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WILLIAMS v. LEFEVRE

December 29, 1983

JAMES WILLIAMS, Petitioner, against EUGENE LEFEVRE, Warden, Clinton Correctional Facility and ROBERT ABRAMS, Attorney General of the State of New York, Respondents.


The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

December 28, 1983

 PLATT, D.J.

 Petitioner, James Williams, has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1976), alleging that his conviction in State court denied him due process of law under the Fifth and Fourteenth Amendments.

 We conclude that because petitioner has failed to raise the instant claims in conformity with New York procedural law and has not set forth on the record "cause" for the procedural default and "prejudice" resulting from the alleged errors as required by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), this Court is precluded from reviewing the merits of petitioner's claims.

 FACTS

 On April 3, 1975, following a jury trial, petitioner was convicted in New York State Supreme Court, Kings County, of attempted murder and two counts of criminal possession of a weapon. *fn1" Petitioner was sentenced to a term of twenty years to life on the attempted murder count and to a lesser concurrent term on the weapons charge.

 On direct appeal to the Appellate Division, Second Department, the petitioner alleged three (3) grounds of error in support of reversal of his conviction. *fn2" For our purposes, it is sufficient to note that none of the errors alleged on direct appeal in the State court have been asserted by petitioner in the present habeas application.

 The Appellate Division, without opinion, unanimously affirmed the attempted murder conviction, but dismissed the lesser included weapons charge. *fn3" Leave to appeal to the New York Court of Appeals was denied. *fn4"

 In July 1980, petitioner submitted a motion to vacate judgment pursuant to N.Y.C.P.L. § 440.10. *fn5" This motion raised two grounds of alleged error that were not previously raised by the petitioner in the State court: (1) that the trial court's instruction to the jury that "a person is presumed to intend the natural and probable consequences of his act" had the effect of shifting the burden of proof to the defense on the issue of intent in violation of Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979); and (2) that the petitioner's sentence of 20 years to life for attempted murder was grossly excessive and imposed in violation of the Eighth Amendment.

 In an order dated December 12, 1980, the Supreme Court for Kings County (Composto, J.) denied the motion without opinion. *fn6" Leave to appeal to the Appellate Division was denied on September 25, 1981.

 Petitioner subsequently submitted another motion for post-conviction relief pursuant to N.Y.C.P.L. § 440.10. This challenge raised again the Sandstrom error, and as a second ground of error, that petitioner was denied the effective assistance of counsel in that his trial attorney failed to object to the charge *fn7" and his appellate attorney failed to raise the issue on appeal to the Appellate Division.

 In an order dated February 26, 1982, the Supreme Court for Kings County (Moskowitz, J.) denied the motion. The Court relied on the procedural bar of § 440.10(2)(c) which prohibits a defendant from raising issues which were unjustifiably omitted on direct appeal. The court additionally noted that Sandstrom, supra, did not operate to change existing New York law because the charge proscribed by that decision had been forbidden by the New York Court of Appeals for over a century. *fn8" Leave to appeal to the Appellate Division was denied on October 4, 1982.

 Petitioner now seeks to set aside his State court conviction and asserts in support of his application the three (3) grounds previously asserted in the State court through his § 440.10 motions discussed above, namely: (1) the Sandstrom error; (2) that the sentence imposed violates the Eighth Amendment; (3) that he was ...


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