The opinion of the court was delivered by: John S. Martin, Jr., United States District Judge:
Michael Brooks, who was convicted in the New York State Supreme Court, New York County, on charges of Burglary in the Second Degree, Intimidating a Victim or Witness in the Third Degree and Criminal Possession of Stolen Property in the Fifth Degree, brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate his conviction.
Petitioner raises five issues, which he contends entitle him to relief: 1) a claim that the victim of the theft was acting as an agent for the state when he tape-recorded a conversation with Petitioner; 2) the failure of the prosecution to comply with its discovery obligations; 3) inappropriate disclosure of grand jury material by the prosecutor; 4) ineffective assistance of trial counsel; and 5) a denial of due process by the Appellate Division in refusing to consider claims on the ground that they had not been preserved for appeal.
The State notes that Petitioner failed to exhaust his state remedies as to the fifth issue, but agrees that under 28 U.S.C. § 2254(b)(2), the Court has the discretion to deny unexhausted claims on the merits. Given the fact that, as demonstrated below, this claim is totally lacking in merit, the Court will exercise its discretion and decide the claims on the merits.
Before turning to Petitioner's specific claims, it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 22 U.S.C. § 2254:
(d) 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
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
See generally Williams v. Taylor, 529 U.S. 362
, 120 S.Ct. 1495
(2000). None of the claims asserted by the Petitioner meets this standard.
Petitioner's first claim is based on the unsupported assertion that the victim of the theft, who knew Petitioner, was acting at the direction of the police when he tape-recorded a phone call with Petitioner. Even if one were to assume that the state court was in error in not conducting a hearing prior to trial to address this issue, the record demonstrates that the underlying claim was without merit. The call at issue was one placed by Petitioner to the victim and the victim testified at the trial that he had recorded the conversation on his answering machine without any involvement of the police. See Maine v. Moulton, 474 U.S. 159, 176 (1985).
Petitioner's second claim is that the prosecutor improperly disclosed information obtained in the grand jury to the victim of the theft who was a witness at trial. However, Petitioner's claim presents issues of state law and does not present issues of constitutional dimension. The extent to which matters occurring before a state grand jury may be disclosed by a prosecutor is purely an issue of state law. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989)
As the Supreme Court said in Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991)
We have stated many times that "federal habeas corpus
relief does not lie for errors of state law." Lewis
v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102,
111 L.Ed.2d 606 (1990); see also Pulley v. Harris,
465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29
(1984) Today, we reemphasize that it is not the
province of a federal habeas court to reexamine
state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited
to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.
28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19,
21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per
appropriate discovery were not preserved in the trial court. In any event, even if there had been some inappropriate delay in disclosing the evidence at issue, the evidence was available at trial and there is no showing that any delay in disclosing it prejudiced Petitioner's ability to defend against it.
Petitioner contends that his trial counsel was ineffective in failing to call a witness whose testimony would allegedly have been helpful to the defense. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
The witness who Petitioner faults his counsel for not calling, Mrs. Hughes, had apparently told defense investigators that, although she had never met the victim of the theft, the victim had a telephone conversation with her and he knew that some of the stolen property was in her apartment and he agreed to her holding it. However, Petitioner's counsel sent Petitioner a letter indicating that there were problems with this story since Petitioner never mentioned this claim in either the conversation with the victim that had been recorded or in his grand jury testimony and Mrs. Hughes said she had never met the victim. In these circumstances, the decision not to call Mrs. Hughes was well within the range of tactical strategy that is left to the professional judgment of defense counsel and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.*fn1
Petitioner's final claim is that the Appellate Division denied him due process because it refused to consider his claims concerning the failure to provide timely pretrial delayed disclosure of certain evidence. However, as noted above, all of the evidence was available at trial and Petitioner had not established any prejudice from the delay in making the disclosure.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the ...