United States District Court, N.D. New York
February 27, 2004.
CLARENCE JONES, Petitioner,
WAYNE BARKLEY, Superintendent, Respondent
The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2
DECISION and ORDER
A. State Court Proceedings
According to the testimony adduced at trial, at approximately 9:30 p.m.
on July 8, 1996, Detective William J. Elsenbeck of the Syracuse Police
Department assisted in the execution of a search warrant at 115 Elmwood
Avenue in Syracuse, New York. See Transcript of Trial of Clarence
Jones (4/7/97) ("Tr.") at P. 209. As Detective Elsenbeck entered the
apartment, he announced his presence and began searching for occupants
(Tr. at P. 211). He observed a black male leaning over a toilet
in a bathroom (Id.). Detective Elsenbeck directed the
individual, who was identified at trial as petitioner, pro se
Clarence Jones (Tr. at P. 215), to get down onto the floor,
however, he refused (Tr. at P. 212). Detective Elsenbeck then
pulled the individual away from the toilet and began searching the bowl
for evidence of narcotics (Tr. at P. 273).*fn1 When he could
not locate any, he radioed a fellow officer who was in the basement of
the apartment, and indicated to him that he believed
evidence had been flushed down the commode (Tr. at P.
214). Upon being notified of Detective Elsenbeck's suspicions,
Detective Leon Dadey of the Syracuse Police Department, who was in the
basement of the Elmwood Avenue apartment, broke through the sewer pipe in
the residence and immediately began diverting the water flowing in that
pipe so that its contents could be examined (Tr. at PP. 189-91).
Detective Dadey soon secured a plastic sandwich bag from the sewer pipe
which contained numerous smaller bags (Tr. at PP. 191-92).*fn2
After securing that evidence, Detective Dadey searched the second floor
of the apartment and discovered a loaded .25 caliber handgun in the rear
bedroom of the home (Tr. at P. 193). An additional thirty-nine
orange-colored plastic baggies containing beige chunky substances were
discovered in the kitchen of the residence during the execution of the
search warrant (Tr. at PP. 243-45).*fn3
An Onondaga County grand jury charged Jones with criminal possession of
a controlled substance ("CPCS") in the third, fourth and
seventh degrees, and fourth degree criminal possession of a weapon.
See Indictment No. 96-1134-1. Beginning on April 7, 1997, Jones was tried
before a jury on these charges with Onondaga County Court Judge J. Kevin
Mulroy presiding. The jury convicted Jones on all charges (Tr. at PP.
438-41). He was thereafter sentenced by Judge Mulroy as a predicate
felon to an indeterminate term of imprisonment of eight to sixteen years
on the third degree CPCS conviction, with lesser, concurrent sentences on
the remaining convictions. See Sentencing Tr. (5/5/97) at PP.
Jones appealed his convictions and sentences to the New York State
Supreme Court, Appellate Division, Fourth Department. That court reversed
Jones' conviction for seventh degree CPCS in light of his conviction for
third degree CPCS, but otherwise affirmed the convictions and sentences
imposed. Jones, 254 A.D.2d 780 (4th Dept. 1998). The Court of
Appeals denied Jones leave to appeal. People v. Jones, 92 N.Y.2d 1050
(1999). Although Jones claims he did not file any other state court
challenges to his conviction (Pet. at ¶ 10), based
upon the state court records provided to the court by the respondent, it
is apparent that Jones filed a motion to vacate his judgment of
conviction pursuant to
§ 440.10 of New York's Criminal Procedure Law ("CPL") on
November 14, 1997.*fn4
B. This Proceeding
Jones filed his habeas petition together with a supporting memorandum
on August 25, 1999 (Dkt. Nos. 1-2). This court then issued an
order directing the respondent to file a response to the petition
(Dkt. No. 3) ("September 1999, Order"). The Office of the
Attorney General for the State of New York, acting on respondent's
behalf, subsequently filed an answer and memorandum in opposition to the
petition, and provided the court with the records associated with the
relevant state court proceedings (Dkt. Nos. 6-7).
A. Failure to Notify Court of Current Address
Since the filing of respondent's opposition to the petition,
correspondence sent to Jones from the court at his last known address has
been returned as undeliverable. See Dkt. Nos. 14-15, 17.
Jones was specifically advised that he was required to keep
the court and the respondent apprised of his current address, and that
failure to do so would result in the dismissal of his action
(September 1999, Order at PP. 3-4). Since Jones has failed to
comply with this aspect of the court's September 1999, Order for more
than five months, see Dkt. Nos. 14-15, this court could dismiss
Jones' petition on this basis alone. Williams v. Faulkner,
95-CV-741, 1998 WL 278288, at *1 (N.D.N.Y. May 20, 1998) (Pooler, D.J.)
(citing N.D.N.Y.L.R. 41.2(b)). However, the petition is also without
B. Standards of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court
may not grant habeas relief to a state prisoner on a 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
28 U.S.C. § 2254(d); see a/so, Miranda v. Bennett,
322 F.3d 171
, 177-78 (2d Cir. 2003); Boyette v. LeFevre,
246 F.3d 76
, 88 (2d Cir. 2001). The
AEDPA also requires that in any federal habeas corpus proceeding,
"a determination of a factual issue made by a State court shall be
presumed to be correct [and t]he applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246
F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted). In
interpreting the AEDPA, the Second Circuit has noted:
[u]nder AEDPA, we ask three questions to determine
whether a federal court may grant habeas relief:
1) Was the principle of Supreme Court case law
relied upon in the habeas petition "clearly
established" when the state court ruled? 2) If so,
was the state court's decision "contrary to" that
established Supreme Court precedent? 3) If not,
did the state court's decision constitute an
"unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147
, 152 (2d Cir. 2001)
(citing Williams and Francis S. v. Stone, 221 F.3d 100
(2d Cir. 2000)). A state court's decision is "contrary to" established
Supreme Court precedent if it applies a rule that contradicts Supreme
Court precedent, or decides a case differently than the Supreme Court on
a set of materially indistinguishable facts. Williams v. Taylor,
529 U.S. 362
, 405-06 (2000). Moreover, a federal court is not to consider
whether the state court's
determination was merely incorrect or erroneous, but instead
whether it was "objectively unreasonable." Williams, 529 U.S. at
409; see also, Sellan v. Kuhlman, 261 F.3d 303
, 315 (2d Cir.
2001); Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y.
2003). The Second Circuit has noted that this inquiry admits of "[s]ome
increment of incorrectness beyond error", though "the increment need not
be great[.]" Francis S., 221 F.3d at 111.
C. Substance of Petition
1. Ground One
In his first ground, Jones claims that Judge Mulroy improperly denied
the jury's request to view the crime scene (Pet. at Ground One).
Specifically, Jones argues that Judge Mulroy only denied the request
because he was under the mistaken impression that the CPL prohibited him
from allowing the jurors to view the scene after the summations of the
parties, and that the denial of the request warrants the reversal of his
conviction and the granting of a new trial (Dkt. No. 2 at
(unnumbered) PP. 18-21).
Judge Mulroy denied the jury's request to view the Elmwood Avenue
apartment because he believed the request to be improper
under CPL § 270.50(1).*fn5 See Tr. at PP. 424-26. To
the extent Jones argues he is entitled to habeas relief because Judge
Mulroy wrongfully failed to comply with CPL § 270.50(1), see Dkt.
No. 2 at (unnumbered) PP. 18-21, this claim overlooks the principle
that "federal habeas relief is not available to redress alleged
procedural errors in state post-conviction proceedings." Diaz v.
Greiner, 110 F. Supp.2d 225, 235-36 (S.D.N.Y. 2000) (citations
omitted); Turner v. Sullivan, 661 F. Supp. 535, 540-41 (E.D.N.Y.
1987) ("A writ of habeas corpus may not be issued on the basis of a
perceived error of state law"), aff'd, 842 F.2d 1288 (2d Cir.
1988); see also, Smith v. Lacy, 01CIV.4318, 2002 WL 826825, at
*7 (S.D.N.Y. Apr. 30, 2002); e.g. Estelle v. McGuire,
502 U.S. 62, 67-69 (1991). Moreover, Judge Mulroy properly interpreted CPL §
270.50(1). That statute only provides that a trial court may, in its
discretion, allow the jury to view the crime scene prior to
summations. See CPL §
270.50(1). Although judicial interpretation of that statute has
authorized trial courts to permit jurors to view the crime scene
after summations, that is only allowed where both parties
consent to the viewing. Cf. People v. White, 53 N.Y.2d 721,
723-24 (1981). Since the District Attorney never consented to the jury's
request to view the Elmwood Avenue apartment, see Tr. at PP.
426-30,*fn6 Judge Mulroy's ruling was not erroneous. See e.g.,
Jones, 254 A.D.2d at 780. Thus, Jones is clearly not entitled to
habeas relief based upon his claim that Judge Mulroy's decison was
contrary to CPL § 270.50. However, broadly construed, Jones' claim
could appear to be one which alleges that Judge Mulroy's actions deprived
him of his due process right to a fair trial. See e.g., Thiam v.
Artuz, 98CIV.6708, 2000 WL 1056323, at *8-9 (S.D.N.Y. Aug. 1, 2000)
(interpreting claimed violation of CPL § 270.50 as one alleging
denial of due process).
i. Clearly Established Supreme Court Precedent
"The right to a fair trial . . . has been called `the most fundamental
of all freedoms.'" Nebraska Press Ass'n v. Stuart, 427 U.S. 539,
586 (1976) (Brennan, J., concurring) (quoting Estes v. Texas,
381 U.S. 532,
540 (1965)). "It is a right essential to the preservation and
enjoyment of all other rights, providing a necessary means of
safeguarding personal liberties against government oppression."
Stuart, 427 U.S. at 586 (citing Rideau v. Louisiana,
373 U.S. 723, 726-727 (1963)); see also, Albright v. Oliver,
510 U.S. 266, 273 N.6 (1994) (a criminal defendant's right to a fair trial is
"mandated by the Due Process Clause of the Fifth Amendment to the
Constitution") (citing United States v. Agurs, 427 U.S. 97, 107
(1976)); Taylor v. Hayes, 418 U.S. 488, 501-02 (1974). However,
where a habeas petitioner claims that he was denied his right to a fair
trial, a federal habeas court's reviewing power is "the narrow one of due
process . . . not the broad power that [it] would possess in regard to
[its] own trial court." See Donnelly v. De Christoforo,
416 U.S. 637, 642 (1974). Thus, this court considers whether Judge
Mulroy's denial of the jury's request to view the Elmwood Avenue
apartment deprived Jones of his due process right to a fair trial.
ii. Contrary to. or Unreasonable Application of,
Supreme Court Precedent
The Appellate Division rejected this aspect of Jones' appeal, finding
that Judge Mulroy "properly denied the request of the jury during
deliberations to visit the crime scene." Jones, 254 A.D.2d at
this court must determine whether that decision was either contrary
to, or represents an unreasonable application of, the Supreme Court
precedent noted above.
A habeas petitioner bears "a heavy burden of persuasion" when claiming
that he was denied his right to a fair trial. See Peterson v.
Scully, 87 CIV.1597, 1991 WL 135621, at *2 (S.D.N.Y. July 16, 1991)
(internal quotation and citation omitted), aff'd, 17 F.3d 391
(2d Cir. 1993); Minor v. Harris, 556 F. Supp. 1371, 1378
(S.D.N.Y.), aff'd, 742 F.2d 1430 (2d Cir. 1983). Petitioner has
not met his burden. None of the submissions before the court demonstrate
that Judge Mulroy's failure to allow the jury to view the Elmwood Avenue
apartment deprived Jones of his right to a fair trial.*fn7 Since the
Fourth Department's decision rejecting this aspect of Jones' appeal was
neither contrary to, nor an unreasonable application of, relevant Supreme
Court precedent, this first ground in the petition must be denied.
2. Ground Two
In his second ground, Jones argues that the search warrant that
was executed at his apartment was invalid (Pet. at Ground Two;
Dkt. No. 2 at (unnumbered) P. 22).
Prior to trial, Jones' counsel requested that Judge Mulroy conduct a
Franks hearing*fn8 to determine whether the information
supporting the search warrant application was accurate, including the
issue of whether the police had conducted surveillance of the building as
was claimed in that application (Tr. at PP. 4-5). In considering
this request, Judge Mulroy held:
after . . . reviewing the search warrant and its
attached affidavits, [the court concludes] that
the warrant was issued properly by Judge
Higgins . . .[and] the information, you know,
whether it is alleged it is a three-story or
two-story dwelling is adequate. The address is
accurate. The color of the house is accurate. And
I'm satisfied the warrant was properly issued.
Counsel's request for a hearing or to challenge
the warrant is hereby denied.
Tr. at P. 6. In denying Jones' appellate challenge to the
propriety of the search warrant, the Appellate Division concluded that
the search warrant "set forth with sufficient specificity the place to be
searched." Jones, 254 A.D.2d at 780.
"[W]here the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, the Constitution does not require
that a state prisoner be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial." Capellan v. Riley, 975 F.2d 67,
70 (2d Cir. 1992) (citing Stone v. Powell, 428 U.S. 465,
481-82 (1976)); see a/so, McPherson v. Greiner, 02CIV.2726,
2003 WL 22405449, at *15-16 (S.D.N.Y. Oct. 22, 2003) (citations
omitted); Briggs v. Phillips, 02CIV.9340, 2003 WL 21497514, at
*5 (S.D.N.Y. June 30, 2003) (citations omitted). The Second Circuit has
noted that federal review of Fourth Amendment claims in habeas
petitions may only be undertaken in one of two instances: (a) if the
state has provided no corrective procedures at all to redress the
alleged Fourth Amendment violations; or (b) if the state has provided a
corrective mechanism, but the defendant was precluded from using that
mechanism because of an unconscionable breakdown in the underlying
process. Capellan, 975 F.2d at 70 (citation omitted);
McPherson, 2003 WL 22405449, at *16; Martinez v.
Senkowski, 97-CV-624, 2000 WL 888031, at *7 (N.D.N.Y. June 28,
2000) (Scullin, C.J.).
Jones cannot properly claim that New York's procedures for
redress of his Fourth Amendment claim are deficient; federal courts in
this circuit have expressly found New York's procedure for litigating
Fourth Amendment claims, which is embodied in CPL § 710 et
seq., to be facially adequate. Taylor v. Kuhlmann,
36 F. Supp.2d 534, 549 (E.D.N.Y. 1999) (citations omitted). Additionally, the
state court record reveals that no "unconscionable breakdown" occurred in
the state courts regarding Jones' challenge to the search warrant. To
establish such a breakdown, Jones would have to prove that no state court
conducted a reasoned method of inquiry into the relevant questions of
fact and law concerning his Fourth Amendment claim. See Taylor,
36 F. Supp.2d at 549 (E.D.N.Y. 1999) (internal quotations and citation
omitted); Stanley v. Kuhlman, 10 F. Supp.2d 250, 253 (E.D.N.Y.
1998) (unconscionable breakdown occurs when state fails to conduct
reasoned inquiry into petitioner's claim); see also, Senor v.
Greiner, OOCV5673, 2002 WL 31102612, at*11 (E.D.N.Y. Sept. 18, 2002)
(internal quotations and citations omitted); Johnson v. Dufrain,
99CIV.12019, 2001 WL 406261, at *4 (S.D.N.Y. Apr. 20, 2001).
Since Jones challenged the validity of the search warrant in the state
court, and there is no evidence that either Judge Mulroy or the
Fourth Department failed to conduct a reasoned method of inquiry into the
relevant questions of fact and law concerning Jones' claim, the second
ground in the petition must be denied. See Grace v. Artuz,
258 F. Supp.2d 162, 170 (E.D.N.Y. 2003) (denying Fourth Amendment claim
challenging, inter alia, validity of search warrant) (citing
Capellan); Ferron v. Goord, 255 F. Supp.2d 127, 130-31
(W.D.N.Y. 2003) (citations omitted).*fn9
3. Ground Three
Jones' third ground argues that there was insufficient evidence adduced
at trial to establish his conviction of fourth degree CPCS. Specifically,
he argues that the evidence was insufficient to demonstrate that he
possessed the cocaine retrieved from the sewer in the basement, and
therefore, he was improperly found guilty of this charge.*fn10
i. Clearly Established Supreme
A criminal defendant may only be convicted of a crime where there
is proof beyond a reasonable doubt of every fact necessary to constitute
the crime with which the defendant is charged. See Jackson v.
Virginia, 443 U.S. 307 (1979); Fiore v. White,
531 U.S. 225, 228-29 (2001). When considering a claim that there was
insufficient evidence to support a conviction in the context of a
federal habeas petition, the court must consider "whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson, 443 U.S. at
ii. Contrary to. or Unreasonable Application of,
Supreme Court Precedent
The Fourth Department denied Jones' claim challenging the sufficiency of
the evidence offered against him at trial (Jones, 254 A.D.2d at
780). Therefore, that finding must be afforded deference under the AEDPA.
The burden on a petitioner challenging the sufficiency of the evidence is
"very heavy." Jamison v. Grier, 01 CIV.6678, 2002 WL 100642,
at*2 (S.D.N.Y. Jan. 25, 2002); Clark v. Irvin, 844 F. Supp. 899,
904 (N.D.N.Y. 1994) (Hurd, M.J.). The appropriate inquiry on habeas
review is whether:
the jury, drawing reasonable inferences from the
evidence, may fairly and logically have concluded
that the defendant was guilty beyond a reasonable
doubt. In making this determination, [the court]
must view the evidence in the light most favorable
to the government, and construe all permissible
inferences in its favor.
Ferguson v. Walker, OOCIV.1356, 2001 WL 869615, at *4
& N.4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.) (quotation and citations
omitted) adopted, Ferguson v. Walker, 00CIV.1356, 2002 WL
31246533 (S.D.N.Y. Oct. 7, 2002).
Since federal courts considering challenges to the sufficiency of the
evidence must look to state law to determine the elements of the crime,
see Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999),
the court briefly reviews the elements the prosecution was required to
prove in order to convict Jones of the charge.
In New York, a person is guilty of fourth degree CPCS when "he
knowingly and unlawfully possesses . . . one or more . . . substances
containing a narcotic drug and said . . . substances are of an aggregate
weight of one-eighth ounce or more." N.Y. Penal L. § 220.09. Jones
claims that he neither actually nor constructively possessed the cocaine
found in the basement, and as a result, there was insufficient proof to
establish that he possessed the amount of cocaine required for his
conviction (Dkt. No. 2 at (unnumbered) PP. 27-29).*fn11
When one exercises dominion or control over an object, that individual
is said to be in "constructive possession" of an object. Hernandez v.
Artuz, 99CIV.4522, 2002 WL 236678, at *8 (S.D.N.Y. Feb. 14, 2002)
(citations omitted); Varisco. v. U.S., 98-CV-7977, 1999 WL
369959, at*8 (E.D.N.Y. June 2, 1999); see also, N.Y. Penal Law
§ 10.00(8) ("`Possess' means to have physical possession or otherwise
to exercise dominion or control over tangible property").
The testimony established that when the police executed the search
warrant, Jones was in the bathroom "leaning over the toilet with his hand
in the toilet" (Tr. at P. 211). Jones refused to voluntarily
leave the area despite the fact that he was directed to do so by
Detective Elsenbeck (Tr. at P. 212). Soon after being alerted by
Detective Elsenbeck that narcotics might have been flushed down the
toilet (Tr. at P. 214), Detective Dadey broke through the sewer
pipe in the basement of Jones apartment and secured a plastic bag from
that pipe which contained 43 bags of cocaine (Tr. at PP.
191-93). Thus, the jury,
drawing reasonable inferences from the evidence, could have fairly
and logically concluded that Jones constructively possessed the cocaine
found in the basement. Moreover, since the quantity of that cocaine,
combined with the cocaine found in the kitchen, weighed in excess of
one-eighth of an ounce, there was sufficient evidence to establish Jones'
guilt of the fourth degree CPCS charge. E.g. People v. Johnson,
209 A.D.2d 721, 722 (2d Dept. 1994) (defendant exercised a sufficient
level of control over the basement to support jury's finding that she
constructively possessed drugs recovered from basement ceiling)
(citations omitted), leave denied, 84 N.Y.2d 1033 (1995).
Therefore, the Appellate Division's denial of this aspect of Jones'
appeal (Jones, 254 A.D.2d at 780) was neither contrary to, nor
an unreasonable application of, Jackson and its progeny. Thus,
this court denies the third ground in the petition.
4. Ground Four
In his fourth ground, Jones claims that the trial court erroneously
allowed the prosecution to introduce into evidence two notes written by
him that were found in his apartment on the day the search warrant was
executed (Pet. at Ground Four). The first note read as follows:
"Compton,*fn12 give her two dimes, I will pay my bill slowly but
surely, if you can, Mazie" (Tr. at P. 352).*fn13 The second
note, which was found by Detective Dadey near the handgun, contained the
following language: "Compton, since my slate is down five dollars, can I
get three? Mary" (Tr. at P. 361). Jones claims that the notes
were improperly admitted to rebut his trial testimony that drug
trafficking never took place in his apartment (see Tr. at P.
323), and constituted impermissible hearsay (Dkt. No. 2 at
(unnumbered) PP. 30-33).
Respondent argues that Jones has procedurally defaulted on this claim
(Dkt. No. 7 at PP. 15-16).
A federal court is precluded from reviewing a habeas claim if the state
court's rejection of the argument on appeal rests on "independent and
adequate state grounds." Coleman v. Thompson, 501 U.S. 722, 736
(1991); Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000). This
occurs when the last state court rendering a judgment in the case held
that its judgment rested on a state procedural bar. Harris v.
489 U.S. 255, 262 (1989); Jones, 229 F.3d at 118. If the last state
court issuing a ruling clearly and expressly stated that its judgment
rested on a state procedural bar, a federal court may not review the
claim unless the petitioner demonstrates both good cause for and actual
prejudice resulting from his non-compliance with the state's procedural
rule. Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999);
Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809
(2d Cir. 2000); Levine v. Commissioner of Correctional Services,
44 F.3d 121, 126 (2d Cir. 1995). A further exception exists where the
petitioner establishes that the denial of habeas relief would leave
unremedied a "fundamental miscarriage of justice that is, where a
person who is actually innocent has been convicted and incarcerated
because of a constitutional violation." Murray v. Carrier,
477 U.S. 478, 495-96 (1986); see also, Dixon v. Miller, 293 F.3d 74,
80 (citations omitted). Thus, the court must initially determine whether
the Fourth Department found that Jones was procedurally barred from
obtaining the relief he seeks in the fourth ground of his petition.
In denying Jones' claim that the trial court improperly allowed the
above-referenced notes and related testimony into evidence, the
Appellate Division held that: "[b]y failing to object to the admission
of the rebuttal testimony of [the] two detectives . . . defendant
failed to preserve his argument for our review." Jones, 254
A.D.2d at 780 (citation omitted). A finding that a claim was unpreserved
for appellate review is a finding of procedural default. See CPL §
470.05; Duren v. Bennett, 275 F. Supp.2d 374, 380 (E.D.N.Y.
2003). The court's review of this ground is therefore conditioned upon
proof of either legal cause for the default and resulting prejudice, or
actual innocence. Fama, 235 F.3d at 809; Garcia, 188
F.3d at 76-77; Levine, 44 F.3d at 126.
To establish "cause," a petitioner must show that some objective
external factor impeded his ability to comply with the relevant
procedural rule. Coleman, 501 U.S. at 753; Restrepo v.
Kelly, 178 F.3d 634, 638 (2d Cir. 1999). Examples of external
factors include "interference by officials," ineffective assistance of
counsel, or that "the factual or legal basis for a claim was not
reasonably available" at trial or on direct appeal. Murray, 477
U.S. at 488; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994)
(citing Murray); United States v. Helmsley,
985 F.2d 1202, 1206 (2d Cir. 1992).*fn14
Jones has not offered any cause for his failure to preserve this claim
for appellate review, and has never alleged, in either the state courts
or this proceeding, that he received ineffective assistance because his
trial counsel did not object to the introduction of that evidence at his
trial. Since Jones has not established cause for his procedural default,
this court need not decide whether he suffered prejudice because federal
habeas relief is generally unavailable as to procedurally barred claims
unless both cause and prejudice is demonstrated. Stepney
v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); McLeod v.
Moscicki, 02CIV.9335, 2003 WL 22427757, at *8 (S.D.N.Y. Oct. 22,
2003) (Francis, M.J.) (citing Murray, 477 U.S. at 494); You
v. Bennett, 00-CV-7514, 2003 WL 21847008, at *7 (E.D.N.Y. July 29,
2003) (citing Coleman, 501 U.S. at 750); Pou v. Keane,
977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.). Additionally, after
reviewing the trial transcript, this court finds no basis to conclude
that the failure to consider the merits of this claim would result in a
fundamental miscarriage of justice, which has been interpreted as
amounting to "an unjust
incarceration." Spence v. Superintendent, Great Meadow
Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). Therefore,
the court denies Jones' fourth ground for relief on this procedural
5. Ground Five
The final ground in the petition claims that the "interested witness
charge" provided by Judge Mulroy was "unbalanced,"*fn16 and that the
County Court wrongfully failed to provide the jury with a moral certainty
charge.*fn17 (Dkt. No. 2 at (unnumbered) P. 34).
Respondent contends that Jones has procedurally defaulted on this claim
(DM. No. 7 at PP. 15-17).
In denying this aspect of Jones' appeal, the Fourth Department found
that he "failed to preserve for our review the present arguments that the
court's interested witness charge was not balanced and that he was
entitled to a moral certainty charge." Jones, 254 A.D.2d at 780
(citing CPL § 470.05(2)). Since the Appellate Division clearly and
expressly found that Jones had procedurally defaulted on this claim, this
court's review of his final ground is conditioned upon proof of either
legal cause for the default and resulting prejudice, or actual innocence.
Fama, 235 F.3d at 809; Garcia, 188 F.3d at 76-77;
Levine, 44 F.3d at 126.*fn18
Jones has not offered any cause for his failure to preserve his claims
relating to the jury instructions for appellate review, and does not
contend that his trial counsel was ineffective in failing to object to
the jury charge. Additionally, the evidence adduced at trial demonstrates
is not actually innocent of the crimes of which he was convicted.
Therefore, his fifth ground for relief is denied on this procedural
WHEREFORE, based upon the above, it is hereby
ORDERED, that Jones' habeas petition is DENIED and
DISMISSED, and it is further
ORDERED, that the Clerk of Court serve a copy of this
Decision and Order upon the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to
the Attorney General at the conclusion of these proceedings (including
any appeal of this Decision and Order filed by any party).
IT IS SO ORDERED.