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April 6, 2005.

JAMES C. WALSH Respondent.

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn*] [fn*] Michelle Hwang, a spring 2005 intern in my Chambers, and currently a second-year student at Fordham University School of Law, provided substantial assistance in the research and drafting of this Opinion.


Jesus Melenciano ("Melenciano") petitions this Court, pursuant to 28 U.S.C. § 2254 (d)(1) and (d)(2), for a writ of habeas corpus. Petitioner claims that: (1) Detective McCarthy's trial testimony constituted impermissible hearsay; (2) the trial court failed to conduct a proper inquiry into alleged premature jury deliberations, (3) an ineffective assistance claim in that trial counsel failed to: (i) make a Batson challenge during the jury selection and (ii) report the allegation that two jurors made racial slurs during a witness' testimony; and, (4) that the evidence upon which Petitioner was convicted failed to prove beyond a reasonable doubt that he was guilty of second degree murder. For the following reasons, Jesus Melenciano's petition for habeas corpus is DENIED.


  A. Factual Background

  On July 10, 1993, Nereida a.k.a. LaChina Lorenzo ("Lorenzo") was on 167th Street between Jerome and River Avenues when she witnessed four shooters approach and murder Vallejo. (Tr. at 57:23 — 58:1; 60:25 — 61:15.) Lorenzo recognized two of the shooters — Jesus Melenciano and his brother. (Tr. at 61:16 — 62:16; 63:22 — 24.) According to Lorenzo, Jesus Melenciano and his brother followed Vallejo until he reached a van, and once behind the van, Melenciano shot him. Lorenzo witnessed Vallejo fall to the ground after additional shots were fired. (Tr. at 64:1 — 65:17; 109.)

  Meanwhile, Juan Rivera ("Rivera"), the other victim, was in front of a public telephone booth on 167th Street when he was shot on the right side of his chin and on the left side of his neck. (Tr. at 197:22 — 198:3; 201:13 — 202:8; 209:16 — 210:12.) Rivera did not see the shooters, but noticed that the bullets had been fired from the direction of 167th Street and River Avenue. (Tr. at 202:13 — 24.).

  The evening of the murder, Detective McCarthy interviewed Lorenzo and she failed to mention that she recognized the shooters. (Tr. at 114:15 — 20.) Instead, she informed the detective that she immediately ran into the building when she heard the shots. (Tr. at 348:16 — 25.) Later, on July 12, 1993, Lorenzo recanted her story and provided Detective McCarthy with the first names of two shooters, and showed him where Jesus Melenciano lived.*fn1 (Tr. at 66:14 — 16.). Subsequently, on July 27, 1993, Lorenzo identified Jesus Melenciano as the shooter in a lineup and he was arrested. (Tr. at 70:4 — 23; 337:19 — 338:10.)

  B. Procedural History

  On May 25, 1995, a Bronx County jury found Petitioner guilty of Murder in the second degree, N.Y.P.L. § 125.25[1], Attempted Murder in the second degree, N.Y.P.L. §§ 110/125.25[1], and Criminal possession of a weapon in the second degree. N.Y.P.L. § 265.03. (Tr. 698:18 — 699:1.) New York State Supreme Court Judge Marcus sentenced Petitioner, a repeat felony offender, to prison terms of 25 years to life for the crime of Murder in the second degree, 6 to 12 years for the crime of Attempted Murder in the second degree, and 6 to 12 years for the crime of Criminal possession of weapon in the second degree, to run concurrently. Sentence, People v. Melenciano (Ind. No. 5540-93) (Jun. 12, 1995).

  Petitioner appealed to the New York State Supreme Court, Appellate Division, First Department, which affirmed the conviction:
[Melenciano's] verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. The court was not obligated to discharge a juror who gave indications of a hope and/or expectation that deliberations would not continue overnight. The court conducted a suitable inquiry wherein the juror unequivocally stated that she was nevertheless willing to be sequestered and that she had an open mind about the case. Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.
People v. Melenciano, 721 N.Y.S.2d 537, 537 (1st Dep't 2001). Leave to appeal was denied by the New York Court of Appeals. See People v. Melenciano, 96 N.Y.2d 922 (2001).

  On January 2, 2001, Petitioner filed a pro se motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440.10 and alleged ineffective assistance of counsel. Judge Marcus denied the motion. Dec. & Or., People v. Melenciano (Ind. No. 5540-93) (Apr. 25, 2002). The Appellate Division denied Petitioner's application for leave to appeal the denial of his motion to vacate. See People v. Melenciano (Ind. No. 5540-93) (Jun. 27, 2002) ("I, Eugene L. Nardelli, a Justice of the Appellate Division, First Judicial Department, do hereby certify that, upon application timely made by the above-named defendant for a certificate pursuant to Criminal Procedure Law, section 460.15, and upon the record and proceedings herein, there is no question of law or fact presented which ought to be reviewed by the Appellate Division, First Judicial Department, and permission to appeal from the order of the Supreme Court, Bronx County, entered on or about April 25, 2002, is hereby denied.").

  Petitioner filed the instant petition for habeas corpus on October 22, 2002 in the United States District Court for the Southern District of New York. (Dckt. 2.)

  C. Exhaustion of State Remedies

  Federal habeas relief will not be granted unless the petitioner has exhausted the remedies available at the state level. See 28 U.S.C. § 2254(b)(1)(A); Wilkinson v. Dotson, 125 S.Ct. 1242, 1245 (2005). In particular, a petitioner must fairly present the factual and legal premises of his claims to the highest court of the state and must alert the state court of the constitutional nature of his claims. See Williams v. Walsh, No. 02 Civ. 7633, 2004 WL 275489, at *2 (S.D.N.Y. Dec. 1, 2004) (Baer, J.). Here, a review of Petitioner's prior submissions and record demonstrates the exhaustion of the remedies available in state court. See Staley v. Greiner, No. 01 Civ. 6165, 2003 WL 470568, at *5 (S.D.N.Y. Feb. 6, 2003) (citing Klein v. Harris, 667 F.2d 274 (2d Cir. 1981) ("no appeal to the New York Court of Appeals lies from an order denying a motion for leave to appeal to the Appellate Division")).


  Section 2254(d) of Title 28 of the United States Codes, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides:
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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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). In accordance with the "unreasonable application" clause, habeas relief is available only if state court's application of the law was "objectively ...

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