Opinion
No. 01 Civ. 9862 (GWG)
January 7, 2003
Darrell Alston, Pro se, Upstate correctional Facility Malone, New York, for Petitioner.
Beht Janet Thomas Assistant Attorney General, Attorney General of the State of New York, New York, for Respondent.
OPINION AND ORDER
Darrell Alston brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. The parties have consented to the disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
On November 7, 1996, Alston was convicted upon his plea of guilty in Supreme Court, New York County to Forgery in the Second Degree, Grand Larceny in the Fourth Degree, Criminal Possession of Stolen Property in the Fourth Degree, Petit Larceny, and Criminal Impersonation in the Second Degree. He was sentenced to concurrent terms of imprisonment aggregating from two to four years. Alston is currently incarcerated in the Upstate Correctional Facility in Malone, New York pursuant to this conviction as well as an additional judgment of conviction.
I. BACKGROUND A. The Circumstances of Alston's Arrest
The uncontested evidence adduced at a pre-trial suppression hearing showed that on March 21, 1996, William Ernstein and his friend went to the Sixth Precinct, at 233 West 10th Street, to report that Ernstein's wallet and credit cards had been stolen. Minutes of Hearing, dated September 30, 1996 (hereinafter "H"), at 7-8. As reported by Police Officer Timothy Duffy, who was the sole witness at the hearing, Ernstein said he had been at the Hangar Bar on Christopher Street and spoke with a black man, 5'7" tall with gold front teeth and wearing a white jersey with the word "Adidas" on the front. (H: 9, 29). After speaking with the man, Ernstein discovered his wallet was missing. (H: 28). He called to cancel his credit cards and was informed by one of his credit card companies that his card had just been used to purchase a jacket at a leather store nearby. (H: 8-9). Officer Duffy heard Ernstein's account at the precinct and told Ernstein to complete a complaint report while Duffy and his partner, Police Officer Campanello, would search the nearby area in hope of finding the thief. (H: 9).
At approximately 8:50 p.m. the officers left the precinct and proceeded to Christopher and West Fourth Streets to the store where the purchase had been made. (H: 9, 31). As they approached the store, at about 8:55 to 9:00 p.m., the officers spotted a black male, approximately five-seven, with gold front teeth and wearing a white jersey with the word "Adidas" across it. H. 9-10, 32. This individual was Alston, who was carrying a brown paper bag from the Original Leather Store and a green leather jacket in his hand. (H: 10-11, 32). The officers approached Alston and asked him for identification. (H: 11). Alston produced a social security card belonging to "Darryl Roberts." Id. The officers asked if he knew the social security number on 2 the card, to which Alston replied that he did not. Id. Officer Duffy then asked for additional identification and Alston produced a driver's license — again in the name of Darryl Roberts. Id. The photograph on the license did not resemble Alston. Id.
Officer Duffy then phoned the station house and asked for Ernstein to be brought to the scene. (H: 35). Once he arrived, Ernstein identified Alston as the person who had taken his wallet. (H: 37). Alston was then placed under arrest. (H: 13). After the arrest, Officer Duffy retrieved the bag, which contained a brown suede jacket, and later, at the police station, recovered from Alston $302 cash and airline tickets in the name of John Calloway. (H: 13-14). Officer Campanello subsequently went to the leather store and obtained a copy of the credit card receipt from Alston's purchase of the leather jacket using Ernstein's credit card. (H: 15)
B. Grand Jury and Pre-trial Proceedings
Officer Duffy's testimony before the grand jury matched his testimony at the suppression hearing, see section I.A above, with one exception. At the suppression hearing, Officer Duffy stated that he recovered the driver's license prior to Alston's arrest. (H. 13-14). During his grand jury testimony, however, Officer Duffy had stated that the driver's license was not recovered until after Alston was placed under arrest. Alston App. Br. at 16-17; H. 37-38.
The minutes of the grand jury presentation have not been supplied to the Court. The relevant portions, however, are quoted and summarized in Alston's brief to the Appellate Division on his direct appeal. See Brief for Defendant-Appellant ("Alston App. Br."), dated December 1999, at 5-12 (reproduced in Affidavit in Opposition to Petition for a Writ of Habeas Corpus, dated May 8, 2002 ("Thomas Aff."), Ex. C).
Alston gave the following account of his actions in his own testimony before the grand jury: he had met a man named "Will" at a bar downtown. Will gave Alston his credit card to buy a jacket. See Alston App. Br. at 4. Alston then left the bar to buy a brown suede jacket and returned to the bar to give Will his credit card back. See id. at 4-5. After Alston returned to the bar, Will tried to have sex with Alston in the bathroom but Alston refused and left. See id. at 5. Alston then went to 34th Street to return a jacket he had purchased earlier. See id. When he returned downtown, he was stopped and arrested by the police. See id.
On cross examination, the prosecutors questioned Alston about his use of different names, prior crimes, including theft of and use of credit cards, and an alleged propensity to prey on gay men. See id. at 5-12. The prosecutors allegedly never gave a limiting instruction to the grand jurors on the proper use of the information elicited on cross examination. See id. at 13.
Alston was subsequently indicted by the grand jury for Forgery in the Second Degree (for the use of Ernstein's credit card), two counts of Grand Larceny in the Fourth Degree (for the theft of Ernstein's credit card), two additional counts of Grand Larceny in the Fourth Degree (for the theft of identification from Darryl Roberts), one count of Criminal Possession of Stolen Property in the Fourth Degree (for possession of Ernstein's credit card), one count of Petit Larceny (based on the purchase of the leather jacket), one count of Criminal Possession of Stolen Property in the Fifth Degree (for possessing the property of Darryl Roberts), and one count of Criminal Impersonation in the Fourth Degree (based on Alston's claim that he was Darryl Roberts). See Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, dated May 8, 2002 ("Resp. Mem."), at 3-4.
Alston moved to dismiss the indictment. Alston claimed he was denied his statutory right to testify in front of the grand jury because of the allegedly improper cross examination and lack of a limiting instruction to the grand jury. See Alston App. Br. at 13. In addition, he claimed he was not given notice that the grand jury would be considering charges involving the Darryl 4 Roberts identifications. See Decision and Order of Justice Charles H. Solomon, dated June 10, 1996, (reproduced in Thomas Aff. Ex. A) ("Decision and Order"), at 1. The trial court denied Alston's motion. See id. at 5. The court found that the prosecutors were under no obligation to inform Alston of the charges involving Darryl Roberts, see id. at 2-3, and that the cross- examination, while "inappropriate" in part, did not so "impair the integrity of the grand jury proceedings" as to warrant dismissal. See id. at 4.
Alston later moved to suppress the physical evidence recovered from him. At the suppression hearing on September 30, 1996, Officer Duffy testified to the events surrounding Alston's arrest as described in Section I.A. above. Officer Duffy testified that the driver's license was produced by Alston during the initial questioning and not after the arrest. (H: 13-14). Although he conceded that he had testified otherwise in the grand jury, he stated that his grand jury testimony was "incorrect." (H: 11, 37-38). At the conclusion of the hearing the trial court denied Alston's motion to suppress in a decision read into the record. (H: 70-76). The court denied the motion to suppress finding "in all respects . . . there was probable cause for [the] arrest in this case." (H. 74). Probable cause to arrest was found based on Ernstein's complaint and description of Alston, Ernstein's discovery of the use of his credit card to buy leather goods, and the fact that Alston "matched substantially the description . . . and . . . was carrying a bag which said clearly . . . `Leather Store.'" (H. 74-76). In other words, the court found probable cause to arrest prior to any questioning of Alston.
On October 21, 1996, the prosecution for the first time produced to the defense the memo book entries made by Officer Duffy at the time of Alston's arrest. See Alston App. Br. at 20; Resp. Mem. at 4. The memo book contained notations that Officer Duffy had requested 5 identification from Alston but made no mention of the driver's license. See Alston App. Br. at 21. On October 22, 1996, Alston's defense counsel requested a re-opening of the suppression hearing based on the newly produced memo book entries. See Minutes of Hearing, dated October 22, 1996 (hereinafter "SH") (reproduced in Thomas Aff. Ex. B). The request was granted and the hearing was reopened — this time before the new trial judge who had been assigned to the case. Officer Duffy testified regarding the notebook entry and the failure to mention the driver's license. (SH: 10-16). After the testimony, the trial judge denied the defense request to hold a new suppression hearing in front of the prior trial judge. (SH: 23). The new judge concluded that the prior judge had "found the whole issue of the social security card and the driver's license was not germane because probable cause was established prior to that." (SH: 24). The court also found that "under the circumstances the development of the testimony would not in any way affect [the prior judge's] determination as to the credibility of the witness." (SH: 21). The court ordered the case to proceed to trial. (SH: 23).
The next day, October 23, 1996, Alston entered a plea of guilty to Forgery in the Second Degree, two counts of Grand Larceny in the Fourth Degree, Criminal Possession of Stolen Property in the Fourth Degree, Petit Larceny, and Criminal Impersonation in the Second Degree. On November 7, 1996, Alston was sentenced to concurrent terms aggregating from two to four years.
C. Alston's State Court Appeals
Represented by counsel, Alston appealed to the Appellate Division, First Department, in December 1999. See Alston App. Br. at 41. Alston raised two points on appeal: (1) that the prosecution's cross-examination regarding Alston's prior arrests and the alleged failure to 6 instruct the grand jury on the evidentiary use of such prior arrests impaired the grand jury process; and (2) that the belated disclosure of Officer Duffy's notes required a de novo suppression hearing. See Alston App. Br. at 26, 33.
In a decision dated October 3, 2000, the Appellate Division, First Department affirmed Alston's conviction. See People v. Alston, 276 A.D.2d 251 (1st Dep't 2000). The court held that "there was no impairment of the integrity of the Grand Jury proceedings. Defendant's credibility was properly impeached by questions about his prior convictions and prior bad acts . . . The Grand Jury was instructed on the limited purpose for which this testimony was received." Id. (internal citations omitted). As to Alston's claim for a de novo suppression hearing, the First Department held that "the trial court properly exercised its discretion in reopening the suppression hearing `only to the extent necessary to cross-examine the People's witness as to the contents of the [memo book entry]' . . . and properly determined that no further relief was necessary." Id. (quoting People v. Feerick, 93 N.Y.2d 433, 452 (1999)).
By letters dated October 12, 2000, and October 30, 2000, Alston sought leave to appeal to the New York Court of Appeals, raising the same issues that he raised to the First Department. The Court of Appeals denied Alston leave to appeal on November 10, 2000. People v. Alston, 95 N.Y.2d 932 (2000).
On October 11, 2001, Alston, proceeding pro se, filed the instant petition. The petition raises the same arguments that Alston raised in his state appeal. As a first ground, Alston claims to be entitled to habeas relief because, "[t]he Judge refused to hold a DeNova Mapp/Dunaway Hearing where the people turned over Rosario Material after the hearings conclusion [sic]." See Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody, filed 7 November 7, 2001 ("Petition"), ¶ 12(A). As the second ground, Alston claims to be entitled to relief because "[t]he prosecutor Impaired the integrity of the Grand Jury process, by eliciting detailed information about prior arrest conviction [sic]." See Petition, ¶ 12(B).
II. APPLICABLE LEGAL STANDARDS
Habeas corpus relief is available under 28 U.S.C. § 2254(a) only if the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. Thus, a petitioner for habeas corpus must demonstrate that his or her conviction resulted from a state court misapplying federal law. See Estelle v. McGuire, 502 U.S. 62, 68 (1991). Errors of state law are not subject to habeas review in a federal court. Id. at 67-68 ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions").
In addition, the petitioner must have exhausted the remedies available in the state courts or there must be either an absence of available state corrective process or circumstances rendering such process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b). To satisfy the exhaustion requirement, a petitioner must present each claim in the habeas petition to each level of the state courts to which the right of appeal lies. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Daye v. Attorney General of State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). The petitioner must also inform the state courts of the factual and legal basis of the federal claim. See, e.g., Duncan, 513 U.S. at 365-66; Ramirez v. Attorney General of State of New York, 280 F.3d 87, 94 (2d Cir. 2001) (citing Picard, 404 U.S. at 276-77; Daye, 696 F.2d at 191-92). Federal claims are fairly presented by even a "minimal reference" to the provision of federal law upon which a petitioner 8 relies. See, e.g., Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (per curiam) (reference to the Fourteenth Amendment in a caption heading of an appellate brief sufficient for exhaustion purposes).
Where there has been a ruling on the merits, habeas relief may not be granted unless the state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or (2) 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)(1). A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts 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 if it unreasonably applies a governing legal rule to the particular facts of a case. Id. at 413. The federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was simply incorrect. Id. at 409-10.
III. ANALYSIS OF GROUND ONE OF THE PETITION A. Exhaustion
Alston presented his claim for a de novo suppression hearing to both the Appellate Division and the Court of Appeals, referencing in each instance the Fourteenth Amendment of the United States Constitution. These references satisfy the requirement that the state court be 9 given notice of the federal nature of the defendant's claims. See Reid, 961 F.2d at 376. Therefore, Alston properly exhausted his state court remedies for ground one of the petition.
B. The Merits of Ground One
Alston contends that the trial court was required to hold a de novo suppression hearing regarding the belatedly produced notes of Officer Duffy. See Petition, ¶ 12(A). Officer Duffy's notes were required to be produced by the prosecution pursuant to People v. Rosario, 9 N.Y.2d 286 (1961), cert. denied, 368 U.S. 866 (1961). Rosario held that "a right sense of justice entitles the defense to examine a witness' prior statement." Id. at 289. In People v. Malinsky, 15 N.Y.2d 86 (1965), the Court of Appeals extended Rosario to require production of a police officer's notes prior to testimony at a suppression hearing. See id. at 90. Under New York law, a trial court faced with belated disclosure of Rosario material is required to reopen a suppression hearing only "to the extent necessary to explore the contents of the Rosario documents." People v. Feerick, 93 N.Y.2d 433, 451 (1999).
Alston's first ground for habeas relief must fail because the obligation to disclose Rosario material arises solely under state law. See, e.g., Benito v. Fisher, 2001 WL 506180, at *2 (S.D.N.Y. May 14, 2001); Whittman v. Sabourin, 2001 WL 687369, at *3 (S.D.N.Y. June 18, 2001) ("A Rosario claim . . . is purely a state right, which `embodies policy considerations grounded in state common law, not constitutional principles.'") (quoting Sutherland v. Walker, 1999 WL 1140870, at *9 (S.D.N.Y. Dec. 10 1999)); Moe v. Walker, 1999 WL 58691, at *4 (S.D.N.Y. Feb. 5, 1999) ("federal courts have consistently held that Rosario claims are not subject to federal habeas corpus review because they arise exclusively under state law.") (citations omitted) (emphasis in original). Federal courts uniformly hold that Rosario violations 10 are not cognizable in habeas review. See, e.g., Gonzalez v. Portunondo, 2001 WL 856600, at *5 (S.D.N.Y. July 30, 2001); Whittman, 2001 WL 856600, at *5; Benito, 2001 WL 506180, at *2; Moe, 1999 WL 58691, at *4; Green v. Artuz, 990 F. Supp. 267, 274 (S.D.N.Y. 1998).
In support of this point, the respondent's brief correctly states that, "[a] claim arising under Rosario is `one of state law that is not subject to review under a petition for a federal writ of habeas corpus charging infringement of federal constitutional rights.'" Resp. Br. at 13. The brief cites Flores v. Demskie, 215 F.3d 293, 305 (2d Cir.), cert. denied, 531 U.S. 1029 (2000), however, as the source of the quotation. But the brief fails to disclose that the quotation is from a dissenting opinion (which is itself quoting the district court case of U.S. ex rel. Butler v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y. 1974), aff'd, 508 F.2d 837 (2d Cir. 1975)). The respondent's brief thus improperly suggests that this quotation represented a holding of the majority of the Second Circuit panel in Flores.
To the extent Alston may be alleging a violation of the prosecutor's obligation to provide exculpatory material, that claim — assuming it was even exhausted and the memo book in fact constituted exculpatory material — would have to be denied as well. While Giglio v. United States, 405 U.S. 150 (1972), established that defendants have a due process right to the production of evidence regarding the credibility of prosecution witnesses, see id. 154-55, the material need only be disclosed in time for effective use in the proceeding at issue. See, e.g., Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (sufficiency of timing of Brady disclosure is judged based on "the defense's opportunity to use the evidence when disclosure is made"). In this case, Officer Duffy's notes were produced to the defense at a time when the defendant was still able to use them to challenge the results of the suppression hearing through the mechanism of the re-opened hearing. At the re-opened hearing, the trial judge made a determination that the memo book entries would not affect the outcome of the prior suppression hearing and that they did not impugn the credibility of the witness.
Thus, Alston's claims regarding the delayed production of the memo book entries do not provide a basis for habeas relief.
IV. ANALYSIS OF GROUND TWO OF THE PETITION A. Exhaustion
Alston's second claim for relief relates to his complaint regarding his cross examination before the grand jury. See Petition, ¶ 12(B). Alston preserved this issue at the trial level and on appeal in the state courts. Alston cited to the Fifth and Fourteenth Amendments of the United States Constitution in his appellate brief and in his letter seeking leave to appeal. Thus, Alston has exhausted his available remedies in the state courts.
B. The Merits of Ground Two
In his petition, Alston claims to be entitled to habeas relief on this ground because
The prosecutor impaired the integrity of the grand jury process by eliciting detailed information about appellant's prior arrests and convictions and encouraging the grand jury to indict petitioner based on his propensity to commit credit card crimes and also by failing to instruct the grand jury on the limited impeachment purpose of such evidence.
Petition, ¶ 12(B) (capitalization omitted). As noted, the state trial court determined that some of the questioning during the grand jury presentation was "inappropriate." See Decision and Order at 4.
The short answer to Alston's claim is that a guilty plea extinguishes the ability of a habeas petitioner to raise a claim regarding misconduct before a grand jury. In Lopez v. Riley, 865 F.2d 30 (2d Cir. 1989), the Second Circuit held that the "presentation of prejudicial evidence" before a grand jury will not permit habeas relief because such errors are rendered harmless once a defendant has been convicted by a petit jury. Id. at 32 (citing United States v. Mechanik, 475 U.S. 66 (1986)); accord Barnes v. Giambruno, 2002 WL 850020, at *7 (S.D.N.Y. May 2, 2002); Mackenzie v. Portuondo, 208 F. Supp.2d 302, 313 (E.D.N.Y. 2002); Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y.), aff'd, 876 F.2d 890 (2d Cir.), cert. denied, 493 U.S. 850 (1989). As was noted in Mechanik,
[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.475 U.S. at 70 (footnote omitted). The same reasoning applies equally to a conviction achieved by a plea of guilty. See, e.g., United States v. Tiedemann, 1997 WL 587255, at *6 (E.D.Pa. Sept. 12, 1997) ("the defendant cannot challenge the grand jury proceedings in a habeas action, after a plea of guilty") (citations omitted); Lloyd v. Walker, 771 F. Supp. 570, 576-77 (E.D.N.Y. 1991) ("Having admitted to the factual basis of the charges against him upon entering a plea of guilty, any error in the proceeding which led to his indictment is . . . rendered harmless, and is not a cognizable claim in a federal habeas proceeding.") (internal citation omitted); see also Ballard v. Costello, 2001 WL 1388297, at *2 (E.D.N.Y. Nov. 2, 2001) ("[petitioner's] guilty pleas cured any possible deficiencies in the grand jury proceeding") (citations omitted) (denying habeas claim based on ineffective assistance of counsel). Thus, Alston's claim regarding errors in the grand jury presentation is not a basis for federal habeas relief.
Conclusion
For the foregoing reasons, Alston's petition is denied. The Clerk is requested to enter a judgment. The Court denies a certificate of appealability pursuant to 28 U.S.C. § 2253(c) because Alston has not made a substantial showing of the denial of a constitutional right. The Court also certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the judgment would not be taken in good faith.