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June 10, 2005.

ADRIAN BROWN, Petitioner,
NEW YORK STATE, Respondent.

The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge



Adrian Brown ("Brown") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).


  On the evening of July 17, 1997, Brown shot his then-girlfriend, Lakisha Marion ("Marion"), during an argument. Apparently, he could not find his hat and his bandanna, and he believed that she had them. Marion suffered severe injuries to her left arm and face but miraculously survived the incident. Brown was charged with two counts of assault — assault with intent to cause serious physical injury and "depraved indifference" assault (N.Y. Penal Law §§ 120.10(1), (3)). Brown was tried in Monroe County Court (Attilio, J.) before a jury which found him guilty of intentional assault as charged in the first count of the indictment. Brown was sentenced to 12½ to 25 years imprisonment.

  Proceeding pro se, Brown moved under New York Criminal Procedure Law ("C.P.L.") § 330.30 to set aside the verdict, but this motion was denied. Represented by new counsel, Brown then appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. That court unanimously affirmed the conviction on May 2, 1001. People v. Brown, 283 A.D.2d 1004, 725 N.Y.S.2d 253 (4th Dept. 2001). The New York Court of Appeals denied leave to appeal on June 26, 2001. People v. Brown, 96 N.Y.2d 860, 730 N.Y.S.2d 34 (2001). Brown's motion for reconsideration was denied on August 6, 2001. People v. Brown, 96 N.Y.2d 916, 732 N.Y.S.2d 633 (2001). While his direct appeal was pending, Brown collaterally attacked his conviction by means of a motion to vacate the judgment pursuant to C.P.L. § 440.10. That was denied by the trial court on June 28, 1999. See A.84-87.*fn1

  This Federal habeas petition followed in which Brown asserts numerous grounds for relief: (1) the trial court erred in accepting prosecutor's explanation for peremptory challenge of a black female prospective juror (hereinafter Ms. I.); (2) trial counsel was ineffective for failing to move for a mistrial on a multitude of bases, including the prosecution's (a) failure to disclose alleged Brady*fn2 material, (b) failure to disclose the grand jury statements of certain trial witnesses, (c) reliance upon perjured grand jury testimony by the victim, (d) failure to correct clerical mistakes in the grand jury minutes of the victim's testimony, (e) "failure to disclose Sandoval*fn3 testimony," (f) the making of incorrect statements regarding petitioner's prior convictions, and (g) violation of petitioner's State statutory right to a speedy trial; (3) trial counsel was ineffective in failing to object to the trial court's dismissal of jurors after voir dire had begun and thereby preserve the issue for appeal; (4) appellate counsel was ineffective in failing to argue that defense counsel "didn't make proper motions to obtain petitioners['] rights" (Brown apparently is referring to all of the above-mentioned mistrial motions that counsel should have made but did not); (5) appellate counsel was ineffective in failing to argue that a Batson*fn4 violation occurred at trial with regard to the striking of Ms. I; and (6) appellate counsel was ineffective in failing to argue that trial counsel was ineffective in failing to request a trial order of dismissal on the ground that the evidence against petitioner was insufficient to support the conviction and failing to argue that the accomplice testimony was insufficient. See Amended Petition at 4-20 (Docket ## 7, 8).*fn5

  For the reasons set forth below, Brown's claims for habeas relief are denied, and the petition is dismissed.


  I. Exhaustion

  A petitioner must exhaust all available State remedies either on direct appeal or through a collateral attack of his conviction before he may seek a writ of habeas corpus in Federal court. 28 U.S.C. § 2254(b)(1); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion of State remedies requirement means that the petitioner must have presented his constitutional claim to the highest State court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly exhausted when the State court is fairly apprised of the claim's Federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20.

  Respondent asserts the affirmative defenses of non-exhaustion with respect to all of Brown's claims. I agree with respondent that Brown's claims of ineffective assistance of appellate counsel are unexhausted because they were not raised upon direct appeal, and Brown never filed an application with the Appellate Division for a writ of error coram nobis, the method by which defendants in New York collaterally challenge the performance of their appellate counsel. Because there is no time limit for filing a coram nobis application, Brown still could return to State court and file such an application. Thus, his ineffective assistance of appellate counsel claims remain unexhausted.

  Brown's Batson claim stemming from trial court's ruling on the prosecutor's peremptory challenge of a black female prospective juror also has not been presented to the state courts. However, that claim is procedurally defaulted because Brown faces an absence of corrective process were he to return to the State courts in order to exhaust the claim, Grey, 933 F.2d at 120-21, because he has already used the one appeal to the New York Court of Appeals to which he is entitled. See N.Y. Court Rule § 500.10(a). Although Brown could bring a motion to vacate the judgment pursuant to C.P.L. § 440.10, raising this issue on such a motion would be futile; the State court would deny the claim pursuant to C.P.L. § 440.10(2)(c) since Brown could have raised it on direct appeal but unjustifiably failed to do so. Thus, although procedurally defaulted, Brown's Batson claim is "deemed exhausted." See Grey, 933 F.2d at 120-21.

  I am precluded from considering this procedurally defaulted claim unless Brown "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 and internal quotations omitted); see also Schlup v. Delo, 513 U.S. 298, 321 (1995) (a fundamental miscarriage of justice requires a showing of "actual innocence"). Brown does not allege cause or prejudice, nor does he attempt to show that a fundamental miscarriage of justice will occur should I decline to review this claim. Indeed, I find no basis on this record for overlooking the procedural default. Therefore, Brown's claim that the trial court's acceptance of the prosecution's reason for dismissing the black juror is precluded from habeas review. In any event, the claim is without merit. As discussed below, the prosecution's rejection of Ms. I. as a juror did not amount to a Batson violation.

  II. Petitioner's unexhausted claims warrant denial under 28 U.S.C. § 2254(b)(2)

  In the past, a State prisoner's Federal habeas petition had to be dismissed if the petitioner did not exhaust available State remedies as to any of his Federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1982). However, an exception to the exhaustion requirement set forth in Rose v. Lundy has been provided for by statute. Now, pursuant to AEDPA,*fn6 a district court may, in its discretion, deny on the merits habeas petitions containing unexhausted claims. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). Section § 2254(b)(2) allows a district court to reach the merits of a habeas corpus petition despite nonexhaustion, thereby "effectuat[ing] congressional intent, conserv[ing] judicial resources, and afford[ing] petitioner prompt adjudication of his claim." Steele v. Walter, 11 F. Supp.2d 252, 257 (W.D.N.Y. 1998) (quoting Cowan v. Artuz, 1996 WL 631726, at *5 (S.D.N.Y. 1996) (quoted in Loving v. O'Keefe, 960 F. Supp. 46, 49 (S.D.N.Y. 1997)).

  Although the Second Circuit has not yet articulated a standard for determining when unexhausted claims may be denied on the merits, the majority of district court decisions in this Circuit have embraced a "patently frivolous" test for denying unexhausted claims. See, e.g., Naranjo v. Filion, 2003 WL 1900867, at *8 (S.D.N.Y. Apr. 16, 2003) (collecting cases).*fn7 A minority of courts have expressed the test for denial under § 2254(b)(2) as whether "`it is perfectly clear that the [petitioner] does not raise even a colorable federal claim,' in which case the Court should dismiss the unexhausted claim on the merits (or rather the clear lack thereof)." Id. (quoting Hernandez v. Lord, 2000 WL 1010975, at *4-5 & n. 8 (S.D.N.Y. July 21, 2000) (citing cases, and analyzing the diverging views without deciding which standard is appropriate)) (internal quotations omitted in original).

  As discussed below, Brown's unexhausted ineffective assistance of appellate counsel claims fail either standard, as they are both patently frivolous and entirely meritless; thus the Court can address ...

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