United States District Court, S.D. New York
January 23, 2004.
WILFRED CANCELA, Petitioner, -v.- FLOYD G. BENNETT, Superintendent, Elmira Correctional Facility, Respondent
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Wilfred Cancela brings this petition for writ of habeas corpus
pro se pursuant to 28 U.S.C. § 2254. Following a
jury trial in the New York State Supreme Court, New York County, Cancela
was convicted of one count of Robbery in the Second Degree under N.Y.
Penal Law § 160.10(1). He was sentenced as a persistent violent
felony offender to a prison term of 16 years to life. Cancela is
currently incarcerated pursuant to that judgment at the Five Points
Correctional Facility in Romulus, New York. For the reasons stated below,
Cancela's petition should be denied.
Cancela and his wife, Janet Jones, were charged in a single indictment
stemming from two robberies occurring on March 27, 1998 and March 31,
1998. See Brief for Defendant-Appellant, dated January 2000
("Pet. App. Div. Brief) (reproduced in Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed
November 28, 2001 (Docket #2) ("Petition")), at 2. Both defendants were
charged with Robbery in the First Degree,
Robbery in the Second Degree and Criminal Possession of a Weapon in
the Third Degree. Id. at 3. The charges against Cancela,
however, were based only on the March 31 incident while the charges
against Jones were based on both the March 27 and the March 31 incidents.
Id. at 2.*fn1 Cancela and Jones were tried together.
The following evidence was presented by the People at trial: In March
1998, Harry Diaz managed two grocery stores in Manhattan directly across
the street from each other 148 Food Plaza and Superior Market.
(Cruz: Tr. 375, 379; Diaz: Tr. 449-50). Adalberto Cruz and Marino LeBron
worked for Harry Diaz at both stores as a janitor and security guard,
respectively. (Cruz: Tr. 374-75; LeBron: Tr. 490). On the morning of
March 27, 1998, they were working at 148 Food Plaza. (Cruz: Tr. 375;
LeBron: Tr. 490). At approximately 7:30 a.m., LeBron saw Jones enter the
store, take eight containers of liquid soap, place them in a black
plastic bag that she had removed from her pocket and walk toward the
exit. (LeBron: Tr. 490-93, 501-03, 510-11). LeBron confronted Jones near
the store's exit but Jones said that the soap belonged to her. (LeBron:
Tr. 491, 493, 503). As LeBron took the bag away from Jones, she cut his
right middle finger with what he thought was a razor. (LeBron: Tr.
491-93, 499, 503-04, 522-24). Cruz, who had been mopping the floor, heard
a noise, saw that Jones was running out of the store and grabbed her just
as she was about to leave. (Cruz: Tr. 375-76, 403-04, 427). He released
her when another employee told him that LeBron had already recovered the
merchandise. (Cruz: Tr. 376, 404, 428; LeBron: Tr. 493, 503-04). Neither
nor LeBron called the police. (Cruz: Tr. 378; LeBron: Tr. 494,
On March 31, 1998, Cruz was working at the Superior Market. (Cruz: Tr.
378-79). At about 7:30 a.m., while he was mopping the floor, he saw Jones
enter the store. (Cruz: Tr. 379). Cruz recognized Jones from the incident
on March 27 at 148 Food Plaza and alerted the cashier to her presence.
(Cruz: Tr. 379, 408-10, 444). Cruz watched Jones walk toward the back of
the store and place packages of diapers in a black plastic bag. (Cruz:
Tr. 379-80, 410-12, 433-34). When Cruz confronted her, Jones said that
she had bought the diapers at another store and that she had entered the
Superior Market with them. (Cruz: Tr. 379-81, 412). Cruz informed the
manager, Harry Diaz. (Cruz: Tr. 381; Diaz: Tr. 450-51, 466). Harry Diaz
asked Jones if she had a receipt and she said that she did not. (Cruz:
Tr. 382). Cruz tried to take the diapers away from her but she resisted.
(Cruz: Tr. 381-82, 413).
Cancela then entered the store and demanded to know what was happening.
(Cruz: Tr. 382; Diaz: Tr. 452). Cruz replied that Jones had been
attempting to steal diapers. (Cruz: Tr. 382). Cancela repeated Jones's
earlier statement that the diapers had been purchased at another store.
(Cruz: Tr. 382, 414). When Harry Diaz asked to see a receipt, Cancela
said that they had thrown it away. (Cruz: Tr. 382). Cancela then became
angry and threw a punch at Cruz. (Cruz: Tr. 382, 414-15, 437; Diaz: Tr.
452, 473). Harry Diaz grabbed Cancela while Cruz began to punch him.
(Cruz: Tr. 383-84, 415-17, 437-41; Diaz: Tr. 453, 473-74). Cancela
eventually freed himself and left the store along with Jones. (Cruz: Tr.
384-85; Diaz: Tr. 455, 475). Cruz watched Cancela and Jones as they left
the store and noticed that Jones was holding in her hands the plastic bag
filled with diapers and a box cutter. (Cruz: Tr. 384, 398-99, 418,
420-21, 439, 443, 445-46). Moments later, Cancela attempted to re-enter
the store but was held back by
Jones. (Cruz: Tr. 385; Diaz: Tr. 455). Cruz then called the police.
(Cruz: Tr. 385, 398; Diaz: Tr. 457).
Meanwhile, LeBron and Kinley Diaz, Harry Diaz's brother, were working
across the street at 148 Food Plaza. (Cruz: Tr. 386; Diaz: Tr. 457, 475;
LeBron: Tr. 495, 515, 519-20). They saw that a fight had broken out at
the Superior Market and went there. (Cruz: Tr. 386; Diaz: Tr. 457, 475;
LeBron: Tr. 495, 515, 519-20). By then, Cancela and Jones had begun to
walk down the street away from the Superior Market. (Diaz: Tr. 458,
461-63, 476). Harry Diaz and Cruz told Kinley Diaz what had happened, at
which point Kinley Diaz grabbed a baseball bat and followed Cancela and
Jones. (Cruz: Tr. 386-87; Diaz: Tr. 458, 477). Harry Diaz went with him,
approached Jones and grabbed the diaper bag from her. (Diaz: Tr. 458,
477-78). The police then arrived. (Diaz: Tr. 458, 478).
After speaking with various witnesses, including Cruz, Harry Diaz and
Kinley Diaz, the police arrested Cancela and Jones. (Vega: Tr. 274-75;
Williams: Tr. 320-21; Washington: Tr. 345-46; Vanegas: Tr. 361-62). It
took between six and eight officers to arrest Cancela because he had
backed up against a wall and grabbed onto a gate. (Vega: Tr. 277;
Williams: Tr. 322-24, 337; Washington: Tr. 347-48, 354-55; Vanegas: Tr.
362-63). The officers searched the area for the box cutter or any similar
sharp instrument but were unable to find any. (Vega: Tr. 278-79, 305-06;
Williams: Tr. 326-27, 340; Washington: Tr. 356; Vanegas: Tr. 363-64).
Cancela did not present any evidence at trial.
On February 2, 1999, the jury found Cancela guilty of Robbery in the
Second Degree under N.Y. Penal Law § 160.10(1). (Tr. 724). He was
acquitted of the other two charges. (Tr.
723-24).*fn2 Cancela was sentenced on March 4, 1999 as a
persistent violent felony offender to a prison term of 16 years to life.
(Sentencing Tr. 19, 26).
B. Cancela's Direct Appeal
On appeal to the Appellate Division, First Department, Cancela raised
the following two issues: (1) that the evidence adduced at trial was
legally insufficient to prove beyond a reasonable doubt that Cancela
intended to help Jones steal diapers, see Pet. App. Div. Brief
at 14-16; and (2) that the trial judge erroneously failed to instruct the
jury not to consider evidence from the March 27 incident in deliberating
on the March 31 incident, see id. at 17-29.
On June 13, 2000, the Appellate Division unanimously affirmed Cancela's
conviction. People v. Cancela, 273 A.D.2d 77 (1st Dep't 2000).
With respect to the first issue, the court held that it was "not
preserved" and "decline[d] to review it in the interest of justice."
Id. at 77. The court then went on to state that, "[w]ere we to
review this claim, we would find that the evidence supports the jury's
verdict. The evidence supported reasonable inferences that [Cancela] and
[Jones] were following a plan whereby [Jones] would shoplift property
and, if confronted, would claim to have bought the property elsewhere,
whereupon [Cancela] would enter, recite the same false explanation, and
use force to overcome any resistance to the taking." Id. at
77-78. Similarly, on the second claim the court held that it was
"unpreserved" and "decline[d] to review it in the interest of justice."
Id. at 78. In an alternative holding, the court stated that,
"[w]ere we to review this claim, we would find the court's instructions
adequately conveyed the appropriate
By letter from counsel dated July 6, 2000, Cancela sought leave to
appeal from the New York Court of Appeals with respect to the two issues
raised in his brief to the Appellate Division. See Letter from
Judy C. Seiff to the Hon. Judith Kaye, dated July 6, 2000 (reproduced as
Ex. D to Affidavit in Opposition to Petition for a Writ of Habeas Corpus,
filed April 4, 2002 (Docket #7) ("Resp. Aff.")), at 1. On November 9,
2000, leave was denied. People v. Cancela, 95 N.Y.2d 933
C. The Instant Habeas Corpus Petition
Cancela timely filed this petition for writ of habeas corpus on
November 28, 2001. In it, he raises the same two issues as he raised on
appeal to the Appellate Division. Compare Petition ¶ 12,
with Pet. App. Div. Brief at 14-29. Respondent has opposed the
petition. See Resp. Aff. ¶ 1. Although he sought and was
granted an extension until May 28, 2003 to file reply papers,
see Memorandum Endorsement, filed February 28, 2003 (Docket
#8), Cancela has not filed any. On November 18, 2003, the matter was
referred to the undersigned for report and recommendation.
28 U.S.C. § 2254(b)(1)(A) provides that a petition for writ of
habeas corpus shall not be granted unless the petitioner "has exhausted
the remedies available in the courts of the State." This requirement has
been interpreted as requiring a petitioner to present his or her claims
in federal constitutional terms to all levels of the state appellate
courts. See, e.g., Grey v. Hoke,
933 F.2d 117, 119-20 (2d Cir. 1991); Morgan v. Jackson, 869 F.2d 682,
684 (2d Cir.), cert. denied,
493 U.S. 920 (1989). Here, Cancela made clear the federal
constitutional nature of the two claims presented to the Appellate
Division through his citation to federal case law and constitutional
provisions. See Pet. App. Div. Brief at 15, 17. Such citations
are sufficient for exhaustion purposes under the habeas corpus statute.
See generally Dave v. Attorney Gen.,
696 F.2d 186, 192-93 (2d Cir. 1982) (en banc), cert
denied, 464 U.S. 1048 (1984). Each claim is discussed below.
B. Legal Insufficiency Claim
Cancela first claims that "[t]here was no evidence to support the
allegation that when [Cancela] entered the store he intended to steal
diapers." Petition ¶ 12(A). He argues that, "[a]t most, the evidence
demonstrate[d] that he was guilty of second-degree attempted assult [sic]
when he acted, overzealously, to protect his wife from a man wielding a
Federal habeas review of a claim is prohibited if a state court rests
its judgment on an "independent and adequate" state ground.
See, e.g., Lambrix v. Singletary,
520 U.S. 518, 522-23 (1997). Where a state court rejects a petitioner's claim
because the petitioner failed to comply with a state procedural rule, the
procedural default constitutes an "independent and adequate" ground for
the state court decision. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 729-30, 749-50(1991).
1. The "Independent" Requirement
Here, the Appellate Division rejected Cancela's legal insufficiency
claim on an "independent" state law ground. In the trial court, Cancela
never argued that the evidence was legally insufficient on the question
of his intent to steal. Rather, following the close of the People's case,
Jones's counsel stated as follows: "I would move for a trial order of
regarding each and every count of the indictment." (Tr. 529). The
court asked Cancela's counsel if he was making the same motion and he
said, "Yes, Judge." (Tr. 529). No grounds were supplied at that time.
While he renewed his general motion to dismiss following the close of
evidence, (Tr. 542), the only specific arguments made were that "there
was no credible evidence that any sharp object was ever used or
threatened to be used against any persons," (Tr. 540), and that "[t]here
was no intent to use unlawfully against another that same alleged
weapon," (Tr. 542). Cancela did not in any way alert the trial court to
the issue raised in the Appellate Division and in this Court: whether the
evidence was sufficient to show that Cancela intended to steal property
from the store.
The People thus argued on appeal that Cancela's claim was not preserved
for appellate review because, "at the end of the presentation of the
evidence, [Cancela] made only a generalized motion for a trial order of
dismissal. Because he never argued that the People failed to prove the
element of intent, that specific claim is unpreserved for . . . review."
Brief for Respondent, dated April 2000 ("Resp. App. Div. Brief)
(reproduced as Ex. B to Resp. Aff), at 9 (citing People v.
Gray, 86 N.Y.2d 10, 20 (1995); People v. Watson,
245 A.D.2d 87, 87 (1st Dep't 1997); People v. Robinson, 239 A.D.2d 258,
258 (1st Dep't 1997)). The Appellate Division agreed that the issue
was "not preserved." Cancela, 273 A.D.2d at 77.
Relying on New York's contemporaneous objection rule, N.Y. Crim. Proc.
Law ("CPL") § 470.05, the New York Court of Appeals has made clear
that an insufficiency-of-the-evidence claim is preserved for appeal only
where a motion to dismiss in the trial court alerts the court to the
specific deficiency alleged. See, e.g.,
Gray, 86 N.Y.2d at 19 ("[W]here a motion to dismiss for
insufficient evidence [is] made, the preservation requirement compels
that the argument be
`specifically directed' at the alleged error. . . ." (quoting
People v. Cona, 49 N.Y.2d 26, 33 n.2 (1979))); accord
People v. Elmore, 269 A.D.2d 404, 404 (2d Dep't 2000) ("The
defendant's generalized request for a trial order of dismissal was not
sufficiently specific to preserve for appellate review his challenge to
the legal sufficiency of the identification evidence or his contention
that the People failed to prove his intent to commit robbery beyond a
reasonable doubt." (citations omitted)). As Gray explained,
[t]he chief purpose of demanding notice through
objection or motion in a trial court, as with any
specific objection, is to bring the claim to the
trial court's attention. A general motion fails at
this task. As a practical matter, a general motion
to dismiss is often no more helpful to the Trial
Judge than would be a motion predicated on an
erroneous ground. A sufficiently specific motion
might provide the opportunity for cure before a
verdict is reached and a cure is no longer
86 N.Y.2d at 20-21 (citations omitted).
While the Appellate Division did not specifically state the basis for
its holding that the issue was not preserved, its terse statement that
the issue was "not preserved" was sufficient to show that it was relying
on a procedural bar. See, e.g., Harris v.
Reed, 489 U.S. 255, 265 n.12 (1989). In addition, it makes no
difference that the Appellate Division went on to state that, "[w]ere we
to review this claim, we would find that the evidence supports the jury's
verdict," Cancela, 273 A.D.2d at 77. The procedural default
doctrine applies even where the state court issues an alternative holding
addressing the procedurally defaulted claim on the merits. See,
e.g., Harris, 489 U.S. at 264 n.10; Velasquez v.
Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam).
Finally, that the Court of Appeals issued a summary denial of leave to
appeal is of no moment because where "the last reasoned opinion on the
claim explicitly imposes a procedural default" as is true of the
Appellate Division's decision in this case a federal habeas court
"will presume that a later decision rejecting the claim did not
silently disregard that bar and consider the merits." Yist v.
Nunnemaker, 501 U.S. 797, 803 (1991): accord Levine
v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (federal
habeas court looks to Appellate Division's reliance on procedural bar
where Court of Appeals issues summary denial of leave to appeal). Thus,
the procedural default relied on by the Appellate Division constituted an
"independent" state law ground for the decision.
2. The "Adequate" Requirement
The remaining question is "whether the state ground relied upon is
`adequate' to preclude federal habeas review." Garcia v. Lewis,
188 F.3d 71, 77 (2d Cir. 1999). A procedural bar is "adequate" if it is
based on a rule that is "`firmly established and regularly followed' by
the state in question." Id. (quoting Ford v. Georgia,
498 U.S. 411, 423-24 (1991)). Whether application of the procedural rule
is "firmly established and regularly followed" must be judged in the
context of "the specific circumstances presented in the case, an inquiry
that includes an evaluation of the asserted state interest in applying
the procedural rule in such circumstances." Cotto v. Herbert,
331 F.3d 217, 240 (2d Cir. 2003) (citing Lee v. Kemna,
534 U.S. 362, 386-87 (2002)). The Second Circuit has set forth the following
"guideposts" for making this determination:
(1) whether the alleged procedural violation was
actually relied on in the trial court, and whether
perfect compliance with the state rule would have
changed the trial court's decision; (2) whether
state caselaw indicated that compliance with the
rule was demanded in the specific circumstances
presented; and (3) whether petitioner had
"substantially complied" with the rule given "the
realities of trial," and, therefore, whether
demanding perfect compliance with the rule would
serve a legitimate governmental interest.
Id. (citing Lee, 534 U.S. at 381-85).
Application of these considerations to Cancela's case leads to the
conclusion that the procedural bar relied on by the Appellate Division is
one that is "firmly established and regularly followed." With respect to
the first guidepost, Cancela's failure to specifically argue that the
evidence on the issue of intent was legally insufficient was "actually
relied on" by the trial court in the sense that the trial court never was
given occasion to consider and conceivably cure by allowing
additional evidence, see Gray, 86 N.Y.2d at 20-21
the alleged insufficiency. Cf. Cotto, 331
F.3d at 243 (while "the likely impact of a timely objection involves a
certain degree of speculation," it is possible that "the trial court may
well have come to a different conclusion" had the reasons for the
objection been given).
As for the second consideration, it is well-settled under New York law
that the failure to alert a trial court to the specific basis for a
motion to dismiss precludes later use of that motion as a vehicle for
creating a question of law on appeal. See, e.g.,
Gray, 86 N.Y.2d at 19; People v. Samuels, 303 A.D.2d 769,
770 (2d Dep't 2003); People v. Seabrooks, 289 A.D.2d 515,
515 (2d Dep't 2001); Elmore, 269 A.D.2d at 404. Thus, state
case law indicates that "compliance with the rule was demanded in the
specific circumstances presented," Cotto, 331 F.3d at 240.
The final guidepost likewise fails to help Cancela for there is no
argument that he "substantially complied" with CPL § 470.05 through
his generalized motion to dismiss. The trial court was not in any way
alerted that there was any failure in the prosecution's proof on the
issue of Cancela's intent to steal.
In sum, analysis of the Cotto "guideposts" demonstrates that
the Appellate Division's reliance on the state procedural rule in this
situation constitutes both an "independent" and an "adequate" ground for
the state court decision. Cancela's legal insufficiency claim is thus
procedurally defaulted. Consistent with this conclusion, federal
habeas courts have routinely refused to consider claims rejected as
unpreserved by the New York state courts on the ground that the defendant
failed to alert the trial court to the specific issue being raised for
review. See, e.g., Besser v. Walsh, 2003 WL
22093477, at *21 (S.D.N.Y. Sept. 10, 2003). adopted
by 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003); Carr v.
Fischer, 283 F. Supp.2d 816, 834-35 (E.D.N.Y. 2003); Floyd v.
Miller, 2003 WL 21845995, at *6 (E.D.N.Y. Aug. 6, 2003);
Farrington v. McLaughlin, 2003 WL 21812903, at *5 (E.D.N.Y.
July 23, 2003); Giles v. Kuhlmann, 2002 WL 1751401, at *2
(E.D.N.Y. July 11, 2002); Jones v. Duncan, 162 F. Supp.2d 204,
211-14 (S.D.N.Y. 2001); see also Garcia,
188 F.3d at 79-82 (CPL § 470.05(2) constitutes an "adequate" state
ground precluding habeas review).
Although procedurally defaulted claims are deemed exhausted for habeas
purposes, a procedural default 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, 489 U.S. at 262 (citations omitted);
accord Coleman, 501 U.S. at 749-50; Fama v.
Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000);
Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994),
cert. denied, 514 U.S. 1054 (1995). To show a "fundamental
miscarriage of justice," a petitioner must demonstrate "actual
innocence." See, e.g., Calderon v.
Thompson, 523 U.S. 538, 559 (1998); Dunham v. Travis,
313 F.3d 724, 730 (2d Cir. 2002).
Even construing his pro se petition liberally,
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(per curiam), Cancela makes no claim of circumstances constituting
"cause" for the procedural default. Nor has he provided evidence of
"actual innocence." Instead, he has merely
reiterated his previous attacks on the strength of the People's
case at trial. Thus, federal habeas review of Cancela's claim is barred.
C. Improper Jury Charge Claim
Cancela's second claim for habeas relief is that the trial court's
"failure to instruct the jury to consider evidence of each crime
separately with respect to each defendant, and to not weigh the evidence
from the March 27th incident, with which [Cancela] was not charged, as
they deliberated on the March 31st charge, denied [Cancela] his due
process right to a fair trial." Petition ¶ 12(B). He contends that
because the trial court did not deliver a "Multiple Offenders" charge,
the jury failed to follow the directive that it render its verdict
"separately and specifically upon each count submitted to it, and with
respect to each defendant if there be more than one," CPL §
300.10(4). See Petition ¶ 12(B). Although the trial judge
did instruct the jury that the charges relating to the March 27 incident
"ha[d] nothing to do with [Cancela]," (Tr. 674), Cancela appears to take
issue with the fact that the judge instructed the jury that they must
consider "all" of the evidence in determining whether Jones and Cancela
acted in concert during the March 31 incident, (Tr. 678). See
Pet. App. Div. Brief at 12.
Like his first claim, however, Cancela's second claim for relief is
also procedurally defaulted. Cancela's trial counsel did not object to
the charge that was proposed by the trial judge and did not request that
any specific charge including a "Multiple Offenders" charge
be given. See Tr. 543-49. In addition, after the jury
was instructed, the trial judge asked Cancela's counsel whether he had
"any exceptions or requests to charge" and he responded that he did not.
(Tr. 706). The People argued on appeal that this conduct failed to meet
the contemporaneous objection requirement contained in CPL §
470.05(2). See Resp. App. Div.
Brief at 17 (citing People v. Abrams, 232 A.D.2d 240, 240
(1st Dep't 1996); People v. Huynh, 215 A.D.2d 168, 168 (1st
Dep't 1995); People v. Catten, 214 A.D.2d 463, 463 (1st Dep't
1995)). In its decision, the Appellate Division agreed that this claim
was "unpreserved." Cancela, 273 A.D.2d at 78. While the
Appellate Division did not specifically state the basis for its holding
that the issue was not preserved, its statement was sufficient to show
reliance on a procedural bar. See, e.g.,
Harris, 489 U.S. at 265 n.12. Accordingly, the Appellate
Division rejected Cancela's claim on an "independent" state law ground.
In addition, application of the Cotto "guideposts" shows that
the procedural bar is one that is "firmly established and regularly
followed" and thus "adequate." With respect to the first guidepost,
Cancela's failure to object to the jury charge was "actually relied on"
by the trial court in the sense that the trial court never was given
occasion to reconsider and conceivably cure through supplemental
instructions the allegedly improper instruction. As for the
second guidepost, it is well-settled under New York law that the failure
to timely object to a jury charge precludes appellate review of that
instruction. See, e.g., People v. Nuccie,
57 N.Y.2d 818, 819 (1982); People v. Edwards, 292 A.D.2d 393,
393 (2d Dep't 2002); People v. Woodberry, 239 A.D.2d 448, 449
(2d Dep't 1997); People v. Haskins, 201 A.D.2d 322, 322 (1st
Dep't 1994). Thus, state case law indicates that "compliance with the
rule was demanded in the specific circumstances presented,"
Cotto, 331 F.3d at 240. The third guidepost likewise fails to
help Cancela for there is no argument that he "substantially complied"
with the state procedural rule since his counsel did not in any way alert
the trial court that he objected to the instructions given to the jury.
Accordingly, the state procedural rule is "adequate" to preclude federal
habeas review of this claim.
Finally, the Second Circuit has squarely held that the failure to
object to a jury instruction constitutes a procedural default under New
York law barring habeas review. See Reyes v. Keane,
118 F.3d 136, 138 (2d Cir. 1997) ("A state prisoner who fails to object
to a jury instruction in accordance with state procedural rules
procedurally forfeits that argument on federal habeas review."):
accord Cummings v. Artuz, 237 F. Supp.2d 475, 485
Because Cancela has not claimed that there were circumstances
constituting "cause" for the procedural default and because he does not
put forth facts in support of a claim of "actual innocence," the
procedural default constitutes an "independent and adequate" ground for
the state court decision barring federal habeas review of Cancela's
second claim for habeas relief.
For the foregoing reasons, Cancela's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from service of
this Report and Recommendation to file any objections. See
also Fed.R.Civ.P. 6(a), (e). Such objections (and any
responses to objections) shall be filed with the Clerk of the Court, with
copies sent to the Hon. George B. Daniels, 40 Centre Street, New York,
New York 10007, and to the undersigned at the same address. Any request
for an extension of time to file objections must be directed to Judge
Daniels. If a party fails to file timely objections, that party will not
be permitted to raise any objections to this Report and Recommendation on
appeal. See Thomas v. Arn. 474 U.S. 140