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CHISOLM v. HEADLEY

July 29, 1999

CHARLES CHISOLM, PETITIONER,
v.
FRANK HEADLEY, SUPT., ARTHUR KILL CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Mukasey, District Judge.

OPINION AND ORDER

Charles Chisolm, presently in the custody of New York State, petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his convictions for assault in the first degree and criminal possession of a weapon in the second and third degrees. In a Report and Recommendation dated November 4, 1998 ("Report"), Magistrate Judge Andrew Peck recommended denial of the writ. Petitioner has filed timely objections to the Report. For the reasons stated below, the Report is adopted, the writ is denied and the petition is dismissed.

I.

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. (Id.)

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.)

II.

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.

III.

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 to support 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 this court.*fn2

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 ...


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