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BELLEZZA v. FISCHER

United States District Court, Eastern District of New York


July 28, 2003

FRANK BELLEZZA, PETITIONER
v.
BRIAN FISCHER, SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, RESPONDENT.

The opinion of the court was delivered by: Weinstein, Jack B., Senior District Judge.

MEMORANDUM, ORDER & JUDGMENT

The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary.

A Report and Recommendation in this matter was submitted by Magistrate Judge William D. Wall to District Judge Denis R. Hurley. Objections to the Magistrate's recommendation were timely filed by petitioner. The case was reassigned to the undersigned judge before Judge Hurley ruled on the ultimate disposition of the petition. The Magistrate's power over the case was revoked by this judge as a matter of course.

Having made a de novo review of petitioner's claims and the record, this court concludes that there is no merit to the petition. Evidence of petitioner's guilt of grand larceny, burglary and other charges was overwhelming. He was given a fair trial. The Magistrate's Report and Recommendation is thorough and has been largely incorporated into the instant Memorandum, Order and Judgment.

Petitioner's objections to the Report and Recommendation have been considered by this court and are rejected.

BACKGROUND

A.) Petitioner's Conviction and Sentence:

On March 29, 1996, petitioner Frank Bellezza ("petitioner" or "Bellezza") was indicted on one count of Burglary in the Second Degree, one count of Burglary in the Third Degree, and one count of Possession of Burglar's Tools. On April 17, 1996, petitioner was indicted on one count of Grand Larceny in the Fourth Degree. On November 25, 1996, petitioner was indicted on one count of Burglary in the Second Degree and one count of Burglary in the Third Degree. On April 1, 1997, petitioner was convicted of all of the crimes charged after a trial by jury.

On May 7, 1997, he was sentenced to a determinate term of ten years of incarceration, as a consequence of his status as a second felony offender, for his conviction for Burglary in the Second Degree, to an indeterminate term of incarceration of three to six years for his conviction for Burglary in the Third Degree, and to a determinate one year term of incarceration for his conviction for Possession of Burglar's Tools, with the second two terms to be served concurrently. On the Grand Larceny charge, he was sentenced as a second felony offender to an indeterminate term of incarceration of one and one-half to three years, with this sentence to be served concurrently with the other sentences. On the crimes for which he was indicted in November 1996, petitioner was sentenced to a determinate term of incarceration of ten years as to his conviction for Burglary in the Second Degree due to his status as a second felony offender, and an indeterminate term of incarceration of three to six years for his conviction for Burglary in the Third degree, with these sentences to be served concurrently with each other but consecutively to the sentences imposed upon petitioner for his convictions under the earlier indictments. (See Minutes of Sentencing Hearing, May 7, 1998) Bellezza had earlier rejected a plea bargain offer. (See Minutes of Huntley Hearing, Jan. 23, 1997) The petitioner's convictions were based on several incidents, as set forth infra.

B.) The Underlying Crimes and Testimony at Trial:

In 1995, Bellezza lived with Theresa McCarthy and her two children in Central Lslip. (T. 87-89) Bellezza worked as a security guard at Dockside 500, a marina, during the summer of 1995, and one of McCarthy's sons, Steven, testified that petitioner told Steven that certain items he brought home were stolen from the marina. (T. 89-9 1) The items included boat motors, fishing poles and other boat items, including a Zodiac blow-up raft that petitioner specifically admitted stealing. (T. 9 1-92) Some of the stolen items wound up at the home of petitioner's friend, Kevin O'Connor. (T. 90-91) In the late summer or early fall of 1995, petitioner sold a stolen boat motor to Theresa McCarthy's sister, who called the police and turned it over to them. (T. 143-47) In October of 1995, Suffolk County Detective Bruce Harris, who knew petitioner, arrested him for Grand Larceny for the theft of the boat motors. (T. 433-34) Petitioner appeared voluntarily at the precinct, and agreed to speak with detectives after executing a written waiver of his rights. (T. 436) He gave a written statement that said, in essence, that he had allowed Kevin O'Connor to steal boat motors from Dockside 500 to settle a debt to O'Connor. (T. 442-43) Petitioner was released on station house bail. (T. 444) Several months later, in March 1996, he met with Detectives Harris and Cergol and agreed to wear a wire in a meeting with O'Connor, and did meet with him on or about March 19, 1996, but no useful information was obtained. (T. 3 12-15, 446-47)

During the summer of 1995, petitioner told Theresa McCarthy that he was stealing from the marina. (T. 108) In the fall, he told her that he wanted to rob the laundromat she worked at, the Laundry Experience in Mastic, by breaking through the office wall from the deli next door. (T. 111-12) Petitioner also repeatedly told Steven McCarthy that he was going to rob the laundromat and that he had keys to the deli next door and would break into the back of the laundromat through the wall. In late January 1996, Theresa McCarthy broke off her relationship with petitioner and asked him to move out of her house, which he did. (T. 97-98).

On February 26, 1996, Theresa McCarthy opened up the laundromat and saw that it had been burglarized. (T. 113) She called the owner, James Sharkey, told him about the break-in, and told him that she thought the petitioner had done it. A three foot by three foot hole had been cut in the wall of the laundry office, which was a common wall with a burned-out deli next door, and the sheetrock had been pushed into the laundry office from the other side. (T. 25, 48) Three hundred dollars were missing from the drawer of the laundry office desk. A few hundred dollars in coins were also taken. (T. 26) Sharkey had seen the petitioner at the laundry and at the deli, where he had been hired to fix some tiles and to clean up debris after the deli was damaged by fire. (T. 20, 42, 22) McCarthy knew that petitioner had made a key to the deli, because she was with him when the key was made. (T. 116) After the burglary, Steven McCarthy saw petitioner on the street, and petitioner told Steven that he had committed the burglary to get back at Steven's mother, Theresa. (T. 98-99) He also told Theresa McCarthy that he had broken into the laundry. (T. 117)

On March 12, 1996, John Ericson returned to his home in Middle Island and found that it had been ransacked and burglarized, and the lock to the back door had been broken off. (T. 54| 55) At trial, Ericson identified a coat, several jackets, a microwave oven, a television set, a Jasmine Takamine acoustic guitar, a Gibson guitar, a Hoover vacuum and a Coratone guitar as items that had been taken from his home. (T. 55-70) On that same day, March 12, petitioner went to Cash in a Rash, a pawn shop in Shirley, and sold Ericson's Gibson guitar. At Cash in a Flash, petitioner presented a Florida photo Ii) drivers license, which was recorded on the pawn receipt, and the pawnbroker, Robert Fisher, identified petitioner at trial. (T. 74-86)

Detective John Bauer of the Suffolk County Police Department's (SCPD) Property Recovery Section recovered other items taken from Ericson's home from pawn and tool shops, including a television, a Coratone guitar, an Alvarez guitar, and a water pump. Receipts for these items were in petitioner's name, verified by a Florida drivers license. (T. 134-41) Detective Sal Balamonte, from the SCPD Property section, retrieved two guitars and a Sanyo electronic device from O'Neill's pawnshop in Patchogue. The items had been bought from petitioner, who used his Florida drivers license as identification for the sale, and were identified by Ericson as his. (T. 332-336, 339, 341 & 348)

Other crimes were also committed around this time that were later attributed to petitioner. On March 9, Mark Rivera discovered that his house at 2 Burney Blvd. had been burglarized. A window in the rear of the house had been broken and the locks snapped off. Various items, primarily jewelry, had been taken from the house, along with a silver rattle, cash, three hundred compact discs, a power drill and a camera. (T. 168-76) On March 14, Bellezza went to Budget Buy and Sell in Patchogue and sold various pieces of jewelry which were later recovered by the police. (T. 206-10)

On the morning of March 10, the owner of the Shirley Laundromat discovered that his store had been burglarized. (T. 158) Someone had broken through the floor from the cellar and had stolen soap, soda, a television, cash, and other items. (T. 159-62) On the night that the Shirley Laundromat was burglarized, petitioner brought boxes of starch home with him. (T. 245).

After Bellezza moved out of Theresa McCarthy's house in early 1996, he moved in with Liloutie Fallon at 3 Hart Place. (T. 230) Through Liloutie Fallon, petitioner met Joey Spezzano, who lived with them sporadically. (T. 232, 236) In early March, petitioner told Fallon that he was going to his uncle's house to steal drugs and guns. (T. 240) Bellezza came back with clothes, money, jewelry and gold, and told Fallon that he hadn't gone to his uncle's house, but elsewhere. Fallon and Bellezza went together to a pawn shop in Patchogue to sell the stolen goods. (T. 241-42) Over the following weeks, the petitioner brought home assorted goods to Fallon's house, including guitars, televisions and microwave ovens. (T. 244) Fallon also testified that petitioner kept a shotgun in the house. (T. 257)

On March 22, 1996, the police obtained a search warrant and searched Fallon's house and petitioner's car. In the glove compartment of petitioner's car, the police found a silver rattle later identified by Mr. Rivera as his child's. (T. 168-176, 179-83) Leather jackets belonging to John Ericson were found in petitioner's closet. (T. 453) A television and camera were seized, and a gym bag was recovered that contained a hammer, a saw, oxygen tanks, portable propane tanks, gloves, bolt cutters, a screw driver and a set of channel lock phers. (T. 457)

After the search, Bellezza was arrested and taken to the precinct, where he was read his rights. (T. 363) Petitioner signed the printed rights card and agreed to speak with the detectives. (T. 364-66) Petitioner confessed that he had burglarized the Laundry Experience by using his key to the deli to access the common wall and cut the sheet rock. He stated that the key to the deli was in a small metal can in his bedroom. (T. 368, 465, 467) The next day, the police returned to petitioner's bedroom and found keys hidden in a small metal can, one of which was the key to the deli next to the Laundry Experience. (T. 353, 357)

Petitioner also told police that he had once lived at 3 Burney Blvd., across the street from the Rivera household, and that he had burglarized the Rivera house with the help of Joseph Spezzano. (T. 370) He admitted to stealing the silver rattle from the baby's nursery, as well as jewelry and the other items that were missing from the Rivera home. The jewelry had been sold at Budget Buy and Sell in Patchogue. (T. 371, 468-69) During the search of petitioner's residence, the police also found a blue pillowcase later identified by Mrs. Rivera as hers. (T. 372) On March 22, when the police arrested Joseph Spezzano, he was found to be wearing sneakers stolen from the Rivera house. (T. 322)

With regard to the Ericson burglary at 20 Middle Island Road, petitioner confessed that he and Joey Spezzano had stolen guitars, a microwave, a vacuum cleaner and some jackets. (T. 372-73) Bellezza told police that, at the time of the burglary, he was dressed in camouflage and was carrying a 16 gauge shotgun. (T. 470) He also told police that some of the guitars from the Middle Island Road robbery had been sold to a store in Center Moriches, and that a Les Paul guitar was sold to Cash in a Flash. (T. 471)

The police asked Bellezza to make a written statement, but he agreed only to writing a statement as to one "D" felony, the burglary of the Shirley Laundromat. (T. 374) Prior to giving the written statement, petitioner was again advised of his rights, after which he signed a waiver of those rights. (T. 377) Fallon testified at trial that, after he had confessed, petitioner told her to lie and say that she heard him ask for a lawyer when he was arrested. (T. 260-61)

After the People rested at trial, petitioner's counsel made an offer of proof with regard to a witness, Mabel Caggiano, who would testify that in the early morning hours of March 23, 1996, Liloutie Fallon called her and said that petitioner, who was at the police station, wanted a lawyer. (T. 564, 567) Ms. Caggiano is Bellezza's aunt. The People objected on the ground that there had been no testimony that the police were aware of such a request, and it called for double hearsay. (T. 565) Petitioner did not object to the court's conclusion that the proffered testimony called for double hearsay nor did he offer a valid basis for its admissibility. (T. 567) The defense rested without the defendant taking the stand or presenting any witnesses. (T. 569)

The People moved to dismiss count seven of indictment 974E-96, Criminal Possession of Stolen Property in the Fifth Degree, which concerned the proceeds of the burglaries, because the prosecutors thought this would avoid confusion for the jury. Petitioner did not object, and that count was dismissed. (T. 573-74) The jury returned a guilty verdict on all remaining counts. (T. 615-5 1)

C.) The Appeal and Post-Trial Motions:

In September 1996, the petitioner filed a pro se "Petition for Writ of Habeas Corpus" with the state court. The record does not contain the official disposition of that petition, but it was obviously denied. The petitioner appealed to the Appellate Division, Second Department, with court appointed counsel. On his appeal, he raised grounds of excessive sentence, introduction of inadmissable hearsay testimony by Detective Harris, and refusal to call a witness requested by the petitioner. Petitioner's conviction was affirmed by order dated December 27, 1999. See People v. Bellezza, 267 A.D.2d 468 (N.Y. App. Div. 1999). Leave to appeal the Second Department decision was denied by the Court of Appeals on February 4, 2000. See People v. Bellezza, 94 N.Y.2d 901 (2000).

Bellezza also made numerous motions to vacate his conviction pursuant to section 440 of the New York Criminal Procedure Law, and for other relief. In February 1998, the petitioner filed a pro se motion to vacate the judgment of conviction or for a hearing. In that motion, petitioner contended, inter alia, that the District Attorney's failure to provide Theresa McCarthy's DWJ criminal record was a Brady violation and that he had received ineffective assistance of counsel. He also claimed that the prosecutor had failed to disclose several other pieces of potentially exculpatory evidence. In March 1998, petitioner's court appointed trial attorney, Kevin Cadden, also made a motion regarding the failure to provide McCarthy's criminal history. Both motions were denied by the Hon. Gary J. Weber, the trial judge, on May 14, 1998. The pro se motion was reargued and again denied by Judge Weber on May 20, 1998. On July 2, 1998, Bellezza moved, pro Se, to relieve his assigned counsel, Kevin Cadden, for purposes of making a section 440 motion. In an order dated July 30, 1998, Judge Weber granted the motion relieving Cadden and noted that Bellezza had already been assigned new counsel for the purpose of perfecting his appeal. Leave to appeal Judge Weber's May 14th order denying both section 440 motions was applied for by Bellezza acting pro se, and was denied by the Second Department on October 2, 1998.

On March 4, 1999, Bellezza filed a pro se motion, asking that the court appoint counsel to assist petitioner in making a section 440 motion. That motion was denied by Judge Weber on May 21, 1999, inasmuch as appellate counsel had already been appointed. In May 1999, before Judge Weber denied the March 4th motion, petitioner filed a pro se motion pursuant to section 440, which claimed that Liloutie Fallon's testimony at trial was false, based on conflicting testimony that she gave in Eamily Court. That motion was denied by Judge Weber on July 16, 1999. Leave to appeal the July 16Z order to the Appellate Division was denied on September 22, 1999.

On October 14, 1999 Bellezza made another motion seeking to vacate his conviction pursuant to section 440, and seeking an order directing that the criminal history reports of all the witnesses at his trial be produced. The motion was denied by Judge Weber on January 12, 2000.

In August 2000, petitioner made yet another motion to vacate his conviction, claiming that a police Supplementary Report relevant to his case was not turned over to him in accordance with People v. Rosario. The motion was denied by Judge Weber on October 31, 2000, and leave to appeal Judge Weber's ruling was denied on January 3, 2001.

Petitioner also made a number of other motions, including an application that he be released on bail, and several applications for the unsealing and/or release of Family Court records that are not pertinent to this habeas petition.

D.) The Federal Habeas Petitions:

Petitioner first filed a habeas petition in this court on June 16, 2000, under docket number CV-00-361 I. By Order dated August 22, 2000, Magistrate Thomas E. Boyle noted that he had received correspondence from the petitioner that he had recently received documents from the Suffolk County Police Department pursuant to a FOIL request that were unknown to him at the time he filed his habeas petition, and that he intended to use the documents to support an application to the state court to vacate his conviction, pursuant to section 440.10 of the New York Criminal Procedure Law. Bellezza requested leave to proceed on that application and to hold the habeas petition in abeyance.

Judge Boyle found that, pursuant to applicable rules, the petitioner could file a notice of dismissal discontinuing the habeas proceeding, without prejudice to renewal, for the purpose of exhausting his available state court remedies. Judge Boyle also found that if Bellezza did not receive the requested relief in state court after exhausting any available appellate remedies related to the section 440 motion, he could commence a new action in this court provided he did so within one year after the exhaustion of his available state remedies. As noted earlier, Bellezza brought his final section 440 motion on August 22, 2000, the same date as Judge Boyle's order; it was denied by Judge Weber on October 31, 2000, and the Appellate Division denied leave to appeal Judge Weber's decision on January 3, 2001.

A new habeas petition was filed on March 12, 2001. It raises seven grounds for habeas relief: (1) the prosecutor failed to disclose evidence favorable to petitioner and knowingly allowed the false testimony of Ms. Fallon at trial to go uncorrected; (2) the prosecutor failed to disclose evidence favorable to petitioner and knowingly allowed the false testimony of Ms. McCarthy at trial to go uncorrected; (3) the prosecutor failed to disclose evidence favorable to petitioner and knowingly allowed false testimony about Mr. Spezzano's possession of keys to go uncorrected; (4) the court improperly refused to call Mabel Caggiano as a witness, thus violating petitioner's due process rights; (5) Detective Harris gave bolstering hearsay testimony in violation of petitioner's due process rights; (6) trial counsel rendered ineffective assistance; and (7) the prosecutor failed to turn over information helpful to the petitioner regarding false testimony given by two detectives.

DISCUSSION

A.) Application of AEDPA to Petitioner's Application:

Petitioner filed his application for a writ of habeas corpus in March 2001. Thus, it is governed by the substantial amendments to the federal habeas statute, 28 U.S.C. § 2254, enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which took effect in April 1996 and has "created a tumultuous sea change in federal habeas review, especially affecting the petitions of state prisoners." Aparicic v. Atiuz, 269 F.3d 78, 89 (2d Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 402-10 (2000) (O'Connor, J., writing for the majority with respect to part II) & Lainfesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001)). B.) Exhaustion/Procedural Defaults Under AEDPA:

Generally, a federal court may not consider the merits of a state prisoner's petition for a writ of habeas corpus until the petitioner has exhausted the state remedies available to him. AEDPA provides that:

(b)(1) 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 unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).

The Second Circuit has recently reiterated that, to satisfy section 2254's exhaustion requirement, "a petitioner must present the substance of "the same federal constitutional claims that he now urges upon the federal courts,' Turner v. Artuz, 262 F.3d 118 (2d Cir. 2001) ["cert. denied, 122 So. Ct. 569 (2001)], "to the highest court in the state," Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)." Aparicic, 269 F.3d at 89-90. In cases where a claim has never been presented to a state court, a federal court "may theoretically find that there is an "absence of available State corrective process' under section 2254(b)(l)(B)(i) if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile. In such a case the habeas court theoretically has the power to deem the claim exhausted." Aparicio, 269 F.3d at 90 (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)).

When a federal court finds that ""the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, ' federal habeas courts also must deem the claims procedurally defaulted." Id. at 90 (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). The "dismissal of a habeas claim on the ground that it was procedurally defaulted "differs crucially' from dismissal for failure to exhaust state remedies. " Id. (quoting Turner, 262 F.3d 118, 2001 U.S. App. LEXIS 18269, at *3). Dismissal for a procedural default is regarded as a disposition of the habeas claim on the merits. Thus, "any future presentation of the claim would be a second or successive habeas petition, requiring authorization by this Court pursuant to 28 U.S.C. § 2244 (b)(3)(A)." Aparicio, 269 F.3d at 90 (citing Turner, 262 F.3d 118, 2001 U.S. App. LEXIS 18269, at *3) (citing Carter v. United States,150 R3d 202, 205-06 (2d Cir. 1998))).

To avoid this result, "a petitioner must show cause for the default and prejudice, or demonstrate that failure to consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually innocent)." Id. at 90 (citing Coleman, 501 U.S. at 748-50). As the Second Circuit has noted, the procedural default doctrine, with its "cause and prejudice" standard, is grounded in concerns for federalism and comity. Id. (citing Coleman, 501 U.S. at 730). "It ensures that federal courts respect the "States' interest in correcting their own mistakes."' Id. (quoting Coleman, 501 U.S. at 732). And, it applies whether the default occurred at trial, on appeal, or on state collateral review. Id. (citing Murray v. Carrier, 477 U.S. 478, 490-92 (1986)).

The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the state court. See Daye v. Attorney Gen'l, 696 F.2d 186, 191 (2d Cir. 1982)(en banc)(citing Wilwording v. Swenson, 404 U.S. 249 (1971) & Brown v. Allen, 344 U.S. 443 (1953)). "In order to have fairly presented his federal claim to the state courts, the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Id. at 191 (citing Picard v. Connor, 404 U.S. 270, 276-77 (1971) & Twiny v. Smith, 614 F.2d 325, 331 (2d Cir. 1979)). The petitioner must have set forth in state court "all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the state court has not had a fair opportunity to rule on the claim." Id. at 192 (citations omitted). The petitioner must also "have placed before the state court essentially the same legal doctrine he asserts in his federal petition, " because the exhaustion doctrine's purposes would be frustrated if "the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court." Id. (citations omitted).

C.) AEDPA Standard of Review of Claims on their Merits:

AEDPA provides, in relevant part:

[A]n 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 claim;
(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.
28 U.S.C. § 2254 (d); see also Williams v. Taylor, 529 U.S. 362 (2000); Francis S. v. Stone, 221 F.3d 100, 107-11 (2d Cir. 2000) (discussing federal court's standard of review in analyzing claims previously adjudicated in state courts); Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000) (same).

The Supreme Court interpreted the new habeas statute in Williams v. Taylor, 529 U.S. 362 (2000), finding that section (d)( 1) "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Id. at 412-13 (O'Connor, J., writing for the Court). The Second Circuit has noted that the "necessary predicate to this deferential review is, of course, that petitioner's federal claim has been "adjudicated on the merits' by the state court." Aparicio, 269 F.3d at 93. If a state court has not adjudicated the claim "on the merits, " the Second Circuit applies pre-AEDPA standards and reviews de novo the state court disposition of the petitioner's federal constitutional claims. Id. at 93 (citing Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001)).

For purposes of AEDPA, a state court "adjudicates" a petitioner's federal constitutional claims on the merits whenever "it (1) disposes of the claim `on the merits,' and (2) reduces its disposition to a judgment." Id. (citing Sellan v. Kuhiman, 261 F.3d 303, 312 (2d Cir. 2001)). To determine whether a state court has disposed of a claim on the merits, the Second Circuit considers: "(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a detennination on the merits." Id. (citing Sellan, 261 F.3d at 314 (quoting Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir 1999) (internal quotation marks omitted). Thus, to invoke the deferential AEDPA standards, the state court "need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further elucidation of its reasoning process is required." Aparicio, 269 F.3d at 93-94 (citing Sellan, 261 F.3d at 312)). If these standards are met, the state court can be said to have adjudicated the federal claim on the merits, "even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Sellan, 261 F.3d at 312.

Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Fihon, No. 02| 2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). It is an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.

If a state court has disposed of a petitioner's claim on the merits, the federal court then applies the AEDPA standards. The Supreme Court has explained that, under the "contrary to" clause of section (d)(1), "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts, " and, " [u]nder the "unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle for this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413.

This court also notes that, although a district court must consider a pro se litigant's habeas corpus petition with some liberality, see Cuadra v. Sullivan, 837 F.2d 56, 59 (2d Cir. 1988), the petitioner still bears the burden of proof. The Second Circuit has called a habeas proceeding "an asymmetrical enterprise in which a prisoner seeks to overturn a presumptively valid judgment of conviction. Because of this, the petitioner generally bears the burden of proof throughout the habeas proceeding." Pinkney v. Ketime, 920 F.2d 1090, 1094 (2d Cir. 1990) (citing 28 U.S.C. § 2254(d) (1988) & Harned v. Henderson, 588 F.2d 12, 22 (2d Cir. 1978) (petitioner must prove by a preponderance of the evidence all claims in the petition)). Nothing in the AEDPA revisions changes this burden.

Bellezza's claims raise a number of issues in regard to the exhaustion/procedural default/adjudication on the merits doctrines. As the analysis set forth infra explains, only two of the claims can be considered on their merits, the others suffering from a number of procedural flaws. The first and seventh claims were exhausted and not procedurally defaulted, were adjudicated on the merits and are considered under AEDPA standards. The other claims, some of which were exhausted and some of which were not, were all procedurally defaulted and cannot provide a basis for habeas relief.

Based on all of these standards, and for the reasons set forth below, none of petitioner's claims have merit.

D. The Petitioner's Claims are Without Merit and Must be Dismissed:

The Brady Claims

Several of the petitioner's grounds for habeas relief — the first, second, third and seventh | are phrased as Brady claims, that is, claims that material of which he was unaware and which would have allowed the defense to impeach perjured testimony at trial, was not given to him by the state, resulting in a violation of his federal constitutional rights. Those claims will be considered first.

1) Claim One: The prosecutor failed to disclose the Family Court testimony of Liloutie Fallon.
a) Substance of the Fallon Claim

Petitioner claims, as his first ground for habeas relief, that prior to his trial, the prosecuting witness Liloutie Fallon testified about petitioner in Suffolk County Family Court, that the prosecutor knew about her testimony in Family Court and did not disclose it, and the testimony in Family Court, which allegedly contradicted testimony given by Fallon at Bellezza's trial, would have been favorable to the petitioner. Thus, Bellezza argues, the state violated his rights under Brady by failing to disclose exculpatory or impeachable material, resulting in a violation of his federal constitutional rights.

Specifically, Bellezza points to testimony by Fallon at a Family Court custody hearing on August 1, 1996, at which Fallon testified as follows:

Q. And you still live with Frank Bellezza in the house that he may own?

A. Frank has his own room. I had my own room.

(Ex. B to Pet. Mem. of Law in Supp. at 7-8)

Q. Was there a loaded shotgun found under your bed on 3 Hart Place by Detective Harris?

A. There was a hunting gun. I had no — I was thinking that Frank's —
(Id. at 14)

Based on this cryptic testimony, the petitioner argues that Fallon testified at Family Court that "the shot gun found at petitioner's house was found under her bed. And was a hunting gun. And she only thought that it was petitioners, she never knew for sure." Pet. Mem. of Law in Supp. at 11. Petitioner contrasts this testimony with Fallon's testimony at his trial in regard to a shotgun marked for identification as People's Exhibit 36:

Q. Miss Fallon, do you recognize that gun?

A. Yes.

Q. Whose gun is that?

A. Frank.

Q. Did Frank have that gun on March 23 of 1996?

A. Yes.

Q. When the police came, Frank had that gun?

A. Yes.

(T. 257)

Bellezza argues in his habeas petition that Fallon lied in Family Court "to help herself with the child custody matter and "also lied at trial because the shot gun found belonged to Mr. Spezzano." Pet. Mem. at 11. The gist of petitioner's perjury argument is that Fallon testified at trial that petitioner "never came to her bed, she went to his, so, why wasn't the shot gun under petitioner's bed, and not Fallon's bed, " as she testified to in Family Court. Id.

b) Exhaustion of the Fallon claim

As a threshold matter, the court must determine whether Bellezza "fairly presented" his Brady claim in state court. Bellezza first alleged that Fallon lied at his trial in a motion pursuant to section 440.10 of the New York Criminal Procedure Law, dated March 4, 1999, which sought the appointment of counsel to assist in the drafting and filing of a motion based on Fallon's testimony. In that motion, Bellezza claimed that Fallon's testimony that Bellezza asked her to lie and say that he had requested an attorney the night he was arrested (T. 260-61) was perjured and that the District Attorney "should have known" the testimony was perjured because the District Attorney had contact with the Suffolk County Attorney prior to Bellezza's trial. The trial judge denied the motion on May 21, 1999, finding that even if what petitioner said about Fallon was true, it would not constitute grounds to vacate the conviction, given the overwhelming evidence of guilt. People v. Bellezza, No. 974E-96, 1113-96 & 3 100-96 (Suff. Cty. Ct. May 21, 1999). The judge also noted that he could not "fathom exactly how or why" Bellezza drew the conclusion that Fallon had perjured herself. The judge called the claim "patenfly unrealistic and completely speculative in nature" and declined to appoint counsel.

However, Bellezza does not, on this habeas petition, appear to claim that Fallon's allegedly perjured testimony about his request for an attorney could have been impeached if he had received undisclosed Brady material. Instead, he focuses on Fallon's alleged lies about the shotgun at trial, a claim he raised in another section 440 pro se motion, filed on May 6, 1999, before the judge denied the earlier motion. On the second motion, Bellezza mentioned for the first time Fallon' a testimony about the shotgun, and did not reassert that Fallon had lied about his request for an attorney. In the second motion, Bellezza alleged for the first time that the reason Fallon lied was to get an advantage in her child custody proceedings in Suffolk County Family Court. He also catalogued his efforts to obtain a transcript of the Family Court proceedings, which he attached as an exhibit to his motion. The state court judge ruled that Bellezza had presented no proof to support the contention that Fallon's testimony was perjurious and that Fallon's testimony was "but one small facet" of the overwhelming evidence presented by the state against petitioner. The judge also held that "all efforts to impeach the credibility of Ms. Fallon should have been made at trial, and are not the proper subject of a motion pursuant to CPL Article 440." People v. Bellezza, No. 974E-96, 1113-96 & 3 100-96 (Suff. Cty. Ct. July 16, 1999).

Nowhere in either section 440 motion did the petitioner state that the allegedly perjurious testimony had violated his federal constitutional rights. He did not cite to any federal cases, and neither the state, in its opposition to the motions, nor the state court judge, in his decisions, interpreted Bellezza's claims as setting forth federal constitutional violations. In his habeas petition, Bellezza has specifically presented his claim based on Fallon's alleged perjury about the shotgun as a Brady violation. Under these circumstances, the court must determine whether Bellezza "fairly presented" his Brady claim to the state courts.

Petitioners can ""fairly present" their federal claims in State court by, inter alia, presenting explicit constitutional arguments, relying on federal and State cases that employ a constitutional analysis, asserting claims in such a way as to call to mind a specific right protected by the Constitution or alleging facts that fall within the mainstream of constitutional analysis." Williams v. Bennett, 2001 U.S. Dist. LEXIS 10627, at *15 (S.D.N.Y. July 27, 2001) (citing Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995)), adopted, 2001 U.S. Dist. LEXIS 11931 (S.D.N.Y. Aug. 5, 2001). In essence, the nature or presentation of the claim in state court "must have been likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192.

Here, petitioner did not present explicit arguments or rely on federal or state cases that employ constitutional analysis. The closest he came to asserting a claim "in such a way as to call to mind a specific right protected by the Constitution or alleging facts that fall within the mainstream of constitutional analysis, " was his claim that the prosecutor knew about Fallon's Family Court testimony, and that her testimony "about the shotgun should have been turned over, since as a convicted felon defendant [i.e., Bellezza] could have been, but was not, charged with possessing the shotgun." Defendants Brief Motion to Vacate Judgment Pursuant to Criminal Procedure Law Subsection 440.10 (1-c), dated May 6, 1999, at 24-25. Bellezza also claimed that if the Suffolk County District Attorney's Office had turned over Fallon's Family Court testimony, Bellezza "would have been better able to overcome the testimony given by Fallon" at Bellezza's trial, "by showing that the outcome of Liloutie Fallon's child custody case did depend upon, and was related to issues being resolved at defendant's trial. And that therefore Liloutie Fallon had an intrest [sic] in placing blame on defendant rather than herself." Id. at 25. The question thus becomes whether these statements were "likely to alert" the state court that petitioner was asserting a Brady claim, despite the absence of specific federal references in the motion papers. Daye, 696 F.2d at 192.

"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Boyette v. LeFevre, 246 F.3d 76, 89 (2d Cir. 2001) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)); see also United States v. Bagley, 473 U.S. 667, 674 (1985) (Brady requires "disclosure only of evidence that is both favorable to the accused and material either to guilt or to punishment"') (quoting Brady, 373 U.S. at 87). The petitioner's presentation of his Fallon claim did arguably suggest that the evidence, that is, Fallon's Family Court testimony, could have been used to impeach her criminal court testimony, and he did allege that the existence of her family court testimony was known to, and hidden by, the prosecutor. Stretching the standard that "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature" to its limits, the court finds that petitioner can be said to have "fairly presented" his Brady claim based on Fallon's Family Court testimony to the state court, and it is exhausted. The next question is whether Bellezza defaulted the claim by failing to raise it on direct appeal. He did not.

Petitioner's second section 440 motion and the Brady claim in his habeas petition are premised not only on Fallon's alleged perjury, but on petitioner's charge that the prosecutor knew about Fallon's Family Court testimony and didn't tell the petitioner about it. Petitioner apparently did not obtain a copy of the Family Court transcript until after the trial, and the allegedly conflicting testimony was not part of the trial record. Thus, giving the most generous possible interpretation to the circumstances, the petitioner could not have appealed the claim that the prosecutor knew that Fallon's Family Court testimony was incompatible with her trial court testimony because he did not know the nature of the Family Court testimony until after his judgment of conviction was entered. His only recourse was to bring a post-conviction motion pursuant to section 440 of the New York Criminal Procedure Law. Moreover, Bellezza did seek permission to appeal the denial of the claim to the Appellate Division, thus satisfying the requirement that the federal constitutional claim be presented to the highest possible state court. For these reasons, the court finds that the claim was both exhausted and not procedurally defaulted.

The final procedural hurdle that must be cleared before the claim can be considered on its merits is whether the state court decided petitioner's claim "on the merits" when he raised it in his second section 440 motion. The Second Circuit has held that a state court can be said to have determined a claim on the merits even if, as here, "the state court does not explicitly refer to either the federal claim or to relevant federal case law, " if the state court "disposes of the case on the merits" and "reduces its disposition to judgment." Sellan, 261 F.3d at 312. Here, the state court rejected the claim, finding that the proof of Bellezza's guilt at trial was overwhelming and Fallon's testimony was "basically redundant"; that the court could not understand the basis for Bellezza's claim that the Family Court and trial court testimony conflicted and demonstrated Fallon's perjury at trial; that the claims were "patently unrealistic and completely speculative in nature" and that efforts to impeach Fallon should have been made at trial. See People v. Bellezza, No. 974E-96, 1113-96 & 3 100-96 (May 21, 1999 & July 16, 1999). These orders constituted a decision on the merits, pursuant to the standards set forth by the Court of Appeals for the Second Circuit.

c) Consideration of the Fallon claim on its merits

Under AEDPA, once a state court has adjudicated a petitioner's claim on the merits, a federal court may not grant a habeas petition on that claim unless the 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)(l). Here, the clearly established Supreme Court precedent would be Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. The state court determination was not contrary to or an unreasonable application of that line of cases, and the petitioner's claim must fail.

As noted earlier, Brady determined that due process requires the prosecution to disclose material known to the prosecution and favorable to the defense "where the evidence is material either to guilt or to punishment." 378 U.S. at 87; see also Boyette, 246 F.3d at 89. As a threshold matter, the court will accept for the purposes of the Brady analysis that if the defense had obtained a copy of Fallon' s Family Court testimony about the shotgun, it might have been used to impeach her testimony at trial. There is no evidence in the record before the court, however, supporting a finding that the state had a copy of Fallon' s Family Court testimony or knew what Fallon had testified to in Family Court regarding the shotgun or the sleeping arrangements, or that the prosecutor somehow hid that testimony and induced Fallon to lie at petitioner's trial. The prosecutor flatly denied Bellezza's claim that he "played a part in molding Liloutie Fallon's testimony at trial, " calling the allegation "utterly false." Costello Aff. in Opp. to § 440 motion, at ¶ 6.

Bellezza bases his claim that the prosecutor knew about Fallon's Family Court proceeding on the statement of Evan Tanenbaum, a man in the jury pool for Bellezza's trial who told the court that he believed he should not serve as a juror in that case. The reason for his reluctance to serve was that he "had some contact with someone in my office who was familiar with the case. I overheard a conversation. Not something I asked about. It was something that erupted from this person's mouth. They realized I was on the jury." (T. 2-3)

Petitioner claims that Tanenbaum was an Assistant Suffolk County Attorney, and describes Tanenbaum's statement on the record as "reflecting that a person from the Suffolk County District Attorney's office was engaged in a conversation with people from the Suffolk County, County Attorney's Office. And that the conversation was about a case related to petitioners criminal case on trial." Pet. Mem. of Law in Supp. of Writ of Habeas Corpus at 10. The leap from Tanenbaum's statements to a finding that the prosecutor knew about Fallon's Family Court proceeding and testimony is a great one, far too great to support Bellezza's claim. Thus, even assuming that a comparison of Fallon's criminal trial and Family Court testimony could suggest that she lied at the trial, there is no basis for finding that the prosecutor "knew" that Fallon was lying or had a copy of her Family Court testimony.

Moreover, given the overwhelming evidence against petitioner presented at trial, Fallon's testimony about the shotgun was not material to his conviction. Evidence is material for purposes of a due process violation if its nondisclosure results in prejudice to the accused, that is, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. See United States v. Caruso, 2000 U.S. App. LEXIS 19796, at *7 (2d Cir. Aug. 9, 2000) (unpublished) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial. See Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citing Bagley, 473 U.S. at 678).

Here, Fallon's testimony about the location of the shotgun was not at all likely to have affected the outcome of the trial. As noted earlier, Bellezza was not charged with illegal possession of a weapon, and the trial judge emphasized to the jury, at some length, that the shotgun was allowed into evidence only as corroboration to other evidence, and the defendant's possession of it was "not to be construed as a crime by him or anything in the nature of a bad act." T. 258-59. Its only relevance at trial was Bellezza's statement to the police that he was carrying a shotgun during the Ericson burglary. (T. 470) Given the other evidence connecting him to the Ericson burglary, including the recovery of items stolen from the Ericson home from Cash in a Flash and Bellezza's use of a photo ID driver's license when he pawned the items (T. 74-86), the shotgun was a peripheral detail at best, immaterial to his conviction.

Under the facts presented, the petitioner has not demonstrated that there is a reasonable probability" that, had he known about the Family Court testimony, the result of the trial would have been different and that he is thus entitled to a new trial. See Caruso, 2000 U.S. App. LEXIS 19796 at *7 Even if the defense had, using the Family Court testimony, been able to expose Liloutie Fallon as an outright liar, her testimony was, as the state court judge determined, "but one small facet of the overwhelming evidence presented by the state" against Bellezza. The record amply demonstrates that, in the absence of the undisclosed evidence, Bellezza" received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Boyette, 246 F.3d at 92 (quoting Kyles, 514 U.S. at 434. Thus, the Brady claim has no merit and must be dismissed.

To the extent that the claim rests on Fallon's alleged perjury, distinct from any Brady violation, it also fails. First, there is no evidence that Fallon lied at trial. Although defense counsel might have pursued with her the implications of her cryptic Family Court testimony, a comparison of the Family Court and trial transcripts does not demonstrate that she lied. And, issues of credibility, as well as the weight to be given to evidence, are questions to be determined by the jury, which is "exclusively responsible for determining a witness's credibility." United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993). Federal habeas courts "are not free to reassess the [fact-specific] credibility judgments by juries or to weigh conflicting testimony. On collateral review, [a federal habeas court] must presume that the jury resolved any questions of credibility in favor of the prosecution." Vera v. Hansimajer, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. 1992)); see also Marshall v. Lonberger, 459 U.S. 422, 432-35 (1983).

Bellezza also claims that the prosecutor knew that Fallon was lying and failed to correct her testimony. As petitioner himself states in his Memorandum of Law, prosecutorial misconduct consisting of failing to correct false testimony does not rise to the level of a Fourteenth Amendment violation unless there is a reasonable likelihood that the testimony affected the outcome of the trial. Pet. Mem. at 18-19 (citing Gigho v. United States, 405 U.S. 150, 154 (1972)). While "[d]eliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice," the evidence must have been material to the petitioner's conviction in order to support a finding of constitutional error. See Jenkins v. Artuz, 2002 U.S. App. LEXIS 5621, at *2021 (2d Cir. April 1, 2002) (quoting Gigho, 405 U.S. at 153 (additional citations omitted)). See also Cromwell v. Keane, 2002 U.S. Dist. LEXIS 8317, at *86..91 (S.D.N.Y. May 8, 2002); Shariff v. Artuz, 2001 U.S. Dist. LEXIS 1535, at *1921 (S.D.N.Y. Feb. 14, 2001) ("The knowing use of material false evidence by the prosecution violates due process.")

For the same reasons that Fallon's testimony was not material under a Brady analysis, it cannot be said to have affected the outcome of his trial for the purposes of a claim that the prosecutor failed to correct perjured testimony. Thus, the state court determination was not an unreasonable application of federal law, and the Fallon claim falls on all counts and must be dismissed.

2) Claim Two: The prosecutor failed to disclose Theresa McCarthy's criminal history.

a) Substance of the McCarthy claim

As his second ground for habeas relief, Bellezza claims that his conviction was "obtained unconstitutionally by the failure of the prosecutor to disclose evidence favorable to [the] defense, and allow false testimony to go uncorrected." Specifically, petitioner claims that Theresa McCarthy testified at trial that she had no criminal history, but that in fact, she had a DWI conviction from 1993 that was known to the prosecutor but not disclosed or corrected. Like the claim based on Fallon's testimony, this is, in essence, a claim of perjured testimony wrapped up in Brady paper. Bellezza claims that Theresa McCarthy lied when she testified at his trial that she had no criminal history (T. 132), given that she had been convicted of a "driving while intoxicated" offense in Suffolk County Court on January 20, 1994. See Pet. Mem. of Law at 16 & Ex. B. Moreover, Bellezza contends, the prosecutor knew about McCarthy's conviction or had a copy of her criminal record, had not produced it to the defense prior to trial, and allowed her perjurious testimony to go uncorrected. See id. at 16-19.

b) Exhaustion of the McCarthy claim

This issue was raised in both Bellezza's pro se section 440 motion, filed on February 10, 1998, and in the section 440 motion filed by his court appointed attorney, Kevin Cadden, on March 10, 1998. In his affidavit submitted in support of the pro se motion, Bellezza specifically stated that the prosecutor withheld evidence of McCarthy's criminal history in violation of Brady, and Cadden framed his argument specifically as a Brady violation. Thus, the claim was "fairly presented" to the state court in that petitioner set forth the factual basis for his claim and mentioned a Supreme Court decision that alerted the state court to the nature of his constitutional claim. And, Bellezza specifically raised the McCarthy issue in his application to the Appellate Division to appeal Judge Weber's denial of the motions, thus satisfying the requirement that the issue be presented to the highest possible court in the state.

The state court judge recognized the Brady claim, but did not discuss it in terms of the standards that apply to a Brady analysis. Instead, he denied the motion, noting that, in his motion papers, Bellezza acknowledged that he knew about McCarthy's prior record at the time of his trial. Bellezza had written in his affidavit in support of the pro se motion that "Defendant advised — defense counsel, that, Mrs. Theresa E. McCarthy, may have a criminal history and counsel refused, defendant request to investigate." See Bellezza Aff., Ex. A, ¶3, p.9. The court held that, "[a]ccordingly he had every opportunity to use that knowledge to best advantage and his election not to pursue this line of cross examination cannot serve as a basis to vacate his judgment of conviction." People v. Bellezza, No. 974E-96, 1113-96 & 3100-96 (Suff. Cty. Ct. May 14, 1998).

In his application to appeal Judge Weber's ruling, Bellezza stated in an affidavit that he "had no knowledge as to any criminal history relating to the prosecution witness Theresa E. McCarthy." Aff. in Supp. dated 6/2/98, at ¶B. That claim is incredible, however, when viewed in the context of the prosecution's evidence, presented in opposition to the section 440 motion, that Theresa McCarthy' s probation officer visited her several times at home in August, October, November and December of 1995, while she was living with Bellezza. Based on this living arrangement, the prosecution argued, "it was almost inconceivable that defendant did not know that Theresa McCarthy was on probation when he was living with her." See Costello Aff. in Opp. dated 8/20/98 at ¶9. The lower court obviously agreed, as does this court. Bellezza's failure to pursue this at his trial and on appeal thus amounted to a procedural default of the claim in the state court, and his federal habeas claim must be dismissed.

Where a state court rejects a petitioner's claim because a petitioner failed to comply with a state procedural rule — here the preservation of McCarthy's credibility as an issue for appeal, and the complete failure at trial to pursue McCarthy's criminal history, despite its being known to Bellezza — the procedural default constitutes an adequate and independent ground for the state court decision that will "bar federal habeas review of the federal claim, unless the habeas 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." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations and internal quotation marks omitted); see also Coleman v. Thompson, 501 U.S. 722, 73 1-32, 735 n. 1 (1991); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Williams v. Bennett, 2001 U.S. Dist. LEXIS 10627, at *16 (S.D.N.Y. July 27, 2001). A procedural default in state court constitutes an independent and adequate ground for the state court judgment of conviction, and, although such claims are technically "exhausted" for habeas corpus purposes, they are not reviewable by the federal court. See id. (citing Coleman, 501 U.S. at 73 1-32, 735 n.l; Reyes, 118 F.3d at 139; & Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994)).

Here, petitioner was well aware that Judge Weber denied his section 440 motion on procedural grounds because petitioner knew about McCarthy's conviction during his trial, but he does not suggest any "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., the petitioner is actually innocent)." Aparicio, 269 F.3d at 90 (citing Coleman, 501 U.S. at 748-50); see also Lawrence v. Artuz, 91 F. Supp.2d 528, 538 (E.D.N.Y. 2000). Indeed, he does not recognize his default at all. Even if Bellezza could show some cause for the default, he could not meet the prejudice standard. A petitioner "must show not only a "possibility' of prejudice, but that the "errors at his Zal... worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions."' Lawrence, 91 F. Supp.2d at 539 (quoting Metts v. Miller, 995 F. Supp. 283, 295 (E.D.N.Y. 1997) (additional internal citations omitted)). To suggest that the issue of McCarthy's DWI conviction rose to this level at Bellezza's trial is untenable.

Because the required showing of cause and prejudice has not been made with respect to Bellezza's procedurally defaulted McCarthy claim, that claim should be dismissed without reaching the merits. The court notes, however, that the claim would fail even if it were reviewed on the merits, whether as a Brady claim, a claim that the prosecutor failed to correct testimony he knew to be false, or simply a claim that the conviction was based on perjured testimony. There is no indication whatsoever that the prosecutor knew about McCarthy's conviction or that her testimony was false, and the prosecutor had no obligation to seek out and turn over McCarthy's criminal record, as distinct from disclosing the existence of that record. See N.Y. Crim. Pro. Law § 240.45(1). In any event, her alleged lie was not material enough to have affected the outcome of the trial. As was the case with the Fallon testimony, the record cannot support a finding that McCarthy's denial of her criminal record was material to Bellezza's conviction, given the overwhelming evidence against him.

For all of these reasons, the McCarthy claim is without merit and should be dismissed.

3.) Claim Three: The prosecutor failed to disclose various exculpatory documents, including property receipts issued for keys in the possession of Joseph Spezzano and for a microwave oven, and the crime scene photographs at the Shirley Laundromat.

a) Substance of the claim

As his third habeas claim, Bellezza asserts that the prosecution failed to disclose several pieces of exculpatory evidence. Specifically, Bellezza states that when Joseph Spezzano was arrested he was in possession of "keys to the store robbed, and to the house where the property was found." Pet. Mem. of Law at 20. The "store robbed" apparently is a reference to the deli adjoining the Laundry Experience, and the house is presumably Fallon's house at 3 Hart Place. Bellezza claims that in November 1997, he obtained a prisoner property receipt that indicated that Spezzano had a set of keys when he was arrested on March 22, 1996. This, petitioner suggests, is indicative that the testimony by Detective Harris that he was unaware of anyone other than Theresa McCarthy who had keys to "the store robbed" was perjurious. Id. He also claims that Liloutie Fallon lied when she testified that Spezzano did not have keys to the house at 3 Hart Place. Bellezza claims that his lawyer requested certain police reports and property receipts before trial, and that if they had been "properly made known to defense counsel before trial ["] counsel would have been able to prove to the jury that in fact it was Mr. Spezzano that did the burglary in question." Id. at 21.

Bellezza also claimed that a property receipt issued to Detective Harris showed that a microwave oven "was recovered on May 3, 1996 from an unknown location from an unknown person." Had that receipt been disclosed, Bellezza argued, it could have changed the outcome of his trial by proving that the microwave oven in question was not recovered at 3 Hart Place, Mastic. Bellezza Aff. at 7 (Point 4)

Bellezza also argued in his pro se motion that the state failed to turn over the photographs and reports from the Shirley Laundromat burglary, and that those documents would have shown that the hole in the floor had not been burned, "as stated in the alleged — Report — or confession made by defendant Bellezza." Bellezza Aff. in Supp. dated 2/10/98 at 6.

b) Exhaustion of the claim

Bellezza raised the issues of the Spezzano keys, the microwave oven property receipts, and the Shirley Laundromat crime scene photographs in his pro se section 440 motion filed on February 10, 1998. None of these issues was raised by Bellezza's attorney, Kevin Cadden, in the section 440 motion made around the same time. In his affidavit in support of the motion, Bellezza argued that, on March 22, 1996, prior to the start of his trial, he obtained a prisoner property receipt that showed that Joseph Spezzano was in possession of some keys when he was arrested. Detective Bruce Harris testified at petitioner's trial that Spezzano had no keys. Bellezza argued that if Harris had testified about the property receipt and had admitted that Spezzano had keys, the defense could have obtained the keys and showed that they fit the locks of the deli next to the Laundry Experience, Fallon's house, and Bellezza's car, and that the outcome of the trial would have been different. He made similar claims regarding the microwave oven and crime scene photographs.

The petitioner did not expressly present these claims as Brady violations, and the court did not treat them as Brady claims. Indeed, the state court did not address the Spezzano keys or microwave oven or photograph claims at all in its May 14, 1998 decision. Instead, the court addressed the issue of McCarthy's criminal history as a Brady violation, which had been argued in both the pro se and Cadden motions, and the ineffective assistance of counsel claim set forth in the pro se motion. (See infra.)

This court need not determine if the claims were "fairly presented" to the state trial court in the pro se motion, because, even assuming that they were, they must be dismissed on this petition. On June 2, 1998, Bellezza filed a pro se application to the Appellate Division, seeking leave to appeal from Judge Weber's May 14, 1998 order regarding McCarthy's criminal history. In that application, he did not seek to appeal the claims based on the keys, microwave oven and crime scene photos, and this court deems them to have been abandoned. Even if Bellezza did "fairly present" the claims to the trial court, he did not "present the substance of `the same federal constitutional claims that he now urges upon the federal courts . . . to the highest court in the pertinent state," Aparicio, 269 F.3d at 89-90 (internal citations omitted). Thus, Bellezza has procedurally defaulted those claims, and they cannot be reviewed by this federal habeas court unless Bellezza shows cause for the default and prejudice, which he has not done and cannot, on the record do, for all the reasons set forth supra in regard to the McCarthy claim.

The court is compelled to note, in this regard, that Bellezza's suggestion that, had he known that the police had a property receipt for a microwave oven "recovered on 5-3-96 at a location unknown from a person not known" been turned over to defense counsel, "it could have made a difference and changed the outcome of the trial," is untenable. Similarly, it is difficult to understand how crime scene photographs that would, at best, have demonstrated that Bellezza lied in his signed confession of the Shirley Laundromat burglary, might have changed the conviction. The third habeas claim must be dismissed.

4.) Claim Seven: The prosecutor failed to turn over information about the false testimony of Detectives Harris and Cergol.

a) Substance of the claim

As his seventh habeas ground, the petitioner presents another Brady claim based on allegedly perjured testimony. Petitioner claims that, on March 19, 1996. he was arrested by the Suffolk County Police and processed on a charge of burglarizing the Laundry Experience. He also claims that, through a Freedom of Information Law ("FOIL") request, he obtained a Police Department Supplementary Report that stated that Bellezza was found on March 19, 1996 working on his car outside of 3 Hart Place, Mastic, "taken to the 5th Squad for questioning and placed under arrest for Burglary 3rd." See Pet. Mem. at Exs. G & H. The response to the FOIL request also stated that no prisoner log or other forms relating to the alleged arrest existed. Id., Ex. H.

Petitioner argues that the prosecutor failed to turn over the Supplementary Report, which would have shown certain testimony by Detectives Cergol and Harris at trial to be false. Specifically, Bellezza says that Cergol testified that, on March 19, 1996, he spoke to Bellezza about wearing a wire around Kevin O'Connor, and that, on that date, Cergol did not suspect Bellezza of being involved in any crime other than the thefts at Marina 500. (T.3 16) Detective Harris testified at trial that, on March 19, 1996, Bellezza called Harris and offered to wear a wire in a meeting with O'Connor. (TA45-46) Bellezza argues that they lied and "hid from the court the fact that at the time petitioner was asked to wear the wire; Petitioner was in fact under arrest, and not as claimed by the detectives that petitioner was not under arrest at the 5th precinct on March 19, 1996." Pet. Mem. in Supp. at 38.

The precise constitutional import of this claim of perjured testimony is not entirely clear. Petitioner argues that if the detectives had not lied about whether Bellezza was under arrest on March 19 when he was wired for a meeting with O'Connor, "the question of whether or not petitioner was read his rights, and if petitioner knowingly and willfully waived his rights would have come up, " (id. at 39), and the tape of his conversation with O'Connor, which Bellezza claimed contributed greatly to his conviction, would not have been allowed in, because he wasn't read his Miranda rights. He also claims that the "knowing use by the State of perjured testimony deprives petitioner of the due process, " (id. at 40) and that in not producing the Supplementary Report that Bellezza claims to have obtained through a FOIL request, the state violated its obligations under Brady. Id. at 41.

b) Exhaustion of the claim

The Supplementary Report and the allegedly perjured testimony of Detectives Cergol and Harris formed the factual basis of the August 2000 section 440 motion made after Bellezza filed and withdrew his first habeas petition. In his affidavit in support of that motion, Bellezza did cite to some federal cases, mentioned the Fourteenth Amendment once or twice, and referred to the prosecutor's obligation to "locate, identify and discover ROSARIO and BRADY material." Aff. in Supp. dated 8/22/00. The trial judge denied the motion on October 31, 2000, treating it as one based on a Rosario claim. Bellezza applied to the Appellate Division for leave to appeal the decision, and leave was denied on January 3, 2002. Although there are differences in the presentation of the claim to the state court and on the habeas petition, the court finds that the claim was "fairly presented" to the state court and is exhausted.

Next, the court must determine whether the claim that is now before the habeas court was adjudicated on the merits by the state court so as to invoke the AEDPA standard of review. The state court limited its decision on the section 440 motion to consideration of Bellezza's Rosario claim, holding that "[t]he defendant has alleged that a police Supplementary Report relevant to his case was not turned over to him in accordance with People v. Rosario. . . . The report in question is contained in the materials marked as a court exhibit in this case. Accordingly, the defendant's motion is devoid of merit and is in all respects denied." People v. Bellezza, No. 97E96, 1113-96 & 3100-96 (Suff. Cty. Ct. Oct. 31, 2000). As noted earlier, the Second Circuit has recently held that the state court can be said to have adjudicated a federal claim on the merits, "even if the state court does not explicitly refer to either the federal claim or to relevant federal case law, " if the state court "(1) disposes of the claim "on the merits, ' and (2) reduces its disposition to a judgment." Sellan, 261 F.3d at 312.

Here, the court reduced its disposition of Bellezza's motion to a judgment, and the overall decision was clearly one "on the merits." It is not quite so clear whether the decision disposed of Bellezza's federal constitutional claim, as opposed to his Rosario claim, on the merits, inasmuch as the federal claim is nowhere mentioned in the decision and order. Despite the lack of any reference to the Brady claim, however, the decision can be said to have been on the merits in reference to that claim. Sellan specifically held that a state court can be said to have adjudicated a state prisoner's federal claim on the merits "even if the state court does not explicitly refer to either the federal claim or to relevant case law." 261 F.3d at 312. That rule makes sense under these circumstances, where the reason that the state court gave for rejecting the Rosario claim, that is, that the material complained of was actually in the possession of the defense during the trial, renders the Brady claim equally meritless, as discussed infra. Thus, this court finds that Bellezza's federal claim was adjudicated on the merits in state court and AEDPA standards should be applied on habeas review. Even under a de novo standard of review, however, the claim is without merit.

c) The merits of the Supplementary Report claim

As a threshold matter, the court recognizes that the Supplementary Report does raise questions about exactly what happened on March 19, 1996, but finds that, viewed in the context of all the evidence, the report appears to be erroneous. Bellezza claims that he was charged with burglary of the Laundry Experience on March 19, 1996 and again on March 23, 1996. He also notes that no log book entry, "arrest report, field, and prisoner activity log relating to the arrest in question" exist. Pet. Mem. in Supp. at 40. Bellezza's explanation for the lack of such documents is a suggestion that the Police Department tampered with its logs. A more logical explanation is that the statement that Bellezza was arrested for the Laundry Experience burglary on March 19, 1996 was simply in error, and that he was actually arrested for that crime on March 23, 1996. See Resp. Mem. of Law at 23-24. In any event, the claim has no merit, whether viewed in Brady terms or simply as perjured testimony.

The petitioner argues that the prosecutor should have turned over the Supplementary Report as part of his obligation under Brady to produce exculpatory material not in the possession of the defendant. The court need not tarry over this argument, however, because, as the trial judge noted in his order dated October 31, 2000, the Supplementary Report was "contained in the materials marked as a court exhibit in this case." Because the defendant had the material, no Brady claim can be made.

Bellezza addressed the fact that the Report was a court exhibit on his application to the Second Department for leave to appeal Judge Weber's October 31st order, arguing that "even had the supplementary police report been a court exhibit it would not excuse the prosecutor from knowingly using false testimony." Construing his claim as one that the prosecutor's knowing use of false testimony resulted in a federal constitutional violation, the court finds that the claim has no merit. As noted earlier, prosecutorial misconduct consisting of failing to correct false testimony does not rise to the level of a Fourteenth Amendment violation unless there is a reasonable likelihood that the testimony was material in the sense that it affected the outcome of the trial. Pet. Mem. at 18-19. Here, despite the petitioner's claim that the perjured testimony and/or the Supplementary Report could have affected the outcome of the trial, the facts simply do not support such an outlandish claim.

Bellezza also argues that he wasn't given Miranda warnings when he was arrested on March 19, 1996; that, as a result, the tape recording of his conversation with Kevin O'Connor was tainted and should not have been allowed in as evidence; and that the taped conversation "contributed heavily towards petitioner being found guilty of the burglary charges." Pet. Mem. of Law in Supp. at 39. As a threshold matter, the court notes that Bellezza's trial counsel agreed that the tape could be played, and offered no objections whatsoever to it, thus rendering any postconviction objection moot. (T. 450) Moreover, Bellezza does not explain in any way how the portions of the tape that were played for the jury contributed to his conviction. In any event, his argument cannot provide a basis for habeas relief, because the admissibility of evidence in a state court proceeding is a matter of state law, and is not generally a ground for habeas relief unless the evidentiary error is so serious as to violate a petitioner's fundamental right to a fair trial. See Estelle v. McGuire, 502 U.S. 62, 67-69 (1991). Here, there is absolutely no support for a finding that the tape was a "crucial, critical, highly significant factor" in Bellezza's conviction.

Nor can the claim, viewed under Rosario, provide a basis for habeas relief. "Any error under Rosario would be a violation of state law, and, thus, not subject to review under a petition for a writ of habeas corpus." Morrison v. McClellan, 903 F. Supp. 428, 429 (E.D.N.Y. 1995); see also Clark v. Greiner, 2001 U.S. Dist. LEXIS 1317, at *15 (E.D.N.Y. Feb. 2, 2001). Compare Flares v. Demskie, 215 F.3d 293 (2d Cir.) (considering habeas petitioner's claim that Rosario violation occurred and that his attorney's waiver of the Rosario violation as basis for new trial violated his Sixth Amendment right to effective assistance of counsel), cert. denied, 531 U.S. 1029 (2000); but see Flares, 215 F.3d at 305-06 (Van Graafeiland, J., dissenting) (criticizing use of Rosario violation as basis for finding of ineffective assistance of counsel based on "long line of consistent federal authority" including Butler v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y. 1974) (Weinfeld, J.), aff'd, 508 F.2d 837 (2d Cir. 1975); Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("Federal habeas corpus relief does not lie for errors of state law."); Stephens v. Costello, 55 F. Supp.2d 163, 167 (W.D.N.Y. 1999) (""Failure to turn over Rosario material is not a basis for habeas relief as the Rosario rule is purely one of state law."') (quoting Green v. Artuz, 990 F. Supp. 267, 274 (S.D.N.Y. 1998)); Morrison, 903 F. Supp. at 429) (additional citations omitted).

"While the Rosario rule has a federal counterpart, see Jencks v. United States, 353 U.S. 657, 18 U.S.C. § 3500, neither the Rosario nor the Jencks rule is compelled by the United States Constitution." Clark, 2001 U.S. Dist. LEXIS 1317 at * 15. The court in Clark explained that "failure to fulfill a disclosure obligation "can implicate constitutional rights if it violates the due process mandates" of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Id. at *15. Here, however, as explained above, the claim does not rise to the level of a Brady violation or any other constitutional violation.

In sum, the denial of Bellezza's August 2000 section 440 motion did not constitute an unreasonable application of federal law, and the claim must be dismissed.

The Non- Brady Claims

5.) Claim Four: The trial court erred when it denied Bellezza's request to call Ms. Caggiano.

a) Substance of the claim

As his fourth ground for habeas relief, Bellezza asserts that the refusal of the trial judge to call Mabel Caggiano to testify resulted in an "unconstitutionally unfair" trial. At trial, petitioner provided an offer of proof that Ms. Caggiano, Bellezza's aunt, would testify that in the early morning hours of March 23, 1996, after petitioner was arrested, Liloutie Fallon called her and stated that petitioner wanted an attorney. Bellezza's counsel told the court that he wanted to introduce Caggiano's testimony because it would tend to corroborate petitioner's claim that he wanted an attorney. (T. 564-67) In other words, Fallon's alleged statement to Caggiano that Bellezza asked for an attorney was being offered to show that Bellezza actually made that request. Thus, it was hearsay, indeed double hearsay, and the state judge found as much. (T. 565) In his habeas petition, Bellezza focuses on Caggiano's proffered testimony as being offered primarily for the purpose of impeaching Fallon, but the record belies that claim. Petitioner never questioned Fallon as to whether she spoke with anyone the morning after petitioner's arrest about whether he wanted an attorney. Thus, no foundation was laid as to this issue and there was nothing to impeach.

b) Exhaustion of the claim

This factual issue was raised by petitioner in his appeal to the Appellate Division, and review by the New York Court of Appeals was denied. It is not clear, however, that the legal basis for the federal claim now advanced by petitioner was fairly presented to the state courts. In his brief on appeal, he did not raise any federal constitutional issues or cite to any state or federal cases that raise such issues. Also lacking from the argument are any words or references that might have alerted the state court to a specific federal constitutional claim. Bellezza did state, in the third point heading and in the last sentence of the third point, that the court's refusal to admit testimony by Ms. Caggiano denied him a fair trial.

The Second Circuit has noted that the greatest difficulty in determining whether a federal constitutional claim has been fairly presented to a state court arises when "in the state court the petitioner has described his claim in very broad terms, such as denial of a `fair trial.'" Daye, 696 F.2d at 193. The Second Circuit opined that the "concept of fairness embraces many concrete notions," some of which present constitutional questions and some of which do not. Id. at 193-94. "The general principle governing assessment of whether a fair trial claim is of constitutional dimensions is that where the claim rests on a factual matrix that is "well within the mainstream of due process adjudication, ' [citations omitted] the state courts must be considered to have been fairly alerted to its constitutional nature." Id. On appeal, Bellezza argued that Caggiano's testimony "would have proven that Ms. Fallon was harboring some sort of hostility against [Bellezza] causing her to portray [Bellezza] as a suborner of perjury." Appellant's Brief at 18-19. The focus of the argument was that proof of a witness's hostility is not a collateral matter, and may be shown by "proving acts evidencing said hostility through the testimony of other witnesses." Id. at 18. Bellezza also argued that the proffered testimony did not constitute hearsay, as the trial judge had ruled. Id. at 19.

To the extent that Bellezza argued that the proffered testimony was not hearsay, no federal constitutional claim can be inferred. A determination of the admissibility of evidence is, as noted several times in this Report, a matter of state law that does not fall "well within the mainstream of due process adjudication." Indeed, evidentiary rulings are not generally a ground for habeas relief unless the evidentiary error is so serious as to violate a petitioner's fundamental right to a fair trial. See Estelle, 502 U.S. at 67-69. The question of whether Fallon was a hostile witness also does not strike this court as resting on a "factual matrix that is "well within the mainstream of due process adjudication." Daye, 696 F.2d at 193.

A constitutional claim can, under some circumstances, be inferred from the state court's prior treatment of similar claims, or from the cases cited to in argument. "[Elven if a particular matter is not treated generally as having constitutional dimension, if the courts of the state in question have themselves previously treated that fact pattern as appropriate for constitutional analysis, it would be unreasonable to suppose that they are not alert to constitutional considerations. Thus we consider that a defendant who cites state precedent that employs pertinent constitutional analysis has adequately put the state courts on notice of the constitutional thrust of his claim." Id. at 194. Here, none of the three cases cited to by Bellezza in his brief on appeal — People v. Brooks, 131 N.Y. 321 (1892); People v. Brown, 26 N.Y.2d 88 (1970); & People v. Webster, 139 N.Y.2d 73 (1893) — contains any constitutional analysis or citations to any federal cases.

In short, nothing in Bellezza' s presentation of the Caggiano testimony claim to the state court put that court on notice that the claim had a constitutional dimension. Thus, Bellezza failed to fairly present his federal claim to state court, and it is unexhausted. It is also procedurally barred from further review in state court, inasmuch as the same claim was already presented to the state court in terms of a state law violation, and it is thus procedurally defaulted. See Aparicio, 269 F.3d at 90 (When a federal court finds that "`the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claims procedurally defaulted.") (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)).

The petitioner has not shown, nor can he, cause for the default, inasmuch as the presentation of the evidentiary claim that Caggiano's testimony was improperly excluded was appropriately raised in only state law terms. Even if Bellezza could show some cause for the default, he could not meet the prejudice standard. As noted earlier, a petitioner "must show not only a `possibility' of prejudice, but that the `errors at his trial . . . worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Lawrence, 91 F. Supp.2d at 539 (quoting Metts v. Miller, 995 F. Supp. 283, 295 (E.D.N.Y. 1997) (additional internal citations omitted)). Exclusion of Ms. Caggiano's testimony does not meet that standard. The claim having been procedurally defaulted and no excuse or prejudice having been shown, the claim does not provide any basis for habeas relief and must be dismissed.

6.) Claim Five: The trial court erred in allowing Detective Harris's bolstering hearsay testimony.

a) Substance of the claim

As his fifth ground for habeas relief, Bellezza claims that the trial court allowed Detective Harris to give "bolstering hearsay testimony" regarding Lioutie Fallon's statement to Harris that Bellezza asked Fallon to lie about his asking for an attorney when he was arrested. (T. 553) The gist of petitioner's argument seems to be that the court allowed in hearsay, or, as petitioner labels it, double hearsay (Pet. Mem. in Supp. at 29), and that the ruling resulted in an unconstitutionally unfair trial.

b) Exhaustion of the claim

The factual basis of this claim was raised on appeal to the Appellate Division, but it was not presented as a federal constitutional claim, other than a reference to denial of a fair trial in Point Heading II of the appellant's brief. Indeed, in his habeas petition, Bellezza does not add much to his federal claim, focusing again on the nature of the testimony as hearsay. Even assuming that petitioner has suggested a federal basis for his claim in his petition, he did not present that basis in state court. As with the Caggiano testimony claim, the petitioner has not presented a factual basis that would fall within the mainstream of due process adjudication, nor did he cite to any cases, federal or state, that address the hearsay issue presented from a constitutional perspective. Thus, the claim was not fairly presented to the state court.

Moreover, because the claim was already presented to the state court as a violation of state evidentiary law, it cannot be brought again and is procedurally barred in state court and defaulted in this court as well. Moreover, Bellezza has not shown and cannot show cause for the default. Like the trial court's refusal to admit the testimony of Mabel Caggiano, its overruling of defense counsel's objection to Harris's testimony on hearsay grounds was purely a matter of state evidentiary law and cannot form the basis for federal habeas relief. He has not met and cannot meet the prejudice standard discussed supra. As with his other claims, the Caggiano claim having been procedurally defaulted and no cause or prejudice shown, it cannot provide any basis for habeas relief and must be dismissed.

At any rate, even if the admission of the hearsay testimony was error, the erroneous evidentiary ruling did not deny petitioner a fundamentally fair trial.

7. Claim Six: Bellezza received ineffective assistance of counsel at trial.

a) Substance of the claim

Bellezza claims, as his sixth ground for habeas relief, that his trial counsel was ineffective in that he failed to properly investigate "witnesses prior testimony, criminal history information, and obtain police reports, i.e., Ms. McCarthy, and Ms. Fallon's. As well as investigate the where about of the keys possessed by Mr. Spezzano, and if Mr. Spezzano had keys upon his arrest, and if the prosecutor had knowledge of the keys." (Sic) Pet. Mem. of Law at 32. In other words, Bellezza claims that his trial counsel mishandled several of the issues that form the other six grounds in Bellezza's habeas petition.

b) Exhaustion of the claim

Bellezza first raised the claim of ineffective assistance of trial counsel in the pro se section 440 motion filed on February 10, 1998. The factual bases for his claim included the alleged failure of trial counsel to investigate a witness's prior history, failure to investigate a witness's prior trial testimony, failure to investigate and obtain prior police reports, and failure to defend Bellezza's state and federal constitutional rights and due process rights. Aff. in Supp. of § 440 motion at 1, 2 & 7-8. Bellezza also accused trial counsel of ignoring Bellezza's request that the lawyer get an expert witness to testify that Bellezza needed reading glasses and could not have read the confession that he signed without them. Finally, he accused the lawyer of knowingly participating in the introduction of fraudulent testimony in violation of his due process rights and right to a fair trial. Id. at 8. Thus, Bellezza did indicate that he was making a claim based in part on federal constitutional rights.

The trial judge denied the motion, holding that there was no support "in the Court record or in [thel present motion . . . that [Bellezza] was provided ineffective assistance of counsel at trial. The mere fact that the defendant was convicted does not support the allegation that trial counsel was ineffective, particularly in view of the overwhelming evidence presented against the defendant at trial." People v. Bellezza, No. 974E-96, 1113-96 & 3100-96, at 2 (Suffolk Cty. Ct. May 14, 1998). This court need not determine if the claims were "fairly presented" to the state court in the pro se motion, because, even assuming that they were, they must be dismissed. On June 2, 1998, Bellezza filed a pro se application to the Appellate Division, seeking leave to appeal from Judge Weber's May 14, 1998 order regarding McCarthy's criminal history. In his application for permission to appeal the decision, Bellezza did not seek to appeal the decision regarding his ineffective assistance claim, and this court deems it to have been abandoned. In abandoning the claim, Bellezza did not "fairly present the claim `to the highest court in the pertinent state.'" Aparicio, 269 F.3d at 89-90 (quoting Pesina, 913 F.2d at 54 (2d Cir. 1990)). Thus, Bellezza has procedurally defaulted those claims, and they cannot be reviewed by the federal habeas court. Nor has he shown cause and prejudice to excuse the default.

Moreover, the claim would not succeed even if reviewed on the merits. In Strickland v. Washington, the Supreme Court established the standard by which counsel's conduct is reviewed when a claim of ineffective assistance of counsel is raised. 466 U.S. 668 (1984). First, the petitioner must show that his attorney's representation fell below an objective standard of reasonableness. Then, petitioner must show a reasonable probability that the result of the proceeding would have been different, if not for counsel's errors. Id. at 688-94. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. There is a strong presumption that counsel acted within the "wide range" of acceptable professional assistance. Id. at 694.

Here, each of the instances of ineffective counsel that petitioner offers was not of sufficient significance to the finding of guilt to have "undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Indeed, as has been noted repeatedly throughout this report, the grounds advanced by petitioner — Fallon' s purported lies, McCarthy's arrest record, and the Supplementary Report, are simply not material to the conviction, given the overwhelming evidence against Bellezza that was introduced at trial by the prosecution. A review of the record demonstrates that trial counsel rendered assistance well within the acceptable range, and petitioner has offered no evidence to the contrary.

For all of these reasons, the petitioner, Frank Bellezza, has not demonstrated any basis for habeas relief.

CONCLUSION

The petition for a writ of habeas corpus is denied.

This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175—77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").

A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. There is no such claim warranting an appeal in this case. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).

SO ORDERED.

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