The opinion of the court was delivered by: Wexler, District Judge.
Petitioner Rick S. Udzinski ("Udzinski" or "petitioner"),
appearing pro se, petitions the Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth
below, petitioner's application is denied.
Udzinksi was arrested on March 29, 1986, outside his residence
in Centereach, New York. He had met up with a sixteen-year old
girl the night before, visited a bar with her, and then
returned with her to the house in which he had been living in a
rented room. It was at the house that Udzinski physically and
sexually assaulted the girl multiple times, apparently because
she would not consent to have sex with him. In addition,
petitioner assaulted his landlord's son with a wooden rail
during the violence which ensued. Both the landlord and his son
assisted the girl and attempted to restrain petitioner.
Currently, Udzinski petitions the Court for a writ of habeas
corpus based on ineffective assistance of trial counsel. More
specifically, based on this ground petitioner asserts that his
trial counsel failed to: (1) object to a jury charge that
altered the theory of prosecution to one which the petitioner
was not indicted on; (2) request an intoxication instruction;
(3) object to the trial court's refusal to charge the lesser
included offense of assault in the third degree under a
recklessness theory; (4) impeach the state's key witness; (5)
request a self-defense charge with respect to one count in the
indictment; and (6) object to the prosecutor's summation.
Respondent contends that the current petition should be
dismissed on various grounds. First, it is asserted that
petitioner failed to exhaust the remedies available to him in
the state court system. Second, respondent argues that
petitioner's procedural default in the state court system
precludes this Court from entertaining the petition. Lastly, it
is asserted that petitioner's claims must fail on the merits.
For the reasons stated below, this Court holds that although
petitioner has exhausted state remedies, Udzinski's
non-compliance with state procedural rules bars this Court from
considering five of the six claims in the petition.
Nevertheless, all of petitioner's contentions in support of the
asserted ground are without merit. As a preliminary matter, the
Court will address the issue of exhaustion of state remedies.
I. Exhaustion of State Remedies
A federal court may grant a writ of habeas corpus only when a
petitioner has exhausted the available remedies in the state
court system. 28 U.S.C. § 2254(b). The petitioner must have
"fairly presented" every one of his federal claims to the
highest state court possible. Picard v. Connor, 404 U.S. 270,
275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Castille v.
Peoples, 489 U.S. 346, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380
(1989); Daye v. Atty. Gen. of New York, 696 F.2d 186, 191 (2d
Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct.
723, 79 L.Ed.2d 184 (1984). In order to have "fairly presented"
federal claims to the state court, the petitioner must have
informed the state court of both the factual and legal premises
of claims asserted in the federal petition. Twitty v. Smith,
614 F.2d 325 (2d Cir. 1979). If any material factual
allegations are omitted, the state court has not had a fair
opportunity to rule on the claim.
Likewise, the petitioner must have placed before the state
court the "substantial equivalent" of the legal doctrine
asserted in the federal petition. Daye, 696 F.2d at 192
(citations omitted). Furthermore, a federal district court is
precluded from entertaining a "mixed" habeas corpus petition,
i.e., one that includes both exhausted and unexhausted claims.
Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379
Respondent argues that Udzinski failed to exhaust his state
remedies with respect to claims two, three, four and six of his
petition. The state maintains that because these four issues
were not brought to the appellate division on direct appeal,
the movant has failed the "same claim" requirement enunciated
by the Supreme Court in Picard v. Connor, 404 U.S. at 275-76,
92 S.Ct. at 512-13. See also Daye, 696 F.2d at 191.
Therefore, respondent suggests that such a mixed petition must
be dismissed unless petitioner opts to withdraw the unexhausted
assertions. Rock v. Coombe, 694 F.2d 908 (2d Cir. 1982),
cert. denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 345
This Court agrees that petitioner did not fairly present each
claim to the appellate division; however, petitioner did
fairly present every claim to the New York Court of
Appeals.*fn1 Meeks v. Bergen, 749 F.2d 322, 329 (6th Cir.
1984); Swanger v. Zimmerman, 750 F.2d 291, 295 (3rd Cir.
1984); see also Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct.
194, 19 L.Ed.2d 41 (1967). A petitioner may "fairly present" a
claim in a procedurally defective manner, and inasmuch as this
Court concludes that ineffectiveness of counsel is a question
of law pursuant to the sixth amendment, all claims were fairly
presented to the highest state court possible. Consequently,
state remedies having been exhausted, the Court will now
address the procedural default doctrine as it relates to the
When a petitioner commits a procedural error in the state court
which precludes state review of a federal constitutional
question, the doctrine of procedural forfeiture prohibits
federal habeas corpus review unless the petitioner can
demonstrate adequate justification excusing the procedural
error as well as a showing of prejudice resulting from an
alleged constitutional violation. Wainwright v. Sykes,
433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Reed v.
Ross, 468 U.S. 1, 11, 104 S.Ct. 2901, 2907, 82 L.Ed.2d 1
(1984). In other words, absent "cause and prejudice," a
procedural default bars consideration of claims in the federal
habeas court. Id.
Generally, then, a district court is barred from considering a
habeas corpus petition where the issues raised were not
reviewed, but could have been, either on direct appeal from the
judgment of conviction or on a post-judgment motion in the
court of original jurisdiction. Forman v. Smith, 633 F.2d 634
(2d Cir. 1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710,
68 L.Ed.2d 204 (1981); Cappiello v. Hoke, 698 F. Supp. 1042
(E.D.N.Y.), aff'd, 852 F.2d 59 (2d Cir. 1988). The rule
prevents a defendant from disregarding state procedures with
the expectation that his constitutional claims can be presented
to a federal court at some future date. Reed v. Ross,
468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).
Recently, in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038,
103 L.Ed.2d 308 (1989), the Supreme Court announced a new rule
with respect to habeas corpus petitions. The Court declared
that a procedural default precludes habeas corpus review "only
if the last state court rendering a judgment in the case . . .
`clearly and expressly states' that its judgment rests on [the]
state procedural bar." 109 S.Ct. at 1043 (quoting Caldwell v.
Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86
L.Ed.2d 231 (1985) (citation omitted)). Harris delineates the
only occasion in which a federal court may dismiss a writ of
habeas corpus on the grounds of procedural error when the last
state court renders a judgment on the same claim presented to
the federal court. However, Harris does not provide the sole
instance in which a federal court may dismiss a writ of habeas
corpus on the grounds of procedural default.*fn2