Opinion
03-CV-4555 (JG).
October 8, 2004
LUKE ARTHUR, No. 01R1512, Wallkill Correctional Facility, Wallkill, NY, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Thomas M. Ross, Assistant District Attorney, Attorneys for Respondent.
MEMORANDUM AND ORDER
Luke Arthur petitions for a writ of habeas corpus, challenging his convictions in state court. The petition is denied for the reasons set forth below.
BACKGROUND
The government's evidence at trial established that, on December 4, 1999, Brian Mencias returned home to his Brooklyn apartment. As he stepped out of the elevator on the sixth floor where his apartment was located, he saw a group of people in the hallway, one of whom had a gun. Mencias heard shots, so he quickly went into his apartment, where he discovered that he had been shot near the collar bone. Soon thereafter, he went outside and flagged down a police van.
During his direct examination at trial, Mencias identified Arthur as the person with the gun. Mencias knew Arthur by sight before that event; he had seen Arthur hanging out in front of the building several times per month for the prior three years.
Arthur was charged with criminal possession of a weapon in the second degree; criminal possession of a weapon in the third degree; criminal possession of a weapon in the fourth degree; reckless endangerment in the first degree; and reckless endangerment in the second degree. The jury found him guilty of criminal possession of a weapon in the third degree and reckless endangerment in the second degree. Arthur was sentenced to concurrent terms of imprisonment of six years for the weapons count and one year on the reckless endangerment count.
Arthur, through counsel, appealed to the Appellate Division, Second Department. Appellate counsel argued that Arthur should receive a new trial, alleging that: (1) the verdict was against the weight of the evidence; (2) the court erroneously allowed the People to impeach its own witness; and (3) after the jury requested that Mencias's grand jury testimony be read back, the court erroneously failed to re-instruct the jury that it could use Mencias's grand jury testimony for impeachment purposes only.
The Appellate Division rejected all of these challenges, and affirmed Arthur's conviction on January 27, 2003. People v. Arthur, 301 A.D. 2d 657 (2d Dep't 2003). The court, noting that questions of credibility and the weight to be accorded to the evidence presented was primarily the province of the jury, found that (1) the verdict was not against the weight of the evidence; (2) the evidence was legally sufficient to establish Arthur's guilt; and (3) Arthur's remaining contentions were without merit. The Court of Appeals denied Arthur's application for leave to appeal on May 16, 2002. People v. Arthur, 100 N.Y.2d 536 (2003) (Wesley, J.).
On September 9, 2003, Arthur filed a pro se petition for a writ of habeas corpus in this Court, raising the same grounds raised by his appellate counsel on direct appeal.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "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). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411);see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S. Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
B. Arthur's Claims
1. Sufficiency of the Evidence
The petition raises the ground of "weight of the evidence." Whereas such a claim may be grounds for relief in state court, it is not a cognizable ground for federal habeas corpus relief. I construe this aspect of the petition as a challenge to the sufficiency of the evidence.
Arthur claims that his due process rights under the Fourteenth Amendment were violated because the evidence was legally insufficient to support a guilty verdict. I disagree.
A petitioner "challenging the sufficiency of the evidence bears a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (internal quotation marks omitted). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).
During his direct testimony, Mencias testified that Arthur was the shooter. On cross-examination, Mencias made several conflicting statements, including the statement that he did not recall if Arthur was the shooter. Arthur argues that this conflicting testimony renders the evidence presented to the jury insufficient to support its verdict. It is the jury, however, and not the habeas court, that is best suited to wrestle with questions of credibility. The question before the habeas court is whether the Appellate Division unreasonably applied constitutional or federal law. The Appellate Division, noting that questions of credibility are primarily to be determined by the jury, reviewed the record and found that the evidence was legally sufficient to support a guilty verdict. This finding does not reflect an unreasonable application of constitutional or federal law, and accordingly, Arthur cannot prevail on this ground for relief.
2. The People's "Impeachment" of Their Own Witness
Second, Arthur contends that the trial court erred by allowing the People to impeach its own witness, Mencias, presumably violating Arthur's due process rights under the Fourteenth Amendment.
Both before the Appellate Division and in his petition here, Arthur simply invokes the Fourteenth Amendment without elaborating on the constitutional basis of his claim. I construe this claim as an assertion that Arthur was deprived of a fair trial, in violation of the Due Process Clause.
Mencias gave inconsistent testimony at trial regarding his identification of Arthur as the shooter. During his direct examination, Mencias testified that Arthur was the person shooting the firearm in the hallway of Mencias's apartment building. (Tr. at 199). On cross-examination, Mencias stated that it was possible that someone else shot the gun; that he didn't recall if Arthur was the shooter (Tr. at 240). He also testified that the shooter was wearing a hood. (Tr. at 250). On redirect examination, the trial court allowed the People to examine Mencias regarding the statements he made to the grand jury. Specifically, Mencias's grand jury testimony was read back to him, and Mencias confirmed that he had identified Arthur as the shooter during his grand jury testimony. (Tr. at 266). Subsequently, on re-recross, Mencias both identified Arthur as the shooter (Tr. at 294) and stated that he did not remember who the shooter was (Tr. at 295-96).
While Arthur's brief to the Appellate Division and his petition here invoke the Fourteenth Amendment, both focus on an alleged violation of New York law governing the use of prior inconsistent statements to impeach one's own witness. See N.Y. Crim. Proc. Law § 60.35. To the extent Arthur is seeking relief for an alleged violation of state law, no such relief is available here, because an application for a writ of habeas corpus will be entertained only on the ground that there has been a violation of federal law. See 28 U.S.C. § 2254 (a); see Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("federal habeas corpus relief does not lie for errors of state law").
Section 60.35[1] provides:
When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony.
N.Y. Crim. Proc. Law § 60.35(1).
In any event, any federal claim based on the People "impeaching" Mencias with his grand jury testimony has no merit. First, the prosecution was not impeaching Mencias, it was rehabilitating him. The grand jury testimony — that Arthur was the shooter — was consistent with Mencias's direct testimony. It was elicited not to impeach testimony elicited by the prosecutor, but to shore it up. Second, under federal law, a party has the right to impeach any witness. See Fed.R.Evid. 607 ("The credibility of a witness may be attacked by any party, including the party calling the witness."). No limits are set as to when, or how, such an impeachment may take place. Finally, as discussed below, under the Federal Rules of Evidence, Mencias's grand jury testimony would have been fully (and unconditionally) admissible at trial.
In sum, the People's use of Mencias's grand jury testimony on redirect violated neither the Constitution nor any federal law, and Arthur cannot prevail on this ground for relief.
3. The Court Erroneously Failed to Re-Instruct Jury
Arthur contends that the trial court erroneously failed to re-instruct the jury about how it should consider Mencias's grand jury testimony when it was read back during the jury's deliberations. Specifically, he contends that the court erred by not reiterating the limiting instruction that the testimony would only be used to assess Mencias's credibility. Arthur claims that the jury therefore considered the grand jury testimony as substantive evidence, and not just for the limited purpose of impeachment. This claim implicates the Confrontation Clause of the Sixth Amendment; where an out-of-court statement not subject to cross-examination is admitted for the truth of the matter asserted, it may violate Arthur's right to confront a witness.
Again, both before the Appellate Division and in his petition here, Arthur simply invokes the Fourteenth Amendment without elaborating more specifically about the constitutional basis of his claim. Because of my conclusions on the merits, I need not address whether Arthur has satisfied the exhaustion requirement for a Sixth Amendment claim. See 28 U.S.C. § 2254(b)(1)(A) (Federal habeas relief generally may not be granted unless the petitioner "has exhausted the remedies available in the courts of the State.").
The trial court twice gave a limiting instruction to the jury regarding how it should consider Mencias's grand jury testimony, charging the jury that it may consider the prior testimony as a factor in determining credibility, but not for the truth of its contents. (Tr. at 352, 579). During deliberations, the jury asked for "Brian Mencias's testimony, identifying Luke Arthur . . . as the shooter at grand jury." (Tr. at 605). The court denied Arthur's counsel's request that the jury be re-charged with the limiting instruction. The court stated that "[i]t's not up to me to speculate as to how they might be or might not be using [the grand jury testimony]. I just answer their questions." (Tr. at 608).
While it would have been prudent for the trial court to re-instruct the jury, the failure to do so does not afford Arthur a basis for habeas relief. The court twice instructed the jury as to the limits imposed by state evidentiary rules on how the prior testimony could be treated, and I presume that the jury followed those instructions. More importantly, putting aside any potential state law violation, which is generally not cognizable in a habeas petition, see Lewis, 497 U.S. at 780, there is no constitutional or federal violation here. Under the Federal Rules of Evidence, grand jury testimony introduced under the circumstances presented at Arthur's trial may be admitted not only for the purpose of determining a witness's credibility, but also as substantive evidence that the jury may consider for any purpose. Rule 801(d)(1) provides that a prior statement of a witness is not hearsay if "[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding. . . ." Fed.R.Evid. 801(d)(1). Once Mencias testified that he did not recall whether Arthur was the shooter, the use of his contrary testimony under oath to the grand jury was permissible under federal law. Accordingly, the Appellate Division's rejection of Arthur's Sixth Amendment claim was not unreasonable, and Arthur cannot prevail on this ground for relief.
N.Y. Crim. Proc. Law § 60.35[2] reads:
Evidence concerning a prior contradictory statement introduced pursuant to subdivision one may be received only for the purpose of impeaching the credibility of the witness with respect to his testimony upon the subject, and does not constitute evidence in chief. Upon receiving such evidence at a jury trial, the court must so instruct the jury.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Arthur has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.