Opinion
62-CV-2944 (JBW) 03-MISC-0066 (JBW)
October 3, 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 for attempted murder, attempted rape, sexual abuse, sodomy, kidnaping, assault, attempted assault, and other crimes in relation to the torture and sexual abuse of the complainant over a three-day period in February 1996 in petitioner's apartment.
The prosecution's case, as summarized in petitioner's brief on direct appeal, was the following;
At some point prior to the events at issue, the complainant, [a 13-year-old girl], lived with her aunt and the aunt's young children (249). Allegedly, the aunt placed [complainant] in a group home because she "refused therapy," changed her telephone number without notifying [complainant], and did not visit [complainant] in the group home (250). [Complainant], who denied physically or sexually abusing her aunt's children, ran away from the group home and stayed with friends in Brooklyn (109-112, 250).
It was through these friends that [complainant] met [Gordon], in December 1995. [Gordon], 20 years old, lived at 404 Columbia Street, apartment 2F. with her four children aged 1, 2, 4, and 5 (113). [Complainant] thought [Gordon] was "nice," and after several meetings moved in with her (114-115). [Gordon] had a two-bedroom apartment. Three of her children slept in one bedroom, and [Gordon] slept in the other bedroom with her youngest child. [Complainant] slept on a couch in the living room (115-116).
Around this lime two other people moved in. Co-defendant Joyner, 14 years old, became [Gordon]'S boyfriend, and he moved in shortly after [complainant] did (124-125). Joyner physically abused [Gordon], and she once called the police because he was throwing bottles at her window (310). Jeffrey Smith, 18, who lived with his grandmother, Maxine Purcell, in the apartment directly above [Gordon]'s, also moved in. Smith and [complainant] became intimate, and theirs was also a violent relationship (292). [Complainant] and [Gordon] discussed orders of protection, but neither of them ever pursued getting one (293).
At some point, Smith and [complainant] committed a robbery together. Pretending to have a gun, Smith took a coat and watch from a woman in her hallway, [Complainant] wore the coat, and she and Smith later sold it and the watch (121-123), [Complainant] could not explain why she had participated in the robbery, saying only that Smith had asked her to. For reasons unknown to [complainant], Smith moved back in with his grandmother three days before the incident at issue (125).
Another young man, 16-year-old Corey Holloway, periodically came by the apartment. Holloway "liked" [complainant], but she did not like him (119-20, 122).
Shortly after [complainant] moved in, [Gordon] accused her of inappropriately "touching" her children (126). [Complainant] denied the allegation, but [Gordon] spoke about it later that night, [complainant] again denied any wrongdoing, and [Gordon] said she believed her (126).
[Complainant] continued living with [Gordon] without incident until the night of February 20, 1996, when, so [complainant] claimed, [Gordon] got mad because [complainant] referred to [Gordon]'s age in front of Joyner (126-127). According to [complainant], [Gordon] did not want Joyner to know how old she was (129). [Complainant] testified that [Gordon], Joyner, and Holloway, who arrived later that night, physically and sexually abused her over the next two and a half days, [Complainant] said that [Gordon] repeatedly struck her with a metal pole, a broom, the strap and buckle of Joyner's belt, and empty alcohol bottles (130, 136-136), [Gordon] and Joyner "hogtied" [complainant] with wire, and Joyner, egged on by [Gordon], picked her up and dropped her on the floor several times (133, 135-136). They poured boiling water over her, and she slipped out of the wire because her skin was "peeling" off (137-141, 143-44). In an attempt to help [complainant], [Gordon] put butter on her burns (312). She also told [complainant] to take a shower because she was bleeding (145-146).
According to [complainant], when Holloway arrived, [Gordon] asked him if he wanted some "free ass," Saying, "she ain't want to give it to me before, so. yeah," Holloway put on a condom and fenced [complainant] to perform oral sex on him (147-149). He attempted to rape her but did not penetrate her (150), [Complainant] said that [Gordon], Joyner and Holloway anally sodomized her with a metal pole, and then forced the pole in her mouth (158-159). Then, Joyner and Holloway did "wrestling moves" on [complainant], "running into [her] with their knees and their elbows" (156). After Joyner and Holloway left the apartment briefly, [Gordon] stabbed [complainant] In the legs and arms with a knife, but the point was broken (182-183).
At approximately 1:00 a.m., Jeffrey Smith, intoxicated, arrived (184). After [Gordon] and Joyner told him that [complainant] had had sex with Holloway, Smith hit her in the face (185). Eventually Smith and Holloway left, and Joyner and [Gordon] told [complainant] to sleep on the bedroom floor (186). Although [complainant] did not want to stay there, Joyner had threatened to sic his dog on her, and Holloway said he was going to shoot her, so she complied (181-182). [Complainant] testified that [Gordon] had limited telephone service, but it was capable of reaching 911 (324).
For the next two days, [complainant] unwillingly remained in the apartment with [Gordon] and Joyner, although Joyner went out briefly (189, 191-192). The night before [complainant] escaped, [Gordon] and Joyner gagged her, tied her up and put her in a hall closet (192-193), They left the closet door open a crack, and [complainant] heard [Gordon] say that she was going to pour gasoline on [complainant] and set heron fire (195, 197).
At approximately 6:00 the following morning, [complainant] freed herself, went upstairs and knocked on Smith's apartment door (197-199). Smith's grandmother, Maxine Purcell, opened the door and let [complainant], whom she knew, in (199; Maxine Purcell: 470-471, 474). Purcell poured cold water on [complainant]'s burns, and Smith gave her juice and food (Purcell: 471-472), But [complainant] would not let Purcell call the police, allegedly out of fear of [Gordon] and Joyner, and two hours clapsed before Purcell eventually did so (Purcell: 473-474), 486, 491). Smith also did not want Purcell to call the police (Purcell: 505), He never told Purcell about his relationship with [complainant] (477).
After speaking with [complainant], the police went downstairs and spoke with [Gordon] and Joyner (Officer Efrain Rivera; 45-47; Officer Edwin Cesario; 512). Joyner appeared to Officer Cesario to be 18 or 19 years old (Cesario: 515). According to the officers, when Rivera asked [Gordon] where [complainant] was, [Gordon] said she was in the closet (Rivera: 48; Cesario: 516, 518), Rivera asked [Gordon] to show him, and [Gordon] walked "hesitantly" over to a closed door, [Gordon] did not respond when Rivera asked her to open the door, so he opened it (48). The closet was empty except for a wire hanging from the clothing bar and bloody clothing on the floor, and [Gordon] "stepped back in surprise" (Rivera: 49; Cesario: 518). [Gordon] and Joyner were arrested (50).
Detective Joseph LaMassa spoke with [Gordon] at the precinct (546). According to LaMassa, [Gordon] acknowledged that [complainant] had been living with her, that she had gotten upset after hearing that [complainant] had touched her children, and that she had poured boiling water on [complainant] (549-550).
In the hospital for almost one month, [complainant] had second and third degree burns over 11% of her body, as well as bruises, lacerations, scabs, and a loose and broken tooth (Dr. Edith Goldie; 384-391; [Complainant]: 214). [Complainant] was treated with intravenous fluids, antibiotics, oral contraception and morphine (364-367, 370, 384-39). Her burns were cleaned, and she received stitches, a skin graft, and physical therapy ([Complainant]: 215; Goldie: 374).
The wire and clothing taken from [Gordon]'s closet had human blood on it, as did the clothing [complainant] was wearing (forensic serologist Phyllis Martin; 527, 529-530, 532, 536, 539-540), No semen or other bodily fluids were recovered from these items (532-533). A "Vitulo" sexual assault evidence collection kit did not yield any bodily fluids (540-541).
Br. for Defendant-Appellant at 3-9. There were further gruesome details of the event that were testified to by prosecution witnesses but not detailed in petitioner's brief, For instant purposes her recitation of the prosecution's evidence is sufficient.
Petitioner testified in her own defense. She asserted that she believed the complainant was molesting her children. She claimed that she did not participate in any way in the sexual and physical abuse of the complainant, and that she in fact endeavored to aid the complainant and shield her from the abuse perpetrated by the other occupants of the apartment. It was suggested that the complainant minimized Smith's role in the attack and laid much of the blame on petitioner because the complainant wished to protect Smith and feared him.
Petitioner was acquitted of attempted first degree rape, first degree sodomy, and second degree attempted assault, She was convicted of first degree kidnaping, first degree assault, and second degree attempted assault. She was sentenced to a total of 15 years to life in prison.
Her conviction was affirmed by the Appellate Division on direct appeal. Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.
In her application for a writ of habeas corpus, petitioner claims that her conviction was against the weight of the evidence and that the prosecution failed to prove her guilt beyond a reasonable doubt.
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, babeas 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 slate 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 bane).
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 he 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 easel aw 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 U.S. 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 R3d 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 Appealability
A certificate of appealabilily 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 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.
VI. Analysis of Claims
Petitioner claims that her conviction was against the weight of the evidence and that the prosecution failed to prove her guilt beyond a reasonable doubt. This claim was presented to the state courts and is exhausted, The Appellate Division, however, rejected it on procedural grounds, stating that petitioner "failed to preserve this contention for appellate review, since she did not move to dismiss based on this contention," People v. Gordon, 728 N.Y.S.2d 478, 479 (App.Div. 2001) (citing section 470.05 of the New York Criminal Procedure Law, which states that a protest is sufficient to preserve a claim of error if "if the party made his position with respect to the ruling or instruction known to the court"). Under New York case law, "even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be `specifically directed' at the alleged error." People v. Gray, 652 N.E.2d 919, 921 (N.Y. 1995). It may be that the invocation of this state procedural ground under the instant circumstances was not sufficiently "adequate" to bar review of petitioner's claims on the merits in federal court, Cf. Cotto, 331 R3d at 241 (adequacy of procedural bar premised on New York's contemporaneous-objection rule must be assessed by looking to the particular application of the rule), Resolution of this vexing question is unnecessary, however, because the Appellate Division's alternative holding, rejecting petitioner's claim on the merits, was reasonable.
The Appellate Division, in affirming petitioner's conviction, stated,
In any event, viewing the evidence in the light most favorable 10 the People, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. There was evidence that the defendant would not allow the complainant to leave the apartment and that the defendant took various actions demonstrating an intent to harm the complainant, including pouring boiling water on her and striking her with a metal pole and liquor bottles. Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses. Us determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence.Gordon, 728 N.Y.S.2d at 479 (citations omitted).
To the degree petitioner claims that her guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction, Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir 1997), To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
As petitioner's own recitation of the evidence presented to the jury establishes, a reasonable juror could conclude that she was guilty of each element of each of the crimes of which she was convicted, The complainant's testimony was not incredible and was, in fact, supported by substantial physical evidence. Petitioner's sole defense was her testimony denying participation, claims that a reasonable juror could dismiss as incredible given that petitioner, by her own testimony, was not restrained by the other occupants of the apartment over the course of the three days during which the events transpired. Petitioner, in sum, asks this court to believe her testimony rather than the complainants and to construe all inferences in her favor. As the Appellate Division properly noted, credibility determinations are for the jury.
The Appellate Division's resolution of petitioner's claim was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. Habeas corpus relief is not warranted.
No other issue open to consideration by this court — such as petitioner's fleeting contention that counsel "could have done a better job" — 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").
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.
Brooklyn, N.Y.