The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Jesus Gonzalez ("Petitioner") challenges the constitutionality of his State custody by way of a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Gonzalez was convicted after a non-jury of, inter alia, attempted sodomy in the first degree, attempted sodomy in the second degree, and attempted sexual abuse in the first degree, for sexually assaulting an elderly woman with advanced dementia while he worked as an aide at a residential facility for persons with Alzheimer's disease. Gonzalez is currently serving concurrent maximum sentences on all charges, the longest of which if fifteen years, to be followed by a five-year term of post-release supervision.
II. General Legal Principles
Federal review of a State court conviction is limited to errors of Federal constitutional magnitude that denied a criminal defendant the right to a fundamentally fair trial. See Cupp v. Naughton, 414 U.S. 141 (1973). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to Gonzalez's petition, a Federal court may grant habeas relief on a claim that was "adjudicated on the merits" in state court if it resulted in a decision that either was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of the facts in light of the evidence presented . . . ." 28 U.S.C. § 2254(d)(1), (2).
A. Ground One: Ineffective Assistance of Trial Counsel
Petitioner contends that he was denied effective assistance of counsel because counsel (1) failed to call as witnesses certain co-workers to testify as to bias and motive to lie on the part of an eyewitness; (2) failed to object to bolstering and hearsay; (3) failed to effectively cross-examine the senior administrative staff; (4) failed to ask prosecution witnesses why they did not report prior incidents; (5) failed to move for sanctions for an alleged disclosure violation; (6) failed to call an expert witness on the issue of the victim's inability to consent; (7) failed to renew a motion for a trial order of dismissal at the close of all proof; and (8) failed to ensure that Petitioner was present at all sidebar conferences.
"[A] federal court must consider whether a habeas petitioner adequately exhausted state remedies by fairly presenting both the factual and legal premises for his federal claim to the appropriate state courts." Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir. 2009) (citations omitted). Petitioner's main brief before the Appellate Division addressed (6) and (7) as alleged bases for a claim of ineffective assistance. However, as Respondent argues, the remaining grounds petitioner now raises for his claim of ineffective assistance were never presented in state court. Thus, as to those grounds, Petitioner has failed to exhaust his state remedies. Caballero v. Keane, 42 F.3d 738, 740-41 (2d Cir. 1994) (all of the allegations supporting an ineffective assistance of trial counsel claim must have been presented to the state courts, allowing them the opportunity to consider all the circumstances and cumulative effect of the claims as a whole).
Petitioner's remaining claims of ineffective assistance of trial counsel (claims (1) through (5) and (8)) should be "deemed exhausted" but procedurally defaulted. "[W]hen 'the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,'" federal habeas courts also must deem the claims procedurally defaulted." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001)(citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
Petitioner cannot return to State court to exhaust these claims because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Court Rules § 500.20(a)(2) (providing in relevant part that "only one application is available [for leave to appeal to the Court of Appeals in a criminal case]"). If he were to raise it in a motion to vacate, it would be mandatorily dismissed under C.P.L. § 440.10(2)(c) because the claims could have been raised on direct appeal. It is true that "New York courts have held that some ineffective assistance claims are 'not demonstrable on the main record' and are more appropriate for collateral or post-conviction attack, which can develop the necessary evidentiary record." Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir.1983) (quotation and citation omitted)). However, these claims--such as the failure to cross-examine and the failure to ensure Petitioner's presence at sidebars--all pertain to matters that are readily discernable on the trial record and could have been raised on direct appeal. Furthermore, appellate counsel did raise an argument concerning trial counsel's performance on direct appeal but did not include these specific claims.
The procedural bar that results in the constructive exhaustion of the claims also creates a procedural default. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). Courts will not review the merits of procedurally defaulted claims unless the petitioner can show (1) cause for the default and actual prejudice resulting therefrom; or (2) that failure to consider the claim will result in a fundamental miscarriage of justice. Aparicio, 269 F.3d at 91. Gonzalez cannot avoid such a default because he is unable to show cause for the default and prejudice resulting ...