Opinion
00 Civ. 4787 (RWS).
March 1, 2001.
Roberto Ramirez Petitioner Pro Se DIN # 97 R, Marcy, NY.
Honorable Eliot L. Spitzer Attorney General of the State of New York Attorney for Respondent, New York, NY, Nicola N. Greya, Assistant Attorney General.
OPINION
Pro se petitioner Roberto Ramirez ("Ramirez") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Superintendent Edward Reynolds ("Reynolds") opposes the petition. For the reasons set forth below, the petition is denied.
The Parties Ramirez is an inmate in state custody at Mohawk Correctional Facility ("Mohawk") in Rome, New York.
Reynolds is the Superintendent of Mohawk.
Prior Proceedings
A jury convicted Ramirez of robbery in the first degree on July 17, 1997. On July 22, 1997, a judgment of conviction was entered in the New York County Supreme Court, and Ramirez was sentenced to a term of 4 to 9 years to be served in the custody of the New York State Department of Correctional Services.
The judgment of conviction was affirmed by the New York Appellate Division, First Department (the "Appellate Division"), on September 28, 1999. See People v. Ramirez, 264 A.D.2d 666 (N.Y.App.Div. 1999). In his direct appeal Ramirez raised four grounds for reversal of the conviction: (1) that the verdict was contrary to the weight of the evidence and insufficient as a matter of law; (2) that eleven of the jurors deliberated in the absence of the twelfth juror; (3) that the trial court abused its discretion by adjourning deliberations over the weekend rather than declaring a mistrial due to the absence from court of the Ramirez's co-defendant; and (4) the interest of justice.
With respect to the jury deliberation claim, the decision of the Appellate Division states: "Defendant's claim that the unsequestered deliberating jury conducted deliberations in the absence of a juror who arrived late is a claim requiring preservation [citation omitted], and we decline to review it in the interest of justice. Were we to review this claim, we would find it unsupported by the record."
Leave to appeal from the decision of the Appellate Division to the New York Court of Appeals was denied on November 24, 1999. See People v. Ramirez, 724 N.E.2d 390 (N.Y. 1999).
On or about February 23, 2000, Ramirez filed the instant petition for a writ of habeas corpus. The grounds asserted in the petition are: (1) that the verdict was contrary to the weight of the evidence and insufficient as a matter of law; (2) that eleven of the jurors deliberated in the absence of the twelfth juror; (3) that the trial court abused its discretion by adjourning deliberations over the weekend rather than declaring a mistrial due to the absence from court of the Ramirez's co-defendant.
Ramirez dated the petition February 23, 2000. A file stamp from the Northern District of New York indicates that it was received in that court on April 20, 2000, and a second file stamp indicates it was received by the Pro Se Office of the Southern District of New York on May 26, 2000. Petitions for habeas corpus are deemed filed as of the date they are given to prison authorities. See Nelson v. Walker, 121 F.3d 828, 832 n. 2 (2d Cir. 1997).
On November 28, 2000, Reynolds filed his opposition to the petition, at which time the matter was marked fully submitted.
Facts The Evidence At Trial
Ramirez was tried along with Jose Ramos ("Ramos").
The following evidence was adduced primarily through the testimony of the victim, Joseph Lantigua ("Lantigua"), as well as through the testimony of certain police officers. Lantigua had met Ramos through an acquaintance on three occasions before the night of the crime. On Thursday, January 30, 1997, Lantigua went to his job at Barrier Freeliving, a facility for homeless and disabled people located on East Second Street between Avenues C and D in Manhattan. Lantigua left work at about 12:05am on January 31, and walked to his apartment building near East Tenth Street and Avenue D, arriving at about 12:20 or 12:25am. As he was about 10 feet from East 10th Street, Lantigua noticed Ramos and another man whom Lantigua did not recognize standing near his building with their backs to him. Lantigua tried to pass them on the right to get to his building, but Ramos and his companion grabbed Lantigua. Ramos told Lantigua that he had a gun and showed him a silver-colored pistol.
Ramos and his companion then pushed Lantigua into the back seat of a dark blue, four-door Lincoln Town car which was double-parked on Tenth Street with the motor running. As he got into the car, Lantigua was able to see the face of the driver, whom he identified in court as Ramirez. Lantigua had never seen him before. Lantigua was pushed into the back driver's side seat, about two feet behind Ramirez, and Ramos got into the back seat to Lantigua's right. Ramos still had the gun in his right hand, which he held down near his left leg. There was another car parked behind Ramirez's Lincoln with its headlights on, but which Lantigua could not see clearly.
Ramirez drove quickly away with Lantigua and Ramos in the car. Lantigua asked where they were taking him, to which Ramos replied, "for a ride." Pointing his gun at Lantigua, Ramos asked for his wallet, and Lantigua handed it over. Ramos looked through the wallet, then complained that there was no money and asked Lantigua where his money was. Lantigua took $15 from his pocket and gave it to Ramos, who counted the money and remarked that there were only single dollar bills. Ramirez asked, "that's all he has?" and Ramos replied, "he has cards." Ramirez said they would "talk about it in the Bronx." Both Ramirez and Ramos spoke loudly and clearly. Ramirez said, "we need more money than this." Ramos asked Lantigua if he had a friend with money, and suggested they could go to the friend's home and get it. Lantigua said his only friend was "Luis" — who was a person who had been with him the second time he met Ramos — but that Luis did not have any money. Ramirez kept driving during this conversation, and it took him about ten minutes to drive to the Willis Avenue Bridge. Ramos kept his gun trained on Lantigua except when he was counting Lantigua's money. Lantigua kept asking Ramirez and Ramos to let him go, and said he did not have any more money, but both Ramirez and Ramos said it was easy for him to get money.
Ramirez and Ramos discussed that the car Ramos's companion had gotten into was supposed to follow them to a place in the Bronx, but the car was not behind them. Ramirez told Ramos that he was going into a building to beep the other car so they could get together. When Ramirez returned to the car after 15 or 20 minutes, he asked Lantigua for his wallet, which contained five credit cards and a bank card, and Lantigua gave it to him. Ramirez looked at the cards in the wallet, told Ramos which were expired and which were good, and concluded, "there's money here." Lantigua volunteered that they could check out whether he could withdraw money from a teller machine.
Uniformed police officers William Clark ("Clark") and Daniel Capangna ("Capangna"), who were patrolling the 42nd Precinct in a marked police car, noticed Ramirez's Lincoln driving west on 168th street as the officers were driving east. Seeing that one of the car's headlights were burned out, the officers decided to issue a traffic summons.
As soon as the police car put its lights on, Ramos said, "oh, shit." Ramirez then returned Lantigua's wallet to him. Ramos put his gun in his left hand and placed that arm around Lantigua's back.
Clark and Capangna stopped the Lincoln near the corner of Washington Avenue about 30 seconds after putting on their turret lights. As Clark approached the driver's window to ask for Ramirez's paperwork, Lantigua realized that "if I didn't do anything now I would not be able to do anything later." He began knocking on his window, but Clark did not hear him. Lantigua then opened the back passenger door and got out of the car. He told Clark in English, "I need help, I was robbed by these two people that were in the car. They're bringing me from Manhattan, and they are trying to take me to the bank." Clark had trouble understanding Lantigua because he was speaking quickly in "choppy English," and stuttering. In addition, Lantigua's hands were trembling and he appeared "visibly shaken" and afraid.
The officers could see through the open door that Ramirez was sitting in the driver's seat with the motor running, and Ramos was sitting in the rear seat to the right of where Lantigua had been. There was a two-way radio in the car, but it was not turned on and no sound was coming from it.
Lantigua told Clark that there was a gun, and pointed at the shelf behind the rear seat on the driver's side of the car, directly behind where Lantigua had been seated. Campagna used a flashlight to look into the truck and saw a gun in the forward part of the trunk, beneath the speaker hole on the driver's side of the back seat shelf. A backup officer recovered the gun, which was loaded, and gave it to Clark.
Clark and Campagna arrested Ramirez and Ramos. Lantingua told the police that Ramirez and Ramos had taken single dollar bills from him.
Ramon Marte ("Marte"), a witness for the defense, was the owner of a car service company for which Ramirez had worked since at least 1994. Ramirez was working for Marte's company on the night in question. Marte testified regarding the company's dispatch system, and the record-keeping for dispatches. According to the dispatch system, when the dispatcher gets a call he announces or "throws" it, and the next driver whose car is in line to get a dispatch, and who is available, takes the call. The company keeps written records, but Marte believed the records for January 31, 1997, were no longer in existence because the company had since been sold.
Josefina Pereira ("Pereira"), a dispatcher for the company, also testified for the defense. Pereira had known Ramirez for about three years through the car service company. Pereira testified that she took a phone call from Ramos in the late evening of January 30 or early morning of January 31, 1997, and that she recognized his name because he was a "customer at the base." She also testified that she knew what Ramos looked like, and identified him in open court. On the night in question, Ramos called and Pereira "throw [sic] the call" on the two-way radio which communicated with all the company's drivers. The number of Ramirez's car then came up on an electronic board in the dispatch office. A driver's number comes up when that driver is the first to respond. When Ramirez's number came up, Pereira told him where to pick up the fare, i.e., Ramos. Pereira also testified that there were about twenty-five other drivers on duty that night, and that some customers request a specific car. Pereira confirmed that there were no written records available for the night in question because the company had since been sold. She also testified that she had found out about Ramirez's arrest within about two days of it happening, and had promptly looked at her records of dispatches for the night in question. The government questioned Pereira in the jury's presence regarding whether her recollection was based on the unavailable written records, or her independent recollection, and Ramirez's attorney elicited testimony that it was an unusual occurrence for Pereira to have learned of Ramirez's arrest.
Ramirez testified in his own defense. He denied the charges, and testified that he picked up the call by chance when it was "thrown" by the dispatcher. He denied any prior personal relationship with Ramos, although he had picked him up on about three prior occasions. According to Ramirez, he drove downtown at Ramos' instructions only to be told by Ramos that Ramos had no money and would be unable to pay the fare until a friend arrived. Ramirez objected, but to no avail, and after a wait of about five minutes one or more people whom Ramirez did not recognize, including Lantigua, arrived. Ramirez testified that Ramos and Lantigua got into his car and asked to be taken to Ramos's home, that Ramirez then drove to the Bronx, that Ramirez heard no complaints from Lantigua about being robbed, and that Ramirez did not see Ramos taking Lantigua's wallet. He further testified that he had not seen another car, that Lantigua entered his car voluntarily, that Ramos exited the vehicle when they arrived in the Bronx, leaving Ramirez and Lantigua alone, and that Ramirez and Lantigua had no conversation during that time. According to Ramirez, when Ramos returned to the car he spoke to Lantigua about going to an ATM to get money to pay the fare. Finally, Ramirez testified that when the officers pulled him over and Lantigua left the car screaming, Ramirez did not know what was going on, as he had not seen a gun at any time during the drive nor been given Lantigua's wallet or credit cards at any point, and had never discussed robbing Lantigua with Ramos.
The Jury Deliberations And The Motions For A Mistrial
Sequestration of the jury was waived by Ramirez and Ramos before trial. Deliberations commenced on the afternoon of June 21, 1997. When no verdict had been reached by 7:50pm, the trial court sent the jurors home for the night, stating to them that "jurors do not resolve their impasses when they are tired and exhausted and when they are at odds with each other after a day of deliberations. And jurors frequently are at odds with each other. They do resolve these issues after a breather."
Before sending the jury home, the court told the jurors that the courtroom would be open for them by 9:00 or 9:30am the next morning. The court instructed the jury that all twelve of them had to be present in order for them to begin their deliberations. The court then instructed the court officer that, the next day, the doors of the jury room should not be closed and the jurors should not be permitted to deliberate until all were present. The following morning, the court placed on the record that all but one of the jurors had appeared early and they had apparently "begun their deliberations" before the last juror arrived. There was no further discussion by anyone, including Ramirez's counsel, regarding how long the eleven jurors had been together without the twelfth, or what was discussed.
Another issue which arose on June 13, 1997, was that the Department of Corrections vehicle in which Ramos was being transported to court had been involved in an auto accident and, therefore, Ramos was not present and had in fact been taken to the hospital.
In the meantime, the jury had sent out three notes, including one asking for Lantigua's direct testimony from the time he arrived in the Bronx until the arrival of the police, and another asking for instruction as to whether "a person can be charged with being an accomplice if they had nothing to do with the planning of the robbery, but, witnessed a robbery while it was taking place, did nothing to stop it." After a lengthy discussion with counsel regarding the issue of Ramos's absence, the trial court decided that it would instruct the jurors that he was unavoidably absent, that their notes could not be answered in Ramos's absence, that he would give them a recess. The government agreed with this procedure, but counsel for both Ramos and Ramirez moved for a mistrial. Ramirez's counsel contended that the jury was "not a happy bunch," that the trial had already taken longer than expected, and that to delay the case further with the weekend approaching (it was Friday) would lead to a verdict based on the jury's desire to "get this over" rather than based on the facts and the law. Ramirez's counsel also urged the trial court to answer the jury's question regarding accomplice liability, on the theory this question indicated that the jury might well be leaning towards acquitting Ramirez, and that waiting could lead to a conviction based on the jury's frustration over the delay. Contrary to the contention of Ramirez's counsel, the trial court indicated that it had not heard raised voices from the jury deliberations room, but acknowledged that it was wary of a juror rebellion. The court denied the motion for a mistrial.
The jurors were then brought back into the courtroom and told that Ramos had been involved in an auto accident, that he might be available at 2:30 that afternoon, and that their questions could not be answered in his absence. They were directed to suspend their deliberations until 2:30pm.
The June 13 afternoon session began with additional notes from the jurors, including one asking if Ramos had to be present for them to come to a verdict and whether Ramos's attorney could waive his presence. The trial court expressed its view to counsel that it could not answer these questions in Ramos's absence. As Ramos was still unavailable, and it was not clear when he would become available, the court proposed to adjourn the proceedings until Monday, June 16. Ramirez's counsel reminded the court that by Monday the jurors would be going into their third week of service, repeated his observation that one of the notes indicated the jury might be leaning towards acquitting Ramirez, and again moved for a mistrial. This motion was denied.
The jurors were brought back into the courtroom and were instructed that their notes could not be answered in Ramos's absence, that Ramos was at a hospital, and that they were to cease deliberations until Monday morning.
On Monday, June 16, 1997, both defendants were present. The court answered the questions raised by the jury's previous notes and had the testimony they wanted to hear again read to them. The jury rendered their verdict that same day, finding both Ramirez and Ramos guilty.
Discussion I. The Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254 A. Standard for Reviewing State Court Judgments
Section 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a federal remedy for state prisoners if their continued custody is in violation of federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254(a); see Chandler v. Florida, 449 U.S. 560, 571 (1981) ("This Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution."). Errors of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Petitioners bear the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Federal habeas courts must presume state courts' factual findings to be correct, 28 U.S.C. § 2254(e)(1), and may not grant relief unless they find that the state court's adjudication of the merits of the claims either:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1), (2); see Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
B. Exhaustion Requirement
In addition, before a federal court may address the merits of a § 2254 claim, state prisoners must "exhaust" their claims by pursuing them in the state court system until no further avenue of relief is available there. 28 U.S.C. § 2254 (b), (c); see Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992) (reaffirming that state prisoner must exhaust state remedies before writ of habeas corpus may be granted by federal court); Rose v. Lundy, 455 U.S. 509 (1982).
The exhaustion requirement gives states the first opportunity to pass upon convictions rendered in their courts, and is based upon the principle of "comity," or respect for states. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Duckworth v. Serrano, 454 U.S. 1 (1981); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994).
In order to exhaust claims, petitioners must "fairly present" their constitutional claims to the highest state court. See Picard v. Connor, 404 U.S. 270, 275 (1971); Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). A petitioner may "fairly present" his federal constitutional claim by, for example, "mak[ing] an explicit constitutional argument," "relying on federal and state cases that employ a constitutional analysis," "asserting the claim in terms that `call to mind a specific right protected by the Constitution,'" or "alleging facts that fall `well within the mainstream of constitutional litigation.'" Levine, 44 F.3d at 124 (quoting Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc)); see N.Y. Court of Appeals Rule 500.10(a) (McKinney 1999) (requiring that criminal leave applications "identify the issues on which the application is based.").
C. Adequate and Independent State Grounds
Federal habeas relief is barred where the state court judgment rested on "adequate and independent state grounds." See Coleman v. Thompson, 501 U.S. 722, 726 (1991); Harris v. Reed, 489 U.S. 255, 261-62 (1989); Wedra v. Lefevre, 988 F.2d 334, 338-39 (2d Cir. 1993). Thus, habeas courts may not address the merits of federal constitutional claims if state court judgments include a "plain statement" that "clearly and expressly" states that the "judgment rests on a state-law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision," even if the state court judgment also considers federal law. Harris, 489 U.S. at 260 (citations and internal quotations omitted); see Wainwright v. Sykes, 433 U.S. 72, 81 (1977) ("As to the role of adequate and independent state grounds, it is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts"); Epps v. Commissioner of Corr. Servs., 13 F.3d 615, 617 (2d Cir.) (no federal habeas review of decisions based on independent and adequate state grounds "[b]ecause of comity and federalism concerns and the requirement that States have the first opportunity to correct their own mistakes").
D. Procedural Default
Procedural rules regarding how and when claims must be raised are the sort of grounds that adequately and independently support state court judgments and bar federal habeas review, as long as the rules are "strictly and regularly followed." See Sykes, 433 U.S. at 81; Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir. 1991).
New York's "procedural default" rules foreclose state court relief in cases where a petitioner failed either to follow the "contemporaneous objection rule" by objecting to error at trial, N.Y. Crim. Proc. L. § 470.05(2), or to raise an issue on direct or collateral review, N.Y. Crim. Proc. L. §§ 440.10(2)(c), 440.10(3)(a), (c) (McKinney 1994); see Taylor v. Harris, 640 F.2d 1 (2d Cir. 1991).
This section provides that "[f]or 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." N.Y. Crim. Proc. L. § 470.05(2) (McKinney 1994).
This section provides that "the court must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . ." N.Y. Crim. Proc. L. § 4410.10(2)(c) (McKinney 1994).
These provisions provide, "the court may deny a motion to vacate a judgment when . . . (a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal . . . or (c) Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." N.Y. Crim. Proc. L. § 440.10(3)(a), (c) (McKinney 1994).
Although no state court has passed upon such claims, they are technically exhausted for the purpose of federal habeas petitions because no state review is available. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Yet procedural defaults also bar federal habeas courts from addressing the merits of the defaulted claims. See Gray v. Netherland, 518 U.S. 152 (1996); Coleman v. Thompson, 501 U.S. at 731-32, 735 n. 1; Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir. 2000); Taylor, 640 F.2d at 1-2 (holding that petitioner's failure to object to instruction at trial or to raise issue on appeal amounted to a procedural default under § 470.05 that precluded federal habeas relief).
Like the exhaustion doctrine, the rule barring federal habeas courts from addressing the merits of procedurally defaulted claims arises out of comity and finality for state court judgments. See McCleskey v. Zant, 499 U.S. 467, 493 (1991) ("[T]he doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments").
Where a defendant has procedurally defaulted claims by failing to raise them on direct review, the claims may be raised on habeas only if the defendant can first demonstrate either "cause" and actual "prejudice," Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright, 433 U.S. at 87, or that there is a "fundamental miscarriage of justice," see Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993), which is generally shown only by proving that he is "actually innocent," Murray, 477 U.S. at 496; Smith v. Murray, 477 U.S. 527, 537 (1986); see Spence, 219 F.3d at 170; Strogov v. Attorney General of the State of New York, 191 F.3d 188, 193 (2d Cir. 1999).
II. Analysis Of The Claims Raised A. The Claim Regarding Jury Deliberations In Absence Of The Twelfth Juror Has Been Procedurally Defaulted
New York law provides that "in order to preserve a claim for appeal, a defendant must raise the same specific ground for that complaint at the trial that he then raises on appeal." Davis v. Senkowski, 1998 WL 812653, *3 (E.D.N.Y. Aug. 6, 1998); see, e.g., People v. Santos, 658 N.E.2d 1041 (N.Y.App.Div. 1995).
In reviewing Ramirez's appeal, the Appellate Division noted that the claim regarding the jury deliberations in the absence of the twelfth juror "is a claim requiring preservation," and held, "we decline to review it in the interest of justice." Ramirez, 264 A.D.2d at 666. Thus, the Appellate Division plainly stated that the issue was not preserved, and rested its denial of the claim on that basis, thereby rendering this claim procedurally barred on federal habeas review under the "adequate and independent state ground" rule. See Harris, 489 U.S. at 260 (stating rule) (citations and internal quotations omitted); Jones v. Stinson, 229 F.3d 112, 117-18 (2d Cir. 2000) (same). Ramirez has neither asserted cause and prejudice for the default — or a fundamental miscarriage of justice — nor is there support in the record for such assertions. Therefore, review of this claim is precluded, and it must be denied.
A New York appellate court may in its discretion choose to review a claim that was not raised at trial (and therefore procedurally barred) "in the interest of justice." N.Y. Crim. Proc. L. § 470.15(6)(a) (McKinney 1994).
The same is true for Ramirez's claim regarding the motions for mistrial to the extent that claim is linked to the fact that there were deliberations without the twelfth juror.
B. The Claim Regarding The Failure To Declare A Mistrial Does Not Raise An Issue Of Federal Law
Ramirez claimed before the Appellate Division, and claims here, that the trial court abused its discretion by adjourning deliberation over the weekend rather than calling a mistrial where, according to Ramirez, there were signs that the jury was already frustrated and angry with the amount of time the trial had taken.Nowhere in his brief to the Appellate Division, nor in the instant habeas petition, does Ramirez assert that the trial court's refusal to declare a mistrial violated the federal constitution. All of the cases cited in his Appellate Division brief were New York State cases. The Appellate Division, in denying this claim, held that the trial court's ruling was "an appropriate exercise of discretion" and cited another New York case. See Ramirez, 264 A.D.2d at 666 (citing Matter of Plummer v. Rothwax, 471 N.E.2d 429 (N.Y. 1984)).
Plummer cites both state and federal law cases regarding the discretion of a trial court to declare a mistrial. See 471 N.E.2d at 434-35. However, given that Ramirez himself never framed his claim in federal law terms before the Appellate Division, this fact cannot lead to the conclusion that the decision of that court was based on federal law.
The only federal issue which this claim might involve would be for a violation of Ramirez's federal constitutional right to due process and a fundamentally fair trial. See DeGrandis v. Fay, 335 F.2d 173, (2d Cir. 1964) (where state trial court conducted jury deliberations for twenty-eight consecutive hours in face of juror fatigue, habeas relief warranted only if petitioners' "fundamental liberties" violated); cf. Powell v. Spalding, 679 F.2d 163, 166 (9th Cir. 1982) (state court failure to sequester jury does not warrant federal habeas relief absent fundamental unfairness). Ramirez has neither made such a claim, nor is there any showing in the record of such a violation and, thus, no federal claim for relief reviewable by this Court.
C. The Jury's Verdict Was Not So Devoid Of Evidentiary Support As To Violate Due Process
The Supreme Court has held that a federal court must afford a petitioner "habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979); see Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000). In determining the sufficiency of the evidence, the court must view the evidence in the light most favorable to the prosecution, Jackson, 443 U.S. at 319, and decide whether the record is "so totally devoid of evidentiary support that a due process issue is raised," Mapp v. Warden, New York State Corr. Inst. for Women, 531 F.2d 1167, 1173 n. 8 (2d Cir. 1976).
In addition, it is well settled that "the jury is exclusively responsible for determining a witness' credibility." Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (citations omitted); see Maggio v. Fulford, 462 U.S. 111, 113 (1983). It is not the task of a federal court on habeas review to review, de novo, the persuasiveness of testimony it has not itself heard, or evidence it has not itself considered in the first instance. See Marshall v. Lonberger, 459 U.S. 422, 432 (1983); Joyner v. Leonardo, No. 99 Civ. 1275, 1999 WL 608774, at *6 (S.D.N.Y. Aug. 12, 1999).
When it considers the sufficiency of the evidence of a state conviction, "[a] federal court must look to state law to determine the elements of the crime." Fama, 235 F.3d at 811 (internal citation and quotation marks omitted). Here, the state law at issue is New York Penal Law § 160.15(4), which provides:
[A] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.
N.Y. Pen. L. § 160.15(4) (McKinney 1994). In addition, under New York law, a sufficient "community of purpose" is established where, "[e]ven if [a defendant's] assistance was not initially planned, the totality of the evidence permits only the conclusion that he knowingly participated and continued to participate even after his companion's intentions became clear." People v. Allah, 522 N.E.2d 1029, 1030 (N.Y. 1988).
Ramirez was identified as one perpetrator by the victim of the crime, Lantigua, who testified at trial and who described inter alia that Ramirez looked through his wallet while Ramos pointed a gun at Lantigua, and that Ramirez and Ramos discussed how to obtain more money from Lantigua. Lantigua's version of events was also corroborated by his statements to the police on the night in question, and in the presence of Ramirez. The gun found in Ramirez's car was operable and contained live rounds.
In his briefing Reynolds makes more than at least two inaccurate representations of the evidence, namely, that Ramirez told the police that he had taken single dollar bills from Lantigua, and that Ramirez was found with money taken from Lantigua during the robbery. Such inaccuracies are to be particularly frowned upon where, as here, the petitioner is pro se.
Ramirez testified in his own defense, claiming, in substance, that he had no idea that Ramos was robbing Lantigua, nor had he ever discussed doing so with Ramos, and that he, Ramirez, was completely uninvolved. Ramirez also presented other witnesses, including the dispatch operator, Pereira, whose testimony supported the view that it was mere chance that Ramirez was the one that picked up Ramos. However, as set forth in greater detail in the facts, supra, it cannot be said that no rational jury could have found Ramirez guilty. This is particularly the case where, as here, the main issue was witness credibility. Thus, Ramirez is not entitled to habeas relief on this claim.
Conclusion
For the reasons set forth above, the petition for a writ of habeas corpus is denied.
As Ramirez has not made a substantial showing of the denial of a Constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
It is so ordered.