The opinion of the court was delivered by: John Gleeson, United States istrict Judge
Adam Ojar, currently incarcerated in Great Meadow Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court for assault in the first degree and criminal possession of a weapon in the fourth degree. Appearing pro se, Ojar claims that his conviction was obtained without due process of law due to the trial court's refusal to instruct the jury on the defense of justification; the court's refusal to allow him to cross-examine a witness about a knife that Ojar claimed was used in the incident or to examine the knife; the prosecutor's persistence in asking improper questions; and the prosecutor's suggestion that Ojar was affiliated with a gang. For the reasons stated below, the petition is denied.
Ojar's conviction arises from an altercation occurring on the night of April 5, 2004 at a Papaya King restaurant in Queens. The government's evidence at trial established that earlier that day, Dominic Fanelli struck Michael Carty in the mouth. At approximately 11:00 PM that night, Fanelli and Carty, each backed by a number of friends, came to the Papaya King to discuss the incident. Ojar was friends with Carty's friend Nathaniel Lambert, and so he came to the Papaya King on Carty's behalf. Lambert and approximately eight others were also present in support of Carty, and three of Fanelli's friends were present backing Fanelli.
During the discussions, one of Carty's friends punched Fanelli in the face. Fanelli charged at the crowd, causing a melee in which most of Carty's friends fled the restaurant. Ojar and Lambert stayed inside the restaurant, as did Fanelli and his friend Omar Jaffery. The government's evidence established that Ojar walked towards Fanelli and stabbed him once in the abdomen with a knife, puncturing his intestines in two places and requiring emergency surgery.
Ojar was arrested and was tried in the New York State Supreme Court, Queens County from February 23 to March 3, 2006. At trial, he testified that he did not intentionally stab Fanelli. Rather, Ojar claims, he saw a knife fall to the floor during the melee. Fanelli reached for the knife. Concerned that Fanelli or someone else might pick it up and use it, Ojar grabbed the knife with his left hand, and with his right hand picked up Lambert, who had fallen to the floor. Fanelli, continuing his attempt to grab the knife, crashed into Ojar as Ojar was pulling Lambert up from the floor. This collision caused the stab wound to Fanelli's stomach.
Ojar's defense counsel requested an instruction on justification, which the trial court refused to give due to the accidental nature of the stabbing as it was described by Ojar himself. The trial court also refused to allow Ojar to elicit testimony regarding a knife that Fanelli's friend Jaffery was arrested with in connection with a different incident approximately a month later. Ojar argued that he wished to argue that Jaffery's knife was the one he picked up at Papaya King, but the trial court considered the question of which knife Ojar used to be superfluous given Ojar's testimony that he picked up a knife on the ground. Ojar asked for a mistrial, noting that the prosecution had argued that Ojar had brought the knife he stabbed Fanelli with. The court denied Ojar's request for a mistrial.
The prosecutor also attempted to elicit at trial hearsay statements made to detectives identifying the defendant as having stabbed Fanelli. This was met with repeated objections, which the trial court repeatedly sustained. Additionally, immediately after having been told at sidebar not to inquire into Ojar's post-arrest silence while cross-examining him, the prosecutor attempted to inquire into his post-arrest silence and was met with immediate objection. The trial court sustained the objection and issued curative instructions, but denied Ojar's motion for a mistrial.
Ojar was convicted at trial of assault in the first degree and criminal possession of a weapon in the fourth degree, but acquitted of attempted murder in the second degree and assault in the second degree. He appealed his conviction, arguing that (1) he was entitled to an instruction on justification; (2) he was entitled to elicit further evidence about the knife Jaffery was later found with so that he could argue that it was the knife Ojar picked up at the Papaya King; (3) that the prosecutor's repeated attempts to elicit hearsay and attempt to inquire into the defendant's post-arrest silence constituted misconduct; and (4) that the verdict was legally insufficient and against the weight of the evidence. The Appellate Division rejected his arguments regarding justification and the evidentiary rulings regarding the knife on the merits, and rejected his arguments about prosecutorial misconduct and insufficiency of the verdict as unpreserved. People v. Ojar (Ojar I), 832 N.Y.S.2d 250, 251-52 (2d Dep't 2007). Ojar sought leave to appeal to the New York Court of Appeals, which was denied. People v. Ojar (Ojar II), 9 N.Y.3d 879 (2007) (Pigott, J.).
On August 23, 2007, Ojar filed this petition, arguing (1) that the trial court's refusal to instruct the jury on justification deprived him of due process of law by impairing his ability to present a complete defense; (2) that the trial court's refusal to allow him to elicit evidence regarding the knife Jaffery was later found with deprived him of due process of law by impairing his ability to present a complete defense; and (3) that the prosecutor's misconduct in persisting in asking about hearsay identifications and in asking about Ojar's post-arrest statements deprived him of due process of law by rendering the trial unfair. At oral argument, he also complained (4) that the prosecutor improperly suggested to the jury that he was a gang member. He does not renew his challenge to the verdict in this petition.
1. Review of Procedurally Defaulted Claims
A state court's explicit reliance on a procedural bar preventing adjudication of the merits of a claim generally constitutes an independent and adequate state law ground for the state court's judgment precluding federal review. See Harris v. Reed, 489 U.S. 255, 260-62 (1989) (explaining rationale for habeas corpus procedural default rule); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991) (noting a state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having an opportunity to correct its own errors"). However, there are several circumstances in which a federal claim disposed of by a state procedural rule will still be reviewable on a federal petition for habeas corpus.
First, a petitioner is entitled to review of a procedurally defaulted claim if he can show "cause for the default and actual prejudice as a result of the alleged violation of federal law." Coleman, 501 U.S. at 750. A petitioner may establish cause by showing "'that the factual basis for a claim was not reasonably available to counsel . . . or that some interference by officials . . . made compliance impracticable.'" Id. at 753 (internal quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show prejudice, a petitioner must demonstrate that the alleged error worked to his "actual and substantial ...