Opinion
97 Civ. 5622 (MGC).
June 20, 2003.
Romer Reese, Sing Sing Correctional Facility, Ossinging, New York, Petitioner, pro se.
Robert M. Morgenthau, District Attorney of the County of New York, Morrie I. Kleinbart, Esq., Assistant District Attorney, Attorney for Respondents.
OPINION
Romer Reese, a state prisoner, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition is denied.
PROCEDURAL HISTORY
Petitioner was convicted on June 6, 1989 of second-degree murder on a felony murder theory, and the lesser included offense of first-degree manslaughter with intent to cause serious physical injury, but acquitted of intentional murder by a jury in the New York Supreme Court for New York County. On June 29, 1989, petitioner was sentenced to concurrent indeterminate prison terms of from eighteen and one-half years to life on the murder conviction, and from ten to twenty years on the manslaughter conviction. Petitioner's assigned appellate counsel, the Legal Aid Society, filed a brief in the Appellate Division, First Department, contending that petitioner's guilt had not been proven beyond a reasonable doubt and that the trial court had unfairly marshalled the evidence. Petitioner also filed a supplemental pro se brief in which he argued that he had been deprived of effective assistance of counsel. On March 21, 1991, the Appellate Division unanimously affirmed petitioner's judgment of conviction. People v. Reese, 171 A.D.2d 555, 567 N.Y.S.2d 441 (App.Div. 1991). The New York Court of Appeals denied petitioner's application for leave to appeal to that court. People v. Reese, 575 N.E.2d 411, 571 N.Y.S.2d 925 (1991).
Petitioner then filed a pro se motion pursuant to New York Criminal Procedure Law § 440.10 seeking to vacate the judgment of conviction. He asserted that the People had failed to disclose certain Rosario and Brady materials, that he was deprived of effective assistance of counsel, that he suffered unfair prejudice as a result of an accumulation of errors and unfair prejudice in the prosecutor's summation, and that the primary witnesses against him had testified falsely at trial and were not credible. On May 13, 1994, Justice Adlerberg of the New York Supreme Court issued a decision from the bench denying petitioner's motion to vacate, citing to N.Y. Crim. Proc. Law § 440.10(2)(c) and defendant's failure to raise his new claims at the same time he raised his original claims on the direct appeal.
Thereafter, on June 14, 1994, petitioner sought leave to appeal, or in the alternative, a writ of error coram nobis. The Appellate Division denied petitioner's request for a writ of error coram nobis as well as his leave application on December 22, 1994.
Reese then filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254. In the petition for habeas corpus, Reese asserts four claims: (1) insufficient evidence to prove his guilt beyond a reasonable doubt; (2) unfair charge to the jury and marshalling of evidence; (3) ineffective assistance of counsel; and (4) unfair prejudice from an accumulation of errors at trial and unfair prejudice in the prosecutor's summation.
DISCUSSION
Standard for Habeas Review
Section 2254(d) provides the relevant standard for habeas review of claims adjudicated on the merits in state court:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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.
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court held that a state-court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Id. at 405-06. Therefore, when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case, a federal court applying section 2254(d)(1) may conclude that the state-court decision falls within that provision's `unreasonable application' clause."Id. at 409.
Insufficient Evidence
Petitioner's first claim is that the evidence at trial was insufficient to prove petitioner's guilt beyond a reasonable doubt. The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. SeeJackson v. Virginia, 443 U.S. 307, 316 (1979). The question raised by claims of insufficient evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Id. at 319 (emphasis in original). The burden on petitioner is "very heavy" because all inferences are to be drawn in the prosecution's favor, and "a conviction may be based upon circumstantial evidence and inferences based upon the evidence . . . and the jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (citations omitted).
Petitioner was convicted of Murder in the Second Degree under N.Y. Penal Law § 125.25(3) (felony murder), and Manslaughter in the First Degree under N.Y. Penal Law § 125.20(1). He alleges that he was deprived of due process in the state court because he was convicted without sufficient evidence of either his identity or of the cause of the victim's death.
But a review of the record in the light most favorable to the prosecution shows that a rational fact finder could have found the essential elements of the crime charged beyond a reasonable doubt from the evidence presented. The Appellate Division upheld the conviction, finding that the evidence adduced at trial was sufficient to prove defendant's guilt beyond a reasonable doubt, when viewing the evidence in the light most favorable to the People. Reese, 171 A.D.2d at 556, 567 N.Y.S.2d at 442. There is no new evidence regarding the conviction. A federal court can only grant a writ of habeas corpus if there was an unreasonable and incorrect application of clearly established federal law. 28 U.S.C. § 2254(d).
Unfair Charge to the Jury and Marshalling of Evidence
Petitioner's second claim is that the court's charge was an unfair marshalling of both the medical and identification testimony, which inaccurately summarized the parties' positions, and placed unfair emphasis on inculpatory evidence.
Respondent argues that petitioner's marshalling claim was not fairly presented to the state courts in federal terms. However, the Second Circuit has held that a specific citation to a provision of the U.S. Constitution is sufficient to alert the state court to the federal nature of the claim. "Obviously if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts." Daye v. Attorney General of the State of New York, 696 F.2d 186, 192 (2d Cir. 1982).
In this case, petitioner's brief to the Appellate Division did specifically cite the Fourteenth Amendment in his point heading that he was "denied a fair trial" by the court's unfair marshalling. In addition, petitioner argues essentially the same legal theory in both his state and federal appeals, as required to exhaust the claim. Daye, 696 F.2d at 192. It is also clear that the Appellate Division decided on the merits the issue of the court's marshalling of evidence: "Nor do we find any infirmity in the court's summary of the evidence and theories of both parties, during this charge." Reese, 171 A.D.2d at 556, 567 N.Y.S.2d at 442. Thus, the issue of the court's marshalling is subject to determination on its merits because the issue was fairly presented in prior state court proceedings.
The relevant standard to review the court's charge is whether the petitioner can show that the suspect instruction "so infected the entire trial such that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). In addition, the court's charge should be considered in its entirety, not in "artificial isolation," in determining whether it so infected the entire trial. Justice v. Hoke, 45 F.3d 33, 34 (2d Cir. 1995) (citing Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)).
Petitioner contends that the trial court, in marshalling the evidence, suggested that the stab wounds necessarily caused the victim's death, and failed to mention facts critical to petitioner's defense. First, the court failed to mention that the doctor could not determine what caused the victim's convulsions that preceded her death, and that alcoholics and drug addicts often went into convulsions from withdrawal, even though this was explicitly testified to by the doctor and acknowledged by the medical examiner. Second, the court failed to mention that the medical examiner was not aware of the convulsions the victims suffered prior to her death before giving the report. Third, the court improperly stated that the victim underwent a second operation when it was instead merely a procedure. Fourth, the court discredited the defense's evidence by incorrectly stating that the victim had suffered a "relapse," when in fact, it was not clear that her convulsions were a relapse. Petitioner contends that this effectively resolved the issue of whether the victim died of the stab wounds instead of the convulsions, which was an issue for the jury to decide.
The court's failure to mention specific parts of the doctor's and medical examiner's testimony that were beneficial to defendant may have been due to the fact that the testimony was also detrimental to defendant's case. For example, while the doctor testified that he could not identify the cause of the victim's convulsions, he testified that the convulsions were not the result of withdrawal, because methadone was being administered to the victim while she was in the hospital. And while the medical examiner was unaware of the convulsions prior to the victim's death, the medical examiner testified that that knowledge would not have changed her opinion of the cause of death. Petitioner has not shown that the court's marshalling of the evidence so infected the trial such that the resulting conviction violated due process.
Moreover, the issue of the court's charge on causation has been procedurally defaulted, since the Appellate Division found that the defendant "failed to preserve as a matter of law his challenge to the court's charge on causation, CPL § 470.05(2);People v. Creech, 60 N.Y.2d 895, 470 N.Y.S.2d 572, 458 N.E.2d 1249)." Reese, 171 A.D.2d at 556, 567 N.Y.S.2d at 442. Absent a showing of "cause" and "prejudice," petitioner's procedural default constitutes "an adequate and independent state ground" for denying habeas corpus. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Since petitioner has shown neither cause nor prejudice for his procedural default, his claim regarding the court's charge on causation must be denied.
Ineffective Assistance of Counsel
Petitioner asserts that he was denied the effective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his attorney's representation was unreasonable under the "prevailing professional norms," and that there is a reasonable probability that, but for his attorney's errors, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.
Petitioner made two motions prior to trial to have counsel, Mr. Kliegerman, removed and new counsel assigned, arguing that his counsel "showed no real interest in litigating the case," and that he "failed to visit him even while in the holding pens in the courts' building." Petitioner also asserts that his counsel "failed to conduct any investigation into the facts that defendant gave him to check out in order to obtain evidence in support of the defendant's case," and contends that counsel did not "work with the defendant in preparation of trial."
Petitioner identifies numerous alleged deficiencies of his counsel before and during the trial, and throughout the appeal process, which he claims prejudiced him at trial and in subsequent rulings on appeal. He also refers to the motion to vacate which he filed in state court, which identified other alleged improprieties (Petitioner's Motion for Permission to Appeal to Appellate Division and/or for an order granting a Writ of Coram Nobis, and Petitioner's 440.10 Motion).
Petitioner's complaints regarding counsel's trial strategy, however, do not constitute ineffective assistance of counsel, such as counsel's waiver of defendant's right to appear and testify before the grand jury, waiver of opening statement, certain failures to impeach prosecution witnesses, inadequate summation, wasted cross-examination time, and failure to object to certain leading questions. "[T]he decision whether to make an opening statement and when to make it is ordinarily a matter of trial tactics and strategy which will not constitute the incompetence basis for a claim of ineffective assistance of counsel." United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). Analogously, the decision "whether to engage in cross-examination, and if so, to what extent and in what manner, are similarly strategic in nature." Nersesian, 824 F.2d at 1321.
An examination of the record shows that counsel for petitioner represented him conscientiously at trial, successfully excluding from trial reference to many of defendant's prior arrests and convictions. Counsel also cross-examined the prosecution witnesses and undermined their credibility by pointing out inconsistent grand jury testimony and their inability to remember. He established the prior criminal record of an important witness for the prosecution. Counsel developed alternative theories of causation which he hoped would exculpate the defendant on the murder and manslaughter charges. He also gave a reasonable summation. Moreover, petitioner was acquitted by the jury of the first count of intentional murder in the second degree, which indicates that the jury carefully concentrated on the individual counts charged against petitioner and convicted him based on the evidence in the case. Under all these circumstances, it cannot be said that trial counsel's representation was so deficient that absent his errors, the outcome of the trial would have been different.
Prosecutor's Summation
Petitioner's last claim is that he was severely prejudiced and denied a fair trial by the accumulation of errors at trial, and by unfair prejudice in the prosecutor's summation. While this claim is exhausted, it was procedurally defaulted and thus unavailable for review by a federal court on a petition for habeas corpus. Petitioner failed to object at trial to the prosecutor's summation, the prosecutor's vouching for the credibility of witnesses, and his misstatements of facts. The failure to object on these grounds during the trial is a procedural default that "constitutes an adequate and independent state law ground for rejection of the claim." Vargas c. Keane, 86 F.3d 1273 1280 (2d Cir. 1996) (citing Wainwright, 433 U.S. at 87-91).
In any event, the prosecutor's summation did not rise to the level of a due process violation. It "is not enough that the prosecutor's remarks were undesirable or even universally condemned," but they must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). An examination of the transcript shows that the prosecutor's summation did not so infect the trial with unfairness as to make the conviction a denial of due process of law.
CONCLUSION
For the foregoing reasons, Reese's petition for a writ of habeas corpus is denied.
SO ORDERED.