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July 2, 1998

KAREEM EDMONDS, Petitioner, against SUPERINTENDENT McGINNIS, Southport Correctional Facility, ROBERT MORGENTHAU, Respondents.

The opinion of the court was delivered by: CHIN



 Petitioner Kareem Edmonds brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his January 29, 1992 conviction in the Supreme Court of the State of New Court, New York County, for murder in the second degree (New York Penal Law § 125.25[1]). For the reasons set forth below, the petition is dismissed.


 In the mid-1980's, Troy Sutton began selling crack out of a partially abandoned tenement building on West 140th Street in Manhattan. Petitioner, along with Jamal Eaddy, Ernest Rock, Frederick Chapple, and Denshire Moon, worked for Sutton selling drugs. Petitioner's duties consisted primarily of acting as a lookout, while the others, who were higher in the chain of command, performed duties such as transporting and protecting the drugs, and maintaining discipline.

 In the fall of 1989, sixteen-year-old Alton Martin, who was not a member of the Sutton organization, sold a gun to Jamal Eaddy. A few weeks later, Eaddy discovered that the gun was defective and relayed this information to petitioner and other Sutton organization members. Denshire Moon, who was good friends with Martin, offered to pay Eaddy the money he had spent on the defective gun. Petitioner, however, vowed to kill Martin, responding, "Don't worry about it. I'll kill him." (Tr. 533-34).

 On December 8, 1989, petitioner took a gun from the Sutton organization's gun collection, on the fourth floor of 212 West 140th Street. Accompanied by Eaddy, petitioner ran to Seventh Avenue, where the two had seen Martin just minutes earlier. At roughly the same time, Evelyn Gethers had gone to use a public telephone on a well-lit corner of West 140th Street and Seventh Avenue. She saw petitioner, still accompanied by Eaddy, approach Seventh Avenue carrying a long-barreled gun. She then saw the two confront Martin, on Seventh Avenue between 139th and 140th Streets. Evelyn Gethers watched as petitioner had a brief conversation with Martin. She then witnessed petitioner fire a single gunshot into Martin's head, then turn and run around the corner of 140th Street and Eighth Avenue. Martin died instantly.

 Petitioner and Eaddy immediately returned to the apartment on West 140th Street, where they discussed the shooting with Rock. Eaddy called the petitioner "a little faggot" for "being hesitant[]" (Tr. 240), and told another member of the organization to replace the gun "in the stash." (Tr. 276). The next night, December 9, 1989, Sutton bragged to other members of the organization that petitioner had "gotten points" for shooting Martin (Tr. 323), and petitioner indeed confirmed that he had "smoked [Martin] in the head for fronting us." (Tr. 397). *fn1"

 Roughly four and one-half months after the shooting, Gethers saw petitioner near 140th Street and Seventh Avenue. She contacted the police. On December 7, 1990, she identified petitioner from a photo array as someone she had seen "during the summer," who had given her "flashbacks to the night of the homicide . . . ." (Wade Tr. 17-35). On April 22, 1991, the police arrested petitioner, and called Gethers in to view a line-up. After studying the six men in the line-up for about ten seconds, Gethers identified petitioner as "the person with the gun" who pulled the trigger. (Wade Tr. 45-46).

 Petitioner moved to suppress the identification, arguing that age and height disparities between himself and the stand-ins rendered the line-up unduly suggestive. The Supreme Court of the State of New York, New York County, conducted a Wade hearing, and on November 4, 1991, the court held that the line-up was "fairly conducted with no impermissible suggestiveness whatsoever . . . ." (Tr. 70). While noting that there were age and height disparities between petitioner and the other stand-ins, the court found that the disparities were not significant. The participants were found to be "remarkably similar" in general appearance: all had similar skin tones and hairstyles; even the ten-year disparity between petitioner and the next oldest stand-in was "not viewed at all in looking at the photographs . . . ." (Tr. 70-71). Accordingly, the court denied petitioner's motion to suppress the identification. (Tr. 70-71).

 Petitioner was found guilty by a jury on November 21, 1991, of murder in the second degree (New York Penal Law § 125.25[1]). On January 29, 1992, he was sentenced to an indeterminate term of imprisonment from twenty-five years to life. The Appellate Division, First Department, affirmed, People v. Edmonds, 223 A.D.2d 455, 637 N.Y.S.2d 71 (1st Dep't 1996), and the New York State Court of Appeals denied petitioner's request for leave to appeal, People v. Edmonds, 88 N.Y.2d 984, 649 N.Y.S.2d 391, 672 N.E.2d 617 (Ct. App. 1996). Petitioner also sought a writ of error coram nobis, which the Supreme Court, Appellate Division denied, 671 N.Y.S.2d 575 (1st Dep't 1998). He now petitions this court for a writ of habeas corpus.

 Petitioner makes five separate claims for relief in his petition: (1) the trial court improperly discharged a sworn juror over defense counsel's objection; (2) the trial court improperly admitted evidence of uncharged crimes, i.e., petitioner's alleged involvement in a drug organization; (3) the trial court improperly admitted certain hearsay statements into evidence; (4) the trial court improperly admitted the line-up photographs; and (5) the prosecutor engaged in misconduct during her summation.


 A. Standards for Federal Habeas Corpus Relief

 To obtain federal habeas corpus relief, a petitioner must demonstrate a federal constitutional violation. Otherwise, habeas corpus relief must be denied. Heck v. Humphrey, 512 U.S. 477, 480, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994). Prior to 1996, a petitioner for habeas corpus relief under 28 U.S.C. § 2254 was required to exhaust all available state court remedies before a federal court could consider the merits of his petition. Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198, (1982). This included a requirement that the petitioner present the federal constitutional legal theories upon which his claim was based to the state court, to give the state court an "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275-77, 30 L. Ed. 2d 438, 92 S. Ct. 509, (1971) (internal quotations omitted); see also Duncan v. Henry, 513 U.S. 364, 365, 130 L. Ed. 2d 865, 115 S. Ct. 887 (1995). *fn2"

 In Rose v. Lundy, the Supreme Court explained that the exhaustion doctrine was "designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." 455 U.S. at 518. Accordingly, the Second Circuit has held that a federal habeas petitioner must have put the state appellate court on notice that a federal constitutional claim is at issue. See Grady v. Lefevre, 846 F.2d 862, 864 (2d Cir. 1988); see also Grey v. Hoke 933 F.2d 117, 119 (2d Cir. 1991) (requiring that a state court be "fairly apprised" that petitioner is raising a federal constitutional claim); Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984).

 Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal courts now have discretion to deny petitions on the merits, even when the petitioner has failed to exhaust his state court remedies. Thus a reviewing court is no longer required to dismiss claims for failure to exhaust. 28 U.S.C. § 2254(b)(2) (as amended by the AEDPA). *fn3"

 In the case at bar, petitioner has failed to exhaust his state court remedies. Although petitioner raised his claims in the highest court in the state, he nonetheless failed to put the state courts on notice of the federal constitutional claims he alleges were violated. Petitioner relied largely on state law, with only brief references to the United States Constitution in each of his point headings. Four of petitioner's five claims for federal habeas corpus relief were supported solely by state law, and the fifth cited only one federal case, and was supported primarily by state law. Consequently, it is doubtful that the state courts considering petitioner's appeals were fairly apprised of the federal rights he alleged were violated, because they too confined their analyses solely to state law principles. Notwithstanding petitioner's failure to fully exhaust his state court remedies, however, I have reviewed each of his claims on the merits, and I find that petitioner is not entitled to federal habeas corpus relief on the merits. I address each of petitioner's claims in turn.

 B. The Discharge Of A Sworn Juror

 Petitioner asserts as his first ground for habeas corpus relief that the trial court improperly discharged a sworn juror over defense counsel's objection, thereby violating petitioner's constitutional right to be tried by a jury of his choice. He argues that the court, upon receiving notice that one of the jurors wished to be excused from her duties, should not have discharged the juror over defense counsel's objection. Instead, petitioner ...

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