09-0826-pr

Carvajal v. Artus

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2010

6

7

8 (Argued: September 29, 2010 Decided: January 25, 2011)

9

10 Docket No. 09-0826-pr

11

12 - - - - - - - - - - - - - - - - - - - -x

13

14 ALVARO CARVAJAL,

15

16 Petitioner-Appellant,

17

18 - v.-

19

20 SUPERINTENDENT DALE ARTUS,

21

22 Respondent-Appellee.

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24 - - - - - - - - - - - - - - - - - - - -x

25

26 Before: JACOBS, Chief Judge, FEINBERG and

27 CABRANES, Circuit Judges.

28

29

30 Appeal from the denial of an application for a writ of

31 habeas corpus in the United States District Court for the

32 Southern District of New York (McMahon, J.). Alvaro

33 Carvajal, a New York State prisoner, argues that his

34 prosecution in New York for the unlawful possession of a

35 controlled substance exceeded New York’s criminal

36 territorial jurisdiction (because both he and the drugs that
2

1 formed the basis for the prosecution were found in

2 California), and therefore violated his federal

3 constitutional rights. Carvajal contends that affirmance of

4 his conviction by the New York Court of Appeals was contrary

5 to, or an unreasonable application of, clearly established

6 Supreme Court precedent that limits a state’s prosecutorial

7 power to only those offenses that were either committed

8 within the prosecuting state or that were committed outside

9 but had both an intended and actual detrimental effect

10 within. We dismiss the application on the ground that

11 Carvajal’s federal constitutional claim is procedurally

12 defaulted.

13

14 GEORGIA J. HINDE, New York, New

15 York, for Petitioner-Appellant.

16

17 THOMAS B. LITSKY, Assistant

18 Attorney General (Andrew M. Cuomo,

19 Attorney General of the State of New

20 York, Barbara D. Underwood, Solicitor

21 General, Roseann B. MacKechnie, Deputy

22 Solicitor General for Criminal Matters,

23 on the brief), New York, New York, for

24 Respondent-Appellee.

25

26 DENNIS JACOBS, Chief Judge:

27 Alvaro Carvajal, a New York State prisoner, appeals

28 from the denial of an application for habeas corpus relief

29 in the United States District Court for the Southern
3

1 District of New York (McMahon, J.). He argues that his

2 prosecution in New York for the unlawful possession of a

3 controlled substance exceeded New York’s criminal

4 territorial jurisdiction, and thereby violated his federal

5 constitutional rights, because both he and the drugs that

6 formed the basis for his prosecution for unlawful possession

7 of a controlled substance were found in California.

8 Carvajal challenges the power of New York State to prosecute

9 him for the possessory offenses for which he was convicted. 

10 But our power to grant relief is limited by the

11 Antiterrorism and Effective Death Penalty Act of 1996, Pub.

12 L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996)

13 (“AEDPA”), which bars relief to a state prisoner who raises

14 a federal constitutional claim unless the state court’s

15 ruling was contrary to, or an unreasonable application of,

16 clearly established Supreme Court precedent, and the claim

17 was fairly presented to the state court. 

18 Carvajal contends that affirmance of his conviction by

19 the New York Court of Appeals was contrary to, or an

20 unreasonable application of, clearly established Supreme

21 Court precedent that limits a state’s prosecutorial power to

22 only those offenses that were committed within the
4

1 prosecuting state or that were committed outside but had

2 both an intended and actual detrimental effect within.

3 The New York Court of Appeals determined that the trial

4 court’s exercise of territorial jurisdiction over Carvajal

5 was proper under state law, noted that Carvajal had never

6 challenged the state’s jurisdiction on constitutional

7 grounds, and upheld his conviction. The United States

8 District Court for the Southern District of New York

9 dismissed the application for a writ of habeas corpus, but

10 issued a certificate of appealability on the question of

11 whether New York had territorial jurisdiction to prosecute

12 Carvajal for three counts of drug possession when he

13 possessed the drugs at issue exclusively out-of-state and

14 was arrested in another state, but participated in a

15 conspiracy to transport drugs into New York. 

16 The force of Carvajal’s argument notwithstanding, we

17 must deem his claim procedurally defaulted and dismiss his

18 application for a writ of habeas corpus.

19 BACKGROUND

20 In 1993, the New York State Drug Enforcement Task Force

21 launched an investigation into a Colombian narcotics

22 trafficking organization set up to transport cocaine from
5

1 the San Francisco area to New York City. Intercepted

2 telephone conversations and other surveillance indicated

3 that Carvajal was in charge of the West Coast end and that

4 Carvajal and his coconspirators in New York employed a

5 network of individuals to “drive, store, and otherwise take

6 care of the drugs and equipment.” People v. Carvajal, 786

7 N.Y.S.2d 450, 452 (App. Div. 1st Dep’t 2004). Carvajal made

8 one trip to New York, in 1994, but was not arrested at that

9 time or found in possession of any drugs. 

10 Ultimately, California authorities recovered large

11 quantities of drugs hidden in vehicles with secret

12 compartments and a “stash house” used by the trafficking

13 organization in California. Carvajal was arrested in

14 California and extradited to New York where he was charged

15 with conspiracy in the second degree and three counts of

16 criminal possession of a controlled substance. All of the

17 drugs that formed the basis for these possession counts were

18 found and seized in California. On his arrest, Carvajal was

19 in possession of numerous documents linking him to other

20 members of the narcotics conspiracy, but no drugs were on

21 his person or in his vicinity. Under New York law, Carvajal

22 was deemed to be in constructive possession of the drugs
6

1 seized in California because he exercised dominion over

2 subordinate members of the conspiracy who were found in

3 actual possession of the narcotics, and because he exercised

4 control over the cars and “stash house” where the drugs were

5 seized. See People v. Manini, 79 N.Y.2d 561, 569-70 (1992).

6 Carvajal was tried, along with several of his New York

7 coconspirators, in the State Supreme Court for New York

8 County.

9 The trial evidence reflected numerous phone calls

10 between Carvajal and his New York coconspirators and

11 emphasized Carvajal’s role in supervising the distribution

12 conspiracy from California. See Carvajal v. Artus, No. 07

13 Civ. 10634 (CM)(AJP), 2008 WL 4555531, at *2-*9 (S.D.N.Y.

14 Oct. 10, 2008). Carvajal’s application for relief does not

15 challenge the sufficiency of the evidence linking him to the

16 conspiracy. See N.Y. Crim. Proc. Law § 20.20(2)(d). The

17 issue is whether he is entitled to habeas relief with

18 respect to the possession counts of his conviction because

19 New York lacked the power to prosecute him for those

20 offenses.

21 At the state trial, Justice Bonnie G. Wittner informed

22 the parties that, under People v. McLaughlin, 80 N.Y.2d 466,
7

1 469 (1992), the prosecution need not prove the existence of

2 jurisdiction beyond a reasonable doubt unless the defense

3 disputed the existence of proper jurisdiction. Carvajal,

4 2008 WL 4555531, at *9. Defense counsel undertook to raise

5 the jurisdiction issue via cross-examination of one of the

6 prosecution’s witnesses. Justice Wittner emphasized her

7 view that jurisdiction was established as to the possession

8 counts by evidence of Carvajal’s cell phone conversations

9 with his New York coconspirators, because each of those

10 conversations “went through a cell [s]ite within the

11 geographical territory of the State of New York.” Id.

12 Oddly, Carvajal’s counsel said he did not “disagree” with

13 the trial judge’s statement of the law on this point. Id. 

14 Nonetheless, the trial judge announced that, at the request

15 of the defense, she would charge the jury on the question of

16 whether the State had territorial jurisdiction. Id. at *10.

17 Despite the fact that the trial judge was willing to give a

18 charge on jurisdiction, Carvajal and his codefendant

19 subsequently withdrew their request for such a charge. Id. 

20 Apparently, this was done because defense counsel objected

21 to the manner in which Justice Wittner intended to charge

22 the jury on jurisdiction. It seems defense counsel sought
 We confine ourselves to a review of the issue

1

presented in the certificate of appealability and do not

address the wisdom of trial counsel’s decision on this

point.

8

1 to avoid the submission of six interrogatories to the jury,

2 which would conform to the prosecution’s theory of

3 jurisdiction, and which “would require reading the overt

4 acts in the indictment” to the jury. App. R. Ex. D at 34.

1

5 Carvajal was convicted on all counts of the indictment

6 and sentenced to an aggregate indeterminate prison term of

7 thirty-five years to life. He was subsequently resentenced

8 under the Rockefeller Drug Reform Act to a determinate

9 sentence of twelve-and-a-half to twenty-five years on the

10 conspiracy conviction, and thirteen years imprisonment for

11 two of the possession counts, all to run concurrently, and a

12 consecutive term of thirteen years’ imprisonment on the

13 third possession count. But for the consecutive term of

14 imprisonment imposed on the third possession count, Carvajal

15 would be immediately eligible for parole and removal to

16 Colombia.

17 Represented by new counsel, Carvajal appealed his

18 conviction to the New York State Appellate Division, First

19 Department. In relevant part, Carvajal argued that the
9

1 question of New York’s territorial jurisdiction was non2 waivable because “[t]erritorial jurisdiction refers to the

3 power of the court to hear and determine the case,” and that

4 territorial jurisdiction was lacking on the possession

5 counts because the acts of possession “took place wholly

6 outside of New York.” App. R. Ex. D at 25. Carvajal’s

7 brief to the Appellate Division cited the New York Court of

8 Appeals’ decision of McLaughlin, which recognized that

9 “[t]he general rule in New York is that, for the State to

10 have criminal jurisdiction, either the alleged conduct or

11 some consequence of it must have occurred within the State.”

12 80 N.Y.2d at 471; see also N.Y. Crim. Proc. Law § 20.20.

13 The Appellate Division agreed that “[b]ecause the State

14 only has power to enact and enforce criminal laws within its

15 territorial borders, there can be no criminal offense unless

16 it has territorial jurisdiction.” Carvajal, 786 N.Y.S.2d at

17 453. And, the Appellate Division remarked that it was

18 “aware of no other case in which a defendant was convicted

19 of possession of a controlled substance when neither the

20 drugs at issue nor the defendant was in New York at the time

21 of the offense.” Id. at 454. Nevertheless, the court held

22 that the State had jurisdiction to prosecute Carvajal under
 Carvajal argued, without success, that the court

2

could not rely on New York Criminal Procedure Law § 20.60 to

establish that an element of the possession offense occurred

in New York. Carvajal maintained: “Put simply, under

Criminal Procedure Law § 20.60(1), it is the communication

which is deemed to be in each jurisdiction, not the objects

about which there is communication.” App. R. Ex. D at 33;

see also, e.g., People v. Giordano, 87 N.Y.2d 441, 449

(1995) (finding N.Y. Crim. Proc. Law § 20.60(1) “provides

that oral statements made over the telephone are deemed to

be statements made in both the sending and receiving

10

1 Criminal Procedure Law section 20.20(1)(a). Carvajal, 786

2 N.Y.S.2d at 454, 455; see also N.Y. Crim. Proc. Law

3 § 20.20(1)(a) (providing for jurisdiction over an offense

4 when conduct occurred within New York sufficient to

5 establish an element of the offense). Carvajal was “deemed

6 to have been in New York for jurisdictional purposes”

7 because of phone calls made to his New York coconspirators,

8 and was deemed to have constructively possessed the drugs in

9 New York because he exercised control over the drugs and his

10 subordinates who held the drugs in California. Carvajal,

11 786 N.Y.S.2d at 455; see also N.Y. Crim. Proc. Law

12 § 20.60(1) (providing that “[a]n oral or written statement

13 made by a person in one jurisdiction to a person in another

14 jurisdiction by means of telecommunications, mail or any

15 other method of communication is deemed to be made in each

16 such jurisdiction”). The Appellate Division upheld

2
counties”); People v. Cespedes, 799 N.Y.S.2d 703, 713-14

(Sup. Ct. N.Y. Co. 2005) (“Criminal Procedure Law § 20.60(1)

should . . . be given a narrow application. . . . [It]

insures that if the requirements of venue are otherwise

satisfied by a sufficient criminal connection or effect in

the county of prosecution, the transmittal of a criminal

statement, such as a fraudulent insurance claim, by mail

from one county to another, or the occurrence of a criminal

conversation on the telephone between coconspirators in two

counties, results in venue in either county.”).

 One commentator argued that the reasoning of the

3

Appellate Division, by which “Carvajal’s constructive

presence in New York was bootstrapped into dominion and

control over cocaine located in California, borders on

Kafkaesque.” Abraham Abramovsky, A Bootstrap Too Far:

Constructive Presence, Constructive Possession, N.Y. L.J.,

Jan. 10, 2005. According to Abramovsky, “Utilizing

constructive presence to establish constructive possession

is one construction too many.” Id.

11

1 Carvajal’s conviction on the ground that “[a]n element of

2 [the possession] offense[s]” occurred within New York

3 State. Carvajal, 786 N.Y.S.2d at 454, 457; see also N.Y. 3

4 Crim. Proc. Law § 20.20(1)(a).

5 Carvajal sought, and was granted, leave to appeal to

6 the New York Court of Appeals. App. R. Ex. H. Citing New

7 York law, Carvajal’s merits brief argued that his trial

8 suffered from a “fundamental, nonwaivable defect in the mode

9 of procedure,” People v. Patterson, 39 N.Y.2d 288, 295

10 (1976): that New York lacked jurisdiction to prosecute him

11 for the possession offenses. App. R. Ex. I at 2. Starting
 The intermediate state court concluded that an 4

element of the possession offense did occur in New York. 

But, the New York Court of Appeals invoked “principles of

judicial restraint” as its rationale for declining to decide

whether jurisdiction was established under New York Criminal

Procedure Law § 20.20(a)(1). It appears that the New York

Court of Appeals was reluctant to endorse the idea that an

individual located in California should be deemed to have

acted in New York for purposes of obtaining jurisdiction

12

1 from the proposition that “territorial jurisdiction

2 implicates the [s]tate’s inherent authority to prosecute and

3 punish a suspect for alleged criminal conduct,” the New York

4 Court of Appeals held that, though a defendant may waive

5 proper venue and the opportunity to require the prosecutor

6 to prove the existence of jurisdiction to a jury beyond a

7 reasonable doubt, “the fundamental question whether--as a

8 matter of law--[New York] State has the power to hear the

9 case” cannot be waived. People v. Carvajal, 6 N.Y.3d 305,

10 312 (2005) (Kaye, C.J.). Reaching the merits, however, the

11 court upheld the State’s exercise of jurisdiction over the

12 possession offenses. Id. at 313. 

13 The New York Court of Appeals declined to rest its

14 decision on N.Y. Crim. Proc. Law § 20.20(1)(a), on which the

15 lower state courts had relied. Perhaps because

16 § 20.20(1)(a) requires that an element of the offense take

17 place in New York, the New York Court of Appeals instead 4
over a possession offense by virtue of the fact that he had

phone conversations with individuals in New York.

13

1 founded jurisdiction on § 20.20(1)(c), Carvajal, 6 N.Y.3d at

2 312-13, which provides:

3 [A] person may be convicted in the criminal courts

4 of [New York State] of an offense defined by the

5 laws of [New York State], committed either by his

6 own conduct or by the conduct of another for which

7 he is legally accountable . . . when:

8

9 1. Conduct occurred within this state

10 sufficient to establish:

11

12 . . . .

13

14 (c) A conspiracy or criminal solicitation

15 to commit such offense, or otherwise to

16 establish the complicity of at least one

17 of the persons liable therefor; provided

18 that the jurisdiction accorded by this

19 paragraph extends only to conviction of

20 those persons whose conspiratorial or

21 other conduct of complicity occurred

22 within [New York State].

23

24 N.Y. Crim. Proc. Law § 20.20(1)(c). The court determined

25 that this jurisdictional requirement was satisfied because

26 “while he was present in” New York “both physically and by

27 telephone,” Carvajal “conspired with his accomplices and

28 engaged in overt acts in furtherance of their possession of

29 significant quantities of cocaine and their plan to

30 transport the cocaine to New York.” Carvajal, 6 N.Y.3d at

31 315 (emphasis added). The court denied that this analysis
14

1 amounted to jurisdictional “bootstrapping.” Id. at 316. 

2 Finally, the New York Court of Appeals observed that

3 Carvajal “never alleged any constitutional violation,

4 federal or state, concerning his prosecution by New York.” 

5 Id. The court thus indicated that its decision was grounded

6 solely in an interpretation of the relevant provision of the

7 State’s jurisdictional statute.

8 Judge George Bundy Smith’s forceful dissent argued:

9 [T]he Constitution of the United States, the

10 Constitution of the State of New York and the laws

11 of the State of New York do not permit a person to

12 be found guilty of criminal possession of a

13 controlled substance on a theory of constructive

14 possession rather than actual possession where

15 both the substance and the defendant are in

16 California.

17

18 Carvajal, 6 N.Y.3d at 317 (G.B. Smith, J., dissenting). The

19 dissent also took the position that “[b]ecause territorial

20 jurisdiction goes to the authority of the court to try a

21 defendant for the particular crimes in issue, no

22 preservation is necessary.” Id. at 322.

23 Following the affirmance by the New York Court of

24 Appeals, Carvajal filed pro se a motion to vacate his

25 conviction. See N.Y. Crim. Proc. Law § 440.10; Carvajal,

26 2008 WL 4555531, at *20. The State Supreme Court denied the

27 motion, and the First Department denied leave to appeal. 
15

1 Carvajal, 2008 WL 4555531, at *21. Next, Carvajal filed a

2 timely application pro se for a writ of habeas corpus in the

3 United States District Court for the Southern District of

4 New York. Magistrate Judge Peck issued a report

5 recommending that Carvajal’s application be denied but that

6 a certificate of appealability should issue. Id. at *1. 

7 The magistrate judge proceeded on the basis that the

8 state court had adjudicated Carvajal’s federal

9 constitutional claim on the merits. (In so doing, the

10 magistrate judge overlooked or discounted the statement in

11 the Court of Appeals’ opinion that its decision was grounded

12 solely in state statutory law.) Accordingly, the magistrate

13 judge analyzed the jurisdictional merits, giving deference

14 to the decision of the New York Court of Appeals. Id. at

15 *25; see also Jimenez v. Walker, 458 F.3d 130, 146 (2d Cir.

16 2006). The magistrate judge concluded that the decision of

17 the New York Court of Appeals was not contrary to, or an

18 unreasonable application of, clearly established Supreme

19 Court precedent. Carvajal, 2008 WL 4555531, at *25. The

20 relevant Supreme Court precedent identified by the

21 magistrate judge is Strassheim v. Daily, 221 U.S. 280

22 (1911), which held: “Acts done outside a jurisdiction, but
16

1 intended to produce and producing detrimental effects within

2 it, justify a state in punishing the cause of the harm as if

3 he had been present at the effect, if the state should

4 succeed in getting him within its power.” Id. at 285. The

5 magistrate judge concluded: “whether or not the New York

6 Court of Appeals properly interpreted the state [Criminal

7 Procedure Law’s] long-arm provisions, as a matter of federal

8 constitutional law, [he could not] say that the New York

9 Court of Appeals’ decision was ‘contrary to’ or an

10 ‘unreasonable application’ of Supreme Court precedent.” 

11 Carvajal, 2008 WL 4555531, at *33.

12 The district judge adopted the recommendation of the

13 magistrate judge, observing in a supplemental memorandum

14 that the majority opinion of the New York Court of Appeals

15 “specifically refused to entertain any discussion of federal

16 constitutional law, on the ground that petitioner had failed

17 to raise any federal constitutional challenge to the trial

18 court’s exercise of jurisdiction.” Carvajal v. Artus, No.

19 07 Civ. 10635 (CM) (AJP), 2009 WL 62177, at *2 (S.D.N.Y.

20 Jan. 9, 2009). The district judge recognized that “the New

21 York Court of Appeals’ interpretation of [Criminal Procedure

22 Law section 20.20(1)(c)] is the last word on what that
 This Court appointed counsel to represent Carvajal

5

on appeal. See Appellate Doc. Entry Date Sept. 22, 2009.

17

1 [s]tate statute means.” Id. Still, the court considered

2 that, although this procedural posture would normally bar

3 relief (unless Carvajal could demonstrate cause for his

4 default in state court and resulting prejudice), “[t]he

5 issue is more confusing than usual in this particular case”

6 given the state court’s ruling that jurisdiction cannot be

7 waived. Id. Thus the state court’s assertion that state

8 statutory jurisdiction can never be waived was treated by

9 the district court as a “sub silentio determination of

10 federal constitutional law”--despite the state court’s

11 disclaimer “that it was not considering any such issue.” 

12 Id. at *3 n.1 (internal quotation marks omitted). 

13 Accordingly, the district court issued a certificate of

14 appealability “limited to the issue of whether New York

15 lacked territorial jurisdiction to try petitioner for the

16 three counts of criminal possession of a controlled

17 substance.” Id. at *5. 5

18 DISCUSSION

19

20 I

21

22 We review de novo a district court’s denial of a writ
18

1 of habeas corpus. Cotto v. Herbert, 331 F.3d 217, 229 (2d

2 Cir. 2003). The Antiterrorism and Effective Death Penalty

3 Act of 1996 (“AEDPA”) provides that a state prisoner may 

4 seek habeas corpus relief in federal court “on the ground

5 that he is in custody in violation of the Constitution . . .

6 of the United States.” 28 U.S.C. § 2254(a). However,

7 before a federal court can consider a habeas application

8 brought by a state prisoner, the habeas applicant must

9 exhaust all of his state remedies. Id. § 2254(b)(1)(A). 

10 “[E]xhaustion of state remedies requires that [a] petitioner

11 fairly present federal claims to the state courts in order

12 to give the [s]tate the opportunity to pass upon and correct

13 alleged violations of its prisoners’ federal rights.” 

14 Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)

15 (citing Picard v. Connor, 404 U.S. 270, 275 (1971) (internal

16 quotation marks and alterations omitted)); see also Lurie v.

17 Wittner, 228 F.3d 113, 124 (2d Cir. 2000). The exhaustion

18 requirement is animated by “notions of comity between the

19 federal and [s]tate judicial systems.” Strogov v. Attorney

20 Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999). True, a

21 state prisoner is not required to cite “chapter and verse of

22 the Constitution” in order to satisfy this requirement, Daye
19

1 v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982)

2 (in banc); still, he must present his challenge in terms

3 that are “likely to alert the [state] court[s] to the

4 claim’s federal nature.” Lurie, 228 F.3d at 124 (quoting

5 Daye, 696 F.2d at 192). A petitioner may satisfy the fair

6 presentation requirement by:

7 (a) reliance on pertinent federal cases employing

8 constitutional analysis, (b) reliance on state

9 cases employing constitutional analysis in like

10 fact situations, (c) assertion of the claim in

11 terms so particular as to call to mind a specific

12 right protected by the Constitution, and (d)

13 allegation of a pattern of facts that is well

14 within the mainstream of constitutional

15 litigation.

16

17 Daye, 696 F.2d at 194.

18 If a habeas applicant fails to exhaust state remedies

19 by failing to adequately present his federal claim to the

20 state courts so that the state courts would deem the claim

21 procedurally barred, we “must deem the claim[] procedurally

22 defaulted.” Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir.

23 2001) (noting the “apparent salve” of deeming a claim not

24 presented in state court exhausted is “cold comfort”). Our

25 dismissal of an application for habeas relief on the ground

26 of procedural default amounts to “a disposition of the

27 habeas claim on the merits.” Id. An applicant seeking
20

1 habeas relief may escape dismissal on the merits of a

2 procedurally defaulted claim only by demonstrating “cause

3 for the default and prejudice” or by showing that he is

4 “actually innocent” of the crime for which he was convicted.

5 Id. 

6 II

7 When a habeas applicant fails to exhaust his federal

8 constitutional claim in state court--and there has been no

9 showing of cause and prejudice or actual innocence--this

10 Court will generally be barred from granting habeas relief. 

11 See Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Here,

12 however, Carvajal argues that the prosecution forfeited any

13 defense that would be based on his procedural default by its

14 failure to rely on this ground before the district court.

15 The prosecution acknowledges that it did not rely on a

16 procedural default defense in the district court but urges

17 us nonetheless to consider whether Carvajal failed to raise

18 his jurisdictional challenge in federal constitutional terms

19 in the state courts, and is thus barred from obtaining

20 relief in this Court.

21 Prior to AEDPA, a state was “normally . . . obligated

22 to raise and preserve” the procedural default defense.
21

1 Trest v. Cain, 522 U.S. 87, 89 (1997) (internal quotation

2 marks and alterations omitted). At the same time, it was

3 clear that a federal appellate court was “not obligated to

4 regard the [prosecution’s] omission [of the defense] as an

5 absolute waiver of the claim.” Granberry v. Greer, 481 U.S.

6 129, 133 (1987); see also Washington v. James, 996 F.2d

7 1442, 1448 (2d Cir. 1993). AEDPA expressly provides that

8 the “[s]tate shall not be deemed to have waived the

9 exhaustion requirement or be estopped from reliance upon the

10 requirement unless the [s]tate, through counsel, expressly

11 waives the requirement.” 28 U.S.C. § 2254(b)(3) (emphasis

12 added). Other courts of appeals have been “persuaded that

13 § 2254(b)(3) applies with full force in cases . . . where

14 the procedural bar arises only as a direct result of the

15 petitioner’s failure to exhaust his state law remedies.” 

16 McNair v. Cambell, 416 F.3d 1291, 1305 (11th Cir. 2005); see

17 also Ellis v. Hargett, 302 F.3d 1182, 1189 (10th Cir. 2002);

18 Franklin v. Johnson, 290 F.3d 1223, 1238 (9th Cir. 2002)

19 (O’Scannlain, J., concurring). We are persuaded that when a

20 state’s procedural default argument is predicated on a

21 habeas applicant’s failure to exhaust (as is the case here),

22 we may consider such an argument for the first time on
22

1 appeal unless it was expressly waived in the district court.

2 See Franklin, 290 F.3d at 1238. This is a stringent

3 requirement. Waiver by nature must be knowing and

4 intentional; express waiver would seem to require that these

5 features be made manifest.

6 The prosecution’s brief before the district court seems

7 to make an erroneous concession regarding exhaustion. D.

8 Ct. Doc. No. 10 at 28. But it then goes on to argue--in a

9 section of its brief entitled: “If this Court Were to

10 Overlook the Procedural Bar, Petitioner’s Claims Present No

11 Basis for Habeas Relief”--that Carvajal’s claim does not

12 present a basis for habeas relief because “[a]lleged errors

13 of state substantive law are not reviewable in a federal

14 habeas proceeding.” D. Ct. Doc. No. 10 at 47-48.

15 Pre-AEDPA, we reasoned:

16 [E]ven if the government’s erroneous concession

17 regarding exhaustion can be taken as a concession

18 regarding procedural default, we believe that

19 where such a concession constitutes merely an

20 innocent error, there is no analytical or policy

21 reason to treat it any differently than a failure

22 to raise the defense at all.

23

24 Washington, 996 F.2d at 1448. That analysis applies with

25 incremental force post-AEDPA: circumstances may be

26 considered in deciding whether waiver is sufficiently
23

1 categorical. See Magouirk v. Phillips, 144 F.3d 348, 359

2 (5th Cir. 1998) (stating that the “nature of the state’s

3 alleged ‘waiver’ should be given consideration” in assessing

4 whether “sua sponte reliance upon a procedural default” is

5 appropriate). As other courts have observed, “AEDPA does

6 not explain how a state ‘expressly waives’ the exhaustion

7 requirement, but . . . ‘[w]aiver’ is traditionally defined

8 as an ‘intentional relinquishment or abandonment of a known

9 right.” D’Ambrosio v. Bagley, 527 F.3d 489, 495 (6th Cir.

10 2008). We join the reasoning of at least one other sister

11 court of appeals in requiring a “stringent standard for

12 proving waiver of exhaustion” because such a standard is

13 “squarely in line with the underlying purposes of the

14 exhaustion requirement.” Dreher v. Pinchak, 61 F. App’x

15 800, 803 (3d Cir. 2003) (unpublished opinion). Indeed,

16 “[p]rinciples of comity and federalism bear on the relations

17 between court systems, and those relations will be affected

18 whether or not the litigants have raised the issue

19 themselves.” Washington, 996 F.2d at 1448; see also Acosta

20 v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000).

21 In light of the equivocal wording in the prosecution’s

22 brief before the district court, and recognizing that “AEDPA
 Respondent urges this Court to decline to reach the

6

merits of Carvajal’s federal constitutional claim for a

different reason. The prosecution contends that our review

is barred because the decision of the state court rests on

an adequate and independent state ground. Recognizing that

24

1 disfavors a state waiver of exhaustion,” Lurie, 228 F.3d at

2 123, we decline to read the prosecution’s concession as

3 waiver express within the meaning of 28 U.S.C. § 2254(b)(3). 

4 See id., 228 F.3d at 123 (“Whatever counsel was saying, we

5 do not read it as an ‘express’ waiver of the exhaustion

6 requirement.”); see also Carty v. Thaler, 583 F.3d 244, 256

7 (5th Cir. 2009) (“The touchstone for determining whether a

8 waiver is express is the clarity of the intent to waive.”

9 (internal quotation marks omitted)). True, the prosecution

10 did not press the procedural default defense before the

11 district court; nevertheless, the prosecution is not

12 “estopped from reliance upon the requirement” before this

13 Court. 28 U.S.C. § 2254(b)(3).

14 III

15 The state courts evidently understood Carvajal’s

16 jurisdictional argument as a challenge to the State’s

17 statutory jurisdiction under New York Criminal Procedure Law

18 section 20.20. Applying the Daye factors, we conclude that

19 no federal claim was fairly presented to the state courts.6
the “adequacy [of a state law ground of decision] is itself

a federal question,” Lee v. Kemna, 534 U.S. 362, 375 (2002),

the Supreme Court has “applied the independent and adequate

state ground doctrine . . . in deciding whether federal . .

. courts should address the claims of state prisoners in

habeas corpus actions,” Coleman v. Thompson, 501 U.S. 722,

729 (1991). This doctrine applies when a state prisoner

presents both federal and state claims to the state court

and the state court declines to address the federal claims

because it is possible to rest its decision “on a state law

ground that is independent of the federal question and

adequate to support the judgment.” Id. Under those

circumstances, when the state court “clearly and expressly”

relies on a state law ground in rendering its decision, we

will not grant a writ of habeas corpus. Id. at 735. The

adequate and independent state grounds doctrine, however,

has no application here. The adequate and independent state

law grounds doctrine “assumes that a state court had the

opportunity to address a claim that is later raised in a

federal habeas proceeding. It is simply inapplicable in a

case such as this one, where the claim was never presented

to the state courts.” Teague v. Lane, 489 U.S. 288, 299

(1989). Perhaps not surprisingly, the conflation of an

adequate and independent state law ground of decision and a

procedural default based on a habeas applicant’s failure to

raise a federal issue before the state courts appears to

also have caused confusion in the district court. Carvajal,

2009 WL 62177, at *2.

25

1 Carvajal’s challenge was consistently expressed as an

2 argument that the New York courts erred in construing the

3 pertinent state jurisdictional statutes. He pointed to no

4 federal constitutional provision that might alert the state

5 courts that his claim was federal in nature. Rather, he

6 relied on state court decisions interpreting state statutory

7 law. Carvajal did not invoke “pertinent federal cases
26

1 employing constitutional analysis,” nor did he seek support

2 for his contention from “state cases employing

3 constitutional analysis in like fact situations.” Daye, 696

4 F.2d at 194. Of course, it is hard to fault Carvajal for

5 failing to point to a “like fact situation[].” As the

6 Appellate Division recognized, this was an unusual use of

7 Criminal Procedure Law section 20.20. Carvajal, 786

8 N.Y.S.2d at 454. However, “[i]t is not the province of a

9 federal habeas court to reexamine state-court determinations

10 on state-law questions. [S]tate courts are the ultimate

11 expositors of state law.” Mannix v. Phillips, 619 F.3d 187,

12 199 (2d Cir. 2010) (internal quotation marks and citation

13 omitted); see also Tunick v. Safir, 209 F.3d 67, 76 (2d Cir.

14 2000) (“Th[e] question of the extent to which the state

15 court can go when interpreting its own laws is

16 paradigmatically one of state law[.]” (internal quotation

17 marks omitted)). Even if this Court views the state court’s

18 interpretation of its state statute as unwise, or even as

19 jurisdictional overreaching, this does not entitle Carvajal

20 to habeas relief. See Swarthout v. Cooke, No. 10-333, 562

21 U.S. ---, 2011 WL 197627, at *2 (Jan. 24, 2011) (per

22 curiam).
27

1 The New York Court of Appeals ruled that the question

2 whether New York had jurisdiction to prosecute Carvajal

3 could not be waived. Carvajal, 6 N.Y.3d at 312. We do not

4 understand this conclusion as a ruling on federal law. Read

5 in context, the New York Court of Appeals was evidently

6 opining on a matter of state law; put simply, the New York

7 court ruled--as a matter of state law--that the power of a

8 state court to act is not an issue that can be waived even

9 if a defendant waives the right to require the prosecution

10 to prove the jurisdictional element to a jury beyond a

11 reasonable doubt. Id. at 311-12. It is within the province

12 of the New York Court of Appeals to construe the

13 jurisdictional statute passed by the New York State

14 legislature. See People v. Kassebaum, 95 N.Y.2d 611, 617-18

15 (2001). The New York Court of Appeals has made plain that

16 it understands the statutory jurisdictional provision to

17 have “supplanted” the “common-law territorial principle” and

18 to have “broaden[ed] the territorial scope of criminal

19 jurisdiction.” Id. at 617; see also People v. Stokes, 88

20 N.Y.2d 618, 624 (1996) (stating “[t]he starting point for

21 the [s]tate’s jurisdiction in criminal cases is of course

22 the territorial principle derived from the common law,” but
 There is very little state case law interpreting New 7

York Criminal Procedure Law section 20.20(1)(c). Prior to

the New York Court of Appeals’ decision in this case, at

least one state trial court declined to give an expansive

reading to the jurisdictional provision:

The People would read [New York Criminal Procedure

Law section 20.20(1)(c)] as subjecting substantive

crimes committed out of state to New York

prosecution merely because they allegedly occurred

in furtherance of a New York conspiracy. The

court does not agree.

People v. Puig, 378 N.Y.S.2d 925, 932 (Sup. Ct. N.Y. Co.

1976). The New York Court of Appeals, however, read section

20.20(1)(c) in precisely the manner the state trial court in

Puig eschewed: “Plainly, jurisdiction over an offense

exists based on a conspiracy occurring in New York to commit

that offense.” Carvajal, 6 N.Y.3d at 313.

28

1 that “[t]his principle has been supplanted by [s]tate

2 statutes broadening the territorial principle of criminal

3 jurisdiction”). Whether we agree with New York’s

4 interpretation and application of its state jurisdictional

5 statute is neither here nor there; our disagreement would 7

6 not in any event entitle Carvajal to relief.

7 The Supreme Court “doubt[s] that a defendant’s citation

8 to a state-court decision predicated solely on state law

9 ordinarily will be sufficient to fairly apprise a reviewing

10 court of a potential federal claim.” Anderson v. Harless,

11 459 U.S. 4, 7 n.3 (1982) (per curiam). In light of that

12 guidance, in recognition of “our dual judicial system,” and
 The question of whether Carvajal’s counsel was 8

ineffective in failing to hold the prosecution to its burden

of proving jurisdiction beyond a reasonable doubt is not

before us.

 “[W]here a constitutional violation has probably

9

resulted in the conviction of one who is actually innocent,

a federal habeas court may grant the writ even in the

absence of a showing of cause for the procedural default.” 

Smith v. Murray, 477 U.S. 527, 537 (1986) (internal

quotation marks omitted and emphasis added). Actual

innocence means “factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623

29

1 out of “concern for harmonious relations between the two

2 adjudicatory institutions,” we cannot find that Carvajal

3 properly presented his federal claim to the state courts in

4 a manner that would allow this Court to grant relief. Daye,

5 696 F.2d at 191; see also DiSimone v. Phillips, 461 F.3d

6 181, 190 (2d Cir. 2006); Galdamez v. Keane, 394 F.3d 68, 72-

7 73 (2d Cir. 2005).

8 IV

9 The failure of Carvajal’s counsel to press his

10 jurisdictional objection in federal constitutional terms

11 “does not constitute cause for a procedural default.”8

12 Murray v. Carrier, 477 U.S. 478, 486 (1986). And, Carvajal

13 has not argued that he is “actually innocent” (meaning

14 factually innocent) of the crime for which he was

15 convicted. Bousley v. United States, 523 U.S. 614, 622, 9
(1998). Any assertion by Carvajal that he was “actually

innocent” would necessarily be limited to the idea that he

was innocent of drug possession in New York: If he had been

prosecuted for drug possession in California, there is

little doubt he could properly have been convicted.

The Supreme Court has provided no guidance on whether a

meritorious claim that the state court lacked jurisdiction

to prosecute would constitute a claim of “actual innocence”

for purposes of seeking habeas relief. If Judge Bundy Smith

is right that “no New York court could [have] acquired

jurisdiction over the three counts of criminal possession

because no such crime occurred in New York,” Carvajal, 6

N.Y.3d at 328 (G.B. Smith, J., dissenting), Carvajal’s

jurisdictional claim might be a sufficient basis from which

he could have argued that he is “actually innocent” and

entitled to habeas relief. It may be that conviction in New

York for conduct that is not a crime against that sovereign

would fall within the “narrow scope” of the “miscarriage of

justice exception” as defined by the Supreme Court.

Calderon v. Thompson, 523 U.S. 538, 559 (1998). But,

because Carvajal does not press an “actual innocence”

argument before this Court, we decline to resolve these open

and vexing questions and instead rest our decision on the

grounds presented to us.

30

1 623 (1998). Accordingly, we must dismiss Carvajal’s

2 application for habeas relief. Aparicio, 269 F.3d at 89-90.

3 V

4 Carvajal’s appeal relies heavily on the dissenting

5 opinion of Judge Bundy Smith, which took the view that New

6 York law permits criminal prosecution for a drug possession

7 offense only when the criminal conduct--or some consequence

8 of the conduct--occurred within the state. Carvajal, 6

9 N.Y.3d at 322-30 (G.B. Smith, J., dissenting). This
31

1 argument has substantial appeal. Indeed, Carvajal’s

2 conviction in New York for a crime committed wholly in

3 another state seems anomalous to us, as it did to Judge

4 Bundy Smith. However, we have no occasion to decide whether

5 there was error in the state court’s statutory

6 interpretation because “[i]t is well established that a

7 federal habeas court does not sit to correct a

8 misapplication of state law, unless such misapplication

9 violates the Constitution, laws, or treaties of the United

10 States.” Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir.

11 2002). “[I]t is only noncompliance with federal law that

12 renders a [s]tate’s criminal judgment susceptible to

13 collateral attack in the federal courts.” Wilson v.

14 Corcoran, 131 S. Ct. 13, 2010 WL 4394137, at *2 (Nov. 8,

15 2010) (per curiam). 

16 Judge Bundy Smith’s dissent is in major part directed

17 to New York law. It does appear that the Court of Appeals’

18 ruling in this case may have been a pivot. Compare

19 McLaughlin, 80 N.Y.2d at 471 (providing “[t]he general rule

20 in New York is that, for the [s]tate to have criminal

21 jurisdiction, either the alleged conduct or some consequence

22 of it must have occurred within the [s]tate” (emphasis
32

1 added)), and Kassebaum, 95 N.Y.2d at 619 (characterizing the

2 jurisdictional inquiry as “whether the People established

3 that defendant and his accomplices engaged in conduct within

4 New York sufficient to establish an element of attempted

5 criminal possession of a controlled substance”), with

6 Carvajal, 6 N.Y.3d at 313 (finding jurisdiction over

7 possession offense because “there was evidence of

8 defendant’s conduct in New York sufficient to establish his

9 conspiracy to commit first degree criminal possession of a

10 controlled substance” (emphasis added)). 

11 In 1925, then-Judge Cardozo concluded that when a plan

12 to commit larceny was hatched in New York, but the

13 “execution was in other lands,” New York lacked jurisdiction

14 to prosecute a participant in that conspiracy for larceny

15 committed abroad. People v. Werblow, 241 N.Y. 55, 58-61

16 (1925). At the same time, Werblow made it clear that the

17 court’s construction of the statute was not a “consequence

18 of some inherent limitation upon the power of the

19 Legislature.” Id. As a matter of state statutory

20 interpretation, the Werblow Court concluded that the

21 jurisdictional statute was not intended to provide for “an
 One commentator has observed that New York “could 10

not validly make it a crime for its citizens to ‘play the

slot machines’ in Las Vegas, Nevada, where this is lawful. 

Such a statute would violate the full faith and credit

clause.” Rollin M. Perkins, The Territorial Principle in

Criminal Law, 22 Hastings L.J. 1155, 1164 (1970-71); see

also U.S. Const. art. IV, § 1. We are not, however, faced

with such a case.

33

1 extension of jurisdiction until now unknown to our law.”10

2 Id. But even if the decision of the New York Court of

3 Appeals were deemed contrary to, or an unreasonable

4 application of, prior state precedent, this would not aid

5 Carvajal’s position before this Court. “[W]e do not defer

6 to [the New York Court of Appeals’] interpretation of

7 federal law, but we are bound by its construction of New

8 York law.” Portalatin v. Graham, 624 F.3d 69, 84 (2d Cir.

9 2010) (in banc).

10 Judge Bundy Smith’s dissent also states that Carvajal’s

11 conviction for criminal possession of a controlled substance

12 was obtained in violation of the federal Constitution. It

13 argues that New York’s exercise of jurisdiction over the

14 possession counts was a violation of Article III, § 2 and

15 the Sixth Amendment. Carvajal, 6 N.Y.3d at 321-22 (G.B.

16 Smith, J., dissenting). However, the Supreme Court has made

17 it clear that Article III and the Sixth Amendment are
34

1 understood as venue provisions. United States v. Cabrales,

2 524 U.S. 1, 6 (1998); Williams v. Florida, 399 U.S. 78, 93

3 n.35 (1970). Venue, unlike jurisdiction proper, is subject

4 to waiver. See, e.g., United States v. Calderon, 243 F.3d

5 587, 590 (2d Cir. 2001); People v. Moore, 46 N.Y.2d 1, 10

6 (1978). Moreover, it appears that “the Supreme Court has

7 not decided whether the Sixth Amendment’s vicinage clause

8 applies to the states.” Stevenson v. Lewis, 384 F.3d 1069,

9 1072 (9th Cir. 2004); see also People v. Goldswer, 39 N.Y.2d

10 656, 662 (1976) (stating “[i]n Federal prosecutions

11 undoubtedly ‘district’ means the Federal judicial districts

12 established by Congress” but, “[i]t is not entirely clear

13 what this means in [s]tate prosecutions, or whether in fact

14 it imposes any obligations on the [s]tate to create or

15 designate subdivisions limiting venue and vicinage within

16 the [s]tate.”). One thing is clear: Carvajal never

17 challenged his prosecution for criminal possession of a

18 controlled substance on the ground that it was in violation

19 of his federal constitutional right to proper venue.

20 On appeal, Carvajal also invokes Strassheim (identified

21 by the magistrate judge as the relevant Supreme Court

22 precedent), which holds that a state may punish “[a]cts done
35

1 outside a jurisdiction, but intended to produce and

2 producing detrimental effects within it.” 221 U.S. at 285

3 (emphasis added). But it is not evident that this passage

4 from Strassheim is prescriptive, and that actual effects are

5 required to support jurisdiction. So even if Carvajal had

6 relied on Strassheim before the state courts--which he did

7 not--we are not convinced that he would be entitled to

8 relief from this Court. As the Supreme Court of California

9 has observed, “the constitutional limits of state courts’

10 extraterritorial jurisdiction in criminal matters have not

11 been precisely delineated, [but] it is clear that states may

12 extend their jurisdiction beyond the narrow limits imposed

13 by the common law.” People v. Betts, 103 P.3d 883, 887

14 (Cal. 2005), cert. denied, 545 U.S. 1133 (2005). In fact,

15 New York has upheld the exercise of extraterritorial

16 jurisdiction in scenarios that do not fall within the

17 Strassheim test, and no one has suggested that doing so was

18 a violation of the federal Constitution. For example, New

19 York recognizes a theory of “protective” jurisdiction,

20 pursuant to which “the jurisdiction of the [s]tate, or one

21 of its counties, may be exercised over conduct outside its

22 geographical borders where such conduct was intended to have
 Other states have done likewise. See, e.g., Betts,

11

103 P.3d at 887 (upholding jurisdiction over crime committed

in another state when intent to commit crime formed in

prosecuting state); see also Connecticut v. Cardwell, 718

A.2d 954, 963 (Conn. 1998) (observing “that the legislature

has the authority to enact criminal statutes that have an

extraterritorial effect”); but cf. State v. Dudley, 614

S.E.2d 623, 626 (S.C. 2005); People v. Blume, 505 N.W.2d

843, 844 (Mich. 1993) (holding “Michigan may exercise

extraterritorial jurisdiction over acts committed outside

Michigan when the acts are intended to and do have a

detrimental effect within the state.” (emphasis added)).

36

1 a deleterious effect within its territory.” People v. 11

2 Fea, 47 N.Y.2d 70, 76 (1979).

3 Ultimately, even if Carvajal had fairly presented to

4 the state courts a federal constitutional challenge to New

5 York’s exercise of jurisdiction, and the state courts had

6 rejected that claim on its merits, it is not clear that we

7 would be empowered to grant relief. See Miller-El v.

8 Cockrell, 537 U.S. 322, 326 (2003) (stating “AEDPA

9 constrains a federal court’s power to disturb state-court

10 convictions”). We cannot grant relief “with respect to any

11 claim that was adjudicated on the merits in [s]tate court

12 proceedings” unless the adjudication of that claim “resulted

13 in a decision that was contrary to, or involved an

14 unreasonable application of, clearly established Federal

15 law, as determined by the Supreme Court of the United
 On the other hand, if Carvajal had fairly presented 12

his federal constitutional claim to the state courts but

those courts had not adjudicated his contention on its

merits, we would review his jurisdictional challenge de

novo. See Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007).

Under those circumstances, we might agree with Judge Bundy

Smith that New York’s exercise of jurisdiction was in

violation of the Constitution.

 The New York Court of Appeals did not cite

13

Strassheim or any territorial jurisdictional principle

grounded in the federal Constitution; it would be improper

therefore to rule that the state court “identifie[d] the

correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applie[d] that principle.” 

Williams v. Taylor, 529 U.S. 362, 413 (2000).

37

1 States.” 28 U.S.C. § 2254(d)(1).

12

2 The Supreme Court has not had occasion to say how far a

3 state may go in expanding its criminal jurisdiction. We

4 therefore cannot say that the state court’s interpretation

5 of New York Criminal Procedure Law section 20.20, however

6 surprising, was in conflict with “governing law set forth”

7 by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 13

8 405 (2000).

9 CONCLUSION

10 We conclude that Carvajal failed to present his

11 jurisdictional objection to the state courts in federal

12 constitutional terms and that he cannot escape the

13 consequences of his failure to exhaust that claim and the
38

1 resulting procedural default. Any disagreement this Court

2 may have with the state high court’s interpretation of its

3 state jurisdictional statute does not provide grounds for

4 habeas relief. Accordingly, Carvajal’s application for a

5 writ of habeas corpus is DISMISSED.