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United States District Court, S.D. New York

February 5, 2004.

JESUS PEREZ, Petitioner, -against- MELVIN HOLLINS, Respondent

The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge


Jesus Perez brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for robbery, burglary, and criminal impersonation following a jury trial in New York State Supreme Court, New York County. Mr. Perez argues that his conviction should be overturned because: (1) a witness provided perjured testimony before the grand jury; (2) the court issued erroneous jury instructions; (3) the court improperly submitted lesser included offenses to the jury; (4) the verdict was against the weight of the evidence; (5) his sentence was excessive; and (6) there was judicial misconduct during the trial. For the reasons set forth below, I recommend that the petition be denied.


  On March 17, 1994, the petitioner and three others entered the Lucky 21 massage parlor and brothel at 5 West 21st Street in Manhattan. (Tr. at 864-65, 868, 873-75).*fn1 The men attacked and Page 2 robbed the occupants, including the madam, her boyfriend, and several prostitutes and customers. (Tr. at 742-44, 883-85, 1097). The petitioner and his accomplices threatened the occupants with a gun, a knife, and lit torches. (Tr. at 392, 1093, 1200, 1218). One of the robbers identified himself as "police" and displayed a badge. (Tr. at 387, 740, 1096). The perpetrators also stole large sums of cash and jewelry. (Tr. at 410-11, 1090). The men severely beat one victim, injured two others, and assaulted several other victims. (Tr. at 392, 742-44, 883-85, 1088-89). The petitioner and his accomplices then forced all of the occupants into a small room and barricaded the door from the outside. (Tr. at 781, 1089, 1222-23).

  While attempting to leave the location, the men were arrested by police officers. (Tr. at 11-12, 1884-86). Upon searching the perpetrators, police found valuables belonging to the victims and substantial amounts of cash in the possession of the petitioner and two other men. (Tr. at 180, 198-200, 413-14). Police also found a knife on the floor near one of the suspects. (Tr. at 170). A few days later, a cook found a gun in the brothel's freezer and turned it over to police. (Tr. at 26-27, 99-100, 204).

  A. Trial

  Mr. Perez and his co-defendants proceeded to trial on February 16, 1995 before New York State Supreme Court Justice Bonnie Wittner. Nine eyewitnesses recounted the conduct of the petitioner Page 3 and his accomplices. Witnesses testified that they saw Mr. Perez drag one victim to a room, heard the sounds of a beating emanating from the room, and eventually saw the victim emerge with a limp. (Tr. at 883-85, 889, 1207-08). Another witness testified that he was burned and beaten unconscious. (Tr. at 742-44). The evidence also established that the police caught the petitioner and his co-defendants fleeing the crime scene. (Tr. at 14-15).

  Mr. Perez and his co-defendants testified at trial that they acted in self defense. (Tr. at 1625-28, 1763-65). They maintained that one of the defendants had left his wallet at the brothel several weeks prior to the incident, and that several attempts to retrieve the wallet had failed. (Tr. at 1617-19). The defendants testified that on the night in question, they again attempted to obtain the wallet but were attacked by the occupants of the brothel. (Tr. at 1620, 1626-27, 1763-65).

  At the conclusion of the trial, Mr. Perez was convicted of one count of Attempted Robbery in the First Degree, in violation of New York Penal Law ("Penal Law") §§ 110.00 and 160.15(1), five counts of Robbery in the Second Degree, in violation of Penal Law § 160.10(1), (2)(a), one count of Burglary in the First Degree, in violation of Penal Law § 140.30(2), and one count of Criminal Impersonation in the First Degree, in violation of Penal Law § 190.26. (Tr. at 2554-78, 2666-69). Mr. Perez was acquitted on all robbery and burglary charges premised on the theory that he carried Page 4 a weapon while committing the crime. (Tr. at 2666-69).

  The petitioner was sentenced to an aggregate prison term of fourteen to forty-two years. The sentences consisted of two to six years on the attempted robbery count and three to nine years on each of four second degree robbery counts, these sentences to run consecutively. The petitioner also received three to nine years on the fifth second degree robbery count, five to fifteen years on the burglary count, and one to three years on the criminal impersonation count, these sentences to run concurrently with each other and with the sentences imposed on the other counts. (S. Tr. at 29-31).*fn2

  B. Direct Appeal

  Mr. Perez appealed his conviction to the Appellate Division, First Department, arguing that: (1) he was deprived of his due process right to a fair trial by the court's excessive interference in the proceedings; and (2) that his aggregate sentence was harsh and excessive. (Appellate Division Brief for Defendant-Appellant, attached as Exh. A to Declaration of Michael P. King in Opposition to Petition for a Writ of Habeas Corpus dated April 21, 2003 ("King Decl."), at 3). In a decision dated March 9, 2000, and amended on May 11, 2000, the Appellate Division unanimously affirmed Mr. Perez's conviction. People v. Galloza, 270 A.D.2d 69, 70, Page 5 705 N.Y.S.2d 35, 36 (1st Dep't 2000).*fn3 The court found that by failing to object to the trial judge's conduct, Mr. Perez had not preserved his claim, and also held that the sentence was not excessive. Id., 705 N.Y.S.2d at 36.

  In two letters dated March 23, 2000 and April 17, 2000, the petitioner sought leave to appeal to the New York Court of Appeals, relying solely on the brief submitted by a co-defendant, Garfield Ewan. Mr. Ewan argued that the Appellate Division had applied an incorrect standard in holding that the claim of judicial misconduct was not preserved for review. (Ewan's Letter Application for Leave to Appeal dated April 14, 2000 ("Ewan App."), attached as Exh. D to King Decl., at 1). On July 25, 2000, leave to appeal was denied. People v. Perez, 95 N.Y.2d 856, 714 N.Y.S.2d 7 (2000) (table).

  C. Collateral Proceedings

  On March 5, 1996, the petitioner moved before the New York State Supreme Court to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10, arguing that: (1) the indictment was defective because a prosecution witness gave perjured testimony before the grand jury; (2) attempted robbery in the first degree is not a crime recognized by law; (3) the evidence of burglary was legally insufficient; (4) the jury verdict was repugnant; and (5) the sentence imposed constituted cruel and Page 6 unusual punishment. (Petitioner's Motion to Vacate Judgment, attached as Exh. E to King Decl., at 6-24). On November 14, 1996, the State Supreme Court denied this motion. (Order of the New York Supreme Court dated Nov. 14, 1996 ("11/14/96 Order"), attached as Exh. H to King Decl.). On December 26, 1996, pursuant to CPL § 460.15, the petitioner applied for leave to appeal the denial of the CPL § 440 motion to the Appellate Division. Leave was denied on March 13, 1997. (Order of New York Supreme Court, Appellate Division dated March 13, 1997 ("3/13/97 Order"), attached as Exh. I to King Decl.).

  On October 16, 2001, the petitioner moved before the Appellate Division for a writ of error coram nobis alleging ineffective assistance of appellate counsel. The petitioner based this claim on appellate counsel's failure to argue: (1) that the verdict was legally insufficient and against the weight of the evidence; (2) that the court should not have submitted lesser included offenses to the jury; and (3) that the court improperly imposed consecutive sentences. (Petitioner's Affidavit in Support of Motion for Writ of Coram Nobis, attached as Exh. J to King Decl., ¶ 7; Memorandum in Support of Motion for Writ of Coram Nobis, attached as Exh. J to King Decl.). The Appellate Division denied the writ on June 20, 2002. People v. Perez, 295 A.D.2d 1021, 746 N.Y.S.2d 272 (1st Dep't 2002) (table).

  The petitioner filed the instant petition for a writ of habeas Page 7 corpus on October 11, 2001, raising the six claims discussed below.


  A. Perjured Grand Jury Testimony

  Mr. Perez first argues that the indictment was defective because a prosecution witness gave perjured testimony to the grand jury. He contends that the trial court lacked authority to conduct a trial, since the indictment provides the predicate for the court's jurisdiction. (Petition for Writ of Habeas Corpus ("Pet.") at 6). The respondent argues that the petitioner's claim is not reviewable in a habeas corpus proceeding because the state court's decision rejecting that claim rested on an independent and adequate state procedural rule. (Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus ("Resp. Memo.") at 13).

  Under the "independent and adequate state ground" doctrine, a habeas corpus court may not review a state court decision that "rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991); see Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003); Cox v. Miller, 296 F.3d 89, 100 (2d Cir. 2002). "This rule applies whether the state law ground is substantive or procedural." Coleman, 501 U.S. at 729; see Cotto, 331 F.3d at 238; Cox, 296 F.3d at 100.

  If the state law ground relied on is procedural, the last Page 8 state court rendering a judgment must clearly and expressly state that its judgment rests on a procedural bar. Harris v. Reed, 489 U.S. 255, 263 (1989); Cox, 296 F.3d at 100. However, "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 bar as a separate basis for its decision. Harris, 489 U.S. at 264 n.10.

  In the instant case, Mr. Perez's CPL § 440 motion was denied on the basis of CPL § 440.10(2)(b), which provides that a CPL § 440 motion must be denied if the issue raised could have been adjudicated on direct appeal. The New York State Supreme Court held that "[s]ufficient facts appear in the record to permit adequate review [on direct appeal] of each of the grounds raised on this motion and [the § 440 motion] is summarily denied." (11/14/96 Order at 2). That holding is a clear and plain statement relying on a state procedural rule. That the court also looked to the merits of the claim does not undermine the procedural bar. See Harris, 489 U.S. at 264 n.10. Nor does the subsequent order of the Appellate Division denying leave to appeal without comment. See Y1st v. Nunnemaker, 501 U.S. 797, 803 (1991) ("[w]here . . . the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.").

  To overcome a procedural bar, Mr. Perez would need to show (1) Page 9 both "cause" for not raising the claim in state court and "prejudice" resulting from the error, or (2) that a "fundamental miscarriage of justice" would result if the claim were not addressed. Coleman, 501 U.S. at 750; Dixon v. Miller, 293 F.3d 74, 80-81 (2d Cir. 2002).

  Cause for failing to raise a claim is established when the petitioner demonstrates that "some objective factor external to the defense" prevented him from following the procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). To show "prejudice", the petitioner must demonstrate that the constitutional error worked to his "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). However, Mr. Perez has not suggested any cause for failing to assert this claim on direct appeal, nor has he demonstrated prejudice resulting therefrom.

  To find a "fundamental miscarriage of justice", Mr. Perez must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496. Mr. Perez has not shown that a fundamental miscarriage of justice will result if this claim is not considered.

  Even if this claim were not procedurally barred, it would fail on the merits. It is well settled that claims of deficiencies in state grand jury proceedings are not cognizable on federal habeas corpus review. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. Page 10 1989) (citing United States v. Mechanik, 475 U.S. 66 (1986)). In Mechanik, the United States Supreme Court stated:

[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.
Mechanik, 475 U.S. at 70. This reasoning applies with even greater force where, as here, the petitioner is mounting a collateral attack on his conviction. See Lopez, 865 F.2d at 32; see also Barnes v. Giambruno, No. 01 Civ. 8965, 2002 WL 850020, at *7 (S.D.N.Y May 2, 2002).

  Thus, this claim is barred from review because the state court rejected it on the basis of an independent and adequate state procedural rule, and, in any event, it is without merit.

  B. Jury instructions

  Mr. Perez next argues that his burglary conviction was the result of an erroneous jury charge. The trial judge instructed the jury in part:

A person is guilty of Burglary in the First Degree . . . when he knowingly enters or remains unlawfully in a dwelling. . . .
[T]he People must prove . . . [t]hat on or about March 17, 1994, in the County of New York the defendants, acting in concert, entered or remained unlawfully in a dwelling.
(Tr. at 2572-73). The petitioner contends that the phrase Page 11 "unlawfully remaining" should not have been part of the jury charge because it did not apply to the facts of this case. He maintains that the court's inclusion of this phrase misled the jury into believing that it could convict him even if it found that he formed the intent to commit a crime only after entering the establishment lawfully. (Pet. at 7).

  As with the prior ground, Mr. Perez is procedurally barred from habeas relief on this claim. He raised this argument in his CPL § 440 motion, and the State Supreme Court rejected it on the ground that it should have been advanced on direct appeal. Again, Mr. Perez has not demonstrated cause and prejudice or a miscarriage of justice that would warrant relieving him of the procedural default.

  In any event, this claim would fail on the merits. When examining a contention that a jury instruction is erroneous, this Court is required to review the jury charge as a whole. Smalls v. Batista, 191 F.3d 272, 277 (2d Cir. 1999); Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir. 1996) (reviewing court should not focus on a few isolated words, but must look to the overall charge). The reviewing court's task is not to determine "whether the challenged instructions, standing alone, are erroneous or misleading, but rather whether it is `reasonably likely' that the jury applied the wrong standard." Beverly v. Walker, 118 F.3d 900, 902-03 (2d Cir. 1997). A state conviction can only be overturned when the Page 12 petitioner demonstrates that the erroneous instruction deprived him of a federal constitutional right and that he suffered actual prejudice. See Matthews v. Artuz, No. 97 Civ. 3334, 1999 WL 349694, at *6 (S.D.N.Y. May 27, 1999). Mr. Perez argues that he was entitled to a charge stating "that the jury must find that petitioner intended to commit a crime at the time he entered the premises unlawfully." (Pet. at 8). Yet, New York Penal Law § 140.30 specifically states that a person is guilty of burglary in the first degree when "he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein. . . ." Mr. Perez has made no showing that the instruction was incorrect, let alone so egregious as to violate his due process rights.

  C. Lesser Included Offenses

  Mr. Perez next argues that the trial court erred by submitting to the jury the second degree robbery counts, which he characterizes as lesser included offenses. According to the petitioner, this undermined his defense by leading the jury to reach a compromise verdict. (Pet. at 3-4).

  This claim is unexhausted. To be sure, Mr. Perez did argue in his application for a writ of error coram nobis that his appellate counsel was ineffective for failing to raise such a claim. While the ineffective assistance claim was thus exhausted, the underlying substantive claim was not. "A court considering ineffective Page 13 assistance might never reach the underlying constitutional claims, and the rejection of the ineffective assistance claims without detailed comment does not bespeak any necessary ruling on the underlying constitutional claims." Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001).

  Generally, a federal court cannot reach the merits of an unexhausted claim. 28 U.S.C. § 2254 (b), (c); see Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-24 (2d Cir. 2000). However, a claim will be deemed exhausted if it is clear that the state court would find it procedurally barred. Gray v. Netherlands 518 U.S. 152, 162 (1996); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). In this case, Mr. Perez is foreclosed from returning to state court to argue his claim because New York law provides only a single application for direct review. New York Rules of Court, Court of Appeals ("Rules of Court"), § 500.10(a); Spence, 219 F.3d at 170. Moreover, a defendant who fails to press an available claim on direct appeal is also barred from raising it on collateral review. CPL § 440.10(2)(c); Lurie, 228 F.3d at 124; Spence, 219 F.3d at 170.

  As discussed above, if a claim is procedurally barred, the federal court may not reach the merits of that claim unless the petitioner is able to demonstrate cause and prejudice, or a Page 14 miscarriage of justice. Ineffective assistance of counsel may constitute cause for the failure to preserve a claim in state court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 488. This includes ineffectiveness of appellate counsel. See Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001). "Not just any deficiency in counsel's performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution." Edwards, 529 U.S. at 451 (citing Carrier, 477 U.S. at 488-89). Moreover, in order to qualify as cause, the ineffective assistance issue must itself have been exhausted in state court. Edwards, 529 U.S. at 451-52; Carrier, 477 U.S. at 489.

  Here, Mr. Perez did exhaust his ineffective assistance of appellate counsel claim through the coram nobis proceeding. It must therefore be determined whether counsel's failure to raise the lesser included offense claim on appeal did, in fact, constitute ineffective assistance.

  To prove ineffective assistance of counsel, the petitioner must demonstrate that (1) counsel's performance was deficient, and (2) the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). This standard also applies to assistance of appellate counsel. See Jackson v. Leonardo, 162 F.3d 81, 84-85 (2d Cir. 1998); Mavo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Page 15

  Appellate counsel is not obliged to identify every possible error in the record or to "raise every nonfrivolous issue that the defendant requests." Jones v. Barnes, 463 U.S. 745, 754 & n.7 (1983); see also Jackson, 162 F.3d at 85. There is a "strong presumption" of attorney competence, and the court's standard of review of an appellate counsel's performance is "highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). For an appellate attorney to be found ineffective for failing to raise certain issues, the court must determine that "significant and obvious" issues were abandoned, while "clearly and significantly weaker" issues were pursued. Mayo, 13 F.3d at 533.

  The petitioner's appellate attorney was not ineffective for failing to raise the lesser included offense issue on direct appeal. First, this claim was not preserved since the petitioner's trial counsel did not object to the jury charge. "Under New York law, a defendant must object to an alleged error in a jury instruction before the trial court in order to preserve the issue for appeal." Reves v. Keane, 118 F.3d 136, 138 (2d Cir. 1997) (citing CPL § 470.05(2)); see also People v. Walker, 265 A.D.2d 192, 192, 697 N.Y.S.2d 248, 249 (1st Dep't 1999). Furthermore, the counts of second degree robbery were specifically charged in the original indictment and were not submitted to the jury merely as lesser included offenses. (Tr. at 2554-78). Neither the prosecution nor the defense lawyer requested that second degree Page 16 robbery be submitted to the jury as lesser included offenses. (Tr. at 2103-08). Indeed, the judge stated, "[a]s the record stands now, there will be no lesser included charges charged." (Tr. at 2108). Thus, this argument is meritless, and it was therefore appropriate for counsel to forego it. As Mr. Perez has failed to demonstrate that counsel's performance was deficient, his claim of ineffective assistance of counsel also fails.

  D. Sufficiency of the Evidence

  Mr. Perez next argues that the evidence supporting the convictions was legally insufficient because his acquittal on the gun-related charges illustrates the jury's determination that witness testimony about the presence of a gun was incredible. Accordingly, testimony about the robbery should also be discredited. (Pet. at 4).

  Like his lesser included offense claim, this argument was advanced in state court only as the predicate for Mr. Perez's ineffective assistance of appellate counsel claim. Thus, it is unexhausted and procedurally defaulted. But, again, the petitioner could demonstrate cause for the default if his appellate counsel were constitutionally ineffective.

  Yet, counsel's failure to raise this claim on appeal does not satisfy the requirements of Strickland. A petitioner bears a "very heavy burden" in "challenging the sufficiency of the evidence underlying his conviction." Knapp v. Leonardo, 46 F.3d 170, 178 Page 17 (2d Cir. 1995) (internal quotations and citation omitted). "To succeed, [the petitioner] must demonstrate that viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id. (internal quotations and citation omitted); see also Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

  A federal judge reviewing a sufficiency of evidence claim does not make an independent determination as to whether the evidence demonstrates guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19. Rather, the judge must construe the evidence in the light most favorable to the prosecution and defer to the jury's assessment of witness credibility. Id. at 319; see also Herrera v. Collins, 506 U.S. 390, 402 (1993) (Jackson inquiry asks only whether decision to convict was rational, not whether it was correct).

  Mr. Perez's arguments focus on the credibility of testimony, but the jury is "exclusively responsible for determining a witness' credibility." Bossett, 41 F.3d at 830 (quoting United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993). Cross-examination and arguments to the jury are the proper places to challenge a witness's credibility; an appellate brief is not. United States v. Friedman, 854 F.2d 535, 558 (2d Cir. 1988).

  Mr. Perez offers no reason why witness testimony was Page 18 incredible other than his acquittal on the gun related charges. Upon reviewing the record it seems that the jury acquitted the defendants on the charges for which there was no corroborating evidence found immediately after the crime.*fn4 The jury did convict on charges where the eyewitness testimony was corroborated by the police and by physical evidence. That the jury did not convict on counts uncorroborated by physical evidence does not indicate that the jury found the witness testimony incredible. Accordingly, Mr. Perez cannot show that counsel was deficient or that counsel's conduct provided cause for the procedural default of the insufficiency-of-evidence claim.

  E. Excessive Sentence

  The petitioner next argues that the trial court erred in imposing five consecutive sentences for one single criminal event and that this constitutes cruel and unusual punishment. He alleges that a sentence of fourteen to forty-two years is illegal because the court ignored or discounted many mitigating factors. (Pet. at 5). The respondent contends that this claim is unexhausted and procedurally defaulted because the petitioner failed to specifically raise it in his letter application for leave to appeal to the Court of Appeals. (Resp. Memo, at 11).

  Determining if a claim was properly presented to the Court of Page 19 Appeals rests on the specific language in the letter application. See Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000) (letter application that only addressed one issue at end of application and sought review "for all of these reasons and the reasons set forth in my Appellate Division briefs" did not fairly present to Court of Appeals the claims found only in the briefs; Morgan v. Bennett, 204 F.3d 360, 369-70 (2d Cir. 2000) (letter application that stated, "[w]e request this Court to consider and review all issues outlined in [the briefs]," fairly presented all claims to highest state court even though there was a subsequent letter that only addressed some of the issues raised in briefs); Richardson v. Greiner, No. 97 Civ. 5448, 2003 WL 76994, at *2 (S.D.N.Y. Jan. 7, 2003) ("[R]references to attached briefs without more will preserve issues only if the Court of Appeals is clearly informed that the reference is asserting issues in those briefs as bases for granting leave to appeal.").

  Mr. Perez's letter application to the Court of Appeals did not raise any specific claims but relied solely upon the submission of his co-defendant, Garfield Ewan. (Petitioner's Letter Application for Leave to Appeal dated April 17, 2000 ("4/17/00 App.") attached as Exh. D to King Decl.). Mr. Perez's letter stated that "the issues affecting defendant-appellant Perez are identical [to Mr. Ewan's]. It would be redundant to write the same submission." (4/17/00 App. at 1). Also, Mr. Perez's letter application did not Page 20 refer to any appellate brief that contained his arguments. Mr. Ewan's submission, however, addressed some arguments common to both the defendants but did not assert an excessive sentence claim. (Ewan App. at 1-6). Taken as a whole, the language in the petitioner's letter fails to meet even the most basic requirements for properly presenting claims to the Court of Appeals.*fn5

  The petitioner is now foreclosed from returning to state court to exhaust this claim because New York law permits only a single application for leave to appeal to the Court of Appeals. Rules of Court § 500.10 (a). Moreover, neither the inclusion of the excessive sentence claim in the petitioner's CPL § 440.10 motion (which was exhausted), nor the challenge to his sentence mounted in his motion for a writ of error coram nobis (alleging deficiency of appellate counsel), relieves the petitioner of his procedural default. The CPL § 440.10 motion was denied on procedural grounds and therefore was not considered on its merits by the highest available state court. See Spence, 219 F.3d at 170. And, while ineffective assistance of counsel can in some cases provide cause for default, the petitioner in this case only challenged the failure of his attorney to raise certain issues on direct appeal, not the failure to exhaust his excessive sentence claim by omitting Page 21 it from his leave application to the Court of Appeals. Such omissions do not, in any case, demonstrate the ineffectiveness of appellate counsel because there is no constitutional right of counsel for discretionary appeals. See Williams v. Goord, 277 F. Supp.2d 309, 317 (S.D.N.Y. 2003) (ineffective assistance not cause for default where attorney failed to include claim in leave application to Court of Appeals).

  F. Judicial Misconduct

  Finally, Mr. Perez argues that the trial court disparaged the defense, made faces during cross examination, and inappropriately questioned witnesses, thus violating his constitutional right to a fair trial. Mr. Perez further alleges that "[b]oth verbally and physically, the trial court in [the] case unrelentingly broadcast to the jury its hostility to and contempt for the defense." (Pet. at 2).

  The respondent maintains that Mr. Perez's claim is barred from habeas review due to an independent and adequate state procedural ground. (Resp. Memo, at 16). The respondent relies on the decision of the Appellate Division holding that Mr. Perez forfeited this claim by failing to object at trial to the court's conduct. Galloza, 270 A.D.2d at 70, 705 N.Y.S.2d at 36. New York Law requires some form of protest to the court to preserve an issue for appeal, CPL § 470.05(2), and this preservation rule has been applied to judicial misconduct cases. See Martinez v. Greiner, No. Page 22 01 Civ. 2911, 2003 WL 1936191, *3 (S.D.N.Y. April 23, 2003) (claim of excessive interference by trial judge must be preserved by specific objection on that ground); People v. Charleston, 56 N.Y.2d 886, 887, 453 N.Y.S.2d 399, 400 (1982).

  In reviewing the petitioner's claim on appeal, the Appellate Division stated that "[b]y failing to object to the court's conduct as a whole or seek any remedy, [the petitioner's] contention that the trial court was biased and excessively interfered in the proceedings is not preserved, and we decline to review it in the interest of justice." Galloza, 270 A.D.2d at 70, 705 N.Y.S.2d at 36. The petitioner sought leave to appeal this claim to the Court of Appeals, and his application was denied. Perez, 95 N.Y.2d at 856, 714 N.Y.S.2d at 7.

  The respondent also cites the habeas corpus proceeding of Mr. Perez's co-defendant, Quoro Martinez, who sought review of the same judicial misconduct claim. In the Martinez case, the Honorable Michael B. Mukasey, Chief Judge, held that Mr. Martinez's claim was procedurally barred for failure to object to the court's allegedly improper conduct. Martinez, 2003 WL 1936191, at *3.

  In fact, however, Mr. Perez's counsel properly preserved this issue for appeal by requesting a mistrial due to the court's behavior. He argued:

  Because of your actions and smiling and demeaning counsel during their cross examination, I would ask for a mistrial at this point. You poisoned the minds of the jurors against Page 23 defense counsel and against the defendants. You prejudiced them so that I don't think that they can be rehabilitated in any manner whatsoever even by a curative instruction if you intended to make one. Therefore, under those circumstances I would ask for a mistrial.

 (Tr. at 224-25). Indeed, in Martinez Judge Mukasey noted that Mr. Perez's attorney had properly objected while Mr. Martinez's counsel had not. Id. Thus, after reviewing the trial record, it is clear that there was no independent and adequate state law basis for rejecting the judicial misconduct claim and it is necessary to proceed to the merits.*fn6

  Judicial intervention in the course of a criminal trial "would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits." Daye v. Page 24 Attorney General of New York, 712 F.2d 1566, 1572 (2d Cir. 1983); see Gave v. Scullv, 779 F.2d 802, 806 (2d Cir. 1985). Not all undesirable judicial conduct is violative of due process. See United States v. Pisani, 773 F.2d 397, 402 (2d Cir. 1985); Mucci v. Quinlan, No. 83 Civ. 7263, 1986 WL 6776, at *2 (S.D.N.Y. June 10, 1986).

  The specific examples of improper judicial intervention cited by Mr. Perez were not so clearly adverse to him that he was denied a fair trial. Mr. Perez discusses numerous instances of alleged judicial misconduct with respect to the court's intervention in the examination of witnesses. Yet, the trial judge "must[] be more than a mere moderator or umpire in a contest between two parties in an arena before him. He should take part where necessary to clarify testimony and assist the jury in understanding the evidence." Williams v. Senkowski, No. 99 Civ. 0724, 2001 U.S. Dist. Lexis 10843, at *9 (S.D.N.Y. July 30, 2001) (quoting United States v. DeSisto, 289 F.2d 833, 834 (2d Cir. 1961)).

  An example of the judge's intervention in the case occurred during the re-direct examination of Officer Thomas Rhindos by the prosecutor. The court interrupted the prosecutor's re-direct and asked the officer, "Is there a central communication department of the police department?" and "When you say dispatcher, is that an operator who is listening to phone calls?" (Tr. at 149-50). The petitioner objected to this practice and maintains that this type Page 25 of interruption bolstered the prosecution's case. (Pet. at 2). Yet, the court was well within its discretion posing questions to allow the jury to better understand the 911 system.

  Mr. Perez also argues that in several instances the court denigrated the defense in front of the jury. The petitioner maintains that the court communicated its contempt for the defense by categorizing counsel as "tricksters". (Pet. at 2). During voir dire a prospective juror responded to a question asking if he would convict if he was "pretty sure" about guilt by saying, "[I]t was kind of a trick question." (V. Tr. at 47).*fn7 The court commented that the question was indeed a "trick question," adding that the court had given the defense "too much leeway" and that counsel had "gotten way far afield." (V. Tr. at 47-48). Mr. Perez also cites an exchange between the defense and the judge at a sidebar conference where the jury may have overhead the judge saying to defense counsel, "I'm not as smart and quick as you are because I don't understand what you're doing." (Tr. 333-34). While the court's statements may have been unnecessary in both examples, the conduct does not violate due process.

  Finally, judicial intervention is prejudicial only to the extent "that the jurors have been impressed with the trial judge's partiality to one side to the point that this became a factor in the Page 26 determination of the jury." United States v. Messina, 131 F.3d 36, 39 (2d Cir. 1997) (quoting United States v. Gucrlielmini, 384 F.2d 602, 605 (2d Cir. 1967)). In the instant case, the trial judge minimized any such prejudice by providing the following charge to the jury:

You must not infer from any rulings that I have made, nor from anything that I have said to the attorneys in the course of these rulings that I hold any view as to the guilt or non-guilt of any defendant. . . . Anything I have said to the lawyers during the course of this trial is not evidence and is, therefore, irrelevant to your determination, which must be based strictly on the evidence that you have heard and under the law as I will instruct you.
(Tr. at 2528-29).

  Although some of the judge's comments may have been unwarranted, her conduct did not reach the point of denying the petitioner his constitutional right to a fair trial. See Daye, 712 F.2d at 1569-70, 1572 (no misconduct where judge constantly referred to the robber as the defendant, explicitly challenged the defendant's story, and asked the defendant to get off the stand and demonstrate how his account could possibly be true); Gave, 779 F.2d at 810-13 (no misconduct where trial judge harshly and sarcastically questioned the defendant about his alibi).


  For the reasons set forth above, I recommend that Mr. Perez's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636 (b)(1) and Rules 72, 6(a), and 6(e) of the Federal rules of Civil Procedure, the parties shall have ten (10) days from this Page 27 date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies to be delivered to the chambers of the Honorable George B. Daniels, Room 410, 40 Foley Square, New York, New York 10007, and to the chambers undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

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