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April 11, 1990


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.

In April, 1986, a Suffolk County Grand Jury indicted petitioner on the charges of attempted aggravated assault, sexual abuse in the first degree and three counts of assault in the second degree. On December 5, 1986, he was convicted at a jury trial of sexual abuse in the first degree, assault in the second degree and assault in the third degree. Petitioner was thereafter adjudicated a prior felony offender and sentenced to consecutive indeterminate sentences of imprisonment of three and one half to seven years on the first two charges and a concurrent definite sentence of one year on the last charge. The mandatory surcharge of one hundred dollars was also assessed. On April 17, 1989, the conviction was affirmed by the Appellate Division, Second Department. Leave to appeal to the New York Court of Appeals was subsequently denied.

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 (1982).

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 (1983).

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 instant petition.

II. Procedural Default

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

In order for the Harris rule to apply, the last state court rendering a judgment must have had an opportunity to pass upon the same issues presented to the federal court. Otherwise, a federal court would be unable to dismiss a habeas corpus petition on procedural grounds without an express statement from the highest state court having discretion to hear the claim. In other words, the rule set forth in Harris must apply only to claims presented in the last state court that renders a judgment thereon — not to the last state court where the claims were "fairly presented." Thus, in the instant case, the last state court which rendered a judgment was the appellate division. When the New York Court of Appeals denied leave to appeal, it was presented with petitioner's claims but did not render a ...

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