United States District Court, S.D. New York
June 15, 2004.
DENNIS HECTOR, Petitioner,
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.
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
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")), ¶¶
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.
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.
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.
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
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
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) 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
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
Id. at 4.
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
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.
For the foregoing reasons, Hector's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
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