The opinion of the court was delivered by: William M. Skretny United States District Judge
On March 2, 2005, Errol V. Weathers ("Weathers" or "petitioner") filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on April 3, 2000, in Supreme Court, Erie County, of one count of murder in the second degree and two counts of robbery in the first degree.
The conviction at issue stems from the shooting death and robbery of James Reid ("Reid" or "the victim"), who was also known as the "numbers man" because he ran an illegal lottery operation. (T.135-36.)*fn1 Reid ran his operation for approximately twenty years, and typically collected two hundred and fifty to five hundred dollars daily. (T. 135-41, 151-52.) For at least ten years, Weathers' grandmother placed daily bets with Reid (except on Christmas), and Weathers sometimes saw Reid at his grandmother's house collecting money. (T. 138-40.)
An eyewitness to Reid's shooting, Davaughn Holmes, testified at trial. On February 7, 1999, Holmes stopped his bicycle on Oakmont Avenue to talk to a friend who was in a car. (T. 167-68, 171.) While stopped, he saw two men "tussling" in the street near a "Jimmy" truck. (T. 168-172.) He heard a gunshot and saw one man make a grabbing motion and fall to the ground. (T. 172-73.) The other man then ran within fifty feet of Holmes, and Holmes saw that it was Weathers, whom he had known for about a year. (T. 173-180.)
An autopsy revealed that Reid died of a .25 caliber bullet wound that penetrated his lung, heart, liver and diaphragm. (T. 506, 523.) Both Holmes and Weathers' former girlfriend, Rossalyn Pruitt, testified, respectively, to having seen petitioner with a .25 caliber gun / small gun at some time within the four month period prior to Reid's shooting. (T. 187-88, 191, 274.)
Pruitt testified that she was with Weathers on the day of Reid's shooting from approximately 3:00 p.m. to 4:30 p.m., at which time he left her home. (T. 249-50.) The shooting occurred at approximately 5:00 p.m. (T. 325-26, 341.) Pruitt again saw Weathers sometime between 6:00 and 6:30 p.m., after he called and asked her to meet him on a street corner. (T. 251-52.) Weathers told her he had robbed and shot someone. (T. 253, 255.) Twice during that evening, Weathers also told Pruitt that he had to get rid of something, but did not say what. (T. 258, 264.)
After meeting on the street corner, Weathers and Pruitt first walked to an acquaintance's apartment because Weathers did not want to be seen outside. (T. 253-54.) At the apartment, Weathers purchased a bottle of brandy with a twenty dollar bill he took from a bundle of cash. (T. 314). Later that evening, Weathers hired a cab to transport him and Pruitt to a hotel and he provided her with one hundred dollars in cash to pay for a room. (T. 261-63.) Weathers was not employed at the time and Pruitt had never known him to work. (T. 256.) When Reid's personal property was collected by police, one hundred, ninety-seven dollars was catalogued-less than the two hundred and fifty to five hundred dollars he typically collected daily. (T. 401-402, 140-41.)
A jury found Weathers guilty of murder in the second degree and two counts of robbery in the first degree. Weathers was acquitted on the fourth count against him, criminal possession of a weapon. A judgment of conviction was entered on April 3, 2000, and Weathers was sentenced as a second felony offender.
B. The Direct Appeal and Collateral Motions
On May 13, 2000, Weathers' appellate counsel timely appealed to the New York State Supreme Court, Appellate Division, Fourth Department ("Appellate Division"), arguing that: (1) the trial court erred in permitting Holmes' and Pruitt's testimony about Weathers' prior possession of a handgun and in failing to give a limiting instruction; (2) the evidence is insufficient to support the conviction; (3) the verdict is against the weight of the evidence; (4) Weathers was denied effective assistance of trial counsel; (5) Weathers was improperly adjudicated a second felony offender; and (6) the sentences are unduly harsh and excessive. (Docket No. 6, Ex. B.) The Appellate Division unanimously affirmed Weathers' conviction, finding that the contentions of error in permitting the prior possession of a handgun testimony and in failing to dismiss for insufficient evidence were unpreserved for review, and the remaining contentions lacked merit.*fn2 People v. Weathers, 299 A.D.2d 964 (4th Dep't 2002). Appellate counsel sought leave to appeal to the New York State Court of Appeals, urging that the trial court erred in receiving Holmes' and Pruitt's testimony about the prior gun possession, the Appellate Division erred in concluding this issue was unpreserved, and Weathers did not receive the effective assistance of counsel at trial. (Docket No. 6, Ex. C.) Leave to appeal was denied on January 30, 2003. People v. Weathers, 99 N.Y.2d 586 (2003).
On three occasions, Weathers moved pro se to vacate the judgment pursuant to C.P.L. § 440.10. In his first motion, dated March 15, 2002, Weathers argued that (1) the evidence was insufficient to support his conviction, and (2) the guilty verdicts of robbery in the first degree are repugnant in light of his acquittal of criminal possession of a weapon. (State Court Records, Vol. 2 of 3.) The trial court denied the motion on May 28, 2002, on the ground that the issues raised could be reviewed on the then-pending direct appeal.*fn3 (Id.)
The second motion, dated June 3, 2003, attacked the validity of the conviction on the grounds that (1) the prosecutor unconstitutionally challenged prospective jurors based solely on their race and (2) Weathers' trial counsel was ineffective. Again, the trial court denied the motion on procedural grounds, concluding that each issue either had been raised and decided on direct appeal, C.P.L. § 440.10(2)(a), or Weathers had unjustifiably failed to raise it on appeal even though there were sufficient facts appearing on the record to do so, C.P.L. § 440.10(2)(c).*fn4 (State Court Records, Vol. 2, Memorandum and Order dated Sept. 8, 2003.)
Weathers' third motion, dated August 28, 2004, urged that he possessed new evidence showing prosecutorial misconduct and that he received ineffective assistance of trial counsel. (State Court Records, Vol. 2.) The trial court denied the motion in all respects on December 22, 2004, deciding the prosecutorial misconduct claim and two grounds for the ineffective assistance claim (the failure to request a Sandoval hearing and failure to adduce certain eyewitness evidence) on the merits. The remainder of the ineffective assistance claim was rejected on procedural grounds, pursuant to C.P.L. § 440.10(2)(a). (Id.)
In each instance, Weathers sought leave to appeal the denial of his 440.10 motions, and in each instance, permission to appeal was denied. (Petition at 4-6; Docket No. 6, Ex. D.)
This habeas petition followed in which Weathers claims the following grounds for relief: (1) the testimony of Holmes and Pruitt regarding his alleged possession of a .25 caliber handgun deprived him of a fair trial; (2) the evidence is insufficient to support a guilty verdict; and (3) trial counsel was unconstitutionally ineffective. The petition was timely filed on March 2, 2005. By a letter to the Court, dated April 7, 2005, Weathers supplemented his petition by alleging that his appellate counsel was ineffective for failing to challenge the constitutionality of the trial court's charge to the jury on the felony murder count. (Docket No. 4.)
Respondent argues, and this Court agrees, that Weathers' supplemental claim of ineffective assistance of appellate counsel has not been exhausted.
It is fundamental that a state prisoner who claims that he is incarcerated in violation of his federally protected rights must first exhaust all the state court remedies available to him. 28 U.S.C. § 2254(b)(1)(A); see Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed. 2d 64 (2004); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed. 2d 438 (1971). The Supreme Court has made clear that "the exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed. 2d 379 (1982).
To fulfill the exhaustion requirement, a habeas petitioner must have fairly presented the substance of all his constitutional claims to the state court in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Picard, 404 U.S. 275-76; Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed. 2d 865 (1995). It is clear from the record in this case that Weathers never raised an ineffective assistance of appellate counsel claim in the state courts. Moreover, Weathers is not procedurally barred from exhausting this claim because he could still raise it in an application to the Appellate Division for a writ of error coram nobis. Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (quoting People v. Gordon, 183 A.D. 2d 915 (2d Dep't 1992) (in a criminal action, writ of error coram nobis lies in the state appellate court to vacate an order determining an appeal on the ground that the defendant was deprived of the effective assistance of appellate counsel).
In Rose v. Lundy, the Supreme Court adopted a "total exhaustion" rule for habeas petitions by holding that a "mixed petition"-that is, one containing both exhausted and unexhausted claims-should be dismissed as a whole, "leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." 455 U.S. at 510. However, in 1996, Congress modified this "exhaustion rule" by the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which amended 28 U.S.C. § 2254(b)(2) to read as follows: "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 to the courts of the State." (emphasis supplied). In other words, the failure to exhaust does not prevent this Court from reaching the merits of Weathers petition if all claims, exhausted and unexhausted, will be denied.
The Second Circuit has not yet articulated a standard for determining when unexhausted claims should be denied on the merits, but the majority of district courts in this Circuit have embraced a "patently frivolous" test for their dismissal. Naranjo v. Filion, 02 Civ. 5449, 2003 U.S. Dist. LEXIS 6287, at *30 (S.D.N.Y. Apr. 16, 2003) (citing Hammock v. Walker, 224 F. Supp. 2d 544, 549 (W.D.N.Y. 2002); Cruz v. Artuz, 97-CV-2508, 2002 U.S. Dist. LEXIS 1142, at *25 (E.D.N.Y. June 24, 2002), Pacheco v. Artuz, 193 F. Supp. 2d 756, 761 (S.D.N.Y. 2002); Rowe v. New York, 99 Civ. 12281, 2002 U.S. Dist. LEXIS 1142, at *14-15 (S.D.N.Y. Jan. 25, 2002); Love v. Kuhlman, 99 Civ. 11063, 2001 U.S. Dist. LEXIS 22572, at * (S.D.N.Y. Dec. 12, 2001); Shaw v. Miller, 99 CV 5020, 2002 U.S. Dist. LEXIS 8715, at * n.2 (E.D.N.Y. June 26, 2001); Santana v. Artuz, 97 Civ. 3387, 2001 U.S. Dist. LEXIS 5746, at * (S.D. N.Y. May 1, 2001)).
Upon a review of the record, the Court finds that Weathers' ineffective assistance of appellate counsel claim is patently frivolous. To prove a claim of ineffective assistance of appellate counsel, Weathers must show that: 1) his lawyer's performance fell below an objective standard of reasonableness; and 2) but for the errors of his lawyer, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (Strickland's two-prong test for ineffective assistance of trial counsel applies equally to claims of ineffective assistance of appellate counsel on a defendant's first appeal as of right) (citing Evitts v. Lucey, 469 U.S. 387, 396-97, 83 L.Ed. 2d 821, 105 S.Ct. 830 (1985)). Generally, a habeas petitioner will be able to demonstrate that his attorney's decisions were objectively unreasonable only if "there [was] no . . . tactical justification for the course taken." United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (per curium).
Weathers' ineffective assistance of appellate counsel claim is based solely on the failure to challenge on appeal a purportedly erroneous jury instruction on the felony murder count. Weathers' letter to this Court does not specify the nature of the alleged error.
The record in this case reveals that trial counsel's sole pre-charge request relative to jury instructions involved the "identification issue" relating to the Holmes and Pruitt prior weapon possession testimony. (T. 32-40, 554, 618-19.) Trial counsel did not object to the court's instructions after they were given, even though there was no limiting instruction regarding the use of the weapon possession testimony for identification only. (T. 657.) In short, the sole issue arguably preserved at trial for appellate review was that the court should have given a limiting instruction on the use of the prior weapon possession testimony. To the extent that Weathers' alleges that appellate counsel failed to raise this particular issue, he simply is ...