Opinion
No. 97 Civ. 3174 (MGC)
September 19, 2002
Attorney for Petitioner: Pro Se, Jose Reinoso, 89-A-5530 Woodbourne Correctional Facility, Woodbourne, NY.
Attorney for Respondent: ROBERT M. MORGENTHAU, District Attorney, New York County, New York, NY. By: Michael S. Morgan.
MEMORANDUM OPINION
Jose Reinoso, a state prisoner, petitions pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus on the ground that the prosecution utilized "racial connotations throughout" the trial, thereby denying petitioner his right to due process and a fair trial. For the reasons that follow, the petition is denied.
BACKGROUND
On January 26, 1988, petitioner approached his ex-girlfriend, Lucia Alejo, also known as Jackie, in the Dinora Boutique, located at 1403 So. Nicholas Avenue, and threatened to kill her with his gun. At the trial, Alejo described petitioner as being prone to jealousy and testified that she had ended the relationship with petitioner five days before January 26, 1988. Alejo convinced petitioner to accompany her outside, but as they walked to the front of the boutique, petitioner shot Nelson Mendez, the owner of the boutique, in the head. Petitioner next shot Alejo and Amada Perez, a salesperson at the boutique, and then fled the scene. All three victims were seriously injured. Petitioner was arrested the next day.
After a jury trial, on April 3, 1989, petitioner was convicted on three counts of attempted murder in the second degree and one count of criminal use of a firearm in the first degree. On May 12, 1989, he was sentenced for those crimes. He appealed from the judgment of conviction to the Appellate Division of the Supreme Court of the State of New York, First Department.
On January 23, 1992, the Appellate Division unanimously affirmed petitioner's conviction. Leave to appeal to the Court of Appeals was denied on May 7, 1992. On September 10, 1993, petitioner sought to set aside the judgment in state court pursuant to N.Y. Crim. Proc. Law § 440.20 on the ground that the sentence was unduly harsh. On November 12, 1993, petitioner's motion for post-conviction relief was denied. On April 7, 1992, nearly one year after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Reinoso filed a habeas petition pursuant to 28 U.S.C. § 2254. Respondent moved for summary dismissal on the ground that the petition was time-barred, and on January 2, 1998, I granted the motion to dismiss the petition on the basis that Reinoso did not file his petition within a reasonable period of the enactment of AEDPA.
Six months after Reinoso's petition was dismissed, the Second Circuit Court of Appeals held in a separate case that an inmate whose conviction became final before AEDPA's effective date is entitled to a one-year grace period from the effective date during which to bring a habeas petition. Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). Under the rule announced in Ross, Reinoso's petition was timely because it was filed prior to April 24, 1997. On November 4, 1998, petitioner moved pursuant to Rule 60(b) to vacate the dismissal of his habeas petition. Following the rule announced in Ross, on May 25, 1999, I granted that motion and reinstated this petition for habeas corpus.
DISCUSSION
Petitioner argues that the "prosecution utilized racial connotations throughout his presentation," thereby denying petitioner due process and a fair trial. He states that [o]n several occasions during the trial, the prosecutor for no relevant reason, sought to obtain information on petitioner's Dominican background [and] [u]sed words like "macho" while successfully raising inference of ethnic violent tendencies. Petitioner's habeas petition does not cite to specific instances of the prosecutor's use of racial stereotypes.
In his Appellate Division brief, petitioner argued that he was "denied due process and equal protection of the law by the prosecutor's introduction of irrelevant evidence of appellant's ethnic background and subsequent irrelevant, racist argument to suggest propensity to commit the crime. U.S. Const., Amend. XIV." In support of that argument, the brief stated that (1) the prosecutor elicited from a witness that appellant was Dominican, defense counsel promptly objected on relevance grounds, and the court overruled the objection stating that there was some relevance; and (2) during its summation, the prosecution "capitalized on certain prejudicial stereotypes associated with Dominicans: abuse of their wives and girlfriends, `macho' possessive attitudes towards the same, and propensity for violence arising from such `macho' attitudes."
The Appellate Division concluded that "[petitioner's] claim that the prosecutor improperly used racial stereotypes in his summation [was] unpreserved for appellate review." People v. Reinoso, 579 N.Y.S.2d 869 (1st Dep't 1992) (citing N.Y. Crim. Proc. Law § 470.05[2]). The court also added that "[w]ere we to review this claim in the interest of justice, we would find it to be without merit." Id.
Procedural Default
Respondent argues that petitioner's habeas claim is procedurally defaulted because the Appellate Division held that that claim was unpreserved for appellate review pursuant to New York's contemporaneous objection rule. Absent a showing of "cause" and "prejudice," petitioner's failure to object at trial constitutes "an adequate and independent state ground" for denying habeas review. See Wainwright v. Sykes, 433 U.S. 72, 86 (1977) ; see also Peterson v. Scully, 896 F.2d 661, 663 (2d Cir. 1990), cert. denied, 497 U.S. 1038 (1990) ("If a state appellate court refuses to review the merits of a criminal defendant's claim of constitutional error because of his failure to comply with . . . a `contemporaneous objection' rule, a federal court generally may not consider the merits of the constitutional claim on habeas corpus review"). The Second Circuit has "observed and deferred to New York's consistent application of its contemporaneous objection rules." Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999).
"[I]n order to preclude federal review, the last state court to render judgment must clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar." Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) (citation omitted). The Appellate Division clearly and expressly found Reinoso's claim "that the prosecutor improperly used racial stereotypes in his summation [was] unpreserved for appellate review" on grounds of a state procedural bar. N.Y. Crim. Proc. Law. § 470.05[2] 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, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." The court's statement that it would have found Reinoso's claim to be without merit if it had reviewed that claim does not render its opinion a judgment on the merits. See Ibarra v. Burge, 2002 WL 1467756, at *4 (S.D.N.Y. Jul. 9, 2002) (holding that the "were we to review this claim" language did not alter the fact that the state court's ruling rested on an adequate and independent state ground). Because petitioner has failed to demonstrate "cause" for his default or "prejudice" resulting from the default, his claim is procedurally defaulted.
Dominican Nationality
The Appellate Division did not specifically address petitioner's argument that the trial judge erroneously permitted the prosecutor to elicit testimony regarding his Dominican nationality. The trial transcript reveals the following exchange during the direct examination of Detective John Bourges by the prosecutor:
Q: Detective, did you have occasion to take some pedigree information from the defendants?
A: Yes, I did.
Q: Did you have occasion to determine what nationality he was?
A: Yes.
Q: What was that?
A: Dominican.
Mr. Beecher: Objection. I am not sure of the relevance, your Honor.
THE COURT: I assume it has some relevance. I will take it subject to connection.
The admission of testimony regarding petitioner's Dominican nationality did not "[result] 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." 28 U.S.C. § 2254 (d)(1). In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme Court held that "the Kotteakos harmless-error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type." Id. at 638. The Kotteakos test is "whether the error `had substantial and injurious effect or influence in determining the jury's verdict.'" Id. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946). The principal factors to be considered in measuring this "effect or influence" are the importance of the evidence, and "the overall strength of the prosecution's case." Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000). "The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence is so extremely unfair that its admission violates fundamental conceptions of justice." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998).
Even if the trial judge erred in admitting testimony regarding petitioner's nationality, this error was harmless. On direct examination, defense counsel himself elicited from Reinoso the fact that he was Dominican. Furthermore, the fact of petitioner's Dominican nationality was insignificant in light of the strength of the prosecution's case — all three of petitioner's victims survived to give a detailed account at the trial of petitioner's attack.
CONCLUSION
For the foregoing reasons, Jose Reinoso's petition for a writ of habeas corpus is denied and a certificate of appealability is not warranted.
SO ORDERED.