Opinion
No. 99 Civ. 9726 (RWS).
November 30, 2000.
Domingo Abreu, Sullivan Correctional Facility, Fallsburg, NY, Petitioner Pro Se.
HONORABLE ROBERT M. MORGENTHAU, District Attorney of New York County, New York, NY, Attorney for Respondent, By: SUSAN AXELROD, ESQ., Assistant District Attorney, Of Counsel.
OPINION
Petitioner Domingo Abreu ("Petitioner" or "Abreu") has petitioned for a writ of habeas corpus challenging his state court conviction and sentence for second-degree murder and criminal possession of a weapon, pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition will be denied.
Parties
Abreu is a prisoner in the custody of the New York Correctional Services at the Sullivan Correctional Facility in Fallsburg, New York.
Respondent Robert Kuhlmann ("Respondent") is the Superintendent of the Sullivan Correctional Facility.
Background
On March 28, 1990, a New York County jury convicted Abreu of second-degree murder and second-degree possession of a weapon. Abreu was sentenced to concurrent terms of 21 years to life on the murder charge and from five to fifteen years for the weapons charge.
Represented by Raymond Aab, the private attorney who represented him at trial, Abreu appealed to the Appellate Division on or about November 1, 1996. The appeal alleged that Abreu had been deprived of a fair trial because the court had: (1) improperly admitted an unauthenticated document as evidence of Abreu's narcotics dealing on rebuttal; (2) precluded a defense investigator from testifying about a prosecution witness's prior inconsistent statement; (3) limited his introduction of evidence about the victim's prior bad acts; (4) allowed the prosecution to impeach a defense witness with extrinsic evidence of a collateral matter; (5) sentenced him too harshly, and (6) allowed mistranslations by the court interpreter and failed to allow him to be present when those translations were discussed with a juror. The People filed a response brief on August 5, 1997.
On or about January 15, 1998, Abreu filed a reply brief, which raised two claims that were not raised in the initial appeal: 1) that the court's failure to discharge the court interpreter denied his constitutional right to be present at trial, and 2) that the prosecutor impermissibly vouched for a government witness. The people filed a motion to strike the additional claims on January 21, 1998, and Abreu filed an affirmation in opposition on January 26, 1998.
In a terse opinion, the Appellate Division unanimously affirmed Abreu's conviction on March 3, 1998 on the grounds that the trial court's evidentiary rulings had been proper, and that the remaining claims raised had not been preserved for appellate review. People v. Abreu, 248 A.D.2d 124, 669 N.Y.S.2d 560 (N Y A.D. 1998). The Appellate Division also found that the two claims raised for the first time in Abreu's reply brief were not properly before the court, and further held that, in any case, the claims were without merit. Id., 248 A.D.2d at 125.
By letter of March 27, 1998, Abreu sought leave to appeal to the New York Court of Appeals, raising the same grounds alleged in his initial brief on appeal to the Appellate Division, but not raising the two claims first alleged in his reply brief to the Appellate Division. The Court of Appeals denied the application on August 26, 1998.
On or about October 29, 1998, Abreu, acting pro se, filed a petition for a writ of error coram nobis with the Appellate Division. In this submission, Abreu alleged that he had been denied effective assistance of counsel due to both (1) counsel's failure to object contemporaneously to various errors at trial and (2) the fact that, of the six claims raised by counsel on direct appeal, three had not been properly preserved for appellate review, and four had been summarily rejected by the Appellate Division. The People filed a response and Abreu replied. The Appellate Division denied Abreu's petition by order of May 11, 1999.
All of the papers relevant to the procedural history of this case have been submitted as exhibits in an Appendix to Respondent's answer and will be cited as follows: Abreu's brief on direct appeal to the Appellate Division (Ex. A); People's response (Ex. B); Abreu's reply (Ex. C); People's motion to strike Abreu's reply (Ex. D); Abreu's response to People's motion to strike (Ex. E); March 3, 1998 order of the Appellate Division affirming Abreu's conviction (Ex. F); Abreu's petition for leave to appeal to the Court of Appeals (Ex. G); August 26, 1998 order denying leave to appeal (Ex. H); Abreu's petition to the Appellate Division for writ of error coram nobis (Ex. I) (collectively included in Volume I of the Appendix to Respondent's answer); People's response to Abreu's coram nobis petition (Ex. J); Abreu's response (Ex. K); May 11, 1999 order denying the coram nobis petition (Ex. L); Appendix included with Abreu's coram nobis petition (Ex. M) (collectively included in Volume II of the Appendix to Respondent's answer).
Still acting pro se, Abreu filed the instant petition for a writ of habeas corpus on August 30, 1999. This petition essentially raises seven grounds for relief: (1) failing to discharge the court interpreter despite faulty translation in violation of Abreu's constitutional right to be present at trial; (2) admitting an allegedly unauthenticated, irrelevant, prejudicial hearsay document recording a drug transaction; (3) failing to allow Abreu to call an investigator to impeach a prosecution eyewitness with his prior inconsistent statement; (4) excluding evidence of the victim's prior bad acts; (5) allowing the prosecution to impeach a defense witness with evidence of a collateral matter; (6) imposing an unduly harsh sentence; and (7) ineffective assistance of counsel. The Respondent filed an answer on September 18, 2000 requesting summary dismissal of the petition, whereupon the motion was deemed fully submitted. Discussion
I. Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254A. Standard for Reviewing State Court Judgments
It should be noted that the complete trial transcript has not been submitted in this action. The respondent faults Abreu for failing to meet his burden in this regard pursuant to 28 U.S.C. § 2254 (f). (Resp. Ans. at 5 ¶ 12.) However, as the claims raised here are the same as those raised below, the citations to the record in all of the previously submitted briefs by both parties are sufficient. Although, as the Respondent notes, Abreu has not "asserted or demonstrated that he is unable" to produce the record, it would be unjust to hold Abreu, who is currently in custody, to this standard, particularly where Respondent concedes that the District Attorney's office itself "has been unable to obtain a copy of the entire trial record" (Id.)
Section § 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a federal remedy for state prisoners if their continued custody is in violation of federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254 (a); see Chandler v. Florida, 449 U.S. 560, 571 (1981) ("This Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution."). Errors of state law are not cognizable on federal habeas review.Estelle v. McGuire, 502 U.S. 62. 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Petitioners bear the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Federal habeas courts must presume state courts' factual findings to be correct, 28 U.S.C. § 2254 (e)(1), and may not grant relief unless they find that the state court's adjudication of the merits of the claims either:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d)(1), (2); see Williams v. Taylor, — U.S. —, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000).
B. Exhaustion Requirement
In addition, before a federal court may address the merits of a § 2254 claim, state prisoners must "exhaust" their claims by pursuing them in the state court system until no further avenue of relief is available there. 28 U.S.C. § 2254 (b), (c);see Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (reaffirming that a state prisoner must exhaust state remedies before a writ of habeas corpus may be granted by a federal court); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L. Ed.2d 379 (1982).
The exhaustion requirement gives states the first opportunity to pass upon convictions rendered in their courts based upon the principle of "comity," or respect for states. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Duckworth v. Serrano, 454 U.S. 1 (1981); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994).
In order to exhaust claims, petitioners must "fairly present" their constitutional claims to the highest state court. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L. Ed.2d 438 (1971); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). A petitioner may "fairly present" his federal constitutional claim by, for example, "mak[ing] an explicit constitutional argument," by "relying on federal and state cases that employ a constitutional analysis," by "asserting the claim in terms that `call to mind a specific right protected by the Constitution,'" or by "alleging facts that fall `well within the mainstream of constitutional litigation.'" Levine, 44 F.3d at 124 (quoting Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984)); see N.Y. Court of Appeals Rule 500.10(a) (McKinney 1999) (requiring that criminal leave applications "identify the issues on which the application is based.").
C. Adequate and Independent State Grounds
Federal habeas relief is barred where the state court judgment rested on "adequate and independent state grounds." See Coleman v. Thompson, 501 U.S. 722, 726 (1991); Harris v. Reed, 489 U.S. 255, 261-62 (1989); Wedra v. Lefevre, 988 F.2d 334, 338-39 (2d Cir. 1993). Thus, habeas courts may not address the merits of federal constitutional claims if state court judgments include a "plain statement" that "clearly and expressly" states that the "judgment rests on a state-law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision," even if the state court judgment also considers federal law. Harris, 489 U.S. at 260 (citations and internal quotations omitted); see Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ("As to the role of adequate and independent state grounds, it is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts"); Epps v. Commissioner of Correctional Servs., 13 F.3d 615, 617 (2d Cir.) (no federal habeas review of decisions based on independent and adequate state grounds "[b]ecause of comity and federalism concerns and the requirement that States have the first opportunity to correct their own mistakes"), cert. denied, 511 U.S. 1023, 114 S.Ct. 1409, 128 L.Ed.2d 81 (1994).
D. Procedural Defaults
Procedural rules regarding how and when claims must be raised are the sort of grounds that adequately and independently support state court judgments and bar federal habeas review, as long as the rules are "strictly and regularly followed." See Sykes, 433 U.S. at 81; Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir. 1991).
New York's "procedural default" rules foreclose state court relief in cases where a petitioner failed either to follow the "contemporaneous objection rule" by objecting to error at trial, N.Y. Crim. Proc. L. § 470.05(2), or to raise an issue on direct or collateral review, N.Y. Crim. Proc. L. §§ 440.10 (2)(c), 440.10(3)(a), (c) (McKinney 1999), see Taylor v. Harris, 640 F.2d 1, (2d Cir. 1991).
This section provides that "[f]or purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error." N.Y. Crim. Proc. L. § 470.05(2) (McKinney 1999).
This section provides that "the court must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him . . . ." N.Y. Crim. Proc. L. § 4410.10(2)(c) (McKinney 1999).
These provisions provide, "the court may deny a motion to vacate a judgment when . . . (a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal . . . or (c) Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." N.Y. Crim: Proc. L. § 440.10(3)(a), (c) (McKinney 1999).
Although no state court has passed upon such claims, they are technically exhausted for the purpose of federal habeas petitions because no state review is available. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Yet procedural defaults also bar federal habeas courts from addressing the merits of the defaulted claims. See Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 2080 (1996); Coleman v. Thompson, 501 U.S. at 731-32, 735 n. 1, 111 S.Ct. at 2554-55, 2557 n. 1; Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000);Taylor v. Harris, 640 F.2d 1 (2d Cir. 1981) (holding that petitioner's failure to object to instruction at trial or to raise issue on appeal amounted to a procedural default under § 470.05 that precluded federal habeas relief), cert. denied, 101 S.Ct. 3089, 452 U.S. 942, 69 L.Ed.2d 958.
Like the exhaustion doctrine, the rule barring federal habeas courts from addressing the merits of procedurally defaulted claims arises out of comity and finality for state court judgments. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L. Ed.2d 517 (1991) ("[T]he doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments").
Where a defendant has procedurally defaulted claims by failing to raise them on direct review, the claims may be raised on habeas only if the defendant can first demonstrate either "cause" and actual "prejudice," Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2643-2644, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977) or that there is a "fundamental miscarriage of justice,"see Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993), which is generally shown only by proving that he is "actually innocent," Murray, 477 U.S. at 496, 106 S.Ct., at 2649-2650;Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667-68, 91 L.Ed.2d 434 (1986). See Spence, 219 F.3d at 170; Strogov v. Attorney General of the State of New York, 191 F.3d 188, 193 (2d Cir. 1999).
II. Analysis of the Claims Raised A. Evidentiary Claims
The grounds for the state court's judgment in Claims 2, 3, 4, and 5 of Abreu's habeas petition were essentially evidentiary in nature. As a general rule, state evidentiary rulings do not implicate federal law and are therefore not reviewable by federal courts. See Ayala v. Leonardo, 20 F.3d 83, 91 (2d Cir. 1994). A habeas court may review a state court's allegedly erroneous evidentiary ruling only if it was so egregious that it rendered the petitioner's trial fundamentally unfair in violation of due process. See Chambers v. Mississipi, 410 U.S. 284, 302-03, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000 (1983). An erroneous evidentiary ruling renders a trial fundamentally unfair only if the ruling was "material," in essence if in light of the evidence as a whole, a contrary ruling would have left reasonable doubt as to the guilt of the accused. See Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992); Taylor, 708 F.2d at 891. In order to prevail on such a claim, a petitioner must show a reasonable probability that the admission of the evidence affected the outcome of the trial. Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985).
1. Claim 2: the "Drug record"
Claim 2 of Abreu's petition challenges the trial court's admission during rebuttal of a handwritten document found on him just after the shooting. Abreu had admitted that he was in possession of the document at the time of the shooting, but denied having written it. Once the document was admitted on rebuttal, a police detective testified that the document was a record of a drug transaction. At trial, Abreu objected to the introduction of this evidence on the grounds that the document was evidence of an irrelevant collateral uncharged crime. The trial court admitted the document, finding that "[i]t seems . . . that there is a very definite issue in this case as to whether petitioner was involved in narcotics sales, because if he were, that would provide a motive for the crimes." (Tr. 1046, as cited in Ex. A at 7.).
On appeal, Abreu repeated the relevance objection and also raised several new grounds, arguing that the admission of the document violated his right to a fair trial because the document was (1) inadmissible evidence of uncharged crimes; (2) unduly prejudicial; (3) inadmissible hearsay that was not within the business records exception and lacked a proper foundation or authentication; and (4) the prosecution had not proved chain of custody. (Resp. Ex. A at 7-19.) In this action, Abreu again raises the same grounds proposed to the Appellate Division.
Respondent claims that habeas relief is impossible on this claim for four reasons: (1) it has been procedurally defaulted because the grounds for the appeal were not raised at trial; (2) as an essentially evidentiary ruling, the holding rested on an adequate and independent state procedural ground; (3) the ruling was not in violation of or an unreasonable application of clearly established Supreme Court precedent; and, in any case, (4) the result of the trial would not have been different but for the introduction of the document.
a. Procedural Default
New York law provides that "in order to preserve a claim for appeal, a defendant must raise the same specific ground for that complaint at the trial that he then raises on appeal." Davis v. Senkowski, 1998 WL 812653, *3 (E.D.N.Y. Aug. 6, 1998). See People v. Santos, 86 N.Y.2d 869, 658 N.E.2d 1041, 635 N.Y.S.2d 168 (N Y App. Ct. 1995) (holding that same ground as specific trial objection must be raised in order to preserve sufficiency of evidence issue on appeal); People v. Qualls, 55 N.Y.2d 733, 431 N.E.2d 634, 447 N.Y.S.2d 149 (N.Y.App.Ct. 1981) (holding that evidentiary objection was not preserved when appellant advanced different grounds on appeal than he had raised at trial); People v. Liccione, 50 N.Y.2d 850, 430 N.Y.S.2d 36 (1980). A claim raised for the first time on habeas is procedurally defaulted and may not be addressed on the merits absent a showing of cause and prejudice for the default. See Coleman, 501 U.S. at 731-32, 735 n. 1; Taylor, 640 F.2d at 1.
Here, the only ground Abreu raised both at trial and on appeal was the "collateral matter" relevance claim. The Appellate Division held that "[u]ncharged crimes evidence was properly received to rebut aspects of the defense raised by defendant (seePeople v. Alvino, 71 N.Y.2d 233 [sic])." (Ex. F at 67 (second page of opinion)). Alvino held that evidence of prior uncharged crimes may be admitted on rebuttal to prove intent when proof of the charged act falls short of demonstrating that the defendant acted with a particular state of mind and where proof of a prior act is relevant to that issue. 71 N.Y.2d at 248. As the "uncharged crime" theory was addressed below, it has been preserved for habeas review.
However, as none of the other grounds Abreu raises here were brought to the attention of the Appellate Division either on direct appeal or upon petition for writ of coram nobis, those grounds have been procedurally defaulted. See Qualls, 55 N.Y.2d 733. Abreu does not present evidence of either cause or prejudice for this default. And, even liberally construing his ineffective assistance of counsel claim as an argument for "cause" for the default, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam); Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995), trial counsel's performance did not fall below an objective standard of reasonableness, see Strickland v. Washington, 466 U.S. 668 (1984), as discussed below.
b. The State Court's Judgment with Respect to Claim 2 Rested on Independent State Grounds
The Appellate Division relied solely on state law in rendering its decision on the admission of the drug record. And the only case it cited in support of its holding, Alvino , also relied on exclusively state cases. 71 N.Y.2d 233. Although the Appellate Division did not "expressly state" that it was relying on state law grounds, nowhere in the Appellate Division's decision or in Alvino were any federal grounds addressed in any manner. Thus, the state court relied on independent state law grounds to support the judgment and independent of federal law, and this Court is prohibited from reviewing those findings in a § 2254 action.
c. The State Court Ruling Did Not Violate Due Process
The admission of the purported drug record would not have created reasonable doubt given Abreu's trial claim of self-defense. In light of the fact that Abreu conceded that he shot the victim, whether or not Abreu was involved in the sale of drugs weighed no more against than toward a finding that the murder was justified. The prosecution's case rested primarily on eyewitness testimony regarding the sequence of events leading up to the shooting. This evidence would have been much more meaningful in assessing Abreu's defense than the allegation that he was involved with drugs, which the trial court held (and the Appellate Division confirmed) was probative only of motive. Thus, the evidence was not material, and so its admission did not cause a federal due process violation cognizable on habeas review. Therefore, because admission of the evidence did not render the trial fundamentally unfair as a matter of federal constitutional law, the state law grounds relied upon were adequate to support the judgment.
Because the state court judgment regarding the admission of the document rested on adequate and independent state evidentiary grounds and did not deprive Abreu of a fair trial, this Court is prohibited from assessing the merits of that claim. Claim 2 is therefore dismissed.
2. Claim 3: Failure to Allow Defense Testimony to Impeach Eyewitness with a Prior Inconsistent Statement
Next, Abreu challenges the trial court's ruling that precluded a defense investigator from giving impeachment testimony about a prosecution witness's prior inconsistent statement.
An eyewitness to the shooting, Samuel Felder, testified at trial that, while stopped at a red light, he had seen Abreu and the victim talking. He had looked away briefly to see if the light had changed when he heard a shot and looked back to see Abreu holding a gun and the victim with a gunshot wound to the chest. (Felder Tr. 52, 81-82.).
On cross-examination, defense counsel asked Felder if he had told a defense investigator that he had looked away, heard a shot and then saw the victim fall back while Abreu walked up the street. Felder responded that he did not "really recall that." (Felder Tr. at 81-82.) He went on to state that "I was looking at them when the shot was fired, but I had looked at the light and the shot directed my attention right back to them." (Tr. 8, as cited in Pet'r. Br. at 8.).
Defense counsel provided a transcript of the investigator's interview with Felder and sought to call the investigator to testify as to the claimed inconsistency. Holding that the transcript was not inconsistent with Felder's trial testimony, the trial court precluded the investigator from testifying.
In his direct appeal brief, Abreu raised no federal constitutional grounds for the challenge on this point, and the Appellate Division relied solely on state law, People v. Duncan, 46 N.Y.2d 74, 80 (N.Y.App.Ct. 1978), cert. denied, Duncan v. New York, 442 U.S. 910 (1978), as the basis for its holding. The Appellate Division affirmed, finding that the trial court acted within its discretion in excluding the investigator's testimony, and that, in any case, Abreu's defense was not prejudiced. (Ex. F at 66 ¶ 2).
As stated above, even if it had been error to exclude this testimony under state law (a question federal habeas courts may not to address), not all erroneous evidentiary rulings rise to the level of constitutional error sufficient to warrant the issuance of a writ of habeas corpus. See Taylor, 708 F.2d at 891. Constitutional error occurs only in the rare case when the trial court excludes material evidence that would have created a reasonable doubt that did not otherwise exist. Id. (citing United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342 (1976)). Moreover, the Confrontation Clause generally guarantees only "an opportunity for effective cross-examination,"Delaware v. Fensterer, 474 U.S. at 20, 106 S.Ct. at 294. It does not guarantee "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. at 20, 106 S.Ct. at 294.
As the prior statement was only ambiguous, rather than inconsistent, and because defense counsel was able to question the witness about the prior statement, the trial judge's decision not to allow the introduction of the prior statement as impeachment did not rise to the level of constitutional error in violation of clearly established Supreme Court precedent. See, e.g., Cruz v. Scully, 716 F. Supp. 766, 770 (S.D.N.Y. 1989) ("Exclusion of a prior inconsistent statement does not deny a defendant his right to confront a witness where there were other means available to impeach the witness.").
Claim 3 will be dismissed.
3. Claim 4: Failure to Allow Evidence of Victim's Prior Bad Acts
Trial courts have the discretion to admit or disallow evidence of a victim's prior bad acts when a criminal defendant claims a defense of justification. See In re S. (Anonymous), 52 N.Y.2d 1046, 1048, 438 N.Y.S.2d 309 (1981); People v. Miller, 39 N.Y.2d 543, 551, 348 N.Y.S.2d 741 (1976). Such evidence may be admitted unless "the emphasis on the particular acts of the victim as tending to show a general propensity for violence" is merely an attempt to expand inferences drawn from previous instances of behavior into proof of the actual conduct of the defendant in the circumstances of the particular crime." In re S., 52 N.Y.2d at 1047. In this case, evidence of Flores's violent past would have served just that improper purpose, so failure to admit this evidence does not rise to the level of a federal constitutional error. Because the trial court acted within its discretion in disallowing this evidence, because the ruling did not violate clearly established Supreme Court precedent, and because Abreu has not shown that introduction of this evidence would have changed the outcome of the trial, see Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985), Claim 4 will be dismissed.
4. Claim 5: Prosecution's Impeaching a Defense Witness with Evidence of a Collateral Matter
Angel Vega ("Vega") testified that he was on his way home from work when he saw the altercation between Abreu and the victim. The prosecution impeached Vega with evidence that he never went to work that day. Because Abreu failed to preserve his claim for review on direct appeal see 248 A.D.2d at 124, 669 N.Y.S.2d at 500, this claim has been procedurally defaulted.
Moreover, this evidence went to the heart of the witness's credibility regarding his ability to observe the events in question, because a reasonable jury hearing that the witness had not gone to work as he testified could reasonably conclude that he had not been in the location at issue when he claimed to have been there. The impeachment was not on a collateral matter, the trial court committed no federal constitutional error in allowing it. Finally, even if it had been collateral, its admission would have been an evidentiary error under state law, see People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262) (barring admission of extrinsic evidence to impeach on collateral issue), that did not render the entire trial so fundamentally unfair as to deprive Abreu of his federal right to due process.
Claim 5 will be dismissed.
B. Claim 1: Interpreter's Translation
Abreu has procedurally defaulted on his claim of being denied the right to participate in his defense due to mistranslations because he failed to raise it properly before the Appellate Division. See People v. Abreu, 248 A.D.2d 124, 669 N.Y.S.2d 560. Because state procedural rules constitute adequate and independent grounds for a decision, see Coleman v. Thompson, 501 U.S. at 729-30, 111 S.Ct. at 2554, and neither cause nor prejudice having been shown for his trial attorney's failure to object contemporaneously, this Court may not address the question. Claim 1 will be dismissed.
C. Claim 6: Sentencing
Section 2254(d) of Title 28 prohibits federal habeas relief on any claim "adjudicated on the merits in State court proceedings," unless that adjudication resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d), (1) (Supp. III 1994); see Weeks v. Angelone. 120 S.Ct. 727, 724 (2000). Because the sentence imposed by the state court was within the range prescribed by statute and did not implicate any Supreme Court ruling on a matter of federal law, this Court is without authority to pass upon the sentence.
Claim 6 will be dismissed.
D. Claim 7: Ineffective Assistance of Appellate Counsel
Appellants have a constitutional right to effective assistance of counsel on direct appeal. Evitts v. Lucy, 469 U.S. 387, 105 S.Ct. 830 (1985). In order to prove that an attorney was constitutionally ineffective, a petitioner must show both that the representation fell below an objective standard of reasonableness, and that petitioner was prejudiced by the ineffective assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2039 (1984). To meet the first element, a petitioner must show that counsel omitted a significant and obvious issue while pursuing issues that were clearly and significantly weaker.Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). To show prejudice, a petitioner must show that but for counsel's errors, the outcome of the case would have been different. Clark v. Stinson, 214 F.3d 315 (2d Cir. 2000).
In essence, Abreu alleges that his counsel's failure to contemporaneously object to the issues discussed above, which led to their procedural default, was ineffective assistance of counsel. However, failure to object to evidentiary rulings as a part of trial strategy does not render the representation constitutionally ineffective. See United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998) (failure to make certain objections as a matter of overall litigation strategy does not constitute ineffective assistance). Moreover, even if the first prong of Strickland were met, the foregoing discussion makes clear that there is no merit to the contention that these issues would have changed the outcome of the case if they had been raised at trial. Therefore, Abreu has shown neither that his counsel's performance was actually deficient, nor that he suffered prejudice as a result.
Claim 7 is dismissed.
III. A Certificate of Appealability Will Be Denied
As Abreu has failed to make a substantial showing of the denial of any constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253 (as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")); see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir. 1997). I certify pursuant to the Prisoner Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. § 1915 (a)(3), that any appeal from this opinion would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Conclusion
For the aforementioned reasons, the petition for a writ of habeas corpus is denied and a no certificate of appealability will issue.
It is so ordered.