The opinion of the court was delivered by: Hon. Hugh B. Scott
Petitioner Joseph Mauricio has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging his state court conviction. He asserts the following grounds in support of his Petition: ineffective assistance of counsel; excessive sentence; failure to hold a competency hearing; denial of fair trial due to not being informed of the right to testify in his own defense; prosecutorial misconduct in the opening statement. The parties consented to proceed before the undersigned as Magistrate Judge (pursuant to 28 U.S.C. § 636(c)) (Docket No. 7, October 27, 2005).
Offense and State Court Proceedings
On October 10, 2000, after midnight, the victim waited at a pay telephone for a cab. Petitioner drove to that telephone, made a call, returned to the car and opened the passenger door. Petitioner then reached back, grabbed the victim's arm and dragged her into the car. Petitioner then drove to a deserted business area. The victim jumped out of the car and attempted to flee.
Petitioner recaptured the victim and then removed her pants and underwear and attempted to force intercourse. He repeated this until police officers came and arrested him. (See Docket No. 5, Resp't Br. at 1-2; State Court Record, Ex. B, Resp't Br. at 5-7.)
Petitioner was convicted of attempted rape in the first degree and unlawful imprisonment in the second degree following a trial in Erie County Court in 2002. Petitioner did not testify at trial. The prosecutor argued in his opening statement that the case was a simple case of a local hero saving a woman from a sexual predator and that the grand jury so found in indicting the petitioner, with the petit jurors implicitly to follow the grand jury's lead (Tr.*fn1 of Jan. 4, 2002, at 39). Petitioner complains that this statement exceeded the appropriate bounds for an opening statement and thus deprived petitioner of a fair trial. Defense counsel moved for a mistrial, which was denied (id. at 42). The trial court denied the motion for a mistrial (id. at 44-45) and denied issuing a curative instruction (id. at 45).
On March 6, 2002, petitioner was sentenced to eight years in prison for the attempted rape charge, one year to be served concurrent for the unlawful imprisonment, and five years of post-release supervision (Tr. of Mar. 6, 2002, at 20).
Petitioner appealed his conviction, which the Appellate Division, Fourth Department, affirmed, People v. Mauricio, 8 A.D.3d 1089, 778 N.Y.S.2d 400 (4th Dep't 2004). There, petitioner argued that the trial court erred in denying him youthful offender status, that he was deprived of a competency hearing and none was requested by counsel, that he was denied a fair trial when he was not told that the decision to testify was his, and his rights were violated by the prosecutor's opening statement which exceeded appropriate bounds. The Fourth Department held that petitioner was not denied effective assistance of counsel in the decision not to seek competency hearing, 8 A.D.2d at 1090, 778 N.Y.S.2d at 400 (citing People v. Dunn, 261 A.D.2d 940, 940-41, 690 N.Y.S.2d 349 (4th Dep't), leave denied, 94 N.Y.2d 822, 702 N.Y.S.2d 592 (1999)). The court held that there was no requirement that the defendant personally waive his right to testify on the record, but noted that the County Court still conducted an inquiry into whether petitioner's waiver was knowing, intelligent and voluntary. The Fourth Department denied his contention that he received ineffective assistance of counsel at sentencing or before when counsel did not seek a competency hearing, id.; see People v. Carter, 158 A.D.2d 851, 852, 551 N.Y.S.2d 644, 647 (3d Dep't 1990). Leave to appeal from the Fourth Department's decision was denied, People v. Mauricio, 3 N.Y.3d 678, 784 N.Y.S.2d 16 (2004).
Petitioner then filed this Petition on July 25, 2005 (Docket No. 1). Respondent filed an Answer with attached record from the state court proceedings (Docket No. 4).
In the interest of comity and in keeping with the requirements of 28 U.S.C. § 2254(b), federal courts will not consider a constitutional challenge that has not first been "fairly presented" to the state courts. See Ayala v. Speckard, 89 F.3d 91, 94 (2d Cir. 1996), citing Picard v. Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (in banc), cert. denied, 464 U.S. 1048 (1984). A state prisoner seeking federal habeas corpus review of his conviction must first exhaust his available state remedies with respect to the issues raised in the federal habeas petition. Rose v. Lundy, 455 U.S. 509 (1982). However, under 28 U.S.C. § 2254(b)(2), where appropriate the Court may deny the relief requested in the petition upon a review of the merits notwithstanding the failure of the applicant to exhaust state court remedies.
Based on the record before the Court, it appears that the petitioner has exhausted his state court remedies on many of his claims, but not as to the excessiveness of his sentence or the ineffectiveness of counsel under federal law. In any event, review of the claims asserted in the Petition is appropriate under § 2254(b)(2).
State court findings of "historical" facts, and inferences drawn from those facts, are entitled to a presumption of correctness. Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.), cert. denied, 479 U.S. 805 (1986). (See also 28 U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State court shall be presumed to be correct.")
As amended by the Antiterrorism and Effective Death Penalty Act of 1996*fn2 ("AEDPA"), 28 U.S.C. § 2254(d) provides that a habeas corpus petition may not be granted with respect to any claim that was adjudicated on the merits in ...