"only by implication" as part of speedy trial claim).
Generally, if a federal habeas petition contains unexhausted
claims, the court should dismiss it. Rose v. Lundy,
455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).*fn4 However,
"if the petitioner no longer has `remedies available' in the
state courts under 28 U.S.C. § 2254(b), we deem the claims
exhausted." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994),
see also Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991).
Since collateral review in state court is unavailable where the
record of the proceedings would have permitted review on direct
appeal, see NYCPL § 440.10(2)(c), this Court will deem the
above-mentioned claims exhausted. Nonetheless, petitioner's
procedural default precludes review of these claims on the
merits. See Bossett, 41 F.3d at 829.
Federal courts may only address the merits of a claim that has
been procedurally defaulted in the state court upon a showing
that there was cause for the default and prejudice to the
petitioner resulting therefrom. See Wainwright v. Sykes,
433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Bossett, 41
F.3d at 829. A petitioner can demonstrate cause with "`a showing
that the factual or legal basis for a claim was not reasonably
available to counsel, . . . or that some interference by state
officials made compliance impractical, . . . [or that] the
procedural default is the result of ineffective assistance of
counsel.'" Bossett, 41 F.3d at 829 (quoting Murray v.
Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397
(1986)) (internal quotation omitted). Here, petitioner has made
no attempt to demonstrate cause for not raising the defaulted
claims on direct appeal. Accordingly, this Court denies the
previously enumerated claims without reaching the merits.
III. Claims Not Preserved For Direct Appeal
The second ground alleged in support of the petition — that the
evidence of petitioner's guilt of depraved indifference murder
was not legally sufficient because the evidence did not prove his
identity as the gunman beyond a reasonable doubt — was presented
to the Appellate Division on direct appeal. See Respondent's
Exh. B at Points I and II; Exh. C. at Point I. At trial, however,
petitioner had moved to dismiss the depraved indifference murder
count, pursuant to N.Y.Crim.Proc.L. § 290.10, solely on the
general ground that the prosecution had failed to make out a
"prima facie case." See Respondents Exh. C at 39, n. 41.
Accordingly, the Appellate Division held that Petitioner had
failed to comply with New York's contemporaneous objection rule.
Fama, 622 N.Y.S.2d at 733 ("The defendant's generalized motion
to dismiss was insufficient to preserve for appellate review his
claims that the proof of identification was legally insufficient
to establish his guilt of depraved indifference murder beyond a
reasonable doubt."); see N.Y.Crim.Proc.L. § 470.05(2).
Petitioner's tenth claim — that the trial court failed to ensure
a fair trial "in the face of . . . publicity," and jury
intimidation — was also presented to the Appellate Division,
which did not specifically discuss this contention in its opinion
but held that "[t]he defendant's remaining contentions are either
unpreserved for appellate review or without merit." Fama, 622
N YS.2d at 733.
"[A] federal court should not review a question of federal law
decided by a state court if that decision is based on independent
and adequate state substantive or procedural law. . . . This is
so even where the state court declined to address the federal
claims on the merits because
the petitioner failed to meet state procedural law requirements."
Bacchus v. Reynolds, 1995 WL 62599 at *3 (E.D.N.Y. 1995)
(citing Coleman v. Thompson, 501 U.S. 722, 730-31, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991)) (other citations omitted). Since
"New York permits review of the merits of claims not raised in
the trial court only sparingly," the Second Circuit has held that
"it is thus reasonable to presume that silence in the face of
arguments asserting a procedural bar indicated that the
affirmance was on state procedural grounds." Quirama v.
Michele, 983 F.2d 12, 14 (2d Cir. 1993) (following Martinez v.
Harris, 675 F.2d 51 (2d Cir. 1982)); see also Epps v.
Commissioner of Correctional Services, 13 F.3d 615, 618 and n. 2
(2d Cir. 1994) (noting that in light of the Supreme Court's
decision in Coleman, the Second Circuit had revived its earlier
rule, which was first enunciated in Martinez).
Here, the Appellate Division explicitly denied the sufficiency
of the evidence claim on procedural grounds. With respect to the
claim of failure to ensure a fair trial, the lack of any
indication in the record that petitioner raised the issue with
the trial court, either by seeking a mistrial or otherwise,
supports the inference that petitioner's procedural failure was
the basis for the appellate court's decision.*fn5 Again,
petitioner has failed to make a showing of cause for his failure
to comply with the state procedural rules. Therefore, this Court
will not exercise habeas review.
IV. Challenge to Jury Instructions on Accessorial Liability
The only remaining claims are petitioner's second and third
contentions in support of this petition, challenging the trial
court's jury instructions on accessorial liability as applied to
the depraved indifference murder count, as well as its failure to
respond to jury requests during deliberation in the manner sought
by petitioner. However, a challenge to a jury charge in a state
trial is generally a matter of state law and is not reviewable by
this Court absent a showing that the alleged errors were so
serious as to deprive petitioner of a federal constitutional
right. See United States ex rel. Smith v. Montanye,
505 F.2d 1355, 1359 (2d Cir. 1974). To overturn his conviction, petitioner
bears the burden of showing "not merely that the instruction is
undesirable, erroneous, or even `universally condemned,' but that
it violated some right [guaranteed by] the Fourteenth Amendment."
Id. (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct.
396, 38 L.Ed.2d 368 (1973)); see also Morales v. Miller,
41 F. Supp.2d 364, 377 (E.D.N.Y. 1999).
New York law provides that a defendant is criminally liable as
an accessory when, "acting with the mental culpability required
for the commission thereof, he solicits, requests, commands,
importunes, or intentionally aids" another to commit a crime.
N Y Penal Law § 20.00. In this case, the trial court read this
statutory section to the jury several times, and instructed,
inter alia, that in order for petitioner to be proven guilty
there must a finding that the "behavior of the defendant
contributed to the realization of the agreement, plan or design
[to engage in illegal activity to the detriment of others]," and
that mere presence at the location and time of the crime and
departure from the scene "are not sufficient to establish acting
in concert." Trial Transcript ("Tr.") at 2846-48, 2864-65. The
court also repeatedly instructed that petitioner must have had
"the required mental culpability." E.g., id. at 2847-48. In
addition, the court indicated his agreement with defense
counsel's hypothetical proposition that "if . . . individuals go
to 69th Street and none of them know that someone has a gun and
someone acts differently than what any of the other people
intended, then that is not acting in concert"; the court
responded, "[y]ou're right, because they didn't have the mental
culpability." Tr. at 2868.
Even assuming that the trial court's instructions could have
been clearer or that it should have provided more hypothetical
examples to illustrate the prosecution's burden of proof
regarding intent, as contended by petitioner, the failure to do
so, by itself, does not establish that the court's instructions
"so infected the entire trial that the resulting conviction
violated due process." Henderson v. Kibbe, 431 U.S. 145, 154,
97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) (internal quotation
omitted); see Morales, 41 F. Supp.2d at 377 (holding that trial
court's refusal to re-charge jury on the issue of intoxication as
it relates to intent was not a constitutional violation); Pena
v. Miller, No. 94 Civ. 2820, 1997 WL 278051, at *5 (S.D.N.Y. May
23, 1997) (denying claim for habeas relief based upon trial
court's purported omission of mens rea element of accessorial
liability). Viewing the challenged portions of the charge in the
context of the charge as a whole, as required, see Morales, 41
F. Supp.2d at 377, this Court concludes that petitioner has failed
to show that the instruction was erroneous, let alone that the
alleged errors rose to the level of a constitutional violation.
Moreover, the Court finds that there was more than sufficient
evidence in the record to support a charge regarding accessorial
V. Improper Responses to Jury Questions
Finally, petitioner asserts that the trial court's supplemental
instructions in response to questions from the jury during
deliberation were incorrect, inadequate and misleading, and that
the court should have provided the responses requested by the
defense. To obtain reversal of his conviction based on this
claim, petitioner must not merely show that the trial court
committed a constitutional error, but "establish that it resulted
in `actual prejudice.'" Brecht v. Abrahamson, 507 U.S. 619,
637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Placing this burden
on a habeas petitioner is consistent with the constraints on
collateral review; "[o]verturning final and presumptively correct
convictions on collateral review because the State cannot prove
that an error is harmless . . . undermines the States' interest
in finality and infringes upon their sovereignty over criminal
A petitioner's burden of showing prejudice is "especially
heavy" when, as here, a petitioner claims that a jury instruction
was incomplete, because "[a]n omission, or an incomplete
instruction, is less likely to be prejudicial than a misstatement
of the law." Henderson, 431 U.S. at 155, 97 S.Ct. 1730. This
Court, having reviewed petitioner's arguments in light of the
record as a whole, including the ample evidence of his guilt,
finds that petitioner has failed to show actual harm resulting
from the failure to include the requested instructions.
For the foregoing reasons, Petitioner's application for a writ
of habeas corpus is denied, and the motion to amend the petition
is also denied. This Court declines to issue a certificate of
appealability, as Petitioner has not presented a "substantial
showing of the denial of a constitutional right." Nelson v.
Walker, 121 F.3d 828, 832 n. 3 (2d Cir. 1997). The Clerk of the
Court is directed that this order closes this case.