Report is adopted, the writ is denied and the petition is
The following is a summary of the relevant facts set forth more
fully in the Report, familiarity with which is assumed. On March
8, 1994, a jury in Supreme Court, New York County, convicted
petitioner for assault in the first degree and possession of a
weapon in the second and third degrees. (Report at 4) Petitioner
appealed his convictions to the Appellate Division, First
Department, claiming he was unfairly prejudiced by the
prosecutor's summation at trial. (Id. at 4-5) Petitioner argued
that the prosecutor's comments during summation suggested to the
jury that petitioner was a drug dealer, even though he was
charged only with assault and possession of a weapon. (Id.)
Although petitioner's counsel made several objections to these
comments, which the trial court sustained, he did not request a
mistrial or curative jury instruction as required by N.Y.Crim.
Proc. Law § 470.05(2) to preserve the issue for appeal. (Report
at 4-5) Accordingly, on appeal, the First Department affirmed
petitioner's conviction on procedural grounds, holding that the
challenge to the conviction had not been preserved. (Id. at 5)
In addition, the Court held that if it were to review the merits
of the claim, it "would find that the challenged remarks were
fair comments, as they were arguments readily inferable from the
evidence, and were in direct response to defense counsel's
summation." (Id.) The Court of Appeals denied leave to appeal.
In his current petition, filed May 12, 1998, petitioner again
challenges his convictions on the ground that he was unfairly
prejudiced by the prosecutor's comments during summation. (Id.
at 1) The Magistrate Judge found the claim barred because the
conviction was upheld on an "independent and adequate state
ground," — i.e., the procedural bar. (Id. at 2) Accordingly,
the Magistrate Judge recommended dismissal of the petition.
(Id. at 2)
Petitioner filed objections to the Report on November 13, 1998.
Although most of petitioner's arguments are without merit, he
contends that he should not suffer for counsel's "lack of
diligence and/or effectiveness" for failure to preserve his
claim. (Pet. Obj. at 3*fn1) Moreover, petitioner vaguely asserts
that the First Department's reference to the merits indicates
that the procedural bar alone was not an "independent and
adequate state ground" for dismissal of his claim. (Id.)
A district court reviewing a magistrate judge's report applies
the standards set forth in Fed.R.Civ.P. 72(b) and
28 U.S.C. § 636(b)(1), which permit the court to adopt those parts of the
report to which no specific objection is raised, provided the
findings are not clearly erroneous. See Thomas v. Arn,
474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). With respect to
those parts of the report to which any party objects, the court
must make a de novo determination, but a de novo evidentiary
hearing is not required. See United States v. Raddatz,
447 U.S. 667, 673-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Grassia v.
Scully, 892 F.2d 16, 19 (2d Cir. 1989). In this case, petitioner
objects to the findings and recommendation in the Report.
Accordingly, this court must review the entire report de novo.
Federal habeas review of a state court judgment of conviction
is generally precluded when that judgment "rests on a state law
ground that is independent of the federal question and adequate
the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991). Most relevant here, a federal
court may not consider a claim if the state court "clearly and
expressly stated that its judgment rests on a state procedural
bar." Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103
L.Ed.2d 308 (1989) (quoting Caldwell v. Mississippi,
472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). The only
exceptions to this rule are (1) if petitioner shows cause for the
default and "prejudice attributable thereto," and (2) if he can
demonstrate that failure to consider the federal claim will
result in a "fundamental miscarriage of justice." Harris, 489
U.S. at 262, 109 S.Ct. 1038 (citation omitted).
Here, the Magistrate Judge properly found that the state
court's finding of procedural default is an "independent and
adequate state ground" that precludes review by this court.
Petitioner suggests this finding is incorrect because the First
Department addressed the merits, and "obviously found it
compelling to do so." (Pet. Obj. at 3) However, as the Magistrate
Judge noted, the procedural default bar applies because the state
court explicitly relied on the procedural ground as a separate
basis for its decision. See Harris, 489 U.S. at 264 n. 10, 109
S.Ct. 1038 ("By its very definition, the adequate and independent
state ground doctrine requires the federal court to honor a state
holding that is a sufficient basis for the state court's
judgment, even when the state court also relies on federal law.")
Because a procedural default bar exists, petitioner's claim may
not be reviewed unless he shows either cause and prejudice or a
"fundamental miscarriage of justice." Id. at 262, 109 S.Ct.
1038. Petitioner's only argument in this regard is that his
default resulted from his counsel's failure to preserve the
claim. Petitioner argues that his counsel's error "should in no
way cause petitioner to suffer a procedural bar." (Pet. Obj. at
3) However, attorney error is "cause" only if it constitutes
ineffective assistance of counsel as defined by Strickland v.
Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Further, the exhaustion doctrine "generally requires that
a claim of ineffective assistance be presented to the state
courts as an independent claim before it may be used to establish
cause for a procedural default." Murray v. Carrier,
477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Here,
petitioner did not present an ineffective assistance claim to the
state court. Accordingly, his argument may not be reviewed by
For the reasons stated above, I find that petitioner's claim is
procedurally barred. Accordingly, the Report is adopted, the writ
is denied and the petition is dismissed. Because this petition
presents no issue deserving of appellate review, no certificate
of appealability will issue.
REPORT AND RECOMMENDATION
Petitioner Charles Chisolm seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 from his conviction for assault in
the first degree and criminal possession of a weapon in the
second and third degrees for the shooting of Wilkins Lopez. (Pet.
¶¶ 4, 12(A)(1); Trial Transcript ["Tr."] at 14-17.) Chisolm
contends that he was denied a fair trial because of improper
summation comments by the prosecutor that accused him of being a
drug dealer. (Pet. ¶ 12(A)(5)-(7); Chisolm Br. at 2-6.) The trial
court sustained defense counsel's objections to the prosecutor's
the summation; defense counsel did not, however, request a
mistrial or curative jury instruction. (See Tr. at 189-94.) The
First Department affirmed Chisolm's conviction, holding that his
challenge to the prosecutor's summation was unpreserved for
appeal. People v. Chisolm, 241 A.D.2d 346, 346, 660 N.Y.S.2d 976,
976 (1st Dep't), app. denied, 91 N.Y.2d 870, 668 N.Y.S.2d 569,
691 N.E.2d 641 (1997).
For the reasons set forth below, because the First Department's
decision rests on an adequate and independent state procedural
ground, and because Chisolm has not shown cause for the default
and prejudice, the Court should deny Chisolm's habeas corpus
petition as frivolous.
The Supreme Court has made clear that the "adequate and
independent state ground doctrine applies on federal habeas,"
such that "an adequate and independent finding of procedural
default will bar federal habeas review of the federal claim,
unless the habeas petitioner can show `cause' for the default and
`prejudice attributable thereto,' or demonstrate that failure to
consider the federal claim will result in a `fundamental
miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262,
109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (citations omitted);
accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct.
2546, 2557, 115 L.Ed.2d 640 (1991); Jones v. Vacco,
126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724
(2d Cir. 1996); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.
1990); Farrington v. Senkowski, 19 F. Supp.2d 176, 180 (S.D.N Y
1998); Cooper v. LeFevre, 94-cv-5958, 1998 WL 386340 at *1
(E.D.N.Y. July 8, 1998); Williams v. Bennet, 97 Civ. 1628, 1998
WL 236222 at *6 (S.D.N.Y. April 20, 1998) (Baer, D.J. & Peck,
M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996)
(Jones, D.J. & Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996
WL 33990 at *7 (S.D.N.Y. Jan.3, 1996) (Wood, D.J. & Peck, M.J.);
Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *10
(S.D.N.Y. Aug.25, 1995) (Cote, D.J. & Peck, M.J.). Chisolm's case
is an example of such a procedural default.
Chisolm argues that although he was charged only with assault
and possession of a weapon, the prosecutor during summation
"strongly suggested to the jury that the petitioner was a drug
dealer," and that Chisolm had been involved in drug dealing with
his victim Lopez and two known drug dealers, Biz and Box. (Pet. ¶
12(A)(5); Tr. at 189-94.) Defense counsel objected several times
to the prosecutor's references during closing argument to
Chisolm's relationship with the drug dealers, and the trial judge
sustained the objections:
[ADA] BRANCATO: Well, we know from the evidence and
we know from counsel's summation to you that the
defendant himself trusted Mr. Lopez. The defendant
himself, who along with Biz and Box and the two other
guys who showed up that night, they trusted him
enough to work with him. They trusted him enough to
make him an appendage of what they did. . . . Their
prized possessions were shared amongst each other.
MR. PAISLEY: Judge, objection.