The opinion of the court was delivered by: Gershon, District Judge.
In this petition for habeas corpus relief pursuant to
28 U.S.C. § 2254, petitioner challenges his October 24, 1990 conviction,
after a jury trial in Suffolk County Court (Mallon, J.).
Petitioner was charged with three counts of second-degree murder
in the death of Lea Greene and one count of first-degree
burglary. He was tried jointly, but with a separate jury, with
Daniel Toal. Petitioner was convicted of second-degree murder,
pursuant to N.Y. Penal Law §§ 125.25(1) (intentional murder) and
125.25(3) (felony murder), and of first-degree burglary, pursuant
to N.Y. Penal Law § 140.30(2). Petitioner was sentenced to
concurrent prison terms of twenty-five years to life on each of
the murder convictions, and to a prison term of eight and
one-third to twenty-five years on the first-degree burglary
conviction, consecutive to the sentences on the murder
convictions. The Appellate Division affirmed the convictions on
October 18, 1993. It held that a joint trial with two juries was
properly conducted, that defendant's contention that the trial
court should have charged the defense of extreme emotional
distress was meritless, and that the rest of defendant's
contentions were also meritless. People v. Lydon, 197 A.D.2d 640,
603 N.Y.S.2d 771 (2d Dep't 1993). Leave to appeal to the New
York Court of Appeals was denied on March 1, 1994. People v.
Lydon, 83 N.Y.2d 855, 612 N.Y.S.2d 387, 634 N.E.2d 988 (1994)
Petitioner contends that (1) he was denied due process of law
in violation of his rights under the Fifth and Fourteenth
Amendments to the United States Constitution by the trial court's
failure to instruct the jury that the defendant presented
evidence of impaired mental capacity which affected defendant's
cognitive abilities and which, if found to be true, would have
been a defense to the crimes under state law; (2) he was denied
due process by the trial court's "failure to individually
question the trial jurors prior to their selection as to the
effect of widespread adverse pre-trial publicity;" (3) that the
trial court denied petitioner due process of law during the trial
by failing to shield, through sequestration, the jury from a
guilty verdict, reached four days before the petitioner's trial
ended, returned against Daniel Toal who was standing trial in the
The prosecution presented evidence at trial that petitioner
voluntarily and repeatedly confessed to murdering Lea Greene on
July 18, 1989, the same day that Ms. Greene was killed. Highway
Patrolman Gary Krey testified that petitioner stated that he had
killed Ms. Greene. Suffolk County Detective James Hughes
testified that petitioner confessed to him on that same day.
Petitioner also signed a handwritten confession and made a
videotaped confession, after being advised of his rights. In that
confession, petitioner admitted stabbing Ms. Greene in the neck
and placing his hand over her heart to count the number of
heartbeats before she died. He also admitted to entering Ms.
Greene's apartment with the intention of stealing goods from it.
And he stated that he had taken the license plates off his car
when he was parked near the robbery site so he could not be
identified, and then replaced them after the murder, when he was
down the road, to avoid being stopped. The prosecution also
presented evidence, through Detective Hughes's testimony, that
petitioner led police to where he had disposed of the murder
weapon, a knife. There was also medical testimony that Ms. Greene
died of a stab wound.
Patrolman Krey and Detective Hughes both testified that the
defendant did not appear drunk, as did another police officer.
The prosecution also presented evidence from a psychiatrist who
testified that the defendant, during his videotaped confession,
did not appear to be suffering from alcoholic blackout.
The defense focused on Mr. Lydon's chronic alcoholism and his
alleged emotional distress at the time of the murder. Mr. Lydon's
father, aunt, uncle, sister, and friends all testified to this
effect. These witnesses also testified that it was difficult to
tell when Mr. Lydon was drunk. The defense also presented
evidence of petitioner's school record which showed that he had
been classified as a student with an emotional disturbance and
provided with special education. However, at age 16, various
psychological tests showed him to be an average child with no
major emotional problems. There was also testimony from a
physician and a neuropsychologist that he suffered from alcoholic
blackout, which was described as similar to amnesia, that is, a
loss of memory of events that have occurred. The individual in an
alcoholic blackout is not unconscious, but conscious, during the
events, but does not remember them later. The neuropsychologist
also testified that petitioner had an unstable personality and
that his judgment would be impaired by alcohol.
Petitioner testified as to the events preceding his entry of
Ms. Greene's apartment, and that he and his co-defendant stole
things from her. He further said that he fell asleep there and
woke up with blood on his hands and a knife with him, but said
that he had no memory of murdering her or of confessing. He
claimed that he was upset because his uncle had accused him of
breaking into a truck, his father was ill, and he was having
problems with his girlfriend. He was drunk during the entire
weekend on which the crimes occurred.
Exhaustion of State Remedies
The federal habeas corpus statute, 28 U.S.C. § 2254, requires
that a state prisoner seeking federal habeas corpus review of a
conviction first exhaust all state remedies. To fulfill the
exhaustion requirement, a petitioner must have "fairly presented"
a federal claim to the highest state court from which a decision
can be had. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct.
509, 30 L.Ed.2d 438 (1971); Daye v. Attorney General,
696 F.2d 186, 190 n. 3 (2d Cir. 1982). A petitioner must set forth in the
appropriate state court all of the essential factual allegations
and substantially the same legal doctrines asserted in the
federal petition. See Daye, 696 F.2d at 191-92. Under Daye, a
petitioner has fairly presented to the state courts the legal
basis for a federal claim if he has: (1) identified the specific
provision of the Constitution relied on in his habeas corpus
petition; (2) cited pertinent federal cases employing
constitutional analysis; (3) cited state cases employing
constitutional analysis in like factual situations; (4) asserted
his claim in terms so particular as to call to mind a specific
right protected by the Constitution; or (5) alleged a pattern of
facts well within the mainstream of constitutional litigation.
See id. at 192-94.
Respondent does not dispute that petitioner made the same
factual allegations he makes here in state court, but contends
that petitioner did not exhaust his state remedies because he did
not fairly present to the state courts the federal nature of his
claims. However, petitioner did alert the state courts to his
federal claims by citing federal cases in his appellate brief.
Maiorino v. Scully, 746 F. Supp. 331 (S.D.N.Y. 1990); United
States v. Napolitano, 552 F. Supp. 465 (S.D.N.Y. 1982), and
Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751
(1961). Petitioner therefore presented his federal claims to the
The Charge Regarding Petitioner's Mental Capacity
The federal habeas corpus statute, 28 U.S.C. § 2254(d), limits
federal habeas corpus review to situations in which a
petitioner's custody (1) resulted from a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States; or (2) resulted from a decision that was
based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding. Mere
questions of state law are not grounds for habeas corpus relief.
Indeed, "it is not the province of a federal habeas court to
reexamine state court determinations on state-law questions. In
conducting habeas corpus review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or
treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Petitioner's first claim is that "Defendant was denied due
process of law at his trial in violation of his constitutional
rights under the Fifth and Fourteenth Amendments to the United
States Constitution by the trial court's failure to instruct the
jury that defendant had presented evidence of impaired mental
capacity which affected defendant's ...