The opinion of the court was delivered by: SHARON E. GRUBIN
REPORT AND RECOMMENDATION TO THE HONORABLE ROBERT P. PATTERSON, JR.
SHARON E. GRUBIN, United States Magistrate Judge:
Petitioner, currently an inmate at the Woodbourne Correctional Facility, pro se seeks a writ of habeas corpus under 28 U.S.C. § 2254 to obtain his release from custody pursuant to a December 16, 1991 judgment of the New York State Supreme Court, New York County (Fitzgerald, J.), convicting him after a jury trial of two counts of burglary in the second degree. See N.Y. Penal Law § 140.25(2) (McKinney 1988). Viewing the facts in the light most favorable to the state, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 102 L. Ed. 2d 334, 109 S. Ct. 316 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir. 1986), the evidence at trial established that on July 21, 1990, at about 6:00 to 6:30 a.m. when Rene Valdivia awaked in the bedroom of his apartment at 167 East 116th Street in Manhattan, he saw petitioner lunging toward him with outstretched arms. Mr. Valdivia screamed and chased petitioner from his bedroom and out the front door of his apartment. Mr. Valdivia then discovered that he was missing four rings, a bracelet, $ 600 and a camera and that the lock on his front door had been broken. The next morning, at about 9:30 a.m., Eduardo Montoya was awakened by noise in the apartment at 187 East 116th Street that he shared with his wife, Elizabeth Lopez, and he saw petitioner attempting to take the VCR off the top of the television in his bedroom. Mr. Montoya screamed and chased petitioner from his bedroom, through the apartment and out the front door and up the stairs to the roof. After Mr. Montoya returned to the apartment, Ms. Lopez telephoned the police. Petitioner apparently crossed the roofs of three adjacent apartment buildings, entered 167 East 116th Street from the roof door and walked down the stairs to the lobby where he was observed by Ms. Patricia Lozano. At about 10:00 a.m. Ms. Lopez and Ms. Lozano flagged two police officers, told them about the burglary and gave them a description of petitioner. The officers canvassed the area in a patrol car with Ms. Lopez and Ms. Lozano in the back seat, driving westbound on East 116th Street, and after a few minutes Ms. Lozano spotted petitioner, recognizing him by his clothing and his bald head. After the officers approached and handcuffed petitioner, but before they asked him any questions, he told one of the officers, "you caught me four blocks away and I don't have anything on me." At trial the officer testified as to this statement, and Mr. Valdivia (whose testimony was taken at what is known as a "conditional" examination, made necessary by his hospitalization for lung cancer, and recorded and played at trial) and Mr. Montoya each identified petitioner as the man who burglarized his apartment, both saying they had observed him inside their apartments at close range under well-lighted conditions.
Petitioner appealed his conviction to the Appellate Division of the New York State Supreme Court, claiming that he was denied his right to be present at part of a Wade/Huntley hearing on March 5, 1991, that the trial court erred in appointing substitute counsel for him for Mr. Valdivia's conditional examination rather than have it rescheduled, and that his sentence should be modified. In a supplemental brief submitted pro se, petitioner further claimed that the evidence against him was insufficient, that the case against him was based on a series of misidentifications of him by the two complainants, Montoya and Valdivia, and that he was denied effective assistance of counsel. On October 7, 1993 the Appellate Division affirmed the judgment in a brief Memorandum Decision. People v. Lynes, 197 A.D.2d 381, 602 N.Y.S.2d 359, 360 (1st Dep't). On November 24, 1993 petitioner applied for leave to appeal to the Court of Appeals of the State of New York on the ground that his right to be present at the Wade/Huntley hearing had been violated. On January 10, 1994 leave to appeal was denied. People v. Lynes, 82 N.Y.2d 927, 610 N.Y.S.2d 179, 632 N.E.2d 489 (Levine, J.)
In this petition, petitioner attacks his conviction on the following three grounds: (1) the state failed to prove his guilt beyond a reasonable doubt; (2) the misidentifications by Mr. Valdivia and Mr. Montoya violated his rights to due process and a fair trial; and (3) the court "erred in receiving testimony at [the] Wade hearing in [the] absence of petitioner."
The requirement of the federal habeas corpus statute, 28 U.S.C. § 2254, that a person in state custody exhaust his or her state remedies before seeking federal habeas corpus review is based on considerations of comity between federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their prisoners' federal constitutional rights. See, e.g., Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984); Mercado v. Henderson, 733 F. Supp. 19, 21 (S.D.N.Y. 1990); Castillo v. Sullivan, 721 F. Supp. 592, 593 (S.D.N.Y. 1989). Exhaustion requires a petitioner to have fairly presented at each available level of the state courts the same federal constitutional claims, legally and factually, raised in his or her petition to the federal court so that the state courts, including the state's highest court, will have had the opportunity to pass on them. Picard v. Connor, 404 U.S. at 275-76; Dave v. Attorney General of New York, 696 F.2d at 191; Klein v. Harris, 667 F.2d 274, 282-83 (2d Cir. 1981). However, "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.'" 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)). "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Id. See also Coleman v. Thompson, 501 U.S. 722, 735 n.1, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991).
Under the federal procedural forfeiture doctrine:
When a state prisoner has failed to raise his federal constitutional claim in the state courts in accordance with state procedural rules, including those requiring that claims of constitutional defects in the trial be raised on direct appeal from a conviction, there has been a procedural default that bars federal habeas review unless the petitioner shows both cause for the noncompliance and prejudice resulting from the alleged constitutional violation. The principle is relaxed when the state courts themselves have disregarded the default and decided the constitutional claim on the merits.
Roman v. Abrams, 822 F.2d 214, 222 (2d Cir. 1987), cert. denied, 489 U.S. 1052, 103 L. Ed. 2d 580, 109 S. Ct. 1311 (1989). See Coleman v. Thompson, 501 U.S. at 728-33; Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977).
Although petitioner presented his first and second grounds to the Appellate Division, he did not raise them in his application for leave to appeal to the Court of Appeals which was devoted exclusively to the issue of the alleged violation of petitioner's right to be present at the Wade/Huntley hearing, which is Ground Three of his petition herein. Indeed, the four-page letter application from petitioner's appellate counsel to Chief Judge Kaye began: "The issue raised by this appeal is whether a defendant's right to be present at a Wade hearing is violated when he or she is removed without having waived that right" (emphasis added), and the remainder of the application is argument on that sole issue. These two claims, therefore, have not been exhausted, as the Second Circuit held in a precisely analogous situation in Grey v. Hoke, 933 F.2d at 120. However, petitioner can no longer present these claims to the New York Court of Appeals or any other New York court because he has defaulted on them under New York law. As was the case in Grey v. Hoke,
...New York procedural rules plainly bar petitioner from attempting to raise [these two] claims before the New York Court of Appeals. Petitioner cannot again seek leave to appeal these claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Court Rules § 500.10(a). Collateral review of these claims is also barred because the issues were previously determined on the merits on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(a); see also N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if a claim could have been raised on direct review).
Id. See also Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 87, 114 S. Ct. 895 (1994); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991); Holmes v. Bartlett, 810 F. Supp. 550, 555 (S.D.N.Y. 1993). Our review of them, therefore, is appropriate at this time. However, because petitioner has not made any showing of cause or prejudice for his state procedural defaults on these two claims, we cannot consider them on the merits and they must be dismissed under the procedural forfeiture doctrine of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. ...