juror without either Stone or his counsel present, (2)
prosecutorial misconduct based on statements made during
summation, and (3) insufficient evidence to support the
intentional murder conviction. Petition at 7-8.
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). Under the Antiterrorism and Effective Death Penalty
Act of 1996 ("the AEDPA"), a federal court is permitted to deny a
state prisoner's habeas corpus petition on the merits of the
claims for which the prisoner has exhausted available state
remedies, even though the petition contains unexhausted claims.
28 U.S.C. § 2254(b)(2). However, failure to timely exhaust state
remedies will result in procedural default of the claims.
Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993), cert.
denied, 510 U.S. 1078, 114 S.Ct. 895, 127 L.Ed.2d 87 (1994);
Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000).
For a federal habeas claim to be exhausted, it must be
presented to the state appellate court in the same factual and
legal context in which it appears in the federal habeas petition.
Daye v. Attorney General of the State of New York,
696 F.2d 186, 191 (2d Cir. 1982), cert. denied, 464 U.S. 1048, 104 S.Ct.
723, 79 L.Ed.2d 184 (1984). In order to be subject to federal
collateral review, a habeas claim must be the "same claim" as
that raised in the state courts. Velasquez v. Senkowski, 1991
WL 159054 (E.D.N.Y. 1991). To establish that a federal claim was
raised in state court, a petitioner must, in the state courts,
(1) have relied on federal case law employing federal
constitutional analysis; (2) relied on factually similar state
cases employing federal constitutional analysis; (3) asserted the
claim "in terms so particular as to call to mind a specific right
protected by the Constitution"; or (4) alleged a set of facts
well within ordinary constitutional litigation. Daye, supra, at
In this case, the record indicates that all the grounds on
which Stone seeks habeas relief were, to some extent, presented
to the state court on direct review. Specifically, in his brief
to the Appellate Division on his direct appeal, Stone's second
claim challenged several jury selection rulings including
challenges for cause made by Stone as to prospective jurors Kelly
Berst and Robert Harrington, Petitioner's Appellate Brief at
16-21, as well as the an in camera proceeding at which neither
Stone nor his counsel were present. Id. at 22-31. However, in
his application for leave to appeal to the Court of Appeals,
Stone refers only to the for cause challenge as to Harrington and
the in camera proceeding. Petitioner's Application for Leave to
Appeal to the Court of Appeals, at 1. Accordingly, Stone's first
ground for habeas relief is not exhausted for purposes of federal
habeas jurisdiction insofar as it challenges the denial of his
for cause challenge as to Berst.
Moreover, Stone is precluded from seeking further direct review
by the Court of Appeals on this claim and his failure to exhaust
it on direct review also forecloses him from seeking collateral
relief from the New York courts. Strogov v. Attorney General of
the State of New York, 191 F.3d 188, 193 (2d Cir. 1999) (citing
N YRules of Court, Court of Appeals, § 500.10(a) (McKinney
1999), and N.Y.Crim.Proc.Law § 440.10(2)(c) (McKinney 1994)).
Accordingly, Stone has procedurally defaulted on this claim.
Jordan, supra, at 198-99; Washington v. James, 996 F.2d 1442,
(2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895, 127
L.Ed.2d 87 (1994). Absent a showing of cause and prejudice for a
default, Stone is barred from raising this claim on federal
habeas review. Murray v. Carrier, 477 U.S. 478, 490-91, 106
S.Ct. 2639, 91 L.Ed.2d 397 (1986); Carter v. United States,
150 F.3d 202, 205 (2d Cir. 1998).
For purposes of testing the availability of federal habeas
jurisdiction, "[c]ause" is established by showing "some objective
factor external to the defense [which] impeded counsel's efforts
to comply with the State's procedural rule." Murray v. Carrier,
477 U.S. at 488, 106 S.Ct. 2639. Included among such factors are
constitutionally ineffective assistance of counsel, interference
by government officials rendering compliance with the state
procedural rule impracticable, or situations in which the factual
and legal basis for the claim was not reasonably available to
counsel at the time of default. Murray, supra, at 488, 106
S.Ct. 2639. "`Prejudice' is established by showing that the
claimed error worked to [the petitioner's] actual and substantial
disadvantage." United States v. Frady, 456 U.S. 152, 170, 102
S.Ct. 1584, 71 L.Ed.2d 816 (1982). A fundamental miscarriage of
justice is established by showing that the alleged constitutional
violation "has probably resulted in the conviction of one who is
actually innocent" of the crime for which he has been convicted.
Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. 2639.
Stone asserts no reasons for failing to present the defaulted
portion of his first ground in state court. As such, Stone has
failed to demonstrate good cause for the procedural default and
this court, therefore, lacks jurisdiction to consider it.
The "mixed" nature of Stone's petition, presenting both
exhausted and unexhausted claims, does not, however, require
dismissal on that ground. 28 U.S.C. § 2254(b)(2). Accordingly, in
the interest of judicial economy the court will review Stone's
remaining claims which have not been procedurally defaulted.
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. Pagan v. Keane, 984 F.2d 61, 63 (2d Cir. 1993);
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), 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.
The court is in possession of the state record relevant to
Stone's claims, including the trial transcript and challenged
statements. Stone 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, an evidentiary hearing is unnecessary.
The AEDPA "also effected some changes upon the nature and
extent of review that a federal court can conduct in considering
a § 2254 petition." Berger v. Stinson, 97 F. Supp.2d 359, 364
(W.D.N.Y. 2000) (Larimer, C.J.). Specifically,
28 U.S.C. § 2254(d) now provides that
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonably determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1) and (2).
Justice O'Connor in Williams v. Taylor, 529 U.S. 362, 120
S.Ct. 1495, 1505, 146 L.Ed.2d 389 (2000) (concurring opinion in
which four other Justices joined, thus constituting a majority of
the court on this issue), explained that § 2254(d)(1) "modifies
the role of federal habeas courts in reviewing petitions filed by
state prisoners," by giving "independent meaning to both the
`contrary to' and `unreasonable application' clauses of [§
2254(d)(1)]." Williams, supra, 120 S.Ct. at 1518, 1519. A state
court decision would be "contrary to" the Supreme Court's clearly
established precedent if the state court either arrives at a
conclusion opposite to that reached by the Supreme Court on a
question of law or, confronted by facts "materially
indistinguishable from a relevant Supreme Court precedent,"
arrives at a result opposite to that of the Supreme Court. Id.
at 1519. Nevertheless, "a run-of-the-mill state-court decision
applying the correct legal rule from our cases to the facts of a
prisoner's case would not fit comfortably within § 2254(d)(1)'s
`contrary to' clause." Id. at 1520.
Justice O'Connor further explained that a state court decision
would involve an "unreasonable application" of clearly
established federal law as determined by the Supreme Court if
"the state court identifies the correct governing legal rule from
[the Supreme] Court's cases but unreasonably applies it to the
facts of the particular state prisoner's case." Williams,
supra, at 1520. "Simply stated, a federal habeas court making
the `unreasonable application' inquiry should ask whether the
state court's application of clearly established federal law was
objectively unreasonable." Id. at 1521. See also Clark v.
Stinson, 214 F.3d 315 (2d Cir. 2000) (interpreting Williams,
supra, as adopting an "`objectively unreasonable standard as the
decisional guide'" as to whether federal law has been
unreasonably applied, rather than an "incorrect" or "erroneous"
In other words, § 2254(d)(1) presents two avenues by which a
habeas petitioner may obtain relief. Habeas relief may be granted
under the "contrary to" prong if the state court either failed to
invoke the correct legal principle at issue or construed the
relevant federal law contrary to the Supreme Court's construction
of the relevant constitutional rule established by the Court in a
case that is on point with the issue presented in the habeas
petition. If no such Supreme Court caselaw exists, the habeas
court must then consider whether the state court's decision is an
objectively unreasonable application of the relevant federal
rule, as established by the Supreme Court, to the issues and
facts presented by the case under review.
As discussed infra, the record does not demonstrate that in
the relevant state court decisions, the correct principles of
federal law, determined by the Supreme Court as required under §
2254(d)(1), were not improperly identified or incorrectly
applied. Rather, such decisions can be characterized as
"from which [Stone] is not entitled to relief under § 2254."
Berger, supra, 97 F. Supp.2d at 368 (citing Williams, supra,
120 S.Ct. at 1520). Nor has Stone demonstrated that the decision
of the Appellate Division, affirming this conviction, was
"objectively unreasonable," Williams, supra, at 1520, in
applying such principles to the facts of this case.
1. Challenges to Jury Selection
As stated, Stone challenges the jury selection procedures on
two grounds including that Judge Rogowski erroneously denied
Stone's for cause challenge with regard to prospective juror
Robert Harrington and that the in camera conference held with
prospective juror Stephen Barrett, at which neither Stone nor his
attorney was present, violated his constitutional right to due
process. Petition at 7. In opposition, Respondent asserts that
Stone has failed to provide anything rebutting the state court's
decision, as required under 28 U.S.C. § 2254(d). Respondent's
Memorandum at 5.
A. Denial of Challenge for Cause
Stone asserts that he was denied due process when his challenge
for cause as to prospective juror Robert Harrington was
erroneously denied. Specifically, Stone maintains that
Harrington's inability to unequivocally state, in response to
counsel's questioning, that he could follow the court's
instructions and not draw an adverse inference from the fact that
Stone did not take the stand demonstrated sufficient cause to
exclude the juror such that the denial of Stone's challenge for
cause denied him of due process.
The following exchange occurred during the jury voir dire:
Ms. Kosmerl: Would you expect a defense or my job or
Earl Stone's job to be to convince you that he was
Mr. Harrison: Well, I would say it would be a
Ms. Kosmerl: Does that mean that, well, as Judge
Rogowski told you at this point we don't know
whether he's going to testify or not, that's rarely
a decision made at this juncture. Would you feel
that someone should take the stand and testify at a
Mr. Harrison: I really don't know that much about the
law. I can only say, you know, if a person were
truly innocent they might want to say something on
their own behalf. That's just a personal feeling.
Ms. Kosmerl: As the Judge will instruct, if the law
demands that you not consider that, you would be
able to do that?
Mr. Harrison: I believe so.
Stone challenged Harrison for cause arguing that Harrison's
statement indicated he was not sure of his ability to remain
objective. (VT.521-22). Judge Rogowski denied the challenge and
Mr. Harrison was seated on the jury that convicted Stone.
The Sixth Amendment guarantees a defendant the right to a trial
by an impartial jury. Duncan v. Louisiana, 391 U.S. 145, 159,
88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). It is within the trial
court's discretion whether to grant or deny a challenge for cause
and a denial of such a challenge will not support a petition for
habeas corpus relief unless the asserted disqualifying fact was
so prejudicial that the refusal deprived the defendant of a
fundamentally fair trial. Duran v. Keane, 1997 WL 204312, *2
(N.D.N.Y. 1997) (citing Sudds v. Maggio, 696 F.2d 415, 416 (5th
Cir. 1983)). In considering a petition for habeas relief under §
2254(d), the state trial court's conclusion that the jury was
impartial is entitled to a presumption of correctness. Knapp v.
Leonardo, 46 F.3d 170, 175-76 (2d Cir. 1995), cert. denied,
515 U.S. 1136, 115 S.Ct. 2566, 132 L.Ed.2d 818 (1995) (citing
Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994) (trial court's
findings on jury bias entitled to § 2254(e)(1) (formerly
§ 2254(d)) presumption of correctness)). According to the Supreme
Court, "the trial court's findings of impartiality [may] be
overturned only for `manifest error.'" Patton v. Yount,
467 U.S. 1025, 1031, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (quoting
Irvin v. Dowd, 366 U.S. 717, 724, 81 S.Ct. 1639, 6 L.Ed.2d 751
In particular, it is the petitioner's burden to show the
"`actual existence of such an opinion in the mind of the juror as
will raise the presumption of partiality.'" Irvin, supra, at
723, 81 S.Ct. 1639 (quoting Reynolds v. United States,
98 U.S. 145, 157, 25 L.Ed. 244, (1878)); see also Murphy, 421 U.S. 794,
800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) (defendant must show
actual existence of prejudice to overcome juror's assurances of
impartiality). Further, the mere existence of any preconceived
notion as to a defendant's guilt or innocence is, without more,
insufficient to rebut the presumption of impartiality provided
the juror demonstrates he "can lay aside his impression or
opinion and render a verdict based on the evidence presented in
court." Irvin, supra, at 723, 81 S.Ct. 1639.
In this case, the record does not support a finding that
Harrison's presence on the jury resulted in a jury that was other
than fair and impartial. Specifically, Harrison stated in
response to Ms. Kosmerl's question that he personally felt that
"if a person were truly innocent [he] might want to say
something on [his] own behalf." (VT. 499) (emphasis added).
Harrison's use of the equivocal word "might" indicates that
Stone's failure to testify on his own behalf would not
necessarily cause Harrison to find Stone guilty. Further, in
response to Ms. Kosmerl's next question regarding whether
Harrison could abide by Judge Rogowski's instruction that under
the law, the defendant's failure to take the stand was not to be
considered, Harrison responded, "I believe so." Id. According
to the voir dire record, the matter was not pursued further by
Stone's counsel. The record thus demonstrates that even if
Harrison had any preconceived notion that Stone was required to
prove his innocence or that Stone's failure to take the stand
could be interpreted as an indication of his guilt, Harrison's
response that he believed himself capable of setting aside such
an idea in accordance with Judge Rogowski's instructions on the
law establishes that Stone's Sixth Amendment right to a fair and
impartial jury was not violated by Harrison's presence on the
jury. In contrast, Stone has not presented anything establishing
"the actual existence of such an opinion in the mind of the juror
as will raise the presumption of partiality." Irvin, supra, at
723, 81 S.Ct. 1639. As such, Stone has failed meet his burden of
proof as to this argument.
Accordingly, Stone's petition for habeas relief is, on this
B. Presence During In Camera Conference with Prospective
Stone challenges his absence from an in camera conference at
which a prospective juror informed Judge Rogowski of a
threatening telephone call received the previous evening from
someone who was incarcerated in the Erie County Holding Center.
Petition at 8. Stone maintains that the in camera proceeding
thus violated his right to counsel and to confrontation. Id.