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June 20, 1994

CHARLES SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent.

The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 Petitioner Tyrone Thomas, proceeding pro se, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1983, after a jury trial, of various offenses stemming from the fatal shooting of a grocery-store owner during the course of a robbery. He is presently serving four concurrent terms of imprisonment, the longest of which is from twenty years to life.

 In this application for collateral relief, petitioner asserts a number of claims. First, he contends that his guilt was not proved beyond a reasonable doubt. Next, he claims that he was denied a fair trial. Specifically, petitioner asserts that the trial court erred by admitting certain photographs and fingerprint cards into evidence, by improperly marshaling the evidence in its instructions to the jury, and by improperly instructing the jury as to (i) the burden of proof with respect to petitioner's alibi defense, (ii) the proper weight to accord circumstantial evidence, and (iii) the standards for felony murder. Further to this point, petitioner asserts that he was denied a fair trial through prosecutorial misconduct on summation, and through the prosecutor's improper cross-examination of his alibi witnesses.

 Petitioner also contends that the trial court improperly halted the trial because of the unavailability of a state's witness. By so doing, petitioner asserts that he was subjected to double jeopardy. Petitioner further argues that his appellate counsel ineffectively conducted his direct appeal by failing to raise this issue.

 The Court has carefully reviewed the submissions of the parties, as well as the full record of proceedings in the state courts. For the reasons discussed herein, the petition is denied in its entirety.


 At petitioner's trial, the prosecution introduced evidence to show that on March 1, 1981 at approximately 8:00 P.M., four males, aged approximately seventeen through twenty, appeared at the entrance to the Friendly Superette at 1908 Church Avenue in Brooklyn, New York. The grocery store was owned by Jack Woo. In addition to Mr. Woo, present in the store at the time was William Fourquet, who was employed there as a clerk. Tr. at 54 (testimony of William Fourquet).

 The four youths at the door asked Fourquet if he could let them in so that they could buy a quart of beer. Fourquet told them the store was closed, and repeated himself three times. Id. at 55. Mr. Woo, who was behind the counter, overheard this dialogue and instructed Fourquet to let the youths in. Only one of the young men entered the store; the other three waited outside. Id. at 57.

 Upon entering the store, the youth proceeded to grab a quart of beer from the refrigerator and brought it to the counter. He then took out a dollar in payment therefor. Upon being informed that the cost of the beverage was $ 1.09, he asked if he could go outside to get the additional nine cents from his friends. Fourquet then unlocked the door to let the youth out, and held it open for him. Id. at 58-59.

 Shortly thereafter, the youth returned to the store and placed a gun to Fourquet's head. After Fourquet was pushed to the front of the counter, two other youths came in. With the weapon perched upon Fourquet's temple, the youth told Woo, who was standing behind the counter, to give them the money in the cash register or else he would shoot Fourquet. Id. at 60.

 In the excitement of the moment, Mr. Woo at first froze, but then composed himself and reached underneath the counter where he kept the money. Woo did not open the cash register because he had already transferred the money below the counter. Id. at 60-61.

 As Woo reached below to get the money, the youth holding the gun fired two shots, each striking Woo. Id. at 61. The gunshots proved fatal as Woo fell to the ground.

 Shortly thereafter, Fourquet was pushed to the floor. At this time, one of the youths hopped over the counter and attempted, without success, to open the cash register door. The youth with the gun then commanded Fourquet to open the cash register door. Fourquet, however, was also unable to do so. Id. at 63-66. Thereupon, the same youth who had previously failed to unjar the cash register door attempted to pry the door open, first with a steak knife, and then with a machete that was in the store. This effort also proved unsuccessful. Id. at 66-68.

 Upon abandoning his attempt to pry open the cash register, the youth commanded Fourquet to roll Mr. Woo over, whereupon the youth searched Woo's pockets, including his wallet, and removed approximately five to six hundred dollars in cash. Immediately thereafter, the youths fled the store. Id. at 68-69.

 Fourquet testified at trial that he was unable to identify positively the three youths in the store, aside from the fact that their skin color was black, they were aged approximately seventeen though twenty, and that their height ranged from approximately five-foot-seven to five-foot-eight. Id. at 54, 71.

 Following a police investigation, petitioner was charged with two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25[1] and [3]), one count of Robbery in the First Degree (N.Y. Penal Law § 160.15[2]), one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03), and two counts of Criminal Use of a Firearm in the First Degree (N.Y. Penal Law § 265.09[1] and [2]). His criminal trial was held before a jury in the New York Supreme Court for Kings County.

 At petitioner's trial, two forms of evidence were presented tying him to the scene of the crime. First, testimony was presented by Rudolph Harris, a convicted felon who at the time of the trial was serving a sentence of from one-and-a-half to four-and-a-half years upon having pled guilty to an attempted robbery in an unrelated occurrence. Tr. at 88-89 (testimony of Rudolph Harris). Harris testified that there came a time when the petitioner told him that he had "come in money" through his robbery of a store on Church Avenue at which a confederate, named Buzzy, had shot a man of Chinese descent. Id. at 91-92. On cross-examination, Harris admitted that upon speaking with the investigating police officer and an assistant district attorney in connection with the petitioner's alleged comments, the district attorney's office dismissed certain weapon possession charges that had been brought against him in an unrelated matter. Id. at 98, 110. Harris also admitted that on an earlier occasion in connection with an unrelated charge, he had lied on the witness stand to protect himself. Id. at 109.

 The petitioner testified at his trial and asserted an alibi defense, claiming that at the time of the robbery, he was present at a roller-skating risk with his sister and two friends. Id. at 253 (testimony of Frederick Tyrone Thompson). Petitioner's sister and the two friends each testified at trial as to the petitioner's presence with them at the time of the robbery. On cross-examination, it was adduced that none of the alibi witnesses, upon hearing of the petitioner's arrest, came forward to either the police or the assistant district attorney prosecuting the case to inform them of the petitioner's asserted whereabouts at 8:00 P.M. on March 1, 1981--the time of the robbery and fatal shooting for which the petitioner was arrested. Id. at 229 (testimony of Melinda Thomas), 239 (testimony of Rena Wilson), 248 (testimony of Jonathan Rogers).

 After the defense had rested, the prosecutor moved to reopen the case for the sole purpose of introducing the petitioner's fingerprint card into evidence. Id. at 261. The prosecutor claimed that he had inadvertently failed to introduce this item into evidence, and now sought to remedy this omission by filtering the evidentiary foundation there for through a witness who had testified earlier. The trial court granted this motion, and the petitioner's fingerprint card was admitted. Id. at 262.

 Petitioner was convicted on April 21, 1983 of Murder in the Second Degree (felony murder), Manslaughter in the First Degree, Robbery in the First Degree, and Criminal Possession of a Weapon in the Second Degree. Thomas was sentenced to concurrent terms of imprisonment of from twenty years to life on the felony murder count, six to eighteen years on the manslaughter count, six to eighteen years on the robbery count, and five to fifteen years on the weapon possession count.

 Thomas appealed the judgment of conviction to the New York State Supreme Court, Appellate Division, Second Department [hereinafter "Appellate Division"]. On direct appeal, petitioner argued that his guilt had not been established beyond a reasonable doubt. He further argued that he had been denied a fair trial (i) through the admission into evidence of certain photographs and fingerprint cards, (ii) through errors in the trial court's instructions to the jury, and (iii) through prosecutorial misconduct in connection with the summation, and in the prosecutor's cross-examination of his alibi witnesses. In addition, Thomas contended that his sentence was excessive. *fn1"

 On March 16, 1987, the Appellate Division unanimously affirmed Thomas's conviction. In an opinion reported at People v. Thomas, 128 A.D.2d 743, 513 N.Y.S.2d 69 (App. Div. 2d Dep't 1987), the Appellate Division concluded that Thomas's guilt indeed had been proven beyond a reasonable doubt. In particular, the court cited fingerprint evidence that linked Thomas to the crime, and the plausibility of the jury's credibility determinations. See id. at 69. In addition, the court noted that the absence of timely objection prevented the review of Thomas's contention that the prosecutor had improperly cross-examined the defendant's alibi witnesses with respect to their failure to come forward to the police, or to the district attorney's office, with exculpatory information. Despite this apparent procedural bar to the review of Thomas's claim, the Appellate Division nevertheless acknowledged that any prejudice that Thomas may have suffered through this cross-examination would have been cured through the trial court's instructions to the jury to disregard this line of questioning. See id. at 69-70. Finally, the Appellate Division found Thomas's other contentions to be without merit. See id. at 70.

 On June 24, 1987, the New York State Court of Appeals denied Thomas's application for leave to appeal.

 In 1989, Thomas moved before the Appellate Division for a writ of error coram nobis, claiming that his appellate counsel had represented him ineffectively. Specifically, Thomas contended that his appellate counsel should have raised a double jeopardy claim based on the trial court's declaration of a mistrial before all twelve jurors had been sworn. On December 5, 1989, the Appellate Division denied this motion, and on January 17, 1990, the New York State Court of Appeals dismissed Thomas's application to appeal.

 The procedural history of this petition having been set forth above, the Court now turns to address whether it may reach the merits of the petitioner's claims.


 I. Availability of Federal Judicial Review of the Merits of the Petitioner's Claims

 Under 28 U.S.C. § 2254(b), a federal court may not review the substantive merits of an applicant's claims for collateral relief unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b) (1988); see Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Blissett v. Lefevre, 924 F.2d 434, 438 (2d Cir.), cert. denied, 116 L. Ed. 2d 123, 112 S. Ct. 158 (1991); Moloi v. Riley, 762 F. Supp. 36, 37 (E.D.N.Y. 1991). This requirement is predicated upon principles of judicial comity, and is "designed to protect the state courts' role in the enforcement of federal law and [to] prevent [the] disruption of state judicial proceedings." See Rose, 455 U.S. at 518. *fn2"

 Where a petition contains both exhausted and unexhausted claims, a federal district court ordinarily must dismiss the petition. See Rose, 455 U.S. at 510. Accordingly, the procedural history of each of the claims asserted within the habeas petition must be reviewed separately to determine whether the exhaustion requirement has been satisfied. *fn3"

 The Second Circuit Court of Appeals has formulated a two-prong test for determining whether an applicant for federal habeas relief has exhausted his state remedies. First, the petitioner must have "fairly presented" his federal claim to the state courts. See Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc). To satisfy this requirement, the petitioner must demonstrate that he has informed the state courts of both the factual and the legal premises of the claim he now asserts in federal court. See id. (citing Picard v. Connor, 404 U.S. 270, 276-77, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971)). Under the law of this circuit, the petitioner need only make a minimal articulation of the federal claim to the state courts. See, e.g., Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (Federal claim was fairly presented where the petitioner filed a pro se supplemental brief in state court that cited the Fourteenth Amendment of the United States Constitution, even though no factual premises underlying this claim were asserted, and no cases were cited to. Rather, the reference to the Fourteenth Amendment within the supplemental brief was sufficient to place the state court on notice of the constitutional claims addressed in the brief.).

 The second prong of this doctrine generally requires the applicant to utilize all available avenues of appellate review within the state-court system before proceeding to federal court. See Daye, 696 F.2d at 190. Typically, this criterion requires a direct appeal to the highest court of the state. See id. n.3. This requirement, however, may also be satisfied where the applicant has collaterally attacked the judgment of conviction within the state courts, and thereafter has appealed the denial of his application to the highest court of the state. See Lloyd v. Walker, 771 F. Supp. 570, 574 (E.D.N.Y. 1991) (Exhaustion requirement met where state collateral review had been obtained through filing of a Motion to Vacate Judgment, pursuant to N.Y. Crim. Proc. L. § 440.10, followed by eventual appeal to New York Court of Appeals.); Dingle v. Scully, No. CV-90-1804 (RR), 1990 WL 252285, at *8-*9 (E.D.N.Y. Dec. 31, 1990) (reaching the merits of the applicant's speedy trial claim where state collateral review had been obtained through the filing of a state habeas petition, followed by a subsequent appeal and an application for leave to appeal to the New York Court of Appeals).

 Apart from the general exhaustion analysis, a federal court generally will be precluded from reviewing any claim included within the habeas petition for which "a state court rests its judgment on an adequate and independent state ground, including a state procedural bar." Reid, 961 F.2d at 377. A state procedural bar could arise through a failure to make a timely appeal, or through a failure to preserve a claim for appeal through contemporaneous objection. See id. Recognizing that the habeas petitioner, with respect to such claim, would no longer have any state remedies available to him, the Second Circuit Court of Appeals has held that the inclusion of such claim within a habeas petition will not warrant the dismissal of the entire petition. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989)) ("For exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'"); Gatto v. Hoke, 809 F. Supp. 1030, 1035 (E.D.N.Y.), aff'd, 986 F.2d 500 (2d Cir. 1992).

 There are three wrinkles to this doctrine. First, a federal district court may consider the merits of a procedurally barred claim where the petitioner is able to show "cause for the default and prejudice resulting therefrom." *fn4" Reid, 961 F.2d at 377 (quoting Harris, 489 U.S. at 262-63). Second, a procedural default may be excused even without a showing of cause and prejudice if there has been a "fundamental miscarriage of justice" sufficient to allow it to be shown "by clear and convincing evidence that but for a constitutional error, no reasonable jury would have found the petitioner guilty." Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993) (internal quotations omitted), cert. denied, 127 L. Ed. 2d 87, 114 S. Ct. 895 (1994). Third, "'a procedural default [will] not bar consideration of a federal claim on . . . habeas review unless the last state court rendering the judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar.'" Reid, 961 F.2d at 377 (quoting Harris, 489 U.S. at 263) (emphasis added).

 As to this third item, the Second Circuit Court of Appeals has been very strict in requiring a clear and express articulation of a state procedural bar in order for federal habeas review to be precluded. It is presumed "that when a federal claim is denied without explicit reliance on state grounds, the merits of the federal claim are the basis for the judgment." Wedra v. Lefevre, 988 F.2d 334, 338 (2d Cir. 1993). This presumption only will apply, however, "'when it fairly appears that a state court judgment rest[s] primarily on federal law or [is] interwoven with federal law.'" Id. (quoting Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2559, 115 L. Ed. 2d 640 (1991)).

 An example of these principles at work is provided in Reid v. Senkowski, 961 F.2d 374 (2d Cir. 1992). In Reid, the Second Circuit Court of Appeals noted that "the state appellate court summarily disposed of a number of Reid's challenges to his conviction . . . as 'either unpreserved for appellate review or without merit.'" Id. at 377 (quoting People v. Reid, 138 A.D.2d 642, 526 N.Y.S.2d 226, 227 (App. Div. 2d Dep't), leave to appeal denied, 528 N.E.2d 905 (1988). The Second Circuit held that this articulation was insufficient to preclude federal review of this claim because "the state court did not clearly and expressly state whether it had examined the merits of the [pertinent] claim or had relied on a procedural default." Id.5

 Turning to the instant petition, Thomas asserts, inter alia, that he was denied a fair trial because the prosecutor improperly cross-examined his alibi witnesses with respect to their failure to come forward with exculpatory information to the police, or to the district attorney's office. On his direct appeal to the Appellate Division, Thomas asserted this very claim, even though his counsel had not objected to the ...

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