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July 19, 2004.

JAMES WALSH, Respondent.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Petitioner Ernest Williams ("Williams") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Williams contends that his confinement by the state of New York is unconstitutional because the evidence submitted at his trial was insufficient for a jury to find him criminally culpable for robbery in the second degree. He maintains that the judgment of conviction must be modified to robbery in the third degree. The respondent opposes Williams' application for a writ of habeas corpus. He contends that Williams' claim is procedurally barred and, in any event, lacks merit.


  On May 25, 1999, Williams entered the Manhattan office of an octogenarian semi-retired attorney. Williams was carrying envelopes and mentioned several names to the attorney. Williams was advised that none of the named persons was associated with the attorney's office. Williams handed the attorney a slip of paper that contained a woman's name and a telephone number. Williams was asked to leave the attorney's office. He did not. Instead, Williams placed the attorney in a choke hold that caused him to lose consciousness for several minutes. Williams relieved the attorney of the cash that was in the attorney's pants pocket. When the attorney regained consciousness and discovered that he had been robbed, he dialed the telephone number that appeared on the slip of paper Williams had given to him earlier. The telephone number was assigned to the home of Williams' former girlfriend. The robbery victim made two telephone calls to Williams' former girlfriend. During the second telephone call, he persuaded her to contact security personnel at the building where his law office was located. When Williams' former girlfriend did so, she was connected to the New York City Police Department to whom she reported the robbery on the victim's behalf.

  Williams was apprehended and was later indicted by a New York County grand jury. Williams proceeded to trial before a petit jury. During the trial, the jury heard testimony from James Gill, M.D., Associate Medical Examiner for the City of New York. Dr. Gill testified on behalf of the prosecution. The prosecution elicited uncontroverted testimony from Dr. Gill concerning the physiological effect on the human body when a person loses consciousness. Dr. Gill informed the jury that:
Losing consciousness is also known as passing-out, and it can be due to a lot of different things, but the ultimate problem is the brain not getting enough oxygen. And when your brain senses that, it kind of shuts down all of your voluntary systems and you pass out.
  Under New York law, a person commits robbery in the second degree when the person forcibly steals property and "[i]n the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (a) [c]auses physical injury to any person who is not a participant in the crime. . . ." New York Penal Law § 160.10. New York's Penal Law explains that physical injury "means impairment of physical condition or substantial pain." New York Penal Law § 10.00(9).

  The jury returned a verdict convicting Williams for robbery in the second degree.

  Following his conviction, Williams appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. He urged that court to reduce the conviction he suffered for robbery in the second degree to robbery in the third degree. Williams argued that the evidence presented to the jury was legally insufficient to establish the crime of robbery in the second degree because the victim did not suffer either a physical impairment or substantial pain.

  For its part, the prosecution asked the Appellate Division to deny Williams' request for relief because he had failed to preserve his claim of insufficient evidence for that court's review. The prosecution noted that Williams' attorney had made only a general protest at the close of the prosecution's case, when he asked the trial court to issue a trial order of dismissal because the prosecution had "failed to prove the case beyond a reasonable doubt and there is not sufficient [evidence] [to] submit the case to the jury." The prosecution claimed that, without greater specificity, the protest raised by Williams' counsel did not alert the trial court to the precise theory under which he believed the evidence was wanting. Therefore, according to the prosecution, the claim of insufficient evidence was not preserved for appellate review.

  The Appellate Division agreed with the prosecution. It found that Williams' challenge to the sufficiency of the evidence supporting the physical injury element of the offense robbery in the second degree "[was] unpreserved" for appellate review. Notwithstanding that determination, the court noted that if it reviewed the substance of Williams' claim it would find that, by choking the robbery victim and causing him to lose consciousness, Williams inflicted physical injury on the victim. See People v. Williams, 294 A.D.2d 312-313, 742 N.Y.S.2d 544 (App. Div. 1st Dep't 2002). Williams applied for leave to appeal from the decision of the Appellate Division to the New York Court of Appeals. That application was denied by an associate judge of that court on July 25, 2002. See People v. Williams, 98 N.Y.2d 703, 747 N.Y.S.2d 423 (2002). The instant application for a writ of habeas corpus was made shortly thereafter.

  Williams contends that he is entitled to the relief he seeks, through the application for a writ of habeas corpus, because the evidence presented at his trial by the prosecution did not establish that the robbery victim suffered a physical injury, specifically, substantial pain. Therefore, according to Williams, the jury could not find him criminally culpable for the crime robbery in the second degree.


  A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 So. Ct. 2546, 2553-54 (1991). This proscription applies even in those circumstances where a state court expressly relies on a procedural default as an independent and adequate state law ground but, nevertheless, has ruled in the alternative on the merits of the federal claim. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). However, a habeas corpus petitioner may bypass the independent and adequate state law ground by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice ...

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