text: On 7/29/07, Scott Kitterman <ubuntu at kitterman.com> wrote: > I was recently subscribed to the debian-mentors mail list (working on getting > a package uploaded to Debian) and discovered that the author of the Debian > Mentors system is getting ready to overhaul that system. > > That got me thinking... > > Why do REVU an mentors need to be separate? A couple thoughts: 1. For a new Ubuntu contributor Debian can be a quite intimidating. I remember being quite confused trying to figure out *both* Ubuntu and Debian while doing my first package from scratch. Of course this is also a big reason to "combine forces" between REVU and debian-mentors, *if* it can be pulled off. 2. There are social differences between Ubuntu and Debian as well as just the technical ones. It's sometimes easier to maintain our own system. We'd need to get by-in from DDs and the current debian-mentors maintainers. For instance, who should be allowed to review/sponsor? Most MOTUs are not DDs and vice-versa so I can imagine there would be quite a bit we'd need to work out. > Except for versioning and release, with minor exceptions (like the freeness of > GFDL) packages can be made identical for both Debian and Ubuntu. There is also the issue of native Ubuntu packages. I imagine Debian isn't much interested in Ubuntu-specific stuff so we still need to deal with those. > I could see up pooling resources on reviewing new packages and if a MOTU > thought a package was ready to upload, then they could upload it and if a DD > thought a package was ready, they could sponsor it. We'd have to deal with > version/release, but I'd imagine it could be programmed in. This is a really interesting suggestion, in fact I don't know why it hasn't been suggested before. Perhaps because it would take a large amount of Debian/Ubuntu cooperation and we tend to separate packages into Debian packages and Ubuntu packages. It also seems to me that quite a number of contributors to REVU don't really want to deal with Debian, as it is more work for a distro they don't use. I personally tend to think that with our resources we are better off really encouraging people to put their packages through Debian unless it is Ubuntu-specific. I found debian-mentors to be very helpful and getting a package into Debian fairly easy, once I figured out how things worked. I think working on "How does an Ubuntu user/contributor get their package into Debian?" would benefit MOTU/Universe. Also figuring out how to get Debian to "take on" packages created by Ubuntu users. I know several cases where a contributor wanted to get the package into Ubuntu rather than Debian because they didn't want to be the Debian maintainer. -Jordan


text:
Katrina Kaif will be one of the few actors to have worked with the three superstar Khans soon. The year that has just begun, will see the actress as the leading lady, first in 'Ek Tha Tiger' with Salman Khan, then with Shah Rukh Khan in a romantic film to be directed by Yash Chopra followed by 'Dhoom 3' with Aamir Khan.
And the year already has started on a good note for Chikni Chameli as the item song is creating a buzz. "I am happy that the audience has liked the song, and all that rigorous hard work has come to use! It's a good start I must say."
Talking about working with all the three Khans, she says, "I got my first hit with Salman and have worked with him in four movies, including 'Ek Tha Tiger'. He is a very dear friend and working with him is always fun. He keeps everyone on the sets happy with his pranks and jokes. Also I am close to his family as they have been a great source of support." Ask her about Salman praising her dance moves in Chikni Chameli and she reacts, "Oh really! That's great but I wonder why he didn't tell me this himself, I would love to get feedback on my performances from someone like him who knows a lot about audience choice and preferences. Nevertheless I am happy he liked it."
She further continues, "As far as me working with Shah Rukh, I am happy that I got this opportunity because I have always wanted to work with him. And being paired with him in a romantic film by legendary director Yash Chopra is like too good to be true. Shah Rukh is known for his romantic roles and Chopra has directed him earlier, so they know each other's working style pretty well, hence I will have to be very quick to study it. I am looking forward to it."
Katrina will be working for the first time with Aamir as well. They will be seen in 'Dhoom 3' for which Kat is heard to be undergoing rigorous training. "I will be working with Aamir for the first time too and I am super-excited about it. He is known to be a perfectionist and I look forward to learning a lot from him. Also 'Dhoom' as a franchise, is known for its look and feel along with great stunts and bikes. And I like adventure and speed so it should be fun working on it," she adds.
Source: Prachi Kadam, DNA-Daily News & Analysis

subset: commoncrawl


text:
Phone: (289) 320-8250
1238 Dominion Road
Fort Erie, Ontario, L2A 1H7
To view our complete product offer in your area, we suggest you select this RONA.
At anytime you can select another RONA store or a RONA L'Entrepôt/ Home & Garden. The product selection listed will match the selected store.
Terrace Park Outdoor Propane Fireplace-50000 BTUEnjoy the ambience of a backyard fire safely on your patio or deck with the Bond Terrace Park Outdoor Propane Fireplace. This outdoor fireplace provides 50,000 BTUs of heat, making it great for entertaining during those cooler evenings. Made of steel for durability, this backyard fireplace uses a 20-pound propane tank (not included) and includes lava rocks.
Ecological Attributes
Environmental Issues
This product is eco-responsible because it reduces the impacts associated with the following environmental issues:
Click on the icons
to see why this product is eco-responsible
There are no significant environmental benefits at this stage in the life cycle.
There are no significant environmental benefits at this stage in the life cycle.
1238 Dominion Road, Fort Erie,
Ontario, L2A 1H7
Need help? Call us at
© RONA 2016, All Rights Reserved


text:
Hi everyone
Ad blocker interference detected!
Wikia is a free-to-use site that makes money from advertising. We have a modified experience for viewers using ad blockers
Wikia is not accessible if you've made further modifications. Remove the custom ad blocker rule(s) and the page will load as expected.
HI everyone as you can tell i'm new to this wiki but i've been watching for a while and decided to join because everyone was saying this site was dieing down and i wanted to see if i could help bring some new life to it. thanks


text:
Home /
Our Sources / About Us
/ FAQs /
Advanced Search
Not what you're
looking for? Try an advanced search.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
February 21, 2006
PAUL ALEXANDER PETITIONER,v.WILLIAM E. PHILLIPS, RESPONDENT.
I. Introduction
Petitioner Paul Alexander ("Alexander") brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction on one count of Murder in the Second Degree (New York Penal Law § 125.25[1]) and one count of Attempted Murder in the Second Degree (Id. §§ 110, 125.25[1]) following a jury trial in Supreme Court, Bronx County. (See Pet. ¶¶ 1, 4, 6; Aff. of Ass't District Att'y Melissa R. DiPalo, dated Apr. 2, 2003 ("DiPalo Aff."), ¶ 4). On May 12, 1997, Justice John S. Moore, before whom the case was tried, sentenced Alexander on these charges, respectively, to consecutive indeterminate sentences of twenty-five years to life and eight and one-third to twenty-five years. (S. 16-17).*fn1 Alexander initially filed his petition pro se. (See Pet. at 7). Thereafter, on July 19, 2004, Laura M. Miranda, Esq., advised the Court that she had been retained by Alexander's family to represent him in connection with this proceeding. (See Docket No. 13). Ms. Miranda then filed supplemental papers on Alexander's behalf on November 9, 2004. (See Docket No. 15). In his petition, as supplemented, Alexander contends that (a) the photo array used to identify him was unduly suggestive and tainted a subsequent lineup identification, (b) his sentence was excessive and constituted an abuse of discretion, (c) the prosecutor failed to give him notice that his case was being presented to the grand jury, (d) portions of the prosecutor's summation at trial were improper, and (e) his trial counsel was ineffective for various reasons.
For the reasons that follow, Alexander's petition should be denied. Additionally, because Alexander has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
II. Background
A. Wade Hearing
Alexander's conviction was secured after a prior trial in 1996
resulted in a mistrial. (See DiPalo Aff. Ex. 2 at 3 n.1; Docket No.
7).*fn2 Before that trial, Justice Robert
L. Cohen conducted a Wade hearing on November 20, 1996.*fn3
(See Docket No. 5).
The sole witness at the hearing was Detective Ronald Pereira ("Pereira"), who testified that he was assigned to investigate the shooting death of Alexander's estranged wife, Jacqueline Alexander ("Jacqueline"), on December 27, 1992. (W. 3-4). On that date, he interviewed Vanessa Morris ("Morris") and Carl Graham ("Graham"), the only witnesses to the crime. (Id. at 4-5). Morris witnessed the incident, but did not indicate that she had seen the face of the person who shot Jacqueline. (Id. at 11). Graham, on the other hand, said he could identify the shooter. (Id.).
Because Pereira did not have a suitable photograph of Alexander at the outset of his investigation, he first was able to show Graham a six-picture photo array on January 21, 1993. (Id. at 6, 15). Pereira testified that Graham viewed the array in the squad room at the 43rd Precinct. (Id. at 5). At that time, Pereira explained to Graham that he was going to show him a photo array from which he should try to identify the photograph of the person who shot Jacqueline. (Id. at 6). While Pereira did not remember the details of Graham's identification, it was his usual procedure to have the person making the identification write the date, time and photo selected on the back of the original photo array. (Id. at 16-17). Only a copy of the photo array was available at the Wade hearing, however, because Pereira and his colleagues had been unable to locate the original despite diligent efforts.*fn4 (Id. at 6-7, 19-20).
At the time Graham was shown the photo array, Alexander's whereabouts were unknown. (Id. at 11). After an investigation which included the display of his picture on the television show "America's Most Wanted," Alexander eventually was apprehended. (Id.). Graham then identified Alexander again during a lineup identification on October 25, 1995, at the Bronx District Attorney's Office. (Id. at 9-10).
On cross-examination, Pereira testified that Graham had at first described the perpetrator to him as a "male black, approximately five-eight, 27 years old, [one] hundred and sixty-five pounds, light skin [and wearing] a black ski hat, a black ski mask that covered the mouth and nose, and a black leather jacket with black boots." (Id. at 14). Graham evidently did not provide Pereira with the name of the shooter at that time. (Id. at 21-22). Pereira testified, however, that a complaint report taken by another officer prior to the photo array contained a more detailed description in which Graham described the perpetrator as having "facial hair" and a "mustache and beard or goatee," and identified him by name. (Id. at 22-23).
At the conclusion of the hearing, Alexander's attorney, Edward Dudley, Esq., conceded that lineups at the District Attorney's Office usually are "much fairer" than those conducted at the precinct. (Id. at 33). He nevertheless urged the court to direct that Graham be produced to be questioned regarding the photo array, and what, if anything, he had written on the back. (Id. at 34). As Mr. Dudley explained, he was concerned that "something" might have "happened before [the lineup] that could have added [to] or influenced the witness at the lineup." (Id. at 33). He noted that this was a particular concern because the police had lost "the most critical piece of evidence in the case" before the defense had an opportunity to inspect it. (Id.).
Justice Cohen denied the request that Graham be produced for questioning, finding that there was no evidence of suggestiveness in the lineup identification procedures. (Id. at 40). Additionally, the Justice found that any suggestiveness in the photo array was, as a matter of law, sufficiently attenuated by the untainted lineup more than two years later. (Id.). For these reasons, Alexander's motion to suppress Graham's identification was denied. (Id. at 40-41).
B. Trial
1. People's Case
The People's proof at trial would have permitted a reasonable juror to find as follows:
Jacqueline and Paul Alexander were married and lived together for approximately seven or eight years before they separated in 1990. (T. 204). After they separated, Jacqueline went to live in a women's shelter with their two children. (Id. at 204-05). Between the time of their separation and the morning of December 27, 1992, Jacqueline had filed for both a divorce and an order of protection against Alexander. (Id. at 205). Jacqueline and the children eventually moved to an apartment at 1725 Bruckner Boulevard in the Bronx, where she resided until the date of her death. (Id. at 206).
On December 24, 1992, Alexander told his relative, Brian Giddings, that he thought Jacqueline was "cheating" on him. (Id. at 84-85). Two days later, on December 26, 1992, Alexander went to Jacqueline's apartment to visit his children. (Id. at 207). At around 6:00 or 6:30 p.m., Graham, who was a friend of Jacqueline's, arrived at the apartment. (Id. at 232-34). After Jacqueline told Graham that Alexander was in the bedroom, Graham left, stating that he "felt uncomfortable." (Id. at 234-35). Around 8:30 or 9:00 p.m., several other people, including Morris, who was Jacqueline's cousin, entered Jacqueline's apartment while Alexander was still there. (Id. at 206-07). Later that same evening, after Alexander had left, Graham returned to the apartment. (See id. at 210, 235). The only other people in the apartment at that time were Jacqueline, Morris, and the children. (Id. at 235). Although the adults had planned to go to a party that night, everyone remained in the apartment. (Id. at 211). Graham slept in the bedroom with Jacqueline, while Morris slept on the couch in the living room. (Id. at 221-22, 269).
Between 5:00 and 6:15 a.m. on the morning of December 27th, Morris, Graham and Jacqueline had a conversation on the living room couch, before Jacqueline proceeded to walk Graham to the door. (Id. at 211-12, 236). After Graham unlocked the door, a man later identified by Graham as Alexander pushed open the door. (Id. at 236). Alexander was wearing a black ski hat, a black ski mask covering his mouth and nose, a black leather jacket, and black boots. (Id. at 140, 238). Despite this garb, Alexander's forehead and some of his facial hair were visible. (Id. at 238). Alexander put a gun to Graham's head and pulled the trigger, but the gun did not discharge. (Id. at 236).
Jacqueline then said "Paul, no. Paul, no. Whatever you're going to do, do it to me." (Id. at 212; see also id. at 236). In response, Alexander pressed the gun tightly to Jacqueline's forehead and pulled the trigger, fatally wounding her. (Id. at 73-74, 239). After the gunshot, Morris ran into the children's bedroom, where she remained until the incident was over. (Id. at 212).
During a subsequent struggle for the gun, Graham threw Alexander into the hallway and ran down the stairs. (Id. at 239). As Graham was heading toward the stairs, he looked back at Alexander, whose mask had come off, and was able to see his face for about fifteen or twenty seconds. (Id. at 241-42, 247-48). Graham then ran to the police station, where he remained for the rest of the day. (Id. at 237).
In his initial interview, Graham did not tell the police that he had seen the shooter's face because he was scared that he would be "further involved in the situation." (Id. at 242-43). Nevertheless, Graham described the shooter as being approximately five feet eight inches tall, one hundred and sixty-five pounds in weight, light-skinned, and twenty-seven years old. (Id. at 140, 315). A few weeks later, Graham had a change of heart and admitted to the police that he had seen the shooter's face. (Id. at 118-19, 146-47, 302-03). Graham later identified Alexander as the shooter from the photo array on January 21, 1993, during the lineup in October 1995, and in open court. (Id. at 119-20, 245, 248).
2. Defense Case
The only evidence adduced by Alexander as part of the defense case consisted of a question and answer from the testimony at Alexander's first trial. During that testimony, Graham claimed, contrary to his testimony at the second trial, that his failure to tell the police during his first interview that the shooter's mask had come off was inadvertent. (Id. at 327-28).
3. Conviction and Sentencing
On April 22, 1997, after approximately one day of deliberations, the jury found Alexander guilty of both charges. (See id. at 450, 460, 482). At the sentencing, which took place on May 12, 1997, Dudley noted that his client still denied his guilt, but argued that if he did commit the crime, it was a "crime of passion," for which his sentences should run concurrently. (S. 12). Justice Moore rejected this assertion, observing that Alexander had engaged in an "ongoing, escalating level of violence directed toward the deceased," rather than "an isolated incident that occurred under the stress of emotion." (Id. at 15). He therefore sentenced Alexander to consecutive prison sentences of twenty-five years to life on the murder charge and eight and one-third to twenty-five years on the attempted murder charge. (Id. at 16-17).
C. Procedural History
1. Direct Appeal
In September 1999, the Legal Aid Society filed an appellate brief on behalf of Alexander, in which it claimed that (a) the prosecution did not prove its case beyond a reasonable doubt; (b) the trial court erroneously failed to suppress the lineup identification, which was the result of an unduly suggestive photo array identification; and (c) Alexander's sentences were unduly harsh and should be reduced to run concurrently. (Ex. 1 at 1-2). On March 21, 2000, the Appellate Division rejected those claims and unanimously affirmed the judgment of conviction. People v. Alexander, 706 N.Y.S.2d 311 (1st Dep't 2000). The court held that Alexander's claim that the photo array was unduly suggestive because Alexander appeared to be the only light-skinned man was not preserved for appellate review because it was not raised during the Wade hearing. (Id.). The court also noted that if it were to reach the merits of that unexhausted claim, it would find that the two-year gap between the photo identification and the lineup was "sufficient to attenuate any possible suggestiveness." Id. Finally, the court found that the verdict was based on legally sufficient evidence and was not against the weight of the evidence, and that the trial court did not abuse its sentencing discretion. Id.
By letter dated March 24, 2000, Alexander's counsel sought leave to appeal to the New York Court of Appeals on the basis of all three issues raised before the Appellate Division. (Ex. 4). That application was denied on April 25, 2000. People v. Alexander, 94 N.Y.2d 945 (2000).
2. Motion to Vacate
On April 27, 2001, Alexander filed a pro se motion to vacate his judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law ("CPL"). (Ex. 6). Alexander raised three grounds for relief: (a) the prosecutor's failure to give him notice that his case was being presented to the grand jury; (b) the prosecutor's false inflammatory statements in summation; and (c) ineffective assistance of counsel. (Id. at 8-9). With respect to the last of these claims, Alexander complained that his trial counsel had (a) failed to move for dismissal of the indictment despite the prosecutor's failure to give Alexander notice that his case was being presented to the grand jury; (b) failed to move to reduce the murder charge to Manslaughter in the Second Degree although the grand jury evidence showed that the shooting was inadvertent; (c) waived Alexander's right to testify before the grand jury as a result of his alleged failure to conduct an adequate interview of Alexander; (d) failed to move for dismissal of the attempted murder charge or its reduction to Menacing in the Second Degree or Reckless Endangerment in the First Degree because the evidence did not corroborate the complainant's allegation that the gun had jammed; (e) with respect to the photo array, failed to (i) object to it as unduly suggestive on the ground that Alexander's photograph was the only one of a light-skinned man, (ii) object to the use of a photocopy, (iii) request reconstruction of the original, or (iv) request further particulars regarding the fillers and the complaint report containing Graham's description of the perpetrator; and (f) improperly stipulated that Jacqueline (i) had an order of protection against Alexander, (ii) lived in a women's shelter, and (iii) had filed for divorce. (Id. at 8-9).
By order dated April 5, 2002, Justice Moore denied Alexander's motion to vacate the judgment. (Ex. 8). The Justice held that Alexander was not entitled to notice of the presentment of his case to the grand jury under Section 190.50 of the CPL and that even if a violation of that statute had occurred, Alexander waived his claim by failing to file a timely motion to dismiss the indictment. (Id. at 11). The Justice also held that a violation of Section 190.50 does not give rise to a constitutional claim. (Id.). The Justice also noted that Alexander's criticisms of the prosecutor's summation remarks were "inappropriate," "belied by the record," and precluded from review because of his failure to raise them on direct appeal. (Id. at 12-13).
Finally, the Justice found that Alexander was not denied the effective assistance of trial counsel. (Id. at 15). The court noted that Alexander's trial counsel made the appropriate pretrial motions by seeking to inspect the grand jury minutes, dismiss the indictment, suppress the pretrial and in-court identifications, and compel the production of all exculpatory materials and relevant police reports and notes. (Id.). Moreover, the court found that at both trials counsel made effective opening statements and appropriate motions and applications, vigorously cross-examined the prosecution's witnesses, raised appropriate objections, and gave effective closing statements. (Id. at 16). The court also noted that it had inspected the grand jury minutes and determined that the evidence was sufficient to support the charges in the indictments; consequently, counsel's failure to move for their reduction did not constitute ineffective assistance of counsel. (Id.).
On May 24, 2002, Alexander filed an application pursuant to Section 460.15 of the CPL seeking leave to appeal to the Appellate Division from the denial of his motion to vacate the judgment of conviction. (Ex. 9). The Appellate Division denied that application on July 18, 2002. (Ex. 11).
3. This Proceeding
Alexander's habeas petition is dated September 11, 2002, and was received by the Pro Se Office of this Court on September 16, 2002. (See Docket No. 1 at 1, 7). In his petition, Alexander raises as grounds for relief the trial court's failure to suppress a suggestive identification, "abusive sentencing," the lack of notice that his case was being presented to the grand jury, improper statements by the prosecutor during summation, and ineffective assistance of trial counsel. (Pet. ¶¶ 12(A)-(E)). The bases for Alexander's ineffective assistance of counsel claim are the same as those asserted in his prior motion to vacate the judgment of conviction.
On August 11, 2004, Your Honor granted Ms. Miranda's request that the Court reserve decision on Alexander's petition until November 1, 2004, so that she could submit supplemental materials on his behalf. (See Docket No. 13). Thereafter, I extended that deadline until November 8, 2004. (Docket No. 14)
On November 9, 2004, Ms. Miranda filed an affidavit and memorandum of law in further support of Alexander's petition. (See Docket No. 15). The memorandum addressed all of the issues previously raised pro se by Alexander other than his lack of notice of the grand jury proceedings and the alleged prosecutorial misconduct in summation. (See id.). Counsel has also asserted that Alexander's trial attorney was ineffective because he failed to provide the sentencing court with background information about Alexander at the time of sentencing. (Id. (Pet'r's Mem. at 9)).
III. Discussion
A. Limitations Period
Under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), an inmate generally must file a federal habeas corpus petition within one year after the date that his conviction becomes final or the facts giving rise to his claim could have been discovered. 28 U.S.C. § 2244(d)(1).*fn5 In Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001), the Second Circuit held that the one-year AEDPA limitations period does not begin to run until certiorari proceedings have been completed "or -- if the prisoner elects not to file a petition for certiorari -- the time to seek direct review via certiorari has expired." Thus, the one-year limitations period for a prisoner who did not seek certiorari in the Supreme Court begins to run ninety days after direct review by the state courts is completed. See S. Ct. R. 13(1).
This one-year limitations period is also subject to the following tolling provision:
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 toward any period of limitation under this subsection. 28 U.S.C. § 2244(d)(2).
The Respondent incorrectly contends that Alexander's conviction became final on April 25, 2000, when the Court of Appeals denied his application for leave to appeal. (See Resp't's Mem. at 4). In fact, because Alexander did not seek a writ of certiorari from the United States Supreme Court, his conviction first became final ninety days later, on July 24, 2000. See Williams, 237 F.3d at 150-51. Under Section 2244(d)(1), Alexander then had one year, or until July 24, 2001, to file his petition. This period, however, was tolled by the filing of his Section 440.10 motion on April 27, 2001.
At that time, Alexander still had 88 days left in which to file his habeas petition.*fn6 The running of the statute of limitations thereafter was tolled, pursuant to 28 U.S.C. § 2244(d)(2), until July 18, 2002, when the Appellate Division denied Alexander's application for leave to appeal from the denial of his Section 440.10 motion. (Exs. 8, 11). At that point, Alexander had 88 days, i.e., until October 14, 2001, to file a timely petition, a deadline that he met by submitting his petition to the Pro Se Office of the Court by September 16, 2002. (Docket No. 1).
B. Exhaustion
Even if a petition is timely, a court may not grant a writ of habeas corpus unless it appears that the petitioner has exhausted all available state court remedies, or there is an absence of state corrective process, or circumstances render that process ineffective to protect the petitioner's rights. See 28 U.S.C. §§ 2254(b)(1)(A), (B). As a defendant charged with crimes in New York State, Alexander unquestionably had an effective process available to him through the existing state statutes governing appeals in criminal cases. See N.Y. Crim. Proc. Law § 450.10 (McKinney 1994). Therefore, to satisfy the exhaustion requirement with respect to a particular federal claim, Alexander must show that he presented the substance of "the same federal constitutional claim[] that he now urges upon the federal courts to the highest court in the . . . state." Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001) (internal citations and quotation marks omitted).
"A federal constitutional claim has not been fairly presented to the [s]tate courts unless the petitioner has informed those courts of 'all of the essential factual allegations' and 'essentially the same legal doctrine he asserts in his federal petition.'" Strogov v. Att'y Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982)). To meet this requirement, it is not necessary that the federal constitutional claim be presented to the state courts in haec verba. Indeed, there are a number of ways in which the claim may be presented, including:
[1] reliance on pertinent federal cases employing constitutional analysis, [2] reliance on state cases employing constitutional analysis in like fact situations, [3] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and [4] allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194.
The Respondent contends that Alexander's sentencing claim is barred from federal review because Alexander failed to present it as a federal claim. (See Resp't's Mem. at 12-15). In his direct appeal, Alexander argued that his sentences should have been modified in the interests of justice to run concurrently, but he relied exclusively on state law cases which made no reference to the United States Constitution. (See Ex. 1 at 22-23). Moreover, there was nothing in his brief to suggest that he was seeking to invoke a federal constitutional right. (Id.). Accordingly, because Alexander failed to assert a federal constitutional violation in state court, his abusive sentencing claim is not properly exhausted. See Daye, 696 F.2d at 194.
C. Procedural Default
Even when a petitioner presents a colorable constitutional claim, a federal court is precluded from reviewing a claim raised in a petition for a writ of habeas corpus if the judgment of the last state court to hear that claim was based on a procedural default, unless the petitioner can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996); accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).
A procedural default in state court will bar federal habeas review only if "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (internal quotations omitted); accord Fama, 235 F.3d at 809. When the state court makes such an unambiguous statement, the petitioner is barred from seeking habeas relief even though the state court has ruled in the alternative on the merits of his federal claim. Glenn, 98 F.3d at 724 (quoting Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)). In determining whether a claim may be heard, courts "apply a presumption against finding a state procedural bar and 'ask not what we think the state court actually might have intended but whether the state court plainly stated its intention.'" Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) (quoting Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000)). However, when the last court to issue a reasoned decision relies on a state procedural bar, the court will presume that subsequent decisions rejecting the claim without discussion relied on the bar and did not silently consider the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
In this case, the Appellate Division stated that its judgment denying Alexander's appeal was based, in part, on his counsel's failure to preserve his claim that the photo array was suggestive because Alexander was the only light-skinned man. Alexander, 706 N.Y.S.2d at 311. The court also explicitly stated that it declined to review this claim in the interest of justice, but that even if it were to review the claim, it would not find the photo array unduly suggestive. Id.
Similarly, in his decision on Alexander's Section 440.10 motion, Justice Moore concluded that Alexander's claim that he was entitled to notice that his case was being presented to the grand jury was meritless, but also held that it was procedurally barred because Alexander had failed to move for the dismissal of the indictment on that ground. (Ex. 8 at 11-12). The Justice also found that Alexander's failure to raise the issue of the prosecutor's summation as part of his direct appeal precluded the court from addressing it on collateral review. (Id. at 13).
The state court's express reliance on such procedural failures constitutes an adequate and independent state ground for the denial of those claims. See Harris, 489 U.S. at 265 n.12; Glenn, 98 F.3d at 724-25; Harris v. Artuz, No. 99 Civ. 11229 (DLC), 2001 WL 435636, at *5 (S.D.N.Y. Apr. 30, 2001). Accordingly, this Court cannot consider these three claims unless Alexander can show both cause for the default and actual prejudice or that the failure to consider his claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.
To demonstrate cause, a petitioner must adduce "some objective factor external to the defense" which explains why he did not raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488 (1986); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray). The circumstances which may constitute cause include:
(1) interference by government officials making compliance impracticable; (2) situations in which the factual or legal basis for a claim was not reasonably available to counsel; and
(3) ineffective assistance of counsel. See Murray, 477 U.S. at 488; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray). A showing of prejudice requires a petitioner to demonstrate that the failure to raise the claim previously had a substantial injurious effect on his case such that he was denied fundamental fairness. Reyes v. New York, No. 99 Civ. 3268 (SAS), 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999). Finally to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is "actually innocent." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
Alexander has not made any of the showings necessary to overcome his procedural default. Although Alexander attributes several of his procedural defaults to the ineffectiveness of his trial counsel, he cannot show prejudice because, as discussed below, his claims are without merit. Furthermore, although Alexander's counsel alleges that a failure to consider Alexander's claims on the merits would itself constitute a fundamental miscarriage of justice, she has made no effort to demonstrate that he is actually innocent. (See Pet'r's Mem. at 9, 12 n.2).
D. Merits
Although a federal court obviously need only address claims which are exhausted and not procedurally barred, it is understandable that an inmate serving a sentence as long as the one imposed on Alexander would want the merits of his claims to be reached. Moreover, there is always the possibility (however remote) that another court could reach a different conclusion concerning the threshold issues of exhaustion and procedural forfeiture. For these reasons, I have considered the merits of all of Alexander's claims. As shown below, none warrant habeas relief.
1. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Rather, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1) (emphasis added).
As the Second Circuit noted in Jones, the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" Jones, 229 F.3d at 119. "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that reasonable jurists would all agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Jones, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).
Section 2254(d)(2) also authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. at 389.
2. Suggestive Identification
Alexander first claims that the photo array shown to Graham on January 21, 1993, at the 43rd Precinct was suggestive because it appears from a photocopy that he was the only light-skinned person in the array. (Pet. ¶ 12(A)). To prevail on that claim, Alexander must establish that the pretrial identification procedures were so suggestive that they created "a very substantial likelihood of irreparable misidentification." United States v. Mohammed, 27 F.3d 815, 821 (2d Cir. 1994) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). However, the focus of the inquiry is on the possibility of misidentification, rather than police conduct, because a suggestive procedure "does not in itself intrude upon a constitutionally protected interest." Wray v. Johnson, 202 F.3d 515, 524 (2d Cir. 2000) (quoting Manson v. Brathwaite, 432 U.S. 98, 113 n.13 (1977)). Thus, "even a suggestive out-of-court identification will be admissible if, when viewed in the totality of the circumstances, it possesses sufficient indicia of reliability." Mohammed, 27 F.3d at 821 (quoting United States v. Simmons, 923 F.2d 934, 950 (2d Cir. 1991)); see also Brathwaite, 432 U.S. at 114 ("reliability is the linchpin in determining the admissibility of identification testimony").
When the police employ a suggestive identification procedure, the factors that should be considered to determine the likelihood of a misidentification include "[(a)] the opportunity of the witness to view the criminal at the time of the crime, [(b)] the witness' degree of attention, [(c)] the accuracy of the witness' prior description of the criminal, [(d)] the level of certainty demonstrated by the witness at the confrontation, and [(e)] the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200 (1972). "A good or poor rating with respect to any one of these factors will generally not be dispositive . . . . In each case, the factors must be assessed in light of the totality of the circumstances." United States v. Concepcion, 983 F.2d 369, 377-78 (2d Cir. 1992).
Here, Graham had an opportunity to view Alexander's partially obscured face while they were in the apartment. He had a further opportunity to view Alexander's face after his mask came off in the hall. Graham also gave two accurate descriptions of Alexander before he was shown the photo array. Additionally, the photo identification took place less than one month after the shooting, and there is no indication that Graham ever expressed any uncertainty concerning the accuracy of his identification. Given these circumstances, there is no reason to question Justice Moore's decision finding the identification to be reliable.
Nor is there any reason to believe that the identification procedures
were unduly suggestive. In determining the suggestiveness of a photo
array, the relevant question is "whether the picture of the accused,
matching descriptions given by the witness, so stood out from all of
the other photographs as to 'suggest to an identifying witness that
that person was more likely to be the culprit.'" Jarrett v. Headly,
802 F.2d 34, 41 (2d Cir. 1986) (quoting United States v. Archibald,
734 F.2d 938, 940 (2d Cir. 1984)). Here, the original photographic
array has been missing since before the Wade hearing, and the Court
unfortunately is left with a third-generation copy which presumably
does not even come close to reflecting the actual photo array. (See
Pet'r's Section 440 Mot. Ex. G (photocopy of array)).*fn7
While it is true that the photocopy appears to show that
Alexander is the only light-skinned man in the array, it is impossible
to tell whether this was a characteristic of the original array, or if
it is simply the result of repeated photocopying. As such, this Court
does not have any basis upon which it could
conclude that the state courts' finding that the photo array was not
unduly suggestive is clearly erroneous.*fn8
Alexander consequently is not entitled to habeas relief on this ground. In any event, even if the photo array had been shown to be unduly suggestive, it is undisputed that a lineup identification took place two years later. Moreover, Justice Moore found that the lineup was "untainted." (W. 40). In these circumstances, Alexander cannot show, as he must, that the photo array created a substantial likelihood of irreparable misidentification, which rendered the state court decisions unreasonable.
3. Excessive Sentence
Alexander also claims that the sentence imposed on him by Justice Moore is excessive and violated his Eighth Amendment rights. (Pet. ¶ 12(B); Pet'r's Mem. at 11). He argues that the imposition of consecutive maximum sentences was an abuse of the trial court's sentencing discretion since he had no prior felony record and the crimes were "isolated acts of violence committed under extreme emotional pressure." (Pet. ¶ 12(B)). Alexander further argues that the trial court's sentencing decision was improperly based on information outside the record -- namely that Alexander's obsessive behavior had escalated over time, eventually leading to Jacqueline's death. (Pet'r's Mem. at 11).
As noted previously, this claim is unexhausted because it was not presented to the state courts in constitutional terms. Even if the claim were properly before this Court, however, it would have to be denied on the merits. Alexander was convicted of Murder in the Second Degree, a Class A-1 felony, for which the maximum sentence is twenty-five years to life, and Attempted Murder in the Second Degree, a Class B felony, for which the maximum sentence is eight and one-third to twenty-five years. New York Penal Law §§ 70.00(2), (3), 110, 125.25 (McKinney 2004). Since Alexander's sentences were within these ranges, his claim does not present a federal constitutional issue cognizable on habeas review. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citing Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff'd mem., 875 F.2d 857 (2d Cir. 1989)); Robles v. Senkowski, No. 97 Civ. 2798 (MGC), 2002 WL 441153, at *10 (S.D.N.Y. Mar. 21, 2002) (citing White).
Alexander also argues that the trial court abused its sentencing discretion by relying on information "tha[t] does not appear on the record." (Pet'r's Mem. at 12). Alexander bases this contention on Justice Moore's statement at the sentencing that Alexander's acts appeared to be part of an "ongoing, escalating level of violence directed toward the deceased." (S. 15). Alexander contends the court had no basis for this conclusion other than the existence of the order of protection that Jacqueline had obtained. (Pet'r's Mem. at 11).
In order to successfully challenge his sentence on this ground, Alexander would have to show that the sentencing court's decision amounted to an arbitrary and capricious abuse of discretion or that there was an error in the law which resulted in the court's improper exercise of its discretion. Odom v. Duncan, No. 99 Civ. 9088 (MBM), 2005 WL 3288140, at *1 (S.D.N.Y. Dec. 2, 2005). Here, the order of protection plainly is not the only basis for Justice Moore's belief. Indeed, he specifically referenced the presentence report prepared by the Probation Department. (S. 14). In that report, the Probation Department noted that Alexander was a repeat offender, with a prior weapons possession conviction, who "enjoys the power of possessing a gun and has no regard for the criminal justice system [de]spite prior intervention." (See Affirm. of Ass't District Att'y Adam Laurence Goldman, dated Sept. 25, 2001, Ex. 7 at 2 (Presentence Report)). The report also contained a statement from Jacqueline's family which made clear that Alexander was terrorizing her and her family every day until "that blessed day in the summer of 1995 when [he] was taken into custody" on a federal firearms charge. (Id. at 3 (Victim Impact Statement)). Finally, as Alexander concedes, the court was well aware of the order of protection. In light of these facts and the cold-blooded nature of Jacqueline's death, the Appellate Division's conclusion that there was no abuse of sentencing discretion in this case plainly is justified.
4. Notice of Grand Jury Proceeding
Next, Alexander claims that he was deprived of his constitutional right to due process because of the prosecution's failure to give him advance notice, pursuant to CPL Section 190.50, that his case was being presented to the grand jury. (Pet. ¶ 12(C)). Although Alexander does not explicitly say so, it appears that the crux of this claim is not only that he lacked notice of the grand jury proceedings, but that he consequently was denied the right to testify at those proceedings.
As discussed in greater detail below (see Section III.D.6), there is no factual or legal basis for Alexander's contention that he was entitled to notice of the grand jury presentment. However, even if Alexander were able to establish a violation of the state laws applicable to grand jury proceedings, he still would not be entitled to the issuance of a writ because any conceivable due process violation would be harmless error in light of his conviction by a petit jury which necessarily applied a higher standard of proof. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); Riley v. New York, No. 01 Civ. 8051 (DLC)(RLE), 2004 WL 1089121, at *4, (S.D.N.Y. May 12, 2004) (citing Lopez).
Thus, even if the prosecutor's failure to give Alexander notice that his case was being presented to the grand jury constituted a violation of state law, it would not give rise to a claim cognizable on habeas review. Moreover, any conceivable error was rendered harmless by the petit jury's verdict that Alexander was guilty of both crimes charged.
5. Prosecutorial Misconduct
Alexander next contends that certain of the prosecutor's summation comments were so improper as to deny him a fair trial. (Pet. ¶ 12(D)). Specifically, Alexander argues that the prosecutor improperly "vouched" for the credibility of his witnesses by saying that they had no motive to lie, "misquoted" the medical examiner by saying that Alexander intended to kill his victim, and "insinuated" that Alexander had been hunting for Graham. (Id.).
When a claim of prosecutorial misconduct during summation is raised on habeas review, "[t]he relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). The issue is not whether the prosecutor's comments were "undesirable or even universally condemned" but the narrow issue of due process. Id. Moreover, a mere showing of prosecutorial misconduct does not entitle a petitioner to habeas relief. There must, instead, be a showing that "he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). To determine prejudice, the following factors must be considered: "(1) the severity of the prosecutor's conduct; (2) what steps, if any, the trial court may have taken to remedy any prejudice; and (3) whether the conviction was certain absent the prejudicial conduct." Id. (citing Gonzalez, 934 F.2d at 424).
Here, extended analysis is not necessary since the prosecutor's comments were not improper. First, there is absolutely nothing in the prosecutor's summation which suggests that Alexander was hunting for Graham. Second, when the prosecutor stated that "[the medical examiner] tells you that the person who did do the shooting intended to kill her," he was not misstating the evidence. (T. 378-79). Although the medical examiner did not expressly say that Alexander intended to kill Jacqueline, he testified that the gun had been pressed against her head when it was discharged. (Id. at 73-74). It is not improper for a prosecutor to argue an inference from the evidence that is in the record. See United States v. Gerry, 515 F.2d 130, 144 (2d Cir. 1975) (internal citation and quotation marks omitted). Moreover, in his instructions to the jury, Justice Moore stated as follows:
Now, during the course of their summations the assistant district attorney and defense counsel respectively have commented on the evidence and have suggested to you certain inferences and conclusions that you might reasonably an[d] logically draw from the evidence. The summations of counsel are, of course, not evidence; however if the arguments of counsel strike you as reasonable and logical and supported by the evidence, you may, if you so conclude, adopt them. On the other hand, if you find such arguments to be unreasonable or illogical or unsupported by the evidence, you may reject them. In the last analysis it is the function of the jury to draw their own inferences or conclusions from the evidence as you recollect that evidence and as you find such evidence credible and believable.
(T. 398-99). The jury must be presumed to have followed this instruction. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (internal citation omitted).
Finally, Alexander claims that when the prosecutor stated that "Carl Graham has absolutely no motive to lie to you," and "Detective Pereira has no motive to lie to you," (T. at 382), he was improperly vouching for those witnesses. These comments were not unfairly prejudicial, however, because the prosecutor was merely responding to defense counsel's attacks on those witnesses' credibility. It is settled law that "[n]o prejudice exists where a prosecutor appropriately responds to defense counsel's arguments." Urena v. Lape, 373 F. Supp. 2d 449, 456 (S.D.N.Y. 2005) (citing United States v. Young, 470 U.S. 1, 12-13 (1985)); see also United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) ("Prosecutors have greater leeway in commenting on the credibility of their witness when the defense has attacked that credibility.").
In sum, Alexander's claim of prejudicial prosecutorial misconduct in summation is without merit.
6. Ineffective Assistance of Trial Counsel
In order to prevail on an ineffective assistance of counsel claim, Alexander must demonstrate that (a) his counsel's performance "fell below an objective standard of reasonableness" and (b) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Under Strickland, there is a "strong presumption that [a lawyer's] conduct falls within the wide range of reasonable professional assistance." Id. at 689. Therefore, a petitioner "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
A court considering an ineffectiveness claim need not "address both components of the [Strickland] inquiry if the [petitioner] makes an insufficient showing on one." Id. at 697. As the Second Circuit has noted, "[t]he Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Under the AEDPA, Alexander "must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly." Bell v. Cone, 535 U.S. 685, 698-99 (2002) (citing Williams, 529 U.S. at 411). Rather, Alexander must show that the state courts "applied Strickland to the facts of his case in an objectively unreasonable manner." Id. at 699. Here, Alexander has not met that burden.
First, Alexander claims that his trial counsel was ineffective for failing to move for dismissal of the indictment after the prosecutor failed to give him notice that his case was being presented to the grand jury. (Pet. Attach. ¶ 5(A)). Alexander was actually indicted by two grand juries. First, on August 16, 1995, Alexander was charged with Murder in the Second Degree (among other crimes) under Indictment No. 5838-95. (Pet'r's Section 440 Mot. Ex. E). Second, on July 8, 1996, Alexander was charged with Attempted Murder in the Second Degree under Indictment No. 5113-96. (Id. Ex. L).
CPL Section 190.50(5)(a) governs the right of a person to appear before a grand jury which is considering or about to consider whether to return charges against that person. That statute expressly provides that the district attorney is "not obliged" to give notice to "such a person" unless he or she is "a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding." N.Y. Crim. Proc. Law § 190.50(5)(a) (McKinney 1993). Here, as Justice Moore explained at considerable length in his order denying Alexander's Section 440.10 motion, Alexander never was charged in a criminal complaint prior to his indictment on the charges in the 1995 indictment. (See Ex. 8 at 5-12). In fact, Alexander first came into the custody of law enforcement officials following the shooting when he was arrested and detained on unrelated federal charges. (See id. at 6-7). He did not come into state custody on any of the state charges leading to his conviction before Justice Moore until September 18, 1995, which was after the 1995 murder indictment was filed. (Id. at 7). Thus, as Justice Moore correctly concluded, "Alexander was not entitled to CPL [Section] 190.50 notice of the Grand Jury proceedings." (Id.).
Turning to the 1996 indictment, as part of his Section 440.10 motion, Alexander produced the transcript of a June 14, 1996, conference before Justice Cohen. (See Pet'r's Section 440 Mot. Ex. Y). During that conference, Mr. Dudley advised the court that he had had an opportunity to interview Alexander, who did "not want to testify if this matter is represented." (Id. at 2). Even if that statement was incorrect, as Alexander now alleges, any possible prejudice plainly was harmless since the trial jury convicted him on the sole charge in the 1996 indictment after hearing all of the evidence. See Lopez, 865 F.2d at 32.
Accordingly, because Alexander has failed to demonstrate prejudice, he cannot prevail on his claim that Mr. Dudley improperly waived his right to appear before the grand jury.
Alexander next claims that his trial counsel was ineffective for failing to move to reduce the Second Degree Murder charge to Manslaughter and the Attempted Murder charge to Menacing or Reckless Endangerment. (Pet. Attach. ¶¶ 5(B), (D)). In fact, however, Alexander's trial counsel moved on December 5, 1995, for an order granting inspection of the grand jury minutes and the dismissal of the charges contained in the murder indictment, arguing that the evidence before the grand jury was legally insufficient to establish the offenses charged or any lesser-included offenses and that the grand jury was not properly instructed on the law. (See Pet'r's Section 440 Mot. Ex. I). The court (Cohen, J.) granted the motion to inspect the minutes, but held that the evidence was legally sufficient to support the charges, and that the grand jury had been properly instructed. (Id. Ex. J). Thus, Alexander's attorney actually made the motion that he now claims should have been made with respect to the indictment charging him with Murder in the Second Degree.
The record does not indicate that Mr. Dudley made a similar motion with respect to the 1996 attempted murder indictment. However, even if Alexander were able to show that the motion was not made and that this was objectively unreasonable, he still could not satisfy the prejudice prong of Strickland, since he subsequently was convicted on the attempted murder charge by a petit jury. See United States v. Mechanik, 475 U.S. 66, 70 (1986) ("Measured by the petit jury's verdict . . . any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.").
Alexander also contends that his counsel was ineffective for failing to object to the introduction at trial of the photocopy of the photo array, failing to request reconstruction of the photographic array, and failing to request the "alleged second description of perpetrator given by eyewitness." (Pet. Attach. ¶ 5(E)). Unfortunately, it is not clear from Alexander's petition what the basis for the last of these alleged shortcomings is, nor does Alexander's counsel elaborate on it in her supplemental papers. In any event, it is apparent that any objection at trial to the introduction of the photocopy of the photo array or demand for reconstruction of the original would have been futile as the hearing court previously had found that it was not unduly suggestive. It follows that Alexander cannot show that his counsel's failure to object or make such a request was prejudicial or amounted to the ineffective assistance of counsel. See United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) ("[T]he failure to make a meritless argument does not rise to the level of ineffective assistance.").
Alexander next claims that his counsel was ineffective because he stipulated that Jacqueline had lived in a shelter after her separation, had filed for divorce, and had obtained an order of protection against Alexander which expired in June 1992. (Pet. Attach. ¶ 5(F)). He further objects to his counsel's stipulation that Alexander was twenty-eight years old and five feet six inches tall at the time of the shooting. (Id.).
The first of these assertions appears to be based on Alexander's incorrect belief that the trial court had determined that the order of protection was inadmissible. (See id.). In fact, the court concluded that the threats which led to the order of protection were inadmissible but that Morris could testify as to the existence of the order. (T. 87-88). The court also ruled that it would exclude certain evidence of Alexander's stalking of Jacqueline without conducting a hearing, provided that the defense consented to the introduction of information concerning the order of protection and Jacqueline's divorce. (Id. at 90-101). In light of these rulings, the stipulation regarding these matters plainly was advantageous to Alexander, and did not amount to ineffective assistance.
Additionally, counsel did not stipulate that Jacqueline had lived in a shelter. (Id. at 100). Rather, it was the court that decided to admit that evidence. (Id. at 101-02). Counsel did stipulate that Alexander was twenty-eight years old and five feet six inches tall at the time of the shooting. (Id. at 326). However, Alexander has not shown that this stipulation was inaccurate or that it unfairly prejudiced him. Absent some such showing, he is not entitled to habeas relief on this ground.
Alexander's last ineffective assistance of counsel claim -- raised for the first time in Ms. Miranda's supplemental papers -- is that trial counsel was ineffective for failing to present background information on Alexander to the sentencing court. (Pet'r's Mem. at 9). However, Alexander has not identified the additional information that allegedly would have been relevant to the sentencing decision, much less shown that it would have resulted in a shorter sentence. For that reason, even if this claim were properly exhausted, it would have to be rejected because Alexander has failed to demonstrate any prejudice.
In sum, there is no factual or legal basis for any of Alexander's ineffective assistance of trial counsel claims.
IV. Conclusion
For the foregoing reasons, Alexander's petition should be denied. Additionally, because Alexander has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Shira A. Scheindlin, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Scheindlin. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b).
FRANK MAAS United States Magistrate Judge
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
LRC, Inc. About Us


text:
ERIC Number: ED328915
Record Type: RIE
Publication Date: 1990-Dec
Pages: 5
Abstractor: N/A
Reference Count: N/A
Eight Simple Secrets to More Persuasive Writing.
Caswell, Donald
The goal of persuasive writing is to move the reader to action or to get the reader to refrain from action, and most of the secrets of persuasion can work either way. To get readers to take action, a writer has to appeal to the emotions as much as possible. To get readers to refrain from action, a writer must appeal to the intellect. The secrets include: (1) write to express, not impress; (2) simplify, simplify, simplify; (3) use short sentences; (4) appeal to the senses; (5) use action verbs and active voice; (6) keep subject and verb close together; (7) pay attention to sounds; and (8) calculate the percentage of power words to nonpower words. Power words improve the effectiveness of writing. (A chart listing power and nonpower words and a sample calculation of a power index is included.) (RS)
Descriptors: Audience Response, Persuasive Discourse, Writing Evaluation, Writing Improvement, Writing Skills, Writing Strategies
Donald Caswell, 2022 E. Forest Dr., Tallahassee, FL 32303 ($1.00 each, 25 for $5.00).
Publication Type: Speeches/Meeting Papers; Guides - Classroom - Learner
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Power; Professional Writing; Writing Contexts; Writing Style
Note: Paper presented at the Annual Meeting of the American Vocational Association (Cincinnati, OH, November 30-December 4, 1990).


text:
Amber Wood Face Banging Your Hunger Away YUM
Coralie and Dalila family buisness
Succulent chick gives a nice foot fetish
Bony slut knocks on the door for backdoor fucking
Stranger invited to a cuckolding
Hot Gay Men Pounding Ass With Cum Felching
Kat and Katrina played dress up years ago but now
Hunk Pounding Hard Handsome Papi Small Asshole
Young hot Olivia gets laid in the water
BLACKED Teen Alexis Rodriguez With Perfect Ass Loves BBC
Moaning orgasm my Ex Girlfriend Kate
The Perfect Stud Friend gay porn gays gay cumshots swallow stud hunk
Oily lesbian sluts wrestle for orgasm
Doggy homemade 6 Nicole German
Young man gives college friend a blowjob until he cums
Gay Dirty Bareback Fucking Action
Crazy party girls fucking horny guys
Renee ass is a black man dream
Brown hair makes blowjob and then fuck
Gorgeous busty blonde strips off her lace panties to masturbate
Horny bbw want a sex with a her kinky friend...
Sultry brunette Pia gets her pie creamed 2017 times over
De verde y tacones para follar
Busty Babe Nekane takes a Face-load of Cum
Alena Flashing Susdal balcony show 2
Ebony gays hardcore anal fucking
Ebony Bbw Dancing For Boyfriend BBW fat bbbw sbbw bbws bbw porn plumper fluffy cumshots cumshot chub
Blonde milf fucking in a bodystocking and heels
Amateure von Nebenan Phil Conny
Latin cutie gets her shaved pussy fucked hard after giving BJ
Rich young playboy seduces a young French actress
3 Cocks Are Better Than One black ebony cumshots ebony swallow interracial
Charming blonde dildoing her snatch
BBW Squirts from Latino Cock and Gets a Facial
StepDaughter Gets Interracial Creampie From Daddy
Real amateur japanese teen gets bukkake in reality gangbang
Japanese girl hungry for cocks
Horny bitch exposed fucked on street desk
Teasing In Teddie shemale porn shemales tranny porn trannies ladyboy ladyboys ts tgirl tgirls cd she
Petite camgirl homemade masturbation
Hot MILF with great lips sucks a black cock
Amateur couple in hard ass fucking
Lesbian Babysitters2 S2 Sinnsage Darlacrane J 201790
Look at Kapri when she gets fucked
Snow White Full Movie midget dwarf cumshots swallow
Ultimate cheerleader bj from Marvel
Teen bei McDonalds!!! Surprise Happy Birthday? Autumn Winters Masturbates with Two Vibes! Danish couple !


text: Item is not available Find Another One Others Looked At... TAURUS PT111 GEN 2 9MM Pistol SELLER: R R Gun Shop 1 $249.99 Taurus SLIM 709 9MM Pistol in Flat Dark ... SELLER: R R Gun Shop 1 $265.00 Taurus PT111 Millennium G2 12+1 9mm 1-11... SELLER: GunPros 1 $239.99 Taurus PT-111 Millennium G2 9mm 3.2 Inch... SELLER: My Gun Vault 1 $259.95 TAURUS 180 CURVE 380 AUTO 6+1 RDS BLACK ... SELLER: My Gun Vault 1 $289.95 Taurus TCP 380ACP Pistol SELLER: R R Gun Shop 1 $219.99 Guns Pistols Taurus Pistols Revolvers Pistols Polymer Frame Taurus SLIM SUB COMPACT STAINLESS mm NEW | 683 | 106 | Lc | 171.8749ms Taurus 709 SLIM SUB-COMPACT STAINLESS 9mm NEW! For Sale from S Harris | Positive feedback: 97% View | Verified Seller | 4333 Completed Sales View Sellers Items This item is no longer available. /UserImages/1147/991957874 1839920.jpg /UserImages/1147/991957874 1839921.jpg /UserImages/1147/991957874 1839922.jpg /UserImages/1147/991957874 1839923.jpg /UserImages/1147/991957874 1839924.jpg Description Shipping and Payment More Info Factory New & unfired Taurus MODEL PT709 COMPACT semi-auto pistol. "SLIM" is the name of this suave new entry into the Taurus line. Elegant in Stainless this small, single-action-only could be found under a cummerbund or a pair of bibs. It's what you have been asking for! No revealing lumps or lines makes concealed carry easier than that larger capacity gun you already have. Cool, neat and ready to go-the PT-709 Taurus Slim will be your companion for a long time to come. Great conceal carry weapon. Mfgr warranty. Box/papers. Please see all terms. Thanks! Model: 709SS Finish: Matte Stainless Steel Caliber: 9 mm Grips: Checkered Polymer UPC: 7-253-8 Capacity: 7 +1 Weight: lwt 19 oz Barrel Length: 3" Frame: Compact Action: DA/SA Front Sight: Fixed Length: 6" Order #: 1-709039. 1709039. 709-SS. CCW. $28 to ConUS. Trades Accepted: Considered, 80% of Blue Book max. 95% & no custom. I am no longer a licensed dealer. ***Do NOT ask to have a firearm shipped to a non-FFL.*** All BATF, state & local laws apply.Your click of "BUY IT" is acceptance of all the terms below and a binding CONTRACT under Missouri law. TERMS: Cash price shown, please add non-refundable 3.25% on cards for loss of cash discount. USPS Postal Money Orders only mailed for Cash Price shown. 3-DAY INSPECTION PRIVILEGE w/ REFUND less ship starts w/ FFL receipt in unfired, same EXACT condition on used firearms only. Factory warranty on all NIB items but sale is final. Mfgr handles all defect issues.Add 7.95% MO sales tax to any delivery within MO.NO export. Also, your wife just called. She said buy anything you want. Thanks! Condition: New In Box Caliber: 9mm Luger Location: MO Share Item Item #: 991957874 Stock No.: 1709039 This item is no longer available. Price: Shipping: $28.00 Accepted Payment Methods: Returns: No Returns S Harris Seller Since: Jun. 2001 Seller Level: Trusted Seller This seller is NOT an FFL City: State: More Items from this Seller ( 293 items total | View All ) Taurus 905 Revolver 9mm ... $419.00 Full Details Add To Cart Taurus 738 TCP Stainless ... $449.00 Full Details Add To Cart Taurus PT740 Slim Stainle... $410.00 Full Details Add To Cart Mc | 15.6352ms -- 1147 Your Recently Viewed Items


text:
Samsung NX500
Sony CyberShot HX90
Canon PowerShot G3 X
Panasonic DMC-FZ330
Nikon Coolpix P900
Olympus Stylus 1s
News Headlines
Digital Cameras
Digital Camera Ratings
New Digital Camera
Digital Camera Reviews
Camera Reviews
Nikon SLR Reviews
Camera Housings
Digital Camera Compare
Digital Photo Gallery
Mobile Phones
Banner Advertising
Camera quick selector
Acer (18)
AgfaPhoto (54)
BenQ (108)
Canon (324)
Casio (154)
Concord (41)
Contax (5)
Epson (11)
Fujifilm (373)
Jenoptik (48)
Kodak (182)
Konica (18)
Konica-Minolta (23)
Kyocera (17)
Leica (44)
Minolta (25)
Minox (47)
Nikon (286)
Olympus (294)
Panasonic (271)
Pentax (145)
Praktica (121)
Ricoh (73)
Rollei (119)
Samsung (287)
Sanyo (81)
Sigma (16)
Sony (312)
Toshiba (19)
Vivitar (43)
Yakumo (26)
Photography News
Camera Reviews
Samsung and Nokia mobile TV interoperability
Ralf Jurrien : April 25th 2007 - 12:03 CET
Samsung and Nokia mobile TV interoperability :
Samsung and Nokia announced they will work to achieve interoperability among their DVB-H (Digital Video Broadcast - Handheld) enabled mobile devices and the open standards based Nokia network services system. The handset manufacturers will work together to support solutions based on the open OMA BCAST standard available for operator partners interested in deploying multi-vendor mobile TV services and trials in 2007 and onward. "Within DVB-H technology, Samsung has already commercialized handsets based on the CBMS OSF standard, and will develop the OMA BCAST standard based mobile TV handset. says Kwang Suk Hyun, Senior Vice President of Alliance Team of Samsung Electronics Co., Ltd.
Digital Video Broadcast - Handheld
"Nokia mobile warmly welcomes the collaboration in accelerating the adoption of DVB-H based mobile TV services to the market. We see that the OMA BCAST standard is essential in launching mobile TV services on a global scale," says Harri Männistö, Director, Multimedia, Nokia. "Further, the well-defined service and content protection profiles within the OMA BCAST standard such as the already now available OMA DRM, provides the ideal path towards standardized solutions enabling a coherent and open market for successful worldwide mobile TV deployments." The deployment of mobile TV services will offer new business opportunities for companies across the value chain, including content and broadcast companies, mobile service providers, infrastructure and handset manufacturers, and technology providers. The availability of interoperable DVB-H enabled devices and services is a key factor in further opening up the market.
Samsung and Nokia mobile TV
DVB-H is an effective technology for deploying broadcast mobile TV among the many digital technologies available to deliver mobile TV services. DVB-H technology offers high service level quality, low battery consumption and offers the end-user the ability to simultaneously receive broadcasts while using other mobile services such as telephony and internet access on their device. In parallel to supporting mobile operators launching mobile TV services based on existing technologies in their networks, Samsung and Nokia are both active in ongoing standardization and technology development to optimize the broadcast mobile TV experience. The companies will work on interoperability efforts using the open OMA standard while continuing to participate in industry-wide interoperability efforts within the related standardization bodies.
About Samsung
Samsung Electronics Co., Ltd. is a global leader in semiconductor, telecommunication, digital media and digital convergence technologies with 2006 parent company sales of US$63.4 billion and net income of US$8.5 billion. Employing approximately 138,000 people in over 124 offices in 56 countries, the company consists of five main business units: Digital Media Business, LCD Business, Semiconductor Business, Telecommunication Network Business and Digital Appliance Business. Recognized as one of the fastest growing global brands, Samsung Electronics is a leading producer of digital TVs, memory chips, mobile phones and TFT-LCDs.
About Nokia
Nokia is a world leader in mobile communications, driving the growth and sustainability of the broader mobility industry. Nokia connects people to each other and the information that matters to them with easy-to-use and innovative products like mobile phones, devices and solutions for imaging, games, media and businesses. Nokia provides equipment, solutions and services for network operators and corporations.
Digital video broadcast
Mobile digital TV
IP video solutions
Lexmark range of wireless printers
X-Rite picture perfect color seminar
News by brand:
News by category:
Mobile Imaging
News by brand and category:
Samsung Mobile Imaging
Latest Samsung announcements
Samsung CES 2017 Innovation Awards
Samsung Gear S3 series with LTE and Bluetooth models
Silicon Valley 5G Summit
Samsung Galaxy Tab A tablet
Samsung collaborates with leading Russian operator
Samsung Galaxy Note 7 recall in US
Samsung Gear S3 SmartWatch
Samsung Galaxy J-Series of Android smartphones
Galaxy Note7 comparison
Samsung Android tablet with Iris recognition
Samsung Galaxy Note 7 Android smartphone
New Galaxy smartphone with Turbo Speed Technology
New smartphone technology by Samsung
Samsung Galaxy On Pro smartphone series
Samsung removable flash memory cards
Latest news headlines
Samsung smartwatch features Lonely Planet app
AOC 35-inch curved monitor
Fujifillm X-A10 test photos
Philips UltraClear 4K monitor
LG consumer electronics awarded
Philips PowerSensor LCD monitor
HTC Bolt Android smartphone
Fujifilm X-A10 digital camera
Samsung CES 2017 Innovation Awards
CES 2017 Show security measures
Indiegogo campaign: Android smartphone camera
Amazfit Pace GPS running watch
Target Cyber Week with 15 percent discount
2017 CES Keynote speakers
Why smartphones will never replace cameras
Digital cameras
Mobile phones


text:
Schedule and Weights
- Details
I will update this post regularly. This post is fixed so that it will always appear at the top of the blog, for more posts, please scroll down.
9/1/2013 - Decision Day
12/2 - Surgeon
12/11 – Nut #1
1/2/2014 - Psych Eval
1/3 – Nut #2 (HW: 319, SMO)
1/7 – Endoscopy
2/12 - PCP for pre-op screening (EKG and blood work)
2/18 - Insurance approval!
2/19 - Started mental health therapy
2/21 - Stopped BCP pre-op
3/3-12 - Pre-op Diet
3/4 - Endoscopy #2
3/10 - Surgeon for Pre-op
3/11 - Pre-op nurse interview on the phone
3/24 - Surgeon Follow-Up (2 weeks) (OW: 290)
3/14-26 - Full Liquid Diet
3/27-4/9 - Pureed Diet and start vitamins
4/10-23 - Soft Solids Diet
4/24-Life - Forever Diet
5/6 - Surgeon Follow-Up (6 weeks) (OW: 270)
5/17 - Lab Results
6/13 - Three Month Update
6/20 - Surgeon Follow-up #3 and NUT (3 months) (OW: 253)
7/22 - Shared Surgery on Facebook
9/13 - Six Month Update
9/29 - Lab Results
9/30 - Surgeon Follow-Up (6 months) (OW: 218)
12/13 - Nine Month Update
1/1/2015 - 2015 Goals
3/13 - One Year Update
4/20 - Surgeon Follow-Up (1 year) (OW: 185)
9/2 - Fall Term (Composition and Rhetoric [A], Personal Trainer Fundamentals [A], Nutrition and Weight Management [A], Introduction to Sport Management [A], and Introduction to Legal Issues of Sports, Recreation and Leisure [A])
1/1/2016 - 2016 Goals
1/6 - Winter Term (Introduction to Psychology [A])
1/25 - Spring Term (Introduction to Human Anatomy and Physiology [A] +Lab [A], Composition and Literature [A], Personal Health and Fitness [A], Introduction to Sport Psychology [A], Wellness for a Diverse Society [A])
3/13 - Surgiversary #2
4/9 - Dad Died
6/13 - Summer II Term (Human Development Through the Lifespan [A])
7/5 - Summer III Term (Introduction to Interpersonal Communication [A])
7/23 - Started Vyvanse (lisdexamphetamine) to address diagnosed Binge Eating Disorder
8/29 - Fall Term (Anatomy and Physiology 1 [A] +Lab [A], Physics 1+Lab, Introduction to Kinesiology)
10/11 - Surgeon Follow-Up (2 years) (OW 175) and thoughts on Plastic Surgery
12/12 - fall term ends
1/4/2017 - Winter Term (Introduction to Sociology)
1/23 - winter term ends
1/25 - Spring Term (Anatomy and Physiology 2+Lab, Introduction to Statistics, Introduction to Art Appreciation)
3/11 - HALF MARATHON, 40th birthday!
3/20-26 - spring break
3/24 - Surgeon Follow-Up (3 years)
5/11 - spring term ends
5/18 - A.A. graduation
5/26 - Hamilton
Binge Eating Disorder (my story, diagnosis process, treatment, etc.)
Daily Protein Shake Contents
Exercise Schedule
Exercise Story
Food Philosophy
Goal Updates
Mental Health Thoughts
Most Recent ASMBS Guidelines
Pureed Foods I Ate
School Meal Ideas
Vitamin Schedule (with product links) and Tips for Storing and Taking Vitamins
Weekly Meal Plans
Why I Chose VSG
WLS Promises for the Beginner
Weights, Measurements, and Pictures
(3/20/14) 291 - Extremely Obese BMI
(4/29/14) 269 - Fifty Lost/25% EWL
(5/17/14) 260 - Driver's License Weight
(8/2/14) 233 - Obese BMI
(9/12/14) 219 - One Hundred Lost/50% EWL
(11/25/14) 199 - "Onederland"
(4/28/15) 180 - Age 18
(8/11/16) 180 - Weight before dad's brain cancer diagnosis in 3/2015
(9/9/16) 174 - Overweight BMI
(11/4/16) 169 - One Hundred Fifty Lost/75% EWL
159.5 - Half the person I used to be
150 - Start the Plastics Countdown
145 - Normal BMI
120 - 100% EWL (based on Ideal Weight calculations)
ULTIMATE DREAM GOAL - 120 pounds, 20% body fat (Normal BMI range is 145-109)
Height - 5'4"
- Details
1. Reach plastics goal by March - 18 to go!
2. Get back to running and complete Zombies Run! 5k Training Plan - I mostly completed it before I had to start my half marathon plan.
3. Complete two races - Done!
4. Fitness classes twice a week - The last month has been bad between sick and anger and travel and everything else.
5. Meditation - Nope. I'm thinking this is no longer a worthwhile goal for me, so I'll definitely remove it next time.
6. Pass all classes with a minimum grade of B - 9 classes for the year so far and 2 weeks left for the other 5 classes. Grades are looking good.
7. Stay on track for 5/2017 graduation for my AA in Exercise and Sport Science - Still on track.
8. Take care of myself as best I can - Some days are better than others.
9. Support my mom as best as I can - I think it's going well.
10. Average 1 mile per day running - I'll need to average about 14 miles a week to reach my goal, so that's definitely not going to happen. But I'll be closer at the end of the year than I am right now and that's what matters.
I only have one more month with these goals and clearly I need to think long and hard before creating my 2017 goals. I need to get back to the SMART goal creation concepts and figure out what's actually important to me.
Last month I felt that grief brain was about to take over, I don't feel that I'm on that brink now. There's anger, sorrow, exhaustion, fear, and lots of other things battling for brain space with the grief.
- Details
1. Reach plastics goal by March - 20 to go! (I changed the timing of this so that I can be "stable" for enough time prior to surgery. Reaching this goal sooner is better.)
2. Get back to running and complete Zombies Run! 5k Training Plan - I think I start week 6 today.
3. Complete two races - Done!
4. Fitness classes twice a week - Still getting in one a week. I've been out of town most Fridays in October, hopefully November will be better.
5. Meditation - Nope. Is this a worthwhile goal for me?
6. Pass all classes with a minimum grade of B - 9 classes for the year so far, 5 more to go - getting there!
7. Stay on track for 5/2017 graduation for my AA in Exercise and Sport Science - getting closer!
8. Take care of myself as best I can - Some days are better than others. I feel like I'm going through the motions, which is better than not going through them at all.
9. Support my mom as best as I can - I think this is going well? We Skype most weekends, I visited in October. I'll get to see her twice in November since we're joining her in OC and then she's joining us for Thanksgiving.
10. Average 1 mile per day running - I was on track. Now I'm not. I've got to run about 10 miles a week to make it now which might be do-able if I were more dedicated, but that seems unlikely given my general state of being. We'll see.
Some things are going well. Some aren't. Story of my life right now. I'm feeling pretty broken most of the time. Grief brain is threatening to take over.
- Details
I should be studying, but my eyes don't want to function anymore. I've been working all day, so I think it's time to take a break.
I had my two year follow-up on Tuesday and it went super well. Here's what I wrote on FB:
Surgeon is totally thrilled with me. He's thrilled that this far out I'm down 6 lb since last year. He was over the moon when I told him that I've actually lost 20 since June due to gain after my dad's death.
He thinks I need to see a cardiologist as I shouldn't be experiencing orthostatic hypertension this far post-op. Which is good to hear since my PCP yesterday dismissed my concern.
And he thinks I could start pursuing plastics now if I was ready to. That's the weirdest thing. I still want to lose 50 lb and he says I can if I want, but that I don't need to as far as he is concerned.
Yearly follow ups for forever I guess? Maybe March 2017 won't suck so much and I can be on time with my 3 year.
The thing about plastics was a total mind fuck. How on earth can he think I'm ready for plastics when I still want to lose 20 pounds before I even talk to a surgeon for a consult?!
So I've been thinking a lot about plastics and this is my plan. (My mom even said she might be able to help out with the financials, which would be awesome.)
January 2017 - call to schedule appointment with surgeon (I've already got the one I'm 99% sure I'll be using selected)
March 2017 - see surgeon for consult over spring break
May/June 2017 - as soon after Memorial Day as possible, have my first round of plastic surgery. This will be after I graduate with my AA and before I start taking BS classes. This will give me two weeks to recover before classes start, and I'll do a light load of 1 or 1.5 classes that term. All of my BS classes are online and it'll all be reading/writing stuff.
Aug 2017 - Apparently my surgeon likes to have 3 months recovery time between surgeries, but I'm hopeful that I can have my second round of plastics around 8-9 weeks so that I can do it between summer and fall terms. If not, I can always take off the first part of the fall term. The BS college has a weird course schedule which will probably work to my favor.
So now I just need to reach my self-imposed mini goal of 150 which is where I want to be before I have plastic surgery.
The plan is that I'll be getting 4 procedures in, hopefully, 2 surgeries. Lower body lift, arm lift, breast lift, and thigh lift. The order and combination will be dependent upon the surgeon's recommendations. From what I can gather, based on other patients of his that I've spoken with, I should be budgeting 30-35k for everything. *gulp*
Mental Health and Obesity
- Details
I feel like I'm a broken record encouraging people to add a therapist to their tool belt in the fight against obesity and, since I have a moment, I want to try to coalesce those thoughts. "You" is used as a generic you here. It means "we" and "me" and "all of us."
Clearly we all got to obesity for a reason. It's rare that the reason is physiological, most of the time it is mental. (And if it is physiological, it's even more rare that it is solely physiological.) We eat for whatever reason we eat. We don't move enough. We don't care about what we put into our bodies. We aren't thoughtful about what we consume. We convince ourselves that we're content with obesity. We do one of these things or all of them in combination.
One of the common refrains on the boards is that surgery is only on our stomachs, not our brains. This means that, even if you have surgery, it's not going to change what's going on in your brain. The surgery is awesome, but correcting that brain stuff is way more challenging in my opinion and, if it's neglected, no surgery in the world is going to cure/fix/permanently resolve the obesity.
My recommendation is to find a therapist, keep track of your eating habits, talk to your PCP or a psychiatrist about eating disorders, keep seeing your therapist. All of this sucks, it's hard, there's still a huge stigma in our society about mental health, but if you want lifelong success, I think that it's necessary to fight these battles.
If you care about your health, you need to care about your mental health as well.
I'm writing this at 2.6 years post-op. I started seeing a therapist a few months pre-op and continued for 2 years. The bulk of that time was weekly appointments; I had a few months at every other week. Now I'm in maintenance and see my therapist as needed. About 2.5 years post-op I finally got my Binge Eating Disorder diagnosed. In retrospect, I know that I've had BED for all of my memorable life. I didn't KNOW that I had it until I started my current college path and it kept cropping up in various classes. Even then, it took me about a year of KNOWING before I finally sought diagnosis and treatment.
For the first year or so post-op, all the happy post-op feelings were enough to keep my BED at bay. Once my dad's cancer spread to his brain, I stopped being able to keep the BED under control and, when he died, the BED came back in full force and I was no longer able to control it.
I am a prime example of the surgery only acting on the stomach and not the brain. Clearly WLS did not fix my BED in any way. And, if I hadn't sought out the mental help that I've pursued, I would have easily gained right back up to my original high weight. No surgery in the world would have fixed that or changed that course.
What surgery DOES do, and I feel that this is often missed, is it gives you breathing space to address the mental health concerns. It takes away the constant battle with food. It takes away the constant feelings of failure and moral judgment that obesity is laden with. We all know that society views the obese as lazy and unworthy – it's not uncommon for us to start to see ourselves that way as well. Surgery took those pressures and those feelings away for long enough that I could start to see the person I could be and work to be kind to her. So that when the BED did rear it's ugly head again, I was NOT going to let it win. My year of freedom from BED and the 18 months that followed.. these showed me that I wasn't lazy. That I WAS worthy. And those 2.5 years told me that I was someone worth fighting for and that this life I was working toward was the life that I wanted. I don't think that I would have gotten to this place without WLS.
What should your takeaway be from my thoughts on this? I don't know. You do you. I know that I'm not saying every obese person has some mental illness, because I don't think that's true. I do believe that obesity is a symptom that is often treated as a disease. We all got to be obese for reasons. We all have baggage that put us, and kept us, on the road to obesity. If we don't deal with those reasons, if we don't let that baggage go, then the symptom that obesity is will always come back no matter what surgery we have, no matter how many revisions we get or how many resets we do.
And this is what I believe.
- Details
1. Reach plastics goal by graduation - 21 to go!
2. Get back to running and complete Zombies Run! 5k Training Plan - heading out for w4d2 in a few minutes.
3. Complete two races - 5 miler complete, 5k in 2 weeks.
4. Fitness classes twice a week - not doing very well with this one. Once a week seems do-able, but twice a week can be a challenge since I'm finding I need more sleep than I used to.
5. Meditation - Nope.
6. Pass all classes with a minimum grade of B - 9 classes for the year so far, 5 more to go - getting there!
7. Stay on track for 5/2017 graduation for my AA in Exercise and Sport Science - getting closer!
8. Take care of myself as best I can - I feel like I'm doing okay with this. I went to see my therapist when I felt things slipping and that's a big deal for me.
9. Support my mom as best as I can - going to see her next weekend to take her out to see Girl on the Train :D
10. Average 1 mile per day running - I added this goal in October, so it's not 1 mile per day for the whole year, but 1 mile per day for the year remaining after I set the goal. Runkeeper tells me I'm on track.
- Details
It's hard for me to keep up with posting since I'm just so busy all the time with school and life. With school there's always another thing to work on, so I'm never truly finished nor do I ever feel caught up.
But I'm doing well. I haven't binged since I started Vyvanse and my weight loss is totally on track. It's pretty awesome :D
- Details
And today, for the first time in the entirety of my memory, I am NOT OBESE.
*flailing Kermit arms*
- Details
Today I can say that I've lost a gross amount of weight! LOL :D
9/1/2016 - goal update
- Details
First of the month means it's time to update goals!
1. Reach plastics goal by FEBRUARY [edited 10/22 because I need to be stable for 3 months prior to plastics] - getting there.
2. Get back to running and complete Zombies Run! 5k Training Plan - w1d2 complete!
3. Complete two races - 16 days until the 5 miler, eek? I'm so not ready. I plan on doing the race, but it won't be pretty.
4. Fitness classes twice a week - so far, so good.
5. Meditation - I just got my Sona (which is a wearable HR monitor, etc) and my goal is 5 "resonance minutes" a day. So far, so good.
6. Pass all classes with a minimum grade of B - 9 classes for the year so far, 5 more to go - check!
7. Stay on track for 5/2017 graduation for my AA in Exercise and Sport Science - check!
8. Take care of myself as best I can - I think I'm doing okay here!
9. Support my mom as best as I can - And I think I'm okay here as well.
I rewrote my 2016 goals at the end of July, since the ones I had written at the beginning of the year were no longer useful for me. I don't like how vague some of these are, so they might evolve as the year goes on, but I think they're acceptable. I plan to get back into the habit of touching base with my progress every month.
Things are going well, I'm glad I'm only taking three classes (plus two labs) this term because Anatomy is going to, yet again, kick my ass.
- Details
My dad's service went really well, as did everything that went along with it.
Classes started today - at least Physics and Kinesiology. I think they'll be okay. The moment of truth will be tomorrow when I get the Anatomy syllabus. We'll see what tomorrow brings!
My eating is going really well. Thank goodness for Vyvanse. It would have been so easy for me to have just gorged the entire weekend, there was so much food. But I didn't. I'm feeling really great about things.


text:
PCOR30B Discovery 1.1 Cu. Ft. Over-the-Range Convection Microwave with Digital Touchscreen Display and 2-Level Cooking Rack:
Home > Appliances Connection > Appliances > Microwaves > Over The Range Microwave > Convection Comb
|The Dacor 11 Cu Ft Over-the-Range Convection Microwave makes cooking your favorite meals easier and quicker than ever before
$25 Off Appliances Connection Coupon Code - Use SAVE25 at checkout on select purchases for a limited time.
Only $1,169.00 at AppliancesConnection.com


text: Photo Galleries » Mariners vs. Royals | Sept. 5, 2013 Photos of the Mariners' 7-6 loss to the Royals in Kansas City. Share Tweet Share Share Top Stories Unpredictable? Actually, Seahawks are right on track for stretch run Three keys: Sounders seek first MLS Cup title vs Toronto FC Chris Petersen: Loss to USC helped No. 4 UW Huskies regain focus Sponsored Articles How a garage nuclear reactor is powering students' futures WSU researcher offers eye-opening insight on value of sleep 7 things you didn't know about reverse mortgages


text:
- Albertsons Market22.Dec 2015
- Employee
Suggestions for improvement
- Listen more to lower ranks than the high ranks and give the hard workers a break like the lazy workers that get away with everything.
I like about the employer
Co workers are really easy to get along with.
I dislike about the employer
You will always be under pressure. Corporate team members come in and everybody forgets about the customers being our first priority. Nobody in the high ranks takes your side of the story, they only take the high ranks' side.


text:
DescriptionChic comfort in a sleek package - the Volted by Guess will zap a flawless finish on your Fall outfit of the day.
- Camoscio suede fabric upper
- Man-made sole
- 0.5" heel height
- Slip on deisgn
Delivery and Returns
Estimated delivery date: 4 (based on standard shipping).
We offer free shipping on orders over $99, and free returns and exchanges for up to 30 days.


text:
- Home /
- Tabletop /
- Smallwares /
- Spoons /
- Flute Bouillon Spoon - 12 per pack
The Flute Bouillon Spoon is the minimalistic, sleek design to make your table settings pop. This is a heavyweight piece of flatware that's made from stainless steel. It's made to be a long-lasting restaurant or catering supply, so you won't have to constantly replace it. The highly reflective mirror-finish will also stay lookng beautiful for a long time to come. The smoothly curved handle will also add a sohpisticated touch to almost any kind of decor. Purchase this Winco product 12 per pack.
Suggested Products
Featured Products