Opinion
02-CV-6157(JBW), 03-MISC-0066 (JBW)
October 15, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied, No hearing on this mailer is necessary. This memorandum briefly addresses petitioner's claims,
T. Facts and Procedural History
Petitioner was tried for the crime of attempted robbery in the first degree arising out of the attempted theft of a motor vehicle, Evidence of his guilt was overwhelming. The prosecution presented testimony from numerous witnesses to the effect that petitioner used a screwdriver to attempt to steal a car that would not start, that he was confronted by the owners of the vehicle, that he stabbed at them with his screwdriver, and that he was prevented from leaving the vehicle by the owners, who brandished either a baseball bat or a shotgun. Petitioner was removed from the car when police arrived to arrest him, As he was being handcuffed, petitioner said to police officers, "Just arrest me for trying to steal that car. I did other felonies before. This ain't nothing to me. Just send me to Riverhead please," Trial Tr. at 117,
Petitioner was convicted of attempted robbery in the first degree. He was sentenced to a determinate term of eleven years in prison.
His conviction was affirmed on direct 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) he was denied a fair trial when the trial court refused to provide the jury with a written definition of all possible charges; (2) he was denied a fair trial when the court refused to read the legal definition of "serious physical injury" during a readback to the jury; (3) he was denied a fair trial because the court did not define the term "intent" for the jury; (4) he was denied due process when the trial court refused to submit lesser-included offense charges to the jury; (5) he was denied a fair trial because the prosecutor's summation shifted the burden of proof to petitioner; and (6) he was denied due process when the court refused a defense request to introduce unredacted medical records into evidence,
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 State 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. Lytle, 196 F.3d 1174, 1178 (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., cone wring and willing 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 state 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 state 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, not withstanding 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. Baffled, 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 Carr. Svcs., 235 F.3d 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 appealability 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 [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No, 02-2320, 2003 U.S. App, LEXIS 14450, at * 15 (2d Cir. July 18, 2003),
This opinion complies with Miranda v. Bennett, 322 F.3d 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
Respondent has not contested the timeliness of the petition, even though it appears that it might be untimely. Because petitioner's claims are frivolous, this court opts to address the merits of the claims rather than raise the timeliness issue sua sponte,
All of petitioner's claims are exhausted. None are barred from review in this court, Unless otherwise noted, the claims are reviewed under a de novo standard.
A
Petitioner first raises a number of claims concerning alleged errors in the jury charge, contending that he was denied a fair trial when the trial court refused to provide the jury with a written definition of all possible charges; when the court refused to read the legal definition of "serious physical injury" during a readback to the jury; when the court refused to define the term "intent" for the jury; and when the trial court refused to submit lesser-included offense charges to the jury. The Appellate Division rejected them on the merits, stating, "The charge, viewed as a whole, was proper." People v. Thurston, 722 N.Y.S.2d 414 (App, Div, 2001).
"In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context, Cupp v. Naughten, 414 U.S. 141, 146-47 (1973), The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Id. at 147.
Petitioner first contends that the trial con it denied him a fair trial by refusing to provide the jury with a written definition of all possible charges after the jury sent out a note stating it "would like to see the legal written definition of all possible charges." Trial Tr. at 371. New York law allows a trial court to provide such information to the jury, in its discretion:
At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper, With the consent of the parties and upon the request of the jury for further instruction with respect to a statute, the court may also give to the jury copies of the text of any statute which, in its discretion, the court deems proper.
N.Y. Crim, Pro, Law § 310.30 (emphasis supplied), In the instant case, the trial court was under the mistaken impression that it did not have authority to provide the jury with the written text of the statute, Nonetheless, this error did not prejudice petitioner or deny him a fair trial. The court read back all of the charges to the jury. Any error was harmless. Habeas corpus relief on this ground is not warranted.
Petitioner's next contention is that he was denied a fair trial when the court refused to read the legal definition of "serious physical injury" during a readback to the jury. The jury requested the court to "read the second element in the charge of first degree [attempted robbery]." Trial Tr. at 401. The court responded in the following manner:
Let me just read you the second element that you asked for.
The Second element is that in the course of the commission of the attempted robbery, or of the immediate flight therefrom, the defendant used or threatened immediate use of a dangerous instrument. In this case a screwdriver.
A dangerous instrument means any instrument, article or substance, including a vehicle, which under the circumstances that it is used, attempted to be used or threatened to be used, is capable of causing death or other serious physical injury.
Trail Tr. at 405, The trial court refused a defense request to read back the definition of "serious physical injury," because the jury "did not ask for that," Id. at 403. That ruling was sound and did not deny petitioner a fair trial Habeas corpus relief on this ground is not warranted.
Petitioner contends that he was denied a fair trial when the court did not define the terms "intent" and "steals property" for the jury. The court's instruction on attempted first degree robbery was taken from a pattern instruction book. The instructions were proper. The court instructed the jury "that the People must prove to your satisfaction from all the evidence in this case beyond a reasonable doubt that the defendant had the intent or conscious objective to steal property" Id. at 352, The court also explained that a person "steals property and commits larceny when, with this intent to deprive another of property, or to appropriate the property to himself or a third person, such person wrongfully takes property from the owner of such property," Id. at 354, These instructions were sufficient and did not result in petitioner being denied a fair trial. Habeas corpus relief on this claim is not warranted.
Petitioner contends that the trial court failed to inform the jury that it was a question of fact for them to decide whether a screwdriver could be a "dangerous instrument," The trial court properly instructed the jury that a "dangerous instrument" is "any instrument, article or substance, including a vehicle, which under the circumstances that it is used, attempted to be used or threatened to be used, is capable of causing death or other serious physical injury," Trial Tr. at 355. The court did not tell the jury that a screwdriver is a dangerous instrument as a matter of law. Within the context of the instructions, it was clear that the jury was to decide whether the screwdriver was a dangerous instrument under the circumstances of the case. Habeas corpus relief on this claim is not warranted.
Finally, petitioner claims he was denied a fair trial when the trial court refused to submit lesser-included offense charges to the jury. The trial court did instruct the jury on the lesser-included offense of attempted robbery in the third degree but refused defense requests for lesser-included instruction on attempted petit larceny or attempted grand larceny in the fourth degree. According to petitioner, the jury could reasonably have concluded that he did not use force during the course of the commission of the attempted robbery or in immediate flight, and that larceny instructions were therefore proper. The trial court sensibly concluded that no reasonable view of the evidence would support larceny charges based on the evidence presented at trial. In addition, petitioner's conviction of attempted robbery required the jury to find beyond a reasonable doubt each of the elements of that crime, an "implicit rejection" under New York State law of the lesser-included offense. See, e.g. People v. Greenwald, 654 N.Y.S.2d 663 (App, Div. 1997). Petitioner was not denied a fair trial. Habeas corpus relief on this ground is not warranted,
B
Petitioner next claims that he was denied a fair trial because the prosecutor's summation appealed to the jurors' emotions and shifted the burden of proof to petitioner. 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).
The prosecutor's comments on summation in the instant case did not deny petitioner a fundamentally fair trial. Among the "appeals to emotion" identified by petitioner are the following statements by the prosecutor:
•"You know you read about in the newspaper about people going to work, killing their fellow employees, Kids going to school with a gun killing their classmates. I read recently someone actually went to a church, . . . and stole from the collection box, It makes you wonder, ladies and gentlemen, if there is any place we can be where we're not going to be subjected to crime, Where we don't have to listen to somebody blame us, blame anybody, to avoid responsibility for their actions," Trial Tr. at 307,
•"The screwdriver in the hands of [petitioner] means to steal your car. He can use this to get inside your steering column and start your car. And when you try to stop him, he'll try to plunge it in your heart." Id. at 308.
•"Imagine a six inch rod plunged into your body." Id. at 319.
Some of these statements appear intended to evoke societal alarm and are improper appeals to the jury. Nonetheless, in the total context of the summation and the trial, the statements were not sufficiently egregious to have denied petitioner a fundamentally fair trial.
Petitioner also complains that the prosecutor shifted the burden of proof onto him by telling the jury, "But when you see the elements of the crime, when you hear the elements of the crime, find the element where it says self-defense where this defendant can defend himself. Find that part. I submit Co you, ladies and gentlemen, it doesn't exist." Id. at 308. An objection was overruled, with the court rejecting defense counsel's contention that the prosecutor was suggesting that petitioner had to prove that he did not act in self-defense. The prosecutor's statements were a fair response to repeated assertions from defense counsel in summation that the petitioner was merely defending himself from the owners of the vehicle, who were out to inflict a beating on petitioner. See, e.g., Trial Tr. at 289 ("If [petitioner] used force to defend himself, to protect himself from this vicious beating, that's not attempted robbery."). The prosecutor's comments were reasonably found not to be improper and, at any rate, did not deny petitioner a fundamentally fair trial.
None of petitioner's remaining contentions with respect to the prosecutor's summation have any merit. Habeas corpus relief on this ground is not warranted,
C
Finally, petitioner claims that he was denied due process and the right to put on a defense when the court refused a defense request to introduce unredacted medical records into evidence. For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is `crucial, critical, highly significant."' Collins v. Scully, 755 F.2d 16, 19 (2d Cir 1085) (quoting Nettles v. Wainwright. 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op, at 13 (2d Cir. June 13, 2003).
Petitioner sought introduction of his medical records in order to have the jury informed about the extent of the injuries he suffered at the hands of the vehicle's owners. The records included a statement from petitioner that he had been hit in the face with the butt of a shotgun — a factual question at issue in the trial. The court determined that allowing the unredacted reports into evidence would in effect allow petitioner to testify without being subject to cross examination, and lie therefore ruled that if the records were introduced into evidence unredacted, petitioner could be impeached with his prior criminal history, including seven felony convictions.
The trial court's evidentiary ruling was reasonable. Petitioner was not deprived of due process or a fair trial as a result of it. Habeas corpus relief on this ground is not warranted.
D
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"),
VII. Conclusion
The petition for a writ 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.