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February 26, 1996

PAUL LEE, Petitioner,
FLOYD BENNETT, Superintendent, et al., Respondent.

The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 By his pro se petition docketed December 21, 1995, Paul Lee, a state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254 following his conviction in the County Court of the County of Westchester, State of New York, on December 2, 1991.

 Petitioner, who was convicted of rape in the first degree in violation of Section 130.35 of the New York Penal Law, appears to have exhausted his state remedies. Specifically, as discussed below, he maintained a direct appeal and two separate post conviction motions in the state court system.

 The grounds stated in support of this petition are:

 (1) denial of due process because Petitioner did not receive a fair trial due to prosecutorial misconduct;

 (2) ineffective assistance of counsel at both the trial and appellate level;

 (3) that the verdict was against the weight of the evidence, and

 Surprisingly for this sort of proceeding, Petitioner also asserts his innocence. None but the first assertion need be considered by this Court, because the rest of the petition is just the usual chaff.

 The underlying facts, viewed most favorably to the prosecutor, are as follows. The victim (hereinafter referred to as "J") of the "date-rape" which forms the basis for this conviction was a twenty year old single live-in domestic employed by a family in New Rochelle. On Friday, November 9, 1990, "J" went out on the town in company with two other young women. They went to "Bumpers", a watering hole in New Rochelle patronized by Iona College students, and well known for pickups. *fn1" It was her plan to spend the night at the home of one of her two friends since her employing family was out of town and their house was dark.

 Appellant, a twenty-seven year old single male with a prior criminal record and an alcohol problem, was also at Bumpers. He soon struck up a conversation with "J" and they spent approximately two hours in the bar talking with each other. At the end of that time, Petitioner said he was going to another bar and "J" asked if she could come along with him. Petitioner agreed. On leaving Bumpers, "J" inquired of appellant if she could "crash" on his sofa at his home. Petitioner readily assented and leaving "J's" two girlfriends behind, Petitioner and "J" went to "Gary's", another watering hole across the street from Bumpers.

 At Gary's they ordered and received a pitcher of beer and thereafter, for reasons not developed at trial, the bouncer escorted Petitioner out of Gary's. "J" accompanied him outside and they went to a third bar, "Glory Days", where for the first time "J" was denied admittance for want of identification showing proof of age. They then went to a pizzeria together and then by taxi cab to the single family house in New Rochelle where Petitioner resided with his mother.

 They entered the home quietly through the back door, into a room occupied by Petitioner furnished with a couch, a mattress on the floor, and a television set.

 Thereafter, vaginal sexual intercourse occurred. The fact of intercourse was not disputed at trial. "J" claimed the intercourse took place without her consent and as a result of physical force. A red mark on "J's" throat, the extent and nature of which was hotly contested at trial, was offered as evidence of choking of the victim by the perpetrator prior to the rape.

 Thereafter, "J" spent the night in the room with Petitioner and was awakened in the morning by the sound of someone in the kitchen. "J" testified that Petitioner warned her to be quiet and said that if his mother, who was in the kitchen, heard her, she would call her a bitch and a slut and would chase her with a knife. (T: 87). "J" remained in the room with the petitioner until Petitioner left to make a phone call to his friend Jay Ritch. Ritch had met Petitioner through their joint membership in Alcoholics Anonymous; following AA meetings they would both go to bars together to drink and pick up women. (T: 310) Petitioner told Ritch that he had met a girl named "J" at Bumpers the night before and invited Ritch to come over to his house to meet "J". He informed Ritch that he had had sex with "J" the night before then put "J" on the telephone to speak with Ritch. Ritch asked "J" if she had stopped over at Petitioner's home that morning or if she had slept over the previous night and "J" responded that this was none of his business.

 Petitioner instructed Ritch to come over to his house as quickly as he could to meet "J", who then telephoned a taxi cab. No cab arrived. Eventually "J" found her way back to the home of her girlfriend with whom she had started out at Bumpers the night before, and went to the hospital complaining to the police that she had been raped.

 Procedural History

 The first trial ended with a declaration of a mistrial based upon jury deadlock. In some fashion the participants ascertained that the first trial jury, which consisted of seven women and five men had deadlocked six to six with six women voting to acquit.

 At the second trial the Petitioner was found guilty of Rape in the first degree and was sentenced to between four and one half and nine years in prison.

 The Petitioner thereafter appealed his December 2, 1991 judgment of conviction.

 In November of 1993, the Petitioner filed a motion to vacate his judgment of conviction pursuant to C.P.L. Section 440.10. In that proceeding the Petitioner raised five separate grounds for relief. Judge West denied the Petitioner's motion to the extent based on denial of due process during the summation observing that:

The arguments raised by the defendant may well be valid. Recent decisions including People v. MacRynolds, 175 A.D.2d 31, 572 N.Y.S.2d 8 and People v. Romero, 173 A.D.2d 383, 570 N.Y.S.2d 13 would so indicate. Unfortunately, these allegations concern matters which are clearly on the record and, thus, better dealt with on the defendant's direct appeal which is still pending.

 The Petitioner's appeal was submitted to the Supreme Court of the State of New York, Appellate Division of the Second Department. On November 28, 1994, the Appellate Division affirmed the Petitioner's conviction. The Appellate Division found that "the majority of the challenges to the prosecutor's remarks are unpreserved for appellate review. . . . In any event, the challenged remarks are, for the most part, fair response to the defendant's summation, fair comment on the evidence of the defendant's guilt."

 Thereafter, on December 23, 1994, Petitioner made an application to the New York Court of Appeals for review of his case. That application was denied on April 5, 1995.

 In March of 1995, the Petitioner made an application Coram Nobis to the Appellate Division, based upon ineffective assistance of counsel. That application was denied on June 12, 1995.


 As an initial matter, this Court must determine if the petitioner has satisfied the exhaustion requirement as dictated by the Supreme Court in Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). This court finds that he has.

 Our Court of Appeals has observed that "The most forthright way to present a constitutional claim to a state court is, of course, to recite the relevant facts and than make an explicit constitutional argument. A habeas petitioner in state court is not required, however, to cite 'chapter and verse' of the Constitution to satisfy the exhaustion rule. Instead, he may fairly apprise the state court of a federal constitutional claim by relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that 'call to mind a specific right protected by the Constitution,' or alleging facts that fall 'well within the mainstream of constitutional litigation.'" Levine v. Commissioner of Correctional Services, 44 F.3d 121, 124 (2nd Cir. 1995)(citing Daye v. Attorney General of the State of New York, 696 F.2d 186 (2nd Cir. 1982)(in banc)).

 In the instant case, the petitioner did not cite "chapter and verse" of the Constitutional amendments applicable to his due process rights, he did however allege facts which "fall well within the mainstream of constitutional litigation". This Court finds that the facts alleged in the petitioners appellate briefs should have called to mind fundamental due process principles, and as such, fully and fairly appraised the state court of the constitutional issue. See Holland v. Scully, 797 F.2d 57 (2nd Cir. 1986).

 At the second trial both attorneys, prosecutor and defense, were women. The trial record suggests some acrimony and mutual disrespect between the attorneys, apparently arising out of pre-existing antagonism rather than this particular case. The trial judge dealt reasonably for the most part with the problems of the trial and attempted to preserve decorum. His rulings appear to have been even-handed and largely correct. Just as there is no perfect crime, there is no perfect trial.

 The only error in the trial, and this Court concludes that it is plain error and grievous, is found in the cumulative effect of the prosecutor's summation. The purpose of summations is for the attorneys to assist the jury in analyzing, evaluating and applying the evidence. Deliberate injection of extrinsic or prejudicial matter which has no relevance to the case and no basis in the evidence is not an appropriate element of a prosecutor's summation because it impinges on the jury's function of determining guilt or innocence.

 As described by the Supreme Court in Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935):

The [prosecuting ] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

 Judge James C. Hill of the Fifth Circuit summarized what is and is not proper for a prosecutor to argue on summation in U.S. v. Morris, 568 F.2d 396 (C.A.5th 1978):

Counsel's improper statements in summation is a continuing problem in this Court in civil and criminal jury trials. The purpose of summations is for the attorneys to assist the jury in analyzing, evaluating, and applying the evidence. It is not for the purpose of permitting counsel to "testify" as an "expert witness."
* * *
These limitations on attorneys' arguments to juries exist for two reasons. First, an attorney's statement of his beliefs impinges on the jury's function of determining the guilt or liability of the defendant. Second, and more important, an attorney's statement of his beliefs injects into the case irrelevant or inadmissible matter or facts not legally produced into evidence. By giving his opinion, an attorney may increase the apparent probative force of his evidence by virtue of his personal influence, his presumably superior knowledge of the facts and background of the case, and the influence of his official position. If, for example, an attorney states in his summation that he believes a witness has lied, his statement suggests that he has private information supporting his beliefs.
. . . The courts require adherence to the proper side of the line whenever the issue is presented, and such issues usually involve transgressions by prosecuting attorneys. That is as it should be, for chances of prejudice are greater when prosecutors transgress. The prosecutor is not just a retained attorney; he is a public official occupying an exalted station. Should he be allowed to "testify" in closing argument, jurors hear the "expert testimony" of a trusted officer of the court on, perhaps, a crucial issue. On the other side may be appointed counsel, laboring valiantly to present all defenses available to the accused, who nevertheless may be unable to respond to the implied challenge by asserting his personal belief in his assigned client's innocence. The answer is, of course, that the personal conclusions of neither is of any moment; the conclusions to be drawn, by impartial jurors, from the evidence is at issue. (citations omitted.)

 After examining the record this Court concludes that the Appellate Division was clearly erroneous in determining that the Petitioner's objections were unpreserved for review and that the prosecutor's remarks were "fair response to the defendant's summation" and "fair comment on the evidence of the defendant's guilt". The transcript of the prosecutor's summation is replete with objections from Mr. Lee's counsel to the highly prejudicial and completely irrelevant comments of the Assistant District Attorney. While many of the objections were sustained, perhaps the most damaging statement was allowed to stand, the objection was overruled and a mistrial motion denied. The objections were as follows:

MS. MURPHY [Prosecutor]: He meets an attractive young woman and he arranges for her to come to his house.
MS. LONG [Defense Counsel]: Objection, your Honor.
THE COURT: Sustained. *fn2" ...

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