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United States District Court, N.D. New York

February 27, 2004.

WAYNE BARKLEY, Superintendent, Respondent

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2


I. Background

  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 Page 3 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 Page 4 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. 7-8.

  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 Page 5 § 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).

  II. Discussion

  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 his Page 6 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 merit.

  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 proceeding.
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 Page 7 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, 108-09 (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 Page 8 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 Page 9 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 § Page 10 270.50(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, Page 11 540 (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 780. Thus, Page 12 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 Page 13 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 Page 14 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 Page 15 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 Page 16 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 Court Precedent

 A criminal defendant may only be convicted of a crime where there Page 17 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 319.

  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: Page 18


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 Page 19 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, Page 20 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: Page 21 "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. Reed, Page 22 489 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 Page 23 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 Page 24

  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 Page 25 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 basis.*fn15

  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). Page 26

  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 that he Page 27 is not actually innocent of the crimes of which he was convicted. Therefore, his fifth ground for relief is denied on this procedural basis.*fn19

  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).


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