The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
Petitioner has filed a motion seeking a stay of his petition for a writ
of habeas corpus so that he may return to state court to exhaust his
claim of ineffective assistance of appellate counsel through a petition
for writ of error coram nobis. For the reasons set forth below,
petitioner's motion is granted.
On September 17, 1997, petitioner was convicted in the Supreme Court of
the State of New York, Bronx County (Stackhouse, J.), after a jury trial,
of murder in the second degree, in violation of New York Penal Law
Section 125.25. By that judgement, petitioner was sentenced to an
indeterminate term of imprisonment of twenty-five years to life. Petitioner is currently
incarcerated pursuant to that judgment.
Petitioner appealed his conviction to the Supreme Court Appellate
Division, First Department, arguing that: (1) the Trial Court improperly
ruled on Batson*fn1 violations, (2) the prosecutor made
improper and prejudicial remarks during summation, (3) the Trial Court
improperly allowed the prosecution to impeach its own witness and (4)
petitioner's sentence was unduly harsh (Petitioner's undated Appellate
Brief ("Pet. App. Br."), at 16, 32, 36, 38, annexed as Ex. 1 to the
Affidavit of Assistant District Attorney Christopher J. Blira-Koessler,
sworn to July 22, 2003 ("Koessler Aff."). Petitioner filed a pro
se supplemental brief in September 2000 arguing that (1) his trial
counsel was ineffective for (a) failing to move to dismiss the indictment
and (b) failing to object to the prosecutor's summation and (2) "the
trial court's reliance on the third party testimony to establish a
prosecution witness' prior familiarity with appellant violated
appellant's right to due process of law" (Petitioner's Supplemental Brief
at 3, 6, 10, 14, dated September 2000, annexed as Ex. 2 to Koessler
On June 26, 2001, the Appellate Division affirmed petitioner's
conviction, stating: The court's rulings on applications made by both
defendant and the People pursuant to Batson v
Kentucky (476 U.S. 79) were proper. Defendant
has failed to preserve his contentions that the
court failed to follow the three-step
Batson protocols and that the People's
explanations for their peremptory challenges were
pretextual (see, People v
Allen, 86 N.Y.2d 101, 109-110), and we decline
to review them in the interest of justice. Were we
to review these claims, we would find that the
court sufficiently complied with the three-step
procedure (see, People v
Hameed, 88 N.Y.2d 232, 237, cert
denied 519 U.S. 1065), and properly determined
that the People's explanations were nonpretextual.
These ex-planations involved acceptable criteria
(see, People v. Mancini, 219 A.D.2d 456, Iv
denied 86 N.Y.2d 844; People v
Manigo, 165 A.D.2d 660), and the court's
finding that the explanation was not pretextual is
entitled to great deference (People v
Hernandez, 75 N.Y.2d 350, affd
500 U.S. 352), especially since matters of demeanor are
involved. The record also supports the court's
finding that it was pretextual with respect to a
prospective juror peremptorily challenged by
defense counsel. In making that finding, the court
similarly employed its unique opportunity to
evaluate the credibility of a demeanor-based
The court properly permitted the People to
impeach their own witness by a prior written
statement that inculpated defendant. The witness's
trial testimony was not merely unhelpful, but
affirmatively damaged the People's case by tending
to prove that the person who fired the fatal shot
could not have been defendant (see, CPL
60.35; People v. Fitzpatrick, 40 N.Y.2d 44).
Defendant has failed to preserve for appellate
review his contentions with respect to the
prosecutor's summation and we decline to review
them in the interest of justice. Were we to review
these claims, we would find that although some of
the prosecutor's comments were better left
unsaid, in light of the absence of any obdurate pattern of in-flammatory
remarks, reversal is unwarranted (see.
People v. D'Alessandro, 184 A.D.2d 114,
118-119, Iv denied 81 N.Y.2d 884).
On the record before us, defendant received
meaningful representation (see, People v
Benevento, 91 N.Y.2d 708, 713-714).
We perceive no basis for reduction of sentence.
We have considered and rejected defendant's
remaining claims, including those contained in his
pro se supplemental brief.
People v. Garraway, 284 A.D.2d 262
, 262-63, 726 N.Y.S.2d 846
846-47 (1st Dep't June 26, 2001).
On August 29, 2001, petitioner sought leave to appeal to the New York
Court of Appeals on substantially the same grounds*fn2 asserted before
the Appellate Division (Schwartz Ltr. at 1-2). On August 3, 2001,
petitioner submitted a pro se supple-mental letter to the
Court of Appeals raising the same issues raised in his pro se
supplemental brief to the Appellate Division (Letter of Mark Garraway,
dated Aug. 3, 2001, annexed as Ex. 6 to Koessler Aff.). Petitioner's
application for leave to appeal was denied on November 28, 2001.
People v. Garraway, 97 N.Y.2d 656, 762 N.E.2d 935, 737 N.Y.S.2d 57
(2001). In his habeas corpus petition, petitioner asserts four claims: (1)
ineffective assistance of appellate counsel, (2) ineffective assistance
of trial counsel, (3) Batson violations and (4) improper
summation by the prosecutor (Am. Pet. at 9-12). Petitioner argues that
appellate counsel was ineffective for not raising trial counsel's failure
to (a) make certain arguments with respect to the Batson
violations, (b) move to dismiss the indictment and (c) object to the
prosecution's summation (Amended Petition, dated Jan. 1, 2003 ("Am.
Pet.") at 10-12). Respondent opposes petitioner's claims asserting,
inter alia, that petitioner has failed to exhaust his
ineffective-assistance-of-appellate-counsel claim (Resp. Br. at 40).
Petitioner subsequently made a motion seeking a stay of his petition
while he exhausts his ineffective-assistance-of-appellate-counsel claim
in state court through a petition for writ of error coram nobis
(Declaration of Mark Garraway, dated Aug. 4, 2003 ("Garraway Decl., ¶
2)). Respondent filed no opposition to this motion. On July 21,
2003, petitioner moved before the Appellate Division for a writ of error
coram nobis (Garraway Decl., ¶ 18 and Ex. A thereto). III. Analysis
It is fundamental that a state prisoner seeking to vacate his
conviction on the ground that his federal constitutional rights were
violated must first exhaust all available state remedies.
28 U.S.C. § 2254(b); Baldwin v. Reese, U.S. ,
124 S.Ct. 1347
, 1349 (2004); Picard v. Connor, 404 U.S. 270
, 275 (1971);
Fama v. Comm'r of Corr. Servs., 235 F.3d 804
, 808 (2d Cir.
2000). As the Court of Appeals for the Second Circuit has noted:
If anything is settled in habeas corpus
jurisprudence, it is that a federal court may not
grant the habeas petition of a state prisoner
"unless it appears that the applicant has
exhausted the remedies available in the courts of
the State; or that there is either an absence of
available State corrective process; or the
existence of circumstances rendering such
process ineffective to protect the rights of the
prisoner." 28 U.S.C. § 2254(b)(1).
Aparicio v. Artuz, 269 F.3d 78
, 89 (2d Cir. 2001).
A two-step analysis is used to determine whether a claim has been
First, the petitioner must have fairly presented
to an appropriate state court the same federal
constitutional claim that he now urges upon the
federal courts. . . .
Second, having presented his federal
constitutional claim to an appropriate state
court, and having been denied relief, the petitioner must have utilized all available
mechanisms to secure [state] appellate review of
the denial of that claim.
Klein v. Harris, 667 F.2d 274
, 282 (2d Cir. 1981)
(citations omitted), overruled on other grounds, Daye v. Attorney
Gen., 696 F.2d 186
, 191 (2d Cir. 1982) (en banc). See also
Baldwin v. Reese, supra, 124 S.Ct. at 1349; McKethan
v. Mantello, 292 F.3d 119
, 122 (2d Cir. 2002), quoting Ramirez
v. Attorney Gen., 280 F.3d 87
, 94 (2d Cir. 2001); accord Powell
v. Greiner, 02 Civ. 7352 (LBS), 2003 WL 359466 at *1 (S.D.N.Y. Feb.
18, 2003); Alston v. Senkowski, 210 F. Supp.2d 413,
417 (S.D.N.Y. 2002); Boyd v. Hawk, 94 Civ. 7121 (DAB), 1996 WL
406680 at *3 (S.D.N.Y. May 31, 1996).
To satisfy the first element of the exhaustion test, a habeas
petitioner must fairly present his federal claim to the state courts.
Anderson v. Harless, 459 U.S. 4, 6 (1982); Cox v.
Miller, 296 F.3d 89, 99 (2d Cir. 2002); Galarza v. Keane,
252 F.3d 630, 638 (2d Cir. 2001); Daye v. Attorney Gen.,
supra, 696 F.2d at 191.
To satisfy the second step of the analysis, "a petitioner must
present his federal constitutional claims to the highest court of the
state before a federal court may consider the merits of the petition."
Grey v. Hoke. 933 F.2d 117, 119 (2d Cir. 1991). See also
O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). Exhaustion
requires that a prisoner must even pursue discretionary state appellate remedies before he can raise a claim
in a habeas ...