The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Michael R. Jacobs ("Jacobs") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254") challenging his conviction in New York State County Court, Ontario County, on one count of Assault in the First Degree (New York Penal Law ("P.L.") § 120.10(3)), one count of Assault in the Second Degree (P.L. § 120.05(1)), one count of Criminal Contempt in the Second Degree (P.L. § 215.50(3)), and five counts of Endangering the Welfare of a Child (P.L. § 260.10(1)). The charges stemmed from an assault on Bethany Chadwick ("Bethany"), the nineteen-year old daughter of Jacobs' girlfriend, Kathleen Chadwick ("Chadwick"). Jacobs was convicted by a jury and sentenced as a violent felony offender to a determinate term of incarceration of twenty-five years on the Assault in the First Degree conviction. In addition, Jacobs was sentenced to a five-year term of incarceration for the conviction on Assault in the Second Degree, six months for the Criminal Contempt, and six months for each of the five counts of Endangering the Welfare of a Child, all of which were set to run concurrently with his twenty-five year sentence. He is presently incarcerated at the Elmira Correctional Facility pursuant to these convictions. For the reasons set forth below, Jacobs' § 2254 petition is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
By Ontario County Indictment No. 00-07-157, Jacobs was charged with one count of Assault in the First Degree, one count of Assault in the Second Degree, one count of Criminal Contempt in the Second Degree, and five counts of Endangering the Welfare of a Child. These charges result from an incident that took place in the early morning hours of August 26, 2000 at 95 West Street in Geneva, New York, the residence of Kathleen Chadwick. Chadwick, who had been at work and then went out for drinks, arrived home at around 2:00 a.m. and went to check on her four younger children before going into her bedroom, which she shared with her oldest daughter, Bethany. T.*fn1 101-2. That night, Chadwick left Bethany in charge of watching the four younger children while she was at work. While her four younger children were asleep in their beds, Chadwick found Bethany positioned half-off of her bed, unconscious, and laying in her own vomit. T. 102. Chadwick rushed to wake her next oldest child, Carzel, to find out what had happened to Bethany but was unable to rouse him. T. 103. When Chadwick returned to Bethany's room and tried to move her, she saw that Bethany's face was "caved in." T. 104.
Immediately, Chadwick raced over to a neighbor's house to call for help, as her phone was not yet installed. T. 104-5. Officer Robert Middlebrook, Geneva City Police Department, was the first to arrive on the scene and found a "barely breathing" Bethany lying partially on her bed in a pool of vomit. T. 170. The paramedics arrived and Officer Middlebrook ran downstairs to tell them to "hurry because she was in bad shape." T. 174. The first medical responder was Lynette Hulslander ("Hulslander"), a paramedic with Finger Lakes Ambulance, who found Bethany in an unresponsive state with multiple bruises and abrasions on her face. T. 160-61. Hulslander's initial examination of Bethany supported her suspicion that Bethany had a critical, life-threatening brain injury. T. 163. Given the extent of her critical injuries and the fact that Bethany was six-months pregnant, Hulslander called for the Mercy Flight helicopter to transport Bethany to Strong Memorial Hospital, where she would receive more specialized emergency treatment for her head injuries. T. 165-66.
When Bethany arrived at Strong Memorial Hospital, she was under the care of Dr. Peter Papadakos, the Director of Critical Care Medicine. T. 188. Dr. Papadakos testified at trial that Bethany was placed on a mechanical ventilator to provide life support and she suffered from cerebral edema, or swelling of the brain. T. 193-94. The swelling of Bethany's brain was so severe that Dr. Papadakos ordered a neurosurgeon to drill holes into her skull to relieve the pressure. T. 195. Dr. Papadakos opined that Bethany's injuries resulted from the trauma of a blunt force and her injuries were similar to brain injuries resulting from car crashes. T. 201. In addition, Dr. Papadakos testified that Bethany had multiple bruises, contusions, and a lacerated liver. T. 196.
For the next four weeks, Bethany was placed into a medically-induced coma to allow her brain to heal. T. 197. During this period, it became necessary to perform a tracheotomy on Bethany, as well as a semi-emergent cesarian delivery of her unborn child due to a threatening infection. T. 199. Following Bethany's seven-week stay in the Intensive Care Unit at Strong Memorial Hospital, she was transferred to the Brain Injury Rehabilitation Unit at St. Mary's Hospital in Rochester, New York, where she stayed for the next two months. T. 231. While staying at St. Mary's, Bethany worked with Dr. William Schneider, a neuropsychologist in the Brain Injury Rehabilitation Unity. T. 231. At trial, Dr. Schneider testified that Bethany suffered from posttraumatic amnesia for 10 to 12 weeks following that attack, which is indicative of a severe brain injury. T. 235-36. Moreover, Dr. Schneider stated that Bethany's injuries left her with "permanent long-term impairments," which included severe attentional impairments, memory impairments, an inability to continue with regular educational programs, and an inability to live independently and care for her child on her own.
At trial, Jacobs' eleven-year old son, Michael J. Jacobs Jr., testified about the events that surrounded the incident with Bethany and Jacobs, as he was an eyewitness. Michael testified that he was in the Chadwicks' house at 95 West Street the night that Bethany was injured. T. 122. According to Michael, on August 26, 2000, he went with his father to the Chadwicks' house to sleep but Jacobs got into an argument with Bethany. T. 123-24. Michael stated that Bethany was saying "nasty words" to his father and she had a knife in her hand. T. 124. However, after reviewing the grand jury hearing minutes, Michael testified that he saw his father take the knife from Bethany and strike her with it. T. 127.*fn2 Bethany then tried to leave the house but Michael saw Jacobs stop her from leaving. T. 132. At this point, Bethany ran upstairs and Jacobs followed her, after which Michael heard Bethany screaming. Id. Michael quietly went upstairs and saw his father stomping on Bethany, who was unconscious and laying on the floor. T. 135. Michael also saw his father pour water onto Bethany's face after she threw up and then pick her up and place her in bed. T. 138-39. Michael testified that after the attack he left the house with Jacobs, while the four other children were downstairs unattended and crying. T. 140. Once Michael left the house with Jacobs, they drove to an uncle's house and then to a McDonald's at a rest stop on the New York State Thruway. T. 141-42.
Later in the day on August 26th, Jacobs returned to 95 West Street and the police were summoned by a neighbor. T. 179. Officer Kenneth Greer, Geneva City Police Department, responded to the 9-1-1 call and found Jacobs standing outside the residence when he proceeded to ask Jacobs for his name and date of birth. T. 178-79. After Jacobs identified himself, Officer Greer testified that Jacobs, without being questioned, stated that he "just came [there] to find out what happened last night." T. 180. Jacobs also produced two receipts, one from McDonald's and the other was a Thruway toll receipt, and told Officer Greer that if he looked at the receipts he would see that Jacobs was "out of town" that night.
T. Id. At that point, Officer Greer place Jacobs under arrest for an unrelated warrant from Monroe County for Assault in the Third Degree. T. 181.
Following Jacobs' arrest, he was transported to the Geneva Police Department, where he was interviewed by Detective William Quigley. T. 205. Detective Quigley read Jacobs his Miranda rights, which Jacobs stated he understood and Jacobs then agreed to speak with him about the incident that occurred at 95 West Street.
T. 207. During their conversation, Detective Quigley used a typewriter to record Jacobs' statement and had Jacobs review the typed version of his statement and sign it. T. 207-9. In Jacobs' statement, which was read to the jurors by Detective Quigley, Jacobs stated he did get into an argument with Bethany and when she came at him with something in her hand, he might have hit her. Jacobs also stated that Bethany ran upstairs and as he followed her, he yelled "Now you ain't getting away easy. I am going to kick your ass." T. 215. Once upstairs, Jacobs admitted in the statement that he "slammed" Bethany, causing her to pass out.
Prior to trial, on April 18 and April 25, 2001, a Huntley hearing was held to determine the admissibility of statements made by Jacobs. At the conclusion of the hearing, Judge James Harvey rendered a decision denying the suppression of both Jacobs' oral and written statements. HC 27-30.*fn3 In addition, a Sandoval hearing was conducted in the judge's chamber prior to the commencement of the trial. T. 3-25. During this hearing, Judge Harvey held that the prosecutor could use certain convictions from Jacobs' past history to impeach him, should Jacobs decide to testify. Id.
After the prosecution presented its case, the defense rested without calling Jacobs or any witnesses to testify. T. 252. Both parties then presented summations and following the trial court's charge, the jury retired to deliberate. The jury returned a verdict finding Jacobs guilty of each count of the indictment. On May 21, 2001, Judge Harvey sentenced Jacobs to 25 year term of imprisonment for the Assault in the First Degree conviction, and sentences of five years for the conviction for Assault in the Second Degree conviction, and six months each for the counts of Criminal Contempt in the Second and Endangering the Welfare of Child, all of which were set to run concurrently with his 25-year sentence. S.*fn4 15-16.
Jacobs appealed his conviction to the New York State Supreme Court, Appellate Division, Fourth Department. On direct appeal, Jacobs claims that: (1) his statements should have been suppressed; (2) he was severely prejudiced at trial by the trial court's failure to sustain defense objections to leading and/or impeaching questions posed to a key child witness; (3) the trial court's Sandoval ruling gave the prosecution too much leeway; (4) his right to a fair trial was severely prejudiced by the trial court's failure to charge alternative counts to the jury, which resulted in a repugnant verdict, and its failure to make a record of a sidebar conference in which the jury charge was discussed; (5) he was prejudiced by appearing before the jury in shackles; (6) it was an error for the voir dire not to have been transcribed; (7) he was impermissibly penalized for exercising his right to a trial; and (8) the sentence imposed was harsh and excessive. The Appellate Division unanimously affirmed his conviction on October 1, 2002. People v. Jacobs, 298 A.D.2d 954 (4th Dept. 2002). The New York Court of Appeals denied leave to appeal on December 31, 2002. People v. Jacobs, 99 N.Y.2d 559(2002). Jacobs did not seek a writ of certiorari from the United States Supreme Court.
Twice, Jacobs moved to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. See Petition ("Pet.") at 2-3 (Docket No. 1). The first motion was denied by the Ontario County Court (Harvey, J.) on December 17, 2001 and leave to appeal was denied by the Appellate Division, Fourth Department, on May 8, 2002. Jacobs' second motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10 was denied by Ontario County Court on April 17, 2003 and leave to appeal was denied on June 30, 2003.
This federal habeas corpus petition was filed on November 20, 2003. Jacobs raises eight grounds for relief in his petition, including claims that: his statements should have been suppressed at trial as custodial statements (Claim I); the trial court's failure to sustain defense objections to leading/impeaching the key child witness severely prejudiced Jacobs' right to a fair trial (Claim II); the trial court's Sandoval ruling was an abuse of discretion and thereby deprived Jacobs of a fair trial (Claim III); the trial court erred by not charging the jury in the alternative as to the two assault counts in the indictment, and erred in failing to record the sidebar discussing this matter (Claim IV); the trial court's shackling of him during trial violated due process (Claim V); the trial court erred in not making a record of the jury's voir dire (Claim VI); he was impermissibly penalized for asserting his right to trial (Claim VII); and his sentence was harsh and excessive (Claim VIII).
In Jacobs' traverse, he attempts to raise the issue of prosecutorial misconduct based on the use of perjured testimony at trial, however this claim was not raised in his original petition. See Petitioner's Traverse ("Traverse") at 16 (Docket No. 11). Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts provides, in relevant part, that "[t]he petition must ... specify all grounds for relief available to the petitioner." See Rule 2(c)(1) of the Rules Governing Section 2254 Cases in the United States District Courts. "In light of this Rule, it has been recognized that a traverse is not the proper pleading in which to raise additional grounds for habeas relief." Parker v. Duncan, 2007 WL 2071745, at *6 (N.D.N.Y. July 17, 2007) (citing Haupt v. Moore, 2005 WL 1518265, at *2 n. 3 (E.D.Mo. June 24, 2005)) (quoting Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994)). District courts have held that habeas claims that are raised for the first time in a traverse cannot be properly considered for review. See Jones v. Artus, 615 F.Supp.2d 77, 85 (W.D.N.Y 2009). Thus, this claim will not be considered for habeas relief as it was not raised in the original petition.
A district court shall not review a petition for habeas relief unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). In addition, a federal habeas court may be procedurally barred from reviewing a federal claim when a state court barred review of that issue based on adequate and independent state procedural grounds. See Coleman v. Thompson, 501 U.S. 722, 729-33 (1991). Respondent argues that Claims IV and VI are procedurally barred from federal habeas review due to Jacob's failure to comply with New York State procedural rules. See Respondent's ...