The opinion of the court was delivered by: Eric N. VITALIANO United States District Judge
Petitioner James Bumpus is once again before this Court on his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the writ is denied and his petition is dismissed.
On September 6, 2007, the Court found that all but one of Bumpus's federal claims were procedurally barred from habeas corpus review because they had not been "fairly presented" to the New York Court of Appeals.*fn2 Accordingly, the Court dismissed those claims on exhaustion grounds. In its February 20, 2009 summary order, the Second Circuit vacated the dismissal of Bumpus's petition and remanded for further proceedings. See Bumpus, 311 Fed. Appx. Specifically, the Circuit held the Court's judgment to be at odds with Morgan v. Bennett, 204 F.3d 360 (2d Cir. 2000), in which the Circuit determined that, where a petitioner's "first letter to the [New York] Court of Appeals seeks leave to appeal all arguments raised in attached Appellate Division briefs, a follow up letter addressing only some of those arguments in more detail does not serve to narrow the scope of the claims 'fairly presented' by the first letter." 311 Fed. Appx. at 401 (citing Morgan, 204 F.3d at 370; Davis v. Strack, 270 F.3d 111, 122-23 (2d Cir. 2001)). The Second Circuit, having found that "nothing in Bumpus's August 8[, 1990] letter 'affirmatively directed the Court of Appeal's attention away from claims contained in the attached briefs,'" id. at 402 (citing Galdamez v. Keane, 394 F.3d 68, 76 (2d Cir. 2005)), rejected this Court's conclusion that the state's high court had been deprived of an opportunity to review the claims now re-presented here in Bumpus's petition for habeas corpus. The silence in Bumpus's pro se letter about these claims while advancing another claim was not tantamount to a withdrawal of all the unmentioned claims that were contained in the briefs to the Appellate Division, which had been attached to his counsel's initial request for leave to appeal. Id. at 401-02. The Second Circuit noted, however, that it expressed no opinion as to the merits of the claims that this Court had dismissed as procedurally barred or as to whether Bumpus had exhausted his challenge to the admission at trial of certain grand jury testimony (mentioned in his brief to the Appellate Division).*fn3 Id. at 402.
Following remand, Bumpus filed a memorandum of law in support of his petition on July 3, 2009. Relying on the nine claims*fn4 for relief argued in his previously submitted memoranda, Bumpus further argues now that he was "denied due process and equal protection by the arbitrary denial of his application for leave to appeal to the Court of Appeals," given that "his identically situated co-defendant was granted such leave and access." (Brief of Petitioner-Appellant James Bumpus (Doc. #64 ("Bumpus Br.")) at 9.) The district attorney answered, arguing, inter alia, that Bumpus's claim that he was deprived of his rights to equal protection and due process does not warrant habeas relief. Following Bumpus's reply, the motion was submitted for decision.
As is well-engrained now, driven by AEDPA,*fn5 a federal court is not free to issue a writ of habeas corpus under the independent "contrary to" clause of §2254 unless "the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., for the Court, Part II) (citation omitted). Similarly, a federal court cannot issue the writ under the independent "unreasonable application" clause unless "the state court identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Id. at 413. But, a state court's "unreasonable application" of law must have been more than "incorrect or erroneous": it must have been "'objectively unreasonable.'" Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001) (citing Williams, 529 U.S. at 409 (O'Connor, J., for the Court, Part II)). Lastly, claims that were not adjudicated on the merits in state court are not subject to the deferential standard*fn6 that applies under AEDPA. See, e.g., Cone v. Bell, 129 S.Ct. 1769, 1784 (2009) (citing 28 U.S.C. § 2254(d)).
In its September 6, 2007 decision, the Court stated that, to the extent that Bumpus claimed that the New York Court of Appeals denied him equal protection on his appeal vis-à-vis its handling of the appeal of his co-defendant Rodney Russ, such claim was baseless because "[t]he disparate outcomes resulted not from an unfair application of a rule, but from the presentation of different issues for review." See Bumpus, 507 F. Supp. 2d at 261 n.8 (citation omitted). The Second Circuit's holding on the appeal of that decision works a very significant change: the finding of differing issue presentment is no longer supportable. The Circuit has determined that Bumpus, however mercurially, fairly presented to the New York Court of Appeals the very same issues presented by Russ, including the improper admission of the grand jury testimony of witness Gonzalez-the ground on which Russ not only won leave to appeal but reversal. See, e.g., id. at 255-56. Thus, the majority of Bumpus's remaining habeas claims*fn7 may be addressed on the merits pursuant to AEDPA's deferential standard of review, since they were clearly adjudicated by the Appellate Division. Ultimately, none is meritorious.
In addition to these claims, Bumpus raised an argument in state court (for example, on a pro se motion for reconsideration to the Appellate Division) following the reversal of Russ's conviction that "the due process [and] equal protection clause of the Fourteenth Amendment dictates that each similarly [situated] criminal defendant must receive the same application of the law." (Memorandum of Law in support of motion for reconsideration to Appellate Division, dated Aug. 29, 1994, at 1.) On the instant remand, Bumpus renews that argument, claiming that he was "denied due process and equal protection by the arbitrary denial of his application for leave to appeal to the Court of Appeals," given that "his identically situated co-defendant was granted such leave and access." (Bumpus Br. at 9.) Though vexing, this constitutional claim fails whether reviewed under AEDPA's deferential standard or de novo. See Knowles v. Mirzayance, 129 S.Ct. 1411, 1415 (2009) (deciding a habeas corpus petition under both standards of review).
Viewed through the AEDPA prism, the denial of Bumpus's applications for leave to appeal by the New York Court of Appeals was not contrary to, nor did it involve an unreasonable application of, clearly established federal law (pertaining to the due process clause, the equal protection clause, or otherwise). See 28 U.S.C. § 2254(d)(1). In such circumstance, given the absence of any holdings from the Supreme Court regarding a due process or an equal protection right to file a discretionary appeal,*fn8 the Court has no authority, under 28 U.S.C. § 2254, to grant Bumpus's petition for habeas corpus on this ground. See Carey v. Musladin, 549 U.S. 70, 77 (2006); see also Wright v. Van Patten, 552 U.S. 120, 126 (2008); cf. Evitts v. Lucey, 469 U.S. 387, 402 (1985); Harris v. Rivera, 454 U.S. 339, 342 (1981) (reversing habeas relief grounded on strength of co-defendant's acquittal at the same trial where the Second Circuit's "constitutional holding was unprecedented"); Cupp v. Naughten, 414 U.S. 141, 146 (1973) (stating, in the context of a challenged jury instruction, that, "[b]efore a federal court may overturn a conviction resulting from a state trial . . ., it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.").
In any event, even reviewing the disparate judicial treatment claim asserted by Bumpus unfettered by AEDPA, the Court finds that the refusal of the New York state courts to accord him the benefit of the Russ ruling as reflected in the denials of his post-judgment motions and of his leave to appeal applications were not violations of equal protection or of due process. In addition, Bumpus's claim regarding the admission of the grand jury testimony of witnesses Lawrence and Gonzalez fails under the exhaustion doctrine, and, further, even if it were not unexhausted, would fail on the merits. A similar fate befalls petitioner's remaining claims, that is, though exhausted, as determined by the Circuit, they are ultimately meritless.
I. The New York Court of Appeals' Denial of Bumpus's Application for Leave to Appeal Was Not Contrary to Clearly Established Federal Law
For almost all criminal appeals, the New York Court of Appeals is a court of discretionary appeal and, for coram nobis petitions, the Appellate Divisions are likewise. See N.Y. CRIM. PROC. LAW §§ 450.90(1), 460.20. The saga of the two co-defendants grew intense when New York's high court granted leave to co-defendant Russ, announced a new rule of state criminal procedure, and reversed his conviction. The same state court system had refused leave to Bumpus repeatedly (even after Russ was handed down) and let his conviction at the same trial of the same charges and on the same evidence before the same judge and jury stand. Given the disparate results on identical facts and law, Bumpus challenges the discretionary criminal justice process and the substantive product of its handiwork. He does not cite to, and the Court has not found, any reported Supreme Court decisions holding that there is a right through any federal constitutional or statutory provision that guarantees the convicted access to a court of discretionary appeal. See also Coleman v. Thompson, 501 U.S. 722, 756 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987); cf. Ross v. Moffitt, 417 U.S. 600, 614-16 (1974) (holding that criminal defendants have a right to counsel only on appeals as of right, not on discretionary state appeals); id. at 610, 619. This is not surprising, both because of the very nature of a discretionary appeal and because "there is no federal constitutional right to state appellate review of state criminal convictions." Estelle v. Dorrough, 420 U.S. 534, 536 (1975) (citations omitted); see also Halbert v. Michigan, 545 U.S. 605, 610 (2005) ("The Federal Constitution imposes on the States no obligation to provide appellate review of criminal convictions." (citation omitted)); Ross, 417 U.S. at 611 ("[I]t is clear that the State need not provide any appeal at all." (citation omitted)); Griffin v. Illinois, 351 U.S. 12, 18 (1956) ("It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all." (citation omitted)); McKane v. Durston, 153 U.S. 684, 687 (1894) ("An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal." Plainly, "[a] review by an appellate court of the final judgment in a criminal case . . . is not . . . a necessary element of due process of law. It is wholly within the discretion of the State to allow or not allow such a review."); cf. Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir. 2002) ("The appellant has no right to have his appeal heard by the [New York] Court of Appeals. Whether the appeal will be heard in the Court of Appeals is a discretionary decision." (citing N.Y. CRIM. PROC. LAW § 460.20(4))).
Quite to the contrary of petitioner's essential grievance, there is at least one Supreme Court decision suggesting that a habeas court is without authority to set aside a conviction where the ground advanced was simply that state courts allowed to stand a conviction on a verdict inconsistent with the verdict rendered in the same trial for a co-defendant. See Harris, 454 U.S. In Harris, the Second Circuit held that the state court judge had rendered inconsistent verdicts in convicting the petitioner but acquitting his co-defendant. The Circuit then entered an order requiring that the petitioner be granted a new trial or that the state trial court be required to demonstrate that there was a rational basis for the facially inconsistent verdicts. Id. at 341-42. The Supreme Court reversed, holding that "[i]nconsistency in a verdict is not a sufficient reason for setting it aside." Id. at 345. Indeed, even if the state court judge made an error of law in acquitting the co-defendant, "[t]here is no reason -- and surely no constitutional requirement --that such an error pertaining to the case against [the co-defendant] should redound to the benefit of" the startled habeas petitioner. Id. at 347.
By analogy, then, assuming New York courts erred under New York law in granting Russ leave to appeal, there is no constitutional requirement that Bumpus become the co-beneficiary of such bad judgment. See Standefer v. United States, 447 U.S. 10, 25 (1980) ("[W]e are thus inclined to reject, at least as a general matter, a rule that would spread the effect of an erroneous acquittal to all those who participated in a particular criminal transaction." (citation omitted)). As the Supreme Court noted in Beck v. Washington, "the Fourteenth Amendment does not 'assure uniformity of judicial decisions . . . [or] immunity from judicial error . . . .' Were it otherwise, every alleged misapplication of state law would constitute a federal constitutional question." 369 U.S. 541, 554-55 (1962) (quoting Milwaukee Elec. Ry. & Light Co. v. Wisconsin ex rel. Milwaukee, 252 U.S. 100, 106 (1920)); see also Matos v. Irvin, No. 95-2855, 1996 U.S. App. LEXIS 30024, at *5 (2d Cir. Nov. 15, 1996) (stating that petitioners had failed to demonstrate that, of the two inconsistent decisions from the appellate court, "theirs was wrong. Their argument depends on the proposition that a ruling of law that benefits one defendant in a criminal case must be applied to the benefit of all similarly situated defendants, regardless whether the ruling is correct. There is no support in law for such a contention." (citing Harris, 454 U.S. at 347)).
Cases relied upon by Bumpus are not at odds. Cochran v. Kansas, for example, addressed a claim that officials of the state penitentiary sabotaged appeal documents that petitioner had prepared, causing petitioner to miss the two-year limitation period allowed by state statute. 316 U.S. 255, 256 (1942). The Supreme Court reversed the denial of his petition for habeas corpus, stating that, if the petitioner's allegations held true, there was a clear violation of the equal protection clause. Id. at 257. Here, there was no state interference with Bumpus's right to appeal. That the New York courts denied leave does not mean that Bumpus was refused any right or privilege of appeal that was afforded to his co-defendant or anyone else. See id. at 258; see also N.Y. CRIM. PROC. LAW §§ 450.90(1), 460.20.
Another, Griffin, restates the obvious: "all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court.'" 351 U.S. at 17 (citation omitted). It adds nothing to petitioner's argument. The Supreme Court was simply referring to the fact that due process and equal protection rights protect all persons, rich and poor, from invidious discrimination at all stages of criminal proceedings. Id. at 17-18 (citations omitted). The cite is an ipse dixit; it in no way gives guidance as to whether the disparate results rendered to Bumpus ...