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April 21, 1992

GEORGE GATTO, Petitioner,
ROBERT HOKE, Superintendent of Eastern Correctional Facility, Respondent.


The opinion of the court was delivered by: CAROL BAGLEY AMON



 Petitioner George Gatto seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging various constitutional infirmities in connection with his murder conviction. *fn1" For the reasons set forth below, the petition is denied in its entirety.


 A. Procedural History

 On June 17, 1986, after a jury trial in the Supreme Court of the State of New York, Kings County, petitioner was convicted on two counts of murder in the second degree pursuant to N.Y. Penal Law § 125.25(1), (3). He was sentenced to concurrent terms of imprisonment of twenty years to life. Petitioner challenged his conviction on direct appeal raising four grounds: (1) his conviction was against the weight of the evidence; (2) the prosecutor deprived him of a fair trial by commenting on his post-arrest silence; (3) the court's unbalanced instruction concerning intent and its failure to charge the jury as to direct and circumstantial evidence deprived him of a fair trial; and (4) he was denied effective assistance of counsel because counsel failed to call him as a witness and failed to object to remarks made by the prosecutor during his summation.

 On January 17, 1989, the Appellate Division, Second Department, affirmed the judgment of conviction. People v. Gatto, 146 A.D.2d 643, 536 N.Y.S.2d 851 (2d Dept. 1989). The Court of Appeals denied petitioner's application for leave to appeal on March 9, 1989, and again on April 13, 1989. People v. Gatto, 73 N.Y.2d 977, 540 N.Y.S.2d 1011, 538 N.E.2d 363 (Ct. App. 1989); People v. Gatto, 73 N.Y.2d 1015, 541 N.Y.S.2d 769, 539 N.E.2d 597 (Ct. App. 1989).

 Petitioner subsequently filed the instant petition contending that his state court conviction must be set aside because: (1) he was denied his right to a fair trial due to the prosecutor's improper comments during summation on petitioner's post-arrest silence; (2) he was denied his right to a fair trial due to the prosecutor's improper and inflammatory summation in which he accused defense counsel and petitioner of fabricating a false defense, appealed to the sympathy of the jury, repeatedly commented on the veracity of his witnesses, and acted as an unsworn witness; and (3) he was denied effective assistance of counsel since defense counsel did not object to the prosecutor's comments on his post-arrest silence, did not object to other inflammatory summation comments and did not call petitioner as a witness at the trial.

 The State presented the testimony of Maria Gonzalez, several police officers who arrived at the scene after the murder and of Paul Stewart, a business associate of the petitioner.

 Gonzalez testified that at approximately 4:30 p.m. on September 19, 1984, she was at home with her live-in boyfriend, Pompeo Bekir. Gonzalez answered her door and found the petitioner standing there dressed like a parcel delivery person and carrying a package addressed to Gonzalez. She signed for the package and then went to answer her telephone. (T. at 755-768). *fn2" Gonzalez then returned to the door where petitioner pulled a gun from his waist and forced his way into the apartment. Petitioner then pushed Gonzalez and Bekir into the kitchen where he tied Gonzalez's hands behind her back. (T. at 759-769). Petitioner pointed the gun at the two and asked "where is it", to which he received no response. (T. at 760, 770, 1021). Bekir then moved towards Gatto and struck him in the stomach. The two men struggled in the kitchen and the gun went off. They continued to struggle in the hallway, out of Gonzalez's view, when Gonzalez heard a second shot followed by silence. Petitioner then returned to the kitchen with the gun in his hand and told Gonzalez "he won't be giving me much trouble. Now where is it." (T. at 760-61, 771-74).

 The door buzzer then rang and Gatto untied Gonzalez and had her open the door at gun point. Jim McNulty, a friend of Gonzalez's, then entered and petitioner then tied McNulty and Gonzalez together. (T. at 761, 775-76a). Petitioner continued to search the apartment and then untied Gonzalez, took her to a bedroom and asked "where is it". Gonzalez pointed to her pocketbook, at which point petitioner emptied the pocketbook and retied Gonzalez, leaving her in her son's room.

 Police officers began arriving on the scene at approximately 5:35 p.m. and secured the area around the apartment. The door to the apartment opened shortly thereafter and McNulty came out with rope on his arms and his mouth gagged. Petitioner came out behind him and was neither tied nor gagged. He was sweating profusely and his shirt was stained with blood. *fn3" (T. at 20, 56, 392-93). Police found Gonzalez tied up inside the apartment. Bekir was found dead with a gun on his chest. (T. at 78, 101-02).

 The box Gonzalez said petitioner carried into the apartment was found to contain approximately one thousand dollars in cash, two handguns, two or three bags of cocaine, which police valued at between fifteen and fifty thousand dollars, and nine magazines belonging to Paul Stewart, Gonzalez's business associate in the roofing industry. Stewart testified that the company was not working in Gonzalez's building or in the area, although associates often take on outside work. (T. at 397, 406, 467, 767, 919, 1115-26). In addition, police recovered a set of keys to a rental car which had been rented by Stewart for petitioner's use. Inside the car was petitioner's notebook and a diagram of Gonzalez's home, along with notations on the number and ages of the occupants. (T. at 31-33, 278-280, 407-410, 1123-1129)

 At the time of his arrest petitioner, after waiving his Miranda rights, told police that his name was George Martaurano and that he had been driven to Gonzalez's by a co-worker in order to pay for some cocaine he had previously purchased and in order to get more cocaine. (T. at 141-42). He later changed his story and said that he had driven himself to the apartment. (T. at 283). He stated that he arrived at the apartment and gave the woman he was purchasing the cocaine from the money he owed her and then asked for more cocaine. As she turned away petitioner felt a sharp pain in the back of his head and was knocked unconscious. He said he remained unconscious until he awoke and saw another man lying next to him, tied and gagged. Petitioner told police that he untied the man and exited the apartment where police were waiting. (T. at 141-42).


 A. Exhaustion and Procedural Bar

 Under 28 U.S.C. § 2254(b), applicants for habeas corpus relief ordinarily must "exhaust[] the remedies available in the courts of the State." The exhaustion requirement is satisfied when the federal claim has been "fairly presented" to the highest court of the state. Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. den., 464 U.S. 1048 (1984) (citing Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971) (per curiam)). In order to have fairly presented his federal claim to the state courts, the petitioner must demonstrate that he informed the state court of both the factual and legal premises of the claim he now asserts in federal court. Id. (citing Picard v. Connor, 404 U.S. 270, 275-76, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971)).

 In general, the rule requiring exhaustion of remedies is not a jurisdictional requirement; rather, its exercise relies upon interests of comity between state and federal systems of justice. Granberry v. Greer, 481 U.S. 129 (1987). Adherence to the exhaustion doctrine serves to protect the state court's role in the enforcement of federal law and to prevent disruption of state judicial proceedings. Rose v. Lundy, 455 U.S. 509, 518, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). With these goals in mind, the United States Supreme Court has held that if any part of a habeas petition is unexhausted, the entire petition must be ...

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