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United States District Court, S.D. New York

April 9, 2004.

JEFFREY ELLIOTT, Petitioner -against- ROBERT KUHLMANN, Respondent

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge



In 1988, petitioner Jeffrey Elliott ("Petitioner") was convicted in the New York State Supreme Court, Bronx County, of murder in the second degree and criminal possession of a weapon in the second degree, and was sentenced to concurrent indeterminate terms of imprisonment of 25 years to life for the murder count and five to 15 years for the weapons possession count. In 1997, Petitioner, proceeding pro se, filed a petition in this Court for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction. At the time he filed his habeas petition, Petitioner was incarcerated at the Sullivan Correctional Facility in Fallsburg, New York, although he has since been transferred to the Great Meadow Correctional Facility in Comstock, New York.

  Petitioner's claims in this Court have not yet been resolved, in part because of Respondent's continued difficulty obtaining the transcript of Petitioner's trial, despite numerous attempts since the commencement of this proceeding. Finally, in November 2003, Petitioner wrote to the Court and requested that summary judgment be granted in his favor, arguing that the failure of Respondent to comply with a court order to produce the trial transcript justified the issuance of the writ, and that too much time had passed for the Court to review the petition fairly or to hold a reconstruction hearing. At the time of that summary judgment request, the case was pending before the Honorable George B. Daniels,*fn1 who, upon receiving Petitioner's letter, referred the matter to me for a report and recommendation. Since then, the case has been reassigned to the Honorable P. Kevin Castel. (Dkt. 21.)

  Liberally construed,*fn2 Petitioner's claims challenge his conviction on the grounds that: (1) Petitioner received ineffective assistance of trial counsel; (2) Petitioner was denied a fair trial because the prosecutor made remarks during trial that were unduly prejudicial; (3) the evidence presented at trial was legally insufficient to support the verdict, in light of the autopsy results, which purportedly conflicted with the testimony of prosecution witnesses;*fn3 and (4) Petitioner was denied the right to counsel at various pretrial proceedings, including a line-up.*fn4 (See Pet. ¶ 12.) Respondent argues that the petition should be dismissed because the claims raised are not exhausted, are procedurally barred, are without merit, or some combination thereof. (See Affidavit of Nancy D. Killian, Assistant District Attorney, sworn to Aug. 13, 1998 (hereinafter "Killian Aff.") ¶ 12; Respondent's Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus, filed Aug. 11, 1998 (hereinafter "Resp. Mem."), attached to Killian Aff. at 4-25.)

  For the reasons set forth below, I recommend that, despite the passage of time, Petitioner's request for summary judgment be denied. I further recommend that the petition be dismissed on procedural grounds. This basis for dismissal would obviate any arguable need for a trial transcript or a reconstruction of the trial proceedings.


 I. Factual Background

  As this Court does not have the transcript of Petitioner's trial, the facts set forth herein are taken largely from the briefs submitted by the parties to the Appellate Division on Petitioner's direct appeal of his conviction.*fn5 See Douglas v. Portuondo, 232 F. Supp.2d 106, 109 n.1 (S.D.N.Y. 2002) (where, in habeas proceeding, trial transcript is not available, facts may be derived from the parties' submissions); see also Rodriguez v. Fischer, No. 01 Civ. 3993 (AKH), 2002 WL 1492118, at *1 n.1 (S.D.N.Y. July 11, 2002) (same); Polanco v. Scully, No. 92 Civ. 3688 (JG), 1996 WL 1088918, at *1 n.1 (E.D.N.Y. Sept. 10, 1996) (same).

  According to the testimony that was apparently offered at trial, on March 31, 1984, Petitioner was working at the Bojangles Restaurant, at 77-71 Gun Hill Road in the Bronx, together with Octavia Nelson ("Nelson") and Stewart Oppenheimer ("Oppenheimer"). (See Motion to Dismiss, Ex. 5 at 4.) After Oppenheimer went upstairs to his office, Petitioner and Nelson had an argument regarding the stocking of supplies. (See id.) At some point during that argument, Nelson's friend, Carlos Concepcion ("Concepcion"), entered the restaurant. (See id., Ex. 4 at 3.) When Nelson told him what was happening, Concepcion left and returned with Nelson's boyfriend, Lincy Hart ("Hart"), who himself started arguing with Petitioner. (See id., Ex. 5 at 4.) This argument ended with Petitioner telling Hart that they should meet after work, apparently for a fight. (See id.) At that point, Hart left the restaurant with Concepcion and recruited several friends for the anticipated fight with Petitioner. (See id. at 4-5.) Upon returning to the restaurant with his friends, however, Hart discovered that Petitioner was no longer there. (See id. at 5.)

  The next night, Nelson was not working at the restaurant, but, together with Hart, she approached the restaurant drive-through window. (See id., Ex. 4 at 5.) Petitioner came to the window and again began arguing with Hart. (See id.) When Nelson and Hart left to join Concepcion and other friends across the street, Petitioner went to the restaurant cashier, retrieved a pouch, and then left the restaurant. (See id., Ex. 5 at 5.) Once outside the restaurant, Petitioner again argued with Hart. (See id.) Finally, the two men approached each other, and, when they were standing face to face in the parking lot, Petitioner drew a handgun and shot Hart once in the chest. (See id.) The shooting was witnessed by both Nelson and Concepcion. (See id.) Hart later died of his wounds at North Central Bronx Hospital. (See id. at 6.)

  In December of 1986, Petitioner was found living in Ashfield, North Carolina. (See id.) He was brought back to Bronx County and placed in a line-up, where he was identified by Nelson. (See id.)

 II. Procedural History

  A. Trial

  Petitioner was tried by jury in the New York Supreme Court. Petitioner, Nelson, Concepcion, Oppenheimer, a medical examiner, and members of the police department testified at trial. (See Motion to Dismiss, Ex. 5.) The jury found Petitioner guilty, and the court entered a judgment of conviction on February 24, 1988.

  B. Petitioner's Section 440.10 Motion

  Petitioner timely filed a notice of appeal on March 2, 1988. (See id., Ex. 2 at 2.)*fn6 On May 30, 1988, however, prior to perfecting his appeal, Petitioner filed a pro se motion under New York Criminal Procedure Law § 440.10 seeking an order vacating his conviction. In his Section 440.10 motion, Petitioner claimed that he had received ineffective assistance of trial counsel and that the prosecution had knowingly used false evidence at trial. (See id., Ex. 1, Motion at 1-2.)*fn7 With respect to his ineffective assistance of counsel claim, Petitioner alleged, more specifically, that his trial counsel: (1) had failed to object to "fabricated" testimony; (2) had failed to present a proper defense at trial regarding the "inconsistent" medical evidence;*fn8 (3) had failed to file necessary motions and applications to, inter alia, suppress evidence; (4) had failed to object to "inflammatory and highly prejudicial remarks" made by the prosecutor at trial; and (5) had exhibited demeaning conduct toward Petitioner that was "a factor in [counsel's] overall representation of the case before the jury." (Id., Ex. 1, Aff. at 4.)

  The State opposed the motion to vacate, arguing, inter alia, that Petitioner's claims raised questions that "ultimately concern[] a matter of record fully adressable [sic] on appeal from the judgment." (Id., Ex. 2 at 2-4 (quoting N.Y. Crim. Proc. Law § 440.10(2)(b)).)

  By order dated July 5, 1988, the trial court denied Petitioner's motion on the ground that the issues presented were inappropriate for collateral review and should have been raised on direct appeal. (See Motion to Dismiss, Ex. 3*fn9 ("This judgment is appealable and sufficient facts appear on the record with respect to the issues raised to permit adequate review thereof upon such appeal.") (citing N.Y. Crim. Proc. Law § 440.10(2)(b)).) When this decision was issued, Petitioner did not originally seek leave to appeal it to the Appellate Division. C. Direct Appeal

  In June of 1989, Petitioner, through counsel, perfected his direct appeal to the Supreme Court of New York, Appellate Division, First Department. Despite the 1988 ruling by the trial court, however, Petitioner did not raise on direct appeal the issues that he had attempted, unsuccessfully, to raise in his Section 440.10 motion. Rather, Petitioner claimed only that the prosecutor's allegedly prejudicial conduct and inflammatory comments at trial had deprived Petitioner of his right to a fair trial. (See Motion to Dismiss, Ex. 4.)

  The State opposed Petitioner's appeal, arguing that the issues raised on appeal had not been preserved, and, in any event, were without merit. (See id., Ex. 5.) On October 5, 1989, the Appellate Division unanimously affirmed the trial court's judgment, without opinion, and also denied Petitioner's previous request to file a supplemental pro se brief. See People v. Elliott, 154 A.D.2d 236, 546 N.Y.S.2d 505 (1st Dep't 1989). Petitioner filed for leave to appeal to the Court of Appeals, and leave was denied in November of 1989. See People v. Elliott, 74 N.Y.2d 948, 550 N.Y.S.2d 282 (1989) (Table).

  D. Habeas Corpus Petition

  Petitioner filed the instant petition on April 25, 1997, raising the one claim that he had raised previously on direct appeal (that the prosecutor had engaged in unduly prejudicial conduct at trial), one claim that he had raised previously only in his Section 440.10 motion (that Petitioner had received ineffective assistance of trial counsel), and two new claims that Petitioner had never previously raised before the state courts at all (that the alleged inconsistencies between the medical evidence and the prosecution witnesses' testimony could not support the verdict,*fn10 and that Petitioner was denied the right to counsel during pre-trial proceedings*fn11). (See Pet. ¶ 12.)

  On June 23, 1998, Respondent moved to dismiss the petition under the applicable statute of limitations. (See Dkt. 5 (Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 2244(d)(1)).) By Order dated July 9, 1998, the Court denied that motion. (Dkt. 6.)

  On August 11, 1998, Respondent then filed an answer to the petition, arguing, inter alia, that certain of the claims should be dismissed as unexhausted. (See Resp. Mem. at 4-25.) One of Respondent's arguments was that, by failing to seek leave to appeal the denial of his Section 440.10 motion, Petitioner had failed to exhaust any claim raised on that motion. (See id. at 5.) Apparently in response to that argument, Petitioner requested that his habeas petition be held in abeyance or dismissed without prejudice, to enable him to exhaust any unexhausted claims. (See Letter from Petitioner to Judge Koeltl, dated Sept. 1, 1998.) At the same time, Petitioner returned to state court, in an apparent attempt to exhaust his claims. Thus, on September 1, 1998, Petitioner sought leave to appeal from the trial court's ruling on his Section 440.10 motion. Leave was denied on November 17, 1998. (See Certificate Denying Leave M-6176, dated Nov. 17, 1998.)*fn12 This denial of leave to appeal mooted Petitioner's motion for a stay of this action or dismissal without prejudice, and this Court accordingly denied that motion on April 13, 1999. (See Dkt. 11.) In its April 1999 Order, the Court also directed Petitioner to reply to Respondent's opposition to his petition within 45 days. (See id.)

  After one prior extension of his deadline to reply (see Dkt. 13), Petitioner wrote to the Court on August 9, 1999, requesting certain documents, including a transcript of the medical testimony at trial. (See Letter from Petitioner to Judge Koeltl, dated Aug. 9, 1999.) On August 23, 1999, the Court ordered Respondent to respond to Petitioner's request or produce the requested documents by August 30, 1999. (See Dkt. 14.) The Court also directed Respondent to submit the trial transcript to the Court by that same date. Additionally, the Court extended Petitioner's time to respond to Respondent's opposition to the petition until September 24, 1999. (See id.) Respondent, however, never submitted the trial transcript, and Petitioner — who failed to seek any further extensions — never filed a reply.

  On January 3, 2000, the Court ordered Respondent to file an affidavit regarding the status of its efforts to obtain the trial transcript. (Dkt. 15.) Respondent then provided the Court with an affidavit recounting Respondent's numerous unsuccessful attempts to obtain the trial transcript since May 1998. (See Dkt. 16 (Affidavit in Compliance with this Court's Order Dated January 3, 2000, sworn to on Jan. 7, 2000).) In an Order dated January 19, 2000, the Court requested Petitioner to inform the Court whether he had a copy of the transcript, and directed Respondent to investigate whether the transcript was available from Petitioner's appellate counsel. (Dkt. 17.) Respondent then submitted an affidavit and a letter to the Court, stating that Petitioner's appellate counsel did not have a copy of the trial transcript. (See Dkt. 18 (Affidavit in Compliance with this Court's Order Dated January 19, 2000, sworn to on Jan. 27, 2000); Letter from Ms. Killian to Judge Koeltl, dated Feb. 4, 2000.) In her letter, Respondent's counsel argued that the petition could be disposed of without the need for the trial transcript. (See Letter of 2/4/00.)

  Petitioner, however, apparently disagreed that his petition could be subject to dismissal without the benefit of either a trial transcript or a reconstruction of the trial proceedings. On November 16, 2003, having apparently received no further production from Respondent or ruling from the Court, Petitioner wrote a letter to the Court, noting that Respondent had not complied with the Court's prior Order to produce the transcript, and requesting that, under the circumstances, the Court grant summary judgment on his habeas claims. (See Letter from Petitioner to Judge Daniels, dated Nov. 16, 2003.) Petitioner argued in his letter that Respondent's failure to provide the transcript had resulted in a violation of his "substantive and procedural Due Process rights to have the Federal Court [] review the Federal Constitutional wrong's [sic] [] that have occurred in your Petitioner[']s Trial. . . . " (Id. at 2.) Petitioner further argued that delays in the case had resulted in a "`Fundamental Miscarriage' of Justice." (Id.) Finally, Petitioner asserted that, because of the passage of time, the Court could no longer "efficiently and effectively" review Petitioner's constitutional challenges to his conviction, and that a reconstruction hearing would be futile. (Id. at 3.) To date, Respondent has not responded to Petitioner's letter.*fn13

  Before issuing this Report and Recommendation, this Court made one final effort to ascertain the status of Respondent's efforts to obtain the trial transcript in this case. In response to inquiries from my chambers, counsel for Respondent wrote to the Court on January 29, 2004, stating that counsel had made another unsuccessful effort to obtain the transcript, and reiterating counsel's position that the petition could be properly disposed of without the transcript. (See Letter from Ms. Killian to Judge Freeman, dated Jan. 29, 2004.)

  Most recently, Petitioner has written again to the Court, once more requesting that summary judgment be entered in his favor. (See Letter from Petitioner to Judge Castel, dated Feb. 4, 2004.) Petitioner argues that Respondent acquiesced to his demand for summary judgment by failing to respond to his letter requesting that judgment be entered, and further argues that the Court is technically incapable of reviewing the record because of the missing transcript. (See id.)*fn14 DISCUSSION


  As noted above (see supra at 7-8), two of Petitioner's habeas claims — (a) his claim that the evidence was insufficient to support the verdict, in light of the allegedly conflicting autopsy report, and (b) his purported denial of counsel in pre-trial proceedings — are being asserted for the first time in this Court. As these two claims were not raised in either his Section 440.10 motion or on his direct appeal, Petitioner is procedurally barred from raising these claims here, and they should be dismissed.

  A. The Claims Are Unexhausted.

  A federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state courts, thereby affording those courts the "opportunity to pass upon and correct alleged violations of . . . [a] prisoner's federal rights." Picard, 404 U.S. at 275 (citation omitted).

  The standards for presenting federal constitutional claims to state courts are not so stringent as to require the recitation of "book and verse on the federal constitution." Picard, 404 U.S. at 278 (citation omitted). However, the state courts must be "apprised of `both the factual and the legal premises of the claim [the petitioner] asserts in federal court.'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Petitioners can ensure that state courts are "alerted to the fact that [they] are asserting claims under the United States Constitution," Duncan v. Henry, 513 U.S. 364, 365-66 (1995), by presenting their claims in a fashion demonstrating either


(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) [an] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) [an] allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194; accord Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984). Once the state courts are apprised of the constitutional nature of a petitioner's claims, the exhaustion requirement is fulfilled when those claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (citation omitted).

  Where, as here, claims have not been raised before the state courts on direct appeal, on a collateral motion to vacate the conviction, or by any other means, those claims are plainly unexhausted. See Dorsey, 112 F.3d 50.

  B. The Claims Should Be Deemed Exhausted.

  Where a petitioner presents an unexhausted claim, that claim will nonetheless be deemed exhausted if the petitioner no longer has an available remedy in state court. See Castille, 489 U.S. at 351; Bossett, 41 F.3d at 828-29 (citations omitted); Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991) (citations omitted).

  Here, Petitioner used his one opportunity for direct appeal, and thus any further direct appeal is foreclosed. See N.Y. Court Rules § 500.10(a) (permitting only one application for leave to appeal); see also N.Y. Crim. Proc. Law §§ 450.10 & 450.15 (allowing a petitioner one chance to appeal). Further, because Petitioner could have raised his claims regarding the medical evidence and his purported denial of counsel on direct appeal, he cannot assert these claims collaterally. See N.Y. Crim. Proc. Law § 440.10(2)(c) (barring collateral review of claims that could have been raised on direct appeal). Petitioner also cannot seek review of either of these claims pursuant to either a writ of error coram nobis, see People v. Gordon, 183 A.D.2d 915, 584 N.Y.S.2d 318 (2d Dep't 1992) (coram nobis relief only available for claims of ineffective assistance of appellate counsel) (citation omitted), or a state writ of habeas corpus, see People ex rel. Allah v. Leonardo, 170 A.D.2d 730, 565 N.Y.S.2d 331 (3d Dep't 1991) (state writ of habeas corpus unavailable where claim could have been raised on direct appeal) (citations omitted).

  Because Petitioner now has no procedural recourse to New York's courts to advance his claims regarding the sufficiency of the evidence and the alleged denial of counsel in pre-trial proceedings, these claims should be deemed exhausted. See Bossett, 41 F.3d at 828-29; Grey, 933 F.2d at 120-21.

  C. The Claims Are Procedurally Defaulted, and Petitioner Cannot Overcome the Procedural Bar.

  When a claim is deemed exhausted because of a procedural bar, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default," Gray v. Netherland, 518 U.S. 152, 162 (1996) (citations omitted); accord Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001) (citations omitted), or that "failure to consider the [defaulted] claim will result in a fundamental miscarriage of justice," Coleman v. Thompson, 501 U.S. 722, 750 (1991) (internal quotation marks and citations omitted). In this instance, Petitioner has not attempted to satisfy either standard regarding the two claims discussed above.

  "Cause" for a procedural default is established when "some objective factor external to the defense" impeded the petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Ayuso v. Artuz, No. 99 Civ. 12015 (AGS) (JCF), 2001 WL 246437, at *8 (S.D.N.Y. Mar. 7, 2001). Thus, cause for a default exists where a petitioner can show that (1) "the factual or legal basis for a claim was not reasonably available to counsel," (2) "`some interference by state officials' made compliance [with the procedural rule] impracticable," or (3) "the procedural default is the result of ineffective assistance of counsel." Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citation omitted). "Prejudice" requires Petitioner to demonstrate that the alleged constitutional error worked to Petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).

  With respect to his insufficiency of the evidence and denial of counsel claims, Petitioner has not even attempted to show any cause for his procedural default. Therefore, this Court need not reach the question of whether Petitioner can show prejudice. See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) ("Since a petitioner who has procedurally defaulted in state court must show both cause and prejudice in order to obtain federal habeas review, we need not, in light of our conclusion that there was no showing of cause, reach the question of whether or not [petitioner] showed prejudice.").

  Nor has Petitioner demonstrated "a sufficient probability that [the] failure to review his federal claim[s] will result in a fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Coleman, 501 U.S. at 750). This exception to the procedural bar is extremely narrow; it is "concerned with actual as compared to legal innocence." Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Further, actual innocence means factual innocence, not mere legal insufficiency. Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998). To show "actual innocence," Petitioner must produce new, reliable evidence sufficient to make a "colorable showing" that "it is more likely than not that no reasonable juror would have convicted [Petitioner]" in light of the new evidence. Schlup v. Delo, 513 U.S. 298, 329 (1995); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000). In this case, Petitioner has offered no new evidence demonstrating actual innocence. He thus cannot make an adequate showing to satisfy the "miscarriage of justice" exception to the procedural bar.

  Accordingly, this Court is procedurally barred from reviewing Petitioner's claims regarding the sufficiency of the evidence and his alleged denial of counsel, and I recommend that those claims be dismissed.


  Petitioner did raise his ineffective assistance of counsel claim before the state courts, but only on his Section 440.10 motion. When that motion was denied on the ground that the claim was capable of being addressed on direct appeal, Petitioner did not accept the reasoning of the trial court and assert the claim on his direct appeal, although he could have done so. Indeed, it appears Petitioner did not perfect his direct appeal until nearly a year after the trial court issued its ruling on his Section 440.10 motion, giving him more than ample opportunity to raise his claim of ineffective assistance on that appeal. Further, Petitioner's later effort (after filing his habeas petition) to exhaust this claim by belatedly seeking leave to appeal the denial of the Section 440.10 motion did not result in exhaustion of the claim for habeas purposes. By denying leave to appeal, the Appellate Division merely let stand the decision of the trial court that the claim had been inappropriately raised in a collateral proceeding. This did not rectify Petitioner's failure to assert the claim on direct appeal. See Wells v. LeFavre, No. 96 Civ. 3417 (SAS), 1997 WL 675335, at *3 (S.D.N.Y. Oct. 29, 1997) ("[W]here a 440 motion is denied on procedural grounds [i.e., because the claim was not properly raised in a Section 440 proceeding], the denial of a motion for leave to appeal does not exhaust the underlying claims for habeas purposes.").

  Thus, Petitioner's ineffective assistance of counsel claim is unexhausted. Further, as with the two claims discussed above, Petitioner no longer has recourse to the state courts to exhaust the claim, and thus it should be deemed exhausted and procedurally barred. Finally, as Petitioner has again shown no basis for overcoming the procedural bar, the claim should be dismissed.


  Petitioner also claims that he was deprived of a fair trial because of prosecutorial misconduct. Specifically, he alleges that the prosecutor called him a liar and improperly bolstered the testimony of prosecution witnesses. (See Pet. ¶ 12.)

  A. The Claim Is Exhausted.

  This claim is exhausted because Petitioner raised the same claim before the Appellate Division on his direct appeal, as well as in his request for leave to appeal to the New York Court of Appeals, giving the state courts a full opportunity to review the claim.*fn15 See, e.g., Wilson v. Harris, 595 F.2d 101, 102 (2d Cir. 1979).

  B. The Silent Affirmance of the Appellate Division Should Be Read As a Decision Based on an Independent and Adequate State Procedural Ground.

  Respondent contends that, although Petitioner's prosecutorial misconduct claim is exhausted, this Court is nonetheless barred from reviewing the claim because the Appellate Division rejected it on an independent and adequate state law ground — specifically, on the ground that the claim was not preserved. (See Resp. Mem. at 10-12.)

  Federal habeas review of a claim is not available where the question has been decided by a state court and the state court's decision "rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729(1991). The state law ground need not be substantive. Id. It may also be procedural, such as a decision rejecting a claim as unpreserved under the state's established procedural rules. See, e.g., Montalvo v. Annets, No. 02 Civ. 1056 (LAK) (AJP), 2003 WL 22962504, at *20 (S.D.N.Y. Dec. 17, 2003) (failure to comply with New York state's "contemporaneous objection" rule is an adequate and independent state law ground supporting a judgment).

  In this case, the Appellate Division affirmed Petitioner's conviction without opinion, and the Court of Appeals denied leave to appeal. Respondent argues that, because the State had argued in its brief to the Appellate Division that the claim was not only without merit, but also unpreserved (see Motion to Dismiss, Ex. 5 (arguing that Petitioner had failed to comply with New York's "contemporaneous objection" rule, N.Y. Crim. Proc. Law § 470.05)), the court's silence should be construed as an implicit acceptance of the State's procedural argument, which would then preclude habeas review in this Court. (See Resp. Mem. at 10-11 (citing Martinez v. Harris, 675 F.2d 51 (2d Cir. 1982), and Quirama v. Michele, 983 F.2d 12 (2d Cir. 1993)).)

  In Martinez, the Second Circuit acknowledged that the State's practice of arguing in the alternative on appeal (both on procedural grounds and on the merits) is widely accepted, and reasoned that:

[i]t therefore makes no sense for us to hold that when a state prosecutor acts as a prudent advocate, he waives any of the alternative arguments he asserts. Furthermore, we do no believe that the Appellate Division's silence evinces an intent to overlook the procedural error. The interest-of-justice jurisdiction under [section] 470.15 is not invoked routinely. Therefore, we feel justified in assuming that the Appellate Division does not exercise its discretion under that section and decide a case solely on the merits of a claim, unless it says so.
Martinez, 675 F.2d at 54 (internal citations omitted). Clarifying and reaffirming this holding, the Court of Appeals later ruled, in Quirama, that, where the State argues on both procedural and substantive grounds, a silent affirmance is presumed to be based on an adequate and independent state procedural ground, unless there is "good reason" to question this. Quirama, 983 F.2d at 14 (quoting Coleman v. Thompson, 501 U.S. 722 (1991)).

  Here, there is no "good reason" to believe that the Appellate Division rejected Petitioner's prosecutorial misconduct claim on the merits, rather than on the asserted procedural ground. Petitioner has pointed to nothing in the record to cast any doubt on the conclusion that the court accepted the State's procedural argument. Moreover, there is little doubt that Petitioner's claim was, in fact, unpreserved, as Petitioner himself conceded before the Appellate Division that "most of the prosecutor's misconduct was not objected to." (Motion to Dismiss, Ex. 4 at 25.) As this Court has no basis for believing that the Appellate Division overlooked the procedural defect and reached the merits of Petitioner's claim, the Court must presume that the claim was indeed rejected on the basis of state procedural law.

  Accordingly, this Court is procedurally barred from reviewing the claim, unless, once again, Petitioner can show both "cause" for the procedural bar and "prejudice" resulting therefrom, or that application of the bar will result in a fundamental miscarriage of justice. See supra at 14-15; see also Quirama, 983 F.2d at 14.

  Although Petitioner has not actually made this point in context, if his papers are construed liberally, they may be read to suggest that he did have "cause" for failing to preserve his prosecutorial misconduct claim, in that he had ineffective assistance of trial counsel. Certainly, in the context of his Section 440.10 motion, Petitioner argued that his counsel was ineffective for failing, inter alia, to object at trial to prejudicial remarks made by the prosecutor. (See Motion to Dismiss, Ex. 1, Aff. at 4.) Although not every attorney error will be sufficient to establish cause for a procedural default, the Supreme Court has held that, where counsel's conduct fails to meet the standards guaranteed by the Sixth Amendment, the "cause" requirement will be satisfied. Murray v. Carrier, 477 U.S. 478, 486-88 (1986).

  In Murray, however, the Supreme Court added that "the exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Id. at 489. The Court explained: if a petitioner could raise his ineffective assistance claim for the first time on federal habeas in order to show cause for a procedural default, the federal habeas court would find itself in the anomalous position of adjudicating an unexhausted constitutional claim for which state court review might still be available. The principle of comity that underlies the exhaustion doctrine would be ill served by a rule that allowed a federal district court `to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,' and that holds true whether an ineffective assistance claim is asserted as cause for a procedural default or denominated as an independent ground for habeas relief.

 Id. (internal citation omitted).

  Here, as discussed above, Petitioner has not exhausted his ineffective assistance of counsel claim, and that claim has been procedurally defaulted. (See supra at 16-17.) Further, Petitioner has shown no basis for overcoming his procedural default of that claim. For these reasons, that claim cannot now be raised as "cause" to support his procedural default of any other claim. See Murray, 477 U.S. at 489; see also Edwards v. Carpenter, 529 U.S. 446 (2000) (holding that a procedurally defaulted ineffective assistance claim can only serve to excuse the default of another habeas claim where the petitioner can show a basis for overcoming the procedural default of the ineffective assistance claim).

  Moreover, Petitioner has not shown "prejudice" resulting from the procedural bar, in that he has not shown that the alleged constitutional error has worked to his actual and substantial disadvantage. United States v. Frady, 456 U.S. 152, 170 (1982). Nor, as noted above, has Petitioner made any attempt to make a showing of actual innocence, as would be required to support a finding that his claim should be reviewed to avoid a fundamental miscarriage of justice. Under the circumstances, Petitioner, once again, cannot overcome the procedural bar, and his prosecutorial misconduct claim should therefore be dismissed. C. Even If the Prosecutorial Misconduct Claim Were Not Procedurally Defaulted, It Would Fail on the Merits.

  Even if Petitioner were able to overcome the procedural bar, his prosecutorial misconduct claim could not survive on the merits.

  As the Appellate Division cannot be said to have reviewed this claim on the merits, this Court, were it to reach the claim, would review the claim de novo.*fn16 The standard that Petitioner would have to meet to demonstrate a constitutional violation is that the prosecution's claimed misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (stating the standard required to prevail on a claim of prosecutorial misconduct); see also Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (prosecutor's actions must be "so egregious as to violate the defendant's due process rights") (citations omitted). Further, "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982).

  Here, even if — in the absence of the trial transcript — Petitioner's assertions of fact were accepted at face value, they would not be sufficient to demonstrate the level of egregious prosecutorial misconduct necessary to establish that Petitioner was denied a fair trial. First, even if, as Petitioner alleges, the prosecutor had stated at trial that certain prosecution witnesses were only seeking "justice" (see Motion to Dismiss, Ex. 4 at 12), such a statement would have been a justified response to defense counsel's attempt to show that prosecution witnesses had motive to lie about Petitioner's guilt. (See id., Ex. 5 at 16; see also McKay v. McCray, No. 00 Civ. 3930 (JBW), 2003 WE 21822774, at *5 (E.D.N.Y. July 14, 2003) (habeas relief not warranted based on prosecutorial misconduct claim where, in response to defense counsel's attack on prosecution witness' credibility, prosecutor stated that prosecution witness had no motive to lie, and that no evidence had been introduced indicating that witness was lying); Fletcher v. Salamack, No. 89 Civ. 3604 (MGC), 1989 WE 153061, at *3 (S.D.N.Y. Dec. 14, 1989) (no improper "vouching" found where prosecutor made statements in support of credibility of prosecution witnesses after defense counsel insinuated that witnesses were lying).)

  Secondly, Petitioner's allegation that the prosecution labeled him a liar does not justify habeas relief. As an initial matter, nowhere in his brief on appeal does Petitioner assert that the prosecution actually used the term "lie" or "liar." Instead, the prosecution appears to have argued at trial that, when the members of the jury used their "common sense," they would see that Petitioner's account of the events was not believable. (Motion to Dismiss, Ex. 4 at 13.) Regardless, even if the prosecution had called Petitioner a "liar," such a statement would not have amounted to a constitutional violation. See, e.g., Smith v. Walsh, No. 00 Civ. 5672 (JG), 2003 WE 22670885, at * 5 (E.D.N.Y. Oct. 20, 2003) ("[T]hat [the prosecutor] called [the petitioner] a liar in summation does not amount to misconduct warranting habeas relief. Criminal trials often involve irreconcilable testimony, and an argument that a defendant — or any other witness for that matter — lied under oath is not something courts should be squeamish about.") (citation omitted).

  Moreover, any claim of prejudice to Petitioner resulting from alleged prosecutorial misconduct must be considered in light of the overall strength of the prosecution's case. Here, two eye-witnesses, both of whom had prior familiarity with Petitioner, identified him as the killer. (See Motion to Dismiss, Ex. 4 at 2.) This is strong proof of guilt, and it serves to minimize the prejudicial impact of the alleged prosecutorial misconduct. See United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) (per curiam) ("if proof of guilt is strong, then the prejudicial effect of the [prosecutor's] comments tends to be deemed insubstantial"). For this reason as well, Petitioner's allegations would not justify granting habeas relief.

  I therefore recommend that Petitioner's prosecutorial misconduct claim be dismissed as procedurally barred and, in any event, without merit.


  For all of the foregoing reasons, I recommend that Petitioner's petition for a writ of habeas corpus be dismissed in its entirety, and that Petitioner's motion for summary judgment be denied. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, United States Courthouse, 500 Pearl Street, Room 2260, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Castel. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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