Opinion
22 Civ. 4659 (VEC) (GWG)
04-12-2023
SECUNDA GUMBS, Plaintiff, v. TINA M. STANFORD, Defendant.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Secunda Gumbs brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Gumbs was convicted following a jury trial of two counts of Criminal Possession of a Weapon in the Second Degree. Gumbs was sentenced principally to five years of imprisonment, followed by a five-year term of post-release supervision. For the reasons that follow, Gumbs's petition should be denied.
See Petition for Writ of Habeas Corpus, filed June 3, 2022 (Docket # 1); Memorandum of Law in Support of Petition for a Writ of Habeas Corpus, filed June 3, 2022 (Docket # 3) (“Gumbs Mem.”); Answer in Opposition to Petition for a Writ of Habeas Corpus, filed Aug. 29, 2022 (Docket # 12) (“White Decl.”); Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed Aug. 29, 2022, annexed at *15 to White Decl. (“Opp. Mem.”); Reply Memorandum of Law in Support of the Petition for a Writ of Habeas Corpus, filed Sept. 28, 2022 (Docket # 14) (“Gumbs Reply”).
I. FACTS
In April 2015, police executed a search warrant at Gumbs's apartment. When police arrived, Gumbs was in the apartment along with two other individuals. While conducting the search, and without giving the warning required by Miranda v. Arizona, 384 U.S. 436 (1966), an officer asked Gumbs whether there was anything in the apartment. Gumbs Mem. at 7; Opp. Mem. at 2. Gumbs replied that “the guns were in the bedroom closet and everything else was in the kitchen.” Pretrial Tr. 10:15-16. When police searched the bedroom closet, they found a bag containing a Smith & Wesson revolver and a bag containing a 9-millimeter rifle. Tr. 36:2139:13. In the kitchen, officers found a “large quantity of marijuana,” scales, and 900 plastic bags. Tr. 340:2-342:8. They also recovered roughly $6400 in currency from various locations in the apartment. Tr. 47:19-25. There were two individuals present in the apartment - a friend and Gumbs's girlfriend - but neither was charged and their arrests were “voided.” Tr. 107:6108:15, 248:2-9.
“Tr. __” refers to pages of the transcript of the trial. The trial transcript is found in Docket # 3-1, at ECF pages *290-473. The trial transcript begins with page 816 (Docket # 3-1 at *290) and continues through page 857 (Docket # 3-1 at *331) before re-starting at page 1 (Docket # 3-1 at *332). All citations to transcripts reference the original page numbers, rather than the ECF numbers. “Voir Dire Tr.__” refers to pages of the transcript of the voir dire. The voir dire transcript is found in Docket # 3-2 at ECF pages *3-332; and Docket # 3-3 at ECF pages *3-489. “Pretrial Tr. __” refers to pages of the transcript of the pretrial hearings. The pretrial hearing transcript is found in Docket # 3-3 at ECF pages *491-525.
Before trial, the New York Supreme Court suppressed Gumbs's statement that “the guns were in the bedroom closet and everything else was in the kitchen” because the elicitation of the statement violated Miranda. Gumbs Mem. at 8; Opp. Mem. at 3. Because Gumbs was charged only with gun possession crimes, the trial court ruled that the marijuana, currency, and drug paraphernalia would not be admitted, Pretrial Tr. 117:4-14, and ruled that the prosecution could inquire as to the fact that currency was found and the amount recovered, but not the denominations involved, Pretrial Tr. 117:15-118:13. The Court also excluded evidence of Gumbs's convictions for past sales of marijuana. Pretrial Tr. 73:4-75:4.
At trial, Detective Adams testified consistent with the suppression and exclusion rulings. Thus, he testified regarding the guns and currency and that there were two other people in the apartment. Tr. 23:14-28:5, 33:23-44:4. He testified he recovered two firearms and ammunition from the bedroom closet: one in a shaving kit bag, the other in a black gym bag. Tr. 36:22-37:5, 39:19-40:18. He also testified that there was men's clothing hanging in the same closet where the guns were found and estimated that the clothing would fit Gumbs. Tr. 45:16-46:9.
Another officer testified that Gumbs asked at the police station about the quantity of money that was recovered, and told the officer that police “got all of it.” Tr. 125:24-126:10.
During the cross-examination of Adams, defense counsel questioned Adams in detail about the search. For example, he elicited that the guns were never examined for fingerprints although Gumbs himself was fingerprinted. Tr. 106:15-107:5. He also asked Adams about the other individuals in the apartment and elicited the fact that the two individuals were not searched and were never charged. Tr. 100:5-101:25, 107:6-108:11.
At that point, the prosecution asked to approach the bench and argued out of hearing of the jury that the questioning about the two individuals “opened the door” to the prosecution eliciting Gumbs's un-Mirandized statement about the guns. Tr. 109:17-23. The trial court found that this questioning “raise[d] a question in everybody's mind” about why Gumbs alone was arrested, Tr. 113:10-16, and after argument and a hearing on voluntariness, the trial court ruled that the statement about the guns could be elicited on re-direct. Tr. 155:19-157:23. The prosecution then elicited from Adams that Gumbs “stated that the firearms were in the bedroom closet.” Tr. 163:12-16.
Prior to the admission of this un-Mirandized statement, Gumbs's counsel had repeatedly stated to potential jurors that it was unlikely Gumbs would choose to testify in his own defense. See Voir Dire Tr. 708:22-23, 709:13-14, 785:7-8 (“During the course of this litigation, in all probability I'm quite sure Mr. Gumbs will not testify”; “Mr. Gumbs has no obligation to testify, and I'll tell you now I don't think he will testify”; “I tell you now, Mr. Gumbs will not testify. It's his litigation, you will not hear him.”). Similarly, in his opening statement, counsel stated that “in the present posture of this case Mr. Gumbs will not testify. It's not a hundred percent guaranteed, but it looks very much like he will not testify.... That is his decision, perhaps with my guidance, that he not testify.” Tr. 10:7-19. After the prosecution had rested, however, defense counsel informed the court that “Mr. Gumbs will testify during the course of this trial. He's come to that conclusion. It's his decision. I'm bound by what he wants to do and, as his attorney, I am advising the court and the People that Mr. Gumbs will testify.” Tr. at 210:5-9.
Gumbs subsequently testified. Tr. 239-306.
In his testimony, Gumbs insisted that he was not aware of the bags in which the guns were found before they were located by police, Tr. 249:19-250:19, and that he had never possessed the firearms found in his closet, Tr. 250:22-251:6, 259:11-14. Gumbs also testified that he never gave the un-Mirandized statement. Tr. 252:22-24. The trial judge then ruled that Gumbs's testimony had opened the door to an otherwise inadmissible statement during a proffer session in which Gumbs acknowledged ownership of the guns. See Tr. 260:19-261:4, 337:2123.
Gumbs also testified that he had “supported [him]self through legal means,” Tr. 243:2325, which the trial judge ruled had opened the door to evidence of the previously excluded prior convictions for the sale of marijuana, as well as the actual marijuana that was found his home. Tr. 264:3-268:4, 327:16-328:22. Gumbs also testified regarding his relationship with the woman present in the apartment at the time of the arrest, Tr. 259:3-10, which the court ruled opened the door to questioning regarding a conviction for criminal obstruction of breathing or blood circulation, Tr. 263:5-11. On cross-examination, the prosecution questioned Gumbs regarding each of the above. Tr. 277:14-278:14, 286:14-289:3, 290:14-291:16.
On rebuttal, the prosecution presented Assistant District Attorney Tara Lynn Diener, who testified that Gumbs told her in a proffer session that the guns “were in the apartment and they were his.” Tr. 361:11-14.
The jury convicted Gumbs on both counts of criminal possession of a weapon. Gumbs Mem. at 14. Gumbs was sentenced to a five-year term of imprisonment, followed by five years of supervised release. Id.
Gumbs appealed his conviction, challenging, inter alia, the admission of his un-Mirandized statement. Id.; Opp. Mem. at 13. The New York Appellate Division affirmed, finding in relevant part:
First, defendant elicited that although the police arrested him and the other two persons who were in his apartment at the time a search warrant was executed, the arrests of the other two were voided. The court providently exercised its discretion in finding that this testimony opened the door to defendant's suppressed statement to the police in the apartment as to the location of the two illegal weapons he was charged with possessing. The testimony elicited by defendant suggested that the police had no apparent reason for releasing the other two people and singling out defendant.... In any event, we find that any error in the above-discussed matter[] was harmless in light of the overwhelming evidence of guilt. The evidence included, among other things, an undisputedly admissible statement, resulting from a proffer agreement, that amounted to a full confession.People v. Gumbs, 195 A.D.3d 450, 450-51 (1st Dep't 2021) (citations omitted).
In June 2021, Gumbs sought leave to appeal the Appellate Division's ruling. Gumbs Mem. at 15. On August 24, 2021, the New York Court of Appeals denied Gumbs leave to appeal. Id. In September 2021, Gumbs moved for reconsideration. Id. On October 5, 2021, the Court of Appeals denied the motion, but granted leave to renew pending the United States Supreme Court's decision in Hemphill v. New York, 142 S.Ct. 681 (2022). Id. Gumbs renewed the request in March 2022, see id., and it was denied on May 6, 2022. Id. at 15-16.
II. LEGAL STANDARD FOR PETITIONS BROUGHT UNDER 28 U.S.C. § 2254
A petition for a writ of habeas corpus may not be granted with respect to any claim that has been “adjudicated on the merits” in state court unless the state court's adjudication:
(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).
For a claim to be “adjudicated on the merits” within the meaning of § 2254(d), it must “finally resolv[e] the parties' claims, with res judicata effect,” and it must be “based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). As long as “there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds,” a claim will be considered “adjudicated on the merits” even if the state court fails to mention the federal claim and cites no relevant federal case law. Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001); accord Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”); id. at 98 (section 2254(d) deference applies even “[w]here a state court's decision is unaccompanied by an explanation”). Thus, a court must “extend considerable deference even to deficient reasoning, at least in the absence of an analysis so flawed as to undermine confidence that the constitutional claim has been fairly adjudicated.” McCray v. Capra, 45 F.4th 634, 640 (2d Cir. 2022) (citation and punctuation omitted).
A state court decision is “contrary to” clearly established federal law only “if the state court applies a rule that contradicts the governing law set forth” in Supreme Court precedent or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives” at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Habeas relief is available under the “unreasonable application” clause only “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. A federal court may not grant relief “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the state court's application must have been unreasonable - a standard that is met only “where there is no possibility fair[-]minded jurists could disagree that the state court's decision conflicts with” Supreme Court precedent. Harrington, 562 U.S. at 102; see also id. (“[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). In other words, to demonstrate an “unreasonable” application of Supreme Court law, the habeas petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair[-]minded disagreement.” Id. at 103; see also Woods v. Donald, 575 U.S. 312, 318-19 (2015) (per curiam) (habeas relief available only where there is an “extreme malfunction” by the state court in applying Supreme Court precedent) (citation and internal quotation marks omitted).
The “determination of whether a court has unreasonably applied a legal standard depends in large measure on the specificity of the standard in question.” Brisco v. Ercole, 565 F.3d 80, 89 (2d Cir. 2009). “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations” inasmuch as the application of a general standard to a specific case “can demand a substantial element of judgment.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Thus, “where the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Woods, 575 U.S. at 318 (citation, brackets, and internal quotation marks omitted); accord Brisco, 565 F.3d at 90 (a court applying a “fact-dependent standard . . . to the facts of a specific case is . . . entitled to significant ‘leeway' when [a habeas court] review[s] its decision for reasonableness”) (quoting Yarborough, 541 U.S. at 664). “It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Harrington, 562 U.S. at 101 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). In assessing this question, “it is the habeas applicant's burden to show that the state court applied [Federal law] to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“The petitioner carries the burden of proof.”).
Only holdings of the Supreme Court are considered for purposes of determining clearly established federal law. Rodriguez v. Miller, 537 F.3d 102, 106 (2d Cir. 2008). Thus, “[n]o principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief.” Id. at 106-07. Where there is “[n]o holding” from the Supreme Court on the question presented, Carey v. Musladin, 549 U.S. 70, 77 (2006), or where Supreme Court cases “give no clear answer” to the question presented in the petition, Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam), a state court's decision can be neither contrary to nor an unreasonable application of clearly established federal law, see Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.”) (citations and internal quotation marks omitted).
In habeas proceedings, “a determination of a factual issue made by a State court shall be presumed to be correct” and must be rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1). Further, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. 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, 67-68 (1991) (citation omitted).
III. DISCUSSION
We begin by noting that Gumbs was under post-release parole supervision at the time the petition was filed, see Opp. Mem. at 1; Gumbs Reply at 19 n.3, and thus was “in custody” within the meaning of 28 U.S.C. § 2254(a). See Webster v. Himmelbach, 271 F.Supp.3d 458, 469 (W.D.N.Y. 2017) (“[a]n individual on probation or parole is ‘in custody' for purpose of federal habeas corpus proceedings”) (citing Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006)). While his parole term has since expired, see Opp. Mem. at 1; Gumbs Reply at 19 n.3, thus raising the issue of potential mootness, there is a presumption that potential collateral consequences from a conviction are sufficient to obviate mootness even after release from custody as long as the habeas petition challenges a conviction (as opposed to a sentence). See, e.g., U.S. v. Probber, 170 F.3d 345, 348 (2d Cir. 1999) (“In cases involving a challenge to a criminal conviction, the [Supreme] Court has been willing to presume the existence of collateral consequences sufficient to satisfy the case-or-controversy requirement”); Burch v. Millas, 663 F.Supp.2d 151, 157 (W.D.N.Y. 2009) (“collateral consequences are presumed to flow from a felony conviction . . . such that petitioner's release from custody does not moot the habeas petition”); accord United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999) (“In cases involving a challenge to the criminal conviction itself, the Supreme Court has been willing to presume the existence of collateral consequences[.]”) (punctuation omitted). The respondent has not sought to overcome this presumption and thus we find the petition is not moot.
We turn next to the merits of the petition.
A. Admissibility of the Un-Mirandized Statement
Gumbs argues that the court's decision to admit his un-Mirandized statement was contrary to, or involved an unreasonable application of, clearly established Supreme Court law. Gumbs Mem. at 19-32. He argues that the Miranda exclusionary rule is subject to only one exception: that which allows for the use of un-Mirandized statements to impeach a testifying defendant, as stated in Harris v. New York, 401 U.S. 222, 225 (1971). See id. at 21. Gumbs argues that because he did not take the stand prior to the admission of the un-Mirandized statement, no exception existed to the exclusionary rule, and the admission of the statement was contrary to Harris. Id. at 28. The State counters that there are numerous exceptions to Miranda and that the admission was proper under the “open door” doctrine. Opp. Mem. at 20-24.
The Supreme Court in Miranda held that before a statement made during a custodial interrogation could be used against a defendant, the defendant had to be informed of his Fifth Amendment rights and thereafter freely decide to forgo those rights. 384 U.S. at 498-99. Miranda rejected the proposition that “society's need for [unwarned] interrogation outweighs the privilege,” concluding that the Fifth Amendment “has prescribed the rights of the individual when confronted with the power of government” and that “[t]hat right cannot be abridged.” Id. at 479. Several years after Miranda, Harris considered whether a defendant may be impeached with his own un-Mirandized statement. Harris held that there existed an exception to the rule announced in Miranda, which permitted the use of an un-Mirandized statement to impeach a defendant. 401 U.S. 222, 226 (1971). As part of its analysis, Harris balanced the importance of allowing a jury to assess a defendant's credibility with the possibility that “impermissible police conduct will be encouraged” by the use of such a statement, and found that the balance required an exception to the Miranda rule. Id. at 225-26.
Gumbs argues that the use of a statement to contradict a testifying defendant, as expressed in Harris, is the “single exception” to Miranda, Gumbs Mem. at 30, while the respondent cites several cases which it asserts have “recognized multiple exceptions to the exclusionary rule.” Opp. Mem. at 23. The respondent cites Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990), for the proposition that “responses to ‘routine booking' questions are exempt from Miranda, ” and South Dakota v. Neville, 459 U.S. 553, 564 (1983), for the proposition that a defendant's refusal of blood alcohol testing “enjoys no prophylactic Miranda protection.” See Opp. Mem. at 23. Both these cases, however, address whether certain types of communications are protected by Miranda in the first place. See Muniz, 496 U.S. at 601 (“[Defendant's] statements were not prompted by an interrogation within the meaning of Miranda, and therefore the absence of Miranda warnings does not require suppression of these statements at trial.”); Neville, 459 U.S. at 564 (“[A] refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.”). They are not exceptions to the exclusionary rule expressed in Miranda.
Another case cited, New York v. Quarles, 467 U.S. 649 (1984), see Opp. Mem. at 24, announced a “public safety” exception to Miranda's warning requirement in a situation where a defendant had not yet been arrested and the officer needed to determine the whereabouts of a gun. 467 U.S. at 655-56. This case, however, does not support the action that took place in Gumbs's case because the absence of an arrest in Quarles involves circumstances so far removed the facts of Gumbs's case that Quarles cannot be said to “appl[y]” to Gumbs's case. 28 U.S.C. § 2254(d). The same is true of the remaining case cited by the respondent, Michigan v. Tucker, 417 U.S. 433 (1974), see Opp. Mem. at 24, which considered only how the fruits of un-Mirandized statements could be used. See 417 U.S. at 450-52 & n.25.
Moreover, all of the cases cited are inapposite because they did not reflect any decision allowing a statement that had already been suppressed to be used at trial for any purpose. Instead, they involved determination of whether a statement should be suppressed to begin with.
For his part, Gumbs correctly points to numerous Supreme Court cases that have “expressly rejected any expansion” of the exclusionary rule past what Harris allowed. Gumbs Mem. at 23. United States v. Havens, 446 U.S. 620 (1980), summarized Supreme Court jurisprudence as holding that un-Mirandized statements are inadmissible when offered by the government as “substantive evidence of guilt.” Id. at 628. James v. Illinois, 493 U.S. 307 (1990), explicitly rejected the expansion of any impeachment exception to Miranda beyond those cases where the defendant himself testifies. Id. at 318 (“[E]xpanding the impeachment exception to all defense witnesses would significantly enhance the expected value to the prosecution of illegally obtained evidence.... The prosecutor's access to impeachment evidence would not just deter perjury; it would also deter defendants from calling witnesses in the first place, thereby keeping from the jury much probative exculpatory evidence.... It is thus far more than a speculative possibility that police misconduct will be encouraged by permitting such use of illegally obtained evidence.”). In James, the Court explained that “[s]o long as we are committed to protecting the people from the disregard of their constitutional rights during the course of criminal investigations, inadmissibility of illegally obtained evidence must remain the rule, not the exception.” Id. at 319 (punctuation omitted). In other words, James recognized that un-Mirandized statements are simply inadmissible absent a valid exception. Lower courts have recognized the import of James. See, e.g., United States v. Louangamath, 2021 WL 5989756, at *6 (E.D. Cal. Dec. 17, 2021) (evidence obtained in violation of Miranda “may be introduced only if [defendant's] direct testimony opens the door, that is, if [defendant] makes a statement on direct examination that directly contradicts the illegally obtained evidence”) (citing United States v. Whitson, 587 F.2d 948 (9th Cir. 1978)); Koon v. Rushton, 2007 WL 2903945, at *8-9 (D.S.C. Aug. 7, 2007) (interpreting James and Havens to require “that the defendant must have opened the door by offering perjurious testimony either on direct or cross, which all but necessitates the introduction of inadmissible evidence to expose it”).
The respondent's central argument is that Supreme Court law permits otherwise inadmissible evidence to be introduced where a defendant “open[s] the door” to the admission of such evidence, Opp. Mem. at 20, an outcome available under New York law. See People v. Fardan, 82 N.Y.2d 638, 646 (1993) (“when the defendant or a witness for the defense testifies to facts that are in conflict with the precluded evidence....the defense ‘opens the door' on the issue in question, and the witness is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence.”) (collecting cases). The respondent thus proposes that the law governing this case are those decisions that have applied the “open door” doctrine for suppressed evidence. Opp. Mem. at 20-21. The problem with this argument, however, is that the Supreme Court has not articulated a general doctrine of “door opening” that can be said to allow the admission of un-Mirandized statement.
The Supreme Court has addressed the effect of “door opening” on the admissibility of a suppressed statement in a line of cases that began with Walder v. United States, 347 U.S. 62 (1954). Walder held that a defendant “must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce[,] by way of rebuttal[,] evidence illegally secured by it, and therefore not available for its case in chief.” Id. at 65. And, as we have already noted, Harris represented an application of the “door opening” principle in its holding that a testifying defendant's “credibility [may be] appropriately impeached by use of his earlier conflicting statements.” 401 U.S. at 226. In James, the Supreme Court was asked to expand Harris to all defense witnesses, rather than just the testifying defendant, but the Supreme Court refused to do so, stating that such an expansion would “significantly undermine the deterrent effect of the general exclusionary rule.” 493 U.S. at 313-14. James summarizes the Harris rule as follows: “evidence that has been illegally obtained . . . is inadmissible on the government's direct case, or otherwise, as substantive evidence of guilt.” Id. at 313. James thus provides direct support for the petitioner's position.
Case law from lower courts further supports the notion that the impeachment exception in Harris is narrow and does not extend to the facts of Gumbs's case. See, e.g., United States v. Hinckley, 672 F.2d 115, 134 (D.C. Cir. 1982) (rejecting an argument that the Harris exception should be extended to rebutting defense theories as defendant's “testimony by proxy,” reasoning that “[a]ll defense testimony is in a sense testimony by proxy.”); Louangamath, 2021 WL 5989756, at *6 (evidence obtained in violation of Miranda “may be introduced only if [defendant's] direct testimony opens the door, that is, if [defendant] makes a statement on direct examination that directly contradicts the illegally obtained evidence”) (citing United States v. Whitson, 587 F.2d 948 (9th Cir. 1978)); People v. Trujillo, 49 P.3d 316, 321 (Colo. 2002) (en
ORDER banc) (“Unlike involuntary custodial statements, voluntary unwarned custodial statements may be admissible at trial to impeach the defendant. This is the only judicially recognized purpose for which the defendant's unwarned but voluntary statements may be used.” (emphasis added) (citations omitted)); State v. Brooks, 173 Wis.2d 308, 308 (Ct. App. 1992) (“[T]he James holding cannot be overcome by the ‘opening the door' rule. The James Court made its holding as a matter of constitutional protection. Where a constitutional protection is set forth by the United States Supreme Court, rules of evidence must defer.”); see also United States v. Stuckey, 317 Fed.Appx. 48, 50 (2d Cir. 2009) (Where defendant's un-Mirandized statements “were nonetheless admitted at trial on the theory that [defendant's] counsel had presented a defense that [defendant] did not have knowledge of his possession of [a] gun and ammunition, and thereby ‘opened the door' to such evidence to the contrary” the government “concede[d] that these statements were admitted in error” because “[defendant] did not testify, and his statements therefore were not admissible . . . inasmuch as they were not being used to impeach his testimony.”) (citing James, 493 U.S. at 312-20); United States v. Douglas, 525 F.3d 225, 248 (2d Cir. 2008) (“[Statements taken from a defendant in violation of his Miranda rights . . . may not be introduced by the government during its case-in-chief.”).
The respondent argues that the Supreme Court's recent decision in Hemphill v. New York, 142 S.Ct. 681 (2022), allows state courts to apply a “balancing test” with regard to the exclusionary rule, and that the trial court properly did so here. Opp. Mem. at 25. Hemphill, however, addressed the applicability of New York's “open door” doctrine to statements inadmissible under the Confrontation Clause, not statements suppressed under Miranda. 142 S.Ct. at 686. In Hemphill, the Supreme Court noted that, while “substantive guarantees” of the Constitution are not subject to exceptions, “deterrent sanctions” may be subject to a “balancing test.” Id. at 692. The State construes this to mean that New York was entitled to “employ[] a balancing test in concluding that petitioner opened the door to the admission of his un-Mirandized statement.” Opp. Mem. at 25-26. But Hemphill referred not to a continuing privilege of states to “balance” relevant considerations, but rather to the Court's own past “balancing tests” employed in cases such as Kansas v. Ventris, 556 U.S. 586 (2009), Harris, and Walder. See Hemphill, 142 S.Ct. at 692 (“Because the prophylactic exclusionary rule is a ‘deterrent sanction' rather than a ‘substantive guarantee,' the Court applied a balancing test to allow States to impeach defendants with the fruits of prior Fourth Amendment violations, even though the rule barred the admission of such fruits in the State's case-in-chief.”) (emphasis added). That is to say, the Supreme Court's decisions in Harris and James already reflect the appropriate balancing of interests, and Hemphill does not purport to allow states to re-assess that balance.
The Court's holding in James essentially resolves the issue. If the truth-seeking function of trial is adequately served by allowing defendants who have given un-Mirandized statements to testify while “carefully avoiding” statements that “directly contradict the suppressed evidence” without opening the door to that evidence, James, 493 U.S. at 314, certainly factually accurate but incomplete statements elicited from a prosecution witness would also not open the door to admission of un-Mirandized statements. Any holding to the contrary would also run afoul of Walder's holding that a defendant “must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce[,] by way of rebuttal[,] evidence illegally secured by it, and therefore not available for its case in chief.” 347 U.S. at 65. Moreover, defense counsel's questioning did not even elicit anything that was a “direct[] contradict[ion]” to Gumbs's statement that “the guns were in the closet”; rather, the trial court found that counsel's questioning “raise[d] a question in everybody's mind” that the suppressed statement was necessary to answer. See Tr. 113:8-16.
The respondent cites United States v. Ouedraogo, 824 Fed.Appx. 714 (11th Cir. 2020); United States v. Seideman, 485 Fed.Appx. 190 (9th Cir. 2012); United States v. Hallock, 545 Fed.Appx. 545 (9th Cir. 2011); and United States v. Villegas, 655 F.3d 662 (7th Cir. 2011), for the assertion that “this principle [of opening the door] has been recognized by . . . federal circuit courts.” Opp. Mem. at 21. None of these cases deals directly with the admission of un-Mirandized statements that had been suppressed under the exclusionary rule. Ouedraogo allowed the admission of “pre-Mirandized” statements to rebut the defense's “attempt[] to characterize [defendant] as cooperative.” 824 Fed.Appx. at 723. The “pre-Mirandized” statements in Ouedraogo, however, were not suppressed prior to trial, and the appellate court made reference to cases allowing defendant to “open the door” to evidence suppressed under evidentiary rules, not the Miranda exclusionary rule. Id. at 716 n.1; see id. at 723 (referring to rules prohibiting “extrinsic evidence of a defendant's state of mind” (citing United States v. West, 898 F.2d 1493, 1499-1500 (11th Cir. 1990))). Seideman found that “[t]he district court did not err by warning [defendant] that certain questions suggesting that law enforcement failed to pursue other suspects could open the door to testimony about [defendant's] suppressed confession.” 485 Fed.Appx. at 193 (9th Cir. 2012). Seideman provides no description of why this evidence was initially suppressed, and the case it cites refers to suppression under Bruton v. United States, 391 U.S. 123 (1968), not Miranda. See id. (citing United States v. Cruz-Diaz, 550 F.3d 169, 175-76 (1st Cir. 2008)). Hallock found that “[t]he admission of [an agent's] testimony was not plainly erroneous because defense counsel asked questions that [the agent] could not truthfully answer without referring to [defendant's] suppressed statements.” 454 Fed.Appx. 545, 547 (9th Cir. 2011) (citing United States v. Beltran-Rios, 878 F.2d 1208, 1221 (9th Cir. 1989)). The case cited for this proposition, however, relates to the exclusion of criminal profiles, not un-Mirandized statements, see United States v. Beltran-Rios, 878 F.2d 1208, 1221 (9th Cir. 1989) (“[W]e previously have allowed the Government to introduce otherwise excludable testimony when the defendant ‘opens the door' by introducing potentially misleading testimony....This type of rebuttal testimony may include criminal profile testimony.”), and Hallock makes no reference to Miranda. 454 Fed.Appx. 545. Finally, Villegas makes no mention of Miranda, but rather allowed the prosecution to inquire into prior convictions, hearsay evidence, and codefendant conversations where cross-examination of a prosecution witness “related specifically to what was initially left out of the trial” and thus opened the door to the evidence out of concern that “the jury was left with an incomplete picture” of the case. 655 F.3d 662, 673 (7th Cir. 2011). Thus, none of the cases cited by respondent supports the principle that a non-testifying defendant may “open the door” to properly suppressed un-Mirandized statements through crossexamination of a witness.
For the foregoing reasons, the state court's admission of Gumbs's un-Mirandized statement was contrary to and represented an unreasonable application of clearly established Supreme Court law.
B. Harmless Error
As was recently articulated in Krivoi v. Chappius, 2022 WL 17481816 (2d Cir. Dec. 7, 2022), a court
review[s] a state-court merits determination of harmless error under a two-part standard. The first of these tests was laid out by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619 (1993). Under Brecht, when a state court has found a constitutional violation to be harmless beyond a reasonable doubt (by applying the harmless error standard from Chapman v. California, 386 U.S. 18 (1967)), a habeas petitioner must show that an error had a “substantial and injurious” effect
or influence on the jury's verdict. Brecht, 507 U.S. at 622-23 (internal quotation marks omitted). The Supreme Court recently held that, in addition to the Brecht standard, federal courts must apply the AEDPA standard laid out in § 2254(d)(1). Brown v. Davenport, 142 S.Ct. 1510, 1520 (2022). In other words, [the petitioner] must prevail under the Brecht “substantial and injurious” standard, and he must show that the state court's harmless error determination was an unreasonable application of federal law as determined by the Supreme Court (i.e., that the state court's harmless error determination was an unreasonable application of Chapman).Id. at *3.
We will begin by addressing whether the state court's decision was an unreasonable application of Chapman. We then address whether the Brecht standard has been met.
1. Appellate Division's Harmless Error Analysis
The Appellate Division ruled in the alternative that “any error . . . was harmless in light of the overwhelming evidence of guilt.” 195 A.D.3d at 451. Because the state court found that the error in Gumbs's case was harmless, we must assess whether the “state court act[ed] contrary to or unreasonably applie[d] [the Supreme] Court's preexisting and clearly established rules.” Brown, 142 S.Ct. at 1530. In other words, we must examine whether “every fair[-]minded jurist” would reach a different conclusion than the state court did when applying the same legal principle. Id.
The legal principle at issue is the Chapman standard. Chapman requires that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24. It also expressed this standard as requiring the court to determine “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Id. Although the Appellate Division's decision here does not cite Chapman directly, see People v. Gumbs, 195 A.D.3d at 451, it cites People v. Crimmins, 36 N.Y.2d 230 (1975), a New York state case that applied Chapman. 36 N.Y.2d at 237. Crimmins required the Appellate Division to find “that there is no reasonable possibility that the error might have contributed to defendant's conviction,” id., - the very test cited with approval in Chapman, 386 U.S. at 24. In its harmless error analysis, the Appellate Division determined that “any error . . . was harmless in light of the overwhelming evidence of guilt.” 195 A.D.3d at 451. The entirety of the Appellate Division's analysis of the harmless error issue was as follows: “The evidence included, among other things, an undisputedly admissible statement, resulting from a proffer agreement, that amounted to a full confession.” Id.
The respondent argues that any error was harmless because the evidence against Gumbs was “overwhelming.” Opp. Mem. at 30. In making this argument, the respondent relies on the fact that Gumbs ultimately testified, id. at 30, and on the fact that his testimony ultimately resulted in a proffer statement being admitted in which Gumbs admitted to possession of the guns, id. at 28. In the respondent's view, “nothing in the court's ruling required [the defendant] to testify, and certainly the court's ruling did not require him to lie on the stand and thereby open the door to a bevy of impeachment material.” Id. Instead, the petitioner “could have declined to testify and then challenged the court's door-opening ruling on appeal.” Id. Accordingly, the “Court must evaluate the petitioner's claim on the full trial record” and not on the record as it existed at the time the ruling on the un-Mirandized statement was made. Id. at 28-29.
The petitioner argues that the admission of the un-Mirandized statement “resulted in compounding downstream prejudice to Mr. Gumbs' defense, as he was then required to take the stand - which his counsel repeatedly advised the jury he would not do.” Gumbs Mem. at 34. Petitioner argues that without the defendant's testimony and without the un-Mirandized statement, the evidence against Gumbs was “wholly circumstantial” and “flimsy” inasmuch as it required the jury to “infer, beyond a reasonable doubt, that because the guns were in an apartment where Mr. Gumbs resided with two other people, he must have known [the guns] were present.” Id. at 33-34.
In other words, Gumbs does not argue that the Appellate Division wrongly assessed the harmfulness of the admission of the un-Mirandized statement against the totality of evidence presented - i.e., with the proffer (and thus Gumbs's “full confession”) included - as the Appellate Division did. Instead, Gumbs argues that the Appellate Division should have ignored this evidence because the admission of the un-Mirandized statement during the prosecution's case-in-chief “forced” Gumbs to take the stand, which he otherwise would not have done. Id. at 14; accord id. at 34. And once Gumbs took the stand, the admission of the proffer agreement inevitably followed (along with admission of other prejudicial evidence, such as Gumbs's prior drug sales and the marijuana found in the apartment). See id. at 14, 34-36.
We begin by observing that the prosecution's case without the un-Mirandized statement or any of the subsequent “downstream prejudice,” such as the proffer statement and the evidence of drug dealing, was not necessarily “flimsy” and did in fact provide significant evidence that the guns belonged to Gumbs. There was uncontroverted testimony that ammunition and two firearms, one of which was loaded, were found in the closet of Gumbs's apartment, which also contained clothing that police estimated would fit Gumbs. Tr. 34:10-14, 40:10-42:21, 45:1646:9. Only Gumbs was listed on the apartment's utilities account, Tr. 22:6-12, and he was present in the apartment at the time of the search, along with two other individuals. Tr. 99:25100:23. Of those individuals, the male was on the couch when police entered, Tr. 23:16-19, which was “made up” “like a bed,” Tr. 25:25-26:2, and Detective Adams testified that police found a suitcase containing male clothing “underneath the couch,” Tr. 29:9-16. Police found the female occupant in the bedroom, Tr. 28:17-25, and Adams testified that police found no “feminine products” in the bathroom, Tr. 29:23-30:3. After his arrest, Gumbs indicated to police that they had recovered “all of” the money in the apartment, Tr. 126:1-10, which had been collected from locations including the bedroom closet. Tr. 30:9-15, 43:22-25.
The gravamen of Gumbs's argument, however, is that the admission of the un-Mirandized statement had such a devastating impact on his trial strategy that taking the stand was essentially the only way in which he could combat the State's case. For this reason, Gumbs argues that the Appellate Division should properly have considered whether the evidence absent not only the un-Mirandized statement but also Gumbs's testimony and the detrimental evidence to which his testimony opened the door was strong enough to render any error in the admission of the un-Mirandized statement harmless.
Typically, a Chapman (or Brecht) analysis in a case involving the unconstitutional admission of testimony considers the entirety of the evidence introduced at trial - minus the improperly admitted evidence - and then considers what the effect the improper evidence had on the jury's verdict. See, e.g., Orlando v. Nassau Cnty. Dist. Att'y's Off., 915 F.3d 113, 127 (2d Cir. 2019). Thus, the Second Circuit has noted, “[t]he strength of the prosecution's case, absent the erroneously admitted evidence, is probably the single most critical factor in determining whether [an] error was harmless.” Wood v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011) (internal punctuation and citation omitted). Here, however, Gumbs argues that we must not consider the totality of the evidence but instead consider (1) what the effect of the introduction of the statement on the evidence as it existed without the “downstream prejudice” from his testimony and the proffer confession; and (2) whether Gumbs was “forced” to testify as a result of the admission of the statement. Gumbs points to no case where such an analysis was undertaken in the context of a harmless error analysis regarding a suppressed statement, and we are aware of none.
That being said, we will assume arguendo that it might be appropriate in some cases to depart from the usual totality-of-the-evidence analysis where a showing has been made that the unconstitutional action in fact caused a defendant to testify, and that such testimony was the cause of the defendant's conviction. But the evidence in Gumbs's case that the error caused the defendant to testify in fact is quite speculative. Essentially, Gumbs's evidence for why he was “forced” to testify is based on the following: (1) that his counsel repeatedly informed the jury that Gumbs would not be testifying, see Voir Dire Tr. 708:22-23, 709:13-14, 785:7-8; Tr. 10:719; (2) that the un-Mirandized statement was thereafter admitted into evidence; and (3) that after the admission of the evidence, Gumbs testified. Notably, Gumbs's counsel, who had lengthy sessions with the trial judge out of the hearing of the jury, at no time suggested that the un-Mirandized statement was the reason for the testimony. All that he said at the time was Mr. Gumbs had decided to testify and that he was “bound by what [Gumbs] want[ed] to do.” Tr. 210:7-8.
“When a state court has applied Chapman, § 2254(d)(1) requires a habeas petitioner to prove that the state court's decision was unreasonable.” Brown, 142 S.Ct. at 1525 (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Fry v. Pliler, 551 U.S. 112, 119 (2007)). “To accomplish that, a petitioner must persuade a federal court that no ‘fair[-]minded juris[t]' could reach the state court's conclusion under [the Supreme] Court's precedents.” Id. (citing Davis v. Ayala, 576 U.S. 257, 269 (2015)).
Here, we cannot say that no fair-minded jurist could reach the conclusion that the entire trial record should be considered for purposes of the harmless error analysis and that based on that record there was no “reasonable probability” that the admission of the un-Mirandized statement had any effect on the outcome of the trial. While Gumbs contends that it was error to analyze the case based on the entire trial record, in fact there was only speculative evidence as to the reason why Gumbs ultimately testified. There was no evidence presented to the state court as to the reason Gumbs chose to testify, such as a sworn statement of either Gumbs or his attorney offered through a motion under N.Y. Crim. P. L. § 440. While one might speculate that Gumbs chose to testify because of the admission of the un-Mirandized statement, it is in the end only speculation. Indeed, far from being obviously “forced” to testify, as Gumbs argues in this petition, Gumbs's choice to testify was not particularly rational even following the erroneous admission of the un-Mirandized statement, given that his testimony would inevitably lead to the admission of the inculpatory statement from his proffer session. The Appellate Division could thus have properly viewed the question before it as a matter of applying the Chapman standard to the totality of the evidence.
As to the application of the analysis to the totality of the evidence, the petitioner does not argue (nor could he) that the admission of the un-Mirandized statement alone satisfied the Chapman standard, without removing the supposed “downstream prejudice” from the case. Looking to the entirety of the evidence, the un-Mirandized statement was merely duplicative of the confession of the defendant at his proffer session. And, of course, Gumbs's testimony led to the admission of evidence of the defendant's prior drug sales, as well as drugs found in the apartment, which provided strong evidence that he might have needed guns to protect his drug sale operations. The Appellate Division could properly have concluded based on all this evidence that there was no “reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman, 386 U.S. at 24. Certainly, this determination by the Appellate Division was not an “unreasonable application” of Chapman. 28 U.S.C. § 2254(d).
2. Substantial and Injurious Effect of the Error
Having assessed the Appellate Division's decision under section 2254(d)(1), we next consider whether, under Brecht, the constitutional error here had a “substantial and injurious effect” on the verdict. Under this standard, an error is harmless unless it results in “actual prejudice,” Davis, 576 U.S. at 267 (quoting Brecht, 507 U.S. at 637), meaning that a court has “grave doubt about whether” the error “had ‘substantial and injurious effect or influence in determining the jury's verdict.'” Id. at 268 (quoting O'Neal v. McAninch, 513 U.S. 432, 436 (1995)). The Brecht standard requires “more than a ‘reasonable possibility' that the error was harmful.” Id. (quoting Brecht, 507 U.S. at 637). “The Brecht standard reflects the view that a ‘State is not to be put to th[e] arduous task [of retrying a defendant] based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error.'” Id. (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per curiam)).
The Second Circuit has explained what form this analysis must take where it involves the erroneous admission of evidence as follows:
In assessing “whether the erroneous admission of evidence had a substantial and injurious effect on the jury's decision, [we consider] the importance of the . . . wrongly admitted [evidence], and the overall strength of the prosecution's case.” Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000) (citing Brecht, 507 U.S. at 639). The importance of wrongly admitted evidence is determined by “the prosecutor's conduct with respect to the . . . evidence,” Zappulla [v. New York], 391 F.3d [462,] 468 [(2d Cir. 2004)], whether the evidence “bore on an issue . . . plainly critical to the jury's decision,” and “whether [it] was material to the establishment of the critical fact, or whether it was instead corroborated and cumulative,” Wray, 202 F.3d at 526 (internal quotation marks omitted).Wood, 644 F.3d at 94.
“Although the strength of the prosecution's case is probably the single most critical factor in determining whether error was harmless, the mere fact that the properly admitted evidence, standing alone, would have been sufficient to support the conviction is not determinative of whether the improperly admitted evidence had a substantial and injurious effect.” Wray, 202 F.3d at 526 (citation omitted). In other words, “[t]he inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Thus, we must examine “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.” Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985).
As we have already described, the admission of the un-Mirandized statement could not be said to have had a substantial and injurious effect on the jury's verdict if it were considered in conjunction with the totality of the evidence presented at trial. While the issue of possession of the guns was critical to the prosecution's case and the prosecutor referenced the un-Mirandized statement at closing, Tr. 459:20-460:5, 468:11-21, the prosecutor of course also referenced the proffer evidence, see Tr. 463:12-24, 465:2-6, 468:11-21 (“A.D.A. Diener . . . told you that she sat down [with Gumbs] . . . and she remembers Mr. Gumbs saying that they were his guns”; “Miss Diener came in and told you . . . ‘[w]e talked to him about the guns. We talked to him about the case, how long he had the guns, why he had the guns .... Where they were in the apartment.'”). Given the other evidence in the case, including the fact that the gun was found in the apartment with clothing that matched the defendant's size, his name on the utility bill, and the introduction of the evidence as to the defendant's marijuana dealing and the marijuana found in this home, the un-Mirandized statement was “corroborated and cumulative” and thus not particularly “importan[t]” given the “overall strength” of the prosecution's case. Wood, 644 F.3d at 94.
Further, given the lack of any factual record as to whether Gumbs would or would not have testified absent the admission of the un-Mirandized statement, Gumbs has not met his burden of showing that the admission of the statement actually caused (let alone “forced”) him to testify - the act that resulted in the admission of the additional damning evidence against him. Even if we were to believe that there was at best a “reasonable possibility” that Gumbs would not have testified had the un-Mirandized statement not been admitted, such a “reasonable possibility” is insufficient to grant habeas relief under Brecht. See Davis, 576 U.S. at 268. Conclusion
For the foregoing reasons, Gumbs's petition for a writ of habeas corpus should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Caproni. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).