Opinion
02-CV-5643 (JEW), 03-MISC-0066 (JBW)
October 14, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary, This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was tried for first degree robbery. The primary evidence against him was the testimony of the complainant, Jayant Kulkarni. Kulkarni testified that he was returning from a local grocery store when he was grabbed from behind by a man with a knife in his hand. The assailant demanded Kulkarni' s money and jewelry, which were turned over, Kulkarni testified that his assailant was only about six to ten inches from him and that, because the assailant escape route was blocked, he had an unobstructed view of him in good light for between five and ten minutes. Kulkarni identified petitioner from a lineup as his assailant,
Petitioner argued to the jury that Kulkarni' s identification of him as the assailant was mistaken.
Petitioner was convicted of first degree robbery. He was sentenced to a determinate term of 12 years in prison. His conviction was affirmed on appeal by the Appellate Division, Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.
In his application for a writ of habeas corpus, petitioner claims that (1) his guilt was not proven beyond a reasonable doubt; and (2) he was deprived of a fair trial by the prosecutor's twice-repeated comment in summation that "mistaken identity sells movie tickets."
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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 Slate court proceeding." 28 U.S.C. ¶ 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lyde, 196 F.3d 1174, 117S (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413, Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No, 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a slate court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug, 7, 2003), Determination of factual issues made by a stale court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. ¶ 2254(e)(1),
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims, See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S, 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. ¶ 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,"). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. ¶ 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at * 10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state easel aw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision),
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996), When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr, Svcs., 235 R3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right, Petitioner has a right to seek a certificate of appealabilty from the Court of Appeals for the Second Circuit. See 28 U.S.C. ¶ 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [s]ubstantial showing of the denial of a constitutional right) required by paragraph (2)." See also Shabazz v. Arm, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 E3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VI. Analysis of Claims
A
Petitioner first claims that his guilt was not proven beyond a reasonable doubt, He premises the claim mostly on the fact that the complainant described his assailant at the lime of the incident as between 5 foot, 8 inches tall, in his thirties, with no distinguishing marks and no accent, but that petitioner is "actually a significantly taller male Hispanic, 18 years old at the time of the incident, with a distinguishing mole on his face that was prominent from several feet away," Br, for Defendant Appellant at 9. This claim is exhausted and was rejected on the merits, Review proceeds under the deferential standards of AEDPA.
In rejecting the claim, the Appellate Division stated,
The defendant asserts that the evidence presented at trial was legally insufficient to prove his identity beyond a reasonable doubt. The complainant testified that the defendant was only between 6 and 10 inches away from him and that his view of the defendant was unobstructed and under excellent lighting conditions for between 5 and 10 minutes. This testimony alone is sufficient to support a conviction, Thus, viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to establish the defendant's identity beyond a reasonable doubt.People v. Ricone, 733 N.Y.S.2d 229, 229 (App.Div. 2001) (citations omitted).
Where a petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fad could have found the essential elements of the crime beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction, Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997).
The Appellate Division's conclusion that there was sufficient evidence to support a conviction is sound. Viewing the evidence in the light most favorable to the prosecution — including primarily the identification testimony — a reasonable juror could reasonably find petitioner guilty beyond a reasonable doubt, In addition, defense counsel argued vigorously to the jury that petitioner was the victim of mistaken identity. It was the province of the jury to weigh the evidence, not this court. Habeas corpus relief on this ground is not warranted.
B
Petitioner also claims that he was deprived of a fair dial by the prosecutor's twice-repeated comment in summation that "mistaken identity sells movie tickets." The Appellate Division rejected this claim on procedural grounds, stating that it was "unpreserved for appellate review," White, 733 N.Y.S.2d at 230. That procedural ground is not adequate under the present circumstances. Review of the record demonstrates that defense counsel, after the allegedly improper statements, objected:
[PROSECUTOR]; Ladies and gentlemen, mistakes are possible. We are all human. However — they are even reasonable in this case. Mistaken identification is what sells movie tickets, ladies and gentlemen.
[DEFENSE COUNSEL]; Objection, Judge.
THE COURT: Overruled. Counsel is allowed to make arguments. Proceed.
[PROSECUTOR]: Mr. Kulkarni made a mistake. He corrected himself on the stand, ladies and gentlemen. And those are some very minor points. Mistaken identification is what sells movie tickets. It's what makes you watch television every night, It has no place in this trial.
[DEFENSE COUNSEL]: Objection, Judge. That's the issue.
THE COURT: All right, please, counselor, You made an objection. The Court will rule.
Both sides are allowed to make arguments to you, so the comment that something has no place in the trial is the district attorney's view. Defense counsel's absolutely allowed to make those arguments and raise those issues that he did.
So rephrase what you are saying. Don't state it in such a fashion. Sustained.
Trial Tr. at 491-92. The Appellate Division held in the alternative that the claim was meritless, stating that the prosecutor's remarks were a proper response to defense counsel's "vigorous" arguments.
Review of the merits of the claim proceeds under the deferential standards of AEDPA, though the claim is meritless under any standard of review. Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974), Nonetheless, "when the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair," Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S. at 643). Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceedings, DeChristoforo, 416 U.S. at 643. In order to view any prosecutorial misconduct in context, "we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. . . . Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted).
Even if the prosecutor's comments were improper, petitioner was not denied a fundamentally fair trial. Defense counsel's objection to the prosecutor's statements was sustained. The trial court gave a proper instruction to the jury that was sufficient to keep petitioner from being unduly prejudiced. Habeas corpus relief on this claim is not warranted.
VII. Conclusion
The petition for a mil of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.