The opinion of the court was delivered by: (nam)
MEMORANDUM-DECISION AND ORDER
A. State Court Proceedings
According to the state court records provided to this Court, on the afternoon of April 29, 2005, New York State Police Investigators Richard Butterfield and Frank Cameron were working in an undercover "buy and bust" operation in the City of Schenectady, New York. See Transcript of Trial of Rahasheem A. Brown (12/5/05) ("Trial Tr.") at pp. 368-69. While the two traveled down Emmett Street in Schenectady during that investigation, they saw a thin black male wearing a green jacket, gray jeans, and a hat. Id. at p. 371. The two investigators gestured to the man, later identified as petitioner, pro se, Rahasheem A. Brown, id. at pp. 371-72, 379-80, and Brown motioned for them to pull their automobile over. Id. at pp. 434-35. Once the officers had stopped their vehicle, Brown approached the passenger's side of the car where Investigator Cameron was seated. Id. at p. 372. Investigator Cameron asked Brown if he had any $20.00 pieces of crack
cocaine for sale, however he responded that he only had $10.00 pieces he could sell. Id. at p. 435. Investigator Cameron then asked Brown for two $10.00 pieces, and the investigator paid for those pieces by handing Brown a ten dollar bill and two five dollar bills. Id. Brown then handed Investigator Cameron two baggies containing substances that later proved to be crack cocaine. Id. at pp. 435, 586-91. After the sale to Investigator Cameron, Investigator Butterfield asked Brown, "are they big," id. at p. 372, to which Brown replied, "Yeah, they're big," and held out bags of crack cocaine for Investigator Butterfield to view. Id. Investigator Butterfield then declared that he would also purchase two baggies of crack cocaine, and handed Brown $20.00 for that purchase. Id. Brown then handed Investigator Butterfield two baggies containing items that later tested positive for the presence of cocaine. Id. at pp. 372, 586-91.
After those transactions, Investigator Butterfield asked Brown if he would "be out all day," to which Brown replied, "Yes, I'll be out all day." Id. at p. 374. Brown also provided the investigators with his cell phone number. Id. Soon thereafter, Investigator Cameron requested assistance from other officers in apprehending Brown. Id. at p. 439. In response to that transmission, Schenectady Police Officer Sean Clifford began looking for Brown in the area where the drug sales had just occurred. Id. at pp. 493-94. After a period of time, Officer Clifford observed Brown walking on Emmett Street in Schenectady. Id. at pp. 494-95. Brown noticed Officer Clifford's marked patrol car, however, and dropped items that he was holding out of his right hand. Id. at pp. 495-96. Officer Clifford succeeded in apprehending Brown, and the officer also recovered the items Brown had dropped just prior to his arrest. Id. at pp. 496-97. Those items included five baggies containing crack cocaine as well as some money. Id. at pp. 497-98, 586-91. The money recovered from Brown was then provided to Detective Daniel Moran, who compared the serial numbers on that currency with photocopies of the "buy money" that had been made for purposes of the investigation. Id. at pp. 497-500. Detective Moran determined that the serial numbers on one ten dollar bill and one five dollar bill recovered from Brown matched the serial numbers on the photocopies of the bills that had been provided to Investigators Butterfield and Cameron for their investigation. Id. at pp. 543-45.
After Brown was brought to the police station, Officer Clifford gave the $40.00 that was taken from Brown in conjunction with his arrest to Detective William Relyea, who placed the ten dollar bill and five dollar bill that had been identified as the "buy-money" in a tamper-proof evidence bag. Id. at pp. 496-98. The other $25.00 recovered from Brown was inventoried along with other personal items taken from him by booking assistant Officer Ronald Kent. Id. at pp. 598-99.
As a result of the foregoing, a Schenectady County Grand Jury returned an indictment against Brown which accused him of two counts of third degree criminal sale of a controlled substance and three counts of criminal possession of a controlled substance in the third degree. Id. at pp. 332-33.*fn1
Brown's jury trial on the above charges commenced in Schenectady County Court on December 5, 2005, with acting Schenectady County Court Judge Jerome J. Richards presiding. At the conclusion of that trial, the jury found Brown guilty of two counts of criminal sale of a controlled substance in the third degree and three counts of third degree criminal possession of a controlled substance. Trial Tr. at pp. 723-27. On February 24, 2006, Brown appeared before Judge Richards for sentencing. At that proceeding, the Trial Court sentenced Brown, as a second
felony offender, to a determinate prison term of eleven years, to be followed by three years of post-release supervision. See Transcript of Sentencing of Rahsheem Brown (2/26/06) (Dkt. No. 15-21) ("Sentencing Tr.") at pp. 15-16.
Brown appealed the foregoing convictions and sentence to the New York State, Supreme Court, Appellate Division, Third Department. Appellate counsel filed a brief in support of that appeal, see Appellate Brief on Appeal (Dkt. No. 15-1) ("App. Br."), and Brown filed a pro se appellate brief in further support of his appeal. See Dkt. No. 15-2 ("Pro Se Appellate Brief"). The Schenectady County District Attorney ("District Attorney") filed a memorandum of law in opposition, Dkt. No. 15-3, to which Brown filed a Pro Se Reply Brief. See Dkt. No. 15-4 ("Pro Se Reply"). On June 12, 2008, the Third Department affirmed Brown's convictions and the imposed sentence in all respects. People v. Brown, 52 A.D.3d 943 (3d Dept. 2008), leave denied, People v. Brown, 11 N.Y.3d 735 (2008).
On March 30, 2009, Brown filed a motion to vacate his judgment of conviction pursuant to New York's Criminal Procedure Law ("CPL"), § 440.10 ("CPL Motion"). See Dkt. No. 15-10. The District Attorney opposed that application, see Dkt. No. 15-11, and Brown filed a pro se reply affirmation in further support of his request. See Dkt. No. 15-12 ("CPL Reply"). On June 2, 2009, the County Court issued a Decision and Order that denied Brown's CPL Motion in its entirety. See Dkt. No. 15-13 ("June, 2009 Order"). Brown sought permission to appeal the denial of his CPL Motion, however on September 2, 2009, the Third Department denied that application. See Dkt. No. 15-16.
Brown commenced the present action, pro se, on February 25, 2010. See Dkt. No. 1 ("Petition"). In his pleading, he argues that he is entitled to federal habeas intervention because: i) the prosecutor engaged in misconduct; ii) he received the ineffective assistance of trial counsel; iii) the prosecutor wrongfully withheld evidence from the Grand Jury that ultimately indicted Brown; and iv) a tape recording made at the time of the alleged crimes establishes that Brown is actually innocent of all crimes of which he was convicted. See Petition, Grounds One through Four.
On December 23, 2010, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer (Dkt. No. 14) and a memorandum of law in opposition to the petition (Dkt. No. 16) ("Resp. Mem."), which memorandum was supplemented by the respondent in his letter-brief filed January 27, 2011 (Dkt. No. 18). The respondent has also provided the Court with various state court records relating to Brown's conviction. Dkt. No. 15. In opposing Brown's habeas application, respondent argues that petitioner has failed to fully exhaust all but one of his grounds for relief, and that all of his claims lack merit. See Resp. Mem.
This matter is now currently before this Court for disposition.
In opposing petitioner's application, respondent initially contends that Brown has not fully exhausted his habeas theories which allege that: i) the prosecutor engaged in misconduct by failing to advise the defense that the prosecutor intended to introduce a tape recording as evidence against Brown (Petition, Ground One); ii) the District Attorney failed to provide the defense with a photocopy of the pre-recorded "buy" money used in the undercover investigation (id.); iii) the prosecutor wrongfully utilized certain of Brown's personal effects against him at his trial (id.); and iv) the prosecution improperly failed to play to the Grand Jury an exculpatory tape recording (id., Ground Three). See Resp. Mem. at pp. 13-18. Additionally, Brown himself concedes that his fourth ground for relief, in which he argues that he is actually innocent of the crimes of which he was convicted, is unexhausted. See Dkt. No. 2 at ¶¶ 1-3; Dkt. No. 8 at p. 1 (noting that state court challenge filed by Brown after he commenced this action related to the fourth ground raised by him in his petition); Dkt. No. 17 at ¶ 1 (same); see also Petition, Ground Four.
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 (quotation omitted).*fn2 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)). 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).
Considering first the various theories asserted by Brown in his initial ground for relief, the Court notes that in his Pro Se Appellate Brief, Brown argued that the prosecutor never advised the defense of its intention to introduce any tape recording made during the drug transaction, "or any other form of intercepted evidence," into evidence against Brown. See Pro Se Appellate Brief, Point Two. In counsel's appellate brief, Brown's attorney argued that the Trial Court committed error when it permitted the District Attorney to obtain Brown's cell phone, inspect that device and thereafter introduce that item into evidence. See App. Br., Point Two. In his CPL Motion, Brown reiterated his claim that the prosecutor improperly failed to notify the defense of its intention to offer tape-recorded conversations into evidence, and he also argued that the District Attorney was wrongfully allowed to take possession of Brown's personal items and thereafter utilize those items against Brown at his trial. See CPL Motion at ¶¶ 19-21.
However, as noted ante, to exhaust a claim for federal habeas purposes, either the nature of the appellate claim itself, or the manner in which such claim was presented to the state court, "must have been likely to alert the court to the claim's federal nature." Jones, 126 F.3d at 413.
With respect to Brown's claim that the prosecution engaged in misconduct because it played tape-recorded evidence at Brown's trial, neither appellate counsel's brief, Brown's Pro Se Appellate Brief, his Pro Se Reply, his CPL Motion, nor petitioner's CPL Reply referred, in any way, to the United States Constitution, any federal case, or any federal statute in asserting that claim.*fn3 Thus, the first theory asserted by Brown in his initial ground for relief is unexhausted.
Next, this Court notes that nowhere in any of the state-court filings did Brown ever allege, as he does in the second theory asserted by him in his first ground for relief, that the prosecutor wrongfully failed to provide the defense with a photocopy of the "buy money" used during the course of the investigation that ultimately resulted in Brown's arrest and prosecution. ...