Opinion
99 Civ. 12277 (DAB)(FM)
December 12, 2001
REPORT AND RECOMMENDATION TO THE HONORABLE DEBORAH A. BATTS
I. Introduction
In this pro se habeas corpus proceeding pursuant to 28 U.S.C. § 2254, petitioner Roberto Gonzalez ("Gonzalez") challenges his March 1, 1993 conviction after a jury trial, in Supreme Court, New York County, on one count of Conspiracy in the Second Degree, and one count of Criminal Possession of a Weapon in the Third Degree, in violation of Sections 101.50 and 265.02 of the New York Penal Law. (See Pet. ¶ 4). On April 8, 1993, Gonzalez was sentenced by Justice Leslie Crocker Snyder to consecutive terms of twelve and one-half to twenty-five years on the conspiracy charge and three and one-half to seven years on the weapons charge.
As set forth below, all but one of Gonzalez's claims in this proceeding are unexhausted, but forfeited, and therefore procedurally barred from habeas review. Moreover, the sole remaining claim is meritless. Accordingly, the relief requested should be denied and the petition dismissed.
II. Procedural Background
A. State Proceedings
Following his conviction, Gonzalez appealed to the Appellate Division, First Department, on seven separate grounds. He alleged that (1) the prosecutor's summation deprived him of a fair trial, (2) the trial judge's improper conduct deprived the him of a fair trial, (3) the warrantless seizure of a gun from his person violated his Fourth Amendment rights, (4) the trial court deprived him of a fair trial by refusing to charge the jury on the possibility of multiple conspiracies, (5) the trial court improperly admitted prejudicial evidence of drugs possessed by a person not related to his case, (6) the trial court abused its discretion by not granting his motion to sever, and (7) his sentence was excessively harsh. (See Ex. C (Pet'r's Br. On Appeal)). On June 4, 1998, the Appellate Division, First Department, rejected all of the claims asserted by Gonzalez and his codefendants in a six-page opinion decision which unanimously affirmed their convictions. People v. Gonzalez, 251 A.D.2d 51, 673 N.Y.S.2d 669 (1st Dep't 1998).
References to "Ex." refer to the three-volume appendix of exhibits furnished to the Court by the Respondent.
By letter dated July 31, 1998, Gonzalez's counsel sought leave to appeal to the New York Court of Appeals. In that letter, counsel argued, without any recitation of case law, that Gonzalez was a low-level operative in the narcotics conspiracy and therefore suffered prejudice as a consequence of his joint trial. (Ex. F (letter dated July 31, 1998 from Daniel J. Doody, Esq., to Judge Carmen Beauchamp Ciparick)). In particular, Gonzalez's counsel focused on the admission of certain unspecified narcotics evidence and the prosecutor's closing argument as alleged sources of reversible error. (Id.). On November 24, 1998, the Court of Appeals denied Gonzalez's application for leave to appeal. People v. Gonzalez, 92 N.Y.2d 982, 683 N.Y.S.2d 763 (1998).
Gonzalez's petition indicates that he did not seek of writ of certiorari. Accordingly, his conviction became final on or about February 23, 1999. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (judgment is final following expiration of 90-day period to seek writ of certiorari from Supreme Court).
B. Habeas Proceeding
Gonzalez's habeas petition is dated October 15, 1999, and was received by this Court's Pro Se Office on December 22, 1999. (Pet. 2,7). The petition therefore is timely. See 28 U.S.C. § 2244(d)(1) (establishing one-year period in which to file habeas corpus proceeding following "the date on which the judgment became final").
Gonzalez evidently believed that his petition was untimely because it was filed more than one year after the Court of Appeals denied his application for leave to appeal. He therefore filed a "Motion Seeking Permission to Submit a Writ of Habeas Corpus Petition Out of Time." (Docket No. 3). As noted, that motion was unnecessary.
In his petition, Gonzalez reasserts four of the claims he previously advanced before the Appellate Division. More specifically, Gonzalez contends that he was denied a fair trial because of (1) prosecutorial misconduct during summation, (2) the Court's improper conduct, and (3) the Court's failure to charge the jury on the possibility of multiple conspiracies. (Pet. ¶¶ 12(A), (B), (D)). Gonzalez also alleges that the trial judge violated his Fourth Amendment rights by failing to suppress the weapon seized from his person. (Id. ¶ 12(C)). Only his prosecutorial misconduct claim was presented to the Court of Appeals.
III. Relevant Facts
A. Overview
The trial of Gonzalez's case lasted more than five months and generated an extensive transcript, most of which has not been furnished to the Court. The Court has, however, received from the Respondent copies of the indictment, (Ex. A), the parties' briefs on appeal, (Exs. C, D), and a transcript of counsels' summations and the trial court's charge (Ex. H). These documents set forth sufficient facts to resolve Gonzalez's petition.
B. Indictment
The case against Gonzalez arose out of an indictment in which he and twenty-three others were charged in fifty counts with having participated in a conspiracy to distribute cocaine and other narcotics in upper Manhattan through an organization, known as the "Gerry-Curl Gang," which was headed by co-defendant Rafael Martinez. (Ex. A). The Gerry-Curl Gang was alleged to have distributed those narcotics from a number of locations, including 550 West 157th Street. (Id. at 2-3).
In addition to the conspiracy charge, Gonzalez was named in three substantive counts charging him with Murder in the Second Degree (Count 25), Criminal Sale of a Controlled Substance in the First Degree (Count 44), and Criminal Possession of a Weapon in the Third Degree (Count 45), violations, respectively, of Sections, 125.25(1), 20.43(1), and 265.02 of the New York Penal Law.
C. Mapp Hearing
Prior to trial, Gonzalez made several applications, including a request for a Mapp hearing. (Ex. B). The sole witness at the Mapp hearing was Police Officer Thomas Kennedy of the 34th Precinct. (Ex. C at 5-6; see Ex. D at 10-12). According to Gonzalez, Officer Kennedy testified at the hearing that, on October 22, 1991, he responded to a radio transmission reporting that shots had been fired at 157th Street and Broadway by two male Hispanics, one of whom was wearing a blue jacket. (Ex. C at 5; see Ex. D at 10-11). When he arrived there, Officer Kennedy saw two Hispanic men leaning against an iron fence. (Ex. C at 5). The officer approached with his gun drawn, but at his side, and asked one of the men, later identified as Gonzalez, whether he had a gun. (Id.). After Gonzalez responded affirmatively, the officer patted him down, finding a .357 Magnum revolver in the small of his back. (Id.; see also Ex. D at 11).
See Mapp v.Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
At the conclusion of the hearing, Justice Snyder found Officer Kennedy's testimony credible. (Ex. C at 6). The court subsequently denied Gonzalez's suppression motion, reasoning that the circumstances would have justified a pat-down even if Gonzalez had not been asked about the gun. (Ex. D at 12).
D. Trial
The prosecution contended at trial that Gonzalez's role in the Gerry-Curl Gang was to remain on the street in the vicinity of 157th Street to guard several higher-level gang members. (Ex. D at 30) (collecting transcript cites). In keeping with this role, although several co-conspirators testified that Gonzalez was often on the street in the vicinity of gang leaders, there was "no testimony that he possessed, prepared, or sold drugs." (Ex. C at 7). Several co-conspirators did testify, however, that Gonzalez played a role in the murder of Jose Reyes, a neighborhood resident who was struggling to rid the area of drug dealers. (Ex. D at 54-57). According to their testimony, Gonzalez was paid $3,500 to kill Reyes. (Id.)
In addition, to the accomplice witnesses, Officer Kennedy testified at trial about his seizure of a revolver from Gonzalez. (Ex. C at 6). Detective Nixon Fredericks also testified about an occasion when Gonzalez allegedly acted as a steerer in connection with an undercover narcotics buy. (Id.)
Both Gonzalez and the Respondent agree that the trial was extremely contentious. (E.g., Ex. C at 23-30, Ex. D. at 208). Much of the heat was generated by Richard Giampa, the attorney for one of the lead defendants. Giampa later was suspended from the practice of law for a period of one year, in part because he was adjudged to be in criminal contempt for "intentionally, knowingly, and willfully engaging in disorderly, contemptuous, and insolent behavior in the immediate view and presence of the Court during the [trial of this case]." In re Giampa, 211 A.D.2d 212, 215, 628 N.Y.S.2d 323, 324 (2d Dep't 1995); see also People v. Gonzalez, 251 A.D.2d 51, 52, 673 N.Y.S.2d 669, 671 (1st Dep't 1998) (the trial transcript demonstrates that "Giampa's refusal to follow court rulings and his continued contemptuous and rude remarks to the Court, both outside and within the hearing of the jury, were strategic").
Mr. Giampa's summation was riddled with objections by the prosecutor, many of which were sustained. Some sense of the trial atmosphere can be garnered from Justice Snyder's remarks at the close of that summation. Out of the jury's presence, she stated that the summation was:
consistent with what I have said throughout the trial, that Mr. Giampa suffers from some kind of psychological impairment . . . I am not a psychologist, but I believe he is paranoid, total obsessive. I find that many of his arguments were not based on what occurred here.
(Ex. H (Tr.) at 11,240).
By comparison, the summation of Gonzalez's counsel, which followed directly after Mr. Giampa's, generated only one objection when counsel spoke about the sentences that several cooperators might face. In response, Justice Snyder delivered a brief cautionary instruction that these sentences were "the theoretical possibilities of an absolute maximum consecutive sentence." (Id. at 11,271). No exception was taken to that instruction. (Id.).
IV. Discussion
A. Exhaustion of Remedies
Pursuant to 28 U.S.C. § 2254(b)(1)(A) and (B), a habeas petition brought by a state prisoner ordinarily may not be granted unless the petitioner has exhausted all of the remedies available to him through the state courts, there is no state corrective process available to the petitioner, or circumstances render that process ineffective to protect the petitioner's rights. Gonzalez plainly had an effective process available to him through the state statutes governing appeals in criminal cases. Accordingly, to satisfy the exhaustion requirement with respect to a particular federal claim, Gonzalez must show that he "fairly presented" the claim to the state courts, see, e.g., Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865, 868 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438, 443 (1971), including the highest available state court. Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1995).
"A federal constitutional claim has not been fairly presented to the [s]tate courts, however, unless the petitioner has informed those courts of 'all of the essential factual allegations' and 'essentially the same legal doctrine he asserts in his federal petition.'" Strogov v. Attorney Gen. of N.Y., 191 F.3d 188, 191-92 (2d Cir. 1999) (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982)). It is not necessary that a federal constitutional claim be presented to the state courts in haec verba; rather, there are a number of ways in which a petitioner may present such a claim, including
(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, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194.
Gonzalez plainly has failed to exhaust his state court remedies with respect to his claims of improper conduct by Justice Snyder, unlawful search and seizure, and the failure to charge regarding the possibility of multiple conspiracies. Each of these claims was presented to the Appellate Division, First Department. (See Ex. C at 23-46). Thereafter, however, Gonzalez's appellate counsel failed to advance any of these claims in constitutional terms in his letter to the Court of Appeals. Thus, because his letter to the Court of Appeals did not "explicitly alert" the Court of Appeals to these issues, Gonzalez has failed to exhaust these claims. See Jordan v. Lefevre, 206 F.3d 196, 198-199 (2d Cir. 2000).
B. Gonzalez's Unexhausted Claims Are Procedurally Forfeited
A federal habeas court presented with unexhausted constitutional claims may either stay the petition or dismiss it without prejudice so that the petitioner can return to state court to pursue exhaustion. See Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120, 2130, 150 L.Ed. 251 (2001) (Souter, J.)(concurrence); cf. Zarvela v. Artuz, 254 F.3d 374, 380-81 (2d Cir. 2001) (discussing procedures applicable to "mixed" petitions containing both exhausted and unexhausted claims). In this case, however, as the Respondent correctly observes, this would be a futile exercise.
First, its clear that Gonzalez would not be able to raise any of his unexhausted claims at this juncture in a petition for state court collateral review. Pursuant to N.Y. Crim. Proc. L. § 440.10(2)(c), a defendant who has prosecuted a direct appeal may not subsequently seek collateral review of an issue that could have been raised on appeal but was not. See Bosset v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Accordingly, if Gonzalez were to return to state court, any application for collateral review of his claims regarding judicial misconduct, failure to charge multiple conspiracies, or unlawful search and seizure would have to be rejected on procedural grounds because Gonzalez failed to present these claims to the Court of Appeals (much less present them in constitutional terms) when he sought direct review. Similarly, because he failed to present these claims to the Court of Appeals in his first letter, Gonzalez can no longer file a second application in state court for leave to appeal. See id. (citing N.Y. Court Rules § 500.10(a)).
In these circumstances, because there has been a procedural default which bars further consideration of Gonzalez's claims in state court, federal habeas review is precluded unless Gonzalez can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law" or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). To make the latter showing, Gonzalez must demonstrate that he is "actually innocent." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
In his petition, Gonzalez has not made either of the required alternative showings, nor is there any reason to believe that such a showing could be made. Accordingly, the Court lacks jurisdiction to entertain Gonzalez's unexhausted claims.
C. Stone v. Powell Preclusion
Gonzalez's search and seizure claim is also barred from review for an additional reason. In Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed. 2d 1067 (1976), the Supreme Court held that where the state has afforded an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief. Accord, Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986).
In this Circuit, a petitioner claiming a denial of his Fourth Amendment rights may overcome the preclusive effect of Stone v. Powell only if "(a) . . . the state has provided no corrective procedures at all to redress the alleged fourth amendment violations;" or "(b) . . . the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Cappellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)).
Gonzalez cannot make either showing. Indeed, it is settled law that the state of New York has provided an adequate mechanism for criminal defendants to contest alleged Fourth Amendment violations in its courts. See Gates v. Henderson, 568 F.2d at 840. Moreover, Gonzalez availed himself of those procedures to challenge the admissibility of the gun seized from his person both in a pretrial Mapp hearing and as part of his direct appeal to the Appellate Division. Accordingly, because there has been no unconscionable procedural breakdown in this case, the Court is barred from considering Gonzalez's Fourth Amendment claim on federal habeas review.
D. Gonzalez's Prosecutorial Misconduct Claim is Arguably Exhausted
In his counsel's letter to the Court of Appeals, Gonzalez argued that he was deprived of an "impartial and fair trial" because the prosecutor's comments in summation, although possibly constituting "fair comment in response to the attack by Mr. Giampa, . . . was in no way fair comment to [his own attorney's] closing." (Ex. F at 1). The letter did not cite any federal cases in support of this contention. Gonzalez's brief before the Appellate Division with respect to the prosecutor's summation similarly relied exclusively on state court cases, none of which appear to rest on federal constitutional considerations. On this basis, the Respondent argues that this issue "was not fairly presented to the state courts as a federal constitutional claim." (Resp. Mem. at 15).
Although Gonzalez's letter to the Court of Appeals did not cite any federal case law, a claim of prosecutorial misconduct in summation is arguably within the mainstream of constitutional litigation. See Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986) (holding that a "claim of prosecutorial misconduct ha[s] sufficiently familiar federal constitutional implications" to fall under the fourth prong of Daye); see also Lugo v. Kuhlman, 68 F. Supp.2d 347, 367 (S.D.N.Y. 1999) (collecting cases). If so, the incorporation of that claim into Gonzalez's letter seeking leave to appeal may have been sufficient to exhaust his state court remedies. Accordingly, notwithstanding the Respondent's argument regarding exhaustion, I have considered the merits of Gonzalez's claim of prosecutorial misconduct in summation.
E. The Prosecutor's Summation Did Not Deprive Gonzalez of Fair Trial
To prevail on a claim of prosecutorial misconduct at trial, a habeas petitioner must establish that the conduct so infected the trial with unfairness that the petitioner was deprived of due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L.Ed.2d 144 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 645, 94 S.Ct. 1868, 1871, 1872, 40 L.Ed.2d 431 (1974). When the complaint arises out of a prosecutor's remarks during closing argument, the petitioner must show that the comments were so egregious as to violate his right to a fair trial. Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). This is a difficult threshold to meet because "both the 'prosecution and defense are entitled to broad latitude in the inferences they may suggest to the jury during closing arguments,' provided they do not misstate the evidence, refer to facts not in evidence, or express counsel's personal belief as to guilt or innocence." United States v. Smith, 778 F.2d 925, 929 (2d Cir. 1985) (quoting United States v. Suarez, 588 F.2d 352, 354 (2d Cir. 1978)).
In his brief to the Appellate Division, Gonzalez advanced a series of complaints about the prosecutor's summation, many of which related to instances in which the prosecutor was responding to arguments advanced by Mr. Giampa or other defense counsel. In her jury charge, however, Justice Snyder expressly instructed the jurors that "each defendant must be evaluated separately in terms of the evidence as to him. Each defendant must have his case viewed independently." (Ex. H at 11,568). The jury must be presumed to have followed these instructions. See, e.g., Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987); United States v. Pforzheimer, 826 F.2d 200, 205 (2d Cir. 1987) ("It is a fundamental proposition that a jury is presumed to follow the instructions of the trial judge."). Moreover, quite apart from this presumption, it is apparent that the jury actually did follow Justice Snyder's admonition in this case since it returned a verdict of "not guilty" on two of the four counts in which Gonzalez was named, including a murder count. I therefore have considered only those aspects of the prosecutor's summation which could arguably have adversely affected Gonzalez's own defense.
Gonzalez first complains about the prosecutor's comment at the outset of his summation that, "I'm not going to talk to you about Star Trek. I'm not going to read to you from fairy tales. I am not going to quote you literature at any length. I'm going to talk to you about the evidence." (Ex. H at 11,296). According to Gonzalez, this statement improperly ridiculed and misstated his defense. (Pet. ¶ 12(A)). In fact, the prosecutor's comment was directly responsive to other defense summations. For example, counsel for codefendant Medina-DeLeon had quoted from Lewis Carroll's Through the Looking Glass, in his summation, arguing that his client was being treated as unfairly as people in the Queen of Hearts' "pathetic" backwards justice system in which punishment preceded not only the trial, but the commission of the crime. (Ex. H at 11,087-88). Similarly, counsel for codefendant Rafael Martinez began his summation by quoting Khalil Gibran's sentiments concerning "the emotions of passion and the emotions of reason." (Id. at 11,127-29). Finally, counsel for codefendant Lorenzo Martinez referred to "Star Trek," noting that "in the distant future there is a procedure called a Vulcan mind where two people can share the same memory." (Id. at 11,014-15). Comments such as these plainly sought to demean the prosecutor and his witnesses. It is settled law, however, that "[w]hen defense counsel have attacked the prosecutor's credibility or the credibility of the government's agents, the prosecutor is entitled to reply with 'rebutting language suitable to the occasion.'" United States v. Praetorius, 622 F.2d 1054, 1060-61 (2d Cir. 1979) (quoting United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973)); accord, United States v. Thai, 29 F.3d 785, 807 (2d Cir. 1994); see also United States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995) (stating that prosecutor did not engage in misconduct when he characterized defendant's case as a "fairy tale" in his closing). In this instance, the prosecutor did no more than rebut specific observations that defense counsel had raised. Indeed, the defendants impliedly recognized as much since they failed to voice any objections whatsoever.
Gonzalez also objects that the prosecutor deprived him of a fair trial by alleging without any evidentiary basis that Jose Reyes, the murder victim, had worked hard in order "to be able to retire and to enjoy the simple pleasures of life [,] walking throughout his neighborhood [,] enjoying the building that he lived in, strolling the sidewalks of New York City, going to his sister's for dinner." (See Pet. ¶ 12(A); Ex. H at 11,291-92). The Respondent contends to the contrary that the prosecutor's statement is supported in the record. (See Resp.'s Mem. of L. at 18). The Court, of course, is unable to verify who is correct because the relevant transcript pages are not part of the record. Nevertheless, even if the prosecutor's comment went beyond the record, it in no way suggested a greater likelihood that Gonzalez was guilty. The nonprejudicial nature of the remark is further demonstrated by the failure of any defense counsel to object. Finally, it is clear that Gonzalez was in no way prejudiced by the remark because he was acquitted of the Reyes homicide. There consequently is no basis for Gonzalez's contention that this remark deprived him of a fair trial. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 243, 60 S.Ct. 811, 853, 84 L.Ed. 1129 (1940) ("If every remark made by counsel outside of the testimony were ground for reversal, comparatively few verdicts would stand.")
In his brief to the Appellate Division, Gonzalez also asserted that the prosecutor had improperly vouched for several witnesses. One such witness was Daniel "Rambo" Colon, a former gang member, who testified that Gonzalez shot Reyes. Insofar as relevant, the prosecutor's remarks, and defense counsel objections concerning Colon were as follows:
[Prosecutor]: . . . In certain respects he lied to you. He absolutely lied to you about his name. He was scrupulously honest in other respects.
[Defense Counsel]: Objection.
[Prosecutor]: "What did you see Roberto Gonzalez do on the block when you saw him? "I saw him there and he would carry a gun." Mr. Schwartz objected and the Judge asked, "Well, did you actually see him carrying a gun every day?" Rambo could have said, "Oh yeah, he showed it to me." But no, what does Rambo say? "No, I did not see him, I did not actually see his gun, I assumed." He was scrupulously honest as to Roberto Gonzalez with respect to that fact.
[Defense Counsel]: Objection.
[Prosecutor]: He never actually saw him with a gun. He just assumed it.
(Tr. 11,360).
Another witness for whom the prosecutor allegedly improperly vouched was Police Officer Gilmore, who apparently gave some testimony concerning the Reyes murder. Gonzalez complains the prosecutor made the following remarks concerning the officer's failure to preserve his records:
[Prosecutor]: "What do you think it says, that Rafael Martinez doesn't sell drugs, that Roberto Gonzalez didn't kill the old man? Come on.
[Defense Counsel]: Objection.
. . . . Couple of words about Jimmy Gilmore in his defense. He is not a villain, you know. He has been villified as the destroyer of paperwork, of important paperwork.
. . . . So what is Jimmy Gilmore supposed to do? He testified about what community policing was all about, making the community better, running sex education programs, Christmas toy programs, senior citizen programs.
. . . . — that his daily activity report does reflect — are you kidding me?
. . . . Jimmy Gilmore is not a phoney paper cop who will sit there and send all of his paperwork to his superior. "I am doing a great job, Boss. Here I am."
Jimmy Gilmore is an action cop, a cop who gets it done. He is not a villain.
(Id. at 11,329-32; Ex. C at 15-16). Arguments such as these, however, in no way suggested that the prosecutor possessed extrinsic evidence concerning the witness' truthfulness. Accordingly, they do not constitute improper vouching. See, e.g., United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) ("Prosecutors have greater leeway in commenting on the credibility of their witnesses when the defense has attacked that credibility."); United States v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992) (prosecutor may comment on the evidence, including demeanor); United States v. Ricco, 549 F.2d 264, 274 (2d Cir. 1977) (not improper vouching to argue that accomplice who signed cooperation agreement had no motive to lie); United States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975) ("A prosecuting attorney is not an automaton whose role in summation is limited to parroting facts already before the jury.")
Finally, in his appellate brief, Gonzalez also claimed that the prosecutor improperly instructed the jury in his summation as to presumption of innocence and the use of accomplice witness testimony. (Ex. C at 20-22). Significantly, both in his appellate brief and before this Court, Gonzalez has failed to explain the manner in which the prosecutor's statements misstated the law. In any event, even if the prosecutor did misspeak, in her charge Justice Snyder carefully instructed the jury that they were duty bound to follow the law as she explained it. (Ex. H at 11,571). Any contrary information that the prosecutor may have imparted to the jury on these issues plainly did not prejudice Gonzalez because the jury acquitted him on the murder count, despite proof which was based on the testimony of accomplice witnesses and not controverted by his own testimony.
As the Second Circuit has observed, "it is inevitable in a trial of this complexity and length and especially with extensive summations . . . that occupy more than 300 pages of the transcript, that claims of prejudice with respect to the prosecutor's summation would be raised." United States v. Bubar, 567 F.2d 192, 199 (2d Cir. 1976) (quoting United States v. Robinson, 543 F.2d 951, 964 (2d Cir. 1976)). None of the objections advanced by Gonzalez, however, suggests that his trial was so unfair as warrant the issuance of a writ of habeas corpus.
V. Conclusion
For the foregoing reasons, the relief requested by Gonzalez should be denied and his habeas petition dismissed. Furthermore, because Gonzalez has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
VI. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Deborah A. Batts, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N Y 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Batts. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).