its face or violates a constitutional right as applied," and cases where the petitioner took no exception to the constitutionality of the state evidentiary rule, but asserted that the state court decision misapplied the state rule, resulting in a constitutional violation), rev'd on other grounds, 229 F.3d 112 (2d Cir. 2000).

15 See also, e.g., Williams v. Walker, No. 00-CV-5912, 2001 WL 1352105 at *3 (E.D.N.Y. Oct. 31, 2001) (habeas court must first determine if ruling was erroneous under state law, and then whether ruling was of a constitutional magnitude); Coleman v. Greiner, No. 97-CV-2409, 1999 WL 320812 at *5 (E.D.N.Y. May 19, 1999); Till v. Miller, 96 Civ. 4387, 1998 WL 397848 at *4 (S.D.N.Y. July 16, 1998); Mitchell v. Herbert, 97 Civ. 5128, 1998 WL 186766 at *5-6 (S.D.N.Y. Apr. 20, 1998); Copes v. Schriver, 97 Civ. 2284, 1997 WL 659096 at *3 (S.D.N.Y. Oct. 22, 1997); Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N.Y. 1997); Dey v. Scully, 952 F. Supp. 957, 969 (E.D.N.Y. 1997) ("[T]he Court engages in a two part analysis, examining 1) whether the exclusion [of evidence] was error under state law, and 2) whether the error amounted to the denial of the constitutional right to a fundamentally fair trial."); see generally Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001) (in determining whether failure to give state jury charge violated federal constitution, first question for habeas court is whether the charge was required under New York law, and only if so, was the failure to give the charge of constitutional dimension).

Second, the petitioner must allege that the state evidentiary error violated an identifiable constitutional right. This necessarily eliminates consideration of purely state evidentiary errors not cognizable in the federal system.¹⁶ Here, Soto alleged that the evidentiary errors at issue here violated his right to confrontation and a fair trial under the Fifth, Sixth and Fourteenth Amendments. (Dkt. No. 2: Pet. ¶ 13.)

16 See e.g., Landy v. Costello, No. 97-2433, 141 F.3d 1151 (table), 1998 WL 105768 at *1 (2d Cir. Mar. 9, 1998) ("To the extent that this claim is based on a Rosario violation, it must fail, because a habeas petition can only be granted to remedy some violation of federal law; the obligation to turn over Rosario material arises under state law. Thus, the only question is whether the prosecution violated Brady.") (emphasis in original); Arocho v. Walker, 01 Civ. 1367, 2001 WL 856608 at *3 (S.D.N.Y. July 27, 2001) ("Violation of the notice requirement of [N.Y. C.P.L.] § 710.30 is purely a matter of state law and raises no constitutional issues for a habeas court to review."); Ventura v. Artuz, 2000 WL 995497 at *12 (same); Roldan v. Artuz, 78 F. Supp.2d at 276 (Molineux claim not cognizable as such on habeas); Benitez v. Senkowski, 1998 WL 668079 at *5 (bolstering claim does not state federal claim, citing cases); Ayala v. Hernandez, 712 F. Supp. 1069, 1074 (E.D.N.Y. 1989) (police "bolstering" of eyewitness identification testimony held to be, at most, violation of state rule, and thus not could not form basis for constitutional claim).
Indeed, courts have rejected habeas relief where the error violated state rules but comported with the presumptively constitutional Federal Rules of Evidence. See, e.g., Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir. 1996) ("even if admission of [out of court declarant's] statement violated New York law — which unlike federal law requires independent indicia of reliability for a co-conspirator's statement — the statement does not offend the federal Confrontation Clause if it falls within Rule 801(d)(2)'s co-conspirator exception"), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Ford v. Cinder, 97 Civ. 3031, 2001 WL 640807 at *5 (S.D.N.Y. June 8, 2001) ("Admission of evidence that satisfies [the Federal Rules of Evidence] will not violate a [state] criminal defendant's due process rights or provide the basis for habeas corpus relief.").

Third, an erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only "'where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman, 839 F.2d at 925 (emphasis in original).¹⁷ The test for "fundamental fairness" is whether the excluded evidence, "'evaluated in the context of the entire record,'"¹⁸ "'create[d] a reasonable doubt [regarding petitioner's guilt] that did not otherwise exist.'" Taylor v. Curry, 708 F.2d at 891 (quoting the materiality standard defined in United States v. Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2401-02).¹⁹

17 See also, e.g., Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000); Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.) ("The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence 'is so extremely unfair that its admission violates fundamental conceptions of justice.'"), cert. denied, 525 U.S. 840, 119 S.Ct. 101 (1998); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) ("In order to prevail on a [habeas] claim that an evidentiary error deprived the defendant of due process under the Fourteenth Amendment he must show that the error was so pervasive as to have denied him a fundamentally fair trial . . . .").

18 "If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2402 (1976).

19 Accord, e.g., Jones v. Stinson, 229 F.3d at 120; Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996); Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992); Blissett v. Lefevre, 924 F.2d 434, 439 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158 (1991); Collins v. Scully, 755 F.2d at 19; Rosario v. Kuhlman, 839 F.2d at 925; Roldan v. Artuz, 78 F. Supp.2d at 276; Grant v. Demskie, 75 F. Supp.2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *5; James v. Senkowski, 1998 WL 217903 at *6; Dey v. Scully, 952 F. Supp. at 971.

The "fundamental fairness" standard applies to the erroneous exclusion or admission of evidence. See, e.g., Dunnigan v. Keane, 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been 'sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'") (quoting Johnson v. Ross, 955 F.2d at 181); Rodriguez v. O'Keefe, No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1068 (1998); Collins v. Scully, 755 F.2d at 18-19; Roldan v. Artuz, 78 F. Supp.2d at 276.²⁰

20 For the reasons stated by Judge Block in Dey v. Scully, "[h]armless error analysis is simply inapplicable to [trial] error that only attains constitutional significance when considered in the context of the entire trial because such analysis inheres in the initial finding that the error was constitutionally significant. A determination that such error was not harmless, after having already concluded that it denied the defendant a fundamentally fair trial, would be tautological." Dey v. Scully, 952 F. Supp. at 974; see also Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 1567 (1995) ("Agurs . . . opted for its formulation of materiality . . . only after expressly noting that this standard would recognize reversible constitutional error only when the harm to the defendant was greater than the harm sufficient for reversal under Kotteakos."); Washington v. Schriver, 255 F.3d 45, 56-57 (2d Cir. 2001) ("The creation of otherwise non-existent reasonable doubt [under Agurs] satisfies the 'substantial and injurious' standard" under Brecht.) (quoting Jones v. Stinson, 229 F.3d at 120); Coleman v. Greiner, 1999 WL 320812 at *4-5.

The final question is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue recently addressed by the Second Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial. Id. at 116. The Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings "create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the excluded testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard. Id. at 120-21.

In sum, for Soto to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish (1) that the trial court's evidentiary ruling was erroneous as a matter of state law, (2) under Agurs, that admission of the evidence deprived him of a fair trial, and (3) under the AEDPA, that the First Department's affirmation of the trial court's ruling constituted an objectively unreasonable application of the Agurs standard.

B. Application of This Standard to Soto's Evidentiary Claim

The trial court allowed Garcia to testify to a statement made to her by Ocasio two weeks before the murder, regarding a fight between Ocasio and Soto. (Tr. 217-19, 254.) Soto asserts that the statement created "the possibility of prejudice" and "did not qualify for admission under any exception to the rule against hearsay." (Ex. 1: Soto 1st Dep't Br. at 16.)

The general rule in New York is that an out-of-court statement is admissible if it is not admitted for the truth of the matter stated, but for another purpose. See, e.g., People v. Ealey, 272 A.D.2d 269, 270, 710 N.Y.S.2d 321, 322-23 (1st Dep't) (Testimony establishing victim's state of mind "was not hearsay because it was not received for its truth."), appeal denied, 95 N.Y.2d 865, 715 N.Y.S.2d 219 (2000); People v. Daniels, 265 A.D.2d 909, 909-10, 698 N.Y.S.2d 120, 121 (4th Dep't 1999) (Testimony of surviving passengers that passenger in the car told drunk defendant to pull over because "he did not want to die" was admissible because the statements "were not hearsay because they were offered not for their truth, but to establish that they were made and they were relevant to show circumstantially the state of mind of the hearer.") (citation omitted), appeal denied, 94 N.Y.2d 878, 705 N.Y.S.2d 10 (2000).²¹

21 See also, e.g., Tennessee v. Street, 471 U.S. 409, 413, 105 S.Ct. 2078, 2081 (1985) ("[T]he prosecutor did not introduce [the] out-of-court confession to prove truth of [the] assertions. Thus, . . . [the out-of-court statement] was not hearsay under traditional rules of evidence.") (emphasis in original); United States v. Bellomo, 176 F.3d 580, 587 (2d Cir.) (Testimony that "bore on [witness's] state of mind not on the truth of the motive for murder" and "went to [witness's] state of mind not to the truth of any fact in any declaration to which he testified" was not hearsay.), cert. denied, 528 U.S. 987, 120 S.Ct. 447 (1999).

The giving of a curative, or limiting, instruction regarding the purpose for which the testimony is received further averts any prejudice to the defendant. See, e.g., People v. Rivera, 96 N.Y.2d 749, 751, 725 N.Y.S.2d 264, 265 (2001) ("Any possible prejudice arising from this testimony was averted by the court's comprehensive limiting instructions" "admonishing the jury not to consider the officer's testimony for any purpose other than to explain why the officer acted as he did. . . . not to consider the testimony on the issue of the defendant's guilt or innocence."); People v. Jackson, 276 A.D.2d 806, 806, 715 N.Y.S.2d 421, 421 (2d Dep't 2000) (no error in admission of hearsay to explain the police's conduct where "the court gave the jury proper limiting instructions regarding the purpose for which the testimony was received.").²²

22 See also, e.g., United States v. Ortiz, No. 99-1228, 205 F.3d 1326 (table), 2000 WL 233698 at *2 (2d Cir. Feb. 10, 2000) ("Moreover, even assuming that the District Court erred in admitting some of the statements [to demonstrate the victim's state of mind], the error was harmless because [among other things] the District Court gave the jury a limiting instruction regarding the use of the evidence. . . ."), cert. denied, 530 U.S. 1249, 120 S.Ct. 2702 (2000); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) ("There was no error of constitutional or non-constitutional dimension here. First, the district court gave appropriate limiting instructions concerning the hearsay statements.").

Here, the trial judge admitted the statement to show Garcia's state of mind when she first saw Soto, not to prove that Soto and Ocasio in fact had fought. (Tr. 217-19.) Garcia testified that she had seen Soto before when Ocasio pointed him out, saying that "he had had an argument with" Soto. (Garcia: Tr. 254.) Immediately following this testimony, the trial court gave the curative instruction that the testimony was "not admitted for the truth" and "is not proof" that the fight occurred, but rather showed "what effect if any that statement had on directing the witness's attention to the defendant, and thus what effect, if any, it had on the accuracy [of] her identification [of] the defendant, no other purpose." (Tr. 255-56, quoted in full at page 3 above.)

Accordingly, the trial court's actions, affirmed by the First Department, were not an error of state law, much less an error of constitutional magnitude. See e.g., Jamison v. Grier, 2002 WL 100642 at *17; Thomas v. Breslin, 2002 WL 22015 at *5 n. 14, *8 (Peck, M.J.) ("Because [petitioner] has "failed to make the threshhold showing that the First Department erred as a matter of state law in upholding the trial court's decision" to admit the [challenged evidence], 'this Court need not reach the question of whether [petitioner's] due process rights were violated.'") (quoting Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *17 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.)); Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner could not demonstrate an error under state evidentiary law, much less an error of constitutional magnitude); Dey v. Scully, 952 F. Supp. at 969 (petitioner must show both state law error and violation of constitutional rights). Since the First Department's decision was not an unreasonable application of Supreme Court precedent, Soto's first hearsay habeas claim should be denied.

III. SOTO'S CLAIM REGARDING THE STATEMENT "YOU KNOW WHO DID THIS" IS BARRED ON ADEQUATE AND INDEPENDENT STATE GROUNDS

Soto alleges that the trial court improperly permitted Garcia to testify that Ocasio told her, "You know who did this," after the trial court had precluded the testimony. (Ex. 1: Soto 1st Dep't Br. at 16-18.) In denying Soto's claim, the First Department held that Soto's counsel "waived any objection to this determination."²³ People v. Soto, 278 A.D.2d 112, 113, 719 N.Y.S.2d 1, 2 (1st Dep't 2000), appeal denied, 96 N.Y.2d 868, 730 N.Y.S.2d 43 (2001). Because the First Department's decision rejecting the claim was based on an adequate and independent state law ground, this claim is barred from federal habeas review.

23 Specifically, defense counsel failed to object when Garcia allegedly testified that Ocasio said "You know who did this." (Tr. 246.) Further, upon being advised that the transcript contained that statement, defense counsel requested that the judge not make a "counterproductive" curative instruction, and advised the court to "leave things as they are" after discussing the matter with Soto. (Tr. 612-13.) Finally, during sentencing, the judge explained what he believed happened to cause an error in the record and offered to hold a hearing on the matter. Defense counsel declined, responding, "I do not believe that there is an issue." (S. 9.) (See pages 6-8 above.)

A. The Adequate and Independent State Ground Doctrine²⁴

24 For additional decisions by this Judge discussing the adequate and independent state ground doctrine in language substantially similar to that in this entire section of this Report Recommendation see Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *8-9 (S.D.N.Y. May 31, 2002) (Peck, M.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *20-21 (S.D.N.Y. May 15, 2002) (Berman, D.J. Peck, M.J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *8-11 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *7 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *9 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 209-14 (S.D.N.Y. 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted, 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (April 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); see also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S.Ct. 851, 860-61 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Murray v. Carrier, 477 U.S. 478, 485-88, 496, 106 S.Ct. 2639, 2644-45, 2649-50 (1986); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999); Reyes v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.") (emphasis in original); Garcia v. Lewis, 188 F.3d at 77-82; Glenn v. Bartlett, 98 F.3d at 724-25; see also, e.g., Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.

With respect to Soto's claim that the hearsay was improperly allowed, the First Department held:

Defendant's claim that certain testimony that had been precluded by the court was introduced nonetheless is unavailing because it rests upon an error in the trial transcript. During jury deliberations this issue came to the attention of the court, which subsequently conducted an inquiry of the court reporter and found the typed transcript to be in error. Defendant expressly waived any objection to this determination. In any event, we conclude that the People have rebutted the presumption of regularity and that the court's determination was correct.

People v. Soto, 278 A.D.2d 112, 113, 719 N.Y.S.2d 1, 2 (1st Dep't 2000) (emphasis added), appeal denied, 96 N.Y.2d 868, 730 N.Y.S.2d 43 (2001).

State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.

Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559. Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found to be too ambiguous to preclude habeas review, see, e.g., Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1991), here the First Department explicitly held that Soto waived objection. People v. Soto 278 A.D.2d at 113, 719 N.Y.S.2d at 2. The fact that the First Department also stated the conclusion it would reach "in any event" does not change the result. See e.g., Fama v. Commissioner of Correctional Servs., 235 F.3d 804, 810-11 n. 4 (2d Cir. 2001) ("where a state court says that a claim is 'not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d at 724-25 n. 3 (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds).²⁵ Thus, the First Department's decision rested on a state procedural ground.²⁶

25 In Velasquez v. Leonardo, the Second Circuit held that the defendant's claims were procedurally barred when the Appellate Division "explicitly found that these claims were not preserved for appellate review, in addition to finding that they were, in any event, without merit." 898 F.2d at 9. Specifically, the Appellate Division held, "the defendant failed to properly object at trial to the prosecutor's opening and closing statements and thus failed to preserve the issue of the propriety of those statements for review. In any event, since defense counsel in summation directly questioned the complainant's veracity, the prosecutor's comments were not unreasonable." People v. Velasquez, 141 A.D.2d 882, 883, 530 N.Y.S.2d 208, 209 (2d Dep't) (citations omitted, emphasis added), appeal denied, 72 N.Y.2d 926, 532 N.Y.S.2d 860 (1988), habeas denied, 1989 WL 38319 (E.D.N.Y. Apr. 14, 1989), aff'd 898 F.2d 7 (2d Cir. 1990). See also, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10; Larrea v. Bennett, 2002 WL 1173564 at *9 n. 8; Martinez v. Greiner, 2001 WL 910772 at *9 n. 9; Ferguson v. Walker, 2001 WL 869615 at *8 n. 19; Simpson v. Portuondo, 2001 WL 830946 at *10; Simmons v. Mazzuca, 2001 WL 537086 at *10 (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them); Jones v. Duncan, 162 F. Supp.2d at 208 (same); Yeung v. Artuz, 2000 WL 145103 at *10 (same); Cruz v. Greiner, 1999 WL 1043961 at *12-13 (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274 (adequate and independent ground even though First Department "went on to dismiss the [judicial misconduct] claim on the merits"); Stanley v. Kuhlman, 10 F. Supp.2d 250, 254 (E.D.N.Y. 1998) (claim that Appellate Division held to be unpreserved for appellate review not cognizable on habeas even though Appellate Division found, in an alternative holding, that the prosecutor's challenged remarks constituted a fair response to defense counsel's summation); Williams v. Bennet, 1998 WL 236222 at Vera v. Hanslmaier, 928 F. Supp. at 285; Liner v. Keane, 1996 WL 33990 at *7.

26 The New York Court of Appeals denied Soto's application for leave to appeal without opinion. People v. Soto, 96 N.Y.2d 868, 730 N.Y.S.2d 43 (2001). The Supreme Court held in Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803, 111 S.Ct. at 2594. Soto has presented no facts to rebut that presumption here.

Under New York law, in order to preserve his inadmissible hearsay claim for appellate review, Soto was required to object at trial to the alleged admission of the hearsay testimony. See C.P.L. § 470.05(2).²⁷ Soto's counsel did not object when Garcia first testified (probably because Garcia did not, in fact, make the challenged statement). And after the jury readback (which omitted the challenged statement) and ensuing colloquy, defense counsel lodged no objection or request for a curative instruction, mistrial or any other relief. See pages 6-7 above.) The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, CPL § 470.05, is an adequate and independent state ground See e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. at 485-92, 497, 106 S.Ct. at 2644-48, 2650 (same); Garcia v. Lewis, 188 F.3d at 79 ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citing Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05 (2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995), Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)), cert. denied, 502 U.S. 883, 112 S.Ct. 236 (1991)); Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground); Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously . . . constitutes an adequate and independent basis for barring habeas review.").

27 N.Y. CPL § 470.05(2) provides, in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.

Because there is an adequate and independent finding by the First Department that Soto procedurally defaulted on this hearsay claim, Soto would have to show in his habeas petition "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 v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565.²⁸ Soto has failed to allege cause and prejudice or that a fundamental miscarriage of justice would result if this claim is not addressed. Therefore, Soto's claim of improper admission of hearsay is barred from habeas review.

28 See also, e.g., Schlup v. Delo 513 U.S. at 324-27, 115 S.Ct. at 865-67 (1995) (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence").

IV. SOTO'S REMAINING CLAIMS ARE UNEXHAUSTED BUT PROCEDURALLY BARRED FROM HABEAS REVIEW BECAUSE THEY WERE NOT RAISED ON DIRECT APPEAL TO THE FIRST DEPARTMENT²⁹

29 For additional decisions by this Judge discussing the unexhausted but procedurally barred doctrine in language substantially similar to that in this entire section of this Report Recommendation see Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *15-16 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5-6 (S.D.N.Y. Jul. 12, 2001) (Peck, M.J.); Bailey v. People of State of New York, 01 Civ. 1179, 2001 WL 640803 at *3-4 (S.D.N.Y. Jun. 8, 2001) (Peck, M.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *7-9 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at * 5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).

In three amendments to his habeas petition, Soto asserts several new claims. (See page 11 fn.4 above.) However, because Soto failed to raise these claims either on direct appeal to the First Department (Ex. 1: Soto 1st Dep't Br. at 13), or even by seeking leave to appeal to the First Department from the trial court's denial of his C.P.L. § 440 motion, the claims should be denied as unexhausted but procedurally barred.

Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254 (b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Dave v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732.

The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.

Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981); accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732-34.

"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Dave v. Attorney General of New York, 696 F.2d at 191.³⁰ The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:

30 Accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Dave v. Attorney General, 696 F.2d at 194.³¹

31 Accord, e.g., Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688.

Soto did not raise his remaining claims in his direct appeal. (See Ex. 1: Soto 1st Dep't Br.) Soto did raise some of these claims in his C.P.L. § 440 motion, but the trial judge denied the § 440 motion because "the claims advanced are not properly reviewable in a post-judgment motion," because they could and therefore should have been raised on direct appeal. (Ex. 6: 12/19/01 § 440 Order.) Soto did not seek leave to appeal that decision to the First Department. Soto therefore did not "fairly present" these claims to the state courts, and the claims thus are not exhausted.

"For exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989))).³²

32 Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined . . . ."); Bossett v. Walker, 41 F.3d at 828 ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254 (b), we deem the claims exhausted.").

"In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254 (b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., Reves v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.

In this case, it is clear that Soto is now barred from raising his remaining habeas claims in state court because they could have been raised on direct appeal, but were not.³³ As the Second Circuit explained in Washington v. James:

33 New York C.P.L. § 440.10(2)(c) states, in pertinent part:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:

. . . .

(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . . raise such ground or issue upon an appeal actually perfected by him. . . .

Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.

. . . .

As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10 (a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254 (c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.

996 F.2d at 1446-47 (emphasis in original).³⁴

34 See also, e.g., Reyes v. Keane, 118 F.3d at 139 ("Section 440.10 (2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added); Bossett v. Walker, 41 F.3d at 829; Brock v. Artuz, 2000 WL 1611010 at *13 n. 23; Gumbs v. Kelly, 2000 WL 1172350 at *7-8 n. 20; Holden v. Miller, 00 Civ. 926, 2000 WL 1121551 at *8 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.); Foreman v. Garvin, 2000 WL 631397 at *9; Thomas v. Greiner, 111 F. Supp.2d at *277; Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 363; Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at *3 (S.D.N.Y. Oct. 7, 1998).

To avoid such a procedural default, a habeas petitioner must 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, i.e., a showing of actual innocence. Brock v. Artuz, 2000 WL 1611010 at * 13 (internal quotations alterations omitted). Soto fails to demonstrate cause for his default (and defaults) or make a showing of actual innocence.

Soto's remaining habeas claims contained in his supplemental submissions should therefore be denied as unexhausted and procedurally barred.

CONCLUSION

For the reasons stated above, the Court should deny Soto's petition for a writ of habeas corpus. Since Soto has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. 28 U.S.C. § 2253.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Stein. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).