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Russ v. Fischer

United States District Court, N.D. New York

June 9, 2014

BRYON K. RUSS, SR., Petitioner,
v.
BRIAN FISCHER, Commissioner of Corrections, Respondent.[1]

BRYON K. RUSS, SR., Dannemora, New York, Petitioner Pro se.

HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, New York, New York, LISA E. FLEISCHMANN, ESQ., Assistant Attorney General, Attorney for Respondent.

REPORT-RECOMMENDATION AND ORDER [2]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Petitioner pro se Bryon K. Russ, Sr. ("Russ") is currently an inmate in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS") at Clinton Correctional Facility. Russ seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his multiple sentences must run concurrently and DOCCS must recalculate his sentences imposed by the Ontario and Wayne County Courts to run concurrently with each other. Pet. (Dkt. No. 1) at 6-8. For the reasons that follow, it is recommended that the petition be denied.

I. Background

A. Multiple Sentences

On February 21, 2001, after a jury trial in the Ontario County Court, Russ was convicted of two counts of robbery in the first degree, one count of assault in the first degree, and one count of criminal possession of a weapon in the second degree. See Russ v. Burge, No. 04-CV-6472T, 2009 WL 2982974, at *1 (W.D.N.Y. Sept. 14, 2009);[3] Pet. at 1; Resp. (Dkt. No. 9-1) at 1. Russ was sentenced to, and is presently serving, definitive sentences of two twenty-four-and-a-half-year prison terms on the robbery counts, a ten-year term on the assault count, and a seven-year term on the weapons possession count, all to run concurrently with each other [hereinafter "2001 Ontario sentence"]. Russ, 2009 WL 2982974, at *2; Dkt. No. 10 at 180. Post-release supervision ("PRS") was not imposed. Pet. at 9.

On April 3, 2001, after a jury trial in the Wayne County Court, Russ was convicted of two counts of burglary in the first degree, two counts of robbery in the first degree, one count of burglary in the second degree, and one count of robbery in the third degree. See Russ v. Greene, No. 04-CV-6079 (VEB), 2009 WL 2958007, at *1 (W.D.N.Y. Sept. 11, 2009); Resp. at 1-2. Russ was sentenced to, and is presently serving, definitive sentences of four twenty-four-and-a-half-year prisoner terms for burglary and robbery in the first degree, a fifteen-year term for burglary in the second degree, an indeterminate term of two-and-a-third to seven years for robbery in the third degree, and five years of PRS [hereinafter "2001 Wayne sentence"]. Resp. at 2; Dkt. No. 10 at 180. The court ordered these sentences to run concurrently with each other and consecutively with the 2001 Ontario sentence. Pet. at 9; Resp. at 2.

In September, 2008, Russ filed a New York Criminal Procedure Law ("CPL") § 440.20 motion to set aside the 2001 Ontario sentence because it failed to include a PRS term. Pet. at 9; Penal Law § 70.85.[4] The Ontario County Court granted the § 440.20 motion and vacated the 2001 Ontario sentence. Pet. at 10; see Dkt. No. 10 at 181-82.

On November 13, 2008, the Ontario County Court resentenced Russ to the same determinate prison term of twenty-four-and-a-half-years without a PRS term, to run consecutively to the 2001 Wayne sentence [hereinafter "2008 resentencing order"]. Pet. at 10; Dkt. No. 10 at 147. Proceeding pro se, Russ appealed the 2008 resentencing order. Pet. at 10.

On December 30, 2009, the Appellate Division, Fourth Department, vacated and modified the 2008 resentencing order. People v. Russ, 68 A.D.3d 1703 (4th Dep't 2009). The Appellate Division stated,

We agree with [Russ] that the court at resentencing erred in directing that the sentences shall run consecutively to a sentence imposed by Wayne County Court subsequent to the conviction in Ontario County.... In resentencing defendant pursuant to Penal Law § 70.85, the court had no authority to direct that the sentences run either concurrently with or consecutively to the sentence imposed by Wayne County Court. We therefore modify the resentence accordingly.

Id. at 1703-04.

DOCCS calculated Russ's 2001 Wayne sentence to run consecutively to the 2001 Ontario sentence. Resp. at 3; Dkt. No. 10 at 7. Russ is currently serving an aggregate forty-nine-year prison term, which was reduced, by operation of law, to forty-years. Resp. at 3; Dkt. No. 10 at 147.

B. Article 78 Petition

In June, 2010, Russ filed a pro se New York Civil Practice Law and Rules ("CPLR") Article 78 petition[5] in Cayuga County, seeking a court order, in accordance with Penal Law § 70.25(1), [6] directing DOCCS to calculate his 2001 Ontario sentence to run concurrently with his 2001 Wayne sentence. Resp. at 2; Dkt. No. 10 at 6-7, 23. The gravamen of Russ's contentions is that the 2001 Wayne sentence can no longer run consecutively to the 2001 Ontario sentence because the 2008 resentencing order rendered the 2001 Ontario sentence invalid. See Dkt. No. 10 at 6-8. Russ further argued that if the court fails to specify how the sentences should run under Penal Law § 70.25(1), then the sentences should run concurrently as long as the sentences are not statutorily mandated to run consecutively. Dkt. No. 10 at 18.

In response to Russ's Article 78 petition, Richard de Simone, associate counsel in charge of DOCCS's Office of Sentencing Review, explained in a letter that the "resentencing pursuant to Penal Law § 70.85 does not change the pre-existing relationship between terms of imprisonment." Dkt. No. 10 at 147. De Simone pointed to the Appellate Division's decision, which merely acknowledged that the resentencing court had no authority to direct the sentences to run either concurrently or consecutively.[7] Id . De Simone further iterated that "the consecutive relationship between the Ontario County and Wayne County sentences was not changed by the reimposition of the Ontario County sentences without post-release supervision in 2008." Id.

On December 14, 2010, Cayuga County Court Judge Thomas G. Leone denied Russ's Article 78 petition. Dkt. No. 10 at 180-84. The Article 78 court explained while the Appellate Division stated that the 2008 resentencing court lacked authority to order Russ's sentences to run consecutively, the Appellate Division did not state that the sentences were to run concurrently. Id. at 182. The Article 78 court emphasized that Russ had argued for a concurrent sentence in his appellate brief; however, the Appellate Division declined to make that ruling. Id. at 182-83.

The Article 78 court continued, stating that a resentence pursuant to Penal Law § 70.85 "merely allows a sentencing court to reimpose the originally imposed determinate sentence of imprisonment without any term of post-release supervision. The statute does not allow a court to change the sentencing terms in any other way." Dkt. No. 10 at 183. Rather, it was the Wayne County Court that held the authority to impose a consecutive or concurrent sentence, irregardless of the fact that the 2001 Ontario sentence was technically vacated. Id . The Article 78 court concluded a court "reimpos[ing] a sentence pursuant Penal Law § 70.85... does not have the authority to determine whether the sentence is to be served concurrently with or consecutively to other sentences. Instead, the decision of the prior sentencing court remains unchanged." Id. at 184. Furthermore, Penal Law § 70.25(1)(a) does not apply because the 2001 Ontario sentence was already in place and was merely altered to correct a sentencing error, and the 2008 resentencing court did not impose an additional term of imprisonment. Id.

In his pro se appeal to the Appellate Division, Fourth Department, Russ argued that his sentences are required by law to run concurrently and DOCCS lacks the authority to compute his sentences consecutively. Dkt. No. 10 at 186-217. By order dated June 8, 2012, the Appellate Division unanimously affirmed the judgment of the Article 78 court "for reasons stated in the decision at Supreme Court." In Re Russ v. Fischer, 96 A.D.3d 1475 (4th Dep't 2012). Russ sought leave to raise his appellate issues in the New York Court of Appeals, who denied the leave application on October 23, 2012. Dkt. No. 10 at 249-53, 263-64; In Re Russ v. Fischer, 19 N.Y.3d 814 (2012). This petition followed.

II. Discussion

Russ asserts that his 2001 Wayne and Ontario sentences should run concurrently with each other and DOCCS is violating New York Correction Law § 601-a[8] by calculating his 2008 resentence to run consecutively to the 2001 Wayne sentence, rather than concurrently with the 2001 Wayne sentence. Pet. at 10. Respondent contends that Russ's claims are not cognizable on federal habeas review. Resp. at 3-4.

A. Legal Standard[9]

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may grant a writ of habeas corpus only if the state court's adjudication on the merits

(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); Williams v. Taylor, 529 U.S. 362, 412 (2000); Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006); DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005).

The Supreme Court has given independent meaning to the "contrary to" and "unreasonable application" clauses in § 2254(d)(1). Williams, 529 U.S. at 405. "Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id. at 412-13. As for the "unreasonable application" clause, a writ may be granted if "the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 413. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. In addition, the statutory phrase "clearly established Federal law... refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions...." Id. at 412 (internal citations omitted).

The petitioner bears the burden of proving, by a preponderance of the evidence, that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Further, when evaluating a habeas petition, "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); DeBerry, 403 F.3d at 66.

On the other hand, "if the federal claim was not adjudicated on the merits, "AEDPA deference is not required, and conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo." Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009) (quoting Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)). Furthermore, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Harrington v. Richter, 131 S.Ct. 770, 784 (2011). Because Russ's claims were adjudicated on their merits, the Court reviews the merits of those claims using the AEDPA deference.

B. Consecutive Sentences

"It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 158 (2d Cir. 2009) (quoting inter alia Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). "As the Supreme Court has long held, state courts are the ultimate expositors of state law;" thus, these issues are not cognizable on federal habeas review. Portalatin v. Graham, 624 F.3d 69, 88-89 (2d Cir. 2010) (quoting Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)); see also Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law.'") (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)).

In this case, the claims contained in the petition are not cognizable on habeas review because they do not present issues of federal law. Russ raised his claims based on the state courts' application of Penal Law §§ 70.85, 70.25 and Correction Law § 601-a. Whether the sentencing court properly applied Penal Law § 70.85, the Appellate Division properly applied Penal Law § 70.25, or DOCCS properly applied Correction Law § 601-a, are not cognizable on federal habeas review. See 28 U.S.C. § 2254(a) (federal courts can grant habeas relief only when prisoner "is in custody in violation of the Constitution or laws or treaties of the United States"); see also Thomas v. Larkin, No. 12-CV-2899 (NGG)(LB), 2013 WL 5963133, at *13 (E.D.N.Y. Nov. 7, 2013) ("whether the sentencing court properly applied New York State Penal Law § 70.25 in determining that Thomas's sentences were consecutive rather than concurrent is not cognizable on federal habeas review" (citing 28 U.S.C. § 2254(a)).

The challenged state statutes revolve around whether Russ should serve his multiple sentences concurrently or consecutively. Penal Law § 70.85 provides that where a determinate sentence imposed that is required by law to include a term of PRS, but the court did not expressly include such a term when pronouncing the sentence, the court may resentence the defendant without any PRS term. N.Y. PENAL LAW § 70.85. Penal Law § 70.25 provides that a sentence that is silent as to whether the imprisonment is to be served concurrently or consecutively "shall run concurrently with all other terms." N.Y. PENAL LAW § 70.25(1)(a). Correction Law § 601-a directs that DOCCS shall return a person to court for resentencing if facts submitted on behalf of the person indicates that the person has been erroneously sentenced. N.Y. CORRECT. LAW § 601-a.

A claim that a state court judge failed to comply with a state statute raises a question of state law. See Thomas, 2013 WL 5963133, at *13 (citation omitted). "[F]ederal courts may not issue the writ [of habeas corpus] on the basis of a perceived error of state law." Id . (citing Pulley v. Harris, 46 U.S. 37, 41 (1984)). Furthermore, "there is no constitutionally cognizable right to concurrent, rather than consecutive, sentences." United States v. McLean, 287 F.3d 127, 136-37 (2d Cir. 2002) (internal quotation marks and citations omitted). "A state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved." Dhaity v. Warden, No. 07-CV-1810 (CSH), 2014 WL 1089265, at *14 (D. Conn. Mar. 20, 2014) (citing Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983) (per curiam)).

Accordingly, Russ's claims are not cognizable on habeas review and his petition must be dismissed.[10]

III. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that Russ's petition for a writ of habeas corpus (Dkt. No. 1) be DENIED.

It is further RECOMMENDED that no certificate of appealability should be issued with respect to any of Gantt's claims as Gantt has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2). See 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000).

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Bryon K. Russ, Sr., Auburn, NY, pro se.

Benjamin A. Bruce, New York State Office of the Attorney General, Rochester, NY, for Respondent.

Opinion

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

*1 Pro se petitioner Bryon K. Russ ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered January 17, 2001, in New York State, County Court, Ontario County, convicting him, after a jury trial, of two counts of Robbery in the First Degree (N.Y. Penal Law § 160.15[2], [4]), one count of Assault in the First Degree (N.Y. Penal Law § 120.10[4]), and one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03 [2]).

For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History The charges arose from an incident that occurred on May 24, 2000, in which Petitioner shot Sincere Holmes ("Holmes" or "the victim") in the leg over a gang-related dispute.

On the evening of May 24, 2000, Petitioner, Holmes, Rasheem Harris ("Harris"), Rasheen Madison ("Madison),

and T' Jay Desassure[1] ("Desassure") met up at a bar in Geneva, New York. At some point thereafter, the five left Geneva in a tan or brown Dodge minivan, driven by Petitioner. Trial Transcript [T.T.] 105-06, 172-75. The five individuals were headed to Rochester. T.T. 113. As they were headed out of Geneva, Petitioner stopped the car on a back road, apparently to urinate. T.T. 114. Petitioner pulled out a.25 caliber handgun and pointed it at Holmes. T.T. 117. As he did so, Petitioner indicated to Holmes that Holmes was "0-32"[2] because he snitched on Petitioner's friend. T.T. 112-16, 176-80. Petitioner, Harris, and Madison robbed Holmes and took his jacket, cell phone, and $70 in cash. Petitioner then ordered Holmes out of the car and told him to lie on the ground. T.T. 116-21, 180-82. Believing he was going to be executed, Holmes began to scuffle with Harris and Madison. Petitioner then shot at Holmes with the.25 caliber handgun, causing a bullet to pass through Harris's thumb and ultimately lodging in Holmes's leg. T.T. 121-24, 183-87. In the darkness and confusion, Petitioner dropped the gun and Holmes ran into the woods, bleeding from his leg wound. T.T. 121-22, 135-36. He managed to run to a nearby house where he called for help and then collapsed in a puddle of blood on the front porch. T.T. 265. The house's occupant called for the police and an ambulance. T.T. 68-72, 124-26, 164-65. When the police arrived, Holmes told police that he was shot by one of three or four black males in a tan, brown or beige SUV. That information was broadcast to law enforcement, and moments later, police stopped a vehicle fitting that description. T.T. 179-80. Petitioner was driving the vehicle containing three occupants. All four occupants were removed from the van. T.T. 183-84. The police observed a white, bloody towel inside. T.T. 205. They also smelled marijuana emanating from the vehicle. T.T. 185. The four occupants were then taken to the Geneva Police Department for questioning and the police sought and obtained a search warrant for the van. T.T. 224-25. Police discovered the following items during the search: a bloody towel, a.25 caliber handgun and live.25 round, and some of the victim's personal belongings. T.T. 271-79. While at the police station, and after he had been advised of his rights, Petitioner asked police how much time he would get in prison for what he had done. T.T. 249.

*2 Following his indictment, Petitioner filed a motion seeking to dismiss the indictment on the ground that he was deprived of his statutory right to appear before the grand jury as a witness on his own behalf. By Decision dated August 23, 2000, the Ontario County Court granted Petitioner's motion. By Notice of Motion dated August 29, 2000, the prosecution moved for an order granting reargument and reconsideration of the August 23, 2000 decision. This application was granted, and the Ontario County Court vacated the August 23, 2000 decision on September 8, 2000 and denied Petitioner's motion to dismiss the indictment.

A combined Huntley/Mapp probable cause hearing was held before the Ontario County Court on October 18, 2000 and November 15, 2000. At the conclusion of the hearing, the Ontario County Court found that there was reasonable grounds for the police to stop the minivan and therefore denied suppression of the items found in the van, as well as the statements made by Petitioner. Hearing Minutes of November 15, 2000, 119-24.

A trial was held in the Ontario County Court on January 16 and 17, 2001. Petitioner did not testify on his own behalf and no witnesses were called by the defense. Desassure testified as an eyewitness for the prosecution. The jury returned a verdict of guilty of all counts of the indictment. On February 21, 2001, he was sentenced to concurrent, definitive sentences of imprisonment as follows: 24½ years for robbery, 10 years for assault, and 7 years for criminal possession of a weapon.

On or about March 15, 2002, Petitioner filed a timely Notice of Appeal, and his conviction was affirmed by the Appellate Division, Fourth Department. People v. Russ, 292 A.D.2d 862, 739 N.Y.S.2d 512 (4th Dept.2002). Leave to appeal to the New York State Court of Appeals was denied on August 12, 2002. People v. Russ, 98 N.Y.2d 713, 749 N.Y.S.2d 11, 778 N.E.2d 562 (N.Y.2002).

On or about March 18, 2003, Petitioner sought to vacate his conviction pursuant to N.Y. Criminal Procedure Law (C.P.L.) § 440.10. The motion was denied by the Ontario County Court by Decision and Order of May 28, 2003 (D. and 0. of 05/28/03). Leave to appeal to the Appellate Division was denied on September 17, 2003. An application for leave to appeal to the New York State Court of Appeals was dismissed on November 13, 2003.

On or about February 26, 2004, Petitioner filed a motion for a writ of error coram nobis with the Appellate Division, which was denied on April 30, 2004. People v. Russ, 6 A.D.3d 1251 (4th Dept.2004). The New York Court of Appeals denied leave to appeal on August 30, 2004. People v. Russ, 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837 (N.Y.2004). This habeas petition followed[3].

III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "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, " 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d) (2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States, " limits the law governing a habeas petitioner's claims to the holdings (not dicta ) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir.2002), cert. denied, 540 U.S. 1197, 124 S.Ct. 1453, 158 L.Ed.2d 111 (2004).

*3 A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10." [A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091, 124 S.Ct. 962, 157 L.Ed.2d 798 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

B. Exhaustion Requirement

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State.... "28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995)." The exhaustion requirement is not satisfied unless the federal claim has been fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc) , cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984).

C. The Adequate and Independent State Ground Doctrine

"It is now axiomatic that cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred.'" Dunham v. Travis, 313 F.3d 724, 729 (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). "A habeas petitioner may bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Id. (citing Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)).

*4 Although the Supreme Court "has repeatedly cautioned that the [independent and adequate state law ground] doctrine applies to bar consideration on federal habeas of federal claims that have been defaulted under state law, '" Dunham, 313 F.3d at 729 (quoting Lambrix v. Singletary, 520 U.S. 518, 523, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (emphasis added by Second Circuit), the Second Circuit has observed that "it is not the case that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be[, ]'" id. (quoting Lambrix, 520 U.S. at 525 (stating that bypassing procedural questions to reach the merits of a habeas petition is justified in rare situations, "for example, if the [the underlying issue] are easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law")).

IV. Petitioner's Claims

1. The Trial Court Lacked Authority to Reinstate Indictment/Failure to Re-Present Case to Grand Jury

Petitioner argues that he was denied due process when the trial court reinstated the dismissed indictment without representing the case to the grand jury and obtaining a new indictment.[4] According to Petitioner, in the absence of a new indictment, the trial court lacked jurisdiction over all subsequent proceedings after the indictment was dismissed. Pet. ¶ 22A, App. C.; T.V. 16-29. This claim must be dismissed because, contrary to Petitioner's understanding of the law[5], it does not state a claim of federal constitutional dimension.

The law is well settled that there is no federal constitutional right to indictment by a grand jury in a state criminal prosecution. See Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) ("Although the Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury."); see also LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir.2002) (noting that the Fifth Amendment's right to a grand jury indictment had not been incorporated against the states through the Fourteenth Amendment) (citations omitted). The New York Court of Appeals has recognized that the "[t]he right to indictment by a Grand Jury in New York is dependent solely upon [the] State Constitution.... " People v. Iannone, 45 N.Y.2d 589, 594 n. 3, 412 N.Y.S.2d 110, 384 N.E.2d 656 (N.Y.1978) (citations omitted). Federal habeas relief, however, is not available for mere violations of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); 28 U.S.C. § 2254(a).

Therefore, this claim is not cognizable on habeas review and must be dismissed.

2. Petitioner claims he was denied assistance of counsel

Petitioner alleges that he was unrepresented by counsel from the time of his arrest on May 25, 2000 until his arraignment on the indictment on August 16, 2000[6], when counsel was assigned to him. Based on this allegation, Petitioner contends he was denied his Sixth Amendment right to counsel. Pet. ¶ 22A, App. C.; T.V. 30-45.

*5 Petitioner raised this claim in his C.P.L. § 440.10 motion, and it was denied by the Ontario County Court pursuant to C.P.L. § 440.10(3)(a) because Petitioner could have placed the facts in support of the motion on the record prior to sentencing[7]. D. and O. 05/28/03. By relying on C.P.L. § 440.10(3)(a), the state court invoked a state procedural rule which constitutes an adequate and independent state ground for rejecting the claim. See, e.g., Cameron v. People of the State of New York, No. 01 Civ. 9988BSJGWG, 2002 U.S. Dist. LEXIS 24841, 2002 WL 31898076 (S.D.N.Y. Dec. 30, 2002) ("CPL § 440.10(3)(a) constitutes an adequate and independent state ground that prevents a federal court from reviewing the merits of the claim."); Aguilera v. Walsh, No. 01 Civ. 2151, 2001 U.S. Dist. LEXIS 16711, 2001 WL 1231524 (S.D.N.Y. Oct. 17, 2001) (citing § 440.10(3)(a) as one of New York's "procedural default" rules barring federal habeas review of the claim). Petitioner is not limited to one C.P.L. § 440.10 application; however, in this instance, the factual bases for his claim were known prior to his sentencing and were demonstrable without resort to matters outside the record. Raising this issue on a further motion to vacate would be futile since the state court already denied the claim due to Petitioner's failure to follow a state procedural rule. Consequently, the claim is deemed exhausted but procedurally barred. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir.1991).

This Court is precluded from considering a procedurally defaulted claim unless Petitioner "can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (citations and internal quotations omitted); see also Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808(1995) (a fundamental miscarriage of justice requires a showing of "actual innocence"). Petitioner fails to allege cause for the default or prejudice attributable thereto, nor does he attempt to show that a fundamental miscarriage of justice will occur should this Court decline to review his claim. This Court finds no basis on the record for overlooking the procedural default. Accordingly, the claim must be dismissed.

3. Petitioner's claim of ineffective assistance of counsel

A. Ineffective assistance of assigned counsel (Miller)

Petitioner alleges that he was denied effective assistance of counsel because his original assigned counsel (James F. Miller, Esq.) failed to advise him of his right to testify before the grand jury. Pet. ¶ 22A, App. C; T.V. 46-94. Petitioner raised this claim on direct appeal[8], and the Appellate Division rejected it on the merits, finding that "[t]he alleged failure of defense counsel to effectuate defendant's desire to testify before the Grand Jury, standing alone, does not constitute ineffective assistance of counsel."Memorandum and Order 03/15/02. Thus, the claim is exhausted and properly before this Court. See 28 U.S.C. § 2254(b).

*6 To establish that a petitioner was deprived of his Sixth Amendment right to the effective assistance of trial counsel, a petitioner must show that (1) his attorney's performance was deficient, and that (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficiency is measured by an objective standard of reasonableness, and prejudice is demonstrated by a showing of a "reasonable probability" that, but for counsel's unprofessional errors, the result of the trial would have been different. Id. at 694."A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding." Id. To succeed, a petitioner challenging counsel's representation must overcome a "strong presumption that [his attorney's] conduct falls within the wide range of reasonable professional assistance." Id. at 689.A reviewing court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct, " id., and may not second-guess defense counsel's strategy. Id. at 690. Here, Petitioner has failed to demonstrate that his counsel's conduct was deficient within the meaning of Strickland, and that, but for the deficiency, the result of his trial would likely have been different.

There is nothing in the record to substantiate Petitioner's claim that his assigned counsel (Miller) failed to advise him of his right to testify before the grand jury. Even assuming, arguendo, that Petitioner was not advised of his right to testify before the grand jury, or that counsel prevented him from doing so in some way, Petitioner has offered no evidence to demonstrate that his failure to testify prejudiced his defense. See Brown v. Artuz, 124 F.3d 73, 79-81 (defendant claiming ineffective assistance due to counsel's failure to advise about personal right to testify must still establish prejudice under second prong of Strickland ). Furthermore, he does not indicate what testimony he would have offered had he appeared before the grand jury or how such testimony would have assisted his case. Given the eyewitness testimony of the victim and Desassure, along with the physical evidence and the Petitioner's incriminating statements made to police, it is highly unlikely that the grand jury would have failed to indict Petitioner. See Rega v. United States, 263 F.3d 18 (2d Cir.2002), cert. denied, 534 U.S. 1096, 122 S.Ct. 847, 151 L.Ed.2d 725 (2002) (counsel was not ineffective for preventing defendant from testifying where there was no prejudice to defendant from failure to testify because his testimony would not have been persuasive in light of prosecution's evidence).

This Court notes, in addition, that the claim is also meritless since Petitioner has no constitutional right to appear before a grand jury. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.1989) (right to testify before a grand jury is a state statutory right and is not of constitutional dimension). In this regard, counsel was not ineffective for failing to advise Petitioner of a federal constitutional right which he did not have.

*7 Accordingly, this Court finds the Appellate Division's rejection of this claim is neither "contrary to" nor an "unreasonable application" of Supreme Court law. Habeas relief must be denied.

B. Remaining ineffective assistance of counsel claims as to attorney Gosper

Petitioner also raises various other claims of ineffective assistance of trial counsel (Robert Gosper, Esq.) in his habeas petition by way of reference to his coram nobis motion. In particular, he contends trial counsel (Gosper) was ineffective for (1) failing to use medical records to impeach the victim's testimony; (2) failing to consult with and call Petitioner's alibi witnesses; (3) failing to exploit various other defects and inconsistencies in the People's proof. Pet. ¶ 22A, App. C. Petitioner raised these claims in his application for coram nobis, which was summarily denied by the Appellate Division, Fourth Department. Summary denial of Petitioner's motion constitutes an adjudication on the merits of this claim. Sellen v. Kuhlman, 261 F.3d 303, 314 (2d Cir.2001).

This Court notes that an application for coram nobis is generally an inappropriate forum for bringing an ineffective assistance of trial counsel claim for the first time. See Turner v. Artuz, 262 F.3d 118, 123-24 (2d Cir.2001) ("the writ of error coram nobis lies in [the state appellate court] only to vacate an order determining an appeal on the ground that the defendant was deprived of the effective assistance of appellate counsel.'") (quoting People v. Gordon, 183 A.D.2d 915, 584 N.Y.S.2d 318 (2d Dep't 1992))); C.P.L. § 440.10(1)(h). However, since the Appellate Division did not expressly reject the ineffective assistance of trial counsel claims individually or separately, and because Petitioner's ineffective assistance of trial counsel claims are interwoven with his ineffective assistance of appellate counsel claims (which were appropriately brought via the coram nobis motion), this Court will review the merits of these claims, affording them AEDPA deference.

Petitioner's first argument is that Gosper failed to bring to the jury's attention the purported fact that, contrary to Holmes's testimony that the bullet that struck him was still in his leg, the bullet had actually been removed during an operation at Strong Hospital. Petitioner contends that this would have demonstrated Holmes's lack of credibility and would have also called into question why the prosecution did not compare the recovered bullet with the handgun that was seized from the vehicle. This argument fails, however, because the bullet was never recovered from the victim's leg. The portion of the bullet that was lodged in the victim's leg was not removed during the surgery that was performed to repair the gunshot wound. Affidavit of Mark G. Davies, M.D., ¶ 4. Therefore, this Court cannot find that Gosper was ineffective in failing to attempt to impeach the victim's credibility, or in failing to assert that there was a bullet that had been recovered and was available to be compared with the gun that was recovered from the vehicle. Thus, this Court need not reach the prejudice prong of Strickland.

*8 Second, Petitioner argues that Gosper failed to consult with the petitioner's alibi witnesses and failed to call them at trial. This argument also fails because Petitioner indicated to Gosper that he did not have an alibi. Affidavit Robert Gosper, Esq. (Aff. R.G.), ¶ 4. Contrary to Petitioner's contention, Gosper's affidavit indicates that Petitioner told him that he was not with any witnesses at the time of the crime. Aff. R.G. ¶ 4. Therefore, this Court cannot find that Gosper was ineffective in failing to file an alibi notice or failing to call an alibi witness when such a person/people did not even exist. Thus, this Court need not reach the prejudice prong of Strickland.

Last, Petitioner argues Gosper was ineffective in failing to exploit various defects and inconsistencies in the People's proof. These include, but are not limited to, alleged inconsistencies in the testimony of the witnesses and presentation of certain issues that would have created reasonable doubt in the jury's mind had they been further explored. This Court, however, has reviewed the record and agrees with Respondent that none of these alleged deficiencies, either individually or collectively, are such as to create a reasonable probability that the result of the trial would have been different had such alleged errors not been committed. The proof against Petitioner in this case was overwhelming, and this Court cannot find that there is a reasonable probability the outcome of the case would have been different had these alleged errors of trial counsel not been committed.

Thus, the Appellate Division's rejection of these claims was neither "contrary to" nor an "unreasonable application of settled Supreme Court law. Habeas relief must be denied.

B. Ineffective assistance of appellate counsel (Tyo)

Petitioner alleges his appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel and for failing to raise a claim of prosecutorial misconduct on direct appeal. Pet. ¶ 22A, App. C; T.V. 46-104. Petitioner raised this claim in his coram nobis motion, which was summarily denied by the Appellate Division, Fourth Department. Summary denial of Petitioner's motion constitutes an adjudication on the merits of this claim. Sellen, 261 F.3d at 314.

The Strickland standard of ineffective assistance of counsel applies equally to trial and appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994). Counsel is not required to raise all colorable claims on appeal. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Rather, counsel may winnow out weaker arguments and focus on one or two key claims that present "the most promising issues for review." Id. at 751-53.And, of course, counsel is "strongly presumed to have rendered adequate assistance and [to have] made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 689-90.

*9 Here, Petitioner cannot meet either prong of Strickland. He alleges that appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel for failure to raise the claims discussed under Section "3A" above. However, as discussed above, these claims are meritless. This Court, therefore, finds that appellate counsel exercised reasonable professional judgment in selecting the three issues[9] raised on direct appeal, and ignoring those meritless that Petitioner now raises.

Moreover, as demonstrated by the affidavits of Davies and Gosper, petitioner's ineffective assistance of trial counsel claim requires an examination of facts outside the trial record. Thus, appellate counsel could not properly raise these off-therecord claim's on direct appeal.

Petitioner alleges appellate counsel was deficient for failing to raise a claim of prosecutorial misconduct on direct appeal, yet has failed to state a claim upon which this Court can grant relief. Petitioner instead makes an unsubstantiated, sweeping allegation[10] that amounts to nothing more than a sort of "conspiracy theory", unsupported by the record and devoid of legal argument.

Viewing appellate counsel's conduct as a whole, he provided meaningful, effective representation. Since Petitioner could not have succeeded on any of the other claims advanced in his coram nobis motion which are now before this Court, it is clear that he could not have been prejudiced by counsel's failure to raise these claims.

This Court finds that the Appellate Division's rejection of this claim was neither "contrary to" nor an "unreasonable application of settled Supreme Court law. Habeas relief must be denied on this claim.

V. Conclusion

For the reasons stated above, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because petitioner has failed to make "a substantial showing of a denial of a constitutional right, "28 U.S.C. § 2253(c) (2), I decline to issue a certificate of appealability. See, e.g., Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-113 (2d Cir.2000). The Court also hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith and therefore denies leave to appeal as a poor person. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

Petitioner must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within thirty (30) days of the date of judgment in this action. Requests to proceed on appeal as a poor person must be filed with United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.

IT IS SO ORDERED.

Bryon K. Russ, Sr., Auburn, NY, pro se.

Melvin Bressler, Bressler & Kunze, Rochester, NY, for Respondent.

Opinion

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

*1 Pro se petitioner Bryon K. Russ ("Russ" or "petitioner") has filed a petition for a writ of habeas corpus challenging his conviction in Wayne County Court, New York State Supreme Court, following a jury trial on charges of first degree robbery, first degree burglary, first degree assault, and related charges in connection with a "home invasion"-type of incident. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Background

Russ was indicted along with two co-defendants, Rasheen Madison and Shamgod Thompson, and charged with invading the home of Rebecca Henrichon in Wayne County, New York. Russ and his cohorts believed that Henrichon was secreting illegal drugs in her house, although ultimately no drugs were found. Henrichon related that a "really young black male", whom she later identified as Madison, knocked on her door and asked her if she had any weed. Upon her telling him no, he asked again, and looked to the side, causing her to become nervous. She began to close the door, but he and two black males whose faces were covered with red and white bandannas rushed in, knocked her out, and dragged her upstairs into her children's bedroom where pushed her face down and the bed and bound her with telephone cord and packing tape. The "youngest guy" (Madison) had his knee on her back and taped her up, while the two "older guys" were ransacking the house. Madison said that he wanted to fuck her, but the other "guys... yell[ed] that they just wanted to get the stuff and get out."One man put a machete to her throat and the other one held a small, "silver-plated" pistol to her head; they said "[t]hey were going to pop a cap in [her] and get the fuck out."The assailants were in her house for about half-anhour and cut all the cords to her phones.

Nelson Vasquez, a friend of Henrichon's had gone out to the store to get an ice cream cake because Henrichon was hungry. As he was coming into the house, he "got yanked in" and had a silver-plated.22 or.25-caliber gun put to his head. The robbers, whom he could not see well enough to identify, because it was dark, took a silver chain necklace with a scorpion on it and his house keys. Vasquez, like Henrichon, was asked where the money and the weed was, to which he replied he did not know. He heard two of them speak, and the third one did not say anything. Eventually, the intruders left; Vasquez went upstairs and found Henrichon on the kitchen floor, still tied up.

Later that night, at a gas station in the area of the robbery, the police stopped a sport-utility vehicle ("SUV") matching the description of a vehicle that had been involved in an incident earlier that night in Geneva. Russ was driving; Thompson was in the front passenger's seat, and a person who gave his name as Tony K. Jones was in the back seat. The officer saw what appeared to be a machete sheath sticking out of Russ's pants. (A machete was left behind by the robbers at Henrichon's house.). At that time, the police did not detain them further.

*2 As it turned out, "Tony K. Jones" was an alias of Madison's. He was brought in for questioning and gave a statement to police detailing his participation in the burglary of Henrichon's house. Both Russ and Thompson eventually were arrested and all three were indicted jointly. Severance was denied, and Russ was tried jointly with two his codefendants.

Madison's confession was redacted to remove all reference to the existence of other any individuals and was read into the record at the joint trial. See T.498-501;[1] People's Exhibit 32. The SUV which the three had been driving belonged to the mother of Torey Ronan, a girlfriend of Thompson's who lived Ellenville, just outside of New York City. Thompson had borrowed it from Ronan on the day of the crime, but he never returned it. In fact Ronan never saw it again. The Ronans reported the vehicle stolen and it, along with Madison, turned up in New York City at 3 a.m. Recovered from the vehicle were items of clothing that exactly matched those described by the victim to have been worn by the perpetrators (e.g., a red sweatshirt with a New York logo, Tommy Hilfiger jeans, a striped motorcycle-racing jacket; a dispenser of packing tape; the jewelry stolen from Henrichon and her friend, Vasquez, a "Number One Dad" keychain with housekeys that belonged to Henrichon's roommate; and a silver-plated.25-caliber handgun.

Two acquaintances of the defendants, Kevin Hobbs and Robert Johnson, testified that Russ, Thompson, and Madison gave them a ride in their SUV to Newark, near Geneva. Hobbs stated that the defendants wanted some marijuana, and Johnson apparently knew a "white boy in Newark" who had some. There was "discussion [about] where he lives [and] that he stayed with his girlfriend."T.709. On the ride, Hobbs saw a loaded.25-caliber chrome handgun. Madison had it first, then Hobbs took it, and it was passed back to Thompson. As Hobbs and Johnson were exiting the SUV, Thompson pointed the gun at Hobbs and said, "Give me what you got." T.711. Hobbs gave him all the cash and marijuana he had on him.

About a month later, Hobbs ran into Russ, who accused Hobbs of "snitching on him" and stated that Hobbs "needed to be dealt with because [Russ] had gotten a letter from somebody else saying [he] was snitching on [Russ]." T.710. At first Hobbs told the police he did not know anything about the incident because he did not want to get involved since Russ and his friends had guns.

At trial, Johnson testified similarly to Hobbs about the conversation with Russ, Madison, and Thompson, that occurred while they were riding around in the SUV. Johnson related that Russ knew about the "white boy" in Newark who supposedly had marijuana. Russ said "they knew what kind of car he drives and they knew the spot he would be in."T.714. Johnson also noted that there was a machete inside a case in the back of the SUV. At one point, Johnson said, Russ had the sheathed machete in his hands. (The police discovered a blue tape dispenser inside the SUV which had Madison's fingerprints on it; the dispenser introduced into evidence at trial.)

*3 Johnson testified that he told the police he was visited at his home about a month later by Russ, Madison, and another person (not Thompson). They were toting guns and were threatening towards Johnson. Johnson admitted that he made a deal with the prosecutor that in exchange for his testimony, the prosecutor would tell the district attorney in Tompkins County, where Johnson had a pending charge for gang assault, that he had cooperated in connection with the Russ/Madison/Thompson trial.

The jury returned a verdict finding Russ not guilty of count one (first degree robbery), but guilty of the lesser included offense of second degree robbery; guilty of count two (first degree robbery); guilty of count three (first degree robbery); not guilty of count four (first degree robbery) but guilty of the lesser included offense of third degree robbery; guilty of count five (first degree robbery); and guilty of count six (first degree robbery). He was sentenced to a term of imprisonment of twenty-four years and six months. On direct appeal, the Appellate Division, Fourth Department, unanimously affirmed the conviction, and leave to appeal to the New York Court of Appeals was denied.

Proceeding pro se, Russ filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in the trial court, which was denied. The Appellate Division denied leave to appeal.

This timely habeas petition followed, in which Russ raises six grounds for habeas relief: (1) the verdict was against the weight of the credible evidence; (2) the trial court erroneously denied his motion for severance; (3) the use of his codefendant's redacted confession was a violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and the Sixth Amendment right to confrontation; (4) the trial court erroneously denied his C.P.L. § 440.10 motion without an evidentiary hearing; (5) the trial court erroneously denied trial counsel's motion for a mistrial based upon prosecutorial misconduct (the prosecutor referred to the redacted confession during summation); and (6) the sentence was harsh and excessive.

Respondent makes no argument that any of Russ's claims are unexhausted. For the reasons that follow, I find that habeas relief is not warranted and, accordingly, the petition is dismissed.

III. Discussion

The standard of review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, as codified in 28 U.S.C. § 2254(d). Under AEDPA, a habeas petition challenging a state court conviction may not be granted unless the state court acted in a way 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 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)(1), (2). "Clearly established federal law" "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Factual determinations made by State courts are "presumed to be correct, " and a habeas petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence."28 U.S.C. § 2254(e)(1); see also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (holding that the standard for rebutting the presumption of correctness is "demanding but not insatiable" (citing Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

A. Ground One: Verdict against the weight of the credible evidence

*4 Petitioner's "weight of the evidence" claim derives from New York Criminal Procedure Law ("C.P.L.") § 470.15(5), which permits an appellate court in New York to reverse or modify a conviction where it determines "that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence."N.Y. CRIM. PROC. L. § 470.15(5). Thus, a "weight of the evidence" argument is a pure state law claim grounded in the criminal procedure statute, whereas a legal sufficiency claim is based on federal due process principles. People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 (N.Y.1987).[2] Since a "weight of the evidence claim" is purely a matter of state law, it is not cognizable on habeas review. See 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of "the Constitution or a federal law or treaty"); Estelle v. McGuire, 502 U.S. at 68 ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.").

Federal courts routinely dismiss claims attacking a verdict as against the weight of the evidence on the basis that they are not federal constitutional issues cognizable in a habeas proceeding. Ex parte Craig, 282 F. 138, 148 (2d Cir.1922) (holding that "a writ of habeas corpus cannot be used to review the weight of evidence..."), aff'd, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293 (1923); Garrett v. Perlman, 438 F.Supp.2d 467, 470 (S.D.N.Y.2006) (same); Douglas v. Portuondo, 232 F.Supp.2d 106, 116 (S.D.N.Y.2002) (same); Correa v. Duncan, 172 F.Supp.2d 378, 381 (E.D.N.Y.2001) (A "weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. Accordingly, the Court is precluded from considering the [weight of the evidence] claim.") (citations omitted). Ground One of Russ's petition does not present a colorable ground for habeas relief and accordingly is denied.

B. Ground Two: Erroneous denial of severance motion

On appeal, Grant contends that by denying his application for severance, the trial court denied him his right to a fair trial by jointly trying him with a codefendant who had an irreconcilably antagonistic defense."

Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has the right "to be confronted with the witnesses against him."U.S. Const. amend. VI. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). the Supreme Court interpreted this right to preclude the introduction of a co-defendant's confession that tends to incriminate the defendant when the party incriminated by the statement (the defendant) cannot cross-examine the declarant (the co-defendant).391 U.S. at 125. The Supreme Court further held that the resulting violation of a defendant's right to confrontation ordinarily cannot be cured by an instruction directing the jury to consider the confession only as evidence against the co-defendant. Id. at 132.Subsequently, in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Supreme Court narrowed the Bruton rule somewhat and held that if the incriminating statement is redacted to remove any reference to the co-defendant it would otherwise incriminate, it may be admitted at a joint trial if a proper limiting instruction is given. 481 U.S. at 208.

*5 The Supreme Court distinguished the facts present in Richardson from Bruton in that in Richardson, "the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant's own testimony), unlike Bruton, where the codefendant's confession "expressly implicat[ed]" the defendant as his accomplice." Id. (quoting Bruton, 391 U.S. at 124, n. 1). Thus, at the time that confession was introduced in Bruton there was not the slightest doubt that it would prove "powerfully incriminating.'" Id. at 208.

"The law in th[e] [Second] circuit holds that a defendant sustains no Sixth Amendment Bruton injury if a co-defendant's inculpatory statement is redacted so that "the statement standing alone does not otherwise connect [the non-declarant defendant] to the crime[ ]."'" United States v. Harris, Nos. 05-2479-CR, 05-2486-CR, 167 Fed.Appx. 856, 859, 2006 WL 374205 (2d Cir. Feb.16, 2006) (quoting United States v. Williams, 936 F.2d 698, 700 (2d Cir.1991) (quoting United States v. Tutino, 883 F.2d 1125, 1135 (2d Cir.1989)) and citing United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir.1994) (alterations in original).

The appropriate analysis to be used when applying the Bruton rule requires that the court "view the redacted confession in isolation from the other evidence introduced at trial[, ]" and "[i]f the confession, when so viewed, does not incriminate the defendant, then it may be admitted with a proper limiting instruction even though other evidence in the case indicates that the neutral pronoun is in fact a reference to the defendant." Williams, 936 F.2d at 700 (citation omitted). The rationale for this rule is the assumption that juries are more capable of following instructions not to make impermissible inferences based on "evidence requiring linkage" than on facially incriminating material. Richardson, 481 U.S. at 211; see also id. at 209 (noting that it would be unmanageable to enforce a rule in which the admissibility of a confession turned on evidence that would be presented after the confession had been presented to the jury). In Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), the Supreme Court has warned that a redaction of a confession or other statement that leaves an "obvious blank space... or other obvious indication of alteration, " leaves the statement "similar enough to Bruton's unredacted confessions [to be objectionable]." Id. at 192; see also id. at 195 (citing as examples "redactions that replace a proper name with an obvious blank, the word delete, ' a symbol, or similarly notify the jury that a name has been deleted). Gray's rule applies when a statement has been ineffectively redacted 523 U.S. at 195-96. Gray leaves unaltered Richardson 's holding that the Confrontation Clause is not violated if a properly redacted statement becomes incriminating in light of evidence later admitted, provided that a proper limiting instruction is given. Richardson, 481 U.S. at 208-09.

*6 "As a general rule in federal court, the decision whether to grant a severance is committed to the sound discretion of the trial judge.'" Grant v. Hoke, 921 F.2d at 31 (quoting United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir.1989) ("[A] denial of such a motion will be reversed only upon a showing of clear abuse of that discretion."), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990); other citations omitted)). "A defendant seeking to overturn a denial of a severance motion, furthermore, must show that he was so severely prejudiced by the joinder as to have been denied a fair trial, "not that he might have had a better chance for acquittal at a separate trial."'" Id. (quoting United States v. Burke, 700 F.2d 70, 83 (2d Cir.) (quoting United States v. Rucker, 586 F.2d 899, 902 (2d Cir.1978)), cert. denied, 464 U.S. 816 (1983)). Although courts have recognized that a joint trial is "fundamentally unfair" where the co-defendants's defenses are mutually antagonistic defenses. Id. (citations omitted), "a simple showing of some antagonism between defendants" theories of defense does not require severance." Grant, 921 F.2d at 31 (quotations omitted). Rather, the proponent of severance must demonstrate that "the jury, in order to believe the core of testimony offered on behalf of [one] defendant, must necessarily disbelieve the testimony offered on behalf of his codefendant." Id. (quotations omitted; alteration in original). "[I]n the federal system, there is a preference for the joint trial of defendants indicted together.... A severance need not be granted simply because codefendants have made incriminating statements." United States v. Shareef 190 F.3d 71, 77 (2d Cir.1999).

Although the Second Circuit has not yet articulated a standard against which to assess a habeas petitioner's severance claim, it has said that the petitioner's burden is at least' as great as that of a federal defendant raising the same claim on direct appeal." Campbell v. Andrews, No. 97 Civ. 2534, 1999 WL 997277 at *5 (E.D.N.Y. Oct. 19, 1999) (citing Grant v. Hoke, 921 F.2d 28, 31 (2d Cir.1990)); accord, e.g., Calhoun v. Walker, No. 97CV0550, 1999 WL 33504437 at *3 (N.D.N.Y. Feb.26, 1999) ("In a habeas proceeding, the Petitioner must demonstrate at least [as] much" as a defendant in a federal trial would need show for a severance.); Aramas v. Donnelly, No. 99CIV11306JSRAJP, 2002 WL 31307929, at *15 (S.D.N.Y. Oct.15, 2002) (same).[3]

In similar cases, federal courts have held that a severance is not warranted because of a co-defendant's confession if the confession is properly redacted and a limiting instruction given. See, e.g., United States v. Shareef 190 F.3d at 77-78 ("A severance need not be granted simply because codefendants have made incriminating statements, " where the statements can be redacted for a joint trial); United States v. Martinez-Montilla, 135 F.Supp.2d at 423-25 ("Given the strong policy in favor of joint trials delineated by the Supreme Court, however, defendants seeking severance [on Bruton grounds] have a difficult burden to meet, particularly where less extreme remedies such as limiting instructions are available to cure any potential risk of prejudice.... [T]he statements viewed as redacted do not facially incriminate the co-Defendants, and a jury would identify co-Defendants only if it disregarded a limiting instruction given by this Court.... [N]o prejudice results where a limiting instruction is given and thus, severance is not warranted."); Ortega v. United States, 897 F.Supp. 771, 779 (S.D.N.Y.1995) (motion for severance properly denied because statement did not infringe petitioner's Confrontation Clause rights when "the redaction of [co-defendant's] statement effectively removed all manifest references to Ortega from the statement, and was not incriminating on its face [and so] did not infringe on Ortega's rights under the Confrontation Clause"); Aramas v. Donnelly, 2002 WL 31307929, at * 14 ("Here, consistent with Second Circuit case law, Skelton's testimony about Sanders' jailhouse confession did not refer to Aramas by name, and did not leave "blanks" or say "redacted, " but properly referred to "the next guy, his friend[.]'") (footnote omitted).[4]

*7 Here, the statement of Russ's co-defendant, Madison, was redacted to remove all reference to the existence of other any individuals.[5] The Supreme Court held in Richardson v. Marsh, 481 U.S. at 211, that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence."Russ has not demonstrated a Bruton error and thus the denial of severance was neither contrary to, nor an unreasonable application of, the Supreme Court's clearly established precedent concerning Confrontation Clause violations.

C. Ground Three: Confrontation Clause/ Bruton Error in the Prosecutor's Summation

Russ contends that the prosecutor improperly used codefendant Madison's statement as evidence against him during summation. It is improper for a prosecutor to inform a jury what or who the pronouns in a redacted confession reference. E.g., Ruiz v. Kuhlmann, No. 97-CV-6620(FB), 2001 WL 579788, at *7 (E.D.N.Y. May 30, 2001). In Ruiz, the confessions of petitioner's two co-defendants "were sufficiently redacted so as to become facially neutral [, ]" and "[i]n addition, viewed in isolation, they did not incriminate [petitioner] as they referred to more than one guy' being present at the time the crime was committed, and there was no way to discern when the statements referred to [petitioner's brother] and when they referred to [petitioner]. Id. However, the prosecutor in Ruiz" took it upon himself to draw the damaging inference upon summation when he filled in the blanks for the jury [, ]" and "Wherefore, any curative effect that resulted from substituting neutral pronouns for [petitioner]'s name and providing a limiting instruction was destroyed by the prosecutor during his closing argument when he told the jury who the pronouns referenced." Id. Accordingly, the district court agreed that petitioner Ruiz's Sixth Amendment right to confrontation was violated. Id.

That type of conduct did not occur at Russ's trial. The remark about which Russ complains is the following:

Ladies and Gentlemen of the Jury, there is substantial evidence against Defendant Madison and circumstantial evidence against the other two defendants in this case. As I said to you a few minutes ago, all you need is your common sense. You've heard the evidence in this case and to suggest or to have anyone suggest that three other black men robbed Rebecca Henrichon and not these three or Mr. Madison with two other people other than these two defendants did it [sic], this is absolutely ridiculous. You have them together before the robbery planning it with machetes and guns. You have the robbery. These three stopped on the New York State Thruway within 45 minutes by a Trooper and it's the same three and you have Madison confessing that's what happened and he said that after the robbery we went to get gas, was [sic] stopped by the troopers. You had the Trooper corroborating that and then they're off to New City and all the property and the clothing is taken out of that vehicle and the gun is found. You have enough ample evidence to convict all three....

*8 T.721-22 (emphasis supplied). Although the prosecutor's remarks did not as overtly "connect the dots" as the prosecutor did in Ruiz, 2001 WL 579788, at *7 (finding that the prosecutor) "dr[e]w the damaging inference upon summation when he filled in the blanks for the jury"), this Court nevertheless believes that prosecutor improperly referred to Madison's confession in a way so as to imply to the jury that the blanks referred to Russ and Thompson. However, even when a Confrontation Clause violation has occurred, a habeas corpus petition cannot be granted if the error was harmless. E.g., Fuller v. Gorczyk, 273 F.3d 212, 220 (2d Cir.2001); Mingo v. Artuz, 174 F.3d 73, 78 (2d Cir.1999). On habeas review, the prosecution bears the burden of persuasion on the issue of harmless error. Fry v. Pliler, 551 U.S. 112, n. 3, 127 S.Ct. 2321, 2328 n. 3, 168 L.Ed.2d 16 (2007)."[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the substantial and injurious effect' standard set forth in Brecht. " Id. at 2325, 2328. Brecht held that a state court's error is considered harmless unless it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

The principal factors to consider with respect to this standard are "the importance of the witness's wrongly admitted [confession], ... the overall strength of the prosecution's case, " Wray v. Johnson, 202 F.3d 515, 526 (2d Cir.2000), "whether the [evidence] bore on an issue that is plainly critical to the jury's decision, '" id. (quoting Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir.1996)), whether the evidence was cumulative, see Brecht, 507 U.S. at 639, and "whether the wrongly admitted evidence was emphasized in arguments to the jury[, ]" Wray, 202 F.3d at 526. The strength of the prosecution's case "is probably the single most critical factor in determining whether error was harmless.' " Wray, 202 F.3d at 526 (quoting Latine v. Mann, 25 F.3d 1162, 1167-68 (2d Cir.1994)). Federal courts have found Confrontation Clause violations to be harmless error "when the evidence against the petitioner at trial was substantial and/or the improperly admitted testimony was cumulative of other admissible evidence." Bowen v. Phillips, 572 F.Supp.2d 412, 419 (S.D.N.Y.2008) (citing, inter alia, Ruiz v. Kuhlmann, No. 01-2432, 80 Fed.Appx. 690, 694, 2003 WL 22056222, at ___4 (2d Cir. Sept.4, 2003) (affirming denial of habeas petition despite Bruton violation in light of "compelling" testimony of two eyewitnesses identifying petitioner as the shooter); United States v. Coleman, 349 F.3d 1077, 1086 (8th Cir.2003) ("Thus, there is no Bruton error when the erroneously admitted evidence is merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury.'" (quoting Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)).

*9 Although the prosecutor's use of the redacted confession did rise to the level of constitutional error, I note that the improper reference was isolated and not overly emphasized to the jury. Most important, though, in convincing this Court of the harmlessness of the Confrontation Clause error is the strength of the prosecution's case against Russ. One of the robbers held a machete to Henrichon's throat, and a machete was left at the crime scene. After the robbery, Russ was stopped while driving an SUV in which Thompson and Madison were riding, and the trooper observed a machete sheath sticking out of his pants. Kevin Hobbs and Robert Johnson, neither of whom were parties to the case, testified consistently about their ride in the SUV during which Russ, who was handling a machete, planned out the robbery. In light of the extremely compelling evidence supporting, Russ's conviction, any Confrontation Clause error that occurred during the prosecutor's summation was did not have "substantial and injurious effect or influence in determining the jury's verdict, " Brecht v. Abrahamson, 507 U.S. at 631, and therefore was harmless. Habeas relief accordingly is not warranted.

D. Ground Four: Erroneous denial of a hearing on petitioner's C.P.L. § 440.10 motion

Russ argues that the trial judge erred in denying his C.P.L. § 440.10 motion without an evidentiary hearing. Federal habeas courts have found that denial of a state-court collateral motion without a hearing "is not an independent basis for finding that his constitutional rights were violated." Ruine v. Walsh, No. 00 Civ. 3798RWS, 2005 WL 1705147, at *24 (S.D.N.Y. July 20, 2005) (citing Diaz v. Greiner, 110 F.Supp.2d 225, 236 (S.D.N.Y.2000) ("[F]ederal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings.'") (quoting Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir.1998), cert. denied, 526 U.S. 1123, 119 S.Ct. 1777, 143 L.Ed.2d 806 (1999) (citing Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.1995) ("[E]rrors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction. An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself.") (quotation and citations omitted)); Turner v. Sullivan, 661 F.Supp. 535, 540-41 (E.D.N.Y.1987) (claim that trial court violated due process by denying CPL § 440.10 motion without setting out findings, conclusions and its reasoning not cognizable on federal habeas review; "Petitioner has not suggested in what respect the failure to comply with the state rule has violated his federal due process rights. A writ of habeas corpus may not be issued on the basis of a perceived error of state law"), aff'd, 842 F.2d 1288 (2d Cir.), cert. denied, 487 U.S. 1240, 108 S.Ct. 2913, 101 L.Ed.2d 944 (1988)). In keeping with the foregoing weight of authority, I conclude that Ground Four of Russ's petition fails to state a colorable claim for habeas relief. Accordingly, it is denied.

E. Ground Five: Erroneous denial of petitioner's motion for a mistrial premised upon prosecutorial misconduct

*10 In his pro se supplemental appellate brief, Russ asserted that the trial court erred in denying defense counsel's motion for a mistrial based upon allegations that the prosecutor made improper gestures and facial expressions (grimaces) during parts of the trial. The prosecutor denied having made any such displays, and the trial judge indicated that he did not see the behavior about which defense counsel was complaining. In connection with the alleged misconduct, the following colloquy occurred:

[Defense counsel]: This is my second application for a mistrial. [The prosecutor]'s eyebrows are going up and down and his head is going up and down with every answer.
[The prosecutor]: That is ridiculous. I'm not communicating with the witness nor have I ever.
[Defense counsel]: I'm telling the Court what I just saw.
[The prosecutor]: And I'm telling the Court what my position is.
The Judge: I did not see that. I simply see-all Counsel, I'll tell you cannot be communicating with the Jury or witnesses.

T.620.

On direct appeal, the Appellate Division examined this claim, which was one of "the remaining contentions in defendant's pro se supplemental brief, " and "conclude[d] that none requires reversal." People v. Russ, 300 A.D.2d 1031, 1032, 751 N.Y.S.2d 920 (App.Div. 4th Dept.2002).

"It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.' " United States v. Young, 470 U.S. 1, at 8, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting ABA Standards for Criminal Justice 3-5.8(b) (2d ed.1980)). "A personal attack by the prosecutor on defense counsel is improper, and the duty to abstain from such attacks is obviously reciprocal." Id. at 9, n. 7 (citing ABA Standards for Criminal Justice 4-7.8, p. 499 (footnote omitted in original). It is well-established that "a criminal conviction is not to be lightly overturned... for the [challenged] statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. at 11. To assess whether a prosecutor's summation caused "substantial prejudice, " the Second Circuit has established a three-factor test which considers (1) the severity of the misconduct, (2) the measures adopted by the trial judge to cure the misconduct, and (3) the certainty of the defendant's conviction absent the prosecutor's improper statements or conduct. Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir.1990) (citation omitted).

As to the severity of the misconduct, I note that it was substantiated only by trial counsel's observation. Although defense counsel for Russ stated that this was his second motion for a mistrial, his first motion for a mistrial was not based upon prosecutorial misconduct. From this Court's review of the record, it appears that the alleged improper gestures and facial expressions by trial counsel were not repeated by the prosecutor. Thus, this was an isolated instance of alleged misconduct. Although the trial judge stated that he did not see anything improper, he nevertheless issued an admonition to all counsel to refrain from communicating with the witnesses. On these facts, it is apparent to the Court that Russ has failed to establish that his right to a fair trial was "substantially prejudiced" by the prosecutor's conduct. See United States v. Holmes, 452 F.2d 249, 274 (7th Cir.1971) ("Williamson complains that the trial was permeated with "asides, " "grimaces, " expressions of disbelief, and other improper conduct by the prosecutor. Such behavior is not to be condoned but unfortunately it is a rare trial that can last for almost two months without some undignified displays by one side or another. On the whole, our examination of the record indicates that the trial judge maintained proper decorum and made sure that the defendants' rights were fairly protected. We find no substance in this contention."). Parenthetically, this Court condemns any displays of the type alleged here. On the record before the Court, however, petitioner's allegations are not substantiated. Therefore, Ground Five does not provide a basis for habeas relief.

F. Ground Six: Unconstitutionality of petitioner's sentence

*11 As his sixth ground for habeas relief, Russ states that prior to trial, he was offered "a plea of a determinate sentence of five years consecutive to any other indictment or conviction."Addendum to Petition at p. 6 (Docket No. 1). Russ alleges that because he "defend[ed] his innocence [sic], Petitioner was found guilty and sentenced to a determinate term of twenty-four years and six months, an enhanced sentence." Id. at 7 (Docket No. 1). Thus, Russ appears to be arguing that the trial court vindictively sentenced him for exercising his constitutional right to a trial.

Russ has not demonstrated a violation of clearly established Federal law. Trial by jury is a right given to persons under the United States Constitution (Amend.VI), and a state may not penalize a person for exercising a right guaranteed under the Constitution. E.g., North Carolina v. Pearce, 395 U.S. 711, 724 (1969) (limiting the power of a sentencing authority to increase a sentence after a defendant's re-conviction following a new trial; holding that the Due Process Clause of the Fourteenth Amendment prevents increased sentences when that increase was motivated by vindictiveness on the part of the sentencing judge); accord Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986)). At the same time, the Supreme Court has "squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea." Corbitt v. New Jersey, 439 U.S. 212, 219, 223, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978). In Corbitt, the Supreme Court observed that although there was "no doubt that those homicide defendants who are willing to plead non vult [contendere] may be treated more leniently than those who go to trial, "withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as [its] cases sustaining plea bargaining remain undisturbed." Id. ; see also see also Chaffin v. Stynchcombe, 412 U.S. 17, 30-31, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); United States ex rel. Williams v. McMann, 436 F.2d 103, 106-07 (2d Cir.1970) ("We note also that the Supreme Court has upheld the validity of plea bargains entered into because of the threat of a more severe sentence following a jury trial, despite the fact that such bargains inhibit the defendant's exercise of his right to trial by jury.") (citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (protestations of innocence did not bar acceptance of guilty plea upon advice of counsel motivated by fear of death penalty which only jury could impose); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)), cert. denied, 402 U.S. 914 (1971).

The Supreme Court rejected petitioner Corbitt's claim of vindictive sentencing because it "discern[ed] no element of retaliation or vindictiveness against [him] for going to trial[, ]" there was "no suggestion that he was subjected to unwarranted charges, " and the "record [did not] indicate that he was being punished for exercising a constitutional right." Corbitt v. New Jersey, 439 U.S. at 219, 223. Thus, the mere fact that the trial court, following Russ's conviction, imposed a considerably longer sentence than the one he was offered in connection with the plea offer, does not, in and of itself, establish "actual vindictiveness." See id. ; accord, e.g., Naranjo v. Filion, No. 02Civ.5449WHPAJP, 2003 WL 1900867, at *10 (S.D.N.Y. Apr.16, 2003) (denying habeas claim based on disparity between pre-trial offer of five to ten years and ultimate sentence of twenty-five to fifty years; such difference did not establish claim of actual vindictiveness because judge never suggested that sentence based on refusal of plea offer); Bailey v. Artuz, 1995 WL 684057, at *2 (N.D.N.Y. Nov.15, 1995) ("[A] sentencing judge does not show vindictiveness... by sentencing a defendant who, after withdrawing his plea of guilty to a lesser offense carrying a lower penalty, has then been convicted of a more serious offense to the higher penalty authorized... [Petitioner] has offered no evidence of vindictive sentencing beyond the fact of the plea bargain offered to him and the actual sentence he received.... Therefore, [petitioner] has not made out a claim of constitutionally impermissible vindictive sentencing.")); Pabon v. Hoke, 763 F.Supp. 1189, 1194-95 (E.D.N.Y.1991) ("The only evidence the Petitioner cites in support of his claim of vindictive sentencing was that, after trial, he received a sentence exceeding the promised sentence he rejected as part of the proposed plea agreement.... [T]he fact that an offered sentence during plea negotiation is less than the maximum potential sentence does not mean that the judge acted vindictively. Moreover, there is no support in the record that [the trial judge] even considered the prior plea bargain arrangement when sentencing the Petitioner. Indeed, there was no statement by the sentencing Justice indicating any vindictiveness as a result of the Petitioner choosing to go to trial. Accordingly, the court finds that the Petitioner has failed to show by a preponderance of the evidence that his sentence was unconstitutionally vindictive.") (citing, inter alia, United States v. Araujo, 539 F.2d 287, 292 (2d Cir.) ("[L]enience to those who exhibit contrition by admitting guilt does not carry a corollary that the Judge indulges a policy of penalizing those who elect to stand trial[.]") (quotation omitted), cert. denied, 429 U.S. 983, 97 S.Ct. 498, 50 L.Ed.2d 593 (1976); other internal citations omitted).

*12 Analyzing Russ's claim as asserting that his sentence was harsh and excessive similarly does not warrant habeas relief. It is well settled that a habeas petitioner's challenge to the length of his or her prison term does not present a cognizable constitutional issue if the sentence falls within the statutory range. See Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) ("The [petitioner's] sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction, much less on review of the state court's denial of habeas corpus."); White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992) ("No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.") (citing Underwood v. Kelly, 692 F.Supp. 146 (E.D.N.Y.1988), aff'd mem., 875 F.2d 857 (2d Cir.1989)); accord Ross v. Gavin, 101 F.3d 687, 1996 WL 346669 (2d Cir.1996) (unpublished opinion). The trial court sentenced Russ within the permissible statutory range. I note that since Russ's convictions related to two separate criminal incidents (the home invasion involving Henrichon, and the robbery of Vasquez), the sentencing court was authorized to impose consecutive terms of imprisonment. Ground Six is accordingly denied.

IV. Conclusion

For the reasons stated above, Bryon K. Russ's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Russ has failed to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253.

IT IS SO ORDERED.

Errol Thomas, Dannemora, NY, pro se.

Anthea Hemery Bruffee, Kings County District Attorney's Office, Brooklyn, NY, for Respondent.

Opinion

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

*1 Petitioner Errol Thomas brings this pro se Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, attacking the administration of his sentences for first-degree rape, first-degree attempted rape, three counts of first-degree sexual abuse, two counts of second-degree sexual abuse, and two counts of second-degree assault. Thomas asserts that his imposed sentence was administratively increased beyond the length set by the sentencing judge, and that this (1) subjects him to cruel and unusual punishment, and (2) violates his due process rights. For the reasons set forth below, Thomas's Petition is DENIED.

I. BACKGROUND

A. Facts

Errol Thomas lived with his daughters, Sonica Thomas and DelMarie Thomas, and son, Ricardo Thomas, in their apartment at 85 East 31st Street in Brooklyn, New York, throughout the period in which the crimes at issue were committed. (Response Order Show Cause ("Resp.Cause") (Dkt.9) at 2-3). On or about and between July 1, 1994, and July 31, 1994, in the bathroom of the apartment, Thomas touched his hand to the breast and vagina of his twelve-year-old daughter, Sonica, without her consent. ( Id. at 2.) On or about and between July 1 and July 31, 1995, at the same location, Thomas dragged thirteen-year-old Sonica into the bathroom and touched her vagina with his hand then forced her to touch her hand to his penis. ( Id. ) On or about and between April 1 and May 31, 1995, Thomas beat sixteen-year-old Ricardo, 13-year-old Sonica, and ten-year-old DelMarie, on the hands, arms, back, and stomach, with an electrical cord, causing pain and bruising, as well as small scars on Ricardo's hands. ( Id. ) On or about the morning of February 20, 1996, Thomas attempted to forcibly rape fourteen-year-old Sonica but was interrupted by her brother, Ricardo. ( Id. at 3.) Later that morning, Thomas forcibly raped Sonica and threatened to kill Sonica and Ricardo with a knife and a gun. ( Id. ) Ricardo jumped out the window to escape and sought help from a neighbor, who then alerted the police. ( Id. ) Thomas was caught trying to flee in his car. ( Id. )

B. Trial Court Proceedings

Thomas was charged in Kings County, New York with (1) one count of Rape in the First Degree; (2) six counts of Sexual Abuse in the First Degree; (3) one count of Attempted Rape in the First Degree; (4) one count of Incest; (5) four counts of Assault in the Second Degree; (6) two counts of Sexual Abuse in the Second Degree; (7) four counts of Assault in the Third Degree; (8) eight counts of Criminal Possession of a Weapon in the Fourth Degree; and (9) three counts of Endangering the Welfare of a Child. ( Id. ) Thomas was convicted following a jury trial in New York State Supreme Court, Kings County, of one count of Rape in the First Degree, one count of Attempted Rape in the First Degree, two counts of Sexual Abuse in the First Degree, three counts of Sexual Abuse in the Second Degree, and three counts of Assault in the Second Degree. ( Id. at 3-4.)

*2 On November 26, 1996, Thomas was sentenced to consecutive terms of imprisonment of twelve and one-half to twenty-five years for one count of Rape in the First Degree, seven and one-half to fifteen years for one count of Attempted Rape in the First Degree, and three and one-half to seven years for each of the three counts of Sexual Abuse in the First Degree and Assault in the Second Degree. ( Id. at 4.) Thomas concurrently was sentenced to one year imprisonment for the two counts of Second Degree Sexual Abuse. ( Id. ) In total, Thomas's sentence was forty-one to eighty-two years imprisonment. ( Id. )

Thomas appealed the judgment of conviction to the Supreme Court of the State of New York, Appellate Division, Second Department (the "Appellate Division"). ( Id. ) at 4-5.) Thomas claimed in part that his sentences on the attempted rape and rape counts should be concurrent and that the imposition of consecutive sentences for the three first-degree sexual abuse counts and two second-degree sexual abuse counts were illegal because they were allegedly based upon only two continuous events. ( Id. at 5.) On April 7, 2003, the Appellate Division unanimously affirmed Thomas's judgment of conviction, finding that "[t]he Supreme Court properly imposed consecutive sentences for [Thomas's] convictions of sexual abuse in the first degree and the sentence imposed was not excessive. " People v. Thomas, 304 A.D.2d 593, 756 N.Y.S.2d 898 (2d Dep't 2003) (citation omitted). On August 5, 2003, Thomas was denied leave to appeal the Appellate Division's decision to the New York Court of Appeals. People v. Thomas, 100 N.Y.2d 600, 766 N.Y.S.2d 176, 798 N.E.2d 360 (2003).

C. First Habeas Petition

By petition dated November 1, 2004, Thomas sought a federal writ of habeas corpus on the grounds that: (1) the evidence was legally insufficient to establish sexual abuse in the first-degree and assault in the second-degree, and (2) the trial court's imposition of consecutive sentences on various counts violated his protection against double jeopardy. (Petition for Writ of Habeas Corpus 04-CV-4691 ("Petition") (Dkt.1) at 5.) This court issued a Memorandum and Order on September 27, 2005, granting Thomas's "application for a writ of habeas corpus with respect to the state court's impermissible action in sentencing the defendant to consecutive terms of imprisonment for the conviction of three counts of First Degree Sexual Abuse" but denied the petition in all other respects. (Mem. and Order 04-CV-4691 (Dkt.7) at 13.) This court remitted the matter to the state trial court to resentence Thomas in a manner consistent with the Court's opinion. ( Id. )

D. Resentencing

On January 4, 2007, Thomas was re-sentenced in New York State Supreme Court, Kings County. (Resentencing Hearing (Dkt.9-1) at 1.) Judge Plummer Lott stated that he would "follow the directions of Judge Nicholas Garaufis, " and that "the previous sentences would remain in effect except, the sentence is on [sic] the three counts of Sexual Abuse in the First Degree will run concurrent with all the other sentences, consistent with the orders and direction of Nicholas Garaufis, United States District Judge, Eastern District for the State of New York."( Id. at 4-5, 766 N.Y.S.2d 176, 798 N.E.2d 360.) The judge also stated that he would "decline to disturb the sentence otherwise."( Id. at 4, 766 N.Y.S.2d 176, 798 N.E.2d 360.) After making this pronouncement, the judge had the clerk pronounce the sentence, which was read as:

*3 Count One, Rape in the First Degree, sentence of 12 and a half years to 25 years. Attempted Rape in the First Degree, one count, seven and a half years to 15 years. Sexual Abuse in the First Degree, three counts, will be run concurrently to those sentences as three and a half to seven years. Sexual Abuse in the Second Degree, two counts, one year each. And Assault in the Second Degree, two counts, three and a half to seven years, those counts to run consecutively.
( Id. at 5, 766 N.Y.S.2d 176, 798 N.E.2d 360.)

The clerk's reading of the sentence differed from the November 26, 1996, sentence in that it only listed two, rather than three, counts of Assault in the Second Degree. ( Id. ) The clerk's reading also did not explicitly mention which sentences were to run consecutively and which concurrently, although the judge had previously indicated he wished the sentence to be identical to the previous one aside from concurrently running the counts of First-Degree Sexual Abuse. ( Id. at 4-5, 766 N.Y.S.2d 176, 798 N.E.2d 360.)

The Uniform Sentence and Commitment form issued by the Office of the Supreme Court Clerk, Kings County, for the New York State Department of Corrections and Community Services ["DOCCS"] dated January 4, 2007, listed the following sentences: "(1) Rape 1st degree, 1 count, 12½-25 years, (2) Attempted Rape 1st degree, 1 count, 7½-15 years, (3) Sexual Abuse 1st degree, 3 counts, 3½-7 years each, (4) Sexual Abuse 2nd degree, 2 counts, 1 year post-release supervision each, (5) Assault 2nd degree, 3 counts, 3½-7 years each."(Uniform Sentence and Commitment ("Uniform Sentence") (Dkt.9-1) at 1.) The sentences for Rape in the First Degree, Attempted Rape in the First Degree, and Assault in the Second Degree were listed as running consecutively, while Sexual Abuse in the First Degree was listed as running concurrently with the other sentences. ( Id. ) Thus, the amended commitment issued on January 4, 2007, reflected that the November 26, 1996, sentences were modified such that the three counts of Sexual Abuse in the First degree run concurrently with each other and concurrently with the other counts on that indictment. (DOCCS Letter (Dkt.9-1) at 1-2.) The total for these sentences was thirty and one-half years to sixty years. ( Id. at 3, 766 N.Y.S.2d 176, 798 N.E.2d 360.) By operation of N.Y. Penal Law § 70.30(1)(e)(i), (vi), the aggregate minimum and maximum terms were deemed to be twenty-five to fifty years, respectively, [1] which is the sentence that Thomas is currently serving. ( Id. )

E. Direct Appeal

Thomas filed a petition against Respondent A. Del Gaizo, the Inmate Records Coordinator for DOCCS, pursuant to Article 78 of the New York Civil Practice Law and Rules. ( Thomas v. Del Gaizo, Mar. 28, 2011, Judgment of New York State Supreme Court, Albany County ("Judgment") (Dkt.9-1) at 1.) Thomas argued that Respondent miscalculated his terms of imprisonment based upon the sentencing transcript and certificate of conviction. (Pet. Brief App. Div. ("Pet. Brief") (Dkt.10-1) at 6.) Specifically, Thomas argued that the resentencing court did not indicate whether the sentences were to run concurrently or consecutively. ( Id. at 6-8, 946 N.Y.S.2d 106, 969 N.E.2d 223.) Therefore, Thomas argued that, according to N.Y. Penal Law § 70.25, [2] all the sentences should run concurrently for an aggregate prison term of twelve and one-half to twenty-five years. ( Id. at 7, 946 N.Y.S.2d 106, 969 N.E.2d 223.)

*4 On March 23, 2011, the New York State Supreme Court, Albany County, dismissed Thomas's Article 78 petition finding "no error in [R]espondent's determination of the aggregate terms of [Thomas's] sentence."(Judgment at 4.) On appeal from that order, on February 2, 2012, the New York State Supreme Court, Appellate Division, Third Department, upheld the lower court's ruling, stating that contrary to Thomas's contention:

[T]he resentencing court was not silent as to the manner in which the sentences were to run. Upon resentencing, Supreme Court explicitly stated that, except for the modification of the sexual abuse in the first degree sentences to be run concurrently, the previous sentences will remain in effect.' The 1997 originally imposed sentences [sic] for the rape, attempted rape and assault in the second degree convictions were ordered to run consecutive to each other. Furthermore, inasmuch as a review of the record reveals no error in the calculation of the consecutively imposed sentences, Supreme Court's judgment will not be disturbed.

Thomas v. Del Gaizo, 92 A.D.3d 993, 937 N.Y.S.2d 474, 475 (3d Dep't 2012). On May 8, 2012, the New York State Court of Appeals denied Thomas's motion for leave to appeal the February 2, 2012 decision and order of the Appellate Division, Third Department. Thomas v. Del Gaizo, 19 N.Y.3d 803 (2012).

F. Petition for Writ of Habeas Corpus

On June 7, 2012, Thomas submitted the instant Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. (Petition at 1.) He asserts that by administratively increasing his sentence above that ordered by the sentencing court, Respondent has (1) violated Thomas's Fourteenth Amendment due process rights, and (2) subjected him to cruel and unusual punishment in violation of the Eighth Amendment. ( Id. at 4.)

II. HABEAS CORPUS STANDARDS

Under 28 U.S.C. § 2254(a), a district court is empowered to "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."A person in custody pursuant to a judgment of a state court must generally meet three requirements to obtain habeas relief: (1) exhaustion; (2) lack of a procedural bar; and (3) satisfaction of the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996).

A. Exhaustion

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State."28 U.S.C. § 2254(b)(1)."The exhaustion requirement is not satisfied unless the federal claim has been fairly presented to the state courts, " meaning that the petitioner "informed the state court of both the factual and the legal premises of the claim he asserts." Dave v. Att'y Gen. of State of N. Y., 696 F.2d 186, 191 (2d Cir.1982) (en banc) (internal quotation marks omitted).

*5 "A petitioner is not required to cite book and verse on the federal constitution' in order for a claim to be fairly presented.'" Allison v. Khahaifa, No. 10-CV-3453 (KAM), 2011 WL 3298876, at *6 (E.D.N.Y. Aug.1, 2011) (quoting Picard v. Connor, 404 U.S. 270, 275, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971))."Instead, exhaustion may be satisfied where the legal basis of a claim made in state court is the substantial equivalent' of the habeas claim." Id. (quoting Picard, 404 U.S. at 278)."This means, in essence, that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192. Thus, even if a petitioner does not cite any federal constitutional provisions, he may fairly present his federal claim to the state court through:

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like factual situations, (c) assertion of the claim in terms so particular as to call in mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Id. at 194.

Notably, every claim that a petitioner makes in his § 2254 application must first have been raised in state court in order for the petition to be considered exhausted. This "total exhaustion" rule requires that "a district court [ ] dismiss habeas petitions containing both unexhausted and exhausted claims." Rose v. Lundy, 455 U.S. 509, 513, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). But there is an important exception to the total exhaustion rule-created by a 1996 amendment to AEDPA-whereby a district court may deny an entire habeas petition on the merits notwithstanding a petitioner's failure to exhaust some or all of his claims. See 28 U.S.C. § 2254(b)(2). That is, a court may on the merits deny but not grant "mixed petitions." Caswell v. Racetti, No. 11-CV-0153 (MAT), 2012 WL 1029457, at *4 (W.D.N.Y. Mar.26, 2012) (citing Turner v. Artuz, 262 F.3d 118, 122 (2d Cir.2001)).

B. Procedural Bar

"It is well established that federal courts will not review questions of federal law presented in a habeas petition application when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment." Cone v. Bell, 556 U.S. 449, 465, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (internal quotation marks omitted)."[W]hen a petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the state court's refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review."[3] Id.

"[T]he adequacy of state procedural bars to the assertion of federal questions is not within the State's prerogative finally to decide; rather, adequacy is itself a federal question." Id. (internal quotation marks and alteration omitted). Thus, courts "have an independent duty to scrutinize the application of state rules that bar [its] review of federal claims." Id. at 468.

*6 The concepts of procedural bar and exhaustion often interact in an important way. If a § 2254 petitioner has failed to present a claim to a state court but can no longer do so-for example, if the time to file a state-court appeal has passed-then that claim is considered procedurally barred rather than unexhausted. See O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (holding that petitioner's "failure to present three of his federal habeas claims to the Illinois Supreme Court [] resulted in a procedural default of those claims"); Philbert v. Brown, 11-CV-1805 (NGG), 2012 WL 4849011 at *6 (E.D.N.Y. Oct. 11, 2012) (noting that "[w]hen a petitioner has not properly presented his claim to a state for consideration on the merits, but it is clear that the state court would hold the claim procedurally barred, ... the exhaustion requirement is satisfied" but the petitioner is barred "from litigating the merits of th[at] claim[ ] in federal habeas proceedings") (quoting Lloyd v. Walker, 771 F.Supp. 570, 574 (E.D.N.Y.1991)). A court's conclusion that a claim is procedurally defaulted rather than exhausted permits the petitioner to avoid the harsh effects of the "total exhaustion" rule discussed above-that is, if a claim has not been presented to the state court but can no longer be brought in state court, the court may consider the petitioner's remaining claims on the merits so long as those claims have been exhausted. See Turner, 262 F.3d at 122-23.

C. AEDPA Deference

Where a state court does reach the merits of a claim asserted in a § 2254 habeas petition, the state's decision is reviewed under the deferential standard set forth in AEDPA, which provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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.

Id. § 2254(d); see also Ryan v. Miller, 303 F.3d 231, 245 (2d Cir.2002).

"Clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision." Howard v. Walker, 406 F.3d 114, 122 (2d Cir.2005). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The question is "not whether the state court was incorrect or erroneous in rejecting petitioner's claim, but whether it was objectively unreasonable in doing so." Ryan, 303 F.3d at 245 (internal quotation marks, alterations, and emphases omitted). The petition may be granted only if "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).

*7 Under AEDPA, "a determination of a factual issue made by a State court [is] presumed to be correct, " and the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence."28 U.S.C. § 2254(e)(1). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-EL v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

III. DISCUSSION

As an initial matter, the court notes that Thomas is proceeding pro se, and that his submissions should thus be held to "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). A pro se complaint and other documents are "to be liberally construed, " Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir.2012), and interpreted "to raise the strongest arguments that they suggest, " Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996). However, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Boddie v. New York State Div. of Parole, 285 F.Supp.2d 421, 426 (S.D.N.Y.2003) (quoting Traguth v. Zuch, 710 F.2d 90, 95 (2d Cir.1983)).

A. Eighth Amendment Claim

1. Exhaustion

Respondent argues that Thomas's Eighth Amendment claim is unexhausted. First, Respondent argues that Thomas's claim must be denied because he failed to pursue all available state court remedies. (Opp'n to Pet. (Dkt.9) at 11.) Specifically, Respondent points to Thomas's failure to appeal his January 4, 2007, judgment of conviction to the Appellate Division. ( Id. at 12.)Second, Respondent notes that Thomas appealed his original November 26, 1996, sentence based solely on a claim that, under state law, the sentences for the three first-degree sexual abuse and the two second-degree sexual abuse convictions should be reduced in the interest of justice. Respondent argues, therefore, that Thomas failed to raise an Eighth Amendment claim regarding this sentencing. (Id.) Finally, Respondent argues that, notwithstanding the above, Thomas could still make "a motion to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20, claiming that his sentence violated the Eight Amendment of the United States Constitution." (Resp. Cause at 12.) Thomas, however, objects to Respondent's claim that the Eighth Amendment claim of cruel and unusual punishment is unexhausted and maintains that he did in fact raise that claim in the point heading of his brief to the Appellate Division, Third Department. (Traverse (Dkt.10) at 2.) For the reasons that follow, the court finds that Thomas's Eighth Amendment Claim was fairly presented to the state courts and thus was exhausted.

As discussed above in Section ILA., Iblefore a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court." O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To exhaust a claim, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process... before... present[ing] those claims to a federal court in a habeas petition." Id. at 842, 845.

*8 To present a claim, "petitioner must have placed before the state court essentially the same legal doctrine he asserts in his federal petition." Daye v. Attorney General of State of N.Y., 696 F.2d 186, 191 (2d Cir.1982)." Obviously if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts." Id. at 192." [A] petitioner's citation to [a constitutional provision] in a heading in his brief [is] sufficient[ ][to] alert[ ] the state courts to the federal constitutional nature of the... claim." Gonzalez v. Sullivan, 934 F.2d 419, 423 (2d.1991): see also Samuel v. La Valley, 12-CV-2372 (BMC), 2013 WL 550688, at *2, n. 1 (E.D.N.Y. Feb. 12, 2013) (because "the practice that has developed among state appellate defense lawyers of alluding to federal claims... by a federal citation in a point heading... is of course controlling authority [under Daye ], I will deem the claim exhausted"); Reese v. Greiner, 97-CV-5622 (MGC), 2003 WL 21459577 (S.D.N.Y. June 23, 2003) (finding that because "petitioner's brief to the Appellate Division did specifically cite the Fourteenth Amendment in his point heading... the issue was fairly presented in prior state court proceedings"); Sutton v. Herbert, 39 F.Supp.2d 335, 338 (S.D.N.Y.1999) ("Petitioner's brief to the Appellate Division specifically claims a denial of due process' related to [his] claims and cites the Fourteenth Amendment of the United States Constitution... [and thus] reasonably complied with the exhaustion requirement."); Small v. Batista, 6 F.Supp.2d 211, 217-18 (S.D.N.Y.1998) (finding petitioner's first point heading in his Appellate Division brief, which referenced a constitutional amendment, clearly referred to the federal constitutional issue that formed the basis of the habeas petition and thus exhausted petitioner's state court remedies).

Here, Thomas did not appeal his January 4, 2007, judgment of conviction and thus did not exhaust his state court remedies related to that conviction. However, "because the AEDPA authorizes the denial of a habeas corpus petition on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State, '" the Court will review Thomas's Eighth Amendment claim. Turner v. Artuz, 262 F.3d 118, 122 (2d Cir.2001) (citing 28 U.S.C. § 2254(b)(2)). Moreover, Thomas did file a petition pursuant to Article 78 of the New York Civil Practice Law and Rules -against Respondent A. Del Gaizo, the Inmate Records Coordinator for DOCCS-challenging the calculation of his terms of imprisonment based upon the sentencing transcript and certificate of conviction. (Petition at 3.) That petition was dismissed at the trial court level. (Judgment at 4.) The Appellate Division, Third Department, upheld the trial court's order and the Court of Appeals denied Thomas's motion for leave to appeal. Thomas v. Del Gaizo, 92 A.D.3d 993, 937 N.Y.S.2d 474, 475 (3d Dep't 2012), leave to appeal denied. Thomas v. Del Gaizo, 19 N.Y.3d 803 (2012). Thus, Thomas did in fact give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process related to his Article 78 petition. Tatta v. Miller, 05-C1205 (FB), 2005 WL 2806236, at *1 (E.D.N.Y. Oct. 27, 2005) ("[Petitioner] exhausted his state court remedies... by seeking a writ of mandamus pursuant to Article 78 of the New York Civil Procedure Law and Rules, appealing to the Appellate Division and seeking leave to appeal to the New York Court of Appeals.").

*9 Moreover, Thomas's arguments are substantively the same in his briefs both for state and federal court. For comparison, a heading in his state court brief reads, "Respondent has Miscalculated Appellant's Terms of Imprisonment" and lists "United States Constitutional Amendments 8 and 14" as provisions violated by Respondent. (Petition at 6.) The same point is made in Thomas's federal court brief in a heading: "Respondent has Denied Petitioner His Right to the Execution of his Sentence as Imposed by the Sentencing Court Thereby Violating Petitioner's Constitutional Due Process Rights and Subjecting Petitioner to Cruel and Unusual Punishment." ( Id. at 4.) The point is substantively the same-that Thomas has been subjected to cruel and unusual punishment in violation of the Eighth Amendment. Therefore, the claim was fairly presented before the state court and thus exhausted.

As a final matter, Thomas could still make "a motion to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20, claiming that his sentence violated the Eight Amendment of the United States Constitution." (Resp. Cause at 12.) However, such a possibility is irrelevant, because Thomas did not raise the argument that his sentence itself violated the Eighth Amendment in these proceedings. (Traverse at 3) ("Thomas objects to those portions of Respondent's answer claiming that Thomas challenges the imposition of his sentence.").) Rather, Thomas argues that it is the alleged administrative increase in his sentence that violates the Eighth Amendment. ( Id. ) ("Thomas's petition herein and all of the motions and briefs hitherto allege a claim that Thomas challenges the execution of his sentence not its imposition.").) Therefore, it is of no import that this claim is unexhausted.

2. Merits

Thomas argues that the Inmate Records Coordinator for DOCCS miscalculated his terms of imprisonment in violation of the Eighth Amendment of the United States Constitution. (Pet. Brief at 6.) The Appellate Division rejected this claim on the merits. Thomas v. Del Gaizo, 92 A.D.3d 993, 937 N.Y.S.2d 474, 475 (3d Dep't 2012). For the following reasons, the court concludes that the Appellate Division conclusion was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d).

Under the Eighth Amendment of the United States Constitution, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." "The final clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). However, "[l]engthy prison sentences, even those that exceed any conceivable life expectancy of a convicted defendant, do not violate the Eighth Amendment's prohibition against cruel and unusual punishment when based on a proper application of the Sentencing Guidelines or statutorily mandated consecutive terms." United States v. Steele, 390 F.App'x 6, 17 (2d Cir.2010) (quoting United States v. Yousef 327 F.3d 56, 163 (2d Cir.2003)). Thus, "the imposition of consecutive sentences is found to run afoul of the Eighth Amendment only under extraordinary circumstances, " Ashby v. Senkowski, 269 F.Supp.2d 109, 115 (E.D.N.Y. July 3, 2003) (internal quotations omitted), and, consequently, "successful Eighth Amendment challenges to the proportionality of a sentence have been exceedingly rare.'" United States v. Yousef 327 F.3d 56, 163 (2d Cir.2003) (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)).

*10 Thomas's sentence does not violate the Eighth Amendment because it is neither barbaric nor disproportionate to the crimes committed and was within the allowable limits of state law. The trial court properly exercised its discretion when it imposed consecutive sentences totaling thirty and one-half to sixtyone years. (Judgment at 3.) Thomas's consecutive terms of imprisonment-twelve and one-half to twenty-five years for first-degree rape, a class B felony (N.Y. Penal Law § 130.35(1) (McKinney 2013)); seven and one-half to fifteen years for first-degree attempted rape, a class C felony (N.Y. Penal Law §§ 110.00, 130.35(1) (McKinney 2013)); three and one-half to seven years for first-degree sexual abuse (three concurrent counts), class D felonies (N.Y. Penal Law § 130.65(1) (McKinney 2013)); three and one-half to seven years for second-degree assault (three consecutive counts, class D felonies (N.Y. Penal Law § 120.05(2) (McKinney 2013)); and one year for second-degree sexual abuse (two concurrent terms), class A misdemeanors (N.Y. Penal Law § 130.60 (McKinney 2013))-fall within the permissible statutory ranges. Moreover, by operation of law, the aggregate maximum term of Thomas's consecutive sentences is twentyfive to fifty years imprisonment. See N.Y. Penal Law § 70.30(1)(e)(i), (vi); Thomas v. Del Gaizo, 92 A.D.3d 993, 937 N.Y.S.2d 474, 475 (3d Dep't 2012). Therefore, Thomas's Eighth Amendment claim is not cognizable on habeas review. See United States v. Steele, 390 F.App'x 6, 17 (2d Cir.2010); see also White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992).

Notably, neither Thomas's brief to the Appellate Division nor his habeas corpus petition attacks the imposed sentence on the grounds that it is either barbaric or disproportionate to the crime. Nor does Thomas cite any cases in which the administrative increase of a sentence was held to violate the Eighth Amendment when the sentence accurately reflected the sentencing court's order and was within the allowable limits of state law.

An additional overall review of the record reveals no extraordinary circumstances to support a claim that Thomas's sentence is excessive and amounts to cruel and unusual punishment. Accordingly, Thomas's Eighth Amendment claim is denied.

B. Fourteenth Amendment Due Process

Thomas claims that Respondent denied him his right to due process rights, as protected by the Fourteenth Amendment, by administratively increasing his sentence beyond what was orally pronounced by the sentencing judge. (Petition at 4.) Specifically, Thomas claims that (1) the re-sentencing court did not indicate whether the sentences were to run concurrently or consecutively and thus, under N.Y. Penal Law § 70.25, all the sentences should run concurrently and not as calculated by DOCCS; and (2) that his sentence was increased because his resentencing only listed two counts of second-degree assault, and his imposed sentence lists three counts. ( Id. at 12.)For the reasons that follow, the Court concludes that the sentence calculated by DOCCS was the expressed judgment of the New York State Supreme Court and not an administrative increase in Thomas's sentence.

1. Whether the Sentences Were Consecutive or Concurrent

*11 Thomas argues that his November 26, 1996, "sentence was vacated as unlawful" and that "any prior proceedings thereon were a nullity and could not be relied upon to uphold the later imposed sentence before a different judge."(Pet. Brief at 8.) Next, Thomas turns to the perceived differences between the pronounced sentences of the sentencing judge, Judge Lott, on January 4, 2007, and his administrative sentences imposed that same day. Thomas argues that the administrative sentences run consecutively whereas the sentencing court did not specify whether his sentences were to be concurrent or consecutive and, therefore, that they should be interpreted as concurrent. ( Id. at 12.)In support of his position, Thomas quotes the portion of the sentencing transcript in which the clerk read the sentences:

Count one, Rape in the First Degree, sentence of 12 and a half years to 25 years. Attempt rape in the First Degree, one count, seven and a half to 15 years. Sexual abuse in the First Degree, three counts, will be run concurrently to those sentences as three and a half to seven years. Sexual abuse in the second degree, two counts, misdemeanor, one year each. And Assault in the Second Degree, two counts, three and a half to seven years, those counts to run consecutively.

(Petition at 4.) Based on this statement, Thomas concludes that consecutive sentences are not listed, which would render them concurrent under New York State Penal Law § 70.25.[4] ( Id. at 13.) Therefore, Thomas concludes that the sentencing and commitment order, which lists several consecutive sentences, is invalid. (Traverse at 4.)

Respondent counters that "[t]his Court... only granted habeas relief with regard to the three consecutive sentences for the first-degree sexual abuse and otherwise denied the writ... thus [leaving] in place the other consecutive and concurrent terms of imprisonment imposed upon [the] defendant by the State sentencing court on November 26, 1996."(Resp. Cause at 15.) Respondent argues that the "DOCCS merely calculated defendant's sentence based upon the sentence actually imposed by the State court judge." ( Id. at 16.)Respondent argues further that because the Appellate Division, Third Department found that the "Supreme Court explicitly stated that, except for the modification of the sexual abuse in the first degree sentences to be run concurrently, the previous sentences will remain in effect, " the judgment of the sentencing court was not increased by DOCCS. Thomas v. Del Gaizo, 937 N.Y.S.2d at 475 (internal quotations omitted).

The court agrees with Respondent. It is well established that "[t]he prisoner is detained, not by virtue of the warrant of commitment, but on account of the judgment and sentence." Hill v. Wampler, 298 U.S. 460, 465, 56 S.Ct. 760, 80 L.Ed. 1283 (1936); see also Earley v. Murray, 451 F.3d 71, 74 (2d Cir.2006) ("[T]he sentence imposed by the sentencing judge is controlling."). Therefore, "[a] warrant of commitment departing in matter of substance from the judgment back of it is void." Hurley v. Fischer, No. 09-C1684 (CBA), 2012 WL 463895, at *4 (E.D.N.Y. Feb.13, 2012) (quoting Hill, 298 U.S. at 465). Where there is a variance between an "oral pronouncement of sentence and the written judgment, the oral pronouncement, as correctly reported, must control." United States v. Carr, 557 F.3d 93, 109 (2d Cir.2009); see also United States v. DeMartino, 112 F.3d 75, 78-79 (2d Cir.1997); United States v. Werber, 51 F.3d 342, 347 (2d Cir.1995); United States v. Pagan, 785 F.2d 378, 380 (2d Cir.1986); United States v. Moyle, 724 F.2d 29 (2d Cir.1983); United States v. Marquez, 506 F.2d 620, 622 (2d Cir.1974).

*12 "The written commitment order is mere evidence of [the court's] authority, " Werber, 51 F.3d at 347, and "may not be increased by an administrator's amendment, " Earley v. Murray, 451 F.3d 71, 75 (2d Cir.2006). The proscription against administrative amendment applies even when the terms added to the sentence are mandated by law. See Earley, 451 F.3d at 76 ("[W]hen DOCS discovered the oversight made by [the defendant's] sentencing judge, the proper course would have been to inform the state of the problem, not to modify the sentence unilaterally.... New York's Department of Correctional Services has no... power to alter a sentence."); see also Wampler, 298 U.S. at 464 ("If the [order of commitment] is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth.").

Here, the sentencing judge was not silent as to the manner in which the sentences were to run. In fact, the judge specifically noted that the previous sentences would "remain in effect except, the sentence is on [sic] the three counts of Sexual Abuse in the First Degree will run concurrent with all the other sentences."(Resentencing Hearing at 4-5.) Thomas contends that this and other statements by the judge do not constitute a pronouncement of the sentence because of their "ambiguity" and because they do not "distinguish whether the court was referring to the length of the sentences or the manner in which they were to run."(Petition at 14.) To the contrary, the statements were not ambiguous, as "declin[ing] to disturb the sentence" unequivocally meant that the judge chose to modify neither the length of the sentences nor the manner in which they were to run. (Resentencing Hearing at 4.) Taken together with this court's September 27, 2005, order that Thomas's November 1, 2004, application for a writ of habeas corpus was "granted with respect to the state trial court's impermissible action in sentencing the defendant to consecutive terms of imprisonment for the conviction of three counts of First-Degree Sexual Abuse" and otherwise "denied in all respects, " there is no doubt that the judge's statements (which directly referenced this court's prior order) were clear. (Mem. and Order at 13.)

Even granting Thomas's contention that the orally pronounced sentence was actually ambiguous, an examination of the written sentence could have easily clarified that ambiguity. The sentences for Rape in the First Degree, Attempted Rape in the First Degree, and Assault in the Second Degree were listed as running consecutively while Sexual Abuse in the First Degree was listed as running concurrently with the other sentences. (Uniform Sentence at 1.)

While an orally pronounced sentence controls when it clearly differs from an order and commitment, a "commitment order may properly serve the function of resolving ambiguities in orally pronounced sentences." Pagan, 785 F.2d at 380 (quoting Moyles, 724 F.2d at 30 (citing Payne v. Madigan, 274 F.2d 702 (9th Cir.1960)). Specifically, "where the sentencing court was silent with regard to whether the terms of imprisonment were to be served concurrently or consecutively, the written judgment could permissibly specify either." United States v. Truscello, 168 F.3d 61, 63 (2d Cir.1999) (citing United States v. Pugliese, 860 F.2d 25, 30 (2d Cir.1988)).

*13 Thus, even if the judge had been entirely silent regarding how the sentences were to run, it would not violate Thomas's due process rights for the written judgment to specify that the sentences were to run consecutively. See United States v. Jacques, 321 F.3d 255, 265 (2d. Cir.2003) (holding that written conditions of probation imposed on defendant not mentioned orally at sentencing were a permissible clarification of oral sentence); see also United States v. Truscello, 168 F.3d 61, 63 (2d Cir.1999) (finding that "where there was no real inconsistency but rather an ambiguity [between the written and oral sentences], [the Second Circuit] has upheld the written judgment"); U. v. Pugliese, 860 F.2d 25, 30 (2nd Cir.1988) (finding that where "there is genuine doubt concerning the oral pronouncement of sentence, a commitment order may properly serve the function of resolving ambiguities in the orally pronounced sentence").

Finally, whether the sentencing court properly applied New York State Penal Law § 70.25 in determining that Thomas's sentences were consecutive rather than concurrent is not cognizable on federal habeas review. See 28 U.S.C.A. § 2254(a) (federal courts can grant habeas relief only when prisoner "is in custody in violation of the Constitution or laws or treaties of the United States"). Under New York Penal Law § 70.25, a sentence that is silent as to whether the imprisonment is to be served concurrently or consecutively "shall run concurrently with all other terms."N.Y. Penal Law § 70.25(1)(a) (McKinney 2013). However, a claim "that the sentencing judge failed to comply with [Penal Law § 70.25] raises a question of state law." David v. Greiner, No. 02-C6802 (JBW), 2003 WL 23198786, at *13 (E.D.N.Y. Oct.30, 2003). As "federal courts may not issue the writ [of habeas corpus] on the basis of a perceived error of state law, " Pulley v. Harris. 46 U.S. 37, 41 (1984), Thomas's § 70.25 claim is not reviewable in a federal habeas proceeding and thus is denied. See Greiner, 2003 WL 23198786, at *12-13.

2. The Counts of 2nd Degree Assault

Thomas argues that his administrative sentence adds an extra count of assault that was not pronounced by the sentencing court. (Petition at 4-5.) Thomas quotes the clerk's reading of the sentence, which states, "Assault in the Second Degree, two counts, three and a half to seven years, those counts to run consecutively."( Id. at 4.) Thomas argues that this reading of the sentence means that he is sentenced to only two counts of Assault in the Second Degree, despite the sentencing judge's prior statement that, the "previous sentences [would] remain in effect, " and that the previous sentences included three counts of Assault in the Second Degree. ( Id. ) The court disagrees with Thomas's contention.

A sentence is ambiguous when the pronouncement of the sentence conflicts with clear statements made by the judge during the hearing. See Pagan, 785 F.2d at 380 (finding ambiguity arose from a conflict between pronouncement of the sentence and statements made by the judge during subsequent colloquy). As discussed above, in Section III.B.1, "[a] commitment order may properly serve the function of resolving ambiguities in orally pronounced sentences."United States v. Moyles, 724 F.2d 29, 30-31 (2d Cir.1983).

*14 The statement of the sentencing judge that the previous sentences-which included three counts of Assault in the Second Degree-would remain in effect did contradict the imposition of the two counts of Assault in the Second Degree. (Resentencing Hearing at 4-5.) However, the Order and Commitment subsequently clarified that three counts of Assault in the Second Degree were imposed. (Uniform Sentence at 1.) It is not clearly contrary to federal law to conclude that the sentence was ambiguous and that the written order properly clarified the sentence. See Moyles, 724 F.2d at 30-31.

IV. CONCLUSION

For the reasons set forth above, Thomas has not made a substantial showing that either his Eighth Amendment right to avoid cruel and unusual punishment or his Fourteenth Amendment right to due process were violated, or that the imposition of his sentence involved an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d). Accordingly, Thomas's Petition for Writ of Habeas Corpus is DENIED. No certificate of appealability shall issue because there has been no "substantial showing of the denial of a constitutional right."28 U.S.C. § 2253(c). The Clerk of Court is directed to enter judgment and to close this case.

SO ORDERED.

Attorneys and Law Firms

Fenix Dhaity, Gadsen, AL, pro se.

David M. Kutzner, Michael E. O'Hare, Chief State Attorney Office, Rocky Hill, CT, for Respondent.

Opinion

RULING ON PETITION FOR WRIT OF HABEAS CORPUS

HAIGHT, Senior District Judge:

I. INTRODUCTION

*1 Petitioner Fenix Dhaity is a former Connecticut state prisoner who was incarcerated at the Brooklyn Correctional Institution in Brooklyn, Connecticut, for a twelve-year sentence stemming from his 2003 conviction on charges of sexual assault and kidnapping.[1] As of the present date, he has completed service of that sentence and been released to serve an eight-year term of special parole, relating to those convictions.[2]

While incarcerated, pursuant to 28 U.S.C. § 2254, Petitioner commenced this action by filing a pro se petition for a writ of habeas corpus, which he later amended in January of 2009 [Doc. 13]. In the Amended Petition, he challenged his state court convictions for sexual assault and kidnapping and claimed that he was thus being held in violation of the Constitution, laws or treaties of the United States.

II. PROCEDURAL HISTORY

On March 26, 2003, Petitioner was convicted by a jury in Connecticut state court of sexual assault and kidnapping, both in the first degree, Conn. Gen.Stat. §§ 53a-70(a)(1) & 53a-92(a)(2)(a), but acquitted on the third charge of intimidating a witness, Conn. Gen.Stat. § 53a-151a. See Doc. 14, Appendix I (transcripts of trial, State v. D'Haity, No. CR01-0137853S, Judicial District of Stamford/Norwalk). The trial court sentenced Petitioner to twelve years of incarceration on the sexual assault charge, followed by eight years of special parole, and twelve years of incarceration on the kidnapping charge, followed by eight years of special parole. Because the sentences were to run concurrently, Petitioner was sentenced effectively to a twelve-year term of incarceration, to be followed by eight years of special parole.

With respect to the trial, Petitioner asserts that, upon completion of the state's case, his counsel moved for a judgment of acquittal on the witness intimidation charge, but the trial judge wrongfully "reserved decision" on that motion "until the close of the defense case, " ultimately "denied [his] motion for judgment of acquittal" on that charge, and then "instructed the jury on the consciousness of guilt regarding the witness intimidation charge."Doc. 13 (Amended Petition), p. 23.

Petitioner made an unsuccessful appeal to the Connecticut Appellate Court, seeking reversal of his convictions on six different grounds, including the trial court's failure to rule on his motion for judgment of acquittal on the witness intimidation charge and instruction to the jury on consciousness of guilt. State v. D'Haity, 99 Conn.App. 375, 390-91, 914 A.2d 570 (2007). Petitioner then sought certification to appeal from the Connecticut Supreme Court. Doc. 14, Appendix. F (Petition for Certiorari to Connecticut Supreme Court). In that Petition, Dhaity presented only one issue for review:

Did the Appellate Court err in concluding that the Defendant's acquittal on the witness intimidation charge precluded a finding of aggrievement on the trial court rulings related to that charge?

*2 Certification was denied. State v. D'Haity, 282 Conn. 912, 924 A.2d 137 (2007).

Petitioner's sole ground upon which he now seeks federal habeas relief is essentially identical to the one he presented to the Connecticut Supreme Court. In his Amended Petition, he thus describes "Ground One" as follows:

Did the [Connecticut] Appellate Court err in concluding that the petitioner beign [sic] acquitted on the witness intimidation charge preclude[d] a finding of aggrievement on the trial court rulings related to that charge?

Doc. 13, ¶ 19 ("Ground One").

The Respondent claims that, although exhausted in state court, the Petitioner's present habeas claim must be rejected for 3 reasons: (1) the Connecticut Appellate Court rejected each of Petitioner's underlying sub-claims (including one mirroring the present claim) under an adequate and independent state procedural rule; (2) Petitioner "has not alleged cause and prejudice to overcome this procedural default;" and (3) if considered on the merits, the claim fails because "it is based entirely on state law and is not cognizable in a federal habeas proceeding."Doc. 14, p. 8.

III. THRESHOLD ISSUE-Potential Moonless

At the outset, before addressing the merits of the Amended Petition, the Court resolves the issue of whether Petitioner's release from prison has rendered his habeas corpus claim moot. Under the present circumstances, the answer is decidedly, "No." In general, in order for a federal court to exercise jurisdiction over a habeas petition, the petitioner must be "in custody in violation of the Constitution or laws or treaties of the United States."28 U.S.C. § 2254(a).[3] See also Peyton v. Rowe, 391 U.S. 54, 58, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) ("The writ of habeas corpus is a procedural device for subjecting executive, judicial, or private restraints on liberty to judicial scrutiny. Where it is available, it assures among other things that a prisoner may require his jailer to justify the detention under the law.")."[T]he habeas petitioner [must] be in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam) (citing Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)).

A petitioner need not, however, be "physically confined in order to challenge his sentence on habeas corpus." Maleng, 490 U.S. at 491, 109 S.Ct. 1923.For example, for habeas purposes, a prisoner placed on parole is still "in custody" under his unexpired sentence. Id. (citing Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (holding that prisoner's release into custody of parole board is significant restraint on freedom within meaning of habeas corpus statute)). The Supreme Court has reasoned that said release is "not unconditional; instead, it [is] explicitly conditioned on [the petitioner's] reporting regularly to his parole officer, remaining in a particular community, residence, and job, and refraining from certain activities." Maleng, 490 U.S. at 491, 109 S.Ct. 1923.In other words, the petitioner's criminal conviction continues to impose substantial restraints on his freedom, which are not borne by the public generally. Id.

*3 Parole has consistently been held to constitute a sufficient "restraint" to comprise "custody" for purposes of habeas relief. See Jones, 371 U.S. at 241-43, 83 S.Ct. 373. See also Earley v. Murray, 451 F.3d 71, 75 (2d Cir.2006) (with respect to habeas relief, "[p]ost-release supervision, admitting of the possibility of revocation and additional jail time, is considered to be custody'") (citing Jones, 371 U.S. at 240-43, 83 S.Ct. 373), cert. denied sub nom. Burhlre v. Earley, 551 U.S. 1159, 127 S.Ct. 3014, 168 L.Ed.2d 752 (2007); United States ex rel. Johnson v. Dep't of Corr. Servs. of the State of N.Y., 461 F.2d 956, 958 n. 1 (2d Cir.1972) ("As we said in United States ex rel. Sadness v. Wilkins, 312 F.2d 559, 560 (2d Cir.1963), [The Supreme Court's] opinion in Jones v. Cunningham, [371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285] (1963), now makes clear that a prisoner who is released upon parole remains in custody' within the meaning of federal habeas corpus jurisdiction, " and "that release upon parole does not render moot an appeal from a habeas corpus proceeding conducted prior to release.'") (brackets in original).

The Court takes judicial notice that Dhaity is currently on "special parole"[4] as a result of his relevant convictions and will not be released until the prospective end date of August 14, 2021.[5] See http://www.ctinmateinfo.state.ct.us/detailsupv.asp?idinmtnum=271955. Said parole does not deprive the Court of jurisdiction to decide his habeas petition nor does it render that petition moot. The Court will thus examine the merits of the petition.

IV. STANDARD OF REVIEW-Federal Habeas Corpus -28 U.S.C. § 2254

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(a), "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."See, e.g., Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Because federal habeas relief may only be obtained for a violation of federal law, it "does not lie for errors of state law." See Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)).[6] See also Howard v. Walker, 406 F.3d 114, 121 (2d Cir.2005) ("A claim that a state conviction was obtained in violation of state law is not cognizable in federal court"); accord Johnson v. Brooks, 294 F.Supp.2d 223, 225 (D.Conn.2003); Constantopoulos v. Comm'r of Corr., No. 3:98CV1166(SRU), 2003 WL 2002769, at *2 (D.Conn. April 16, 2003); Flemming v. New York, No. 06 Civ. 15226(LAP)(HBP), 2013 WL 4831197, at *11 (S.D.N.Y. Sept. 10, 2013).

Specifically, a federal habeas court may grant habeas relief "with respect to any claim that was adjudicated on the merits in State court proceedings" only if the state decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;"[7] or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."[8] 28 U.S.C. § 2254(d)(1)-(2)."This substantive limitation § 2254(d) places upon a federal court's power to give habeas relief to a state prisoner is frequently referred to as AEDPA deference.' "Lewis v. Comm'r of Corr., No. 3:03-CV-196 (CSH), F.Supp.2d ___, ___, 2013 WL 6592557, at *2 (D.Conn. Dec. 16, 2013) (citing Pinholster, 131 S.Ct. at 1410-11 and Miller-El v. Cockrell, 537 U.S. 322, 341, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

*4 Employing such deference, a federal habeas court must presume all state court factual determinations to be correct, unless the petitioner rebuts the findings by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).See also Wood v. Allen, 558 U.S. 290, 293, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010) (quoting 28 U.S.C. § 2254(e)(1))."This [is] a difficult to meet and highly deferential standard... [which] demands that state-court decisions be given the benefit of the doubt." Pinholster, 131 S.Ct. at 1391 (citations and internal quotations omitted). As the Second Circuit recently stated, "Pursuant to that standard, we may reverse a state court ruling only where it was so lacking in justification that there was... [no] possibility for fairminded disagreement.'" Sam v. La Valley, No. 13-723 pr, ___ Fed.Appx. ___, ___, 2014 WL 114135, at *1 (2d Cir. Jan. 14, 2014) (quoting Vega v. Walsh, 669 F.3d 123, 126 (2d Cir.2012)) (citation and internal quotations omitted).See also Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) ("State-court factual findings... are presumed correct"); Boyette v. Lefevre, 246 F.3d 76, 88-89 (2d Cir.2001) (deference or presumption of correctness is afforded state court findings where state court has adjudicated constitutional claims on the merits).

Furthermore, AEDPA's deferential review applies whenever a state court disposes of a state prisoner's federal claims on the merits, regardless of whether it gives reasons for its determination or refers to federal law in its decision. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011); Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001).[9]

In sum, for habeas relief to be granted to a person "in custody pursuant to the judgment of a State court, " the Court must find an unreasonable application of federal law or an unreasonable determination of facts by the state court.[10] 28 U.S.C.A. § 2254(d). Moreover, Petitioner must have exhausted his claims in state court. Id. (b)(1)(A)."Exhaustion requires that the prisoner fairly present' the federal claim in each appropriate state court (including a state supreme court with powers of discretionary review).' " Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 201 (2d Cir.2010) (quoting Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004)), cert. denied sub nom. Richardson v. Inserra, ___ U.S. ___, 131 S.Ct. 1019, 178 L.Ed.2d 844 (2011).

Furthermore, even if a court were to dismiss a habeas petition to allow the petitioner to exhaust his claim in state court, there are circumstances in which state procedural rules may bar him from raising that claim. When, due to state procedural rules, "petitioner can no longer present his unexhausted claim of trial error to the state courts, [the court must] deem the claim procedurally barred.'" Richardson, 621 F.3d at 201 (quoting Acosta v. Artuz, 575 F.3d 177, 188 (2d Cir.2009)); see also Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). If the petitioner can then show "no cause for or prejudice from the failure to raise the claim, and failing to consider it will not result in a fundamental miscarriage of justice, ' his claim cannot proceed." Richardson, 621 F.3d at 201-02 (quoting Coleman, 501 U.S. at 750, 111 S.Ct. 2546).

*5 Finally, collateral review of a conviction "is not just a rerun of the direct appeal." Lee v. McCaughtry, 933 F.2d 536, 538 (7th Cir.1991), cert. denied, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991). Specifically, "the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness.' " Brecht v. Abrahamson, 507 U.S. 619, 633-34, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citation omitted). Accordingly, "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment: Id. ___, 507 U.S. at 634, 113 S.Ct. 1710 (citations and internal quotations marks omitted).

V. BACKGROUND

A. State Criminal Charges and Trial

On August 4, 2001, Petitioner was arrested by the Stamford Police Department and charged with sexual assault in the first degree, Conn. Gen.Stat. § 53a-70(a)(1), and kidnapping in the first degree, Conn. Gen.Stat. § 53a-92(a)(2)(A). He was arraigned in the Judicial District of Stamford/Norwalk (docket number CRO1-0137853 S). In March of 2002, he was also charged with the crime of intimidating a witness, Conn. Gen.Stat. § 53a-151a, following an incident at a shopping mall where the victim worked.[11]

Petitioner pled not guilty to all charges and elected to be tried by a jury. See Doc. 14, Appendix B (Record on Defendant's Appeal from Superior Court, p. 12-12A). Petitioner was represented by Attorney Joseph Colarusso at his jury trial, over which Judge Richard F. Comerford presided. On March 26, 2003, Petitioner was convicted by a jury on the charges of sexual assault and kidnapping, but acquitted on the charge of witness intimidation. On June 6, 2003, Petitioner was sentenced to a total effective term of twelve years of imprisonment, followed by eight years of special parole.

B. Direct Appeal in State Court

Following his conviction, Petitioner, through his then counsel, Attorney Roy S. Ward, filed a direct appeal to the Connecticut Appellate Court. In that appeal, Petitioner presented multiple bases for appeal: "(1) the evidence was insufficient to support the conviction, (2) [Petitioner] was denied his due process right to a fair trial as a result of prosecutorial misconduct and (3) the trial court improperly (a) failed to rule on his motion for a judgment of acquittal at the close of the state's case-in-chief and (b) permitted the introduction of evidence of uncharged misconduct. " State v. D'Haity, 99 Conn.App. 375, 377, 914 A.2d 570 (2007). The Court affirmed the judgment of the trial court in all respects in an opinion dated January 30, 2007. Id. The substance of that opinion will be discussed more fully below (Part VI.A.). The Court will, however, briefly summarize the legal issues addressed by the Connecticut Appellate Court at this time.[12]

1. Opinion of Connecticut Appellate Court: State v. D'Haity, 99 Conn.App. 375 (2007)

Addressing Dhaity's three asserted grounds for error in turn, the Connecticut Appellate Court first rejected the claim that the prosecutor engaged in misconduct by failing to confine his arguments to the evidence in the record. 99 Conn.App. at 388, 914 A.2d 570. In particular, the Court recognized that "a prosecutor must not comment on evidence that is not part of the record, " "comment unfairly on evidence adduced at trial, " or "paraphras[e] or embellish [ ] on a witnessis] testimony." Id. The court clarified that nonetheless parties, through their counsel, "are allowed a certain degree of latitude to express their views of what evidence was presented at trial." Id. (citation omitted).

*6 Furthermore, although a prosecutor "may not express his own opinion... as to the credibility of witnesses, " he may, for example, during closing argument, "comment upon the evidence presented at trial and... argue the inferences that the jurors might draw therefrom." Id. at 389-90, 914 A.2d 570. In sum, "the prosecutor's comments at issue did not deprive the defendant of a fair trial;" and "the prosecutor's statements during closing remarks were proper comment[s] on the evidence and did not constitute misconduct." Id. .

Second, and central to Dhaity's habeas petition at bar, the state appellate court addressed the argument that "the [trial] court should not have: (1) reserved decision on his motion for a judgment of acquittal, filed after the state's case-in-chief, (2) denied the motion at the close of his case and (3) instructed the jury on consciousness of guilt." Id. at 390, 914 A.2d 570. The appellate court noted that Dhaity's argument was "based on language contained in [Connecticut] Practice Book §§ 42-40 and 42-41" and quoted from those two sections as follows:

Practice Book § 42-40 provides in relevant part: "After the close of the prosecution's case in chief or at the close of all the evidence, upon motion of the defendant or upon its own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty...." (Emphasis added.) Practice Book § 42-41 provides: "If the motion is made after the close of the prosecution's case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present the defendant's case in chief. If the motion is not granted, the defendant may offer evidence without having reserved the right to do so."

99 Conn.App. at 390-91, 914 A.2d 570 (emphasis added).

The appellate court recounted that at the end of the state's case-in-chief, Dhaity's counsel filed a motion for judgment of acquittal on all three charges. The trial court denied the motion with respect to the charges of sexual assault and kidnapping, but reserved decision on the charge of intimidating a witness. The trial court thus expressly stated: "The court is going to reserve its decision on [the] motion to acquit as to the second information, the information charging intimidating a witness." 99 Conn.App. at 391, 914 A.2d 570. The appellate court noted that Judge Comerford further informed the defendant's attorney that "there's sufficient evidence to warrant the charge [of intimidation of a witness] to be given and place it in the hands of the jury, and that's what we'll do." Id. . n. 11.Moreover, "[t]he defendant's attorney did not object." Id. .

The appellate court held that even if, as Dhaity claimed, the trial court had possibly violated the mandate of Connecticut Practice Book § 42-41, which required the trial court to "either grant or deny" the motion at the close of the prosecution's case in chief, Dhaity was "no longer aggrieved due to his subsequent acquittal on the charge of intimidation of a witness." Id. . at 391, 914 A.2d 570 (citing Waterbury Trust Co. v. Porter, 130 Conn. 494, 498, 35 A.2d 837 (1944) ("[N]o person is entitled to set the machinery of the courts into operation unless for the purpose of obtaining redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or representative capacity.")).

*7 Next, the appellate court examined the allegation that "the jury charge on consciousness of guilt (1) would not have been included had the court granted the motion for a judgment of acquittal and (2) might have influenced the jury to find the defendant guilty of the other two charges." 99 Conn.App. at 392, 914 A.2d 570. First, the appellate court recounted that despite protracted discussions between counsel and the trial court on the issue of proposed jury charges, "defendant did not object to the court's jury charge on consciousness of guilt."[13] Id. at 393, 914 A.2d 570. Dhaity had thus failed to preserve an objection regarding that charge. Furthermore, the appellate court concluded, and Dhaity concurred, that it could not review the jury charge under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the case which established the standard for reviewability of unpreserved claims. Id. (citing and quoting State v. Gibson, 56 Conn.App. 154, 160, 742 A.2d 397 (1999) ("[i]t has... been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the [Golding ] standard" [internal quotation marks omitted])).[14] See also Doc. 14, Appendix C, p. 27 ("consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the... Golding standard.") (quoting Gibson, 56 Conn.App. at 160, 742 A.2d 397).

The appellate court then went on to consider application of the state law "plain error doctrine" in Connecticut Practice Book § 60-5 to the consciousness of guilt jury charge.[15] The appellate court noted that "[t]he plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." 99 Conn.App. at 393, 914 A.2d 570.Accordingly, "[a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.' Id. (citation omitted). After thoroughly reviewing the record, the appellate court concluded that Dhaity had failed to demonstrate "that the [trial] court's jury instruction on consciousness of guilt impugned the fairness or integrity of or public confidence in the judicial proceedings or that the failure to grant relief will result in manifest injustice." Id. . at 393-94, 914 A.2d 570. The appellate court therefore declined to review Dhaity's claim under the plain error doctrine. Id. . at 394, 914 A.2d 570.

Finally, the appellate court addressed Dhaity's claim that the trial court had improperly admitted evidence of his possession of marijuana. Id. Dhaity had asserted that "the evidence was uncharged misconduct that was both irrelevant and highly prejudicial, thus depriving him of a fair trial." Id. . The appellate court emphasized that Dhaity had failed to object at trial to the admission of said evidence and was again seeking review of an unpreserved claim under Golding. Id.

*8 The appellate court explained that Dhaity could not "raise a constitutional claim" by merely "attaching a constitutional label to a purely evidentiary claim." Id. . (citation omitted). Moreover, "[o]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed." Id. at 394-95, 914 A.2d 570 (quoting Golding, 213 Conn. at 241, 567 A.2d 823). Dhaity's unpreserved evidentiary claim thus also failed "under the second prong of Golding ." 99 Conn.App. at 395, 914 A.2d 570.

In sum, the judgment of the trial court was affirmed in total.

2. Denial of Certification by Connecticut Supreme Court: State v. D'Haity, 282 Conn. 912 (2007)

Petitioner then sought certification from the Connecticut Supreme Court, seeking review of the Connecticut Appellate Court's ruling solely on one issue:

Did the Appellate Court err in concluding that the [petitioner's] acquittal on the witness intimidation charge precluded a finding of aggrievement on the trial court rulings related to that charge?

Doc. 14, Appendix F (Petition for Certification), at 1. The Connecticut Supreme Court summarily denied certification on that issue on May 1, 2007 without explanation. State v. D'Haity, 282 Conn. 912, 924 A.2d 137 (2007).

C. Federal Petition Or Habeas Relief

Petitioner first sought habeas relief in federal court in this District on December 7, 2007. In his original pro se petition [Doc. 1], Petitioner presented four grounds upon which he alleged he was being held in violation of federal law. Doc. 1, ¶ 12(A)-(D) (prosecutorial misconduct; trial court's error in "reserving decision on the motion for judgment of acquittal;" trial court's error "in permitting introduction of evidence of uncharged misconduct" of possession of marijuana; and insufficiency of evidence to support his conviction).

Respondent moved to stay or dismiss Petitioner's habeas petition on the ground that it was a "mixed petition, " containing exhausted and unexhausted claims. Doc. 7. While the motion was pending before then District Judge Christopher Droney, Petitioner filed his own motion for leave to amend his petition to pursue his "only exhausted claim, " that is, the one alleging that the appellate court erred "in concluding that the [P]etitioner being acquitted on the witness intimidation charge preclude[d] a finding of aggrievement on the trial court rulings related to that charge."Doc. 10-2, p. 1. The Court granted the motion to amend [Doc. 12] and denied the Respondent's motion to stay or dismiss [Doc. 7]. Petitioner then filed the presently operative Amended Petition [Doc. 13], once again pro se, asserting his singular exhausted ground for relief:

Did the Appellate Court err in concluding that the petitioner beign [sic] acquitted on the witness intimidation charge preclude[d] a finding of aggrievement on the trial court rulings related to that charge[?]

Doc. 13, p. 9 (¶ 19). As noted at page 13 (Part V.B.1.), supra, the Connecticut Appellate Court rejected Dhaity's appeal based on the charged intimidation of a witness and related consciousness of guilt jury charge because, in the court's view, Dhaity was "no longer aggrieved due to his subsequent acquittal on the charge of intimidation of a witness." 99 Conn.App. at 391, 914 A.2d 570.

VI. DISCUSSION

*9 As set forth supra, Petitioner brings his claim in this Court under AEDPA, 28 U.S.C. § 2254, seeking relief from his conviction on the basis of alleged error by the state appellate court. Namely, Dhaity faults the appellate court for "concluding that acquittal on [the] witness intimidation charge precluded a finding of aggrievement on [the] trial court['s] rulings related to that charge." Doc. 13, ¶ 19.

The Court notes that this claim was initially presented to the Connecticut Appellate Court; and the Connecticut Supreme Court subsequently denied certification. The claim is thus sufficiently exhausted for purposes of § 2254(b)(1)(A) in that Dhaity "has exhausted the remedies available in the courts of the State." See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (holding that "where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.").

A federal habeas court may grant habeas relief "with respect to any claim that was adjudicated on the merits in State court proceedings" only if the state decision 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 in the State court proceeding."28 U.S.C. § 2254(d)(1)-(2). In the case at bar, there was no unreasonable application of United States Supreme Court precedent. Rather, Petitioner asserted errors of, and the appellate court relied upon, Connecticut state law, particularly state procedural law, in the rulings at issue.

Respondent asserts that there are three distinct bases upon which this Court should dismiss the Amended Petition [Doc. 13]. Respondent thus asserts:

Petitioner cannot obtain federal habeas corpus relief on his unpreserved claim because (1) the state court properly rejected the claim under an adequate and independent state procedural rule; (2) petitioner has not demonstrated cause and prejudice to overcome the procedural default; and (3) even if not procedurally defaulted, the claim is a state law claim for which habeas relief does not lie.

Doc. 14, p. 7. For the reasons set forth below, the Court concurs with Respondent's three assertions.

A. Independent State Procedural Rule

The alleged error upon which Dhaity continues to seek habeas relief is contained in the Connecticut Appellate Court's ruling, affirming the judgment of the trial court. Specifically, on Petitioner's direct appeal, the Connecticut Appellate Court held that the trial court's decision "to reserve its decision on [the] motion to acquit" with respect to the charge of intimidating a witness created no injury "due to his subsequent acquittal on [that] charge." 99 Conn.App. at 391, 914 A.2d 570. Even if, as Petitioner claimed, the trial court had violated the mandate of Connecticut Practice Book §§ 42-40 and 42-41 in failing to rule on the motion for acquittal at the close of the state's case, because Petitioner was not "aggrieved" by this failure, he lacked standing to seek review. Id. (citing Waterbury Trust Co., 130 Conn. at 498, 35 A.2d 837 ("if a party attempting to appeal can by no possibility suffer injury by the judgment, he should not be permitted to appeal")).

*10 Then, with respect to the decision to charge the jury on consciousness of guilt, the appellate court stated: "The more pertinent question is whether the jury charge on consciousness of guilt (1) would not have been included had the court granted the motion for a judgment of acquittal and (2) might have influenced the jury to find the defendant guilty of the other two charges." 99 Conn.App. at 392, 914 A.2d 570.

In analyzing that two-part question, the appellate court elaborated as follows:

[At the trial court's charging conference with counsel for both sides], the court reviewed with both attorneys on the record that "each counsel was handed the jury charge that the court intended to give...." Among the many instructions the court enumerated on the record that were to be included in the charge was one on consciousness of guilt. After reading a summary of the jury charge, the court stated: "I think the record is replete with sufficient evidence that we have spent an enormous amount of time talking about this [jury charge], and that counsel at this point in time is satisfied it has been given every opportunity to suggest to the court... any changes that should be made."Both attorneys agreed.
The defendant did not object to the court's jury charge on consciousness of guilt and does not now seek review under State v. Golding, supra , 213 Conn. [233, ] 239-40, 567 A.2d 823 [(1989)]. See State v. Gibson, 56 Conn.App. 154, 160, 742 A.2d 397 (1999) ("[i]t has... been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the [ Golding ] standard" [internal quotation marks omitted]). The defendant therefore seeks review under the plain error doctrine, as codified in Practice Book § 60-5.[16]

90 Conn.App. at 393, 914 A.2d 570 (lateral citations omitted).

The appellate court then explained that Connecticut's "plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice." Id. (citing State v. Smith, 275 Conn. 205, 240, 881 A.2d 160 (2005)). Having thoroughly reviewed the record and briefs, the appellate court concluded that the "defendant ha[d] not shown that the court's jury instruction on consciousness of guilt impugned the fairness or integrity of or public confidence in the judicial proceedings or that the failure to grant relief will result in manifest injustice." Id. at 393-94, 914 A.2d 570. Accordingly, the appellate court would "not review the defendant's claim under the plain error doctrine, " as codified in Connecticut Practice Book § 60-5. Id. at 393-94, 914 A.2d 570.

1. Procedural Bar

Based on the Connecticut Appellate Court's decision, followed by the Connecticut Supreme Court's denial of certification, the Respondent contends that "Petitioner cannot obtain review of the merits of his claim because the state court rejected the petitioner's unpreserved claim under an adequate and independent state procedural rule."Doc. 14, p. 11. Furthermore, Respondent asserts that Petitioner has "fail[ed] to allege cause and prejudice or a fundamental miscarriage of justice to overcome this procedural bar." Id.

*11 Federal habeas review of a state prisoner's claims is prohibited if "the state court's opinion contains a plain statement' that [its] decision rests upon adequate and independent state grounds." Harris v. Reed, 489 U.S. 255, 261-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (quoting Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). Specifically, a federal court "will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both independent of the merits of the federal claim and an adequate basis for the court's decision." Harris, 489 U.S. at 260, 109 S.Ct. 1038. In the context of habeas relief, "an adequate and independent finding of procedural default [by the state court] will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause' for the default and prejudice attributable thereto' or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice.'" Id. at 262, 109 S.Ct. 1038 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). See also Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Coleman v. Thompson, 501 U.S. 722, 735-36, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir.1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996); cert. denied, 520 U.S. 1108, 117 S.Ct. 1116, 137 L.Ed.2d 317 (1997).

"In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism."[17] Coleman, 501 U.S. at 730, 111 S.Ct. 2546. Because states have an interest in their procedural rules-"in channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [their] own errors"-a state procedural default of a claim can be an adequate and independent state ground that bars federal habeas review of a petitioner's defaulted claims.[18] 501 U.S. at 750-51, 111 S.Ct. 2546.

However, a federal claimant's "procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, 109 S.Ct. 1038. Accord Coleman, 501 U.S. at 722, 111 S.Ct. 2546 (holding that petitioner's claims "presented for the first time in the state habeas proceeding [were] not subject to review in federal habeas" because Virginia Supreme Court met the Harris "plain statement" requirement by granting motion to dismiss on procedural grounds). The federal habeas court must thus ascertain, upon examination of the state court record, whether the state court based its judgment on such "independent and adequate grounds." Id. at 736, 111 S.Ct. 2546.

In the Connecticut Appellate decision at issue, the court plainly declined to address Dhaity's first two sub-claims on the merits based on an independent and adequate state procedural rule. In particular, the appellate court declined to review the trial court's (1) choice to reserve decision on Petitioner's motion for judgment of acquittal and (2) subsequent denial of the motion because the Petitioner was ultimately acquitted on the relevant charge of intimidating a witness. Under Connecticut law, because Dhaity was "no longer aggrieved" by the trial court's alleged errors "due to his subsequent acquittal, " the appellate court lacked subject matter jurisdiction to review them.

*12 Under Connecticut law, "aggrievement" is a prerequisite to standing, "a procedural issue, " which "implicates [a] court's subject matter jurisdiction." See, e.g., Williams v. Comm'a on Human Rights & Opportunities, 257 Conn. 258, 264, 777 A.2d 645 (2001). As the appellate court in Dhaity's case emphasized, "no person is entitled to set the machinery of the courts into operation unless for the purpose of obtaining redress for an injury he has suffered or to prevent an injury he may suffer..." 99 Conn.App. at 390-91, 914 A.2d 570 (citing Waterbury Trust Co. v. Porter, 130 Conn. 494, 498, 35 A.2d 837 (1944)).[19] Because Petitioner had prevailed on the ultimate issue, i.e., was acquitted on the witness intimidation charge, he could make no showing of "aggrievement." 99 Conn.App. at 391, 914 A.2d 570.[20] Dhaity thus essentially lacked standing to appeal under Connecticut state law.

With respect to Petitioner's third sub-claim at bar, alleged error by the trial court in charging the jury on consciousness of guilt, the Connecticut Appellate Court noted that at trial "[t]he defendant did not object to the court's jury charge on consciousness of guilt." 99 Conn.App. at 393, 914 A.2d 570. The issue regarding the jury charge was thus not raised and/or preserved during trial. Furthermore, on appeal, Petitioner actually conceded that the claim did not raise a constitutional issue and was thus not subject to review under Golding, 213 Conn. at 239-240, 567 A.2d 823.[21] The Petitioner solely sought "plain error" review by the Appellate Court.

The "plain error" doctrine, as codified at Connecticut Practice Book § 60-5, is an independent and adequate state procedural rule which is "firmly established and regularly followed" in Connecticut. See, e.g., Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.1999). Practice Book § 60-5 provides that although "[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial, " the court "may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law...."

Plain error is not, however, "a rule of reviewability, " but rather "a rule regarding reversibility." State v. Fagan, 280 Conn. 69, 86-87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007). Moreover, the plain error doctrine is reserved for "truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." Id. As the appellate court noted in Dhaity's case, "[a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice." 99 Conn.App. at 393, 914 A.2d 570 (quoting State v. Smith, 275 Conn. 205, 240, 881 A.2d 160 (2005)).

In the case at bar, the Connecticut Appellate Court explicitly found that the trial court's jury instruction regarding consciousness of guilt did not impugn the fairness or integrity of, or public confidence in, the Petitioner's state trial, such that failure to grant relief would result in manifest injustice. 99 Conn.App. at 393-94, 914 A.2d 570. The appellate court consequently declined Dhaity's request to review that claim under the plain error doctrine, "as codified in Practice Book § 60-5." Id.

*13 Thereafter, the Connecticut Supreme Court denied Dhaity's petition for certification with a summary order, setting forth no grounds for its decision. The last state court to issue a reasoned decision on Dhaity's claim was thus the Connecticut Appellate Court, which upheld Dhaity's conviction on the aforementioned state procedural grounds. As set forth supra, the United States Supreme Court has established that "federal habeas courts should apply the following presumption: where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst, 501 U.S. at 803, 111 S.Ct. 2590. The Supreme Court in Ylst reasoned that "[t]he maxim is that silence implies consent, not the opposite- and courts generally behave accordingly, affirming without further discussion when they agree, not when they disagree, with the reasons given below." 501 U.S. at 804, 111 S.Ct. 2590. See also Serrano v. Fischer, 412 F.3d 292, 297 (2d Cir.2005) (applying the "rebuttable presumption that the state appellate courts' later unexplained orders upholding the trial court's judgment rest upon the same ground provided by the trial court") (citing Ylst, 501 U.S. at 803, 111 S.Ct. 2590) (internal quotations, brackets, and ellipsis omitted), cert. denied, 546 U.S. 1182, 126 S.Ct. 1357, 164 L.Ed.2d 68 (2006).

Where the Connecticut Supreme Court summarily denied Petitioner's request for certification, this Court must "look through" the silent denial to examine the decision of the Connecticut Appellate Court, the last court to issue a reasoned decision on Petitioner's claim. Ylst, 501 U.S. at 803, 111 S.Ct. 2590. That reasoned decision rested solely on independent state procedural grounds.

2. No Showing of Cause or Prejudice

"When a state prisoner has defaulted his federal claims in state court pursuant to an "independent and adequate" state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Glenn v. Bartlett, 98 F.3d at 724 (citing Coleman, 501 U.S. at 750, 111 S.Ct. 2546); see also Ylst, 501 U.S. at 801, 111 S.Ct. 2590. The United States Supreme Court clarified that the "fundamental miscarriage of justice" refers to a constitutional violation that "has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496, 106 S.Ct. 2639.

In the case at bar, Dhaity presented no cause for, nor could he remedy, his lack of standing or aggrievement in that he was acquitted on the charge relating to his appeal, that of witness intimidation. In addition, Dhaity plainly conceded that he did not object to the substance of the jury charge on consciousness of guilt at trial, nor did he assert that said charge raised a constitutional issue on appeal. Dhaity proffered no explanatory cause for these "defaults." Perhaps most importantly, Petitioner has failed to establish that either the trial court's failure to rule on the motion to acquit on the witness intimidation charge or instruction to the jury regarding consciousness of guilt "resulted in the conviction of one who is actually innocent."Put simply, he has demonstrated no resulting prejudice. He has failed to establish that he was actually innocent of sexual assault and/or kidnapping, in the first degree.[22] Therefore, this Court may not set aside the valid state procedural defaults.

B. Petitioner's Claim Is Based Entirely on State Law and Is Thus Not Subject to Federal Habeas Review

*14 Lastly, and alternatively, Dhaity's claim is not, in any event, subject to federal habeas review because it is based solely on state law, implicating no rights under federal law. As set forth supra, "[a] federal court may not issue the writ [of habeas corpus] on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); accord Estelle v. McGuire, 502 U.S. at 68, 112 S.Ct. 475 ("federal habeas corpus does not lie for errors of state law"). See also Santone v. Fischer, 689 F.3d 138, 148 (2d Cir.2012); Taylor v. Rivera, 509 Fed.Appx. 51, 53 (2d Cir.2013). By the plain language of AEDPA, in conducting habeas review, a federal court "is limited to determining whether a petitioner's custody is in violation of federal law."28 U.S.C. § 2254(a). See also Smith v. Phillips, 455 U.S. 209, 211, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); Figueroa v. Comm'r of Corr., 596 F.Supp.2d 482, 492 (D.Conn.2009)." A state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved." Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir.1983) (per curiam). See also Middleton v. Cupp, 768 F.2d 1083, 1085 (8th Cir.1985) (federal habeas relief "is unavailable for alleged error in the interpretation or application of state law"), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986). With respect to federal habeas claims, "state courts are the ultimate expositors of state law [and federal courts are] bound by their construction except in rare circumstances." Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). See also Portalatin v. Graham, 624 F.3d 69, 89-90 (2d Cir.2010) (same).

In the case at hand, the Connecticut Appellate Court expressly stated that its ruling on the trial court's failure to grant or deny the motion to acquit rested on the fact that Dhaity was "no longer aggrieved due to his subsequent acquittal on the charge of intimidation of a witness." 99 Conn.App. at 391, 914 A.2d 570. Dhaity refutes the appellate court's holding that acquittal negates "aggrievement, " i.e., prevents standing to appeal. Doc. 13, ¶ 19. However, under Connecticut law, as interpreted by the Connecticut Appellate Court, lack of prejudice or injury-in this case, acquittal- creates no "aggrievement." 99 Conn.App. at 391, 914 A.2d 570 (citing and quoting Waterbury Trust Co., 130 Conn. at 498, 35 A.2d 837 (party cannot appeal "unless the purpose of [the appeal is] obtaining redress for an injury he has suffered or to prevent an injury he may suffer")).[23] In sum, in the absence of aggrievement, Dhaity had no standing to appeal so that the Connecticut Appellate Court lacked subject matter jurisdiction.[24]

With respect to the jury charge on consciousness of guilt, Petitioner expressly conceded that he had not objected to the charge at trial, thereby failing to preserve it. He also admitted that the issue relating to that charge was not a matter of constitutional dimension. 99 Conn.App. at 393, 914 A.2d 570 (citing Golding, 213 Conn. at 239-40, 567 A.2d 823 and Gibson, 56 Conn.App. at 160, 742 A.2d 397). See also Doc. 14, Appendix C (Petitioner's Brief on Appeal), p. 27. Rather than applying federal law, the Connecticut Appellate Court cited solely state law, the "plain error doctrine"-set forth in Connecticut Practice Book § 60-5 and State v. Smith, 275 Conn. 205, 240, 881 A.2d 160 (2005)-to deny Dhaity's claim in the absence of any showing that failure to grant relief would "result in manifest injustice."

*15 In sum, there was no unreasonable application of clearly established federal law nor any argument or proof of a ruling contravening United States Supreme Court precedent. See, e.g., Evans v. Fischer, 712 F.3d 125, 132-33 (2d Cir.2013).

With respect to the relevant facts as determined by the trial court, and reviewed by the appellate court, the appellate court affirmed the finding that "there [was] sufficient evidence to warrant the charge [regarding intimidation of a witness] to be given and placed it in the hands of the jury.[25] Conn.App. at 391 n. 11, 914 A.2d 570.The appellate court also found that, pursuant to Connecticut law, there was a proper factual basis for the trial judge to give the consciousness of guilt instruction to the jury. Id. at 391, 914 A.2d 570.As discussed, supra, a state court's factual findings are entitled to a presumption of correctness on habeas review. Absent "clear and convincing evidence" to rebut this presumption, the state court's factual findings are entitled to deference, 28 U.S.C. § 2254(e)(1). Dhaity has failed to demonstrate, by the requisite "clear and convincing evidence, " that either the state trial court's determination, or appellate court's review, of factual issues was incorrect.

Furthermore, even if, assuming arguendo, the trial court had erred by issuing the jury charge, "[e]rrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding." Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.2000) (quoting Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988)), cert. denied, 532 U.S. 989, 121 S.Ct. 1643, 149 L.Ed.2d 502 (2001). "Thus, federal habeas relief is not available for state law violations that do not rise to the level of federal constitutional violations." Alfini v. Lord, 245 F.Supp.2d 493, 499 (E.D.N.Y.2003)."Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Seymour, 224 F.3d at 552 (quoting Montana v. Egelhoff 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996)).

Any alleged errors in the present case did not rise to the level of infusing the proceedings with unfairness, such that Dhaity was denied due process. First of all, there is no indication that absent the jury charge regarding consciousness of guilt, the jury would not have found sufficient evidence to convict Dhaity on the first two counts of sexual assault and kidnapping. Second, the fact that Dhaity was ultimately acquitted on the witness intimidation charge does not, in and of itself, dictate that either allowing that charge to proceed to the jury or instructing the jury on consciousness of guilt was improper where both the trial and appellate courts concluded that there was sufficient evidence in the record to warrant both actions by the trial court. The jury may have decided to acquit the Petitioner on the witness intimidation count, despite the possible implication of his guilty conscience, on other grounds. For example, as the United States Supreme Court explained in the context of "inconsistent verdict claims, " even inconsistent verdicts need not be set aside due to their facial inconsistency because such verdicts may actually demonstrate jury leniency. Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 76 L.Ed. 356 (1932). See also United States v. Powell, 469 U.S. 57, 64-65, 69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (holding that there was "no reason to vacate respondent's conviction merely because the verdicts [could] not rationally be reconciled;" and upholding "[t]he rule established in Dunn v. United States, 284 U.S. at 393, 52 S.Ct. 189, which had "stood without exception in this [Supreme] Court for 53 years.").

*16 After careful review, I conclude that the Connecticut Appellate Court's decision interpreted state law and did not offend any fundamental principle of justice or infuse the proceedings with unfairness so as to deny Petitioner due process of law. Accordingly, Dhaity is not entitled to federal habeas relief. His writ for petition of habeas corpus will be denied.

VII. CONCLUSION

For all of the foregoing reasons, Dhaity's Amended Petition for a Writ of Habeas Corpus [Doc. 13] is DENIED. Because reasonable jurists would not find the Court's conclusions debatable and Dhaity has failed to make a "substantial showing of the denial of a constitutional right, " a certificate of appealability will not issue in this case. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The Clerk is hereby directed to enter judgment and close the case.

It is SO ORDERED.


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