Opinion
01 Civ. 2911 (MBM) (AJP)
August 13, 2001
REPORT AND RECOMMENDATION
To the Honorable Michael B. Mukasey, United States District Judge:
Petitioner Quoro Martinez seeks a writ of habeas corpus from his May 1995 conviction in Supreme Court, New York County, of attempted robbery, robbery, burglary and criminal impersonation. (Dkt. No. 1: Pet. ¶¶ 1-4.) Martinez's habeas petition alleges that he was "denied a fair trial where the trial court denigrated the defense team in front of the jury, unduly interfered with the defense team's effort to cross-examine witnesses, actively assisted the prosecution in presenting its case, and issue[d] faulty rulings blatantly favoring the prosecution." (Pet. ¶ 12(A).)
For the reasons set forth below, the Court should deny Martinez's petition.
Martinez's application for appointment of counsel (Dkt. No. 2) accordingly is denied.
FACTS
Background: The Evidence at Trial, Verdict and SentenceThe evidence against Martinez is not at issue on this habeas petition. For background purposes, the Court uses Martinez's description of that evidence, as set forth in his counsel's brief on appeal to the First Department. (Ex. D: Martinez 1st Dep't Br. at 4-9; for a more detailed summary of the trial testimony, see Ex. E: State 1st Dep't Br. at 1-40.)
References to Exhibits are to those attached to the Affidavit of Assistant Attorney General Beth J. Thomas (Dkt. No. 7).
"Quoro Martinez, Garfield Ewan, Wil lis Galloza, and Jesus Perez were accused of burglarizing a brothel, the Lucky 21 Club, and robbing its occupants. The trial was a credibility contest between the defendants — who claimed they had come to the brothel to recover $600 stolen from Mr. Martinez on an earlier visit and had gotten into a fight — and the prostitutes and patrons of the brothel — who claimed that they had been beaten (and, in one case, sexually assaulted) and robbed at gunpoint. After a seventeen-day trial, spanning five weeks, the jury rejected the prosecution's story of armed robbery and rape, but convicted the defendants of acting in concert to burglarize the brothel and rob its occupants." (Martinez 1st Dep't Br. at 4.)
On the prosecution's case, "Hong [the brothel's madam], Rivero [the madam's boyfriend], three prostitutes employed at the club, and three male patrons testified that, once inside, the defendants identified themselves as the police, pulled everyone out into the living room, searched them, made them strip, beat them, and demanded money and valuables. Most of these prosecution witnesses testified that the defendants were armed, although there was little consensus about who was armed with what." (Martinez 1st Dep't Br. at 5, fn. record citations omitted; see also State 1st Dep't Br. at 7-14.) "Police witnesses testified that they arrived at the scene around 6:40 a.m. in response to a 911 call for an armed robbery in progress," made by the brothel's security guard. (Martinez 1st Dep't Br. at 6, record citations omitted; see also State 1st Dep't Br. at 15.) "The police . . . entered the club and apprehended Mr. Martinez and the other defendants," who were still in the club. (Martinez 1st Dep't Br. at 7, record citations omitted; see also State 1st Dep't Br. at 15-18.)
On the defense case, "[a]ll four defendants testified in their own defense and vehemently denied the story told by the prosecution witnesses. Mr. Martinez and his co-defendants all admitted that they had been at the Lucky 21 Club on the morning of March 17, 1994, but asserted that their aim had been to try to recover $600 that Kim Young [one of the prostitutes] had stolen from Mr. Martinez when he visited the club with his friends a few weeks earlier. When their efforts to resolve the matter were met with hostility, they ended up in a fight that pitted them against the madam, her boyfriend, some ten female prostitutes, and
After the "seventeen-day trial, spanning five weeks" (Martinez 1st Dep't Br. at 4), the jury convicted Martinez (and his co-defendants) of certain counts and acquitted on other counts, including some of the most serious charges in the indictment. (See Martinez 1st Dep't Br. at 26; see also State 1st Dep't Br. at 39-40.) The trial judge sentenced Martinez to an aggregate sentence of fourteen to forty-two years imprisonment. (See Martinez 1st Dep't Br. at 29; see also Pet. ¶¶ 1-4; State 1st Dep't Br. at 1.)
The Trial Court's Challenged Actions
Because this petition arises from a multi-defendant trial, it is necessary to focus on which defense attorney was the subject of trial Justice Bonnie Wittner's comments and which counsel, if any, raised objections. "Mr. Martinez was represented at trial by Joseph Ronson, [co-defendant] Willis Galloza was represented by Mark Weinstein, Jesus Perez was represented by Robert N. Schwartz, and Garfield Ewan was represented by Sarah K. Steiner." (Ex. D: Martinez 1st Dep't Br. at 9 n. 6.) The Court notes that it has reviewed the transcript pages containing all of the comments and actions of Justice Wittner challenged not only in Martinez's habeas petition but also those that were challenged in Martinez's First Department Brief (not all of which, however, will be summarized in this Report Recommendation).
The first challenged action occurred during jury selection. Mr. Weinstein, counsel for co-defendant Galloza, asked a prospective juror "[i]f you said I'm pretty sure he did it, you would have to say he's not guilty because you're pretty sure he did it is not beyond a reasonable doubt," and the potential juror said "[o]kay." (Voir Di re: VD18-19.) Later, Ewan's counsel, Ms. Steiner, followed up with that juror, and this colloquy occurred:
The transcript of the first part of jury selection, occurring on February 15, 1995, is separately paginated from 1-179. The transcript of the completion of jury selection, the trial court's preliminary instructions and the parties' openings (occurring on February 16, 1995) is separately paginated from 1 to 129; references to those pages are preceded by "VD." References to the balance of the trial transcript are preceded by "Tr."
MISS STEINER: Okay. And you also were talking about feeling that if you were pretty sure that my client or someone else's client had done things in this case that you would tend towards voting to convict and you seem to —
THE COURT: Those words I'm pretty sure were . . . Mr. Weinstein's words, not this juror's words.
MISS STEINER: Yeah, Mr. Weinstein.
THE COURT: There's no pretty sure in the law. It's proof beyond a reasonable doubt.
MISS STEINER: Are you comfortable with the fact that pretty sure isn't proof beyond a reasonable doubt?
PROSPECTIVE Let me just say I have thought reflecting on that after he asked the
JUROR: question that it was kind of a trick question.
THE COURT: It was a trick question. It isn't fair. There is no pretty sure.
MR. WEINSTEIN: What was unfair about it?
THE COURT: Look —
MR. WEINSTEIN: I wouldn' t call it —
THE COURT: I'm going to interrupt here. I've allowed them too much leeway. It appears they asked the question and gotten way far afield but in any event the standard —
MR. WEINSTEIN: Objection, Judge.
THE COURT: — the standard of prove is not a hunch. The law is proof beyond a reasonable doubt. I assure you I will give you the full legal definition. Like any other juror I'm sure you would understand it.
(Voir Dire: VD46-48, emphasis added.) Martinez's counsel, Mr. Ronson, was silent during this exchange. (Id.) Thereafter, out of the jury's presence (see Voir Dire: VD68), counsel other than Martinez's counsel protested Justice Wittner's reference to a "trick question":
MR. WEINSTEIN: . . . .
I say to a man that I don't discuss the law and I say the court will discuss the law — I say to this man that if you think you're pretty sure that's not good enough. Do you recognize that? Do you have a problem with that. I want to deal with that. And without belaboring the point the court indicates a little while later that I asked a trick question, an unfair question of them all. I'm being honest with people.
THE COURT: I think it was misleading because I don't know what pretty sure means, if pretty sure means proof beyond a reasonable doubt. I don't like the question. That's my ruling at this time on the record.
MR. WEINSTEIN: I'm mindful of what the jury thinks it is.
THE COURT: These are misleading. Yes, your objection is noted.
MR. WEINSTEIN: I'm trying to make a record before I get to make it you're just blowing it off again. I' m saying to you you told this jury that I ran a trick question that I am not believable. I'm saying to you —
THE COURT: I never said such a thing.
MR. WEINSTEIN: That's what it implies. If you say to this juror what he does was unfair, what he did was a trick question, you're telling him if he doesn't trust me — if jurors can't trust me I can't get a fair trial for my client. I'm asking that you as to this panel that you dismiss them because I can't try a case for my client where someone whom I wanted on a jury has now been told that an attorney asked you a trick question. He wasn't honest. I'm standing there being as honest as I can because from my experience anything else isn't going to work.
Now he knows that the court doesn't feel that I was being honest. If he knows — if the court feels I asked a trick question or unfair question, I'll keep my — they didn't hear anything like that. I want to have an opportunity to have a fresh panel. I' m asking to have a mistrial as to these particular jurors. I want them discharged. I can't work with them. I can't work with jurors that they have been told they can't trust me.
THE COURT: Anything else? I want [Assistant District Attorney] Mr. Hurley to make a response.
[ADA] HURLEY: You want me to answer that?
THE COURT: I know it's ludicrous.
(Voir Dire: VD70-72.) Justice Wittner denied defendant Galloza's counsel's motion for a mistrial:
THE COURT: I was trying to clarify because in this courtroom the rules are proof beyond a reasonable doubt. And it's unfair to ask a juror, for example, how would you please vote. Now there's no evidence. Motion for a mistrial is denied. Your motion to start again is denied. We will now proceed with jury selection.
(Voir Dire: VD76.) Martinez's counsel, Mr. Ronson, said nothing during the entire colloquy. (Voir Dire: VD70-76.)
During the course of the trial itself, counsel for defendants other than Martinez further complained about aspects of Justice Wittner's conduct. At a bench conference outside the jury's presence, counsel for defendants other than Martinez accused Justice Wittner of smiling and making faces "in front of the jury":
MR. SCHWARTZ: You have a habit, it seems of making faces while people are testifying, and when questions are being asked.
I'm sure this [is] just your reaction based upon a great deal of time on the bench to the level of questioning you're hearing, or you perceive yourself to be hearing. But I don't know that the jurors who seem always to look to — even though the Court says I have no opinion, they often look to the Court for signals made, may believe they are getting signals, and I would ask that you be aware of it please.
MS. STEINER: I have been observing that also, and I have also been observing during some of this, which I'm sure you're not doing on purpose, or may not even be aware you're doing, that some of the jurors are watching your face. I'm watching their face watching your face.
THE COURT: What do they do? Do they smile or frown?
MS. STEINER: They're smiling and laughing at things you're making faces at, and sometimes they're things which when you appear to be holding back laughter at some of the things that we're eliciting information for. I believe it's very damaging to the way that our case is perceived, and the way that my client and his — my colleagues clients are perceived. I'm sure this isn't something you're doing in order to prejudice them.
. . . . .
THE COURT: I was not intentionally trying [in] any way to disparage the case. I should have called defense counsel up. Everyone is entitled to represent their client to his or her best ability. There's no case law that I know of that says defense counsel on a multiple defense case is allowed to ask the exact same questions 12 to 15 times.
A gun was not recovered in that apartment on that date. I will bet that when we get the transcript tomorrow that's been asked about 10 to 15 times. So were many of the other questions. That will not occur with the next witness.
I did smile. Didn't laugh about the series of question having to do with the recovery of the so called torch from the lift, the soap dish on the sink, in the sink, off the sink. Is this thing free standing or not. It's a waste of time and irrelevant.
MS. STEINER: With all due respect, your Honor, I have a reason which may become — which may become apparent, depending on how things develop, and a theory regarding that torch.
THE COURT: I gave you more lee-way than I intended to.
I have told the jury nothing counts except their evaluation of the evidence. Evidence is the questions coupled with the answer, and I certainly have done nothing in any way to disparage your case. The only thing to me that would disparage your case, if defense counsel repeatedly asks irrelevant questions, or questions asked and answered 15 times, because I think that will wear on the jury.
(Tr. 158-61.) Again, Martinez's counsel, Mr. Ronson, did not say anything. (Id.)
The next day, defense counsel Mr. Schwartz returned to this subject and requested a mistrial, citing Justice Wittner's actions, including her smiling:
MR. SCHWARTZ: Because of your actions and smiling and demeaning counsel during their cross examination, I would ask for a mistrial at this point. You poisoned the minds of the jurors against defense counsel and against the defendants. You prejudiced them so that I don't think that they can be rehabilitated in any manner whatsoever even by a curative instruction if you intended to make one.
Therefore, under those circumstances I would ask for a mistrial.
THE COURT: Would you like to be heard?
[ADA] HURLEY: Well, I think the record that was made yesterday was adequate in response to this, and I don't think it's necessary to add to it. Your Honor also responded to it that —
THE COURT: There's absolutely no basis in this record for a mistrial, and I did not disparage the cross of any defense attorney. I let them have quite a bit of lee-way. In fact as I said yesterday they repeated the same questions anywhere from six to ten times.
(Tr. 224-25.) Again, Martinez's counsel, Mr. Ronson, did not join in the request for a mistrial. (Id.)
At a sidebar during the defense's cross-examination of Police Officer Santamaria, defense counsel accused Justice Wittner of yelling at them in front of the jury:
MR. RONSON: Could we do this out of the hearing of the jury?
MR. WEINSTEIN: They can hear.
MS. STEINER: They can hear you yelling at me.
THE COURT: Do you think this was yelling? I'm whispering. You'll know when I'm yelling at you Miss Steiner, and this is not yelling.
(Tr. 333-34.)
Martinez also complains of some of Justice Wittner's questions to witnesses. During Martinez's counsel's cross-examination of Officer Santamaria, the following occurred:
Q. [By Ronson]. From the time you got to the landing how long did you wait before Ewan came out?
A. Approximately 4 to 5 minutes.
. . . .
Q. You weren't looking at your watch so that months later you can answer lawyers questions about how long you were waiting outside the landing?
A. That's correct.
Q. And your answer is an estimation?
A. That's correct.
. . . .
Q. Do you recall being asked the question [previously], "could it have been a shorter time. Answer: It may have been." Do you recall being asked that question and giving that answer?
[ADA] HURLEY: I'd object. . . .
THE COURT: Would you both stop talking so I can read it.
THE COURT: Sustained.
. . . .
THE COURT: Approximately. Are you speculating or did you say go an stop a stop watch?
A. It's an estimate.
Q. And you know it's an estimation —
THE COURT: Excuse me. When did you first give you the estimate, in response to questions by the lawyers?
A. Yes.
Q. The question, could it have been a shorter time, can you answer that?
MR. HURLEY: Objection.
THE COURT: Answer it. This is the last time. Give us your best estimate on how long you were out there before you saw Mr. Ewan.
. . . . .
MR. RONSON: I'm not telling you what to do.
THE COURT: Give me the outside limit and the shortest time.
A. At the most maybe 10 minutes. At the shortest maybe 4 minutes.
THE COURT: And again you were not checking this, correct.
A. Correct.
(Tr. 352-56.) Martinez's counsel Mr. Ronson did not object to the Court's questions, either then or at any later sidebar.
During the prosecutor's direct examination of one of the prostitute witnesses, Ms. Kim, the prosecutor asked if she knew where several of the other prostitutes were, and she said no. (Tr. 417.) Justice Wittner then asked whether she still works at the brothel and how long it had been since she saw those people. (Tr. 418.) When Ms. Kim had trouble describing her rape by defendant Martinez, the trial judge asked (over Mr. Ronson's objection) what part of Martinez touched her, and asked several questions until the witness finally was able to describe that Martinez "forced his penis into [her] rectum." (Tr. 420-21.)
Martinez complained in his First Department brief about the way Justice Wittner handled the prosecution's disclosure during Ms. Kim's direct that the rap sheet they had turned over to the defense was not hers, and that this caused a delay between her direct and cross-examinations. (See Ex. D: Martinez 1st Dep't Br. at 39-42.) In fact, Martinez's counsel requested a "recess prior to cross-examination" of Ms. Kim (Tr. 442-43), and Justice Wittner
MR. WEINSTEIN: Your Honor, I would object to that in that we would then leave the jury — why is it whenever somebody on the defense —
THE COURT: I have never — in all my years I have never quite had a group that no matter what I suggest to try to accommodate defense and to protect their rights, they object to it.
MR. WEINSTEIN: I want the record to be clear the Court once again smiled.
THE COURT: I am smiling because I' m dumbfounded. Even when the issue has nothing to do with your client.
MR. WEINSTEIN: I don't understand why you've decided someone whose pointed out my client as having done something has nothing to do with my client.
In addition, every time that it seems that we get together [outside the jury's presence] on something here, there's laughter on the part of the Judge or a smile, a smirk.
THE COURT: I hardly call this laughter. I smile because I don't believe whatever I have done to accommodate the defense, there was an objection and someone whose client is not directly involved has to get involved in this and make another suggestion.
I don't want any further argument. I'm bringing the jury in.
MS. STEINER: I'm joining in Mr. Weinstein's application and Mr. Ronson's as well.
MR. SCHWARTZ: I'm also joining in the application.
THE COURT: Of course.
(Tr. 444-45.)
Martinez's Direct State Court Appeal
Martinez's counseled direct appeal to the First Department raised three grounds, the only one relevant to his habeas petition being his claim that he was denied a fair trial by the trial court's excessive interference and biased rulings in the prosecution's favor. (Ex. D: Martinez 1st Dep't Br. at 30-50.) Martinez alleged that the trial court "denigrated the defense team and communicated its disbelief of the defense case by accusing counsel of trying to trick prospective jurors, by making faces during counsel's cross-examination, and by yelling at counsel in front of the jury." (Id. at 30-35.) Martinez also alleged that the "trial court unduly interfered with the presentation of evidence to the detriment of the defense and the benefit of the prosecution." (Id. at 35-46.) Martinez argued that "the court further demonstrated its bias by issuing improper rulings in the prosecution's favor." (Id. at 46-50.)
The prosecution argued that Martinez's judicial misconduct claims were unpreserved and meritless. (Ex. E: State 1st Dep't Br. at 47-74.) The prosecution asserted that since Martinez's counsel never raised an objection to the trial judge's overall conduct, Martinez's claim was unpreserved for appellate review. (Id. at 48.) Citing People v. Charleston, 56 N.Y.2d 886, 453 N.Y.S.2d 399 (1982), the prosecution argued that a defendant "must specifically address the judge's general course of action or participation in the trial as a whole, rather than merely [addressing] particular actions by the judge." (State 1st Dep't Br. at 48.) Additionally, the prosecution cited People v. Yut Wai Tom, 53 N.Y.2d 44, 439 N.Y.S.2d 896 (1981), for the proposition that "although a defendant need not make the claim at the first sign of judicial overbearance, he must assert it when 'it is clear that the Judge intends to exceed his permissible role and assume the advocate's function. 'Put another way, a defendant must object to the judge's course of conduct 'at a meaningful time during the trial.'" (State 1st Dep't Br. at 48, quoting People v. Yut Wai Tom, 53 N.Y.2d at 56, 429 N.Y.S.2d at 902.) Finally, the prosecution stated that "an issue of law concerning the trial court's overall conduct is presented only where a defendant makes a timely objection to the court's conduct and 'has not previously encouraged the objectionable conduct.'" (State 1st Dep't Br. at 48.)
On March 9, 2000, the First Department affirmed Martinez's conviction. People v. Martinez, 270 A.D.2d 69, 705 N.Y.S.2d 35 (1st Dep't 2000). With respect to Martinez's judicial misconduct claim, the First Department held, in full:
By failing to object to the court's conduct as a whole or seek any remedy, defendants' contention that the trial court was biased and excessively interfered in the proceedings is not preserved (People v. Charleston, 56 N.Y.2d 886), and we decline to review it in the interest of justice. Were we to review this claim, we would find from our review of the entire record, that the court's interjections did not usurp the role of the attorneys, that the court's overall conduct did not convey to the jury any personal opinion regarding the evidence, and that none of the defendants were deprived of a fair trial.
People v. Martinez, 270 A.D.2d at 70, 705 N.Y.S.2d at 36.
The New York Court of Appeals denied leave to appeal on July 25, 2000. People v. Martinez, 95 N.Y.2d 855, 714 N.Y.S.2d 6 (2000).
Martinez's Federal Habeas Corpus Petition
Martinez's timely federal habeas petition is dated March 14, 2001 and was received by the Court's Pro Se Office on March 20, 2001. (Dkt. No. 1: Pet. at pp. 2, 7.) Martinez's habeas petition alleges that he "was denied a fair trial where the trial court denigrated the defense team in front of the jury, unduly interfered with the defense team's effort to cross-examine witnesses, actively assisted the prosecution in presenting its case, and issue[d] faulty rulings blatantly favoring the prosecution." (Pet. ¶ 12(A).)
ANALYSIS
I. MARTINEZ'S JUDICIAL MISCONDUCT CLAIM IS BARRED FROM HABEAS REVIEW BECAUSE THE FIRST DEPARTMENT'S DECISION WAS BASED ON AN ADEQUATE AND INDEPENDENT STATE LAW GROUND
Martinez's sole habeas claim is that the trial judge's conduct denied him a fair trial when "[t]he trial court denigrated the defense team in front of the jury, unduly interfered with the defense team's effort to cross-examine witnesses, actively assisted the prosecution in presenting its case, and issue[d] faulty rulings blatantly favoring the prosecution." (Dkt. No. 1: Pet. ¶ 12(A).) The State argues that this claim is barred from federal habeas review because the First Department's decision rejecting the claim was based on an adequate and independent state law ground. (State Br. at 10-22.)
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
See also, e.g., Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at * 7 (S.D.N Y Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at * 10 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at * 9 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at *4 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at * 12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at * 8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at * 4 (April 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at * 12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at * 12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at * 5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at * 7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).
"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Garcia v. Lewis, 188 F.3d 71, 77-82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d at 724-25. Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.
Accord, e.g., Ferguson v. Walker, 2001 WL 869615 at * 7; Simpson v. Portuondo, 2001 WL 830946 at * 10; Simmons v. Mazzuca, 2001 WL 537086 at * 9; Jones v. Duncan, 2001 WL 322190 at * 4; Riles v. Breslin, 00 Civ. 3283, 2001 WL 175250 at * 4 (S.D.N.Y. Feb. 23, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *5 (S.D.N.Y. May 25, 2000) (Peck, M.J.); Estrada v. Senkowski, 1999 WL 1051107 at * 9; Cruz v. Greiner, 1999 WL 1043961 at * 13; Avincola v. Stinson, 60 F. Supp.2d at 153 n. 7.
See also, e.g., Simpson v. Portuondo, 2001 WL 830946 at *10; Simmons v. Mazzuca, 2001 WL 537086 at * 9; Jones v. Duncan, 2001 WL 322190 at * 4; Cruz v. Greiner, 1999 WL 1043961 at * 13; Chisolm v. Headley, 58 F. Supp.2d at 286-87; Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at * 4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."); Torres v. Irvin, 33 F. Supp.2d at 274; Campbell v. Brunnelle, 925 F. Supp. 150, 157 (S.D.N.Y. 1996) (Leisure D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at * 6 (S.D.N.Y. Apr. 20, 1996) (Baer, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. at 285.
Accord, e.g., Simpson v. Portuondo, 2001 WL 830946 at * 10; Simmons v. Mazzuca, 2001 WL 537086 at * 9; Jones v. Duncan, 2001 WL 322190 at * 4; Cruz v. Greiner, 1999 WL 1043961 at * 13; Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irwin, 33 F. Supp.2d at 274; Williams v. Bennet, 1998 WL 236222 at * 6; Vera v. Hanslmaier, 928 F. Supp. at 275.
With respect to Martinez's challenge to the trial judge's alleged misconduct, the First Department stated:
By failing to object to the court's conduct as a whole or seek any remedy, defendants' contention that the trial court was biased and excessively interfered in the proceedings is not preserved (People v. Charleston, 56 N.Y.2d 886), and we decline to review it in the interest of justice. Were we to review this claim, we would find from our review of the entire record, that the court's interjections did not usurp the role of the attorneys, that the court's overall conduct did not convey to the jury any personal opinion regarding the evidence, and that none of the defendants were deprived of a fair trial.
People v. Martinez, 270 A.D.2d 69, 70, 705 N.Y.S.2d 35, 36 (1st Dep't), appeal denied, 95 N.Y.2d 855, 714 N.Y.S.2d 6 (2000).
State courts are not required to use any particular language:
We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.
Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559. Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found to be too ambiguous to preclude habeas review, see, e.g., Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1991), here the First Department explicitly stated that it found Martinez's judicial misconduct claim to be unpreserved, People v. Martinez, 270 A.D.2d at 69, 705 N.Y.S.2d at 35, and the fact that the First Department also stated the conclusion it would reach "[w]ere we to review this claim" does not change the result. See, e.g., Glenn v. Bartlett, 98 F.3d at 724-25 (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds). Thus, the First Department's decision rested on a state procedural ground, but the Court next must consider whether that state procedural basis was "adequate."
Accord, e.g., Ferguson v. Walker, 2001 WL 869615 at * 7-8; Simpson v. Portuondo, 2001 WL 830946 at * 10; Simmons v. Mazzuca, 2001 WL 537086 at * 10; Jones v. Duncan, 2001 WL 322190 at * 4-5; Cruz v. Greiner, 1999 WL 1043961 at *13; Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274; Williams v. Bennet, 1998 WL 236222 at * 6; Vera v. Hanslmaier, 928 F. Supp. at 286.
See also, e.g., Ferguson v. Walker, 2001 WL 869615 at * 8 n. 19; Simpson v. Portuondo, 2001 WL 830946 at * 10; Simmons v. Mazzuca, 2001 WL 537086 at *10 (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them); Jones v. Duncan, 2001 WL 322190 at * 5 (same); Yeung v. Artuz, 2000 WL 145103 at * 10 (same); Cruz v. Greiner, 1999 WL 1043961 at *12-13 (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274 (adequate and independent ground even though First Department "went on to dismiss the [judicial misconduct] claim on the merits"); Owens v. Portuondo, 1999 WL 378343 at *5-6; Stanley v. Kuhlman, 10 F. Supp.2d 250, 254 (E.D.N.Y. 1998) (challenge to prosecutor's summation that Appellate Division held to be unpreserved for appellate review not cognizable on habeas even though Appellate Division found, in an alternative holding, that the prosecutor's challenged remarks constituted a fair response to defense counsel's summation); Williams v. Bennet, 1998 WL 236222 at * 6; Vera v. Hanslmaier, 928 F. Supp. at 285; Liner v. Keane, 1996 WL 33990 at *7.
The New York Court of Appeals denied Martinez's application for leave to appeal without opinion. People v. Martinez, 95 N.Y.2d 856, 714 N.Y.S.2d 7 (2000). The Supreme Court held in Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803, 111 S.Ct. at 2594; accord, e.g., Simpson v. Portuondo, 2001 WL 830946 at * 11 n. 37; Simmons v. Mazzuca, 2001 WL 537086 at 10 n. 6; Jones v. Duncan, 2001 WL 322190 at * 5 n. 9; Aramas v. Donnelly, 2000 WL 559548 at *4; Yeung v. Artuz, 2000 WL 145103 at * 10; Cruz v. Greiner, 1999 WL 1043961 at *13 n. 3; Chisolm v. Headley, 58 F. Supp.2d at 287; Owens v. Portuondo, 1999 WL 378343 at * 5 n. 3; Torres v. Irvin, 33 F. Supp.2d at 274 n. 2; Williams v. Bennet, 1998 WL 236222 at * 7 n. 2; Vera v. Hanslmaier, 928 F. Supp. at 286 n. 3. Martinez has presented no facts to rebut that presumption here.
Under New York law, in order to preserve his judicial misconduct claim for appellate review, Martinez was required to object at trial to the judge's general course of misconduct. See CPL § 470.05(2) ; People v. Charleston, 56 N.Y.2d 886, 887-88, 453 N.Y.S.2d 399, 400 (1982) ("A question of law for review [or appeal] is presented on a claim of excessive interference by the Trial Judge when there has been an objection at trial in some form sufficient to give the Judge an opportunity to correct the problem. . . . In the instant case, although defense counsel objected three times to questioning by the Trial Judge, the record indicates that the objections were directed to specific questions rather than to the Judge's general course of action or participation as a whole. By failing to call the Judge's attention to his allegedly prejudicial conduct, defendant did not offer him an opportunity to alter or correct it. Defendant also failed to move for a mistrial, which would have given the trial court an additional opportunity to correct the asserted error."); People v. Yut Wai Tom, 53 N.Y.2d 44, 54-56, 439 N.Y.S.2d 896, 902-03 (1981). Moreover, such an objection must be made "by the party claiming error," CPL 470.05(2), and therefore a codefendant's counsel's objection is not sufficient. E.g., People v. Buckley, 75 N.Y.2d 843, 846, 552 N.Y.S.2d 912, 914 (1990); People v. Peralta, 261 A.D.2d 101, 102, 689 N.Y.S.2d 89, 90 (1st Dep't 1999) ("defendant may not rely upon objections . . . made by the codefendant but not specifically adopted in any manner by defendant"), appeal denied, 93 N.Y.2d 1024, 697 N.Y.S.2d 583 (1999); People v. Green, 235 A.D.2d 309, 309, 652 N.Y.S.2d 955, 955 (1st Dep't) ("Defendant cannot rely on co-defendant's objections. . . ."), appeal denied, 90 N.Y.2d 858, 661 N.Y.S.2d 185 (1997); People v. Foster, 100 A.D.2d 200, 207, 473 N.Y.S.2d 978, 984 (2d Dep't 1984) ("The codefendants, who made no objection . . .[,] waived the issue . . . and cannot avail themselves of their colleague's objection. . . . A reviewable question of law is presented when a protest to a court ruling is registered 'by the party claiming error' but an erroneous ruling warranting reversal of the convictions of defendants who registered protests does not require reversal as a matter of law of the convictions of those who failed to object to the ruling.") (citations omitted), aff'd as modified on other grounds, 64 N.Y.2d 1144, 490 N.Y.S.2d 726, cert. denied, 474 U.S. 857, 106 S.Ct. 166 (1985). Martinez's counsel never moved for a mistrial or challenged the trial judge's alleged smiling in front of the jury or alleged attack on defense counsel ("It's a trick question"). (See pages 5-11 above.) He did not object to the trial judge's questioning of Officer Santamaria. (See pages 11-13 above.) While he did object to one of the judge's questions to the prostitute, Ms. Kim (see page13 above) that single objection is not sufficient under New York law to preserve a claim of judicial misconduct as to the course of this trial. While co-defendants' counsel objected to the trial judge's alleged denigration of counsel and smiling, this Court need not decide if such objections were sufficient under New York law to preserve this judicial misconduct claim for appellate review, since Martinez's counsel did not join in those objections.
N.Y. CPL § 470.05(2) provides, in relevant part:
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.
The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, CPL § 470.05, is an adequate and independent state ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. 478, 485-92, 497, 106 S.Ct. 2639, 2644-48, 2650 (1986) (same); Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground). Indeed, the Second Circuit has expressly recognized New York's Charleston — Yut Wai Tom requirement of objections to a judge's course of conduct as an "adequate and independent" state ground. See, e.g., Garcia v. Warden, 795 F.2d 5, 7 (2d Cir. 1986).
See also, e.g., Simpson v. Portuondo, 2001 WL 830946 at * 10; Simmons v. Mazzuca, 2001 WL 537086 at * 11; Jones v. Duncan, 2001 WL 322190 at 6; Gumbs v. Kelly, 2000 WL 1172350 at 9; Yeung v. Artuz, 2000 WL 145103; Davis v. Miller, 99 Civ. 2423, 1999 WL 1125055 at * 4-5 (S.D.N.Y. Dec. 8, 1999); Cruz v. Greiner, 1999 WL 1043961 at * 14; Owens v. Portuondo, 1999 WL 378343 at * 6; Torres v. Irvin, 33 F. Supp.2d at 263-64, 273-74 (petitioner's failure to appropriately object to judge's actions at trial constituted adequate and independent ground barring judicial misconduct claim from habeas review); Stanley v. Kuhlman, 10 F. Supp.2d at 253-54; Vera v. Hanslmaier, 928 F. Supp. at 285 ("Failure to object at trial is an independent and adequate state procedural bar."); Liner v. Keane, 1996 WL 33990 at *7; Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously . . . constitutes an adequate and independent basis for barring habeas review."); Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at * 4 (E.D.N.Y. Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993).
Because there is an adequate and independent finding by the First Department that Martinez procedurally defaulted on his judicial interference claim, Martinez would have to show in his habeas petition "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565. Martinez has failed to allege cause and prejudice or that a fundamental miscarriage of justice would result if these claims are not addressed. Therefore, Martinez's judicial interference claim is barred from habeas review.
See also, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995) (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence"); Ferguson v. Walker, 2001 WL 869615 at * 8; Simpson v. Portuondo, 2001 WL 830946 at * 10; Simmons v. Mazzuca, 2001 WL 537086 at * 11; Jones v. Duncan, 2001 WL 322190 at * 6; Lugo v. Kuhlmann, 68 F. Supp.2d 347, 363 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d at 145-46; Owens v. Portuondo, 1999 WL 378343 at * 6; Torres v. Irvin, 33 F. Supp.2d at 264, 274; Williams v. Bennet, 1998 WL 236222 at *6; Farrington v. Senkowski, 19 F. Supp.2d at 180 ("The miscarriage of justice exception applies where a petitioner is 'actually innocent' of the crime of which he was convicted or the penalty which was imposed.").
II. EVEN IF THE COURT WERE TO REVIEW MARTINEZ'S CLAIM ON THE MERITS THE TRIAL JUDGE'S ALLEGED MISCONDUCT DID NOT DEPRIVE MARTINEZ OF A FAIR TRIAL
Even if the Court were to review Martinez's petition on the merits, he would not be entitled to habeas relief, since Justice Wittner's conduct did not deprive Martinez of a fair trial.
The Second Circuit has repeatedly held that a trial court's hostility towards defense counsel will lead to reversal only if "'the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.'" United States v. Amiel, 95 F.3d 135, 146 (2d Cir. 1996) (quoting United States v. Robinson, 635 F.2d 981, 984 (2d Cir. 1980), cert. denied, 451 U.S. 992, 101 S.Ct. 2333 (1981)). The Second Circuit has instructed that:
Accord, e.g., United States v. Valenti, 60 F.3d 941, 947 (2d Cir. 1995); United States v. Rosa, 11 F.3d 315, 343 (2d Cir. 1993), cert. denied, 511 U.S. 1042, 114 S.Ct. 1565 (1994); United States v. Logan, 998 F.2d 1025, 1029 (D.C. Cir.), cert. denied, 510 U.S. 1000, 114 S.Ct. 569 (1993); United States v. Pisani, 773 F.2d 397, 402 (2d Cir. 1985); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at * 11 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.).
The court's role is not to determine "whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid." The test is whether the jury was so impressed with the judge's partiality to the prosecution that it became a factor in determining the defendant's guilt, or whether "it appear[ed] clear to the jury that the court believe[d] the accused is guilty."
United States v. Amiel, 95 F.3d at 146 (citations omitted).
Accord, e.g., United States v. Valenti, 60 F.3d at 946; Gumbs v. Kelly, 2000 WL 1172350 at * 11.
"'[M]isconduct by defense counsel may properly be taken into account'" in determining whether the trial judge has gone too far in her comments during trial. Elmore v. Henderson, 85 Civ. 0579, 1989 WL 88719 at * 5 (S.D.N.Y. July 28, 1989) (quoting United States v. Robinson, 635 F.2d at 985). The Second Circuit has recognized that "'judges are only human and they do not possess limitless ability, once passion is aroused, to resist provocation.'" United States v. Robinson, 635 F.2d at 985 (internal ellipses and brackets omitted).
See also, e.g., United States v. Amiel, 95 F.3d at 146; United States v. Pisani, 773 F.2d at 404; Gumbs v. Kelly, 2000 WL 1172350 at *11.
See also, e.g., United States v. Mickens, 926 F.2d 1323, 1327 (2d Cir. 1991), cert. denied, 502 U.S. 1060, 112 S.Ct. 940 (1992); United States v. Bejasa, 904 F.2d 137, 141 (2d Cir. 1990), cert. denied, 498 U.S. 921, 111 S.Ct. 299 (1991); Gumbs v. Kelly, 2000 WL 1172350 at *12.
District Courts apply these same standards on federal habeas review to claims of hostility lodged against state judges. E.g., Gumbs v. Kelly, 2000 WL 1172350 at *11; Salahuddin v. Strack, No. 97-CV-5789, 1998 WL 812648 at * 8 (E.D.N.Y. Aug. 12, 1998) ("habeas relief on the ground of judicial misconduct at the state trial level is warranted only if the federal court determines that the alleged improprieties, taken in the context of the total trial, undermined fundamental fairness to the defendant"); Jones v. Vacco, 95 Civ. 10755, 1997 WL 278050 at *6 (S.D.N.Y. May 23, 1997) (using Amiel test in habeas case).
As the Second Circuit has observed:
[T]he task . . . of determining whether a judge's conduct has "improperly . . . shifted the balance against a defendant" is a difficult one, especially since the printed record cannot convey the atmosphere, the tones of voice of judge, counsel and parties, and their facial expressions. However, we are relegated to doing the best we can with the aid of the trial transcript, bearing in mind the substance or triviality of the various matters claimed to have been the subject of prejudicial conduct or remarks on the judge's part. Experience teaches that quotations lifted out of the transcript can often be unintentionally misleading, since they usually fail to give a true or complete picture of the framework for and background of the allegedly prejudicial comments. Counsel, being advocates, also tend to attach excessive significance to some remarks and to overlook counterbalancing portions of the record. For these reasons it is essential . . . to make a "close scrutiny of each tile in the mosaic."
United States v. Weiss, 491 F.2d 460 (2d Cir. 1974) (fn. citations omitted; quoting United States v. Nazzaro, 472 F.2d 302, 304 (2d Cir. 1973), cert. denied, 419 U.S. 833, 95 S.Ct. 58 (1974)).
Having reviewed the contested portions of the trial transcript, it is clear that the trial judge's conduct at Martinez's trial does not come close to the level of fundamental unfairness contemplated by Robinson and the other cases cited above. Defense counsel invited much of the criticism directed at them by, for example, asking witnesses the same question over a dozen times in a row. (See pages 9-10 above.) And what in a vacuum might appear to be the trial judge's most egregious comment, that one of the defense attorneys (not Martinez's counsel) asked a "trick question" during voir dire, in fact merely had the judge repeating what the juror had said. (See pages 5-6 above.) While a review of the cold trial transcript years later might reveal a mistake that the trial judge was not perfect (few of us are), that is not the standard, and on the whole this Court cannot say that Justice Wittner mishandled the situation in which defense counsel placed her, let alone violated Martinez's constitutional rights. See, e.g., United States v. Amiel, 95 F.3d at 146 (no relief where judge's comments showed justifiable frustration at defense counsel's misleading tactics); United States v. Logan, 998 F.2d at 1029 (attorney's conduct — flouting orders of the court — "invited upbraiding," which therefore did not deny defendant a fair trial); United States v. Mickens, 926 F.2d at 1327-28 (trial judge's comments in response to counsel's "despicable verbal assault" on the court did not deprive defendant of a fair trial); United States v. Bejasa, 904 F.2d at 141 (Judge's questioning of witnesses did not deprive defendant of a fair trial); Garcia v. Warden, 795 F.2d 5, 8 (2d Cir. 1986) ("Although we would not recommend that the trial record in the instant [habeas] case be used as a model for fledgling judges, we are satisfied that it demonstrates no violation of appellant's due process rights."); Gayle v. Scully, 779 F.2d 802, 805-13 (2d Cir. 1985), cert. denied, 479 U.S. 838, 107 S.Ct. 139 (1986); United States v. Pisani, 773 F.2d at 403-04 ("At least some of [the trial judge's] comments were provoked by counsel's continuing to do things that the court had specifically cautioned him to avoid, a factor that properly may be taken into account to determine whether defendant was prejudiced."); Gumbs v. Kelly, 2000 WL 1172350 at * 12 (trial judge's "reprimand[ing] defense counsel in front of the jury in several instances" in response to defense counsel's "persistence and repetition" did not deprive defendant of fair trial); United States v. Daidone, 796 F. Supp. 715, 717-19 (E.D.N.Y. 1992) (cataloging trial counsel's transgressions that led to reprimands and determining that defendant had not been denied a fair trial), aff'd mem., 999 F.2d 537 (2d Cir. 1993).
Moreover, Martinez could not have been prejudiced by any of the Court's comments to or about (other) defense attorneys because they had nothing to do with the merits of the case. See, e.g., United States v. DiTommaso, 817 F.2d 201, 220 (2d Cir. 1987) ("reversal is not mandated where, as here, rebukes of defense counsel reflected not upon the merits of the case but rather on the way it was being handled"); see also, e.g., United States v. Khodadad, No. 94-1693, 122 F.3d 1058 (table), 1995 WL 595073 at * 2 (2d Cir. Sept. 12, 1995) (defendant not prejudiced by court's remarks because, inter alia, "the court's remarks were directed solely to counsel's performance" and not the merits of defendant's case); United States v. Daidone, 796 F. Supp. at 719 (same); Mucci v. United States, 83 Civ. 7263, 1986 WL 6776 at *3 (S.D.N.Y. June 10, 1986) (remark to counsel during voir dire of "You're sure you're a lawyer?" not sufficient to deny habeas petitioner a fair trial).
In short, taken as a whole in the context of the entire trial, the trial judge's conduct did not deprive Martinez of a fair trial.
CONCLUSION
For the reasons set forth above, the Court should deny Martinez's petition and deny a certificate of appealability.
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 the Court, with courtesy copies delivered to the chambers of the Honorable Michael B. Mukasey, 500 Pearl Street, Room 2240, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Mukasey. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 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); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).