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United States District Court, S.D. New York

September 19, 2005.

DAVID RIVERA, Petitioner,

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  David Rivera, proceeding pro se, seeks a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code ("section 2254"). In his petition, Rivera claims that he was denied due process when the court conducted a limited inquiry, outside the jury's presence, to determine whether a segment of his proposed testimony was relevant.*fn1 For the reasons that follow, petitioner's writ of habeas corpus is denied. II. BACKGROUND

  A. Pre-Trial Proceedings and Trial

  An indictment was filed on March 25, 1997, in connection with a drug bust and shooting that occurred at 247 Wadsworth Street, in New York County. Indictment Number 1998/97 charged petitioner with two counts of criminal possession of a controlled substance in the third degree, one count of attempted murder in the first degree, and one count of criminal possession of a weapon in the second degree.*fn2 Prior to trial, petitioner moved to suppress certain physical evidence, identification testimony, and statements he had made to law enforcement officials.*fn3 After a hearing on March 5 and 10, 1998, petitioner's motions to suppress were denied.*fn4

  At trial, petitioner testified on his own behalf. During direct examination, petitioner's counsel asked him, "What happened in the van?"*fn5 The prosecutor objected and the judge held a sidebar and asked petitioner's counsel what he was trying to bring out and the relevance of that information.*fn6 Counsel explained that petitioner intended to testify that the officers had abused him while transporting him to the precinct, in order to demonstrate that the statements he made to officers in the precinct after his arrest were not voluntary.*fn7 A claim of physical abuse by the officers had not been raised previously.*fn8 The judge then dismissed the jury and questioned petitioner outside the jury's presence to determine whether the testimony was relevant.*fn9 The judge admonished petitioner to speak politely, but allowed him to testify before the jury that the officers beat him during the van ride and that portions of his subsequent statements to police and the district attorney were false.*fn10

  On May 14, 1998, the Supreme Court, New York County, rendered a judgment, based on a jury verdict, convicting petitioner of attempted assault in the second degree (New York Penal Law § 120.05[1]) (submitted as a lesser offense of the attempted murder in the first degree count), criminal possession of weapon in the second degree (New York Penal Law § 265.03[2]), and two counts of criminal possession of a controlled substance in the third degree (New York Penal Law §§ 220.16[1] and [12]).*fn11 Petitioner was "sentenced to two to four years for the attempted assault in the second degree, to run concurrently with a sentence of seven and one-half to fifteen years on the criminal possession of a weapon in the second degree, to run consecutively with two concurrent sentences of three to nine years for the two counts of criminal possession of a controlled substance in the third degree."*fn12

  B. Post-Trial Proceedings

  On appeal, petitioner filed a brief in the Appellate Division, First Department, in which he claimed "that the trial court violated the proper mode of proceedings" by interrupting his trial testimony and questioning him, outside the jury's presence, "about his claim that his precincthouse statements were coerced, since defense counsel had already enunciated a specific, good-faith offer of proof that [petitioner] had been beaten en route to the precinct."*fn13 Petitioner further claimed that "[his] constitutional right to testify at his own trial as well as his right to be tried by a jury and by an impartial judge were violated by this unwarranted, fundamental change in procedure."*fn14 On April 4, 2002, the Supreme Court of New York, Appellate Division, First Department affirmed the lower court's judgment and held that petitioner's claims were procedurally barred.*fn15 On May 6, 2002, petitioner moved for leave to appeal to the New York Court of Appeals, and on June 17, 2002, that motion was denied.*fn16

  On August 4, 2003, petitioner filed a pro se petition for a writ of habeas corpus.*fn17 At the suggestion of the Court, petitioner filed an amended petition on March 11, 2004.*fn18 Petitioner's claims regarding his right to testify and right to a jury trial are based on the claims presented on direct appeal. III. LEGAL STANDARD

  This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA permits a federal court to grant a writ of habeas corpus to a state prisoner only if the state court's denial of relief "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."*fn19

  As explained by the Supreme Court in Williams v. Taylor, a state court decision is "contrary to" clearly established federal law if: (1) the state court reaches a different result than that mandated by the Supreme Court when presented with facts that are "materially indistinguishable from a relevant Supreme Court precedent;" or (2) the state court "applies a rule that contradicts the governing law set forth in Supreme Court cases."*fn20 The "unreasonable application" prong of section 2254(d)(1) permits a federal habeas court to grant the writ,

if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of petitioner's case. In other words, a federal court may grant relief when a state court has misapplied a governing legal principle to a set of facts different from those of the case in which the principle was announced. In order for a federal court to find a state court's application of our precedent unreasonable, the state court's decision must have been more than incorrect or erroneous. The state court's application must have been objectively unreasonable.*fn21

  A federal court generally may not review a state court decision that expressly relies on a procedural default as an independent and adequate state ground for dismissal.*fn22 This rule applies even where the state court provided an alternative ruling based on the merits of the claim.*fn23 A rationale for the adequate and independent state ground doctrine is "the important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure of federal courts to respect them."*fn24 Due to a prior procedural default, namely the failure to preserve his claims for appellate review, this Court cannot review petitioner's federal claim that he was denied due process based on the trial court's interference with his right to testify and right to a trial by jury. On April 4, 2002, the Appellate Division, First Department, concluded that petitioner's challenges to the court's inquiry of him were unpreserved for appellate review and therefore "decline[d] to review these unpreserved claims in the interest of justice."*fn25 Thus, the Appellate Division's finding of a procedural default bars this Court from considering the merits of petitioner's claims, notwithstanding the Appellate Division's alternative holding that petitioner's claims lacked merit.*fn26

  Despite the existence of a procedural default, a federal court may review a state prisoner's federal claim if the "prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."*fn27 As explained by the Supreme Court: [T]he question of cause for a procedural default does not turn on whether counsel erred or on the kind of error counsel may have made. So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington . . . we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.*fn28

  Petitioner does not attempt to show either cause and prejudice or a fundamental miscarriage of justice, and there is no apparent basis for either in the record. Because petitioner's trial counsel was not constitutionally ineffective,*fn29 and no objective factor impeded his counsel's ability to preserve the claim on appeal, petitioner has failed to demonstrate the cause needed to excuse his procedural default. Because petitioner failed to show cause, this Court need not reach the issue of prejudice.*fn30 Furthermore, a "fundamental miscarriage of justice" occurs only in extraordinary cases "`where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'"*fn31 In order to show that a fundamental miscarriage of justice would result from this Court's failure to consider the merits of his claim, petitioner must show his actual innocence.*fn32 Petitioner did not attempt to meet this requirement. Accordingly, petitioner's federal due process claim is hereby dismissed as procedurally forfeited.


  For the reasons set forth above, petitioner's petition for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this motion (Docket #4) and this case. SO ORDERED.


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