The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Robert James Colvin, Jr., a state prisoner appearing pro se, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Colvin is currently in the custody of the New York Department of Correctional Services incarcerated at the Great Meadow Correctional Facility. Respondent has answered and Colvin has filed his traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
In May 2002 Colvin was convicted in the Oneida County Supreme Court after a trial by jury of murder in the second degree (N.Y. Pen. Law § 125.25(1)). Colvin was sentenced to an indeterminate term in prison of 25 years to life. Colvin timely appealed his conviction to the Appellate Division, Fourth Department, which affirmed his conviction in a reasoned decision, and the New York Court of Appeals summarily denied leave to appeal without opinion or citation to authority on September 20, 2005.*fn2
Colvin timely filed his petition for relief in this Court on July 31, 2006, and his amended petition on September 21, 2006.
III. ISSUES RAISED/DEFENSES
In his petition Colvin has raised two issues: (1) Ineffective assistance of trial counsel and (2) ineffective assistance of appellate counsel.
Respondent contends that Colvin has failed to exhaust his state court remedies as to both claims and that the first claim is procedurally barred.
Because the petition was filed after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Consequently, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn3 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn4 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn5 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect or erroneous."*fn6 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn7 Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn8
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn9
In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn10 Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn11
As discussed further below, Colvin's claims are unexhausted in their entirety and his first ground procedurally barred. In that case, this Court may follow one of three procedures. It may dismiss the entire petition, without prejudice;*fn12 dismiss the procedurally barred claim and stay and hold in abeyance the unexhausted claim pending exhaustion in the state courts;*fn13 or it may dismiss the procedurally barred claim and proceed to deny the unexhausted claim on the merits.*fn14
The Court, having reviewed the petition on the merits has elected in the interests of judicial efficiency to exercise the third option, dismiss the procedurally barred claim and deny the unexhausted claim on the merits.
Ground 1: Ineffective Assistance of Trial Counsel
Colvin contends that trial counsel was ineffective in failing to: (1) request the specific reasons for the police making an identification request in his suppression motion; (2) make a proper investigation of the crime scene; and (3) object to empaneling a juror who knew the district attorney. Colvin raised his second point in his pro se supplemental brief in his direct appeal. The Appellate Division in affirming Colvin's conviction did not separately address the ineffective assistance of counsel claim in its opinion. Instead, the Appellate Division held: "We have considered the contentions raised in defendant's pro se supplemental brief and conclude that they are without merit." The ineffective assistance of counsel issue was not included in Colvin's application for leave to appeal filed in the New York Court of Appeals.
Respondent contends that Colvin's claim is unexhausted and procedurally barred. The Court agrees that this ground is unexhausted and procedurally barred.
"A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it."*fn15 In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to appeal.*fn16 Claims are fairly presented to the New York Court of Appeals when the application for leave to appeal clearly states that all claims in the attached brief are being pressed or no arguments are made in detail but simply requests review of all issues outlined in the brief.*fn17
Where the application for leave to appeal refers to specific claims raised before the Appellate Division but omits mention of others, the unmentioned claims are deemed abandoned.*fn18 Where the application for leave to appeal argues one or more specific claims but only makes a passing reference to possible other claims found in the attached briefs, the claims mentioned in passing have not been fairly presented to the Court of Appeals.*fn19
By failing to include the ineffective assistance of counsel issue raised in his pro se supplemental brief before the Appellate Division (failure to investigate) in his application for leave to appeal to the New York Court of Appeals, Colvin has failed to exhaust that claim.*fn20
Colvin has not raised the first (specific reasons for the police making an identification request) and third (empaneling a juror who knew the district attorney) in any proceeding before the New York courts. Thus, those claims are clearly unexhausted.
Respondent also argues that Colvin's ineffective trial counsel claim is procedurally barred. Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn21 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims...."*fn22
Colvin has already had his one and only direct appeal permitted under New York law.*fn23
Colvin raised the second point on direct appeal. The record shows that the first and third points were clearly reviewable on direct appeal; thus, Petitioner would be precluded from raising them in a N.Y. Criminal Procedure Law § 440.10 motion by § 440.10(2)(c) (barring review of a claim that could have presented on direct appeal).*fn24 CPL § 440.10(2), a default procedural rule established by statute, is an independent and adequate state ground precluding review by this Court.*fn25 Since Colvin no longer has any remedy available, these claims are deemed exhausted and procedurally barred from review in a federal habeas proceeding.*fn26 To avoid this bar, Colvin must demonstrate cause for the default and actual prejudice, or that the failure to consider the claims will result in a fundamental miscarriage of justice.*fn27 Colvin has failed to show such a miscarriage.
Colvin's ineffective assistance of trial counsel claim is unexhausted and procedurally barred. Colvin is not entitled to relief under his first ground.
Ground 2: Ineffective Assistance of Appellate Counsel
Colvin argues that appellate counsel was ineffective for failing to include in the application for leave to appeal filed with the New York Court of Appeals the ineffective trial counsel claim raised in his pro se supplemental brief filed with the Appellate Division.
Under Strickland v. Washington, to demonstrate ineffective assistance of counsel, Petitioner must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn28 A deficient performance is one in which counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.*fn29 Petitioner must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn30
Strickland and its progeny do not mandate this court act as a "Monday morning quarterback" in reviewing tactical decisions. Indeed, the Supreme Court admonished in Strickland:*fn31
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
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