The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge.
A hearing was held in this matter. Petitioner was present by telephone. The petition for a writ of habeas corpus is denied for the reasons stated orally on the record. This memorandum briefly addresses petitioner's claims.
Petitioner was indicted for murder in the second degree, two counts of attempted murder in the second degree, and criminal possession of a weapon in the second and third degrees. Evidence of petitioner's guilt was overwhelming, including testimony from two eyewitnesses to the shooting and from petitioner himself that he shot the victim.
Testimony indicated that petitioner was in an argument with the victim at a shelter for the homeless. He pulled a handgun from his pocket and fired at the victim, hitting him in the chest and killing him. There was testimony that he then attempted to fire the gun at another visitor to the shelter, Charles Brown, Sr., but the gun jammed. There was also testimony that petitioner then pointed the gun at Brown's one year old son and motioned as if he would shoot him. Petitioner fled from the scene but was arrested four days later at an apartment. When detectives entered the building, petitioner jumped out of the third floor apartment, seriously injuring himself. He was brought to a hospital where he was treated for several weeks, under police custody, handcuffed at all times. He was not arraigned at the time.
About three weeks later he was indicted on the charges noted above. Several days later a warrant was issued for his arrest. He was arraigned about three weeks after that.
After a trial at which he testified in his own defense, petitioner was convicted of second degree murder and the weapons charges. The trial court dismissed one attempted murder charge and petitioner was acquitted of the other. He was sentenced to 25 years to life in prison.
In the present petition he claims (1) that the state's failure to arraign him before the grand jury indicted him violated his constitutional right to due process; (2) that the trial court's failure to provide the jury with a "missing witness" charge denied him due process and a fair trial; and (3) that his trial counsel was ineffective for failing to move to dismiss the indictment on the ground that petitioner was not arraigned before the grand jury indicted him. All claims have been exhausted.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme 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." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002).
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
Ineffective assistance of trial counsel may be cause for a procedural default, but this claim must be presented to a state court ...