The opinion of the court was delivered by: PARKER
Petitioner Robert Taylor, appearing pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that he was convicted of assault in the first degree in violation of the Due Process Clause of the Fifth and Fourteenth Amendments and the Grand Jury Clause of the Fifth Amendment, and that he was denied the effective assistance of trial and appellate counsel in violation of the Sixth Amendment. Taylor is currently incarcerated at the Eastern Correctional Facility in Napanoch, New York, pursuant to a judgment of the County Court of Dutchess County, dated June 13, 1988, convicting him of manslaughter in the first degree, assault in the first degree and criminal possession of a weapon. He was sentenced to a term of 11 to 20 years imprisonment for manslaughter, a term of 4 to 8 years imprisonment for assault to run consecutively, and a term of 2 to 4 years imprisonment for weapon possession to run concurrently with the other sentences.
Taylor appealed the judgment of conviction on the grounds that (1) the evidence at trial was insufficient to establish manslaughter in the first degree, (2) assault in the first degree is not a lesser included offense of the offense with which he was charged, that is, attempted murder in the second degree, and (3) he was denied a fair trial as a result of improper rulings and questions by the court and prosecutorial misconduct during summation. The Appellate Division affirmed the judgment on November 18, 1991, and the New York Court of Appeals denied his application for leave to appeal on April 1, 1992. See People v. Taylor, 177 A.D.2d 675, 577 N.Y.S.2d 73, 74-74 (2d Dep't. 1991), lv. denied, 584 N.Y.S.2d 462 (1992).
Taylor subsequently filed with this court a petition for a writ of habeas corpus, on the grounds that assault in the first degree is not a lesser included offense of attempted murder in the second degree, the evidence at trial failed to establish his guilt of first degree manslaughter beyond a reasonable doubt, and he was denied a fair trial as a result of improper rulings and questions by the court and prosecutorial misconduct during summation. The petition was reviewed pursuant to Rule 4 of the Rules Governing Section 2254 Cases and, in an order dated June 9, 1992, dismissed without prejudice for failure to raise a federal constitutional claim. See Taylor v. Mann, No. 92 Civ. 3964 (GLG), slip op. at 2 (S.D.N.Y. June 9, 1992).
Thereafter, Taylor moved the Appellate Division for a writ of error coram nobis to set aside the judgment of conviction, claiming that he was denied the effective assistance of appellate counsel on the direct appeal of his conviction, because appellate counsel failed to argue the issues on appeal under the federal constitution and failed to raise the allegedly meritorious claim that the trial court improperly equated "to a moral certainty" with "beyond a reasonable doubt" in its instructions to the jury. Based on the papers filed in support and in opposition to the motion, the state coram nobis court denied the motion without opinion in an order, dated November 20, 1992, and denied his application for leave to appeal on December 18, 1992.
Taylor again filed with this court a petition for a writ of habeas corpus, claiming that: (1) the evidence at his trial was insufficient to sustain his manslaughter conviction; (2) the trial court unconstitutionally limited his cross-examination of a prosecution witness; (3) the prosecutor's conduct during summation deprived him of a fair trial; (4) the state trial court's questioning of witnesses during the trial deprived him of a fair trial; and (5) he was deprived of his right to effective assistance of counsel on his direct appeal. The petition was denied on the grounds that the claims were either procedurally barred or lacked merit. See Taylor v. Mann, No. 93 Civ. 2576 (GLG), slip op. at 23 (S.D.N.Y. Mar. 2, 1994), appeal dismissed, No. 94-2185 (2d Cir. Aug. 24, 1994).
Taylor then filed the instant petition raising two grounds for issuance of the habeas writ. First, he claims that his conviction for assault in the first degree was obtained in violation of the Due Process Clause of the Fifth and Fourteenth Amendments, because assault in the first degree is not a lesser included offense of attempted murder in the second degree. Second, he claims that he was convicted of assault in violation of the Fifth Amendment's Grand Jury Clause because the grand jury indictment did not include that offense.
1. Exhaustion of State Remedies and Procedural Default
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 ...