The opinion of the court was delivered by: Gary L. Sharpe United States District Judge
MEMORANDUM-DECISION AND ORDER
A. State Court Proceedings
According to the testimony adduced at trial, on September 13, 1994, Paulette Dempster and her son, Christopher, had dinner at the home of her friend and neighbor, Brandie Caldwell in Amsterdam, New York. See Transcript of Trial of Charles W. Toland, Jr. (7/23/2001) ("Trial Tr.") at pp. 557-58. Dempster thereafter asked Caldwell if she would baby-sit Christopher so that Dempster could drive to Schenectady with petitioner, pro se Charles W. Toland, Jr. Id. at p. 558. Toland, who was driving a black Escort that had a loud muffler, subsequently drove to Caldwell's apartment to pick up Dempster, id. at p. 559, who at the time was wearing a white t-shirt and navy blue pants. Id. at p. 563. The two left Caldwell's home and briefly returned at approximately 8:30 p.m. to give Caldwell some milk for the child. Id. at pp. 562-64. Caldwell eventually fell asleep waiting for Dempster to return and did not awaken until 7:30 a.m. the following morning. Id. at pp. 564-65. Soon thereafter, Caldwell called Christopher's grandmother, L. Venegas, who eventually came to pick up Dempster's child so that Caldwell could go to work. Id. at p. 565.
The following evening, when Dempster still had not returned, her sister, Nicole, contacted law enforcement agents and requested that an officer come to her home so that she could fill out a missing person's report relating to Paulette. Id. at p. 594. Around that same time, Nicole contacted Toland and asked him if he knew anything about her sister's whereabouts, to which Toland responded that he had left Dempster in Schenectady with some "friends." Id. at p. 595. When Nicole pressed Toland for more specific information about with whom he left Dempster, Toland just provided her with vague descriptions of the individuals whom he claims Dempster was with at the time he left her. Id.
The record further reflects that on September 16, 1994, Patrolman Patrick C. Miller of the Amsterdam police department was assigned to investigate Dempster's disappearance. Id. at p. 637. Part of that assignment included locating and questioning Toland about Dempster. Id. Officer Miller located Toland at his home, who then agreed to voluntarily accompany the officer to the police station and provide a written statement relating to his interactions with Dempster just prior to her disappearance. Id. at pp. 638-39. In his statement, which Toland gave after being advised of his Miranda rights,*fn1 id. at p. 643, he admitted that he was with Dempster and Caldwell on the night of September 13, 1994, and explained that when Caldwell informed him that she "was looking for a date," Toland advised her that he knew a friend named "José" who lived in Schenectady. Id. Toland informed Caldwell that he was going to Schenectady and that when he arrived there he would invite José to return to Amsterdam with Toland. Id. Toland stated that Dempster expressed interest in accompanying him to Schenectady, and that while the two were driving to that location, she asked him if he could get some "weed." Id. Toland declared that before he was able to secure marijuana for Dempster after arriving in Schenectady, he met a friend with whom he began having a conversation. Id. Dempster became impatient as that conversation continued, and soon "started to nag" Toland about returning to Amsterdam. Id. Around that time, a silver-blue Chrysler New Yorker drove up and Dempster starting to talk with the driver, whom Toland described as a heavy black man, at least six feet, four inches tall, whom she had met previously at a local club. Id. at 643-44. Soon thereafter, Dempster purportedly walked over to Toland, exclaimed "fuck you," and directed Toland to call Caldwell and advise her that Dempster was "on my way." Id. She then retrieved her purse from Toland's car and left with the man who was driving the New Yorker, together with two other individuals who had accompanied that man. Id.
The record further reflects that about a year later, on November 8, 1995, Air National Guardsman Ralph Fiorillo was looking for signs of deer in the woods surrounding his parents' Amsterdam home. Id. at pp. 742-43. Fiorillo was following a deer trail he had discovered when he came upon what appeared to be a pair of shoes. Id. at p. 743. Upon closer examination, he also noticed a ladies' pocketbook, a skeleton and some worn clothing in the area. Id. at pp. 743-44. Fiorillo ran back to his car, drove to his mother's house and told her what he had found. Id. at pp. 744-45. Soon thereafter, she called the police, who arrived at the scene minutes after the call. Id. at p. 745.
Comparison of the teeth located in the body found at that scene and dental x-rays that had been taken of Dempster in 1991 established that the decomposed body found by Fiorillo was that of Paulette Dempster. Id. at pp. 773-774, 982-84.*fn2 Dempster's body was subsequently examined by Dr. Barbara Wolf, a forensic pathologist. Based on the results of her autopsy, together with other investigative work conducted by Dr. Wolf including her review of photographs at the scene, Dempster's medical records and police reports, Dr. Wolf concluded that the cause of Dempster's death was homicide, most probably as a result of asphyxia. Id. at pp. 1007-08.*fn3
The evidence at trial also revealed that when the police examined the crime scene near Dempster's body, law enforcement agents discovered a small flashlight. Id. at p. 876. That flashlight, which contained a suction cup on one end, was identified at trial as the flashlight which Toland had typically attached to the windshield of his car. Id. at pp. 780-781, 814-15, 858-59, 912.
While in prison after an unrelated conviction, Toland became acquainted with another inmate at the Sullivan correctional facility, Francesco Fernandez. Id. at pp. 1163-64. Fernandez testified at trial that during one conversation between the two men, Toland asked Fernandez if he had "read about the murder of the Dempster girl." Id. at p. 1165. Fernandez admitted that he had not, and then jokingly asked Toland if he was involved in that homicide. Id. Toland then boasted: "Yeah, I killed the bitch." Id. at p. 1166. He then remarked that he "should have put Dempster in the dumpster" and began laughing. Id. During a later conversation between the two, Toland explained to Fernandez that Dempster had owed Toland money for drugs, and when she was unable to pay, he asked her for sex as a form of payment. Id. She refused his request and the two began to fight. Id. During that fight, Toland initially attempted to strangle her with a "scarf," however she managed to get that piece of cloth off of her neck. Id. Toland advised Fernandez that he then began choking her with his hands, and when she died, "he got scared and left." Id.*fn4
As a result of the foregoing, on January 18, 2001, a Montgomery County grand jury returned a two count indictment against Toland. The first count in that accusatory instrument alleged that Toland intentionally killed Dempster, in violation of N.Y. Penal L. § 125.25(1), while the second count charged Toland with causing her death "under circumstances evincing a depraved indifference to human life," contrary to N.Y. Penal L. § 125.25(2). See Indictment No. 014-2001 ("Indictment"). Toland's jury trial on those charges commenced in Montgomery County Court on June 23, 2001 with Montgomery County Court Judge Felix J. Catena presiding. At the conclusion of that trial, Toland was found guilty of the intentional murder of Dempster. See Trial Tr. at p. 1662.
On September 25, 2001, six days prior to sentencing, Toland, acting pro se, mailed a motion he drafted pursuant to New York's Criminal Procedure Law ("CPL") § 330.30 ("CPL § 330 Motion") to the court and the prosecutor in which he sought an order vacating his conviction based upon his claim of newly discovered evidence. See Record on Appeal ("Record") at pp. R118-78. Toland included several affidavits along with that motion. In one affidavit dated August 17, 2001, Robert Ward, an inmate at the Sullivan correctional facility, stated that he knew both Toland (by the nickname "Bugsy,") as well as Fernandez, whom Ward knew by the nickname "Life." Id. at p. R145. Ward described Fernandez as a "jailhouse lawyer" who had helped Ward litigate a federal habeas petition he was pursuing. Id. In another affidavit, dated August 24, 2001, Balau Lewis, also an inmate at the Sullivan Correctional facility, stated that he knew Toland and Fernandez in 1997, and that Balau was aware of the fact that Fernandez frequently helped inmates with their legal work. See id. at p. R153. At one point, Balau introduced Fernandez to Toland so that Fernandez could help Toland with legal matters on which he was working. Id. Roger Simmonds also provided Toland with an affidavit in conjunction with the CPL § 330 Motion in which Simmonds declared that on many occasions, he had seen Fernandez "look over" Toland's legal papers. Id. at p. R148. Simmonds further declared in his affidavit that one day, he saw a corrections officer packing up Fernandez's belongings. Id. The officer told Simmonds that Fernandez had "signed into" protective custody, and that Fernandez would be taking with him the legal work of several inmates, including the legal work of Toland. Id.
Toland argued in his CPL § 330 Motion that Fernandez had become aware of the strip of cloth found near the body of Dempster, which Fernandez apparently referred to as a "scarf" in his trial testimony, in the course of Fernandez's review of Toland's legal materials. Record at p. R124. Toland additionally asserted that Fernandez testified falsely at trial when he claimed that he had never discussed or reviewed any of Toland's legal materials while at the Sullivan correctional facility. Id. Toland further argued that he was unaware that Fernandez -- whom Toland knew only by the nickname "Life" -- would testify against Toland until Fernandez appeared at trial, and that if Toland knew that Fernandez had planned on claiming at trial that he had never performed legal work for Toland, he could have impeached that testimony by calling the individuals who had provided affidavits in support of his CPL 330 Motion. See Record at pp. R126-33.
The County Court did not rule on Toland's CPL § 330 Motion at the time of sentencing, and instead converted that application to a CPL § 440.10 motion. See Transcript of Sentencing of Charles W. Toland, Jr. (10/1/01) at pp. 8-10. Judge Catena reserved on that application and then sentenced Toland to a term of imprisonment of twenty-five years to life on his second degree murder conviction. Id. at p. 32.
In a Decision and Order dated December 21, 2001, Judge Catena denied Toland's CPL § 330 Motion/CPL § 440.10 Motion. See Record at pp. R115-17 ("December, 2001 Order"). In so ruling, the court found that Toland had failed to establish that he could not have produced the evidence which he claimed he would have used to impeach Fernandez if he had exercised due diligence. Id. Judge Catena also determined that Toland had not established the other claim he had asserted in that application, which alleged that the prosecution suborned perjurious testimony at Toland's trial. Id.
On or about December 9, 2002, petitioner filed a motion pursuant to CPL § 440.10 to vacate the judgment of conviction. See Dkt. No. 21, Exh. C ("December, 2002 CPL Motion"). In that application, Toland principally claimed that trial counsel rendered ineffective assistance. Id. In support of that assertion, Toland argued that counsel was ineffective for failing to: i) protect Toland's right to appear before the grand jury; ii) adequately impeach Fernandez at trial; iii) request a missing witness charge regarding potential witnesses who did not testify for the prosecution; and iv) use exculpatory evidence in counsel's possession. See id. In a response dated December 17, 2002, the Montgomery County District Attorney argued that Toland's December, 2002 CPL Motion should be denied because his appeal before the Appellate Division was still pending. See Dkt. No. 21 at Exh. D (citing CPL § 440.10(2)(b)).*fn5
Judge Catena denied Toland's December, 2002 CPL Motion in the court's Decision and Order dated December 19, 2002. See Dkt. No. 21 at Exh. E ("December, 2002 Order"). Toland's counsel sought leave to appeal that order from the New York State Supreme Court Appellate Division, Third Department, which granted that application and consolidated that appeal, as well as his appeal of the denial of the converted CPL § 330 Motion, with the direct appeal of his criminal conviction. See People v. Toland, No. 14479 (3d Dept. Mar. 13, 2003) (reproduced in Record at p. R257).
On appeal, counsel raised the following five appellate claims: i) the evidence adduced at trial was insufficient to establish Toland's guilt of second degree murder; ii) the testimony of Francesco Fernandez was incredible as a matter of law; iii) the denial of Toland's December, 2002 CPL Motion without a hearing was error; iv) the trial court erred by converting Toland's CPL § 330 Motion into a § 440.10 application and denying same without a hearing; and v) Judge Catena erred in denying a request for a mistrial filed by defense counsel. See Appellate Brief of Teresa C. Mulliken, Esq. (reproduced at Dkt. No. 21, Exh. F) ("App. Br."). The Montgomery County District Attorney opposed that appeal, and in a written decision dated December 18, 2003, the Third Department denied Toland's direct appeal as well as his appeals relating to the CPL § 330 Motion and the December, 2002 Motion. See People v. Toland, 2 A.D.3d 1053 (3d Dept. 2003). By order dated May 21, 2004, Toland's application for leave to appeal that decision to New York's Court of Appeals was denied. People v. Toland, 2 N.Y.3d 808 (2004).
Toland filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in this District on July 6, 2004. Dkt. No. 1. In his pleading, Toland alleges that: i) he was wrongfully denied his right to appear before the grand jury that indicted him; ii) he received the ineffective assistance of counsel during the criminal proceedings below; iii) the evidence adduced at trial was insufficient to support the jury's verdict; iv) the trial court erred in denying Toland's converted CPL § 330 Motion as well as his December, 2002 CPL Motion without a hearing; v) the testimony of Fernandez was incredible as a matter of law; vi) the County Court erred in allowing portions of an audio tape recording into evidence; vii) Judge Catena wrongfully denied defense counsel's motion for a mistrial; viii) the trial court abused its discretion when it converted Toland's CPL 330 Motion into CPL § 440.10 motion; ix) the prosecutor engaged in misconduct in the criminal matter below; x) the jury charge delivered by Judge Catena was constitutionally infirm; and xi) the prosecution improperly bolstered the testimony of Fernandez in counsel's summation. See Petition at ¶ 12.*fn6
After reviewing the petition, Toland's in forma pauperis application and the file in this matter, United States Magistrate Judge David E. Peebles granted Toland's in forma pauperis application and directed the respondent to file a response to Toland's petition. Dkt. No. 3. Before that response was filed, Toland filed a memorandum of law in support of his habeas application. See Dkt. No. 10 ("Supporting Mem."). The Office of the Attorney General for the State of New York, acting on respondent's behalf, thereafter filed a memorandum of law in opposition to Toland's application ("Resp. Mem."). See Dkt. No. 21.*fn7 On June 10, 2005, Toland filed, with the Court's permission, a "traverse" in further support of his application for federal habeas intervention. Dkt. No. 30 ("Traverse"). This matter is now currently before this Court for disposition.
A. Failure to Testify Before the Grand Jury
Toland initially contends that he was wrongfully denied his right to appear before the grand jury in the criminal matter below. See Petition at ¶ 12(1). Petitioner also argues that the grand jury wrongfully returned a sealed indictment against him despite the fact that his "whereabouts ... were well known to the People." Id.
Unfortunately for Toland, a criminal defendant's right to testify before the grand jury is not a constitutional right; rather, it is a statutory right created by New York State. See CPL § 190.50(5).*fn8 A claim arising out of a defendant's failure to testify before a grand jury therefore does not afford a petitioner a basis for federal habeas relief. Van Stuyvesant v. Conway, No. 03 CIV. 3856, 2007 WL 2584775, at *25 (S.D.N.Y. Sept. 7, 2007) (citation omitted); Montalvo v. Annetts, No. 02 CIV.1056, 2003 WL 22962504, at *24 (S.D.N.Y. Dec. 17, 2003) (collecting cases); McMoore v. Miller, No. 98-CV-1915, 2002 WL 975305, at *8 (N.D.N.Y. Apr. 19, 2002) (Sharpe, M.J.) (citations omitted), adopted, McMoore v. Miller, No. 98-CV-1915 (N.D.N.Y. May 16, 2002) (Kahn, J.) (Dkt. No. 23), appeal dismissed, McMoore v. Miller, No. 02-2414 (2d Cir. Jan. 23, 2003) (No. 98-CV-0607, Dkt. No. 35); see also Kohler v. Kelly, 890 F.Supp. 207, 213 (W.D.N.Y.1994) (citations omitted), aff'd, 58 F.3d 58 (2d Cir. 1995). Therefore, Toland is not entitled to habeas relief on this ground.
Next, the Court notes that in opposing Toland's habeas application, respondent argues that Toland did not exhaust several of the grounds he has raised in the present petition. Specifically, respondent contends that Toland failed to exhaust the following claims: a) the County Court erred in allowing portions of an audio tape recording into evidence; b) the prosecutor engaged in misconduct; c) the jury charge was constitutionally deficient; and d) several of the theories asserted by Toland in support of his ineffective assistance claim. See Resp. Mem. at p. 20.
It is well settled that a federal district court "'may not grant the habeas petition of a state prisoner unless it appears that the applicant has exhausted the remedies available in the courts of the State ....'" Shabazz v. Artuz, 336 F.3d 154,160 (2d Cir. 2003)) (quoting Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001)) (other citation omitted); see also Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). This is because "[s]tate courts, like federal courts, are obliged to enforce federal law." Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir.) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)), cert denied sub nom., Galdamez v. Fischer, 544 U.S. 1025 (2005).*fn9
This Court finds that petitioner has exhausted all of the claims he has raised in his petition with the exception of: i) certain theories he now asserts in support of his ineffective assistance claim; and ii) his claim that Judge Catena committed error when he refused to "hold a hearing" to determine if Fernandez was an agent of the police. For example, although respondent argues that Toland's claim that Judge Catena erred in allowing portions of an audio tape recording into evidence is unexhausted, see Resp. Mem. at p. 20, that claim was asserted by appellate counsel in her brief. See App. Br. at pp. 27-34. Additionally, Toland raised his claim that the prosecution knowingly suborned perjurious testimony in his CPL § 330 Motion. See Record at pp. R137-38. A fair reading of the appellate brief filed on behalf of Toland reveals that same also argued that the jury charge delivered by Judge Catena was constitutionally deficient. See App. Br. at pp. 58-59.
Turning to Toland's habeas claim alleging ineffective assistance of counsel, this Court's review of Toland's December, 2002 CPL Motion reveals that in that application, he claimed that his trial attorney: 1) failed to call witnesses favorable to Toland's defense; 2) did not use exculpatory evidence in counsel's possession in defense of the charges against Toland; 3) knew that another individual was aware of Dempster's death more than a year before her body was discovered but failed to use this information at trial; and 4) did not utilize police reports in counsel's possession which tended to exculpate Toland. See id. Those theories are therefore exhausted for purposes of the present habeas application.
However, this Court agrees with respondent that the following theories relating to petitioner's claim of ineffective assistance of counsel have not been raised by Toland in the state courts: 1) trial counsel failed to object to the prosecutor's inaccurate statement of relevant law made during the course of the County Court's Sandoval*fn10 hearing; 2) defense counsel failed to object to the fact that the copy of the parole file relating to Fernandez that was provided to defense counsel by the prosecution was incomplete; 3) trial counsel wrongfully failed to move to dismiss the Indictment because it contained inconsistent charges; 4) defense counsel erred in failing to request that the jury be instructed on lesser included offenses; and 5) trial counsel failed to impeach Dr. Wolf concerning prior testimony she had provided relating to the cause of Dempster's death. See Petition at ¶ 12(2). Moreover, Toland does not appear to have ever asserted in the state courts his habeas claim that the County Court improperly failed to conduct a hearing to ascertain whether Fernandez was an agent of the police (see Petition at ¶ 12(10)).
When a claim has never been presented to the state courts, a federal court may find that there is an absence of available state remedies "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio, 269 F.3d at 90 (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)); Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000).*fn11 Therefore, this Court must determine whether it would be futile for Toland to present the above-mentioned claims to the state courts.
Toland cannot now pursue these theories through another appeal to the Third Department because a defendant is "entitled to one (and only one) appeal to the Appellate Division." See Aparicio, 269 F.3d at 91 (citations omitted). Moreover, Toland could not now properly raise these theories in another CPL 440 motion filed with the County Court because he could have raised these arguments in the December, 2002 CPL motion he previously filed with that court.*fn12 E.g. Williams v. Burge, No. 02-CV-0695,2005 WL 2179423, at *14 (N.D.N.Y. Aug. 15, 2005) (Peebles, M.J.) (citations omitted), adopted, Williams v. Burge, No. 02-CV-0695 (Dkt. No. 35) (N.D.N.Y. Dec. 7, 2005) (Hurd, J.). Therefore, these claims are "deemed exhausted" for purposes of petitioner's habeas application. St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004), cert. denied sub nom., 543 U.S. 1058 (2005); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). Although these claims are "deemed exhausted," they are procedurally defaulted. See Aparicio, 269 F.3d at 90 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)); see also Spence, 219 F.3d at 170.
Federal courts may not review the substance of procedurally forfeited claims unless the petitioner demonstrates both good cause for the procedural default and actual prejudice resulting from the alleged violation of federal law. Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005); Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000); Livingston v. Herbert, No. 00-CV-1698, 2002 WL 59383, at *2 (N.D.N.Y. Jan. 3, 2002) (Homer, M.J.), adopted, No. 00-CV-1698 (Dkt. No. 20) (N.D.N.Y. Jan. 24, 2002) (Kahn, J.), appeal dismissed, No. 02-2083, slip op. at 1 (2d Cir. Aug. 28, 2002) (unpublished).
To establish cause in this context, a petitioner must show that "'some objective external factor impeded his ability to comply'" with the relevant procedural rule. Pinero v. Greiner, No. 01 CIV. 9991, 2007 WL 2712496, at *21 (S.D.N.Y. Sept. 17, 2007) (quoting Restrepo v. Kelly, 178 F.3d 634, 638-39 (2d Cir. 1999)); see also Wilson v. Supt., Attica Corr. Facility, No. 00-CV-0767, 2003 WL 22765351, at *3 (N.D.N.Y. Nov. 24, 2003) (Sharpe, J.) (citing Coleman, 501 U.S. at 753). Examples of such "external factors" include "interference by officials," the ineffective assistance of counsel, or proof that "the factual or legal basis for a claim was not reasonably available" at the time of petitioner's trial or on direct appeal. Wilson, 2003 WL 22765351, at *3 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)); see Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citing Murray); United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1993).
Toland does not attempt to establish legal cause for his default in this action. See Petition; Traverse. Since he has not alleged -- must less established -- cause for his failure to fully exhaust these theories,*fn13 this Court need not decide whether he suffered prejudice, because federal habeas relief is unavailable as to procedurally barred claims under this limited exception permitting review of procedurally forfeited claims unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); D'Alessandro v. Fischer, No. 01 CIV. 2551, 2005 WL 3159674, at *9 n.10 (S.D.N.Y. Nov. 28, 2005) ("[a]s Petitioner has not shown cause for his default, this Court need not even reach the question of whether Petitioner can show prejudice") (citing Stepney); Moore v. Greiner, No. 02 CIV.6122, 2005 WL 2665667, at *12 (S.D.N.Y. Oct. 19, 2005) (citing Stepney); Lutes v. Ricks, No. 02-CV-1043, 2005 WL 2180467, at *9 (N.D.N.Y. Sept. 9, 2005) (McAvoy, S.J.) (citing Stepney) (other citation omitted); Pou v. Keane, 977 F.Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).
This Court's finding that Toland has failed to establish cause for his default does not necessarily preclude this Court from considering his procedurally forfeited claims, however, because, as noted above, a federal court may nonetheless properly invoke habeas review as to such claims if the court is convinced of the petitioner's actual innocence. On this question, however, the Second Circuit has noted that:
[T]he fundamental miscarriage of justice exception is "extremely rare" and should be applied only in "the extraordinary cases." Schlup v. Delo, 513 U.S. 298, 321-22 (1995); .... ""[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 ... (1998). "To establish actual innocence, [a] petitioner must demonstrate that, 'in light of all the evidence,' 'it is more likely than not that no reasonable juror would have convicted him.'" Id. (citing Schlup, 513 U.S. [at] 327-28 ... (some internal citations and quotation marks omitted).
Sweet v. Bennett, 353 F.3d 135, 142 (2d Cir. 2003); see also D'Alessandro, 2005 WL 3159674, at *8; Marengo v. Conway, 342 F.Supp.2d 222, 228 (S.D.N.Y. 2004). As noted above, Toland claims that he is actually innocent of the crime of which he was convicted. See Traverse at p. 8; see also Petition at ¶ 12(11). Additionally, in his Traverse, Toland asserts that "it would be a severe miscarriage of justice if all of petitioner's claims are not reviewed by this Court," notwithstanding his failure to exhaust, because he "is an innocent man who has been convicted of a crime that he did not commit." Traverse at p. 8.
However, as is discussed more fully post in conjunction with Toland's claim that there was legally insufficient evidence adduced at trial to sustain the conviction challenged herein, this Court finds that there was more than sufficient evidence presented at trial which established Toland's guilt of the second degree murder charge. Since that finding necessarily precludes a determination that Toland is actually innocent of the murder conviction, this Court therefore denies the above unexhausted claims as procedurally forfeited.