Full opinion text
ORDER ACCEPTING MAGISTRATE’S REPORT AND RECOMMENDATION ROBERT P. PATTERSON, Jr., District Judge. This Court has received and reviewed the Report and Recommendation (the “Report”) issued by Magistrate Judge Andrew J. Peck on July 29, 1999. On August 6, 1999, Karen Swiger, Assistant District Attorney, submitted an Objection to Magistrate’s Report and Recommendation (“Respondent’s Objection”) on behalf of respondent objecting to portions of the Report. On September 20, 1999, petitioner filed his Reply and Objections to the Magistrate Judge’s Proposed Report and Recommendation (“Petitioner’s Objections”). Respondent’s first objection to the Report is based on the 'contention that the one-year limitation period under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1), runs from the date of the denial by the New York Court of Appeals of petitioner’s application for leave to appeal. The law in this Circuit is that the state conviction becomes final once the time to seek direct review in the United States Supreme Court by writ of certiorari has expired. Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998). As to respondent’s other objections that (1) the court’s reasonable doubt charge is a matter of state law not cognizable on federal habeas corpus review; (2) the Magistrate Judge did not apply the standards of the AEDPA, 28 U.S.C. § 2254(d), in reviewing the court’s reasonable doubt charge; (3) the Magistrate Judge improperly considered petitioner’s claims regarding the prosecutor’s summation as federal constitutional claims because such claims were only raised as state law claims, were not included in the petition for habeas corpus and did not apply the standards contained in the AEDPA, 28 U.S.C. § 2254(d); and (4) the Magistrate Judge did not apply the standards of the AEDPA, 28 U.S.C. § 2254(d), in evaluation of petitioner’s claim of ineffective assistance of counsel (Respondent’s Objections), it is not necessary to rule on these objections since the Report reached conclusions on those subjects favorable to the respondent, although not based on rationale proposed by the respondent. The objections filed by petitioner raise one point not directly decided by the Report, ie., that petitioner’s appellate counsel did not properly raise on appeal that, in response to a jury note, “the Court in a condensed and mixed fashion reiterated to the jury the elements of Murder by depraved indifference as it [sic] pertain to Marilyn Colon.” (Petitioner’s Objections at 22-24.) In fact, appellate counsel did argue that this supplementary charge was grounds for reversal in Point I of her brief on appeal to the Appellate Division. (Affidavit in Opposition of Karen Swiger dated April 1999, Ex. 1 at 15-18.) That appellate counsel raised the issue of the corrections of the supplementary charge is reflected in the decision of the Appellate Division, 232 A.D.2d 236, 648 N.Y.S.2d 539, and petitioner acknowledges that in a follow-up letter to Judge Titone of the New York Court of Appeals, appellate counsel “reiterated the words of her appellate brief.” (Petitioner’s Objections at 5.) Thus, petitioner’s claim of a failure to raise this point is .not well grounded and does not constitute ineffective assistance of appellate counsel. Petitioner’s remaining objections have also been reviewed and found to have been properly responded to in the Report. Accordingly, after consideration of the Report and the objections fííed thereto, it is hereby: ORDERED that the Report and Recommendation issued, by Magistrate Judge Andrew J. Peck on July 29, 1999 is accepted in accordance with 28 U.S.C. § 636(b). Accordingly, it is further ORDERED that in accordance with the Report the Petition of Manuel Lugo is dismissed. As the petition presents no question of substance for appellate review, a certificate of appealability will not be issued under 28 U.S.C. § 2253. Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that no appeal from this order would be taken in good faith. SO ORDERED. REPORT AND RECOMMENDATION PECK, United States Magistrate Judge. To the Honorable Robert P. Patterson, United States District Judge: Petitioner Manuel Lugo seeks a writ of habeas corpus from his 1994 conviction of two counts of second degree murder, for which he was sentenced to consecutive terms totaling 45 years to life. Lugo’s petition raises five claims: (a) there was insufficient evidence to support his conviction for Colon’s murder (Pet.11 12(A)), (b) the trial court’s reasonable doubt jury instruction deprived him of a fair trial (Pet. ¶ 12(B)), (c) comments by the prosecutor in summation were prejudicial (Pet-¶ 12(C)), (d) evidence of Colon’s pregnancy was erroneously admitted into evidence (Pet. ¶ 12(C)), and (e) ineffective assistance of appellate counsel (Pet.1f 12(D)). Lugo’s insufficiency of the evidence claim was raised on direct appeal to the First Department but was not adequately raised in his application for leave to appeal to the New York Court of Appeals. Thus, that ground is unexhausted and procedurally defaulted in state court, and federal habe-as corpus review of that claim accordingly is barred. Lugo’s claim as to Colon’s pregnancy was not raised in federal constitutional. terms before the First Department and thus is unexhausted but procedurally barred for habeas review. Lugo’s remaining claims lack merit. Accordingly, for the reasons set forth below, the Court should deny Lugo’s petition. FACTS Evidence at Trial In the early morning of December 30, 1990, Wilfredo Roman, under orders from Manuel Lugo, shot and killed Carlos Ven-tura and Ventura’s girlfriend, Marilyn Colon. The court tried Lugo and Roman together, but using two separate juries. (See 3/29/94 Pretrial Tr. at 2-16; see also, e.g., Trial Transcript [“Tr.”] 1359-61, 1365-69.) Lugo’s street name or nickname was “Supra,” and Roman’s street name was “Faze.” (Tr. at 1480, 1486, 1489, 2066, 2407-08.) At around 10:30 p.m. on December 29, 1990, Ventura and Colon parked Ventura’s automobile on Vyse Avenue between 180th and 181st Streets in the Bronx. (Tr. 1496-98, 1500-01, 2417.) Colon was Ventura’s girlfriend or wife. (Tr. 1474-75, 2401, 2417.) While Colon remained in the car, Ventura talked to Angel Otero,. Ruben Cruz, and other drug dealers about their drug business. (Tr. 1501-02, 2417-18.) Cruz informed Ventura, a drug dealer in the area (Tr. 1473-74, 2400), that Lugo was selling crack (in “blue tops” vials) in Ventura’s territory. (Tr. 1501, 1682, 1684, 1688, 2405, 2418-19, 2489.) A half horn-later, Lugo drove by, Cruz stopped him, and Lugo and Ventura had a lengthy argument about their drug sales territories. (Tr. 1503-05, 1688, 1693-97, 1705, 2420-22, 2424, 2440.) Following the argument, Ventura returned to his parked automobile and sat with Colon. (Tr. 2424.) Lugo then went to the corner of 181st Street and Vyse Avenue. Wilfredo Roman came over, and Lugo told Roman to retrieve a gun from his apartment. (Tr. 1520-21A, 1524-25, 1536-37, 1706-07, 1745, 2424-26.) About fifteen minutes later, at around 1:00 a.m., Roman returned with something “bulky” underneath his jacket, and Lugo told him: “go do what you have to do, go do your job. But be careful of his wife because she’s pregnant.” (Tr. 1524, 1526-28, 1537-38, 1540, 1549, 1710-11, 1714-16, 1747-48, 1764-65, 2429-31, 2435.) Roman walked down the block, stopped behind Ventura’s car, and opened fire towards Ventura. (Tr. 1528, 1540-43, 1545, 1717-18, 1748, 2431.) Roman fired six or seven shots from an Uzi through the car’s rear window, killing Ventura. (Tr. 1543-45, 2432.) Roman “was going to leave, but since he heard [Colon] screaming” he moved to the rear by the passenger side where Colon was sitting and fired one shot at close range into her head. (Tr. 1546-48, 1568, 1718-19, 2432.) Roman left, going towards the same building from which he had gotten the gun. (Tr. 1553-54.) A short time later, Lugo asked Otero if “Carlos was dead already.” (Tr. 1553.) When Otero responded that Ventura was dead, Lugo left the scene. (Id.) Approximately three days after the shooting, Lugo and Roman went to Otero’s apartment, carrying an Uzi. (Tr. 1584-85, 1752, 2443.) Lugo told Otero that it was the gun “used to fix that smart guy.” (Tr. 1585, 2443-45.) Lugo and Roman asked Otero to keep the Uzi for them, but Otero said no. (Tr. 1586-87.) After Otero was arrested (along with Lugo) for selling crack, Otero gave the police and the prosecutors information about the shootings of Ventura and Colon. (Tr. 1577-83, 1761-63, 1818, 2251-52.) Lugo and Roman were arrested on February 19, 1991. (Tr.2069-71, 2076-77, 2147-48, 2150, 2179-80, 2256-57, 2445-46.) At the close of the evidence, the People agreed to Lugo’s counsel’s motion to dismiss the intentional second degree murder count as to Colon (Tr. 2637-38), but the trial court denied the defense motion to dismiss the second degree depraved indifference murder count as to Colon. (Tr. 2638, 2652-54.) The trial court explained: I will charge the fourth count of the indictment charging the defendant with murder in the second degree under the theory of depraved indifference as it is applicable to the deceased, Marilyn Colon. The reason for that [is] ... that the evidence in the case demonstrates that Mr. Lugo allegedly told Mr. Roman, “go do your duty, but be careful of the girl, she is pregnant.” Although that demonstrates a lack of intent to kill her intentionally, it does not relieve him of the responsibility that flows from the fact that during the shooting of Mr. Ventura, Mr. Lugo is charged with knowing that the act of shooting someone with a semi-automatic Uzi creates a grave risk. It demonstrates a reckless engagement in conduct which creates a grave risk of death to another person, and that is all that he is charged with foreseeing. That’s the responsibility of knowing that there’s a grave risk of death to another person and nonetheless, sets forth this dangerous activity by a person acting in concert with him, which end up in the death of a second person, to wit, Miss Colon. Accordingly, based on that reasoning, the Court will charge depraved indifference as to defendant Lugo, as it is applicable to the deceased, Marilyn Colon. (Tr. 2652-53.) Defense counsel noted that the evidence, viewed most favorably to the State, was “one person telling another one to kill person ‘X’ and then shots are fired directly at that person 'X’, ... bullets are not sprayed,” and that after that was completed, “the shooter heard screaming, and then returned in a completely separate and different act and then intentionally shot person ‘A’.” (Tr. 2655-56.) The trial court felt that was a factual argument to be presented to the jury. (Tr. 256-57.) Testimony Concerning Colon’s Pregnancy In a pretrial ruling concerning the issue of Colon’s pregnancy, over Lugo’s objection, the trial court allowed the assistant medical examiner to testify that Colon was pregnant at the time of the shootings, (e.g., Tr.1999, 2019), noting the relevance of this evidence to the depraved indifference murder charges against Lugo. (3/29/94 Pretrial Tr. 16-25.) The trial judge held that he was going to allow the evidence that Ms. Colon was pregnant because the People informed him they would introduce evidence that Lugo said to “ ‘be careful of the woman [Colon] because she is pregnant.’ ” (3/29/94 Pretrial Tr. 17-18, 22, 25.) However, the court prohibited the prosecution from offering evidence that Colon was nine months pregnant or that Colon gave birth to a live baby before she died, or that the baby was alive at the time of trial. (3/29/94 Pretrial Tr. 17-25; Tr.2019-21.) At trial itself, Lugo made no objection to testimony concerning his statement to Roman regarding Colon’s pregnancy. (E.g., Tr. 1526-28, 1538, 1549, 1710-15, 2429-31), which he used for his own benefit. (E.g., Tr. 2571-74.) The Prosecutor’s Summation During summations, the prosecutor stated: Now, this case is not a drug case, However, drugs are very important for the motive in this murder. This case is about the snuffing out of two human lives. The issue is not whether the drug dealer has a right to be protected. The issue is not whether a drug dealer’s life is more important or less important than anyone else’s. Everyone hates drug dealers, everyone hates drugs. Drugs are ruining our community, our families, our children, our nation. [DEFENSE COUNSEL:] Objection. THE COURT: Don’t let that argument create a passion in you that will lead you to disregard the cool, calm evaluation of the evidence which will be your responsibility. [THE PROSECUTOR]: Also bullets can stray and hit innocent bystanders. We do not live in the wild west, we must all follow the law because when bullets fly, innocents die. A look, a glance, a stare, people are murdered every day for the stupidest of reasons, over nonsense. (Tr. 2824-25, 2836.) Defense counsel objected both to the first and third paragraph of remarks quoted above. (Tr. 2824-25, 2836.) The prosecutor also mistakenly represented in summation that the murder weapon had been found. (Tr. 2885.) Defense counsel’s objection was sustained. (Tr. 2885-86.) The Ti-ial Court’s Charge to the Jury In its preliminary instructions to the jury at the very beginning of the trial, the trial judge told the jury that “[t]he defendants, each of them have pled not guilty to the indictment, and according to the law, the People now have the burden to prove each defendant guilty beyond a reasonable doubt. The defendants need not prove anything. Each defendant is presumed to be innocent.” (Tr. 1356.) In the final jury charge, the trial judge first instructed the jury about the presumption if innocence: In this and every criminal case the accused is presumed to be innocent. That presumption remains with the defendant throughout the trial, until and unless the defendant’s guilt is proven beyond a reasonable doubt. That presumption of innocence continues right through the trial. It exists at this moment and it accompanies you to the jury room, and the only way it can be destroyed, the only way it can be taken is by all of our agreeing, unanimously, that based upon the evidence presented, you are convinced beyond a reasonable doubt that the defendant is, indeed, guilty. Only if the evidence which you accept and believe convinces you beyond a reasonable doubt that the defendant is guilty can the presumption be discarded and only then can a verdict of guilty be returned. This burden remains upon the prosecution throughout the trial and never shifts to the defendant. No defendant is required to prove his innocence and each element of every crime submitted to you must be proven beyond a reasonable doubt.... (Tr. 3013-14.) The judge then spent almost five transcript pages explaining to the jury the proof beyond a reasonable doubt standard: So, now I discuss with you the constitutionally mandated standard of proof in all criminal cases, that of proof of guilt beyond a reasonable doubt. The standard required in all criminal cases is proof of guilt beyond- a reasonable doubt. That standard, however, does not require that the People prove guilt beyond all doubt. It does not require that the People prove guilt to a scientific or a mathematical certainty or beyond a shadow of a doubt, whatever that means. It does require that the People prove guilt beyond a reasonable doubt and that is the highest standard of proof known to the law. There is no higher standard. Our law, therefore, requires that before this jury may convict the defendant, each of you must be satisfied that the believable evidence is sufficient to convince you beyond a reasonable doubt that the defendant is, in fact, guilty.... A doubt of a defendant’s guilt to be a reasonable doubt must be one for which some reason can be given. The doubt to be a reasonable doubt must arise either because of the nature and quality of the evidence or because of the insufficiency of the evidence.... A doubt of a defendant’s guilt is not reasonable if, instead of being based upon your evaluation of the nature and quality of the evidence and the sufficiency, it is instead, based upon a whim or a guess or a feeling that a juror may have that’s unconnected with the evidence in the case. A doubt of the defendant’s guilt is not reasonable if it is based upon a mere desire by a juror to avoid what the juror now discovers to be a disagreeable responsibility. I therefore repeat, a doubt of a defendant’s guilt, in order to be a-reasonable doubt, must arise either because of the nature and quality of the evidence or because of the insufficiency of the evidence in this case. Therefore, examine, inspect, weigh, judge and evaluate all of the evidence in this case. A reasonable doubt, our law says is an actual doubt, one that you are conscious of having, after you have carefully reviewed all of the evidence presented in this courtroom during this trial. If after doing so you then feel uncertain and not fully convinced of the defendant’s guilt, and you are satisfied that you are acting as a reasonable person should act in a matter of this importance, then that is a reasonable doubt to which the defendant is entitled to the benefit. Review the evidence, inspect it and weigh it and judge it and, if after doing so you find the People have not proven the defendant’s guilt beyond a reasonable doubt then find the defendant not guilty. On the other hand, if after reviewing and inspecting and weighing all the evidence you are convinced beyond a reasonable doubt that the defendant is guilty, then your verdict must be guilty. (Tr. 3013-19, emphasis added.) It is the underlined sentence that forms the basis of Lugo’s habeas challenge to the jury charge. Defense counsel did not object to any part of the trial court’s reasonable doubt charge. (See Tr. 3056-57.) As to the crimes themselves, the trial judge instructed the jury as to accessorial liability and acting in concert: In each of the counts that are pending against Mr. Lugo, the defendant is accused of acting in concert with another person. Before charging you with respect to the meaning of each of the crimes being submitted to you for your consideration, I am going to advise you what the law means by the phrase “acting in concert.” By using the phrase acting in concert, the People claim that the defendant, combined with another person to commit the unlawful acts.... Where an unlawful act is sought to be effected, accomplished and two or more persons combined, actually by a common purpose, for the purpose of accomplishing that end, and they work together in any way and in furtherance of the unlawful scheme, each and every one of the parties becomes a member of that unlawful undertaking. All persons who intentionally participate in the commission of a crime were accomplices of one another and, therefore, are legally guilty' of that crime. Each is legally responsible for the acts of the other. (Tr. 3020-21.) The court went on to explain the depraved indifference second degree murder count as to Marilyn Colon: A person is guilty of murder in the second degree when under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person. I call your particular attention to the distinguishing feature of this crime which is that the defendant is charged with while acting in concert with Mr. Roman, with having recklessly created a grave risk of death to another person — ... in the fourth count Marilyn Colon — under circumstances evincing a depraved indifference to human life. A person recklessly creates a grave risk of death to another person when he is aware of and consciously disregards a substantial and unjustifiable risk that a grave risk of death will result.... (Tr. 3038.) The trial judge explained the six elements that the People needed to prove beyond a reasonable doubt to prove depraved indifference murder: ' Therefore, in order for you to find the defendant guilty of this crime, the People are required to prove from all of the evidence in the case beyond a reasonable doubt each of the following ... six elements under the fourth count, the distinguishing feature being the person named in the counts, ... the fourth count it will be Marilyn Colon. So those are the six elements under the third and fourth counts. Let me review them with you once again. The People have an obligation to prove each of these elements beyond a reasonable doubt: One, that on or about December 30, 1990, in the County of the Bronx, ... the defendant Manual Lugo acting on concert with Mr. Roman shot Marilyn Colon, thereby creating a grave risk of death to another person, to witness, Marilyn Colon. Two, that at the time he so acted the defendant Manual Lugo, acting in concert with Mr. Roman, was aware of the substantial and unjustifiable risk that a grave risk of death would result. Three, that the defendant manual Lugo, acting in concert with Mr. Roman consciously, disregarded the substantial and unjustifiable risk that a grave risk of death would result. Four, that the defendant’s conscious disregard of this risk constituted a gross deviation from the standard of conduct that a reasonable person would observe in that situation. Five, that the defendant, Mr. Lugo, while acting in concert with Mr. Roman, acted under circumstances evincing a depraved indifference to human life. And, six, that the defendant Manual Lugo, while acting in concert with Mr. Roman, caused the death of, in the third count a Carlos Ventura, in the fourth count Marilyn Colon. If you find the People have proved each of those six elements beyond a reasonable doubt ... under the fourth count, find the defendant guilty of that charge under the fourth count. If you find that the People have failed to prove one or more under either count you must find him not guilty of those charges. (Tr. 3040-45.) Defense counsel did not object to the acting in concert or deliberate indifference charges. (See Tr. 3056-57.) Upon receipt during deliberations of a jury note requesting further explanation of the depraved indifference murder charge (Tr.3086), the trial court provided a supplemental instruction that reiterated the definitions of depraved indifference (Tr. 3086-93), and also included this statement: If two people get together and one of them directs, if you find this to be so, beyond a reasonable doubt, by the evidence presented, someone to go to the back of a vehicle with an Uzi and fire the Uzi into the vehicle where there are two people sitting in the front of the car, does that create a substantial and unjustifiable risk that a grave risk of death could result or would result? (Tr. 3088.) Defense counsel objected to the court’s statement about firing the Uzi into the car, arguing that Roman shot Ventura, then “retreated” and then came back to shoot Colon, two separate acts. (Tr. 3094-95.) The court rejected the argument, but noted the defense’s exception to the charge. (Tr. 3095-96.) PROCEDURAL HISTORY Lugo’s Conviction and Sentencing On April 27, 1994, the jury convicted Lugo on two counts of murder in the second degree, ie., as to both Ventura and Colon. (Tr. 3103-05.) On May 24, 1994, the trial court sentenced Lugo to consecutive terms of 20 years to life and 25 years to life, for a total of 45 years to life. (Sentence Tr. 35-36; see Pet. ¶¶ 1-4.) Lugo’s Direct Appeal Lugo appealed to the First Department, arguing that: (a) there was insufficient evidence to support his conviction (Affidavit of ADA Karen Swiger, Ex. 1: Lugo 1st Dep’t Br. at 11-17), (b) the trial court improperly instructed the jury as to reasonable doubt (id. at 18-20), (c) comments made by the prosecutor were prejudicial (id. at 25-29), and (d) evidence of Colon’s pregnancy was erroneously admitted into evidence (id. at 22-24, 29-30). The First Department unanimously affirmed Lugo’s conviction. People v. Lugo, 232 A.D.2d 236, 648 N.Y.S.2d 539 (1st Dep’t 1996). First, the First Department held that “[t]he People presented overwhelming evidence of defendant’s guilt of the crimes charged.” People v. Lugo, 232 A.D.2d at 236, 648 N.Y.S.2d at 539. Second, the First Departmént rejected Lugo’s assertion that the trial court’s admission into evidence of Colon’s pregnancy was prejudicial, explaining that: In light of the defendant’s affirmative use of the fact that one of the victims was pregnant at the time of the shooting,, he may not properly claim prejudice .... In any event, were we to review the issue, we would find that the trial court appropriately exercised its discretion in permitting limited evidence of this nature, as relevant to the issues of depraved indifference and identification. Id. Third, the First Department held that the trial court’s reasonable doubt charge “did not impose any obligation upon the jurors to articulate reasons for such doubt, but merely ‘define[d] the degree of clarity and coherence of thought necessary for the jurors to conclude thát they harbor a reasonable doubt.’ ” Id. at 236-37, 648 N.Y.S.2d 539, 648 N.Y.S.2d at 540. Fourth, the First Department found that “the trial court’s supplementary charge to the jury regarding depraved indifference murder conveyed the appropriate legal principles.” Id. at 236, 648 N.Y.S.2d at 539. Finally, the First Department “considered defendant’s additional claims of error and [found] no basis to disturb the judgment.” Id. at 237, 648 N.Y.S.2d at 540. Lugo sought leave to appeal to the New York Court of Appeals, raising: (a) the trial court’s. admission of evidence of Colon’s pregnancy, (b) prejudicial comments by the prosecutor in her summation, and (c) the trial court’s reasonable doubt charge. (Swiger Aff.Ex. 3: Lugo Leave Application Letter dated 12/17/96.) Lugo did not raise the sufficiency of the evidence issue. (Id.) On January 15, 1997, the New York Court of Appeals denied leave to appeal. People v. Lugo, 89 N.Y.2d 943, 655 N.Y.S.2d 894, 678 N.E.2d 507 (1997) (table). Lugo’s Coram Nobis Petition On January 15, 1998, Lugo filed a pro se petition for a writ of error coram nobis in the First Department (Swiger Aff.Ex. 5: Lugo’s Coram Nobis papers), alleging ineffective assistance of appellate counsel based on his appellate counsel’s failure to: (a) raise additional constitutional issues as to the jury charge (Swiger Aff.Ex. 5: Lugo Aff. ¶ 9), (b) notice and correct a deficient record (id. ¶ 19), and (c) investigate newly discovered evidence and bring a CPL § 440.10 motion (id. ¶6, 11-12, 15-17). (See Lugo Br. at 12.) On. September 22, 1998, the First Department denied Lugo’s coram nobis application. (Swiger Aff.Ex. 8: 9/22/98 1st Dep’t Order.) On October 8, 1998, the New York Court of Appeals denied Lugo’s application for leave to appeal. (Swiger Aff.Ex. 9: 10/8/98 Ct.App. Order.) Lugo’s Federal Habeas Corpus Petition Lugo’s federal habeas corpus petition is dated November 10,1998 and was received by the Court’s Pro Se office on November 17, 1998. (Pet. at pp. 2, 7.) Lugo’s petition asserts that: (a) there was insufficient evidence to support his conviction for Colon’s murder (Pet-¶ 12(A)), (b) the trial court’s reasonable doubt jury instruction deprived him of a fair trial (Pet-¶ 12(B)), (c) comments by the prosecutor in summation were prejudicial (Pet-¶ 12(C)), (d) evidence of Colon’s pregnancy was erroneously admitted into evidence, depriving Lugo of a fair trial (Pet-¶ 12(C)), and (e) ineffective assistance of appelláte counsel (Pet. ¶ 12(D)). ANALYSIS I. LUGO’S PETITION IS TIMELY UNDER THE AEDPA The State alleges that Lugo’s habeas corpus petition is untimely under the ' Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1), alleging that Lugo failed to file his petition within one year from the “date on which his judgment of conviction became final by the conclusion of direct review.” (State Br. at 4.) Specifically, the State argues that the one-year limitations period expired on January 15, 1998, one year after the New York Court of Appeals denied Lugo’s application for leave to appeal and, after taking into account the tolling of the limitations period during the pendency of Lugo’s coram nobis application, Lugo needed to file his petition by September 22, 1998, and thus his November 1998 petition is untimely. (State Br. at 4-8.) The State is incorrect in arguing that Lugo’s conviction became final one year after his leave application was denied. The decisions in this Circuit (and the majority of other circuits that have faced the issue) hold that a judgment of conviction becomes final “when [the] time to seek direct review in the United States Supreme Court by writ of certiorari expire[s].” Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998); accord, e.g., Adams v. United States, 173 F.3d 1339, 1342 (11th Cir.1999) (“The Third and Tenth Circuits have held that a judgment of conviction becomes final when the Supreme Court denies certiorari or the time expires for seeking certiorari.”); Kapral v. United States, 166 F.3d 565, 570 (3d Cir.1999) (“if a defendant does not. file a certiorari petition, the judgment of conviction does not become ‘final’ until the time for seeking cer-tiorari review expires”); United States v. Lacey, No. 98-3030, 162 F.3d 1175 (table), 1998 WL 777067 at *1 (10th Cir. Oct.27, 1998); Warren v. Garvin, 97 Civ. 3243, 1999 WL 494117 at *1 (S.D.N.Y. July 13, 1999) (Patterson, D.J.); Alexander v. Keane, 991 F.Supp. 329, 334 n. 2 (S.D.N.Y.1998) (Sotomayor, D.J.)- (rejecting the argument that “the statute of limitations begins to run from the time the Court of Appeals affirmed the conviction without adding the ninety days in which a petition for certiorari could have been filed”); Carrecedo v. Artuz, No. 98 Civ. 7561, 1999 WL 336242 (S.D.N.Y. May 24, 1999) (“The weight of authority” is to utilize the 90-day cert. period, citing cases); Torres v. Irvin, 33 F.Supp.2d 257, 271 (S.D.N.Y.1998) (Cote, D.J. & Peck, M.J.); Cowart v. Goord, 97 Civ. 3865, 1998 WL 276213 at *2 (S.D.N.Y. May 29, 1998); Hughes v. Irvin, 967 F.Supp. 775, 778 (E.D.N.Y.1997); Jones v. Artuz, No. CV 97-2394, 1997 WL 876735 at *1 (E.D.N.Y. Sept.13, 1997); but cf. Gendron v. United States, 154 F.3d 672, 674 & nn. 1-2 (7th Cir.1998) (“we hold that federal prisoners who decide not to seek certiorari with the Supreme Court will have the period of limitations b'egin to run on the date [the Court of Appeals] issues the mandate in their direct criminal appeal,” while leaving open the question for state prisoners because of the different language in 28 U.S.C. § 2244 and § 2255). Here, the New York Court of Appeals denied leave to appeal on January 15, 1997. Thus, the ninety-day period to seek certiorari expired, and Lugo’s conviction became final, on April 15,1997. Pursuant to 28 U.S.C. § 2244(d)(2), the one-year statute of limitations is tolled during the pendency of a “properly filed application for State post-conviction or other collateral review.” Lugo filed his co-ram nobis petition in the First Department on January 15, 1998, which denied it on September 22, 1998, 250 days later. Allowing for these 250 days, Lugo’s deadline to file his habeas petition was December 21, 1998. Therefore, Lugo’s petition, filed sometime between November 10 and 17, 1998, was timely. Indeed, the State concedes that if “petitioner’s year to file [his habeas petition] began at the expiration of his time to seek certiorari, the petition is timely.” (State Br. at 8 n. 2.) II. LUGO’S CLAIM REGARDING THE ADMISSION OF EVIDENCE OF COLON’S PREGNANCY IS NOT EXHAUSTED AND IS PROCEDURALLY BARRED 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., O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201-02, 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); Orraca v. Walker, 98 Civ. 4459, 1999 WL 427992 at *5-6 (S.D.N.Y. June 18, 1999) (McKenna, D.J. & Peck, M.J.); Otero v. Stinson, 51 F.Supp.2d 415, 418-20 (S.D.N.Y.1999) (Baer, D.J. & Peck, M.J.); Jordan v. Lefevre, 22 F.Supp.2d 259, 266 (S.D.N.Y.1998) (Mukasey, D.J. & Peck, M.J.); Camarano v. Irvin, 902 F.Supp. 358, 364 (S.D.N.Y.1994) (Patterson, D.J. & Grubin, M.J.), aff'd mem., 122 F.3d 1055 (2d Cir.1995); Lynes v. Mitchell, 894 F.Supp. 119, 122 (S.D.N.Y.1995) (Patterson, D.J. & Grubin, M.J.), aff'd mem., 104 F.3d 355 (2d Cir.1996). 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; accord, e.g., O’Sullivan v. Boerckel, 526 U.S. at -, 119 S.Ct. at 1732; Jordan v. Lefevre, 22 F.Supp.2d at 266. 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., O’Sullivan v. Boerckel, 526 U.S. at --, 119 S.Ct. at 1732-34; Jordan v. Lefevre, 22 F.Supp.2d at 266; Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y May 31, 1996) (Batts, D.J. & Peck, M.J.); Ehinger v. Miller, 928 F.Supp. 291, 293 (S.D.N.Y 1996) (Mukasey, D.J. & Peck, M.J.); Camarano v. Irvin, 902 F.Supp. at 364; Lynes v. Mitchell, 894 F.Supp. at 122. “The exhaustion requirement is not satisfied unless the federal claim has been ‘fairly presented’ to the state courts.” Daye v. Attorney General, 696 F.2d at 191; accord, e.g., O’Sullivan v. Boerckel, 526 U.S. at -, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco, 126 F.3d 408, 413 (2d Cir.1997); Diaz v. Coombe, 1997 WL 529608 at *3; Camarano v. Irvin, 902 F.Supp. at 364; Lynes v. Mitchell, 894 F.Supp. at 122. 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 at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir.1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir.1984); Daye v. Attorney Gen., 696 F.2d at 191; 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) reliarice 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 195; accord, e.g,. Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir.1995); Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir.1986); Jordan v. Lefevre, 22 F.Supp.2d at 266; Petrucelli v. Coombe, 735 F.2d at 688; Diaz v. Coombe, 1997 WL 529608 at *3; Washington v. Superintendent, Otisville Correctional Facility, 96 Civ. 2729, 1997 WL 178616 at *3-4 (S.D.N.Y. April 11, 1997); Boyd v. Hawk, 1996 WL 406680 at *3 — 4; Connolly v. Artuz, No. 93 CV 4470, 1995 WL 561343 at *2 (E.D.N.Y. Sept.15, 1995); Saunders v. Riley, 90 Civ. 4738, 1991 WL 95352 at *5 (S.D.N.Y. May 30, 1991); Martin v. Scully, 748 F.Supp. 159, 166 (S.D.N.Y.1990) (Patterson, D.J. & Grubin, M.J.). In the present petition, Lugo argues that the trial court improperly admitted the medical examiner’s testimony that Colon was pregnant at the time of the shooting. (Pet-¶ 12(C); Lugo Br. at 22-24.) Lugo 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. Lugo’s argument on his state appeal was based solely on state court decisions that did not employ federal constitutional analysis, nor did he refer to any provision of the constitution. (See Swiger Ex. 1: Lugo 1st Dep’t Br. at 21-25, 27, 29-30.) Therefore, this claim has not been “fairly presented” to the state court as constitutional claims under Daye and its progeny. See, e.g., Boyd v. Hawk, 1996 WL 406680 at *4 (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) (“‘[A]lleging lack of a fair trial does not convert every complaint about evidence or a prosecutor’s summation into a federal due process claim.’ ” quoting Daye), 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 “[pjeti-tioner 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 [nor] call to mind any specific fact protected by the constitution ...”); 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). Thus, Lugo’s claim about evidence of Colon’s pregnancy is unexhausted. “ ‘For 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 at 269; Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at *3 (S.D.N.Y. Oct.7, 1998) (“While petitioner’s failure to ‘fairly present’ his claim in state court leads to a determination that the claim is exhausted, at the same time this failure results in a procedural default of the claim.”); 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); Camarano v. Irvin, 902 F.Supp. at 364; Lynes v. Mitchell, 894 F.Supp. at 122. “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., Camarano v. Irvin, 902 F.Supp. at 364; Lynes v. Mitchell, 894 F.Supp. at 122. 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. It is clear that Lugo is now barred from raising this constitutional claim in State court because it could have been raised on direct 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.... [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 procedurally 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)(e) 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. at 367 n. 3 (finding federal consto-ditional 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). “[T]o avoid [such] a procedural default, a habeas petitioner must “ ‘demonstrate 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,’ ” i.e., a showing of ‘actual innocence.’ ” Jordan v. Lefevre, 22 F.Supp.2d at 269 (quoting Gibriano v. Attorney General, 965 F.Supp. 489, 493 n. 5 (S.D.N.Y.1997) (Sprizzo, D.J. & Peck, M.J.)); see also, e.g., Camarano v. Irvin, 902 F.Supp. at 364-65; Lynes v. Mitchell, 894 F.Supp. at 122-23. Here, Lugo has not attempted to show cause and prejudice or “actual innocence,” and thus this claim must be denied. III. LUGO’S INSUFFICIENCY OF THE EVIDENCE CLAIM IS NOT EXHAUSTED AND IS PROCEDURALLY BARRED FOR HABEAS CORPUS REVIEW “Exhaustion of available state remedies requires presentation of the claims to the highest state court from which a decision can be had.” Daye v. Attorney General, 696 F.2d 186, 191 n. 3 (2d Cir.1982); accord, e.g., O’Sullivan v. Boerckel, 526 U.S. 838, --, 119 S.Ct. 1728, 1732-34, 144 L.Ed.2d 1 (1999); Bossett v. Walker, 41 F.3d 825, 828 (1994) (“To fulfill the exhaustion requirement, a petitioner must'have presented the substance of his federal claims ‘to the highest court of the pertinent state.’ ”); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir.1991) (“a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition”); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990) (“We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition.”) (citing Daye); Jordan v. Lefevre, 22 F.Supp.2d 259, 261, 266-67 (S.D.N.Y.1998) (Mukasey, D.J. & Peck, M.J.); Bass v. Scully, No. CV-92-0349, 1995 WL 347040 at *2 (E.D.N.Y. May 25, 1995); Camarano v. Irvin, 902 F.Supp. 358, 364 (S.D.N.Y.1994) (Patterson, D.J. & Grubin, M.J.) (“Exhaustion requires a petitioner to have fairly presented at each available level of the state courts the same federal constitutional claims, legally and factually, raised in his or her petition to the federal court so that the state courts, including the state’s highest court, will have had an opportunity to pass on them”), aff'd mem., 122 F.3d 1055 (2d Cir.1995); Lynes v. Mitchell, 894 F.Supp. 119, 122 (S.D.N.Y.1995) (Patterson, D.J. & Grubin, M.J.), aff'd mem., 104 F.3d 355 (2d Cir.1996); Brooks v. Kelly, No. 88-CV-0631, 1993 WL 350188 at *3 (W.D.N.Y. Sept.10, 1993); Thebner v. Miller, 788 F.Supp. 714, 717 (E.D.N.Y.1992). Lugo’s first habeas claim here is that the evidence at trial was insufficient to support his conviction of second degree murder. (Pet.1 12(A); Lugo Br. at 13-16.) Lugo raised this argument in his appeal to the First Department, but did not raise it in his application for leave to appeal to the New York Court of Appeals. (See pages 12-13 above.) Therefore, this claim is not exhausted. See, e.g., Jordan v. Lefevre, 22 F.Supp.2d at 261, 266-67 ( & cases cited therein). Lugo, however, is procedurally barred from now raising this claim in the New York Court of Appeals. As the Second Circuit explained in Grey v. Hoke: Here, New York procedural rules plainly bar petitioner from attempting to raise [the claims he raised before the Appellate Division but not-in his application for leave to appeal] before the New York Court of Appeals. Petitioner cannot again seek leave to appeal these claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Court Rules § 500.10(a). Collateral review of these claims is also barred because the issues were previously determined on the merits on direct appeal. See N.Y.Crim.Proc.Law § 440.10(2)(a); see also N.Y.Crim.Proc. Law § 440.10(2)(c) (barring review if a claim could have been raised on direct review) .... We agree with the state, however, that petitioner’s forfeiture in state court of [the claim not adequately raised before the N.Y. Court of Appeals] bars him from litigating the merits of those claims in federal habeas proceedings, absent a showing of cause for the procedural default and prejudice resulting therefrom. Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-2509, 53 L.Ed.2d 594 (1977). Petitioner makes no showing of cause or of prejudice. The [claims not raised before the Court of Appeals] must therefore be dismissed without reaching the merits. Grey v. Hoke, 933 F.2d at 120-21; accord, e.g., Jordan v. Lefevre, 22 F.Supp.2d at 269; Bass v. Scully, 1995 WL 347040 at *3; Marrero v. Keane, No. 99 Civ. 3573, 1995 WL 66660 at *2 (S.D.N.Y. Feb.16, 1995); Camarano v. Irvin, 902 F.Supp. at 364; Lynes v. Mitchell, 894 F.Supp. at 122; Brooks v. Kelly 1993 WL 350188 at *3; Thebner v. Miller, 788 F.Supp. at 717-18; see also, e.g., Bossett v. Walker 41 F.3d at 828-29. As explained above, “[a]s modified and clarified by more recent Supreme Court case law, to avoid a procedural default, a habeas petitioner must ‘“demonstrate 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,’ i.e., a showing of ‘actual innocence.’ ” Jordan v. Lefevre, 22 F.Supp.2d at 269. Here, Lugo has not alleged cause and prejudice, nor has he made a showing of actual innocence. Thus, his sufficiency of the evidence claim should be dismissed as procedurally defaulted. IV. THE TRIAL COURT’S REASONABLE DOUBT JURY INSTRUCTION WAS PROPER Lugo argues that the trial court’s reasonable doubt charge obligated jurors to articulate their reasons for their doubts, thereby imposing an “affirmative obligation to defend his or her position to other jurors.” (PetV 12(B); see also Lugo Br. at 19-20.) Over 25 years ago, in 1973, the Supreme Court noted that it was already a “well established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); accord, e.g., Mason v. Schriver, 14 F.Supp.2d 321, 330 (S.D.N.Y.1998) (Preska, D.J. & Peck, M.J.); see also, e.g., Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990) (“In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole.”); United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975) (quoting Cupp). In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the Supreme Court noted that the beyond a reasonable doubt standard “is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Id. at 6, 114 S.Ct. at 1243. Since “the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof,” the instructions must “correctly convefy] the concept of reasonable doubt” when “taken as a whole.” Id. Lugo challenges that part of the trial court’s instruction which stated that “[a] doubt of a defendant’s guilt to be a reasonable doubt must be one for- which some reason can be given.” (Tr. 3016-17.) Lugo argues that this instruction impermissibly shifted the. burden of proof to the defense by requiring each juror to be able to give an explanation for their doubts. (Lugo Br. at 17-20.) While some Second Circuit decisions have held that jury instructions that state or imply that jurors should be able to give a reason for their doubts aré “not approved” and perhaps are “unwise,” the Second Circuit also has said that such an instruction is “not erroneous.” Chalmers v. Mitchell, 73 F.3d 1262, 1268 (2d Cir.1996) (citing United States v. Davis, 328 F.2d 864, 868 (2d Cir.1964) (Friendly, C.J.), & Barber v. Scully 557 F.Supp. 1292, 1296 (S.D.N.Y.1983), aff'd, 731 F.2d 1073 (2d Cir.1984)); see also, e.g., Pinto v. Stinson, No. 96-2655, 129 F.3d 114 (table), 1997 WL 664866 at *1 (2d Cir. Oct.21, 1997) (“While this Court has disapproved of [reasonable doubt jury instructions including the phrase a doubt for which you can give a substantial reason:] it has not found such instructions to violate due process .... Likewise, the jury instructions given here, while problematic, did not unconstitutionally lower the State’s burden of proof.”); Beverly v. Walker, 118 F.3d 900, 903 (2d Cir.1997); Mason v. Schriver, 14 F.Supp.2d at 330. Indeed, New York State courts have long approved of such language. In analyzing an allegedly erroneous reasonable doubt jury charge, the Second Circuit has emphasized that a court must view the instruction in light of the charge as a whole to determine whether there has been a constitutional violation. See, e.g., Pinto v. Stinson, 1997 WL 664866 at *1; Beverly v. Walker, 118 F.3d at 903-04 (upholding “doubt for which you can give a reason” instruction in context of entire charge); Vargas v. Keane, 86 F.3d 1273, 1277-78 (2d Cir.) (upholding jury instruction that defined reasonable doubt as “ ‘doubt for which you can give a reason,’ ” when viewed in light of the charge as a whole), cert. denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169 (1996); Chalmers v. Mitchell, 73 F.3d at 1268; Barber v. Scully, 557 F.Supp. at 1296 (upholding a similar charge); Mason v. Schriver, 14 F.Supp.2d 321, 330-31. “[W]here the jury instructions taken as a whole clearly instruct that the burden is on the government and that the defendant is never required to prove his innocence, the charge as a whole will not be held to be erroneous.” Mason v. Schriver, 14 F.Supp.2d at 330 (citing Vargas, Chalmers & Davis). Here, as in those cases, the trial court’s entire charge made clear that Lugo was not required to prove his innocence and that the burden rested on the State. For example, the trial judge instructed the jurors that the “People must prove guilt beyond a reasonable doubt and that is the highest standard of proof known to the law.” (Tr. 3016.) The trial court also warned that a doubt, to be reasonable, must not be based “upon a whim or a guess or a feeling that a juror may have that’s unconnected to the evidence in the case.” (Tr. 3017.) The jury was told to “[r]eview the evidence ... and, if after doing so you find that the People have not proven defendant’s guilt beyond a reasonable doubt, then find the defendant not guilty.” (Tr. 3018.) Taken in light of the entire jury instructions, the “challenged language did not raise the quantum of doubt necessary for acquittal or shift the burden of proof away from the prosecution.” Vargas v. Keane, 86 F.3d at 1277; see also, e.g., Mason v. Schriver, 14 F.Supp.2d at 330-31. Accordingly, the reasonable doubt charge did not constitute constitutional error sufficient to justify ha-beas relief. V. THE PROSECUTOR’S REMARKS WERE NOT SO EGREGIOUS AS TO VIOLATE DUE PROCESS Lugo’s third habeas claim alleges that he was “deprived of his right to a fair trial by scandalous and violative remarks by the prosecutor ...” (Pet-¶ 12(C).) Specifically,, Lugo claims that in her summation, the prosecutor made inappropriate remarks about drug dealers (Tr. 2824-25), and shifted the burden of proof to the defendant by insinuating that Lugo should have produced more witnesses (Tr. 2826). (See Pet. ¶ 12(C); Lugo Br. at 26.) While Lugo groups this claim and the claim regarding the admission of Colon’s pregnancy together in a single ground in his petition (Pet.f 12(C)), the prosecutorial misconduct claim is not procedurally barred. Lugo fairly presented his federal claim in state court merely by asserting prosecutorial misconduct. The Second Circuit holds that “the claim of prosecutorial misconduct ha[s] sufficiently familiar federal constitutional implications to be within the mainstream of constitutional litigation,” thereby satisfying Daye’s, fourth prong. Garofolo v. Coomb, 804 F.2d 201, 205 (2d Cir.1986); accord, e.g., Connolly v. Artuz, No. 93 CV 4470, 1995 WL 561343 at *2 (E.D.N.Y. Sept.15, 1995); Washington v. Walker, 89 Civ. 7841, 1994 WL 391947 at *5 n. 1 (S.D.N.Y. July 28, 1994); Saunders v. Riley, 90 Civ. 4738, 1991 WL 95352 at *5 (S.D.N.Y. May 30, 1991). Lugo’s prosecutorial misconduct claim is therefore ripe for review on the merits. Prosecutorial misconduct violates a defendant’s due process rights only when it is of “ ‘ “sufficient significance to result in the denial of the defendant’s right to a fair trial.” ’ ” Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3109, 97 L.Ed.2d 618 (1987); accord, e.g., United States v. McCarthy, 54 F.3d 51, 55 (2d Cir.), cert. denied, 516 U.S. 880, 116 S.Ct. 214, 133 L.Ed.2d 145 (1995); Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158, 116 L.Ed.2d 123 (1991); Readdon v. Senkowski, 96 Civ. 4722, 1998 WL 720682 at *4 (S.D.N.Y. Oct.13, 1998); Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *4 (S.D.N.Y. Sept.19, 1997); Beverly v. Walker, 899 F.Supp. 900, 911 (N.D.N.Y.1995), aff'd, 118 F.3d 900 (2d Cir.1997); Washington v. Walker, 1994 WL 391947 at *3 (“Even where a prosecutor’s remarks are improper, ‘constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair’ ”) (quoting Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir.1990) (quoting Garofolo v. Coomb, 804 F.2d at 206)); Martin v. Scully, 748 F.Supp. 159, 166 (S.D.N.Y.1990) (Patterson, D.J. & Grubin, M.J.). Stated another way, “the law is settled that ‘federal habe-as relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the summation as a whole, were so fundamentally unfair as to deny petitioner a fair trial.’ ” Tejeda v. Senkowski, 92 Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993), aff'd mem., 23 F.3d 397 (2d Cir.), cert. denied, 513 U.S. 887, 115 S.Ct. 230, 130 L.Ed.2d 155 (1994); accord, Franza v. Stinson, 58 F.Supp.2d 124, 149 (S.D.N.Y.1999) (Kaplan, D.J. & Peck, M.J.); see also, e.g., Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974); Fox v. Mann, 71 F.3d 66, 72 (2d Cir.1995); Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir.1990) (quoting Garofolo v. Coomb, 804 F.2d 201, 205 (2d Cir.1986)); Edmonds, v. McGinnis, 11 F.Supp.2d 427, 437 (S.D.N.Y.1998); Gaiter v. Lord, 917 F.Supp. 145, 153 (E.D.N.Y.1996); Jones v. Kuhlmann, 93 Civ. 5963, 1995 WL 733649 at *4 (S.D.N.Y. Dec.12, 1995). To properly evaluate the prosecution’s actions, the alleged misdeeds must be placed in context, and “[t]he severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry.” Blis sett v. Lefevre, 924 F.2d at 440; accord, e.g., Greer v. Miller, 483 U.S. at 766, 107 S.Ct. at 3109 (“it is important ‘as an initial matter to place th[e] remar[k] in context’”); United States v. McCarthy, 54 F.3d at 55; United States v. Friedman, 909 F.2d 705, 709 (2d Cir.1990); United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 93 L.Ed.2d 54 (1986); Hurd v. Keane, 1997 WL 582825 at *4; Beverly v. Walker, 899 F.Supp. at 911. The prosecutor’s summation remarks here fall far short of a constitutional violation. First, Lugo complains that he was prejudiced by the prosecutor’s repeated references to drugs and the victims as “drug dealers.” However, in making these comments, the prosecutor was simply stressing that, despite the victims’ involvement in the drug trade, they deserved a “cool, calm evaluation of the evidence.” (Tr. 2825.) The allegedly prejudicial comments such as “wild-west” and “when bullets fly, people die” were calculated to emphasize the gravity of the crime, and to stress Lugo’s depraved indifference. “ ‘[A] prosecutor is not precluded from vigorous advocacy, or the use of colorful adjectives, in summation.’ ” United States v. Jaswal, 47 F.3d 539, 544 (2d Cir.1995); see also, e.g., Franza v. Stinson, 1999 WL 495902 at *23. Therefore, based on the lack of severity of the alleged misconduct and the strong evidence of Lugo’s guilt, these remarks did not prejudice Lugo. See, e.g., Bentley v. Scully, 41 F.3d 818, 825 (2d Cir.1994) (denying prosecutorial misconduct claim where prosecution presented “compelling evidence” against petitioner and alleged misconduct was both brief and isolated), cert. denied, 516 U.S. 1152, 116 S.Ct. 1029, 134 L.Ed.2d 107 (1996); Strouse v. Leonardo, 928 F.2d 548, 557 (2d Cir.1991) (no vi