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NOVACK v. GARVIN

April 18, 1998

Valery Novack, Petitioner,
v.
Henry Garvin, Superintendent, Respondent.



The opinion of the court was delivered by: SIFTON

MEMORANDUM AND ORDER

 SIFTON, Chief Judge

 Valery Novack brings this habeas corpus petition seeking to vacate his state conviction. Respondent moves to dismiss the petition on the ground that it is procedurally barred. For the reasons set forth below, the petition for a writ of habeas corpus is dismissed because of petitioner's failure to exhaust his state court remedies.

 BACKGROUND

 In 1991, Valery Novack was accused of having sodomized and sexually abused a mentally incompetent, nineteen-year-old girl. During a jury trial in the Supreme Court of New York in Kings County, a vaginal slide and swatches of the girl's clothing which tested positive for the presence of sperm were admitted into evidence at trial. On May 15, 1992, Novack was convicted on one count of Sodomy in the Third Degree, in violation of section 130.40[1] of New York Penal Law, two counts of Sexual Abuse in the Second Degree, in violation of New York Penal Law § 130.60 [1], and one count of Endangering the Welfare of an Incompetent Person, in violation of New York Penal Law § 260.25. Novack was sentenced to a term of incarceration of one and one-third to four years on the sodomy count and concurrent terms of one year on each of the sexual abuse counts and on the count of endangering an incompetent. Novack has been incarcerated since May 5, 1995.

 Novack appealed his conviction to the Second Department of the Appellate Division of the Supreme Court of the State of New York. On appeal, petitioner raised five claims: (1) that his guilt was not proven by legally sufficient evidence; (2) that the verdict was against the weight of the evidence; (3) that Novack was erroneously prevented from cross-examining the victim; (4) that Novack was denied the effective assistance of trial counsel; and (5) that the sentence was harsh and excessive. On February 21, 1995, the appellate division affirmed Novack's conviction, denying the five claims on the merits. See People v. Novak, 212 A.D.2d 740, 622 N.Y.S.2d 783, 784 (App. Div. 1995). On April 17, 1995, the New York Court of Appeals denied Novack leave to appeal the appellate division's decision.

 On July 25, 1995, petitioner moved pro se in the New York State Supreme Court for an order pursuant to N.Y.C.P.L. § 440.10 vacating his conviction. In that motion, petitioner claimed: (1) that a second indictment violated his double jeopardy rights; (2) that his right to a speedy trial had been denied; (3) that he had been denied the right to testify before the grand jury; and (4) that he had been denied effective assistance of counsel at trial. The Supreme Court of New York denied the motion on December 7, 1995, both procedurally and on the merits. Leave to appeal the denial of the § 440.10 motion was denied by the New York Court of Appeals on April 22, 1996.

 Novack then petitioned the appellate division for a writ of error coram nobis on the ground that he was denied effective assistance of appellate counsel. Petitioner contended that his appellate counsel failed to challenge the conviction on direct appeal with forensic evidence obtained after trial, and which, contrary to the state's laboratory results at trial, tested negative for semen. By order dated January 8, 1996, the appellate division denied the writ, holding that petitioner failed to establish ineffective assistance of appellate counsel. See People v. Novak, 223 A.D.2d 564, 636 N.Y.S.2d 1015 (App. Div. 1996).

 On July 31, 1996, petitioner, proceeding pro se, filed a habeas petition in this Court. On December 3, 1996, his motion to withdraw the petition without prejudice was granted.

 Represented by new counsel, petitioner now brings the present habeas corpus petition. Novack claims that he was denied due process because he was deprived of an opportunity to have an independent laboratory examine forensic evidence used by the prosecution at his trial and because after trial, but before petitioner had exhausted his appeal, other evidence used by the prosecution at trial was destroyed. Petitioner also claims that he was denied effective assistance of counsel because trial counsel improperly failed to request an adverse inference charge at trial as a result of the lack of sufficient testable evidence.

 On May 29, 1997, petitioner filed a second § 440.10 motion seeking to vacate the judgment on the same grounds as those raised in the instant petition. That motion is still pending in state court.

 Respondent now seeks to have the petition dismissed on the ground that it is procedurally barred. Although petitioner concedes that this petition is premature, he requests that the petition be held in abeyance pending decision in state court, or that it be dismissed without prejudice.

 DISCUSSION

 A federal court has jurisdiction to hear a case under 28 U.S.C. § 2254 when a person in custody pursuant to a state court conviction applies for a writ of habeas corpus on the ground that he is in custody in violation of ...


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