The opinion of the court was delivered by: Cogan, District Judge.
MEMORANDUM DECISION AND ORDER
The petition for a writ of habeas corpus under 28 U.S.C. § 2254 alleges six points of error, but they fall into two categories: (1) prosecutorial misconduct with regard to a comment the prosecutor made during closing argument; and (2) alleged errors in the jury instructions.*fn1
The Appellate Division held that all of these claims were unpreserved because no objection had been made at trial, and that the failure to preserve did not constitute ineffective assistance of counsel. It held in the alternative that, in any event, petitioner's arguments were without merit. See People v. Wright, 90 A.D.3d 679, 933 N.Y.S.2d 887 (2d Dep't 2011), leave to app. denied, 18 N.Y.3d 963, 944 N.Y.S.2d 492 (2012) (table). I hold that petitioner's claims are procedurally barred and that petitioner's assertion of ineffective assistance of counsel does not constitute cause to address the merits of his claims notwithstanding the procedural bar. Accordingly, the petition is denied.
The facts of the case can be simply stated. In the course of a mundane domestic dispute, petitioner stabbed one Tyrelle Gorham, the younger brother of his girlfriend, injuring him, with a knife he picked up in the kitchen. A short time later, when the girlfriend's older brother, Demetrius Lee, arrived at the premises, petitioner stabbed him as well with a different knife that petitioner was carrying in his pocket, killing him. Petitioner then fled to Atlanta using a false name and was apprehended there by the police.
Petitioner contended at trial that each of the brothers had separately attacked him and that he was therefore defending himself. The jury rejected the defense of justification and, although acquitting petitioner of murder in the second degree, convicted him of manslaughter in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree. The court sentenced petitioner to consecutive terms of 25 years for the manslaughter charge and five years for the assault charge, plus one year concurrently for the weapons charge.
Additional facts will be set forth below as they relate to each of petitioner's points of error.
A federal court should not address the merits of a petitioner's habeas claim if a state court has rejected the claim on "a state law ground that is independent of the federal question and adequate to support the judgment." Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 885 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553 (1991)). When a state court rejects a petitioner's claim because he failed to comply with a state procedural rule, the procedural bar may constitute an adequate and independent ground for the state court's decision. See, e.g., Coleman, 501 U.S. at 729-30, 111 S. Ct at 2554; Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007). State procedural grounds are only adequate to support the judgment and foreclose federal review if they are "firmly established and regularly followed" in the state. Lee, 534 U.S. at 376, 122 S. Ct. at 885 (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830, 1835 (1984)). If a state court rejects a specific claim on an adequate and independent state law ground, then a federal court should not review the merits of the claim, even if the state court addressed the merits of the claim in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n.10, 109 S. Ct. 1038, 1044 n.10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
It is well settled that New York's contemporaneous objection rule, codified at N.Y. Crim. Proc. Law § 470.05(2), is an independent and adequate state law ground that ordinarily precludes federal habeas corpus review. See, e.g., Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011). Here, because petitioner's trial counsel failed to object to any of the points that petitioner later raised on appeal, the Appellate Division properly invoked a state procedural bar. Wright, 90 A.D.3d at 679-80, 933 N.Y.S.2d 887.
Since the Appellate Division properly relied on a procedural bar, the issue becomes whether any ground exists for reaching the merits notwithstanding that procedural bar. Procedural default on state law grounds may be overcome by a petitioner who either demonstrates "'cause' for the default and 'prejudice attributable thereto,' or . . . that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris, 489 U.S. at 262, 109 S. Ct. at 1043 (internal citation omitted). Ineffective assistance of counsel can constitute "cause" sufficient to avoid a procedural default, Murray v. Carrier, 477 U.S. 478, 488-89, 106 S. Ct. 2639, 2645-46 (1986), if, as here, it has been exhausted in the state court. See Edwards v. Carpenter, 529 U.S. 446, 451-52, 120 S. Ct. 1587, 1591-92 (2000).
To determine ineffective assistance of counsel, courts must apply the familiar test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To satisfy the first prong of Strickland's two-part test, the performance prong, petitioner must show that counsel's performance "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064. The record must demonstrate that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104
S. Ct. at 2064. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065. Nonetheless, this presumption may be overcome with evidence that counsel's conduct lacked a legitimate strategic basis. "Omissions [that] cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude, or laziness," may ...