Opinion
03 Civ. 473 (BSJ) (GWG)
September 23, 2003
REPORT AND RECOMMENDATION
I. BACKGROUND
In this pro se petition brought pursuant to 28 U.S.C. § 2254, petitioner Aaron Smith seeks a writ of habeas corpus to set aside a judgment of conviction issued on December 23, 1997 by the Supreme Court of the State of New York, Bronx County. See Petition for Writ of Habeas Corpus, dated December 18, 2002 ("Petition"). Smith is currently incarcerated at the Oneida Correctional Facility in Rome, New York. For the reasons below, the petition should be dismissed.
A. State Court Proceedings
At a jury trial, the prosecution presented evidence that Smith and another man followed the complainant, Kenneth Gamble, into an elevator, held a gun to his head, demanded all of his money, struck him in the face with the gun, and then cut him with a razor blade. At a pre-trial suppression hearing, the prosecution had presented evidence that Gamble identified Smith shortly after the incident at a showup held outside a police station. Following the jury trial, Smith was convicted of one count of Assault in the Second Degree under New York Penal Law § 120.05. Petition ¶ 5. He was sentenced as a persistent violent felony offender to a term of imprisonment of six years to life. See id. ¶ 4.
Represented by counsel, Smith appealed his conviction to the Appellate Division, First Department, raising three arguments in support of reversal: (1) that the trial court improperly denied his motion to suppress identification evidence and any fruits thereof because the identification was the product of an unlawful showup identification without any legally sufficient exigency, see Appellant's Brief, dated January 27, 2001 ("App. Brief) (reproduced as Ex. 4 to Affidavit in Opposition to Petition for Habeas Corpus, dated June 11, 2003 ("Resp. Aff.")), at 18-22; (2) that the lower court erroneously denied his motion to suppress the identification evidence because it was procured through an arrest without probable cause, see id. at 22-27; and (3) that the trial court improperly denied his motion to dismiss because the evidence was legally insufficient to support the verdict and because the verdict was against the weight of the evidence, see id. at 28-30.
On September 25, 2001, the Appellate Division affirmed Smith's conviction. See People v. Smith, 286 A.D.2d 636 (1st Dep't 2001). With respect to the issue of probable cause, the court held that Gamble's description of Smith "was sufficient to provide reasonable suspicion to detain defendant for an identification procedure." Id. at 637 (citation omitted). Next, the court held that the showup was "not unduly suggestive" both because Gamble identified Smith, who was not in handcuffs, without any prompting and because "[t]he crime had occurred approximately 35 minutes before the showup, a few blocks away."Id. The court also stated that "exigent circumstances were present in that the complainant required medical treatment." Id. (citations omitted). Accordingly, the court ruled that Smith's motion to suppress was properly denied. Id. Finally, the court held that Smith's motion to dismiss was also properly denied because "[t]he verdict was not against the weight of the evidence" and "there is no basis upon which to disturb the jury's determinations concerning credibility." Id.
Represented by the same counsel, Smith submitted to the New York Court of Appeals a letter application seeking leave to appeal the Appellate Division's decision. See Letter from Donald A. Harwood, Attorney for Smith, to the Honorable Judith Kaye, Chief Judge, New York Court of Appeals (Oct. 26, 2001) ("Letter App.") (reproduced as Ex. 8 to Resp. Aff). The letter stated as follows:
This appeal raises a substantial issue affecting public justice that warrants review by the Court of Appeals, including because the First Department decision affirms denial of suppression of a suggestive, one-on-one identification at a police precinct and is at odds with, and undercuts, this Court's decision in People v. Riley. 70 N.Y.2d 523 (1987), which holds that show-up identifications at the police station are per se unreasonable in the absence of exigent circumstances.Id. at 2. In support of this claim, Smith argued that the First Department erred by utilizing what he described as a "totality of circumstances" analysis instead of Riley's per se bar when it considered the legality of the showup. Id. In the Appellate Division, the People had argued that Gamble's need for medical treatment required that the showup occur promptly in front of the police station. See Respondent's Brief, dated August 2001 (reproduced as Ex. 5 to Resp. Aff), at 23-24. In his letter, Smith argued that the Appellate Division incorrectly concluded that sufficient exigent circumstances existed for the showup identification, contending that "the record evidence established that there was no need for immediate medical treatment of the alleged victim whose injuries were not serious." Letter App. at 3. Without any legally sufficient exigency, Smith continued, the in-court identification should not have been admitted absent an independent source, which was not present. Id. at 4. The letter concluded:
Accordingly, it was reversible error to deny appellant's motion to suppress identification evidence, and any fruits thereof, including any evidence or statements seized from Smith as a result of the illegal identification procedure and ensuing arrest.
In view of the significance of this issue that would be presented in an appeal of the present matter, leave to appeal should be granted.Id. Enclosed with this four-page letter was "a copy of the Appellate Division's Order and one copy of each parties' [sic] brief which was filed in the Appellate Division." Id. at 1.
On December 28, 2001, the New York Court of Appeals denied Smith's application for leave to appeal. See People v. Smith, 97 N.Y.2d 688 (2001).
B. The Present Petition
Smith's pro se petition for a writ of habeas corpus is dated December 18, 2002, was received by the Pro Se Office of this Court on December 24, 2002, and was filed on January 22, 2003. The petition asserts five grounds for relief: (1) the verdict was both legally insufficient and against the weight of the credible evidence; (2) "[t]he credibility of the complainant was severely undercut at the trial" because he had "been arrested more than thirty (30) times for a variety of crimes" and because he "lied under oath (on the stand), causing the trial Judge to read a stipulation to the jury about his lie(s)"; (3) the police obtained the razor blade from Gamble, "who went back to the scene AFTER the Police had searched and investigated the scene, RECOVERING NOTHING, " and "[t]he alleged weapon was never corroborated or supported by any form of forensic evidence testing or testimony which would conclusively relate it to the reported incident"; (4) "[t]he identification evidence and any resulting evidence must be suppressed as friut [sic] of an illegal arrest for which probable cause was lacking; [p]olice did not carry their burden of establishing that probable cause existed for Petitioner Smith's detention which resulted in the identification procedure, violating Petitioner's Due Process rights (U.S. Const., Amends. IV, V, and XIV; N.Y. Const., Article I, § 6)"; and (5) the pre-trial court "failed to render a decision upon the Mapp hearing." Petition ¶ 13.
Respondent's first argument in opposition to the petition is that Smith never exhausted his state court remedies. See Resp. Aff. ¶ 15; Memorandum of Law in Support of Resp. Aff. at 4-12. For the reasons stated below, the petition should be dismissed on that basis. II. DISCUSSION
Under the habeas corpus statute, "[a]n 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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To exhaust a particular federal constitutional claim, the petitioner is required to have presented that claim to the highest court of the relevant state. See,e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard v. Connor, 404 U.S. 270, 275-76 (1971);Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001); Dave v. Attorney General, 696 F.2d 186, 190-91 (2d Cir. 1982), cert denied, 464 U.S. 1048 (1984). Although Smith proffers five grounds for habeas relief in this petition, his letter application to the New York Court of Appeals for leave to appeal did not raise any of these grounds. The only claim for which Smith sought review with the Court of Appeals was his claim that the showup should not have been conducted at all. In support of this claim, he argued that "show-up identifications at the police station are per se unreasonable in the absence of exigent circumstances, " Letter App. at 2, and that no such exigent circumstances existed because "the record evidence established that there was no need for immediate medical treatment of the alleged victim whose injuries were not serious, " id at 3.
Smith's claims in the instant petition, however, do not concern either the reasonableness of the showup identification or the existence of exigent circumstances. Smith's only habeas ground for relief that even mentions the admissibility of the identification evidence is ground four.See Petition ¶ 13. In ground four, however, Smith seeks relief from this Court only on the basis that the police lacked probable cause to detain him for the showup — not on the ground that showup identifications are per se unreasonable or that there were no exigent circumstances that justified holding the showup in his case.Compare Letter App. with Petition ¶ 13. None of the other four grounds for habeas relief (grounds one, two, three, and five) are addressed or even hinted at in Smith's letter application for leave to appeal.
While Smith's attorney made reference to the fact that he had enclosed the Appellate Division briefs along with Smith's application for leave to appeal, the mere inclusion of appellate briefs does not fairly present a petitioner's constitutional claims for purposes of the exhaustion requirement. See Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000); see also N.Y. Court Rules § 500.10(a) (requiring counsel to "identify the issues on which the application is based"). Indeed, the inclusion of appellate briefs is of no particular significance because all applications for leave to appeal must enclose them. See Alston v. Senkowski, 210 F. Supp.2d 413, 418 (S.D.N.Y. 2002) (citing N.Y. Court Rules § 500.10(a)). Moreover, by addressing in the letter application one particular issue — the reasonableness of showup identifications — the Court of Appeals would properly conclude that only the one issue discussed in the letter was being raised and not any of the other issues contained in the Appellate Division briefs.
This case is virtually identical to Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991). In Grey, the petitioner identified one claim in his leave to appeal letter to the Court of Appeals and also attached his Appellate Division briefs, which raised three issues including the one specified in the letter. Id. at 119-20. The leave to appeal letter made no mention of the other two issues raised in the briefs. Id. at 120. The Second Circuit held that the claims raised in the briefs were not exhausted, except for the one claim raised in the leave to appeal letter. Id.: accord Jordan, 206 F.3d at 198-99 ("[A]rguing one claim in [petitioner's] letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction."). Accordingly, Smith has not exhausted any of the claims he now seeks to raise in his habeas petition.
As discussed in Bossett v. Walker. 41 F.3d 825, 829 (2d Cir. 1994), cert denied, 514 U.S. 1054 (1995), Smith is now barred from making any additional leave application because one has already been denied by the Court of Appeals. See N.Y. Court Rules § 500.10(a) (only one leave application available). He is also foreclosed from bringing these claims in the state courts as a collateral attack on his conviction because the claims either were raised or could have been raised on his direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(a), (c). Grounds one and four were actually raised as legal issues in his brief to the Appellate Division. See App. Brief at 28-30 (ground one); id at 22-27 (ground four). Grounds two and three, while not raised as independent legal issues, were discussed in his direct appeal in connection with his arguments on the legal sufficiency and weight of the evidence. See id. at 14-15, 29-30 (ground two);id. at 7, 13, 30 (ground three). The remaining ground, number five, relates to the pre-trial hearing and thus obviously could have been raised in his direct appeal. Therefore, all the claims are procedurally defaulted.
Because Smith no longer has remedies available in state court, his claims are "deemed" exhausted. Bossett, 41 F.3d at 829. But because these same claims are procedurally defaulted, habeas review is barred unless Smith can establish cause and prejudice for the default or demonstrate that failing to consider his federal claims will result in a "fundamental miscarriage of justice, " see, e.g.,Harris v. Reed, 489 U.S. 255, 262 (1989), which requires a showing of "actual innocence." See, e.g.,Herrera v. Collins, 506 U.S. 390, 404 (1993); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). Smith's petition — the only filing he has made with this Court — makes no showing of cause for his default or "actual innocence." His petition is therefore barred from federal habeas review.
Conclusion
For the foregoing reasons, Smith's petition should be dismissed.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Barbara S. Jones, 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Jones. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal.See Thomas v. Arn, 474 U.S. 140 (1985).