Smith v. Duncan, Docket No. 04-0604-pr (2d Cir. June 21, 2005) (Meskill, Calabresi, Wesley) (Op. by Wesley): This is yet another habeas petition, raising potentially meritorious substantive claims, that is dismissed by the Court because of defense counsel’s failure to preserve or present the relevant issues to the state courts. No new rule is established by the decision; it is nonetheless worth a perusal, if only to remind oneself of the hazards faced by habeas petitioners if counsel in state proceedings fail to exercise great care in prosecuting the state appeal.
The essential facts are simple. Smith was tried for murder in state court after he shot the victim to death. Smith’s sole claim is self-defense, arguing that the victim was a gang member of whom he was quite afraid. Smith sought to introduce 2 pieces of evidence to corroborate this defense — the tape of Smith’s 911 call right after he shot the victim (in which he indicates to the 911 operator his great fear that victim’s fellow gang members were coming after him) and the testimony of his aunt, who would corroborate Smith’s fear of victim and his gang during the time preceding the shooting. The state trial court refused to admit either piece of evidence, and Smith was convicted. After unsuccessful challenges in state court, Smith filed a § 2254 petition in the E.D.N.Y. Judge Weinstein denied the petition on procedural grounds, and the Circuit affirmed.
The question was easy regarding the aunt’s testimony. Apparently, counsel for Smith neglected to raise this issue to the N.Y. Court of Appeals in his leave application. This claim is therefore unexhausted for habeas review. Moreover, because it is now too late for Smith to raise this claim in state court, the Circuit ruled that it was procedurally defaulted.
The question regarding the 911 tape was only slightly more difficult to resolve. Apparently, while defense counsel raised this issue to the relevant state courts, he argued only that the trial court’s exclusion of this evidence violated state evidentiary rules. Counsel never made the constitutional argument that Smith now makes on his habeas petition — i.e., he was deprived of his constitutional right to present a defense by the exclusion of this testimony. Thus, the Circuit ruled, Smith failed to “fairly present” the constitutional claim to the state courts. The claim is therefore unexhausted and, moreover, procedurally defaulted for the same reason as the claim regarding the aunt’s testimony.
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