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October 1, 1986
ANNA RICHTER, by her next best friend CHRISTINA REEDMAN, Plaintiff,
ALICE RUSSO & EUGENE GROSS & JOHN J. LAMENDOLA, Defendants
The defendants move to dismiss this action for lack of federal jurisdiction. Upon the facts, as set forth below, we conclude that the defendants' motions must be granted.
Anna Richter, a woman in her 80's, was a resident of the Yorkville area of Manhattan for fifty years. She was generally regarded as a neighborhood eccentric who spent a lot of time walking her two dogs. She owned the building in which she lived at 315 East 85th Street, as well as an adjacent building, 317 East 85th Street. Christina Reedman alleges that she rented an apartment at 317 East 85th Street in 1964, and claims to have known Anna Richter since that time. In 1972, Richter sold 317 East 85th Street; Reedman still lived there. In December 1980, Reedman was seeking a new apartment and spoke to Richter about moving into 315 East 85th Street. According to Reedman, Richter allowed her and her three children to move into the fourth floor apartment if Reedman agreed to repair the boiler.
In January 1981, Richter accused Reedman of stealing boiler parts and evicted her. Reedman and her three children then moved in with attorney Thomas J. Kavanagh, who lived a few blocks away. Reedman married Kavanagh a few months later.
Reedman contends that, despite being evicted and accused of theft by Richter, she continued to help the elderly woman. On September 25, 1981, Reedman brought Mrs. Richter to Metropolitan Hospital because of the latter's poor physical and mental condition. After doctors treated Richter for vermin bites and cleaned her up, she was referred for a psychiatric evaluation. The psychiatrist determined that Richter was somewhat senile and needed a structured, supervised setting because she was unable to care for herself. Reedman, with Kavanagh as her attorney, initiated a proceeding to have conservators appointed for Richter.
On December 8, 1981, a competency hearing took place before Justice Blangiardo, of the Supreme Court, New York County. Justice Blangiardo appointed Alice Russo and Eugene Gross as co-conservators of the property of Anna Richter pursuant to Article 77 of the New York State Mental Hygiene Law. Alice Russo is Mrs. Richter's niece. Eugene Gross owned a dry cleaning store on East 85th Street, and had apparently become friendly with Mrs. Richter over the years. Richter had been living in his home in Queens since October 22, 1981, when she was released from Metropolitan Hospital. Reedman and Kavanagh opposed these appointments.
Kavanagh believed that he should get the legal work resulting from the conservatorship. His application was rejected and plaintiff now charges the Appellate Division, First Department with widespread corruption, fraud, and "cronyism." The plaintiff alleges that highly placed, influential members of the First Department are involved in Richter's affairs. These charges are based upon the fact that Robert P. McGreevy, Chief Law Assistant to the Justices of the Appellate Division, First Department, met Mrs. Richter through a friend of his wife who was concerned with Richter's plight. He referred Mrs. Richter to defendant John J. Lamendola, former law secretary to Justice Sandler of the First Department, for representation at the 1981 competency hearings. Reedman and Kavanagh believe they were superceded and then ousted by Lamendola in those proceedings. Since then, they have participated in an emotional and dramatic campaign to have her conservators removed for failure to comply with the orders issued at that time.
Reedman, by her attorney Kavanagh, commenced this action on July 2, 1985, claiming that she could not get a fair trial in State Court. Christina Reedman was the named plaintiff; conservators Russo and Gross, and attorney Lamendola were the named defendants. The complaint sought removal of the conservators, appointment of a new conservator, and a judgment against Lamendola for $30,000 in fees for legal services which, according to the complaint, "LAMANDOLA N-E-V-E-R R-E-N-D-E-R-E-D." Complaint P 1.
The basis for federal jurisdiction was not clearly stated. However, it appeared that plaintiff relied upon diversity jurisdiction under 28 U.S.C. § 1332. Since all of the parties were New York citizens, diversity jurisdiction clearly did not exist.
Plaintiff immediately moved for the appointment of a temporary receiver and a guardian ad litem. We denied that motion and expressed doubt that federal jurisdiction could be maintained merely because plaintiff contended that the state courts were operating on a patronage basis.
The defendants then moved to dismiss for lack of federal jurisdiction. Before that motion could be considered, the plaintiff amended her complaint. In the amended complaint, the plaintiff was designated as "Anna Richter, by her next best friend, Christina Reedman." Plaintiff claimed that although Richter had lived in the United States for more than sixty years, she had originally been born in Austria and had never been naturalized. Accordingly, plaintiff asserted diversity jurisdiction based upon Richter's foreign citizenship. The defendants again moved to dismiss the complaint.
The question of whether, for purposes of determining diversity, we should consider the citizenship of the incompetent or that of her next best friend is not clear-cut. See generally, 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3606 at 427-30 (2d ed. 1984). However,
the manufacturing of federal jurisdiction by the use of guardians and next best friends as named plaintiffs is clearly frowned upon. Id. at 429. Here, we have the reverse, i.e., the representative asks us to consider not her citizenship but that of the incompetent in order to maintain federal jurisdiction. Since evidence strongly suggested that Mrs. Richter had been naturalized (she had voted in New York elections), the Court directed the parties to explore the factual issue, which would moot the legal question.
Over a prolonged period of time,
the defendants obtained a number of documents clearly establishing the naturalized citizenship of Anna Richter. The plaintiff objected to this documentary evidence because of purported inconsistencies concerning the identity of the naturalized person and her various married names. Plaintiff insisted upon, and was granted, the opportunity to depose Anna Richter.
The deposition was conducted on June 26, 1986. Plaintiff's counsel began by advising Mrs. Richter that if she answered questions properly she might be allowed to return to her old home and her dogs. The deposition was not fruitful. Richter was obviously senile or otherwise mentally incompetent. She stoutly maintained that she was a naturalized citizen, but denied that she had ever been married to a man named Kamlach. Her citizenship petition was in the name Anna Kamlach. A copy of her marriage certificate to her last husband, Gunter Richter, lists Alex Kamlach as her prior husband, from whom she was divorced in 1944. This deposition testimony, together with the citizenship papers, marriage certificates, and voter registration, establish beyond peradventure that Anna Richter is a naturalized American citizen and a citizen of New York. Consequently, there is clearly no federal diversity jurisdiction.
We will consider briefly whether there are any other bases for federal jurisdiction. Reedman has alleged that Richter was "imprisoned" in Gross's home, but the report of a caseworker from the Department of Social Services contradicts that allegation. Russo and Gross have been charged with both nonfeasance and malfeasance, and criminal neglect in their care of Mrs. Richter. In addition, as mentioned above, plaintiff seeks to recover a money judgment of $30,000 against Lamendola, for legal fees for services they allege he never performed. Plaintiff Reedman charges that Mrs. Richter was not well cared for at the Gross home, and was held there against her will, as evidenced by her three-day escape in May 1984 (which attempt, Reedman says, was concealed from the courts). In addition, Reedman claims the defendants made a fraudulent attempt to "undersell" Anna Richter's property at 315 East 85th Street by obtaining an appraisal that listed its value at $325,000. By order of the New York State Supreme Court, the building was sold at a public auction and brought $675,000. See Amended Complaint, Exhibit G.
Plaintiff Reedman also contends that the conservators are in violation of Justice Blangiardo's order that placed Richter in temporary, not permanent, custody of Gross. That order stated, in pertinent part,
The co-conservators will temporarily maintain the conservatee at the home of conservator EUGENE GROSS, ... and the co-conservators shall do all that is possible and practical to rehabilitate and maintain the property owned by the conservatee, ... so that such property might become income producing and otherwise suitable for the conservatee to reside therein under appropriate supervision . . .
Counter Order Appointing Co-Conservators at 4, annexed as Exhibit C to Affirmation of Jay H. Landau in Support of Defendant Russo's Motion to Dismiss. The conservators failed to return Mrs. Richter to a rehabilitated apartment in her building or another apartment in Yorkville. Rather, she remained at the home of Eugene Gross, where a caseworker from Protective Services for Adults, Department of Social Services visited her on April 18, 1985. The caseworker found Mrs. Richter to be comfortable at the Gross home. A combination sitting room-dining room area had been converted into a bedroom for her use, and she had a television. The social worker felt that Mrs. Richter was disoriented and would not recognize her own home even if returned to it, since it would have been rehabilitated. Also, she would be forced to live with a companion who would be a stranger to her. Although Mrs. Richter expressed a desire to return to Yorkville and to be reunited with her dogs, the social worker recommended that she remain in familiar surroundings with the Gross family. It was further recommended that she participate in a daytime geriatric group, and retain a twenty-four hour-a-day home attendant.
Reedman's principal charge against the conservators rests on their failure to return Mrs. Richter to her Yorkville neighborhood and reunite her with her dogs.
In addition, Reedman and Kavanagh charge the defendants with converting Richter's funds for their own use, i.e., $10,000 was spent on permanent improvements to conservator Gross's home where Mrs. Richter lived, and exorbitant legal fees were charged. Assets were allegedly wasted while Russo and Gross litigated, each trying to obtain sole control of Richter's realty. In addition, Kavanagh charges defendant Lamendola with numerous attempts to disbar him and to remove him from another conservatorship in an effort to discredit him.
Underlying all of these wild charges is a claim of political corruption and incompetence throughout the New York state court system. Considering the current prosecutions of city officials, one cannot debate the presence of some corruption; however, the claim of such widespread corruption does not seem supported. Even if accepted as true, the federal courts are of limited jurisdiction and are not intended to compensate for shortcomings in the state judicial system. In the absence of statutory or constitutional grounds for federal jurisdiction, an action cannot be maintained in this court. Consequently, the case must be dismissed. A few final matters must nevertheless be addressed.
On July 29, 1986, shortly after her deposition, Anna Richter died. Before her death was known to plaintiff's counsel, he had made his second motion "for an immediate jury trial," despite the fact that the defendants' motions to dismiss were still outstanding. When he learned of Mrs. Richter's death, plaintiff's counsel moved to have this case placed "in suspension." (We assume he means placed on the suspense docket.) He argues that administrators may be appointed for Richter's estate who may have diversity of citizenship with the defendants and could bring suit in connection with the legal fee claim. However, the Court cannot keep this case on the federal calendar on the questionable contingency that a future event may confer federal jurisdiction. Moreover, the conservatorship in the state court will now have to be wound up and final fees calculated. Any claims arising therefrom are not ripe for consideration. Consequently, we are dismissing the case as brought by the present plaintiff.
All that remains to be considered is the defendants' application for Rule 11 sanctions because of the filing of this purportedly frivolous action with an obvious absence of federal jurisdiction. The plaintiff's response to the application for sanctions and attorney's fees is to state as follows:
What mocking effrontery Mendalis displays, who is guilty of encouraging his client Gross to convert Richter's assets to his own use, when he asks that this gouging coward Gross who was willing to let Richter die before getting her full Police protection while she was missing for three days, now demands that this Court reward Gross's criminal neglect and conversion of assets to his own use with an award of punitive costs and attorneys fees.
Affirmation of Thomas J. Kavanagh, filed as "Plaintiff's Answer to Defendant Eugene Gross's Motion to Dismiss" at 3.
It is the height of mocking effrontery that the attorneys for the defendant Lamendola who has been exposed by documented facts to be an embezzler and perjurer capable of a Mafia style "undersell" to ask this Court to reward his criminal acts by imposing punitive costs and attorney fees on Christina Reedman . . . .
Affirmation of Thomas J. Kavanagh, filed as "Plaintiff Richter's Answer to Defendant Lamendola's Motion to Dismiss" at 4.
In addition to the claimed frivolous nature of the action, the defendants emphasize the defamatory and libelous nature of the charges made by attorney Kavanagh against everyone even remotely involved with this proceeding. Beyond any question, Kavanagh's papers are replete with scurrilous attacks on everyone from the justices of the Appellate Division, First Department on down, as well as rambling, unnecessary diatribes.
However, since we have not reached the merits of the action, it would appear inappropriate to sanction plaintiff and her counsel on that basis. The strongest argument in favor of sanctions rests on plaintiff's unreasonable and prolonged opposition to dismissing the case for lack of jurisdiction. Clearly, there is not, and never has been, a basis for federal jurisdiction, at least as pleaded in the complaint and amended complaint. In this Court's view that is more than adequate justification for assessing Rule 11 sanctions. However, a divided panel of the Second Circuit in Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006 (2d Cir. 1986) has disagreed with my view and has indicated that, in an action dismissed for lack of federal jurisdiction, it is improper for the Court to make such determinations. To do so would deter the "creativity that is the very lifeblood of the law." Id. at 1014 (quoting Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985)). Indeed, about the only time the Second Circuit approved of awarding Rule 11 sanctions, the trial judge had declined to grant them and, indeed, vigorously opposed their award. See Eastway Construction, supra. Here, the plaintiff's counsel has clearly stretched to assert federal jurisdiction. But, what may appear frivolous to this Court can apparently be viewed as "creative" to the Court of Appeals. Until the Second Circuit has clarified the line between creativity and frivolity, the District Courts in this Circuit must hesitate before imposing Rule 11 sanctions. Consequently, the application for sanctions is denied.
Dated: New York, N.Y, October 1, 1986,
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Reality check for virtual reality – the dangers of subpar VR experiences
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Figuring out the frequency of two word verbs
The December 2011 TESOL Quarterly contains a wonderful study by Dilin Liu analyzing the frequency of phrasal verbs across several corpora. This is a really useful article for teachers and materials writers, with lots of great information in it and … Continue reading
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Description of the Microsoft Office 2004 for Mac 11.5.3 Update
Microsoft has released security bulletins MS08-072 and MS08-074. These security bulletins contain all the relevant information about the security updates for Microsoft Office 2004 for Mac. To view the complete security bulletins, visit the following Microsoft Web sites:
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119591 How to obtain Microsoft support files from online servicesMicrosoft scanned this file for viruses. Microsoft used the most current virus-detection software that was available on the date that the file was posted. The file is stored on security-enhanced servers that help prevent any unauthorized changes to the file.
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|Microsoft Excel
|Microsoft Component Plugin
|Microsoft Word
update security_patch security_update security bug flaw vulnerability malicious attacker exploit registry unauthenticated buffer overrun overflow specially-formed scope specially-crafted denial of service DoS TSE
Note This is a "FAST PUBLISH" article created directly from within the Microsoft support organization. The information contained herein is provided as-is in response to emerging issues. As a result of the speed in making it available, the materials may include typographical errors and may be revised at any time without notice. See Terms of Use for other considerations.
Article ID: 960402 - Last Review: 06/25/2010 20:41:00 - Revision: 1.2
Microsoft Office 2004 for Mac Standard Edition, Microsoft Office 2004 for Mac Professional Edition, Microsoft Office 2004 for Mac Student and Teacher Edition, Microsoft Entourage 2004 for Mac, Microsoft Excel 2004 for Mac, Microsoft PowerPoint 2004 for Mac, Microsoft Word 2004 for Mac
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PDF pending restoration
ERIC Number: ED246065
Record Type: RIE
Publication Date: 1984-Apr
Pages: 24
Abstractor: N/A
Reference Count: 0
Type I Error Probabilities and Power of the Rank and Parametric ANCOVA Procedures.
Seaman, Samuel; And Others
The probability of obtaining a significant statistic, using the parametric analysis of covariance (ANCOVA) and the rank transform ANCOVA, was estimated for three conditions defined in terms of conditional distributions for two groups. The distributions were both normal, both skewed in the same direction but to different degrees, or both skewed to the same degree but in different directions. For each type of pair of conditional distributions both equal and unequal conditional means were studied. When the conditional distributions were skewed and the conditional means were unequal, both positive and negative correlations between height of the conditional mean function and degree or direction of skew were investigated. Sample size and strength of the covariate-dependent variable relationship were manipulated. The results were interpreted in terms of Type I error probabilities and power for testing two different null hypotheses: equality of two conditional mean functions, or equality of two conditional distributions. The results indicated the parametric ANCOVA should be used to test both hypotheses provided that the conditional distributions are normal or the correlation between the height of the conditional mean functions and the degree of skew is expected to be positive. (Author/DWH)
Descriptors: Analysis of Covariance, Correlation, Hypothesis Testing, Probability, Statistical Analysis
Publication Type: Speeches/Meeting Papers; Reports - Research
Education Level: N/A
Audience: Researchers
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Parametric Analysis; Rank Order; Type I Errors
Note: Paper presented at the Annual Meeting of the American Educational Research Association (68th, New Orleans, LA, April 23-27, 1984).


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BRIDGEPORT - Bridgeport's fire chief says they are looking into why the smoke detectors in a condo where a child was killed were apparently not working.
Three-year-old Sincere Pettway died and five others were hurt in the fire early Sunday morning.
Chief Brian Rooney says his department wants to get the word out that the city will provide smoke detectors for free for anyone who needs them.
Rooney says firefighters have installed almost 50,000 of them since Bridgeport's Safe Sleep program began in 2005, more than any other city in America.
He says people need one in every bedroom, every kitchen and anywhere there is a heating unit.


text:
January 2011 references and further reading
Top five habits that harm the heart
Kvaavik E, Batty GD, Ursin G, Huxley R, Gale CR. Influence of individual and combined health behaviors on total and cause-specific mortality in men and women: the United Kingdom health and lifestyle survey. Archives of Internal Medicine 2010; 170:711-8.
Myint PK, Luben RN, Wareham NJ, Bingham SA, Khaw KT. Combined effect of health behaviours and risk of first ever stroke in 20,040 men and women over 11 years' follow-up in Norfolk cohort of European Prospective Investigation of Cancer (EPIC Norfolk). BMJ 2009; 338:b349.
Chiuve SE, McCullough ML, Sacks FM, Rimm EB. Healthy lifestyle factors in the primary prevention of coronary heart disease among men: benefits among users and nonusers of lipid-lowering and antihypertensive medications. Circulation 2006; 114:160-7.


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I got new glasses this week and I really don't like them. Sigh. I hate picking out glasses because I'm so blind, when I'm trying on samples I seriously can't see myself or what I look like.
Now I'm stuck with these things for at least a year, and I was hoping to use my insurance to get new prescription sunglasses next year (I get one pair per year)


text:
Slide to see the images
Animal Sanctuary Society, Inc.
PO Box 24
Mt. Laurel, NJ 08054
Tender looked so sad in the high kill rate shelter due to overcrowding we wanted to give her a chance to have her own family.
Her golden color matches her tender golden eyes. She is a great alert dog that will let you know when someone is coming to your house. She will be a faithful and loving companion. Tender is looking for an angel to scoop her up and give her a loving home. Please fill out an application for her at www.animalsanctuarysociety.org
To adopt this pet, please fill out an adoption application online at www.animalsanctuarysociety.org.


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Belemnite ( Cylindroteuthis puzosiana ) showing ventral groove
By DarrenElliot
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Cylindroteuthis puzosiana most common of the Belemnites found in the Oxford Clay.
GEOLOGIC AGE: Middle Jurassic. 160 million years old.
STRATIGRAPHIC DETAIL: Lower Oxford Clay. Callovian Stage.
LOCATION: Peterborough, Cambridgeshire, UK.
Description: Large rostrum, commonly attaining a length of 150-170mm but reaching a maximum of approximately 240-250mm. Rostrum cylindrical to cylindriconical, and symmetrical or almost symmetrical in outline ( lateral aspect ) and profile ( ventral or dorsal aspect ).The apex is acute, although in some examples it may be rounded. Transverse sections of the rostrum are slightly compressed and sub circular to sub quadrate in form, often with a flattened venter. A sharply defined ventral groove is restricted to the apical quarter of the rostrum. Indistinct elongate depressions (lateral lines) are present on both flanks, and are especially well-defined in juvenile examples. The phragmocone is frequently absent from the alveolus, which penetrates up to one-quarter of the length of the rostrum.
Range: Very abundant. Lower Callovian (Calloviense Zone, Enodatum Subzone) to Lower Oxfordian (Mariae Zone, Praecordatum Subzone). Commonest in the Lower and Middle Callovian; very rare in the Lower Oxfordian.
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by Thomson West
2013. Texas Forms: Legal and Business. Thomson West. Vols. 1-17, in 24 books hardcover, with softcover 2013 Tables & Index volume. Together 25 books. Current through August 2013 supplements. Ex-private law library with location labels at base of spines or front covers, stamps and card pockets on inside covers, else very good. Publisher's Price USD 3,845. * Provides standard legal and business forms most commonly used in Texas practice. It contains more than 6,500 court-tested forms for transactions in real property, consumer protection, leases, contracts, personal property, business enterprises assignments, estate planning, nonprofit associations and corporations, assignments, family law, and commercial code. Each form includes a concise statement of controlling Texas law, as well as checklists, checkpoints, tables, cautions, reminders, and recommendations. (Inventory #: 65604)


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Original figures, from animals to humans
All kind of clothes, ancient and modern warriors...
Vehicles civilian or military, cars, boats, planes,...
All kind of props, weapons, furniture, ...
Morphs, poses, textures, and more ...
Making 3d models for Poser and
Daz Studio since 2001.
New creations in mind, stay tuned.
Credit card or Paypal
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Get free content easy and fast, no ads, direct downloads, you get the free content with just a click.
Tell us your doubts or questions.
You always get a fast reply, trying to solve all your doubts
If you like the adman v2 figure, try this great pack for him and convert your character in a good , or bad worker.
adh3d blog
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email : [email protected]
or use the envelop


text:
Helicobacter Pylori
- Do you like salt? Think againtribuneonlineng.com
- FWhen Bacteria Is a Good Thing: 10 Ways Probiotics and Prebiotics Can Change Your Lifefeeds.feedblitz.com
- Elie Wiesel, messenger to mankindvillages-news.com
- Texas Restaurant's Massive Fight Didn't Break Out Over $5 Chips And Salsahuffingtonpost.ca
- Two clues to the obesity epidemicvillages-news.com
- 5 Reasons To Add Spirulina To Your Diethuffingtonpost.ca
- There's No Such Thing as Pristine NatureThe New YorkerSweden
- Inside the Mind of a Mad Scientist: The Incredible Importance of Personal Sciencehuffingtonpost.com
- Did they die of diseases carried by humans?The Guardian
- TO YOUR GOOD HEALTHkilgorenewsherald.com
- Clyde Lovellette: Size plus skill villages-news.comCentral America
- Green tea may cut heart disease risk: Drink is high in antioxidants which helps regulate blood pressure and body fatDaily Mail
- Gut bacteria from Otzi the Iceman reveal our intimate ties to one microbe (+video)heralddemocrat.comNorth Africa
- Iceman study sheds new lighttriblive.comEurasia
- Frozen prehistoric mummy stuns scientists by remaining perfectly preserved for 5,300 yearsmirror.co.uk
- Iceman Ötzi's stomach bacteria 'rewrite textbooks'The Guardian
- 5,000-year-old stomach bug sheds light on human migrationThe Guardian
- Bacterium in Otzi the Iceman's stomach provides human migration cluesSydney Morning HeraldSouth Africa
- Iceman's gut microbes shed light on human migrationThe Japan Times
Frequent names
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text:
BuildMobile: YouTube and FourSquare from a Windows Phone AppBy Nick Randolph
The last couple of sites that I want to cover in this series on authentication from your Windows Phone application are YouTube and FourSquare . The former uses OAuth 1, whilst the latter uses OAuth 2. YouTube (i.e.
Taken from:
BuildMobile: YouTube and FourSquare from a Windows Phone App
3h 8m
Laravel 5
Get started with Laravel 5.2
5h 37m
User Interface Design with Sketch 4
Create your next web project with Sketch
1h 1m
Diving into ES2015
Get ahead of the curve with ES2015
Rails: Novice to Ninja
The ultimate beginner's guide to Rails!
Designing UX: Forms
Design forms that won't drive users crazy
Bootstrap: A SitePoint Anthology #1
Dive into the the popular front-end framework with this 106 page anthology!
Premium Book
Premium Book


text:
(612) 789-0498
Prime Home Construction, LLC
7 years in business
3620 Central Ave NE,
Minneapolis, MN 55418
Find a Location
BBB File Opened: 5/18/2010
Business Started: 7/06/2009
Business Started Locally: 7/06/2009
Business Management
- Miguel Quishpe, Owner
Contact Information
- Principal: Miguel Quishpe, Owner
Business Category
- Remodeling Services
- Kitchen & Bath - Design & Remodeling
- Kitchen Remodeling
- Building Contractors
- Building Restoration & Preservation
- Contractors - General
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Service AreaAFTON, MN, ALBERTVILLE, MN, ALMELUND, MN, ANDOVER, MN, ANNANDALE, MN, ANOKA, MN, APPLE VALLEY, MN, ARDEN HILLS, MN, ARLINGTON, MN, BAYPORT, MN, BECKER, MN, BELLE PLAINE, MN, BELLECHESTER, MN, BETHEL, MN, BIG LAKE, MN, BISCAY, MN, BLAINE, MN, BLOOMINGTON, MN, BOCK, MN, BRAHAM, MN, BROOKLYN CENTER, MN, BROOKLYN CTR, MN, BROOKLYN PARK, MN, BROWNTON, MN, BUFFALO, MN, BURNS TOWNSHIP, MN, BURNS TWNSHP, MN, BURNSVILLE, MN, CAMBRIDGE, MN, CANNON FALLS, MN, CARVER, MN, CASTLE ROCK, MN, CEDAR E BETHL, MN, CEDAR EAST BETHEL, MN, CEDAR, MN, CENTER CITY, MN, CENTERVILLE, MN, CHAMPLIN, MN, CHANHASSEN, MN, CHASKA, MN, CHISAGO CITY, MN, CIRCLE PINES, MN, CLEAR LAKE, MN, CLEARWATER, MN, CLEVELAND, MN, COKATO, MN, COLOGNE, MN, COLUMBIA HEIGHTS, MN, COLUMBIA HTS, MN, COLUMBUS, MN, COON RAPIDS, MN, CORCORAN, MN, COTTAGE GROVE, MN, CROWN COLLEGE, MN, CRYSTAL BAY, MN, CRYSTAL, MN, DALBO, MN, DARWIN, MN, DASSEL, MN, DAYTON, MN, DELANO, MN, DELLWOOD, MN, DENNISON, MN, DUNDAS, MN, EAGAN, MN, EAST BETHEL, MN,
Licensing, Bonding or Registration: This business is in an industry that may require professional licensing, bonding or registration. BBB encourages you to check with the appropriate agency to be certain any requirements are currently being met.
According to the information supplied by Prime Home Construction, this company offers residential and commercial remodeling services.
Licensing information is provided in the BBB Business Profiles to inform the public about industries that may require professional licensing, bonding, or registration. Better Business Bureau encourages you to check with the appropriate agency to be certain any requirements are currently being met.
Advertising Review
BBB promotes truth in advertising by contacting advertisers whose claims conflict with the BBB Code of Advertising. These claims come to our attention from our internal review of advertising, consumer complaints and competitor challenges. BBB asks advertisers to substantiate their claims, change ads to make offers more clear to consumers, and remove misleading or deceptive statements.
Government Actions
BBB reports on known significant government actions involving the business's marketplace conduct.
Out of Business
BBB reports on a company that is out of business for three years from the date the company closes its doors or ceases to do business.
Misuse of Better Business Bureau Name/Logo
BBB reports on unauthorized use of the Better Business Bureau's name and/or logo for as long as the business continues to use it in any advertising, or for one year after the business ceases any repeated unauthorized uses.
BBB reports on a business's bankruptcy as long as the business remains in bankruptcy.
Mail Returned
BBB reports when mail sent to the business was returned by the Postal Service.


text:
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From: "Kevin C. Crowell" Words and music: Ira Louvin, Eddie Hill & Charlie Louvin/Opryland, BMI Performers: Nashville Bluegrass Band Album: To Be His Child I've transcribed it as they play it in (A) using a capo on the second fret and playing G-shaped chords.
Are You Afraid to Die?G D G Are you a stranger to God? C D Carried away with your pride? G C Tell me sinner did you ever stop to think, G D G Are you afraid to die? (Instrumental Bridge) G/D/G Call on him while he is near. Moments are swift passing by. Will you seek him while he may be found? Are you afraid to die? Refrain: C G D G Are you afraid, are you unsaved? D G Are you afraid to die? (Instrumental Bridge) G/D/G Are you too wicked to cry? Would you to God's bosom fly? Soon he's coming like a thief in the night, Are you afraid to die? (Refrain 2X)


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Queerty is better as a member
This seems fun for a weekend, but way too superficial for a lifestyle which it seems to be for some of these individuals. Not to mention, it just feels like individuality and uniqueness are no longer, as everyone just looks the same.
Need an account? Register It's free and easy.
PHOTOS: Gibus Club In Paris Is All About Hot Guys And Hip Hop Music
PHOTOS: Gallant Guys In Tel Aviv Can't Keep Their Shirts On
PHOTOS: No Parking On The Dance Floor At Club Traffic In Berlin
PHOTOS: Inside Marseille's Premier (And Only!) Gay Disco
PHOTOS: Argentine Actor Chino Darín's Steamy Instagram Page Will Give You Life


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Dad's Swiss Steak(Marty Burks)
Anna Ewing
When I was growin-up my dad would make this dish and mom would make her gravy out of pan dripping.
Featured Pinch Tips Video
Directions Step-By-Step
1My dad didn't use a meat malet he took a knife and slice hafe way through the meat not all the way through criscrosse the meat on both side. Heat a iron skillet with oil. Salt& pepper flour. Dust both side of meat. Place meat in hot oil brown both side. Copped onion,carrot,green pepper.
2Add chopped veggies on top of meat add tomatoes,olive. Add water about 1/2 c. to the meat. Cover whith a lid and simmer for 3hr.
3Take the meat out of skillet. With the dripping make a gravy.
About this Recipe
Course/Dish: Beef, Steaks and Chops


text:
[ May] [121229] 7 Raijin power-up kits Ver.3.33 [d_054457]
Release Year: 2012/12/29
Original name: 7 Raijin power-up kits Ver.3.33
Studio Name: May
File size: 294.6 MB
d_054457 Ver.3.33.rar
For more details, please refer to [ How can I install the Japanese language pack? ] on the Frequently Asked Questions page.
Highlight the problem fragment mouse and press CTRL + ENTER.
In the window that appears, describe the problem and send a notice of the Administration site.
We would be most grateful if you share this article on the social networks:
- Tags: Humiliation, Virgin, Love, Pregnant, Married Woman, May


text:
Discussion in 'iTunes App Store Games & Apps' started by davidz222, Sep 8, 2008.
i love the papi games does any1 know when new ones are going to come to the app store
search this has already been posted
Check their site.
It's like sunflat.com or something.
Mabye .net
Separate names with a comma.


text:
Peter Pettigrew's mother
this wiki
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|"Are you a wizard or not?"
The title of this article is conjectural. Although it is based on canonical information, the actual name is conjecture and may be supplanted at any time by additional information released from canonical sources. If this occurs, please move this page to the appropriate title.
Mrs Pettigrew (fl. 1981) was the mother of Peter Pettigrew. Following her son's alleged death at the hands of Sirius Black in 1981, she was given the Order of Merlin that was awarded to him posthumously. It is known that the biggest bit of Peter Pettigrew she received was his index finger. It is unknown whether she is still alive, or if she is aware of her son's duplicity.
Peter Pettigrew
Little is known about the relationship between mother and son. The only thing Mrs Pettigrew received after her son faked his death the first time was his index finger. She also received his Order of Merlin, First Class, for standing up to Sirius Black (who was actually framed). It's unknown if she lived long enough to find the truth when it was exposed.
Behind the scenes
- It is possible that this character is Enid Pettigrew, although this is unconfirmed.
- Harry Potter and the Prisoner of Azkaban (Mentioned only)


text:
ERIC Number: ED230008
Record Type: RIE
Publication Date: 1983-Apr
Pages: 19
Abstractor: N/A
Reference Count: 0
Learning the New Way: Giving and Taking Instruction by Telecommunications.
Johnson, Marilyn Kay; Amundsen, Cheryl
A graduate special education teacher training program delivered via telecommunication instruction helped meet training needs in rural Alaska. Teachers in four areas were identified and their needs ascertained. The project promoted a flexible class design yet incorporated 7 of 10 courses required for special education certification. The distance delivery model incorporated interaction with faculty, audioconferencing, and taped classes followed by collect phone calls to the coordinator. Student grading and test materials were identical to on campus student work. Seven teachers successfully completed requirements for certification, with additional coursework taken by 24 others. (CL)
Publication Type: Speeches/Meeting Papers; Reports - Descriptive
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Alaska; Distance Education
Note: Paper presented at the Annual International Convention of The Council for Exceptional Children (61st, Detroit, MI, April 4-8, 1983).


text:
Play: Shadowless
Related Games
Description: Shadowless
Description: You are a wanderer without a shadow. You don't remember much about your past, but you've heard that the nefarious Queen of Shadows takes them from those that she recruits to do her bidding. Collect loot, gamble and level up your character to better battle the Queen's minion horde so that you may learn the truth about you and your shadow.
Control: Use game's intructions
Tags: shadowless, adventure, strategy games, free online, action games, fighting games
New racing games, shooting games, car games, bike games and sport games are added weekly! Shadowless Games


text:
SSTARS – Safeguards and Security Tracking, Analysis and Reporting
Y-12 National Security Complex
Contact Y12 About This Technology
Fact Sheet (821 KB)
SSTARS is a feature-rich system for issues management and enhanced tracking and trending related to security and safety. SSTARS allows users to drill down to distinct issues, such as security problems with a specific door during a particular time of day. Unlike other commercial systems, SSTARS has data-trending features that provide security and safety organizations the information they need to be proactive rather than reactive.Description
- Database can be linked to a real-time network
- Robust search capabilities, including keyword search
- Issues tracking and trending
- Modular design
- User-friendly interface
- Data entry and modification controls via role-based user access
- Topical/subtopical codes and causal codes
- Issues management functions provide the tools needed to prevent fines related to regulatory issues.
- System can be easily modified and customized.
- Trending data reveals emerging trends and allows resolution before larger issues arise.
- Resources can be managed more effectively based on trending data.
- Safeguards and Security organizations
- Environment, Safety and Health organizations
- Any organization that handles classified matter
- DOE and NNSA sites
The Y-12 National Security Complex has copyright protection for this technology.Technology Status
|Development Stage
|Last Updated


text:
Prices and availability are subject to change from the time and date that you print this page.
12/2/2016 7:32:56 PM. For Customer Service, please call 800.933.9904
Hero by day and villain by night? These reversible superhero masks and capes are ready to accommodate the bravest avenger or the most sinister evildoer (as long as it's before bedtime).
Reversible Masked Hero Boy Costume 34"Wx29.5"H
Details, details
- Nod exclusive
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- Blue, red and yellow stars and stripes superhero on one side, with reversible black and green villain on the other
- Two sides represent hero/villain
Show 'em what you're made of
Care instructions
Age range
At The Land of Nod, nothing is more important to us than providing safe, high-quality products to you and your family. We believe that kids' products should be able to handle everything kids throw their way (literally and figuratively). That's why all of our products have an 18-year quality guarantee. And, hopefully, your kids will no longer be sleeping in bunk beds by then.
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text:
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United States District Court, Southern District of New York
February 6, 2003
Petitioner Esau Staley III ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County. Upon a jury verdict, Petitioner was found guilty of one count of Attempted Rape in the First Degree and one count of Sexual Abuse in the First Degree. Petitioner was sentenced to a term of 15 years on the rape charge and seven years on the sexual abuse count. He is currently incarcerated at Green Haven Correctional Facility.
Petitioner challenges his conviction and asserts that (1) he was denied effective assistance of counsel; (2) his arraignment was improperly delayed; (3) the indictment against him was impermissibly amended; and (4) his due process rights were violated because he was not given an opportunity to testify before the grand jury. (See Pet. at § 12.)*fn1 Respondent argues that the petition should be dismissed on the grounds that Petitioner's claims are unexhausted, procedurally barred, or without merit. (See Resp. Mem. at 10-17.)*fn2 For the reasons stated below, I recommend that the petition be dismissed.
According to the testimony at trial, on the morning of October 23, 1995, Bah Fatoumata, ("Fatoumata") a 36-year old woman, arrived at work at the Bebe Hair Braiding Salon at 145 Eighth Avenue in Harlem. (Tr. at 100.)*fn3 She was the first to arrive, so she unlocked the front door. (Id.) The salon's glass door was covered by a large poster, thereby concealing the salon's interior from the street. (Id. at 104, 108.)
Shortly thereafter, Petitioner opened the front door of the salon and began talking to Fatoumata. (Id. at 101.) Fatoumata could not understand what he was saying, but Petitioner gestured in such a way as to indicate that he wanted his hair braided. (Id.) Fatoumata pointed to her watch to indicate that he should come back later. (Id. at 101, 115.) Petitioner then left the salon. (Id.)
Approximately 20 minutes later, Petitioner returned to the salon and began speaking again to Fatoumata. (Id.) Fatoumata testified that she was frightened by Petitioner, so she told him that she did not speak English and again pointed to her watch to indicate that he should come back later. (Id. at 101-02, 117.) Petitioner, however, closed the door and walked towards Fatoumata. (Id. at 102.) Petitioner then grabbed Fatoumata and pulled her onto the floor. (Id.) Fatoumata and Petitioner began to struggle as Petitioner attempted to rape Fatoumata. (Id. at 102-04, 120-130.) Petitioner grabbed a pair of scissors that were nearby, and attempted to cut Fatoumata's pants, and to stab her in the neck. (Id. at 102, 124.) After a struggle over the scissors, Petitioner cut Fatoumata's face near her right eye. (Id. at 104.) During the struggle, Fatoumata managed to rip one of the posters off the glass door, hoping that someone on the street would then see and help her. (Id. at 104-05, 235.)
At some point between 9:00 a.m. and 10:00 a.m. that morning, Lacine Kamara ("Kamara") was bringing his girlfriend, Mawa Kata ("Kata"), to work at the salon. (Id. at 248.) He saw that the poster had been pulled down, and spotted two feet on the ground inside the store with the toes pointing up. (Id. at 248-50.) Kamara and Kata approached the salon to investigate. (Id. at 250.) When Kata pushed the door open, Petitioner got up and ran from the store. (Id. at 251.) After spotting Fatoumata in the store, covered with blood, Kamara chased after Petitioner. (Id. at 251-52.) He was joined by some uniformed police officers and one of them, Police Officer Guillermina Tavares ("Tavares"), apprehended Petitioner. (Id. at 252, 260-61.)
Kamara returned to the salon immediately after Petitioner was taken into custody. (Id. at 252.) Tavares arrived at the salon shortly thereafter. (Id. at 261-62.) At that time, she found Fatoumata lying on the ground outside of the store near the scissors, which Tavares collected as evidence. (Id. at 262-65.) Fatoumata had a cut by her right eye, and acted as if she were in shock. Since she did not speak English, Fatoumata was unable to tell the police what had happened. (Id. at 134, 263.) A bystander told Tavares that Petitioner had tried to rob Fatoumata. (Id. at 272.)
Fatoumata was taken by ambulance to Columbia Presbyterian Hospital, where she was met by her husband and brother. (Id. at 193-94.) With her family interpreting, Fatoumata told the hospital staff what had happened. (Id. at 194-95.) On November 8, 1995, Fatoumata picked Petitioner out of a line-up. (Id. at 167.)
A. Pre-Trial Proceedings
On October 24, 1995, the day after his arrest, Petitioner was taken to Criminal Court, Supreme Court, New York County, to be arraigned on a felony complaint. (See Respondent's Affidavit in Opposition to Petition for a Writ of Habeas Corpus, sworn to April 1, 2002 ("Resp. Aff."), Ex. G.) The government asserts that Petitioner was, in fact, arraigned on October 24, although his case was then adjourned to October 27, in order to determine whether the grand jury would return an indictment against him. (See Resp. Mem. at 13.) It appears from the record that the government is correct on this point, and it also appears that counsel appeared for Petitioner at the time of his arraignment on October 24. (Resp. Aff., Exs. G and M.) Petitioner, however, disputes that he was arraigned on October 24, contending that he was not actually arraigned until October 27. (See Resp. Aff., Exs. F and G.)
On November 1, 1995, Petitioner was indicted on one count each of first degree rape, sexual abuse, and second degree-burglary. On April 10, 1996, the burglary count was dismissed.*fn4 On May 2, 1996, a Wade/Huntley hearing was held before the Honorable Franklin R. Weissberg.*fn5 (See Resp. Mem. at 6; Resp. Aff., Exs. A and B.) In that hearing, Petitioner moved to suppress his post-arrest statements and the victim's identification testimony. (Id.) On May 16, 1996, Justice Weissberg denied Petitioner's motion to suppress the identification evidence, but granted a portion of Petitioner's motion to suppress his statements. (Id.)
B. Jury Selection and Trial
Petitioner was tried by a jury from May 20, 1996, through May 23, 1996. At trial, the prosecution's witnesses were Fatoumata, Kamara, Tavares, and Detective John Savino. Petitioner presented no witnesses and did not testify on his own behalf. On May 23, 1996, the jury found Petitioner guilty of first degree rape and first degree sexual abuse. (Tr. at 391.) On June 10, 1996, Petitioner was sentenced to a term of 15 years on the rape charge and seven years on the sexual abuse count. See People v. Staley, 262 A.D.2d 30, 30, 692 N.Y.S.2d 314 (1st Dep't 1999).
C. Direct Appeal
Petitioner appealed his conviction to the Appellate Division, First Department. On appeal, he raised the following two claims: (1) the trial court erred in denying Petitioner's request to call Fatoumata to testify at the Wade hearing; and (2) that the trial court erred in denying Petitioner's motion for a mistrial based on the interpreter's alleged mis-translation of Fatoumata's testimony. (See Resp. App. Ex. B.) On September 30, 1999, the Appellate Division affirmed Petitioner's conviction. See People v. Staley, 262 A.D.2d 30, 692 N.Y.S.2d 314 (1st Dep't 1999). In its opinion, the Appellate Division concluded that the "hearing court properly denied defendant's request for the complainant to testify at the Wade hearing." 262 A.D.2d at 30, 692 N.Y.S.2d at 314. Additionally, the Appellate Division held that Petitioner "failed to establish that there was any error in the translation of the complainant's testimony." Id., 692 N.Y.S.2d at 315.
Petitioner sought leave to appeal the affirmance of his conviction. (See Resp. App. Ex. D.) On June 28, 1999, leave to appeal to the Court of Appeals was denied. See People v. Staley, 93 N.Y.2d 979, 695 N.Y.S.2d 66 (1999).
D. Petitioner's Motion To Vacate The Conviction
On June 27, 2000, Petitioner, proceeding pro se, filed a motion in the trial court, seeking to vacate the judgment pursuant to New York Criminal Procedure Law §§ 440.10(1)(h). (See Resp. Aff. Ex. F.) Petitioner claimed that he was entitled to post-conviction relief on the ground that he was denied effective assistance of trial counsel. Specifically, Petitioner alleged that his trial attorney failed: (1) to challenge an alleged 72-hour delay between the time of Petitioner's arrest and his arraignment; (2) to challenge the legality of the initial accusatory instrument, which, according to Petitioner, contained charges different than those upon which he was indicted; (3) to advise Petitioner of his right to testify before the grand jury; and (4) to challenge the trial court's ruling concerning alleged errors of translation by the official court interpreter. (See id.) The State opposed Petitioner's motion on November 6, 2000. (See id., Ex. G.)
By written opinion dated December 13, 2000, the trial court denied Petitioner's Section 440.10 motion, stating:
Despite some apparent confusion on defendant's part, the
record clearly reveals that defendant was arraigned in a
timely manner. Defendant also asserts that his trial
lawyer was ineffective in failing to challenge the
legality of the felony complaint. Regardless of the
sufficiency of the felony complaint, however, the return
of an indictment by the Grand Jury served to cure any
alleged defect. As such, defendant's trial attorney's
failure to raise these issues below did not constitute
ineffective representation.
In addition, defendant claims [sic] that his attorney
was ineffective because he failed to inform him of his
right to testify before the Grand Jury is similarly
denied. Assuming arguendo that this claim is true, a
point which the People do not concede, a failure to
effectuate a defendant's alleged desire to testify
before a Grand Jury does not rise to a deprivation of
meaningful representation. (citation omitted).
Finally, the remaining purported error by the trial
court, which involved the accuracy of the court
interpreter's translation, was already unsuccessfully
raised on direct appeal. As the underlying error
complained of by the defendant was not error at all, it
clearly cannot be used to form the basis for a finding of
ineffectiveness of counsel.
On March 20, 2001, the Appellate Division denied Petitioner's motion for leave to appeal the denial of his Section 440.10 motion. (See id., Ex. K.) The instant petition followed.
A. Exhaustion
1. Legal Standards
A federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state courts, thereby affording those courts the "opportunity to pass upon and correct alleged violations of . . . [a] prisoner's federal rights." Picard, 404 U.S. at 275 (citation omitted).
The standards for presenting federal constitutional claims to state courts are not so stringent as to require the recitation of "book and verse on the federal constitution." Picard, 404 U.S. at 278 (citation omitted). However, the state courts must be "apprised of `both the factual and the legal premises of the claim [the petitioner] asserts in federal court.'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Petitioners can ensure that state courts are "alerted to the fact that [they] are asserting claims under the United States Constitution," Duncan v. Henry, 513 U.S. 364, 365-66 (1995), by presenting their claims in a fashion demonstrating either
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact
situations, (c) [an] assertion of the claim in terms
so particular as to call to mind a specific right
protected by the Constitution, [or] (d) [an]
allegation of a pattern of facts that is well within
the mainstream of constitutional litigation.
2. Petitioner Has Presented a "Mixed" Petition.
In this case, it appears that Petitioner has presented a "mixed petition," containing both exhausted and unexhausted claims. See Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001).
Petitioner's first claim alleges ineffective assistance of counsel, a claim Petitioner raised previously in his Section 440.10 motion. As noted above, Petitioner asserted in that motion that his trial counsel was ineffective for failing to challenge certain purported constitutional violations involving, inter alia, the timing of Petitioner's arraignment, the appropriateness of the indictment on which he was tried, and the conduct of the grand jury proceedings. When Petitioner's Section 440.10 motion was denied by the trial court, Petitioner sought leave to appeal the denial of that motion to the Appellate Division. Once the Appellate Division denied leave to appeal, Petitioner's ineffective assistance claim was exhausted for purposes of habeas review. See Klein v. Harris, 667 F.2d 274 (2d Cir. 1981) ("no appeal to the New York Court of Appeals lies from an order denying a motion for leave to appeal to the Appellate Division"), overruled on other grounds by Daye, 696 F.2d at 195; Jackson v. Moscicki, No. 99 Civ. 2427 (JGK), 2000 WL 511642 at *5 (Apr. 27, 2000) (petitioner exhausted his ineffective assistance of counsel claim by raising it in a Section 440.10 motion and seeking leave to appeal to the Appellate Division). Therefore, to the extent the ineffective assistance claim now being asserted by Petitioner is the same as the claim he asserted in his Section 440.10 motion, the exhaustion requirement is satisfied.*fn6
In this habeas proceeding, Petitioner is now also directly challenging three of the alleged constitutional violations that formed the predicate of the ineffective assistance claim that he raised in his Section 440.10 motion. Because he never previously raised any of these alleged violations as separate and distinct claims — either in the Section 440.10 motion itself or on direct appeal — these additional claims are arguably all unexhausted. See Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) ("A court considering ineffective assistance might never reach the underlying constitutional claims, and the rejection of the ineffective assistance claims without detailed comment does not bespeak any necessary ruling on the underlying constitutional claims."). Nonetheless, it seems appropriate, under Turner, to consider one of these additional claims exhausted, in that the trial court effectively ruled on it, on the merits, in the context of the court's decision rejecting the ineffective assistance claim. See id. (expressly declining to address the situation where the state court clearly analyzed the merits of an underlying claim). More specifically, and as quoted above, the trial court held that Petitioner's counsel had not been ineffective for failing to object to an unconstitutional delay in Petitioner's arraignment, because, as a factual matter, there was no delay in arraignment. (See supra at 6.) Because the trial court actually addressed the purported delay, that particular underlying claim should be viewed as exhausted. The other two underlying claims, however, should be considered unexhausted, as they were never presented as separate claims — or separately analyzed — by the state court.
2. Petitioner's Unexhausted Claims Should Be Deemed Exhausted and
Procedurally Barred.
In this instance, Petitioner could have raised his unexhausted claims in his one opportunity for direct appeal,*fn7 but did not do so. For this reason, he is now foreclosed from raising the claims collaterally in another Section 440.10 motion. See N.Y. Crim. Proc. § 440.10(2)(c) (barring collateral review of claims that could have been raised on direct appeal). Petitioner also cannot seek state review of his unexhausted claims pursuant to either a writ of error coram nobis, see People v. Gordon, 183 A.D.2d 915, 584 N.Y.S.2d 318 (2d Dep't 1992) (coram nobis relief only available for claims of ineffective assistance of appellate counsel) (citation omitted), or a state writ of habeas corpus, see People ex rel. Allah v. Leonardo, 170 A.D.2d 730, 565 N.Y.S.2d 331 (3d Dep't 1991) (state writ of habeas corpus unavailable where claim could have been raised on direct appeal) (citations omitted). Because Petitioner now has no procedural recourse to New York's courts to advance his unexhausted claims, those claims are appropriately deemed exhausted. See Bossett, 41 F.3d at 828-29; Grey, 933 F.2d at 120-21.
When, however, a claim is deemed exhausted because of a procedural bar, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim." Gray v. Netherland, 518 U.S. 152, 162 (1996); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001). The only ways that Petitioner can overcome the procedural bar to review in this Court are to show (1) both "cause" for failing properly to raise the claim in state court and "prejudice" resulting from the alleged constitutional error, or (2) that the failure to address the claim on habeas would result in a "fundamental miscarriage of justice." See Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this case, Petitioner cannot satisfy either standard, with respect to either of his unexhausted claims.
"Cause" for a procedural default is established when "some objective factor external to the defense" impeded the petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Ayuso v. Artuz, No. 99 Civ. 12015 (AGS) (JCF), 2001 WL 246437, at *8 (S.D.N.Y. Mar. 7, 2001). Cause for a default exists where a petitioner can show that (1) "the factual or legal basis for a claim was not reasonably available to counsel," (2) "`some interference by state officials' made compliance [with the procedural rule] impracticable," or (3) "the procedural default is the result of ineffective assistance of counsel." Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citation omitted). "Prejudice" requires Petitioner to demonstrate that the alleged constitutional error worked to Petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
Here, Petitioner cannot demonstrate any "cause" for his procedural defaults. He has not shown, and cannot show, that the factual or legal bases for his defaulted claims were not reasonably available at the time of his direct appeal. Nor has Petitioner alleged, and there is no evidence suggesting, that his failure to raise the claims on direct appeal resulted from either interference by state officials or ineffective assistance of appellate counsel. As Petitioner cannot show cause for his procedural defaults, this Court need not reach the question of whether Petitioner can show prejudice. See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) ("Since a petitioner who has procedurally defaulted in state court must show both cause and prejudice in order to obtain federal habeas review, we need not, in light of our conclusion that there was no showing of cause, reach the question of whether or not [petitioner] showed prejudice.").
The Court may also excuse a procedural default where the petitioner "can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Coleman, 501 U.S. at 750). This exception, however, is quite narrow; it is "concerned with actual as compared to legal innocence." Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Thus, to meet this standard, a petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496. "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). In this case, Petitioner has offered no evidence, scientific or otherwise, showing his actual innocence. Therefore, Petitioner has not made an adequate showing to satisfy the fundamental miscarriage of justice exception. Accordingly, Petitioner's unexhausted claims should be dismissed as procedurally barred.
Moreover, as discussed further below (see infra at 19-22), Petitioner's unexhausted claims should be dismissed in any event, because they do not actually raise federal constitutional issues, and thus they are not cognizable on habeas review.
B. Standard of Review
Where the state court has reached the merits of a claim, this Court must apply a deferential standard in reviewing that claim in a habeas proceeding. Specifically, this Court must adhere to the standard of review set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the relevant portion of which provides:
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; or (2) resulted in
a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court clarified the meaning of the "contrary to" and "unreasonable application" clauses of AEDPA Section 2254(d)(1). A state court decision is "contrary to" clearly established federal law where the state court either applies a rule that "contradicts the governing law" set forth in Supreme Court precedent, id. at 405, or "confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision" and arrives at a different result, id. at 406. An "unreasonable application" of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to the particular facts before it. Id. at 413. The Supreme Court has explained that "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. Thus, the writ may not issue simply because the state court decision is erroneous or incorrect; rather, the application must also be unreasonable. Id. at 411.
AEDPA Section 2254(d), however, only applies to the review of claims that have been "adjudicated on the merits" by the state court. 28 U.S.C. § 2254(d). The Second Circuit has held that the phrase "adjudicated on the merits" means "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Where the state court has rejected a claim on procedural grounds or has otherwise not reached the merits of the claim, this Court must review that claim de novo. See Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001).
C. Petitioner's Claims
1. Ineffective Assistance of Counsel
To the extent the state court adjudicated Petitioner's ineffective assistance of counsel claim on the merits on Petitioner's Section 440.10 motion, this Court must review that determination under AEDPA's deferential standard of review. Applying that standard of review, the Court should dismiss the claim.
The right to counsel in criminal prosecutions is grounded in the Sixth Amendment. Because the Constitution "envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results[,] . . . `the right to counsel is the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 685-86 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)). Counsel can deprive a criminal defendant of this right "simply by failing to render `adequate legal assistance.'" Id. at 686 (citation omitted).
In order for counsel to be deemed constitutionally "ineffective," however, counsel's conduct must have "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. Petitioner can demonstrate such ineffectiveness by showing both that: (1) counsel's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. The Court may reject an ineffective assistance of counsel claim for failure to satisfy either of these prongs of the Strickland standard, without reaching the other. See id. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."); see also Morales v. United States, 199 F.3d 1322 (Table), No. 98-3700, 1999 WL 1015641, at *1 (2d Cir. 1999) (court did not address "whether appellant's trial counsel was unreasonably deficient in his performance because any deficiency in this regard did not prejudice appellant").
Here, if Petitioner is resting his ineffective assistance claim on the contention that his trial counsel failed to challenge an alleged 72-hour delay between the time of Petitioner's arrest and arraignment, then Petitioner cannot meet the Strickland standard because he is relying on an incorrect factual premise. In ruling on Petitioner's Section 440.10 motion, the trial court found that, despite "apparent confusion" on the part of Petitioner, the record "clearly reveal[ed]" that Petitioner had been arraigned in a "timely manner." (See Resp. Mem. Ex. H.) Under AEDPA, this factual finding is "presumed correct" and can only be overcome by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Not only has Petitioner failed to present any evidence to rebut this factual finding, but this Court's own review of the documentary record regarding Petitioner's arraignment reveals that Petitioner was initially arraigned on October 24, 1995, the day after he was arrested, and that he was represented by a lawyer at his arraignment. (See Resp. Aff., Exs. G and M.)*fn8
As this Court must accept as correct the state court's finding that there was no unreasonable delay in Petitioner's arraignment, it cannot be said that Petitioner's counsel acted unreasonably in failing to challenge the alleged delay. Nor can it be said that the state court's resulting rejection of Petitioner's ineffective assistance of counsel claim was contrary to, or an unreasonable application of federal law, under 28 U.S.C. § 2254(d). Accordingly, to the extent Petitioner is asserting such a claim here, it should be dismissed under AEDPA.*fn9
2. Speedy Arraignment
Petitioner also claims that the alleged 72-hour delay before his arraignment was itself a constitutional violation. Liberally construed, this claim could be read to suggest that the alleged delay implicated defendant's Sixth Amendment right to a speedy trial. See Holmes v. Bartlett, 810 F. Supp.2d 550, 561-62 (S.D.N.Y. 1993) (analyzing claim by habeas petitioner of delay between arrest and arraignment as an alleged violation of the Sixth Amendment right to a speedy trial). As already discussed, however, the trial court found, and the record reflects, that Petitioner was actually arraigned within one day of his arrest. Under the circumstances, Petitioner can have no basis for arguing any constitutional violation.
Indeed, even if Petitioner were correct that 72 hours elapsed before he was arraigned, he would still have no grounds to complain that this violated a constitutional right. In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court held that the following four factors must be considered in determining whether a defendant' Sixth Amendment right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) whether or not the defendant asserted his right; and (4) prejudice to the defendant. Id. at 530-33. The Court noted that "[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id. at 530. In this case, Petitioner's bases his claim solely on the length of the alleged 72-hour period between his arrest and arraignment. This delay is not "presumptively prejudicial." See United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992) (suggesting that any delay over eight months is presumptively prejudicial, while a delay of less than five months is not); United States v. Ballam, 70 F.3d 1280, 1995 WL 710498 at *2 (9th Cir. 1995) (text in Westlaw) (stating that "[t]he judicial consensus of how much time must go by before a delay is presumed prejudicial ranges from eight months . . . to one year"); United States v. Pereira, 463 F. Supp. 481, 488 (E.D.N.Y. 1978) (holding that a delay of 20 days was not presumptively prejudicial).
Moreover, in Williams v. Ward, 845 F.2d 374 (2d Cir. 1988), the Second Circuit held that delays of 72 hours between arrest and arraignment in the New York City criminal justice system do not violate the right under the Fourth and Fourteenth Amendments to obtain a probable cause determination within a "brief" period of time after arrest. See id. (holding that "the procedural benefits provided to arrestees under New York City's arraignment system justify constitutionally arrest-to-arraignment periods of seventy-two hours in length"). Thus, if Petitioner's claim is based on the Fourth Amendment, it would fail under Williams.
For these reasons, Petitioner has not shown that the state court's rejection of this claim was contrary to, or involved an unreasonable application of federal law. See 28 U.S.C. § 2254(d). Accordingly, this claim should be dismissed.
3. Petitioner's Remaining Claims
Petitioner's last two claims relate to the conduct of the state grand jury proceedings. Specifically, Petitioner claims that (a) the original indictment against him was impermissibly amended, and (b) he was unfairly denied the opportunity to testify before the grand jury. (Pet. §§ 12(C) and (D).) As discussed above (see supra at 10-13), these claims are unexhausted and procedurally barred. Further, they cannot be reviewed in this Court, as they do not implicate federal constitutional rights.
a. Amendment of the Indictment
According to Petitioner, the assistant district attorney went to the grand jury with robbery charges on October 27, 1995, but then determined that robbery charges were not warranted. (See Pet. §§ 12(B) and (C).) On November 1, 1995, Petitioner was indicted on different charges, i.e. on one count each of first degree rape, sexual abuse, and second degree-burglary. (See Pet. § 12(C).) Based on these allegations, Petitioner contends that the indictment against him was improperly amended. (Id.) Respondent, however, asserts that Petitioner has misunderstood the relevant proceedings. (See Resp. Mem. at 15.) Respondent contends that, in claiming that the indictment "broaden[ed] and altered" the initial charges against him (Pet. § 12(C)), Petitioner must be referring to the fact that the felony complaint against him included a different charge (i.e. robbery) than the charges ultimately contained in the indictment (i.e. first degree rape, sexual abuse, and second-degree burglary). (See Resp. Mem. at 15.) Respondent asserts that the prosecution properly submitted to the grand jury the charges on which Petitioner was eventually indicted, and that the indictment itself was never amended. (Id.)
It appears that, in deciding Petitioner's Section 440.10 motion, the state court accepted Respondent's version of events. (See Resp. Mem. Ex. H (finding that "return of an indictment by the Grand Jury served to cure any alleged defect" in the original felony complaint).) Any such factual finding by the state court is presumed correct under AEDPA. 28 U.S.C. § 2254(e)(1). Yet regardless of whether the state court entirely resolved the relevant factual issue, Petitioner does not relate his claim to a federal constitutional violation (see Pet. § 12(C) (contending only that the indictment was amended), and therefore his claim is not cognizable on habeas review.
It may be that Petitioner is attempting to argue, as he did in his Section 440.10 motion, that the purported amendment to his indictment violated his right "to be tried only on charges brought by the Grand Jury indictment." (See Resp. Aff., Ex. F, at 11-12.) Yet if this is Petitioner's argument on habeas review, his claim still fails. The right to have state charges presented to a grand jury is a state-created right, not a federal right. Rodriguez v. Senkowski, No. 92 Civ. 5484, 1995 WL 347024, at *2 (E.D.N.Y. May 31, 1995) (rejecting challenge to a state trial court's amendment of an indictment). Accordingly, "any alleged impropriety in the amendment of the indictment is predicated on state law, and is therefore beyond this Court's review." Id.; see also Medina v. Herbert, No. 98 Civ. 1871, 1998 WL 799173 at *5 (S.D.N.Y. Nov. 16, 1998) ("In general, challenges to the sufficiency of a state indictment are not issues cognizable on habeas review.").
b. Deprivation of Right To Testify Before the Grand Jury
Petitioner finally claims that his due process rights were violated because he was never given the opportunity to testify before the grand jury. (Pet. § 12(D).) Once again, however, any alleged defects in the state grand jury process are not cognizable on habeas review. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (holding that claims concerning state grand jury proceedings are foreclosed from habeas review because "any error in the grand jury proceeding was rendered harmless beyond reasonable doubt by the petit jury's guilty verdict"); Afflic v. New York, No. 01 Civ. 6152, 2002 WL 500373 (S.D.N.Y. Apr. 3, 2002) ("Petitioner's claim that he was not advised of his right to appear before the Grand Jury does not present an issue of constitutional dimension, but merely one of state law"); McMoore v. Miller, No. 98 Civ. 1915, 2002 WL 975305 at *9 (S.D.N.Y. Apr. 19, 2002) (dismissing habeas claim based on petitioner's failure to testify before the grand jury because "[petitioner's] right to testify before a grand jury is based solely on state law, the wrongful denial of that right does not entitle him to a federal writ of habeas corpus") (emphasis in original).
As Petitioner's claim does not implicate a federal constitutional right, it cannot be reviewed in this Court, and should be dismissed.
For the foregoing reasons, I recommend that Petitioner's petition for a writ of habeas corpus be dismissed in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, United States Courthouse, 500 Pearl Street, Room 1340, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 22 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
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