Opinion
No. 02 Civ. 0839 (LTS)(HBP).
March 9, 2004
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
On March 9, 2004, Magistrate Judge Henry Pitman issued a Report and Recommendation ("Report") recommending that the December 4, 2001, pro se petition of Edward McCray ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. Following a March 16, 2004 order of this Court granting petitioner until May 7, 2004, to file objections, Petitioner submitted his Reply to the Report and Recommendation on April 21, 2004, ("Reply").
When reviewing a Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West Supp. 2005). The court must make a de novo determination to the extent that a petitioner makes specific objections to a magistrate's findings. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To the extent, however, that the party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the Report strictly for clear error. See Pearson-Fraser v. Bell Atl., No. 01 Civ. 2343 (WK), 2003 WL 43367, at *1 (S.D.N.Y. Jan. 6, 2003); Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992); Vargas v. Keane, No. 93 Civ. 7852 (MBM), 1994 WL 693885 at *1 (S.D.N.Y. Dec. 12, 1994). Pro se petitioners are generally accorded leniency when making objections. Walker v. Vaughn, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002) (quoting Vasquez v. Reynolds, No. 00 Civ. 0862, 2002 WL 417183 at *5 (S.D.N.Y. Mar. 18, 2002)). Nonetheless, a petitioner's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no petitioner be allowed a "second bite at the apple" by simply relitigating a prior argument. Camardo, 806 F. Supp. at 381-82.
In his petition, Petitioner made two arguments. First, he asserted that his conviction for second-degree murder and possession of a firearm in the third degree rested on insufficient evidence. Second, Petitioner argued that the trial court had abused its discretion when it refused to grant Petitioner a continuance to find a missing supposed eyewitness, thus denying him his due process right to a fair trial. Judge Pitman recommends that Petitioner's insufficient evidence claim be rejected as procedurally barred because Petitioner failed to exhaust the claim by raising it before the New York Court of Appeals. Judge Pitman reviewed the abuse of discretion claim under the applicable standards of the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), and recommends that the petition be denied because Petitioner's arguments are without merit. Petitioner objects to both of Judge Pitman's recommendations.
Petitioner's objections consist of: first, an argument that he did in fact exhaust the insufficient evidence claim and a related proffer of a cause and prejudice argument in connection with his procedural default on that claim and, second, a reiteration of his previous arguments in support of his abuse of discretion claim. The Court, exercising its discretion to consider arguments raised for the first time in objections, has reviewed de novo Petitioner's argument that procedural default does not bar his sufficiency of the evidence claim. The Court has, however, reviewed the Report and Recommendation as to the abuse of discretion claim for clear error only. Sufficiency of Evidence Claim
Petitioner objects on dual grounds to Judge Pitman's finding that his insufficient evidence claim was procedurally barred. First, Petitioner asserts that he properly exhausted his claim before the New York Court of Appeals because his letter to that court requesting leave to appeal meets the fair presentation standard required for exhaustion. Specifically, he points to a single paragraph toward the end of his request for leave, which follows a length argument pertaining to the trial court's failure to grant a continuance and reads in its entirety:
Accordingly, where the proof of appellant's [petitioner's] guilt had been established on less than overwhelming evidence, this error cannot be deemed harmless. See People v. Crimmins, 36 N.Y.[2d] 230, 236 (1975). Therefore, this judgment must be reversed and new trial ordered.
(People's Answer and Exhibits, Ex. D, June 4, 2002 (emphasis added).) Petitioner argues that the letter's references to "less than overwhelming evidence" and to a passage of the New York State Court of Appeals' decision in People v. Crimmins (which deals with state statutes mandating the dismissal of an accusatory instrument if a judgment is reversed on grounds,inter alia, of legal insufficiency of evidence), sufficed fairly to present his sufficiency of the evidence claim to the Court of Appeals.
The Second Circuit recently reiterated the fair presentation standard in Galdamez v. Keane, 394 F.3d 68 (2d Cir. 2005). Principally, a habeas petitioner will have exhausted a federal claim in state court if he has "apprise[d] the highest state court of both the factual and the legal premises of the federal claims ultimately asserted in the habeas petition." Id. at 73. The petitioner must have "'fairly presented his [or her] claims to the state courts,' such that the state court had a fair opportunity to act." Id. (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). Considering the "less than overwhelming evidence" paragraph in petitioner's request for leave before the New York Court of Appeals, even in the light most favorable to Petitioner, the Court cannot say Petitioner fairly presented his sufficiency of the evidence claim such that the Court of Appeals had a fair opportunity to act.
Although a state defendant need not cite "chapter and verse of the Constitution" to fairly present a claim to the state courts,Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982), "terse and uninformative presentation[s]" do not constitute fair presentation. Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir. 1989). Furthermore, "[a]rguing a single claim at length and making only passing reference" to another argument weighs against a finding of fair presentation of the second argument. Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000). Petitioner's letter requesting leave to appeal made, at best, a "passing reference" to his evidence insufficiency claim. The request neither articulated any factual arguments relating to sufficiency of the evidence nor matched factual arguments to case law or Constitutional principles. See Fama v. Comm'r of Corr. Serv., 235 F.3d 804, 809 (2d Cir. 2000). Perhaps more tellingly, appellate counsel repeated Petitioner's Appellate Division argument for abuse of discretion almost verbatim in the letter requesting leave, including the "less than overwhelming evidence" paragraph, essentially copying the content of his Appellate Division brief on this issue directly into his request to the Court of Appeals. None of the factual or legal arguments advanced in that brief's discussion of insufficient evidence appears in the request for leave. The Court, therefore, finds that Petitioner did not fairly present his evidence insufficiency claim before the Court of Appeals, and thus, the claim is procedurally barred.
As Judge Pitman noted in his Report, a procedural bar may be overcome by a demonstration of either "(1) cause and prejudice from petitioner's failure to assert this claim in accordance with state procedural law or (2) that a failure to consider the claim would result in a fundamental miscarriage of justice." (Report,infra page 17 (citations omitted).) Petitioner, who "made no attempt to meet either standard" in the proceedings before Judge Pitman, now asserts in his objections that he can show "cause," "prejudice" and a "fundamental miscarriage of justice." The Court finds Petitioner's proffer unpersuasive.
Report at 12.
Petitioner alleges that his failure to preserve his insufficient evidence claim for habeas review was the product of ineffective assistance of appellate counsel. In Murray v. Carrier, 477 U.S. 478, 492 (1986), the Supreme Court held that ineffective assistance of appellate counsel, if rising to the level of a Sixth Amendment violation, can satisfy the cause and prejudice standard. See also Aparacio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001). Nonetheless, a petitioner may not raise an ineffective assistance of counsel claim where he has no underlying constitutional right to counsel. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) ("[s]ince respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel."). There is no constitutional right to counsel for discretionary appeals. Therefore, because Petitioner had no constitutional right to counsel for his discretionary appeal to the New York Court of Appeals, his ineffective assistance of appellate counsel claim regarding the request for leave to appeal must fail. See Coleman v. Thompson at 752; Hernandez v. Greiner, 414 F.3d 266, 270 (2d Cir. 2005) (denying habeas corpus relief on the basis of ineffective assistance of appellate counsel during discretionary appeal where counsel's failure to timely file papers led to dismissal); Chalk v. Kuhlmann, 311 F.3d 525, 529 (2d Cir. 2002) ("[E]ven if counsel's performance in failing to include [habeas petitioner's] claims in his leave application fell below minimum standards of performance, this did not constitute a deprivation of the constitutional right to counsel because [habeas petitioner] had no constitutional right to counsel for the filing of that application"). As Petitioner identifies no other "cause" for the procedural default, the Court need not consider whether "prejudice" has occurred.
See generally Ross v. Moffitt, 417 U.S. 600 (1974) (declining to extend the right to counsel beyond appellant's first appeal); Wainwright 455 U.S. at 587-88 (finding habeas petitioner had no right to counsel on a discretionary appeal from an intermediate state appellate court to the Florida Supreme Court); Hernandez v. Greiner, 414 F.3d 266, 270 (2d Cir. 2005) (finding no right to counsel for a "second-level appeal" to the New York Ct. of Appeals even after leave to appeal had been granted).
Petitioner's "fundamental miscarriage of justice" argument is also unavailing. The Supreme Court has made plain that only a "narrow class of cases" meets the high standard for a "fundamental miscarriage of justice." See Schlup v. Delo, 513 U.S. 298, 315 (citing McCleskey v. Zant, 499 U.S. 467, 493-94 (1991)). Those rare cases that fall in this category are tied to "actual innocence," where "'[a]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); see also Doe v. Menefee, 391 F.3d 147, 160 (2d Cir. 2004) (describing these "extraordinary case[s]" as those "in which petitioners claim that they are actually innocent of the crimes for which they were convicted."); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002), citing Bousley at 623. As the Supreme Court held in Schlup, "[t]o be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup at 324. Furthermore, "a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. at 329.
Petitioner proffers the Affidavit of Patrick Thomas, a purported eyewitness to the underlying confrontation, as such "new reliable evidence" that the trial jury had not considered. Even if the evidence can be considered "new," its reliability is suspect. Among the reliability issues attendant to the proffer of his testimony are the undisputed facts that Thomas is Petitioner's good friend, Thomas made prior inconsistent statements to the police, and Thomas waited until after Petitioner's conviction to come forward with his testimony. See generally Sentencing Transcript pp. 22-25. Furthermore, federal habeas courts must review the state trial record in "the light most favorable to the prosecution." See Dixon v. Miller, 293 F.3d 74, 78 (2d Cir. 2002), citing Jackson v. Virginia, 433 U.S. 307, 319, 324 (1979); Washington v. Schriver, 255 F.3d 45, 59 (2d Cir. 2001). Considering in the light most favorable to the prosecution the substantial evidence that implicates Petitioner, it cannot be said that no reasonable juror would have convicted Petitioner in light of all the evidence. Thomas's Affidavit at best calls into question "mere legal sufficiency" not "factual innocence." See Bousley at 623. Thus, Petitioner has not met the high standard for showing a fundamental miscarriage of justice. His sufficiency of the evidence claim will be dismissed as procedurally barred.
Petitioner's contention that the shooting occurred in the course of a struggle was presented to the trial jury.
Abuse of Discretion Claim
Although Petitioner has cited different case law in his Reply to support his abuse of discretion claim, Petitioner's argument on this issue does not rise to the level of an objection warranting de novo review under 28 U.S.C. § 636(b)(1). Petitioner merely repackages arguments raised in his initial habeas petition before Judge Pitman. Judge Pitman's Report presents a thorough analysis of the constitutional standards for compulsory process, granting of continuances, and material evidence; the cases cited in Petitioner's Reply shed no new light on his claim. As such, this Court reviews the Report's analysis of the abuse of discretion claim for clear error and finds that nothing in Judge Pitman's application of the relevant legal standards is clearly erroneous. The petition for habeas corpus will therefore be denied.
CONCLUSION
Judge Pitman's Report and Recommendation is hereby adopted in its entirety. The petition for a writ of habeas corpus is denied. Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West Supp. 2005). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West Supp. 2005); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability.
Magistrate Judge Pitman's Report follows.
SO ORDERED.
TO THE HONORABLE LAURA TAYLOR SWAIN, United States District Judge,
I. Introduction
Petitioner Edward McCray seeks, by his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, an Order vacating a judgment of conviction entered on April 18, 1998, after a jury trial, by the Supreme Court of the State of New York, New York County (Scherer, J.), for murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, in violation of New York Penal Law Sections 125.25(1), 265.03 and 265.02(4), respectively. By that judgment, petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of 25 years to life on the murder count, to be served concurrently with two specific terms of seven years and five years imprisonment on the two weapon counts. Petitioner is currently incarcerated pursuant to that judgment.
For the reasons set forth below, I respectfully recommend that the petition be denied.
II. Facts
A. Facts Underlying Petitioner's Conviction
On July 9, 1996, at approximately 5:00 p.m., Delores Douglas was double-parked behind a beige Nissan Altima on 150th Street, in Manhattan, between Broadway and Riverside Avenue (Tr. 39-40). Douglas testified at trial that as she sat in her car, she watched a man she knew as Patrick Thomas and his girlfriend get out of the Altima and cross to the other side of 150th Street where "a whole lot" of women and children had congregated in front of a building (Tr. 41-42). Shortly thereafter, Douglas observed Marlon Dodson enter the passenger side of the Altima (Tr. 43).
"Tr." refers to the Trial Transcript. "S.Tr." refers to the Sentencing Hearing Transcript.
Douglas testified that Dodson was sitting alone in the Altima when petitioner approached the passenger window, placed both hands on the door and stuck his head in the window (Tr. 44-45). Although Douglas could not hear the words exchanged, Douglas could tell that Dodson and petitioner were having a "heated" exchange based on their body language and hand gestures (Tr. 98). Douglas testified that at one point she saw Dodson "wave-off" petitioner with his right hand (Tr. 45). Seconds later, Douglas noticed that Dodson was moving over towards the driver's side of the car and "trying to get out" (Tr. 45). Suddenly, Douglas heard two gunshots (Tr. 45-46). As Dodson scrambled to get out of the car, petitioner stepped away from the window and walked around the back of the Altima towards the driver's side of the car (Tr. 47-49). As petitioner went around the back of the Altima, he passed directly in front of Douglas, who saw that petitioner had a "big black gun" in his hand (Tr. 48).
At trial, Douglas illustrated this "wave-off" using her hand. The Court, for the record, explained that this "wave-off" involved a slight wave towards the petitioner with a bent elbow next to the body and an open palm facing out (Tr. 102).
Meanwhile, Dodson had managed to get the driver's door open, but as he was getting out, he fell to the ground (Tr. 47, 120). As petitioner approached, Dodson "struggled" on the ground, trying to get away from petitioner. Douglas observed petitioner "st[and] over" Dodson, near the front of the car, with his right arm "outstretched," and fire two more shots at Dodson from a distance of about three feet (Tr. 47, 49-50, 107-09, 121-22, 125-26, 128). Douglas observed petitioner then "melt into the crowd" that had "converged down the block" (Tr. 50). Dodson was dead by the time the paramedics arrived (Tr. 215, 224, 330, 336-37).
Later that evening, petitioner made an unexpected visit to his friend Donovan Campbell's home (Tr. 136-37). At trial, Campbell testified that on the evening of the murder, petitioner appeared as if "something was wrong" (Tr. 136). Petitioner told Campbell that he had just "killed somebody" because "the guy owed him some money and the guy refused to pay him and he had no choice, he would not give him his money" (Tr. 137). Campbell testified that petitioner never mentioned to him that Dodson reached for his gun or that any struggle had occurred between the two (Tr. 139).
On cross-examination of Douglas, defense counsel highlighted the fact that 150th Street is on an incline, and that Douglas' car was behind the Altima and slightly lower than the Altima (Tr. 82-83). Further, Douglas' view of Dodson was partially blocked by the headrest (Tr. 82-83). Douglas testified that she was able to see Dodson's head and left shoulder since she was viewing him at an angle — Douglas was in the driver's seat and Dodson was in the passenger seat approximately fifteen feet ahead of her (Tr. 82-83).
Petitioner also presented evidence at trial that at the time of his arrest, he stated in a confession that during the argument, Dodson saw the gun in petitioner's waistband and "went for it," a struggle ensued and the gun "went off" (Tr. 366). Dodson then got out of the car and "came at" petitioner, who "went around the car [and] continued to fire [his] gun as [Dodson] came at [him]" (Tr. 366). Dodson fell to the ground and petitioner went into a building (Tr. 366).
As discussed in more detail below, petitioner sought an adjournment during the trial to locate Patrick Thomas, who allegedly made a statement that he was sitting in the driver's seat of the Altima at the time of the incident. Petitioner claims that Thomas would have testified that Dodson had attempted to pull the gun from petitioner's waistband and that a struggle ensued in which Dodson was shot. The Trial Court denied petitioner's motion for adjournment to locate Thomas (Tr. 439), and petitioner was subsequently convicted.
B. Procedural History
On appeal to the Appellate Division of the New York State Supreme Court, First Department, petitioner argued that (1) the evidence was insufficient to sustain the conviction and (2) the Trial Court abused its discretion by failing to grant petitioner a continuance to locate Patrick Thomas (Petitioner's Appellant Brief, dated September 2000 ("Pet. App. Br.") at 10-16, annexed as Ex. A to Declaration of Sheryl Feldman, dated June 4, 2002 ("Feldman Decl.")).
The Appellate Division affirmed petitioner's conviction in all respects. People v. McCray, 284 A.D.2d 111, 111, 725 N.Y.S.2d 54, 54 (1st Dep't 2001). Petitioner then sought leave to appeal to the New York Court of Appeals on the sole ground that the Trial Court abused its discretion by failing to grant petitioner a continuance to locate Patrick Thomas (Letter of Terence J. Sweeney, Esq., seeking Leave to Appeal, dated June 8, 2001, annexed as Ex. D to Feldman Decl.). The New York Court of Appeals denied petitioner's application for leave to appeal on August 3, 2001. People v. McCray, 96 N.Y.2d 921, 758 N.E.2d 664, 732 N.Y.S.2d 638 (2001).
Petitioner asserts two claims here: (1) that the evidence was insufficient to sustain the conviction and (2) the Trial Court violated petitioner's Due Process rights when it denied him an adjournment to locate Thomas.
III. Analysis
A. Exhaustion and Procedural Bar
Petitioner's first claim — insufficiency of the evidence — fails because it is procedurally barred. It is fundamental that a state prisoner seeking to vacate his conviction on the ground that his federal constitutional rights were violated must first exhaust all available state remedies. 28 U.S.C. § 2254(b);Baldwin v. Reese, Docket No. 02-0964, 2004 WL 372501 at *2 (U.S. Mar. 2, 2004); Picard v. Connor, 404 U.S. 270, 275 (1971); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 808 (2d Cir. 2000). As the Court of Appeals for the Second Circuit has noted:
If anything is settled in habeas corpus jurisprudence, it is that a federal court may not grant the habeas petition of a state prisoner "unless it appears that the applicant has exhausted the remedies available in the courts of the State; or that there is either an absence of available State corrective process; or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. § 2254(b)(1).Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001).
A two-step analysis is used to determine whether a claim has been exhausted:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . .
Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted), overruled on other grounds, Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc). See also Baldwin v. Reese, supra, 2004 WL 372501 at *2;McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002),quoting Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001); accord Powell v. Greiner, 02 Civ. 7352 (LBS), 2003 WL 359466 at *1 (S.D.N.Y. Feb. 18, 2003); Alston v. Senkowski, 210 F. Supp.2d 413, 417 (S.D.N.Y. 2002); Boyd v. Hawk, 94 Civ. 7121 (DAB), 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996).
To satisfy the first element of the exhaustion test, a habeas petitioner must fairly present his federal claim to the state courts. Anderson v. Harless, 459 U.S. 4, 6 (1982); Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002); Galarza v. Keane, 252 F.3d 630, 638 (2d Cir. 2001); Daye v. Attorney Gen., supra, 696 F.2d at 191.
To satisfy the second step of the analysis, "a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991).See also O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). Exhaustion requires that a prisoner must even pursue discretionary state appellate remedies before he can raise a claim in a habeas corpus proceeding. Baldwin v. Reese, supra, 2004 WL 372501 at *2; O'Sullivan v. Boerckel, supra, 526 U.S. at 846-48.
Unexhausted claims are deemed exhausted if the petitioner no longer has any remedy available in the state courts. Gray v. Netherland, 518 U.S. 152, 161 (1996); Engle v. Isaac, 456 U.S. 107, 124 n. 28 (1982); Nevarez v. Artuz, 99 Civ. 2401 (LBS), 2000 WL 718450 at *3 (S.D.N.Y. June 5, 2000); Hurd v. Stinson, 99 Civ. 2426 (LBS), 2000 WL 567014 at *7 (S.D.N.Y. May 10, 2000).
This apparent salve, however, proves to be cold comfort to most petitioners because it has been held that when "the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred," federal habeas courts also must deem the claims procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).Aparicio v. Artuz, supra, 269 F.3d at 90.
In the absence of a showing of cause for and prejudice from the failure to raise the claim in conformity with state procedural requirements or a fundamental miscarriage of justice, such a claim, although deemed exhausted, will be forfeited and barred from serving as the basis for habeas relief.
Where a petitioner has failed to present his or her federal claims to the state courts in accordance with state procedural requirements, and no longer has recourse to state review, he or she will be found to have met the exhaustion requirement of 28 U.S.C. § 2254(b); however, the claims will be subject to procedural bar in this court. See Coleman v. Thompson, 501 U.S. 722 (1991); Castille v. Peoples, 489 U.S. 346, 350 (1989); Teague v. Lane, 489 U.S. 288, 297-98 (1989). If there is such a procedural bar, the claim cannot be heard absent a showing of cause for the procedural default and prejudice. Wainwright v. Sykes, 433 U.S. 72 (1977).Norwood v. Hanslmaier, 93 Civ. 3748, 1997 WL 67669 at *2 (E.D.N.Y. Feb. 11, 1997).
Here, petitioner never raised the claim of insufficiency of the evidence in his application for leave to appeal to the New York Court of Appeals. Since petitioner has failed to assert his claim in the highest state court available to him, it is unexhausted.
Nevertheless, petitioner's unexhausted claim is now deemed exhausted but procedurally barred from review on habeas corpus because there is no remaining state remedy available to petitioner. As the Court of Appeals for the Second Circuit explained in Spence v. Superintendent, Great Meadow Corr. Fac., 219 F.3d 162, 170 (2d Cir. 2000):
New York permits only one application for direct review, see N.Y. Rules of Court, Court of Appeals, § 500.10(a) (McKinney 1999), and having failed to raise the claim on direct appeal [petitioner] may not seek collateral relief in New York courts, see N.Y. Crim. Proc. Law. § 440.10(2)(c) (McKinney 1994); Strogov v. Attorney Gen., 191 F.3d 188, 193 (2d Cir. 1999); Washington, 996 F.2d at 1447; Grey, 933 F.2d at 120. Because [petitioner] failed to raise his claim in the ordinary appellate process and can no longer do so, it is procedurally defaulted.See also Jones v. Keane, 329 F.3d 290 (2d Cir. 2003);Aparicio v. Artuz, supra, 269 F.3d at 91; Black v. McGinnis, 99 Civ. 755 (MBM), 2001 WL 209916 at *4 (S.D.N.Y. Mar. 1, 2001).
Further, petitioner cannot assert this claim in a motion to vacate under New York Criminal Procedure Law Section 440.10. CPL § 440.10(2)(c) mandates denial of a motion to vacate a conviction if "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. . . ." See also Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002). The facts supporting a claim of insufficient evidence, as a matter of logic, are sufficiently apparent from the record to permit the claim to be asserted on direct appeal.See Burnie v. Duncan, 99 Civ. 350 (JG), 2003 WL 22670913 at *3 n. 3 (E.D.N.Y. Nov. 3, 2003); Ayuso v. Artuz, 99 Civ. 12015 (AGS)(JCF), 2001 WL 246437 at *11 (S.D.N.Y. Mar. 7, 2001). Thus, petitioner's claim cannot now be raised on a motion to vacate. Accordingly, it is also deemed exhausted but procedurally barred from federal habeas review. See Norwood v. Hanslmaier, supra, 1997 WL 67669 at *2.
Petitioner could theoretically overcome the procedural bar by demonstrating either (1) cause for and prejudice from petitioner's failure to assert this claim in accordance with state procedural law or (2) that a failure to consider the claim would result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 324-27 (1995); Coleman v. Thompson, 501 U.S. 722, 748-50 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989); Jones v. Vacco, 126 F.3d 408, 414 (2d Cir. 1997). Since the petitioner has made no attempt to meet either standard, however, this claim is procedurally defaulted and cannot provide a basis for habeas relief. Accordingly, petitioner's claim of insufficiency of the evidence should be dismissed.
B. Motion for Continuance
1. Additional Facts
In addition to the facts set forth in Section II, the following additional facts are also relevant to petitioner's claim that he was improperly denied a continuance.
On the date of the murder, the police interviewed Patrick Thomas and obtained two separate written statements from him in which he stated that he did not see any portion of the shooting (Tr. 277, 435). Thomas stated that he was either inside a building, or on his way into a building, at the time of the shooting (Tr. 436). In both statements he said that he heard the shots but didn't "have any idea who it was who did the shooting" (Tr. 436).
Subsequently, in October 1997, Thomas made an additional but inconsistent statement to petitioner's investigator. Specifically, Thomas stated that he was in the driver's seat of the Altima and that another man, named Troy, was in the backseat at the time of the shooting (Respondent's Appellate Brief, dated April 2001 ("Resp. App. Br.") at 28, annexed as Ex. B to Feldman Decl.; S.Tr. 18-22). Dodson, who was in the front passenger seat of the Altima, beckoned petitioner (Resp. App. Br. at 28). Petitioner approached and when he asked Dodson about money that Dodson owed him, Dodson made an "'insulting remark'" about petitioner (Resp. App. Br. at 28). Dodson then saw a gun in petitioner's waistband, reached for it, a "'violent struggl[e]'" for the gun ensued and "'the gun went off'" (Resp. App. Br. at 28; Tr. 437, 438; Petition, dated December 4, 2001 ("Petition"), at 6). At that point, Thomas jumped out of the car and then heard three more shots go off before running across the street (Resp. App. Br. at 28). Thomas then saw Dodson get out of the driver's side door, walk in front of the car and collapse (Resp. App. Br. at 28).
Thomas gave this statement to petitioner's investigator in October 1997 — several months before trial. The investigator's notes of this interview were admitted as Exhibit 4 at petitioner's trial. Neither side has submitted the investigator's notes in connection with the pending petition. My summary of the content of the investigator's notes is based on both parties' filings in the instant petition, the briefs before the Appellate Division and the Trial Transcript and Sentencing Transcript.
In his statement to petitioner's investigator, Thomas described both petitioner and Dodson as "'dear friends of his with whom he had grown up'" (Resp. App. Br. at 29). Thomas, however, refused to sign this statement and told petitioner's investigator that he "'would have to think about it for a while'" (Resp. App. Br. at 29). The investigator left his card with Thomas and told him to call (Resp. App. Br. at 28). Thomas never called (Resp. App. Br. at 28).
For several months prior to trial, the prosecution and defense attempted to contact Thomas without success. Petitioner's investigator made numerous telephone calls and two personal visits to Thomas' residence (Tr. 434; S.Tr. 6). The prosecution's efforts to contact Thomas were equally futile. A detective assigned to the case went to, and left his business card at, Thomas' residence and various locations that Thomas was known to frequent (Tr. 277-78). A week before trial the prosecutor sent detectives to Thomas' last known address, his girlfriend's address and a pool hall that Thomas used to frequent and left business cards and notes with Thomas' mother, friends and ex-girlfriends (S.Tr. 16). Thomas never responded (S.Tr. 15-16).
On February 6, 1998, petitioner's investigator spoke with Thomas' mother at Thomas' residence and left a subpoena with her for his appearance in court the following Monday, February 9, 1998 (Tr. 434, 438). Thomas' mother apparently made no assurances that Thomas would receive the subpoena (see S.Tr. 12). On Monday, Thomas failed to appear in court and petitioner sought an adjournment. The Trial Court denied petitioner's request for an adjournment for two reasons: (1) petitioner did not mention to the Trial Court the possibility of calling Thomas as a witness until that morning — Monday, February 9, 1998 — when the prosecution had rested and jury deliberations were scheduled to begin (Tr. 439) and (2) petitioner had been unsuccessfully trying to locate Thomas for several months and there was no evidence that petitioner was any closer to finding Thomas on the date of the request than he was months ago (Tr. 439).
At the sentencing hearing, petitioner moved to set aside the verdict on the grounds that the denial of his request for an adjournment was an abuse of discretion (S.Tr. 4). In addition to reiterating his previous arguments, petitioner presented the new fact that Thomas had contacted petitioner's counsel two hours after the jury had reached a verdict and explained that he had received the subpoena but was unable to appear due to child care problems (S.Tr. 14-15). Thomas stated that he would be available to testify at any time in the future (S.Tr. 14-15). Thomas also subsequently signed an affidavit affirming the statements he had previously made to petitioner's investigator (S.Tr. 14-15).
Prior to deciding the motion to set aside the verdict, the Trial Court heard both sides' arguments and asked petitioner's counsel several questions (S.Tr. 6-24). In response to these questions, petitioner's counsel conceded that Thomas' October 1997 statement was contradicted by: (1) two prior written statements by Thomas made on the day of the murder (Tr. 18-19), (2) Douglas' testimony that she had seen Thomas depart the car and cross the street prior to Dodson ever even entering the car (Tr. 18-19), (3) Douglas' testimony that Dodson was the only person in the car at the time of the murder (Tr. 18-19) and (4) petitioner's own confession, which the Court described as "detailed," in which he made no mention of his friend, Thomas, whose testimony could have potentially exonerated him (S.Tr. 20-21). The Court also noted that it was unclear whether Thomas ever received the subpoena and that there was no "reasonable expectation" that Thomas could be produced within "any period of time" (S.Tr. 24). Finally, the Court noted that if defense counsel had the opportunity to interview Thomas and found him to be untruthful, defense counsel, as an officer of the court, would not call him as a witness (S.Tr. 23). Even if defense counsel did not believe that Thomas was committing perjury, the Court expressed skepticism that defense counsel would call a witness who was so vulnerable to impeachment; especially in light of the fact that counsel had never even met the witness and had no chance to interview him or evaluate his credibility (S.Tr. 9-10, 23). Accordingly, petitioner's motion was denied.
Petitioner now argues that his constitutional rights were violated when the Trial Court denied his request for an adjournment in order to locate Patrick Thomas (Petition at 6).
2. Standard of Review
Where the state court has addressed a habeas petitioner's claims on the merits, a habeas petitioner must meet a stringent standard before a federal court can issue the writ. Specifically, 28 U.S.C. § 2254(d) provides that in such a situation, habeas relief may be granted only when the state court's decision
(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.
The Supreme Court has recently explained the alternative standards set forth in the former paragraph quoted above as follows:
First, we have explained that a decision by a state court is "contrary to" our clearly established law if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). See also Early v. Packer, 537 U.S. 3, 7-8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). . . .
Second, respondent can satisfy § 2254(d) if he can demonstrate that the [State] Court's decision involved an "unreasonable application" of clearly established law. As we have explained,
"a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly. See Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Williams, supra, at 411, 120 S.Ct. 1495. Rather, it is the habeas applicant's burden to show that the state court applied [that case] to the facts of his case in an objectively unreasonable manner."
Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).Price v. Vincent, 538 U.S. 634, ___, 123 S.Ct. 1848, 1853 (2003). See also Lockyer v. Andrade, 538 U.S. 63, 70-74 (2003); Drake v. Portuondo, 321 F.3d 338, 343 (2d Cir. 2003);Grotto v. Herbert, 316 F.3d 198, 205 (2d Cir. 2003); Brown v. Artuz, 283 F.3d 492, 500-01 (2d Cir. 2002).
In order to be entitled to the deferential standard of review, the state courts must have resolved the petitioner's claims "on the merits." The Court of Appeals has recently addressed the meaning of "on the merits" in Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003):
As we have previously stated, "[t]he necessary predicate to this deferential review is, of course, that petitioner's federal claim has been 'adjudicated on the merits' by the state court. If a state court has not adjudicated the claim 'on the merits,' we apply the pre-AEDPA standards, and review de novo the state court disposition of the petitioner's federal constitutional claims." Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). We have further held that "[a] state court 'adjudicates' a petitioner's federal constitutional claims 'on the merits' when it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment.'" Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). To determine whether a state court has disposed of a claim on the merits, we consider: "(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Aparicio, 269 F.3d at 93 (quoting Sellan, 261 F.3d at 314).See also Drake v. Portuondo, supra, 321 F.3d at 343;Grotto v. Herbert, supra, 316 F.3d at 205; Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002); Brown v. Artuz, supra, 283 F.3d at 498.
In this case there is little question that the Appellate Division addressed petitioner's continuance claim on the merits. The Appellate Division rejected petitioner's claim with the following language:
The court appropriately exercised its discretion in denying defendant's last-minute request, after the prosecution had finished its case, for a continuance to attempt to produce a potential witness. Defendant failed to show that he could be produced within a reasonable time (see, Matter of Anthony M., 63 NY2d 270, 283-284; People v. Covington, 233 AD2d 169, lv denied 89 NY2d 941).People v. McCray, supra, 284 A.D.2d at 111, 725 N.Y.S.2d at 54.
The foregoing language clearly demonstrates that the Appellate Division addressed the substance of the petitioner's continuance claim and does not even suggest that procedural deficiencies played any role in the court's decision.
In light of the language used by the Appellate Division, I conclude that the state court did resolve petitioner's continuance claim on the merits and the decision of the state court is, therefore, entitled to the deferential standard of review set forth in the Anti-Terrorism and Effective Death Penalty Act ("AEDPA").
3. Analysis
Due Process "guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted). See also Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Grotto v. Herbert, supra, 316 F.3d at 205-206; Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993); Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988); Singleton v. Lefkowitz, 583 F.2d 618, 623 (2d Cir. 1978). A motion for a continuance to facilitate the presentation of evidence by an accused, however, remains entrusted to the discretion of the trial court; the denial of a continuance violates an accused's Constitutional rights only where "the denial of a continuance was arbitrary and . . . the denial substantially impaired [the accused's] defense." Wood v. Artuz, 39 F.Supp.2d 211, 214 (E.D.N.Y. 1999), citing United States v. Edwards, 101 F.3d 17, 18 (2d Cir. 1996) and United States v. King, 762 F.2d 232, 235 (2d Cir. 1985). See also Morris v. Slappy, 461 U.S. 1, 12 (1983); United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); Drake v. Portuondo, supra, 321 F.3d at 343 ("only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the [Constitution]" (internal quotation marks and citations omitted)); Grotto v. Herbert, supra, 316 F.3d at 206; United States v. Arena, 180 F.3d 380, 397 (2d Cir. 1999) ("The denial of a defendant's request for a continuance will not be reversed absent a showing of both arbitrariness and of prejudice to the defendant.");United States v. Zuber, 118 F.3d 101, 104-105 (2d Cir. 1997) ("Absent a showing both that the denial was arbitrary and that it substantially impaired the defendant's opportunity to secure a fair sentence, we will not vacate a sentence because a continuance was denied."), citing United States v. Prescott, 920 F.2d 139, 146-47 (2d Cir. 1990); Allen v. Senkowski, 97 Civ. 3296 (MBM), 97 Civ. 4412 (MBM), 2003 WL 169788 at *3 (S.D.N.Y. Jan. 24, 2003) ("An adjournment is appropriate to secure a witness where it can be shown that the witness's testimony is material, the delay is not the fault of the applying party, and it is likely that the witness will be present at the time trial resumes"), citing Cruz v. Greiner, 98 Civ. 7939 (AJP), 1999 WL 1043961 at *32-*34 (S.D.N.Y. Nov. 17, 1999). Thus, where the denial of a continuance is alleged to have resulted in a constitutional violation, the defendant must show "that the evidence lost would [have] be[en] both material and favorable to the defense. . . ." United States v. Valenzuela-Bernal, supra, 458 U.S. at 873; Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983); Wood v. Artuz, supra, 39 F. Supp.2d at 214;Collado v. Smith, 95 Civ. 0967 (SJ), 1997 WL 124211 at *3 (E.D.N.Y. Mar. 11, 1997); Roberts v. Scully, 875 F. Supp. 182, 190 (S.D.N.Y.), aff'd mem., 71 F.3d 406 (2d Cir. 1995).
Here, petitioner has not met this standard; the Trial Court's decision was not "arbitrary" nor did it "substantially impair" petitioner's defense.
a. Arbitrariness
The Trial Court's decision was not "arbitrary," because (1) both parties had been unsuccessful in locating Thomas for a period of several months and there was no indication that either party was about to succeed in locating him, (2) petitioner first mentioned the possibility of calling Thomas as a witness on the date that jury deliberations were set to begin and (3) Thomas' testimony was of little probative value because it was extremely vulnerable to impeachment.
First, it was unclear at the time of the Trial Court's decision whether Thomas would have ever appeared in Court. Both sides had made extensive efforts to locate Thomas, including telephone calls, personal visits to his residence and leaving business cards with Thomas' friends and locations where Thomas was known to frequent (Tr. 277-78, 434; S.Tr. 6, 14-15). The fact that Thomas called two hours after the verdict was rendered and claimed to be available to testify the next day is immaterial because this information was not available to the Trial Court at the time of its decision. In determining whether the Trial Court abused its discretion in denying an adjournment, the facts must be considered as they were known to the Court at the time of the decision — not as the facts came to be known after the decision.See generally Calderon v. Artuz, 97-CV-1965 (JG), 2001 WL 135741 at *2 (E.D.N.Y. Jan. 31, 2001); People v. Foy, 32 N.Y.2d 473, 478, 299 N.E.2d 664, 667, 346 N.Y.S.2d 245, 249 (1973);People v. Calderon, 185 A.D.2d 853, 853, 587 N.Y.S.2d 663, 664 (2d Dep't 1992). At the time the Trial Court rendered its decision, it simply had no evidence before it that suggested that Thomas could be located anytime in the near future.
Second, the fact that petitioner first mentioned a desire to call Thomas as a witness on the date that the jury deliberations were set to begin is a factor weighing against the granting of a continuance. As explained by the Honorable Leonard B. Sand, United States District Judge, in Ferlito v. Commissioner of New York Corr. Servs., 85 Civ. 6189 (LBS), 1986 WL 6019 at *2-3 (S.D.N.Y. 1986):
Further supporting the trial judge's exercise of discretion is the fact that [petitioner's] trial counsel did not request a continuance for the purpose of allowing [a witness] to testify until after the trial had begun (and, in fact, was into its second month). . . . After a trial has begun, the dangers and costs associated with a lengthy continuance become far greater than they were beforehand. A trial judge may properly deem it appropriate to refuse a request for a continuance that he might have granted at an earlier date.
Finally, as discussed in detail below, Thomas' statement was extremely vulnerable to impeachment and, thus, of limited probative value. This final factor, when coupled with the facts that Thomas could not be located and jury deliberations were set to begin, leads to the conclusion that the Trial Court's decision was not "arbitrary."
b. Substantial Impairment
The Trial Court's decision did not "substantially impair" petitioner's defense because there is an overwhelming amount of evidence suggesting that Thomas' October 1997 statement was false.
First, Thomas' own written statements on the date of the shooting placed him at or close to the building across the street at the time of the shooting (Tr. 277, 435-466). This corroborates Douglas' testimony that she saw Thomas outside of a building across the street at the time of the shooting and that nobody except Dodson was inside the Altima at the time of the shooting (Tr. 41-42). Douglas' testimony is bolstered by the fact she had no motive to lie, and, unlike Thomas, she was not a "dear friend" of petitioner (Resp. App. Br. at 29, see footnote 3, above).
Thomas' October 1997 statement was also subject to impeachment by the testimony of petitioner's friend, Donovan Campbell. Campbell testified that petitioner told him that he killed Dodson because Dodson owed him money (Tr. 136-137). In the course of a fifteen-minute conversation describing the incident, petitioner made no mention to Campbell of a struggle for the gun or that the killing was an accident (Tr. 139).
Finally, testimony by a medical expert and ballistics expert confirms Douglas' version of the events and contradicts Thomas' version. Specifically, Dr. Flomenbaum testified that three bullets hit Dodson; one bullet entered the back of Dodson's thigh — below his buttock, one bullet entered Dodson's buttock and one bullet entered Dodson's back and exited through his chest (Tr. 174-75). Dr. Flomenbaum testified that bullets entering Dodson's backside was inconsistent with a "face to face" or "face to side" struggle (Tr. 176). Dr. Flomenbaum testified, however, that the manner in which the bullets entered Dodson was consistent with Douglas' account that two shots were fired while Dodson was climbing out of the driver's side of the Altima, and a third shot hit Dodson while he was lying on the ground (Tr. 174-75).
In addition, the bullet which entered Dodson's back and exited his chest was lodged in his clothing and had been fragmented in a distorted manner (Tr. 307-309; Tr. 244-45). Both Dr. Flomenbaum and Detective Barry, the ballistics expert, testified that the fact that the bullet was lodged in Dodson's clothing and was severely distorted was most likely due to the bullet hitting a very hard object upon exit — such as a concrete street (Tr. 307-309). No material inside of the car was hard enough to stop a bullet and cause it to remain lodged in Dodson's clothes or cause it to fragment in the manner in which it did (Tr. 244-45, 308). Thus, this testimony further corroborates Douglas' account and renders Thomas' account virtually impossible.
All of the foregoing evidence leads to the conclusion that the Trial Court's decision was not arbitrary nor did it substantially impair petitioner's opportunity to present a defense. Thus, I conclude that the Trial Court's denial of an adjournment did not unreasonably deny petitioner his constitutional right to Due Process.
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that the petition be denied.
In addition, since petitioner has not made a substantial showing of the denial of a constitutional right, I also recommend that a certificate of appealability not be issued. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997).
I further recommend that certification pursuant to 28 U.S.C. § 1915(a)(3) not be issued because any appeal from this Report and Recommendation, or any Order entered thereon, would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a) and 6(e). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, United States District Judge, Room 1205, 40 Centre Street, New York, New York 10007 and to the chambers of the undersigned, Room 750, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO OBJECT WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); 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 n. 2 (2d Cir. 1983).