Opinion
02-cv-5379, 03-misc-0066
October 27, 2003
MEMORANDUM JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on October 1, 2002. Petitioner, sometimes referred to as defendant, claims:
Ground One: Whether petitioner was denied the effective assistance of counsel, in violation of his Sixth and Fourteenth Amendments as guaranteed by the United States Constitution. U.S.C.A. IV, XIV, Article 1 § 6.
Petitioner contents that trial counsel erred in failing to interview witnesses and medical witnesses; investigate the petitioner's home and the Station Café Bar; hire an investigator; properly review the medical records, and other documents within his possession; withholding vital medical evidence from the jury; failing to properly review and apply basic criminal law and procedure denying the petitioner's VI and XIV United States Constitutional Amendments; New York Constitution Art, 1 § 6.
Ground Two; Whether the court erroneously refused to submit intentional and reckless third-degree assault as lesser included offenses of intentional and depraved-indifference first degree assault, respectively, when there was a reasonable view of the evidence that appellant inflicted the single stab wound either with intent to cause only physical injury or under circumstances that did not evince a depraved indifference to human life.
Petitioner contends that the trial court erred in refusing to submit the lesser included offenses of assault in the third degree as lesser offenses of assault in the first degree, when it is impossible to commit intentional and depraved indifference assault in the first degree without simultaneously committing intentional and reckless third degree assault, the act is either intended or not intended, it cannot simultaneously be both, All of the elements of third degree assault are subsumed in first degree assault, third degree assault is a lesser included offense of first degree assault. And there was a reasonable view of the evidence to support a finding that the petitioner committed the lesser offenses but not the greater one, C.P.L. § 1.20 (37), 300.30(5), 300.40(5), 300.50(2), United States Constitutional Amendments V, XIV § 1; N.Y. Const, Art. 1 § 6
Ground Three: Whether the court violated C.P.L. § 300.40(5) by submitting the inconsistent intentional and reckless counts in the conjunctive, rather than in the alternative, resulting in a verdict that is inherently self-contradictory,
Petitioner contends that the court erred by submitting the attempted murder in the second degree and both assault in the first degree counts to the jury in the conjunctive, rather than in the alternative, Two counts are inconsistent "where guilt of the offense charged in one necessarily negates the other, it cannot simultaneously be both," C.P.L. § 300.30(5), 300.40(5), United States Constitutional Amendments, V, XIV; N.Y. Const. Art. I § 6.
The evidence supports the following statements:
On March 29, 1997, at approximately 3:30 a.m., during a party at petitioner's home, petitioner stabbed Maurice Matthews in the chest with a knife. Immediately before the stabbing, Matthews had intervened to stop petitioner from choking his girlfriend, Petitioner retaliated by pointing a shotgun at Matthew's chest, After Matthews talked petitioner out of shooting him, petitioner left the room and started choking another woman who was attending the party. Matthews intervened again, but petitioner began lighting with Matthews, pulled out a knife, and stabbed Matthews in the chest. As Matthews and two of the guests left to take Matthews to a hospital, they saw petitioner pointing a shotgun at them through the apartment window. Petitioner was arrested following a 911 call reporting the incident. From petitioner's apartment, the police recovered a shotgun, a shotgun shell, and a bloody knife. Petitioner admitted to the police that he had stabbed the victim, but claimed that he had not intended to.
Following his arrest, petitioner was charged with Attempted Murder in the Second Degree (New York Penal Law §§ 110.00/125.25[1]), two counts of Assault in the First Degree (New York Penal Law § 120.10, [3]), Criminal Possession of a Weapon in the Second Degree (New York Penal Law § 265.03), two counts of Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02), three counts of Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law § 265.01), and two counts of Menacing in the Second Degree (New York Penal Law § 120.14 (Queens County Indictment No. 1056/97).
Petitioner thereafter moved in Supreme Court, Queens County, to suppress the physical evidence that the police recovered from petitioner's home and his confession to the police. After holding a Mapp/Huntley hearing, the court denied suppression.
At the conclusion of trial, petitioner was convicted of all the counts in the indictment.
On July 20, 1998, petitioner was sentenced as a second felony offender to a determinate term of twenty years' imprisonment.
On November 22, 1999, petitioner appealed his conviction to the Appellate Division. On appeal, petitioner, through assigned appellate counsel., raised three claims;
(a) the trial court erred by refusing to submit to the jury the charge of Assault in the Third Degree as a lesser-included offense of Assault in the First Degree because there was a reasonable view of the evidence that, in inflicting a single stab wound, defendant intended to cause physical injury but not serious physical injury, and acted recklessly, but not under circumstances evincing a depraved indifference to human life;
(b) petitioner claimed the trial court erred by submitting the inconsistent intentional and reckless counts in the conjunctive, rather than in the alternative;
(c) petitioner's sentence was harsh and excessive,
On April 25, 2000, petitioner filed a pro se supplemental brief with the Appellate Division, Second Department, in which he claimed that:
(a) the suppression court committed reversible error in not suppressing the knife, shotgun, and identification evidence; and
(b) petitioner was denied the effective assistance of trial counsel.
On December 4, 2000, the Appellate Division, in a unanimous decision, affirmed petitioner's conviction. People v. House, 278 A.D.2d 244, 717 N.Y.S.2d 273 (2d Dept. 2000). The Appellate Division held that, in light of the evidence, which showed that defendant stabbed the victim in the chest with a knife, and that the wound was potentially lethal, "there is no reasonable view of the evidence that could support a jury finding that defendant committed the lesser offense of assault in the third degree but not the greater offense of assault in the first degree. Additionally, the Appellate Division rejected petitioner's remaining claims, including those raised in his pro se supplemental brief, as meritless. Id.
On January 4, 2001, petitioner moved for permission to reargue his appeal.
On March 6, 2001, the Appellate Division, Second Department denied petitioner's motion.
In a letter dated January 18, 2001, petitioner, through counsel, requested permission to appeal the Appellate Division's decision to the New York Court of Appeals, and asked the court to review the lesser-included offense issue outlined in petitioner's brief.
On March 14, 2001, the Court of Appeals denied petitioner's leave application. People v. House, 96 N.Y.2d 784, 741 N.Y.S.2d 454 (2001).
Petitioner did not seek a writ of certiorari.
On or about September 29, 1998, more than a year before directly appealing his conviction to the Appellate Division, petitioner moved pro se to vacate his judgment of conviction, pursuant to New York Criminal Procedure Law section 440.10(1)(h), on the ground that he received ineffective assistance from his trial counsel. Specifically, petitioner claimed that, on-the-record, trial counsel failed to secure petitioner's right to testify and to protect petitioner's rights pursuant to Criminal Procedure Law Section 190.50, and failed to impeach the State's witnesses with prior inconsistent statements. Furthermore, petitioner asserted that, off-the-record, trial counsel failed to obtain relevant facts from petitioner, failed to investigate leads, failed to obtain corroborating evidence, failed to conduct a pre-trial investigation, failed to interview prosecution witnesses prior to trial, failed to call witnesses on behalf of petitioner at the suppression hearing, failed to interview the victim's doctor, failed to investigate medical reports thoroughly, and failed to examine petitioner's apartment. Additionally, petitioner alleged that trial counsel conducted petitioner's defense in an incompetent manner and that his incompetence prejudiced petitioner. The balance of petitioner's claims in the motion were more complaints against counsel, including that counsel was overburdened and was busy until petitioner's trial. that being kept in holding cells during portions of the proceedings loft petitioner blind to what was occurring in court, that counsel was not acting in petitioner's best interest, that counsel should have discerned from the indictment and other documents that there was no factual connection between petitioner and the testimony and exhibits put into evidence, and that counsel's failure to call an expert witness prevented petitioner from attacking the connection of the bloody knife to petitioner.
In a decision and order dated July 22, 1998, the court denied petitioner's motion.
On or about March 16, 1999, petitioner filed a pro se motion to set aside his sentence pursuant to New York Criminal Procedure Law sections 440.20 and 440.30, claiming that the State denied petitioner his right to a speedy trial under Criminal Procedure Law Sections 30.20 and 30.30, the State denied him his right to testify before the Grand Jury, the complaining witness's testimony was inconsistent, the arresting officer's testimony at the pre-trial suppression hearing was fabricated, and his sentence was inappropriate.
In a decision and order dated April 19, 1999, the court denied petitioner's motion pursuant to Criminal Procedure Law sections 440.20 and 440.30 on the ground that all of his claims were procedurally barred because his claims were based on matters contained in the record and could, therefore, be reviewed on direct appeal. The court also held that petitioner inappropriately brought his motion pursuant to Section 440.20 because he raised no claims challenging the propriety of his sentence.
On or about May 25, 1999, petitioner applied for leave to appeal to the Appellate Division, Second Department, from the Supreme Court's April 19, 1999 denial of petitioner's motion to set aside his sentence, The motion was denied on June 30, 1999.
On or about August 30, 2000, petitioner again moved to vacate his judgment of conviction and set aside his sentence pursuant to Criminal Procedure Law sections 440.10, 440.20 and 440.30. In that motion, petitioner claimed that the indictment was jurisdictionally defective, the prosecution withheld Rosario material, his right to testify before the Grand Jury was violated, his right to a speedy trial was violated, and his conviction was procured by fraud, duress and false evidence. On September 20, 2000, the court denied petitioner's motion. The court concluded that petitioner's claims were procedurally barred. It held that petitioner's claim concerning his right to testify before the Grand Jury was untimely. The court ruled that petitioner's claims that the judgment was procured by fraud, duress and false evidence, and that Rosario violations had occurred, were unsupported by sworn allegations of fact. The court pointed out that petitioner's contentions that the court lacked jurisdiction and that Criminal Procedure Law section 30.30(1)(a) had expired relied on matters contained in the record and therefore permitted review upon appeal.
On or about November 20, 2000 petitioner moved for leave to appeal to the Appellate Division, Second Department from the Supreme Court's September 20, 2000 order denying his motion to vacate judgment and set aside his sentence. On March 7, 2001, the Appellate Division denied that motion.
On or about October 4, 2001, petitioner filed A pro se petition for a writ of error coram nobis on the grounds that his appellate counsel was ineffective for failing to argue on direct appeal that the evidence was legally insufficient to support petitioner's convictions. Specifically, petitioner alleged that, had counsel raised this issue, he would have prevailed on appeal because the State allegedly failed to prove that petitioner caused serious physical injury to the victim or that the victim's wounds were potentially lethal. On or about January 5, 2002, petitioner filed an addendum to his writ of error coram nobis arguing that his appellate counsel was ineffective for failing to raise on direct appeal a claim of ineffective assistance of trial counsel. On April 29, 2002, the Appellate Division denied petitioner's motion, concluding that petitioner had failed to establish that he was denied the effective assistance of appellate counsel. People v. House, 293 A.D.2d 758, 741 N.Y.S.2d 454 (2d Dept, 2002).
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. g 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). 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 this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J, concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable," Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the 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).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No, 01-2299, 2002 U.S. App, LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions), The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Berbary v. Torres, No. 02-2463, 2003 US. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant lo a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A), A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirm alive defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures," Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review), A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements, Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No, 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law," Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings., the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App, LEXIS 15063, at *17 (2d Cm July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the Court of Appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical, A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No, 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *IG (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "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." Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the slate rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative, See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved, See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 US, App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also 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." Dunham v. Travis, 313 F.3d 724t 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Heft-era v. Colling 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.") A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 US. 86, 87-83 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense," U.S. Const, amend. VL This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002), A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstat v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support," Strickland, 466 U.S. at 696, "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome," Purdy v. Zeldes, No, 02-7468, 2003 US, App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt., 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy-a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required, Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised an appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar, 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance," Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not he for mere errors of state law, Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 199S) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)), Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict,'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976), The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant,'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982), This test applies post-AEDPA. See Wade v. Mantello, No, 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997), To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-G066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y, June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MESC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y, June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *5-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y, June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC0066 (JBW), 2003 US, Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice," Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App, LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
A.
Petitioner moved to suppress the property recovered from his apartment and his subsequent identification and confession, arguing that his arrest was not based on probable cause and was effected without a warrant The state held a hearing on petitioner's claims and rejected them in their entirety. Petitioner challenged this ruling on his direct appeal.
Stone v. Powell, 428 U.S. 465, bars review of all Fourth Amendment claims so long as the state has provided the petitioner with an opportunity for full and fair litigation of the claim. Cardwell v. Taylor, 461 U.S. 571 (1983); Grey v. Hokss 933 F.2d 117, 121 (2d Cir. 1991); see McPhail v. Warden, 707 F.2d 67 (2d Cir. 1983); Chavis v. Henderson, 638 F.2d 534 (2d Cir. 1980); Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977), cert. denied, 434 U.S. 1038 (1975), This bar applies whether or not the petitioner actually had a pretrial hearing on the issue, or whether he failed to avail himself of the opportunity to do so. See McPhail, 707 F.2d at 69 (focus of Stone v. Powell standard is opportunity, and procedural bar applies even if the petitioner failed to employ the state mechanisms for litigating the claim).
The Second Circuit has further refined the Powell analysis to allow habeas review of Fourth Amendment claims in two circumstances: "(a) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). As to the first prong of this test. New York has provided corrective procedures to redress Fourth Amendment violations in section 710.20 to 710.70 of the New York Criminal Procedure Law. Federal courts have held that these procedures are facially adequate. See, e.g., Capellan, 975 F.2d at 70 n. 1; Gates, 568 F.2d at 837 n. 4; Taylor v. Kuhlman, 36 F. Supp.2d 534, 549 (E.D.N.Y. 1999). As to the second prong, in order to establish an "unconscionable breakdown" in the process, a petitioner must show that the state courts "failed to conduct a reasoned method of inquiry into relevant questions of fact and law." Capellan, 975 F.2d at 71 (internal quotations and citation omitted); Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987). An appellate court's summary affirmance, without discussing the Fourth Amendment issue, docs not suggest an "unconscionable breakdown." Capellan, 975 F.2d at 71-72, Similarly, the mere fact that the federal court disagrees with the outcome or that the state court ruling is erroneous does not authorize a federal court to grant the writ; the focus of the court must be on the corrective process, not the outcome of the procedures used, Id. at 71.
Petitioner did have a full and fair opportunity to litigate his Fourth Amendment claim. The decisions of the state court are sound on the facts.
This claim has no merit.
B.
Petitioner claims, as he did in state court, that the representation by his attorney was deficient. He has not demonstrated that trial counsel's performance fell below a standard of objective reasonableness, nor has he demonstrated that he was prejudiced by counsel's alleged errors. See Strickland v. Washington., 466 U.S. 668, reh'g denied, 467 U.S. 1267 (1984).
First, petitioner claims that his attorney failed to "investigate (visit) petitioner's residence," as well as "the Station Cafe Bar [location of crime]" (Petitioner's Amended Petition at 5), but fails to specify what, if any, evidence could have been gathered from such a visit. It is unlikely that any evidence, other than that collected by the police immediately after the crime, would be uncovered by a visit to either of these locations. Similarly, petitioner's claim that trial counsel was ineffective for failing to "hire an investigator to assist him in this critical matter that involved two alleged crime scenes" (Petitioner's Amended Petition at 5) omits indications of what evidence the investigator might have found had ho been hired. Moreover, petitioner does not support his allegations with factual averments or affidavits. Thus, petitioner's has failed to overcome the presumption that counsel provided effective assistance of counsel. See Matura v. United States, 875 F. Supp. at 235.
Second, petitioner states that "counsel erred in failing to conduct interviews with government witnesses, identify or interview potential witnesses" (Petitioner's Amended Petition at 5). He does not specify who these witnesses are, and what favorable information they possessed. This claim is deficient.
Third, he states that "counsel merely introduced the medical records into evidence and did not subpoena the doctors, and failed to read the hospital records and speak to doctors" (Petitioner's Amended Petition at 5), Petitioner does not indicate what testimony these "doctors" might have offered. Moreover, petitioner does not demonstrate how introducing the medical records into evidence, as opposed to reading them to the jury, was ineffective. Petitioner's complaint that counsel failed "to investigate expert's opinions" is similarly deficient. In this regard, petitioner does not allege how an expert could have interpreted the medical evidence in petitioner's favor. The medical evidence of a serious stabbing of the victim was not helpful.
Fourth, petitioner states that counsel failed to introduce into evidence a myriad of medical facts, but he fails to state how the admission of such evidence would have resulted in a more favorable verdict. Petitioner also merely speculates that a "pretrial investigation" of the "bloodstained" knife would have uncovered evidence that could have been used to disprove that the knife admitted into evidence" was not "the actual weapon involved in the alleged assault" (Petitioner's Amended Petition at 5). The uncontroverted evidence was that the bloody knife was recovered from petitioner's bedroom, along with a shotgun, and a shotgun shell. Petitioner's conclusory statement — unsupported by factual averments — that an examination of the bloody knife would have been favorable to the defense, does not support his claim.
Finally, petitioner claims that counsel "erred in properly reviewing the material documentation within his possession, research the law, [and] apply basic criminal" (Petitioner's Amended Petition at 6). This conclusory assertion does not hint how the alleged deficiencies effected counsel's representation of petitioner.
Counsel at both trial and appellate level did a creditable job.
This claim has no merit.
C.
The state court's decision denying petitioner's motion for a writ of error coram nobis was not contrary to, or an unreasonable application of, the Supreme Court's established precedent in Strickland v. Washington, 466 U.S. at 668. The state court's holding that appellate counsel was not ineffective for failing to raise an ineffective assistance of trial counsel claim on petitioner's direct appeal is consonant with the result under Strickland's two-pronged test.
In evaluating the effectiveness of appellate counsel's performance under the Strickland standard appellate counsel has no constitutional obligation to raise every non-frivolous issue urged by a petitioner. Weeding out weaker issues is one of the hallmarks of appellate counsel's responsibilities.
A review of appellate counsel's brief demonstrates that counsel's performance, viewed in its totality, was adequate, and that he properly decided to advance petitioner's best appellate issues and to winnow out the weaker arguments, See Jones v. Barnes, 463 U.S. at 751-52; Miller v. Keeney, 882 F.2d at 1433. The thirty page brief submitted by appellate counsel was persuasive, competent, and adequately presented petitioner's strongest claims. It raised three colorable issues, relied on relevant case law, effectively summarized the record, and presented the trial proceedings in a light favorable to petitioner. Appellate counsel, therefore, cannot be deemed ineffective, See Gulliver v. Dalsheim, 739 F.2d 104, 107-08 (2d Cir. 1984). Contrary to petitioner's contention, appellate counsel's decision not to raise the claim of ineffective assistance of trial counsel reflected the exercise of sound strategy because trial counsel provided petitioner with meaningful representation.
This claim has no merit.
D.
The trial court properly declined to charge Assault in the Third Degree as a lesser-included offense of Assault in the First Degree. There is no Supreme Court precedent that addresses the issue of whether a lesser-included offense must be charged when supported by the evidence.
The propriety of a state trial court's jury instructions is ordinarily a matter of state law that does not raise a federal constitutional question. See Cupp v. Naughten, 414 U.S. 141, 146 (1973); United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974), cert. denied, 423 U.S. 855 (1975). Even if a jury instruction is improper under state law, federal habeas corpus relief is unavailable unless the instruction also violated the petitioner's rights secured by the constitution, laws, or treaties of the United States. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (claim that jury instruction was incorrect as a matter of state law is not a basis for federal habeas relief). To be entitled to federal habeas corpus relief, a petitioner must show not merely that a jury instruction was "undesirable, erroneous, or even `universally condemned'" but also that it violated some right that was guaranteed to him by the federal constitution, Cupp v. Naughten, 414 U.S. at 146, "The question is whether the `ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,'" Id. at 147.
While the Supreme Court has held that due process requires a trial court to submit jury instructions on lesser-included offenses in capital cases, Beck v. Alabama, 447 U.S. 625, 637-38 (1980), it has expressly left open the question whether due process requires this type of instruction in a non-capital case. Id. at 638 n. 14; see also Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996) (acknowledging that this circuit has not yet ruled on this issue).
Even if this court were to review the failure to give the instruction to determine whether the charge implicated petitioner's due process rights, the state court's decision not to charge the lesser-included offense was not an unreasonable application of Supreme Court precedent, or even erroneous under New York state law. Under New York law the trial court need only submit a lesser included offense when: (1) it is impossible to commit the greater offense without committing the lesser, and (2) there exists a reasonable view of the evidence that defendant did in fact commit the lesser, but not the greater offense. N.Y. Crim. Proc. Law § 300, 50(1); People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 66 (1982). This standard is consistent with any federal constitutional standard that might arguably apply.
The evidence established that, after fighting with Maurice Matthews, petitioner plunged a knife into his chest, which caused Matthews to suffer excessive bleeding and permanent scars, The injury was so severe that one week after the stabbing Matthews had to undergo surgery to remove fluid that had collected in his chest, which caused considerable pain and difficulty breathing. Under these facts, there was no reasonable view of the evidence to support a conclusion that petitioner only committed a third-degree assault because he only intended to cause Matthews physical injury, but not serious physical injury, or that Matthews injury could have resulted from something other than petitioner's knife. There is no reasonable view of the evidence to support a finding that petitioner consciously disregarded a risk of physical injury to Matthews, but not a grave risk of death, when he stabbed the victim in the chest, Therefore, the trial court decision not to charge the lesser-included offense was proper.
This claim has no merit.
E.
Petitioner's claim that his attempted murder conviction was inconsistent with his assault convictions does not present this Court with a ground to grant habeas relief.
A claim of inconsistent or repugnant verdicts generally presents no issue upon which federal habeas corpus relief could be granted.
The United States Supreme Court has held that "inconsistent verdicts are constitutionally tolerable," Dowling v. United States, 493 (citing cases); see e.g., United States v. Powell, 469 U.S. 57, 58 (1984); Harris v. Rivera, 454 US. 339, 345 (1981) ("inconsistency in a verdict is not a sufficient reason for setting it aside"); Dunn v. United States, 284 U.S. 390, 393-94 (1932); United States v. Acosta, 17 F.3d 538, 545 (2d cir. 1994) ("it has long been established that inconsistency injury verdicts of guilty on some counts and not guilty on others is not a ground for reversal of the verdicts of guilty"); United States v. Alvarado, 882 F.2d 645, 653 (2d Cir. 1989), cert. denied, 493 U.S. 1071 (1990); United States v. Romano, 879 F.2d 1056, 1060 (2d cir. 1989); United States v. Change An-Lo, 851 F.2d 547, 559-60 (2d Cir.), cert. denied, 488 U.S. 966, 109 S, Ct. 493, 102 L.Ed.2d 530 (1938).
In United States v. Powell, the Supreme Court explained that "where truly inconsistent verdicts have been reached, `the most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, hut that does not show that they were not convinced of the defendant's guilt' . . . it is equally possible that the jury, convinced of guilt, properly reached its conclusion . . . then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense." 469 U.S. at 64-65 (quoting Dunn, 284 U.S. at 393), The Supreme Court in Powell rejected, as "imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake." United States v. Powell, 469 U.S. at 66; accord, e.g., United States v. Acosta, 17 F.3d at 546 ("A court knows only what the jury's verdicts were, not what the jury found, and it is not within the province of the court to attempt to determine the reason or reasons for verdicts that are inconsistent."); United States v. Chang An-Lo, 851 F.2d at 559-60.
Even assuming that inconsistent verdicts present a problem of constitutional proportions, petitioner would not be entitle to relief. Under the AEDPA, a writ of habeas corpus will not be granted unless the state adjudication of petitioner's claim "resulted in a decision that; was contrary to, or involved an unreasonable application clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). This means that a petitioner must" identify a clearly established Supreme Court precedent that bears on his claim." Loliscio v. Goord, 263 F.3d at 191. Here, petitioner fails to provide this Court with a Supreme Court decision that prohibits intentional and reckless convictions that are mutually exclusive, There appears to be no such Supreme Court precedent. The Supreme Court in Powell, expressly withheld judgment on whether the Constitution permits more than one finding of guilt on mutually exclusive offenses, 469 U.S. at 69, The Supreme Court has not subsequently ruled on this issue. Thus, because the rule regarding mutually inconsistent verdicts is not clearly established, the Appellate Division's rejection of this type of claim cannot have been contrary to, or an unreasonable application of, clearly established federal law.
Here, evidence presented at trial supported convictions on both the attempted murder count, and the two assault counts, Specifically, under the facts of this case the jury appropriately concluded that petitioner not only attempted to murder Matthews by stabbing him, but that he also intended to cause him serious physical injury, and that his conduct recklessly created a grave risk of death to Matthews, Thus, the jury's verdict was based on the evidence presented to it, and a rational fact-finder could have found a consistent set of facts supporting all three convictions,
This claim has no merit.
F.
No other possible claim rises above the frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.