Opinion
00 Civ. 3303 (GBD) (RLE).
May 16, 2005
Roland Acevedo, Seiff, Kretz Abercrombie, New York, NY, for Petitioner.
Peter D. Coddington, District Attorney's Office, Bronx County, Bronx, NY, for Respondent.
REPORT AND RECOMMENDATION
To the HONORABLE GEORGE B. DANIELS, U.S.D.J.:
I. INTRODUCTION
Petitioner Frank Fratello ("Fratello") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on March 22, 1996, in Supreme Court, Bronx County. Although Fratello was pro se when he filed his petition, he has been represented by counsel since January 16, 2003. Fratello was convicted of one count each of attempted murder in the second degree, assault in the first degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second and third degrees. He was sentenced to an aggregate term of ten-to-twenty years. He is now serving time at the Downstate Correctional Facility in Fishkill, New York.
Fratello challenges his conviction on two grounds: (1) the trial court's preclusion of expert testimony regarding the victim's ability to identify Fratello was an unreasonable application of clearly established federal law that prevented him from presenting a meaningful defense in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments; and (2) the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of the crimes charged. He argues that he should be granted an evidentiary hearing to explore the sufficiency of the evidence against him.
Respondent argues that: (1) the preclusion of the expert testimony was based on the state court's proper construction of state rules of evidence, and Fratello did not demonstrate that the evidence would create a reasonable doubt; and (2) the evidence was sufficient to prove Fratello's guilt beyond a reasonable doubt, and an evidentiary hearing is not required.
For the reasons set out below, this Court recommends that Fratello's petition be DENIED.
II. BACKGROUND
On December 7, 1993, at approximately 2:10 a.m., Guy Peduto ("Peduto") was shot multiple times during a car chase in the Throgs Neck section of the Bronx. Trial Transcript Volume 1 ("Tr.1") 8-13; Trial Transcript ("Tr.") 513-22. Peduto lost control of his car, and crashed into two parked cars in a driveway. Peduto was treated at the Bronx Municipal Hospital emergency room for multiple gunshot wounds to his back and the left side of his head. Tr. 208-10. There were no witnesses to the shooting, though there is testimony that Peduto identified Fratello as the shooter moments after the crash, and later, as he was being transported to the hospital. Tr.18-19, 31-33, 38, 717, 767-69. Peduto later recanted his statements. See Petitioner's Supplemental Memorandum in Support of Habeas Petition ("Pet. Supp."), Exh. B.III. PROCEDURAL HISTORY
A. Trial CourtAt the start of the trial, Fratello waived his Sixth Amendment right to a jury. He acknowledged that he had discussed the waiver with his attorney and that he had been fully informed of his rights prior to making his decision. Sentencing 2-6. The trial judge found Fratello guilty of attempted murder in the second degree, assault in the first degree, criminal use of a firearm in the first degree, and criminal possession of a firearm in the second and third degrees. On April 25, 1996, he sentenced Fratello to 10-to-20 years for attempted murder. He imposed a concurrent sentence of 10-to-20 years for the remaining charges. See Sentencing 17-20.
The sentencing phase is separately paginated and is found in the back portion of the trial transcript dated March 20, 1995.
1. Testimony Admitted At Trial
a. Dominic Cleary ("Cleary")
On December 7, 1993, at approximately 2:10 a.m., Cleary, a resident of the Throgs Neck section of the Bronx, was returning from work, and was in the general vicinity of his home. Tr. 25. He heard popping noises that sounded like firecrackers, followed by a loud noise that sounded like a car crash. Tr.1 8-11. Cleary, who was less than a block away, immediately ran to the source of the sound. Id. When he got there, he saw that a car had crashed into a driveway, hitting a parked car. Id. Cleary banged on the locked door to gain the driver's attention. Tr.1 13-14. The driver, Peduto, unlocked the door, and Cleary turned off the ignition. Cleary observed that the rear window was shattered and that there were approximately three finger-sized holes in the back of the driver's seat. Tr.1 29-30, 34-36.
Cleary testified that Peduto appeared to be in pain, was moaning, and was "choking up blood." Tr.1 16-19, 31-33, 41-42; Tr. 53. Peduto was noticeably bleeding from the head with one of his eyes swollen shut, and a portion of his ear missing. Tr.1 16-19. Cleary repeatedly asked Peduto who had shot him, and Peduto twice said that it was Fratello. Tr.1 37-38. Cleary estimated that he reached the scene less than a minute after he heard the popping noises and the crash. Tr.1 43.
b. Detective Lawrence Hinrichs ("Hinrichs")
Hinrichs is a retired New York City police detective, currently employed by the Bronx District Attorney's Office as a detective investigator. Tr. 184. He testified that he had seen Peduto and Fratello together on "numerous occasions during a five year period." Tr. 188-89. Hinrichs stated that he had secondhand information that Peduto and Fratello were no longer "friendly." Tr. 190-93.
c. Sergeant John Fitzgerald ("Fitzgerald")
Fitzgerald was a police officer in the 45th Precinct in 1993, but is now retired. Tr. 716, 796. He responded to a call on December 7, 1993, and arrived at the scene before Peduto was removed from the vehicle. Tr. 716. He recognized Peduto, and asked him, "Who did this?" Tr. 716. Peduto responded that Fratello had shot him. Tr. 717, 767-69. Fitzgerald initially thought that Peduto had said "Vetello," Tr. 717, but cleared up the misunderstanding twenty-five minutes later at the hospital where Peduto "[d]istinctly said Fratello." Tr. 719. Fitzgerald also noted that Peduto was crying, and kept asking if he was going to die. Tr. 717. Though Peduto identified Fratello as his shooter, the name "Frank Vertello" was later transmitted over the police radio system. Tr. 804. Fitzgerald testified that it was an oversight on his part not to correct the mistake. Tr. 812. He knew that the complaint correctly named Fratello, and that the detectives would work from the report. Tr. 811-12.
d. Detective George Wood ("Wood")
Wood is a detective with the 45th Precinct. Tr. 1123. He went to the hospital to interview Peduto regarding the shooting. Tr. 1124. He found Peduto on a gurney in the x-ray room. Tr. 1124-26. Wood heard Peduto ask the technician if he was going to live, and heard the technician's affirmative reply. Tr. 1127. Wood then approached Peduto and questioned him. Tr. 1129. Peduto indicated to Wood that he was driving home when he noticed a white Lexus behind him. Tr. 1129. He said that shots were fired through his window and he was hit a total of three times in the back, head, and neck. Tr. 1129. When Wood asked if Fratello was the shooter, Peduto did not give a "yes" or "no" answer, Tr. 1143, but told Wood that he would "take care of the matter later," and would "take care of it [himself]." Tr. 1129, 1142.
e. Guy Peduto ("Peduto")
Fratello asked that Peduto testify for him, and Peduto was produced from federal custody. The trial court ruled that Peduto was a "legally unavailable witness to the People" as his position no longer supported the prosecution. Tr. 307. Fratello's counsel was allowed to call Peduto as a witness, and "treat him as if under cross-examination." Tr. 307.
With his attorney present, Peduto testified that Fratello did not shoot him on December 7, 1993, that he had signed an affidavit to that effect, and that the statements contained within the affidavit were true. Tr. 308-11. On cross-examination, he stated that he had known Fratello for about fifteen years and he had "seen him frequently" over that period. Tr. 312. With respect to the shooting, Peduto testified that he might have seen the shooter emerge from the sun roof of the car, Tr. 324, but he did not identify the shooter. He further testified that he did not speak with Detective Wood at the hospital following the incident, Tr. 317, and that he was completely unconscious as a result of the shooting, only regaining consciousness at the hospital. Tr. 322-23.
f. Frank Fratello, Sr. ("Fratello Sr.")
Fratello Sr. is Fratello's father. He testified that Fratello lives with him and Nancy LaSalvia, Fratello Sr.'s girlfriend. Fratello Sr. stated that Fratello worked as a window washer at the coffee shop/soccer club that Fratello Sr. owned. Tr. 638. Fratello had been shot at the coffee shop on a prior occasion, and since that time, he and Fratello Sr. went to and from work together every night. Tr. 625-26. They would arrive at the coffee shop around 5:30 p.m. and leave around midnight. Tr. 626. Fratello Sr. indicated that on the night of the shooting, he and Fratello went straight to bed when they got home. Tr. 628, 645.
g. Nancy LaSalvia ("LaSalvia")
LaSalvia testified that she is an insomniac, and regularly watches television until approximately 3:00 a.m. Tr. 665-66. She stated that on the night in question, Fratello and Fratello Sr. came home and went directly to their respective rooms. Tr. 667-68. She testified that she did not see anyone leaving the house that night. Tr. 669, 676-78. She conceded that when she went to the bathroom sometime between midnight and 2:10 a.m., she did not check to see if Fratello was in his room. Tr. 679. She also agreed that Fratello was slim enough to have fit through an upstairs window, but he would have needed a ladder to avoid falling into the yard. Tr. 679-80.
h. Glicerio Castaldo ("Castaldo")
Castaldo agreed to be a cooperator with the federal government after his arrest for car jacking in 1994. Tr. 878-79. He grew up in the Bronx with Peduto. At trial, he testified that he had known Fratello all his life as "Frankie, Frankie Junior, and Junior," and did not know anyone named "Vitello." Tr. 890-92. He observed Peduto interact with Fratello on many occasions in the fall of 1993. Tr. 890-92, 895-97, 1068-69. According to Castaldo, Peduto told him that he saw "Frankie Junior" driving the car when it pulled up alongside him, and that he also saw the car in his mirrors as the shots were being fired by "Frankie Junior." Tr. 908-10, 912-13, 1075. Castaldo further testified that Peduto said that there was more than one person in the car, but he was sure that Fratello was driving it. Tr. 901-02.
2. Evidentiary Ruling
The trial court overruled Fratello's objections to admitting Peduto's out-of-court statements, holding that they were admissible as exceptions to the hearsay rule. The court found that the event was startling and the statements were spontaneous. Tr. 277. Peduto was under stress, thought he might have been near death, and had little time for reflection. Id. Only a few minutes had passed from the time of the shooting to the arrival of the first witness. The court concluded that the statements qualified as excited utterances. Tr. 297.
B. Appeal
Fratello filed a notice of appeal with the Appellate Division, First Department, and was granted leave to appeal. On appeal, he raised eight points, two of which are pertinent to this habeas petition: (1) preclusion of expert testimony regarding night vision deprived him of his right to mount a defense; and (2) the evidence was insufficient to support his conviction. Appellant's Brief on appeal to the Appellate Division at 13, 50.
On October 21, 1997, the Appellate Division unanimously denied Fratello's appeal, and affirmed the conviction. People v. Fratello, 243 A.D.2d 340, 340 (N.Y.App.Div. 1997). The court held that Peduto's statements, made as a result of his "personal observations" and "under the stress of nervous excitement resulting from his wounds," were properly admitted under the excited utterance exception to the hearsay rule. Id. Moreover, the court held that the verdict was based upon legally sufficient evidence and was not against the weight of the verdict. Id. There was "ample basis upon which to credit the victim's inculpation of the defendant in the form of an excited utterance at the scene, while discrediting the victim's highly suspect and thoroughly impeached efforts, as a defense witness, to exculpate [Fratello]." Id.
On January 20, 1998, Fratello was granted leave to appeal to the New York Court of Appeals. People v. Fratello, 91 N.Y.2d 891 (1998). He raised the following relevant points: (1) the preclusion of expert testimony on night vision prevented him from challenging the reliability of the excited utterance; and (2) the Appellate Division applied the wrong legal standard in determining that the evidence was legally sufficient to support a conviction. Appellant's brief on appeal to the Court of Appeals at 13, 51. On December 1, 1998, the court affirmed his conviction, holding that the statements were properly admitted as "near-classic examples of the excited utterance exception." People v. Fratello, 92 N.Y.2d 565, 570 (1998). The court also found that it was within the trial court's discretion "to reject expert testimony on a matter (night visibility) that is a subject of common experience of lay triers of fact." Id. at 572. Moreover, it held that the verdict was based upon legally sufficient evidence because the trial court had a "sufficient, nonspeculative basis to resolve the contradictions between Peduto's out-of-court statements implicating defendant in the crimes, and his exonerating testimony at the trial." Id. at 574.
Fratello's writ of certiorari to the United States Supreme Court was denied without opinion on April 19, 1999. Fratello v. New York, 526 U.S. 1068 (1999). He timely submitted his habeas petition dated April 13, 2000, which was then filed with the Court on April 22, 2000.
IV. ANALYSIS
A. Federally Cognizable Claims
"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citations omitted). A federal court may only review an application for a writ of habeas corpus once a petitioner "has exhausted the remedies available in the courts of the state." 28 U.S.C. § 2254(b)(1)(A). To satisfy this requirement, the petitioner must have fairly presented the substance of his federal claims to the highest state court. See Levine v. Comm'r of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995). In other words, the highest state court must have been aware of the federal nature of the petitioner's claims, as well as the factual and legal bases of those claims. Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); accord Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) ( quoting Daye v. Attorney Gen. of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982), cert. denied, 464 U.S. 1048 (1984)).
In raising federal claims in state court, the petitioner does not have to cite "book and verse on the federal constitution." Picard v. Connor, 404 U.S. 270, 278 (1971). A defendant may alert the state court to the federal nature of his state claims through:
(a) reliance on pertinent federal cases employing constitutional analysis,
(b) reliance on state cases employing constitutional analysis in like fact situations,
(c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye, 696 F.2d at 194. While Fratello's briefs to the Appellate Division and the Court of Appeals do not explicitly raise federal constitutional issues and rely upon state case law, his asserted claims are sufficiently particular to implicate specific rights protected by the Constitution, especially in light of the liberal construction courts must afford a pro se litigant's petition. See Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998); Mena v. Greiner, 2002 WL 31867723, at *3 (S.D.N.Y. Dec. 20, 2002) (citations omitted).
1. Expert Evidence
Fratello claims that the preclusion of expert testimony on the ability of the human eye to discern and define objects under different circumstances amounted to a denial of a meaningful opportunity for him to present a complete defense, thus violating the Fifth, Sixth and Fourteenth Amendments. This claim may be construed as a federally cognizable constitutional claim. Fratello raised the claim before the Appellate Division and before the Court of Appeals. The claim has thus been exhausted.
2. Insufficient Evidence
Fratello's claim of insufficiency of evidence may be considered a claim under the due process provision of the Fourteenth Amendment, which proscribes criminal conviction of any person except upon sufficient proof. Jackson v. Virginia, 443 U.S. 307, 316 (1979) ( citing In re Winship, 397 U.S. 358 (1970)). Sufficient proof is defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of a crime. Id. Therefore, Fratello's "legal insufficiency" claim may be construed as a federally cognizable constitutional claim. Furthermore, Fratello exhausted his state court remedies with regard to the insufficiency of evidence claim by asserting the claim to each New York State court.
B. Review on the Merits
1. Standard of Review
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)). For purposes of AEDPA deference, an adjudication on the merits occurs when the state court: "(1) disposes of the claims `on the merits;' and (2) reduces its disposition to judgment." Id. at 312. 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, 413 (2000). 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. 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. The Supreme Court has made clear that "an unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Id. at 410 (emphasis in original). In order to grant the writ there must be "[s]ome 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). 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).
2. Merits of the Preclusion of Expert Evidence Claim
Fratello contends that the trial court abused its discretion in excluding expert testimony on the science of conspicuity, in violation of the Fifth, Sixth, and Fourteenth Amendments of the Constitution. The science of conspicuity evaluates the ability of the human eye to identify objects under different circumstances, taking into account factors such as distance and lighting. Fratello attempted to introduce evidence showing that Peduto would have been unable to identify his attacker through a reflection in his rear view mirror, in a car with tinted windows, at night, while being shot at. Pet. Mem. at 13. He contends that the trial judge's exclusion of the expert testimony improperly substituted his personal experience with driving for an expert's professional evaluation, Pet. Supp. Mem. at 3, and that this decision was material to the outcome of the case because it denied him a "meaningful opportunity to present a complete defense." Pet. Mem. at 13 ( quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)).
Expert testimony is admissible when the expert has specialized knowledge that would help the trier of fact understand the evidence presented. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Fratello argues that the expert testimony would have helped the trial judge evaluate Peduto's ability to identify his attacker. Pet. Mem. at 13. However, the trial court found that he did not need an expert to understand the issue of nighttime driving, and that a trier of fact could readily evaluate the circumstances and determine if Peduto was physically able to see his attacker. Because there was no need for specialized knowledge, the expert was excluded.
Fratello argues that, in the absence of jurors, there would have been no prejudicial or misleading effects had the expert's testimony been admitted. Pet. Mem. at 15. Even if Fratello is correct and no harm would have resulted had the testimony been admitted, the trial court serves as the gatekeeper, entrusted with the task of determining the admissibility of scientific, technical, or other specialized knowledge. Id. at 591. It is up to the trial court to determine the relevance of expert testimony. Furthermore, even a finding of error is not determinative with regard to a habeas petition. Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). Fratello must show that the error deprived him of a " fundamentally fair trial." Id (emphasis in original).
A petitioner is denied a fair trial when "the trial court excludes material evidence that would have created a reasonable doubt that did not otherwise exist." Lugo v. Edwards, 1998 WL 601080, at *4 (S.D.N.Y. Sept. 8, 1998). At trial, the substance of the expert's testimony was provided by Fratello's counsel. Tr. 1228-31. Though the testimony was not admitted, the court was aware of the underlying rationale of the proposed testimony. Counsel had an opportunity to argue the significance of the testimony. The court was able to determine whether the expert's testimony would aid its own decisionmaking. The actual testimony, therefore, would not have created a reasonable doubt that did not otherwise exist, and the trial court's ruling excluding it did not alter the outcome of the case.
Accordingly, Fratello's preclusion of expert evidence claim should be DENIED.
3. Merits of the Insufficiency of Evidence Claim
Fratello alleges that the evidence was insufficient for his conviction, and that the court's finding that his guilt was proved beyond a reasonable doubt is contrary to Supreme Court precedent, and involves an unreasonable application of the facts. Petitioner's Reply Memorandum of Law ("Pet. Repl. Mem.") at 5. He asserts that a single repudiated statement is insufficient to warrant a conviction under the Due Process guarantee of the Fifth and Fourteenth Amendments. In support of his position, Fratello cites the dissenting opinion in his case before the Court of Appeals, which concluded that the evidence was insufficient because both Peduto and his recanted statement were unreliable. Fratello, 92 N.Y.2d at 575 (Smith, J., dissenting). Echoing the reasoning in the dissent, Fratello contends that Peduto's statements were not excited utterances, and were unreliable in light of the extraordinary surrounding circumstances. Pet. Supp. Mem. at 10. He speculates that Peduto may have feared retaliation from Fratello based upon prior conflict between the two, prompting Peduto to assume Fratello was the shooter without actually observing him. Pet. Repl. Mem. at 12. He also suggests that a court could conclude that Peduto's initial accusation was made in an effort to protect himself from Fratello. Pet. Mem. at 17.
These alternate scenarios do not help Fratello. The Court does not determine whether it agrees with the trial court or whether there are other possible decisions the trial court could have made. The simple question is whether the trial court's decision to admit Peduto's accusation as an excited utterance wasunreasonable. The trial court has discretion to determine whether a statement qualifies as an excited utterance. United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998). Though the trial court could have concluded otherwise based on the evidence, its decision to admit Peduto's accusation as an excited utterance was not unreasonable.
A statement is admissible as an excited utterance when it is made in response to a startling event when the declarant is under the stress caused by the event. FED. R. EVID. 803(2). Peduto's accusation was made shortly after being shot five times. He was bleeding profusely and pleading for help. As the Court of Appeals noted, this "represents near-classic examples of the excited utterance exception." Fratello, 92 N.Y.2d at 570.
Fratello also argues that, even if Peduto's accusation is admissible as an excited utterance, the statements are insufficient to uphold a conviction because they were coupled with a retraction. Pet. Supp. Mem. at 12. He asserts that the trial court contravened and unreasonably applied federal law, and alleges that a finding against him was erroneous because there were two inconsistent versions of the event. Pet. Repl. Mem. at 8. Fratello relies on Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 339 (1933), which held that "[w]here proven facts give equal support to each of two inconsistent inferences . . . judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other." This reliance is misplaced.
In Pennsylvania R. Co., a railroad worker was killed falling from the top of a railcar. The plaintiff alleged that the railroad was negligent, theorizing that the worker was thrown from the car as a result of a crash between two strings of cars, contradicting the testimony of three witnesses who testified otherwise. Plaintiff's single witness testified that he heard a loud crash, looked over, and noticed that the worker was no longer in sight. Though loud, crash-like noises were common in the rail yard, the witness inferred that the worker's death resulted from a crash between the cars. The Court held that when a case depends upon facts giving rise to two equally plausible, inconsistent inferences, a court may not give preference to one inference over the other.
The present case, however, is not a case with one set of facts and two possible inferences. Here, the court was required to determine which set of facts was more credible. The trial court determined that the excited utterance was better supported in the facts than the recantation.
Fratello also argues that "[w]hen all the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing to both guilt and innocence, the jury is left without a basis, other than impermissible speculation, for its determination of either." People v. Jackson, 65 N.Y.2d 265, 272, 491(1985). In addressing this contention, the Court of Appeals held that Jackson only applied to situations in which the conflicting testimony would leave the trier of fact with no basis except speculation to determine guilt or innocence. Fratello, 92 N.Y.2d at 573. The court concluded that the trier of fact in this case had an objective and rational basis for finding guilt beyond a reasonable doubt, and the verdict should therefore be upheld. There was a sufficient basis to resolve the inconsistencies in Peduto's statements as they could have "been credited by the trial court as inherently more reliable that Peduto's later versions." Id. at 574. The excited utterance was made when Peduto thought he might die, whereas the recantation was made once Peduto had time to ponder the effects of his accusation.
The question presented to this Court is not whether it believes the defendant to be guilty beyond a reasonable doubt, but rather whether a rational factfinder could so find. Jackson, 443 U.S. at 324. Here, the court could admit Peduto's statement as an excited utterance, could assess the credibility of the accusation and the recantation, and could find that the accusation established guilt beyond a reasonable doubt.
Accordingly, the Court finds that Fratello's insufficiency of evidence claim is without merit and should be DENIED.
C. Evidentiary Hearing
Fratello argues that he should be granted a writ of habeas corpus or, in the alternative, an evidentiary hearing to explore the sufficiency of the evidence against him. Pet. Supp. Mem. at 7. Where a petitioner "has failed to develop the factual basis of a claim," a federal court may not hold an evidentiary hearing unless the petitioner can show (1) that "the factual predicate for his present claim `could not have been previously discovered'" through the exercise of due diligence and (2) "but for constitutional error, no reasonable factfinder would have found [him] guilty." 28 U.S.C. § 2254(e)(2); Channer v. Brooks, 320 F.3d 188, 199 (2d Cir. 2003) (Internal citations omitted). "Diligence for the purposes of the opening clause [of § 2254(e)(2)] depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Williams v. Taylor, 529 U.S. 420, 435 (2000). "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437.
A showing of diligence, however, is not enough. The petitioner must also demonstrate that an evidentiary hearing might produce material information. In Channer, for example, defendant had requested certain photographs for his post-conviction hearing. The photographs were not found in the clerk's office at the time, but were discovered later by the attorney handling the habeas appeal. While conceding that it could plausibly conclude that Channer was diligent in attempting to obtain the photographs, the court denied the request for evidentiary hearing because the photographs were not material to the trial court's determination of the credibility of a witness's testimony.
Fratello had the opportunity at trial to "treat [Peduto] as if under cross-examination for the purposes of eliciting what it [was that] defense counsel wishe[d] to elicit from him." Tr. 307. He failed to fully develop the factual basis through a more thorough examination of Peduto. Fratello's lack of diligence is further displayed by his failure to seek an evidentiary hearing in the state court. 28 U.S.C. § 2254(e)(2). The Court finds that Fratello failed to demonstrate any of the factual predicates that would warrant a hearing. There is no retroactively applicable rule of constitutional law, nor has Fratello alleged discovery of new facts. Therefore, he has not demonstrated that the undiscovered facts would lead a reasonable factfinder to reach a different result.
Even if Fratello had been diligent in attempting to introduce his expert evidence on the science of conspicuity, this Court nonetheless finds that an evidentiary hearing is not warranted because the expert evidence Fratello sought to introduce was not material to the trial court's determination that Peduto did, as a matter of fact, identify Fratello as his assailant based on his observation of Fratello at the time of the shooting. See Fratello, 92 N.Y.2d at 572 ("To the extent that defendant contends that Peduto's bias prompted him to name defendant without actually having made any observation of his attacker, defendant is foreclosed by the undisturbed findings . . . that Peduto's identification was based upon personal observation.") The Appellate Division and the Court of Appeals affirmed the holdings of the trial court, respectively finding that Peduto's ability to identify his assailant "did not require any specialized knowledge beyond the ken of the trier of fact," and that night visibility is a "subject of common experience of lay triers of fact." Fratello, 663 N.Y.S.2d at 170; Fratello, 92 N.Y.2d at 572.
D. Recent Confrontation Clause Jurisprudence
Subsequent to the petition in this case, two cases were decided which Fratello argues should effect this Court's decision. In Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003), the Second Circuit held that "[t]he Confrontation Clause is violated when a defendant is `prohibited from engaging in otherwise appropriate cross-examination designed . . . to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" Id. at 249. Fratello argues that, based on Cotto, his conviction violates the Constitution, presumably because he was not afforded a chance to cross-examine Peduto, and Peduto's hearsay testimony should not have been admitted because Fratello "was not allowed to confront Mr. Peduto during the prosecution's direct case to test the reliability of the statements." Peduto, however, was called as a defense witness, and Fratello was permitted to treat him as an adverse witness, and conduct a cross-examination. Tr. 307.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court abandoned the rule under Ohio v. Roberts, 448 U.S. 56 (1980), which had allowed the admission of an unavailable witness's statement against a defendant if the statement bore "adequate indicia of reliability." Ohio, 448 U.S. at 66. Instead, the Court held that "the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Crawford, 124 S.Ct. at 1374. Further, "[t]estimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id., at 1369.
The Crawford standard does not help Fratello because Peduto's hearsay statements, assuming they are "testimonial statements," were properly admitted since they satisfy both prongs of the Crawford standard for admissibility: Peduto was declared unavailable as the State's witness, and Fratello had an opportunity to cross-examine him. Moreover, the Second Circuit recently held that the Crawford rule does not apply retroactively on collateral review in view of the independent nonretroactivity rule imposed by AEDPA in § 2254(d)(1) and the nonreatroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989), since the Crawford rule is not a watershed rule. Mungo v. Duncan, 2004 U.S. App. LEXIS 26972, *18-19. "[F]ederal courts [should] decide habeas corpus petitions . . . with reference to the Supreme Court jurisprudence as of either the date of the pertinent state court `adjudicat[ion] on the merits,' or on the date when the state court conviction became final." Id. at *16-17. Since the Court of Appeal affirmed the trial court's conviction on December 1, 1998, the Crawford rule should not apply to Fratello's case.
V. CONCLUSION
For the reasons set forth above, I recommend that Fratello's petition for writ of habeas corpus be DENIED.Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable George B. Daniels, 40 Centre Street, Room 410, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Courts of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. section 636 (b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).