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HECTOR v. MILLER

United States District Court, S.D. New York


June 15, 2004.

DENNIS HECTOR, Petitioner,
v.
DAVID MILLER, Superintendent, Eastern Correctional Facility, Respondent.

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Dennis Hector brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Bronx County Supreme Court, Hector was convicted of Assault in the First Degree and was sentenced to seven years in state prison. He is currently incarcerated pursuant to that judgment at Sullivan Correctional Facility in Fallsburg, New York. For the following reasons, the petition should be denied.

I. BACKGROUND

  Hector's conviction arises out of the May 3, 1999 shooting of Richard Whitter at a gift shop on the corner of 225th Street and White Plains Road in the Bronx. As a result of the shooting, Whitter sustained injuries to his right shoulder and right thigh. The evidence presented at trial is not relevant to the disposition of the instant petition and thus will not be discussed further.

  A. Indictment

  By indictment filed June 7, 1999, Hector was charged with Attempted Murder in the Second Degree, two counts of Assault in the First Degree, and a number of weapons-related counts. Indictment No. 3374/99, dated May 26, 1999 ("Indictment") (reproduced as Ex. 1 to Affidavit in Opposition, filed October 31, 2003 (Docket #5) ("Resp. Opp.")). The first count of Assault in the First Degree (Count Two of the Indictment) charged Hector with intentionally causing serious physical injury to Whitter by means of a loaded firearm. Id. at 2; see also N.Y. Penal Law § 120.10(1). The second count of Assault in the First Degree (Count Three of the Indictment) charged Hector with recklessly engaging in conduct which created a grave risk of death under circumstances demonstrating depraved indifference to human life and thereby causing serious physical injury to Whitter. Indictment at 3; see also N.Y. Penal Law § 120.10(3).

  On August 19, 1999, Hector filed an omnibus motion requesting, inter alia, that the court inspect the Grand Jury minutes and dismiss the Indictment on the ground that the instructions given to the Grand Jury were improper and incomplete. See Notice of Omnibus Motion, dated August 19, 1999 (reproduced as Ex. 2 to Resp. Opp.), ¶ C. On October 6, 1999, the trial court granted the motion in part by dismissing Count Two of the Indictment, which charged Hector with intentional assault. See Order, dated October 6, 1999 (reproduced as Ex. 3 to Resp. Opp.), at 1-2. The court did so because the prosecutor had erroneously instructed the Grand Jury that Court Two required proof of intent to cause "physical injury" rather than "serious physical injury." Id. at 2. Count Three of the Indictment, which charged Hector with reckless assault, was not dismissed.

  B. Jury Instructions

  Hector's trial began on June 20, 2000. During a preliminary charge conference on the first day of testimony, June 23, 2000, the judge stated that he "would probably be inclined to limit the decision making job for the jury" and instruct them only as to Attempted Murder in the Second Degree and Assault in the First Degree. (Tr. 46). Neither side objected to those two counts being submitted to the jury. (Tr. 46). A few days later, on June 27, 2000, the court provided counsel with a copy of the proposed jury instructions, including "the specific elements of the two crimes to be submitted to the jury." (Tr. 220-21). These proposed jury instructions identified the Assault in the First Degree charge as being intentional assault, under subdivision (1) of Penal Law § 120.10, rather than the reckless assault under subdivision (3). See Order, dated October 12, 2000 ("Reinstatement Order") (reproduced as Ex. 4 to Resp. Opp.), at 2. Defense counsel indicated that he had reviewed the proposed charge and had no exceptions or requests. (Tr. 221). Both attorneys consented to the proposed verdict sheet, which also reflected the charge of intentional rather than reckless assault. (See Tr. 410-12; Reinstatement Order at 2).

  On June 28, 2000, the judge charged the jury, instructing them on two specific crimes: Attempted Murder in the Second Degree and Assault in the First Degree. (Tr. 491-519). With respect to the assault charge, the court's instruction was based only on intentional assault, not reckless assault. The relevant language of the charge was as follows:

The second and final count in the verdict sheet is the crime of assault in the first degree. Under our law, a person is guilty of assault in the first degree when with intent to cause serious physical injury to another person, he or she causes such injury to that person by means of a deadly weapon. . . . Intent means conscious[] objective or purpose. Thus, a person acts with intent to cause serious physical injury to another when that person's conscious[] objective or purpose is to cause serious physical injury to another. . . . In order for you to find the defendant Dennis Hector guilty of this crime, of assault in the first degree, the People are required to prove from all of the evidence in the case, beyond a reasonable doubt, each of the following two elements. One, that on or about May 3, 1999, in the County of the Bronx, the defendant Dennis Hector caused serious physical injury to Richard Whitter by means of a deadly weapon. And two, that the defendant did so with the intent to cause serious physical injury to Richard Whitter. (Tr. 515-16). Both parties stated on the record that they had no exceptions to the court's charge. (Tr. 519-20). On the second day of deliberations, in response to a request from the jury, the court read back the portion of the charge relating to the elements of the two crimes. (Tr. 542-47).
C. Discovery of a Mistake in the Jury Instructions
  As was made clear in papers filed as part of a later state habeas corpus proceeding, an off-the-record conference occurred at approximately 1:15 p.m. on the second day of deliberations following the read-back of the court's charge as to the elements of the crimes under consideration. See Affirmation in Support of Petition for Writ of Habeas Corpus, dated September 13, 2000 ("Def. Counsel Affirm.") (reproduced as Ex. 4 to Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed May 29, 2003 (Docket #1) ("Petition")), ¶¶ 7-9.*fn1 At that time, the prosecutor informed defense counsel and then the court that he realized that the court had charged the jury as to intentional assault rather than as to reckless assault, which was the only Assault in the First Degree count remaining in the Indictment. See id.; Reinstatement Order at 2.

  In response, the court proposed withdrawing the Assault in the First Degree count from the jury's consideration altogether; defense counsel opposed this proposal on the ground that it would "coerce" the jury into finding Hector guilty of the only remaining count, Attempted Murder in the Second Degree. See Reinstatement Order at 2; see also Tr. 552. The prosecutor proposed instead substituting the intentional assault count with a reckless assault count; defense counsel opposed this proposal as well. See Reinstatement Order at 2. While it is not reflected in the trial court's findings, defense counsel maintained that during this off-the-record conversation, he stated his intention to make a motion to dismiss should the jury return a guilty verdict on the erroneously submitted charge of intentional assault and the court indicated that such a motion would be granted. See Def. Counsel Affirm. ¶ 9.

  After the lunch break, at 2:35 p.m., the trial judge went on the record and stated that during the lunch break, three notes had come in from the jury — the first asking for the definition of reasonable doubt, the second pertaining to the jurors' belongings, and the third indicating that the jury had reached a verdict. (Tr. 548-50). Before bringing the jury down, the court asked both parties if they "wish[ed] to make a record as to the second count on the verdict sheet." (Tr. 550). Both parties stated that they did not wish to make such a record. (Tr. 550). The judge then stated on the record:

I feel then in light of the fact that the parties appear reluctant to make a record for whatever reasons, it was brought to the Court's attention, even though repeatedly from the inception of the actual trial proceedings, on whether both parties were consenting to two counts going to the jury, attempt[ed] murder two and assault in the first degree, assault with a deadly weapon and both parties on several occasions, my recollection is at least three and perhaps four [occasions], indicated assent to both counts going to the jury. There had been two counts in the original indictment of assault in the first degree. It escaped the Court's attention and apparently the [parties'] attention as well that when the Court rendered its decision on the sufficiency of the grand jury minutes back in October of last year, ten months ago, that two counts had been dismissed, including the one count of assault in the first degree, assault with a deadly weapon based on inadequate, clearly inadequate legal instructions which lead to [sic] the People to represent. No representation was ever had. So the only count of assault [in the] first degree that could have properly been before the jury was a count of depraved indifference assault. That was not requested by either party and was not in fact charged by this Court and accordingly, I would have. But for receiving this note indicating that a verdict has been returned, it was my intention at 2:15 to bring the jury down and tell the jury to ignore the second count on the verdict sheet for reasons that need not concern them. That was not a matter that was before them and they were not to speculate about why it was being taken from them, however, this final note from the jury has eliminated that as a possible action for this Court to take.
(Tr. 551-52).

  D. Verdict and Defendant's Motion

  The jury found Hector not guilty of Attempted Murder in the Second Degree and guilty of Assault in the First Degree. (Tr. 554). The jury was then discharged without being polled. (Tr. 554-55).

  Immediately thereafter, defense counsel moved for a "trial order of dismissal," which the People did not oppose and the court granted. The colloquy was as follows:

The Court: . . . Do you have an application, Mr. Morengo [defense counsel]?
Mr. Morengo: Your Honor, pursuant to the conversation we have had on this matter under the law, I move for [a] trial order of dismissal. I move to set aside the verdict as to count two. It was an improper count that should not have been before the jury and as such must be set aside.
The Court: Mr. Foy [the prosecutor], do you wish to be heard in opposition to the application for a trial order of dismissal?
Mr. Foy: No.
The Court: The motion for [a] trial order of dismissal as to the conviction count of assault in the first degree is now granted.
. . . .
Defendant is discharged.
(Tr. 555-56).

  E. Motion for Reargument

  On July 26, 2000, the People moved for reargument on Hector's motion. See Memorandum of Law in Support of Motion to Reargue, dated July 2000 ("People's Reargument Mem.") (reproduced as Ex. 7 to Resp. Opp.). The People argued that Hector's conviction of Assault in the First Degree should be reinstated because the trial court lacked the power to grant either a trial order of dismissal under N.Y. Crim. Proc. Law ("CPL") § 290.10 or a motion to set aside the verdict under CPL § 330.30. See id. at 2. Under CPL § 290.10(1)(a), the only ground upon which a court may grant a trial order of dismissal is that the evidence presented at trial is not legally sufficient to establish the offense charged or any lesser included offense. The People argued that since Hector did not, and could not, claim such insufficiency, there was no basis under CPL § 290.10 for such a dismissal. See People's Reargument Mem. at 5. Under CPL § 330.30(1), a court may grant a motion to set aside the verdict upon a ground which, "if raised upon an appeal . . ., would require a reversal or modification of the judgment as a matter of law." Since a claim is preserved for appellate review only through a contemporaneous objection, see CPL § 470.05(2), the People argued that Hector's failure to object to the submission of the erroneous charge rendered the trial court powerless to grant a motion to set aside the verdict. See People's Reargument Mem. at 6-7.

  In response, defense counsel argued that there was no need to make a record regarding the erroneous charge once the jury had reached a verdict because "all of the parties knew in advance the consequences if the jury returned a guilty verdict on the second charge: That the Court must grant my motion . . . to set aside the verdict." Affirmation in Response to Motion to Reargue, dated July 31, 2000 ("Reargument Response") (reproduced as Ex. 10 to Petition), ¶ 6. Defense counsel noted that the trial court had indicated its intent to instruct the jury to disregard the Assault in the First Degree count but for the fact that the jury had returned a verdict. Id. ¶ 9; see also Tr. 552. If the court had followed through with this plan, counsel argued, the jury would have found Hector not guilty of the only remaining charge, resulting in the same outcome. Reargument Response ¶¶ 9, 11. Counsel also argued that it was the People who had failed to object to the motion to set aside the verdict. See Sur Reply Affirmation in Opposition to Motion to Reargue, dated August 17, 2000 (reproduced as Ex. 12 to Petition), ¶ 10.

  In a subsequent letter to the court, counsel wrote:

I feel that it is important for Your Honor to be mindful of the fact that I am responding to the People's Motion to Reargue as a courtesy to the Court. As a County Assigned Attorney (18B) my representation of the Defendant ended the day the Court dismissed the verdict and ordered him released. I have not been in touch with him, and I do not know where he is. While I have been informed by ADA Foy and your Court Attorney that you want Mr. Hector present in Court on September 7, 2000, this Court has no jurisdiction over him. The People's Motion does not confer jurisdiction over the person. I do not know if he even wants me to respond to the Motion. As far as I know, he is not even aware of the Motion. If this Court were to overturn its decision, he may have a legitimate argument that he did not authorize me to respond or answer the motion in a certain way.
Letter to the Hon. Michael Gross from Christopher Marengo, Esq., dated August 18, 2000 (reproduced as Ex. 13 to Petition), at 1. Thereafter, the court apparently reappointed defense counsel retroactively as of the date the motion to reargue was filed and notified Hector through his parole officer of the date set for reargument. See Transcript, September 7, 2000 (annexed as Ex. 5 to Petition), at 4, 26.

  On September 7, 2000, the trial court held oral argument and issued an oral decision reinstating Hector's conviction of Assault in the First Degree. See id. at 25-26. Defense counsel objected to the court disturbing its previous decision to dismiss the count. Id. at 26. On October 12, 2000, the trial court issued a written decision on the motion to reargue, explaining that the court had been without the authority to grant either a trial order of dismissal or a motion to set aside the verdict. Reinstatement Order at 4-7. The court found that "defense counsel clearly failed to preserve his claim of error" in that "counsel expressly consented to the Court's proposal to submit to the jury one count of Assault in the First Degree" and "[c]ounsel also consented to the verdict sheet." Id. at 6. The court also stated that upon discovery of the error, defense counsel "actually opposed the Court's proposal to withdraw the dismissed count" and "also opposed the prosecutor's request to substitute the dismissed count with a second count of Assault in the First Degree in the indictment under the theory of recklessness." Id. at 6-7. The court concluded that "[b]y expressly declining the opportunity to raise this issue on the record prior to the rendition of the verdict, the defense effectively waived his subsequent claim of error." Id. at 7.

  The court noted that preservation is not required where the error is fundamental. Id. at 8. It held, however, that while a defendant has a fundamental right to prosecution by indictment, a trial court's submission of an offense not charged in the indictment does not always, and did not in this case, constitute a nonwaivable jurisdictional issue. Id. at 8-9 (discussing People v. Ford, 62 N.Y.2d 275 (1984) (per curiam)). The trial court further found that review of this claim in the interest of justice "must await appeal since a trial court does not have the power to do so." Id. at 10. In a footnote, the court indicated that if it had the authority to do so, "it would have modified the verdict, reducing the conviction to the lesser included offense of Assault in the Second Degree." Id. at 10 n. 3. Thus, Hector's conviction of Assault in the First Degree was reinstated and he was sentenced to a determinate sentence of seven years in prison. See Petition ¶ 4.

  F. State Habeas Corpus Petition

  Although not mentioned by either the state courts on direct review or the respondent in his papers opposing the instant Petition, Hector appears to have filed a petition for writ of habeas corpus in the state courts on or about September 18, 2000. See Writ of Habeas Corpus, dated September 18, 2000 (reproduced as Ex. 3 to Petition); Def. Counsel Affirm. Apparently, the petition was denied by the original trial court and Hector sought to appeal that denial to the Appellate Division. See Notion of Motion (Appeal of Denial of Writ of Habeas Corpus), dated September 28, 2000 (reproduced as Ex. 1 to Petition); Affirmation in Support of Appeal of Denial of Writ of Habeas Corpus, dated September 28, 2000 (reproduced as Ex. 2 to Petition). In response to a telephone inquiry by a clerk to the undersigned, respondent's counsel has indicated that he has been unable to obtain any information regarding the disposition of the motion for leave to appeal.

  G. Direct Appeal

  Represented by new counsel, Hector presented the following questions on direct appeal to the Appellate Division, First Department:

1. Under Article I Section 6 of the New York Constitution, does a criminal defendant have the right to be tried on a felony charge only if the charge has been voted [on] by a grand jury and filed with the court?
2. Is an indictment by a grand jury not only a personal privilege of a defendant, but also a nonwaivable public fundamental right that supplies the predicate for a court's jurisdiction to try and punish an individual?
3. Pursuant to C.P.L. [§] 470.05(2), is an error as to a question of law preserved for appellate review if, during a trial, the error was presented to the trial court by one of the parties at such time as to permit the court to correct itself?
4. Does a trial court have the authority under C.P.L. Section 330.30(1) to set aside a verdict on the ground that the court erred by submitting a count of an indictment that had been dismissed prior to trial in which the jury convicted the defendant of that count?
See Brief for Appellant, undated ("Pet. App. Brief") (reproduced as Ex. 8 to Resp. Opp.), at 2. The argument was later summarized as one point:
Pursuant to Article I, Section 6 of the New York State Constitution, the trial court did not have jurisdiction over the appellant when it convicted and sentenced him on a count of the indictment that had been dismissed before trial.
Id. at 11.

  On June 18, 2002, the Appellate Division unanimously affirmed Hector's conviction. People v. Hector, 295 A.D.2d 212 (1st Dep't 2002). The court held:

A court's erroneous submission of a lesser crime that arises out of the same transaction, but which does not qualify as a lesser included offense, is not a jurisdictional defect and is waived if timely objection is not made (People v. Ford, 62 N.Y.2d 275; CPL 300.50). Here, defendant agreed to the submission of first-degree assault even though it was not in the indictment and was not a lesser included offense of attempted murder in the second degree. Moreover, when, during the course of jury deliberations, the error in submitting the assault charge became known to the court and parties, defendant, in what was clearly a tactical move, insisted that the jury still be permitted to consider the assault charge, and waited until the jury acquitted him of attempted murder and convicted him of assault before raising any objection. We decline to review defendant's present claim in the interest of justice, particularly since his failure to object was tactical (see, People v. Reid, 165 A.D.2d 776, lv denied 76 N.Y.2d 990), and since the trial evidence overwhelmingly established defendant's guilt of first-degree assault (see, People v. Alexander, 153 A.D.2d 507, 509, affd 75 N.Y.2d 979). Furthermore, since the claim that the assault count was erroneously submitted was unpreserved, the trial court properly granted reargument of the motion to set aside the verdict and reinstated the jury's guilty verdict of first-degree assault, since, due to the lack of preservation, there was no ground that "would require a reversal or modification of the judgment as a matter of law by an appellate court" (CPL 330.30[1]) and, therefore, no authority for the trial court to act under that statute, (People v. Carter, 63 N.Y.2d 530, 536). We have considered and rejected defendant's remaining arguments.
Id. at 212-13.

  By letter from counsel dated June 26, 2002, Hector sought leave to appeal to the New York Court of Appeals. See Letter to the Hon. Donald E. Sheraw from Steven N. Fineman, dated June 26, 2002 ("Leave Ltr.") (reproduced as Ex. 11 to Resp. Opp.). Leave was denied on September 24, 2002. See People v. Hector, 98 N.Y.2d 730 (2002).

  H. The Instant Habeas Corpus Petition

  Hector timely filed the instant habeas corpus petition by submitting it to the Pro Se Office of this Court on May 1, 2003. See Petition. In it he raises only one ground for relief:

The Court lacked jurisdiction in charging the jury with a count of the indictment that had been previously dismissed. Affiant was being tried for the charge of Attempted Murder [N.Y.] P[enal] L[aw] §§ 110/125.25. Affiant had NO other counts left on the indictment. The Court [charged] NO lesser included offense to the Attempted Murder count, but charged First Degree Assault as an additional count of the indictment. Criminal Procedure Law of the State of New York §§ 210.21(4) and 300.40 clearly dictate what counts can be charged to a jury and are those charges which have been determined by a Grand Jury and have not been dismissed. This action by the court denied affiant a fair trial. Thereby denying affiant his Constitutional Rights.
Id. at 4.

  II. DISCUSSION

  Under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); DiGuglielmo v. Smith, 366 F.3d 130, 136-37 (2d Cir. 2004). To be entitled to habeas relief a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., Estelle, 502 U.S. at 68.

  In addition, before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ."); accord Daye v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). Exhausting a habeas claim includes two components. First, a petitioner is required to have presented the claim to all levels of the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). Second, the petitioner must have "fairly presented" the federal nature of his claim to the state courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Daye, 696 F.2d at 191. A habeas petitioner can alert the state courts to a claim's federal nature by doing one of the following: (1) relying on federal cases employing a federal constitutional analysis; (2) relying on state cases employing a federal constitutional analysis; (3) asserting a claim in terms so particular as to call to mind a specific right protected by the Constitution; or (4) alleging a pattern of facts that is well within the mainstream of federal constitutional litigation. Daye, 696 F.2d at 194.

  Here, the only arguments Hector raised in the state courts with regard to the erroneous submission of the intentional Assault in the First Degree charge to the jury were: (1) that the New York Constitution provides a criminal defendant facing felony charges the right to indictment by Grand Jury and thus the trial court lost jurisdiction to try Hector for the crime of Assault in the First Degree under the theory of intentional assault when it dismissed that charge of the Indictment, Pet. App. Brief at 2, 4-5, 14-18; see also Leave Ltr. at 2-3, 5; (2) that the court's finding that the claim was unpreserved was wrong as a matter of state statutory construction and case law, Pet. App. Brief at 4, 12-14; see also Leave Ltr. at 3; and (3) that pursuant to CPL § 330.30, the trial court had a valid basis for originally setting aside the verdict, Pet. App. Brief at 11-12; see also Leave Ltr. at 3, 5. In addition, in his state habeas corpus petition, Hector cited no case law and instead relied entirely on a recitation of the facts surrounding the reinstatement of the conviction and general statements that the reinstatement was in error. See Def. Counsel Affirm. Nowhere in the various papers he filed in state court did Hector explicitly raise any issue of federal law or cite state cases employing a federal constitutional analysis. In addition, his arguments did not call to mind a specific right protected by the Constitution or allege a pattern of facts within the mainstream of federal constitutional litigation. See generally Daye, 696 F.2d at 194. This is particularly so given that there is no federal constitutional right to be tried in a state criminal proceeding based on an indictment. See, e.g., Staley v. Greiner, 2003 WL 470568, at *11 (S.D.N.Y. Feb. 6, 2003); People v. Iannone, 45 N.Y.2d 589, 593 n. 3 (1978) ("The right to indictment by a Grand Jury in New York is dependent solely upon our State Constitution, since the Grand Jury provision contained in the Fifth Amendment to the Federal Constitution is not applicable to the States." (citing Hurtado v. California, 110 U.S. 516 (1884))). Accordingly, Hector's claim that his federal constitutional rights were violated is unexhausted.

  Hector cannot now return to state court to argue that his conviction for intentional assault violated the federal Constitution. As discussed in Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995), Hector would be barred from making any additional leave application because one has already been denied by the Court of Appeals. See N.Y. Court Rules § 500.10(a) (only one leave application available). He would also be foreclosed from bringing his federal claim in the state courts as a collateral attack on his conviction because the claim is record-based and could have been raised in federal terms on his direct appeal to the Appellate Division. See CPL § 440.10(2)(c); see also People ex rel. Sims v. Senkowski, 226 A.D.2d 800, 800 (3d Dep't 1996) (state habeas corpus not an appropriate remedy where claim could have been raised on direct appeal or through a CPL § 440 motion). Therefore, the claims are procedurally defaulted.

  Because Hector no longer has remedies available in state court, his purported federal claim is "deem[ed]" exhausted. Bossett, 41 F.3d at 828. But because this same claim is procedurally defaulted, habeas review is barred, see, e.g., Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Bossett, 41 F.3d at 828-29 — unless Hector can establish cause for the default and resulting prejudice or can demonstrate that failing to consider his claims will result in a "fundamental miscarriage of justice," see, e.g., Harris v. Reed, 489 U.S. 255, 262 (1989), which requires a showing of "actual innocence," see, e.g., Herrera v. Collins, 506 U.S. 390, 404 (1993); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). Even construing his pro se petition liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), Hector has made no showing of cause for his default or "actual innocence." Therefore, Hector's claim may not be considered on federal habeas review.

  Conclusion

  For the foregoing reasons, Hector's petition should be denied.

 

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Richard J. Holwell, 500 Pearl Street, New York, New York 10007, and to the undersigned at Centre Street, New York, 40 N.Y. 10007. Any request for an extension of time to file objections must be directed to Judge Holwell. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).


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