(of whom Dr. Wroth was one) to testify. As his defense counsel
told the trial court "[Petitioner] felt it was not necessary. He
felt that he would rather not have me do that." Even on May 2,
five days before trial, petitioner was only considering counsel's
recommendation that Dr. Wroth be contacted: "On May 2nd
[petitioner] indicated that perhaps we should call . . . Wroth."
It was not until the morning of jury selection immediately before
trial, after petitioner learned that Dr. Wroth was then
unavailable, that he "manifested a strong desire to have Dr.
Apart from the one call to Dr. Wroth's office on May 2, 1984,
from which it was learned via the message on Wroth's answering
machine that Wroth would not be in the office for two weeks,
nothing suggests that petitioner tried to secure Wroth's
testimony. Despite the trail court's offer of a "couple of days'
continuance" during the course of the trial and despite the fact
that the trial lasted until May 15, 1984 (nearly two weeks after
counsel's May 2nd call to Dr. Wroth's office), it appears that no
further effort was made to contact Wroth or compel his testimony.
Petitioner's failure to take advantage of the court's offer or to
make further efforts to contact Wroth demonstrate a lack of
diligence in obtaining Wroth's attendance.
Petitioner further fails to satisfy any of the remaining
criteria necessary to establish a due process violation — that
Wroth would have tendered substantial favorable evidence, that he
would have been willing and available to testify even after he
returned to work, and that the denial of the continuance
prejudiced petitioner. Because Wroth did not speak with defense
counsel, the content of his testimony is unknown as is his
availability to testify. Nor was petitioner materially prejudiced
by the denial of his request for a two-week continuance. Had
petitioner taken advantage of the court's offer of a short
continuance, the trial would have extended beyond Wroth's
expected date of return to work. Assuming Wroth was then willing
and available to testify favorably, petitioner could have called
him as a witness. In any event, petitioner had already lined up
another psychiatrist, a Dr. Feldman, to testify regarding his
affirmative defense of extreme emotional disturbance and could
have called to testify two other psychiatrists who had treated
him prior to the charged offenses. In short, the court's refusal
to grant petitioner a two-week continuance on the day the trial
was set to begin was not arbitrary and did not impair
petitioner's ability to present his defense.
II. PETITIONER'S CLAIM THAT HE WAS TWICE PLACED IN JEOPARDY AND
DENIED A FAIR TRIAL WHEN THE JURY WAS SENT BACK TO CORRECT A
DEFECTIVE VERDICT IS PROCEDURALLY BARRED FROM FEDERAL HABEAS
A state prisoner seeking federal habeas review of his
conviction must first exhaust available state remedies. Daye v.
Attorney General of New York,
thereafter, the jury conformed its verdict in accordance with the
court's instructions, found petitioner guilty on all counts and
rejected the affirmative defense of extreme emotional
Petitioner claimed in the Appellate Division, as he does in the
instant proceeding, that the trial court's action violated his
rights under the Double Jeopardy Clause and violated his rights
to due process and a fair trial. This claim is not properly
presented for review, however, because petitioner failed to
exhaust his state remedies by presenting his claim to the highest
state court empowered to hear it, the New York Court of Appeals.
Although petitioner raised the resubmission claim before the
Appellate Division, he failed to raise it in his application for
leave to appeal to the New York Court of Appeals, where he raised
only the denial of continuance claim.
Nor did petitioner's passing reference to his Appellate
Division brief in his leave letter to the New York Court of
Appeals serve to exhaust claims raised in the Appellate Division
but not addressed in petitioner's letter to the Court of Appeals.
The one-sentence paragraph near the end of petitioner's leave to
appeal letter did not fairly present any additional claims to the
New York Court of Appeals. Rather, it appears merely to direct
the Court of Appeals to petitioner's Appellate Division brief for
further facts and arguments concerning the denial of continuance
claim. Because petitioner's reference to his Appellate Division
brief was so vague as to leave the Court of Appeals guessing as
to which issues petitioner was seeking to have reviewed, the
resubmission claim was not fairly presented. See Matias v.
Hoke, 703 F. Supp. 324, 325 (S.D.N.Y. 1989) (where claims are not
addressed in leave letter, sending copy of Appellate Division
brief to Court of Appeals does not "fairly present" claims to
However, rather than dismiss this claim on exhaustion grounds
and send petitioner back to state court where further attempts to
obtain review of his claim on the merits would be futile, this
Court deems the claim exhausted but finds it procedurally barred.
See Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 103
L.Ed.2d 308 (1989); Castille v. Peoples, 489 U.S. 346, 351, 109
S.Ct. 1056, 103 L.Ed.2d 380 (1989); Grey v. Hoke, 933 F.2d 117,
120 (2d Cir. 1991). The same procedural bar present in Grey is
present here. Petitioner may not seek leave in the Court of
Appeals again as he is only permitted one such request. New York
Rules of Court § 500.10[a]; People v. Spence, 82 N.Y.2d 671,
601 N.Y.S.2d 566, 566, 619 N.E.2d 644 (N.Y. 1993); People v.
Hernandez, 680 N.Y.S.2d 74, 74 (1st Dep't 1998). Under these
circumstances, petitioner may not litigate the merits of his
claim in a federal habeas corpus proceeding, absent a showing of
cause for the procedural default and prejudice resulting
therefrom. Grey, 933 F.2d at 121. Here, no such showing has
Appellate counsel's decision not to raise the resubmission
claim in the New York Court of Appeals does not constitute cause
for his procedural default. The existence of cause for a
petitioner's procedural default ordinarily turns on whether
petitioner can show that some objective factor external to the
defense impeded counsel's efforts to comply with a state's
procedural rules. Attorney error short of ineffective assistance
of counsel does not constitute cause and will not excuse a
procedural default. See Coleman v. Thompson, 501 U.S. 722, 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991); Murray v. Carrier,
477 U.S. 478, 486-88, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Moreover, the
decision of appellate counsel to raise a claim on appeal that may
reasonably be considered stronger than those asserted by the
petitioner in a habeas petition is usually a well-reasoned
tactical decision, does not constitute ineffective assistance of
counsel and does not constitute cause sufficient to excuse a
procedural default. See generally Jones v.
Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983);
Cantone v. Superintendent, N.Y. Correctional Facility at Green
Haven, 759 F.2d 207, 218-19 (2d Cir. 1985).
In this case, counsel's decision not to raise in the Court of
Appeals a claim concerning the resubmission of the case to the
jury was well justified. In People v. Salemmo, 38 N.Y.2d 357,
379 N.Y.S.2d 809, 813, 342 N.E.2d 579 (1976), the New York Court
of Appeals rejected a claim virtually identical to the one raised
here. Thus, it was highly improbable that the Court of Appeals
would have granted leave to appeal on that issue. By focusing on
petitioner's claim concerning the denial of his request for a
continuance and ignoring petitioners's other claim, counsel
increased the likelihood that leave to appeal would be granted.
Moreover, because the Court of Appeals had previously rejected a
claim virtually identical to petitioner's, petitioner cannot
demonstrate any prejudice from counsel's failure to raise the
claim in his letter seeking leave to appeal to the New York Court
of Appeals. Accordingly, there is no basis upon which to excuse
petitioner's procedural default.
For the reasons stated above, the petition for a writ of habeas
corpus is denied. The Clerk of the Court is directed to close the