The opinion of the court was delivered by: Thomas J. Mcavoy United States District Judge
A. State Court Proceedings
According to the state court records provided to this Court, on January 19, 2006, a Columbia County Grand Jury charged petitioner, pro se Dominick DeDeo with five counts of Grand Larceny in the Second Degree, in violation of New York Penal Law ("Penal Law") § 155.40(1), two counts of Grand Larceny in the Third Degree, contrary to Penal Law § 155.35, and one count of Scheme to Defraud in the First Degree, in violation of Penal Law § 190.65(1)(b). See Indictment No. 06-001AG (Dkt. No. 12-1 at pp. 58-61) ("Indictment").*fn1 The Bill of Particulars filed by the prosecutor detailed the specific amounts of money alleged to have been stolen by DeDeo from the seven victims named in the larceny counts of the Indictment, as well as the dates of those claimed thefts. See Bill of Particulars (Dkt. No. 12-1 at pp. 62-66) ("Bill of Particulars"). The Bill of Particulars explained that the larcenies charged in counts One through Seven "were committed as part of this scheme to defraud." Id. at p. 5.
At a pretrial conference before Columbia County Court Judge Paul Czajka, DeDeo's counsel noted that he had been informed by the prosecutor that she intended to call investor clients of DeDeo who were not named in the Indictment as witnesses in support of the scheme to defraud charge. Dkt. No. 12-1 at p. 67. Defense counsel argued that the proposed witnesses should be precluded from testifying because they had "no jurisdictional relationship whatsoever to Columbia County." Id. at p. 72. The prosecutor then explained that the proposed witnesses were "part of [DeDeo's] scheme to defraud," and that there was a "jurisdictional predicate" for the testimony of all of their proposed witnesses because "at least one of [DeDeo's] acts occurred in Columbia County." Id. at p. 74. After a detailed discussion between the prosecutor and Trial Court on the issue of which witnesses the prosecution intended to call in support of the charges brought against DeDeo, see id. at pp. 74-81, the Court asked the Assistant District Attorney why she had limited her Bill of Particulars to the seven victims named in the larceny counts. Id. at p. 82. The prosecutor then explained that it "certainly wasn't [her] intent" to only limit her proof to the victims listed in a larceny counts, id. at p. 83, and noted that she had previously provided DeDeo's counsel with a "spreadsheet showing the dollar amounts and the checks, and a stack of 50 pages, one for each victim" of DeDeo's crimes, including victims not specifically identified in the larceny charges Id. at pp. 91-92. The prosecutor then stated that if the Bill of Particulars was being "misconstrued to somehow limit it to just counts 1 to 7, which was not our intent, then we move to amend the Bill of Particulars to say: 'But the victims named in counts 1 through 7 are not the only victims.' " Id. at p. 98. The Trial Court then asked defense counsel what he would need if the court were to grant the prosecution's request to modify the Bill of Particulars. Id. at pp. 101-02. Defense counsel advised the court that he would request a limiting instruction from the court when testimony relating to the eighth count was presented to the jury, but specifically informed Judge Czajka that defense counsel did not want additional time to supplement his defense to the charges brought against DeDeo. Id at p. 103. The County Court ultimately allowed the prosecutor to amend the Bill of Particulars.
DeDeo's jury trial on the above charges commenced in Colombia County Court before Judge Czajka. During the course of jury selection, in response to defense counsel's voir dire questioning of Juror No. 105, that prospective juror initially indicated that he thought that DeDeo would not be in court unless he were guilty. Dkt. No. 12-1 at p. 114. The Trial Court then asked the juror whether he could "set aside that inclination . . . and follow the law exactly as I give it to you, including that most basic principle . . . that the Defendant is presumed to be innocent." Id. at p. 114-15. Juror No. 105 said "[y]es." Id. at p. 116. As the voir dire continued, Juror No. 105 said to defense counsel, "I think it's . . . your responsibility as [DeDeo's] lawyer to prove to us [DeDeo's innocence] beyond a reasonable doubt." Id. at p. 118. The court, however, corrected that erroneous belief and specifically explained that "[o]nly the People . . . have the burden of proof. [DeDeo] does not have to prove his innocence. He doesn't have to prove anything." Id. at p. 119. Juror No. 105 responded "I understand," id. at p. 120, and when the court pressed further, "[a]nd are you able to follow those principles of law," he replied "[i]n principle, yes." Id. The questioning of that prospective juror continued for a brief period of time, after which defense counsel challenged Juror No. 105 for cause. Id. at pp. 124-25. The prosecutor opposed that application, and the Court denied the request, finding that the prospective juror's responses "indicate to [the court] clearly and without any question that he . . . was capable of following the instructions and holding the people to their burden and following all those other basic principles." Id. at p. 125.
In presenting its evidence against DeDeo, the Assistant District Attorney called, inter alia, DeDeo's son, Joseph DeDeo. See Transcript of Trial of Dominick DeDeo (reproduced in Appellant's and Appellee's Appendices on Appeal) (Dkt. Nos. 12-1, 12-2 and 12-6) (collectively "Trial Tr.") at p. 265. He testified that in 1994 or 1995, he and his father created Lark Estate Organizers, an estate planning business. Id. at p. 266. They purchased a mailing list of people who were "[o]ver 45, over 50, something to that effect" and sent mailings that permitted people to tear off a response card to request a consultation. Id. at pp. 267-68. The two would discuss estate planning with prospective clients, many of whom ultimately purchased living trusts. Id. at p. 268. The prosecution also called several victims of DeDeo crimes who testified about their interactions with DeDeo and the money they lost as a result of their investments with companies in which he was involved. In summarizing their testimony, the Appellate Division noted that "[f]ive clients testified that, after being solicited by [DeDeo, they] liquidated assets, invested the proceeds with [DeDeo] in exchange for his promise of a certain rate of return and never recouped what they were promised. They also testified that [DeDeo] failed to return the principal invested by them despite their requests that he do so." People v. DeDeo, 59 A.D.3d 846, 849 (3d Dep't 2009).
At the conclusion of his trial, the jury found DeDeo guilty of all of the crimes charged. Trial Tr. at pp. 801-04. On August 7, 2006, the County Court sentenced DeDeo to an aggregate, indeterminate prison term of between nineteen and two-thirds to fifty-nine years. See Transcript of Sentencing of Dominick DeDeo (Dkt. No. 12-2) at p. 50. That court also ordered DeDeo to pay restitution in the amount of $1,841,780.28. Id. at pp. 36-37.
In August, 2008, DeDeo filed, through counsel, an appeal relating to the foregoing conviction with the New York State, Supreme Court, Appellate Division, Third Department. See Appellate Brief on Appeal (Dkt. No. 12-1) ("App. Br.") at pp. 2-53. In that appellate brief, counsel argued that: i) the verdict was against the weight of the evidence; ii) the court's order which permitted the prosecutor to amend the Bill of Particulars served to improperly constructively amend the Indictment; iii) the Trial Court erred in denying defense counsel's for cause challenge to a juror; and iv) DeDeo's sentence was harsh and excessive. Id. On August 14, 2008, DeDeo filed a pro se supplemental brief in further support of his appeal in which he argued that: i) the County Court lacked geographical jurisdiction to hear the case; ii) the Trial Court's restitution order was improper as it reimbursed victims who were not the subject of the charges; and iii) the prosecutor exceeded her authority by presenting to the Grand Jury evidence obtained through "Martin Act" subpoenas.*fn2 See Dkt. No. 12-4 ("Pro Se Appellate Brief"). On February 26, 2009, the Appellate Division unanimously affirmed DeDeo's conviction. See DeDeo, 59 A.D.3d at 846-851. DeDeo's counsel sought leave to appeal that decision from the New York Court of Appeals, see Dkt. No. 12-10 ("Leave Application"), however on March 31, 2009, that application was denied. See People v. DeDeo, 12 N.Y.3d 782 (2009), reconsideration denied, People v. DeDeo, 12 N.Y.3d 914 (2009).
Petitioner commenced the present action, pro se, on August 19, 2009. See Petition. In support of his request for federal habeas intervention, DeDeo argues: i) the verdict was against the weight of the evidence; ii) the Indictment was improperly, constructively amended because the Trial Court wrongfully allowed the prosecutor to amend the Bill of Particulars on the eve of trial; iii) the County Court erred in denying DeDeo's for cause challenge concerning Juror No. 105; iv) DeDeo's sentence is unduly harsh and excessive; v) the Trial Court lacked geographical jurisdiction over the first two counts of the Indictment and that the County Court lacked such jurisdiction over the remaining counts in the Indictment as a matter of law; vi) the County Court's restitution order is illegal; and vii) the prosecutor utilized "illegally procured" evidence to secure the Indictment. See Petition at ¶ 12.
On November 2, 2009, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to DeDeo's petition. Dkt. No. 10. Respondent also filed a memorandum of law in opposition to the petition (Dkt. No. 11) ("Resp. Mem."), as well as various state court records relating to DeDeo's conviction. Dkt. No. 12. In opposing DeDeo's habeas application, respondent argues that petitioner is procedurally barred from obtaining the relief he seeks as to certain of his grounds for relief, and that all of his claims lack merit. See Resp. Mem. By Text Order entered March 31, 2010, DeDeo was afforded the opportunity to file a Traverse in further support of his petition, however by letter filed September 30, 2010, DeDeo advised the Court that he would not be filing any Traverse in this action. Dkt. No. 20.
This matter is now currently before this Court for disposition.
As noted above, respondent claims that DeDeo is procedurally barred from pursuing several of the grounds for relief he has asserted herein. See Resp. Mem. In support of this argument, respondent contends that DeDeo has not fully exhausted his claims which allege that:
i) the jury's verdict was against the weight of the evidence; ii) the Trial Court wrongfully allowed the constructive amendment of the Indictment; iii) the County Court improperly denied defense counsel's for cause challenge to Juror No. 105; iv) the Trial Court lacked geographical jurisdiction over DeDeo with respect to the first two counts in the Indictment; and v) the restitution order imposed on DeDeo by the Trial Court must be vacated. See Resp. Mem. at pp. 19-23.
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).*fn3 Thus, this Court must determine whether petitioner has fully exhausted the above-mentioned grounds for relief.
A petitioner exhausts his 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 Gen., 280 F.3d 87, 94 (2d Cir. 2001) (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)).*fn4
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). Moreover, a petitioner must have asserted all claims for which federal habeas review is sought in his application seeking leave to appeal from New York's Court of Appeals. See Galdamez, 394 F.3d at 74-75 (citations omitted); Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (describing process for seeking leave to appeal to New York's Court of Appeals); Jamison v. Girdich, No. 03 CIV.4826, 2005 WL 2338660, at *4 (S.D.N.Y. Sept. 26, 2005); Geraci v. Sheriff, Schoharie County Jail, No. 9:99-CV-0405, 2004 WL 437466, at *3 (N.D.N.Y. Feb. 20, 2004) (Sharpe, J.) (citations omitted).
Nowhere in petitioner's appellate brief did counsel cite, or refer in any way, to any federal case, statute or provision of the United States Constitution, when counsel asserted his appellate arguments that the convictions were against the weight of the evidence,*fn5 or that the Trial Court wrongfully permitted the constructive amendment of the Indictment by allowing the prosecution to amend the Bill of Particulars. See App. Br. at pp. 26-33. DeDeo's Pro Se Appellate Brief similarly failed to alert the Appellate Division of the presence of a federal claim with respect to his arguments that the Trial Court lacked geographical jurisdiction over DeDeo with respect to the first two counts in the Indictment, and/or that the restitution portion of the County Court's sentence must be vacated. See Pro Se Appellate Brief at pp. 5-7, 13-17.
Moreover, none of the state court decisions cited by appellate counsel in the portions of that brief relating to the weight of the evidence adduced at trial, or the claimed constructive amendment of the Indictment, refer to any decision of any federal court, or any provision of the United States Constitution, in the portions of those state court opinions which address appellate claims similar to those asserted by DeDeo in this action. See App. Br. at pp. 26-30 (appellate claim challenging the weight of evidence) (citing People v. Cahill, 2 N.Y.3d 14, 57-61 (2003); People v. Luongo, 47 N.Y.2d 418, 427-30 (1979); People v. Churchill, 47 N.Y.2d 151, 157-59 (1979); People v. Ferry, 142 A.D.2d 994, 994-95 (4th Dept. 1988); People v. Valenza, 60 N.Y.2d 363, 368-70 (1983); People v. Gannett, 49 N.Y.2d 296, 301-03 (1980); and People v. Mikuszewski, 73 N.Y.2d 407, 412-16 (1989)); App. Br. at pp. 31-33 (appellate challenge concerning change to Bill of Particulars and alleged constructive amendment of Indictment) (citing People v. McAfee, 76 A.D.2d 157, 159 (3d Dept. 1980); People v. Keller; 204 A.D.2d 767, 767-68 (3d Dept. 1994); People v. Utter, 76 A.D.2d 1013, 1013-14 (3d Dept. 1980); and People v. Young, 33 A.D.3d 1120, 1122-24 (3d Dept. 2006).
Additionally, the state court cases cited by DeDeo in the portion of his Pro Se Appellate Brief in which he claimed that the County Court lacked geographic jurisdiction over DeDeo with respect to the first two counts in the Indictment, and that challenged the propriety of the restitution order, similarly fail to cite any decision of any federal court, or any federal statute or provision of the United States Constitution, in their decisions addressing those aspects of the appellate claims before them. See Pro Se Appellate Brief at pp. 5-7 (asserting geographic jurisdictional challenge to portions of the Indictment) (citing Taub v. Altman, 3 N.Y.3d 30 (2004); and In re City of Buffalo, 139 N.Y. 422 (1893)); Pro Se Appellate Brief at pp. 13-17 (challenging restitution portion of sentence) (citing People v. Buza, 166 A.D.2d 774, 775-76 (3d Dept. 1990); People v. Miller, 251 A.D.2d 747, 748 (3d Dept. 1998); People v. Casiano, 8 A.D.3d 761, 761-62 (3d Dept. 2004); People v. Harden, 174 A.D.2d 691, 692 (2d Dept. 1991); People v. Barnes, 135 A.D.2d 825, 826-27 (2d Dept. 1987); and People v. Melvin, 11 A.D.3d 639, 639-640 (2d Dept. 2004)). Thus, Grounds One, Two, Five and Seven of DeDeo's petition are patently unexhausted.
Furthermore, in his application seeking leave to appeal from the Court of Appeals, DeDeo requested that such court consider the following appellate issues in determining whether to grant that leave application: i) the Trial Court wrongfully allowed the prosecution to constructively amend the Indictment; ii) the County Court lacked geographical jurisdiction over the conduct alleged in Counts One, Two, and Eight of the Indictment; iii) the Trial Court's restitution order was illegal; and iv) the Attorney General illegally obtained evidence against DeDeo through the use of unlawful subpoenas. See Leave Application at pp. 3-4. Such application did not contain any request that New York's Court of Appeals review DeDeo's appellate claim that he was denied his right to a fair trial, before an impartial jury, because the Trial Court wrongfully denied defense counsel's for cause challenge regarding Juror No. 105. See id. at pp. 1-6.*fn6 Therefore, DeDeo has also failed to fully exhaust the claim he asserts in his third ground for relief.
When a claim has 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, 118 F.3d 136, 139 (2d Cir. 1997)); see also Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000).*fn7 Therefore, this Court must determine whether it would ...