witness medical examiner was improperly permitted to respond to the question, "Doctor, were you able to form an opinion, with a reasonable degree of medical certainty, as to whether this death was an accidental one?" According to Strauch, there was nothing medical, scientific or forensic about that issue but rather was a matter in the general knowledge of lay person. As such, he maintains, it was an inappropriate subject for expert opinion testimony. Also impugned as "usurping" the jury's function is the expert opinion testimony of "two witnesses," apparently referring to the medical examiner and the ballistics expert.
These claims were asserted as Ground Four of the direct state appeal and Ground Four of the first federal habeas corpus proceeding. In the latter proceeding, it was determined that this claim was among those "concerning the erroneous admission in a state criminal trial (that) are generally matter of state law" which was "unexhausted" by reason of the failure to present it to state courts in federal constitutional terms. This ground was not resurrected in the second habeas corpus petition two years later and was not asserted before the state tribunals, in the form of a motion to reargue, until four years had passed. Thus, this claim is deemed abandoned on the McCleskey grounds cited above.
Moreover, Strauch's presentation before the state court on this issue did not raise a claim of federal constitutional error. As such, there is no challenge to the law of the case that this claim is unexhausted. See Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982); Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984); Daye v. Attorney General of the State of New York, 696 F.2d 186, 191-92 (2d Cir. 1982).
Furthermore, as discussed above, an alleged error in a state court's interpretation of state rules of evidence does not rise to a constitutional level in and of itself. Finally, adequate foundation was laid that it was the Medical Examiner's forensic duty to attempt to determine if a shooting appeared to be accidental, arising out of the location, character and tracks of each of the bullet wounds and the location of the body. The standard instruction was given that this was merely an opinion offered to aid the jurors in understanding any matters beyond their lay knowledge and that it could be rejected in full. As such, no due process violation can be alleged by virtue of the admission of this expert testimony.
4. No Relief Lies From Any Claim of Ineffective Appellate Counsel
Finally, the petition sets forth a claim that he received ineffective assistance of counsel on his 1984 appeal. Strauch raised this claim in state court as part of his 1991 motion for reargument before the Appellate Division.
This claim is also be deemed abandoned for the reasons already stated. Strauch could have exhausted state remedies by bringing this issue before the state appellate court well before the 1991 motion. Strauch has had ample incentive to exhaust his claim as to the incompetence of his appellate counsel. He clearly should have done so to make this ground available for presentation in his second federal habeas petition two years later in 1988.
Moreover, the claim is facially meritless since the petition identifies no failure by counsel (much less one so egregious as to reach constitutional dimensions) and fails to demonstrate actual prejudice resulting therefrom. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Indeed, the current petition simply repeats the very points raised by appellate counsel on direct appeal.
The petition is denied, in forma pauperis status is granted, and a certificate of probable cause is granted.
It is so ordered.
New York, N. Y.
September 22, 1992
ROBERT W. SWEET