The opinion of the court was delivered by: LEONARD D. WEXLER
Petitioner, Douglas Player ("petitioner"), appearing pro se, petitions this 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.
On January 14, 1986, two men forcibly entered a dwelling in Brentwood, Suffolk County, New York. One of them, later identified as petitioner, was wearing a navy blue ski suit and a black ski mask, and was carrying a sawed-off shotgun in his left hand. Present in the home were William Bordies ("Bordies") and his girlfriend, Joanne Wiesbecker ("Wiesbecker"), both of whom recognized the masked gunman from previous encounters with him.
Petitioner asked Bordies if anyone else was in the house. Bordies told him that his brother, Adam, and Adam's girlfriend, both of whom lived in the house; were in a bedroom in the rear of the house. Petitioner dragged Bordies to the bedroom but it was unoccupied. Petitioner threw Bordies back into the hallway and threatened to shoot him if he did not get the remaining ring off his finger. Bordies forced it off and gave it to petitioner. The man standing over Wiesbecker alerted petitioner that the police were coming. Petitioner ordered Bordies and Wiesbecker to count to one hundred, and the two men exited through the front door.
Almost immediately thereafter, Bordies' friend, Derrick Porter ("Porter"), came into the house. He told them that he had seen an orange station wagon pulling away from the house. At that point, Bordies' brother, Adam, returned with the police. Bordies and Wiesbecker were taken to the police precinct where they filed a complaint. When they returned to Bordies' house, Adam, Porter, and Juan, who also lived in the house, were in the living room. Several minutes later, petitioner, who was carrying a ski mask, came in with a friend and asked Bordies what was wrong. Bordies did not respond. Petitioner said to Wiesbecker, "I know you. I remember you." Tr.
85. Petitioner stayed about two minutes and then left. Wiesbecker saw an orange station wagon pulling out of the driveway. Porter identified it as the same car he had seen earlier. Both Bordies and Wiesbecker reconfirmed their identification of petitioner as the intruder.
Soon thereafter, petitioner was indicted by the Grand Jury and charged with one count of burglary in the first degree, pursuant to § 140.30 of the New York Penal Law, and one count of robbery in the first degree, pursuant to § 160.15 of the New York Penal Law. On August 4, 1986, Sandoval/Huntley hearings were held and certain statements made by petitioner were suppressed by the trial court.
The prosecution established its case, in large part, by calling Bordies and Wiesbecker as witnesses. Both of them testified that they knew petitioner prior to the date of the crime and they identified him by his size, clothing, and his deep voice. Following a jury trial in August of 1986, petitioner was convicted of both charges. He was adjudicated as a prior felony offender and sentenced to concurrent indeterminate terms of incarceration of eight to sixteen years on both counts. On March 7, 1988, the Appellate Division, Second Department, affirmed the conviction. Leave to appeal to the New York Court of Appeals was denied on June 21, 1988. This petition followed.
Petitioner sets forth six grounds in support of his petition: (a) that the trial court's identification charge did not give the jury the guidance required in a pure identification case and was biased in favor of the People; (b) that the prosecutor's references in summation to matters not in evidence deprived him of a fair trial; (c) that he was deprived of his constitutional right to effective assistance of counsel; (d) that the identification of petitioner as the intruder was not proven beyond a reasonable doubt; (e) that the possibility of mistaken identification revealed by a witness, and the intimidation of that witness by the threat of prosecution for perjury, cast doubt upon the conviction; and (f) that the sentence was harsh and excessive. Petitioner has exhausted the remedies available to him in the state court system, as required in a federal habeas proceeding. See 28 U.S.C. § 2254(b); see also Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).
Although a claim is exhausted in the state courts, a petitioner is neverthe less procedurally barred from seeking habeas corpus relief on the basis of a claim not properly preserved in state court unless he provides an adequate justification excusing this error and demonstrates that prejudice has resulted from the alleged violation for which relief is being sought. Wainwright v. Sykes, 433 U.S. 72, 86-87, 53 L. Ed. 2d 594, 97 S. Ct. 2497, 2506-07 (1977), Reed v. Ross, 468 U.S. 1, 11, 82 L. Ed. 2d 1, 104 S. Ct. 2901, 2907-08 (1984) (citations omitted); Forman v. Smith, 633 F.2d 634, 638-43 (2d Cir. 1980), cert. denied, 450 U.S. 1001, 68 L. Ed. 2d 204, 101 S. Ct. 1710 (1981). Simply put, a claim not properly preserved is barred from consideration by a federal habeas court absent a showing of "cause and prejudice." Wainwright, 433 U.S. at 87.
Respondent argues that petitioner herein is procedurally barred from seeking habeas review of the claims involving the trial court's charge and the prosecutor's closing remarks. Respondent correctly asserts that petitioner's trial counsel did not object to either.
Thus, respondent concludes that habeas review may not be had for these claims because they were not properly preserved for appeal. See N.Y. Crim. Pro. Law § 470.05 (McKinney 1983 and Supp. 1991).
In Harris v. Reed, 489 U.S. 255, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989), the Supreme Court declared that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Id. at 263 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 86 L. Ed. 2d 231, 105 S. Ct. 2633, 2638-39 (1985)); see also Rollins v. Leonardo, 938 F.2d 380, 381 (2d Cir. 1991) (citation omitted), cert. denied, 117 L. Ed. 2d 114, 60 U.S.L.W. 3498, 112 S. Ct. 944 (1992). However, the Supreme Court has explained that the Harris presumption "applies only when it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision." Coleman v. Thompson, 115 L. Ed. 2d 640, 111 S. Ct. 2546, 2559 (1991).
In the instant case, the last state court to render a judgment on the issues presented was the appellate division. In fact, the appellate division was presented with all of the constitutional issues currently asserted.
In its decision, that court addressed only: (1) whether petitioner's guilt was proven beyond a reasonable doubt; (2) whether petitioner received effective assistance of counsel at trial; and (3) whether the sentence imposed was excessive. The court concluded its decision by stating, "We have considered [petitioner's] remaining contentions and find that they are either unpreserved for appellate review or without merit. Opinion of the Appellate Division, Second Department, Ind. No. 139/86, March 7, 1988 at 2.
The appellate division failed to delineate whether either of two issues in question was meritless or, in fact, procedurally barred. Therefore, this Court finds that the appellate division did not "clearly and expressly" rely on procedural default grounds to dismiss petitioner's improper jury instruction and prosecutorial misconduct claims. See Harris, 489 U.S. at 263; see also Rosenfeld v. Dunham, 820 F.2d 52, 54-55 (2d Cir.) (finding that the Appellate Division, Second Department's determination that defendant's remaining claims did not merit reversal did not entitle the district court to assume that the state court's decision rested ...