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NICHOLS v. KELLY

May 1, 1996

DONALD L. NICHOLS, Petitioner,
v.
WALTER KELLY, Superintendent Attica Correctional Facility, Defendant.



The opinion of the court was delivered by: LARIMER

 Petitioner, Donald L. Nichols, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Nichols is a prisoner at the Attica Correctional Facility ("Attica") where he is currently incarcerated for a 1988 murder and burglary conviction obtained in the Wayne County (New York) Court. For the reasons set forth below, his petition is dismissed.

 BACKGROUND

 This case arises out of the March 1988 shooting death of Nichols' estranged wife, Exzelda Irene Nichols. At that time, Nichols and Mrs. Nichols had been married for nearly 40 years and had four adult children. The couple had been experiencing marital difficulties and, in early 1988, they separated. At that time, Mrs. Nichols went to live with her daughter in Palmyra.

 The prosecution's version of the facts is as follows: On the evening of March 14, 1988, Nichols went to his daughter's Palmyra home with a recently purchased shotgun. Mrs. Nichols was alone at the house. Nichols cut the telephone wires and confronted his wife. A struggle ensued, during which Mrs. Nichols was shot and killed. Mrs. Nichols' partly naked body was discovered outside the house when her daughter arrived home later that evening.

 Nichols left the Palmyra home immediately after the shooting and returned to his own home, which he set on fire.

 Nichols then drove to a K-Mart store and attempted to purchase another gun, purportedly to kill himself. Because of the visible blood on his clothing, the K-Mart employee refused the sale.

 Nichols then drove to Canada, where he remained at large for several days. Eventually he telephoned one of his children. A number of telephone conversations took place during which his children urged him to return. These telephone conversations were taped at the request of the Wayne County Police and with the permission of Nichols' children. Nichols was informed during the latter telephone conversations that they were being taped and also that the first telephone conversation had been taped.

 Nichols eventually agreed to return. Nichols' children, along with Wayne County police authorities, met him in Canada and escorted him to the border. After crossing into the United States Nichols was arrested.

 On November 1, 1988, following a jury trial, Nichols was convicted of one count of Second Degree Murder (Penal Law § 125.25(1)); two counts of Second Degree Murder (Penal Law § 125.25(3) -- "felony murder"); one count of First Degree Burglary (Penal Law § 140.30); and one count of Attempted First Degree Kidnapping (Penal Law § 135.25(3)), all arising out of the shooting death of Irene Nichols. Nichols was sentenced to 20 years to life on the three murder convictions, 5 to 15 years on the burglary conviction, and 6 to 18 years on the kidnapping conviction, all to run concurrently.

 Nichols appealed his conviction to the New York Supreme Court Appellate Division, Fourth Department. The bases for his appeal were as follows: improper felony murder conviction based upon double jeopardy/multiplicity of indictment; failure to prove the crime of attempted kidnapping; unduly harsh/excessive sentence; and failure to suppress inadmissible evidence.

 By Order dated November 16, 1990, the conviction was modified in part. The Appellate Division found that the crime of "attempted kidnapping in the 1st Degree" does not exist because:

 
Kidnapping in the first degree under Penal Law § 135.25(3) is a strict liability crime with respect to the death caused, because it does not require an intent to bring about the death of the victim. *** Consequently, there can be no attempt to commit that crime.

 Nichols sought leave to appeal to the New York Court of Appeals, which request was denied on May 20, 1991. Petition Ex. 11.

 On or about January 7, 1993, Nichols filed a motion to vacate judgment, pursuant to New York's Criminal Procedure Law ("CPL") § 440.10. The grounds asserted were as follows: prejudicial pretrial publicity; improper juror selection; ineffective trial counsel; and failure to exclude inadmissible evidence. Following briefing and a hearing in June 1993, this motion was denied pursuant to CPL § 440.10(2) and (3). Petition Ex. 10. Nichols appears to have sought leave to appeal this denial -- Petition Ex. 12 -- and claims that the request was denied.

 Finally, on or about October 4, 1993, Nichols filed an application for a writ of error coram nobis, on the grounds of ineffective appellate counsel. This writ was filed in the Appellate Division, Fourth Department. The writ was denied by Order dated December 10, 1993. Petition Ex. 12.

 NICHOLS' CLAIMS

 In this proceeding before me, Nichols asserts the following grounds for a writ of habeas corpus: (1) double jeopardy; (2) multiplicious indictment; (3) improper jury selection; (4) failure to suppress inadmissible evidence; (5) prejudicial pretrial publicity; (6) biased judge; (7) ineffective trial counsel; and (8) ineffective appellate counsel.

 Generally, a state prisoner must exhaust available state court remedies before seeking federal habeas review. See 28 U.S.C. § 2254; Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). This requirement is based upon principles of federalism and comity, and gives state courts an initial opportunity to hear and correct alleged violations of its prisoners' federal rights. Solomon v. Senkowski, 778 F. Supp. 197, 197-98 (S.D.N.Y. 1991), citing, Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971).

 Distinct from but related to a failure to exhaust state remedies is procedural default. This situation may arise when a question of federal law is decided by a state court on an adequate and independent state law ground. See Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). When a petitioner has procedurally defaulted on a claim, federal habeas review is barred unless the petitioner can show cause for the default and resulting prejudice. Murray v. Carrier, 477 U.S. 478, ...


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