for evidence. (T. 80-81). Bour found the knife which was later
identified as the murder weapon in a wooded area on the side of
a road behind the bar which led westerly to Sodus. (T. 82-84,
92). A leather knife sheaf was discovered approximately 1000
feet to the west of where the knife was found, closer toward
Sodus. (T. 88-91).
Dr. Nicholas Forbes, Monroe County Medical Examiner testified
at trial that he autopsied Denner's body on January 19, 1990.
(T. 188). According to Dr. Forbes, blood alcohol tests indicated
that Denner was legally drunk at the time of his death. (T.
190-91). Dr. Forbes determined that Denner's death was caused by
a stab wound to the left neck area which penetrated 3 1/2
inches, severing the innominate vein which caused Denner's left
lung to collapse. (T. 189). There was no evidence of any wounds
which Dr. Forbes could characterize as "defensive." (T. 192).
Galvin was convicted by a jury on October 17, 1990 of Murder
in the Second Degree, Robbery in the First Degree and Robbery in
the Second Degree. In connection with that conviction, Galvin
received three indeterminate sentences of 1 1/2 years to 4 1/2
years, 2 to 6 years and 15 years to life, said sentences to run
concurrently. Galvin appealed his conviction to the Appellate
Division, Fourth Department arguing that the trial evidence was
insufficient to establish criminal liability or to sustain a
felony murder conviction, as well as failure to instruct the
jury as to a lesser offense. Galvin's convictions were
unanimously affirmed on February 5, 1993 and leave to appeal to
the Court of Appeals was denied on May 5, 1993.
Galvin then moved before the Appellate Division, Fourth
Department, pursuant to N.Y.Crim.Proc.Law § 440.10, to have his
judgment vacated based on newly discovered evidence.
Specifically, Galvin argued that the trial court erroneously
admitted into evidence Smith's redacted statement although Smith
did not testify and thus was not available for
cross-examination, that trial counsel's stipulation to the
admission of such statement into evidence constituted
ineffective assistance of counsel, and that a newly discovered
statement given by Cleophus Sanders was exculpatory and, as
such, should have been provided to Galvin in response to his
request for Brady and Rosario materials. That request was
denied on June 24, 1996. On May 11, 1997, Galvin filed the
instant petition for habeas relief.
In the instant petition, Galvin asserts four grounds for
relief including: (1) the appellate court did not specify the
reasons why his direct appeal was denied, (2) People v.
Eastman, 85 N.Y.2d 265, 624 N.Y.S.2d 83, 648 N.E.2d 459 (1995),
requires reversal, (3) an exculpatory statement was wrongfully
withheld, and (4) ineffective assistance of counsel. Although
not stated with the desired degree of specificity, a careful
reading of Galvin's petition indicates he is challenging his
conviction of felony murder under New York Penal Law § 125.25(3)
which provides that a person may be found guilty of murder in
the second degree when, in the course of and in furtherance of a
robbery, or immediate flight therefrom, he or another robbery
participant, causes the death of a person other than a
participant. An affirmative defense to felony murder is that the
defendant did not intend the commission of the homicidal act,
was not armed, had no reason to believe any other participant
was armed and no reasonable ground existed to believe another
participant intended to engage in conduct likely to result in
death or serious physical injury. Significantly, although Galvin
admits being in the bar with Smith and Denner when Smith stabbed
Denner, Galvin maintains that he was not a participant in any
crime and he had no knowledge that Smith borrowed Galvin's knife
with the intention of using it to rob Denner.
In reviewing a state prisoner's petition pursuant to
28 U.S.C. § 2254, a
district court makes an independent determination as to whether
the petitioner is in custody in violation of his rights under
the Constitution or any laws or treaties of the United States.
Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991), reh'g denied, 501 U.S. 1277, 112 S.Ct. 27,
115 L.Ed.2d 1109 (1991). A state petitioner's federal habeas
corpus petition may be dismissed if the petitioner has not
exhausted available state remedies as to any of his federal
claims, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982), although under the Antiterrorism and
Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(b)(2), a
federal court is permitted to deny a state prisoner's habeas
corpus petition on the merits even though the prisoner has not
exhausted available state remedies.
In the instant case, no state remedy exists with regard to
Galvin's first ground that the Appellate Division's affirmance
of his conviction was vague and insufficient and it is
undisputed that Galvin has exhausted state remedies as to his
remaining grounds for habeas relief. Answer, ¶ 10. Accordingly,
Galvin's petition presents only exhausted claims and
jurisdiction in this court therefore exists.
In reviewing habeas petitions, federal courts do not function
as appellate courts to review matters within the jurisdiction of
the state, or to review rulings and decisions of state trial and
appellate courts, rather, the court determines whether the
proceedings in the state court amount to a violation of federal
constitutional rights. Coleman, supra. Federal review of a
state court conviction is limited to errors of federal
constitutional magnitude which denied a criminal defendant the
right to a fundamentally fair trial. Cupp v. Naughten,
414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). A state prisoner
applying for a writ of habeas corpus under 28 U.S.C. § 2254 is
not entitled to an evidentiary hearing by the federal court, but
the granting of a hearing is within the discretion of the
federal district court. Keeney v. Tamayo-Reyes, 504 U.S. 1,
4-5, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (citing Townsend v.
Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)). The
state court's determination, however, is presumed to be correct
unless one of the specified conditions pursuant to
28 U.S.C. § 2254(e), formerly 28 U.S.C. § 2254(d), is found to exist or
unless the federal habeas court concludes that the relevant
state court determination is not fairly supported by the record.
Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722
(1981). Absent these factors, the burden rests on the petitioner
to establish, by clear and convincing evidence, that the factual
determination is erroneous. Sumner, supra.
It is within the court's discretion whether an evidentiary
hearing is necessary. Pagan v. Keane, 984 F.2d 61, 63 (2d Cir.
1993). The court is in possession of the state record as
relevant to Galvin's claims, including the trial transcript and
challenged statements, along with the all of the legal memoranda
which were before the state courts with regard to Galvin's
direct appeal and § 440.10 motion. Galvin has not requested that
the court conduct an evidentiary hearing prior to resolving his
claims for relief and has not challenged the record below as
factually inadequate. Accordingly, the court in its discretion
finds an evidentiary hearing unnecessary.
1. Sufficiency of Appellate Division's Denial
Galvin claims that the Appellate Division's decision denying
his direct appeal is "vague and insufficient" as it fails to
specify the precise reasons for the denial. Petition, ¶ 12A.
Galvin argued on his direct appeal to the Appellate Division
that the trial evidence was insufficient to support the jury's
verdict that Galvin was guilty of felony murder and that the
trial judge erred in failing to instruct the jury on an
alternative offense of criminal facilitation. Such claims are
reviewable under the Due Process Clause of the Fourteenth
Amendment. Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994),
cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316
(1995). The Appellate Division's affirmance of Galvin's
conviction was accompanied by a two-sentence opinion, the first
sentence stating the asserted grounds for the appeal and the
second sentence indicating that the trial court properly denied
Galvin's request for the alternative jury instruction. People
v. Galvin, 190 A.D.2d 1023, 594 N.Y.S.2d 1005 (4th Dep't.
"[W]hen a defendant presents a claim to the Appellate
Division, and the Appellate Division affirms without opinion, a
federal court should presume that the Appellate Division
considered the constitutional claim and decided it on the
merits." Parron v. Quick, 869 F.2d 87, 90 (2d Cir. 1989)
(holding in the context of a habeas petition asserting an
ineffective assistance of counsel claim based on an alleged
speedy trial violation that although the Appellate Division
affirmed petitioner's conviction without opinion, certain
presumptions could be made as to the nature of the summary
affirmance, including that the constitutional claim had been
decided on its merits rather than dismissed based on procedural
default). Accordingly, in light of Parron, supra, the court
presumes that the Appellate Division reached the merits of
Galvin's alleged constitutional violations. Significantly,
Galvin cites no law requiring an Appellate Division decision in
the form of a lengthy discourse and the court's research reveals
none. Moreover, a convicted defendant has no constitutional
right to appeal. Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct.
2437, 41 L.Ed.2d 341 (1974) ("while no one would agree that the
State may simply dispense with the trial stage of proceedings
without a criminal defendant's consent, it is clear that the
State need not provide any appeal at all.") (citing McKane v.
Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894)). As
the state's failure to provide a right to appeal cannot be a
ground for habeas review, it follows that the Appellate
Division's failure to specify its reasons for affirming Galvin's
conviction also cannot be a basis for habeas review. Therefore,
the petition should be DENIED on this ground.
2. Admission of Statement by Non-Testifying
Galvin asserts as his second ground for habeas review that
People v. Eastman, 85 N.Y.2d 265, 624 N.Y.S.2d 83,
648 N.E.2d 459 (1995) requires reversal. Petition, ¶ 12B. In Eastman,
supra, the New York Court of Appeals held that Cruz v. New