The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Pro se Petitioner Victor Mance ("Mance") petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for robbery in the second degree in New York State Supreme Court, Bronx County on three grounds: (1) the trial court failed to determine if the jury employed the correct standard for reasonable doubt; (2) the trial court allowed allegedly prejudicial photographs to be admitted as evidence; and (3) he was denied effective assistance of counsel.
Judge Richard C. Casey referred the petition to Magistrate Judge Ronald L. Ellis, who issued his Report and Recommendation ("R&R") on February 27, 2006, recommending that the Court deny Mance's petition for writ of habeas corpus after finding no merit in the Mance's claims. On March 8, 2006, Mance filed timely objections to all portions of the R&R. This case was reassigned to this Court on July 12, 2007. Having reviewed Mance's submission, the Court agrees with Magistrate Judge Ellis's findings, and accordingly denies Mance's petition for a writ of habeas corpus.
I. Consideration of a Report and Recommendation
A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). When a timely objection has been made to the magistrate judge's recommendations, the court is required to review the contested portions de novo. Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).
During Mance's trial for two counts of attempted murder, robbery in the first and second degrees, and assault in the second degree, the prosecution presented evidence that Mance attacked and injured William Fleming ("Fleming"), the owner of East End Sanitation Corporation in the Bronx, and removed $2,700 to $3,000 from the company's payroll funds. Mance denied the allegations, maintaining that he went to the company to inquire about a job opportunity and was subjected to racial epithets and derogatory remarks by Fleming. It is undisputed that Mance ultimately fled the grounds and was shot several times by Fleming's son Andrew with an unregistered gun. Fleming and his son both testified, and photographs illustrating Fleming's alleged injuries were admitted as evidence to corroborate their testimony. Andrew Fleming also testified on direct and cross examination regarding an agreement with the prosecution in exchange for his testimony, under which he had been assured that he would not have a criminal record in connection with his use of an unregistered weapon to shoot Mance.
At the conclusion of the parties' cases, the trial court charged the jury that "It's up to you to decide who is and who is not an interested witness or disinterested witness and what effect, if any, that may have upon the testimony of that witness. That's solely a jury question." R&R, 11 (citing Trial Transcript, 629). Mance's counsel objected to the charge, "arguing that the general instruction did not properly inform the jury that all witnesses could be considered interested." Id. The jury found Mance not guilty on both counts of attempted murder, but returned a guilty verdict for robbery in the second degree. Before returning a verdict on the remaining counts, the jury requested a clarification of the reasonable doubt standard. The trial court ruled that the original definition had been clear, and reread the original instruction. Mance was then acquitted on the remaining counts.
III. Habeas Corpus Standard of Review
The Court may grant a writ of habeas corpus, pursuant to 28 U.S.C. § 2254(d), if one of two conditions is satisfied: "the state court adjudication (1) resulted in a decision that was contrary to clearly established federal law, as determined by the Supreme Court of the United States, or (2) involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362, 412 (2000). The Court will only review state court evidentiary errors for "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In addition, the Court may not consider a habeas petition unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A). In the interests of comity and federalism, the petitioner must "first have given the state courts a fair opportunity to pass upon his federalism claim." Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982). When reviewing a mixed habeas petition with exhausted and unexhausted claims, the Court may deny all claims if they have no merit. See 28 U.S.C. § 2254(b)(2).
IV. The Reasonable Doubt Instruction
As an initial matter, it is undisputed that Mance's challenge based on the trial court's failure to determine if the jury applied the proper reasonable doubt standard was not exhausted in state court. Mance requests a stay, pursuant to Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir. 2001), in order to exhaust his claim. While Mance asserts that his claim is potentially meritorious, he has made no such showing. The Court "would abuse its discretion if it were to grant [Mance] a stay when his unexhausted claims are plainly meritless." Rhines v. Weber, 544 U.S. 269 (2005). Accordingly, Mance's request for a stay is denied.
Mance argues that the jury did not comprehend the original reasonable doubt instruction, as shown by its request for a supplemental definition of reasonable doubt. He does not contest that the original instruction was clear and understandable. The trial court has discretion in determining an appropriate answer to a jury question, so long as the answer does not deprive the defendant of a constitutional right. See McShall v. Henderson, 526 F. Supp. 158, 161 (S.D.N.Y. 1981). Moreover, "a trial court's failure to define reasonable doubt cannot, standing alone, constitute reversible error." United States v. Desimone, 119 F.3d 217, 227 (2d. Cir. 1997). Mance's assertions fail to demonstrate a "substantial or injurious effect" on the jury's verdict, Brecht, 507 U.S. at 637, or that the alleged error "so infected the entire proceeding as to rise to the level of a due process ...