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United States District Court, E.D. New York

March 15, 2004.

ABDULA MUSA, Petitioner against DANIEL A. SENKOWSKI, Superintendent, Respondent

The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge


I. History

This petition for a writ of habeas corpus was filed on November 15, 2002. Respondent filed papers in opposition on March 3, 2003. Petitioner's request for counsel was denied on July 25, 2003 with leave to renew upon showing of sufficient merit. Affidavits and memoranda of law were filed by respondent on December 4, 2003 and January 7, 2004. By letter dated February 12, 2004, petitioner attempted to controvert respondent's arguments.

  No hearing is required. The case can be decided on the papers.

  Respondent originally rested on procedural defenses to the habeas petition. At the court's request respondent then addressed the merits.

  The petitioner claims:

Ground One: Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure.
  Supporting Facts: Officer approached vehicle I was passenger in, put a gun to my Page 2 head, never informed me I was under arrest. He searched and seized property from vehicle as well as from my personal possession without a warrant. Never read me my Miranda rights, nor did I ever sign the Miranda form. He also testified in court he took me to the precinct and didn't even talk to me for four hours.


Ground Two: Conviction obtained by use of evidence obtained pursuant to an unlawful arrest.
Supporting Facts: In accordance with the law once the officer stopped my mobility by putting a gun to my head I was under arrest. Officer never informed me that I was under arrest, never at all read me my Miranda rights, and unlawfully seized two watches from my possession that were used to obtain a conviction in this case.
Ground Three: Convictions obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. Supporting Facts: Walter Stevens Parole Officer kept a memo book of all contact between myself and the Special Narcotics Unit of the N.Y.P.D. Officer McDonald no relation to Sgt. McDonald who testified, and Officer James were not produced as promised by the prosecution, claiming that these officers of the N.Y.P.D. were transferred from the 81st Pct. And D, A. claimed he didn't know [their] whereabouts, [their] testimony would have produced evidence favorable to the defendant.
  Ground Four: Blanket exclusion of all spectators during a portion of the trial. Page 3


Supporting Facts: Judge had bailiff clear courtroom of all spectators. He called the jury back in and instead of allowing the public back into the courtroom he allowed the prosecutions star witness to testify in a conducive atmosphere, not exposed to public scrutiny.
By undated papers received on December 9, 2003, defendant now asks this court to ascertain "the truth about his sentence" and, in doing so, raises the following claims:
(1) That defendant was improperly sentenced as a persistent felony offender;
(2) That the cross-examination portion of Detective Thomas Visconti's trial testimony, primarily that portion which dealt with the reading of defendant's Miranda rights, was inaccurately transcribed and was altered by a second or third unnamed party;
(3) That defendant received ineffective assistance of trial counsel by virtue of counsel's failure to raise a defense recognized by law;
(4) That defendant's conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure;
(5) That the trial court erroneously issued a blanket exclusion of all spectators during a portion of the trial;
(6) That the prosecution failed to disclose to the defendant favorable evidence, namely the testimony of Parole Officer Walter Stevens who kept a memobook of all contact between defendant and two N.Y.P.D. officers who did not testify at trial;
  (7) That defense counsel prejudiced defendant by slandering defendant's mother Page 4 during summation;


(8) That defendant was prejudiced by the trial court's decision to interrupt defense counsel's summation so that the jury could go to lunch;
(9) That defendant was deprived of his right to a speedy trial pursuant to N.Y.C.P.L. §§ 30.30, 30.20; and
(10) That the trial court erred by failing to give an adverse inference charge for the loss of Detective Thomas Visconti's police memobook.
  These original and two amended claims have been considered by this court. None have merit.

  On the form for his original petition, petitioner (sometimes referred to below as defendant) answered question 13 as follows:

If any grounds listed in 12 A, B, C, and D were not previously presented in any court, state or federal, state briefly what grounds were not so presented, and give your reason for not presenting them: By the advice of my Appellate Counsel "don't put all your eggs in one basket" I didn't raise any of the grounds listed in 12 A, B, C, or D.
  Defendant's position at the trial was that he had been induced by the police to locate drug spots and that he conducted the alleged crimes as a police agent. See Transcript of Trial pp 285-300. Defense counsel consulted with petitioner while outlining the defense to the trial court. Id. p. 300. While the trial court appeared skeptical, it allowed the defense to try to prove this claim. Id. 285-301. The defendant himself testified at length in support of this contention. Id. 376 ff. Defense counsel was aggressive and highly competent in his examination of all witnesses Page 5 his motion practice and his summation. The jury did not accept the petitioner's theory.

  The record supports the following sequence of events.

  On June 14, 1995, at approximately 6:45 p.m., defendant, armed with a gun and accompanied by two armed assailants, entered a grocery store at 999 President Street, in Brooklyn. While pointing to a police "badge" that was hanging from a chain around his neck, defendant placed his gun to the head of Jose DeJesus, an employee who was in the front of the store. One of defendant's accomplices then handcuffed DeJesus and took him to the rear of the store. Meanwhile, defendant's other accomplice handcuffed Jose Beato, the store manager who was behind the front counter. After ordering DeJesus and Beato to lie face down on the floor, defendant took money and personal property from them. Defendant also took money and several items from the store. Defendant and his cohorts then fled.

  Defendant's actions were captured on videotape by the store's security camera. When the police arrested defendant two weeks later, they found him with DeJesus' wrist watch. Upon watching the surveillance videotape, defendant admitted to the police that he was one of the individuals pictured on the tape and that the police badge he had worn belonged to a security guard at St. Vincent's hospital.

  Defendant was charged, under Kings County Indictment Number 8158/95, with seven counts of Robbery in the First Degree (N.Y.P.L. § 160.15[4]), seven counts of Robbery in the Second Degree (N.Y.P.L. § 160.1 [1]), four counts of Grand Larceny in the Fourth Degree (N.Y.P.L. § 155.30 [5]), two counts of Criminal Impersonation in the Second Degree (N.Y.P.L. § 190.25[3]), and three counts of Unlawful Imprisonment in the Second Degree (N.Y.P.L. § 135.05. The counts in the indictment pertained to the June 14, 1995, robbery which is the subject Page 6 of the instant petition, as well as two other robberies which defendant committed on June 15, 1995, and June 25, 1995, respectively.

  Defendant's accomplice and nephew, Earl Dicks, was charged under the same indictment. Dicks pled guilty to first-degree robbery and was sentenced to a prison term of four and one-half years to nine and one-half years. Defendant's other accomplice, Anthony Roberts, was charged similarly under Kings County Indictment Number 13728/96. Roberts pled guilty to attempted second-degree robbery and was sentenced to a prison term of three and one-half years to seven years.

  On September 25, 1996, following a jury trial, defendant was convicted of three counts of Robbery in the First Degree (N.Y, P.L. § 160.15[4]) two counts of Unlawful Imprisonment in the Second Degree (N.Y.P.L. § 135.05), and one count of Criminal Impersonation in the Second Degree (N.Y.P.L. § 190.25[3]).

  On December 10, 1996, defendant's trial counsel, David Chidakel, successfully moved to set aside the jury verdict pursuant to N.Y.C.P.L. § 330.30(1) on the ground that the jury foreperson failed to disclose during voir dire or at any time during the trial that criminal charges for third-degree criminal sale of a controlled substance were pending against her. Defendant's motion was granted on February 13, 1997.

  On May 12, 1997, following his re-trial by a jury, with the same counsel as on the first trial, defendant was convicted of three counts of Robbery in the First Degree (N.Y.P.L. § 160.15 [4]).

  On September 9, 1997, defendant was sentenced as a persistent felony offender to a prison term of twenty-five years to life on each robbery count, to be served concurrently. Page 7

  At both his first trial and subsequent re-trial, defendant's defense was that his actions were motivated by his honorable intentions to rid the neighborhood of drugs that were allegedly being sold at the grocery store.

  In May, 1999, defendant, through appointed appellate counsel David Weiss, filed an appellate brief in the Appellate Division claiming that defendant's trial counsel rendered ineffective assistance by pursuing a defense that was inadequate as a matter of law.

  Defendant filed a pro se supplemental appellate brief in the Appellate Division raising the following claims:

(a) that the destruction of the original surveillance videotape by the police constituted a Brady violation and warranted dismissal of the indictment;
(b) that the trial court abused its discretion when it failed to sanction the People for the loss of the detective's memobook;
(c) that defendant was deprived of his statutory and constitutional right to a speedy trial; and
(d) that the trial court abused its discretion by refusing to accept defendant's waiver of sequestration of the jury.
  By decision and order dated May 14, 2001, the Appellate Division unanimously affirmed defendant's judgment of conviction. People v. Musa Abdullah, 283 A.D.2d 512, 724N.Y.S.2d 636 (2d Dep't 2001). On November 28, 2001, the New York Court of Appeals denied leave to appeal. People v. Musa Abdullah, 97 N.Y.2d 654, 737 N.Y.S.2d 55 (2001).

  The respondent's position was that none of petitioner's claims could be considered by this court. An affidavit of December 4, 2003 states:

  Defendant has failed to exhaust his state remedies with respect to all four of his [original] claims. Defendant's first three claims must be deemed procedurally Page 8 barred because they pertain to matters that are based on the record and could have been raised by defendant on his direct appeal. Defendant's fourth claim, that during an unspecified portion of his trial the courtroom was closed to the public, appears to be based on matters that are dehors the record. Therefore, a state remedy in which to exhaust this claim still remains available to defendant. Accordingly, defendant's petition should be dismissed in its entirety.


  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

  An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v, Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as Page 9 determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

 III. Limitations Period

  Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.

  Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).

  "[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v, Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner Page 10 with notice and an opportunity to be heard before dismissing on such ground." Id.

  In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).

  The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review), A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002). Page 11

  The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).

  A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").

  The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled Page 12 equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).

  "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances,' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).

  Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,

  If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the Page 13 statute of limitations.

 Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 15S F.3d 762, 780 (5th Cir. 1999)).

 IV. Exhaustion

  In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

  Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No, 98 CIV, 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).

 V. Procedural Bar Page 14

  A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

  If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

  When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n.3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state Page 15 courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.

 VI. Actual Innocence

  "[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).

  Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.

  A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned `"not [with] the petitioners' innocence or guilt but solely Page 16 [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).

 VII. Ineffective Assistance of Counsel

  The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const, amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. _, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable Page 17 probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

  The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).

  As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a Page 18 reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U, S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").

  There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

  Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Page 19 Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).

  Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).

 VIII. Errors of State Law

  Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of Page 20 constitutional dimensions will merit habeas corpus relief only if it had a `"substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).

 IX. Evidentiary Error

  For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).

 IX. Verdict Against the Weight of the Evidence

  To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is 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 v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue. Page 21

 X. Legal Claims Frequently Raised in Habeas Corpus Applications

  For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) (Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) (Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) (Sandoval claims); Thomas v, Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) (Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) (Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (Prosecutorial misconduct); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);

 XI. Harmless Error Page 22

  In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).

  When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May l, 2003).

 XII. Certificate of Appealability

  This opinion complies with Miranda v, Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").

  A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for Page 23 the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certficate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, — F.3d —, No. 02-2320, slip op. at 10 (2d Cir. July 18, 2003).

 XIII. Analysis of Claims


  As set forth in respondent's original response, dated March 14, 2003, defendant never raised on direct appeal the fourth claim contained in his habeas petition — that during an unspecified portion of his trial the courtroom was closed to the public. Even though he was informed of this problem, defendant has not yet moved to vacate his judgment of conviction on that ground. Therefore, because defendant has failed, thus far, to utilize the avenues of relief available to him in the state court system, his claim remains unexhausted. See 28 U.S.C. § 2254(b) and (c). Accordingly, this Court has the authority to dismiss defendant's entire petition. See Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994) (citations omitted): see also Rose v. Lundy, 455 U.S. 509, 522 (1982); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 124 (2d Cir. 1995).

  Notwithstanding defendant's failure to exhaust his available state remedies, this court has the authority to deny defendant's petition on the merits. 28 U.S.C. § 2254(b)(2). It chooses to deny defendant's petition because none of his claims provide a ground for federal habeas corpus relief. All are without merit and frivolous.

  B. Page 24

  In Grounds One and Two of his petition, defendant claims for the first time that his conviction was obtained by the use of evidence gained pursuant to an unconstitutional search and seizure and an unlawful arrest. Both of these grounds constitute Fourth Amendment Claims. Defendant had a full and fair opportunity to litigate these issues in state court. He is procedurally barred from raising them in this court.

  "Under Stone v. Powell, 428 U.S. 465 (1976), federal habeas corpus relief is not available on the ground that evidence produce at trial was the result of an unconstitutional search and seizure, unless the state denied the prisoner an opportunity for full and fair litigation of the claim." Grey v. Hoke, 993 F.2d 117, 121 (2d Cir. 1991); see also McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir. 1983); Gates v. Henderson 568 F.2d 830, 836-40 (2d Cir. 1977) (en banc), cert. denied. 434 U.S. 1038 (1978); Jenkins v. Bara, 663 F. Supp. 891, 894 (E.D.N.Y. 1987).

  Here, a full and fair suppression hearing was conducted prior to trial. See Mapp/Dunaway/Huntley/Wade Hearing minutes, dated May 2, 1996 and August 8, 1996. Defendant was also afforded the opportunity on direct appeal to contest the hearing court's determination, but failed to do so.

  In any event, defendant's claims are without merit. There is nothing in the hearing record to indicate that an illegal search and seizure or unlawful arrest occurred. The hearing record supports a finding that the conduct of the police in apprehending defendant was lawful.

  The hearing evidence established that, after viewing the store's surveillance videotape which captured defendant and his two accomplices as they committed the robbery, Detective Thomas Visconti obtained still photographs of defendant and the other men. He then Page 25 determined that defendant's nephew was one of those seen in the videotape and, after speaking with him, learned defendant's whereabouts. When the detective found defendant, he arrested him for robbery and transported him to the 83rd Precinct. Incident to arrest, the detective searched defendant and recovered from his pants pocket two watches. Prior to speaking with defendant at the precinct, Detective Visconti read defendant his Miranda rights and defendant orally waived each of them. Detective Visconti read defendant his rights from a card contained in his police memobook. During the investigation, Detective Visconti's memobook was misplaced and was not available for trial. The People were subsequently sanctioned for its loss with an adverse inference charge by the trial court.

  A detective orally advised defendant of his Miranda rights. Defendant orally waived them. Defendant then made several statements to the detective that consisted of an admission that he was, in fact, one of the men shown on the tape. Thereafter, defendant was identified in a lineup by Jose DeJesus, one of the robbery victims, as the man who had placed a gun to DeJesus's head in the store during the robbery.

  On the basis of the evidence, the hearing court determined that no Fourth Amendment violation occurred. It found that on the basis of the videotape alone, the detective had sufficient probable cause to arrest defendant and bring him to the precinct house. It concluded that the detective had probable cause to search defendant and the area immediately surrounding him.

  The determinations of the hearing court are entitled to the presumption of correctness. There is no basis for questioning its findings.


  In Ground Three of his petition, defendant claims for the first time that his conviction Page 26 was obtained as a result of the People's failure to disclose favorable evidence, namely the testimony of Parole Officer Walter Stevens who kept a memobook of all contact between defendant and two police officers who did not testify at trial. Defendant's claim, whether interpreted as a Brady v. Maryland, 373 U.S. 83 (1963), violation claim or as a claim that the trial court failed to give a missing witness charge, is insufficient to entitle him to the habeas relief he seeks. It is without merit.

   Insofar as defendant's claim can be viewed as a Brady violation claim, it is rejected because defendant has failed to satisfy the requisite showing for habeas relief. In order to establish a violation of Brady v. Maryland 373 U.S. 83 (1973), to warrant habeas relief, a defendant must prove: (1) that the People possessed evidence favorable to the defense, (2) that the defendant did not possess or could not obtain the evidence with any reasonable diligence, (3) that the People suppressed the favorable evidence, and (4) that had the evidence been disclosed, there is a reasonable probability that the outcome of the trial would have been different. See United States v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997).

   Defendant fails to specify how the memobook or the testimony of Parole Officer Walter Stevens, or that of the two New York City Police Officers whom defendant refers to as "McDonald" and "James" would have been "favorable" to the defense. Defendant has failed to satisfy his burden. The People have no duty to disclose evidence whose exculpatory value is merely speculative. See, e.g., Tate v. Wood, 963 F.2d 20, 25 (2d Cir. 1992). Here the testimony of the police officer demonstrated that the memobook would not have assisted petitioner, even if it could be found.

   There is no showing, in any event, that the memobook was availabe to the prosecution. Page 27

   The case is thus completely different from Banks v. Dretke, 72 U.S.L. Week 4193 (Feb. 24, 2004), where materials favorable to defendant were in the prosecution's possession.

   To the extent that defendant's claim can be deemed a complaint that the missing witness charge with respect to a parole officer or two police officers should have been given at trial, it is meritless. The record shows that a missing witness charge was not warranted. Prior to summations, defense counsel alerted the court to the absence of Parole Officer Walter Stevens and police officers "James or McDonnell," and stated that the defense had been unable to find them (647). Defense counsel, who never asked that the People produce any of these witnesses, went on to refer to Walter Stevens as an "essential" witness for the defense (647-48). On that basis, defense counsel requested a missing witness charge for Stevens (655). The court denied defense counsel's request because Parole Officer Stevens was not within the People's control and because witnesses for the defense had testified that Walter Stevens was out of the country at the time of trial (655).

   The failure to give a missing witness charge will "rarely support reversal or habeas relief since reviewing courts recognize the aura of gamesmanship that frequently accompanies requests for a missing witness charge as to which the trial judge will have a surer sense than any reviewing court." Manning v. Walker, 2001 U.S. Dist. LEXIS 109 (E.D.N.Y. 2001) (quoting Malik v. Kelly, 1999 U.S. Dist. LEXIS 7942, *21-22 (E.D.N.Y. 1999).

   The decision whether to give a missing witness charge is committed to the sound discretion of the trial court. See United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988). As the record shows, the trial court exercised its discretion appropriately when it declined to give a missing witness charge. Page 28

   Defendant's petition, insofar as it rests on this claim, is without merit.


   In Ground Four of his petition, defendant claims for the first time that the court directed the bailiff to clear the courtroom of all spectators during the testimony of the People's "star witness." The record is devoid of any indication that the courtroom was closed to the public at any time during the trial.

   Assuming that the "star witness" to whom defendant refers was Jose DeJesus, one of defendant's two robbery victims, there is nothing in the record to support a finding that DeJesus would have been reluctant or fearful to testify in open court. The circumstances of this case were not such that the issue of courtroom closure would have been raised. As opposed to a narcotics buy-and-bust drug cases, where a testifying undercover officer may have reason to fear exposure of his identity to the public, this case involved the robbery of a small grocery store and its employees.

   This claim has no merit.


   This and the following claims were raised after the original petition. Those claims raised in the original petition are covered in "A" to "D", supra.

   In claim 3 often claims, defendant reiterates the same ineffective assistance of trial counsel argument he raised in his main brief on direct appeal to the Appellate Division. In that brief, defendant argued that his counsel was ineffective because he pursued a theory of defense that conceded guilt and did not constitute a "legal defense".

   A defendant claiming that he was denied the effective assistance of counsel must show Page 29 both that trial counsel's performance was deficient and that he was prejudiced by this deficient performance. See Strickland v. Washington, 466 U.S. 668, 690 (1984). In Strickland, the Supreme Court noted that a reviewing court should make every effort to eliminate "the distorting effects of hindsight" in assessing attorney performance and should "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance . . ." 466 U.S. at 690. See Smithy. Y1st, 826 F.2d 872, 874 (9th Cir. 1987); Kelly v. United States, 820 F.2d 1173, 1176 (11th Cir. 1987). Defendant has failed to demonstrate that counsel's performance was deficient and that his representation fell outside the `Vide range of professionally competent assistance," Strickland, 466 U.S. at 690.

   Defendant, who never offered an alternative defense theory, was effectively and meaningfully represented by trial counsel at every stage of the proceedings. See Kelly, 820 F.2d at 1176; Young v. Zant, 787 F.2d 1489, 1492 (11th Cir. 1984).

   Defendant's complaint about his trial counsel must be considered in light of the fact that this same attorney had successfully moved to vacate defendant's original conviction. Such a result belies defendant's claims that this attorney failed to provide effective representation.

   At the re-trial, in accordance with defendant's wishes and consistent with his testimony, counsel pursued a defense theory that defendant had committed the robbery with the honorable intention of destroying drugs allegedly kept at the President Street grocery store and preventing the sale of those drugs. Counsel's theory, which was, as the record shows, defendant's own creation, arguably was the only viable theory available.

   Having represented defendant at the prior trial and having witnessed a conviction, counsel was well aware of the strength of the People's evidence. During the re-trial, counsel Page 30 was faced, once again, with the unshakable testimony of Jose DeJesus identifying defendant as the robber, a videotape clearly showing defendant committing the robbery, and the highly credible testimony of Detective Visconti recounting defendant's own admission that he was one of the men shown in the videotape. Counsel was also still bound by defendant's own version of the events. Given such circumstances and the overwhelming evidence of defendant's guilt, counsel had little choice but to pursue his client's theory and try to prevail upon the mercy of the jury.

   This claim has no merit.


   In claim 9 of his ten, defendant reiterates the same argument that he set forth in Point III of his pro se supplemental brief to the Appellate Division. In that point, defendant claimed that his right to speedy trial pursuant to N.Y.C.P.L. §§ 30.30, 30.20 was violated. Defendant's claim is without merit. The record does not support a finding that defendant was deprived of his statutory or constitutional right to a speedy trial.

   The records show that the time that elapsed from the filing of the felony complaint on June 29, 1995, to the date of defendant's first speedy trial motion on September 11, 1996, was fourteen months and thirteen days. This was not an inordinate amount of delay. See Barker v. Wingo, 407 U.S. 514, 533-36 (1972) (five years). There is no record to indicate that any of the adjournments were not consented to by defendant or were otherwise marked improperly.

   Insofar as defendant's re-trial is considered, there was no unlawful or unreasonable delay from the date defendant's verdict was set aside on February 13, 1997, to the date of defendant's complaints of delay during his re-trial on May 8, 1997. Page 31

   This claim has no merit.


   In claim 10 of his 10, defendant reiterates the same argument he advanced in Point II of his pro se supplemental brief to the Appellate Division. In that point, defendant claimed that the trial court abused its discretion by failing to give an adverse inference charge for the loss of Detective Thomas Visconti's police memobook, which contained the card from which defendant was read his Miranda rights.

   Defendant's claim is belied by the record. It shows that the trial court did in fact sanction the People for their failure to preserve Detective Thomas Visconti's memobook.

   In response to defense counsel's specific request for an adverse inference charge the court instructed the jury during its final charge as follows:

Now, during the course of the trial you have heard testimony concerning a videotape and Detective Visconti's memobook. Part of the videotape and the entire memobook have been lost and/or detsroyed. The People have a legal obligation to turn over these items. Such evidence, if it had been produced by the People, could possibly be of material help and assistance to the jury in your deliberations. You may not, under the law, speculate or guess as to what the items might have contained. However, from the failure of the People to produce these items, the law permits but does not require you to infer, if you believe it proper to do so, that if the items had been produced, such evidence would not support and would even contradict the other evidence submitted by the People (Exhibit B at 761-62).
This claim has no merit.
   In claim l of his ten defendant claims for the first time that he was improperly adjudicated a persistent felony offender. In support of this claim, defendant argues that at Page 32 sentencing the prosecutor and the court erroneously deemed one prior felony conviction and one prior violation of parole as two prior felony convictions. Defendant's claim is belied by the transcript of his sentencing proceeding and by his criminal history, both of which fully support a finding that defendant was properly adjudicated a persistent felony offender.

   The record shows that, during sentencing, the prosecutor presented the court with certificates of disposition signed and sealed by the clerk of the Supreme Court and a certified copy of defendant's RAP sheet, confirming defendant's convictions for four prior felonies. In arguing that defendant should be sentenced as a persistent felony offender, the prosecutor correctly asserted that defendant had four prior felony convictions: (1) a first-degree manslaughter conviction in 1970 for which he was sentenced to eight years in prison; (2) a first-degree robbery conviction, under 1986 indictment, for which he received four to twelve years in prison; (3) a conviction for criminal sale of a controlled substance, under a 1986 indictment, to which he pled guilty; and (4) another first-degree robbery conviction, under a different 1986 indictment, for which he received four to twelve years in prison. See Exhibit B at S. 9-14. The facts of defendant's prior two first-degree robbery convictions were almost identical in that in both cases defendant robbed a fuel company at gunpoint.

   Given defendant's history, the prosecutor correctly argued that defendant should be adjudicated a persistent felony offender and the court, in accordance with statutory law, properly sentenced him. Defendant's claim concerning his persistent felony offender status provides no basis for habeas relief.

   This claim has no merit.

   I. Page 33

   In claim 2 of his ten, defendant asserts for the first time that the cross-examination portion of Detective Thomas Visconti's trial testimony, primarily that portion which dealt with the reading of defendant's Miranda rights, was inaccurately transcribed and was altered by a second or third unnamed party. Defendant also asks this court to appoint an expert to examine the transcript. Defendant's unsupported and unfounded assertion that the trial transcript has in any way been tampered with or altered has no basis. The claim for correction was not made in State court.

   This claim has no merit.


   In claims 7 and 8 of his ten, defendant claims for the first time that he was prejudiced by defense counsel's slandering of defendant's mother during summation and by the trial court's decision to interrupt counsel's summation so that the jury could have lunch. Defendant's claim is unsupported by the record.

   This claim has no merit.


   No other possible claim is more than frivolous.

  XIV. Conclusion

   The petition for a writ of habeas corpus is dismissed. A certificate of appealability is denied since no claim has any merit.



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