Yapor v. Mazzuca

Full title: JOSE YAPOR, Petitioner, v. WILLIAM MAZZUCA, Respondent

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

Date published: Apr 19, 2005

04 Civ. 7966 (RCC) (AJP) (S.D.N.Y. Apr. 19, 2005)

Opinion

04 Civ. 7966 (RCC) (AJP).

April 19, 2005.

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Richard C. Casey, United States District Judge:

Pro se petitioner Jose Yapor seeks a writ of habeas corpus from his March 19, 1999 conviction of first degree manslaughter, second degree criminal possession of a weapon and first degree reckless endangerment and sentence to concurrent terms of which the longest was twelve and one half to twenty-five years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.)

Yapor's habeas petition raises the same six grounds that he had raised on appeal before the First Department: (1) he was denied a fair trial when the court allowed a character witness to be cross-examined without a good faith basis about Yapor's termination from a job because of a violent temper (Pet. Attach.: Yapor 1st Dep't Br. at 15-19); (2) he was denied his right to due process and a fair trial when the court admitted evidence that his wife had been arrested for a drug crime (id. at 19-21); (3) he was denied a fair trial when the court allowed the prosecution to introduce evidence that Yapor possessed a gun during a prior altercation involving the decedent (id. at 22-25); (4) he was denied his right to a jury verdict because of erroneous jury instructions on extreme emotional disturbance and justification (i.e., self-defense) (id. at 26-31); (5) he was denied effective assistance of trial counsel at sentencing (id. at 32-34) and; (6) his sentence to the maximum term was excessive and should be reduced (id. at 35-40).

For the reasons set forth below, Yapor's habeas petition should be DENIED.

FACTS

Pre-Trial Hearings

On February 9, 1999, at a preliminary hearing, the trial court ruled on two motions in limine. (Dkt. No. 9: 2/9/99 Transcript 16-21, 22-33.) First, it ruled that the prosecution could introduce evidence at trial that there was a fight between Yapor and the decedent two months before the charged shooting to show motive, but that the prosecution could not bring out that Yapor took out a gun during the incident because it would be unduly prejudicial. (Id. at 23-28.) Second, the court ruled that the prosecution could introduce evidence that Yapor's wife was arrested for drug possession to show she was not arrested by the police as a ploy to "smoke [Yapor] out unfairly" since he had fled to Florida after the shooting. (Id. at 32.) The prosecution, however, could not introduce evidence of where the drugs came from, i.e., they could not try to show that the drugs found in their apartment belonged to Yapor. (Id. at 32-33.)

At a hearing on February 10, 1999 the court sua sponte changed its ruling on the admissibility of the fact that Yapor had a gun at the previous altercation (Dkt. No. 9: 2/10/99 Transcript 38-39), ruling that because the presence of the gun went to the question of whether there was an extreme emotional disturbance and to Yapor's intent, it was admissible (id. at 40-41). Defense counsel excepted. (Id. at 41.)

The Prosecution's Case at Trial

In 1997, Jose Yapor worked as the cashier at the Inwood Pool Hall on West 206th Street and 10th Avenue in Manhattan. (Dkt. No. 10: Cabreja: Trial Transcript ["Tr."] 166, 169-70; Landestoy: Tr. 333, 336-39.) Welcar "Hueca" Dominguez, the decedent, and his friends hung out at the pool hall often from 1994 through 1997. (Cabreja: Tr. 166-68; Martinez: Tr. 243-45; Cuevas: Tr. 458-59; Landestoy: Tr. 339-44.)

The First Altercation Involving Yapor and Dominguez

In February 1997, Dominguez and his friend Juan Cabreja were hanging out in front of the pool hall's entrance when the owner, Geromino "Andy" Landestoy, came out and yelled at them to get away from the doorway. (Cabreja: Tr. 174-75, 179, 221; Landestoy: Tr. 332-33, 343-44.) When Cabreja yelled back, Landestoy signaled to Yapor to come out from inside the pool hall. (Cabreja: Tr. 180-81; Landestoy: Tr. 345-46.) A verbal argument ensued and Cabreja began physically fighting with Yapor. (Cabreja: Tr. 181; Landestoy: Tr. 346-47.) Dominguez tried to join in the fight, to hit Yapor, but Landestoy held Dominguez back. (Cabreja: Tr. 182; Landestoy: Tr. 346-47.) Landestoy and Yapor went back inside the pool hall, and Landestoy held the door closed from the inside to prevent anyone from entering. (Landestoy: Tr. 348.) Another friend of Cabreja's who was inside the pool hall punched Yapor. (Cabreja: Tr. 183, 228.) After that friend left the pool hall, Yapor took out a gun from behind the counter and held the gun above his head. (Cabreja: Tr. 183-87.) Other people in the pool hall held Yapor back. (Cabreja: Tr. 187-88.) Landestoy again went out and asked Dominguez and Cabreja to leave, which they did. (Cabreja: Tr. 188, 229-30.)

After that incident, Dominguez and his friends began hanging out outside the grocery store across the street from the pool hall. (Cabreja: Tr. 190-91.) Between February and April, Dominguez would come by the pool hall and stare at Landestoy and Yapor. (Landestoy: Tr. 351-52.)

The Shooting

On April 20, 1997 at approximately eleven p.m., Dominguez and five friends were hanging out in front of the grocery store across the street from the pool hall, drinking and playing dice. (Cabreja: Tr. 192, 195; Landestoy: Tr. 354-55.) Landestoy and another worker came out of the pool hall to talk to Dominguez. (Martinez: Tr. 252; Pena: Tr. 418-20; Landestoy: Tr. 355; Cuevas: Tr. 467; Liranzo: Tr. 540.) Landestoy told Dominguez to stop coming into the pool hall because he was making Yapor nervous and that Yapor thought Dominguez and his friends were "going to do something to him," and Landestoy talked to Dominguez about a recent incident where Dominguez slammed down the phone in front of Yapor. (Landestoy: Tr. 356; Martinez: Tr. 252-54; Cuevas: Tr. 468.)

Soon thereafter, Yapor came out and Dominguez and he started arguing. (Martinez: Tr. 254; Pena: Tr. 421; Landestoy: Tr. 356-57; Cuevas: Tr. 469.) Yapor said that Dominguez caused trouble in the pool hall and would stare at him, and that Dominguez should leave him alone. (Martinez: Tr. 254-56, 264, 268-69; Landestoy: Tr. 357-58, 366-67; Cuevas: Tr. 470.) Dominguez said that it was not true and he was grinning. (Landestoy: Tr. 358; Cuevas: Tr. 471, 488.) They also argued about the incident when Dominguez slammed the phone down in front of Yapor. (Martinez: Tr. 255; Cuevas: Tr. 470-72; Landestoy: Tr. 358, 366-67; Martinez: Tr. 269.)

Yapor turned and started walking away toward the pool hall. (Martinez: Tr. 270; Landestoy: Tr. 358, 367, 372-73; Pena: Tr. 440; Cuevas: Tr. 474.) Carlos Cuevas, one of Dominguez's friends and an eyewitness, testified that as Yapor started walking away, Yapor said: "Keep messing with me, you are going to see what's going to happen." (Cuevas: Tr. 474-75.) Yapor had taken several steps when Dominguez yelled out in Spanish: "eat shit." (Martinez: Tr. 270, 275; Landestoy: Tr. 374; Pena: Tr. 422; Cuevas: Tr. 475, 490; Liranzo: Tr. 544, 549.)¹ Yapor still had his back to Dominguez. (Martinez: Tr. 276; Landestoy: Tr. 374; Pena: Tr. 424, 435; Cuevas: Tr. 477.) Once Dominguez said "eat shit," Yapor turned toward him, pulled out a gun from his waistband and started shooting at Dominguez. (Martinez: Tr. 277, 311-13; Landestoy: Tr. 359-60, 375, 377, 396; Pena: Tr. 423-25; Cuevas: Tr. 477-78.) Dominguez's hands were still open and down when Yapor began shooting. (Pena: Tr. 427; Martinez: Tr. 314.)² The witnesses testified that Yapor fired between four and ten shots. (Cabreja: Tr. 198; Martinez: Tr. 282; Landestoy: Tr. 360, 377-78; Cuevas: Tr. 480; Pena: Tr. 429; Liranzo: Tr. 545.)

1 "Eat shit" in Spanish is "come la mierta" or "come mierta." (See, e.g., Landestoy: Tr. 376; Cuevas: Tr. 475; Liranzo: Tr. 544.)

2 Landestoy testified that Yapor began turning around after Dominguez said "eat shit" and began to move his hand to his waistband. (Landestoy: Tr. 359, 374.) Then, when Dominguez said "what are you going to do, cocksocker" and motioned with his hands and stepped toward Yapor, Yapor pulled out the gun and shot him. (Landestoy: Tr. 358-60, 376-77.) According to Landestoy, Yapor was facing Dominguez when Dominguez spoke the second time. (Landestoy: Tr. 377.)

Yapor shot Dominguez six times — once in the head, twice in the abdomen, and three times in the thighs — resulting in his death. (Hayes: Tr. 593, 595, 606.) Carlos Cuevas also was shot in the hand. (Cuevas: Tr. 481-85.)

Elvis Martinez, another of Dominguez's friends and an eyewitness, testified that when Yapor began shooting, "[i]t wasn't him anymore. It was somebody else. I see his face when he was killing my man." (Martinez: Tr. 277-78.) Yapor looked "like he was going crazy." (Martinez: Tr. 278, 283.)

After the shooting, Yapor ran away from the scene still holding the gun. (Landestoy: Tr. 379; Martinez: Tr. 278, 283; Pena: Tr. 430.) Cabreja chased after him but did not catch him. (Cabreja: Tr. 193, 200-01; Landestoy: Tr. 379.)

Dominguez's friends carried Dominguez across the street, and the police arrived followed by an ambulance which took Dominguez to a hospital. (Martinez: Tr. 285-86, 292-93; Landestoy: Tr. 380; Pena: Tr. 431.)

Having fled the scene, Yapor went to a friend's apartment and asked to borrow $100, which his friend's wife, Milagros Rivera Hernandez, gave him (his friend was not home). (Hernandez: Tr. 506.) Yapor appeared calm but in somewhat of a hurry. (Hernandez: Tr. 506-07.)

The Defense's Questions About Yapor's "Reputation for Peacefulness" and the Prosecution's Redirect

On cross-examination of Milagros Rivera Hernandez, defense counsel asked "did you ever hear that [Yapor] had a bad reputation for peaceableness?" (Hernandez: Tr. 519.) Hernandez answered that she had never heard that. (Hernandez: Tr. 510, 519.) On re-direct, the court permitted the prosecutor to ask whether Hernandez had "heard that the defendant, before he worked in the pool hall used to work at the Sheraton Hotel and that he was fired from the hotel because he was violent." (Hernandez: Tr. 520.)³ Hernandez answered "no." (Hernandez: Tr. 520.) The court allowed the prosecution to inquire into this specific incident because it went toward the witness's credibility as a character witness, and the court immediately instructed the jury accordingly:

3 The court found that the prosecution had shown a good faith basis for the question, namely that either Cuevas or Cabreja, who knew Yapor, had told the police that Yapor had been fired from the hotel because of his violent temper, which a detective had recorded in his memo book. (Colloquy: Tr. 511-13, 514-18.)

Members of the jury, on this testimony, I want to instruct you as follows as to what the law is. With regard to what [the prosecutor] just asked this witness, it is not to show, and you may not consider that it shows the truth of that alleged incident at the hotel, but only to show this witnesses' [sic] ability to accurately reflect the defendant's reputation.

(Hernandez: Tr. 520.)

Evidence of Mrs. Yapor's Arrest and Yapor's Subsequent Surrender

Detective Ramirez testified that on April 23, 1997, Yapor's wife was arrested for criminal possession of a controlled substance. (Ramirez: Tr. 499-500.) The judge immediately instructed the jury that "under no circumstances may the testimony as to the charge against the wife be considered as evidence of guilt of the defendant of any of the charges in this case." (Tr. 500.) The judge added that "the charges against the wife do not exist with regard to this defendant." (Tr. 500.)

On April 24, 1997, Yapor turned himself in to the police in Orlando Florida. (Sayer: Tr. 551-53.) Yapor approached Officer Sayer on the street in Orlando and told him that he had killed someone in New York City four days earlier. (Sayer: Tr. 553-54.) Yapor told Officer Sayer who he had shot and where it had occurred. (Sayer: Tr. 554; Pearson: Tr. 570-71.) Yapor also told Officer Sayer that the police in New York had his wife in custody for the murder and that he was tired of running and wanted to turn himself in. (Sayer: Tr. 554.) Officer Sayer testified that Yapor seemed calm, "[m]aybe a little bit remorseful," and "possibly mentally ill." (Sayer: Tr. 555, 561-62.)

On April 29, 1997, New York detectives picked Yapor up in Florida and brought him back to New York. (Lungaro: Tr. 74.)

The Defense Case at Trial: Yapor's Testimony

Yapor testified on his own behalf at trial. (Yapor: Tr. 621-704.) Yapor testified about the first incident involving Dominguez in October 1996 (although other witnesses had put it in February 1997, see page 3 above). (Yapor: Tr. 624-26, 648.) During the scuffle, Yapor held up a gun, not pointing it at anyone, because the group of Dominguez's friends had gotten larger and they were trying to get in to the pool hall to hit him. (Yapor: Tr. 626-27, 649-50.)

Several months later, in the early morning hours of April 20, 1997, Dominguez came into the pool hall and according to Yapor:

[Dominguez] went to the register. He stood for one moment looking at me, stayed there about almost a minute. I got nervous but I stood still and he kept looking at me and I turned around when he looked at me. He had a weapon and he said, I am going to kill you. Then he turned around. He picked up the phone and he slammed it down hard, boom, and he left. (Yapor: Tr. 628; see also id. at 636-37.)⁴ Yapor told Landestoy about this incident and threat, and told Landestoy that if it continued, he was not going to continue working at the pool hall. (Yapor: Tr. 635.) Yapor did not tell Landestoy that Dominguez had a gun. (Yapor: Tr. 637-38.)

4 On cross-examination, Yapor said he never actually saw the gun, but rather that Dominguez had his hand on something at his waistband which Yapor understood to mean that he had a gun. (Yapor: Tr. 647: "when you grab yourself like that it's because you have a weapon," 701-02.)

That night, while Yapor was working at the register, he saw Landestoy and another former worker talking to Dominguez across the street. (Yapor: Tr. 627.) Yapor took it as an opportunity to speak to Dominguez about what had transpired earlier. (Yapor: Tr. 628.) Yapor had a gun in his pocket, the same gun as in the prior incident. (Yapor: Tr. 631-32, 644.) When Yapor joined the men on the street, he brought up how Dominguez would come into the pool hall and stare at him and that when Dominquez gets drunk or is on drugs he bothers Yapor. (Yapor: Tr. 639.)⁵

5 The prosecutor pointed out on cross-examination that Yapor did not mention anything about Dominguez threatening him with a gun during the argument. (Yapor: Tr. 639.)

Before Yapor turned to walk away he said to Dominguez: "It's okay, let's leave it like that." (Yapor: Tr. 656, 658-59.) Yapor did not say "don't mess with me or you'll see what will happen." (Yapor: Tr. 656.) As Yapor began to walk away, he was thinking he would leave the job. (Yapor: Tr. 628-30.) Yapor had gone some fifteen feet, not several (Yapor: Tr. 659-64) when Dominguez said to Yapor that he was a "shit head." (Yapor: Tr. 629, 655.) At this, Yapor turned his head and looked over his shoulder (Yapor: Tr. 666) and he saw Dominguez

made like a movement with his hand and he said another word. . . . When I turned around and I saw that he like moved his hand, I totally lost — I thought he was going to shoot me, if he hadn't called to me, I would have continued back to the pool hall, but I got very nervous because of the argument we had. I got very nervous, but if he hadn't called to me when I was leaving, none of this would have happened.

(Yapor: Tr. 629-30.) Once Yapor saw what he thought was Dominguez reaching for a gun, Yapor shot Dominguez. (Yapor: Tr. 630, 671, 673.) Yapor testified that he killed Dominguez because he thought Dominguez was going to kill him. (Yapor: Tr. 633.)

Yapor testified that he does not know why he brought the gun with him, and that he asks himself that very question, and also that he did not know why he ran from the scene, he just did it. (Yapor: Tr. 630, 644, 691-92.) When asked by the prosecutor to explain what he meant when he testified that he lost control (Yapor: Tr. 686) when he shot Dominguez, Yapor explained:

It's like if a demon came and it got into me. I felt like a demon was in me because I saw like the nose, my nose was trembling after I did that, like the dogs and I said, what is happening to me, oh my God, what have I done. I couldn't believe how things had happened.

(Yapor: Tr. 688-89.)

Events After the Shooting

After Yapor had fled the scene and borrowed money from Milagros Rivera Hernandez, he called another friend who picked him up and took him to her house in New Jersey where he stayed overnight. (Yapor: Tr. 693-96.) Yapor wanted to turn himself in to the police but he was scared to do it, so he stayed another day in New Jersey and then took a bus to Orlando, where he has some family. (Yapor: Tr. 696-97.) When Yapor got to Florida he called his brother-in-law who told him that Yapor's wife had been arrested. (Yapor: Tr. 699.) Yapor gave himself up in Orlando after he heard that his wife had been arrested. (Yapor: Tr. 700.) Yapor's Attempt to Enter Evidence That He Had Not Been Fired For Violence

On re-direct examination, defense counsel sought to introduce a letter written by someone at the agency which sent Yapor to work at the Sheraton Hotel. (Tr. 705.) The judge excluded the letter as hearsay and also because the court had already instructed the jury to consider the question asked about the reason for Yapor's termination from his job at the Sheraton not for its truth but rather as part of character evidence. (Tr. 706.) Defense counsel wanted to ask Yapor if he had heard that other people had said he had been fired for a violent temper, but the court did not allow that question. (Tr. 707.) The judge offered to repeat the limiting instruction it had given when the prosecutor had asked about Yapor's termination from the Sheraton (Tr. 707) and did so in the charge to the jury at the end of the case (Charge: Tr. 803).

Pre-Charge Conference

At the pre-charge conference defense counsel requested the court charge the jury on extreme emotional disturbance and self-defense (Tr. 712), the prosecutor objected (Tr. 714-16), but the court said it would charge as to both requests (Tr. 717-19).

Jury Charge on Extreme Emotional Disturbance and Self-Defense

As part of the charge on the second degree murder count, the judge explained the defense of extreme emotional disturbance:

[I]f you find the People have not proven beyond a reasonable doubt, each of those elements [of second degree murder], then you must consider an affirmative defense, the defendant has raised. That defense, if proved, does not relieve the defendant of responsibility for the homicide, but under our law, it reduces the degree of the crime from murder in the second degree to manslaughter in the first degree. Remember, if you have already found the defendant not guilty of murder in the second degree, you will not consider the affirmative defense.

Now, I am going to tell you about that affirmative defense and what that means. Under our law, it is an affirmative defense to a charge of murder in the second degree, that the defendant acted under the influence of extreme emotional disturbance, for which there was a reasonable explanation or excuse. . . .

Now, under our law, the defendant, not the prosecution has the burden of proving this affirmative defense by a preponderance of the evidence. . . .

[I]f you find that the defendant has not proven the affirmative defense by a preponderance of the evidence, then based upon your initial determination that the People had proven beyond a reasonable doubt each of the elements of murder in the second degree, you must find the defendant guilty of murder in the second degree as charged in this first count of the indictment. On the other hand, if you find that the defendant has proven the affirmative defense by a preponderance of the evidence then you must find the defendant not guilty of murder in the second degree as charged in the first count, but you must find the defendant guilty of the reduced charge of manslaughter in the first degree.

(Charge: Tr. 806-10.)

The judge instructed the jury on the second count, second degree attempted murder of Carlos Cuevas (Charge: Tr. 811-14) and that the defense of extreme emotional disturbance also applied to that charge (Charge: Tr. 814-15).

After charging the jury on the remaining three counts, the court instructed the jury on the defense of self-defense:

Now, you've heard reference to the fact that the defense is claiming a defense of self defense at this trial. I have given you complete instructions as to when you must find the defendant not guilty and when you must find him guilty. . . .

[I]f you have determined that the People have established all of the elements of one or more of those charges, then, as to such proven charge, you must then turn to consider the defendant's defense known in law . . . as justification, or which is commonly referred to as self-defense. The same thing. Justification and self defense are the same thing.

. . . .

Now, even if a defendant is otherwise guilty of count one, two, three or five, if you should determine that he acted in self-defense, that is with justification, then, he must nevertheless be found not guilty.

. . . .

It becomes the burden of the People to convince you beyond a reasonable doubt that he was not acting in self-defense.

. . . . [The court then defined the elements of justification.]

Only if the People convince you beyond a reasonable doubt that the defendant was not acting in self-defense must you then find him guilty of those crimes provided that the elements of the crimes were proven beyond a reasonable doubt.

(Charge: Tr. 824-33.)

There were no objections by counsel to the court's charge. (Charge: Tr. 837-38.)

Jury Questions

During its deliberation, the jury sent back a number of notes to the judge, one of which asked for the definition of first degree manslaughter.⁶ (Deliberations: Tr. 856.) The judge responded to the jurors' question:

6 The jury charge had not included the definition of this crime because all the jury needed to know was that if they found the defendant guilty of second degree murder but also found the defense of extreme emotional disturbance to have been proven by the defense, then they would find the defendant guilty of the reduced charge of first degree manslaughter instead of second degree murder. (Deliberations: Tr. 856, 867.)

[I]f you find the defendant guilty of murder in the second degree, you must then determine whether the defense has proven the affirmative defense of extreme emotional disturbance in order to determine whether the reduced manslaughter in the first degree would apply. I'll repeat that. If the defendant is found guilty of murder in the second degree and if the defense of extreme emotional disturbance has been proven, then manslaughter in the first degree must be your verdict.

(Deliberations: Tr. 867.) Counsel did not object. (Deliberations: Tr. 857-58, 867.)

A subsequent note asked the court to restate the definition of self-defense (Deliberations: Tr. 886) which the court did (Deliberations: Tr. 891-99.) Another question asked for a restatement of the charge of second degree murder. (Deliberations: Tr. 899.) The judge restated the definition of the crime (Deliberations: Tr. 900-01) and restated the affirmative defense of extreme emotional disturbance (Deliberations: Tr. 901-04). Another note requested that the "definition and qualifiers" of extreme emotional disturbance be restated. (Tr. 918.) The court did so. (Tr. 920-25.) There was no objection from counsel. (Tr. 918-19, 926.)

Verdict

The jury found Yapor guilty of first degree manslaughter, second degree criminal possession of a weapon and first degree reckless endangerment. (Verdict: Tr. 931-34.) Yapor was acquitted of the other two charges — second degree attempted murder and second degree assault. (Tr. 932.)

Sentencing

On March 19, 1999 at Yapor's sentencing, Defense counsel addressed the court and responded to comments made by the prosecutor about Yapor's prior conviction on a drug charge that if Yapor "were a major drug dealer, I hardly think he would be working half the night in a pool room." (Dkt. No. 10: 3/19/99 Sentencing Tr. ["S."] 26.) Defense counsel also remarked that the jury found Yapor had not acted with intent to cause death and that the act came from an emotionally disturbed state. (S. 27.) Defense counsel outlined the general concerns the court needed to address: First was that "this defendant's boiler blew up. He needs to be forever reminded that that cannot happen again." (S. 27.) Second was the need for the public to know shootings are not condoned and third, the needs of the victim's family had to be addressed. (S. 27-28.) Defense counsel continued that "[t]he jury found room to make allowances here," and he asked that "the [c]ourt continue on that road laid out by the jury and that in bringing all the interests together here, the [c]ourt add the touch of mercy to this balance." (S. 28.)

After the defendant spoke on his own behalf (S. 28-30) the judge spoke before imposing sentence (S. 33-36). Since the victim's family had requested a life sentence for Yapor (S. 9), the judge explained that it was not within his power to impose such a sentence because "the jury took that possibility away" from him. (S. 34.) The judge added: "[I]f the power were given to me to sentence the defendant to life, I would not have hesitated to give it." (S. 34.) The judge stated that "the law does give me the power to impose a very substantial sentence on this defendant. . . . I agree that the facts of this case prove beyond any question that a maximum sentence is appropriate. There is no room for mitigation beyond the mitigation already given by law under a manslaughter first degree conviction." (S. 35.) The judge also noted that the jury had rejected any argument that Yapor acted in self defense. (S. 36.)

The judge sentenced Yapor to twelve and one half to twenty-five years on the first degree manslaughter count, to run concurrently with the sentences of seven and one half to fifteen years on the second degree possession of a weapon count and two and one third to seven years on the first degree reckless endangerment count. (S. 36-37.) The sentences were the maximum for each count. (S. 36-37.) Yapor's Direct Appeal

Represented by the Office of the Appellate Defender, Yapor's direct appeal to the First Department raised the following issues: (1) he was denied a fair trial when the trial court allowed a character witness to be cross-examined without a good faith basis about Yapor's termination from a job because of a violent temper (Dkt. No. 7: State Answer Exhibits: Ex. A: Yapor 1st Dep't Br. at 15-19); (2) he was denied his right to due process and a fair trial when the trial court admitted evidence that his wife had been arrested for a drug crime (id. at 20-22); (3) he was denied a fair trial when the trial court allowed the prosecutor to introduce evidence that Yapor had possessed a gun during a prior altercation with the decedent (id. at 23-26); (4) he was deprived of his right to a jury verdict because of erroneous jury instructions on extreme emotional disturbance and justification (i.e., self-defense) (id. at 27-32); (5) he received ineffective assistance of trial counsel at sentencing (id. at 33-35); and (6) his sentence to the maximum term was excessive and should be reduced (id. at 36-41).

The First Department affirmed Yapor's conviction and declined to reduce his sentence. People v. Yapor, 308 A.D.2d 361, 764 N.Y.S.2d 261 (1st Dep't 2003). The First Department held that the evidentiary rulings challenged by Yapor were "appropriate exercises of discretion" by the trial judge. Id. at 362, 764 N.Y.S.2d at 262.⁷ The First Department also held that Yapor received effective assistance of counsel at sentencing and that there was no basis to reduce his sentence. Id. Yapor's remaining contention — by default, his jury instruction claim — was deemed unpreserved and, if the appellate court were to review them, meritless nonetheless. Id. ⁸

7 The First Department held:

The evidentiary rulings challenged by defendant constituted appropriate exercises of discretion. When defendant elicited character testimony, the court properly permitted the People to ask the witness about defendant having been terminated from a job as a result of violent behavior, since the People made a suitable showing of "some reasonable basis for believing the truth" of the matter inquired about. The court's limiting instructions made it unnecessary for defendant to introduce evidence explaining his termination. The court properly admitted evidence of the arrest of defendant's wife as explanatory background information to complete the narrative, especially with regard to testimony that when defendant surrendered to the police he mistakenly believed his wife had been arrested for the instant homicide. The court properly admitted evidence of a prior incident in which defendant threatened a group that included the deceased, since this uncharged crime was relevant to motive and intent, and provided background information necessary to explain the relationship between defendant and the deceased.

Id. (citations omitted).

8 The First Department held:

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

Id.

The New York Court of Appeals denied leave to appeal on December 15, 2003. People v. Yapor, 1 N.Y.3d 583, 775 N.Y.S.2d 798 (2003).

Yapor's Instant Habeas Petition

Yapor's federal habeas petition renewed each argument made in his First Department appeal brief and he submitted that brief as support for his arguments here. (See page 16 above.)

ANALYSIS

I. THE AEDPA REVIEW STANDARD ⁹

Before the Court can determine whether Yapor 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).¹⁰

10 See also, e.g., Cox v. Donnelly, 387 F.3d 193, 197 (2d Cir. 2004); Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 124 S. Ct. 1713 (2004); Eze v.Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v.Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S. Ct. 1611 (2002)); Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners.").

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 1519.¹¹ 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 1523.¹² "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, 341 F.3d at 110; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

11 Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert. denied, 124 S. Ct. 962 (2003); 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).

12 Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. 2140, 2147 (U.S. 2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Wiggins v.Smith, 539 U.S. 510, 123 S. Ct. 2527, 2534 (2003); Lockyer v.Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 124 S. Ct. 2171 (2004); Parsad v.Greiner, 337 F.3d at 181; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 341 F.3d 104, 109-110 (2d Cir. 2003); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S. Ct. 251 (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 1519-20.¹³

13 Accord, e.g., Brown v. Payton, 125 S. Ct. 1432, 1438-39 (2005); Bell v. Cone, 125 S. Ct. 847, 851 (2005);Price v. Vincent, 538 U.S. 634, 123 S. Ct. 1848, 1853 (2003);Lockyer v. Andrade, 123 S. Ct. at 1173-74; Rosa v.McCray, 396 F.3d 210, 219 (2d Cir. 2005); Tueros v.Greiner, 343 F.3d at 591; DelValle v. Armstrong, 306 F.3d at 1200; Yung v. Walker, 341 F.3d at 109; 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 1523.¹⁴ However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "anunreasonable application of federal law is different from anincorrect application of federal law." Id. ¹⁵ Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521.¹⁶ "Objectively unreasonable" is different from "clear error." Lockyer v.Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, 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)).¹⁷ "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 124 S. Ct. at 2149.¹⁸

14 Accord, e.g., Brown v. Payton, 125 S. Ct. at 1439;Wiggins v. Smith, 123 S. Ct. at 2534-35; Parsad v.Greiner, 337 F.3d at 181.

15 See also, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 360 (2002)); Lockyer v.Andrade, 538 U.S. at 75, 123 S. Ct. at 1175; Rosa v.McCray, 396 F.3d at 219; Cox v. Donnelly, 387 F.3d at 197;Eze v. Senkowski, 321 F.3d at 124-25; DelValle v.Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

16 Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853; Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1174-75; Woodford v. Visciotti, 537 U.S. at 25-27, 123 S. Ct. at 360-61; Cox v. Donnelly, 387 F.3d at 197; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Lurie v.Wittner, 228 F.3d at 128-29.

17 Accord, e.g., Rosa v. McCray, 396 F.3d at 219;Cox v. Donnelly, 387 F.3d at 197, 200-01; Eze v.Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 341 F.3d at 110; Loliscio v. Goord, 263 F.3d at 184; Christie v. Hollins, 2003 WL 22299216 at *3.

18 The Supreme Court explained:

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations. Yarborough v. Alvarado, 124 S. Ct. at 2149.

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 45.¹⁹

19 Accord, e.g., Tueros v. Greiner, 343 F.3d at 591;Yung v. Walker, 341 F.3d at 109; see Yarborough v.Alvarado, 124 S. Ct. at 2150-51 ("The petitioner contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.") (citations omitted).

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v.Walker, 341 F.3d at 109; accord, e.g., Bell v. Cone, 125 S. Ct. at 853.

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., Bell v. Cone, 125 S. Ct. at 853 ("Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them.");Rosa v. McCray, 396 F.3d at 220: Wade v. Herbert, 391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was "'without merit.'" "Such a summary determination, even absent citation of federal case law, is a 'determination on the merits' and as such requires the deference specified by § 2254." Moreover, "[I]f any reasonable ground was available [for the state court's decision], we must assume that the [state] court relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 125 S. Ct. 110 (2004); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference.").²⁰ "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).²¹ Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

20 Accord, e.g., Cox v. Donnelly, 387 F.3d at 197 ("Neither the Appellate Division nor the New York Court of Appeals addressed [petitioner's] argument beyond a brief statement that the argument was without merit. In the absence of any expressed reasoning behind this conclusion, we turn directly to the facts of the case to determine whether Strickland was applied unreasonably."); Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81; Cotto v.Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v.Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S. Ct. 694 (2002); Norde v.Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
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., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v.Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

21 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); accord, e.g., Rosa v. McCray, 396 F.3d at 220. "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'"Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

II. YAPOR'S CLAIM THAT HE WAS DENIED DUE PROCESS AND A FAIR TRIAL BASED ON STATE EVIDENTIARY ERRORS DOES NOT PROVIDE A BASIS FOR HABEAS RELIEF A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings ²²

22 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 Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *15-16, (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *10-12 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *19-21 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *8-10 (S.D.N.Y. July 24, 2002) (Peck, M.J.); 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.'").²³ 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); see also, e.g., Vega v. Portuondo, No. 03-2856, 120 Fed. Appx. 380, 382, 2005 WL 78786 at *1 (2d Cir. Jan. 10, 2005) ("Even assuming, for the sake of argument, that petitioner is correct to assert that admission of [the evidence] was erroneous as a matter of [state] law, this alone would not suffice to merit federal habeas relief. . . . 'The introduction of unfairly prejudicial evidence against a defendant in a criminal trial . . . does not amount to a violation of due process unless the evidence is so extremely unfair that its admission violates fundamental conceptions of justice.'") (citations omitted). 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).²⁴

23 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.).

24 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.²⁵ 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).²⁶

25 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).

26 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.²⁷ Here, Yapor asserts that his due process rights and right to a fair trial were violated by the state court's evidentiary rulings. (Dkt. No. 1: Pet., incorporating Yapor 1st Dep't Br. at 15-26.)

27 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.Crinder, 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).²⁸ The test for "fundamental fairness" is whether the excluded evidence, "'evaluated in the context of the entire record,'"²⁹ "'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).³⁰

28 See also, e.g., Jones v. Stinson, 229 F.3d at 120;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. . . .").

29 "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).

30 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.'") (quotingJohnson 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 276.³¹

31 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 underKotteakos."); 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 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 Yapor to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish (1) that the trial court's evidentiary rulings were erroneous as a matter of state law, (2) under Agurs, that admission/exclusion of evidence deprived him of a fair trial, and (3) under the AEDPA, that the state court's ruling constituted an objectively unreasonable application of theAgurs standard.

B. Application of This Standard to Yapor's Character Witness Claim

Yapor asserts that he was denied his "right to confront and cross-examine witnesses" when the trial court permitted the prosecution to ask Milagros Rivera Hernandez if she had heard that Yapor "'was fired' from a hotel where [Yapor] had worked 'because he was violent.'" (Yapor 1st Dep't Br. at 16; see pages 6-7 above.) Yapor contends that this question was improper because the prosecution lacked a reasonable basis to believe that Yapor was in fact fired for having a violent temper. (Id. at 16-17.) Consequently, Yapor argues that it was error for the court to preclude Yapor from testifying about the reasons for his termination and from entering into evidence a letter stating that he had not, in fact, been fired for a violent temper. (Id. at 17-18.) Finally, Yapor argues that the limiting instruction issued by the trial judge failed to cure the error and, instead, served only to highlight it. (Id. at 18.)³²

32 The State argues that this claim is unexhausted because Yapor did not properly raise it as a federal constitutional issue, as opposed to a state law issue, in his letter requesting leave to appeal to the New York Court of Appeals. (Dkt. No. 8: State Br. at 29, 33-35; see Dkt. No. 7: Ex. E: Yapor Ct. App. Leave Application at 3-5.) This Court need not decide the exhaustion issue because, pursuant to 28 U.S.C. § 2254(b)(2), this Court has the discretion to deny Yapor's unexhausted claim on the merits. See, e.g., Weeks v. Senkowski, No. 03-2501, 96 Fed. Appx. 787, 787, 2004 WL 1147070 at *1 (2d Cir. May 20, 2004) ("Denial 'on the merits' is permissible 'notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.'"); Figueroa v.Grenier, No. 02 Civ. 5444, 2005 WL 249001 at *10 (S.D.N.Y. Feb. 3, 2005) ("It is unnecessary to address the issue of exhaustion, [where respondent argued that petitioner failed to alert the New York Court of Appeals to the federal nature of his claim,] because the claim would have to be dismissed on the merits.");Naranjo v. Filion, No. 02 Civ. 5449, 2003 WL 1900867 at *8 n. 14 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.) ("Under § 2254(b)(2), the Court has the discretion to deny claims 'on the merits notwithstanding the failure . . . to exhaust. . . .'") ( cases cited therein). Since Yapor's claim is meritless, the Court need not decide the exhaustion issue.

It is well-settled under New York law that once a defendant places his character at issue, the prosecution is entitled to cross-examine defendant's character witnesses about specific acts of misconduct allegedly committed by the defendant which are inconsistent with the reputation they have attributed to him.E.g., People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 224 (1993) (The witness' "assertion that defendant had been nonviolent 'throughout his life' was at odds with evidence that defendant had committed a robbery. Once the statement was made, the jury was entitled to know about evidence that could cast doubt on the [witness'] conclusion."); People v. Kuss, 32 N.Y.2d 436, 443, 345 N.Y.S.2d 1002, 1007 (1973) ("When [the character witnesses'] credibility is at issue, it is well established that they may be asked as to the existence of rumors or reports of particular acts allegedly committed by the defendant which are inconsistent with the reputation they have attributed to him."), cert. denied, 415 U.S. 913, 94 S. Ct. 1408 (1974); People v. Rivera, 295 A.D.2d 124, 125, 742 N.Y.S.2d 824, 825 (1st Dep't) ("[A]fter the defense presented defendant's neighbor who testified that defendant is non-violent and enjoys a reputation for peacefulness in the community, it was proper for the prosecution to ask the witness, on cross-examination, whether she had heard of an incident in which defendant punched a security guard in the face."), appeal denied, 99 N.Y.2d 539, 752 N.Y.S.2d 600 (2002); People v.Lopez, 258 A.D.2d 388, 389, 685 N.Y.S.2d 677, 678 (1st Dep't) ("Defendant's character witness was properly asked whether he had heard about defendant's prior arrest for possession of a weapon, since one of the character traits attested to by the witness was peacefulness, and the questions about the arrest properly tested the extent of the witness's knowledge of defendant's reputation for that trait, without exploiting any details of the incident."), appeal denied, 93 N.Y.2d 1022, 697 N.Y.S.2d 580 (1999); People v.Garrick, 246 A.D.2d 478, 479, 667 N.Y.S.2d 747, 747 (1st Dep't), appeal denied, 92 N.Y.2d 852, 677 N.Y.S.2d 82 (1998).

The prosecutor's inquiry cannot be used to prove the truth of such rumors, but only to test the credibility of the character witnesses and the extent of their knowledge of petitioner's reputation. People v. Kuss, 32 N.Y.2d at 443, 345 N.Y.S.2d at 1008 ("The relevant consideration after all is not the truth or falsity of the particular account, but rather 'the qualifications of the witness to bespeak the community opinion.'"); People v.Rivera, 295 A.D.2d at 125, 742 N.Y.S.2d at 825; People v.Yarbough, 229 A.D.2d 605, 606, 646 N.Y.S.2d 353, 354 (2d Dep't) ("Since the defendant placed his character in the community at issue [by calling a character witness], the relevant consideration was not the truth or falsity of the particular event involving the defendant but the [character] witness's qualification to speak about the defendant's reputation."),appeal denied, 89 N.Y.2d 932, 654 N.Y.S.2d 734 (1996). Moreover, the prosecutor must establish a good faith basis for the questioning. People v. Alamo, 23 N.Y.2d 630, 633, 298 N.Y.S.2d 681, 683 ("[Q]uestions such as these to the character witness and to the defendant himself as a witness are not error if the prosecutor asked them in good faith, that is to say, if he had some reasonable basis for believing the truth of things he was asking about."), cert. denied, 396 U.S. 879, 90 S. Ct. 156 (1969); see also, e.g., People v. Kuss, 32 N.Y.2d at 443, 345 N.Y.S.2d at 1007; People v. Yarbough, 229 A.D.2d at 606-07, 646 N.Y.S.2d at 354-55; People v. Garrick, 246 A.D.2d at 478, 667 N.Y.S.2d at 747. Finally, a limiting instruction to the jury eliminates the possibility of prejudice to the defendant. People v. Fardan, 82 N.Y.2d at 646-47, 607 N.Y.S.2d at 224; People v.Kuss, 32 N.Y.2d at 443, 345 N.Y.2d at 1008; People v.Rivera, 295 A.D.2d at 125, 742 N.Y.S.2d at 825; People v.Garrick, 246 A.D.2d at 479, 667 N.Y.S.2d at 747.

The trial court (and the First Department) here did not err by permitting the prosecutor to ask Milagros Rivera Hernandez on redirect whether she had heard that Yapor had been fired from a previous job due to a violent temper. (See pages 6-7 above.) Yapor put his character for peacefulness at issue on his examination of Hernandez. (See page 6 above.) As a result, the prosecutor was permitted to ask whether Hernandez had heard that Yapor had been fired for a violent temper. (See pages 6-7 above.) The judge was within his discretion when he determined that the prosecution had a good faith basis for asking the question based on the prosecutor's representation that either Carlos Cuevas or Juan Carlos Cabreja, who knew Yapor, had told Detective Lungaro that Yapor had been fired from the hotel because of his violent temper, and that the detective had recorded it in his memo book. (See page 7 n. 3 above.) See, e.g., People v. Alamo, 23 N.Y.2d at 635, 298 N.Y.S.2d at 684 (prosecutor's reasonable basis in fact were reports that had been received "'from several parties' by a policeman, whose name was disclosed by the prosecutor, that defendant had sold marijuana cigarettes on a public beach."); People v. Sealy, 167 A.D.2d 362, 363, 561 N.Y.S.2d 313, 313 (2d Dep't 1990) (prosecutor had good faith basis to ask defendant if he had confessed to someone named Mallick after the defendant denied shooting anyone, "namely a police report indicating that a named individual had stated that Mallick had told him that the defendant confessed to Mallick that he had shot someone on 91st Street," since "there is no requirement that the prosecutor's good-faith basis stem from evidence in admissible form."), appeal denied, 77 N.Y.2d 843, 567 N.Y.S.2d 212 (1991).

Nevertheless, even if permitting the testimony was erroneous as a matter of state law, any such error did not deprive Yapor of a fundamentally fair trial, given the strong evidence against him. There were six eyewitnesses (all of whom knew Yapor, so there was no mistaken identification issue), who testified to Yapor's shooting of Dominguez, not to mention Yapor's own testimony that he had shot Dominguez.

Moreover, the trial judge gave a very specific limiting charge twice to the jury to ensure that the jurors considered the information brought out by the prosecutor's question only for the purpose of impeaching Hernandez' ability to accurately reflect Yapor's reputation in the community for peacefulness, not for the truth of the incident at the Sheraton hotel. (See pages 7, 11 above.) Limiting instructions have been found to militate against a finding of constitutional error. See, e.g., Peakes v.Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *18 n. 29 (S.D.N.Y. June 16, 2004) ("The jury is presumed to obey a court's curative instruction."); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *16 (S.D.N.Y. July 18, 2002) (Peck, M.J.) (admission of prior crimes evidence did not deprive petitioner of a fair trial in light of, inter alia, judge's limiting instructions);Kanani v. Phillips, 2004 WL 2296128 at *19 (denying petitioner's habeas petition where "trial judge gave a very specific limiting charge to the jury to ensure that jurors considered information about the uncharged crimes only for appropriate purposes, and not on [petitioner's] guilt or innocence of the crimes charged in the indictment."); Cruz v.Greiner, 98 Civ. 7839, 1999 WL 1043961 at *31 n. 26 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.) (rejecting petitioner's argument that "if you throw a skunk into the jury box, you can't instruct the jury not to smell it" and finding that the court's instruction to disregard inadmissible evidence rendered harmless any prosecutorial misconduct) ( cases cited therein).³³

33 The jury is presumed to obey a court's curative instruction. See, e.g., Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S. Ct. 3102, 3109 n. 8 (1987) ("We normally presume that a jury will follow an instruction to disregard inadmissible evidence . . ., unless there is an 'overwhelming probability' that the jury will be unable to follow the court's instructions."); Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 1709 (1987) ("juries are presumed to follow . . . instructions"); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S. Ct. 488, 463 (1962) (When a limiting instruction is clear, "[i]t must be presumed that the jury conscientiously observed it."); see also, e.g., United States v. Linwood, 142 F.3d 418, 426 (7th Cir.) ("Juries may not be familiar with the hearsay rule, but the law assumes that they can and do follow the limiting instructions issued to them."), cert. denied, 525 U.S. 897, 119 S. Ct. 224 (1998); Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir.) (the court "assume[s] that a jury applies the instructions it is given"), cert. denied, 519 U.S. 834, 117 S. Ct. 106 (1996); United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993); Cruz v. Greiner, 1999 WL 1043961 at *31 n. 26.

Further, the trial court was within its discretion to exclude extrinsic evidence proffered by the defense to refute that Yapor had been fired for a violent temper because the court had issued its limiting instruction that the jury was not to consider the question about Yapor's firing for its truth. The limiting instructions rendered it unnecessary to admit facts to prove a collateral issue. See People v. Jimenez, 287 A.D.2d 297, 297, 731 N.Y.S.2d 359, 360 (1st Dep't) ("Contrary to defendant's claim, [questions about an unrelated murder that produced self-incriminating responses from the witness] pertained to a collateral matter and the court appropriately chose the least drastic alternative of giving a limiting instruction rather than striking the testimony of the witness."), appeal denied, 97 N.Y.2d 683, 738 N.Y.S.2d 299 (2001).

The prosecution's question impeaching Milagros Rivera Hernandez did not constitute state law error, nor deprive Yapor of a fundamentally fair trial. This claim in Yapor's habeas petition should be denied.

C. Application to Yapor's Claim that Evidence of His Wife's Arrest Was Error

Yapor asserts that he was denied due process and a fair trial when the court allowed evidence that Yapor's wife had been arrested on a drug charge, since it suggested that Yapor was a drug dealer or drug user. (Yapor 1st Dep't Br. at 20-22.)

Under New York law, evidence of uncharged crimes is generally inadmissable so that the jury does not convict the defendant based on a perceived predisposition towards criminal conduct that is deserving of punishment rather than for guilt of the charged offense. E.g., People v. Molineux, 168 N.Y. 264, 291, 61 N.E. 286 (1901); see, e.g., United States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir. 1995); United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992), cert. denied, 510 U.S. 856, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993); Roldan v. Artuz, 78 F. Supp. 2d 260, 277 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.);Rios v. Hoke, No. 85-CV-1241, 1988 WL 101013 at *3 (N.D.N.Y. Sept.19, 1988); see also, e.g., People v. Hudy, 73 N.Y.2d 40, 55, 538 N.Y.S.2d 197, 205-06 (1988), abrogated on other grounds, Carmell v. Texas, 529 U.S. 513, 120 S. Ct. 1620 (2000); People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 11 (1987); People v. Beam, 57 N.Y.2d 241, 250, 455 N.Y.S.2d 575, 579-80 (1982); People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 264 (1981); People v. Allweiss, 48 N.Y.2d 40, 46-47, 421 N.Y.S.2d 341, 344 (1979); People v.Vails, 43 N.Y.2d 364, 368, 401 N.Y.S.2d 479, 481 (1977); People v.Condon, 26 N.Y.2d 139, 143, 309 N.Y.S.2d 152, 154 (1970).³⁴

34 See also, e.g., People v. Davis, 259 A.D.2d 706, 687 N.Y.S.2d 653, 654 (2d Dep' t), appeal denied, 93 N.Y.2d 1016, 697 N.Y.S.2d 575 (1999); People v. Kanston, 192 A.D.2d 721, 721, 597 N.Y.S.2d 152, 153 (2d Dep' t), appeal denied, 81 N.Y.2d 1074, 601 N.Y.S.2d 594 (1993); People v. Pons, 159 A.D.2d 471, 473, 552 N.Y.S.2d 344, 345 (2d Dep' t), appeal denied, 76 N.Y.2d 741, 558 N.Y.S.2d 902 (1990); People v.Battles, 83 A.D.2d 164, 166, 443 N.Y.S.2d 932, 934 (4th Dep't 1981); People v. Le Grand, 76 A.D.2d 706, 708-09, 431 N.Y.S.2d 850, 852 (2d Dep't 1980).

"However, when the evidence of the other crimes is relevant to an issue other than the defendant's criminal tendency, it may be admitted on the basis of an exception to the general rule, but only for the limited purpose for which it is relevant." People v. Beam, 57 N.Y.2d at 250, 455 N.Y.S.2d at 579-80; accord, e.g., People v. Till, 87 N.Y.2d 835, 837, 637 N.Y.S.2d 681, 682 (1995); People v. Hudy, 73 N.Y.2d at 55, 538 N.Y.S.2d at 206; People v. Alvino, 71 N.Y.2d at 241-42, 525 N.Y.S.2d at 11; People v. Ventimiglia, 52 N.Y.2d at 359-60, 438 N.Y.S.2d at 264; People v. Allweiss, 48 N.Y.2d at 46-47, 421 N.Y.S.2d at 344; People v. Vails, 43 N.Y.2d at 368, 401 N.Y.S.2d at 482;People v. Condon, 26 N.Y.2d at 143, 309 N.Y.S.2d at 154;People v. Molineux, 168 N.Y. at 293, 61 N.E. 286; see also, e.g., Roldan v. Artuz, 78 F. Supp. 2d at 277.

"Even then, such evidence is admissible only upon a trial court finding that its probative value for the jury outweighs the risk of undue prejudice to the defendant." People v. Till, 87 N.Y.2d at 836-37, 637 N.Y.S.2d at 682; accord, e.g., People v. Hudy, 73 N.Y.2d at 55, 538 N.Y.S.2d at 206; People v.Alvino, 71 N.Y.2d at 241-42, 525 N.Y.S.2d at 11.

"In People v. Molineux (supra), [the New York Court of Appeals] stated what has come to be known as the five Molineux exceptions to the rule forbidding introduction of evidence of similar crimes." People v. Beam, 57 N.Y.2d at 250, 455 N.Y.S.2d at 580; see also, e.g., Roldan v. Artuz, 78 F. Supp. 2d at 277. The New York Court of Appeals in Molineux held that "[g]enerally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial." People v. Molineux, 168 N.Y. at 293, 61 N.E. 286; accord, e.g., Roldan v.Artuz, 78 F. Supp. 2d at 277; People v. Alvino, 71 N.Y.2d at 242, 525 N.Y.S.2d at 11; People v. Ventimiglia, 52 N.Y.2d at 359, 438 N.Y.S.2d at 264; People v. Allweiss, 48 N.Y.2d at 47, 421 N.Y.S.2d at 344; People v. Vails, 43 N.Y.2d at 368, 401 N.Y.S.2d at 482; People v. Condon, 26 N.Y.2d at 143, 309 N.Y.S.2d at 155. This list of exceptions is "illustrative and not exhaustive," People v. Rojas, 97 N.Y.2d 32, 37, 735 N.Y.S.2d 470, 473 (2001), and evidence that is necessary to provide "background material" or to "'complete the narrative of the episode'" has also become a recognized exception. People v.Till, 87 N.Y.2d at 837, 637 N.Y.S.2d at 682 (citing People v.Gines, 36 N.Y.2d 932, 932-33, 373 N.Y.S.2d 543, 543 (1975));see People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 276 (2002) (background information about "how and why the police pursued and confronted defendant" admissible); People v.Then, 248 A.D.2d 159, 159, 670 N.Y.S.2d 182, 183 (1st Dep't) ("Evidence of the criminal conduct of a severed codefendant was properly admitted as highly probative of defendant's possession as well as being necessary to complete the narrative of events leading to defendant's arrest.") (citations omitted), appeal denied, 92 N.Y.2d 906, 680 N.Y.S.2d 71 (1998); People v.Henry, 166 A.D.2d 720, 720, 561 N.Y.S.2d 297, 298 (2d Dep't 1990) ("evidence of unconnected, uncharged criminal conduct . . . is also admissible to complete the narrative of the crime charged, provided its probative value outweighs any possible prejudice."), appeal denied, 77 N.Y.2d 907, 569 N.Y.S.2d 939 (1991).

Here, the trial judge found the evidence of Yapor's wife's arrest for drug possession relevant to show she was not arrested by the police as a ploy to "smoke [Yapor] out unfairly" since he had fled to Florida after the shooting. (See page 2 above.) While the uncharged crimes exception applies mostly to prior acts committed by the defendant, Yapor argued that the effect of admitting this evidence was to raise the inference that Yapor himself was a drug dealer. (Yapor 1st Dep't Br. at 21-22.) The First Department apparently construed this issue as falling within the uncharged crimes exception as well, since it based its holding on People v. Till, an "uncharged crimes" case. See People v. Yapor, 308 A.D.2d 361, 362, 764 N.Y.S.2d 261, 262 (1st Dep't 2003).

The prosecution and defense argued that different inferences could be drawn from the evidence that Yapor surrendered to the police in Florida: the prosecution argued it was consciousness of guilt because Yapor mistakenly believed his wife had been arrested on the murder charge while the defense argued it was a showing of remorse. (Dkt. No. 9: 2/9/99 Transcript 18-19; Dkt. No. 10: Summation: Tr. 760; Sayer: Tr. 560-62.) Thus, the fact of Yapor's wife's arrest on a drug charge completed the narrative and the trial court was within its discretion under New York law to admit it. See, e.g., People v. Mendez, 302 A.D.2d 300, 300, 754 N.Y.S.2d 545, 545 (1st Dep't) (trial court did not err where: "The challenged testimony which provided relevant background information, implicated a person other than defendant in drug activity, and the court's curative instruction, which the jury is presumed to have followed, emphasized the fact that there was no evidence of similar activity on defendant's part."), appeal denied, 100 N.Y.2d 540, N.Y.S.2d 6 (2003); People v. Currus, 266 A.D.2d 468, 468, 698 N.Y.S.2d 540, 541 (2d Dep't 1999) ("The testimony [regarding uncharged crimes] was relevant and material as background information which explained the sequence of events on the night of the defendant's arrest and was probative of the defendant's consciousness of guilt."), appeal denied, 94 N.Y.2d 902, 707 N.Y.S.2d 387 (2000); People v. Genao, 184 A.D.2d 285, 285, 584 N.Y.S.2d 314, 314 (1st Dep't) ("The trial court properly admitted brief police testimony [of an uncharged crime] to complete a coherent narrative of the incident and avoid speculation as to the subsequent actions of the police leading to defendant's arrest."), appeal denied, 80 N.Y.2d 903, 588 N.Y.S.2d 829 (1992).

Yapor also asserts that the prejudicial value of this evidence outweighed its probative value. (Yapor 1st Dep't Br. at 21.)³⁵ The balancing under the prejudice vs. probative value test, state or federal,³⁶ is left to the sound discretion of the trial judge. See, e.g., United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000); United States v. Napoli, No. 98-1124, 173 F.3d 847 (table), 1999 WL 265024 at *3 (2d Cir. Apr. 28, 1999) ("Under the balancing test of Rule 403, a district court is granted broad discretion."), cert. denied, 528 U.S. 1162, 120 S. Ct. 1176 (2000); Kanani v. Phillips, 2004 WL 2296128 at *18; Green v. Herbert, 2002 WL 1587133 at *15 (citing cases); People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 853-54 (1974) ("The rules governing the admissibility of evidence of other crimes represent a balance between the probative value of such proof and the danger of prejudice which it presents to an accused. . . . The particular limitations of proof must always depend on the individual facts and circumstances of each case. Such determination will best be made by the trial court."); People v. Humphrey, 789 N.Y.S.2d 325, 328 (3d Dep't 2005) ("Determinations weighing the probative value against the prejudicial effect of such evidence rest within the trial court's discretion and will be reviewed in light of the facts and circumstances of each case."); People v. Dushain, 8 A.D.3d 137, 138, 778 N.Y.S.2d 275, 276 (1st Dep't) ("The court's rulings on uncharged crimes evidence were proper exercises of discretion that properly balanced the probative value and prejudicial effect of such evidence."), appeal denied, 3 N.Y.3d 705, 785 N.Y.S.2d 33 (2004); People v. Washington, 233 A.D.2d 684, 687-88, 650 N.Y.S.2d 334, 338 (3d Dep't 1996) (It "'is within the discretion of the Trial Judge to decide whether the probative worth of evidence of other crimes on the issue of defendant's credibility outweighs the risk of unfair prejudice to him.'") (citing cases), appeal denied, 89 N.Y.2d 1042, 659 N.Y.S.2d 873 (1997).

35 Yapor cites People v. Cheatham, 158 A.D.2d 934, 550 N.Y.S.2d (4th Dep't 1990), to support his argument that Yapor's wife's arrest was "vastly more prejudicial than probative." (Yapor 1st Dep't Br. at 21.) Cheatham is distinguishable from the case at bar. In Cheatham, the defendant was on trial for drug charges and evidence of his relatives' drug use and possession was admitted at trial without any limiting instructions. People v. Cheatham, 158 A.D.2d at 934, 550 N.Y.S.2d at 961. The Fourth Department reversed the defendant's conviction because the evidence was highly prejudicial. Here, the court weighed the prejudicial effect with the probative value and issued a limiting instruction to the jury. The evidence concerning Yapor's wife was not directly related to the subject of the crime charged (murder), as the evidence was in Cheatham. Rather, Yapor's wife's arrest was background that went toward showing Yapor's motive for surrendering to the police.

36 In federal court, the prejudice vs. probative value issue is governed by Rule 403 of the Federal Rules of Evidence, which provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .

The trial judge here specifically limited the evidence, excluding testimony about where the drugs came from to avoid the "insinuat[ion] they were the defendant's." (Dkt. No. 9: 2/9/99 Tr. 32-33.) By "configur[ing]" the evidence in this way, the judge found the probative value outweighed any prejudicial affect. (Id.) Thus, the trial court (and the First Department) here did not err in exercising its discretion, and hence did not violate a state evidentiary rule. See, e.g., Kanani v.Phillips, 2004 WL 2296128 at *18; Green v. Herbert, 2002 WL 1587133 at *15; Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *17 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (the state trial court's admission of certain demonstrative evidence was "not an abuse of discretion and thus not an error of state law, much less an error of constitutional magnitude."); Joyner v.Miller, 01 Civ. 2157, 2002 WL 1023141 at *8 (S.D.N.Y. Jan. 7, 2002) ("In this case petitioner has not even established that the trial court committed error, much less that any error was so prejudicial that it deprived him of due process."); Rashid v.Kuhlman, 97 Civ. 3037, 2000 WL 1855114 at *13 (S.D.N.Y. Dec. 19, 2000) (A "trial court's decision to admit evidence of uncharged crimes is a matter of discretion."); Rojas v.Senkowski, No. CV-95-1866, 1996 WL 449321 at *5 (E.D.N.Y. July 29, 1996) ("The [state] trial court was entirely justified in finding that the probative value [of the evidence] outweighed any prejudice, and the decision was well within the judge's discretion. Thus there was no error of constitutional magnitude in the trial court's ruling that would warrant granting petitioner's habeas corpus petition on this ground.") (citation omitted); Aziz v. Warden, 92 Civ. 0104, 1992 WL 249888 at *8 (S.D.N.Y. Sept. 23, 1992), aff'd, No. 92-2720, 993 F.2d 1533 (table) (2d Cir. Apr. 27, 1993), cert. denied, 510 U.S. 888, 114 S. Ct. 241 (1993).

Further, the trial judge issued a limiting instruction immediately following the testimony at issue that "under no circumstances may the testimony as to the charge against the wife be considered as evidence of guilt of the defendant of any of the charges in this case." (See page 7 above.) The court added that "the charges against the wife do not exist with regard to this defendant." (See page 7 above.) As explained above, the limiting instruction militates against a finding of constitutional error. Combined with the overwhelming evidence of Yapor's guilt, testimony about the arrest of Yapor's wife did not result in a fundamentally unfair trial and Yapor's habeas claim on this issue should be denied.

D. Application to Yapor's Prior Altercation Claim

Yapor claims that the admission of evidence that he had brandished a gun in the altercation involving Dominguez several months before the shooting deprived him of due process and a fair trial because it impermissibly "raised the inference that [Yapor] was a man with violent propensities — that he possessed weapons and used them for illegal purposes." (Yapor 1st Dep't Br. at 23-25.) Further, Yapor asserts that intent was not an issue at trial, which rendered evidence of Yapor's possession of the gun at the previous altercation an irrelevant prior bad act. (Yapor 1st Dep't Br. at 24.)

As set forth above, under New York law, evidence of uncharged crimes or prior bad acts is admissible to show intent. Where intent is at issue, evidence of a previous incident between the defendant and the victim has been permitted by New York courts as probative of motive or intent. See, e.g., People v. Smith, 12 A.D.3d 1106, 1106, 784 N.Y.S.2d 810, 811 (4th Dep't 2004) (evidence that defendant threatened victim with physical violence in an incident before the charged burglary was relevant to the issue of defendant's motive for committing the crime at issue and the court properly determined that the probative value outweighed the potential for prejudice), appeal denied, 4 N.Y.3d 767 (2005); People v.Wheeler, 257 A.D.2d 673, 673, 685 N.Y.S.2d 94, 95 (2d Dep't) (evidence that on a prior occasion defendant had hit victim with a baseball bat was properly admitted "because it was relevant to the defendant's motive and intent, and precluded a possible defense of justification"), appeal denied, 93 N.Y.2d 930, 693 N.Y.S.2d 514 (1999); People v. Chadwick, 227 A.D.2d 123, 124, 641 N.Y.S.2d 297, 297-98 (1st Dep't) ("It was a proper exercise of discretion to permit the introduction of evidence of a prior encounter between the defendant and one of the victims, in which defendant allegedly threatened him with a knife, since such evidence was relevant to establish defendant's motive in the shooting, his identity as the shooter and since it provided necessary background material to complete the narrative of the episode."), appeal denied, 88 N.Y.2d 981, 649 N.Y.S.2d 388 (1996); People v. Seeley, 231 A.D.2d 653, 653, 648 N.Y.S.2d 111, 112 (2d Dep't) (affirming conviction where witness was allowed to testify that defendant had threatened him with a gun one week before the shooting at issue because such evidence of the uncharged crime was probative of the defendant's intent and motive to shoot into a group that included the witness), appeal denied, 89 N.Y.2d 929, 654 N.Y.S.2d 732 (1996).³⁷

37 Yapor relies on People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 12 (1987), to argue that evidence of prior bad acts should be excluded where "intent may easily be inferred from the commission of the act itself." (Yapor 1st Dep't Br. at 24 n. 7.) Yapor argues that the fact that he shot Dominguez shows intent thereby rendering the evidence of the prior incident with the gun unnecessary and more prejudicial than probative. (Yapor 1st Dep't Br. at 24 n. 7.) However, as the trial court recognized in its revised ruling, Yapor's intent was at issue due to his justification and extreme emotional disturbance defenses. (See pages 2-3 above.) Moreover, People v.Alvino, was distinguished from the case at bar because inAlvino the court considered prior acts of the defendant involving a third person other than the victim. (Dkt. No. 9: 2/10/99 Tr. at 40.) Here, the prior act involved Yapor and the victim. This ruling was within the trial court's sound discretion.

Here, as the trial court and the First Department held, the prior incident between Yapor and Dominguez was relevant because intent was at issue due to Yapor's defenses of extreme emotional disturbance and justification/self-defense. The trial court was within its discretion in holding that the probative value of the fact that Yapor had brandished the gun in the prior incident outweighed the potential for prejudice. (See cases cited at pages 43-44 above.)

Even if admitting the evidence was an error of state law, Yapor was not deprived of a fundamentally fair trial given the strong evidence against him. (See page 36 above.)

Yapor's federal habeas claims based on these evidentiary rulings should be DENIED. III. YAPOR'S CLAIM THAT HIS RIGHT TO A JURY VERDICT WAS VIOLATED BY THE TRIAL COURT'S JURY CHARGE ON EXTREME EMOTIONAL DISTURBANCE AND SELF-DEFENSE IS BARRED FROM FEDERAL HABEAS REVIEW BECAUSE IT WAS DECIDED ON ADEQUATE AND INDEPENDENT STATE LAW GROUNDS A. Adequate and Independent State Ground Doctrine ³⁸

38 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 and Recommendation, see, e.g., Otero v.Eisenschmidt, 01 Civ. 2562, 2004 WL 2504382 at *17-18 (S.D.N.Y. Nov. 8, 2004) (Peck, M.J.); Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *21-23 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *18-21 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *7-11 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *18-21 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (citing my prior decisions); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *8-9 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.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.), aff'd, No. 01-2701, 77 Fed. Appx. 546, 2003 WL 22134571 (2d Cir. Sept. 15, 2003); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.),aff'd, No. 99-2416, 205 F.3d 1324 (table), 2000 WL 246226 (2d Cir. Feb. 22, 2000).

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).³⁹

39 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.").⁴⁰ 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. B. Yapor's Claim That the Trial Judge Gave an Erroneous Jury Charge Depriving Him of His Right to a Jury Verdict is Procedurally Barred

40 See, e.g., 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, 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.").

The First Department ruled that Yapor's "remaining contentions are unpreserved" and declined to review them in the interest of justice, but that were it to review the claim, it would "reject" the claim. People v. Yapor, 308 A.D.2d 361, 362, 764 N.Y.S.2d 261, 262 (1st Dep't 2003) (quoted at page 17 n. 8 above). By default, this "remaining contention" was Yapor's jury instruction claim since it was the only claim that the First Department had not specifically addressed. (See page 17 nn. 7, 8 above.)

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. 722, 739, 111 S. Ct. 2546, 2559 (1991).

Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review,⁴¹ here the First Department explicitly stated that it found Yapor's claim to be "unpreserved," People v. Yapor, 308 A.D.2d at 362, 764 N.Y.S.2d at 262, and the fact that the First Department also stated the conclusion it would reach on the merits "[w]ere [it] to review these claims" id., does not change the result. See, e.g., Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 n. 4 (2d Cir. 2000) ("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 7, 9 (2d Cir. 1990) (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds); James v.Ricks, No. 01 CV 4106, 2003 WL 21142989 at *12 n. 8 (E.D.N.Y. Mar. 6, 2003) (state decision which "found the petitioner's ineffective assistance of counsel claim was procedurally barredand without merit" rested on adequate and independent state grounds.); Campos v. Portuondo, 193 F. Supp. 2d 735, 744 n. 4 (S.D.N.Y. 2002) ("The language used by the Appellate Division in Campos' case is in contrast with the language used in those cases where the state court found a claim to be 'either meritless or unpreserved.' Unlike the conjunctive 'and,' the use of the disjunctive 'or' in such cases obviously does not clarify whether the court's ruling rests on a procedural bar."), aff'd, 320 F.3d 185 (2d Cir.), cert. denied, 540 U.S. 958, 124 S. Ct. 415 (2003); Jones v. Duncan, 162 F. Supp. 2d 204, 211 (S.D.N.Y. 2001) (Peck, M.J.) ("The First Department's use of the conjunctive 'and' rather than the disjunctive 'or' clearly shows that the First Department found these claims to be unpreserved.").⁴² Thus, the First Department's decision here unambiguously rested on a state procedural ground.⁴³

41 See, e.g., Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) ("We have found a state court's reliance on a state procedural bar to be ambiguous, and thus refused to invoke a procedural bar, where . . . the state court rejected defendant's claims on appeal as 'either meritless or unpreserved.'");Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998);Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992).

42 See also, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10; Otero v. Eisenschmidt, 01 Civ. 2562, 2004 WL 2504382 at *18-19 (S.D.N.Y. Nov. 8, 2004) (Peck, M.J.); Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *23 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Figueroa v.Greiner, 02 Civ. 2126, 2002 WL 31356512 at *10 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.) (decision that claim is unpreserved but were it to be reviewed is without merit, sufficient for procedural bar); Velasquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *8 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v.Greiner, 02 Civ. 2129, 2002 WL 1678641 at *12 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *9 n. 8 (S.D.N.Y. May 31, 2002) (Peck, M.J.),report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *9 n. 9 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.),report rec. adopted, 2003 WL 1936191 (S.D.N.Y. Apr. 23, 2003) (Mukasey, D.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *8 n. 19 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.),report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002) (Swain, D.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 *10 (S.D.N.Y. May 21, 2001) (Peck, M.J.) (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.) (same); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12-13 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.) (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp. 2d 281, 287 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.);Torres v. Irvin, 33 F. Supp. 2d 257, 274 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.) (adequate and independent ground even though First Department "went on to dismiss the [judicial misconduct] claim on the merits"); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. Apr. 20, 1998); 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.).

43 The New York Court of Appeals denied Yapor's application for leave to appeal. People v. Yapor, 1 N.Y.3d 583, 775 N.Y.S.2d 798 (2003). 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. Petitioner has presented no facts to rebut that presumption here.

Under New York Law, "[a]s a general rule points which were not raised at trial may not be considered for the first time on appeal." People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584 (1980) (citing C.P.L. § 470.05(2)).⁴⁴ In order to preserve his erroneous jury charge claim for appellate review, Yapor was required to object at the time of the instructions.See, e.g., C.P.L. § 470.05(2); People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 909 (1990); People v. Jackson, 76 N.Y.2d 908, 909, 563 N.Y.S.2d 42, 43 (1990); People v.Cadorette, 56 N.Y.2d 1007, 1009, 453 N.Y.S.2d 638, 638 (1982);People v. Battle, 15 A.D.3d 413, 790 N.Y.S.2d 477, 478 (2d Dep't 2005) (failure to object to court's response to jury note renders claim unpreserved for appellate review); People v.Field, 308 A.D.2d 548, 549, 764, N.Y.S.2d 839, 839 (2d Dep't),appeal denied, 1 N.Y.3d 571, 775 N.Y.S.2d 788 (2003); People v. Brunson, 1 A.D.3d 375, 766 N.Y.S.2d 601 (2d Dep't) (failure to object to court's charge on justification renders claim unpreserved for appellate review), appeal denied, 1 N.Y.3d 565, 569, N.Y.S.2d 786 (2003); People v. Williams, 297 A.D.2d 565, 566, 747 N.Y.S.2d 159, 159-60 (1st Dep't) (failure to object to supplemental instruction renders claim unpreserved for appellate review), appeal denied, 99 N.Y.2d 566, 754 N.Y.S.2d 218 (2002);People v. Mallory, 258 A.D.2d 343, 343, 685 N.Y.S.2d 663, 663 (1st Dep't), appeal denied, 93 N.Y.2d 876, 689 N.Y.S.2d 438 (1999); People v. Charleston, 56 N.Y.2d 886, 887-88, 453 N.Y.S.2d 399, 400 (1982); see also, e.g., Lora v. West, 04 Civ. 1902, 2005 WL 372295 at *11 (S.D.N.Y. Feb. 17, 2005); Larrea v.Bennett, 01 Civ. 5813, 2002 WL 1172564 at *9 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report and rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, 368 F.3d 179 (2d Cir. 2004); Lugo v. Kuhlmann, 68 F. Supp. 2d 347, 372-73 (S.D.N.Y. 1999) (Patterson, 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.). Defense counsel did not object to the judge's charge to the jury nor did he object to any of the supplemental instructions given by the court in answer to the jury questions that arose during deliberations. (See pages 13-14 above.)

44 C.P.L. § 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.

C.P.L. § 470.05(2) (emphasis added).

Both the Supreme Court and the Second Circuit have held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 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); Franco v. Walsh, No. 02-2377, 73 Fed. Appx. 517, 518, 2003 WL 22056234 at *2 (2d Cir. Sept. 4, 2003) (finding petitioner's claim of an erroneous jury charge procedurally defaulted because "[n]o contemporaneous objection to the charge was lodged, and the Appellate Division found that the issue was therefore unpreserved."); 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); Otero v. Eisenschmidt, 2004 WL 2504382 at *20;Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *20 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Figueroa v. Greiner, 2002 WL 31356512 at *11-12 ("The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground."); Cooper v. LeFevre, No. 94 CV 5958, 1998 WL 386340 at *2 (E.D.N.Y. July 8, 1998) ("[T]he Second Department held that [the petitioner's claim was unpreserved because] the Petitioner violated the contemporaneous objection rule by failing to 'raise specific objections to the evidence . . .' he cited in his appeal as having deprived him of a fair trial. . . . This Court finds that the Second Department's basis for denying Petitioner's claim was both independent of the federal question raised by such claim and adequate to support the judgment. As a result, this Court is procedurally barred from reviewing the merits of Petitioner's claim"); 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.").

Because there is an adequate and independent finding by the First Department that Yapor procedurally defaulted on his jury instruction claim, Yapor 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 2565.⁴⁵ Yapor does not allege cause, prejudice or a fundamental miscarriage of justice. Thus, Yapor's jury instruction claim is procedurally barred, and this Court need not, and will not, reach the merits of Yapor's jury instruction claim.

45 See also, e.g., Schlup v. Delo, 513 U.S. at 324-27, 115 S. Ct. at 865-67 (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. YAPOR'S CLAIM THAT HIS TRIAL COUNSEL WAS INEFFECTIVE AT SENTENCING SHOULD BE DENIED A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ⁴⁶

46 For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report and Recommendation, see, e.g., James v. Artus, 03 Civ. 7612, 2005 WL 859245 at *13-15 (S.D.N.Y. Apr. 15, 2005) (Peck, M.J.); Steele v. United States, 04 Civ. 6918, 02 Cr. 629, 2005 WL 704868 at *7-8 (S.D.N.Y. Mar. 29, 2005) (Peck, M.J.); Curry v. Burge, 03 Civ. 0901, 2004 WL 2601681 at *26-27 (S.D.N.Y. Nov. 17, 2004) (Peck, M.J.); Otero v.Eisenschmidt, 01 Civ. 2562, 2004 WL 2504382 at *28 (S.D.N.Y. Nov. 8, 2004) (Peck, M.J.); Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *26 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.);Medina v. McGinnis, 04 Civ. 2515, 2004 WL 2088578 at *20-21 (S.D.N.Y. Sept. 20, 2004) (Peck, M.J.); Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *13-15 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.); Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *14-16 (S.D.N.Y. July 29, 2004) (Peck, M.J.);Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *39 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *27 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing my prior cases); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003) (Kaplan, D.J.); Quinones v.Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.) (citing my prior opinions), report rec. adopted, 2005 WL 730171 (S.D.N.Y. Mar. 31, 2005) (Pauley, D.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2000) (Peck, M.J.); Fluellen v.Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S. Ct. 1787 (2003).

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2064.⁴⁷

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065 (citation omitted).⁴⁸

47 Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2535; Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 1850 (2002).

48 Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S. Ct. at 1852; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "defendant must show 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, 104 S. Ct. at 2068.⁴⁹

49 See also, e.g., Wiggins v. Smith, 123 S. Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S. Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S. Ct. 83 (1996).

"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S. Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S. Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068 ("The result of a 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."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S. Ct. at 1953; cf. id. at 297-301, 119 S. Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'"Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quotingStrickland v. Washington, 466 U.S. at 695-96, 104 S. Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.⁵⁰

50 Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S. Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066.⁵¹

51 See also, e.g., Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S. Ct. 1, 4 (2003); Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted);Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S. Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d at 199.

1. Strickland and the AEDPA Review Standard

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'"Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)).⁵² "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'"Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S. Ct. at 1852; see also Yarborough v. Gentry, 540 U.S. at 5, 124 S. Ct. at 4.

52 See also, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003); Bell v. Cone, 535 U.S. 685, 698, 122 S. Ct. 1843, 1852 (2002); Sellan v. Kuhlman, 261 F.3d at 315.

B. Yapor's Ineffective Assistance of Trial Counsel Claim Should be Denied

Yapor claims that his trial counsel was ineffective at sentencing because he failed to argue for leniency and made no mention of the mitigating factors in Yapor's case. (Yapor 1st Dep't Br. at 33-35.) Specifically, Yapor contends that: (1) trial counsel failed to mention that Yapor had no prior violent criminal history and "only one other previous conviction in his life" (id. at 33, 35); (2) "[c]ounsel's only effort at advocacy was a perfunctory statement of less than two minutes during which he emphasized the gravity of his client's actions and commented on the need for severe punishment" (id. at 33); and (3) "instead of discussing mitigating factors, defense counsel characterized Mr. Yapor as an impulsive violent man from whom society should be 'forever' protected" (id. at 34). Yapor asserts that defense counsel should have raised Yapor's cooperation with authorities, his remorse, and his strong family ties. (Id. at 35.)

At sentencing, defense counsel reminded the court that the jury had found that Yapor had not acted with intent to cause death and that the act came from an emotionally disturbed state. (S. 27.) Defense counsel also presented to the court the general concerns at play: first was that "this defendant's boiler blew up. He needs to be forever reminded that that cannot happen again"; second was the need for the public to know shootings are not condoned; and third the victim's family needs had to be addressed. (S. 27-28.) Notwithstanding these remarks, Yapor's trial counsel did argue for leniency: defense counsel told the judge: "[t]he jury found room to make allowances here," and he asked that "the [c]ourt continue on that road laid out by the jury, and that in bringing all the interests together here, the [c]ourt add the touch of mercy to this balance." (S. 28.)

Defense counsel's comments may not have been Yapor's idea of an ardent plea for leniency, but they were a reasonable strategy that did not fall below the level of constitutional sufficiency. The sentencing judge had heard the trial evidence and had just heard from the decedent's family and friends. It was reasonable strategy for defense counsel to acknowledge the seriousness of Yapor's actions (a man was dead, after all), and then ask for leniency, rather than to simply ask the judge for "mercy" without more. See Perez v. Greiner, 01 Civ. 5522, 2002 WL 31132872 at *7-8 (S.D.N.Y. Sept. 25, 2002) (no ineffective assistance where defense counsel at sentencing stated that "'[i]f [the defendant] did this crime the maximum sentence is not enough. Defendant claims he's innocent. I have nothing else to say.'" Court found "the comment may have been a reasonable and competent strategy" where attorney tried not to "'further alienate the judge with unsupportable and self-serving allegations that his client was a 'family man.''"); People v.Orengo, 286 A.D.2d 344, 346, 728 N.Y.S.2d 775, 776 (2d Dep't 2001) ("Although the defendant's attorney could have been more vigilant in exploring the issue of defendant's record, his conduct in this regard was not tantamount to ineffective assistance of counsel."), aff'd, 97 N.Y.2d 739, 742 N.Y.S.2d 598 (2002); People v. Vigilante, 153 Misc. 2d 206, 216, 581 N.Y.S.2d 261, 269 (Sup.Ct. Kings Co. 1992) ("Brevity of remarks by trial counsel at sentenc[ing], is not indicia of ineffective assistance of counsel.").

Similarly, the fact that defense counsel did not propound the mitigating factors that Yapor asserts he should have, such as Yapor's "cooperation" with the authorities, his remorse, the circumstances of the crime, his nonviolent background and his family ties (Yapor 1st Dep't Br. at 35), would have been a tactical decision where defense counsel may have reasonably felt those factors were not strong enough to move the court and so to bring them up could actually prejudice his client. See, e.g., Perez v. Greiner, 2002 WL 31132872 at *8 (despite counsel's duty to "'set forth before the judge the factors that might mitigate the defendant's sentence,' defense counsel is not obligated to present mitigating evidence where he has made a tactical decision that to do so would only prejudice his client.") (citations omitted); see Ferrarini v. United States, 01 Civ. 6612, 2002 WL 1144377 at *7 (S.D.N.Y. May 30, 2002) (attorney not ineffective for disputing the "inclusion of certain items in the amount" of the restitution award but failing to argue inability of defendant to pay restitution where attorney "may have made a tactical decision at sentence not to contend that his client was without the means to pay any restitution. . . . Actions or omissions by counsel that 'might be considered sound trial strategy do not constitute ineffective assistance.'"); see also United States v. Caicedo-Zamora, No. 03-1110, 96 Fed. Appx. 46, 48, 2004 WL 960016 at *1 (2d Cir. May 5, 2004) (attorney who argued for maximum downward departure but not for lesser downward departure was not ineffective counsel but rather zealous advocate where counsel made strategic decision to "urge the best result for his client.").

Even if defense counsel's performance was deficient at sentencing, Yapor has not shown prejudice. The judge at sentencing appeared constrained by the limits the jury's verdict put on him with respect to the maximum sentence he could legally impose on Yapor:

If . . . the power were given to me to sentence the defendant to life, I would not have hesitated to give it. . . . [T]he law does give me the power to impose a very substantial sentence on this defendant. . . . I agree that the facts of this case prove beyond any question that a maximum sentence is appropriate. There is no room for mitigation beyond the mitigation already given by law under a manslaughter first degree conviction.

(S. 34.) It appears unlikely that any of Yapor's mitigating factors would have convinced the sentencing judge to have imposed a lighter sentence. See Perez v. Greiner, 2002 WL 31132872 at *8 ("It is unlikely that presentation of [petitioner's] 'mitigating' factors [— that he was a family man and held a steady job —] by his trial attorney at sentencing would have swayed the sentencing judge to impose a lighter sentence" where petitioner was convicted for two murders).

Yapor has failed to make a showing of ineffective assistance of counsel and certainly has not shown that the First Department's decision was an unreasonable application of Strickland. Yapor's ineffective assistance of counsel at sentencing claim should be DENIED.

V. YAPOR'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

Yapor's habeas petition asserts that his sentence of twelve and one half to twenty-five years, the statutory maximum for first degree manslaughter, should be reduced because "Yapor turned himself over to authorities, made a full statement admitting his culpability, expressed remorse, and had no history of violent criminal behavior." (Yapor 1st Dep't Br. at 36.)

Yapor's excessive sentence claim is quickly disposed of. An excessive sentence claim does not provide a basis for habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).⁵³ In this case, it is undisputed that Yapor's' sentence was within the range prescribed by state law. (See Yapor 1st Dep't Br. at 36: "Yapor received this sentence, which was the statutory maximum for first degree manslaughter . . .") Yapor was found guilty of, inter alia, first degree manslaughter and sentenced as a second felony offender to twelve and one half to twenty-five years imprisonment. First degree manslaughter is a Class B felony, Penal Law § 125.20, and for a second felony offender the court can impose a maximum sentence of twelve and one half to twenty-five years. Penal Law §§ 70.06(3)(b), (4)(b).

53 Accord, e.g., Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *13 (S.D.N.Y. June 16, 2004) (Peck, M.J.),report rec. adopted, 2004 WL 1656568 (S.D.N.Y. July 23, 2004) (Berman, D.J.); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *38 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *17 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Briggs v. Phillips, 02 Civ. 9340, 2003 WL 21497514 at *7 (S.D.N.Y. June 30, 2003) (Peck, M.J.); Hoover v. Senkowski, No. 00 CV 2662, 2003 WL 21313726 at *10 (E.D.N.Y. May 24, 2003); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *13 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *13 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Alfini v. Lord, 245 F. Supp. 2d 493, 502 (E.D.N.Y. 2003); Reynolds v. Artuz, 97 Civ. 3175, 2003 WL 168657 at *4 (S.D.N.Y. Jan. 23, 2003);Pressley v. Bennett, 235 F. Supp. 2d 349, 368 (S.D.N.Y. 2003); Ferguson v. Walker, 00 Civ. 1356, 2002 WL 31246533 at *10 (S.D.N.Y. Oct. 7, 2002) (Swain, D.J. Peck, M.J.);Schreter v. Artuz, 225 F. Supp. 2d 249, 258 (E.D.N.Y. 2002);Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *6 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *7 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *13 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp. 2d 271, 278 n. 8 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); see also, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995); Underwood v.Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 110 S. Ct. 117 (1989); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).

Because Yapor's sentence is within the statutory range, it is not reviewable by this Court for "excessiveness." (See cases cited at page 64 n. 53 above.)

CONCLUSION

For the reasons discussed above, Yapor's habeas petition should be denied and a certificate of appealability should not issue.

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 Richard C. Casey, 500 Pearl Street, Room 1350, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Casey. 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).