The opinion of the court was delivered by: Hon. Hugh B. Scott
The petitioner, Luis Delatorres ("Delatorres"), seeks habeas corpus relief pursuant to 28 U.S.C. §2254 for a person in state custody.*fn1
On March 20, 2003, Delatorres was convicted of rape in the first degree (Penal Law §130.35), rape in the second degree (Penal Law §130.30), sexual abuse in the first degree (Penal Law §130.65), sexual abuse in the second degree (Penal Law §130.60), and endangering the welfare of a child (Penal Law §260.10). He was accused of sexually assaulting the 13-year old daughter of his live-in girlfriend. The alleged assault was witnessed in part by the victim's grandmother.
At the time of his arrest, Delatorres was questioned by two police officers and he gave a statement. One of the two officers, Investigator Tom Donovan, spoke only English. The second officer, Sgt. Efrain Gonzalez, spoke both Spanish and English, but was not proficient in writing Spanish, only English. Delatorres primarily speaks Spanish, but Gonzalez testified that Delatorres appeared to understand some English. The statement attributed to Delatorres was written in English by Gonzalez and then signed by Delatorres. Gonzalez testified that the statement was his interpretation of what Delatorres had said in Spanish. During the trial, the victim and her grandmother both gave eye witness testimony regarding the alleged assault. Forensic evidence was also presented demonstrating that DNA matching the defendant had been extracted from semen found in a vaginal swab from a sample taken from the victim. On April 25, 2003, Delatorres was sentenced to 20 years based upon the conviction for rape in the first degree, 2 1/3 to 7 years for rape in the second degree, and one year each for sexual abuse in the first degree and endangering the welfare of a child. All sentences to run concurrent.
Delatorres appealed his conviction to the New York State Supreme Court, Appellate Division, Fourth Judicial Department ("Fourth Department"). In that appeal, he raised three separate grounds: (1) that the statements made by Delatorres were admitted into evidence by the trial court in error; (2) that Delatorres' right to due process and a fair trial and been denied to him in that the prosecution violated a discovery statute, N.Y.C.P.L. §240.20; and (3) that there was insufficient evidence to support a conviction for two of the indicted counts, Rape in the First Degree and Sex Abuse in the Second Degree. On November 17, 2006, the Fourth Department denied Delatorres' appeal. (Docket No. 1 at page 11). Delatorres filed for leave to appeal with The State of New York, Court of Appeals on December 12, 2006. In that application, Delatorres asserted, for the first time, that he was denied effective assistance at trial and upon appeal (Docket No. 1 at page 14). Permission for leave to appeal was denied by The Court of Appeals on March 5, 2007. (Docket No. 1 at page 13).
Delatorres filed the instant petition for Writ of Habeas Corpus on March 3, 2008, raising two separate grounds for relief: (1) that he was denied the right of appeal by virtue of ineffective assistance of appellate counsel; and (2) that he was denied effective assistance of trial counsel.
Under 28 U.S.C. § 2244(d)(1), in as much as the petitioner did not file a petition for certiorari with The United States Supreme Court, he had one year and ninety days from the date of denial of his appeal to the New York State Court of Appeals in which to file the instant petition for habeas relief in the District Court. The petitioner's appeal to the New York Court of Appeals was denied on March 5, 2007. The instant petition was filed on March 3, 2008 and is therefore timely.
In the interest of comity and in keeping with the requirements of 28 U.S.C. §2254(b), federal courts will not consider a constitutional challenge that has not first been "fairly presented" to the state courts. See Ayala v. Speckard, 89 F.3d 91 (2d Cir. 1996) citing Picard v. Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General of New York, 696 F. 2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). A state prisoner seeking federal habeas corpus review must first exhaust his available state remedies with respect to the issues raised in the federal habeas petition. Rose v. Lundy, 455 U.S. 509 (1982). To meet this requirement, the petitioner must have raised the question in a state court and put the state appellate court on notice that a federal constitutional claim was at issue. See Grady v. Le Fevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984).
The respondents assert that the petitioner's claim of ineffective appellate counsel has not been exhausted. The record supports this contention. This claim was not raised by the petitioner in his state court appeal to the Fourth Department. A claim that the petitioner was denied his right to appeal by virtue of ineffective assistance of appellate counsel on his appeal to the Appellate Division must be raised by way of a coram nobis motion before the Appellate Division. See People v. Bachert, 69 N.Y.2d 593 (1987). The petitioner has not done so and therefore the issue is unexhausted for the purposes of habeas review.
Despite this failure of the applicant to exhaust state court remedies, 28 U.S.C. § 2254(b)(2) provides the Court with discretion to deny (but not to grant) an application for a writ of habeas corpus on the merits. Based upon the circumstances presented in this case, ...