The opinion of the court was delivered by: HECKMAN
On October 12, 1990, petitioner was charged by the Erie County Grand Jury in a five-count indictment with murder in the second degree under N.Y. Penal Law § 125.25(2),
reckless endangerment in the first degree under N.Y. Penal Law § 120.25,
criminal possession of a weapon in the second degree under N.Y. Penal Law § 265.03,
criminal possession of a weapon in the third degree under N.Y. Penal Law § 265.03(4),
and unlawful possession of marihuana under N.Y. Penal Law § 221.05.
These charges arose out of the fatal shooting of Xavier Parks on August 26, 1990 in Buffalo, New York.
On June 24, 1991, following a four-day jury trial before New York State Supreme Court Justice Julian F. Kubiniec, petitioner was found not guilty of second degree murder, but guilty of the lesser included offense of second degree manslaughter (T. at 488).
Petitioner was also found guilty of criminal possession of a weapon in the second and third degrees, and unlawful possession of marihuana. He was acquitted of the reckless endangerment charge (id.).
On August 2, 1991, Justice Kubiniec sentenced petitioner to consecutive indeterminate prison terms of 5 to 15 years each on the convictions for second degree manslaughter and second degree criminal possession of a weapon, and a concurrent term of 2 to 6 years on the conviction for third degree criminal possession of a weapon. Judge Kubiniec also fined petitioner $ 100 for the conviction on the charge of marihuana possession (S. at 5-6).
Petitioner appealed his conviction to the Appellate Division, Fourth Department. He made the following arguments on appeal:
1. In the charge to the jury, the trial judge improperly emphasized petitioner's failure to testify;
3. The trial judge improperly imposed consecutive sentences for the crimes of manslaughter in the second degree and criminal possession of a weapon in the second degree.
(see Brief for Appellant, Item 6, Ex. B).
On October 7, 1992, the Fourth Department unanimously affirmed petitioner's conviction. People v. McColly, 186 A.D.2d 1009, 590 N.Y.S.2d 820 (4th Dept. 1992). The court found that petitioner did not preserve for review his contention that the trial judge committed error in elaborating on petitioner's failure to testify. The court also commented that if it were to reach the issue it would conclude that the charge was proper. The court likewise found that petitioner failed to preserve for review his contention that the trial judge erred in not charging the jury on justification. Finally, the court found that the trial judge properly imposed consecutive sentences for the crimes of manslaughter in the second degree and criminal possession of a weapon in the second degree. Id., 186 A.D.2d at 1009, 590 N.Y.S.2d at 820-21. On December 23, 1992, the New York State Court of Appeals denied leave to appeal. People v. McColly, 81 N.Y.2d 764, 594 N.Y.S.2d 727, 610 N.E.2d 400 (1992).
Petitioner relies on these same grounds in his petition for habeas corpus relief. Respondent moves to dismiss the petition. According to respondent, none of these claims were presented to the state court as federal constitutional issues, and the claims therefore have not been exhausted. Respondent also argues that grounds (1) and (2) are barred from habeas corpus review ...