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
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
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 judgment thereon.
See Rahming v. Kelly No. 89-2620, 1989 WL 101919 (S.D. N Y
Aug. 28, 1989) (LEXIS, Genfed library, Dist file); United
States v. Mayfair Meat Packing Corp., 158 F.2d 685, 686 (2d
To hold otherwise would allow federal courts to disregard
volumes of meritorious state procedural case law, inundate the
already overcrowded dockets of federal courts with frivolous
habeas corpus petitions, and allow a petitioner to flout state
procedural rules to his tactical advantage. Thus, Harris must
be viewed in light of the rationale espoused in prior Supreme
Court decisions, namely, that defense counsel may not ignore
state procedural rules and then turn to a federal forum to
avoid the consequences of that conduct. See, e.g., Wainwright
v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977);
Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1
In order to comport with New York's procedural rules, each of
petitioner's contentions of illegality must be reviewed by way
of direct appeal or by a proceeding pursuant to § 440.10 of New
York's Criminal Procedure Law ("CPL") in the court of
conviction. People ex rel. Nelson v. Scully, 119 A.D.2d 709,
501 N.Y. So.2d 123 (2d Dep't 1986); Diotte v. Fahey, 97 A.D.2d 653,
469 N.Y.S.2d 191 (2d Dep't 1983). Udzinski procedurally
defaulted with respect to four of the six contentions now
before this Court due to his failure to present them on direct
appeal.*fn3 However, petitioner was able to exhaust state
remedies by presenting his allegations to the highest court in
the state with the discretion to address his claims, the New
York Court of Appeals.*fn4
Because the last court rendering a judgment — the appellate
division — was not presented with petitioner's second, third,
fourth and sixth claims, Harris does not apply to those
claims, and this Court is procedurally barred from reviewing
them absent cause and prejudice. 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. 1988), aff'd, 852 F.2d 59 (2d Cir. 1988).
Consequently, a cause and prejudice analysis must be undertaken
with respect to those claims so as to determine, even in light
of the procedural default, whether they must be considered by
this Court on their merits.
Applying further the principles set forth above to the case at
bar, Harris is applicable to the first and fifth grounds
alleged in the petition. With respect to movant's first
contention, that defense counsel was ineffective due to his
failure to object to the jury charge which differed from the
charge in the indictment, the appellate division clearly and
expressly stated that the petitioner's claim "was not properly
preserved for appellate review." People v. Udzinski,
146 A.D.2d 245, 541 N.Y.S.2d 9, 11 (2d Dep't 1989). Thus, pursuant
to Harris, the Court is procedurally barred from examining
the merits of this claim absent cause and prejudice.