The opinion of the court was delivered by: Thomas J. Mcavoy District Judge
MEMORANDUM-DECISION AND ORDER
A. State Court Proceedings
According to the testimony adduced at trial, in January, 2002, S.B.*fn2 was eleven years old and being cared for by Dawn Ptak, who ran a daycare center from her home in Syracuse, New York. See Transcript of Trial of Michael Ptak (1/24/00) ("Trial Tr.") at pp. 361-63, 366. Along with Dawn, also living in the Ptak household was Dawn's husband Michael Ptak, Sr., their daughter Brittany Ptak and petitioner, pro se Michael Ptak, Jr., Dawn's son ("Ptak"). Id. at p. 362.
In the fall of 2001, S.B. would go to Ptak's bedroom in his parent's house and "listen to music, watch TV and play Playstation." Id. at p. 365. She thought Ptak was "cool to hang out with" because she could "get away from the kids and stuff." Id. at p. 367. On occasion, Ptak would take S.B. with him to the cemetery, to get food, and to his girlfriend's apartment. Id. Sometime before Thanksgiving, 2001, S.B. was in Ptak's bedroom and he informed her that he wanted her to perform oral sex on him. Id. at p. 373. Soon after this conversation, S.B. put her mouth on Ptak's penis for "a few minutes" and "sperm" came out of his penis. Id. at pp. 374-75. Around that time, Ptak would also put his hands on her chest and "rub them" over her clothes. Id. at pp. 375-76.
The record also reflects that in July, 2003, Detective J. Bernozzi of the Abused Persons Unit of the Syracuse Police Department received a report regarding two children who were possibly being abused at the daycare located in the Ptak household. Id. at pp. 470-71. After interviewing those children, Detective Bernozzi obtained a search warrant regarding that residence which was executed on the Ptak house on July 24, 2003. Id. at p. 472. During the search, Detective Bernozzi came across a letter written to Michael Ptak, Sr., from S.B., who at the time was living in North Carolina, which suggested that S.B. may have been another victim of the Ptak family. Id. at pp. 472-73. Detective Bernozzi thereafter contacted Child Protective Services and the local police department in North Carolina to alert them of the possibility that S.B. may have been a victim of a crime in New York. Id. at pp. 473-77.
Detective Greg Spradlin of the Hoke County Sheriff's Department in North Carolina eventually obtained a statement from S.B. regarding Ptak, which was subsequently sent via facsimile transmission to Detective Bernozzi in September, 2003. Id. at pp. 479-80. Upon reviewing that document, Detective Bernozzi made arrangements for S.B. and her mother to come to Syracuse to be formally interviewed. Id. at p. 481. On October 15, 2003, Detective Bernozzi interviewed S.B. Id. At that time, she claimed that while in Syracuse, New York, she had engaged in sexual conduct with Ptak, his father and a family friend, Anthony Lake. Id. at pp. 484-85. Those three men were thereafter placed under arrest. Id. at pp. 485-86.
As a result of the foregoing, Ptak was charged by an Onondaga County Grand Jury with Sodomy in the First Degree, in violation of N.Y. Penal Law ("Penal Law") § 130.50(3); Sexual Abuse in the First Degree, contrary to Penal Law § 130.65(3); and Endangering the Welfare of a Child, in violation of Penal Law § 260.10(10). See Indictment Number 2004-0166-1-2. ("Indictment"). On January 31, 2005, Ptak was tried on those charges before a jury in Onondaga County Court with County Court Judge Joseph E. Fahey presiding. At the conclusion of that trial, the jury found Ptak guilty of all charges. Trial Tr. at pp. 664-65.
On March 30, 2005, Ptak appeared before Judge Fahey for sentencing. At that proceeding, the court sentenced Ptak to a determinate term of twenty years imprisonment on the first degree sodomy conviction, a determinate term of seven years imprisonment on the sexual abuse conviction, and a one year term of imprisonment on the endangering the welfare of a child conviction, with all sentences to run concurrently. See Sentencing Transcript (3/30/05) at pp. 12-14.
Ptak filed an appeal of his conviction and sentence with the New York State Supreme Court Appellate Division, Fourth Department. See Appellate Brief on Appeal (8/4/06) ("App. Br."). In that filing, counsel argued that: i) the verdict was against the weight of the evidence; ii) the prosecutor's misconduct at trial deprived Ptak of a fair trial; and iii) the sentence imposed on Ptak was unduly harsh and excessive. Id., Points I through III. That appeal was opposed by the Onondaga County District Attorney, and on February 2, 2007, the Appellate Division affirmed Ptak's convictions and sentences. See People v. Ptak, 37 A.D.3d 1081 (4th Dept. 2007). The New York's Court of Appeals thereafter denied Ptak's application for leave to appeal that decision of the Appellate Division. People v. Ptak, 8 N.Y.3d 949 (2007).
On April 15, 2008, petitioner filed, with the assistance of counsel, a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. No. 1. Pursuant to this Court's directive filed April 22, 2008, see Dkt. No. 4, counsel filed an amended petition herein. See Dkt. No. 5 ("Am. Pet."). In that amended application, Ptak argues: i) the time frame alleged in the Indictment prevented Ptak from asserting an alibi to the charges against him; ii) that a defect in the Indictment prevented Ptak from offering exculpatory evidence about a piercing Ptak underwent regarding his penis; and iii) Ptak received the ineffective assistance of trial counsel because she: a) refused to request that a prospective juror who both knew and disliked Ptak be removed from the jury; and b) failed to ensure that the jury was aware of the fact that Ptak had pierced his penis. See Am. Pet., Grounds One through Four.*fn3
The respondent filed an answer in opposition to the amended petition, Dkt. No. 12, as well as a memorandum of law in opposition to such pleading. See Dkt. No. 13 ("Resp. Mem."). Additionally, the respondent has provided the Court with various state court records, including the trial transcript, relating to Ptak's convictions. In opposing his application for habeas intervention, respondent asserts that two of Ptak'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 two of the grounds he has asserted herein. See Resp. Mem. In support of this argument, respondent contends that because Ptak has never asserted the claims he has raised in his first and second grounds for relief in any state-court challenge to his conviction, he is procedurally barred from obtaining habeas relief as to these two grounds. Id. at pp. 12-13.
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." Id., 526 U.S. at 844 (citations omitted); see also Galdamez, 394 F.3d at 72 (citation omitted).*fn4
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 Genl., 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 in petitioner's first and second grounds for relief were not fully exhausted by Ptak in the state courts. Specifically, they were not asserted by counsel in her appellate brief, see App. Br., and Ptak has declared that he has not pursued any collateral challenges regarding his convictions subsequent to that appeal. See Am. Pet. at ¶ 10.
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, ...