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Serrano v. Senkowski

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


September 23, 2004

HECTOR SERRANO, PETITIONER,
v.
DANIEL SENKOWSKI, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY,*FN1 RESPONDENT.

The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION

Hector Serrano brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in the New York State Supreme Court, Bronx County, Serrano was convicted of Attempted Murder in the Second Degree under N.Y. Penal Law §§ 110.00, 125.25(1) and of Rape in the Third Degree under N.Y. Penal Law § 130.25(2). Serrano was sentenced as a second felony offender to 25 years' imprisonment on the attempted murder charge and to a concurrent prison term of 1-1/3 to 4 years on the rape charge. Serrano is currently incarcerated at the Great Meadow Correctional Facility in Comstock, New York. For the reasons stated below, Serrano's petition should be denied.

I. BACKGROUND

A. Evidence at Trial

The evidence presented at trial is largely irrelevant to the disposition of this petition. Nonetheless, a brief summary is included here to provide some context for Serrano's claims. Serrano's convictions stem from actions that occurred during a relationship he had with "Cindia M."*fn2 As of June 1997, the two had been dating for approximately four months and had been engaging in sexual intercourse every day. (Cindia: Tr. 480, 511). Serrano was 28 years old and Cindia was 16 years old. See Brief for Defendant-Appellant Hector Serrano, dated June 2001 ("Pet. App. Div. Brief") (reproduced as Ex. 2 to Affidavit in Opposition by David S. Weisel, filed April 7, 2003 (Docket #7) ("Opp. Aff.")), at 3, 4 n.3.*fn3

On June 9, 1997, Serrano approached Cindia's kitchen window and requested that she come outside. (Cindia: Tr. 480-81). Cindia had told Serrano that she "didn't want to be with him" and Serrano wanted her to "tell him in his face." (Cindia: Tr. 481). Because Cindia and Serrano were within earshot of their families, the two sought privacy and went to a small room in the apartment complex where garbage was kept. See Pet. App. Div. Brief at 5 (citing Cindia: Tr. 530-32). When they reached the room, Serrano pushed Cindia into a stairway and the two began to physically struggle. (Cindia: Tr. 531; see also Cindia: Tr. 533). Serrano wrestled Cindia to the floor and put his kneecap against her stomach. (See Cindia: Tr. 483). He then withdrew a small blade from his mouth and began using it to cut her. (See Cindia: Tr. 483). Cindia sustained injuries to her left leg, the back of her neck, the left side of her chin, and the back of her head. (Cindia: Tr. 484-85).

After her family became aware of the altercation, Cindia's mother came to the stairway and jumped on top of Serrano in order to prevent further injury to Cindia, prompting a small scuffle between Cindia's mother and Serrano's mother and sister. (See Cindia: Tr. 538-40). Various individuals arrived and broke up the fight, at which point Serrano threw the blade on the floor and left. See Pet. App. Div. Brief at 7 (citing Cindia: Tr. 487, 541; Fernandez: Tr. 577, 627-28). Cindia was brought to the hospital where she received 200 stitches on her leg and approximately 30 stitches on her neck and chin. (See Cindia: Tr. 487-88). At the time of trial, she still had scars from the injuries and could "hardly walk" when it was cold. (Cindia: Tr. 488).

Serrano was apprehended by the police on June 17, 1997, after he allegedly fired shots at Cindia's family while they were driving. See Pet. App. Div. Brief at 11-12.

B. Pre-Trial Plea Offer

Serrano was charged in a 39-count grand jury indictment. See Indictment, dated June 23, 1997 ("Indictment") (reproduced as Ex. 1 to Opp. Aff.).*fn4 Prior to trial he was offered nine years in prison in exchange for a guilty plea. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed October 31, 2002 (Docket #1) ("Orig. Petition"), at 5. Serrano did not accept this offer and the case proceeded to trial. See Opp. Aff. ¶ 6.

C. Jury Selection

During the jury selection process the prosecution argued that the defense's peremptory challenges were racially motivated, in contravention of Batson v. Kentucky, 476 U.S. 79 (1986). (See Tr. 335-50). Specifically, the prosecution contended that the defense had stricken four white male prospective jurors on account of their race. (See Tr. 335-38).

The trial judge found a prima facie case of discrimination and requested from the defense race-neutral reasons for their peremptory challenges. (Tr. 338). As to the first three prospective jurors, the trial judge was satisfied with the defense's explanations. (See Tr. 348). Regarding the fourth challenged juror, an individual named Canzone, Serrano's attorney contended that the peremptory was used because of a "gut feeling" about him, a feeling shared by Serrano. (See Tr. 343, 348-49). The judge found this explanation insufficient and the court sat Canzone as a juror. (See Tr. 349-50).

D. Jury Instructions

Among the counts charged in the indictment were Attempted Murder in the Second Degree*fn5 and two separate counts of Assault in the First Degree. See Indictment. The first count of assault, under N.Y. Penal Law § 120.10(1), accused Serrano of intentionally causing serious injury to Cindia by means of a deadly weapon or dangerous instrument. See id. at Count X. The second assault count, under N.Y. Penal Law § 120.10(2), alleged that Serrano, "with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of that person's body, did cause such an injury to Cindia." Id. at Count XI.

At trial, during a charge conference, the defense requested that the court charge the jury with the lesser-included count of reckless second-degree assault pursuant to N.Y. Penal Law § 120.05(4).*fn6 See Pet. App. Div. Brief at 26 (citing Tr. 1261). The defense argued that the trial testimony supported a finding of recklessness. See id. (citing Tr. 1262). The prosecution opposed the request, contending that there was no reasonable view of the evidence to support a recklessness charge. See id. (citing Tr. 1261-64). The court agreed with the prosecution and denied the defense's request. See id. (citing Tr. 1261-64).

At the close of summations, the trial court instructed the jury to consider three counts in the alternative: Attempted Murder in the Second Degree, Assault in the First Degree, and Assault in the Second Degree -- specifically, under a theory that Serrano intentionally caused physical injury by use of a deadly weapon or dangerous instrument. See Respondent's Brief, dated December 2001 ("Resp. App. Div. Brief") (reproduced as Ex. 3 to Opp. Aff.), at 31 (citing Tr. 1556, 1561-63). Serrano was also charged with Rape in the Third Degree. See Pet. App. Div. Brief at 27 (citing Tr. 1582-83); see N.Y. Penal Law § 130.25(2). The jurors were instructed to first deliberate over the attempted murder charge, see Pet. App. Div. Brief at 27 (citing Tr. 1556-60), and to consider the assault charges only if they acquitted Serrano of attempted murder. See Resp. App. Div. Brief at 31 (citing Tr. 1559-60).

E. Jury Verdict and Sentence

The jury convicted Serrano of Attempted Murder in the Second Degree and Rape in the Third Degree. See People v. Serrano, 290 A.D.2d 360, 360 (1st Dep't 2002); Opp. Aff. ¶ 6. He was sentenced as a second felony offender to 25 years on the attempted murder charge and to a concurrent term of 1-1/3 to 4 years on the rape charge. See Serrano, 290 A.D.2d at 360; Opp. Aff. ¶ 6.

F. Direct Appeal

Represented by assigned counsel, Serrano appealed his conviction to the Appellate Division, First Department, making the following two arguments:

The court deprived [Serrano] of his due process right to a fair trial when it improperly refused to charge the jury on reckless second-degree assault as a lesser included offense of Assault in the First Degree where a reasonable view of the evidence indicated that [Serrano] may have acted recklessly rather than intentionally in injuring [Cindia]. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6; C.P.L. § 300.50.

[Serrano's] definite sentence of 25 years of imprisonment for Attempted Murder in the Second Degree was unduly harsh and excessive in light of his previous nonviolent criminal history.

Pet. App. Div. Brief at 31, 40; see Opp. Aff. ¶ 7. On January 24, 2002, the Appellate Division unanimously affirmed Serrano's conviction and sentence. Serrano, 290 A.D.2d at 360. The court held that Serrano's lesser-included-offense argument was "foreclosed, since the jury found defendant guilty of attempted murder in the second degree and, pursuant to the court's instructions, which the jury presumably followed, it had no occasion to consider the first degree assault count submitted in the alternative." Id. (citing People v. Johnson, 87 N.Y.2d 357, 361 (1996); People v. Boettcher, 69 N.Y.2d 174, 180-81 (1987); People v. Falcon, 281 A.D.2d 368 (1st Dep't 2001)). The Appellate Division also noted that it "perceive[d] no basis for a reduction of sentence." Id.

Serrano sought leave to appeal the decision to the Court of Appeals of New York. By letter from counsel dated January 31, 2002, Serrano sought review of all issues raised in his brief to the Appellate Division. See Letter to the Hon. Judith Kaye from Susan Epstein, dated January 31, 2002 ("Jan. 31 Ltr.") (reproduced as Ex. 4 to Opp. Aff.). In a subsequent letter to the court from counsel, Serrano discussed at length his argument that reckless second-degree assault should have been charged and again requested that the length of his sentence be reconsidered. See Letter to the Hon. Victoria A. Graffeo from Susan Epstein, dated February 19, 2002 (reproduced as Ex. 5 to Opp. Aff.). On March 25, 2002, the Court of Appeals denied leave. People v. Serrano, 97 N.Y.2d 761 (2002).

G. The Instant Petition

Serrano submitted the instant petition for writ of habeas corpus to this Court's Pro Se Office on September 9, 2002. The petition raised the following two grounds for relief:

Ground one: Failure to charge lesser included offense of Reckless Assault 2nd. Trial testimony supported the submission of this lesser offense to the triers of fact. The Court charged a Justification Defense, and a lesser included offense of Assault 3rd. relating to charges for which the jurors hung.

Ground two: Harsh & Excessive Sentence. [Serrano] was initially offered 9 yrs. to plead guilty, and was penalized for asserting his right to trial. And [Serrano] was never involved with violent crimes previously.

Orig. Petition at 5. Respondent answered the petition on April 7, 2003. See Opp. Aff.; Memorandum of Law on Behalf of Respondent, undated ("Resp. Mem.") (annexed to Opp. Aff.). Serrano then moved to stay the proceedings so that he could exhaust his state court remedies with regard to two new claims he wished to assert: a claim that his trial counsel was ineffective for "discriminat[ing] against white prospective jurors during jury selection" and a claim that "[appellate] counsel was ineffective for not raising that counsel at trial was ineffective." Notice of Motion for Stay of Proceeding and Affidavit in Support, dated April 13, 2003 ("Stay Motion") (reproduced as Ex. 3 to Supplemental Affidavit by David S. Weisel, filed May 13, 2004 (Docket #15) ("Resp. Supp. Aff.")), ¶¶ 4, 7. In order to exhaust his state court remedies, Serrano proposed filing an application in the state trial court under N.Y. Crim. Proc. Law ("CPL") § 440.10 to exhaust the first claim and an application with the Appellate Division for a writ of error coram nobis to exhaust the second. See id. ¶ 3. The stay was granted. Order, filed May 1, 2003 (Docket #9) ("Stay Order").

On June 11, 2003, Serrano moved in the Appellate Division, First Department for a writ of error coram nobis on the ground of ineffective assistance of appellate counsel. Resp. Supp. Aff. ¶ 8; see Notice of Motion Writ of Error Coram Nobis, dated May 7, 2003 ("Coram Nobis Aff.") (reproduced as Ex. 5 to Resp. Supp. Aff.), at 1, 4-5.*fn7 Serrano alleged that appellate counsel was ineffective because she failed to argue that Serrano's trial counsel was ineffective when he (1) intentionally discriminated against a white prospective juror, denying Serrano his "right to equal protection," and (2) utilized Serrano's "peremptory right to challenge prospective jurors in a discriminatory manner." Coram Nobis Aff. at 5. On October 14, 2003, the Appellate Division denied Serrano's application in its entirety. Appellate Division Denial of Application, dated October 14, 2003 ("Coram Nobis Decision") (reproduced as Ex. 8 to Resp. Supp. Aff.).

Serrano subsequently sought leave to appeal this decision, which the Court of Appeals denied on December 30, 2003. Certificate Denying Leave, dated December 30, 2003 (reproduced as Ex. 10 to Resp. Supp. Aff.).

In the meantime, on June 23, 2003, Serrano moved in the Supreme Court, Bronx County for an order vacating his conviction pursuant to CPL § 440.10 on the ground of ineffective assistance of trial counsel. Resp. Supp. Aff. ¶ 9; see Notice of Motion to Vacate Judgment, dated May 7, 2003 ("440.10 Motion") (reproduced as Ex. 7 to Resp. Supp. Aff.), at 1, 6. Serrano contended that his trial counsel was ineffective because he used Serrano's peremptory challenges in a discriminatory manner in order to exclude white prospective jurors. See 440.10 Motion at 6 (citing U.S. Const. amend. XIV; N.Y. Const. arts. I, XI; CPL § 270.25). On October 21, 2003, the state court denied the application. Decision, dated October 21, 2003 ("440.10 Decision") (reproduced as Ex. 9 to Resp. Supp. Aff.), at 5. The court held that, pursuant to CPL § 440.10(2)(c), Serrano's claim was procedurally barred, as there was enough information in the trial record for Serrano to have raised his claim on direct appeal and he had not provided the court with any explanation for his failure to do so. Id. at 2. The court also noted that counsel's alleged discrimination was remedied by the trial court's seating of Canzone and that, in any event, Serrano "was not deprived of meaningful representation of counsel" as his counsel "zealously represented" him by presenting "a well-reasoned and extensive defense case." Id. at 3-5. Furthermore, the court pointed out that even though Serrano's "counsel's reason for challenging one of the prospective white jurors was pretextual, such conduct, alone, does not amount to ineffective representation." Id. at 5 (citing People v. Garcia, 298 A.D.2d 107 (1st Dep't 2002)). Serrano's application for leave to appeal this decision was denied by the Appellate Division on February 10, 2004. See Resp. Supp. Aff. ¶ 13.

On April 5, 2004, Serrano amended the instant habeas corpus petition to include the claims that he had raised in the state courts: specifically, that he was "denied effective assistance of trial counsel when trial counsel used the defendants [sic] peremptory challanges [sic] in a discriminatory manner to exclude white prospective jurors" (Ground Three), and that he was denied effective assistance of appellate counsel because appellate counsel failed to argue that Serrano was denied effective assistance of trial counsel when "the trial attorney a) intentionally discriminated against a prospective white juror denying the defendant equal protection and b) used the defendants [sic] peremptory right to challenge prospective jurors in a discriminatory manner" (Ground Four). Petitioner's Memorandum, filed April 5, 2004 (Docket #13) ("Pet. Mem."), at 9.

II. APPLICABLE LEGAL PRINCIPLES

The federal habeas corpus statute provides:

[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a). Errors of state law are thus not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions."). Rather, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.

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, 190-91 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). To exhaust a habeas claim, a petitioner is required to have presented the federal constitutional nature of the claim to all levels of the state appellate 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); St. Helen v. Senkowski, 374 F.3d 181, 182-83 (2d Cir. 2004) (per curiam); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); Daye, 696 F.2d at 191.

Where a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an independent and adequate ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991). Although procedurally defaulted claims are deemed exhausted for habeas purposes, a procedural default will "bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Serv., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995); see also Harris, 489 U.S. at 264 n.10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas.").

Where the state court has decided the issue "on the merits," a habeas court may grant relief only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); accord Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). For a decision to be "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims, with res judicata effect," and be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered "on the merits" even if it fails to mention the federal claim or any federal law and even if no relevant federal case law is cited. Aparicio, 269 F.3d at 94; accord Sellan, 261 F.3d at 311-12.

III. DISCUSSION

As discussed, the petition as amended raises four grounds for habeas relief. Each will be discussed in turn.

A. Ground One

Serrano's first claim relates to the trial court's failure to charge the jury on the lesserincluded offense of reckless Assault in the Second Degree. See Orig. Petition at 5. The court charged the jury on Attempted Murder in the Second Degree, Assault in the First Degree, and intentional Assault in the Second Degree. See Resp. App. Div. Brief at 31. Serrano was convicted of Attempted Murder in the Second Degree. See Serrano, 290 A.D.2d at 360; Opp. Aff. ¶ 6.

Under New York law, a person commits reckless Assault in the Second Degree when he "recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument." N.Y. Penal Law § 120.05(4). Acting "recklessly" is defined as being "aware of and consciously disregard[ing] a substantial and unjustifiable risk" that a particular result will occur. Id. § 15.05(3). Serrano argues that in light of the evidence presented at trial, such as evidence that he struggled with Cindia in a fit of passion, the jury reasonably could have concluded that he recklessly caused her injuries. See Pet. App. Div. Brief at 31-32.

On direct appeal, in response to Serrano's argument that the lesser-included offense should have been charged to the jury, the Appellate Division held that such a claim was "foreclosed, since the jury found [Serrano] guilty of attempted murder in the second degree" and "pursuant to the court's instructions,... the jury... had no occasion to consider the first degree assault count submitted in the alternative." Serrano, 290 A.D.2d at 360 (citing New York State case law). As "there is nothing in... [this] decision to indicate that the claims were decided on anything but substantive grounds," Aparicio, 269 F.3d at 94, it is considered an adjudication "on the merits" despite the fact that it fails to mention the federal nature of the claim or any federal law. See id. at 93-94; Sellan, 261 F.3d at 311-12.

Because the decision was "on the merits," this Court may grant relief only if it was contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it unreasonably applies a governing legal rule to the particular facts of a case. Id. at 413. A federal habeas court must decide "whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was simply incorrect. Id. at 409-10. Where the state court does not set forth an explicit holding as to the federal constitutional claim, a federal habeas court must apply the deferential 28 U.S.C. § 2254(d) standard to the state court's "implicit holding." See Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003); see also Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (statute satisfied as long as "neither the reasoning nor the result" of the state court decision contradicts governing Supreme Court law).

The Supreme Court has held that due process requires a trial court to submit jury instructions regarding lesser-included offenses in capital cases if the evidence could support such a verdict. Beck v. Alabama, 447 U.S. 625, 637-38 (1980). However, the Court explicitly declined to consider "whether the Due Process Clause would require the giving of such instructions in a non-capital case." Id. at 638 n.14. The Second Circuit also has not decided the issue of lesser-included-offense instructions in non-capital cases. See Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996) (per curiam); Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir.), cert. denied, 515 U.S. 1136 (1995); Rice v. Hoke, 846 F.2d 160, 164 (2d Cir. 1988); see also Miller v. Bennett, 2004 WL 1573874, at *12 (W.D.N.Y. May 22, 2004). Thus, because there is no "clearly established" federal due process right to a charge on a lesser-included offense in a non-capital case, a state court's decision not to instruct the jury on a lesser-included offense in a non-capital case necessarily cannot be "contrary to, or involve[] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1).

Furthermore, in Jones the Second Circuit explicitly held that because "a decision interpreting the Constitution to require the submission of instructions on lesser-included offenses in non-capital cases would involve the announcement of a new rule, we hold that Teague [v. Lane, 489 U.S. 288 (1989)] precludes our consideration of the issue." 86 F.3d at 48; accord Till v. Miller, 1998 WL 397848, at *4 (S.D.N.Y. July 16, 1998) ("[A] claimed error in failing to include a lesser included offense instruction in a non-capital case is not a cognizable claim in a habeas corpus proceeding."). Teague bars a habeas court from "announc[ing] a new rule [that is] not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301 (emphasis omitted). Jones held that neither of the limited exceptions to Teague applies to a defendant's request to submit a lesser-included offense in a non-capital case. 86 F.3d at 48. Thus, even assuming arguendo that the trial court committed constitutional error in failing to submit the lesser-included offense to the jury, Serrano's habeas claim would still have to be denied.

B. Ground Two

Serrano's second claim is that he received a harsh and excessive sentence. Orig. Petition at 5. He states, "[Serrano] was initially offered 9 yrs. to plead guilty, and was penalized for asserting his right to trial. And [Serrano] was never involved with violent crimes previously." Id. Each of these contentions is dealt with separately.

1. Serrano's Claim that He Was "Penalized" for Going to Trial

As discussed above, 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, 696 F.2d at 190-91. To exhaust a particular claim, a petitioner is required to have presented the federal constitutional nature of the claim to all levels of the state appellate courts. See, e.g., Duncan, 513 U.S. at 365-66; Picard, 404 U.S. at 275-76; St. Helen, 374 F.3d at 182-83; Grey, 933 F.2d at 119; Daye, 696 F.2d at 191.

Serrano's claim that he was "penalized for asserting his right to trial" was never raised in his appellate brief to the Appellate Division, nor was it mentioned in his letter applications to the Court of Appeals for leave to appeal. As discussed in St. Helen, 374 F.3d at 183, and Bossett, 41 F.3d at 829, Serrano is now 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 is also foreclosed from bringing this claim as a collateral attack in the state courts because the issue "relates solely to the validity of the sentence and not to the validity of the conviction," CPL § 440.10(2)(d). Therefore, the claim is procedurally defaulted.

Because Serrano no longer has a remedy available in state court, the claim is "deem[ed]" exhausted. See St. Helen, 374 F.3d at 183; Bossett, 41 F.3d at 828. But because the claim is procedurally defaulted, habeas review is unavailable unless Serrano can establish cause and prejudice for the default or demonstrate that failing to consider his claim will result in a "fundamental miscarriage of justice," e.g., Harris, 489 U.S. at 262, which requires a showing of "actual innocence," 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 and supplemental papers liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), Serrano has made no showing of cause for his default or of "actual innocence." Therefore his claim may not be considered on federal habeas review.

2. Serrano's Claim that His Sentence Was Excessive in Light of His Non-Violent History

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 thus not subject to federal habeas review. See, e.g., Estelle, 502 U.S. at 67-68. Rather, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.

In addition, "[t]he exhaustion requirement is not satisfied unless the federal claim has been fairly presented to the state courts." Daye, 696 F.2d at 191 (internal quotation marks and citations omitted). Without explicitly citing federal law, a habeas petitioner can alert the state court to a claim's federal nature by doing one of the following: (1) relying on federal cases employing a 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. Id. at 194; accord St. Helen, 374 F.3d at 183.

The argument Serrano raised in the state courts with regard to his sentence was, inter alia, that his slashing of Cindia was an aberration, as evidenced by the fact that he did not have a violent criminal history, and thus that the imposition of the 25-year maximum sentence was unduly harsh and excessive. See Pet. App. Div. Brief at 40-41; Jan. 31 Ltr.; accord Orig. Petition at 5. Federal habeas courts have squarely held that such claims are purely a matter of state law and thus are not cognizable on federal habeas review. See, e.g., White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) ("No federal constitutional issue is presented where... the sentence is within the range prescribed by state law."); Herrera v. Artuz, 171 F. Supp. 2d 146, 151 (S.D.N.Y. 2001) ("It is well settled that when a sentence is in accord with the range established by state statutory law there is no constitutional issue presented for habeas review."); Sutton v. Herbert, 39 F. Supp. 2d 335, 337 n.1 (S.D.N.Y. 1999) ("[N]o constitutional issue is presented for habeas relief where a sentence imposed falls within the range prescribed by state statutory law."); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988) ("[B]ecause [petitioner's] sentence did not exceed the maximum sentence permissible for a felony conviction... there is no ground for habeas relief."); see also N.Y. Penal Law § 70.06(6)(a) (for Attempted Murder in the Second Degree by a second felony offender, sentence must be "at least eight years and must not exceed twenty-five years").

Even if Serrano could articulate a federal constitutional argument challenging his sentence, such a claim has not been presented to the state courts and is unexhausted. See, e.g., Levine v. Comm'r of Corr. Serv., 44 F.3d 121, 125 (2d Cir. 1995) (constitutional challenge to sentencing dismissed as unexhausted because direct appeal only raised state statutory challenge); White, 969 F.2d at 1383 (where petitioner did not claim in the state courts that his sentence deprived him of any federal constitutional right, petitioner failed to exhaust state court remedies); Carrasco v. David, 2002 WL 1205750, at *5 (S.D.N.Y. June 4, 2002) (because petitioner's federal claims that his sentence was grossly excessive and outside the range permitted by state law were not alleged in state court, his claims were unexhausted).

Furthermore, Serrano cannot now return to the state courts to argue that his sentence violated the federal Constitution because state law required that any challenge be brought on direct appeal. See CPL §§ 440.10(2)(d), 440.20(2). Thus, even if the claim were "deem[ed]" exhausted, the procedural default would bar federal habeas review. See, e.g., Gray v. Netherland, 518 U.S. 152, 161-62 (1996) (while claims are deemed exhausted if there are no longer any available remedies in state court, the same procedural default bars a federal habeas court from addressing the claim on the merits); St. Helen, 374 F.3d at 183-84 (same); Bossett, 41 F.3d at 828-29 (same). As Serrano has not demonstrated either cause for his default or "actual innocence," this claim is barred from federal habeas review.

C. Ground Three

Serrano next claims that he was deprived of effective assistance of trial counsel. See Pet. Mem. at 9. The state court rejected this claim on state procedural grounds, specifically CPL § 440.10(2)(c). 440.10 Decision at 2. This provision prohibits collateral review of a claim if sufficient facts appear on the record to have permitted adequate appellate review of the issue and there was an unjustifiable failure to raise the claim on direct appeal. See CPL § 440.10(2)(c).

Where a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an independent and adequate ground for the state court decision. See, e.g., Coleman, 501 U.S. at 729-30, 749-50. Although procedurally defaulted claims are deemed exhausted for habeas purposes, a procedural default will "bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris, 489 U.S. at 262; accord Coleman, 501 U.S. at 749-50; Fama, 235 F.3d at 809; Bossett, 41 F.3d at 829. The bar on habeas review resulting from a procedural default applies even where, as here, the state court issues an alternative holding addressing the procedurally defaulted claim on the merits. See, e.g., Harris, 489 U.S. at 264 n.10; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam).

As noted, a procedural bar applies only where it constitutes both an "independent" and an "adequate" state law ground. It is clear from the face of the state court's decision here that the court was relying on an "independent" state procedural rule and not on any rule of federal law in denying the motion to vacate with respect to Serrano's claim of ineffective assistance of trial counsel. See 440.10 Decision at 2 (citing CPL § 440.10(2)(c)). That the Appellate Division issued a summary denial of leave to appeal is of no moment because where "the last reasoned opinion on the claim explicitly imposes a procedural default" -- as is true of the State Supreme Court's decision in this case -- a federal habeas court "will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, it only remains to be determined whether the rule relied upon is "adequate" to support the decision.

A procedural bar is "adequate" if it is based on a rule that is "'firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether application of the procedural rule is "firmly established and regularly followed" must be judged in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citing Lee v. Kemna, 534 U.S. 362, 386-87 (2002)). The Second Circuit has set forth the following "guideposts" for making this determination:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

Id. (citing Lee, 534 U.S. at 381-85).

Application of the Cotto guideposts demonstrates that the procedural bar relied upon by the state court is one that is "firmly established and regularly followed." With respect to the first guidepost, Serrano's failure to raise trial counsel's ineffectiveness on direct appeal was "actually relied on" by the state court, as is evidenced by its decision. See 440.10 Decision at 2.

As for the second guidepost, it is well-settled under New York law that where the record is sufficient to allow appellate review of a claim, the failure to raise that claim on direct appeal precludes subsequent collateral review of that claim. See, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04 (1986); People v. Jossiah, 2 A.D.3d 877, 877 (2d Dep't 2003); People v. Skinner, 154 A.D.2d 216, 221 (1st Dep't 1990). The same rule applies to bar collateral review where the facts underlying an ineffective assistance of counsel claim appear on the record. See, e.g., Jossiah, 2 A.D.3d at 877; People v. Smith, 269 A.D.2d 769, 770 (4th Dep't 2000); People v. Orr, 240 A.D.2d 213, 214 (1st Dep't 1997). Accordingly, where an ineffective assistance of counsel claim is record-based, federal habeas courts have found the rule of CPL § 440.10(2)(c) to be "firmly established and regularly followed" and thus "adequate." See, e.g., Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir. 2003); Lee v. Senkowski, 2003 WL 22890405, at *9 (S.D.N.Y. Dec. 2, 2003) (Report and Recommendation adopted on April 30, 2004); Ryan v. Mann, 73 F. Supp. 2d 241, 248 (E.D.N.Y. 1998), aff'd, 201 F.3d 432 (2d Cir. 1999).*fn8

Here, Serrano claims that his trial counsel was ineffective for utilizing his peremptory challenges in a discriminatory manner by intentionally excluding white prospective jurors. See Pet. Mem. at 1. The state court properly concluded that this claim was record-based, as the voir dire minutes contained the allegations necessary to make this claim. Indeed, as the state court noted, Serrano "repeatedly cites from the trial record in support of his claim. Thus, there were clearly sufficient facts in the record to have allowed appellate review of [his] claim." 440.10 Decision at 2. Accordingly, the state court properly concluded that Serrano's ineffective assistance claim was record-based and had to be raised on direct appeal.

Serrano contends that CPL § 440.10(2)(c) is not consistently and regularly applied to ineffective assistance of counsel claims and thus cannot serve as a procedural bar to his claim. See Pet. Mem. at 6-8. He argues that "[e]ither [CPL] § 440.10(2)(c) is evenly, consistently, and regularly applied to all cases or it is not." Id. at 7. Serrano cites to various cases in which he asserts the courts held that ineffective ineffective assistance of trial counsel claims are best raised in a section 440.10 motion. Id. (citing cases). However, the appropriate consideration is whether "state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented." Cotto, 331 F.3d at 240 (emphasis added). The cases cited by Serrano are best read as involving claims where material dehors the trial record was necessary to adjudicate the ineffective assistance claim. See, e.g., People v. Bowman, 289 A.D.2d 117 (1st Dep't 2001) (stating in dictum that the ineffective assistance claim should have been raised in a section 440.10 motion "because a substantial portion of this claim involves matters of trial strategy" but nonetheless reviewing the claim on direct appeal). As already discussed, New York State case law is consistent in holding that where the record is sufficient to allow appellate review of a claim, the failure to raise that claim on direct appeal precludes subsequent collateral review of the claim. See, e.g., Cooks, 67 N.Y.2d at 103-04; Jossiah, 2 A.D.3d at 877; Skinner, 154 A.D.2d at 221. In this case, the foundation of Serrano's claim is his attorney's performance during voir dire, an event that formed part of the record. As such, the record was sufficient for Serrano to have raised the issue on direct appeal and, similar to other New York State cases in which an issue unjustifiably was not raised on direct appeal, "compliance with [CPL § 440.10(2)(c)] was demanded," Cotto, 331 F.3d at 240.

As an alternative argument, Serrano contends that there are "matters that lie outside the record as to counsel's performance," Reply to Respondents [sic] Supplemental Affidavit, filed June 15, 2004 (Docket #16) ("Pet. Reply"), at 1, and thus that CPL § 440.10(2)(c) should not have barred his claim. See id. at 1-2; see also Pet. Mem. at 6-7 ("[U]nder the circumstances of this case, the ineffective assistance of counsel issue is best raised on a post-judgment motion."). Serrano argues that he did not agree with challenging the white prospective jurors, see Pet. Reply at 1-2; Pet. Mem. at 8, though the record reflects the opposite (Tr. 343, 348-49), and that his counsel's reasons for challenging the three other white prospective jurors were pretextual, despite the court's decision to the contrary. See Pet. Mem. at 8; Pet. Reply at 2-3. Thus he claims that these issues "cannot be answered by the trial record." Pet. Mem. at 8. But Serrano's complaint of ineffective assistance is based on the claim that his attorney engaged in discrimination and thus Serrano's own thoughts at the time are not relevant to this claim. Nor would an attorney affidavit (which is not even proferred) be relevant to the issue of whether the attorney was inefffective based on his making a pretextual challenge. As a result, the record was sufficient for Serrano to have raised the ineffective assistance claim on direct appeal.

The third guidepost likewise fails to help Serrano for there is no argument that he "substantially complied" with the state procedural rule. Serrano had new counsel on appeal who did not in any way alert the appellate court that there was any appealable issue as to the effectiveness of Serrano's trial counsel. Only after Serrano submitted his initial habeas petition was this issue first raised. See Stay Motion; Stay Order. Accordingly, the state procedural rule is "adequate" to preclude federal habeas review of this claim.

In sum, the state court's reliance on the state procedural rule in this situation constitutes both an "independent" and an "adequate" ground for its decision. Serrano's claim of ineffective assistance of trial counsel is thus procedurally defaulted. Serrano has explicitly stated that he will not "attempt to show cause or prejudice or that a fundamental miscarriage of justice would result if the merits of the claim are not considered." Pet. Mem. at 6 n.1.*fn9 Accordingly, the procedural default bars federal habeas review of his claim.

D. Ground Four

Serrano's final claim for habeas relief is that his appellate counsel was ineffective when she failed to argue on direct appeal that Serrano was denied effective assistance of trial counsel. See Pet. Mem. at 9. Specifically, Serrano claims that appellate counsel should have raised on direct appeal that "the trial attorney a) intentionally discriminated against a prospective white juror denying [Serrano] equal protection and b) used the defendants [sic] peremptory right to challenge prospective jurors in a discriminatory manner." Id. As discussed above in Section I.G, this claim has been presented in the state courts and is thus exhausted. Accordingly, the Court will now consider it on the merits.

1. Standard of Review

As a preliminary matter, the Court must first determine the appropriate standard of review for Serrano's ineffective assistance of appellate counsel claim. If the Appellate Division adjudicated this claim "on the merits," this Court may grant habeas relief only if that decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); accord Williams, 529 U.S. at 405-06; Aparicio, 269 F.3d at 93. If its decision was not "on the merits," then the Court must review "both questions of law and mixed questions of law and fact de novo." Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) (citation omitted); accord Aparicio, 269 F.3d at 93. As previously noted, as long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered "on the merits" even if it fails to mention the federal claim or any federal law and even if no relevant federal case law is cited. Aparicio, 269 F.3d at 94; accord Sellan, 261 F.3d at 311-12.

The Appellate Division's decision makes clear that the court considered Serrano's coram nobis application on the merits. The decision makes no reference to any procedural ground. Rather, it states that the decision was being issued "upon reading... the papers with respect to [Serrano's application]" and that the court had engaged in "due deliberation" on the application. Coram Nobis Decision. Furthermore, the court cited People v. De La Hoz, 131 A.D.2d 154, 158 (1st Dep't 1987) (per curiam). The cited portion of De La Hoz directly addresses the standards for making out an ineffective assistance of appellate counsel claim on the merits and makes no reference to any procedural bar. Thus, the citation to De La Hoz also makes clear that the Appellate Division decided Serrano's application on the merits. See, e.g., Rodriguez v. Artuz, 2002 WL 31093605, at *3-*4 (S.D.N.Y. Sept. 18, 2002).

Consequently, the Appellate Division's denial of Serrano's coram nobis application was "on the merits" and this Court will therefore apply the deferential standard of review articulated in 28 U.S.C. § 2254(d).

2. Law Governing Ineffective Assistance of Appellate Counsel Claims

The Second Circuit has described the law governing claims of ineffective assistance of appellate counsel as follows:

To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must establish two elements: (1) that counsel's performance "fell below an objective standard of reasonableness," Strickland [v. Washington, 466 U.S. 668, 688 (1984)], and (2) that there is a "reasonable probability" that, but for the deficiency, the outcome of the proceeding would have been different, id. at 694. The same standard applies to a review of the effectiveness of appellate counsel. See, e.g., Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820 (1994).

As to the reasonableness of counsel's performance, it does not suffice "for the habeas petitioner to show merely that counsel omitted a non-frivolous argument." [Id.] "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Actions or omissions by counsel that "'might be considered sound trial strategy'" do not constitute ineffective assistance, [id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))], and a court "may not use hindsight to second-guess" counsel's tactical choices, [Mayo, 13 F.3d at 533]; see Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner may rebut the suggestion that the challenged conduct reflected merely a strategic choice, however, by showing that counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." [Mayo, 13 F.3d at 533.]

McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999) (parallel citations omitted); see also Stokes v. United States, 2001 WL 29997, at *4 (S.D.N.Y. Jan. 9, 2001) ("The mere fact that [appellate counsel] was unsuccessful on appeal and did not raise every claim urged by the petitioner does not constitute ineffective assistance of counsel.").

In addition, a defendant does not have a constitutional right to "compel appointed counsel to press non-frivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points," for one of the main functions of appellate counsel is to "winnow[] out weaker arguments on appeal and focus[] on one central issue if possible." Jones v. Barnes, 463 U.S. 745, 751 (1983); accord Smith v. Robbins, 528 U.S. 259, 288 (2000) ("[A]ppellate counsel who files a merits brief need not (and should not) raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." (citing Barnes, 463 U.S. at 751)); Wright v. United States, 182 F.3d 458, 466 (6th Cir. 1999) ("Appellate counsel is not ineffective simply because he or she decides not to raise every possible argument on appeal.").

In the specific context of an appellate counsel who is being reviewed for ineffectiveness in failing to raise the ineffectiveness of trial counsel, the Seventh Circuit has noted that it is not enough for the habeas court to determine that trial counsel had been ineffective; rather, the court must decide "whether trial counsel was so obviously inadequate that appellate counsel had to present that question to render adequate assistance." Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989).

3. Analysis

Serrano has not established that his appellate counsel was constitutionally inadequate because, as described in detail below, the claims that she purportedly should have raised on direct appeal do not represent "significant and obvious issues," Mayo, 13 F.3d at 533, that she was required to have raised on appeal. As already noted above in Section I.F, Serrano's appellate brief raised two issues for review. In Mayo, the Second Circuit noted:

When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.

Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)). The question before this Court is whether the Appellate Division unreasonably applied clearly established federal law in deciding that appellate counsel had not been ineffective through her omission of the issues Serrano argues should have been raised in his appellate brief.

Serrano claims that his appellate counsel was ineffective because she failed to argue that his trial counsel was ineffective when he discriminated against a white prospective juror, denying him equal protection, and when he utilized his peremptory challenges in a discriminatory fashion, in contravention of Batson. See Pet. Mem. at 9. In order for Serrano to establish that the state court's decision rejecting his claims was contrary to, or involved an unreasonable application of, clearly established Federal law, Serrano must show that his appellate counsel was indeed ineffective in not raising these issues. Under Strickland, the controlling federal law for ineffective assistance of counsel claims, Serrano must show that his appellate counsel's performance fell below an objective standard of reasonableness and that significant prejudice resulted from his counsel's inadequacy, undermining confidence in the outcome of his appeal. See 466 U.S. at 688, 694.

In evaluating Serrano's claims, the Court takes notice that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Indeed, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," id., as "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," id. at 690.

a. Serrano's claim that his appellate counsel should have raised trial counsel's ineffectiveness in utilizing Serrano's peremptory challenges in a discriminatory manner.

In order for Serrano's appellate counsel to have proceeded with a claim of ineffective assistance of trial counsel, she would have first had to establish that trial counsel "made errors so serious that [trial] counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," id. at 687. Understandably, Serrano's appellate counsel did not choose to make this argument on appeal, as trial counsel did provide "reasonably effective assistance," id., even assuming arguendo that Serrano's peremptory challenges were utilized in a racially discriminatory manner.

As the Seventh Circuit has noted, there is no reason to believe that "all, or even many, improper peremptory challenges disserve the interests of the side making them." United States v. Boyd, 86 F.3d 719, 722 (7th Cir. 1996). Indeed, even assuming that a trial counsel is racially discriminatory in making peremptory challenges, this activity often "reveal[s] a strategy designed to reduce the chance of conviction." Id. Trial counsel's utilization of a "strategy designed to reduce the chance of conviction," id., certainly cannot be considered ineffective. Given the weakness of this claim, the failure to raise it as an issue on appeal cannot suffice to establish an ineffective assistance of appellate counsel claim.

b. Serrano's claim that his appellate counsel should have raised that his trial counsel was ineffective for discriminating against a white prospective juror.

It is not entirely clear how this claim differs from the claim just discussed. It appears that Serrano is arguing that his counsel in fact discriminated against other white jurors and had this been brought to the attention of the appellate court, his conviction might have been overturned. See Pet. Reply at 8-9. But appellate counsel had no basis on which to raise such a claim, given that the trial judge had explicitly found that defense counsel had not acted discriminatorily in challenging these other jurors. See Tr. 348. Accordingly, it cannot be said that such a claim would have been any stronger than the issues that appellate counsel did choose to address on appeal, and thus "the presumption of effective assistance of [appellate] counsel" has not been overcome because the "ignored issues are clearly [not] stronger than those presented," Mayo, 13 F.3d at 533.

Accordingly, the Appellate Division did not unreasonably apply clearly established federal law in deciding that appellate counsel had not been ineffective through her omission on appeal of the ineffective assistance of trial counsel claim.

Conclusion

For the foregoing reasons, Serrano'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 serve and 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. Deborah A. Batts, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Batts. 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).

GABRIEL W. GORENSTEIN United States Magistrate Judge


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