The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Dale Mahoney ("Petitioner") 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 April 9, 2002, in Supreme Court, Monroe County, State of New York, convicting him, after a jury trial, of Manslaughter in the First Degree (New York Penal Law ("Penal Law") § 125.20(1)). For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
The charges arise out of an altercation that occurred on September 2, 2001 in Rochester, New York between Petitioner and William Annor ("Annor" or "the victim").
Annor, who sold candy from his apartment, allegedly made improper sexual advances toward several young girls in his neighborhood. One of the girls was Petitioner's girlfriend's daughter. Trial Transcript [T.T.] 228-29, 254-55, 284, 394. Two of the girls, the mothers of the two girls, and Petitioner confronted Annor with the allegations at Annor's residence. T.T. 124, 140-43, 166, 176-82, 204-11. Petitioner punched Annor several times in the face, head, or chest. T.T. 144-46, 183-85, 211, 223, 248-49. Annor fell to the ground, and Petitioner repeatedly kicked him about the face. T.T. 147-48, 186-87. Annor subsequently died from his injuries. T.T. 327. While the victim was on the ground, Petitioner went through his pockets looking for money. T.T. 148. In two signed statements to police, Petitioner confessed that prior to going over to the victim's apartment, he and another individual had discussed taking some candy from the victim. T.T. 397. Petitioner also indicated in these statements that he wore gloves to the victim's apartment because he did not want to hurt his hands when he hit the victim, and did not want to leave fingerprints behind when he took the candy. T.T. 394, 397.
After a jury trial, Petitioner was convicted of Manslaughter in the First Degree. He was sentenced as a violent felony offender to fifteen and one-half years imprisonment.
Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department, and his conviction was unanimously affirmed. People v. Mahoney, 6 A.D.3d 1104 (4th Dep't 2004). Petitioner sought leave to appeal to the New York State Court of Appeals, which was denied on July 15, 2004. People v. Mahoney, 3 N.Y.3d 660 (N.Y. 2004).
No post-collateral motions were filed.
This habeas corpus petition followed, wherein Petitioner makes two claims: ineffective assistance of trial counsel and the verdict was against the weight of the evidence. The former, which Petitioner failed to properly exhaust in the state courts, is deemed exhausted but procedurally defaulted. 28 U.S.C. § 2254(b)(1)(A); see Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). The latter is exhausted and properly before this Court, but does not present an issue cognizable on habeas review. U.S.C. § 2254(a); see Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).
III. Exhaustion Requirement
"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 . . . 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).
1. Ineffective Assistance of ...