The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner Rashawn Simpson ("Simpson" or "petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction, following a jury trial, on two counts of first degree robbery and related counts charging criminal use of a firearm, criminal possession of a weapon, criminal possession of stolen property; he also was convicted of second degree forgery.
The conviction here at issue stems from the hold-up of Elijah Mack at gunpoint as Mack was closing his store in Buffalo. Simpson held a pistol to Mack's head and told him to open the cash register. After removing between $400 and $500 from the register and from Mack's pockets, Simpson ran out of the store. Mack tripped the security alarm and went outside to flag down two police officers.
Meanwhile, Simpson jumped into a car driven by Damion Phillips, later indicted as his co-defendant. After the police cornered their getaway vehicle, Simpson and Phillips fled on foot. As he was running through a backyard, Simpson was observed tossing a gun on the lawn by Officer Maiola of the B.P.D. Simpson then ran directly toward Officer Colon, who was waiting with his service revolver drawn. Simpson threw a wad of cash down onto the ground. The officers advised him of his Miranda rights, which he waived. Simpson admitted participating in the robbery, but claimed that his weapon was a knife, not a gun. The police returned him to the store, where Mack identified him as the perpetrator.
Simpson's conviction was affirmed on direct appeal. He is currently incarcerated pursuant to concurrent sentences on the robbery and related convictions, the longest of which is 10 to 20 years. The sentence of 1a to 4 years on the forgery conviction was set to run consecutively to the other sentences.
In this timely habeas petition, Simpson raises the following two claims: (1) he was denied his right under New York state statutory law to testify before the grand jury; and (2) trial counsel was ineffective in failing to effectuate petitioner's desire to present testimony to the grand jury. Respondent has answered the petition, arguing that the grand jury claim is not cognizable on habeas review and that the ineffective assistance claim is unexhausted but subjected to an unexcused procedural default. Respondent argues that, in any event, neither claim has merit and habeas relief is therefore unwarranted.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, the petition is dismissed.
A. Ground One: Denial of Petitioner's Right Under New York Statutory Law to Testify before the Grand Jury
Simpson asserts that prior to the return of the second (superseding) indictment, he wrote to his defense counsel and the clerk of court regarding his intention to testify; he presumed that because his letters were not returned, the district attorney's office had been notified by the clerk of court of his desire to testify. Simpson contends that the superseding indictment was returned in error in violation of his New York statutory right to testify. On direct appeal, the Appellate Division held that the trial court properly denied his motion to dismiss the indictment because he was allegedly denied his right to testify before the Grand Jury because the motion, having been made several months after he was arraigned on the indictment, was untimely. People v. Simpson, 292 A.D.2d 852, 852 (App. Div. 4th Dept. 2002) (citations omitted).
As respondent argues, this claim is not cognizable on federal habeas review. "The Supreme Court has long held that the United States Constitution's Fifth Amendment provision for presentment or indictment by grand jury does not apply to the several states through the Fourteenth Amendment; in short, there is no federal constitutional right to be indicted by a grand jury prior to trial in a state criminal action." Velez v. People of State of N.Y., 941 F. Supp. 300, 315 (E.D.N.Y. 1996) (citing, inter alia Alexander v. Louisiana, 405 U.S. 625, 633 (1972); Hurtado v. California, 110 U.S. 516, 538 (1884); Cobbs v. Robinson, 528 F.2d 1331, 1334 (2d Cir. 1975), cert. denied, 424 U.S. 947 (1976)). New York State, in its Constitution, guarantees the right to be indicted by a grand jury when charged with a capital or otherwise "infamous" crime. See N.Y. CONST. art. I, § 6. "Unlike an accused's right to be indicted by a grand jury in New York, however, his right to appear before the grand jury is purely statutory." Velez, 941 F, Supp. at 315 (citing N.Y. CRIM. PROC. LAW § 190.50).
"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991); see also 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of "the Constitution or a federal law or treaty"). Because the right of a defendant in New York to testify before the grand jury is not a matter of federal constitutional law but rather is merely a matter of New York statutory law, any infringement of that right cannot form the basis of a cognizable habeas claim. Accordingly, Ground One of the petition is dismissed.
B. Ground Two: Ineffective Assistance of Trial Counsel Based Upon the Failure to Ensure Petitioner's Right Under New York Statutory ...