Opinion
No. 97 Civ. 329G(MBM) File M, No. 97 Civ. 4412 (MBM)
January 22, 2003
CLARENCE ALLEN, (Plaintiff pro se), No. 91-A-2863, Clinton Correctional Facility, Dannemora, NY.
ELIOT SPITZER, ESQ., Attorney General of the State of New York, MARISA RIEUE, ESQ., Assistant Attorney General New York, NY.
OPINION AND ORDER
Clarence Allen has filed two separate pro se petitions pursuant to 28 U.S.C. § 2254 (2000), challenging his state court convictions for two separate rapes and related crimes. The first conviction, the subject of 97 Civ. 3296, grew out of a September 1990 encounter with a complainant identified as Ms. B ("the 1990 B case"); the second, the subject of 97 Civ. 4412, arose from an August 1989 encounter with a complainant identified as Ms. H ("the 1989 H case"). The conviction in the 1990 B case preceded by about three months the conviction in the 1989 H case. Allen is serving concurrent terms of 12 1/2 to 25 years on the various convictions in the two cases. Magistrate Judge Eaton, to whom the case was referred, recommended in a Report and Recommendation ("Report") dated July 18, 2000, that the convictions be sustained, the writ denied and the petitions dismissed. Familiarity with the Report is assumed for current purposes, and only so much of the factual background as is necessary to resolve Allen's objections to the Report is set forth below.
On April 3, 1998, Magistrate Judge Eaton directed that the complainants in the two cases be referred to only as "Ms. B" and "Ms. H."
Petitioner has filed timely objections to the Report ("Traverse"). See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72. In Part I of the Traverse, he addresses the 1990 B case, and argues that he suffered prejudice from the court's improper jury instructions on: (1) applying the reasonable doubt standard and (2) determining the complainant's credibility. In Part II of the Traverse, Allen addresses the 1989 H case, and argues that, (1) the court erroneously denied his lawyer's request for an adjournment to allow time to produce a witness, and (2) he was denied a fair trial because the court allowed evidence of his struggle with the police during his arrest, but did not allow defense counsel to introduce Allen's exculpatory statements.
For the reasons set forth below, the Report is adopted, the writ is denied and both petitions are dismissed.
I.
A district court reviewing a magistrate judge's report follows the standard established in 28 U.S.C. § 636 (b)(1) (2000) and Fed.R.Civ.P. 72(b). The district judge must make a de novo determination of those parts of the report to which timely written objection has been made by any party, but the uncontested portions of the magistrate judge's report may be adopted unless they show clear error. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Raddatz, 447 U.S. 667, 673-76 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989).
Briefly summarized, the facts in the 1990 B case are as follows. During a date on September 29, 1990, petitioner Allen convinced B, a co-worker, to drive with him to Wards Island. While parked there, Allen forcibly fondled B and orally sodomized her. Sergeant Tarbert Williams came upon them while he was patrolling the park surrounding the Psychiatric Center on Wards Island. Sergeant Williams testified that B was calling for help and screaming for Allen to stop. The sergeant further testified that Allen, after being told that he was under arrest, tried to escape by car. In the process, Allen ran over a park bench and nearly hit Sergeant Williams.
Briefly summarized, the facts in the 1989 H case are as follows. On August 18, 1989, petitioner Allen joined H, another woman with whom he had been previously acquainted, and a group of people listening to music and drinking beer, in a park behind the East River Projects in East Harlem. H had attended a movie earlier in the evening, and admitted to having used cocaine once while at the movie, although she denied using it thereafter. After walking H home, Allen forcibly restrained her over a period that began at about 3:00 a.m. and ended at about 4:30 the next afternoon. The attack occurred at her building, initially on a terrace, then in a stairwell and later on the roof, where Allen orally sodomized H several times and, toward the end of the long ordeal, raped her. An armed security supervisor of the building encountered Allen and H on the roof. After H told him that Allen had raped her, Allen ran down the stairs and was captured by other security officers outside the building. An earlier trial in the 1989 H case ended in a hung jury. At that earlier trial, Allen had called as a witness Irena Lamb, who testified that in addition to ingesting cocaine at the movie, which H admitted, she had also ingested cocaine two or three times during a three-hour period thereafter and before Allen walked her home.
II.
In Part I of Allen's Traverse, he addresses the 1990 B case. Allen claims that the court's instructions to the jury were erroneous and caused him to suffer prejudice. For a federal court to grant habeas relief based on the state court's instruction to the jury, the petitioner must demonstrate not only that the instructions were erroneous, but also that "the error violated a right guaranteed to him by federal law."Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). Petitioner has shown neither.
He asserts first that the Court did not instruct the jury to "resolve the facts first and then apply the reasonable standard." (Traverse at 1) However, the Court informed the jury that "[t]he process by which you arrive at a verdict is first to determine from all of the evidence and the exhibits what the facts are and second, to apply the law of the case as I give it to you to the facts as you have determined them to be." (Trial Transcript for 1990 B case ("Tr.I") at 423) He then instructed the jury on the reasonable doubt standard in connection with each separate crime with which the defendant had been charged. (See Tr.I at 446-47, 448-49, 454, 460, 463-64, 467) I agree with Magistrate Judge Eaton that the trial court's instructions to the jury concerning both the facts and the applicable standard were correct. (See Report at 9-10)
Petitioner's second assertion is that the Court did not properly instruct the jury that the "complainant's credibility was an essential element to be proven beyond a reasonable doubt." (Traverse at 1) Due process requires proof beyond a reasonable doubt "of every fact necessary to constitute the crime." In re Winship, 397 U.S. 358, 364 (1970). The complainant's credibility was not an element of any of the crimes with which the petitioner was charged and, therefore, is not properly a subject of an instruction on the reasonable doubt standard. Furthermore, the record shows that the trial court fully and correctly instructed the jury on the appropriate standards to be applied in evaluating the credibility of witnesses. (See Tr.I 427-28)
With regard to both claims, even if there had been error in the instructions, the defendant would be entitled to relief only if the instruction "by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughton, 414 U.S. 141, 147 (1973). Because Allen has not demonstrated that the challenged instructions were erroneous, much less that they constituted a due process violation, I agree with Magistrate Judge Eaton that the writ in the 1990 B case should be denied and the petition in that case dismissed.
III.
In Part II of his Traverse, Allen addresses the 1989 H case and makes two claims. He asserts first that he was denied due process because the court refused to grant his counsel's request for a one-day adjournment to produce a witness. (See Traverse at 3-4) For the reasons summarized below, I agree with Magistrate Judge Eaton that Allen was given sufficient time to produce his witness.
The witness, Irena Lamb, had testified in April 1990 at Allen's first trial in the 1989 H case, that H ingested more cocaine than she had admitted on the night preceding her encounter with Allen. That trial ended in a hung jury. In the second trial, in June 1991, defense counsel was told by the Judge on Friday, June 28, to have his witnesses ready to testify the following Monday, July 1. Lamb was not under subpoena, and did not appear on either July 1 or July 2. On July 2, defense counsel reported to the judge that Lamb had informed him that morning that it would be difficult for her to testify "pretty much on any day" because she had just started a new job. (See Trial Transcript for 1989 H case ("Tr.II") at 378) Defense counsel nonetheless requested a one-day adjournment, which the trial court denied. Allen's contention is that Lamb's testimony concerning H's use of cocaine on the day of the incident would have weakened H's credibility as a complainant — particularly, he thinks, on the issue of consent as to the rape charge. (See Traverse at 4)
An adjournment to secure a witness is appropriate when it can be shown that the witness's testimony is material, the delay is not the fault of the applying party, and it is likely that the witness will be present at the time the trial resumes. Cruz v. Greiner, No. 98 Civ. 7939, 1999 WL 1043961, at *34 (S.D.N.Y. Nov. 9, 1999) (quoting People v. Foy, 32 N.Y.2d 473, 476, 346 N.Y.S.2d 245, 247 (1973)). Allen has failed to establish any of these elements. Lamb's proffered testimony concerning H's use of cocaine more than 14 hours before the rape is of doubtful materiality in establishing that she consented to sexual relations with Allen. Further, the delay was caused at least in part by defense counsel, Allen's agent for these purposes, having failed to put Lamb under subpoena. Still further, not only had Allen been given three days' notice by the Judge, but he was also granted an additional day, from Monday to Tuesday, to secure Lamb's voluntary presence. As Magistrate Judge Eaton noted, after Allen had been convicted in connection with the 1990 B case a scant three months before his retrial in the 1989 H case, there was every reason to anticipate that Lamb would be hesitant to testify a second time, and thus reason also to place her under subpoena. There is nothing in the record to explain why Lamb was not subpoenaed if defense counsel believed her testimony would be as significant as Allen now asserts. Finally, as to the third prong of the test, Lamb's own statement, as reported by defense counsel, shows there was little likelihood that she would have appeared in court on Wednesday had yet another adjournment been granted. Therefore, Allen has failed to show that the trial court erred in refusing to grant the requested adjournment.
Allen's second argument in the 1989 H case is that his claim of innocence during his arrest should have been admitted as evidence. (See Traverse at 4-5) I agree with Magistrate Judge Eaton that Allen's protestation of innocence was simply a self-serving exculpatory statement that does not fit within any recognized exception to the hearsay rule. Furthermore, it is well established that state court decisions on the admissibility of evidence are governed by state law, see Estelle v. McGuire, 502 U.S. 62, 68 (1991), and that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Id.
Even if the state trial court's decision was incorrect as a matter of state law, claims for habeas relief which are based on erroneous evidentiary rulings can succeed only if excluded evidence would have created "a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112 (1976). Here, there is no reason to think that Allen's statement would have carried sufficient weight to counter the testimony of both the complainant and the arresting officer, and to create a reasonable doubt in the minds of the jurors as to his guilt.
In connection with this issue, petitioner also alleges that he was denied a fair trial because the judge did not instruct the jury regarding "consciousness of guilt" and the reliability of the evidence as to his struggle with the security officers. (See Traverse at 5) That claim is barred because petitioner did not ask the trial court to include an instruction on the significance of evidence relating to consciousness of guilt. Allen has not shown cause for this default, see Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), and resulting prejudice, id.
* * *
For the reasons stated above, the writ with respect to the 1989 H case should be denied and the petition dismissed.Accordingly, Magistrate Judge Eaton's Report recommending dismissal of the petitions in both cases is adopted, the writ is denied and the petitions are dismissed. Furthermore, a certificate of appealability will not issue because Allen has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2).
SO ORDERED.