The opinion of the court was delivered by: Kimba M. Wood, District Judge.
Pro se petitioner challenges his state court convictions for felony
murder and robbery through this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The petition was referred to Magistrate
Judge Grubin, who dealt with a number of preliminary matters; the Court
hereby withdraws the reference. Petitioner alleges that his conviction
was contrary to federal law on a number of grounds, most significantly
that he was deprived of a fair trial by admission into evidence of a
knife carried on his person, but never brandished or used, during the
robbery and murder. For the reasons stated below, the Court denies the
A. The Crime, Investigation, and Trial
On October 12, 1990 a jury convicted petitioner of murder in the second
degree and robbery in the first and second degrees after trial in New
York Supreme Court, New York County, before Justice Richard B. Lowe III.
The evidence at trial showed that petitioner participated in an aborted
drug transaction that escalated into a robbery and ultimately a murder.
The State sought both robbery and murder convictions on the theory that
petitioner acted in concert with the individual (the "stabber") who
fatally stabbed the victim, Michael Fedorischak, after the stabber
grabbed the money Fedorischak had offered for drugs.
At approximately four o'clock in the morning on Saturday, August 12,
1989, Fedorischak and his brother-in-law Greg Randolph drove from New
Jersey into Manhattan in order to buy crack cocaine. Near the Port
Authority Bus Terminal they met the stabber, who offered to sell them two
vials of crack; because Randolph and Fedorischak wanted more crack, they
allowed the stabber into their truck to direct them to a larger
supplier. The stabber then brought them to a location on Eighth Avenue
near 43rd Street, a wellknown crack market at the time.
In response to the stabber's call, petitioner and another man,
identified by his "lazy eye," approached the curb side of the truck,
where Fedorischak was in the passenger seat; the stabber left the truck
to join the others on the sidewalk. Petitioner offered to sell
Fedorischak some crack cocaine, but an argument ensued over its price and
quality. At some point, Fedorischak pulled several bills from his pocket
and held the money in his fist. A scuffle ensued in the course of which
petitioner grabbed Fedorischak's wrist, and the stabber seized the money.
When Fedorischak moved to take back the money, the stabber
plunged a knife into his chest, inflicting a wound that later proved
During the incident Conrad Hunter, a member of the area's street life
who was familiar with both petitioner and the man with the lazy eye,
approached Fedorischak's truck, spoke briefly with Randolph, and then
moved to the passenger side as the exchange escalated. After the
stabbing, one of the men alongside the truck threatened Randolph, who
then rapidly pulled the truck away from the curb to leave the scene and
search for help. Hunter ran after the truck, which was quickly pulled
over by a police patrol. With the assistance of Randolph and Hunter,
police arrested petitioner the night of August 12, 1989, but the stabber
was never found.
After his arrest and identification as a participant in the incident,
petitioner made a videotaped statement describing the events and his
role; the statement was played at trial. In this statement, petitioner
describes an exchange between himself and the stabber, after Randolph and
Fedorischak have driven off, in which petitioner felt threatened by and
angry at the stabber; during this exchange, petitioner brandished a
folding knife that he had been carrying in a "fanny pack" on his waist.
The knife was recovered upon his arrest. Over defense objections,
references to the knife were not redacted from the videotape played to
the jury, the knife itself was admitted into evidence at trial, and the
State argued to the jury that petitioner's possession of the knife
demonstrated his intent to commit a violent crime.
The State's case at trial centered on the eyewitness testimony of
Randolph and Hunter, the latter testifying pursuant to a cooperation
agreement. A previous trial ended in a hung jury.
Following entry of judgment on December 17, 1990, petitioner appealed
his conviction to the Appellate Division, First Department, contending
that (1) there was insufficient evidence to establish petitioner's
accomplice liability for the robbery, upon which the felony murder
charges also relied, and that the trial court gave incorrect instructions
on accomplice liability; (2) the trial court erred in allowing evidence
of and argument concerning petitioner's folding knife; (3) Hunter's
direct testimony should have been struck from the record because he
invoked his privilege against self-incrimination on cross-examination;
(4) the trial court incorrectly gave an interested-witness instruction
with reference to petitioner's videotaped statement; and (5) the trial
court incorrectly classified petitioner as a predicate felon for
The Appellate Division unanimously upheld petitioner's conviction,
finding introduction of the knife evidence to have been harmless error,
but it remanded for resentencing. See People v. Sims, 209 A.D.2d 192,
618 N.Y.S.2d 283 (1st Dep't 1994). The Court of Appeals then denied
petitioner's application for leave to appeal the Appellate Division's
decision. See People v. Sims, 84 N.Y.2d 1015, 622 N.Y.S.2d 927,
647 N.E.2d 133 (1994). On remand, petitioner was sentenced to concurrent
prison terms of (1) from fifteen years to life, (2) from four to twelve
years, and (3) from two and one-third to eight years; he is currently
Petitioner presents to this Court the same claims made before the
Appellate Division. The petition is dated April 18, 1997 and was received
in the Court's Pro Se Office on April 25, 1997. In a Report and
Recommendation dated January 8, 1998, Magistrate Judge Grubin recommended
dismissing the petition as untimely under the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), see Peterson v. Demskie, 107 F.3d 92
(2d Cir. 1997) (allowing a "reasonable time" from the AEDPA's effective
date, but not necessarily a full year, to file habeas corpus petitions
challenging convictions that
became final prior to the AEDPA's effective date); Magistrate Judge
Grubin subsequently vacated the Report on July 9, 1998, following the
Second Circuit's clarification that any petition filed by April 24, 1997
is timely under the AEDPA. See Ross v. Artuz, 150 F.3d 97 (2d Cir.
1998). The Court adopts Magistrate Judge Grubin's inference that, given
its arrival on April 25, 1997, the petition was timely filed under Ross.
See Dory v. Ryan, 999 F.2d 679, 681 (2d Cir. 1993) (holding that the date
of "filing" for pro se incarcerated litigants is the date the submission
is delivered to prison officials for mailing).
As detailed below, all but one of petitioner's claims are procedurally
barred by his failure on direct appeal to pursue them to the New York
Court of Appeals. His claim regarding introduction of the knife evidence
was properly exhausted but fails on its merits, although not without
raising substantial questions concerning the fairness of the trial.
A. Standard for Habeas Corpus Relief
A federal district court may issue a writ of habeas corpus on behalf of
a person incarcerated pursuant to a state criminal conviction only when
that custody violates "the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a). Petitioner bears the burden of proving
such a violation by a preponderance of the evidence. See Jones v. Vacco,
126 F.3d 408, 415 (2d Cir. 1997). Habeas corpus relief may not be granted
unless petitioner has first exhausted his state court remedies. See
28 U.S.C. § 2254(b). Pursuant to the AEDPA, a claim already
adjudicated on its merits in state court may not be the basis for federal
habeas relief unless the state court's legal conclusions were "contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,"
id. § 2254(d)(1), or its factual determinations were "unreasonable .
. . in light of the evidence presented in the State court proceeding,"
id. § 2254(d)(2).
B. Exhaustion of State Remedies
As respondent concedes, petitioner properly exhausted his state
remedies regarding the knife evidence. (Memorandum of Law In Support of
Answer Opposing Petition For A Writ of Habeas Corpus ("Resp. Mem.") at
14.) On appeal, petitioner presented his theory that admission of the
knife evidence violated his federal constitutional right to a fair
trial, (Appendix In Support of Answer Opposing Petition for a Writ of
Habeas Corpus ("App."), Exh. A, Brief for Defendant-Appellant
("Petit.Brief") at 45), and he subsequently sought the Court of Appeals'
leave to appeal the Appellate Division's ruling that admission of the
knife evidence was harmless error. (App., Exh. E, Criminal Leave
Application ("Leave Appl.").)
With respect to the other three claims (the "three claims"), however,
petitioner's application for leave to appeal contained no more than a
vague closing offer to "respond at your convenience" to "any questions
about this [the knife] issue, or the other issues raised in this case."
(Leave Appl. at 3.) Because petitioner may neither file a second
application for leave to appeal nor seek collateral relief in state court
based on claims addressed on their merits on direct appeal, see Bossett
v. Walker, 41 F.3d 825, 829 (2d Cir. 1994); Grey v. Hoke, 933 F.2d 117,
120 (2d Cir. 1991), the three claims are also deemed to be exhausted. See
Bossett, 41 F.3d at 829; Grey, 933 F.2d at 120.
When, however, a habeas corpus petitioner exhausts his state remedies
only by defaulting on an opportunity to pursue further relief on the
merits, "the procedural bar that gives rise to exhaustion provides an
independent and adequate statelaw ground for the conviction and
sentence, and thus prevents federal habeas corpus review of the defaulted
claim, unless the petitioner can demonstrate cause
and prejudice for the default." Gray v. Netherland, 518 U.S. 152, 162,
116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Here, petitioner defaulted on his
opportunity to raise the three issues before the Court of Appeals by
making no more than a passing allusion to "other issues." Court of
Appeals Rule 500.10(a) requires that criminal leave applications "identify
the issues on which the application is based." General references to
"other issues" are insufficient to apprise the Court of Appeals of the
factual and legal grounds of those issues. See Thebner v. Miller,
788 F. Supp. 714, 717 (E.D.N.Y. 1992); Marrero v. Keane, No. 93 Civ.
3573(PKL), 1995 WL 66660, *1 (S.D.N.Y. Feb. 16, 1995); cf. Grey, 933 F.2d
at 120 (holding that petitioner failed to preserve for habeas review
those claims raised in appellate brief attached to application for leave
to appeal but not mentioned in the application letter itself).
Petitioner offers no cause for his failure to raise the three claims
with more specificity, and no cause is apparent from the record. See
Bossett, 41 F.3d at 829 (noting that legitimate grounds for default are
ineffective assistance of counsel, state interference with compliance,
and claims not reasonably available to counsel at the time of default).
Therefore, the Court finds that petitioner defaulted on the three claims
without good cause and does not reach their merits. See Grey, 933 F.2d at
121 (holding that claims on which petitioner procedurally defaults "must
. . . be dismissed without reaching the merits"); Bossett, 41 F.3d at 829
C. Improper Admission of the Knife Evidence
Petitioner claims that admission of the knife evidence violated the Due
Process Clause of the Fourteenth Amendment because it had the sole
purpose of suggesting his propensity for violence. The prosecutor's
summation allegedly exacerbated this impropriety through the following
What would you have a knife for? The answer is, you'd
have a knife to use force if it was necessary to do
the things you had to do. Otherwise there's no need
to carry a knife. It shows that he was ready to use
additional force himself, if necessary, and that he
knew force was a real possibility of what might
(October 10, 1990 Trial Transcript of People v. Sims, No. 9315-89, before
Hon. Richard B. Lowe III ("Trial Trans.") at 414-15.) The Appellate
Division rejected petitioner's argument on its merits, and although the
Court considers the question a close one, the state court's decision was