VICTOR MARRERO, United States District Judge.
Marcos Gonzalez (hereinafter "Gonzalez"), incarcerated and pro se, petitions for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his New York State conviction for murder in the second degree. Gonzalez asserts that he was denied (1) his Sixth Amendment right to confront and cross-examine witnesses at trial, (2) his Sixth Amendment right to effective assistance of counsel at trial and on appeal, and (3) his due process rights under the Fourteenth Amendment allegedly because he is actually innocent. Gonzalez also moves to conduct discovery in this habeas petition, to expand the record pursuant to §§ 6(a) and 7(a-b) of the Rules Governing 28 U.S.C. § 2254 Cases. Respondent Floyd Bennett ("Bennett"), who is Superintendent of the Elmira Correctional Facility (hereinafter "Elmira"), has opposed Gonzalez's petition and motion. For the reasons set forth below, Gonzalez's habeas corpus petition and motions for discovery and to expand the record are denied.
I. BACKGROUND
A. FACTUAL BACKGROUND
On May 2, 1996, Gonzalez was convicted of murder in the second degree after a jury trial before the New York State Supreme Court, New York County. He is currently serving a sentence to a term of incarceration of 19 years to life at Elmira.
At trial, prosecution witnesses testified on March 19, 1994, that Godfrey Griffin (hereinafter "Griffin") engaged in a drug turf confrontation with Gonzalez. Griffin was nineteen-years-old. (Tr. at 317.) Griffin apparently had robbed Gonzalez's customers in the past. During this particular confrontation, Griffin pulled out a gun and shot at Gonzalez. Witnesses further testified that Gonzalez pulled out a knife and, with another person, stabbed Griffin multiple times. The medical examiner testified that Griffin died of a complication of bleeding from the stab wounds. (Trial Transcript (hereinafter "Tr.") at 318.)
Daniel Cruz (hereinafter "Cruz"), who was eighteen on the date of trial (Tr. at 166), was the first witness for the prosecution; he identified Gonzalez as one of two persons who killed Griffin (Tr. at 202). However, Cruz gave different versions of the event before trial and at trial. During direct examination of Cruz, the prosecution introduced a letter in which Cruz recanted his pre-trial identification of Gonzalez as the person who stabbed Griffin. (Tr. at 200.) On the stand, Cruz withdrew his recantation. He stated that he lied in that letter because he was afraid that his testimony at trial would jeopardize the safety of his family. (Tr. at 201.) Cruz further testified that he decided to go forward with his testimony at trial because he was certain that it "is right to tell the truth, the whole truth." (Tr. at 201.) Also on direct examination, Cruz stated that he was incarcerated at Riker's Island following his guilty plea to an unrelated crime, and pending his sentencing. (Tr. at 166-67.)
Gonzalez's counsel, Oliver S. Storch (hereinafter "Trial Counsel"), cross-examined Cruz on his propensity to lie under oath, including his recantation letter. (Tr. at 202-03.) Trial Counsel cross-examined Cruz regarding his bias and interest, (Tr. 202-07), eliciting testimony from Cruz that his sentencing had been rescheduled to occur three days after he testified against Gonzalez. Nevertheless, Cruz testified that his plea was not a "negotiated plea." Further, Cruz testified that his sentencing range was between a minimum of one and a half to four and a half years and a maximum of five to fifteen years. Finally, Cruz testified that he did not know whether he would receive the minimum sentence or not. (Tr. at 203-04.)
In addition to Cruz, the prosecution called Javier Nunez (hereinafter "Nunez"), who at that time of trial was sixteen and residing in a juvenile facility after being convicted of selling drugs. (Tr. at 209.) Nunez testified that, at the time of the murder, he had lived with Griffin and a third person. (Tr. at 211.) Nunez testified that he sold drugs for the third person, and that Griffin's daily task was to rob Gonzalez's customers. (Tr. at 211, 232-33.) On March 19, Nunez and Griffin went to get a gun in order to rob drug customers or dealers. (Tr. at 215.) Nunez and Griffin met up with Kevin Civil (hereinafter "Civil") and William Beale (hereinafter "Beale") with whom they discussed "robbing customers" as they passed a building on 142nd Street in Manhattan. (Tr. at 217.) Gonzalez and a second male exited the building and warned Nunez not to rob their customers. (Tr. at 217-18.) The six argued, and Gonzalez hit Nunez. (Tr. at 220.) Nunez fell, was picked up by Civil and Beale, and ran away. When he looked back at the scene of the altercation again, he saw that Gonzalez and a second person were holding Griffin, taking the gun out of Griffin's hand, and then stabbing him. (Tr. at 220-24.)
At trial Civil also testified that Griffin, Nunez and Beale were discussing robbing customers immediately before the altercation with Gonzalez. (Tr. at 240, 244.) At the time of his testimony, Civil was seventeen and awaiting sentencing after having pleaded guilty to marijuana possession, a fact that was subject to cross-examination, redirect examination, and re-cross-examination. (Tr. at 236, 246-47.) Similarly, Beale, who was eighteen at the time of trial, testified for the prosecution that he saw Gonzalez in possession of a knife during the confrontation. (Tr. at 258.) Beale also testified that Nunez and Griffin were discussing robbing drug customers. (Tr. at 250, 252.) Beale further testified that Griffin pulled out a gun, (Tr. at 257), and told Cruz, Civil and Beale to "back up", at which point the three ran away. (Tr. at 258-59.) On cross-examination, Beale admitted that he had been on probation for a year and a half based on his plea of guilty to drug possession. (Tr. at 265-67.)
The prosecution introduced forensic evidence, through the testimony of medical examiner Dr. George Sterbenz (hereinafter "Sterbenz"), that Griffin had been stabbed multiple times and suffered additional discrete injuries on his hands and knee. (Tr. 307-08.) Sturbenz testified that the injuries were consistent with injuries inflicted during a struggle in which a knife is plunged with considerable force and redirected within the body, and with one or two attackers. (Tr. 310-11, 314.) The stabs penetrated deeply enough to cause several injuries to the liver, pancreas, small intestine, bowel. (Tr. at 313-14.) Sturbenz also testified that the pattern of wounds on Griffin's body indicated that during the struggle Griffin was on his back, and able to lift his knees, perhaps to fend off the attack. (Tr. at 317.)
Prior to trial, defense had sought suppression of five statements made by Gonzalez to investigators before trial. In each statement, Gonzalez described a different version of the events on March 19, 1994; in each statement he was the victim of an unprovoked stabbing and in later statements he was the victim of a robbery as well. (Hearing Transcript at 16, 18, 29-30, 35-36, 43, 54, 75, 95-96, 108-10.) Although the trial court determined the statements to be admissible, (Hearing Transcript at 134-44), the prosecution did not introduce any of the statements Gonzalez made prior to trial.
After the prosecution rested, Trial Counsel requested that Cruz be recalled to the stand, or in the alternative, that the prosecutor stipulate that Cruz did in fact receive the minimum sentence. Trial Counsel argued that Cruz's plea and sentence directly bore on Cruz's credibility. (Tr. at 342.) During the colloquy concerning Trial Counsel's requests, the prosecutor admitted that Cruz did plea pursuant to a plea bargain, and that a sentence of one and a half to four and a half years was offered to him independent of the Gonzalez case. (Tr. at 344.) The Court ruled that while Trial Counsel could argue the issue of credibility to the jury, the issue of Cruz's minimum sentence was irrelevant. (Tr. at 343-45.)
Trial Counsel's strategy appears to have been defensive, holding the prosecution to its burden of proof and pointing out to the jury the flaws in the prosecution's case. (Tr. at 157-59, 382-93.) Trial Counsel introduced the alibi testimony of Jose A. Guzman (hereinafter "Guzman"). (Tr. at 348-52.)
During summation, Trial Counsel argued that an issue of credibility was raised because Cruz testified for the prosecution while awaiting his sentence. He further reminded the jury that there was a "big" difference between the minimum and maximum sentences, and that Cruz's sentencing date had been delayed until after he testified against Gonzalez. (Tr. at 385.) Nevertheless, the jury found Gonzalez guilty of murder in the second degree.
B. PROCEDURAL HISTORY
Gonzalez has availed himself of several mechanisms for post-conviction relief. Robert S. Dean and Carl S. Kaplan of the Center for Appellate Litigation represented Gonzalez on his direct appeal (hereinafter "Appellate Counsel"). Through counsel, Gonzalez filed a brief setting forth one argument: that the trial court's refusal to grant trial counsel's timely and specific request for a renewed cross-examination of a key prosecution eyewitness on a subject directly related to witness bias, interest and credibility, was an abuse of discretion that deprived Gonzalez of his right to confrontation under the Sixth and Fourteenth Amendments of the United States Constitution, and also Article I, § 9 of the New York Constitution. (Answering Affirmation, ¶ 11 at Ex. B).
The Appellate Division, First Department, affirmed Gonzalez's conviction, holding that the trial court properly denied Gonzalez's application to recall a prosecution witness because the testimony might ultimately "have been confusing, prejudicial and marginally relevant."People v. Gonzalez, 677 N.Y.S.2d 794 (App.Div. 1st Dep't 1998) (citingDelaware v. Van Arsdall, 475 U.S. 673 (1986)). Indeed, the Appellate Division continued, even if the denial was an abuse of discretion, the error was harmless. See id. Gonzalez sought, but was denied, a certificate granting leave to appeal on December 29, 1998. See People v. Gonzalez, 92 N.Y.2d 1032 (1998).
Second, Gonzalez filed a pro se petition for habeas corpus on June 6, 1999. Gonzalez then requested permission to withdraw his petition without prejudice, in order to exhaust state remedies. His request was granted pursuant to a Memo Endorsed Order issued by the Hon. Denny Chin on November 5, 1999.
Third, on December 21, 1999, Gonzalez filed a motion for a writ of error coram nobis seeking to vacate the 1998 decision affirming his conviction on the grounds that Appellate Counsel's assistance was so "minimal as to amount to no assistance at all" and "lacking in quality as to constitute ineffective assistance". (Verified Petition in Support of Writ of Error Cora[m] Nobis at 1.) The District Attorney, New York County, filed a brief in opposition to the writ, to which Gonzalez responded. The Appellate Division of the State Supreme Court, First Judicial Department, denied Gonzalez's application. People v. Gonzalez, Ind. No. 2699/94, No. M-8293 (N.Y.App.Div. filed August 17, 2000) ("Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, [i]t is hereby ordered that said application be and hereby is denied in its entirety. (See People v. Bienvenido de la Hoz, 131 A.D.2d 154, 158 ([N.Y.] App. Div. 1st Dep't 1987))").
Finally, Gonzalez filed the instant petition in which he challenges his New York State conviction on the three grounds set forth above.
II. DISCUSSION
A. MOTION TO CONDUCT DISCOVERY AND EXPAND THE RECORD
A habeas petitioner, unlike the usual civil litigant, ordinarily is not entitled to discovery. According to the Rules Governing § 2254 Cases, a district court judge has discretion to permit discovery only "for good cause shown." Bracy v. Gramley, 520 U.S. 899, 904 (1997); Rule 6, 28 U.S.C. foll. § 2254. Whether a petitioner has shown "good cause" depends on whether the petitioner has set forth specific allegations that provide "reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief." Bracy, 520 U.S. at 909 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). Generalized statements about the possible existence of discovery material are insufficient to constitute "good cause." See Green v. Artuz, 990 F. Supp. 267, 271 (1998). Likewise, a court has discretion to deny a motion for discovery where the petitioner provided no specific evidence that the requested material would support his habeas corpus petition. See Charles v. Artuz, 21 F. Supp.2d 168, 170 (E.D.N.Y. 1988).
Gonzalez requests permission to conduct discovery in order to support his claim of actual innocence. (Affidavit in Support of Motion for Discovery Pursuant to Habeas Corpus Rule 6a and for Permission to Expand the Record and for Extension of Time to Reply to Respondent's Answering Affirmation (hereinafter "Pet. Aff.") at ¶ 14 (Petitioner "can effectively prove his innocence through the disclosure and discovery of pertinent documentation that is in the possession of the New York County District Attorney's office who either refused or failed in their obligation to turn over said documents to the defense at a time when they could have effectively been used to impeach the defense witnesses testimony and credibility.").) In particular, Gonzalez requests a copy of the transcript of his own testimony, his own hospital records, the transcripts of witness's plea allocutions, and a forensic report. Further, Gonzalez requests that the Court expand the record to include the requested materials.
The Court declines to grant discovery and to expand the record because Gonzalez has failed to show good cause. Gonzalez's allegations are insufficient for procedural and substantive reasons. Procedurally, Gonzalez did not raise his claim of actual innocence in the State courts, and, as will be discussed in greater detail below, Gonzalez has not identified an independent constitutional violation on which his claim of actual innocence might warrant habeas corpus relief. Substantively, the discovery requested by Gonzalez was available to him at trial. Gonzalez was given notice of the prosecution's intent to use his statement at trial, and has personal knowledge of his own statements. As to the transcripts of witnesses' plea allocutions, Trial Counsel could have obtained them if he did not already have them. Gonzalez's hospital records and the requested forensic report were introduced into evidence at trial by the prosecution. Accordingly, none of this evidence is new or was unavailable. In conclusion, Gonzalez has not shown good cause that the requested information would support his petition and the Court denies his motion to conduct discovery. Further, because discovery of these documents is denied, the Court denies Gonzalez's motion to expand the record to include the requested material.
B. HABEAS CORPUS STANDARD OF REVIEW
Gonzalez's petition for the extraordinary relief of habeas corpus was filed on November 2, 2000 and is governed by 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act (hereinafter "AEDPA"). See Morris v. Reynolds, 264 F.3d 38 (2d Cir. 2001). Under AEDPA, a federal court may not grant a writ of habeas corpus with respect to any claim that was "adjudicated on the merits" in the state court unless the state court decision is either contrary to clearly established federal law or involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Morris, 264 F.3d at 46 (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
Clearly established federal law refers to the holdings only, not the dicta, of the United States Supreme Court. See Morris, 264 F.3d at 46. The state court's application of clearly established federal law must be objectively unreasonable, not merely erroneous. See Williams, 529 U.S. at 387 n. 14; accord Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000).
of course, where, as here, a party appears pro se, the courts are required to broadly construe the pro se pleadings and interpret them "to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
Gonzalez has raised three claims, two of which he raised in the State courts. First, Gonzalez brought a direct appeal regarding the trial court's decision not to recall Cruz after the close of the prosecution's case. The Appellate Division rendered its decision on the merits of that claim, citing U.S. Supreme Court precedent. See Gonzalez, 677 N.Y.S.2d at 794. Likewise, the Appellate Division also denied Gonzalez's writ forcoram noblis, which Gonzalez asserted on the grounds of ineffective assistance of appellate counsel. Accordingly, the State court decisions are entitled to deference under the AEDPA and the Court may grant Gonzalez's petition for habeas corpus on Gonzalez's first and second grounds only if the decision is contrary to, or an unreasonable application of, clear United States Supreme Court precedent.
Gonzalez's third claim, however, has not been raised on appeal or otherwise, and the Court discusses the significance of the claim's procedural posture below in Section II.E.
C. DEPRIVATION OF RIGHT TO CONFRONT WITNESSES IN VIOLATION OF THE SIXTH AMENDMENT
Gonzalez claims that the trial court's decision not to recall Cruz after the prosecution rested its case deprived Gonzalez of his Sixth Amendment right to confront witnesses against him. Gonzalez asserts that recalling Cruz was necessary in order to establish that Cruz received the minimum sentence, which is relevant to Cruz's bias, interest and credibility.
The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to confront and cross-examine the witnesses against him. See Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). However, this right is subject to the trial judge's "wide latitude" to impose "reasonable limits" on cross-examination to prevent it from becoming harassing, prejudicial, confusing, repetitive or only marginally relevant. Id. at 679. Furthermore, the decision to alter the order of proof at trial, including the decision of whether to permit a party to recall a witness, is within the trial court's broad discretion. See N.Y. CPL §§ 260.30, 320.20(3)(b); People v. Venura, 318 N.E.2d 609 (N.Y. 1974).
Here, Trial Counsel sought to recall Cruz after he had finished testifying, had been subject to cross-examination regarding his bias, credibility and interest and after the prosecution had rested its case. Trial Counsel's stated purpose for recalling Cruz was to inquire as to whether he received the minimum sentence. However, Trial Counsel had already cross-examined Cruz on that issue, and there was sufficient evidence in the record for Trial Counsel to argue the point during summation. Accordingly, the Appellate Division's decision was neither contrary to, nor an unreasonable application of, clearly established federal Law.
D. INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT
Gonzalez's claim for ineffective assistance of counsel, in violation of the Sixth Amendment, arises out of his dissatisfaction with Appellate Counsel's selection and pursuit of only one legal issue on appeal. Gonzalez believes that Appellate Counsel should have raised three stronger, meritorious claims — prosecutorial misconduct, ineffective assistance of Trial Counsel and the trial court's failure to charge the jury with a lesser included charge — and that Appellate Counsel's failure to raise such claims constitutes ineffective assistance of counsel. It is unclear whether Gonzalez seeks habeas relief on the ground that the performance of Trial Counsel, too, was so poor as to constitute ineffective assistance of counsel. Recognizing Gonzalez's pro se status, the Court addresses both grounds.
While it is true that Appellate counsel did not raise every issue identified by Gonzalez, the issues Gonzalez identified and discussed with Appellate counsel prior to the filing of the direct appeal are different from those raised in the petition now before the court. (Verified Petition in Support of Writ of Error cora[m] Nobis at 5, and Ex. 2.)
In order to establish a violation of the Sixth Amendment right to effective assistance of counsel, petitioner must show that counsel's performance was deficient — that is, that an act or omission was professionally unreasonable — and that there is a reasonable probability that but for the unprofessional error, the outcome would have been different. See Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). There is no legal obligation to raise every colorable claim on appeal because effective appellate advocacy often involves selecting and focusing on a few promising claims. See Jones v. Barnes, 463 U.S. 745, 751-754 (1983). Certainly, it is not error for counsel to forego raising a meritless claim on appeal. See Mitchell v. Scully, 746 F.2d 951, 955 (2d Cir. 1984), cert. denied, 470 U.S. 1056 (1985). Nevertheless, an appellate counsel's decision to raise a weak claim, and to abandon stronger, meritorious claims, may constitute professionally unreasonable error that, if prejudice is shown, violates the Sixth Amendment. See Mayo v. Henderson, 13 F.3d 528, 534-36 (1994).
Gonzalez claims that Appellate Counsel erred by selecting only one claim, based on the trial court's decision not to recall Cruz to the stand, to raise on appeal and by omitting three. Gonzalez asserts that the omitted claims are stronger than the claim Appellate Counsel raised, and that Appellate Counsel therefore committed unreasonable professional error. The Appellate Division was not persuaded by Gonzalez's argument and this Court reviews the Appellate Division's decision to determine whether it is contrary to, or an unreasonable application of, clearly established federal law.
1. Prosecutorial Misconduct
The Court finds that Appellate Counsel committed no error in failing to raise an issue of prosecutorial misconduct. The misconduct alleged by Gonzalez is that the prosecutor was present when Gonzalez gave a statement to police, failed to call every police officer who arrived at the scene of the crime, and "induced the so called witnesses to testify falsely". (Verified Petition in Support of Writ of Error Coram Nobis at 11.) First, under New York law, it is permissible for a prosecutor to take statements prior to trial and also act as trial prosecutor, unless defendant makes a substantial showing that prosecutor's pretrial conduct was a material issue at trial and his participation at trial prejudiced the defendant. See People v. Papaerno, 429 N.E.2d 797, 798 (N.Y. 1981). Gonzalez's claim, that the presence of the prosecutor while he made his statement was error, does not show prejudice and thus does not constitute misconduct. Secondly, the prosecutor has discretion to select witnesses for trial. Finally, Gonzalez provides no evidentiary support for his claim that the prosecution induced witnesses to testify falsely. Accordingly, because Gonzalez's claim of prosecutorial misconduct is without merit and Appellate Counsel committed no error in omitting it from appeal.
2. Ineffective Assistance of Trial Counsel
Gonzalez's second claim that Trial Counsel provided ineffective assistance in violation of the Sixth Amendment is similarly without merit. Gonzalez alleges that Trial Counsel's assistance was deficient by failing to object to prosecutorial misconduct; stipulating to the admission of evidence at trial; stipulating to excuse the alternate juror at trial; failing to question a juror who observed the district attorney and detective conversing; failing to raise any issue as to Gonzalez's statements to police; and failing to raise justification as a defense.
The Court is not persuaded that it was unprofessional error for Trial Counsel to stipulate to the admission of evidence and the excusal of a juror. Further, Trial Counsel did object to, and limit the admission of, arguably inflammatory forensic photographs. (Tr. at 291-94.) There was no issue of prosecutorial misconduct, as discussed above in Section II.D.1, and thus there is no issue of ineffective assistance of Trial Counsel for failure to object to prosecutorial misconduct. Likewise, there was no need to further question the juror who observed the prosecutor and a witness conversing where the judge adequately explored the issue and where the juror had not heard anything. (Tr. at 294-95.) In addition, Trial Counsel sought to suppress all of the five statements given by Gonzalez to the police during a pretrial colloquy before the judge, and thus did not commit unprofessional error on that ground. (Tr. at 124-140.)
However, Gonzalez's complaint that Trial Counsel should have raised justification as a defense warrants deeper consideration. A successful justification defense renders a person's use of force non-criminal. According to New York law, even the use of deadly physical force is non-criminal where the defendant reasonably believes the other person is either: (a) using or about to use deadly force on him and that it is necessary for him to use deadly force to defend himself; or (b) he reasonably believes that such other person is committing or attempting to commit a robbery. See N.Y. CLS Penal § 35.15. In the former situation, the justification defense only applies to the extent that the defendant reasonably believes was necessary to defend himself, and provided that defendant did not have a duty to retreat. See id. Under New York law, where the evidence viewed in the light most favorable to the defendant reasonably would support such a defense, a court's refusal to "instruct the jury that the People must disprove the defendant's claim of justification" is reversible. Davis v. Strack, No. 00-2286, 2001 WL 1336002, at *62 (2d Cir. Oct. 29, 2001) (citations omitted); People v. Suarez, 539 N.Y.S.2d 325 (App.Div. 1st Dep't 1989). Trial Counsel's strategy appears to have been defensive, holding the prosecution to its burden of proof and pointing out to the jury the flaws in prosecution's case. (Tr. at 157-59, 382-93.) Trial Counsel introduced the alibi testimony of Guzman. (Tr. at 348-52.) It does not appear on the record that Trial Counsel used the testimony regarding the victim and witness's history of drug dealing and robbing for purposes other than testing their credibility. Nor does it appear that Trial Counsel requested a justification instruction. (Tr. at 424.)
To the extent, however, that Gonzalez's challenge is based on hind-sight and disappointment, it does not warrant relief. See Strickland v. Washington, 466 U.S. at 689. The Second Circuit has long held that a court should not second-guess strategic or tactical decisions of counsel. See U.S. v. Duhart, 269 F.2d 113, 115 (2d Cir. 1959) ("trial strategy, even if it proves unsuccessful, is inadequate basis for an attack on the competence of counsel"); Campuzano-Valoy v. U.S., No. 94cv558, 1994 WL 392221, at *3-4 (S.D.N.Y. July 27, 1994).
The record before the Court provides no basis for the Court to determine that the decision not to raise justification as a defense wasnot strategic, or that at the time Gonzalez disagreed with the strategy undertaken by Trial Counsel. Indeed, it would not be an unreasonable strategy to select and present one theory of defense rather than introducing potentially confusing testimony to support two inconsistent defenses. Here, to raise an issue of justification, Trial Counsel probably would have risked the introduction of Gonzalez's five, inconsistent and potentially incriminating pre-trial statements which would have undermined his alibi defense. Further, the record reflects little factual support for his claim of justification: the jury could have concluded that Gonzalez and the second perpetrator were both larger and older than the teen-aged Griffin; the stab wounds were inflicted using considerable force against Griffin; the stabs were inflicted while Griffin was held on his back and the evidence suggested that Griffin's work may have been the work of two persons, not Gonzalez acting alone; and Gonzalez's knife wound may have been self-inflicted during the struggle because Gonzalez was armed with a knife, whereas Griffin was armed with a gun. The totality of the circumstances do not support a justification defense, and thus, trial counsel's failure to raise a justification defense is not error. Accordingly, the Appellate Division's decision is neither contrary to, nor an unreasonable application of, clearly established federal law.
3. Sua Sponte Justification Defense
Gonzalez's third claim posits that Appellate Counsel ought to have raised on appeal the trial court's failure to charge the jury on justification. Gonzalez believes that he was entitled to an instruction regarding self-defense, and that in omitting that claim Appellate Counsel's performance was deficient.
As set forth above, it is reversible error to refuse a justification instruction where evidence, viewed in the light most favorable to the defendant, reasonably would support it. See Davis, 2001 WL 1336002, at *10. Even if the charge is not requested, but evidence clearly supports a justification charge, a judge ought to give the charge sua sponte. See People v. Copeland, 627 N.Y.S.2d 653, 654 (App.Div. 1st Dep't 1995) (reversing conviction "in the interests of justice" due to failure to charge jury on justification despite defense counsel's failure to request the charge or except to the charge provided) (citations omitted). But cf. Bird v. United States, 180 U.S. 356 (1901) ("if the judge omits something and is not asked to supply the defect, the party who remained voluntarily silent cannot complain.". It is reversible error for the judge to refuse, on the basis that defendant is pursuing an alibi defense, a request to instruct the jury on justification as well. See People v. Steele, 260 N.E.2d 527, 529 (N.Y. 1970).
Viewing the evidence in the light most favorable to Gonzalez, some evidence at trial tends to support a theory of justification as self-defense against a deadly attack or against a robbery. The prosecution elicited testimony that previously, Griffin had robbed Nunez's customers. Griffin and Nunez were discussing robbing Gonzalez's customers immediately prior to the altercation. At the time of the altercation, customers of Gonzalez may have been arriving in a car. During the alteration, Griffin took out a gun, warned his friends to leave, and shot at Gonzalez. Further, it was not contested at trial that Gonzalez suffered a wounding in the altercation. Trial Counsel did not elicit evidence supporting a theory of justification.
Even so, the Court is not persuaded that the Appellate Division's decision that Appellate Counsel did not commit ineffective assistance of counsel by failing to raise the issue of a sua sponte jury charge on justification, was either contrary to or an unreasonable application of federal law. First, the Court observes that to succeed, Gonzalez must overcome the strong presumption in favor of the counsel whose performance is alleged to be deficient. See Strickland, 466 U.S. at 689. Factually, in addition to the evidence discussed above in Section II.D.2, eye-witnesses testified that Griffin's stabbing occurred after Griffin had been disarmed. Accordingly, even if Gonzalez earlier had been under threat of bodily harm, at the time of the stabbing there was no longer any apparent need to use force. Likewise, the forensic testimony regarding multiple stabbings, Griffin having been on his back fending off the attack, and extensive injuries injuries inflicted on him tends to suggest that greater force than was necessary may have been used. Moreover, procedurally, nothing in the record before the Court suggests that Gonzalez at any time expressed dissatisfaction with Trial Counsel's decision not to raise justification. Likewise, the correspondence between Gonzalez and Appellate Counsel does not show that Gonzalez wished to pursue justification as a defense at the appellate stage. (Verified Petition in Support of writ of Error Cora[m] Nobis at 5, Ex. 2.)
Accordingly, the Court does not find that it was contrary to, or an unreasonable application of, federal law for the Appellate Division to find that Appellate Counsel's omission of a claim that the trial court should have charged the jury, sua sponte, on justification did not violate Gonzalez's Sixth Amendment right to effective assistance of counsel. Even if it were error, Gonzalez has not shown that there is a reasonable probability that, but for the failure to charge, the outcome of Gonzalez's trial would have been different. See Strickland, 466 U.S. at 690.
E. CLAIM OF ACTUAL INNOCENCE
Without having raised this issue previously, Gonzalez raises a claim of actual innocence in his petition for a writ of habeas corpus. Gonzalez does not raise this claim for the purpose of availing himself of an exception to a procedural default. The Court dismisses Gonzalez's substantive claim for actual innocence for failure to exhaust state remedies.
Under the doctrine of exhaustion, a claim raised on federal habeas corpus should previously have been fairly and fully presented to the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (holding that as to any habeas petition presenting the claim that a prisoner's "state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief"). Here, Gonzalez has neither brought a direct appeal or made any other post-conviction filing that challenges the jury's determination of his guilt. Thus, Gonzalez has not exhausted his state remedies and the Court dismisses his petition on that ground.
Regardless, the Court notes that a claim alleging actual innocence is recognized for the purpose of avoiding procedural bars to having a habeas corpus petition reviewed on the merits. See, e.g., Alexander v. Keane, 991 F. Supp. 329, 334-335 (1998). Here, however, Gonzalez asserts that his conviction is unconstitutional because he is actually innocent. The Supreme Court of the United States recently determined that a claim of substantive actual innocence, absent an independent constitutional violation, is not cognizable in a federal habeas corpus review. See Schlup v. Delo, 513 U.S. 298, 316-317 (1995) (explaining the potential disruptive effect of requiring a lesser threshold showing). Thus, regardless of his failure to exhaust state remedies, because the Court has determined that neither the trial court's decision not to recall a prosecution witness nor the representation by Gonzalez's Trial Counsel and Appellate Counsel violated the Sixth Amendment, Gonzalez fails to identify an independent constitutional violation that would bring his claim for actual innocence within the purview of this Court's habeas corpus review.
III. CONCLUSION
For the foregoing reasons it is hereby
ORDERED that Marcos Gonzalez's Petition for Habeas Corpus be denied in its entirety; and it is further
ORDERED that the Clerk of Court close this case.
As Gonzalez has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c). See also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1014-16 (2d Cir. 1997). The Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED.