The opinion of the court was delivered by: Hon. Hugh B. Scott United States Magistrate Judge
Petitioner James Woods has filed a Petition (Docket No. 1) for habeas corpus relief ,pursuant to 28 U.S.C. §2254, challenging his state court convictions.
On October 30, 2003, judgment was entered based upon a jury verdict, in New York State Supreme Court, Erie County, that convicted petitioner of rape in the first degree, in violation of N.Y. Penal Law § 130.35(4); sodomy in the first degree, in violation of N.Y. Penal Law § 130.50(4); engaging in a course of sexual conduct against a child in the first degree, in violation of N.Y. Penal Law § 130.75(1)(b); and criminal impersonation in the second degree, in violation of N.Y. Penal Law § 190.25(1). Petitioner was sentenced to twenty years. Petitioner filed a timely notice of appeal and the New York State Supreme Court, Appellate Division, Fourth Department unanimously affirmed the sexual assault conviction but found that the evidence was legally insufficient to support Petitioner's conviction for criminal impersonation and modified the judgment on that count. People v. Woods, 26 A.D. 3d 818, 810 N.Y.S.2d 274 (4th Dept. 2006). The New York State Court of Appeals denied leave to review this decision, People v. Woods, 7 N.Y.3d 765, 819 N.Y.S.2d 890 (2006).
Petitioner then filed post-conviction motions, which were denied and leave to appeal from these denials was also denied.
In his present Petition, petitioner argues that he was denied the right to an impartial jury claiming that there was a spillover effect of the evidence from charge of criminal impersonation (that was held to be insufficient) to other charges rendering the entire trial unfair. He also claims ineffective assistance of counsel because his attorney did very little to prepare for trial, did not conduct a pretrial investigation, did not interview examining doctors, did not secure independent medical testimony, and did not call experts. He contends that his conviction for rape was against the weight of evidence because there was no physical evidence of forcible penetration and petitioner disputes the prosecution doctor's testimony regarding percentage of incidents with such physical evidence. (Docket No. 1, Pet.)
Petitioner raises four grounds for habeas relief: (1) the conviction was obtained in violation of his Sixth Amendment right to an impartial jury; (2) petitioner was denied his Sixth Amendment right to effective assistance of counsel; (3) the conviction of rape in the first degree is against the weight of the evidence in that there was no physical evidence of rape; and (4) the conviction of rape in the first degree was against the weight of the evidence in that the victim's testimony was inconsistent with that of the medical experts (Docket No. 1, Pet. ¶ 22).
In the interest of comity and in keeping with the requirements of 28 U.S.C. §2254(b), federal courts will not consider a constitutional challenge that has not first been "fairly presented" to the state courts. Ayala v. Speckard, 89 F.3d 91 (2d Cir. 1996), citing Picard v. Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir.1982) (in banc), cert denied, 464 U.S. 1048 (1984). A state prisoner seeking federal habeas review must first exhaust his available state remedies with respect to the issues raised in the federal habeas petition. Rose v. Lundy, 455 U.S. 509 (1982). To meet this requirement, the petitioner must have raised the question in a state court and put the state appellate court on notice that a federal constitutional claim was at issue. See Grady v. Le Fervre, 846 F.2d 862, 864 (2d Cir.1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984).
Respondent acknowledges that the Petitioner has exhausted his state court remedies with respect to the claims in the instant Petition (see Docket No. 6, Ans. ¶ 1).
State court findings of "historical" facts, and inferences drawn from those facts, are entitled to a presumption of correctness. Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.), cert. denied, 479 U.S. 805 (1986); see also 28 U.S.C. §2254(e)(1), which states that "a determination ...