pick the lock. He ate something and waited inside for Jewell to
return to the trailer from work.
About 1 p.m., Jewell returned to the trailer. As Jewell entered
the trailer, petitioner hit him over the head with a rolling pin
he had taken from the kitchen. Jewell fell out of the trailer
onto the front porch. Petitioner forced Jewell back into the
trailer where the two men argued. Jewell was bleeding from the
head and petitioner allowed him to get a wash cloth from the
Petitioner then taped Jewell's mouth, feet and hands and
removed his wallet, took $150 or $160 from it, and took the keys
to Jewell's vehicle. Petitioner left the house and, on his way
out, took the portable phone and placed it under the trailer.
Petitioner then got in Jewell's car, drove to Newburgh, New York
where he bought more crack cocaine, and went to a reservoir where
he smoked the crack. He checked into a motel, then later took a
taxi into Newburgh, again purchased crack, and went back to the
motel where he spent the night.
During the afternoon before, at the Bruckner Waste Oil Company
next door to the trailer, Clint Bruckner was looking out a window
when he saw Robert Jewell's car leave the driveway of the trailer
at a high rate of speed. About five minutes later, Jewell
approached, looking excited and ashen and walking quickly. Jewell
used Bruckner's phone to make a 911 call for the police. Jewell
had a bump on his head and a bleeding gash behind one ear.
The police arrived and questioned Jewell, who recounted being
attacked by petitioner. During the course of the questioning, the
police called for an ambulance, and paramedics arrived before the
interview ended. As Jewell was finishing his account, he slumped
forward. When Jewell failed to respond to the efforts of the
paramedics to resuscitate him, he was taken to a hospital, where
he was pronounced dead at 2:02 p.m. An autopsy revealed that
Jewell had a hemorrhage on the left side of his head and an
enlarged heart that showed signs of a previous heart attack and a
fresh heart attack. His coronary arteries were severely narrowed,
limiting the blood supply to his heart. Jewell's lungs showed
signs of emphysema and edema, or fluid in the lungs. Jewell's
blood and urine tested negative for drugs and alcohol. The
medical examiner Dr. Louis Roh testified that Jewell's death
resulted from a heart attack possibly caused by stress from being
struck on the head and bound.
B. Procedural History of the Case
On January 3, 1996, Orange County Court Judge Thomas J. Byrne
sentenced petitioner to twenty-three years to life in state
prison. Petitioner appealed his conviction to the New York
Appellate Division, Second Department. In his appellate brief,
petitioner argued that: (1) the People failed to show a
sufficient nexus between petitioner's acts and the victim's
death; (2) the trial court should not have admitted into evidence
a tape recording of Jewell's 911 call to police; (3) the People
failed to prove all of the elements of robbery; (4) the verdict
of guilt went against the weight of the evidence; and (5) the
sentence was excessive under the circumstances.
The Appellate Division affirmed petitioner's conviction and
sentence in a Decision and Order dated November 30, 1998. People
v. Cowan, 255 A.D.2d 596, 682 N.Y.S.2d 59 (2d Dep't 1998). The
Appellate Division found that petitioner had not preserved for
appellate review his contention that admission of the tape of the
911 call was improper, but noted that the tape was, in any event,
admissible "because the victim was still under the excitement
precipitated by the event and lacked the reflective capacity
essential for fabrication." Id. The court also held that in
light of petitioner's oral and written confessions and
"undisputed medical testimony establishing a causal link between
the defendant's acts and the victim's fatal heart
attack approximately one hour after the crime occurred," the
evidence was legally sufficient to support a finding of guilt
beyond a reasonable doubt. Id. The court further held that
petitioner's sentence was not excessive and found the rest of
petitioner's contentions to be without merit. Id.
On January 5, 1999, petitioner, through counsel, applied to the
New York Court of Appeals for leave to appeal the Appellate
Division's decision on the five issues set forth above. The
letter to the Chief Justice stated as follows:
I have enclosed for your review Appellant's brief,
Respondent's brief and the decision and order of the
Appellate Division Second Department and ask the
1. That the Court consider issues one through five
inclusive of the Appellant's brief and permit the
filing of briefs thereto.
(Letter from John P. Savoca to Chief Justice of the New York
Court of Appeals of 1/5/99.)
On March 17, 1999, the Court of Appeals denied petitioner leave
to appeal. In a petition dated August 16, 1999, petitioner asked
this Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254.
I. The Exhaustion Doctrine
As a threshold issue, respondent claims that petitioner has
failed to exhaust his remedies. Before a federal court can grant
a state prisoner habeas relief, the prisoner generally must
exhaust his remedies in state court.*fn1 O'Sullivan v.
Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1
(1999). The exhaustion doctrine is the product of the rule of
comity between federal and state courts. Thus, "when a prisoner
alleges that his continued confinement for a state court
conviction violates federal law, the state courts should have the
first opportunity to review this claim and provide any necessary
relief." 526 U.S. at 844, 119 S.Ct. at 1732. The Supreme Court
has held that state prisoners must give the state courts "one
full opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate review
process." 526 U.S. at 845, 119 S.Ct. at 1732.
The exhaustion doctrine is not satisfied unless the federal
claim has been "fairly presented" to the state courts. Daye v.
Attorney General of the State of New York, 696 F.2d 186, 191 (2d
Cir. 1982). The state prisoner must have informed the state court
of both the factual and legal premises of his federal court
claim. Id. He must have set forth in state court all of the
essential factual allegations and essentially the same legal
doctrine asserted in his federal petition. Id. at 192.
In deciding whether the legal doctrines asserted in the state
and federal courts are essentially the same, the defendant need
not have cited "book and verse on the federal constitution."
Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30
L.Ed.2d 438 (1971) (internal citation
and quotations omitted). Rather, "in state court the nature or
presentation of the claim must have been likely to alert the
court to the claim's federal nature." Daye, 696 F.2d at 192.
The Second Circuit has stated that the state courts could have
been alerted to the constitutional nature of a claim, even in the
absence of a citation to the constitution itself, where the
prisoner: (1) relied on federal constitutional precedents; (2)
cited state precedent that employs pertinent constitutional
analysis; (3) claimed deprivation of a particular right
specifically protected by the Constitution; or (4) alleged a
pattern of facts that is well within the mainstream of
constitutional litigation. Id. at 192-94. Furthermore, even if
not alerted to the federal claim by the defendant, the state
court might have been alerted by the briefs filed by the state in
opposition. Id. at 193 n. 5.
Respondent argues that petitioner failed to raise on direct
appeal or by post-judgment motion the issues of effectiveness of
trial and appellate counsel and the People's alleged failure to
turn over a toxicology report. Respondent further argues that
while petitioner challenged the legal sufficiency of the People's
proof in the Appellate Division, his application for leave to
appeal to the Court of Appeals was deficient for the purposes of
preserving the claim for this Court's review. We will address
each of these arguments in turn as we assess petitioner's grounds
for habeas corpus relief.
II. Petitioner's Grounds for Relief
A. Ineffective Assistance of Trial Counsel and the Alleged
Petitioner failed to raise on direct appeal his claims that he
was denied effective assistance of trial counsel and denied
access to potentially exculpatory material in violation of Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
New York has a mechanism for collaterally attacking a judgment
that is in violation of a defendant's constitutional rights.
See N.Y.Crim.Proc.Law § 440.10(1)(h) ("At any time after the
entry of a judgment, the court in which it was entered may, upon
motion of the defendant, vacate such judgment upon the ground
that: . . . [t]he judgment was obtained in violation of a right
of the defendant under the constitution of this state or of the
United States."). However, any attempt to bring such a motion
would be futile, as section 440.10(2)(c) bars collateral review
if the defendant unjustifiably failed to argue such
constitutional violation on direct appeal despite a sufficient
record.*fn2 Bond v. Walker, 68 F. Supp.2d 287, 295 (S.D.N Y
1999); Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991);
Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994), cert.
denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995).
Petitioner is also precluded from bringing these claims on direct
appeal. See N.Y.Ct.Rules § 500.10(a) (only one application for
leave to appeal to the New York Court of Appeals is permitted);
see also Lugo v. Kuhlmann, 68 F. Supp.2d 347, 363 (S.D.N Y
1999) (finding that petitioner had procedurally defaulted his
claims where petitioner could have raised the claims on direct
appeal, but failed to do so). Therefore, petitioner has no
further recourse in the state courts and these claims are "deemed
exhausted" by virtue of petitioner's procedural default.
Petitioner may not litigate the merits of these claims in a
federal habeas proceeding
unless he can show cause for the default and prejudice resulting
therefrom, Grey, 933 F.2d at 121; Bossett, 41 F.3d at 829, or
"demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice, i.e., a showing of actual
innocence," Howard v. Lacy, 58 F. Supp.2d 157, 165 (S.D.N Y
1999) (internal citations and quotations omitted). Petitioner has
made no showing of cause or prejudice or actual innocence.
Accordingly, petitioner's claims of a Brady violation and
ineffective assistance of trial counsel must be dismissed without
reaching the merits.
B. Ineffective Assistance of Appellate Counsel
Petitioner claims that he was denied effective assistance of
appellate counsel. Petitioner has not raised this issue in state
court, and he is not foreclosed from doing so.
The New York Court of Appeals has held that "a common-law coram
nobis proceeding brought in the proper appellate court is the
only available and appropriate procedure and forum to review a
claim of ineffective assistance of appellate counsel." People v.
Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318, 319
(1987); see also Harris v. Artuz, No. 99 Civ. 5019(SAS), 2000
WL 358377, at *3 (S.D.N.Y. April 7, 2000). There is no time limit
for applying for a writ of error coram nobis. Id. Accordingly,
petitioner's claim for ineffective assistance of appellate
counsel is not exhausted.
Apropos to petitioner's due process claim, respondent argues
that if this Court finds that the petition contains exhausted and
unexhausted claims, the petition must be dismissed. In Rose v.
Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379
(1982), the Supreme Court held that such "mixed" petitions must
be dismissed. However, pursuant to the 1996 amendments to the
habeas corpus statute, courts now are expressly permitted to deny
applications for writs of habeas corpus on the merits,
notwithstanding a petitioner's failure to exhaust state remedies.
28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available in the courts
of the State."); Loving v. O'Keefe, 960 F. Supp. 46, 49
(S.D.N.Y. 1997). Accordingly, this Court will address
petitioner's claim of ineffective assistance of appellate counsel
on the merits.
The Supreme Court set forth the standard for assessing attorney
assistance in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). There, the Court held that a
defendant must show: (1) "that counsel's performance was
deficient. . . . that counsel made errors so serious that counsel
was not functioning as the `counsel' guaranteed the defendant by
the Sixth Amendment;" and (2) "that the deficient performance
prejudiced the defense. . . . that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." 466 U.S. at 687, 104 S.Ct. at 2064.
Furthermore, the Court held that "[j]udicial scrutiny of
counsel's performance must be highly deferential." 466 U.S. at
689, 104 S.Ct. at 2065. Thus, in assessing counsel's performance,
must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed
as of the time of counsel's conduct. A convicted
defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable
professional judgment. The court must then determine
whether, in light of all the circumstances, the
identified acts or omissions were outside the wide
range of professionally competent assistance. In
making that determination, the court should keep in
mind that counsel's function, as elaborated in
prevailing professional norms, is to make the
adversarial testing process work in the particular
case. At the same time, the court should recognize
that counsel is strongly presumed to have rendered
adequate assistance and made all significant
decisions in the exercise of reasonable professional
466 U.S. at 690, 104 S.Ct. at 2066.
The Supreme Court recognized that a defendant is entitled to
effective assistance of counsel on first appeal as of right in
Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83
L.Ed.2d 821 (1985). Although the Strickland test was formulated
in the context of evaluating the effectiveness of trial counsel,
the test also applies to appellate counsel. Mayo v. Henderson,
13 F.3d 528, 533 (2d Cir. 1994). A habeas petitioner may
demonstrate ineffective assistance of appellate counsel if he can
show that counsel "omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker."
Petitioner claims that he was denied effective assistance of
counsel on direct appeal because counsel "file[d] an appeal on an
incomplete record, leaving out, as admitted, the portion most
critical to the case, that of the Medical Examiner who testified
as to the cause of death. Here, the main issue in this case was
what caused the death of the deceased as defendant was charged
with intentional murder. Likewise, he failed to obtain the
complete record, thus defendant was denied a meaningful and
proper appeal." (Habeas Pet. at 5.)
We have reviewed the trial court record and find petitioner's
claim of ineffective assistance of appellate counsel to be
without merit. As discussed above, petitioner must demonstrate
both deficient performance and prejudice. To demonstrate
deficient performance, petitioner must show that counsel's
performance was "objectively unreasonable under professional
standards prevailing at the time." Grady v. Artuz, 931 F. Supp. 1048,
1061 (S.D.N.Y. 1996). Here, appellate counsel brought five
issues before the Appellate Division, set forth in a thirty-two
page brief that extensively cited the trial record. Petitioner
does not point to any argument counsel omitted; rather,
petitioner appears to claim only that counsel failed to file a
complete record on appeal and failed to consider the full
testimony of the medical examiner.
However, we need not decide whether counsel's performance was
deficient, as petitioner has failed to make a showing of
prejudice. The Supreme Court has stated that "[i]f it is easier
to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that
course should be followed." Strickland, 466 U.S. at 697, 104
S.Ct. at 2069.
Respondent states in its memorandum of law in opposition to the
petition that appellate counsel initially omitted portions of the
trial transcript from the record. However, according to
respondent, "[i]n the course of the preparation of respondent's
brief, members of the District Attorney's Office discovered that
Dr. Louis Roh's direct testimony was missing from the trial
transcripts. The fact of the missing transcripts was promptly
reported to the Appellate Division, which in turn directed
counsel to obtain those transcripts." (Resp.Mem. at 19-20.)
Petitioner's appellate brief highlighted testimony from both
the medical examiner and a cardiologist in support of
petitioner's contention that "[t]he People failed to show a
sufficient nexus connecting the acts of this defendant to the
death of the victim in this case."*fn3 (Pet'r App.Br. at 6.) In
the appellate brief, there is an extensive review of trial
testimony by Dr. Anthony
Pucillo, a cardiologist, regarding the victim's history of heart
disease and his opinion that cigarette smoking and job stress
could have triggered a heart attack in a person with the level of
heart disease exhibited by the victim. (Id. at 7-8.) Appellate
counsel also outlined Dr. Pucillo's opinion on the impact cocaine
use could have had on an individual with advanced heart disease
such as the victim, and pointed to trial testimony that the
victim drank alcohol and smoked crack cocaine. (Id. at 9-10.)
In the appellate brief, counsel also addressed trial testimony
by Dr. Roh, the medical examiner who performed the autopsy on the
victim, which corroborated Dr. Pucillo's opinion that alcohol,
cigarette smoking and cocaine use could have caused the victim's
heart attack. (Id. at 10.) Counsel further pointed to testimony
from Dr. Roh that it could have taken six to twelve hours before
changes to the victim's heart as a result of a fresh heart attack
became apparent, (id.), and argued that "[t]he trial contained
ample evidence to show that it was difficult to pinpoint with any
medical accuracy the exact time that Mr. Jewell suffered this
heart attack." (Id. at 14.) Counsel argued that because the
victim had advanced heart disease and other stressors such as
alcohol, drugs or work could bring on a heart attack in such a
person, and because the time of the heart attack was
indeterminate, the People failed to prove that the victim died as
a result of the robbery. (Id.)
To demonstrate prejudice, petitioner must show that: "[T]here
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Grady, 931
F. Supp. at 1061-62 (internal citations and quotations omitted).
Here, counsel's initial failure to submit portions of Dr. Roh's
testimony to the Appellate Division was subsequently corrected
and the Appellate Division decided the appeal on a complete
record. Furthermore, the appellate brief emphasized portions of
the medical examiner's testimony and testimony from a
cardiologist relevant to the issue of causation. Accordingly,
there was no prejudice. Petitioner's claim of ineffective
assistance of appellate counsel is thus dismissed on the merits.
C. Alleged Due Process Violations
Petitioner makes two claims that he was denied due process.
First, petitioner claims that the People failed to prove his
guilt beyond a reasonable doubt. Second, petitioner claims that
the jury should have heard evidence of his mental health history
and drug and alcohol use at the time of the incident.
1. Sufficiency of the Evidence Claim
As an initial matter, respondent claims that the due process
claim may not be heard, despite the fact petitioner argued before
the Appellate Division that his conviction went against the
weight of the evidence. Respondent argues that petitioner's
application for leave to appeal to the New York Court of Appeals
was deficient for purposes of preserving the claim for this
Court's review. In his letter to the Chief Justice of the Court
of Appeals, petitioner enclosed his appellate brief and asked the
Court to "consider issues one through five inclusive of the
In Grey, the Second Circuit held that a petitioner who
appended his appellate brief to a letter application to the Court
of Appeals, but who only objected to the Appellate Division's
rejection of one of his arguments in the letter, failed to
present his two other claims to the Court of Appeals. The Court
The fair import of petitioner's submission to the
Court of Appeals, consisting of his brief to the
Appellate Division that raised three claims and a
letter to the Court of Appeals arguing only one of
them, was that the other two had been
abandoned. The only possible indication that the
other two claims were being pressed was the inclusion
of a lengthy brief originally submitted to another
court. This did not fairly apprise the court of the
two claims. We decline to presume that the New York
Court of Appeals has "a duty to look for a needle in
a paper haystack."
Id. at 120 (citing Mele v. Fitchburg Dist. Ct., 850 F.2d 817,
822 (1st Cir. 1988)).
Subsequently, however, the Second Circuit distinguished Grey
in a case whose facts are on point with the instant case. See
Morgan v. Bennett, 204 F.3d 360, 369-70 (2d Cir. 2000). In
Morgan, the Second Circuit held that an initial letter in which
counsel expressly sought review of "all issues outlined in
defendant-appellant's . . . pro se supplemental brief," the
habeas corpus petitioner had fairly presented to the Court of
Appeals an issue that was argued in the supplemental brief. Id.
at 371. See also Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir.
2000) (stating in dictum that "[h]ad appellant more clearly
stated that he was pressing all of the claims raised in the
attached brief, or had his letter made no argument in detail but
rather only `request[ed that the Court of Appeals] consider and
review all issues outlined in defendant-appellant's brief' . . .
the remaining claims would have been fairly presented to the
Court of Appeals") (internal citation omitted). Accordingly, we
find that the rule of Grey v. Hoke is not an obstacle to this
Court's consideration of petitioner's due process claim as to the
weight of the evidence.
We note that in his appellate brief, petitioner did not frame
this claim as a violation of his due process rights, but focused
instead on whether the evidence adduced at trial was sufficient
to prove the elements of felony murder as set forth in N.Y.Penal
Law § 125.5(3), citing only state cases. However, the People, in
their response brief, cited Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in which the Supreme Court
stated that "[t]he Constitution prohibits criminal conviction of
any person except upon proof of guilt beyond a reasonable doubt."
443 U.S. at 309, 99 S.Ct. at 2783. Thus, the state courts were
alerted to the due process issue by virtue of the state's brief.
See Daye, 696 F.2d at 193 n. 5. In addition, in a New York
Court of Appeals opinion cited by both petitioner and the People,
the court cited Jackson for the standard by which to measure
whether sufficient evidence of guilt existed. See Matter of
Anthony M., 63 N.Y.2d 270, 280, 481 N.Y.S.2d 675, 471 N.E.2d 447
(N.Y. 1984) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781).
Furthermore, as the Eastern District of New York recognized in a
case squarely on point with the facts here, a petitioner's
"challenge to the sufficiency of the evidence place[s] his claim
within the ambit of a long line of cases establishing a
defendant's constitutional due process right to protection
against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime charged." Burke v.
Mann, No. 93-CV-5017(RR), 1995 WL 860755, at * 6 (E.D.N Y
Dec.4, 1995). In light of the above, we find that petitioner has
exhausted this claim.
We now turn to the merits of petitioner's due process claim.
The Supreme Court has held that "in a challenge to a state
criminal conviction brought under 28 U.S.C. § 2254 — if the
settled procedural prerequisites for such a claim have otherwise
been satisfied — the applicant is entitled to habeas corpus
relief if it is found that upon the record evidence adduced at
the trial, no rational trier of fact could have found proof of
guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324, 99
S.Ct. at 2791-92. Reviewing the record in the light most
favorable to the prosecution, as we must, we are satisfied that a
rational factfinder could have found petitioner guilty of
second-degree murder under New York law.
The New York Court of Appeals held, in a case in which elderly
victims of crime
succumbed to heart attacks days after the crimes took place, that
there was sufficient proof of causation to support a manslaughter
conviction in one case, and a felony murder conviction in the
other. Matter of Anthony M., 63 N.Y.2d 270, 481 N.Y.S.2d 675,
471 N.E.2d 447. In the felony murder case, an
eighty-nine-year-old man and his wife were robbed in their
apartment, threatened with a knife, bound and left lying on the
floor. Id. at 277, 481 N.Y.S.2d 675, 471 N.E.2d 447. The man
had also been struck in the face. Id. at 278, 481 N.Y.S.2d 675,
471 N.E.2d 447. Later that afternoon the man went to the
hospital, was treated for cuts and bruises, and returned home.
Id. The next day, he saw his personal physician, complaining of
chest pains. The day after that, about fifty-six hours after the
robbery, the man suffered heart failure and died. Id.
At the trial of the defendants for, among other crimes, felony
murder, the victim's physician testified that despite the fact
the victim was overweight and had arteriosclerosis, the victim
was in "good general health." Id. Several medical experts
testified that the direct cause of the victim's death was the
myocardial infarction, but they differed on when the infarction
occurred. One doctor placed the time of the infarction before the
robbery. Id. at 279, 481 N.Y.S.2d 675, 471 N.E.2d 447. The
court held that the medical evidence, viewed from the standard
set forth in Jackson, supported the factfinders' determination
that the defendants' actions were at least a contributing cause
of the fatality. Id. at 281, 481 N.Y.S.2d 675, 471 N.E.2d 447.
In the instant case, there was significant evidence that
petitioner's actions at least contributed to Jewell's death.
First, a police officer testified that petitioner confessed to
entering the trailer where Jewell was staying, striking Jewell on
the head with a rolling pin, taping his arms, legs and mouth, and
taking money from Jewell's wallet and his car keys. (Trial Trans.
Dr. Roh testified that although Jewell had suffered an earlier
heart attack, his death was caused by a "fresh heart attack."
(Id. at 1153.) Dr. Roh further testified that the second heart
attack was stress-induced, in his opinion, by "[t]he fact that
[Jewell] was hit on the head, he was tied up, he was dragged,
involved in this type of altercation, that is certainly a
stressful situation." (Id. at 1156.) Dr. Pucillo, a
cardiologist, testified that following his review of the autopsy
report and other test results, his opinion was "that the patient
died from an episode of sudden death caused by a cardiac rhythm
disturbance related to his coronary artery disease that was
brought on by the physical and mental stress of his situation."
(Id. at 984.) This testimony offers substantial support for a
jury finding that petitioner's acts at the very least contributed
to the victim's death. Petitioner's claim that the evidence was
insufficient to support a guilty verdict is dismissed.
2. Failure of the Jury to Hear of Petitioner's Drug and
Alcohol Use and Mental Health History
Petitioner claims that his due process rights were violated
because the jury did not hear of his mental health problems and
substance abuse. Petitioner did not raise this claim on direct
appeal and the context of this claim is unclear from the face of
the petition. There is no evidence that trial counsel offered
this evidence and it was excluded by the trial court.
Accordingly, this claim must be considered part of petitioner's
claim of ineffective assistance of trial counsel. Although the
claim is barred from being brought in state court, as thus may be
considered exhausted, as discussed, supra, in Part II.A, the
claim must be dismissed for lack of any showing of cause and
prejudice for the default. See also Reyes v. Keane,
118 F.3d 136, 139-40 (2d Cir. 1997) (holding that where petitioner's claim
of ineffective assistance of counsel was deemed exhausted, by
defaulting on that claim in state
court, petitioner had forfeited that claim on federal habeas
review, even though the claim was cited as cause for another
For the reasons set forth above, petitioner's habeas corpus
petition is denied as procedurally barred in part and altogether
without merit. This Court declines to issue a certificate of
appealability, as petitioner has not presented a "substantial
showing of the denial of a constitutional right."
28 U.S.C. § 2253; see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir.
1997), cert. denied, 525 U.S. 953, 119 S.Ct. 384, 142 L.Ed.2d