Opinion
O1-CV-0992 (JBW), 03-MTSC-0066 (JBW)
October 22, 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 the homicide of Rodney Keitt, Evidence presented by the prosecution at trial included petitioner's written and videotaped confessions to the crime, In his written statement, petitioner acknowledged that he and three acquaintances approached a man behind a high school building to rob him. Petitioner and one of the others, "Drop," were armed but a third man, "Dog," took petitioner's gun. The group "converged" on the man, with guns brandished by Dog and Drop. They took the man's money and a beeper. Afterwards they approached another man, Keitt, and attempted to rob him as well. When Keitt tried to push Drop away from him, Drop put the gun in the man's face and threatened to shoot. There was a scuffle and then Drop shot Keitt in the neck. Petitioner gathered his gun, ski mask and gloves, put them in a paper back and threw it over a fence. He then saw a transit police officer, approached him and told him that someone had been shot.
Petitioner's videotaped statement was to the same effect.
Petitioner presented no evidence at the trial.
He was convicted of second degree murder and sentenced to 15 years to life in prison. His conviction was affirmed on direct appeal by the Appellate Division, Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.
In his application for a writ of habeas corpus, petitioner claims that (1) his written inculpatory statement should have been suppressed because the prosecution failed to prove beyond a reasonable doubt that he was given his Miranda warnings before he made it; and (2) his due process rights were violated when the trial court failed to order a mistrial after the prosecutor referred to him as a "punk" in her opening statement.
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 the1 "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, habcas 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(c)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989), `This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson* 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see 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, 01 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.Colto 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 dented on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there 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 appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealabilit1y from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.O. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at * 15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VI. Analysis of Claims
Petitioner's claims are exhausted and were denied on the merits by the Appellate Division. Review proceeds under the deferential standards of AEDPA.
A
Petitioner first claims that his written inculpatory statement should have been suppressed because the prosecution failed to prove beyond a reasonable doubt that he was given his Miranda warnings before he made it. In support of this contention, he directs the court's attention to the fact that a notation on the Miranda form indicates it was signed at 3:55 p.m. and that a notation on his written statement indicates that the statement was also signed at 3:55 p.m., suggesting that be could not possibly have been read his Miranda warnings before he made his statement. The Appellate Division rejected this claim, stating that, "The hearing court did not err in denying that branch of the defendant's omnibus motion which was to suppress a written statement made by him to the police, since the credible evidence established that it was given after he knowingly and intelligently waived his Miranda rights." People v. Hunter, 696 N.Y.S.2d 864, 864 (App.Div. 1999).
A person questioned by law enforcement officers after being taken into custody or otherwise deprived of his freedom of action in any significant way" must be "warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda v. Arizona, 384 U.S. 436, 444 (1966); see also Dicker son v. United States, 530 U.S. 428 (2000). The Supreme Court has held that "the ultimate question, whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination," Miller v. Fenton, 474 U.S. 104, 112 (1985); see also Whitaker v. Meachum, 123 F.3d 714, 716(2d Cir. 1997). However, a state court's determinations of factual matters, such as the "length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with the Miranda warnings," are considered questions of fact, which are entitled to a presumption of correctness under 28 U.S.C. § 2254(d), Miller, 474 U.S. at 117.
At a pretrial hearing, the detective to whom petitioner made his inculpatory statements testified that he read petitioner the Miranda warnings before petitioner made a statement. He also testified that he was aware at the time that petitioner incorrectly noted "3:55 p.m." as the time when he signed his written statement, but that it was his practice not to correct notations made by others. The hearing court credited the detective's testimony and concluded that the prosecution had proven beyond a reasonable doubt that the Miranda warnings were administered prior to petitioner's statement. That factual conclusion must be presumed by this court to be correct and must be rebutted by petitioner with clear and convincing evidence. The manner in which this judge might have ruled in the first instance is of no importance. The hearing court's factual finding that petitioner was warned of his rights was reasonable. In addition, the attenuation between the interview that resulted in petitioners written statement and the Mirandized statement he gave on videotape four hours later would likely suffice to allow the latter statement into evidence, making any error with respect to suppressing the written statement harmless. Habeas corpus relief on this ground is not warranted.
B
Petitioner also claims that his due process rights were violated when the trial court failed to order a mistrial after the prosecutor referred to him as a "punk" in her opening statement;
Now, what happened was Rodney [Keitt], a young guy, full of life, big guy, he sees four punks, doesn't seem to have seen the gun right a way, because he starts to struggle and fight, because they start grabbing him, so he punches Drop, Drop takes out his, 38 and from close range he shoots Rodney Keitt in the right neck. Right here, where I am indicating.
Trail Tr. at 352, Petitioner objected at a suitable time, noting that "the law is clear that the prosecution [may] not categorize or call the defendant by any name, and I think when she made that reference, your Honor, that's an egregious error," Id. at 369. The prosecutor in response stated, `That must be a Freudian slip. I distinctly remember saying four young men. I meant to say four young men," Id. The trial court affirmed that the prosecutor had said "punks," defense counsel moved for a mistrial. At the next trial date the court, which had reserved decision on the motion, stated,
Clearly that's inappropriate. But it does not really go to the essence of anything at this point, It doesn't have anything to do with credibility, it doesn't have anything to do with vouchering [ sic], it doesn't have anything to do with evidence, per se. It was an unfortunate remark which was completely inappropriate, and we have a statement from the defendant acknowledging his participation, to some extent, by inference characterizing him as a punk, that better not be repeated. But at this time, I am going to deny your application for a mistrial.Id. at 382.
The Appellate Division rejected petitioner's claim that he was entitled to a mistrial, stating,
The denial of the defendant's request for a mistrial after the People's opening statement was not an improvident exercise of discretion. Whether to grant a request for a mistrial rests within the sound discretion of the trial court, which is in the best position to determine if it is necessary to protect the defendant's right to a fair trial. Here, the court's limiting instruction alleviated any prejudice that may have resulted from the prosecutor's improper comment.Hunter, 696 N.Y.S.2d at 864 (citations omitted).
Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974), Nonetheless, "when the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair," Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S. at 643), Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceedings, DeChristoforo, 416 U.S. at 643, In order to view any prosecutorial misconduct in context, "we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. . . .Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted).
In the instant case, the prosecutor's characterization of petitioner as a "punk" was unquestionably improper. The stray remark was not, however, sufficiently serious to have denied petitioner a fundamentally fair trial Habeas corpus relief on this claim is not warranted.
VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.