The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, who is represented by counsel, has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court of, inter alia, Murder in the First Degree. Petitioner was convicted on June 8, 2000, following a jury trial before Judge William H. Bristol. Petitioner is currently serving a sentence of life imprisonment without parole.
II. Factual Background and Procedural History
Petitioner's conviction stems from the execution-style slayings of a two-year old and a fourteen-year old boy and the shootings and repeated stabbings of three women on Remington Street in the City of Rochester in the course of a robbery at that location on March 1, 1999. The three surviving victims were Bernetta Wims ("Wims") and her two daughters, Chaquita and Shuntavia.
Petitioner was indicted in Monroe County under Indictment No. 210/1999, charging him with four counts of Murder in the First Degree (N.Y. Penal L. § 125.27(1)(a)(vii) & (b), 125.27(1)(a)(viii) & (b)); two counts of Murder in the Second Degree (N.Y. Penal L. § 125.25(3)), and three counts of Attempted Murder in the First Degree (N.Y. Penal L. §§ 110.00, 125.27(1)(a)(vii) & (b)). See Respondent's Appendix ("Appx.") B at 6.
The evidence was uncontroverted that all of the victims, except the two-year-old, had been bound, forced to the floor, blindfolded, stabbed, and shot. Petitioner, represented by the Capital Defender Office, asserted that he was either misidentified or falsely accused by the surviving victims.
Following a jury trial in Monroe County Court, he was convicted on all counts on June 8, 2000. T. 4004-4006.*fn1 Because the first-degree murder charges carried potential death penalty sentences, a penalty phase hearing was held before the same jury, which returned verdicts of life imprisonment without parole. See Mins. dated 6/23/2000 at 767-768. On July 10, 2000, petitioner was sentenced by the court to aggregate terms of imprisonment, the longest of which being life without parole. S. 22-26.
Petitioner appealed the judgment of conviction to the Appellate Division, Fourth Department, raising the following points for review: (1) illegal search and seizure; (2) petitioner's sentences were imposed pursuant to an unconstitutional deadlock jury instruction; (3) denial of a fair trial due to prosecutor's comments on summation; (4) the introduction of autopsy photographs deprived petitioner of a fair trial; (5) the trial court abused its discretion in precluding testimony that one of the victims was involved in drug activity; (6) petitioner's statements to police were the product of an arrest without probable cause; (7) petitioner's confessions should have been suppressed; (8) petitioner made a prima facie showing of gender discrimination in jury selection; (9) the lower court erred in imposing consecutive sentences; and (10) the convictions for second-degree felony murder should be dismissed as inclusory, concurrent counts of first-degree felony murder. Appx. A. The Appellate Division unanimously modified the judgment, reversing the convictions for Murder in the Second Degree and vacating the sentences imposed for Murder in the First Degree, and affirming the judgment as modified. People v. Santiago, 41 A.D.3d 1172 (4th Dept. 2007). The appellate court remitted the case to Monroe County Court for resentencing on the first-degree murder counts, id. at 1173, and on August 22, 2007, petitioner was resentenced to life imprisonment without parole on those convictions.
Petitioner then sought leave to appeal to the New York Court of Appeals on grounds (1), (3), (5), (7), and (8) above. Appx. H. Leave was denied on October 16, 2007. People v. Santiago, 9 N.Y.3d 964 (2007).
The instant petition for habeas corpus was filed with this Court on October 14, 2008, raising the following grounds for relief: (1) petitioner was denied his right to be free from illegal searches and seizures; (2) the prosecutor's comments on summation deprived petitioner of a fair trial; (3) petitioner was denied his right to a fair trial because the admission of the autopsy photos inflamed the jury; (4) petitioner was denied the right to a fair opportunity to defend himself when the trial court precluded a victim's testimony relating to her drug activity; (5) petitioner's statements to police were the product of an arrest without probable cause; (6) petitioner's confessions were elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (7) petitioner made a prima facie showing of gender discrimination during jury selection. See Petitioner's Memorandum of Law ("Pet'r Mem.") at 1-78.
For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.
A. General Principles Applicable to Federal Habeas Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
2. Exhaustion Requirement 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 . . . 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 (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. Att'y General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984).
28 U.S.C. § 2254(b)(1)(A) requires a petitioner "[to] give the state courts one full opportunity to resolve constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 842. This includes filing an application for discretionary appellate review with the State's highest court if that right is available by statute. Id. at 845; accord Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000).
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)." Grey, 933 F.2d at 120. 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., that the petitioner is actually innocent. See Coleman v. Thompson, 501 U.S. 722, 748 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986).
B. Merits of the Petition
1. Ground (1), Alleging a Fourth Amendment Violation, Is Not Cognizable On Habeas Review
Petitioner contends that his conviction was unlawful because it was obtained by the use of evidence gained pursuant to an unconstitutional search and seizure. Pet'r Mem. at 2-18.
In general, state court defendants are barred from obtaining habeas relief based upon Fourth Amendment claims. "Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494, (1976) (footnotes omitted). The Second Circuit has noted that Stone requires only that "the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim." Gates v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038 (1978) (emphasis added). A federal court may undertake habeas review only in one of two instances: (1) "if the state provides no corrective procedures at all to redress Fourth Amendment violations," or (2) if "the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process . . . ." Id. at 840; accord Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
A petitioner receives a "full and fair opportunity" to litigate his Fourth Amendment claim where the state provides a "'statutory mechanism' for suppression of evidence tainted by an unlawful search and seizure." McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983). Here, New York clearly affords defendants the requisite corrective procedures. See N.Y. Crim. Proc. L. § 710.10 et seq.; see also Capellan, 975 F.2d at 70 (noting that "federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law § 710.10 et seq. (McKinney 1984 & Supp.1988) as being facially adequate"). Thus, Petitioner may not raise his Fourth Amendment claim on habeas review because he was provided with the opportunity to fully adjudicate these matters in state court.
Although there is a possibility that habeas relief may be available on a Fourth Amendment claim "if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process," Cappellan, 975 F.3d at 70, there was no such unconscionable breakdown present on this record. Petitioner filed extensive pretrial motions seeking suppression and was accorded a full and fair hearing after which the county court issued a 64-page written decision denying suppression with one exception. Appx. B. 15-60, 344-357, 418-83. Petitioner thus does not make any claim that ...