The opinion of the court was delivered by: David G. Larimer, United States District Judge
Petitioner Quincy L. Walker ("Walker") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Steuben County Court on one count of sodomy and three counts of sexual abuse. Walker contests his conviction on the following grounds: (1) he was denied a speedy trial; (2) his appearance in prison clothing prejudiced his right to a fair trial; (3) the prosecutor engaged in misconduct on summation; and (4) his trial counsel was ineffective. For the reasons set forth below, Walker's § 2254 petition is dismissed.
On August 26, 1995, Walker was brought in for questioning by the Steuben County Police Department after it received reports that Walker had sexually molested the ten year-old daughter of his then-girlfriend. After being read his Miranda rights, Walker gave a statement confessing to having engaged in sexual contact with the complainant and was placed under arrest. The Grand Jury indicted Walker on February 27, 1996 on charges of sodomy in the first degree and three counts of sexual abuse in the first degree.
Walker was tried before a jury in Steuben County Court (Bradstreet, J.) on October 8-10, 1996. At trial, Walker's statement to the police was introduced into evidence. Walker denied that he ever confessed as set forth in the statement, which he claimed was the product of coercion by the police. The jury returned a verdict finding Walker guilty on all four counts. Walker was sentenced, as a predicate felon, to consecutive terms of incarceration aggregating 15 to 30 years. Walker appealed to the Fourth Department, which unanimously affirmed his conviction on March 31, 1999. People v. Walker, 259 A.D.2d 1026 (4th Dept. 1999). The Court of Appeals denied leave to appeal on August 17, 1999. People v. Walker, 93 N.Y.2d 1029 (1999). This federal habeas petition followed.
Before seeking a writ of habeas corpus in federal court, Walker must have exhausted all available state remedies either on direct appeal or through a collateral attack of his conviction. 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 115 S.Ct. 1436 (1995). The exhaustion of state remedies requirement means that Wilson must have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). To properly exhaust a claim, Wilson must have fairly apprised the state court of the claims's federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20; Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (petitioner must have informed the state court of both the factual and legal premises of the claim asserted in federal court), cert. denied, 464 U.S. 1048 (1984).
An unexhausted claim will be deemed exhausted if state procedural rules bar the petitioner from raising the claim before the New York Court of Appeals. Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (a petitioner need not present his federal claim to a state court "if it is clear that the state court would hold the claim procedurally barred") (quotations omitted); see also 28 U.S.C. § 2254(b)(1)(B).
Federal habeas review of a procedurally defaulted claim is only possible if the petitioner "can show `cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice,'" i.e., a showing of "actual innocence." Harris v. Reed, 489 U.S. 255, 262 (1989); accord Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
Because the petition, which was filed on November 5, 1999, postdates the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA's revisions of 28 U.S.C. § 2254 govern this proceeding. See Williams v. Taylor, 529 U.S. 362, 402 (2000). When Congress enacted AEDPA, it significantly curtailed the role of federal habeas courts in reviewing petitions filed by state prisoners. Id. A federal court may not grant a habeas petition on a claim that was adjudicated on the merits in state court unless that adjudication "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." 28 U.S.C. § 2254(d)(1) and (2).
A state court decision is "contrary to" established federal law if the state court either "applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Williams, 529 U.S. at 405-06. A state court decision is an "unreasonable application" of Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular case." Id. at 407-08. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. In order to justify habeas relief under § 2254, the state court's application of clearly established federal law must be "objectively unreasonable." Id. at 409. In sum, a federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal question differently. Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). The state court's application of the federal law "must reflect some increment of incorrectness such that it may be said to be unreasonable." Id. (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
"A state court determination of a factual issue is, moreover, presumed to be correct." Overton v. Newton, 295 F.3d 270, 275 (2d Cir. 2002). The state court's determination "is unreasonable only where the petitioner meets the burden of `rebutting the presumption of correctness by clear and convincing evidence.'" Id. (quoting 28 U.S.C. § 2254(e)(1)). Even where the state court decision does not specifically refer to either the federal claim or to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies. For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits" and (2) reduces its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001). On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).
As his first ground for habeas relief, Walker contends that the People denied his request for a speedy trial, and that the Appellate Division erred in holding that his speedy trial claim was not preserved due to counsel's failure to move to dismiss the indictment pursuant to New York Criminal Procedure Law ("C.P.L.") § 30.30. Petition ("Pet'n") at 5; Petitioner's Habeas Br. ("Pet'r Habeas Br.") at 6-8. Respondent argues that this claim has not been exhausted since it was not presented on direct appeal as a violation of "petitioner's federal constitutional right to a speedy trial." Respondent's Habeas Br. ("Resp't Habeas Br.") at 3 (emphasis in original). Alternatively, respondent asserts that the claim is procedurally barred because the Appellate Division dismissed it as unpreserved based on defense counsel's failure to raise the issue before the trial court. Id. I agree with respondent that Walker's speedy trial claim has not been properly exhausted.
Although Walker asserted a speedy trial claim on direct appeal by citing C.P.L. § 30.30 and various New York state cases, he made no mention whatsoever of the United States Constitution or any federal cases. A New York § 30.30 statutory claim is distinct from a Sixth Amendment speedy trial claim. Santiago v. McGinnis, 2002 WL 31946709, at *3 (S.D.N.Y. Oct. 21, 2002) (citing Rodriguez v. Miller, 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997)). Therefore, a petitioner who raises only a statutory speedy trial claim pursuant to C.P.L. § 30.30 has not invoked the federal constitution and therefore has not "fairly presented" the claim so as to fulfill the exhaustion requirement. See Delvalle v. Sabourin, 2002 WL 1000968, at *3 (S.D.N.Y. May 16, 2002) (citing, inter alia, Gonzalez v. Garvin, 2002 WL 655164, at *2 (S.D.N.Y. Apr. 22, 2002) (asserting a statutory claim under Section 30.30 does not invoke a specific constitutional right)).
Although a habeas petitioner "`is not required . . . to cite chapter and verse of the Constitution to satisfy the exhaustion rule,'" he must nonetheless "`fairly apprise the state court of a federal constitutional claim by relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that call to mind a specific right protected by the Constitution, or alleging facts that fall well within the mainstream of constitutional litigation.'" Levine v. Commissioner of Correctional Services, 44 F.3d 121, 124 (2d Cir. 1995) (quoting Daye, 696 F.2d at 194.) Walker's appellate brief relying solely on C.P.L. § 30.30 is therefore not sufficient to exhaust a federal constitutional speedy trial claim. Santiago, 2002 WL 31946709, at *2 (citing Rodriguez, 1997 WL 599388, at *2 (holding that "a CPL section 30.30 claim does not present the state court with the same factual and ...