The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Petitioner pro se Nick Castaldi brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his September 11, 2000, conviction for rape and criminal sexual conduct in New York State Supreme Court, Suffolk County. (Pet. (Doc. No. 1-1) at 1.) For the reasons that follow, the petition for a writ of habeas corpus is DENIED.
Petitioner was convicted of rape and criminal sexual conduct for drugging, raping, and sodomizing a victim at his residence. (Id.) Petitioner videotaped this conduct. The crimes came to light after videos were viewed by petitioner's girlfriend, Sharon Tayler, who had been asked by petitioner to retrieve and preserve the videos while petitioner was incarcerated on unrelated charges. (Id. at 10.) To petitioner's dismay, Tayler informed the police of the existence and content of the videos. Petitioner was subsequently arrested and tried for rape in the first degree and criminal sexual conduct in the first degree pursuant to N.Y. Penal L. §§ 130.35(2) and 130.50(2). He was convicted on September 11, 2000.
On October 10, 2000, petitioner was sentenced to consecutive prison terms of twelve-and-one-half to twenty-five years for each count. (Id.) The trial court denied petitioner's motion to vacate his conviction pursuant to N.Y. Crim. P. L. § 440.10 on April 8, 2005. (Pet., Ex. A (Doc. No. 1-3).) The Appellate Division affirmed petitioner's conviction and sentence on December 12, 2005.*fn1 People v. Castaldi, 806 N.Y.S.2d 684 (N.Y. App. Div. 2005). The New York Court of Appeals denied leave to appeal on February 24, 2006. People v. Castaldi, 845 N.E.2d 1281 (N.Y. 2006).
On April 18, 2006, the Appellate Division denied petitioner's motion for a writ of error coram nobis seeking to vacate its decision affirming his conviction and sentence. People v. Castaldi, 812 N.Y.S.2d 375 (N.Y. App. Div. 2007). The Court of Appeals denied leave to appeal on September 15, 2006. People v. Castaldi, 857 N.E.2d 71 (N.Y. 2006). On October 2, 2007, the Appellate Division denied petitioner's motion for a writ of error coram nobis seeking to vacate his sentence and conviction on the ground of ineffective assistance of appellate counsel. People v. Castaldi, 841 N.Y.S.2d 897 (N.Y. App. Div. 2007).
Petitioner timely filed this petition for habeas corpus in this Court; the District Attorney of Kings County filed a response on behalf of respondent (Doc. No. 13); and petitioner filed a reply. (Doc. No. 20.)
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), federal courts may grant a petition for habeas corpus to a state prisoner on a claim "adjudicated on the merits" in state court only where the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Conversely, claims that have not been adjudicated on the merits are subject to de novo review. Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001). A state court's factual findings are presumed to be correct and may be overturned only if a petitioner offers "clear and convincing evidence" that the findings were in error. 28 U.S.C. § 2254(e)(1).
A state court adjudicates a petitioner's federal constitutional claims "on the merits" when "it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). The "state court need not mention the argument raised or cite relevant case law in order for its ruling to constitute an 'adjudication on the merits.'" Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) (citing Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001)). Thus, a state court ruling simply that a claim is "without merit" constitutes an adjudication on the merits of that claim. See Jimenez v. Walker, 458 F.3d 130, 146 (2d Cir. 2006) (citing Fama v. Comm'r of Corr. Services, 235 F.3d 804, 810-11 (2d Cir. 2000)). "[W]hen a state court fails to articulate the rationale underlying its rejection of a petitioner's claim, and when that rejection is on the merits, the federal court will focus its review on whether the state court's ultimate decision was an 'unreasonable application' of clearly established Supreme Court precedent." Sellan, 261 F.3d at 311-12. "Stated simply," under § 2254(d)(1) this Court is confined to the question of "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000) (O'Connor, J.).
Additionally, a federal court may review a petition for a writ of habeas corpus only to the extent that a petitioner has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); see also Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). Exhaustion "mandates a habeas petitioner to have 'fairly presented' in state court the claims that are raised in the habeas petition." Bohan v. Kuhlmann, 234 F.Supp.2d 231, 243 (S.D.N.Y. 2002), aff'd, 66 F. App'x 277 (2d Cir. 2003), cert. denied, 540 U.S. 1213 (2004) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). This means that each legal and factual allegation underlying a claim must first have been fairly presented to a state court. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).
Finally, the Court is mindful of its obligation to "construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (citations omitted). In other words, the Court holds pro se pleadings to a less exacting standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Boykin v. KeyCorp, 521 F.3d 202, 213-14 (2d Cir. 2008). Since pro se litigants "are entitled to a liberal construction of their pleadings," the Court reads pro se pleadings to "raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citations omitted). However, the Court "need not argue a pro se litigant's case nor create a case for the pro se which does not exist." Molina v. New York, 956 F.Supp. 257, 259 (E.D.N.Y. 1995).
Petitioner raises fourteen separate claims that he alleges cause his continued incarceration to violate the U.S. Constitution. (See Pet'r's Aff. in Supp. of Pet. ("Petitioner's Affidavit") (Doc. No. 1-2) at 7-8.) Respondent urges that all of these arguments are unpreserved, unexhausted, or otherwise meritless. Petitioner "maintains that all issues brought were properly preserved." (Id. at 97.) Generally, federal habeas review is not available for a federal claim if the state courts' decision rested on a state law ground independent of the federal issue that is adequate to support the state court's decision. See Coleman v. Thompson, 501 U.S. 722, 729 (1991); Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935). "[I]n the habeas context," however, "a procedural default, that is, a critical failure to comply with state procedural law, is not a jurisdictional matter." Trest v. Cain, 522 U.S. 87, 89 (1997); see also Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004). Moreover, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2); Rhines v. Weber, 544 U.S. 269, 277 (2005) (observing that a "district court would abuse its discretion if it were to grant [a petitioner] a stay when his unexhausted claims are plainly meritless"). Because the Court finds that all of petitioner's claimed grounds for relief lack merit, it need not consider whether each individual claim is unexhausted or procedurally barred. Accord Zarvela, 364 F.3d at 417; Lopez v. Lee, No. 11-CV-2706 (JG), 2011 WL 6068119, at *11 (E.D.N.Y. Dec. 7, 2011). The Court considers each argument in turn below.
First, petitioner claims that the Appellate Division's decision affirming his conviction and sentence is too ambiguous to survive review by a federal habeas court. At issue is the Appellate Division's holding that the contentions contained in petitioner's pro se supplemental brief to that court were "largely unpreserved for appellate review and, in any event, are without merit or do not warrant reversal." Castaldi, 806 N.Y.S.2d at 684 (internal citation omitted). Petitioner insists that "it is imperative that the [A]ppellate [D]ivision, on it's [sic] face, reflect what has been preserved, and what has not," and urges that the statement "[l]argely [u]npreserved" could "leave [petitioner] without recourse in the Federal Courts" with respect to the claims he raises in his petition.*fn2 (Pet'r's Aff. at 97.) The Court construes this as an argument that the Appellate Division's decision is too unclear to establish which claims were subject to a procedural bar and which were adjudicated on the merits.
As noted above, because the Court finds that the petitioner's claims are meritless it need not consider the whether each individual claim is procedurally barred.*fn3 The Court does consider, however, whether the claims were adjudicated on the merits. Recently, in Johnson v. Williams, 568 U.S. ___ (2013) (slip op.), the Supreme Court provided additional guidance on this question. The Court clarified that "[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits . . . ." Id., slip op. at 10. Implicit in this holding is a rejection of the specificity requirement that petitioner urges.*fn4 "While it is preferable for an appellate court in a criminal case to list all of the arguments that the court recognizes as having been properly presented, federal courts have no authority to impose mandatory opinion-writing standards on state courts." Id. at 9. Accordingly, the Court concludes that "largely unpreserved" -- especially read in the proper context here -- adequately demonstrates that the state courts considered the issues petitioner raised and adjudicated his claims on the merits. The Court is therefore bound under AEDPA to show appropriate deference to the state courts' decisions.
II.Statute of Limitations
Petitioner next argues that his prosecution was commenced after the applicable statute of limitations had run. Even if petitioner preserved and exhausted this claim, it is not a basis for relief. A claim that a prosecution was outside the applicable statute of limitations is a matter of state rather than federal law. Cf. Harrison v. Walsh, No. 06-CV-13328 (RMB) (AJP), 2007 WL 1576265, *21 n.31 (S.D.N.Y. June 1, 2007), rep. and recomm. adopted, 2007 WL 2844867 (S.D.N.Y. Sept. 27, 2007). Moreover, the claim itself is meritless. Under New York law, the statute of limitations for prosecution of a B felony is five years. See N.Y. Crim. Proc. Law § 30.10(2)(b). The record contains sufficient evidence to support the inference that petitioner's prosecution was commenced within that period.*fn5
Next, petitioner argues that the prosecution failed to prove that his crime was committed in Suffolk County and that the trial judge erred by refusing to instruct the jury as to venue. Petitioner correctly points that the New York State constitution provides that a defendant has a right to be tried in the county where the crime was committed unless otherwise provided by law. See People v. Greenberg, 678 N.E.2d 878 (N.Y. 1997). At trial the prosecution bears the burden of proving proper venue by a preponderance of the evidence. Id.Additionally, where a defendant requests a charge to the jury regarding venue, "it is improper ...