OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

Petitioner Eric Green brings this pro se habeas corpus petition pursuant to section 2254 of Title 28 of the United States Code challenging his state court conviction following a jury trial in New York State Supreme Court, New York County.1 Petitioner was convicted of three counts of Rape in the First Degree2 and one count of Sodomy in the Third Degree.3 Petitioner was sentenced to nine years of imprisonment, followed by five years of post-release supervision.4

On January 27, 2009,5 petitioner filed the instant Petition, challenging his conviction on the following grounds: (1) the trial court's instruction to the jury on the charge of forcible rape violated petitioner's right to a jury trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; (2) the prosecutor's summation deprived petitioner of a fair trial; (3) ineffective assistance of trial counsel; and (4) petitioner's sentence was harsh and excessive under the Eighth Amendment to the United States Constitution. For the following reasons, the Petition is denied.

II. BACKGROUND

A. The Offending Conduct

1. The Events of August 12, 2003

In early July 2003, "NS"6 met petitioner at a day care center in Manhattan at which they were both employed.7 After becoming acquainted, they had consensual sexual intercourse in early August 2003.8 About one week later, on August 12, 2003, NS accompanied petitioner and a co-worker, Tyrell, to the roof of an apartment building, where petitioner suggested that NS have sexual intercourse with Tyrell. When NS refused, petitioner choked her.9

Subsequently, NS accompanied Tyrell and petitioner downstairs to the apartment of a friend of petitioner's, Charles Hickman.10 NS, thinking that she was going to have sex with petitioner, immediately entered Hickman's bedroom. Once she was there, though, petitioner demanded that she have sex with Tyrell.11 A short time later, Hickman entered the room, and NS had sexual intercourse with him in an effort to gratify petitioner.12

NS, Tyrell, and Hickman then accompanied petitioner to his grandmother's house, where they met petitioner's older brother, Earl Green.13 There, Earl Green demanded that NS perform oral sex on him, and threatened that if she refused, he would "fuck her up."14 NS, frightened, complied. Afterwards, she went home.15

2. The Events of August 13, 2003

The next day, NS went to petitioner's apartment, where she and petitioner had consensual sexual intercourse in petitioner's bedroom.16 Soon after, NS overheard petitioner on the telephone inviting other people over. This made NS angry, because petitioner had promised that they would be alone.17 Petitioner demanded oral sex, but NS refused. Then, petitioner pushed NS off the bed and forced his penis into her mouth. While so engaged, petitioner pressed the dull side of a knife against NS's face and said that he would kill her if she "[told] anybody."18

Afterwards, Hickman entered the bedroom, and petitioner asked NS if she would perform sexual favors on Hickman if Hickman performed oral sex on her.19 NS began crying, because she wanted to go home, and got dressed. Petitioner and Hickman then left the room.20 A few minutes later, two men entered the room: a man later identified as Darmel Cox, and a man identified only by his nickname, "Vad."21

After Cox and Vad arrived, petitioner returned to the bedroom, where NS remained, removed NS's pants, and threatened to throw them out the window if NS did not have sex with Cox and Vad.22 Vad then raped NS. When Vad finished, Cox then raped NS.23 Shortly afterwards, petitioner also raped NS.24 Petitioner then allowed NS to leave, but not before warning her that if she told anyone, he would "do it to [her] all over again."25 NS then put on her clothes and took the subway home.26

Once home, NS falsely told her mother that a man on the subway had forced her back to his apartment at knife-point and raped her there.27 NS's parents took her to the emergency room at Montefiore Hospital, where she repeated her story to police and medical personnel.28 Later that day, police officers told NS that there were video cameras on the subway platform, and NS informed them that petitioner was the one who had raped her.29

B. Procedural History

On April 4, 2005, petitioner was convicted by a jury of three counts of first degree rape and one count of sodomy in the third degree.30 Petitioner, represented by new counsel, appealed his conviction to the Appellate Division, First Department, raising the following claims: (1) the court's instruction to the jury on the first degree rape charge that the "forcible compulsion" element of first degree rape included kidnapping, which was defined, in part, as the confinement of an acquiescent person under the age of 16, deprived petitioner of his right to a jury trial; (2) the prosecutor's comments during summation, bolstering the victim's testimony and asking the jury to picture themselves in her place, deprived petitioner of his right to a fair trial; (3) the petitioner's sentence was excessive and unduly harsh; and (4) the Clerk of Court improperly added a surcharge and fees to petitioner's sentence.

On September 8, 2007, the Appellate Division unanimously affirmed petitioner's conviction.31 The court found that petitioner's claims regarding the court's charge and the prosecutor's summation were unpreserved, and that even if they were preserved, the court would have rejected them on the merits.32 As to the jury instruction, the Appellate Division stated that "[t]he court made it abundantly clear to the jury that defendant was charged with forcible rape, and there is no reasonable possibility that the jury could have been misled into believing that the victim's age satisfied the element of force."33 The Appellate Division also found no basis for reducing petitioner's sentence, and held his claim regarding fees to be unavailing.34 On December 18, 2007, the New York Court of Appeals denied petitioner's motion for leave to appeal.35

III. LEGAL STANDARDS

A. Deferential Standard for Federal Habeas Review

This Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA provides that a federal court may not grant a writ of habeas corpus to a prisoner in custody pursuant to the judgment of a state court with respect to any claim, unless the state court's adjudication on the merits of that claim: "(1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;"36 or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."37

A state-court decision is contrary to clearly established federal law, as determined by the Supreme Court, in the following two instances:

With regard to the "unreasonable application" prong, the Supreme Court has stated:

In order for a federal court to find a state court's application of Supreme Court precedent to be unreasonable, the state court's decision must have been more than incorrect or erroneous. Rather, "[t]he state court's application of clearly established law must be objectively unreasonable."40 This standard "`falls somewhere between merely erroneous and unreasonable to all reasonable jurists.'"41 While the test requires "`[s]ome increment of incorrectness beyond error, . . . 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.'"42 Furthermore, section 2254(d) applies to a defendant's habeas petition even where the state court order does not include an explanation of its reasoning.43

Section 2254(d) also applies where a state court does not explicitly state in its opinion that it is adjudicating a claim on the merits.45 "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."46

The deferential standard of review created by the AEDPA also extends to state-court factual determinations. Such determinations are presumed to be correct, and the burden falls on the petitioner to rebut them by clear and convincing evidence.47

B. Exhaustion Requirement

Section 2254 provides that a habeas petition by a state prisoner may not be granted unless "the applicant has exhausted the remedies available in the courts of the State."48 In order to satisfy this exhaustion requirement, a prisoner must have "`fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts,'"49 either in the form of "explicit constitutional arguments" or simply by "alleging facts that fall `well within the mainstream of constitutional litigation.'"50 Fair presentation of a claim, for exhaustion purposes, includes petitioning for discretionary review in the state's highest appellate court.51

When a habeas petition under the AEDPA contains both exhausted and unexhausted claims, a district court "can offer the petitioner `the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims.'"52 A district court may also deny a petition on the merits, even if it contains an unexhausted claim.53 Finally, in limited circumstances, a district court may stay a mixed petition and hold it in abeyance until it has been properly presented to the state courts.54

C. Procedural Bar

Under the adequate and independent state ground doctrine, if the last state court to render judgment clearly and expressly states that its judgment rests on a state procedural bar, federal habeas review is precluded.55 Even if the state court alternatively rules on the merits of the federal claim, federal habeas review is precluded if an adequate and independent state ground would bar the claim in state court.56 Federal habeas review of procedurally barred claims is foreclosed unless the prisoner can demonstrate either: (1) "`cause for the default and actual prejudice;'" or (2) "`that failure to consider the claims will result in a fundamental miscarriage of justice.'"57 To show cause for a default, a prisoner must put forth some objective factor, external to the defense, explaining why the claim was not previously raised.58 The Supreme Court has provided little guidance as to what constitutes "prejudice," but it can be inferred that prejudice is shown when the claim, if proven, would bear on the petitioner's guilt or punishment.59 The fundamental miscarriage of justice exception to the procedural bar rule is available only upon a showing of actual innocence.60 Finally, a habeas petitioner may not avoid the exhaustion requirement by waiting until federal habeas review to bring claims properly raised in state court. While such claims are technically exhausted, if they would be procedurally barred on the state level, they are deemed exhausted and procedurally defaulted for the purposes of federal habeas review.61

D. Ineffective Assistance of Counsel Under Strickland v. Washington

To succeed on a claim of ineffective assistance of counsel in violation of the Sixth Amendment, a petitioner "must demonstrate (1) that his attorney's performance `fell below an objective standard of reasonableness,' and (2) that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"62 "To satisfy the first prong — the performance prong — the record must demonstrate that `counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'"63 The inquiry under the performance prong is "contextual" and "asks whether defense counsel's actions were objectively reasonable considering all the circumstances."64 "In assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, `viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices."65

In determining what constitutes objective reasonableness, courts look to "`[p]revailing norms of practice as reflected in American Bar Association standards.'"66 Attorney errors that fall below an objective standard of reasonableness "include omissions that cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude, or laziness."67 "`Judicial scrutiny of counsel's performance must be highly deferential,' and `a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'"68 "`The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"69

To satisfy the second prong — the prejudice prong — a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."70 In assessing prejudice, courts review the record to determine the impact of the alleged ineffectiveness within the context of the entire trial.71 In other words, the "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt."72 Finally, a finding of lack of prejudice may precede, or preempt, the quality of representation inquiry. The Supreme Court has stated:

Thus, if a court finds no prejudice, it need not engage in the often thorny inquiry regarding the adequacy of counsel's performance.

IV. DISCUSSION

A. Petitioner's Exhausted Claims

1. The Jury Charge Claim

Petitioner alleges that the trial court's jury instructions violated his constitutional right to a jury trial. Specifically, Petitioner alleges that the court instructed the jury that first-degree rape requires a finding of "forcible compulsion."74 The court further instructed the jury that "forcible compulsion" includes placing a person in imminent fear of kidnapping.75 Finally, the court instructed the jury that kidnapping is defined as confining someone without their consent, either through physical force, intimidation, or deception, or by any means whatsoever, including acquiescence of the victim if the victim is a child less than sixteen years old.76 Petitioner argues that because NS was only fifteen years old at the time of the offending conduct, this instruction was tantamount to a directed verdict, depriving him of his constitutional right to a jury trial.77

The Appellate Division held that this claim was unpreserved.78 New York's contemporaneous objection rule mandates that a challenge to a criminal court's ruling or instruction must be raised through a specific and timely objection in order to be preserved for appeal.79 The rule is an adequate and independent rule of procedure80 that petitioner violated by waiting until his trial was over to raise his objection to the jury charge. Accordingly, the Appellate Division's decision rests on an independent and adequate state ground barring federal habeas review.81

Petitioner does not allege that there is cause for his default,82 nor has he made a factual showing that he is actually innocent.83 Because petitioner cannot satisfy either the cause and prejudice or actual innocence standard, the procedural bar is unexcused. Consequently, there is no need to address whether petitioner's claim raises a valid question of federal constitutional rights, nor is there need to engage in harmless error analysis, although either inquiry would likely supply an independent basis for denying relief. The claim is denied.

2. The Summation Claim

Petitioner also alleges that two statements made by the prosecutor during her summation deprived him of his constitutional right to a fair trial. First, Petitioner alleges that the prosecutor's statement that NS had consistently told the same story at several fora, including the District Attorney's office, improperly injected the prosecutor's personal beliefs about NS's veracity into the record.84 Second, Petitioner alleges that the prosecutor improperly inflamed the jury when she asked the jurors to picture themselves in NS's situation.85

The Appellate Division held that this claim, too, was unpreserved.86 Petitioner acknowledges that he did not move for a mistrial at the close of summations.87 Petitioner did raise a general objection to the prosecutor's statement that NS's testimony was consistent,88 but a general objection is insufficiently specific to comply with New York's contemporaneous objection rule.89 As such, this claim is also procedurally barred. Once more, petitioner does not attempt to show cause and prejudice, nor has he proven his actual innocence. The claim is denied.

B. Petitioner's Unexhausted Claims

1. The Ineffective Assistance of Counsel Claim

Petitioner next brings an ineffective assistance of trial counsel claim. The gravamen of this claim is that petitioner's trial counsel failed to lodge objections to the prosecutor's summation and the trial court's charge to the jury, and further failed to make a motion to dismiss at petitioner's request.90 Two of the three bases for petitioner's Strickland claim rehash grounds for error he presented to the Appellate Division. However, this is the first time he has brought a claim under Strickland. This leads directly to the issue of whether the claim is subject to a state procedural bar. If so, it may be deemed exhausted and procedurally defaulted.91

Under New York law, attacks on a conviction that are based on errors found in the record must be raised on direct appeal, rather than through collateral proceedings.92 Because petitioner's Strickland claim was reviewable based on the trial court record, it should have been raised on direct appeal. Counsel's failure to lodge objections to the prosecution's summation and the jury charge presents a "paradigmatic example of a trial record that plainly establishes the basis for an argument that counsel's performance was deficient and prejudicial," because "[c]ounsel's failure to object is preserved in the trial record. . . ."93 The trial transcript was also sufficiently developed to permit review of petitioner's contention that his counsel failed to make a motion to dismiss: the transcript shows that counsel made a motion to dismiss at the close of the evidence.94

Petitioner brought an appeal as of right, and his petition for discretionary review by the New York Court of Appeals was denied.95 New York does not permit collateral attack on a criminal conviction which the defendant unjustifiably failed to challenge on direct appeal. Petitioner's Strickland claim is therefore subject to an adequate and independent state procedural bar, and, as a consequence, I deem it to be exhausted and procedurally defaulted for the purposes of federal habeas review.96

The holding of Massaro v. United States is not to the contrary.97 In Massaro, the Supreme Court held that, for the purposes of a habeas petition under section 2255, the failure to raise an ineffective assistance of counsel claim on direct appeal does not give rise to a procedural default.98 As the Second Circuit has recognized, Massaro's holding was limited to proceedings initiated under section 2255.99 Comity and federalism, as well as the explicit exhaustion requirement found in section 2254, mandate the result that for the purposes of section 2254 proceedings, a petitioner may not side-step the state judicial system by waiting until his day in federal court to claim ineffective assistance of counsel.100

The remaining question is whether petitioner can meet either the cause and prejudice or the actual innocence standard with respect to this claim. Once more, petitioner has not made any allegations explaining the cause for his default. No objective, external factor prevented petitioner from raising his ineffective assistance claim on direct appeal. Petitioner was represented by counsel during his direct appeal, which negates the likelihood that ineffective appellate counsel caused the default of petitioner's ineffective trial counsel claim.101 Appellate counsel's inadvertence in failing to raise an ineffective assistance of trial counsel claim does not constitute cause,102 and petitioner offers no evidence of inadvertence. Indeed, it appears that petitioner is seeking to bypass the state judicial process by repackaging his state appeal as an ineffective assistance of counsel claim. Exhaustion and procedural default, which have replaced the deliberate bypass rule of Fay v. Noia,103 were designed to prevent precisely this sort of maneuver. Because petitioner has offered no evidence of actual innocence, he is likewise not entitled to the fundamental miscarriage of justice exception to the procedural bar.104 Petitioner's procedural default on this claim is therefore not excused, and the claim is denied.

2. The Eighth Amendment Claim

Petitioner's final claim is that his sentence is excessive under the Eighth Amendment. Because this claim was never presented to the state courts, it is unexhausted. But because no state forum remains for this claim, is deemed exhausted and procedurally barred. However, in the interests of judicial economy, I will dispose of this claim on the merits.105 "[I]t is well settled that `[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.'"106 Petitioner's sentence is well within the range prescribed by state law.107 Therefore, his Eighth Amendment claim is denied.

V. CONCLUSION

For the foregoing reasons, the Petition is denied. The remaining issue is whether to grant a certificate of appealability ("COA"). For a COA to issue, a petitioner must make a "substantial showing of the denial of a constitutional right."108 A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that reasonable jurists could disagree as to whether "the petition should have been resolved in a different manner or [whether] the issues presented were `adequate to deserve encouragement to proceed further.'"109 Petitioner has made no such showing. Accordingly, I decline to grant a COA. The Clerk of the Court is directed to close this case.

SO ORDERED.