habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be
unreasonable." Id. at 1522.
Thus, following Williams, the power of a federal habeas court
to grant a state prisoner's application with respect to claims
adjudicated on the merits in state court is sharply
circumscribed. The newly articulated standard prohibits a federal
habeas court from substituting its own judgment for that of the
state-court judge, requiring a great deal of deference to the
state-court judgment. Moreover, the standard set forth in
Williams abrogates the de novo review that was required under
Brown v. Allen, 344 U.S. 443 (1953).*fn1
In the instant case, § 2254(d) applies to petitioner's
claims for prosecutorial misconduct and ineffective assistance of
counsel. These claims — which present questions of law or
mixed questions of law and fact rather than pure fact issues
— were raised in petitioner's pro se supplemental brief but
were found to lack merit. See Salcedo, 666 N.Y.S.2d at 174. The
fact that these claims were summarily dismissed does not alter my
conclusion that they were adjudicated on the merits for purposes
of § 2254(d). See, e.g., Thomas v. Taylor, 170 F.3d 466, 474
(4th Cir.), cert. denied, 527 U.S. 1016 (1999) ("[T]he phrase
`adjudication on the merits' in section 2254(d) excludes only
claims that were not raised in state court, and not claims that
were decided in state court, albeit in summary fashion."); Thomas
v. Davis, 192 F.3d 445, 455 (4th Cir. 1999) (§ 2254(d)
applies to all claims adjudicated on the merits, i.e., "those
claims substantively reviewed and finally determined as evidenced
by the state court's issuance of a formal judgment or decree");
Hannon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997) (perfunctory
state-court rulings are nonetheless evaluated pursuant to §
2254(d) for reasonableness).
Summary dismissal makes it more difficult, however, to review
the state court's application of federal law, thus lessening the
practical significance of the new standard. See Weeks v.
Angelone, 4 F. Supp.2d 497, 522 (E.D.Va. 1998) ("In cases where
there is no indication of how the state court came to its
decision, it will obviously be more difficult for the federal
court to judge whether the ultimate determination
involved an unreasonable application of federal law."), appeal
denied and pet. dismissed, 176 F.3d 249 (4th Cir. 1999).
Nonetheless, this added difficulty does not abrogate the standard
of heightened deference. A federal habeas court must review the
state court ruling to determine whether there is a violation of
the United States Constitution. See Edwards v. Murphy,
96 F. Supp.2d 31, 42 (D.Mass. 2000); see also Cardwell,
151 F.3d at 339 (where the state court decision fails to articulate
any rationale for its adverse determination of petitioner's claim,
federal habeas court cannot review state court's "application
of clearly established Federal law" but must independently
ascertain whether the record reveals a constitutional violation).
In effect, where a state court summarily dismisses a petitioner's
habeas claim, a federal habeas court is forced to engage in a
type of de novo review — one which considers the facts of
petitioner's case anew but employs the more deferential
reasonableness standard described above.
1. Trial Court's Jury Instruction on Petitioner's Right
to Remain Silent
As a preliminary matter, because petitioner raised his Fifth
and Fourteenth Amendment challenges to the trial court's charge
in his state appeals, he fully exhausted his jury instruction
claim which is therefore eligible for federal habeas review.
According to both petitioner and respondent, the trial judge
went beyond merely reading the standard charge regarding a
defendant's right not to testify as set forth in the New York
Criminal Jury Instructions § 7.05. Petitioner alleges that
the trial judge used non-neutral language and repeatedly drew
attention to petitioner's decision not to testify. In addition,
petitioner contends that the charge suggested to the jury that
petitioner's decision was a tactical move, as opposed to a right,
violating his right to remain silent and his right to due
Both the Appellate Division and the Court of Appeals dismissed
this claim based on petitioner's failure to adequately object to
the jury instruction. See Salcedo, 92 N.Y.2d at 1021; Salcedo,
666 N.Y.S.2d at 174. As a consequence of the inadequate
objection, petitioner failed to preserve the issue for appeal.
See Salcedo, 666 N.Y.S.2d at 174 (citing People v. Nuccie,
57 N.Y.2d 818 (1982)). The Appellate Division also found that had it
reached the merits of this claim, it would have affirmed the
trial court because the expansion of the standard charge was
minor. See Salcedo, 666 N.Y.S.2d at 174 (citing People v.
Santiago, 599 N.Y.S.2d 959 (1st Dep't 1993)).
A claim may be procedurally barred if the state court decision
rested on an independent and adequate state law ground. See
Coleman v. Thompson, 501 U.S. 722, 729 (1991). This doctrine
"applies to bar federal habeas [review] when a state court
declined to address a prisoner's federal claim because the
prisoner had failed to meet a state procedural requirement." Id.
at 729-30. In this case, the New York State courts based their
decisions on the contemporaneous objection rule which bars
appellate review of any issue not objected to at trial. See
People v. Nuccie, 57 N.Y.2d at 818. This procedural bar is an
independent and adequate ground for the state courts' dismissals
of petitioner's jury instruction claim. Accordingly, I am barred
from addressing the merits of this claim.
2. Single Continuous Act Doctrine and the Excessive
Although petitioner's claim is not subject to habeas review in
its present form, it could be reviewed if construed as a claim of
cruel and unusual punishment in violation of the Eighth
Amendment.*fn2 Petitioner is arguably alleging an excessive
punishment in light of mitigating factors such as his first
offender status, excellent work record and high probability of
As a general matter, courts must give deference to the length
of sentence deemed appropriate by the legislature. See Rummel v.
Estelle, 445 U.S. 263, 271-74 (1980) (finding legislature's
interest of preventing recidivism is valid and justifies a life
sentence). A court may refuse to exercise deference only in
extreme circumstances such as where the punishment is barbaric or
vastly disproportionate to the crime committed. See Clark v.
Bennet, 98 Civ. 1445, 1999 WL 360205, at *7 (E.D.N.Y. May 28,
1999) (citing Solem v. Helm, 463 U.S. 277 (1983), which found
sentence of life without possibility of parole disproportionate
to crime of uttering a "no account" check for $100).
This principle applies with equal force to an evaluation of the
constitutionality of consecutive sentences. The Second Circuit
has stated that an "`[E]ighth [A]mendment analysis focuses on the
sentence imposed for each specific crime, not on the cumulative
sentence.'" Id. (quoting United States v. Aiello, 864 F.2d 257,
265 (2d Cir. 1988)). Again, the imposition of consecutive
sentences violates the Eighth Amendment only under extraordinary
circumstances. See id. (citing United States v. Jaramillo-Montoya,
834 F.2d 276, 279 (2d Cir. 1987) which found the imposition ...