Opinion
02-CV-6436(JBW), 03-MISC-0066(JBW)
December 2, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims,
I. Facts and Procedural History
Petitioner was tried on numerous counts relating to the armed robbery of a home in Nassau County. The prosecution presented proof that five men were involved in the robbery, which they planned after learning that large amounts of cash and drugs were supposedly stashed in the home. Evidence was offered that petitioner served as the lookout in one of two getaway cars. The other four alleged accomplices were all convicted of crimes relating to these events: Ramon Deoleo (petitioner's cousin) was tried jointly with petitioner and convicted; Jose Gutierrez pled guilty to robbery, burglary and criminal use of a firearm; Ramon Duran was convicted of various counts of robbery and burglary after trial; and Fausto Adames pled guilty to robbery and burglary.
A the trial of petitioner and his cousin, two of the victims testified to what happened inside their apartment during the burglary and armed robbery. Two bystanders testified that they saw the perpetrators flee in a car and called 911. One of the bystanders followed the perpetrators and reported to police the license plate number of one of the two getaway cars. A detective testified that Jose Gutierrez was arrested as result of the license number obtained by the bystander.
Fausto Adames testified against petitioner, acknowledging that he had pled guilty to crimes related to this incident and that his testimony was part of a deal he made with the prosecution in return for a reduced sentence. He testified to each step of the planning and execution of the robbery and burglary. With respect to petitioner in particular, he testified that he helped plan the crimes, waited outside in a getaway car while the other four co-perpetrators went into the apartment, and that he helped divide up the proceeds of the crime,
Rosa Sprause, Adames' cousin, testified that she saw petitioner with Adames a few hours before the burglary and just after the burglary, when she heard petitioner say, "the money that was supposed to have been there, wasn't there. That they only got whatever he had in his house, I guess." Trial Tr. at 349; see also id, at 431 (Adames testifies to hearing petitioner say "it was not the money that he had been told of).
Petitioner called a friend to testify at trial that petitioner had been with him at the time of the robbery and burglary, doing errands and getting petitioner's taxicab repaired at a mechanic's shop, The mechanic testified that at some time during the morning petitioner had come in to have his cab repaired, but that he did not know when he performed the forty-five minute job. He produced a receipt dated the day of the robbery, A secretary at the Rockaway Medical Center produced medical records indicating that petitioner had an appointment and was treated at the center sometime during the day.
Petitioner and his cousin were each convicted of robbery in the first and second degrees and burglary in the first and second degrees, Petitioner was sentenced principally to 12-1/2 to 25 years in prison.
His conviction was affirmed by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied,
Petitioner filed a motion to vacate his judgment of conviction before the trial court, claiming that Adames had recanted his trial testimony and that this newly discovered evidence necessitated a new trial. The trial court found the recantation unreliable and merely impeaching of the trial testimony, and therefore denied the motion, A motion for reargument was granted but the initial denial of the motion to vacate judgment was adhered to. Leave to appeal to the Appellate Division was denied. An application for leave to appeal to the New York Court of Appeals was dismissed on the ground that the Appellate Division's order was not appealable. A motion for reconsideration was dismissed,
Petitioner filed a timely habeas corpus petition but sought to have the petition stayed to allow him to exhaust state remedies. The stay was granted and petitioner filed another motion to vacate judgment, on the grounds of more newly discovered evidence, before the trial court. The motion was denied. Leave to appeal to the Appellate Division was denied. An application for leave to appeal to the Now York Court of Appeals was dismissed on the ground that the Appellate Division's order was not appealable.
The instant habeas proceeding was subsequently reopened,
In his application for a writ of habeas corpus, petitioner claims that (1) his due process rights were violated by the trial court's curtailment of a requested readback of trial testimony; (2) his due process rights were violated by the trial court's preclusion of a defense rebuttal witness; (3) the recantation of Adames' inculpatory testimony, along with the affidavit of Duran, establish Ms actual innocence; and (4) he was denied a fair trial as a result of prosecutorial misconduct.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(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),
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413. Under this 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," Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "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." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted),
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1),
Ill. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims, See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is, grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions." See 28 U.S.C, § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,"). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No, 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at * 10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV, Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 US. 362 (2002)), If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits, " Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. Certificate of Appealabilily
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right, Petitioner has right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)," See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003),
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit, See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VI. Analysis of Claims
Unless otherwise noted below, all claims are reviewed under a de novo standard,
A
Petitioner first claims that his due process rights were violated by the trial court's curtailment of a requested readback of trial testimony. During deliberations, the jury asked to hear the "entire testimony" of Rosa Spraus, both "direct and cross examination," Trial Tr. at 1402, Prior to the readback, the trial court instructed the jurors, without objection from defense counsel, that if they had heard enough then the foreperson should raise her hand. At some point during the readback the trial court ceased, saying, "Ladies and gentlemen, that completes the readback that you requested, You can go back to the jury room." Id, at 1417. The trial court informed defense counsel that the foreperson had indicated that no further reading was required, and that the court had observed other jurors "making eye contact" to the foreperson indicating that they had heard enough,
In the state courts, petitioner raised his claim with reference only to state law and in reliance solely on state law cases; it is doubtful that the state courts were put on notice of the federal nature of his claims. The Appellate Division rejected petitioner's claim, as presented to that court, on the merits, stating, "Since the record does not specify the point at which the trial court terminated a readback of testimony requested by the jury, the defendant failed to establish that he was prejudiced by the failure to read all of the testimony." People v. Deoleo, 111 N.Y.S, 2d 378, 379 (App. Div, 2000),
As a general matter, "[i]n order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law 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). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context, Cupp v. Naught en, 414 U.S. 141, 146-47 (1973), The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Id, at 147,
"Whether to allow testimony to be reread to the jury is a matter committed to the sound discretion of the trial court," United States v. McElroy, 910 F.2d 1016, 1026 (2d Cir. 1990); see also Cottrel v. New York, 259 F. Supp.2d 300, 305 (S.D.N.Y. 2003). In determining whether to provide read-backs, the trial court may consider such factors as (1) whether reading certain testimony will unduly call attention to it; (2) whether giving the read-back will unduly delay the proceeding; and (3) the difficulty involved in giving a read-back. United States v. Damsky, 740 F.2d 134, 137 (2d Cir. 1984),
The Appellate Division's observation-that it is unclear precisely when the readback was stopped-may or may not be a sufficient ground on which to deny relief. Nevertheless, that ground need not be relied upon here, The trial court indicated on the record that its readback of testimony had taken over an hour. The court alerted the parties to the fact that he would stop reading when he received an indication from the jury. The court did not abuse its discretion in concluding as factual matters that the jury as a whole was satisfied that no further readback was necessary and that to continue would result in undue delay. It is instructive that no further requests for readbacks were made by the jury. Moreover, it is of scant relevance that another judge overseeing a trial would hesitate to rely on hand signals and tacit communications from assorted jurors to determine when to stop a readback. The trial court acted within its discretion, Petitioner was not deprived of a fair trial as a result of the trial court's curtailment of the readback. Habeas corpus relief on this claim is not warranted.
B
Petitioner next claims that his due process rights were violated by the trial court's preclusion of a defense rebuttal witness. He contends that he should have been allowed to rebut the prosecution's implication, through cross-examination, that his alibi witnesses had fabricated their testimony after meeting with defense investigators. The proposed rebuttal witness was a defense investigator, who petitioner contends would have testified that he "was physically present at S and L [garage] and observed someone retrieve a receipt. That he was physically present at Ozone Medical Center, and he reviewed certain documents, served a subpoena, That he was physically present at the Social Security disabilities office, and spoke with a representative of that office." Trial Tr. at 1130, When queried by the trial court as to why this testimony would be relevant, defense counsel responded, "The relevance is that this is a direct fact in issue, whether or not [the garage mechanic] is a liar and just fabricated the receipt," Id. at 1132,
As with the first issue raised in his habeas application, petitioner did not alert the state courts to the federal nature of this claim-at least prior to his letter seeking leave to appeal the denial of the claim to the New York Court of Appeals, The Appellate Division rejected this claim, in the manner in which it was presented to that court, on the merits, stating, "The court properly precluded the testimony of the defendant's proposed rebuttal witness which was intended to rebut a charge that the testimony of another defense witness was a recent fabrication. The proposed rebuttal witness did not know if the allegedly exculpatory statement was made before a motive to testify falsely existed." Deoleo, 717 N.Y.S.2d at 379 (citation omitted),
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted [or suppressed] evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Sadly, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982), This lest applies post-AEDPA. See Wade v. Mantello, No, 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
In the instant case, the Appellate Division reasonably concluded that petitioner failed to show that his rebuttal witness could shed any meaningful light on the issue of whether the alibi witnesses had fabricated their testimony. With respect to the receipt produced from the garage mechanic, it is not at all clear from the trial transcript whether the investigator's observations were made prior to the mechanic learning for the first time that petitioner was charged with a crime (and, hence, before the mechanic had a motive to forge the receipt). At any rate, the whole issue is of small significance. The receipt had no indication of the time that petitioner's car was in the shop and established little of an alibi. The investigator's proposed testimony, as articulated by defense counsel, would have done little to bolster the mechanic's testimony or his credibility. Petitioner was not denied a fair trial as a result of the evidentiary ruling. Habeas corpus relief on this claim is not warranted.
C
Petitioner claims that the recantation of Adames' inculpatory testimony, along with the affidavit of Duran, establish his actual innocence. In separate motions to vacate judgment, petitioner appended letters from the two alleged co-perpetrators denying that petitioner was involved in the crime. The first motion (addressing Adames' recantation) was denied because it "merely impeaches" the witness' former testimony, Jan. 9, 2002 Order at 2. The trial court noted in that decision that there is "no form of proof so unreliable as recanting testimony," Id. (quoting People v. Shilitano, 112 N.E. 733, 736 (N.Y. 1916)). The second motion (addressing Duran's affidavit claiming he had never met petitioner until they were both jailed for the instant crimes) was denied because petitioner failed to establish that he could not have obtained the affidavit at or before his trial. The court found that the affidavit was, moreover, untrustworthy.
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id, at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence, Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence, that was not presented at trial Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful" Id at 324,
A showing of actual innocence may serve, however, only as a gateway to the airing of a defaulted issue; an assertion of actual-innocence it is not itself cognizable as a free-standing claim in a habeas proceeding. See Herrera v. Collins, 506 US. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved,'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-8fi (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (I960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
At any rate, the recantation and affidavit evidence from petitioner's co-perpetrators docs not establish that petitioner is actually innocent of the crimes of conviction. As the trial court reasonably concluded, the exculpatory affidavits of Adames and Duran are not reliable, Such "newly discovered" recantation evidence is not uncommon after trials are complete and little or no risk attends a prisoner who may be motivated to assist a friend, In addition, petitioner was named in the confessions of several codefendants, He has not established his actual innocence by virtue of these affidavits. Habeas corpus relief on these claims is not warranted.
D
Finally, petitioner claims that he was denied a fair trial as a result of prosecutorial misconduct. Petitioner alleges that the prosecutor coerced Adames and Spraus into testifying falsely against him and that the use of a 1994 picture of him in a photo array constituted misconduct.
Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the misconduct sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). Nonetheless, "when the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair." Mahorney v. Waltman, 917 F.2d 469, 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S. at 643). Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceedings. DeChristoforo, 416 U.S. at (543. In order to view any prosecutorial misconduct in context, "we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. . . . Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." Fero v. Kerby, 39 P.3d 1462, 1474 (10th Cir. 1994) (quotations omitted).
Petitioner in the instant case relies on the recantation affidavit of Adames to establish that the prosecutor coerced inculpatory testimony. The trial court, in denying a motion to vacate judgment, found Adames's affidavit unworthy of belief and instead credited the affidavit of the prosecutor, who denied coercing any witnesses. That factual finding is reasonable.
Petitioner has failed to explain why the use of photograph, taken when he was a juvenile, in an identification array violated his federal constitutional rights,
Petitioner was not denied a fair trial as the result of prosecutorial misconduct. Habeas corpus relief on these claims is not warranted,
VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right,
SO ORDERED