Opinion
04 Civ. 01411 (HB) (GWG).
December 8, 2004
REPORT AND RECOMMENDATION
On October 27, 2000, Chaun Valentine was convicted after a jury trial in New York State Supreme Court, New York County, of one count of Criminal Sale of a Controlled Substance in the Third Degree under N.Y. Penal Law § 220.39. On January 25, 2001, he was sentenced, as a second felony offender, to an indeterminate prison term of 4-3/4 to 9-1/2 years.
Valentine, who is currently incarcerated at the Bare Hill Correctional Facility, brings this petition for a writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. For the reasons stated below, his petition should be denied.
I. BACKGROUND
A. Voir Dire
During the voir dire for Valentine's trial, there were 24 potential jurors in the first round of jury selection. (Tr. 107-08). When the prosecutor exercised a peremptory challenge against Jean Menninger, an African-American female, Valentine's counsel raised a claim under Batson v. Kentucky, 476 U.S. 79 (1986), stating that Menninger was "the only African-American on the panel" that morning. (Tr. 220-21). Although conceding that it was "hard to develop a pattern" of discrimination given that she was the first juror challenged, Valentine's counsel asserted that the prosecutor's use of a peremptory challenge to exclude Menninger was questionable since neither defense counsel nor the prosecutor had asked her any questions up to that point. (Tr. 220-22). In response, the prosecutor asserted that he had in fact asked Menninger a question. (Tr. 223). Indeed, earlier in the voir dire, Menninger was asked by the prosecutor whether she could take the case "seriously" even if it involved "a small amount of drugs," and she responded that she could. (See Tr. 162-63).
Following this colloquy, the court stated that regardless of whether Valentine's counsel established a prima facie pattern of discriminatory use of peremptory challenges, the court would give Valentine "the benefit of the doubt" and require the prosecution "to offer a neutral reason for challenging . . . Menninger." (Tr. 225). In response to the court's request, the prosecutor explained his use of the peremptory challenge against Menninger as follows:
To be precise, it was, at least during my portion of the voir dire as I was going through the questioning, from what I discerned, Ms. Menninger didn't seem to be overly interested in what was going on. It has been my experience that jurors who don't seem that interested in questioning by the lawyers don't make good jurors. For that reason, I used a peremptory challenge.
(Tr. 225-26). After being asked by the court what it was "about [Menninger] that suggested to you she was not overly interested," the prosecutor elaborated upon his initial response:
During my questioning, she didn't seem to be paying attention to me. When I scanned the jurors, she wasn't necessarily making eye contact with me. I didn't see — some of the jurors, for example, would follow me around the room. I didn't notice that about her. Since I didn't feel she was either taking the voir dire seriously or she was taking my role as a prosecutor in this case seriously, I challenged her.
(Tr. 226).
The trial court accepted the prosecutor's justification for exercising the peremptory challenge as a "fairly neutral reason" and informed Valentine's counsel that she had the burden of showing why the prosecutor's use of the peremptory challenge against Menninger "was in fact a pretext for discrimination" by the prosecutor. (Tr. 226). In response, Valentine's counsel once again asserted that the prosecutor's conduct was suspect because "there was no specific question asked of [Menninger]." (Tr. 227).
The trial court denied Valentine's Batson challenge. (Tr. 227-28). In so doing, the court asserted that there was no reason "to reject the race neutral reason offered by [the prosecutor]." (Tr. 227-28). The court reasoned that Valentine's Batson challenge should be denied since he failed to satisfy "the burden that must be shown by the Batson movant to enable . . . the court to make a finding of purposeful discrimination." (Tr. 227).
B. Evidence Presented at Valentine's Trial
On September 7, 1999, a team of officers from the Thirty-Second Precinct in Manhattan were working in the area of Lenox Avenue and West 129th Street. (Gamble: Tr. 362, 366). That afternoon, Police Officer John Gamble, a member of the Thirty-Second Precinct's Street Narcotics Enforcement Unit, was observing the southeast corner of Lenox Avenue and West 129th Street for drug activity from a nearby rooftop with the assistance of binoculars. (Gamble: Tr. 357, 366-68). Officer Gamble's role that day was to observe drug sales from the rooftop and send, via radio transmission, descriptions of the persons involved in "the selling and buying of drugs" to an "apprehension team" patrolling in the area. (Gamble: Tr. 360-62, 364). It was the role of members of the "apprehension team" to seek out and arrest the individuals described in Gamble's radio transmissions. (Gamble: Tr. 361-62).
When Gamble first arrived at his post at approximately 4:30 p.m., he observed Valentine and James Cabey standing on the southeast corner of Lenox Avenue and West 129th Street. (Gamble: Tr. 368-70). Shortly thereafter, Melvin Hamett approached Valentine and Cabey as they stood on the corner of Lenox Avenue and West 129th Street. (Gamble: Tr. 370-71). After a "brief conversation," Valentine and Hamett walked down the block together, approximately fifteen feet away from the corner where Cabey and Valentine were previously standing. (Gamble: Tr. 371-72). At that time, Hamett handed Valentine money, and Valentine handed Hamett a "small object" in return. (Gamble: Tr. 372, 374). After briefly examining the object, Hamett placed it in his shirt pocket. (Gamble: Tr. 375-76).
After observing the interaction between Valentine and Hamett, Gamble made a radio transmission to members of the apprehension team, describing Hamett's clothing and the direction in which he was walking. (Gamble: Tr. 376). Shortly after receiving the radio transmission, members of the apprehension unit stopped Hamett and recovered a vial of crack with a clear top from Hammett's shirt pocket. (Palermo: Tr. 507, 509-10). Hamett was subsequently arrested. (Palermo: Tr. 512; Gamble: Tr. 362-63).
Following the transaction with Hamett, both Valentine and Cabey continued to stand on the corner of Lenox Avenue and West 129th Street. (Gamble: Tr. 380). Valentine eventually left Cabey and entered a nearby building, from which he departed several minutes later riding a bicycle. (Gamble: Tr. 381-83). At this time, Gamble sent a radio transmission to members of the apprehension team detailing Valentine's direction of travel. (Gamble: Tr. 383).
After Valentine's departure, Gamble continued to observe the southeast corner of Lenox Avenue and West 129th Street. (Gamble: Tr. 383). At that time, Cabey sold drugs to four different individuals, including Clifton Walters. (Gamble: Tr. 383-84). Walters was subsequently arrested and police recovered two red-topped vials of crack from him. (Gamble: Tr. 388-89).
Cabey subsequently entered a nearby building located at 60 West 129th Street. (Vega: Tr. 557). Gamble informed members of the apprehension team, via radio transmission, of Cabey's whereabouts. (Vega: Tr. 557). Acting upon Gamble's radio transmission, officers entered the lobby of the building. (Thomas: Tr. 593-95). Upon entering the building, the officers recovered two red-topped vials of crack which Cabey had dropped on the floor. (Vega: Tr. 557). Following Cabey's apprehension, the arresting officers also recovered another 26 red-topped vials of crack from the floor of the lobby. (Thomas: Tr. 593-94, 598; Vega: Tr. 559, 583-84).
At approximately 6:00 p.m. that evening, Officer Gamble spotted Valentine riding his bicycle northbound on Lenox Avenue and informed his fellow officers that "the seller [was] back." (Gamble: Tr. 385-86; Vega: Tr. 559; Thomas: Tr. 595). Shortly thereafter, Detective Joseph Thomas, a member of the apprehension team, arrested Valentine. (See Thomas: Tr. 592, 595-96; Gamble: Tr. 386).
At Valentine's trial, over defense counsel's objection, the court admitted into evidence 30 red-topped vials of crack cocaine recovered from James Cabey and Clifton Walters. (See Tr. 408-410, 413, 536-37, 539, 600, 624-26). The 30 red-topped vials of crack consisted of the two vials recovered from Clifton Walters following his arrest, the two vials of crack dropped on the floor by Cabey when officers entered the lobby of the building to apprehend him, and the 26 vials of crack found on the floor of the lobby at the time that the police apprehended Cabey. (See Gamble: Tr. 387-89, 390-92). In addition to the 30 red-topped vials of crack recovered from Cabey, the clear-topped vial of crack found in Hamett's possession was also admitted into evidence. (Gamble: Tr. 387; Tr. 600).
In its brief to this Court, the State suggests that the red-topped vials of crack were offered into evidence in order to counter Valentine's contention that the police had confused Valentine with Cabey — a defense that Valentine apparently relied upon at a previous trial of the same charge that ended in a hung jury. See Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed July 19, 2004 (Docket #5) ("Resp. Mem."), at 22. The trial transcript does not reflect that the prosecutor made this specific argument to the trial judge, although testimony was presented which indicated that a seller will normally sell only one type of crack vial and that two individuals may each sell their own type of vial at the same location. (Vega: Tr. 582, 587). The trial transcript does, however, indicate that defense counsel argued misidentification generally in her opening statement, (see Tr. 346), and argued it more specifically during her summation. (See Tr. 636, 645-46, 661-64). In fact, at the outset of her summation, defense counsel asserted to the jury that "[t]his [was] a case that [was] about the misidentification of Chaun Valentine." (Tr. 636). Similarly, during the course of her summation, defense counsel again emphasized to the jury that the "chaotic scene" in the vicinity of Lenox Avenue and West 129th Street resulted in "a misidentification of Chaun Valentine." (See Tr. 664).
During the course of the trial, the judge instructed the jury on a number of occasions as to the limited evidentiary use of the red-topped vials of crack. (Tr. 539, 600, 698-99). For example, after receiving the red-topped vials of crack into evidence subject to connection, the trial court instructed the jury as follows:
And let me just say to you that while the exhibit is being received in evidence, you should understand that the only charge in this case against Chaun Valentine is the People's accusation that he sold one vial, that the People say contains cocaine and that they say he sold that vial to Melvin Hamett on September 7th, 1999, and of course the defendant disputes that. But the DA does not contend that Mr. Valentine possessed or sold any of the other items [admitted into evidence].
(Tr. 539). Later, the judge instructed the jury that "Valentine [was] accused only of having sold exhibit 1A to Melvin Hamett," and that "[Valentine] was not accused of selling or possessing any of the items reflected in [the other exhibits]." (Tr. 600). Similarly, at the close of the case, the judge again reminded the jury
. . . that the defendant is only charged with selling the one vial of alleged crack cocaine received in evidence as exhibit 1A. He is not charged with selling or possessing the items in evidence as exhibits 1B, 1C and 1D. . . .
(Tr. 698-99).
Valentine presented no witnesses.
C. Verdict and Sentence
The jury convicted Valentine of one count of Criminal Sale of a Controlled Substance in the Third Degree under N.Y. Penal Law § 220.39. (Tr. 721). As a result, on January 25, 2001 Valentine was sentenced, as a second felony offender, to an indeterminate prison term of 4-3/4 to 9-1/2 years. (Sentencing: Tr. 3-4, 7).
D. Direct Appeal
Valentine appealed his conviction to the Appellate Division, First Department. In his brief, Valentine raised the following issues: (1) that the prosecutor's explanation for striking the only African-American juror, Menninger, was pretextual, and, as a result, he was denied "equal protection under the federal and state constitutions"; and (2) that he was "denied his fundamental due process right to a fair trial when the court admitted into evidence, over defense counsel's objection, thirty vials of cocaine that were in no way associated with . . . Valentine." Brief for Defendant-Appellant, dated February 6, 2002 ("Pet. App. Brief") (reproduced as Ex. A to Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed July 19, 2004 (Docket #6) ("Decl. in Opp.")), at 12, 21.
On October 1, 2002, the Appellate Division unanimously affirmed Valentine's conviction. People v. Valentine, 298 A.D.2d 126, 126 (1st Dep't 2002). The court rejected the first issue raised in Valentine's brief on the ground that the race-neutral reason offered by the prosecutor was not pretextual under Batson. See id. As to the second issue, the Appellate Division began by stating that "[Valentine] had waived any objection to testimony that drugs had been recovered from [Cabey]" but went on to hold in the alternative that "the People were entitled to have [Cabey's] drugs admitted into evidence in order to show the jury that those drugs had a different appearance from those allegedly sold by [Valentine], in order to dispel any suggestion that [Cabey] was actually responsible for the sale attributed to [Valentine]." Valentine, 298 A.D.2d at 126. The court also asserted that the evidence in no way prejudiced Valentine since the trial court "repeatedly" gave limiting instructions to the jurors regarding the use of the evidence. See id.
In two letter applications, dated November 13, 2002 and December 6, 2002, Valentine sought leave to appeal to the New York Court of Appeals. See Letter from Richard M. Greenberg, et al., to the Hon. Judith S. Kaye, dated November 13, 2002 (reproduced as Ex. E to Decl. in Opp.), at 1; Letter from Richard M. Greenberg, et al., to the Hon. Richard C. Wesley, dated December 6, 2002 (reproduced as Ex. E to Decl. in Opp.) ("Dec. 6 Letter"), at 5. On January 23, 2003, leave was denied. People v. Valentine, 99 N.Y.2d 586 (2003).
E. The Instant Habeas Corpus Petition
Valentine timely filed this petition for a writ of habeas corpus on February 19, 2004. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed February 19, 2004 (Docket #2) (reproduced as Ex. G to Decl. in Opp.) ("Petition"). Valentine's petition alleges two grounds for habeas relief: (1) that "[t]he prosecutor's explanation for striking the first and only African-American juror during the first round of jury selection was pretextual"; and (2) that "[he] was denied his fundamental right to a fair trial" when the trial court admitted into evidence the crack cocaine found in Cabey's possession because such evidence was "irrelevant and highly prejudicial." See Petition at 5A, 5B.
II. DISCUSSION
A. Batson Claim
Valentine first claims that "[t]he prosecutor's explanation for striking the first and only African-American juror during the first round of jury selection was pretextual where there was no evidence of the juror's alleged disinterest." Petition at 5A. Valentine contends that "[t]he prosecution's purposeful discrimination in its peremptory challenge of [Menninger]" denied him equal protection of the law under the federal constitution.See Pet. App. Brief at 12.
1. Standard of Review
A petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(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). For a state court decision to constitute an "adjudication on the merits," the state court need only base its decision "on the substance of the claim advanced, rather than on a procedural, or other, ground."Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not necessary for the state court to refer to the federal aspect of a claim or any federal law for the deferential standard to apply.Id. at 312.
Valentine's claim of a Batson violation was "adjudicated on the merits" by the Appellate Division. The Appellate Division, in analyzing Valentine's claim of a Batson violation, stated as follows:
Defendant's application made pursuant to Batson v. Kentucky ( 476 US 79) was properly denied. We note that defendant clearly failed to establish a prima facie case of discrimination. However, since the court nevertheless proceeded to request an explanation for the single peremptory challenge at issue, and then ruled on the ultimate issue of pretextuality, the absence of a prima facie case is moot (People v. Payne, 88 NY2d 172, 182). We conclude that defendant did not satisfy his burden of establishing that the race-neutral reason offered by the prosecutor, namely that the panelist's demeanor during voir dire suggested that she was not interested and alert, was pretextual. A trial court is in the best position to determine the credibility of an attorney's assertion that a challenge is not based on race, and such a determination is entitled to great deference (see People v. Hernandez, 75 NY2d 350, affd 500 US 352). The court was entitled to credit the prosecutor's representation that he had noticed the panelist's inattentiveness (People v. Gibbs, 267 AD2d 179, lv denied 95 NY2d 835). There is no evidence in the record that there were equally inattentive panelists whom the prosecutor did not challenge.Valentine, 298 A.D.2d at 126-27. Because the Appellate Division based its decision on the "substance" of Valentine's claim — namely, whether he satisfied his burden of demonstrating that the prosecutor's use of a peremptory challenge to strike a juror was motivated by purposeful discrimination — the state court decision constitutes an "adjudication on the merits" and section 2254(d)'s deferential standard applies. See Kuhlman, 261 F.3d at 311.
Under this standard, this Court may grant relief only if the Appellate Division applied a rule that contradicted or unreasonably applied the governing law set forth in Supreme Court precedent, or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case."Id. at 413. A federal court may not grant habeas relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application of "clearly established federal law" must have been "objectively unreasonable." Id. at 409. With respect to factual determinations, a state court determination of a factual issue is "presumed to be correct" and that presumption may be rebutted only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
2. Batson v. Kentucky and its Progeny
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court set forth a "three-part test trial courts are to employ when evaluating whether a party exercised a peremptory challenge in a discriminatory manner." Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001). As summarized in Galarza, the process consists of three steps:
[Step 1:] First, a trial court must decide whether the party challenging the strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race. Such a prima facie case may be established, for example, by showing a pattern of strikes against minority prospective jurors. . . .
[Step 2:] If the party making the Batson challenge establishes a prima facie case, the trial court must require the non-moving party to proffer a race-neutral explanation for striking the potential juror. This second step does not require the party to give an explanation that is persuasive or even plausible.
[Step 3:] Finally, if the non-moving party proffers a race-neutral explanation, the trial court must determine whether the moving party has carried his or her burden of proving that the strike was motivated by purposeful discrimination.Id. at 636 (citations omitted) (bracketed material added) (emphasis in original); accord Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003).
The Second Circuit has noted that at the third stage of theBatson challenge:
a court must "make an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances." Galarza v. Keane, 252 F.3d 630, 636 (2d Cir. 2001) (quoting Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000) (internal quotation marks omitted)). "We have repeatedly emphasized that a trial court may not deny a Batson motion without determining whether it credits the race-neutral explanations for the challenged peremptory strikes." Galarza, 252 F.3d at 636. "The credibility of an attorney offering a race-neutral explanation is at the very heart of [the Batson] analysis." Barnes [v. Anderson], 202 F.3d [150,] 157 [2d Cir. 1999].United States v. Thomas, 303 F.3d 138, 144 (2d Cir. 2002) (some bracketed material added); accord Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000).
In making the determination of whether counsel's race-neutral explanation for a peremptory challenge should be believed, the trial court evaluates the prosecutor's state of mind based on the prosecutor's demeanor and credibility. See Hernandez v. New York, 500 U.S. 352, 365 (1991) ("There will seldom be much evidence bearing on [the issue of discriminatory intent], and the best evidence often will be the demeanor of the attorney who exercises the challenge."). Because a trial court's "decision on the factual question of discriminatory animus" is "largely based on determinations of credibility," a federal habeas court must "ordinarily give great deference" to the state trial court's ultimate determination of this issue. Brown v. Kelly, 973 F.2d 116, 120 (2d Cir. 1992) (internal quotations omitted),cert. denied, 506 U.S. 1084 (1993); accord Wainwright v. Witt, 469 U.S. 412, 428 (1985); McKinney v. Artuz, 326 F.3d 87, 98 (2d Cir. 2003).
3. Analysis
The Second Circuit has made clear that "[a] state court's determination whether a prosecutor's use of a peremptory challenge was motivated by discriminatory intent, in violation ofBatson, is a factual determination and thus qualifies for th[e] presumption of correctness." Bryant v. Speckard, 131 F.3d 1076, 1077 (2d Cir. 1997) (per curiam) (citing Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam)), cert. denied, 524 U.S. 907 (1998). Because Valentine's challenge turns on the trial court's finding that the prosecutor did not engage in a pretextual strike, the question before this Court is whether that finding, upheld by the Appellate Division on appeal, was "based on an unreasonable determination of the facts." See 28 U.S.C. § 2254(d). Under the statutory scheme, the trial court's factual determination that the prosecutor's strike was not motivated by race is "presumed to be correct" and Valentine has "the burden of rebutting th[is] presumption of correctness by clear and convincing evidence." See 28 U.S.C. § 2254(e)(1). In other words, this Court must determine whether, "in light of the evidence presented in the State court proceeding," Valentine has demonstrated by "clear and convincing evidence" that the trial court unreasonably determined that the prosecutor's use of a peremptory strike against Menninger was not based on race. See 28 U.S.C. § 2254(d); 28 U.S.C. § 2254(e)(1); accord Haywood v. Portuando, 288 F. Supp. 2d 446, 459 (S.D.N.Y. 2003).
To pose this question in the context of the facts of this case is tantamount to answering it. Valentine has provided no such "clear and convincing" evidence. As noted, the prosecutor gave a race neutral reason for his strike, asserting that Menninger was not "overly interested" in the proceedings and that she was not "paying attention" to the prosecutor during the course of the proceedings or taking his role "seriously." (See Tr. 225-26). The prosecutor asserted that he exercised a peremptory challenge of Menninger because, based on his experience, jurors who were disinterested in the proceedings did not "make good jurors." (Tr. 225-26). The trial court found that Valentine's counsel failed to establish "[a] reason to reject the race neutral reason offered by [the prosecutor]," and, therefore, denied Valentine's Batson challenge. (Tr. 227-28).
In light of this evidence, Valentine has failed to demonstrate by "clear and convincing evidence" that the trial court's determination of the Batson issue was "unreasonable." See 28 U.S.C. §§ 2254(d), 2254(e)(1). Courts have repeatedly held that assertions such as those set forth by the prosecutor in this case may constitute a race-neutral reason for exercising a peremptory challenge. See United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990) (stating that "the Government's concern about a juror's inattentiveness is a good reason for its exercising a peremptory challenge") (citing United States v. Biaggi, 853 F.2d 89, 96 (2d Cir. 1988), cert. denied, 489 U.S. 1052 (1989)); McCrory v. Henderson, 82 F.3d 1243, 1248 (2d Cir. 1996) ("a prosecutor's explanation that a venireperson was excluded because he or she seemed . . . inattentive . . . if credible, is sufficient") (citing United States v. Sherrills, 929 F.2d 393, 395 (8th Cir. 1991)); Stays v. Herbert, 2003 WL 22765352, at *4 (E.D.N.Y. Nov. 24, 2003) (prosecutor's concern about African-American jurors inattentiveness was a sufficient race-neutral explanation for the prosecutor's use of a peremptory challenge to strike the juror); see also Lefevre, 206 F.3d at 200 (demeanor of a prospective juror is an acceptable race neutral reason for exercising a peremptory challenge); Brown, 973 F.2d at 121 (same). Valentine's claim is thus without merit.
B. Claim Regarding Admission of Irrelevant and Prejudicial Evidence
Valentine's second claim for relief is that he "was denied his fundamental right to a fair trial when the [trial] [c]ourt admitted into evidence thirty vials of crack-cocaine . . . which were irrelevant and highly prejudicial." Petition at 5B (some bracketed material added); see also Pet. App. Brief at 21. Valentine asserts that, because the drugs were in the possession of Cabey, and not himself, the drugs were "immaterial" to the prosecution's case against him, and served only to allow the jury "to raise an inference of guilt by association" with Cabey. Petition at 5B; see also Pet. App. Brief at 22-23. The respondent, however, argues that "[Valentine] failed to exhaust his claims regarding the introduction of the vials of crack-cocaine because he never alerted the New York Court of Appeals to the federal constitutional nature of the claim." See Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed July 19, 2004 (Docket #5) ("Resp. Mem."), at 19. Because Valentine's petition would have to be denied on the merits, this Court need not reach the issue of exhaustion. See 28 U.S.C. § 2254(b)(2).
To obtain habeas corpus relief under 28 U.S.C. § 2254, the petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) ("petitioner bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated") (citing Machado v. Commanding Officer, Plattsburgh Air Force Base, 860 F.2d 542, 544 (2d Cir. 1988)). Here, Valentine's claims, both before the Appellate Division and the Court of Appeals, amount to a challenge to the state trial court's evidentiary ruling. See Pet. App. Brief at 21-25; Dec. 6 Letter at 5 n. 3. In general, "[e]rroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus." Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983), cert. denied, 464 U.S. 1000 (1983). Rather, "[a] state court's erroneous ruling on an issue of state evidentiary law rises to a federal constitutional violation only if the error deprived the [petitioner] of a fundamentally fair trial."Crawford v. Artuz, 165 F. Supp. 2d 627, 635 (S.D.N.Y. 2001) (emphasis in original) (citing Taylor, 708 F.2d at 891);accord Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985). The erroneous admission of evidence rises to a deprivation of due process under the Fourteenth Amendment only if "the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Collins, 755 F.2d at 19. In other words, the evidence must have been "'crucial, critical, highly significant.'" Id. (quoting Nettles v. Wainwright, 677 F.2d 410, 415 (5th Cir. 1982)).
Valentine has not even demonstrated that the evidentiary ruling was "erroneous" let alone that the ruling denied him a fundamentally fair trial. First, the contested evidence was relevant and properly admitted in the state court to rebut the misidentification defense asserted by Valentine. The misidentification defense was specifically relied on in defense counsel's opening statement, in which Valentine's counsel asserted that "Chaun Valentine was not the person selling drugs on the corner of 129th Street and Lenox Avenue. On this particular day, the evidence will show there was a number of people walking to and fro, walking back and forth. . . ." (Tr. 346). Because the red-topped vials of crack-cocaine recovered from Cabey had a different appearance from the clear-topped vial of crack-cocaine Valentine sold to Hamett, the red-topped vials of crack cocaine were relevant to prove that Officer Gamble did in fact witness Valentine, not Cabey, engage in the transaction with Hamett. This testimony was made even more relevant in light of testimony presented at trial which indicated that two persons selling drugs at the same location would ordinarily utilize different vials to contain the drugs. (See Vega: Tr. 582, 587). Obviously, because the contested evidence was "'probative of [an] essential element' in the case," admission of the evidence did not violate Valentine's right to due process. See Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Estelle v. McGuire, 502 U.S. 62, 69 (1991)), cert. denied, 525 U.S. 840 (1998)).
Even if it could be shown that the red-topped vials were erroneously admitted, the evidence was not "sufficiently material" to cause a constitutional violation. Collins, 755 F.2d at 19. The prosecution's case against Valentine was primarily founded upon the testimony of Officer Gamble, a trained narcotics officer, who witnessed the drug transaction between Valentine and Melvin Hamett from a nearby rooftop with the use of binoculars in broad daylight. The prosecution's case also rested upon the testimony of the narcotics officers who arrested Hamett, as well as those officers who arrested James Cabey and Clifton Walters after Officer Gamble observed the two men engage in a drug sale. The red-topped vials were described in detail during the course of the officers' testimony at trial — none of which was the subject of any apparent objection by the defense — and thus the admission of the vials themselves was of little consequence. In sum, "in light of the entire record before the jury," the admission of the contested evidence was not "sufficiently material" to deprive Valentine of a "fundamentally fair trial." See Collins, 755 F.2d at 18-19. Moreover, any error in admitting the evidence was surely cured by the trial court's repeated instructions to the jury throughout the trial as to the limited use of the evidence. See Allaway v. McGinnis, 301 F. Supp. 2d 297, 301 (S.D.N.Y. 2004) (limiting instruction negated any argument that admission of evidence was unfair); Green v. Herbert, 2002 WL 1587133, at *16 (S.D.N.Y. July 18, 2002) (limiting instruction given by the trial court "militate[s] against a finding of constitutional error" resulting from the allegedly erroneous admission of evidence) (citing Cruz v. Greiner, 1999 WL 1043961, at *31 n. 26 (S.D.N.Y. Nov. 17, 1999)) (Report and Recommendation adopted by Order, filed Sept. 5, 2002 (Docket #14 in 01 Civ. 11881)); Kanani v. Phillips, 2004 WL 2296128, at *19 (S.D.N.Y. Oct. 13, 2004) (same) (citing Peakes v. Spitzer, 2004 WL 1366056, at *18 n. 29 (S.D.N.Y. June 16, 2004)); see also Richardson v. Marsh, 481 U.S. 200, 211 (1987) ("juries are presumed to follow . . . instructions"); Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir. 1996) ("We assume that a jury applies the instructions it is given."), cert. denied, 519 U.S. 834 (1996).
In sum, the state court's admission of the crack vials did not deprive Valentine of his Fourteenth Amendment right to due process. As a result, his petition for habeas relief on this ground must be denied.
Conclusion
Valentine's petition should be denied.
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 Hon. Harold Baer, Jr., 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Baer. 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).