After filing the petition, Taylor requested permission to amend his petition to add arguments for ineffective assistance of trial and appellate counsel. Based on Taylor's representation in his application that he had exhausted the remedies available in state court in connection with these arguments, this Court granted his application in an order dated November 6, 1995. In his supplemental memorandum of law, Taylor argues that trial counsel's request that the jury be charged on assault in the first degree, and appellate counsel's failure to raise an ineffective assistance of trial counsel claim based on trial counsel's request, denied him effective assistance of trial and appellate counsel in violation of the Sixth Amendment.
1. Exhaustion of State Remedies and Procedural Default
a. Legal Standard
Under 28 U.S.C. § 2254(b), this Court may not review the merits of Taylor's habeas claims unless he has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b) (1988). "To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims 'to the highest court of the pertinent state.'" Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (quoting Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)), cert. denied, 115 S. Ct. 1436 (1995). This Court reviews the procedural history of each claim individually to determine whether the exhaustion requirement has been met. See Thomas v. Scully, 854 F. Supp. 944, 950 (E.D.N.Y. 1994).
A second requirement, apart from exhaustion, is the doctrine of procedural default. If the last state court considering a claim "clearly and expressly" declines to address the merits because the petitioner has failed to meet a state procedural requirement, a federal court is barred from considering the claim on a petition for a writ of habeas corpus. See Coleman v. Thompson, 501 U.S. 722, 729-30, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). A procedural default also arises if a petitioner has not exhausted his state remedies, but the state court to which he would be required to present his claim, would find the claim procedurally barred. See Coleman, 501 U.S. at 735 n.1. In such a case, the claim is deemed exhausted, but may not be reviewed by a federal court because of the procedural default.
A procedural bar may be overcome, permitting a federal court to review the merits, "only upon a showing of cause for the default and prejudice to the petitioner," Bossett, 41 F.3d at 829 (citing Wainwright v. Sykes, 433 U.S. 72, 87, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977)), or upon a showing "that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262-63, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989) (quoting Murray v. Carrier, 477 U.S. 478, 495, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)).
Cause may be demonstrated by, for example, "showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that 'some interference by state officials' made compliance impracticable, . . . [or that] the procedural default is the result of ineffective assistance of counsel." Murray, 477 U.S. at 488 (citations omitted). Prejudice must be demonstrated by showing that the errors at trial "worked to [the petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). A fundamental miscarriage of justice may be demonstrated by showing, through "new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 865-67, 130 L. Ed. 2d 808 (1995).
b. Fifth and Fourteenth Amendment Due Process Claim
Taylor first claims that because assault in the first degree is not a lesser included offense of the offense with which he was charged, namely, attempted murder in the second degree, his assault conviction was obtained without due process of law in violation of the Fifth and Fourteenth Amendments. Specifically, he argues that because first degree assault was not charged in the indictment, he did not have notice of the charges against him.
"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (citations omitted). "In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Daye, 696 F.2d at 191. However, the constitutional nature of a federal claim may be fairly presented to the state courts without citing "chapter and verse of the Constitution," by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194.
On appeal, Taylor claimed that his conviction of first degree assault violated his due process rights because first degree assault is not a lesser included offense of the offense with which he was charged and therefore he lacked notice of the charges against him. Furthermore, Taylor cited and discussed in his appellate brief a New York case involving the right to a "fair trial," People v. Carroll, 37 A.D.2d 1015, 325 N.Y.S.2d 714, 717 (3d Dep't 1971). Although Taylor did not explicitly refer to the Constitution, this Court finds that he asserted his due process claim in terms so particular as to call to mind the right to due process guaranteed by the Constitution. See Daye, 696 F.2d at 193 ("If the defendant claimed that he was accused of one crime but convicted of an entirely different crime and hence was denied a fair trial, no reasonable jurist would doubt that the defendant's claim implicated his constitutional right to due process of law.").
Moreover, after the Appellate Division affirmed his conviction, Taylor specifically brought his federal due process claim to the attention of the New York Court of Appeals. In a letter application for leave to appeal, dated January 10, 1992, Taylor requested review of his due process claim, arguing that his conviction of first degree assault involved violations of "state and federal rights to due process of law," and referring the Court of Appeals to his appellate brief.
Having presented his claim to the highest state court on appeal, Taylor need not have also raised the claim collaterally in order to exhaust his available state remedies under § 2254. See Daye, 696 F.2d at 191 n.3. Thus, because Taylor "fairly presented" his federal due process claim to the state courts, he has met the exhaustion requirement with respect to this claim.
However, even though the federal claim has been exhausted, this Court may "not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman, 501 U.S. at 729. "This rule applies whether the state law ground is substantive or procedural." Coleman, 501 U.S. at 729. A state procedural bar precluding federal habeas review may arise through the failure to preserve an issue for appeal through contemporaneous objection. See, e.g., Tsirizotakis v. LeFevre, 736 F.2d 57, 61-62 (2d Cir.), cert. denied, 469 U.S. 869, 105 S. Ct. 216, 83 L. Ed. 2d 146 (1984); Edwards v. Jones, 720 F.2d 751, 754 (2d Cir. 1983).
Here, the Appellate Division held that Taylor's due process claim was barred from review on the merits because Taylor had waived it by "expressly requesting that assault in the first degree be submitted as a lesser included offense of attempted murder in the second degree." People v. Taylor, 577 N.Y.S.2d at 74 (citing N.Y.Crim.Proc.Law § 300.50(1); People v. Ford, 62 N.Y.2d 275, 476 N.Y.S.2d 783, 465 N.E.2d 322 (1984)). The Appellate Division was the last state court to render a reasoned judgment on this due process claim. The subsequent order of the Court of Appeals denying leave to appeal stated only that, as to Taylor's claims, "there is no question of law presented which ought to be reviewed by the Court of Appeals." People v. Taylor, 79 N.Y.2d 1008, 584 N.Y.S.2d 462, 594 N.E.2d 956 (1992). This subsequent order is presumed to rest on the same procedural bar. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 115 L. Ed. 2d 706, 111 S. Ct. 2590 (1991). Therefore, although Taylor's due process claim is exhausted, it is also procedurally defaulted.
Taylor has not demonstrated cause for the default. He alleges that the ineffective assistance of appellate counsel caused the procedural default. He argues that appellate counsel's performance fell below the constitutional standard because she failed to raise on appeal the issue of trial counsel's ineffective assistance in requesting the jury instruction on first degree assault. Because the Appellate Division was not presented with the claim for ineffective assistance of trial counsel, according to Taylor, it was able to rest its dismissal of the appeal on the independent and adequate state procedural ground that trial counsel's failure to object barred review of the merits.
While ineffective assistance of counsel may constitute a cause for procedural default, the exhaustion doctrine "requires that a claim of ineffective assistance be presented to state courts as an independent claim before it may be used to establish cause for a procedural default" in the context of a petition for a federal writ of habeas corpus. Murray, 477 U.S. at 489. Taylor raises this particular ineffective assistance of appellate counsel claim -- based on appellate counsel's failure to raise the issue of ineffective assistance of trial counsel -- for the first time in the instant petition.
Because he has not justified his failure to comport with New York State's procedural rules as to this claim, it cannot be held as an adequate cause for his procedural default in state court. See Murray, 477 U.S. at 489.
Even if Taylor were found to have shown cause for the default, he has not shown actual prejudice resulting from the alleged error. He argues that if he had had notice of the charge of first degree assault, he would have presented evidence that the extent of the victim's injuries did not rise to the level of seriousness required to convict him of first degree assault.
Taylor has not, however, submitted any such evidence to this Court, and in view of the expert testimony that the victim suffered extensive damage to his intestinal tract, a partially shattered hip and a damaged sciatic nerve, Taylor's claim lacks credibility.
Moreover, it is not enough that a jury instruction be "undesirable, erroneous, or even universally condemned," rather the instruction itself must so infect "the entire trial that the resulting conviction violates due process." Frady, 456 U.S. at 169. Although first degree assault is not a lesser included offense of attempted murder in the second degree, see People v. Lind, 173 A.D.2d 179, 569 N.Y.S.2d 416, 419 (1991), aff'd in part, rev'd in part on other grounds, 79 N.Y.2d 722, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied, 506 U.S. 1011 (1992), it arose out of the criminal transaction identified in the indictment. Thus, the trial court's submission of the first degree assault charge to the jury did not affect a jurisdictional or constitutional infirmity. See Ford, 476 N.Y.S.2d at 787. In addition, the first degree assault charge was clearly warranted by the evidence here, and thus, its submission to the jury did not rise to the level of a federal constitutional error. Cf. Beck v. Alabama, 447 U.S. 625, 635-36, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980) (citing Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 93 S. Ct. 1993 (1973)).
Finally, Taylor has not alleged that he is actually innocent of assault in the first degree. Thus, he has not met a threshold requirement for the finding of a fundamental miscarriage of justice. See Murray, 477 U.S. at 496.
c. Fifth Amendment Grand Jury Claim
Taylor next contends that under the Fifth Amendment, he cannot be convicted of an offense different from that which was included in the indictment returned by a grand jury. Because assault in the first degree was not included in the grand jury indictment, Taylor argues that he is entitled to a writ of habeas corpus setting aside his assault conviction. However, "the Fifth Amendment right to indictment by a grand jury was not incorporated by the Due Process Clause of the Fourteenth Amendment, and accordingly, does not pertain to the states." Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (citing Hurtado v. California, 110 U.S. 516, 28 L. Ed. 232, 4 S. Ct. 111 (1884). Thus, Taylor does not have a claim based on the Fifth Amendment Grand Jury Clause.
Even if Taylor did have a Fifth Amendment claim, he did not present this claim to the Appellate Division on appeal. Nor did he raise this claim in his motion for a writ of error coram nobis. Generally, if a habeas petition contains unexhausted claims, a federal court should dismiss it. See Rose, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198. "However, if the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b)," the court may deem the claim exhausted. Bossett, 41 F.3d at 828 (citations omitted). Here, Taylor no longer has "remedies" available in the state courts on this Fifth Amendment Grand Jury claim. The failure to raise the claim before the Court of Appeals precludes further consideration in the New York courts 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). Nor can Taylor now seek collateral review. See Bossett, 41 F.3d at 829 (citing N.Y.Crim.Proc.Law § 440.10(2)(a) & (McKinney 1994) (barring collateral review if claim raised and addressed on direct appeal or if claim could have been raised on direct review but was not)).
Accordingly, because it would be fruitless to require Taylor to pursue this claim in state court, the claim would be deemed exhausted. The same procedural default, however, would prevent this Court from addressing the merits of the claim. Taylor has shown neither cause for the default nor prejudice to him in connection with this claim. Although he alleges ineffective assistance of appellate counsel, he does not base his allegations on appellate counsel's failure to raise on appeal this Fifth Amendment claim.
d. Ineffective Assistance of Counsel
Finally, Taylor argues that trial counsel's request for a jury instruction on first degree assault, which was not a lesser included offense of the offense with which he was charged, constituted ineffective assistance of trial counsel. He also argues that appellate counsel's failure to raise on appeal the issue of ineffective assistance of trial counsel constituted ineffective assistance of appellate counsel.
Taylor's ineffective assistance of trial counsel claim was raised for the first time in the instant petition. No state court has reviewed it. It was not raised on direct appeal, and there is no indication in the record that Taylor has ever sought relief pursuant to a motion under New York Criminal Procedure Law § 440.10.
Although Taylor did raise an ineffective assistance of appellate counsel claim in his coram nobis motion, it was based on grounds different from those asserted here.
Respondent argues that because Taylor has not exhausted his available state court remedies in connection with these claims the petition must be dismissed without prejudice in its entirety as a mixed petition, see Rose, 455 U.S. at 522. In response, Taylor asserts that with these arguments he "merely seeks to bolster his long standing exhausted claim of ineffective assistance of appellate counsel," rather than adding additional claims, and thus, this Court need not dismiss the petition as mixed, see Walker v. Hood, 679 F. Supp. 372, 375 & n.3 (S.D.N.Y. 1988) (accepting petitioner's argument that, in presenting new arguments, he merely intended to bolster his three original claims but did not intend to raise additional unexhausted claims).
With this argument, Taylor successfully steers clear of the exhaustion requirement, but runs into Rule 9(b) of the Rules Governing Section 2254 Cases. Rule 9(b) provides,
A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.