Opinion
Case No. 96-CV-4433 (FB)
March 16, 2004
WILLIAM PRIDE, Stormville, New York, for the Petitioner
CHARLES J. HYNES, ESQ., ANN BORDLYE, ESQ., Brooklyn, NY, for the Respondent
MEMORANDUM AND ORDER
Pro se petitioner William Pride ("Pride") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his October 2, 1987 conviction in New York Supreme Court, Kings County, on two counts of attempted murder in the second degree and four counts of robbery in the first degree. Pride alleges numerous errors: 1) that his due process rights were violated by the admission of allegedly inflammatory crime scene photographs; 2) that he received ineffective assistance of trial counsel; 3) that his arrest lacked probable cause; 4) that a jury instruction violated his right against self-incrimination; and 5) that his due process rights were violated by several other errors before and during trial. His petition is denied.
I.
Pride was tried with two codefendants for the robbery of a grocery store in which two employees were shot. On direct appeal, his minimum sentence on each of the attempted murder counts was reduced from twelve and one-half years to eight and one-third years, with his conviction otherwise affirmed. See People v. Pride, 570 N.Y.S.2d 227 (2d Dep't 1991). Specifically, the Appellate Division found that the admission of the crime scene photographs was proper, because the "photographs had probative value in that they showed the layout of the back room and corroborated and illustrated trial testimony." Id. at 229.By letters dated June 14 and July 10, 1991, Pride applied for leave to appeal to the Court of Appeals. In these letters, Pride conceded that the only issue preserved for review was the admission of the allegedly inflammatory crime scene photographs. Leave to appeal was denied on August 9, 1991. See People v. Pride, 574 N.Y.S.2d 952 (1991).
These letters are not in the habeas file before the Court. The Court instead relies on Pride's description of their contents in his habeas pleadings. See Petitioner's Traverse Brief, at XIV; see also Respondent's Affidavit in Opposition to Petition for Writ of Habeas Corpus, at 6.
Pride then moved pro se to vacate his conviction in the Supreme Court of Kings County pursuant to N.Y. Crim. Proc. Law § 440.10. In an unpublished decision dated November 20, 1992, the Court found all of Pride's claims unpreserved and, in the alternative, without merit. Pride then filed a second § 440.10, alleging additional claims, which was denied on September 8, 1994.
Pride initially filed his federal habeas petition on September 10, 1996. On October 23, 1996, the Court issued an Order to Show Cause directing respondent to file an opposition to the petition. Respondent's opposition was filed by the Kings County District Attorney's Office on February 13, 1997.
In a letter dated July 9, 1997, Pride informed the Court that he was withdrawing his petition for habeas relief due to the loss of his reply brief by prison officials. See Letter of William Pride to Pro Se Writ Clerk, July 9, 1997. The case was closed pursuant to that letter on August 29, 1997. Pride subsequently wrote to the clerk's office, stating that he believed he had been "deprived of [his] right to file [his] motion because of this error by this administration" and requesting to be informed of "the status of [his] motion and what [he] could do to be granted the opportunity to file at a later date." Letter of William Pride to Pro Se Writ Clerk, September 9, 1997. The clerk's office mailed Pride a copy of his case's docket sheet. On July 20, 1998, Pride sent another letter to inquire about reopening his case. On August 12, 1999, Pride again requested information regarding reopening. On August 20, 1999, the clerk's office responded by advising Pride that he must file a motion in order to reopen the case. Pride subsequently filed such a motion, dated December 8, 1999, which the Court granted on December 27, 1999. However, due to a clerical error, Pride's case was never formally reopened; therefore, it never appeared on the Court's docket of pending cases. Pride wrote the Court on October 14, 2003, inquiring about the status of his case, which brought this clerical error to the Court's attention.
II.
Only federal issues can be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief may not be granted for claims that were adjudicated on their merits by the state court unless the state court decision (1) 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) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Factual determinations made by the state court "shall be presumed to be correct," and the presumption can be overcome only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
All of petitioner's claims, other than the claim that the trial judge erred in admitting the crime scene photographs into evidence, are either unexhausted or procedurally barred. In any event, they are clearly without merit.
Although not raised by the parties, the Court notes that Pride's petition also appears to be untimely under AEDPA, because his habeas case was closed on August 29, 1997, and Pride did not file his request to reopen until December 8, 1999. The Court need not determine whether Pride can demonstrate extraordinary circumstances that would allow equitable tolling of that period, see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), because it has determined that his claims are without merit.
A. Admission of the Crime Scene Photographs
This is Pride's only claim that was fully exhausted in the state courts. Pride argues that the crime scene photographs admitted into evidence served no legitimate evidentiary purpose and were inflammatory. Trial court evidentiary rulings, even if erroneous, do not rise to the level of constitutional error sufficient to warrant habeas relief except "where the petitioner can show that the error deprived him of a fundamentally fair trial." Rosario v. Kuhlman, 839 F.2d 918 (2d Cir. 1988) (emphasis in the original; quotation omitted). To make such a showing, the petitioner must demonstrate that the admitted evidence was "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quotation omitted).
Applying AEDPA, the Appellate Division's finding, based on its review of the record, that the photographs were properly admitted is presumed to be correct. Pride has not overcome that presumption by clear and convincing evidence. Even if AEDPA did not govern, Pride's claims would fail because a review of the record of Pride's trial does not indicate that the crime scene photographs provided either a basis for conviction or removed a reasonable doubt that otherwise would have existed. See, e.g., Thomas v. Scully, 854 F. Supp. 944, 955-56 (E.D.N.Y. 1994) (even if admission of crime scene photographs was error, "a review of [the] entire record does not reveal that [their] admission `had [a] substantial and injurious effect or influence in determining the jury's verdict'") (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
B. Ineffective Assistance of Counsel
Pride contends that he received ineffective assistance of counsel under Stricklandv. Washington, 466 U.S. 668 (1984), because his trial lawyer failed to object to the Assistant District Attorney's decision to resubmit the case to the grand jury. Pride argues this was error because N.Y. Crim. Proc. Law § 190.75 requires the prosecution to obtain the court's permission prior to resubmitting. Pride's claim is based on an inaccurate premise: the court's permission is only required by § 190.75 when the grand jury has dismissed a charge. Where, as here, the grand jury has voted a true bill against a defendant, the "District Attorney is at liberty to resubmit the matter . . . without court approval and obtain a superseding indictment." People v. Cade, 74 N.Y.2d 410, 415 (1989).
C. Fourth Amendment Claim
Pride does not allege an illegal search or seizure, but rather argues that his arrest, made without a warrant, violated the Fourth Amendment because it lacked probable cause. Pride had been identified from photo arrays by both victims, which is more than sufficient probable cause to justify an arrest under New York State law. See, e.g., People v. Hayes, 595 N.Y.S.2d 239 (2d Dep't 1993).
D. Fifth Amendment Claim
Pride claims that the trial judge deprived him of his right against self-incrimination through a lengthy jury instruction forbidding the jurors to make any inference from his decision not to testify. See Trial Transcript ("Tr.") at 462. The instruction given was proper; therefore it did not violate Pride's right against self-incrimination.
E. Due Process Claims
Pride raises several additional due process claims. First, he contends that his due process rights were violated when he was convicted based on insufficient evidence. Having reviewed the trial transcript, the Court is satisfied that Pride's conviction was supported by ample evidence, especially given that both victims identified him.
Pride also claims that the prosecution violated his due process rights by failing to disclose exculpatory evidence that one of the victims had first picked out a different photograph when perusing police photo books. This evidence actually related to the victims' identification of a codefendant, not Pride. Moreover, it was disclosed to counsel. See Tr. at 20-30.
Pride asserts that his due process rights were violated when the judge failed to instruct the jury on identification. This claim is also factually incorrect: the judge did, in fact, instruct the jury on identification. See Tr. at 490.
Pride also claims the withdrawal of an offered plea bargain deprived him of his due process rights. There is no obligation on the part of the prosecution to allow a defendant to plead guilty in exchange for a lesser sentence; defendants have no enforceable rights in an unexecuted plea agreement. See, e.g., Marby v. Johnson, 467 U.S. 504 (1984).
CONCLUSION
The petition is denied. A certificate of appealability will not issue because Pride has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.
SO ORDERED.