available State corrective process constitutes exception to exhaustion requirement).
A federal court generally is 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 arises through a failure to make a timely appeal, or through a failure to preserve a claim of appeal through contemporaneous objection. See id. A procedurally barred claim will preclude federal habeas review of that claim "unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989) (internal quotes omitted).
For a procedural bar to exist, it is necessary that "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 (internal quotes omitted). The silence of a reviewing state court will not automatically negate the existence of a procedural bar, however, for "where . . . the last reasoned opinion on the claim explicitly imposes a procedural default, [it is] presumed that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590, 2594, 115 L. Ed. 2d 706 (1991).
In addition, in cases in which numerous claims are asserted on appeal to the state reviewing court, the judgment must unequivocally refer to a state procedural bar as to each specific claim; for a state court's ambiguous invocation of a procedural default does not bar federal habeas review. See Harris, 489 U.S. at 264; compare Reid, 961 F.2d at 377 P 3 (numerous claims disposed of by state appellate court as "either unpreserved for appellate review or without merit" were not procedurally barred) with id. P 6 (single claim disposed of by state appellate court, employing language "the defendant's pro se argument . . . is unpreserved for appellate review," was procedurally barred).
Finally, it should be noted that a procedural bar overrides the general exhaustion doctrine to some extent. This is so because the inclusion within a federal habeas petition of an unexhausted claim, for which no further state review (direct or collateral) is available, will not warrant the dismissal of the entire petition. See Harris, 489 U.S. at 263 n.9 ("[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); see also Levine, 44 F.3d at 126 ("In holding that [the petitioner] failed to exhaust his resentencing and double jeopardy claims, we assume, without deciding, that he can still pursue the claims in state court pursuant to CPL § 440.20 (motion to set aside sentence) despite his failure to raise the claims on direct state appeal. Thus, there appears no reason to treat these unexhausted claims as exhausted.") (citing 28 U.S.C. § 2254(b) for proposition that "absence of available state corrective process constitutes exception to exhaustion requirement") (other citations omitted).
In the instant petition, Bacchi avers, inter alia, that prosecutorial misconduct was manifested through the prosecutor's impeachment of the testimony of the sole defense witness at his trial by eliciting the hearsay statement of a police officer who was never called to testify. As this claim was first raised in this petition, this Court must determine if the claim is procedurally barred in the state courts. Under CPL § 460.10, an appeal generally must be taken within thirty days of the sentence, although under CPL § 460.30, in exceptional circumstances, the time for taking an appeal may be extended by up to one year. Further, under CPL § 440.10(2)(c), a collateral attack on a judgment will fail where the defendant unjustifiably failed to raise the relevant ground or issue upon the appeal actually perfected by him. As this claim is procedurally barred in the state courts, it would be futile to require the petitioner to return there before considering any of the claims raised in his habeas petition. Accordingly, the inclusion of this claim within the petition does not warrant that the entire petition be dismissed.
See Grey, 933 F.2d at 120.
Petitioner next asserts that the trial court's missing witness jury instruction constituted an incorrect statement of the law, and therefore prejudiced his due process right to a fair trial. On his direct appeal to the Appellate Division, Bacchi asserted this very claim. The Appellate Division did not directly address this claim, employing the following conclusory language: "The defendant's remaining contentions are either unpreserved for appellate review or without merit." Bacchi, 588 N.Y.S.2d at 621. In Reid v. Senkowski, 961 F.2d 374 (2d Cir. 1992) (per curiam), upon consideration of identical language employed by the state appellate court, the Second Circuit Court of Appeals ruled that such language was sufficiently equivocal not to constitute an adequate and independent state ground. See Reid, 961 F.2d at 377. Accordingly, this claim is amenable to federal habeas review.
In addition, each of the other claims asserted by Bacchi was properly preserved and raised on direct appeal, and is amenable to review by this Court under the general exhaustion doctrine. In raising these claims on appeal, petitioner's brief invoked constitutional arguments sufficient to alert the state courts of their federal character.
Having concluded that three of the four claims asserted within the instant petition are amenable to substantive review, the Court now turns to address the merits of these claims.
II. Analysis of the Merits of the Petitioner's Claims
A. Improper Jury Charge
Petitioner asserts that the trial court's missing witness charge to the jury contained an incorrect statement of the law that deprived him of a fair trial. Specifically, he maintains that this instruction impermissibly permitted the jury to draw adverse inferences against the defense, rather than the State, on account of the State's failure to call Detective Simonetti as a witness. Petitioner further contends that this instruction prejudiced him insofar as it discredited the testimony of Henry Wrieth, the sole defense witness.
The trial court's missing witness instruction was incorrect. The instruction [reproduced in its entirety, supra] should have concluded: "however, from the failure of the People to call Detective Simonetti, the law permits but does not require you to infer, if you believe it proper to do so, that if Detective Simonetti had been called by the People, and had testified, such testimony would have supported and corroborated the testimony of Henry Wrieth." [corrected text emphasized].
Analyzing the context in which this instruction was given, the statements pertaining to Wrieth's conversation with Detective Simonetti were initially elicited by the defense on direct examination. Tr. at 673. The inquiry on cross-examination centered around the witness' limited conversation with the victim as she was leaving the bar, and was of slight evidentiary value. Id. at 684-87. In sum, Wrieth's testimony did little to exculpate the petitioner, and the benefit to the petitioner of a correct missing witness instruction would not have been substantial.
"[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). To overturn a state court conviction based on an improper jury instruction, the federal court must establish "not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Id. at 146, 94 S. Ct. at 400.
Regardless of whether the jury charge challenged here is reversible as a matter of state law, the alleged errors are not of federal constitutional dimension. A review of the entire jury charge shows that, on balance, it was fair to the petitioner. Accordingly, this claim is without merit.
B. Prosecutorial Misconduct
1. False Testimony of Witness
Petitioner contends that the prosecutor allowed his witness to testify falsely. Specifically, he asserts that, despite the prosecutor's knowledge that there was no evidence linking the petitioner to a prior rape, he nevertheless allowed the complainant to testify that a third party informed her that the petitioner had previously committed a rape. This claim is without merit. The record is devoid of facts sufficient to determine the truth or falsity of the previous rape allegation. Moreover, this testimony was originally adduced by the defense on cross-examination of the complainant. Tr. at 341-42. Furthermore, the trial judge instructed the jury that the statement in question was hearsay. Id. at 782.
2. Inflammatory Statements on Summation
Last, petitioner asserts that the prosecutor, during summation, made inflammatory remarks, and while on the verge of tears, begged the jury to convict the petitioner. A review of the record shows that during summation, the prosecutor addressed a juror by name, id. at 750, referred to the jurors' fear of guns, id. at 751, and characterized the petitioner as a "sick man." Id. at 758.
On a petition for a writ of habeas corpus, the appropriate standard of review for a claim of prosecutorial misconduct is "the narrow one of due process . . . ." Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 (1974). A federal court must distinguish between "ordinary trial error of a prosecutor and that sort of egregious misconduct . . . amounting to a denial of constitutional due process." Id. at 647-48, 94 S. Ct. at 1873. The issue thus becomes whether "the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair." Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986).
Under the law of the Second Circuit, a court must consider the following three factors in determining whether a criminal defendant has sustained "substantial prejudice" through a prosecutor's summation: " the severity of the misconduct;  the measures adopted to cure the misconduct; and  the certainty of conviction absent the improper statements." United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) (per curiam), cert. denied, 456 U.S. 989, 73 L. Ed. 2d 1284, 102 S. Ct. 2269 (1982). In connection with the instant petition, (1) the prosecutor's misconduct--although not to be condoned--was confined to his summation; (2) the court immediately sustained an objection to the characterization of the petitioner as a "sick man;" and (3) the certainty of the conviction, absent the prosecutor's improper statements, would not have been materially undermined. See id. In light of this evaluation, the Court concludes that the prosecutor's summation did not substantially prejudice the petitioner, or deprive him of a fair trial.
In sum, petitioner is unable to show that he was denied a fundamentally fair trial. See Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000, 78 L. Ed. 2d 694, 104 S. Ct. 503 (1983). Moreover, the Court does not regard the cumulative effect of the errors at his trial to have closely approached a level constituting a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 123 L. Ed. 2d 353, 113 S. Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)); see Flanders v. Meachum, 13 F.3d 600, 605 (2d Cir. 1994); see also O'Neal v. McAninch, 130 L. Ed. 2d 947, 115 S. Ct. 992, 994 (1995) ("When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict, that error is not harmless [, and] the petitioner must win.") (internal quotes omitted). Accordingly, the instant petition must be dismissed.
For the foregoing reasons, petitioner's application for a writ of habeas corpus is denied in its entirety and the petition is dismissed.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
May 15, 1995