The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Kevin Banks has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered July 11, 1997, in New York State, Monroe County, convicting him, after a jury trial in Monroe County Court, of two counts of Murder in the Second Degree and one count of Robbery in the First Degree.
For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
This habeas petition arises from an incident which occurred in the City of Rochester in the early morning hours of January 16, 1997 in which Terry Stevens ("the victim" or "Stevens") was stabbed to death in his home.
During the year prior to Steven's death, Petitioner had been one of a number of laborers who had performed remodeling work at Steven's home. Trial Transcript [T.T.] 313-17. Shortly after midnight on the day of the incident, Petitioner appeared at the residence of his former boss, Anthony Marino ("Marino"), asking for money. T.T. 318. Marino refused to give him money and the Petitioner walked off. The victim's home was a few blocks away. T.T. 321-22. Phone records later revealed that a call had been placed from the victim's home to Petitioner's home at 1:08 am. T.T. 491. Acting on this lead, police contacted Petitioner and interviewed him at the police station. Petitioner initially admitted knowing the victim but denied involvement in his death, claiming he had not seen the victim since working at his home the previous year. When police suggested that he had been seen at the victim's home the night the victim was killed, Petitioner indicated he had stopped to see the victim, but only for coffee and then had left. T.T. 497-507. Petitioner denied using the phone while at the victim's house, but when confronted with the call to his home, he indicated he had placed the call. T.T. 513-14. Petitioner eventually admitted to stabbing the victim, but only in self-defense, when the victim attacked him after he refused the victim's sexual advances. Petitioner claimed that after drinking coffee together, the victim had grabbed Petitioner's genitals, produced sex toys, and requested anal and oral sex. Petitioner declined the victim's advances and tried to leave, but the victim grabbed him and a fight ensued. They eventually ended up in the victim's bedroom on his bed. Petitioner indicated he pushed the knife toward the victim's chest, and that he saw blood. On the way out of the victim's home, the Petitioner removed various items, including a penny with a heart cut out of the middle of it and a VCR with remote control. T.T. 526-31. Shortly thereafter, Petitioner appeared at the home of his niece, Debra Lewin ("Lewin"), and indicated that he had had an argument with someone. Petitioner was bleeding from a cut on his finger. Lewin called Petitioner's wife to tell her that he was returning home, after which, Petitioner left. T.T. 330-33. He then met a girl on the street who asked him if he was selling the VCR. He indicated he was selling the VCR, and waited at the girl's house until another girl came and bought the VCR. Petitioner then went to a bootlegger, bought some gin, marijuana, and cigarettes, and walked around for a few hours before going home. T.T. 531.
The jury ultimately rejected Petitioner's self-defense theory at trial, and convicted Petitioner of intentional murder, felony murder and robbery. He was sentenced to concurrent, indeterminate terms of incarceration of 25 years to life on the murder convictions along with a concurrent, determinate term of 25 years on the robbery conviction.
The Appellate Division, Fourth Department, unanimously affirmed Petitioner's conviction in a memorandum decision. People v. Banks, 275 A.D.2d 993 (4th Dept 2000). The New York Court of Appeals denied leave to appeal. People v. Banks, 95 N.Y.2d 960 (2000). On or about October 9, 2001, Petitioner submitted a pro se motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10(1)(h) on the ground that trial counsel failed to provide effective assistance.*fn1 A hearing was held, and Petitioner's claims were subsequently denied by Monroe County Court Judge Patricia D. Marks in a Decision and Order dated October 23, 2002. On or about January 6, 2003, Petitioner made a motion to appeal the Monroe Country Court Decision and Order, which was denied on May 7, 2003. On or about July 23, 2003, Petitioner filed a motion for a writ of error coram nobis, which was denied by the Appellate Division on October 2, 2003. People v. Banks, 309 A.D.2d 1311 (4th Dept. 2003). Petitioner sought leave to appeal to the New York Court of Appeals, which was denied on December 30, 2003. People v. Banks, 1 N.Y.3d 567 (2003). This petition for habeas corpus relief followed.
A. Exhaustion and Procedural Default
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that--(A) the applicant has exhausted the remedies available in the courts of the State . . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995)." The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the state courts. Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048 (1984). However, "[f]or exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state if it is clear that the state court would hold the claim procedurally barred.'" Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263, n.9 (1989) (other citations omitted). Under such circumstances, a habeas petitioner "no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. Section 2254(b)." Id.
The procedural bar that gives rise to the finding that the claim should be deemed exhausted works a forfeiture and precludes litigation of the merits of the claim absent a showing of cause for the procedural default and prejudice resulting therefrom or by demonstrating that failure to consider the claim will result in a fundamental miscarriage of justice (i.e., actual innocence). See ...