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August 12, 1999


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)
(Titone, J.).

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 same courtroom.


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 state courts.

The Charge Regarding Petitioner's Mental Capacity

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 ...

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