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June 29, 2004.

DAVID MILLER, Superintendent, Respondent.

The opinion of the court was delivered by: VICTOR MARRERO, District Judge



Petitioner Alexander DeJesus ("DeJesus"), pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court, New York County, of one count of murder in the second degree and one count of assault in the first degree. DeJesus's indictment on these and other charges arose out of the injury of Luis Lopez ("Lopez") and killing of Antonio Mejia ("Mejia") during a fight early in the morning of January 19, 1991. DeJesus, who was armed with a gun, fired several times, and was arrested by police as he fled the scene. In a statement made to the police during later interrogation, he admitted having fired a gun during this incident, but alleged he did so in self-defense. For these offenses he was sentenced to consecutive terms of imprisonment of twenty-five years to life and seven and one-half to fifteen years, respectively.

  DeJesus appealed to the New York State Supreme Court, Appellate Division, which affirmed his conviction. On March 8, 1999, the New York Court of Appeals denied DeJesus's application for leave to appeal. DeJesus filed a petition for a writ of habeas corpus in this Court in September 1999. At DeJesus's request, the petition was later dismissed without prejudice in order to enable him to present to the state courts an unexhausted claim of ineffective assistance of appellate counsel. That petition was likewise denied by the Appellate Division. DeJesus then returned to this Court with the instant petition. Applying the equitable tolling doctrine, the Court ruled the amended petition timely filed.

  In support of his challenge to his conviction and confinement, DeJesus asserts the trial court violated his due process rights, and his rights to a fair trial and to notice of the charges against him, by reason of the trial court's: (1) erroneous supplemental instructions to the jury concerning the defense of justifiable use of physical force; (2) submission to the jury of an annotated verdict form; (3) jury instruction making DeJesus liable for the conduct of an uncharged individual; and (4) excessive sentencing. DeJesus also raised a claim alleging that appellate counsel's failure to present on appeal certain arguments DeJesus contends should have been asserted deprived him of effective assistance of counsel on appeal.

  Magistrate Judge Kevin N. Fox, to whom this Court referred the petition, issued a Report and Recommendation (the "Report") dated May 10, 2004, recommending that the writ be denied and the petition be dismissed. The Report is incorporated and attached hereto. DeJesus, whose deadline to respond to the Report was extended to June 21, 2004, filed objections dated June 15, 2004 (the "Objections"). He addresses each of the four grounds the Report considered and rejected.

  Pursuant to 28 U.S.C. § 636(b)(1)(C), any portion of a Magistrate Judge's Report and Recommendation to which objection is made is subject to de novo review. The Court is also authorized to accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. Accordingly, this Court has reviewed de novo the full record of each of the issues DeJesus raises. On this basis the Court denies the writ and dismisses DeJesus's petition.



  DeJesus takes issue with the trial court's supplemental instructions to the jury regarding the defense of justification, which he characterizes as coercive, and with the court's use of an annotated verdict form. Magistrate Judge Fox found these claims unexhausted because in neither of his state appellate court applications did DeJesus raise any point alleging violation of federal law, or any state authority relying on federal constitutional doctrine, in connection with these claims. Upon review of DeJesus' petition and the objections he raised to the Report, the Court agrees.

  Nothing in DeJesus's papers could be fairly construed to suggest to the state appellate courts that DeJesus was asserting violation fo the federal constitutional rights with respect to these two issues. See Dave v. Attorney Gen., 696 F.2d 186, 194 (2d Cir. 1982) (declaring that a petitioner may fairly present a federal constitutional claim to a state court by relying on federal or state cases employing federal constitutional analysis, or by asserting the claim in terms that call to mind a specific constitutional right or that present a pattern of facts well within the mainstream of federal constitutional litigation). DeJesus is therefore now barred under applicable state law from asserting these grounds as a basis for any further challenge to his conviction in state court. See New York Crim. Proc. Law § 440.10(2)(c).


  In his Objections, DeJesus points out that another ground he had asserted in his petition challenging his sentencing as excessive was not addressed by the State or the Magistrate Judge and thus DeJesus contends, he should prevail by virtue of the State's "waiver" of the issue. DeJesus claimed in his direct appeal that his sentence to consecutive terms was unduly harsh in view of his age, strong family ties, employment and minor criminal history at the time of sentencing. This argument as presented on direct appeal rested entirely on state law factors which New York courts apply in reviewing applications to reduce sentences. With regard to this claim as well there is no indication in DeJesus's brief suggesting any violation of federal constitutional right or claim based on federal law. The sentence DeJesus was given for each of the crimes of which he was convicted fell within the permissible statutory range. The Appellate Division considered and rejected DeJesus's challenge to his sentencing. See People v. DeJesus, 682 N.Y.S.2d 129 (App. Div. 1st Dep't 1998).

  Under New York law, the sentencing decision is committed to the sound discretion of the trial court based on the facts and considerations before the court at the time of sentencing. See People v. Farrar, 419 N.E.2d 864, 865 (N.Y. 1981). In affirming DeJesus's conviction and dismissing his appeal, the Appellate Division implicitly determined that the trial court had properly exercised its discretion. DeJesus offers no basis under federal law to justify a decision by this Court to overturn that determination. Nor does the Court view DeJesus's sentencing as a miscarriage of justice in view of the broad ...

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