UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
December 21, 2006
WALTER MURRAY, PETITIONER,
SUPERINTENDENT GARY GREENE, RESPONDENT.
The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
OPINION AND ORDER
Pro se petitioner Walter Murray seeks a writ of habeas corpus from his January 24, 2003 conviction, after a jury trial in Supreme Court, New York County, of first degree robbery, and sentence, as a persistent violent felony offender, of 20 years to life imprisonment. (Dkt. No. 5: Ex. H:*fn1 Pet. ¶¶ 1-6.) Murray's habeas corpus petition asserts that: (1) "[t]he People failed to prove [Murray's] guilt beyond a reasonable doubt, where the police did not find the broken bottle that the complainant claimed [Murray] used to take [the complainant's] chain, even though the incident had just taken place and the bottle, if it existed, could only have been discarded within a two block radius" (Pet. ¶ 12(1) at 16); and (2) Murray's "due process right to a fair trial was violated by the prosecutors [sic] summation, in which he denigrated defense counsel and [Murray] by calling the defense absurd and ridiculous, improperly vouched for the complainant's credibility, characterized [Murray] as a liar, and appealed to the jury's sympathy" (Pet. ¶ 12(2) at 17).
The parties consented to decision of Murray's petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 9.)
For the reasons set forth below, Murray's habeas petition should be DENIED.
Murray's conviction stems from his August 13, 2001 robbery, using a broken bottle as a weapon, of Mohammad Alom's gold chain. (E.g., Dkt. No. 6: 5/14/02 Trial Transcript ["Tr."] 226-28.)
Alom, his wife Jasmin Alom, and police officer Christopher Shaughnessy testified for the prosecution. (Dkt. No. 6: Alom: Tr. 235-300; Jasmin Alom: Tr. 300-07; Shaughnessy: Tr. 311-57, 366-70.) Murray testified on his own behalf during the defense case. (Murray: Tr. 370-402.)
The Prosecution Case at Trial
Alom, originally from Bangladesh, lived in the New York City area for five years and was married to Jasmin. (Dkt. No. 6: Alom: Tr. 236-37; Jasmin Alom: Tr. 302.) Alom worked the night shift at a restaurant on Houston Street in Manhattan. (Alom: Tr. 237-38, 283-84; Jasmin Alom: Tr. 304.) To go home from work, Alom took the A-train subway northbound from West 4th Street to 59th Street (because it did not stop at 42nd Street), transferred to a southbound A-train which stopped at 42nd Street, took the Shuttle train east to Grand Central Terminal, and transferred to a 6-train northbound to the Bronx. (Alom: Tr. 238-42.)
On August 13, 2001, when Alom boarded the A-train southbound at 59th Street, he sat down at the very end of the car. (Alom: Tr. 242, 262.) Alom was wearing a gold chain with his wife's name on the medallion. (Alom: Tr. 250, 255-58; Jasmin Alom: Tr. 305-07.) When Alom got on the train, he saw Murray sitting at the other end of the car, holding a bottle. (Alom: Tr. 242-45, 255, 269.)
As the subway traveled from 59th Street to 42nd Street, Murray moved closer to Alom. (Alom: Tr. 244, 245.) Alom recognized the bottle as a mango flavored Snapple, with one end broken. (Alom: Tr. 245, 252, 254.) When the train reached 42nd Street, Murray stood in front of the exit door closest to Alom and stared at Alom, which prevented Alom from getting off at 42nd Street as he planned. (Alom: Tr. 245-49, 253, 258, 265, 269-70.) Alom did not want to risk being hit or stabbed with the bottle as he passed by Murray. (Alom: Tr. 246, 248, 258, 269-70.) When the train left 42nd Street, both Alom and Murray remained inside the car, in the same positions. (Alom: Tr. 248-49.)
When the train stopped at 14th Street (Alom: Tr. 250), Murray held the broken end of the bottle toward Alom (Alom: Tr. 254, 267, 285-87), threatened to hit Alom with the bottle (Alom: Tr. 251, 286), snatched the gold chain from Alom's neck (Alom: Tr. 251, 256-57), and ran away (Alom: Tr. 251, 267). Alom ran after Murray. (Alom: Tr. 266-68, 272-73, 287-88.) Alom followed Murray out of the subway system through the 16th Street exit and continued chasing him south on 8th Avenue. (Alom: Tr. 268, 270-72.)
Police officers Christopher Shaughnessy and Sean Mulcahy saw Murray running toward them as they were driving westbound on 15th Street between 7th and 8th Avenues. (Shaughnessy: Tr. 314-15.) Officer Shaughnessy saw Murray turn frequently to look behind him and saw Alom chasing Murray. (Shaughnessy: Tr. 315-17.) Officer Mulcahy pulled the police car across the road to block Murray's path. (Shaughnessy: Tr. 318.) Alom arrived and told the police what happened, including that Murray had taken his chain and that Murray had been carrying a broken bottle. (Alom: Tr. 273-75, 289; Shaughnessy: Tr. 319-20, 333, 367-69.) Murray no longer had the broken bottle in his hand, but Alom did not know specifically where Murray discarded it. (Alom: Tr. 274, 291, 293-94, 298-99.)
The police arrested Murray and found a section of Alom's chain in Murray's pocket. (Alom: Tr. 276, 290; Shaughnessy: Tr. 320, 338.) Murray claimed it was his own chain. (Shaughnessy: Tr. 325, 338.) Alom and one of the officers searched and found a second piece of the chain, with the Jasmin medallion, in the street. (Alom: Tr. 275-77, 290-91; Shaughnessy: Tr. 321-22, 342.) The police searched for but did not find the broken bottle. (Shaughnessy: Tr. 323-26, 328, 352-53; Alom: Tr. 291.)*fn2
The Defense Case at Trial
Murray testified on his own behalf. (Dkt. No. 6: Murray: Tr. 370-402.) Murray admitted that he was convicted of three felonies involving property theft and four misdemeanors from 1988 to 2001. (Murray: Tr. 371-72, 400.) Murray also admitted giving a false name in connection with a 1992 felony investigation. (Murray: Tr. 372, 384.)
Murray claimed that on August 13, 2001, he boarded the southbound A-train at 42nd Street and saw Alom, already on the train, sleeping. (Murray: Tr. 374-75, 392, 393, 398.) Murray specifically denied being on the train at 59th Street. (Murray: Tr. 391, 401.) When the train approached 14th Street, Murray "popped" Alom's gold chain off of his neck. (Murray: Tr. 376, 392, 393, 397, 398.) Murray explained that he "grabbed [the chain] with enough pressure to take it off without waking [Alom] up." (Murray: Tr. 376.)
Murray got off the train and Alom followed. (Murray: Tr. 376, 397.) Alom asked Murray if he had seen anyone with Alom's chain, and Murray lied and said he did not have the chain. (Murray: Tr. 376.) Alom continued to follow Murray, and Murray continued to deny that he had the chain. (Murray: Tr. 377-78.) Murray saw a police car approaching and continued walking. (Murray: Tr. 379.)
The officers stopped Murray, and Alom told the police that Murray had taken his chain; when the police searched Murray, they found a section of chain in his pocket. (Murray: Tr. 379, 395, 399.) Murray admitted that he lied to the police and said that the chain belonged to him. (Murray: Tr. 379-80, 398-400.) However, Murray denied discarding the medallion section of chain on the street. (Murray: Tr. 395, 401.) Instead, Murray claimed that although he attempted to steal the whole chain, when he broke it the medallion section fell into Alom's shirt and then onto the ground. (Murray: Tr. 395-97.)
Murray testified that, while he stole Alom's chain, he never held a broken bottle nor used any other kind of weapon. (Murray: Tr. 380.)
Defense Counsel's Summation
During his closing argument, Murray's defense counsel argued that "Mr. Alom's version of what happened on August 13th[,] 2001 has been shown to be highly inaccurate and a mostly untruthful version of what happened on the A Train that evening." (Dkt. No. 6: Tr. 413.) Defense counsel argued that "what really happened that evening . . . wasn't a robbery, just a simple theft of Mr. Alom's chain" and "all the facts of this case are consistent with that version and basically nothing supports [Alom's] version that it was a robbery." (Tr. 413.)
Defense counsel asserted that Murray was telling the truth while Alom's testimony was untruthful:
[Murray] was the only one telling the truth in [the] courtroom. . . .[T]here's no greater support for the truthfulness of Walter Murray's version than the inconsistencies and lies that lie at the heart of Mohammad Alom's version. If you examine the versions of his story, you'll find that it changes every time it's told. His version of history changes, it changes to suit his purpose at the time he's telling it. And these inconsistencies show you that his version of history has no firm basis in truth. (Tr. 414.)
Defense counsel argued that inconsistencies in Alom's testimony regarding what he first told police (Tr. 414-15), his residence (Tr. 416), what part of his body he claimed Murray pointed the bottle (Tr. 417), and his claim to the grand jury that he saw Murray throw away the bottle (Tr. 418-21), all showed that Alom's version had "no firm basis in truth" (Tr. 414). Defense counsel also argued that Alom changed his testimony about seeing Murray throw away the bottle because Alom knew "the bottle never existed at all." (Tr. 421.)
Defense counsel concluded with an appeal to the jury's sense of "justice":
There's a popular singer in Canada named Bruce Cobert who sings a song called Justice. In that song after singing about the atrocities that have been done in the name of every kind of fanaticism you can think of, every kind of fanaticism that's been known to human kind, he sings everybody loves to see justice done on somebody else. That song says a lot about this case. It recognizes that justice is subjective, justice is in the eyes of the beholder.
Justice to Mohammad Alom is getting Walter Murray convicted of a crime he did not commit. But justice is not about revenge. Justice isn't about vendettas. Justice is objective and if we, as a people, stand for anything at this point in our history, it is this, that justice is about even-handedness and it's about fairness.
Justice for us is where people like Walter Murray, admitted thieves, have a right to be convicted only for the crimes they have committed and acquitted for the crime they didn't commit.
Justice for us means that just because an individual has a criminal record or because he's unpopular, he doesn't deserve to be convicted of a crime he didn't commit. (Tr. 422-23.)
Defense counsel objected eight times during the prosecutor's summation (Dkt. No. 6: Tr. 424, 425, 428, 430, 431, 438), stating a reason for only one of the objections (Tr. 430). All but one of the objections were overruled by Justice Tejada. (Tr. 424, 425, 428, 430, 431, 438.)
In responding to the defense's summation, the prosecutor accused the defense of "blam[ing] the victim," drawing an objection:
[A.D.A.] BEDEROW: . . . [Defense counsel] says to you what was Mr. Alom doing on the subway at four in the morning? It's classical[,] blame the victim for being the victim of a crime. [Defense Counsel]
MR. OLIVER: Objection.
THE COURT: Overruled.
[A.D.A.] BEDEROW: What is he doing on the subway at four o'clock in the morning at midtown in Manhattan when he says he lives way out in East New York in Brooklyn? What is he doing on the train at that hour?
MR. OLIVER: Objection.
THE COURT: Overruled. (Tr. 424-25.)
The prosecutor further argued that defense counsel was trying to confuse the jury, stating: "There's a window and through the window is what happened. And what [defense counsel] has just done, he has gotten up, fogged it, clouded it." (Tr. 425.) The defense's objection was sustained. (Tr. 425.)*fn3 The prosecutor asked the jury to "look through the window, see what this case is all about, use your common sense, see who has a motive to fabricate and what evidence is corroborated in this case and you will reach an inescapable conclusion in this case." (Tr. 425.)
Responding to defense counsel's assertion that the crime constituted merely a theft and not a robbery, the prosecutor stated that Murray "can't pick the crime that you convict him of and that's what's going on here in this case and that's what the defendant's testimony was." (Tr. 428.)*fn4
Specifically addressing Murray's testimony in which he admitted taking the chain, which was found in his pocket, but denied holding a bottle, which was never recovered, the prosecutor said "[w]hat else would you expect [Murray] to say? He said exactly what he had to say." (Tr. 424.)*fn5 The prosecutor stated that "whatever [Murray] said is ridiculous, outrageous and trying to curry favor" so the jury would "compromise" and "consider lesser counts" other than first degree robbery. (Tr. 426.)
The prosecutor told the jury that "what's quite clear in light of [Murray's] testimony" is that "somebody is lying." (Tr. 426.) The prosecutor directly responded to defense counsel's assertions by saying that "[t]here is nothing that Mr. Alom testified to that doesn't make sense or that is completely rebutted by other evidence in the case except for the self-serving statement" of Murray. (Tr. 426.) The prosecutor reasoned:
You saw Mr. Alom testify. Why would he make something like that up? Why would he care nine months later? Why would he care when he saw the police? Why would he care when he went in the grand jury? Why would he care now? You saw him, you saw his demeanor. You think he's getting a rush out of this? Mr. Alom has been in this country for five years. He's married to Jasmin. He has a young child. He's struggling to make ends meet. He works for Domino's Pizza, he's trying to make a good living, he's had to work late nights and unfortunately for him he's had to ride subways all over town late at night. Mr. Alom has a right to ride subways late at night without being robbed by the defendant or being intimidated by the defendant or anybody else. Why would a guy like Mr. Alom come in here and parch [sic] this plot and carry it through and take an oath and throw it away? Do you think he has an interest to do that, give sworn testimony and purposefully mislead or lie? Contrast that with the defendant. Do you think he has an interest, purposefully take an oath an[d] lie? Think about that for a second. Not only that, he's admitted, the defendant, numerous times he's lied, he's lied about his name, he lied about the chain. . . . Who has an interest to make this up? Think about that. (Tr. 434-35.)*fn6
The prosecutor summarized that the case was "all about credibility. . . .Why would Mohammad Alom make this up versus why would [Murray] make this up? Why would Mohammad [Alom] get this chain back, concoct this story about a broken bottle? It makes no sense. There's just no reason for it." (Tr. 438-39.) The prosecutor said it was not surprising that the police did not find the bottle, which Murray could have discarded. (Tr. 437-38.)*fn7
In conclusion, the prosecutor asked the jury, "in the interest of justice and in the name of the People of the State of New York to do [their] duty, address these issues about the credibility, corroboration and common sense and find the defendant guilty and guilty of Robbery in the First Degree for using the bottle." (Tr. 439-40.)
The Court's Jury Instructions
Justice Tejada specifically commented on summations during the jury instructions: The lawyers in their summations made arguments of what they remember from the evidence. Your memory controls. You don't have to accept the lawyer's arguments. If any argument they made is based on the evidence, . . . you may . . . decide how important it is. On the other hand, if any argument is not based on the evidence and is unreasonable, ignore it.
(Tr. 441; see also Tr. 411-12.) In addition, Justice Tejada specifically told the jury that "[t]estimony which I struck from the record . . . [is] not evidence." (Tr. 442.)
Defense Mistrial Motion
After Justice Tejada's jury instructions, outside the presence of the jury, defense counsel moved for a mistrial based on prosecutorial misconduct during summation. (Tr. 465.) Defense counsel made three arguments. (Tr. 465-68.) First, defense counsel stated that "it was improper [for the prosecutor] to argue what [Murray] was doing on the subway [at] that hour." Defense counsel reasoned that "although that argument may be leveled against a witness in the case, [he did not] believe it can be leveled against the defendant's criminal matter who has a right to be any place." (Tr. 465.) Justice Tejada found that the statement was a "fair comment given the thrust of [defense counsel's] argument concerning the victim." (Tr. 466.)
Second, defense counsel argued that the prosecutor's comment about fogging the window was "disparaging to defense counsel" and "completely improper." (Tr. 466.) Justice Tejada clarified that he sustained the objection to that comment. (Tr. 466; see also n.3 above.)
Third, defense counsel claimed that at two points during summation the prosecutor "misstated the evidence." (Tr. 466-68.) Justice Tejada found that the first contested statement was correct according to the evidence and the second statement was immaterial.*fn8 (Tr. 468.)
Verdict and Sentence
The jury found Murray guilty of first degree robbery. (Dkt. No. 6: Tr. 473-75.) On January 24, 2003, Justice Tejada sentenced Murray as a "persistent violent offender" to the minimum term of twenty years to life imprisonment. (Dkt. No. 6: 1/24/03 Sentencing Tr. 7, 11-12.)
Murray's Direct Appeal
Represented by new counsel (the Legal Aid Society), Murray's appeal to the First Department claimed that: (1) "the People failed to prove [Murray's] guilt beyond a reasonable doubt, where the police did not find the broken bottle that the complainant claimed [Murray] used to take his chain, even though the incident had just taken place and the bottle, if it existed, could only have been discarded within a two block radius" (Ex. A: Murray 1st Dep't Br. at 14-16); and (2) Murray's "due process right to a fair trial was violated by the prosecutor's summation, in which he denigrated defense counsel and [Murray] by calling the defense absurd and ridiculous, improperly vouched for the complainant's credibility, characterized [Murray] as a liar, and appealed to the jury's sympathy" (id. 17-22).
On October 7, 2004, the First Department affirmed Murray's conviction, holding in full:
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility, including the inability of the police to recover the broken bottle used in the robbery, were properly considered by the jury and there is no basis for disturbing its determinations.
Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks generally constituted fair comment on the evidence, made in response to defense arguments, and that the summation did not deprive defendant of a fair trial.
People v. Murray, 11 A.D.3d 236, 236, 782 N.Y.S.2d 273, 273 (1st Dep't 2004) (citations omitted).
On November 30, 2004, the New York Court of Appeals denied leave to appeal. People v. Murray, 3 N.Y.3d 759, 788 N.Y.S.2d 675 (2004).
Murray's Federal Habeas Corpus Petition
Murray's pro se habeas corpus petition asserts that: (1) "[t]he People failed to prove [Murray's] guilt beyond a reasonable doubt, where the police did not find the broken bottle that the complainant claimed [Murray] used to take his chain, even though the incident had just taken place and the bottle, if it existed, could only have been discarded within a two block radius" (Ex. H: Pet. ¶ 12(1) at 16); and (2) Murray's "due process right to a fair trial was violated by the prosecutors [sic] summation, in which he denigrated defense counsel and [Murray] by calling the defense absurd and ridiculous, improperly vouched for the complainant's credibility, characterized [Murray] as a liar, and appealed to the jury's sympathy" (Pet. ¶ 12(2) at 17).
I. THE AEDPA REVIEW STANDARD*fn9
Before the Court can determine whether petitioner is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(d) 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) . . . 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)(1)-(2).*fn10
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.*fn11 Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence."
Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.*fn12 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 341 F.3d at 110; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent 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 result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.*fn13
In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523.*fn14 However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn15 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.*fn16 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).*fn17 "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 541 U.S. at 663, 124 S.Ct. at 2149.*fn18
Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.*fn19
Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d at 109; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S.Ct. at 853; see also, e.g., Mosby v. Senkowski, 2006 WL 3439478 at *2.
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim -- even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S.Ct. at 853 ("Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Mosby v. Senkowski, 2006 WL 3439478 at *2; Hawkins v. Costello, 460 F.3d at 243; Lynn v. Bliden, 443 F.3d at 246; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 220; Wade v. Herbert, 391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was "'without merit.'" "Such a summary determination, even absent citation of federal case law, is a 'determination on the merits' and as such requires the deference specified by § 2254." Moreover, "[I]f any reasonable ground was available [for the state court's decision], we must assume that the [state] court relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 543 U.S. 872, 125 S.Ct. 110 (2004); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition -- the word 'denied' -- triggered AEDPA deference.").
Where the state court decision is not clear as to whether it rests on federal law or state procedural law, the Second Circuit in Jiminez v. Walker, 458 F.3d 130, 145-46 (2d Cir. 2006), instructed that the court must "examine the three clues laid out in Coleman, Quirama and Sellan" -- that is, "(1) the face of the state-court opinion, (2) whether the state court was aware of a procedural bar, and (3) the practice of state courts in similar circumstances." Jiminez v. Walker, 458 F.3d at 145 & n.16. Using these three factors, the court should classify the decision as either:
(1) fairly appearing to rest primarily on federal law or to be interwoven with federal law or
(2) fairly appearing to rest primarily on state procedural law.
Absent a clear and express statement of reliance on a state procedural bar, the Harris presumption applies to decisions in the first category and deems them to rest on the merits of the federal claim. Such decisions are not procedurally barred and must be afforded AEDPA deference as adjudications "on the merits" under 28 U.S.C. § 2254(d). The Harris presumption does not apply to decisions in the second category, which show themselves to rest on an independent state procedural bar. Nor does it apply to decisions in the first category which contain a clear statement of reliance on a state procedural bar. No AEDPA deference is due to these decisions, but the state may successfully assert that habeas relief is foreclosed provided that the independent state procedural bar is adequate to support the judgment and that neither cause and prejudice nor a fundamental miscarriage of justice is shown.
The effect of these rules is to present federal habeas courts with a binary circumstance: we either apply AEDPA deference to review a state court's disposition of a federal claim or refuse to review the claim because of a procedural bar properly raised. The middle ground . . . does not exist.
Jiminez v. Walker, 458 F.3d at 145-46 (citations & fns. omitted); accord, e.g., Hawkins v. Costello, 460 F.3d at 242 ("In Jiminez v. Walker, we recently made clear that when a state court rejects a petitioner's claim as either unpreserved or without merit, the conclusive presumption is that the adjudication rested on the merits."). Of course, "[i]f there is no [state court] adjudication on the merits [and no procedural bar], then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003); see also Jiminez v. Walker, 458 F.3d at 145 n.17. Finally, "[i]f [the] court finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless." Howard v. Walker, 406 F.3d at 122.
In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); accord, e.g., Lynn v. Bliden, 443 F.3d at 246-47; Rosa v. McCray, 396 F.3d at 220. "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)); accord, e.g., Lynn v. Bliden, 443 F.3d at 246-47.
II. MURRAY'S CLAIM THAT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT HIS FIRST DEGREE ROBBERY CONVICTION SHOULD BE DENIED
A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims*fn20
'"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 -- if the settled procedural prerequisites for such a claim have otherwise been satisfied -- the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.*fn21
The petitioner bears a very heavy burden:
[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).*fn22
The habeas court's review of the jury's findings is limited:
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).*fn23
The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n.16, 99 S.Ct. at 2792 n.16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").
B. Application of the Standard to Murray's Claim
Murray claims the evidence at trial was legally insufficient because "the police did not find the broken bottle that [Alom] claimed [Murray] used to take [Alom's] chain, even though the incident had just taken place and the bottle, if it existed, could only have been discarded within a two block radius." (Ex. H: Pet. ¶ 12(1) at 16.)
Murray supports his claim by questioning Alom's credibility. Murray states that Alom testified at the grand jury that "he saw [Murray] throw the bottle in the street," but Alom "changed his testimony [at trial] and claimed that he did not know what happened to the bottle." (Pet. ¶ 12(1) at 16.) Murray argues that Alom's trial testimony was "ridiculous" because "[i]f [Murray] did have a bottle, [Alom] -- who testified that he was only five or six steps behind [Murray] -- should have seen where and how [Murray] discarded the bottle, and if [Murray] threw it, as the prosecutor speculated, [Alom] certainly should have heard the sound of breaking glass when it lan[d]ed." (Pet. ¶ 12(1) at 16.) Murray further reasons that if the police and Alom "could find th[e] tiny [Jasmin] nameplate, then common sense clearly suggests that they should have been able to find the broken Snapple bottle, if it existed." (Pet. ¶ 12(1) at 16.)
Murray also maintains his own credibility by asserting that he "gave logical and credible testimony" and he "did not hesitate to admit the theft or to admit that he had a criminal record, that he had used an alias in the past, and that he lied to the police in this case when he claimed the chain was his." (Pet. ¶ 12(1) at 17.) Finally, Murray contends that his "testimony that he did not use a broken Snapple bottle to rob [Alom] was strongly corroborated by the failure of the police and [Alom] to recover the alleged bottle in the discrete area where this chase took place." (Pet. ¶ 12(1) at 17.)
Murray was convicted of first degree robbery under Penal Law § 160.00 and § 160.15, which provide:
Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property . . . Penal Law § 160.00.
A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he . . . : . . .
3. Uses or threatens the immediate use of a dangerous instrument . . . Penal Law § 160.15.
During his testimony, Murray admitted taking Alom's chain by physical force. (See page 5 above.) Therefore, the only contested issue was whether Murray "threaten[ed] the immediate use of a dangerous instrument." Penal Law § 160.15. Murray testified that he never held or used a bottle nor any weapon to threaten Alom. (See page 6 above.) In contrast, Alom testified that Murray held a broken Snapple bottle toward Alom's body when he took the chain. (See page 3 above.) Murray's entire sufficiency of the evidence claim goes to his own and Alom's credibility. The jury decided that issue against Murray.
On direct appeal, the First Department held that the "[i]ssues of credibility, including the inability of the police to recover the broken bottle used in the robbery, were properly considered by the jury." People v. Murray, 11 A.D.3d 236, 236, 782 N.Y.S.2d 273, 273 (1st Dep't 2004).
The law is well established that questions of witness credibility are jury questions and a federal habeas court may not reassess the jury's finding of credibility: "'[f]ederal habeas courts are not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution."' Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Peck, M.J.) (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir.1993)).*fn24
The fact that Alom was the only eyewitness and his testimony was the only evidence against Murray regarding the use of a weapon, and/or that there may have been some inconsistencies between Alom's testimony and his prior statements, does not change the result. See, e.g., Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981) (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); United States v. Danzey, 594 F.2d 905, 916 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979) ("[T]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction."); Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) ("[T]his was 'not a case in which the sole witness was uncertain of his identification . . . [n]or is it one of testimony incredible as a matter of law.'"); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . . The alleged inconsistencies in Mendez's description of Means's earring and facial hair are insufficient to undermine Mendez's testimony.").*fn25
Alom's testimony established that Murray had a broken bottle in his hand which he used threateningly to steal the chain. (See page 3 above). Alom's testimony, if believed by the jury, was more than sufficient to support Murray's conviction for first degree robbery. There is no requirement under New York law that the weapon or dangerous instrument be recovered by the police or introduced in evidence at trial. See, e.g., People v. Vincent, 231 A.D.2d 444, 445, 647 N.Y.S.2d 205, 205-06 (1st Dep't) ("[I]t was unnecessary for the police to recover the weapon in order to prove [defendant's] guilt beyond a reasonable doubt."), appeal denied, 89 N.Y.2d 931, 654 N.Y.S.2d 733 (1996); People v. Burgos, 186 A.D.2d 396, 397, 588 N.Y.S.2d 190, 190 (1st Dep't 1992) ("[C]omplainant's testimony regarding a knife was sufficient to establish the threatened use of a dangerous instrument."), appeal denied, 81 N.Y.2d 837, 595 N.Y.S.2d 736 (1993); People v. Jacobs, 137 A.D.2d 834, 834-35, 525 N.Y.S.2d 297, 298 (2nd Dep't 1988) (Possession of a dangerous instrument at the time of the robbery was "established by legally sufficient evidence" where "[t]he complainant testified that the defendant placed a razor to his throat during the course of the robbery" even though the "complainant did not describe the razor in detail."); People v. Azzara, 138 A.D.2d 495, 495, 525 N.Y.S.2d 890, 891 (2nd Dep't) ("[T]estimony of the complainant alone was sufficient" to demonstrate "that he threatened her with a handgun."), appeal denied, 71 N.Y.2d 1023, 530 N.Y.S.2d 558 (1988); see also Ledesma v. Cunningham, 03 Civ. 6322, 2004 WL 1775677 at *12 (S.D.N.Y. Aug. 10, 2004) (Habeas corpus petition alleging insufficiency of the evidence was denied because even though "no weapon or dangerous instrument was ever offered in evidence," "'the testimony of a single, uncorroborated eyewitness is generally sufficient.'"), report & rec. adopted, 2004 WL 2319326 (S.D.N.Y. Oct. 14, 2004).
Accordingly, Murray's habeas claim that the evidence was insufficient because, inter alia, the police did not find the broken bottle, should be DENIED.
III. MURRAY'S CLAIM OF PROSECUTORIAL MISCONDUCT IS BARRED BY ADEQUATE AND INDEPENDENT STATE LAW GROUNDS
Murray's second habeas claim asserts that he was deprived of his "due process right to a fair trial" because of prosecutorial misconduct during summation. (Ex. H: Pet. ¶ 12(2) at 17.) Murray claims that the prosecutor "denigrated defense counsel and [Murray] by calling the defense absurd and ridiculous, improperly vouched for [Alom's] credibility, characterized [Murray] as a liar, and appealed to the jury's sympathy." (Id.) The First Department held that "[d]efendant's challenges to the People's summation are unpreserved," but "[w]ere we to review these claims, we would find that the challenged remarks generally constituted fair comment on the evidence, made in response to defense arguments, and that the summation did not deprive defendant of a fair trial." People v. Murray, 11 A.D.3d 236, 236, 782 N.Y.S.2d 273, 273 (1st Dep't 2004).
A. Adequate and Independent State Ground Doctrine*fn26
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of 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, 109 S.Ct. 1038, 1043 (1989) (citations & internal quotations omitted).*fn27
"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state [ ] that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n.10, 109 S.Ct. at 1044 n.10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.").*fn28 Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n.10, 109 S.Ct. at 1044 n.10.
B. Murray's Claims Are Procedurally Barred
Murray raised on direct appeal the same claims of prosecutorial misconduct that he now raises on his habeas petition. (See page 14 above.) The First Department held that Murray's "challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that . . . the summation did not deprive defendant of a fair trial." (Quoted in full on page 15 above.)
State courts are not required to use any particular language: We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim -- every state appeal, every denial of state collateral review -- in order that federal courts might not be bothered with reviewing state law and the record in the case.
Coleman v. Thompson, 501 U.S. 722, 739, 111 S.Ct. 2546, 2559 (1991).
Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review,*fn29 here the First Department explicitly stated that it found Murray's claim "unpreserved," People v. Murray, 11 A.D.3d 236, 236, 782 N.Y.S.2d 273, 273 (1st Dep't 2004), and the fact that the First Department also stated the conclusion it would reach on the merits "[w]ere we to review these claims," id. at 236, 782 N.Y.S.2d at 273, does not change the result. See, e.g., Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 & n.4 (2d Cir. 2000) ("where a state court says that a claim is 'not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d 721, 724-25 & n.3 (2d Cir. 1996) (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds).*fn30 Thus, the First Department's decision here unambiguously rested on a state procedural ground.*fn31
Under New York law, "[a]s a general rule points which were not raised at trial may not be considered for the first time on appeal." People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584 (1980) (citing C.P.L. § 470.05(2)).*fn32 In order to preserve his prosecutorial misconduct claim, Murray was required to object at the time the statement was made. E.g., People v. Campbell, 813 N.Y.S.2d 313, 313 (2d Dep't 2006) ("The defendant's claim that the prosecutor's allegedly improper comments during summation require reversal is unpreserved for appellate review since the defendant failed to raise any objection to the comments at trial."); People v. Jiminez, 22 A.D.3d 423, 424, 805 N.Y.S.2d 2, 3 (1st Dep't 2005) ("Also unpreserved for failure to object are defendant's claims with respect to the prosecutor's comments."); People v. O'Flaherty, 16 A.D.3d 121, 121, 789 N.Y.S.2d 890, 890 (1st Dep't) ("By failing to object, or by making generalized objections, defendant did not preserve his present challenges to the prosecutor's summation."), appeal denied, 4 N.Y.3d 855, 797 N.Y.S.2d 429 (2005); see, e.g., Olivo v. Thornton, 2005 WL 3292542 at *9 ("In order to preserve her erroneous jury charge claim for appellate review, [petitioner] was required to object at the time of the instructions.") (citing N.Y. cases); Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *9 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.) ("In order to preserve his prosecutorial misconduct claim for appellate review, [petitioner] was required to object at trial to the prosecutor's statements during summation.") (citing N.Y. cases).*fn33
A party must make a specific protest at the time of a claimed error to preserve an issue for appellate review. E.g., People v. Hardy, 4 N.Y.3d 192, 197 n.3, 791 N.Y.S.2d 513, 517 n.3 (2005). Failure to specify the grounds for a claim of error at the time of an objection (either because an objection is general, or because it specifies a different ground than that raised on appeal) renders claims not specified unpreserved for appellate review. E.g., Harris v. Woods, 2006 WL 1140888 at *35; Olivo v. Thorton, 2005 WL 3292542 at *10 ("Under New York law, a party's failure to specify the grounds for its general objection also renders its argument unpreserved for appellate review.") (citing N.Y. cases); People v. Kello, 96 N.Y.2d 740, 743-44, 723 N.Y.S.2d 111 (2001) (Claim is unpreserved where defendant "never based his trial objection to the 911 tapes on the Confrontation Clause. Rather, the only issue raised before the trial court was the erroneous admission of the tapes under our State common-law hearsay rule. . . . The defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error which . . . differs from the trial evidence error which was preserved."); People v. Tonge, 93 N.Y.2d 838, 839-40, 688 N.Y.S.2d 88, 88 (1999) ("a party's failure to specify the basis for a general objection renders the argument unpreserved for [state appellate] review."); People v. Robinson, 88 N.Y.2d 1001, 1002, 648 N.Y.S.2d 869, 870 (1996) ("to frame and preserve a question of law reviewable by this Court, an objection or exception must be made with sufficient specificity at the trial, when the nisi prius court has an opportunity to consider and deal with the asserted error."); People v. Velasco, 77 N.Y.2d 469, 474, 568 N.Y.S.2d 721, 723 (1991); People v. Dien, 77 N.Y.2d 885, 886, 568 N.Y.S.2d 899, 900 (1991).
Here, defense counsel objected several times during the prosecutor's summation, but in all but one instance he merely said "objection" and failed to specify his grounds for objecting. (See pages 8-12 & nn.3-7 above.) Further, defense counsel objected to only one of the specific statements which Murray raises in his habeas petition: Murray claims that the prosecutor's characterization of "defense counsel's arguments as attempts to 'fog' or 'cloud' the window" was improper. (Pet. ¶ 12(2) at 18.) Defense counsel's objection to that statement was sustained. (See pages 8-9 & n.3 above.) And when defense counsel moved for a mistrial based on the "fog" argument, the trial judge reminded him that he had sustained that objection.
Both the Supreme Court and the Second Circuit have held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. 478, 485-92, 497, 106 S.Ct. 2639, 2644-48, 2650 (1986) (same); Franco v. Walsh, 73 Fed. Appx. 517, 518 (2d Cir. 2003) (finding petitioner's claim of an erroneous jury charge procedurally defaulted because "[n]o contemporaneous objection to the charge was lodged, and the Appellate Division found that the issue was therefore unpreserved."); Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citing Bossett v. Walker, 41 F.3d 825, 829 n.2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995), & Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)), cert. denied, 502 U.S. 883, 112 S.Ct. 236 (1991)); Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground).*fn34
Because there is an adequate and independent finding by the First Department that Murray procedurally defaulted on his constitutional claims concerning the prosecutor's summation, Murray would have to show in his habeas petition "cause for the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565.*fn35 Murray does not allege cause, prejudice or a fundamental miscarriage of justice. Thus Murray's claim is DENIED as procedurally barred from habeas review.*fn36
For the reasons discussed above, Murray's habeas petition is DENIED. A certificate of appealability is not issued. The Clerk of Court is directed to close this case.