Opinion
No. 04 Civ. 1333 (PAC)(KNF).
October 25, 2005
REPORT and RECOMMENDATION
TO THE HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Lawrence Lewis ("Lewis") has petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that his confinement by New York state is unlawful because: (1) he was deprived of his right to a fair trial when the trial court: (a) instructed the jury improperly concerning his justification defense and the definitions of "intentionally" and "recklessly;" and (b) failed to present to the jury the "inclusory" allegations of attempted second-degree murder, attempted first-degree assault and second-degree assault "in the alternative;" (2) his rights to equal protection and a fair trial were violated when the jury rendered a "repugnant" verdict; (3) he received ineffective assistance from trial counsel; (4) he received ineffective assistance from appellate counsel; (5) he was deprived of his rights to due process and a fair trial when the prosecution failed to correct a witness' perjured testimony, or disclose it to the defense, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972); (6) his right to a fair trial was violated when the prosecution failed to disclose Rosario material; (7) the prosecution engaged in prejudicial misconduct; and (8) he was deprived of his right to equal protection under the law when, due to the vagueness of a provision of the New York Penal Law, he was convicted for second-degree depraved indifference murder rather than second-degree manslaughter. The respondent opposes the petition. It is addressed below.
Under Brady, the prosecution is obligated to disclose to a criminal defendant exculpatory information which is known to be material to a defendant's guilt or punishment. The defendant is denied due process of law if the prosecution suppresses such material. 373 U.S. at 87, 83 S.Ct. 1194.
Giglio established that criminal defendants have a due process right to the production of evidence regarding the credibility of prosecution witnesses. 405 U.S. at 154-55, 92 S. Ct. 763, 766.
New York's Rosario rule, announced in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert. denied, 368 U.S. 866, 82 S. Ct. 117 (1961), and later codified in CPL §§ 240.44 and 240.45, requires the state to provide a criminal defendant the prior recorded statements of its witnesses that relate to their direct trial testimony.
II. BACKGROUND
On the evening of August 14, 1996, Lewis and a friend, Lance Gray ("Gray"), were seated on the stairs in front of the building located at 40 Tiemann Place in Manhattan. Gray was the superintendent of the building. A jazz festival was being held at a nearby park and several uniformed police officers were patrolling the area. At approximately 11:00 p.m., a group of young men approached the area in front of 40 Tiemann Place. One of them, seventeen-year-old Lamont Waters ("Waters"), began teasing Gray's dog, which was tied to a fence in front of the building. Gray confronted Waters and a heated exchange took place. Thereafter, Waters' friends led him away and Lewis and Gray entered 40 Tiemann Place and went to Gray's apartment. When Gray told Lewis that he anticipated another encounter with Waters, Lewis produced a gun and told Gray not to worry about it.
At approximately 11:30 p.m., Waters and his friends returned to 40 Tiemann Place, where Gray and Lewis were again sitting on the front stoop. Waters and Gray shouted taunts and insults at each other. Then Gray pushed Waters, who fell backward and was caught by one of his friends, Ernest Marrero ("Marrero"). Marrero held onto Waters in an attempt to prevent him from retaliating. Another friend of Waters, Jorge Mejia ("Mejia"), began shouting at Gray, who pushed him into a tree. Waters then charged at Gray, and five or ten of his friends joined in. Gray recalled that he assumed the youths were armed, although he did not see any weapons. At this point, Lewis descended the stairs in front of 40 Tiemann Place, pushed Gray aside and pulled a gun from his waist. At very close range, he fired a shot at Marrero and Waters; the shot struck Waters in the face and mortally wounded him. Waters' friends, along with a large crowd of people who had just left the jazz festival, began to run towards Broadway. Lewis fired twice in their direction from ten or fifteen feet away. One of the shots struck Waters' friend Richard Lopez, seriously injuring him.
Police officers who were patrolling the festival saw Lewis fire into the crowd. Lewis was arrested and his loaded pistol was recovered from the street. Three days later, Waters died of irreversible brain damage. A ballistics examination revealed that the bullet removed from Waters' skull, another bullet found inside a stationery store and shell casings found in front of Tiemann Place, all had been fired from Lewis' pistol.
On May 7, 1998, a jury of the New York State Supreme Court, New York County, found Lewis guilty for murder in the second degree (N.Y. Penal Law § 125.25), attempted murder in the second degree (N.Y. Penal Law §§ 110.00, 125.25), attempted assault in the first degree (N.Y. Penal Law §§ 110.00, 120.10), assault in the second degree (N.Y. Penal Law § 120.05), criminal possession of a weapon in the second and third degrees (N.Y. Penal Law §§ 265.03, 265.02), and reckless endangerment in the first degree (N.Y. Penal Law § 120.25). On May 28, 1998, Lewis was sentenced to indeterminate terms of imprisonment of 37½ years to life.
Lewis appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. Lewis raised the following claims on direct appeal: (1) the trial court's instruction to the jury concerning his justification defense was in contravention of the penal law and deprived petitioner of his constitutional right to a fair trial; (2) his sentence was excessive under the circumstances; (3) his conviction for first-degree reckless endangerment should have been dismissed because it was a lesser included offense of depraved indifference murder; (4) the second- and third-degree weapon possession convictions involved the same weapon; consequently, the third-degree conviction should have been vacated; (5) the sentence imposed for attempted first-degree assault was illegal.
Lewis, proceeding pro so, also filed a supplemental brief in which he claimed that his constitutional rights to due process and a fair trial had been violated because: (a) he had not received timely notice of purported pretrial identification procedures; (b) the indictment was obtained by unethical means and relied upon hearsay evidence; (c) the trial court improperly failed to charge the crimes of attempted second-degree murder, attempted first-degree assault and second-degree assault "in the alternative;" (d) the trial court, in its jury instructions, failed to define "intentionally" and "recklessly;" (e) the jury's verdict was "repugnant;" and (f) the prosecutor engaged in prejudicial misconduct. The petitioner also claimed that he had been denied the effective assistance of trial counsel.
On December 28, 2000, the Appellate Division modified the judgment of conviction unanimously "to the extent of vacating the conviction for criminal possession of a weapon in the third degree and dismissing that count of the indictment, and, on the law, by reducing the sentence for attempted assault in the first degree to 3½ to 7 years." The judgment as modified was affirmed unanimously. Specifically, the court found that Lewis' claim concerning the trial court's justification defense instruction to the jury was unpreserved, and declined to review it in the interest of justice. The court stated that, were it to review the claim, it would find that Lewis was not prejudiced by any error in the justification instruction. The court also declined to review Lewis' remaining claims, including those contained in his pro se supplemental brief, finding that the claims were unpreserved and would be rejected were the court to review them.See People v. Lewis, 278 A.D.2d 165, 718 N.Y.S.2d 179 (App. Div. 1st Dep't 2000). After the Appellate Division rendered its decision, petitioner applied for leave to appeal to the New York Court of Appeals. His application was denied. See People v. Lewis, 96 N.Y.2d 761, 725 N.Y.S.2d 287 (2001).
On December 24, 2001, Lewis moved for a writ of error coram nobis, claiming that he had been deprived of the effective assistance of appellate counsel. That motion was denied on June 25, 2002. See People v. Lewis, 295 A.D.2d 1021, 746 N.Y.S.2d 272 (App.Div. 1st Dep't 2002). Lewis filed a second application for a writ of error coram nobis, which also was denied. Thereafter, Lewis sought leave to appeal the denial of his coram nobis applications to the New York Court of Appeals; both that request and Lewis' motion for reconsideration of the denial of his appeal were rejected by the court.
On July 7, 2003, Lewis moved to vacate the judgment of conviction, pursuant to New York's Criminal Procedure Law ("CPL") § 440.10. Lewis alleged that "newly discovered evidence" demonstrated that the prosecution had violated the Brady/Giglio rule by failing to disclose a prior criminal conviction of a prosecution witness and that the prosecution had failed to disclose Rosario material. Lewis also claimed that the prosecution had knowingly introduced perjured testimony at trial and that his equal protection rights were violated because he was convicted and sentenced pursuant to a provision of the penal law that was unconstitutionally vague. The trial court denied Lewis' CPL § 440.10 motion on February 9, 2004. The court found that: (i) Lewis' claim of "newly discovered evidence" was "meaningless" because the individual whose criminal record allegedly had been withheld by the prosecution, had the same name as the person who had testified at Lewis' trial, but was not that person; (ii) theRosario violation did not rise to the level of reversible error; and (iii) the remainder of the petitioner's claims either were or should have been raised on direct appeal. Petitioner's request for leave to appeal the denial of his CPL § 440.10 motion was denied by the Appellate Division on April 8, 2004.
Petitioner filed the instant petition for a writ of habeas corpus on February 18, 2004. In March 2004, the assigned district judge granted petitioner's request to amend his petition. On April 5, 2004, the Court determined to stay adjudication of the claims presented in the petition so that Lewis might exhaust his state court remedies with respect to the claims raised in his CPL § 440.10 motion. Following the Appellate Division's denial of petitioner's request for leave to appeal his CPL § 440.10 motion, the stay previously issued by the Court was lifted. Thereafter, petitioner sought permission to filed a second amended petition to include an additional ground for habeas corpus relief. The Court denied petitioner's application on August 26, 2004.
III. DISCUSSION
Trial Court's Jury Instructions
A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). In most cases, a state procedural bar constitutes an adequate and independent state law ground that is sufficient to preclude federal habeas corpus review. "In exceptional cases, however, an exorbitant application of a generally sound rule may affect the adequacy and independence of the state procedural ground, and allow the United States district court to consider the merits of a constitutional claim." Rosa v. Herbert, 277 F. Supp. 2d 342, 351 (S.D.N.Y. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 885); see also Bell v. Poole, No. 00 Civ. 5214, 2003 WL 21244625, at *9 (E.D.N.Y. Apr. 10, 2003) ("The mere invocation of a procedural bar does not . . . automatically preclude review in this court.").
The Second Circuit Court of Appeals has stated that a procedural bar is adequate to support a state court judgment only if it is based on a rule that is "firmly established and regularly followed" by the state in question. Cotto v. Herbert, 331 F.3d 217, 239-41 (2d Cir. 2003). Thus, the parties to an action must have notice of the state procedural rule and the rule must be applied consistently in similar circumstances. See Bell, 2003 WL 21244625, at *9. Furthermore, a state procedural rule must serve a legitimate state interest. See Rosa, 277 F. Supp. 2d at 351; Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986). However, "the adequacy of a state procedural bar is determined with reference to the particular application of the rule; it is not enough that the rule generally serves a legitimate state interest." Cotto, 331 F.3d at 240 (quotingLee, 534 U.S. at 387, 122 S. Ct. at 891) (internal quotation marks omitted). Therefore, an inquiry into whether the application of a procedural rule is "firmly established and regularly followed" in the specific circumstances presented in a case includes "an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Id.
The Appellate Division did not dispose of Lewis' claims concerning the trial court's jury instructions on the merits. Rather, the court found that these claims, namely, that Lewis was deprived of his right to a fair trial when the trial court instructed the jury improperly concerning his justification defense, the definitions of "intentionally" and "recklessly," and the charges of attempted second-degree murder, attempted first-degree assault and second-degree assault, were not preserved for appellate review.
CPL § 470.05, in its most pertinent part, provides that:
For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court. . . .
The purpose of the rule is "to fairly apprise the court and the opposing party of the nature and scope of the matter contested."People v. Jones, 81 A.D.2d 22, 41-42, 440 N.Y.S.2d 248, 261 (App.Div. 2d Dep't 1981).
New York's contemporaneous objection rule is firmly established and has, for many years, been applied to claims of error involving federal constitutional rights. See People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16 (1986); People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584 (1980). It has been applied routinely in circumstances, such as those in the case at bar, in which a defendant did not make a timely protest to a trial court's instructions to the jury. See, e.g., People v. Smith, 21 A.D.3d 386, 799 N.Y.S.2d 569, 570-71 (App.Div. 2nd Dep't 2005); People v. Taylor, 17 A.D.3d 174, 175, 793 N.Y.S.2d 29, 30 (App.Div. 1st Dep't 2005); People v. McClain, 250 A.D.2d 871, 872-73, 672 N.Y.S.2d 503, 505 (App. Div. 3rd Dep't 1998); People v. Mitchell, 216 A.D.2d 915, 629 N.Y.S.2d 698 (App.Div. 4th Dep't 1995). Lewis has not identified any respect in which the Appellate Division's application of this rule to the case at bar might have departed from the regular application of the rule to similar cases in New York appellate courts.
A habeas corpus petitioner may bypass the independent and adequate state law ground by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice will attend, that is, that the petitioner is actually innocent of the crime for which he was convicted, if the claim is not reviewed by the habeas court. See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989). Therefore, in order to overcome the procedural bar imposed by the Appellate Division's determination that this claim is unpreserved, Lewis must show cause for his default and prejudice attributable thereto or demonstrate that the failure to consider his federal claims will result in a fundamental miscarriage of justice. However, Lewis has shown neither cause for his procedural default nor prejudice. Moreover, he has not proffered any new evidence that he is actually innocent.
In light of the foregoing, the petitioner may not obtain habeas corpus relief on this claim. Jury Verdict
As noted above, a federal court may not review a question of law decided by a state court if the state court's decision rested on an adequate and independent state law ground, whether substantive or procedural. See Coleman, 501 U.S. at 729, 111 S. Ct. at 2553-54. As with the petitioner's challenge concerning the trial court's jury instructions, it does not appear that the Appellate Division relied primarily on federal law in disposing of petitioner's claim that his rights to a fair trial and equal protection were violated by the jury's repugnant verdict. The Appellate Division found that this claim, which was contained in Lewis' pro se supplemental brief, was not preserved for appellate review. As noted above, New York's contemporaneous objection rule is firmly established and has been applied routinely to claims of error involving federal constitutional rights. In addition, the rule has been regularly followed in circumstances in which a defendant failed to object, prior to the discharge of the jury, that the verdict was repugnant. See, e.g., People v. Jackson, 19 A.D.3d 614, 796 N.Y.S.2d 543 (App.Div. 2nd Dep't 2005); People v. Freeman, 305 A.D.2d 331, 760 N.Y.S.2d 470, 471 (App.Div. 1st Dep't 2003);People v. Gonzalez, 288 A.D.2d 46, 732 N.Y.S.2d 400, 401 (App. Div. 1st Dep't 2001); People v. Balbuena, 264 A.D.2d 424, 695 N.Y.S.2d 107, 108 (App.Div. 2nd Dep't 1999). Lewis has not shown how the Appellate Division's application of this rule to the case at bar departs from the regular application of the rule to similar cases in New York appellate courts.
Furthermore, Lewis has not attempted to show cause for the default or prejudice to him, or that a fundamental miscarriage of justice would attend if this claim were not reviewed. Consequently, for the reasons outlined earlier, Lewis has not overcome the procedural default that has occurred with respect to this claim in his petition.See Coleman, 501 U.S. at 750, 111 S. Ct. at 2565. Accordingly, the claim should be dismissed.
Ineffective Assistance of Counsel
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) was contrary to, or involved an unreasonable application of federal law, as determined by the Supreme Court of the United States; or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 146, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to" clearly established Supreme Court precedent if "the state court applies a rule that contradicts" 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 result different from [that] precedent." Williams, 529 U.S. at 405-06, 120 S. Ct. at 1519-20. A state court decision involves an "unreasonable application" of Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case."Id. at 407-08, 1520-21. A federal habeas court applying the "unreasonable application" standard should ask whether the state court's application of Supreme Court precedent was "objectively unreasonable" and not merely an incorrect or erroneous application of federal law. Id. at 409, 1521; see also Francis S., 221 F.3d at 111 (holding that to permit habeas relief under an "unreasonable application" standard, more is required than an incorrect application of federal law, although the "increment of incorrectness" need not be great).
The threshold question under the Antiterrorism and Effective Death Penalty Act amendments to 28 U.S.C. § 2254, when a claim has been adjudicated on the merits in state court, is whether the petitioner seeks to apply a rule of law that was clearly established at the time his state court conviction became final.See Williams, 529 U.S. at 390, 120 S. Ct. at 1511. In a petition for habeas relief alleging ineffective assistance of counsel, this question "is easily answered because the merits of [such] claim[s] are squarely governed by [the Supreme Court's] holding in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)." Id.; see also Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001).
The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland, 466 U.S. at 686, 104 S. Ct. at 2063. To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See id. at 687-96, 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id. at 687-88, 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice. Id. at 694, 2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id.; see also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 2066.
1. Trial Counsel
Lewis contends that he was denied effective assistance from trial counsel because his trial attorney, inter alia, failed to: (i) research the legal principles involved in this case; (ii) conduct a proper investigation; (iii) file any written motions; (iv) correspond with petitioner; (v) object to the prosecution's leading questions; (vi) cross-examine the prosecution's witnesses effectively; (vii) interview witnesses; (viii) review Rosario and other material; (ix) visit the crime scene; (x) meet with petitioner before trial; (xi) object when the trial court imposed upon him an illegal sentence; and (xii) advocate for the petitioner.
The respondent contends that this claim is unexhausted because, insofar as it alleges facts not contained in the trial record, it should been have raised by way of a motion to vacate the judgment of conviction. While Lewis did not raise this claim in his CPL § 440.10 motion, he has presented all of the ineffective assistance of counsel claims he asserts in his petition in his applications to the Appellate Division and the Court of Appeals. Because the Appellate Division rejected this claim without discussion, it is impossible to tell whether it was of the view that Lewis should file a CPL § 440.10 motion. Therefore, giving Lewis the benefit of the doubt, the Court concludes that he has satisfied the exhaustion requirement with respect to this claim.
As a preliminary matter, the Court notes that the Appellate Division, in rendering its decision concerning the claims raised in petitioner's pro se supplemental brief, found that the claims were unpreserved. However, petitioner's ineffective assistance of trial counsel claim, unlike the other claims raised in his supplemental brief, could not have been subject to a preservation requirement. Cf. Katowski v. Greiner, 212 F. Supp. 2d 78, 83 (E.D.N.Y. 2002). Consequently, petitioner's ineffective assistance of counsel claim is not procedurally barred from habeas corpus review. Further, in reaching its decision, the Appellate Division stated that, were it to review these claims, it would reject them. See Lewis, 278 A.D.2d at 166, 718 N.Y.S.2d at 180. Therefore, it appears that petitioner's ineffective assistance of counsel claim was addressed on the merits. See Katowski, 212 F. Supp. 2d at 83; Riddick v. Fischer, No. 04 Civ. 2230, 2004 WL 2181118, at *2-3 (S.D.N.Y. Sept. 27, 2004) (finding that summary resolution of claim raised in a supplemental pro se brief constituted adjudication on the merits). Therefore, Lewis is not entitled to habeas corpus relief on this claim unless he can demonstrate that the Appellate Division's rejection of his claim was contrary to or involved an unreasonable application of clearly established federal law.
Lewis has failed to carry the burden imposed upon him by statute. Lewis has not shown how the Appellate Division's determination that he was not denied the effective assistance of trial counsel was in tension with Supreme Court precedent. Based on a review of the record, the Court finds that Lewis has not shown that trial counsel's performance fell below an "objective standard of reasonableness." Moreover, it appears that trial counsel's representation was effective. Counsel conducted a pretrial hearing at which he successfully argued that the court should limit the prosecutor's cross-examination of the petitioner to questions concerning his possession of an unlicensed weapon, conducted an extensive voir dire, cross-examined the prosecution's witnesses extensively, delivered a strong summation and secured for the petitioner an acquittal on the charge of intentional murder. Furthermore, even if trial counsel committed errors, Lewis has not shown that, but for these alleged errors, the outcome of the proceeding would have been different. Accordingly, Lewis' ineffective assistance of trial counsel claim is without merit and should be dismissed.
2. Appellate Counsel
The Sixth Amendment right to effective assistance of counsel also extends to the prosecution of a direct appeal from a judgment of conviction. See Evitts v. Lucey, 469 U.S. 387, 395-96, 105 S. Ct. 830, 836 (1985). Since appellate counsel is permitted to exercise professional judgment when determining which issue(s) to pursue on appeal, failure to present every nonfrivolous argument to the appellate court does not constitute ineffective assistance of counsel. See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983). Indeed, the Supreme Court has recognized that effective appellate advocacy entails "winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 3313.
Lewis contends that the performance of his appellate counsel was constitutionally deficient because counsel did not raise on appeal the claims of ineffectiveness of trial counsel, "inclusory counts" and the jury's "repugnant" verdict. As discussed above, however, the claim of ineffective assistance of trial counsel is without merit. Therefore, it is unlikely that the outcome of the appeal would have been different if counsel had raised this issue. As for the other claims not raised by appellate counsel, as discussed earlier, they were not preserved for appellate review. Furthermore, appellate counsel prevailed on two of the claims raised on appeal: that the conviction for third-degree criminal possession of a weapon should be dismissed and that the sentence imposed for attempted first-degree assault was illegal.
Lewis has not presented clear and convincing evidence to this Court that rebuts the presumption of correctness accorded the trial court's finding of facts. Since the Appellate Division's determination was neither contrary to nor involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, there is no basis upon which to grant petitioner habeas corpus relief on this claim. Further, the Court finds that the Appellate Division's adjudication did not result in a decision that was premised on an unreasonable determination of the facts in light of the evidence presented in the trial court. Accordingly, petitioner's claim that he was denied the effective assistance of appellate counsel is without merit.
Brady/Giglio and Prosecutorial Misconduct
Lewis claims that "newly discovered evidence" shows that a prosecution witness, Jorge Mejia, gave perjurious testimony at trial concerning his criminal history, and that the prosecution failed to correct the testimony or to disclose the witness' true criminal history, in violation of Brady and Giglio. In addition, Lewis claims that the prosecution engaged in misconduct by knowingly permitting the witness to testify falsely and by using the testimony to strengthen its case against him.
As already noted, Lewis raised his Brady/Giglio and prosecutorial misconduct claims in his motion to set aside the verdict pursuant to CPL § 440.10. The trial court, in reviewing petitioner's motion, decided these claims on the merits. Therefore, for the reasons set forth above, Lewis may be afforded habeas corpus relief only if the trial court's decision was contrary to or unreasonably applied the governing legal standard for disclosure of exculpatory or impeaching information.
A Brady violation occurs where the prosecution fails to disclose to a criminal defendant exculpatory information which is known to be material to the defendant's guilt or punishment. "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Moore v. Warden, Southport Correctional Facility, 380 F. Supp. 2d 321, 328 (S.D.N.Y. 2005).
The trial court found that petitioner's claim of "newly discovered evidence" concerning the criminal history of the prosecution's witness was "meaningless," because the "alleged new conviction of Jorge Mejia, previously undisclosed, relates to a different Jorge Mejia with a different NYSID number." Thus, in this case, the "evidence" at issue was neither exculpatory nor impeaching. Further, since there was no new evidence to speak of, the claim that the prosecution engaged in misconduct by failing to disclose such "evidence" is without merit.
Petitioner has not presented clear and convincing evidence to this Court that rebuts the presumption of correctness accorded the trial court's finding of facts. Since the court's determination was neither contrary to nor involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, there is no basis upon which to grant petitioner habeas corpus relief on these claims. In like manner, the Court finds that the court's adjudication did not result in a decision that was premised on an unreasonable determination of the facts in light of the evidence presented in the trial court. Accordingly, petitioner's claims that he is entitled to habeas corpus relief because the prosecution failed to disclose exculpatory information and engaged in prejudicial misconduct are without merit.
Rosario Material
Lewis' Rosario claim, which also was raised in his CPL § 440.10 motion to vacate the judgment of conviction, alleges that the prosecution failed to disclose reports of findings made by the police officers who investigated Gray's apartment following the incident in question.
As noted above, under Rosario, the prosecution is required to make available to a criminal defendant the prior recorded statements of its witnesses that relate to their direct trial testimony. In this case, the trial court found that, while Lewis was correct in claiming that the prosecution had "failed accidentally to turn over a complaint follow up report by one of the investigating officers," the report was duplicative of other material already provided to the petitioner. Therefore, the trial court concluded, the prosecution's failure to disclose the report did not rise to the level of a reversible Rosario violation.
In any case, Lewis' Rosario claim must fail. "A Rosario claim . . . is purely a state right, which embodies policy considerations grounded in state common law, not constitutional principles." Whittman v. Sabourin, No. 00 Civ. 2867, 2001 WL 687369, at *3 (S.D.N.Y. June 18, 2001) (quoting Sutherland v. Walker, No. 97 Civ. 4432, 1999 WL 1140870, at *9 [S.D.N.Y. Dec. 10, 1999]). Since the obligation to disclose Rosario material arises solely under state law, Rosario violations are not cognizable on habeas corpus review. See id. Accordingly, Lewis' Rosario claim should be dismissed.
Vagueness of the Penal Law
Lewis contends that his constitutional rights were violated when, due to the vagueness of a provision of the New York Penal Law, he was convicted for second-degree depraved indifference murder, rather than second-degree manslaughter. Like petitioner'sBrady/Giglio and Rosario claims, this claim was previously presented in Lewis' CPL § 440.10 motion to vacate the judgment of conviction. Under New York law, collateral review of a claim that could have been raised on direct appeal, but was not, despite a sufficient record, is procedurally barred. See CPL § 440.10(2)(c); see also Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). At the time that petitioner filed his CPL § 440.10 motion, his conviction had been unanimously affirmed, as modified, by the Appellate Division. Consequently, the trial court, pursuant to CPL § 440.10(2)(c), denied the instant claim on the ground that it could have been raised on direct appeal. The Second Circuit has held CPL § 440.10(2)(c) to be an adequate and independent state law procedural ground. See Reyes v. Keane, 118 F.3d 136, 139-140 (2d Cir. 1997); Levine v. Comm'r of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995). Therefore, the trial court's decision rested on a state law ground that was independent of the federal question raised by the petitioner's claim, and adequate to support the judgment.
CPL section 440.10(2)(c), in its most pertinent part, provides:
[T]he court must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure . . . to raise such ground or issue upon an appeal actually perfected by him.
CPL § 440.10(2)(c).
The Appellate Division denied petitioner leave to appeal the trial court's decision without issuing an opinion, thereby creating the presumption that it adopted the judgment on the same grounds. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594 (1991). Therefore, petitioner's claim that he was deprived of his rights under the Constitution because of his wrongful conviction for second-degree depraved indifference murder is barred from federal habeas corpus review.
The petitioner has not attempted to show cause for the default or prejudice resulting therefrom. Moreover, nothing in the record before the Court establishes that a fundamental miscarriage of justice would occur if the petitioner's claim was not entertained by a federal court. Consequently, the petitioner has not overcome the procedural default that has occurred with respect to this claim in his petition. Accordingly, the claim should be dismissed.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Lewis' petition for a writ of habeas corpus be denied.
V. FILING OF 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 shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty, 40 Centre Street, Room 2102, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).