Opinion
01-CV-6481 (JBW), 03-MISC-0066 (JBW)
September 4, 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 arrested for the rape of a thirteen-year-old girl who lived across the street from him. The complainant testified at trial that she lived with the family of Ethel Manuel, who was something of a surrogate mother to her. Petitioner came to the Manuel house on a Sunday afternoon when the complainant was alone and, according to the complainant, advanced toward her and accused her of leading him on by the way she dressed. She testified that she tried to grab a knife but was restrained, and that petitioner then forcibly engaged in sexual intercourse with her. The complainant told no one of the rape for approximately two months, after which she confided in Ms. Manuel.
The prosecution was allowed to call an expert in child sexual abuse trauma to testify concerning Rape Trauma Syndrome ("RTS"), The expert testified, in sum, that failure to immediately report a rape is frequent in instances where the victim knows her aggressor. The expert also offered the jury explanation as to why such delay is frequent.
Petitioner testified in his own defense, contending that no rape occurred and that he did not understand why the complainant was making her accusations.
Petitioner was convicted of first and second degree rape, first degree sexual assault, second degree sexual abuse, and endangering the welfare of a child. He was sentenced to 5 to 15 years in prison.
His conviction was affirmed by the Appellate Division. Leave to appeal was denied by the New York Court of Appeals.
In his application for a writ of habeas corpus, petitioner claims that (1) he was denied a fair trial when the trial court allowed an expert witness to testify about Rape Trauma Syndrome; and (2) he was denied a fair trial by the prosecutor's summation, which "shifted the burden of proof, impugned the integrity of the defense, vouched for the complainant's credibility and sought to inflame the jury by mischaracterizing [his] testimony and comparing him to Judas Iscariot" Both claims have been exhausted.
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 R3d 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),
III. 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 aha 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.
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 separate basis for its decision).
When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." 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 arc "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 Appealability
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 a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 2S 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
A
Petitioner first claims that he was denied a fair trial when the trial court allowed an expert witness to testify about Rape Trauma Syndrome, The Appellate Division rejected this claim on the merits, stating, "The trial court properly admitted expert testimony regarding `rape trauma syndrome' to aid the jury in understanding the unusual behavior of the victim after the rape had occurred." People v. George, 715 N.Y.S.2d 668, 669 (App. Div, 2000).
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 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. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v, Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA, See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
In the instant case, petitioner cannot demonstrate that the trial court committed any error. The admission of expert testimony concerning rape trauma syndrome has been deemed proper, in appropriate circumstances, under New York State law. As the New York Court of Appeals has explained.
Because cultural myths still affect common understanding of rape and rape victims and because experts have been studying the effects of rape upon its victims only since the 1970's we believe that patterns of response among rape victims are not within the ordinary under standing of the lay juror. For that reason, we conclude that introduction of expert testimony describing rape trauma syndrome may under certain circumstances assist a lay jury in deciding issues in a rape trial.People v. Taylor, 552 N.E.2d 131, 136 (N.Y. 1990), The court further explained that "the reason why the testimony is offered will determine its helpfulness, its relevance and its potential for prejudice." Id. at 138.
In the present case, the testimony was not offered to prove that a rape had occurred, and the jury was advised that it was not to be used for that purpose. Rather, the expert testimony was presented to educate the jurors about a common but seemingly puzzling reaction (delay in reporting) to an unusual occurrence unlikely to have been experienced by the jurors (violent rape). Admission of this testimony was probative and not an abuse of the trial court's discretion, Habeas corpus relief on this ground is not warranted.
B
Petitioner next claims that he was denied a fair trial by the prosecutor's summation, which "shifted the burden of proof, impugned the integrity of the defense, vouched for the complainant's credibility and sought to inflame the jury by mischaracterizing [his] testimony and comparing him to Judas Iscariot." The Appellate Division deemed the claim procedurally defaulted because not preserved for appellate review. Although it seems that elements of the claim were not preserved by a contemporaneous objection, defense counsel did contest the prosecutor's statements at a number of points during the summation, Whether the procedural bar invoked by the Appellate Division is adequate under these circumstances need not be determined, however, since the court's alternative holding that the claim is meritless was reasonable.
Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark 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. Wallman, 917 R2d 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 643. 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 R3d 1462, 1474 (10th Cir. 1994) (quotations omitted).
Petitioner complains that the prosecutor shifted the burden of proof by repeatedly suggesting that the jury had to find the complainant "a cold, calculating liar" in order to acquit petitioner. Trial Tr. at 566, 578, 590, The statements were arguably offered in response to defense counsel's argument that the complainant's unstable family life might have caused here irrationally to fabricate an accusation of rape against petitioner. Although the prosecutor's statements could be deemed by a court to be improper, the comments did not "shift the burden of proof" onto petitioner and were not sufficiently egregious to have denied him a fundamentally fair trial.
Likewise with respect to petitioner's claim that the prosecutor shifted the burden of proof onto him by suggesting that petitioner had failed to prove his good reputation in the community. The matter was, in the context of this trial, trivial. Any error was insignificant.
Petitioner complains that the prosecutor impugned the integrity of the defense by stating that "most of [petitioner's] testimony is really coming from [defense counsel]. All he's really doing is saying yes and no to Mr. Greenberg's questions." Trial Tr. at 588, An objection was made and sustained, and a curative instruction — that "a question by itself is never evidence" — was given. The instruction was sufficient to cure any prejudice that petitioner may have suffered from the improper implication by the prosecutor that petitioner's testimony was scripted by his attorney.
Petitioner's complaints about the prosecutor's attempt to draw conclusions from fact not fairly inferable from the evidence, his attempt to appeal improperly to the jury's sympathy, and his attempt to vouch for the complainant's credibility, are relatively trivial and did not deny petitioner a fundamentally lair trial.
Finally, petitioner complains that the prosecutor sought to inflame the jury by mischaracterizing his testimony and comparing him to Judas Iscariot, The contested commentary was as follows:
MR. KESSLER [the prosecutor]; I'm almost done, I promise, I just want to talk a little bit about the defense case and his witnesses for a second. You know, he spoke a little bit about Bible class. He spoke a little bit about his family and kids.
And you know, he spoke a little bit about church going and things like that. Well, he had a character witness who came in from Rockland and talked a little bit about his character.
But when you think about this character witness, I want you to think about this for a second. When you think about the Bible, my favorite story is the last supper. Remember in the last supper Jesus, twelve disciples, and Judas was there, Well —
MR. GREENBERG [defense counsel]; Your Honor, I would object to this.
THE COURT: Sustained.
MR. KESSLER: When you think about character witnesses, all I would ask you to do is use your common sense and logic. Because this character witness doesn't Know what he's like outside of really Rockland County in this small community.
We didn't hear any character witnesses about what he's like in Queens. We know what he's like in the small business community. Just like up until the point as Judas goes up and kisses Jesus, he had —
MR. GREENBERG: Objection.
THE COURT: I sustained the objection to that story. Disregard it. I'm striking it.
Trial Tr. at 587-88, Its seems remarkable to this court that the prosecutor could ever have deemed his Bible story — one in which he at least implicitly compares a defendant to Judas Iscariot — to be appropriate in a summation of a criminal trial. That the prosecutor continued with the story even after an objection was sustained reflects poorly on his ethical compass. The prosecutor came close to striking the type of "foul blow" decried by Justice Sutherland. See Berger v. United States, 295 U.S. 78, 88 (1935) ("[The government prosecutor] may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones, It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one,"). In the instant case, an objection was made and sustained and a curative instruction was given. It cannot be said that petitioner was denied a fundamentally fair trial on the basis of these comments.
The Appellate Division's conclusion that no reversible error occurred as a result of the alleged prosecutorial misconduct was reasonable. Habeas relief on this ground 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.