The opinion of the court was delivered by: Nickerson, District Judge.
Petitioner seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254.
He was convicted in New York Supreme Court, Queens County, of
manslaughter in the first degree, attempted manslaughter in the
first degree, assault in the first degree, two counts of criminal
possession of a weapon in the second degree, unlawful
imprisonment in the first degree and endangering the welfare of a
The court sentenced him to one indeterminate term of 8½ to 25
years imprisonment for first degree manslaughter to run
consecutively to concurrent terms of 5 to 15 years imprisonment
for attempted manslaughter and weapons possession, 1 to 3 years
for unlawful imprisonment, and 1 year for child endangerment.
Petitioner appealed the conviction on the grounds that the
trial court had denied his right to a fair trial by failing to
submit an intoxication instruction to the jury and that the
consecutive sentencing was unduly harsh. On May 11, 1989, the
Appellate Division affirmed the conviction. See People v.
Ramirez, 151 A.D.2d 617, 542 N.Y.S.2d 365 (2d Dep't 1989). The
Court of Appeals denied leave to appeal, 74 N.Y.2d 851,
546 N.Y.S.2d 1016, 546 N.E.2d 199 (1989).
The petition raises the identical claims made on direct appeal.
The court may not entertain a petition for habeas corpus until
the petitioner has exhausted available state remedies. See
28 U.S.C. § 2254(b), (c). To satisfy this requirement, petitioner
must have both put the "state courts on notice that they are to
decide federal constitutional claims," Petrucelli v. Coombe,
735 F.2d 684, 687 (2d Cir. 1984), and presented the claims to
"the highest state court from which a decision can be had." Daye
v. Attorney General, 696 F.2d 186, 190 n. 3 (2d Cir. 1982) (en
banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d
184 (1984). Petitioner did both. He raised the claims on direct
appeal at the appellate division, and the Court of Appeals denied
The court also cannot ordinarily review a claim in a habeas
petition if the state court's denial of the claim rested on the
petitioner's failure to follow state procedural rules. See
Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53
L.Ed.2d 594 (1977). If the basis of the state court's decision is
unclear, the court will not consider the claim procedurally
barred and will address the merits. See Harris v. Reed,
489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (holding
that procedural default exists only when the state court's
decision "`clearly and expressly' states that its judgment rests
on a state procedural bar").
Respondent argues that the Appellate Division rejected
petitioner's claim relating to the failure to instruct the jury
on intoxication on procedural grounds. The court did "note that
the defendant never requested such a charge and did not raise an
objection to the court's charge as given [and] accordingly, his
claim of error has not been preserved for appellate review as a
matter of law" (citation omitted). But the court then went on to
consider the merits of the claim. The opinion said that a review
of the record indicated that there was "insufficient evidence of
intoxication" to warrant the instruction.
The state court has not "clearly and expressly" said that its
decision rested on the procedural default. It is fair to infer
from the opinion that if the Appellate Division had found that
the failure to give the instruction was reversible error, it
would have disregarded the procedural default. See People v.
Nater, 56 A.D.2d 664, 392 N.Y.S.2d 303 (2nd Dept. 1977)
(reversing a conviction in the "interest of justice" for failure
to instruct jury on intoxication "despite there having been no
request for [it]").
Petitioner also claims his consecutive sentences are overly
harsh. They are not so extreme as to violate the Constitution's
prohibition on cruel and unusual punishment. See Solem v. Helm,
463 U.S. 277, 292, 103 S.Ct. 3001, 3010, 77 L.Ed.2d 637 (1983);
Holmes v. Scully, 706 F. Supp. 195, 204 (E.D.N.Y. 1989).
The application for a writ of habeas corpus is ...