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October 6, 1981

Doris Daye GILMORE, Petitioner,
Phyllis CURRY, Superintendent, Bedford Hills Correctional Facility for Women, Respondent

The opinion of the court was delivered by: CANNELLA

The petition of Doris Daye Gilmore for a writ of habeas corpus is denied. 28 U.S.C. § 2254.


 Petitioner is currently confined at the Bedford Hills Correctional Facility for Women, pursuant to a judgment of the New York Supreme Court, New York County (Cropper, J.), upon a jury verdict convicting her of murder in the second degree. N.Y.Penal Law § 125.25 (McKinney 1980). On May 31, 1977, petitioner was sentenced to serve an indeterminate term of fifteen years to life imprisonment.

 Petitioner appealed her conviction to the Appellate Division, First Department, arguing: (1) that she was denied due process of law when the trial court instructed the jury concerning the definition of intent and the burden of proof placed on the prosecutor and (2) that she was denied a fair trial when the trial court ruled that the prosecutor could inquire into a prior conviction if defendant took the witness stand. *fn1" The First Department affirmed petitioner's conviction without opinion, People v. Gilmore, 73 A.D.2d 1064, 423 N.Y.S.2d 974 (1st Dep't 1980), and petitioner thereafter was denied leave to appeal to the New York Court of Appeals.

 Petitioner filed the instant petition on November 19, 1980, claiming that the allegedly erroneous instructions by the trial court and its ruling on the admissibility of her prior conviction for the purposes of impeachment had denied her due process of law. On March 27, 1981, the Court determined that petitioner had exhausted her state remedies. For the reasons set forth below, the Court is now compelled to dismiss the petition. See Washington v. Harris, 650 F.2d 447, 451-52 (2d Cir. 1981); Taylor v. Harris, 640 F.2d 1, 2 (2d Cir. 1981); Gruttola v. Hammock, 639 F.2d 922, 929 (2d Cir. 1981).


 At the outset, the Court notes that both constitutional defects raised in the instant habeas petition were not objected to at trial. Although petitioner squarely asserted these contentions in her appeal to the First Department, the District Attorney argued that petitioner waived state appellate review of these issues by failing to object at trial. See N.Y.Crim.Proc.Law § 470.05 (McKinney 1975). *fn2" Respondent asserts that the Appellate Division affirmed petitioner's conviction on procedural grounds which would preclude federal habeas review unless petitioner can demonstrate "cause and prejudice" for her failure to adhere to New York's contemporaneous objection requirement. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2506, 53 L. Ed. 2d 594 (1976).

 To determine whether a state appellate court decided an issue on the merits or upon an independent state procedural ground, the Court must examine several factors. First, the Court must decide if the government argued petitioner's procedural default in the appellate courts. See Ulster County v. Allen, 442 U.S. 140, 151, 99 S. Ct. 2213, 2221, 60 L. Ed. 2d 777 (1979); Gruttola v. Hammock, supra, 639 F.2d at 929-30; Brown v. Reid, 493 F. Supp. 101, 103 (S.D.N.Y.1980); Williams v. Dalsheim, 480 F. Supp. 1049, 1052-53 (E.D.N.Y.1979); Broadwater v. Dunham, 479 F. Supp. 1097, 1099 (E.D.N.Y.1979). Second, if the state appellate court summarily affirmed the decision of the trial court then it can be inferred that the appellate court was thinking in "procedural terms." See Brown v. Reid, supra, 493 F. Supp. at 103. See also Taylor v. Harris, supra, 640 F.2d at 2. Third, it must be determined whether any of the state courts addressed the merits of petitioner's claim. See Ulster County v. Allen, supra, 442 U.S. at 151, 99 S. Ct. at 2221; Washington v. Harris, supra, 650 F.2d at 451-52; Alburquerque v. Bara, 628 F.2d 767, 773 (2d Cir. 1980); Ross v. Israel, 503 F. Supp. 131, 133 (E.D.Wis.1980).

 In the instant proceeding, the Court finds that petitioner's claims were denied by the state appellate courts on procedural grounds and not on the merits. The District Attorney's assertion in the Appellate Division that petitioner's failure to object at trial barred appellate review of her claims, *fn3" coupled with that court's affirmance without opinion and the Court of Appeal's denial of leave to appeal, is strong evidence that petitioner's claims were dismissed not on the merits but on procedural grounds. See Washington v. Harris, supra, 650 F.2d at 452; Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir. 1980), cert. denied, -- - U.S. -- , 101 S. Ct. 1395, 67 L. Ed. 2d 367 (1981); Brown v. Reid, supra, 493 F. Supp. at 103. Accordingly, because petitioner has failed to demonstrate to the Court that there exists cause and prejudice for her failure to object to the rulings which she now challenges as unconstitutional, the Court must dismiss her petition.

 Even if the Court were to reach the merits of the instant petition, it would similarly be denied because petitioner has not satisfied the Court that any of the trial court's challenged rulings denied her a fundamentally fair trial. See Gayle v. LeFevre, 613 F.2d 21, 22 (2d Cir. 1980). As a general rule, "(it) is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203 (1977). See also Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973); Tyler v. Phelps, 643 F.2d 1095, 1100 (5th Cir. 1981). An erroneous instruction "will support a collateral attack on the constitutional validity of a state court's judgment only if the ailing instruction so infected the entire trial that the resulting conviction violates due process." Tyler v. Phelps, supra, 643 F.2d at 1100. In reviewing the allegedly erroneous portions of the jury charge, the Court must focus (1) on the instruction as a whole, (2) on all the evidence of guilt or innocence and (3) on the conduct of the trial. See United States v. Frady, 204 U.S. App. D.C. 234, 636 F.2d 506, 516 (D.C.Cir.1980) (en banc); Brouillette v. Wood, 636 F.2d 215, 218 (8th Cir. 1980); United States v. Murray, 618 F.2d 892, 904 (2d Cir. 1980). Viewed in this light, petitioner's objections must fail.

 The trial court's instruction on intent did not suggest the existence of a conclusive or mandatory presumption. *fn4" See Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); United States v. Robinson, 545 F.2d 301 (2d Cir. 1976). Rather, the jury charge was framed to allow the jury to draw its own inferences from the evidence presented. See Washington v. Harris, supra, 650 F.2d at 453; People v. Getch, 50 N.Y.2d 456, 465-66, 407 N.E.2d 425, 429, 429 N.Y.S.2d 579, 583-84 (1980). *fn5"

 Similarly, petitioner's claim that the trial court incorrectly afforded the prosecution the ability to use a prior conviction for the limited purpose of impeachment, is also without merit. A habeas challenge based on an improper evidentiary ruling is "foreclosed absent a specific showing of a violation of a constitutional right." Bell v. New York, 506 F. Supp. 590, 594 (S.D.N.Y.1981). See United States ex rel. Reid v. Dunham, 481 F. Supp. 366, 368 (E.D.N.Y.1979) (New York allows the use of prior relevant convictions for impeachment purposes). Petitioner's prior conviction was probative to negate an assertion that petitioner acted in self-defense, see People v. Vincek, 75 A.D.2d 412, 415-16, 429 N.Y.S.2d 928, 930-31 (4th Dep't 1980); People v. Milom, 75 A.D.2d 68, 74, 428 N.Y.S.2d 678, 683 (Sandler, J., concurring) ("evidence of (other crimes) may be introduced only when the testimony is relevant and necessary to the prosecution's case") (quoting People v. Cook, 42 N.Y.2d 204, 208, 366 N.E.2d 788, 790, 397 N.Y.S.2d 697, 699 (1977)), and would only have been introduced had petitioner testified, see People v. Ventimiglia, 52 N.Y.2d 350, 359, 420 N.E.2d 59, 62, 438 N.Y.S.2d 261, 264 (1981). Accordingly, the Court believes that the trial court acted prudently in ruling that petitioner's prior conviction would be admissible for the purposes of impeachment.


 In accordance with the foregoing, the petition of Doris Daye Gilmore for a writ of habeas corpus is ...

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