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May 11, 2004.

MARK GARRAWAY, Petitioner, -against- WILLIAM PHILLIPS, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge


I. Introduction

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.

 II. Facts

  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 Aff.).

  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 explanation.

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

  A. Exhaustion

  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 exhausted:
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 ...

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