Opinion
00 CIV. 7984 (DLC)
June 16, 2003
Guy Youngblood, Petitioner Pro Se, Ossining, N.Y.
Patrick J. Hynes, Esq., Assistant District Attorney, New York, NY, Attorneys for Respondent
OPINION AND ORDER
This petition has a tortured history. In an opinion of October 13, 1998 (the "October 13 Opinion"), Youngblood v. Greiner, No. 97 CIV. 3289 (DLC), 1998 WL 720681, (S.D.N.Y. Oct. 13, 1998), this Court dismissed without prejudice Guy Youngblood's ("Youngblood") federal habeas petition due to the existence of an unexhausted claim. After exhausting the one claim, the petitioner renewed his federal habeas petition. In an opinion on January 17, 2003 (the "January 17 Opinion"), Youngblood v. Greiner, No. 00 CIV. 7984, 2003 WL 145546, at *1 (S.D.N.Y. Jan. 21, 2003), this Court found that the petitioner had not diligently pursued either the exhaustion of that claim or the refiling of his dismissed petition following exhaustion. The January 17 Opinion nonetheless issued a certificate of appealability ("COA") in order to allow the Court of Appeals to review the determination that AEDPA's statute of limitations should not be equitably tolled in this case. The respondent filed timely objections and correctly pointed out that a COA cannot issue without reaching the merits of the petitioner's claims. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). This Opinion will, where it is helpful to do so, draw from prior Opinions issued in connection with this petition to present and address the merits of the petition's claims. When that discussion is complete, this Opinion will explain why a COA should not issue.
Background
The October 13 Opinion described in detail the background of this petition and the claims presented in the petition. Youngblood, 1998 WL 720681. The following description is largely taken from that Opinion.
Confession Prior to Trial
Youngblood was convicted of the murder of his lover, whose body was found on January 27, 1988 in the victim's apartment with a bloody bread board beside it. Youngblood's fingerprints were found on a wine bottle and glass in the victim's kitchen. Three days after the victim's body was discovered, Youngblood contacted the police to inquire about the case.
During the interview which followed, Youngblood admitted to Detective Owen Byrne ("Byrne") that he had accidentally killed the victim. The admission came at about 4:00 a.m., after Byrne had interviewed Youngblood for about three hours. Youngblood had already admitted that he had had a sexual relationship and lived intermittently with the victim for about three years. Byrne then asked Youngblood for "elimination" fingerprints, explaining that fingerprints had been found in the apartment and that everyone who knew the victim would be asked for fingerprints. Youngblood agreed to provide fingerprints, but asked Byrne whether the officer believed him when he denied killing the victim. When Byrne answered no, Youngblood began crying and stated that he had killed the victim, but that it had been an accident.
After Miranda warnings were administered, Youngblood confessed to clubbing the victim with the bread board after an argument about a drug related debt. He had only intended to knock him out, but he hit him again after the victim began moaning. Youngblood then stole $400 from the victim's pants.
Youngblood repeated his confession to Byrne and a Detective Doyle, each of whom reduced it to a written confession which Youngblood signed. At 9:10 a.m., an Assistant District Attorney secured a videotaped confession from Youngblood after once again administering Miranda warnings.
Youngblood's attorney moved to suppress the confession prior to trial on the ground that the police had not advised Youngblood of his Miranda rights prior to his first confession. After a hearing at which Byrne testified, the court ruled that such warnings had been unnecessary since Youngblood was not in custody at that time. Among other facts, the court pointed out that Youngblood had voluntarily contacted the police, had been left alone in an unlocked room at the precinct, had not been handcuffed, and had not been told that he was not free to leave.
The court found that the defendant had admitted to the murder after Byrne asked him for "elimination prints", and was immediately thereafter advised of his Miranda rights.
The Trial
At trial, the evidence showed that Youngblood and the victim drank some wine, used cocaine, and then had sex. After they argued about money that the victim owed Youngblood for drugs, Youngblood attacked the victim with a bread board, inflicting head injuries that resulted in his death. Byrne repeated the testimony given at the suppression hearing, again describing his request for elimination prints and Youngblood's admissions.
Youngblood's videotaped confession was played for the jury. On December 19, 1988, Youngblood was convicted of murder in the second degree and robbery in the first degree, and sentenced to concurrent intermediate terms of from 21 years to life and 8 1/3 to 25 years, respectively.
The Motion to Vacate the Judgement
On April 5, 1991, Youngblood moved to vacate the judgment on the ground of new evidence. Youngblood used an affidavit from Byrne, who had by then retired from the Police Department, to argue that he had been in custody from the beginning of Byrne's interview. The March 29, 1991 Byrne affidavit explained that Youngblood was in a highly emotional state during the interview, that Byrne urged Youngblood to confess, that Byrne asked to fingerprint Youngblood to give him the impression that he was being booked for murder and, in contradiction to his testimony at the suppression hearing and trial, that Byrne did not tell Youngblood that the prints were being taken merely for "elimination" purposes.
The State opposed Youngblood's motion to vacate the judgment, claiming that Byrne had repudiated his post-trial affidavit in June 13 and July 8, 1991 interviews with the Assistant District Attorney. According to the prosecutor, Byrne said that he had signed the affidavit for defense counsel without refreshing his recollection about the 1988 confessions by reviewing his notes or prior testimony. After being shown the prior testimony, Byrne confirmed the testimony and reasserted that he had explained to Youngblood that the fingerprints were "elimination" prints.
The District Attorney's Office then obtained a warrant to conduct a search at the Sing Sing Correctional Facility, where Youngblood had been incarcerated, for correspondence between Youngblood and Byrne. Such correspondence was located and seized. The prosecutor described the seized correspondence as revealing a strong and personal relationship between Youngblood and Byrne.
The search was conducted at the "State Shop" at Sing Sing. The State Shop is the location where the property of an inmate who is being produced in court is routinely stored. At the time of the search, Youngblood was at the Downstate Correctional Facility.
Youngblood's counsel on appeal adopted that as the description of the relationship which had developed between his client and Byrne subsequent to Youngblood's arrest. The correspondence covers such matters as holiday and birthday wishes and a suggestion for a joint vacation in Jamaica after Youngblood "come[s] home."
After Youngblood and Byrne's attorney were notified of the seizure of the materials, Byrne (although under subpoena) failed to appear to testify at the hearing which had been scheduled on Youngblood's motion to vacate. The court granted Youngblood an adjournment to locate Byrne. The court denied, however, Youngblood's motion for discovery of the search warrant affidavit and the seized materials, on the grounds inter alia that the State planned to use the materials to impeach Byrne, that premature disclosure might undermine the integrity of the proceeding, and that in the event Byrne invoked his Fifth Amendment privilege against self-incrimination disclosure would be unnecessary. Although the court agreed to conduct a hearing whenever Byrne could be located and produced, Youngblood eventually asked the court to render a decision on his motion without holding a hearing. On July 27, 1992, the court denied the motion to vacate the judgment. It described the correspondence seized from the prison as "allegedly" revealing a "close relationship" between the defendant and Byrne. The court indicated that Byrne's affidavit might have entitled Youngblood to a hearing, but that standing alone it did not entitle him to a vacatur of his conviction. The court found that recantation evidence is inherently unreliable and Byrne's disappearance after learning of the seizure of the correspondence cast further doubt on his reliability. Since Youngblood was unable to satisfy his burden of proving that he was entitled to the vacatur, the motion was denied.
The Direct Appeal
The Appellate Division consolidated Youngblood's appeals from his conviction and from the denial of the motion to vacate the judgment. On appeal, Youngblood argued that his confessions should have been suppressed for failure to advise him of his Miranda rights before his first confession, that he was denied the right to be present at a material stage of the proceedings when prospective jurors were questioned in his absence at sidebar, that the court should have submitted a second degree manslaughter count to the jury, and that the sentence was excessive. There was no argument based on either the seizure of the correspondence at Sing Sing or the failure of Byrne to appear at the post-trial hearing.
The Appellate Division affirmed the conviction and the denial of the motion to vacate on July 21, 1994. People v. Youngblood, 614 N.Y.S.2d 529 (1st Dept. 1994). The Appellate Division described the testimony given at the suppression hearing and agreed with the trial court that the initial conversations with the defendant did not require Miranda warnings since "an innocent person in defendant's position would not have believed that he was in custody" and the conversation was not "custodial interrogation" since the conversation was "not likely to elicit the ensuing confession". Id. The Appellate Division also found that there was "no basis to credit" the Byrne affidavit since Byrne "had somehow become romantically involved with the defendant." Id. at 530. With respect to the claim regarding the voir dire, it observed that Youngblood "made no objection to the sidebars and the record is silent as to what questions were asked." Id. It refused to find any violation of state law since People v. Antommarchi, 80 N.Y.2d 247 (1992), a New York case addressing a defendant's right to participate at such side bar conferences, did not apply retroactively. Id. The New York Court of Appeals denied leave to appeal on January 3, 1995. People v. Youngblood, 84 N.Y.2d 1040 (1995).
Collateral Attacks on the Conviction
On November 16, 1993, Youngblood moved again to vacate his conviction, arguing that the State had an obligation to obtain certain material from the Medical Examiner and provide it to the petitioner. The motion was denied.
In a March 9, 1993 application to the Appellate Division for a writ of error coram nobis, Youngblood argued that the correspondence allegedly seized at Sing Sing had been fabricated.
Youngblood supported this claim with a memorandum from Sing Sing which stated that a search of Youngblood's possessions had occurred, but that no property had been taken. The State opposed the application on the ground that a writ of error coram nobis was only appropriate for a claim of ineffective assistance of counsel, a claim not being made by Youngblood. The Appellate Division denied the application on June 22, 1995, stating in part, that Youngblood "having moved, in the nature of a writ of error coram nobis, for a review of his claim of ineffective assistance of appellate counsel, and for other related relief," the application is denied "in its entirety". People v. Youngblood, 628 N.Y.S.2d 480 (1st Dept. 1995).
1997 Federal Habeas Petition
Youngblood requested copies of the correspondence with Byrne that had been seized from Sing Sing through an August 24, 1995 application under New York's Freedom of Information Law. He received the correspondence on April 9, 1997, and brought this federal habeas petition nineteen days later. After initially dismissing the petition as time-barred, this Court determined that it would be appropriate to consider the timeliness of the petition more fully, and if warranted, the merits of the claims.
The petition was referred to the Magistrate Judge.
Youngblood's petition for a writ of habeas corpus presented four attacks on his conviction. He argued that his confession was taken in violation of Miranda; that he was improperly excluded from a portion of the voir dire held at sidebar; that the State violated his rights in connection with his post-conviction motion to vacate by conducting an illegal search and tampering with a recanting witness; and that the jury should have been given a second degree manslaughter charge. In reply, the State argued that the petition is time-barred and must also be dismissed because it contains an unexhausted claim — that the Sing Sing search was illegal and that the State tampered with a recanting witness. It did not address the merits of the claims raised by Youngblood in his petition. A Report of August 31, 1998 from the Magistrate Judge concluded that one of the claims had not been exhausted, but reached the merits nonetheless and rejected each claim contained in the petition on its merits.
Youngblood filed timely objections to the Report.
As noted, the October 13 Opinion found that the petition was timely, but dismissed it to allow the petitioner to exhaust his claim that the Sing Sing search was illegal and that the State had tampered with a recanting witness. The October 13 Opinion concluded that "Youngblood has not proven that the State engaged in any improper conduct with the intention of inducing Byrne to avoid his obligation to appear at the hearing pursuant to the subpoena which had been served upon him." Youngblood, 1998 WL 720681, at *6. It nonetheless found that the unexhausted claim required both "factual and legal analysis that remains to be done, and should be done by a state court in the first instance." Id.
Renewed Motion to Set Aside Conviction
The remaining claim was thereafter pursued in state court, as described in the January 17 Opinion. Youngblood, 2003 WL 145546, at *1. Youngblood renewed a Section 440.10 motion on the ground of newly discovered evidence. He asserted that his correspondence had been seized in violation of the Fourth Amendment since documentation received from the prison authorities shows that none of his property was removed from the State Shop. He concluded that the state must have seized the correspondence from his cell, which was beyond the scope of the search authorized by the warrant. He also claimed that there had been a violation of his Due Process rights when the State misrepresented to Byrne that the seized correspondence reflected a romantic relationship and when thereafter Byrne decided not to testify on Youngblood's behalf at the post-trial hearing.
On November 10, 1999, the trial court denied Youngblood's renewed motion to set aside his conviction. It reviewed the evidence presented by the parties and found that the correspondence was seized from the State Shop and that the police who executed the search warrant did not search any area other than the State Shop. The court also concluded that the State had not acted improperly in telling Byrne that it had seized correspondence. First, Byrne knew the contents of the correspondence, and therefore would not have been misled by any misrepresentation of what it contained. Second, the State had every right to confront a recanting witness with evidence that cast doubt on the recantation, particularly evidence with which it intended to impeach him at a hearing if he chose to testify.
The court noted that there was no evidence of any impropriety in the meeting that Byrne attended with the State; Byrne had been accompanied by his attorney and was a former police officer.
Having reviewed the postcards, the court found that "although they do not contain expressions of love, it is clear from them that Byrne had warm and substantial feelings toward the defendant. The sentiments expressed and their context permit the inference that these feelings approached romantic love." On May 11, 2000, the Appellate Division denied the appeal that followed the trial court's rejection of the motion. People v. Youngblood, No. M-867, 2000 N.Y. App. Div. LEXIS 5727 (1st Dept. May 11, 2000).
Renewed Federal Habeas Petition
As described in the January 17 Opinion, Youngblood was not sufficiently diligent in pursuing his state court remedies after the October 1998 dismissal or in returning to this Court following that exhaustion. The renewed petition was therefore untimely. Youngblood, 2003 WL 145546, at *3. As already noted, the January 17 Opinion erroneously ordered the issuance of a COA without reviewing the merits of the petition. It did so in order to allow appellate review of its conclusion on the timeliness of the petition. Id. at *4. This Opinion now reviews the merits of Youngblood's federal petition.
Discussion
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C) (2003). A de novo determination of those portions of the Report to which objection is made is necessary. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
The Antiterrorism and Effective Death Penalty Act ("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." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001); see also Bell v. Cone, 535 U.S. 685, 693 (2002). Under AEDPA,
(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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (2003). The "objectively unreasonable" standard of Section 2254(d)(1) means that a petitioner must identify "some increment of incorrectness beyond error." Cotto v. Herbert, No. 01-2694, 2003 WL 1989700, at *11 (2d Cir. May 1, 2003) (citation omitted). A principle of law is "clearly established" when it is a holding as opposed to dicta in a Supreme Court decision "as of the time of the relevant state-court decision." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).
Under 28 U.S.C. § 2254(e)(1), trial court fact-finding is entitled to a "presumption of correctness," a presumption that is particularly important when reviewing the trial court's assessment of witness credibility. Cotto, 2003 WL 1989700, at *10. On habeas review, the petitioner has the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Cotto, 2003 WL 1989700, at *10.
AEDPA's deferential standard is limited to claims that were "adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). If a state court has failed to adjudicate a claim on the merits, "we apply the pre-AEDPA standards, and review de novo the state court disposition of the petitioner's federal constitutional claims." Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). To adjudicate a claim on the merits, the state court "need not mention the argument raised or cite relevant case law," Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002), or even "explain its reasoning process," Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Rather, a state court adjudicates a claim on its merits by "(1) disposing of the claim `on the merits,' and (2) reduc[ing] its disposition to judgment." Id. at 312. Whether a claim has been disposed on its merits turns on: "(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." Id. at 314 (citation omitted). Federal courts give a "broad reading to state court dispositions." Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002).
The "state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required." Aparicio, 269 F.3d at 94. In fact, an issue may be considered to be adjudicated on its merits "even when the state court does not specifically mention the claim but uses general language referable to the merits." Norde, 294 F.3d at 410.
1. Exclusion for Sidebar during Voir Dire
In the petition, Youngblood claims that his Sixth Amendment rights were violated when the trial court held side bar conferences with "one or more" jurors during the voir dire process outside of the petitioner's presence. The petitioner asserts that these discussions took place after the trial court inquired whether any prospective juror would be affected by the petitioner's homosexual activities or cocaine addiction and lack of employment. Petitioner acknowledges that his attorney consented to his absence at the side bar, but contends that it was necessary for him to give his own consent, which he did not do.
The Appellate Division addressed Youngblood's claim regarding the voir dire on the merits and rejected it. While the Appellate Division did not refer specifically to federal law, its ruling on the merits generally encompassed the federal right at issue and is sufficient to entitle the ruling to the deference required by AEDPA.
The pre-screening of jurors is a "material stage of trial at which the defendant has a constitutional right to be present." Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002). It is a right, however, that can be waived. Id. at 492. There was no clearly established law articulated by the Supreme Court which makes the state court denial of the Sixth Amendment claim related to Youngblood's absence from the sidebar interview of prospective jurors contrary to or an unreasonable application of that law.
Consequently, Youngblood's claim based on his exclusion from the sidebar conference during the voir dire process is denied.
2. Violation of the Miranda Rule
Relying on Byrne's post-trial affidavit, Youngblood asserts that his Fifth Amendment rights were violated. The petitioner contends that he should have been given Miranda warnings before the time that he made his first admission that he had killed the victim and that the trial court erred in finding that he was not entitled to such warnings because he was not in custody at that time. Since the claim relies on Byrne's affidavit, it is in effect an attack on the C.P.L. § 440.10 ruling of July 27, 1992, denying petitioner's motion to vacate the judgment, and the affirmance of that ruling on appeal in 1994.
The trial court and the Appellate Division reached the merits of Youngblood's Miranda claim, and their rulings must be afforded deference under AEDPA. They found that Youngblood was not in custody and that there was no interrogation of the kind that would trigger the requirement that Youngblood be advised of his Miranda warnings. These rulings are mixed questions of law and fact. To the extent that they involve fact finding, they are not based on an unreasonable determination of the facts. To the extent that this ruling requires the application of federal law to the facts, these rulings were not contrary to or an unreasonable application of Supreme Court jurisprudence. See, e.g., Stansbury v. California, 511 U.S. 318, 323, 325 (1994).
3. Illegal Search of his Cell and Tampering with a Recanting Witness
The petitioner contends that his Fourth Amendment rights were violated through an illegal search. The petitioner contends that in September 1991, as he was engaged in post-trial proceedings to attack his conviction, the State conducted an illegal search of his personal property at Sing Sing, told Byrne that it had seized correspondence between Byrne and the petitioner, and thereby caused Byrne to fail to appear at a post-trial hearing at which petitioner wanted Byrne's testimony to support his claim that the pre-trial confession Byrne had obtained from the petitioner had been obtained in violation of his Miranda rights.
The claim that an illegal search was conducted is based on the following. The State obtained a search warrant for the "State Shop" at Sing Sing, but prison officials informed the petitioner that, while his property at the State Shop had been searched, nothing had been seized. Nonetheless, the State obtained personal correspondence from Byrne to the petitioner from the petitioner's property at Sing Sing. The petitioner concludes that the search must have exceeded the scope of the warrant and that his Fourth Amendment rights were thereby violated. He asserts that the State used the illegally obtained material to tamper with a witness in violation of state law.
This claim has now been exhausted. It was thoroughly addressed and rejected by the state court in 1999. The state court found that there was no impropriety in the search. Since this claim was adjudicated on the merits, the state court's fact findings are entitled to deference under AEDPA. These findings were not based upon an unreasonable determination of the facts or any error of law.
4. Second Degree Manslaughter Charge
The petitioner challenges the trial court's failure to submit a second degree manslaughter count to the jury after it decided, just before summations, to dismiss for lack of evidence the second count of the indictment charging him with homicide by depraved indifference. While the petitioner did not request that the trial court give the jury a charge on the lesser included offense of second degree manslaughter, which is based on a finding of recklessness, he contends that his Fourteenth Amendment right to Due Process nonetheless required the court sua sponte to submit the charge to the jury.
It is not clear from the Appellate Division's opinion affirming Youngblood's conviction what its basis was for rejecting his failure to charge argument. The opinion affirmed the conviction without referring to Youngblood's argument on this point.
In the absence of any discussion by the Appellate Division of the jury charge claim, it is possible that the Appellate Division considered the claim unpreserved for appellate review. Federal courts may not review state court decisions that rest on an adequate and independent state procedural default unless petitioner can show both cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989). In order for federal review to be barred, "[t]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case." Harris, 489 U.S. at 261-62 (citation omitted). Because it can be "difficult to determine if the state law discussion is truly an independent basis for decision or merely a passing reference," Coleman, 501 U.S. at 732, such reliance on state law must be "clear from the face of the opinion." Id. at 735 (citation omitted). See Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).
Where a state court issued no opinion, however, and where the procedural bar was argued in the appellate briefs, it is assumed that the state court based its decision on state procedural grounds. Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993).
In its brief to the Appellate Division, the State argued, albeit in a cursory fashion, that Youngblood's argument based on the failed submission of the voluntary manslaughter charge was "unpreserved" since he had not objected at the time the jury was charged. While Section 300.30(1) of New York's Criminal Procedure Law requires the submission of a lesser included offense charge where a jury could find that the defendant committed only the lesser offense, see People v. Richards, 413 N.Y.S.2d 698, 699 (1st Dept. 1979), New York also has a contemporaneous objection rule that requires that an objection to a "ruling or instruction" be made at the time of such ruling or instruction or "at any subsequent time when the court had an opportunity of effectively changing the same." Edwards v. Jones, 720 F.2d 751, 753 (2d Cir. 1983) (citation omitted). Youngblood did not object to the jury charge. This failure created a procedural bar to any challenge to the conviction based on the charge. Id. at 754.
If the Appellate Division rejected Youngblood's argument on procedural grounds, federal review of this conclusion is barred. Coleman, 501 U.S. at 750. Youngblood has not shown cause and prejudice or that there was a fundamental miscarriage of justice.
Even if the state court rejected Youngblood's federal claim on the merits, his attempt to re-assert that claim here must be denied. The Supreme Court has declined to decide whether the failure in a noncapital case to include an instruction on a lesser charge represents a constitutional violation. See Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980); Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996). The state court's decision therefore would not have been an unreasonable application of federal law.
Certificate of Appealability
On January 17, 2003, this Court issued a certificate of appealability in error. Having now reviewed the merits of petitioner's claims, and finding that they have no merit, a certificate may not issue. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1040 (2003).
Although a certificate is not warranted under the law, upon further reflection it is not even appropriate for the reasons it was originally issued. The original petition was timely and presented three exhausted claims. The petitioner's failure to act with sufficient diligence in exhausting his fourth claim and his delay in returning to federal court should only have made the petition untimely with respect to that fourth claim, and not with respect to all four claims. In these circumstances, this Court does not now believe that there is any reason for the Court of Appeals to review the timeliness issue, even if it could do so in the absence of a sufficiently meritorious claim.
Conclusion
The petition for a writ of habeas corpus is denied. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted.
Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). In addition, I find, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
SO ORDERED: