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August 2, 2000


federal 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.

C. Petitioner's Claims

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 process.

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 Sentence Claims

Although petitioner argued to the state courts that his conviction arose out of a single continuous act, he failed to fairly present the federal constitutional nature of his claim to either the Appellate Division or the Court of Appeals. The briefs presented to the state courts cite only New York Penal Law § 70.25(2) which states: "When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single continuous act . . . the sentences . . . must run concurrently." However, a claim challenging consecutive sentences fails to present a question of constitutional dimension if the sentence imposed is within the range prescribed by state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Both the Appellate Division and the Court of Appeals held that petitioner's consecutive sentences were proper given the distinction between possessing a gun with the intent to force the victim to leave and shooting a victim after she refused to do so. See Salcedo, 92 N.Y.2d at 1021-22; Salcedo, 666 N.Y.S.2d at 174 (citing People v. Brown, 80 N.Y.2d 361 (1992)). Thus, both courts examined the state law governing consecutive sentences and found that petitioner's sentence fell within the permitted range as the murder and weapons convictions involved separate and distinct crimes.

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 rehabilitation.

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 ...

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