Full opinion text
ORDER SCHEINDLIN, District Judge. I have duly considered petitioner’s Objections, dated May 17, 1999, to the Report and Recommendation of United States Magistrate Judge Andrew J. Peck, dated March 19, 1999, and have found them to be without merit. Accordingly, I hereby accept and adopt the thoughtful and extremely thorough Report and Recommendation in full and dismiss the above-referenced habeas petition. The Clerk of the Court is directed to close this case. SO ORDERED. REPORT AND RECOMMENDATION PECK, United States Magistrate Judge. Petitioner Luis Avincola seeks a writ of habeas corpus from his 1986 conviction of murder in the second degree, for which he was sentenced to twenty-five years to life imprisonment. (See Pet. ¶¶ 1-4.) Avinco-la raises numerous grounds in his petition. One of his grounds, that the trial court improperly omitted a circumstantial evidence charge from the jury instructions (Pet-¶ 12(F)), was denied by the state court on a state procedural ground. Therefore, this denial rested on an adequate and independent state law ground and federal ha-beas review of this claim is barred. The federal nature of one of Avincola’s grounds, that the trial court improperly admitted evidence of uncharged crimes (Pet-¶ 12(B)) was not fairly presented to the state court. Because Avincola may no longer raise it in state court, this claim is deemed exhausted; however, his procedural default bars federal habeas review of this claim. Additionally, two parts of his prosecutorial misconduct claim (Pet. ¶ 12(E)) have never been presented to any state court. Avincola is now procedurally barred from raising these claims in state court, so they are deemed exhausted, but his procedural default also bars federal habeas review of these claims. Avincola’s remaining grounds — (1) improper admission of hearsay evidence (Pet-¶ 12(F)), (2) violation of his Fifth Amendment rights based on the improper admission of statements he made while in custody (Pet. ¶ 12(A)), (3) violation of his confrontation rights under the Sixth Amendment (Pet. ¶ 12(C)), (4) the remaining prosecutorial misconduct claims (PetJ 12(D)-(E)), (5) ineffective assistance of trial counsel (Pet. ¶ 12(G)), and (6) ineffective assistance of appellate counsel (Pet^ 12(G)) — are all exhausted, but lack merit. Accordingly, for the reasons set forth below, the Court should deny Avincola’s habeas petition. FACTS At approximately 6:00 p.m. on December 30, 1985, Luis Avincola, also known as “Columbia,” shot and killed Rudolpho Garcia, also known as “San Martin.” Soon after the shooting, Avincola told San Martin’s girlfriend, Nilda Ortiz Rivera, also known as “Flaca,” that he had just killed her “old man.” (E.g., Trial Transcript [hereinafter, “T.”] 305, 315-16, 331.) Avincola’s In Custody Statements to the Police At the crime scene, Rivera reported to the police that a man named “Columbia” had just approached her and told her that he had shot San Martin. (6/30/96 Suppression Hearing Tr. [hereinafter, “S.”] 99,122-23; see also Ex. B: 7/14/86 Trial Ct. Opinion at 2-4.) Based on that information, the police arrested Avincola later that night. (S. 14-15; see Ex. B: 7/14/86 Trial Ct. Op. at 3.) When Avincola was brought to the precinct, he appeared to the police to be “stoned,” that is, under the influence of cocaine, as his pupils were dilated and he was in a “very hyper” state. (S. 78-79, 89-90; see Ex. B: 7/14/86 Trial Ct. Op. at 5.) However, his speech was not slurred and he appeared to know where he was. (S.90-92.) Detective Palma read Avincola his Miranda rights in English, but Avincola indicated in Spanish that he did not understand. (S. 34, 40-41, 69-70, 91-92; see Ex. B: 7/14/86 Trial Ct. Op. at 4-5.) Detective Palma, who is bilingual, read Avincola a Spanish version of the Miranda rights, which Avincola indicated he understood. (S. 34, 40-41, 41-43, 45, 91-93; see Ex. B: 7/14/86 Trial Ct. Op. at 5.) Telling the police that he had nothing to hide, Avinco-la answered subsequent questioning by police after he ate some food and had slept for around four hours. (S. 45, 79, 82-83; see Ex. B: 7/14/86 Trial Ct. Op. at 5-6.) Avincola told the police that “San Martin[ ] was following him around the neighborhood. And he was trying to take me off. And that’s why I stated I was going to kill him. Because I thought he had a gun.” (S. 55; see Ex. B: 7/14/86 Trial Ct. Op. at 6-7.) The police prepared a written version of this statement, but Avincola did not sign it. (S. 55-56; see Ex. B: 7/14/86 Trial Ct. Op. at 6.) Prior to trial, Avincola filed a motion to suppress, inter alia, his statements to the police. (See Ex. B: 7/14/86 Trial Ct. Op. at 8.) A suppression hearing was held prior to trial. At the hearing, Detective Palma testified as to the reading of the Miranda warning: [DETECTIVE PALMA]: When I read him his rights in English he stated he didn’t understand it. When I read them in Spanish, he responded yes to all the questions. So therefore, I realized this individual understood what I was telling him. Q Did you have to repeat any of the rights? A No. Q Did he ask you to repeat any of the rights? A No. Q Did he ask you to repeat any of them? A No. Q Did he answer yes right after you completed asking the rights in Spanish? A Yes. Q No hesitation? A No, no hesitation whatsoever. (S.91-93.) Additionally, the trial court asked Detective Palma to state in Spanish the Miranda warnings that he gave to Avincola, which were translated as follows: THE COURT: I want to hear from the detective now what he said and I want the [official court] interpreter to listen to it. Say what you said in Spanish to him. (Whereupon the witness read from a document in Spanish.) THE COURT: Will you interpret that? THE INTERPRETER: .... You have the right to remain silent. And to answer questions; do you understand? Anything you say we can use against you; do you understand? You have the right to consult a lawyer before you answer any questions and to have an attorney present to answer questions; do you understand? If you don’t have the abil [sic] for a lawyer the city will give you a free one. With my command of two languages I understood. It is not a perfect Spanish, it would be hard to understand for a non-educated person. THE COURT: Don’t give me an evaluation, but translate into English even with mistakes what he is saying. THE INTERPRETER: If you don’t have a lawyer at your disposal you have the right to state silence until you have the opportunity to have an attorney. Now that I have advised you of your rights, do you want to speak right now with the police? [DETECTIVE PALMA]: His answer was he had nothing to hide. (S.44-45.) The trial court denied Avinco-la’s suppression motion, finding that Avin-cola “was fully and properly advised of his Miranda rights in Spanish by Detective Palma and knowingly and intelligently waived those rights.” (Ex. B: 7/14/86 Trial Ct. Op. at 8.) The Prosecution’s Opening Statement at Trial In his opening statement at trial, the prosecutor told the jury about a witness to the shooting: And as I indicated the incident happened sometime around 7 o’clock that evening. The evidence will come from a witness named Luis Alvarado who was present in the apartment on the third floor, whose attention was drawn to an argument between the deceased and defendant on the third floor landing immediately outside the door.... Evidence will show that [Alvarado] was watching a Spanish soap opera on TV. After initially going to the peephole in the inside of his apartment, he then walked away. Within moments he heard a single gunshot. He went back to the peephole and saw the defendant with a sawed-off rifle running down the stairs from the third floor down to the second floor. He lost sight of him. (T. 27.) When the prosecution was unable to produce Alvarado as a witness at trial, Avincola’s counsel moved for a mistrial. (T. 855-66.) In response, the prosecutor stated that he had intended to call Alvarado as a witness at trial, and had met with Alvarado in his office on the morning of July 7, 1986, a few days before the trial was scheduled to commence. (T. 856-57.) At that meeting, the prosecutor informed Alvarado that “the case was going to proceed to trial” and that he probably would testify on July 11. (T. 857-58.) On July 11, Alvarado did not appear at the prosecutor’s office as his subpoena ha'd directed and the prosecutor sent a detective to find Alvarado. (T. 861.) That same day, the prosecutor gave his opening statement referring to Alvarado’s potential testimony. (Id.) Upon returning to his office at the end of the day, the prosecutor learned that Alvarado’s girlfriend had left her job and got some indication that Alvarado may have fled, and “through later investigation,” including “rumor and innuendo,” the prosecutor learned that “the word in the street [was] that he had fled to Santo Domingo.” (Id.) The trial court denied the mistrial motion. (T. 865.) During his summation, Avincola’s attorney used Alvarado’s absence to Avincola’s advantage: I need not elaborate on the obvious fact that there is no witness who came into this court and gave evidence before you that he or she saw Luis Avincola shoot San Martin. What you do have is someone who flew the coop, Tony. Luis Alvarado who lived right here.... It’s got these two doors. Both to his apartment, I think you heard Nilda say that. And the stairway, the top of the stairs is where the shooting occurred. That’s where Tony lived. Tony who used to deal drug deals with San Martin and Nilda. Tony whose apartment was right in front of the scene where San Martin was killed. Tony who when he had to come into court to testify under oath before a jury about whatever, flew the coop and went to Santo Domingo, so they said. Does he have some reason to flee in connection with this ease when he lived right at death’s door step literally where he dealt drugs from with San Martin? (T. 1002-03.) Evidence at Trial The victim, San Martin, along with his girlfriend Rivera, were steerers for a drug dealer working out of a building located at 568 W.. 161st Street in Manhattan. (T. 308-10.) Avincola, who was a competing drug dealer working out of the same building, had twice threatened to kill Rivera and San Martin a week before the actual shooting. (T. 311-13, 324-26, 415, 440, 442, 445-48.) A week prior to the shooting, Avincola was in Mayra Mejia’s apartment, carrying an object in a paper bag about two feet in length that looked like a shotgun. (T. 591-93, 623-24, 650.) On December 29, 1985, Avincola told Mejia that he swore “to his mother that he was going to kill San Martin” because San Martin and Rivera “were taking his client[s] away.” (T. 596-97.) On December 30, 1985, Clarence Collins, the superintendent of the adjoining building, saw Avincola on the stoop of 568 W. 161st Street. (T. 164-65.) Collins shared a soda with Avincola and then left him on the stoop and went home. (T. 165-66, 246.) Immediately after he entered his building, Collins heard two shots that appeared to come from the next building. (T. 165.) Fifteen minutes later, he entered 568 W. 161st Street and found San Martin lying on the stairs. (T. 167-68.) Within an hour of the shooting, Avincola approached Rivera on the street two blocks away from the crime scene and told her to “ ‘go to 6' — 161, that I killed the one that is your old man.’ ” (T. 315-16.) Avincola was arrested later that night at a hotel and brought to the police precinct. (T. 281-84.) The hotel desk clerk gave the police a rent receipt for Avincola’s room. (T. 705-07.) At the precinct, Rivera and Mejia identified Avincola as “Columbia” through a one-way mirror. (T. 319-20, 467-68.) Detective Palma read Avincola his Miranda rights in Spanish. (T. 677-80, 696-98.) Four hours later, in response to questioning by the police, Avincola admitted that he knew San Martin but denied that he had killed him. (T. 700-02.). Additionally, he told the police that “ ‘San Martin was always following me around trying to take me off for my drug customers,’ ” and added, “that’s why I stated I was going to kill him because I heard that San Martin had a gun.” (T. 713, 725-26.) The police did not recover the murder weapon. (T. 57, 65-66, 131, 138-39, 570.) The police did find a shotgun shell on the stairs near San Martin’s body, consistent with a cartridge that could have been shot from a .30 caliber semiautomatic carbine rifle that would have an overall length of about 37 inches and a barrel length of 18-22 inches. (T. 76-80.) Rivera’s and Collins’s Trial Testimony and Invocation of Their Fifth Amendment Rights During cross-examination, witness Clarence Collins asserted, upon the advice of counsel, his Fifth Amendment privilege against self-incrimination in response to defense counsel’s questions about potential liability for tax fraud (T. 175-177), sources of income other than his building superintendent job (T. 177-78, 217-18), his drug use (T. 187, 223), and his possession of a firearm (T. 221-22). Upon each of these assertions of privilege, the trial court instructed the jury that “since the questions put to Mr. Collins ... relate solely to his own credibility or believability as a witness, you may take into consideration his refusal to answer that question as though he had answered the question unfavorably to himself.” (T. 176; see also T. 178, 218, 221-23.) During the cross-examination, witness Rivera asserted her Fifth' Amendment privilege against self-incrimination in response to defense counsel’s questions about her drug activities and her sources of income. (E.g., T. 337, 341, 345, 346, 350-53, 392-93, 396-97, 420-23, 442, 461, 473.) The trial court only allowed Rivera to assert her privilege at four separate times (T. 345, 346, 392-93, 420-21); the remaining times the trial court either ordered her to answer as the answer was not privileged or ordered her to answer giving her immunity from possible prosecution related to those answers. (T. 337, 341, 350-53, 396-97, 421-23, 442, 461, 473.) When the trial court allowed her to assert her privilege, the court made it clear to the jury that the question was asked solely for purposes of credibility and the jury could-consider her refusal to answer as an answer negative to Rivera. (T. 345, 346, 388-89, 392-93, 421.) The Victim’s Father Spoke to Two Jurors During a Trial Recess During a lunch recess, San Martin’s father approached two jurors sitting on a bench, identified himself and attempted to chat with them. (T. 427, 431-35.) The jurors immediately reported the incident to a court officer and the judge questioned each of the two jurors separately. (T. 427, 430.) One of the jurors explained the incident as follows: A JUROR: What happened is we were standing at the juror benches waiting to come into the courtroom. This was after lunch was finished. It was about 1:30 this afternoon. And another juror and myself were standing there talking. And there was Hispanic man that walked up and stood beside this other gentleman that I was talking to. We were just talking about something beside the point. All of a sudden this man says, “do you think we’ll be finished or do you think the case will be over in a week?” And I looked at him. I said, “that depends what’s going on in the case.” I said I didn’t know — I thought he was on another jury. As far as I was concerned this is where the jurors sit. So then he said, “well, I came all the way from Massachusetts.” I looked at him, what the heck is he doing here from Massachusetts on a jury- And then I didn’t say anything. And he said, “well, I hope it’s over soon.” He said, “I’m San Miguel’s father.” THE COURT: Who did you understand that to be? A JUROR: He said, “I’m the father of the man that was shot.” THE COURT: San Martin? A JUROR: San Martin, I’m sorry. THE COURT: And then what happened? A JUROR: Then immediately the other juror and myself, just — we just completely ignored the man. And we wouldn’t talk with him any longer. We didn’t want to have anything to do with him because we didn’t want to affect the case. So at that point the other juror and myself broke into a completely different conversation. And we just continued on. And he walked away. (T. 431-33.) The other juror gave a similar account of the incident. (T. 435.) The trial court asked each of the two jurors whether the incident would have any effect on their judgment. (T. 434, 435.) The first juror replied, “I don’t think it would affect my opinion one way or the other,” and the second juror simply stated, “Not at all.” (T. 434, 435.) The trial court asked the jurors whether they had mentioned this incident to the other jurors. (T. 433-35.) The first juror replied that one other juror had asked him “just out of curiosity” what had happened and he replied, “Oh, it’s nothing. Something happened earlier.” (T. 433-34.) The second juror stated that he had not spoken with other jurors about the incident. (T. 435.) The trial court admonished the two jurors not to discuss the incident with any other jurors. (T. 434, 435-36.) Neither side requested a mistrial. (See T. 427-38.) PROCEDURAL HISTORY On July 25, 1986, the jury convicted Avincola of second degree murder. (T. 1164-67; Pet. ¶¶2, 4.) On September 4, 1986, the trial court sentenced Avincola to twenty five years to life imprisonment. (Pet. ¶ 3; Sent. Tr. 12.) Avincola’s First § 440.10 Motion On March 29, 1989, before his direct appeal was fully briefed, Avincola moved pro se to vacate his judgment pursuant to N.Y.Crim. Proc. Law § 440.10, arguing ineffective assistance of trial counsel based on an alleged conflict of interest. (Ex. C: 3/29/89 Avincola Aff. in Supp. of Mot. to Vac. at 3.) Avincola claimed that his lawyer was conflicted because the “Lawyer’s Manual ] covering the periods of 1985 through 1988” listed his trial attorney as a Legal Aid lawyer and witness Collins’s attorney was also a Legal Aid attorney. (Id. at 3, 4.) The trial court denied the claim, stating: The Court takes judicial notice of the fact, which is reflected in the court record, including Mr. Stein’s notice of appearance, that Mr. Stein, at the time of the trial was not affiliated with Legal Aid, but was an attorney in private practice and a member of the “18B” panel of attorneys appointed by the court to represent indigent defendants. (Ex. C: 5/1/89 Order at 2.) On July 20, 1989, the First Department denied leave to appeal. (Avincola Br. at 2; Answer ¶ 7.) Avincola’s Direct Appeal On direct appeal to the First Department, Avincola’s appointed appellate counsel advanced five grounds: (1) evidence of uncharged crimes was improperly admitted at trial (Ex. D: Avincola 1st Dep’t Br. at 15-20), (2) Avincola’s statements to the police should not have been admitted into evidence (id. at 21-24), (3) Avincola’s confrontation rights were violated when two prosecution witnesses asserted their Fifth Amendment privilege against self-incrimination (id. at 25-28), (4) the prosecutor failed to produce a witness mentioned in his opening statement (id. at 29-32), and (5) Avincola’s sentence was unduly harsh and excessive (id. at 33). Additionally, Avincola submitted a pro se supplemental brief raising thirteen arguments, including, inter alia, (1) improper admission of hearsay evidence (Ex. E: Avincola 1st Dep’t Pro Se Supp. Br. at 14); (2) prosecutorial misconduct based on the prosecutor’s (a) reference in his summation to evidence not in the record, (b) placement of the hotel rent receipt into evidence, (c) failure to disclose a cooperation agreement given to Rivera, and (d) failure to disclose an exculpatory statement by Avincola to a police officer (id. at 33-39); and (3) ineffective assistance of trial counsel due to his trial attorney’s (a) conflict of interest (the same claim raised in the § 440.10 motion), (b) failure to object to hearsay testimony at the suppression hearing and at trial and (c) failure to move for a mistrial based on the fact that the jurors had discussed the case (id. at 45-46).- The First Department affirmed Avinco-la’s conviction. People v. Avincola, 162 A.D.2d 288, 556 N.Y.S.2d 877 (1st Dep’t 1990). First, the First Department held that Avincola’s statements while in custody were properly admitted: Although [Avincola’s] agitation and dilated pupils constituted physical manifestations of his drug use, the hearing court’s conclusion that defendant was alert was warranted by the evidence. In that regard, [Avincola’s] suggestion that the detective switch from English to Spanish is strong indication that he did not lack the capacity to appreciate the nature and consequences of his statements, his drug use notwithstanding. People v. Avincola, 162 A.D.2d at 289, 556 N.Y.S.2d at 878. Second, the First Department held that the introduction of testimony that Avincola had possessed a shotgun “did not constitute proof of an uncharged crime,” noting that the the evidence was introduced in order to, and was relevant to, show that Avincola “had the means to commit the crime.” Id. at 289-90, 556 N.Y.S.2d at 879. Third, the First Department found that Avincola’s confrontation rights had not been violated when the two witnesses “occasionally asserted their privilege against self-incrimination,” explaining that: Counsel’s inability to procure a response to every question did not prevent him from adequately challenging the direct testimony of the two witnesses, and, indeed, the record does not indicate that defendant’s attorney abandoned any line of interrogation or argument as a result of the invocation of the privilege against self-incrimination. Id. at 290, 556 N.Y.S.2d at 879 (citation omitted). Fourth, the First Department held that the trial court did not abuse its discretion in denying a mistrial motion based on the prosecution’s failure to produce a promised witness. Id. Finally, as to Avincola’s “remaining contentions,” including the hearsay, prosecutorial misconduct, and ineffective assistance of counsel claims, the First Department held that they “either lack[ed] merit or [were] un-preserved for appellate review.” Id. The New York Court of Appeals denied Avincola’s request for leave to appeal. People v. Avincola, 76 N.Y.2d 937, 563 N.Y.S.2d 66, 564 N.E.2d 676 (1990). Avincola’s Second § 440.10 Motion In October 1991, Avincola filed a second CPL § 440.10 motion in the trial court, alleging, inter alia, (1) that the trial court failed to give the jury a circumstantial evidence charge, and (2) prosecutorial misconduct based on the prosecutor’s (a) alteration of Mejia’s statement in a document, (b) failure to provide Avincola with documents so that he could perfect his appeal, and (c) failure to preserve evidence, namely the search warrant and the rent receipt (Ex. J: 10/7/91 Avincola Aff. in Supp. of Mot. to Vac. at 4, 8-13.) The trial court denied the motion with regard to the jury instruction claim due to Avinco-la’s “unjustifiable failure to raise [it] on appeal,” relying on a state procedural rule. (Ex. L: 12/5/91 Opinion at 2-3.) The trial court found that the claim that the prosecutor failed to turn over documents on appeal was meritless because Avincola’s allegations were either “unsupported or refuted by documentary proof, or because there is no legal basis for the claim.” (Id. at 3-4.) Avineola’s application for leave to appeal was denied by the First Department (see Avincola Br. at 3), and the Court of Appeals. People v. Avincola, 80 N.Y.2d 894, 587 N.Y.S.2d 925, 600 N.E.2d 652 (1992). Avincola’s Motion for a Writ of Error Coram Nobis in the First Department In September 1992, Avincola filed a “motion for a writ of error coram nobis” in the First Department, alleging ineffective assistance of appellate counsel. (Ex. M: Avincola’s 1st Dep’t Coram Nobis Aff. at 3.) Avincola claimed that his appellate counsel was ineffective for failing to argue on appeal that (a) “the jury was not properly instructed as to the evaluation of circumstantial evidence,” and (b) “the prosecutor produced and altered Myra [sic] Mejia’s originalpolice statement on direct appeal.” (Id. at 7, 8, 12.) The First Department denied the application. (Ex. N: 12/15/92 Order.) People v. Avincola, 188 A.D.2d 1092, 592 N.Y.S.2d 578 (1st Dep’t 1992). Avincola’s Current Federal Habeas Corpus Petition Avincola filed his federal habeas petition in January 1997. (Pet. at 1, 7.) In October 1997, Judge Scheindlin dismissed the petition as untimely under the Antiterrorism and Effective Death Penalty Act’s (“AED-PA”) statute of limitations, as then-interpreted under the Second Circuit’s decision in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997). See Avincola v. Stinson, 97 Civ. 1132, 1997 WL 681311 at *2-3 (S.D.N.Y. Oct.31, 1997). The Second Circuit remanded the case in September 1998 in light of its decision in Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.1998), that state prisoners whose convictions became final before the AEDPA’s effective date of April 24, 1996 had until April 24, 1997 to file a habeas petition. Avincola v. Stinson, No. 97-2925, slip op. (2d Cir. Sept. 25, 1998). ANALYSIS I. AVINCOLA’S CIRCUMSTANTIAL EVIDENCE JURY CHARGE CLAIM SHOULD BE DENIED BECAUSE THE TRIAL COURT’S DECISION WAS BASED ON AN INDEPENDENT AND ADEQUATE STATE LAW GROUND Avincola claims that his “conviction was based on inadmissible ... circumstantial evidence [where] no circumstantial evidence charge was given to the jury.” (Pet. ¶ 12(F); see also Avincola Br. at 65-72.) Avincola did not present this ground to the state court until his second CPL § 440 motion. (Ex. J: 10/24/91 Avincola § 440 Aff. at 18.) The trial court denied the second § 440.10 motion as to this claim “because of [Avincola’s] unjustifiable failure to raise [it] on- [direct] appeal,” relying on a state procedural rule. (Ex. L: 12/5/91 Opinion at 2-3.) The Supreme Court has made clear that the “adequate and independent state ground doctrine applies on federal habeas,” such that “an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show ‘cause’ for the default and ‘prejudice attributable thereto,’ or demonstrate that failure to consider the federal claim will result in a ‘ “fundamental miscarriage of justice.” ’ ” Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (citations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir.1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116, 137 L.Ed.2d 317 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990); Torres v. Irvin, 33 F.Supp.2d 257, 273 (S.D.N.Y.1998) (Cote, D.J. & Peck, M.J.); Williams v. Bennet, No. 97 Civ. 1628, 1998 WL 236222 (S.D.N.Y. April 20, 1998) (Baer, D.J. & Peck, M.J.); Farrington v. Senkowski, 19 F.Supp.2d 176, 180 (S.D.N.Y.1998); Cooper v. LeFevre, No. 94-CV-5958, 1998 WL 386340 at *1-2 (E.D.N.Y. July 8, 1998); Wells v. LeFavre, 96 Civ. 3417, 1996 WL 692003 at *3 (S.D.N.Y. Dec.2, 1996) (Scheindlin, D.J.); Vera v. Hanslmaier, 928 F.Supp. 278, 285 (S.D.N.Y.1996) (Jones, D.J. & Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan.3, 1996) (Wood, D.J. & Peck, M.J.). Here, the trial court rejected Avincola’s claim because it was not raised on direct appeal. (Ex. L: 12/5/91 Opinion at 2-3.) New York law bars consideration via collateral attack of an issue that could have been raised on direct appeal. N.Y. CPL § 440.10(2)(c); see, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04, 500 N.Y.S.2d 503, 505, 491 N.E.2d 676 (1986); People v. Byrdsong, 234 A.D.2d 468, 469, 651 N.Y.S.2d 903, 903 (2d Dep’t 1996) (“Pursuant to CPL 440.10(2)(c) a court must deny a postjudgment motion to vacate a conviction when sufficient facts appear in the record so that an issue may be adequately reviewed on a direct appeal and the defendant unjustifiably failed to raise the claim on appeal.”); People v. Skinner, 154 AD.2d 216, 221, 552 N.Y.S.2d 932, 935 (1st Dep’t 1990) (“defendant’s failure to present his constitutional attack upon his conviction after trial in the course of his direct appeal forecloses any consideration of it [in a § 440.10 proceeding]”). The Second Circuit has held CPL § 440.10(2)(e) to be an adequate and independent state ground. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir.1995); Ramos v. Costello, 96 Civ. 3659, 1997 WL 231129 at *2 (S.D.N.Y. May 7, 1997) (“The procedural ground on which the state court denied his § 440.10 motion[, precluding claims that could have been raised on direct appeal by were not,] is an independent and adequate state ground that prevents him from asserting those claims in a federal habeas corpus proceeding absent cause and prejudice.”); Wells v. LeFavre, 1996 WL 692003 at *3 (“CPL § 440.10(2) presents an adequate and independent state ground for denying Petitioner relief’). Because there is an adequate and independent finding by the state trial court that Avincola had procedurally defaulted on this claim, Avincola would have to show in his habeas petition “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; see also, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67, 130 L.Ed.2d 808 (1995) (fundamental miscarriage of justice may be demonstrated by showing through “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial,” that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence”); Torres v. Irvin, 1998 WL 824527 at *18; Williams v. Bennet, 1998 WL 236222 at *6; Farrington v. Senkowski, 19 F.Supp.2d at 180 (“The miscarriage of justice exception applies where a petitioner is ‘actually innocent’ of the crime of which he was convicted or the penalty which was imposed.”); Underwood v. Artuz, 95 Civ. 7866, 1996 WL 734898 at *3 (Dec. 24, 1996) (Scheindlin, D.J.). Ineffective assistance of counsel can represent cause for a procedural default. See also, e.g., Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986) (“Ineffective assistance of counsel, then, is cause for a procedural default.”); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997); Simmons v. Ross, 965 F.Supp. 473, 478 (S.D.N.Y.1997); Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *2 (S.D.N.Y. Sept.19, 1997) (Scheindlin, D.J.). “However, ... the exhaustion doctrine ... generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.” Murray v. Carrier, 477 U.S. at 489, 106 S.Ct. at 2646; Reyes v. Keane, 118 F.3d at 139-40; Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at *3 (S.D.N.Y. Oct.7, 1998); Taylor v. Mitchell, 939 F.Supp. 249, 255 (S.D.N.Y.1996); Gaiter v. Lord, 917 F.Supp. 145, 149 (E.D.N.Y.1996). Thus, the Court must examine Av-incola’s ineffective assistance claim in this context. See, e.g., Simmons v. Ross, 965 F.Supp. at 480 (“the showing required to demonstrate ineffective assistance of counsel for both purposes”—i.e., as the “cause of his procedural default” and “as an independent ground for his petition”—“is the same.”). A. Ineffective Assistance of Counsel Avincola alleges that: The court found that the defendant’s claims ... could have been but were not determined on appeal because the defendant failed to raise them.... inelud[ing] ... the claim that the jury was not properly instructed as to the evaluation of circumstantial evidence.... The motion [was] denied as to these claims because [of] defendant’s unjustifiable failure to raise them on appeal. [Appellate counsel] Mr. Bokser did not recognize the significance of these issues prior to submitting his brief. Appellate counsel assured me, “that my case presented no viable strong issues other than those which he presented in his brief ...” (Ex. M: 9/1/92 Avincola Coram Nobis Aff. ¶ 18, 21.) In light of the requirement to liberally construe pro se filings, the Court addresses Avineola’s ineffective assistance of counsel claim as a possible basis for “cause” for his procedural default. The Supreme Court has announced a two-part test to determine if counsel’s assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064. Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689, 104 S.Ct. at 2065; accord, e.g., Torres v. Irvin, 97 Civ. 5078, 1998 WL 824527 at *21 (S.D.N.Y. Nov.23, 1998) (Cote, D.J. & Peck, M.J.). Second, the defendant must show prejudice from counsel’s performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The “question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. at 2068-69. Put another way, the “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. ■ Taking the unaffected findings as a given, and taking due account of the effect of errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Id. at 695-96, 104 S.Ct. at 2069 (emphasis added); see also, e.g., DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S.Ct. 83, 136 L.Ed.2d 40 (1996); Torres v. Irvin, 1998 WL 824527 at *21. The Supreme Court has counseled that these principles “do not establish mechanical rules.” Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. 'Id. The Supreme Court also made clear that “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.... 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.” Id. at 697, 104 S.Ct. at 2069; accord, e.g., Torres v. Irvin, 1998 WL 824527 at *21. The Strickland test applies to appellate as well as trial counsel. See, e.g., Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994); Torres v. Irvin, 1998 WL 824527 at *22; Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *2 (S.D.N.Y Sept.19, 1997) (Scheindlin, D.J.); Ehinger v. Miller, 942 F.Supp. 925, 932 (S.D.N.Y.1996) (Mukasey, J. & Peck, M.J.); Benn v. Stinson, 917 F.Supp. 202, 205 (S.D.N.Y.1995) (Stein, J. & Peck, M.J.). Appellate counsel is not required to raise every colorable claim urged by the client, but is entitled to focus on key issues while winnowing out weaker arguments. E.g., Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983); Mayo v. Henderson, 13 F.3d at 533; Torres v. Irvin, 1998 WL 824527 at *22;. Hurd v. Keane, 1997 WL 582825 at *2; Ehinger v. Miller, 942 F.Supp. at 932; Benn v. Stinson, 917 F.Supp. at 206. Further, reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. E.g., Jones v. Barnes, 463 U.S. at 754, 103 S.Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216, 83 L.Ed.2d 146 (1984); Torres v. Irvin, 1998 WL 824527 at *22; Ehinger v. Miller, 942 F.Supp. at 932; Benn v. Stinson, 917 F.Supp. at 206. Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel “omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Torres v. Irvin, 1998 WL 824527 at *22; Hurd v. Keane, 1997 WL 582825 at *2; Ehinger v. Miller, 942 F.Supp. at 932; Benn v. Stinson, 917 F.Supp. at 206. Under this standard, it cannot be stated that Avincola’s appellate counsel was ineffective for failing to raise the jury instruction claim. First, Avincola’s appellate attorney could not have raised this claim on appeal because the claim was unpreserved for appellate review. In his second CPL § 440.10 motion, Avincola admits that his trial “attorney declined to request to the Judge to instruct the jury, that the prosecution’s case was based on circumstantial evidence.” (Ex. J: 10/24/91 Avincola § 440.10 Br. at 23.) Furthermore, a review of the trial transcript does not reveal such a request and Avincola’s trial counsel did not object to the jury instructions at trial. (T. 1101.) “Under New York law, a defendant must object to an alleged error in a jury instruction before the trial court in order to preserve the issue for appeal.” Reyes v. Keane, 118 F.3d at 138 (citing CPL § 470.05(2)); see also, e.g., Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan.3, 1996) (Wood, D.J. & Peck, M.J.) (“New York law requires a party to object to the court’s jury charge in order to preserve the issue for appellate review.”); People v. Cadorette, 56 N.Y.2d 1007, 1009, 453 N.Y.S.2d 638, 638, 439 N.E.2d 353 (1982) (“[d]efendant’s other contention regarding alleged errors in the trial court’s charge to the jury has not been preserved for our review insofar as no exception to the charge was taken at trial.”); People v. Holzer, 52 N.Y.2d 947, 948, 437 N.Y.S.2d 964, 964, 419 N.E.2d 867 (1981) (“In consequence of the failure of her counsel either to make a request for the desired charge or to except to the court’s failure so to charge the issue has not been preserved for our review.”); People v. Flecha, 161 A.D.2d 116, 116, 554 N.Y.S.2d 845, 845 (1st Dep’t 1990) (“Defendant now claims on appeal that he was denied a fair trial by the court’s ... [jury] charge. However, since these objections were not raised at trial, they are unpreserved for appellate review.”). Thus, it is clear that because Avincola did not lodge a timely objection to the jury instructions at trial, the claim was unpreserved for appellate review. Therefore, because his attorney could not have raised this claim in the First Department, his attorney could not possibly have been ineffective for failing to do so. B. Avincola’s Circumstantial Evidence Claim is Meritless Moreover, the claim itself is meritless. Under New York law, a circumstantial evidence jury charge is only required, at the defendant’s request, when the evidence against a defendant comprises solely of circumstantial evidence. See, e.g., People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 531, 615 N.E.2d 1014 (1993) (“Whenever a case relies wholly on circumstantial evidence to establish all elements of the charge, the jury should be instructed, in substance, that the evidence must establish guilt to a moral certainty. However, where a charge is supported with both circumstantial and direct evidence, the court need not so charge the jury.”) (citations omitted); People v. Padilla, 235 A.D.2d 318, 318, 653 N.Y.S.2d 310, 311 (1st Dept.1997) (“Since the evidence was not wholly circumstantial, the court properly denied defendant’s request for a circumstantial evidence charge.”); People v. Roldan, 211 A.D.2d 366, 370, 627 N.Y.S.2d 1014, 1017 (1st Dept.1995) (where direct evidence of conduct is presented, wholly circumstantial evidence of intent does not “trigger the necessity for a circumstantial evidence charge”), aff'd, 88 N.Y.2d 826, 643 N.Y.S.2d 960, 666 N.E.2d 553 (1996). Avincola’s admission to Rivera that he had just killed Garcia constituted direct evidence of the murder; therefore, the case against Avincola was not “wholly circumstantial,” and no circumstantial evidence jury charge was necessary. See, e.g., People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 352, 634 N.E.2d 951 (1994) (“[a] defendant’s statement is considered direct evidence if it constitutes ‘a relevant admission of guilt’ ”; no circumstantial evidence charge necessary based on defendant’s statements relevant to his guilt); People v. Reed, 247 A.D.2d 900, 668 N.Y.S.2d 858, 859 (4th Dept.1998) (defendant’s admission constituted direct evidence of crime charged, obviating entitlement to circumstantial evidence charge); People v. Robbins, 229 A.D.2d 1008, 1008, 645 N.Y.S.2d 671, 672 (4th Dep’t 1996) (no circumstantial evidence charge needed since “the accomplice testimony and defendant’s unambiguous admissions constitute direct evidence of guilt”); People v. Stern, 226 A.D.2d 238, 241, 641 N.Y.S.2d 248, 252 (1st Dep’t 1996) (“A ‘total’ circumstantial evidence charge ... was not required since defendant’s admissions on the tape constituted direct evidence of his guilt.”). Therefore, because a circumstantial evidence charge was not required under New York law, Avincola’s appellate counsel was not ineffective for failing to raise this claim. See, e.g., Medina v. Barnes, 71 F.3d 363, 367 (10th Cir.1995) (“Because these claims were meritless, any allegation that appellate counsel was ineffective for failing to raise them on direct appeal must also fail.”); Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir.) (“The Sixth Amendment does not require counsel to ... press meritless arguments before a court.”), cert. denied, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 116 (1993); Kelly v. Greiner, No. 97-CV-7535, 1999 WL 84077 at *5 (E.D.N.Y. Feb.11, 1999); Barnett v. United States, 870 F.Supp. 1197, 1204 (S.D.N.Y.1994); Leaks v. United States, 841 F.Supp. 536, 541 (S.D.N.Y.1994) (“An attorney’s decision not to raise meritless claims on appeal can never rise to the level of ineffective assistance of counsel.”), aff'd mem., 47 F.3d 1157 (2d Cir.1995). Accordingly, Avincola has not shown cause, nor has he made any attempt to show prejudice or actual innocence. Therefore, Avincola’s habeas petition should be denied as to this ground. II. AVINCOLA’S PETITION SHOULD BE DENIED WITH REGARD TO THE CLAIM FOR WHICH HE FAILED TO FAIRLY PRESENT THE CONSTITUTIONAL NATURE TO THE STATE COURT Section 2254 codifies the exhaustion requirement, providing that “[a]n 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 unless is appears that — (A) the applicant has exhausted the remedies available in the courts of the State;.... ” 28 U.S.C. § 2254(b)(1)(A); see, e.g., Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982) (“The exhaustion doctrine existed long before its codification by Congress in 1948 ... in 28 U.S.C. § 2254.”); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990); Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). As the Supreme Court has made clear, “[t]he exhaustion doctrine is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203. The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis: First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.... Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim. Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. & Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir.1981)); accord, e.g., Boyd v. Hawk, 94 Civ. 712, 1996 WL 406680 at *3; Ehinger v. Miller, 928 F.Supp. 291, 293 (S.D.N.Y.1996). “The exhaustion requirement is not satisfied unless the federal claim has been ‘fairly presented’ to the state courts.” Daye v. Attorney General of New York, 696 F.2d at 191; accord, e.g., Diaz v. Coombe, 1997 WL 529608 at *3. The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Jones v. Vacco, 126 F.3d 408, 413-14 (2d Cir.1997); Daye v. Attorney Gen., 696 F.2d at 191; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir.1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir.1984); Diaz v. Coombe, 1997 WL 529608 at *3. In Daye, the Second Circuit en banc stated: [T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Daye v. Attorney General, 696 F.2d at 194; accord, e.g., Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir.1995); Diaz v. Coombe, 1997 WL 529608 at *3; Washington v. Superintendent, Otisville Correctional Facility, 96 Civ. 2729, 1997 WL 178616 at *3-4 (April 11, 1997) (Scheindlin, D.J.); Boyd v. Hawk, 1996 WL 406680 at *3. In the present petition, Avincola argues that the trial court improperly admitted evidence of “uncharged criminal conduct,” namely the testimony that Mejia had seen him with a shotgun. (Avincola Br. at 34-39; Pet. ¶ 12(B).) Avincola raised a similar argument in his appeal to the First Department. However, a closer inspection of his appellate brief reveals that, under the Daye standard, this ground was not fairly presented to the state court as a constitutional claim. His argument on his state appeal was based solely on state court decisions that did not employ federal constitutional analysis. (See Ex. D: Avin-cola 1st Dep’t Br. at 15-20, 29-32.) Therefore, this claim has not been “fairly presented” to the state court as constitutional claims under Daye and its progeny. See-Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *4 (S.D.N.Y. May 31, 1996) (Batts, D.J. & Peck, M.J.) (claims not fairly presented where, “[o]n its face, it is obvious that [petitioner’s] brief neither relies on pertinent federal cases employing constitutional analysis nor relies on state cases employing constitutional analysis in like fact situations”); Mendez v. Superintendent, Adirondack, Correctional Facility, 94 Civ. 6500, 1996 WL 66117 at *2 (S.D.N.Y. Feb.14, 1996), aff'd mem., 104 F.3d 356 (2d Cir.1996); Jones v. Hood, 826 F.Supp. 82, 85 (W.D.N.Y.1993) (claim not fairly presented where “[petitioner relied solely on state law in asserting his claims .... He cited no federal caselaw whatsoever, and the state cases and authorities cited did not involve similar fact situations or employ any relevant constitutional analysis.”); Marti v. Riley, No. CV. 88-3044, 1989 WL 117075 at * 1 (E.D.N.Y. Sept.25, 1989) (claim not fairly presented where petitioner “relied solely on state cases, and neither they nor petitioner’s factual arguments employed, or caused the state court to consider, the applicable constitutional test” for petitioner’s claim). “Generally, if a federal habeas petition contains unexhausted claims, a federal court should dismiss it.” Bossett v. Walker, 41 F.3d at 828 (citing Rose v. Lundy, 455 U.S. at 510, 102 S.Ct. at 1199). However, “ ‘[f]or exhaustion purposes, “a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” ’ ” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9, 103 L.Ed.2d 308 (1989))); accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989) (“It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state - collateral review whose results have effectively been predetermined”); Bossett v. Walker, 41 F.3d at 828 (“if the petitioner no longer has ‘remedies available’ in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted.”); Jordan v. Lefevre, 22 F.Supp.2d 259, 269 (S.D.N.Y.1998) (Mukasey, D.J. & Peck, M.J.); Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at * 3 (S.D.N.Y. Oct.7, 1998); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 n. 7 (S.D.N.Y. Sept.17, 1998) (Cote, D.J. & Peck, M.J.); Chisolm v. Costello, 94 Civ. 3201, 1998 WL 167332 at *3 (S.D.N.Y. Apr.8, 1998); Johnson v. New York, 974 F.Supp. 185, 188 (E.D.N.Y.1997); Underwood v. Artuz, 95 Civ. 7866, 1996 WL 734898 at *2 (S.D.N.Y. Dec.24, 1996) (Scheindlin, D.J.). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State’ within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d at 120; accord, e.g., Johnson v. New York 974 F.Supp. at 188. Consequently, such procedurally barred claims are “deemed exhausted” by the federal courts. Reyes v. Keane, 118 F.3d at 139; see also, e.g., Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir.1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895, 127 L.Ed.2d 87 (1994); Grey v. Hoke, 933 F.2d at 120-21; Jordan v. Lefevre, 22 F.Supp.2d at 269; Redd v. Quinones, 1998 WL 702334 at *3; Johnson v. New York, 974 F.Supp. at 188. In this case, it is clear that Avincola is now barred from raising this constitutional claim in State court because it could have been raised on appeal, but was not. As the Second Circuit explained in Washington v. James: Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection to the agency defense instruction.... [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.... As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney’s 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York’s collateral procedures are unavailable because appellant could have raised the [federal constitutional] claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore, [Petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120.... Because he failed to raise his claim in state court and no longer may do so, his claim is proeedurally defaulted. Washington v. James, 996 F.2d at 1446-47; see also, e.g., Reyes v. Keane, 118 F.3d at 139 (“Section 440.10(2)(c) of New York’s Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.”) (emphasis added); Bossett v. Walker, 41 F.3d at 829; Redd v. Quinones, 1998 WL 702334 at *3; Camarano v. Irvin, 902 F.Supp. 358, 365-6, 367 n. 3 (S.D.N.Y.1994) (finding federal constitutional claim not fairly presented to state court where presented only as state law issue, and procedurally barred because it could have been raised on appeal), aff'd mem., 122 F.3d 1055 (2d Cir.1995). This claim, therefore, is “deemed exhausted.” Reyes v. Keane, 118 F.3d at 139. However, “[w]hile petitioner’s failure to ‘fairly present’ his claim in state court leads to a determination that the claim is [deemed] exhausted, at the same time this failure results in a procedural default of the claim.” Redd v. Quinones, 1998 WL 702334 at *3 (citing Bossett v. Walker, 41 F.3d at 829, & Grey v. Hoke, 933 F.2d at 121); Jordan v. Lefevre, 22 F.Supp.2d at 269. A federal court may not reach the merits of a procedurally defaulted claim unless the petitioner successfully shows cause for the default and prejudice attributable thereto, or that a fundamental miscarriage of justice will result. See, e.g., Coleman v. Thompson, 501 U.S. 722, 748, 111 S.Ct. 2546, 2563, 115 L.Ed.2d 640 (1991); see also cases cited at pages 19-20 above. Since Avincola has not shown cause and prejudice on this claim or that a fundamental miscarriage of justice would result, his petition should be denied as to this ground. III. THE PETITION SHOULD BE DENIED WITH REGARD TO AVIN-COLA’S REMAINING GROUNDS BECAUSE THEY ARE MERIT-LESS A. Hearsay Evidence Avincola alleges that his conviction was based on inadmissible hearsay, both at the suppression hearing and at trial, in violation of his rights under the Sixth Amendment. (PetJ 12(F); Avincola Br. at 65-68.) Specifically, Avincola takes issue with the suppression hearing testimony of two police officers, who recounted statements made to them by Rivera and Mejia. (Avincola Br. at 67-68.) In addition, Avincola challenges as hearsay Rivera’s trial testimony that Avincola told her that he had killed Garcia and Mejia’s trial testimony that a few days before the killing, Avincola had told her he was going to kill San Martin. (Avincola Br. at 65.) Av-incola raised this hearsay claim before the state courts in his pro se supplemental appellate brief under the heading, “The Trial Court Committed Reversible Error in Introducing Inconsistent Testimony of Nilda Ortiz Rivera and Mayra Mejia Based on Inadmissible Hearsay Evidence. N.Y. Const. Art. 1 Sec. 6; U.S. Const. V, VI, XIV Amedts.” (Ex. E: Avincola 1st Dep’t Pro Se Supp. Br. at 26.) Therefore, this claim is exhausted. See, e.g., Jones v. Vacco, 126 F.3d 408, 413-14 (2d Cir.1997) (“Citing a specific constitutional provision or relying on federal constitutional precedents alerts state courts of the nature of the claim.”); Fernandez v. Dufrain, 11 F.Supp.2d 407, 415 (S.D.N.Y.1998) (Kaplan, D.J. & Peck, M.J.) (“Under Second Circuit decisional law, ... reference to the Fourteenth Amendment ... is sufficient to satisfy the exhaustion requirement,” citing cases). Addressing the merits, Avincola’s petition should be denied as to this claim because the admission of the statements did not violate Avincola’s constitutional rights. Preliminarily, under New York law, hearsay evidence is admissible at a suppression hearing. See N.Y. CPL § 710.60(4); People v. Gonzalez, 68 N.Y.2d 950, 951, 510 N.Y.S.2d 86, 87, 502 N.E.2d 1001 (1986). Furthermore, there is no constitutional rule disallowing hearsay testimony in a suppression hearing, and indeed federal courts allow hearsay evidence in such hearings. See, e.g., United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980). Consequently, it is clear that the state trial court’s admission of hearsay evidence at the suppression hearing does not provide a basis for habeas relief. With regard to trial testimony, the Confrontation Clause of the Sixth Amendment affords the accused the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI. The Sixth Amendment’s Confrontation Clause is applicable in state criminal trials via the Fourteenth Amendment. E.g., Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). The primary purpose of the confrontation clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. E.g., Douglas v. Alabama, 380 U.S. at 418-19, 85 S.Ct. at 1076-77; Mitchell v. Hoke, 930 F.2d 1, 2 (2d Cir.1991). However, not all out-of-court statements are excluded by the Confrontation Clause. As the Second Circuit explained: The constitutional constraints on hearsay testimony thus protect the adversary system of justice and the accompanying preference for “face to face” accusation.... [T]he Supreme Court has also observed that the hearsay rules and the confrontation clause are intended “ ‘to protect similar values’ and ‘stem from the same roots.’ ” Thus, if evidence is admissible pursuant to “a firmly rooted hearsay exception,” it generally does not offend the confrontation clause. Mitchell v. Hoke, 930 F.2d at 2 (citations omitted); see also, e.g., White v. Illinois, 502 U.S. 346, 352-53, 112 S.Ct. 736, 741, 116 L.Ed.2d 848 (1992). The statements to which Avincola objects fall within “firmly rooted hearsay exceptions.” Rivera testified at trial that Avincola told her he had “ ‘killed the one that is your old man.’ ” (T. 316.) Mejia testified at trial that Avincola told Mejia that he swore “to his mother that he was going to kill San Martin” because San Martin and Rivera “were taking his elient[s] away.” (T. 596-97.) Avincola’s statements as testified to by both Rivera and Mejia constitute an admission by a party, and “[i]t is well-established under traditional rules of evidence that a party’s admission ... is not hearsay and is therefore not excluded under the hearsay rule.” Figueroa v. Mann, 90 Civ.1965, 1992 WL 51542 at *5 (S.D.N.Y. March 10, 1992), aff'd mem., 979 F.2d 845 (2d Cir.1992); accord, e.g., United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988,