The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Daniel Caballero ("Caballero" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in state custody. Caballero is incarcerated pursuant to judgment of conviction entered against him, following a jury trial in Monroe County Court, on charges of Sodomy in the First Degree, Sexual Abuse in the First Degree, and Endangering the Welfare of a Child. These charges stemmed from Caballero's engagement in various sexual activities with his eight-year-old step- granddaughter, TM, while she was being babysat by him.
TM spent weekends with her paternal grandmother and her step-grandfather, Petitioner, After spending the third weekend in a row at her grandparents' house, TM's mother testified that the child had trouble sleeping, started acting nervous, and told her mother that her "private area hurt a lot". Trial Transcript at pages 401-409 (hereinafter, "TT." followed by page number). The next morning, TM told her mother that the Petitioner had touched her private parts, had licked her, had fondled her, had touched her buttocks, had kissed her on her mouth and "throughout her body." Id. TM's mother telephoned the police. A warrant for Petitioner's arrest was issued.
He was picked up while he was out driving. Investigator Coniglio advised the petitioner of the charges which were pending against him, and read him his Miranda rights (TM 302, 308). Petitioner waived his rights and agreed to speak with police (TM 317-318). Upon hearing the allegations against him, the investigator testified, Petitioner put his head down and began rubbing his forehead. Petitioner stated that he did not know why he began to touch TM on her private parts; he believed his medication made him have sexual urges. Petitioner admitted to the police that he would "look at [TM] and [he] would get excited.". Petitioner admitted that he would "rub [TM's] vagina with [his] hand" and get "more excited." Petitioner told the investigators, "It was like a game we were playing, [and] she never told me to stop." Petitioner then admitted to getting on top of TM and putting his penis "on her private," that is, her vagina. Petitioner said that he might have climaxed but he did not remember. Petitioner further admitted to the investigators that he rolled TM on her stomach and then, he explained, "I began to kiss her butt with my mouth and tongue . . . My tongue went inside her butt." Petitioner said that the eight-year old child "was laughing like she was enjoying it." Petitioner said that he only did this to TM twice.
The jury found the petitioner not guilty of the first two counts of rape in the first degree and not guilty of the third count, sodomy in the first degree. However, he was found guilty of count four, sodomy in the first degree. He was found not guilty of the fifth indictment court, sexual abuse in the first degree. However, as to the sixth indictment count of sexual abuse in the first degree, he was found guilty. Petitioner was found guilty of the seventh count of the indictment, endangering the welfare of a child. He was found not guilty of the eighth and ninth indictment counts, each being rape in the first degree. He was found not guilty of the tenth and eleventh indictment counts of sodomy in the first degree, and not guilty of the twelfth and thirteenth counts of sexual abuse in the first degree, and he was found not guilty of the fourteenth count, endangering the welfare of a child. TT.772-775.
In sum, Petitioner was convicted for one count of first degree sodomy (New York Penal ("P.L.") (former) § 130.50(3)), one count of sexual abuse in the first degree (P.L. § 130.65(3)), and one count of endangering the welfare of a child (P.L. § 260.10(1)),. He was sentenced on January 8, 2003. For the sodomy conviction, Petitioner received a determinate sentence of imprisonment of 20 years. For the sexual abuse conviction, Petitioner received a determinate sentence of 7 years. For the endangering the welfare of a child conviction, Petitioner received a sentence of one year. The longer of the two sentences were to be served in state prison, while the one-year sentence was served in the county jail. All sentences were set to run concurrently with each other. See Sentencing Transcript at pages 12-14.
On November 10, 2005, the Fourth Department unanimously affirmed Petitioner's conviction. People v. Caballero, 23 A.D.3d 1031, 803 N.Y.S.2d 849 (App. Div. 4th Dept. 2005). Petitioner sough leave to appeal to the New York State Court of Appeals, raising each of the claims now asserted in his habeas petition, thereby exhausting them according to 28 U.S.C. § 2254(b)(1). On April 12, 2006, the Court of Appeals issued a certificate denying leave.
This timely federal habeas petition followed. Caballero alleges a Miranda violation, and that the jury may have convicted him of unindicted crimes. In addition, Caballero asserts that the Due Process Clause of the New York State Constitution requires that the police electronically record station-house interrogations. Respondent answered the petition, arguing that first claim is procedurally defaulted and that all three claims are without merit.
The parties consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, the petition is dismissed.
A. General Legal Principles
A procedural default generally bars a federal court from reviewing the merits of a habeas claim. Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). Thus, federal habeas review is prohibited if a state court rests its judgment on a state law ground that is "independent of the federal question and adequate to support the judgment." Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir.2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). A state procedural bar qualifies as an "independent and adequate" state law ground if "the last state court rendering a judgment in the case clearly and expressly stated that its judgment rest[ed] on a state procedural bar." Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 125 (2d Cir.1995) (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990). Thus, "federal habeas review is precluded 'as long as the state court explicitly invoke[d] a state procedural bar rule as a separate basis for decision.'" Id. (quoting Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989)). A state procedural bar will generally be adequate to preclude habeas review if it is "firmly established and regularly followed." Lee v. Kenna, 534 U.S. 362, 376 (2002) (quotation omitted)).
A habeas petitioner can overcome a procedural bar if he can show both "'cause' for noncompliance with the state rule and 'actual prejudice resulting from the alleged constitutional violation.'" Smith v. Murray, 477 U.S. 527, 533 (1986) (quoting Wainwright v. Sykes, 433 U.S. at 84); see also Murray v. Carrier, 477 U.S. 478, 485 (1986); accord, e.g., Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir.2001). The Supreme Court has described "actual prejudice" as occurring when, for example, the petitioner shows "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). A habeas petitioner establishes "cause" if he can show that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. at 496. An example of cause for default is a "showing that the factual or legal basis for a claim was not reasonably available" at the time preservation was required. Id.; see also Reed v. Ross, 468 U.S. 1, 15-16 (1984) ("Counsel's failure to raise a claim for which there was no reasonable basis in existing law does not seriously implicate any of the concerns that might otherwise require deference to a State's procedural bar."); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.1994). Ineffective assistance of counsel may constitute cause for a petitioner's failure to pursue a ...