The opinion of the court was delivered by: Lawrence E. Kahn U.S. District Judge
MEMORANDUM-DECISION AND ORDER
According to the testimony adduced at trial, on March 15, 2003, Steven S. ("Steven") took his family, including his 10-year-old daughter, M.S., to a St. Patrick's Day parade in Syracuse, New York. See Tr. Tran. at 335.*fn1 Petitioner pro se Daniel Gaffney ("Petitioner" or "Gafney") a friend of Steven, accompanied he and his family to the parade. Id. at 335. At some point during the parade, Gaffney escorted Steven's son to the bathroom, and when he returned, M.S. stated that she then needed to use the bathroom. Id. at 337. Gaffney volunteered to bring her because it would be easier for him to navigate the crowd than it would be for Steven, who is blind, to do so with his other children. Id. at 337-38, 340. Gaffney then brought her to a restaurant and went into the bathroom with her. Id. at 387-88. After M.S. used the toilet, Gaffney pulled down his pants and exposed his genitalia to M.S. Id. at 388. He then directed M.S. to touch his genitalia and she complied. Id. at 389. Gaffney then proceeded to force M.S. to perform fellatio. Id. at 396-97. He then warned M.S. that if she talked about the incident, he would "kill [her]." Id. at 398. Gaffney then escorted M.S. back to her family, who was still watching the parade. Id. When M.S. returned from the bathroom, she seemed "almost like she was exhausted. She just didn't speak." Id. at 339.
On October 18, 2003, M.S. told her mother what Gaffney had done to her during the parade, and her mother called the police. Id. at 340. On October 28, 2003, M.S. met with Detective Henry Burns ("Burns") of the Syracuse police department and discussed the incident involving Gaffney. Id. at 473-74. At that time, she told Burns that the incident occurred at a downtown restaurant that had a brick exterior with red inside, which had a restroom that had a picture of a male and a female on the door. Id. at 474. Burns canvassed the parade route with M.S. and her mother looking for the restaurant at which the incident took place, and M.S. initially identified a Japanese restaurant as the location. Id. at 476. The police eventually discovered, however, that the restaurant was not open on St. Patrick's Day. Id. at 477.
On May 24, 2004, M.S. and her mother met with Investigator Carol Sacco ("Sacco") of the Onondaga County District Attorney's Office and they proceeded to search the area of the parade route to locate the crime scene. Id. at 509-11. At that time, M.S. told Sacco that the restaurant they were looking for had a descending staircase. Id. at 511. Sacco then remembered that a nearby restaurant called the Manhattan Downtown Club had such a staircase. Id. She escorted M.S. to the restaurant, and when she entered it, she immediately stated, "[t]his is it." Id. at 511-12. M.S. then led Sacco down the stairs, through the hallway, where there was an overhead sign with a picture of a man and woman. Id. at 512. M.S. then opened the door to the women's bathroom and exclaimed, "[t]his is it," identifying it as the place where Gaffney had sexually assaulted her. Id. at 512-13.
As a result of the foregoing, an Onondaga County grand jury returned an indictment against Gaffney. See Indictment No. 2004-0102-1 ("Indictment"). In the Indictment, Gaffney was charged with Sodomy in the First Degree, contrary to N.Y. Penal Law § 130.50(3); Sexual Abuse in the First Degree, in violation of N.Y. Penal Law § 130.65(3) and Endangering the Welfare of a Child, contrary to N.Y. Penal Law § 260.10(1). Id.
On June 7, 2004, Gaffney's jury trial on the foregoing charges commenced in Onondaga County Court with County Court Judge Anthony F. Aloi presiding. At the conclusion of that trial, the jury convicted Gaffney of all charges. See Trial Tr. at 614-15.
On June 23, 2004, Petitioner, through his trial attorney, filed a motion pursuant to New York Criminal Procedure Law ("CPL"), § 330.30, to set aside the verdict ("CPL 330 Motion"). In the CPL 330 Motion, Gaffney claimed that: i) the testimony of the victim was not sufficiently corroborated as required by N.Y. Penal Law § 130.16; ii) evidence of M.S.'s history of sexual molestation was improperly excluded at trial; iii) Judge Aloi improperly excluded evidence of Steven's prior sexual abuse of M.S.; iv) the County Court improperly precluded the defense from using M.S.'s psychological records for impeachment purposes; and v) Steven's refusal to answer questions posed to him on cross-examination constituted an infringement on Gaffney's right to confront his accuser and prejudiced the defense. See CPL § 330 Motion.
On June 24, 2004, just prior to Gaffney's sentencing, Judge Aloi issued an oral decision in which he denied the CPL 330 Motion. See Transcript of Sentencing of Daniel Gaffney (6/24/04) at 4-11. Judge Aloi then sentenced Gaffney to a determinate prison term of twenty five years on the first degree sodomy conviction, a consecutive, determinate prison term of seven years on the sexual abuse conviction, and a concurrent one year term on the child endangerment conviction. Id. at 16-17. Those sentences were ordered by Judge Aloi to run consecutive to an unrelated sentence Gaffney was then serving for a prior felony conviction. Id. at 17.
Gaffney filed an appeal of his conviction and sentence with the New York State Supreme Court Appellate Division, Fourth Department. In that appeal, Gaffney's appellate counsel, Philip Rothschild, Esq., alleged that: i) the court illegally imposed consecutive sentences on Gaffney regarding the sodomy and sexual abuse convictions; ii) the verdict was against the weight of the evidence; iii) the County Court improperly precluded Gaffney from using the victim's psychiatric records to impeach her testimony; and iv) Gaffney received the ineffective assistance of trial counsel. See App. Br. That appeal was opposed by the Onondaga County District Attorney, and on June 9, 2006, the Fourth Department unanimously affirmed the judgment of conviction. See People v. Gaffney, 30 A.D.3d 1096 (4th Dep't 2006). Gaffney sought leave to appeal that decision from the New York Court of Appeals, however on July 25, 2006, that court denied his application. See People v. Gaffney, 7 N.Y.3d 789 (2006).
On February 10, 2007, Gaffney filed a pro se motion to vacate the judgment of conviction pursuant to CPL § 440.10 ("CPL 440 Motion"). In the CPL 440 Motion, Gaffney argued that: i) he was denied his right to a fair trial because the prosecution changed its theory as to the location of the crime; ii) the prosecutor introduced photographs of the location of the incident, knowing that such photographs were false; iii) the County Court failed to conduct a preliminary examination regarding M.S.'s competency to testify; and iv) he was denied the effective assistance of trial counsel. See CPL 440 Motion. The District Attorney opposed that application, and on August 20, 2007, Judge Aloi denied such motion. See Decision and Order of Judge Aloi (8/20/07) at 10. Gaffney did not seek leave to appeal the denial of his CPL 440 Motion from the Appellate Division.
Petitioner filed the present Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 17, 2008. See Petition (Dkt. No. 1). In his Petition, Gaffney argues: i) the trial court illegally imposed consecutive sentences on him; ii) Judge Aloi improperly precluded defense counsel from impeaching the victim's testimony through the use of her psychiatric records; iii) he was denied the effective assistance of trial counsel; iv) the jury's verdict was against the weight of the evidence; v) the prosecutor introduced photographs of the crime scene she knew to be "false;" vi) the District Attorney improperly changed theories as to the location of the crime; and vii) the trial court failed to conduct a preliminary examination to determine the victim's capacity to testify both at the grand jury and at trial. Id.
The Respondent filed a response in opposition to the Petition, Dkt. No. 12, as well as a memorandum of law in opposition to the Petition. See Resp. Mem. (Dkt. No. 11). Additionally, the Respondent has provided the Court with various state court records, including the trial transcript, relating to Gaffney's convictions. In opposing Gaffney's Petition, Respondent asserts that several of Gaffney's claims are procedurally barred, and that all of his claims lack merit. See Resp. Mem.
This matter is currently before this Court for disposition.
A. Procedurally Barred Claims
As noted above, Respondent claims that Petitioner is procedurally barred from pursuing some of the grounds he has asserted herein. See Resp. Mem. In support of this argument, Respondent contends that Gaffney has not fully exhausted the following claims in the state courts below: i) the trial court illegally imposed consecutive sentences; ii) the verdict was against the weight of the evidence; iii) the District Attorney improperly introduced into evidence crime scene photographs she knew to be false; iv) the prosecution improperly changed theories as to the location of the crime; and v) Judge Aloi wrongfully failed to conduct a preliminary hearing regarding M.S.'s competency to testify before the grand and petit juries. See Resp. Mem. at 15-16.
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)); see also Hill v. Mance, 598 F.Supp.2d 371, 375 (W.D.N.Y. 2009). 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. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)) (other citations omitted). As the Supreme Court noted in O'Sullivan, "[c]omity... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." 526 U.S. at 844 (citations omitted); see also Galdamez, 394 F.3d at 72 (citation omitted).*fn2
A petitioner exhausts available state remedies in the federal habeas context by: "(i) present[ing] the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts); and (ii) inform[ing] that court (and lower courts) about both the factual and legal bases for the federal claim." Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001) (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)). A "basic requirement" of this exhaustion doctrine is that "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (citation omitted); see also Berry v. Hulihan, No. 08 Civ. 6557, 2009 WL 233981, at *2 (S.D.N.Y. Jan. 28, 2009) (citations omitted); Jackson v. Senkowski, No. 03 CV 1965, 2007 WL 2275848, at *5 (E.D.N.Y. Aug. 7, 2007). A "state prisoner does not 'fairly present' a claim to a state court" where the appellate brief "does not alert [the court] to the presence of a federal claim..." Baldwin v. Reese, 541 U.S. 27, 32 (2004); see also Williams v. Breslin, No. 06-CV-2479, 2008 WL 4179475, at *3 (E.D.N.Y. Sept. 9, 2008) (citing Baldwin).
The Court's review of the record confirms Respondent's claim that the theories mentioned above were not fully exhausted by Gaffney in the state courts. Specifically, in asserting these claims in those state court challenges, neither the appellate brief filed by counsel, nor Petitioner's CPL 440 Motion, referred, in any way, to the United States Constitution, or any federal statute or case. See App. Br.; CPL 440 Motion.
When claims have not been fully exhausted by a habeas petitioner, 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).*fn3
Petitioner cannot now pursue any of the above theories through another appeal to the Fourth 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, Gaffney could not now properly raise these theories in another CPL § 440 motion filed with the County Court because he could have raised these arguments -- all of which are based on the record -- in the CPL motion he previously filed with that court. See, e.g., Williams v. Burge, No. 02-CV-0695, 2005 WL 2179423, at *14 (N.D.N.Y. Aug. 15, 2005). Therefore, all of the above claims are "deemed exhausted" for purposes of Gaffney's habeas application. St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004); 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 Ciochenda v. Artus, No. 06 Civ. 5057, 2009 WL 1026018, at *5 (S.D.N.Y. Apr. 9, 2009) (unexhausted claims which petitioner can no longer pursue in state court are procedurally forfeited).
Federal courts may only consider the substance of procedurally forfeited claims where the petitioner can establish both cause for the procedural default and resulting prejudice, or alternatively, that a fundamental ...