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BEVERLY v. WALKER

August 29, 1995

JAMES BEVERLY, Petitioner,
v.
HANS WALKER, Superintendent, Auburn Correctional Facility, Respondent.



The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.

 INTRODUCTION

 Presently before the Court is the October 11, 1994 Report-Recommendation of Magistrate Judge Gustave J. Di Bianco, in which he recommended that the petitioner's request for a writ of habeas corpus be dismissed. Petitioner has not filed objections to the Report-Recommendation. *fn1" After a thorough review of the applicable law and the entire file in this matter, the Court approves the recommendation and reasoning as set forth by Magistrate Judge Di Bianco.

 BACKGROUND

 Petitioner was convicted after a jury trial in the Onondaga County Court on October 22, 1985, on six counts of Criminal Sale of a Controlled Substance in the Third Degree. He was sentenced to six concurrent terms of twelve and a half to twenty-five years of imprisonment.

 The conviction was unanimously affirmed by the Appellate Division, Fourth Department on March 10, 1989, People v. Beverly, 148 A.D.2d 922, 539 N.Y.S.2d 161 (4th Dep't 1989), and the New York Court of Appeals denied leave to appeal on May 16, 1989. Prior to the conviction being affirmed on appeal, petitioner moved under New York Criminal Procedure Law § 440.10 to vacate the judgment and for a writ of error coram nobis. That motion was denied by the Onondaga County Court on May 4, 1988, and the Appellate Division, Fourth Department denied leave to appeal on December 5, 1988. Petitioner again moved to vacate the judgment, which the Onondaga County Court denied on April 17, 1991. The Appellate Division, Fourth Department denied leave to appeal on January 24, 1992, and the Court of Appeals dismissed petitioner's application for leave to appeal on April 1, 1992.

 In September 1992, petitioner, now an inmate at Mid-State Correctional Facility, petitioned this Court for a writ of habeas corpus and applied to proceed in forma pauperis. By order dated October 16, 1992, petitioner was allowed to proceed in forma pauperis under 28 U.S.C. fol. § 2254. The petition was served on respondent, who then filed an answer, accompanied by state court records and a memorandum of law seeking dismissal of the petition.

 DISCUSSION

 The current petition raises fifty-five grounds for relief. The Court agrees with the Report-Recommendation of Magistrate Judge Di Bianco which found that grounds 5, 24, 26 and 36 are procedurally defaulted; that grounds 1, 2, 6, 9, 11, 14, 15, 18, 29, 34 and 39 are not cognizable on habeas corpus review; that grounds 3, 4, 7, 8, 10, 12, 13, 16, 17, 19-23, 25, 27, 28, 30-33, 35, 37, 38 and 40-55 fail on their merits; and that the petition should be dismissed.

 I. PROCEDURALLY DEFAULTED CLAIMS - GROUNDS 5, 24, 26 AND 36

 In grounds 5 and 24 petitioner claims that the prosecution failed to establish that the substance he sold was actually cocaine. In grounds 26 and 36 petitioner claims that he was denied due process of law when the trial court did not charge lesser included offenses. The Court finds that the petitioner has procedurally defaulted on these claims.

 "Because of comity and federalism concerns and the requirement that States have the first opportunity to correct their own mistakes, federal habeas courts generally may not review a state court's denial of a state prisoner's federal constitutional claims if the state court's decision rests on a state procedural default that is independent of the federal question and adequate to support the prisoner's continued custody." Epps v. Commissioner of Correctional Servs., 13 F.3d 615, 617 (2d Cir. 1994). A procedurally defaulted claim may still be reviewed by a federal court, however, if the petitioner can demonstrate "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991).

 Here, although petitioner had raised these grounds on direct appeal, he had not objected to the evidence or jury charge during the trial. On appeal, the state argued that New York Criminal Procedure Law § 470.05 barred a challenge to the finding that the substance sold was cocaine because there was no objection to that finding at trial. Similarly, New York Criminal Procedure Law § 300.50(1) provides that objections to a jury charge are waived if not made before the jury retires to deliberate. The Appellate Division held that petitioner's arguments on these grounds "either lacked merit or were not preserved for review." Accordingly, this Court finds, as did the Magistrate Judge, that petitioner has procedurally defaulted on grounds 5, 24, 26 and 36. Coleman, 501 U.S. at 750, 115 L. Ed. 2d 640, 111 S. Ct. 2546; Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Because petitioner's trial counsel was not ineffective, see infra § III.H, petitioner has failed to show cause for the default. Therefore grounds 5, 24, 26 and 36 are dismissed. See Fernandez v. Leonardo, 931 F.2d 214, 217 (2d Cir.), cert. denied, 502 U.S. 883, 112 S. Ct. 236, 116 L. Ed. 2d 192 (1991).

 Petitioner submitted papers after the Report-Recommendation was filed arguing that his constitutional rights were violated when he was not present at a hearing conducted pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (Ct. App. 1974). Because such a claim appears nowhere in the habeas petition, the Court will construe the papers as a request to amend the habeas petition. Although "there are no specific habeas corpus rules with respect to amendment of a habeas petition," Williams v. Bartlett, 842 F. Supp. 64 (W.D.N.Y. 1994), it appears that allowing an amendment here would be futile because petitioner has procedurally defaulted on his claim and has not shown cause nor prejudice for the default.

 Petitioner first raised this issue in the Onondaga County Court through a motion to vacate his conviction pursuant to New York Criminal procedure Law § 440. That court denied the motion holding that petitioner's failure to raise the issue on direct appeal foreclosed him from pursuing it there. See People v. Beverly, No 85-581 (Onondaga County Court May 24, 1994). The Appellate Division, Forth Department denied leave to appeal, holding that "there is no question of law or fact which ought to be reviewed." The Court of Appeals subsequently dismissed petitioner's application for permission to appeal. Because the state court made an adequate and independent finding of procedural default, and because petitioner has not made any attempt to show cause or prejudice, this Court will not review his claim. Accordingly it would be futile to allow petitioner to amend his habeas petition.

 II. NON-COGNIZABLE CLAIMS - GROUNDS 1, 2, 6, 9, 11, 14, 15, 18, 29, 34 AND 39

 A. Defective Grand Jury proceedings

 Grounds 1, 2, 6, 9 and 39 of the petition allege various improprieties in the grand jury proceedings. Grounds 1 and 2 allege that the prosecutor failed to properly instruct the grand jury as to the elements of the crimes charged and exculpatory defenses. Ground 6 alleges that the prosecutor improperly bolstered grand jury testimony by referring to drug deals that were not supported by evidence. Ground 9 alleges that petitioner was not allowed to appear before the grand jury, and ground 39 alleges that the grand jury proceedings violated due process because they were not recorded.

 This Court finds, as did the Magistrate Judge, that a petit jury's guilty verdict transforms any defect in the grand jury proceedings into harmless error by establishing both that there was probable cause to indict the defendant and that the defendant was actually guilty beyond a reasonable doubt. United States v. Mechanik, 475 U.S. 66, 70, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986). Claims of constitutional error arising out of state grand jury proceedings are thus not cognizable for federal habeas corpus review. Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). Accordingly, grounds 1, 2, 6, 9 and 39 are dismissed.

 B. Claims Based on State Law

 Grounds 11, 14, 15, 29 and 34 of the petition allege that the prosecutor and the trial court violated various state laws and denied petitioner due process of law. *fn2" Ground 11 alleges that the prosecutor violated New York Criminal Procedure Law § 260.30 by failing to make an adequate opening statement to the jury. Grounds 14 and 29 allege that the prosecutor and the trial court violated New York Criminal Procedure Law §§ 200.95(2) and 200.95(4) by denying petitioner's request for a bill of particulars. Ground 15 alleges that the prosecutor violated New York Criminal Procedure Law § 100.05 by failing to file a proper complaint with the trial court. Ground 34 alleges that the trial court violated New York Criminal Procedure Law § 300.10(4) by failing to inform the defense what counts were being presented to the jury.

 A federal court may entertain a state prisoner's habeas corpus petition only to the extent that the petition alleges custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C § 2254(a). Accordingly, federal habeas corpus relief does not lie for errors of state law that do not rise to the level of federal constitutional violations. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780, 111 L. Ed. 2d 606, 110 S. Ct. 3092 (1990)). Because grounds 11, 14, 15, 29 and 34 allege state law violations, and petitioner has not shown that the alleged violations rise to the level of federal constitutional violations, those grounds are dismissed.

 Ground 18 of the petition alleges that the trial court violated petitioner's right to due process by denying his Sandoval motion. See People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (Ct. App. 1974). Petitioner argues that the denial of the Sandoval motion prevented him from testifying at trial and kept the jury from hearing his side of the story regarding the drug sales to Officer Cecile. A habeas petitioner's failure to testify at trial is "fatal to any claims arising out of a Sandoval type ruling" because absent such testimony, a court has no "adequate non-speculative basis upon which to assess the merits of the claim." Peterson v. LeFevre, 753 F. Supp. 518 (S.D.N.Y. 1991) (citations omitted), aff'd, 940 F.2d 649 (2d Cir. 1991). As the Magistrate Judge found, because petitioner did not testify at trial, ground 18 is dismissed.

 III. CLAIMS FAILING ON THE MERITS - GROUNDS 3, 4, 7, 8, 10, 12, 13, 16, 17, 19-23, 25, 27, 28, ...


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