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holding that it is insufficient to explain one claim in detail and attach a brief with a statement: "In support of this application, [petitioner] relies on this letter, his main and reply briefs filed with the Appellate Division, and already provided to this Court, as well as the attached hearing transcripts
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01 Civ. 1179 (MBM) (AJP).
June 8, 2001
REPORT AND RECOMMENDATION
Honorable Michael B. Mukasey, United States District Judge.
Petitioner Ronald Bailey, pro se, seeks a writ of habeas corpus from his 1997 conviction in Supreme Court, Bronx County, of criminal sale of a controlled substance. Bailey's habeas petition asserts three claims: (1) denial of the right to a fair trial when the trial court precluded defense counsel from commenting during summation on the prosecution's failure to call additional "field team" police officers as witnesses (Dkt. No. 1: Pet. ¶ 12(A)); (2) admission of hearsay that bolstered an undercover officer's identification testimony (Pet. ¶ 12(B)); and (3) denial of the right to a fair trial when "the trial court improperly permitted testimony regarding the machinations of the narcotics trade" (Pet. ¶ 12(C)).
For the reasons set forth below, the Court should deny Bailey's petition.
PROCEDURAL BACKGROUND
Bailey's Conviction and Sentencing
On July 17, 1997, Bailey was convicted of criminal sale of a controlled substance in the third degree and sentenced, as a second felony offender, to ten to twenty years imprisonment. (See Dkt. No. 1: Pet. ¶¶ 1-4.) See also People v. Bailey, 268 A.D.2d 389, 389, 704 N.Y.S.2d 205, 205 (1st Dep't), appeal denied, 94 N.Y.2d 945, 710 N.Y.S.2d 1 (2000).
Bailey's Direct Appeals in State Court
Bailey's counseled direct appeal to the First Department raised the three claims in his federal habeas petition and an excessive sentence claim. (Ex. 1: Bailey 1st Dep't Br.)
References to Exhibits are to those attached to the Affidavit of Assistant District Attorney Melissa R. DiPalo (Dkt. No. 6).
On January 27, 2000, the First Department affirmed Bailey's conviction, but reduced his sentence to eight to sixteen years imprisonment. People v. Bailey, 268 A.D.2d 389, 390, 704 N.Y.S.2d 205, 205 (1st Dep't 2000). With respect to Bailey's claim that the trial court erred in precluding his counsel from commenting in summation on the prosecution's failure to call all members of the police field team, the First Department held:
The [trial] court properly precluded defendant from commenting in summation upon the fact that the prosecution did not call all of the approximately 10 to 12 members of the field team involved in the overall operation. The court did, however, permit counsel to comment on the failure to call the officer who was nearby. Inexplicably, the defense attorney did not do so. Although defendant was not required to request a missing witness charge or lay the foundation required for such a charge, he failed to establish the limited foundation required for comment on failure to call witnesses.
People v. Bailey, 268 A.D.2d at 390, 704 N.Y.S.2d at 205.
As to Bailey's hearsay-bolstering claim, the First Department held:
The court properly received in evidence, with proper limiting instructions, a narcotics security envelope bearing the notation "JD Yellow." This notation was not hearsay, since it was not introduced for its truth, but to establish that the drugs contained in the envelope and examined by the chemist were the same drugs that defendant had sold to the undercover officer. In any event, the notation could not have caused any prejudice to defendant.
Id., 704 N.Y.S.2d at 206 (citations omitted).
Finally, as to Bailey's claim challenging testimony about the way narcotics transactions work, the First Department held:
Defendant's challenge to testimony regarding the roles of the various participants in a typical drug transaction is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that this brief and limited testimony was warranted by the evidence.
Id.
By letter dated March 8, 2000, Bailey's counsel sought leave to appeal to the New York Court of Appeals, and enclosed copies of Bailey's First Department briefs. (Ex. 5:3/8/00 Bailey Leave to Appeal Letter.) The March 8, 2000 letter did not mention any particular claims. (Id.) Rather, the letter "respectfully request[ed] the opportunity to file a supplemental letter with the judge to whom this matter is assigned, addressing in greater detail the reasons why the Court [of Appeals] should review this case and how the issues are preserved for this Court's review." (Id.) On April 7, 2000, Bailey's counsel wrote a follow-up letter to the judge assigned to review the leave application. (Ex. 6:4/7/00 Bailey Leave to Appeal Letter.) The April 7 follow-up letter referred only to a single issue — the admission of hearsay that bolstered an undercover officer's identification testimony. (Id.) The final paragraph of the five page single-spaced letter stated: "In support of this application, Mr. Bailey relies on this letter, his main and reply briefs filed with the Appellate Division, already provided to this Court, as well as the attached hearing transcripts." (Ex. 6:4/7/00 Bailey Leave to Appeal Letter.)
The letter did not cite to federal cases or the federal Constitution (id.), mirroring Bailey's First Department briefs which also relied solely on state law with respect to the bolstering claim (see Ex. 1: Bailey 1st Dep't Br. at 24-29; Ex. 3: Bailey 1st Dep't Reply Br. at 8-14).
On April 10, 2000, the New York Court of Appeals denied leave to appeal. People v. Bailey, 94 N.Y.2d 945, 710 N.Y.S.2d 1 (2000).
Bailey's Present Federal Habeas Corpus Petition
Bailey's federal habeas petition is dated January 3, 2001 and was received by the Court's Pro Se Office on January 8, 2001 (Dkt. No. 1: Pet. p. 2, 7.) Bailey's habeas petition asserts three claims:
(1) denial of the right to a fair trial when the trial court precluded defense counsel from commenting during summation on the prosecution's failure to call additional "field team" police officers as witnesses (Pet. ¶ 12(A)); (2) admission of hearsay that bolstered an undercover officer's identification testimony (Pet. ¶ 12(B)); and (3) denial of the right to a fair trial when "the trial court improperly permitted testimony regarding the machinations of the narcotics trade" (Pet. ¶ 12(C)).
ANALYSIS
I. BAILEY'S FIRST AND THIRD CLAIMS — DENIAL OF A FAIR TRIAL BY PRECLUDING DEFENSE COUNSEL FROM COMMENTING ON THE PROSECUTION'S FAILURE TO CALL CERTAIN WITNESSES AND PERMITTING TESTIMONY REGARDING THE MACHINATIONS OF THE DRUG TRADE — ARE UNEXHAUSTED AND PROCEDURALLY BARRED FROM HABEAS REVIEW BECAUSE THEY WERE NOT RAISED BEFORE THE NEW YORK COURT OF APPEALS
Bailey's first claim alleges that he was denied a fair trial when defense counsel was precluded from commenting during summation on the prosecution's failure to call other field team officers as witnesses. (Dkt. No. 1: Pet. ¶ 12(A).) Bailey's third claim alleges that the admission of testimony regarding the "machinations of the narcotics trade" violated his constitutional right to a fair trial because there was no evidence suggesting that anyone other than a single seller was involved in the transaction. (Pet. ¶ 12(C).) The State contends that these two claims are unexhausted but deemed exhausted and procedurally barred from federal habeas review because Bailey failed to adequately present these claims to the New York Court of Appeals and is barred by state law from further presenting them at the state level. (Dkt. No. 6: State Br. at 4-8.)
A. The Exhaustion Doctrine: Background
Section 2254 codifies the exhaustion requirement, providing that "[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 — (A) the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203.
Accord, e.g., Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *7 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Brock v. Artuz, 99 Civ. 1903, 2000 WL1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at * 5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N Y July 19, 2000) (Peck, M.J.); Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *2 (S.D.N.Y. July 5, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.) ( cases cited therein); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N Y 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N Y 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732; Bryant v. Bennett, 2001 WL 286776 at *7; Gumbs v. Kelly, 2000 WL 1172350 at *5; Ventura v. Artuz, 2000 WL 995497 at *9; Perez v. Greiner, 2000 WL 915114 at *2; Cruz v. Greiner, 1999 WL 1043961 at *19; Lugo v. Kuhlmann, 68 F. Supp.2d at 360.
The Second Circuit has long held, and the Supreme Court confirmed, that "a state prisoner must present his claims to a state supreme [i.e., highest] court in a petition for discretionary review in order to satisfy the exhaustion requirement." O'Sullivan v. Boerckel, 526 U.S. at 839-40, 119 S.Ct. at 1730; accord, e.g., Jordan v. LeFevre, 206 F.3d at 198; Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.), cert. denied, 121 S.Ct. 59 (2000); Bossett v. Walker, 41 F.3d at 828 ("To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims 'to the highest court of the pertinent state.'"); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991) ("a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition"); Pesina v. Johnson, 913 F.2d at 54 ("We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition," citing Daye); Daye v. Attorney General, 696 F.2d at 191 n. 3 ("Exhaustion of available state remedies requires presentation of the claim to the highest state court from which a decision can be had.").
See also, e.g., Ventura v. Artuz, 2000 WL 995497 at *9; Perez v. Greiner, 2000 WL 915114 at *3; Mendez v. Artuz, 2000 WL 722613 at *24; Foreman v. Garvin, 2000 WL 631397 at *7; Thomas v. Greiner, 111 F. Supp.2d at 275 ( cases cited therein).
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
"First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim."
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844-47, 119 S.Ct. at 1732-34; Bryant v. Bennett, 2001 WL 286776 at *8; Brock v. Artuz, 2000 WL 1611010 at *12; Gumbs v. Kelly, 2000 WL 1172350 at *5 n. 9; Ventura v. Artuz, 2000 WL 995497 at *10; Perez v. Greiner, 2000 WL 915114 at *3; Mendez v. Artuz, 2000 WL 722613 at *24; Foreman v. Garvin, 2000 WL 631397 at *7 n. 9; Thomas v. Greiner, 111 F. Supp.2d at 275; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 360-61; Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996) (Batts, D.J. Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.).
B. Bailey Did Not Present These Claims To The New York Court of Appeals
Bailey failed to raise either of these claims when seeking leave to appeal to the New York Court of Appeals. (See Ex. 6:4/7/00 Bailey Leave to Appeal Letter.) Instead, Bailey's counsel's April 7, 2000 leave to appeal letter raised only one issue — a discussion of hearsay regarding a narcotics security envelope that bolstered an undercover officer's identification testimony. (Id.) After spending four and one-half single-spaced pages discussing the bolstering claim in detail, the April 7, 2000 leave letter closed by stating: "In support of this application, Mr. Bailey relies on this letter, his main and reply briefs filed with the Appellate Division, and already provided to this Court, as well as the attached hearing transcripts." (Id.)
To determine whether Bailey's counsel's letters to the Court of Appeals enclosing his First Department briefs is sufficient to have exhausted the claims, the Court's analysis here must start with the leading Second Circuit decision in Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991), and continue through the two most recent Second Circuit cases explicating Grey, Jordan v. LeFevre, 206 F.3d 196, 198-99 (2d Cir. 2000), and Morgan v. Bennett, 204 F.3d 360 (2d Cir.), cert. denied, 121 S.Ct. 59 (2000).
In Grey v. Hoke, the petitioner argued one claim in his leave to appeal letter to the New York Court of Appeals, and he also attached his Appellate Division briefs, which had raised that issue along with two others. Grey v. Hoke, 933 F.2d at 120. The Second Circuit held that the claims only referred to in his attached briefs were not exhausted:
Petitioner argues that by attaching his Appellate Division brief to his letter application to the Court of Appeals, he presented that court with an opportunity to rule on his sentencing and prosecutorial misconduct claims. He concedes, however, that his letter application requested that the Court of Appeals review only the search and seizure claim. The letter made no mention of the sentencing and prosecutorial misconduct claims. Under these circumstances, we disagree with petitioner's assertion that the Court of Appeals was presented with his sentencing and prosecutorial misconduct claims.
The fair import of petitioner's submission to the Court of Appeals, consisting of his brief to the Appellate Division that raised three claims and a letter to the Court of Appeals arguing only one of them, was that the other two had been abandoned. The only possible indication that the other two claims were being pressed was the inclusion of a lengthy brief originally submitted to another court. This did not fairly apprise the court of the two claims. We decline to presume that the New York Court of Appeals has "a duty to look for a needle in a paper haystack." For a federal court to hold that a state court had the opportunity to rule on a constitutional claim as to which no ruling was requested, and then to rule on the merits of the claim itself, would undermine the very considerations of comity that the rules of exhaustion were designed to protect.
Grey v. Hoke, 933 F.2d at 120 (emphasis added citations omitted).
Accord, e.g., Kirby v. Senkowski, 97 Civ. 3329, 2001 WL 394862 at *6-7 (S.D.N.Y. Apr. 17, 2001) (sufficiency of evidence claim unexhausted where petitioner submitted Appellate Division briefs to New York Court of Appeals but failed to mention that claim anywhere in follow up leave letter which focused on other unrelated claims); Black v. McGinnis, 99 Civ. 0755, 2001 WL 209916 at *3-4 (S.D.N.Y. Mar. 1, 2001) (Mukasey, D.J.) (where petitioner's letter requested leave to appeal and was accompanied by appellate division briefs but did not identify any issue for appeal, claims were unexhausted); Snead v. Artuz, 99 Civ. 2406, 2001 WL 199409 at *3-4 (S.D.N.Y. Feb. 28, 2001) (where petitioner raised only one issue in leave to appeal letter, other issues unexhausted even though discussed in Appellate Division brief accompanying letter); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *24-25 (S.D.N.Y. June 6, 2000) (Peck, M.J.) (claims not exhausted where the application for leave to appeal to the New York Court of Appeals merely refers to the Appellate Division briefs without further elaboration of the claims); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *10 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (reference to Point I of 1st Dep't brief not sufficient to exhaust a different claim); Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *3-6 (S.D.N.Y. July 5, 2000) (Peck, M.J.) (lengthy discussion of one issue plus submission of 1st Dep't briefs not sufficient to exhaust the issues raised only in the brief); Howard v. Lacy, 58 F. Supp.2d 157, 162-63 n. 4 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.) (claims procedurally barred where raised before 1st Dep't but not in application for leave to appeal); Cardenas v. Superintendent, Malone Correctional Facility, No. CV-94-5093, 1996 WL 497138 at *3-4 (E.D.N.Y. Aug. 26, 1996) (excessive sentence claim procedurally barred where raised before 2d Dep't but not in application for leave to appeal); DeLeon v. Hanslmaier, No. CV-94-5512, 1996 WL 31232 at *3 (E.D.N.Y. Jan. 19, 1996) ("The fact that petitioner attached his brief submitted to the Appellate Division [with his application for leave to appeal to the Court of Appeals] is not enough to satisfy the exhaustion requirement."), aff'd, 104 F.3d 355 (2d Cir. 1996); Figueroa v. Kelly, 95 Civ. 0216, 1995 WL 702327 at *2 (S.D.N.Y. Nov. 29, 1995) ("If a petitioner limits the issues to be reviewed in a letter application to the New York Court of Appeals, the other claims presented in his or her Appellate Division brief are not deemed exhausted under the Lundy requirement . . . [but] should be deemed procedurally forfeited for purposes of federal habeas review where the petitioner is now procedurally barred from presenting those claims to the state court."); McGann v. Kelly, 891 F. Supp. 128, 134 (S.D.N.Y. 1995) ("By failing to raise his ineffective assistance of counsel claim in his leave application, petitioner did not fairly apprise the [N.Y.] Court of Appeals of the factual and legal premises underlying his claim."); Bass v. Scully, No. CV-92-0349, 1995 WL 347040 at *3 (E.D.N.Y. May 22, 1995); Lynes v. Mitchell, 894 F. Supp. 119, 123 (S.D.N.Y. 1995), aff'd, 104 F.3d 355 (2d Cir. 1996); Morales v. Keane, No. CV-94-2379, 1995 WL 235222 at *13 n. 9 (E.D.N.Y. April 13, 1995); Smith v. Keane, No. CV-94-0514, 1995 WL 87330 at *2 (E.D.N.Y. Feb. 10, 1995); Esquilin v. Walker, No. CV-91-4608, 1992 WL 151903 at *2 (E.D.N.Y. June 16, 1992), aff'd, 990 F.2d 624 (2d Cir. 1993); Cornielle v. Riley, No. CV-92-1018, 1992 WL 142009 at *2 (E.D.N.Y. June 16, 1992).
In 2000, the Second Circuit revisited Grey in two cases. In Jordan v. LeFevre, 22 F. Supp.2d 259, 267 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000), the petitioner clearly raised his Batson claim in his letter seeking leave to appeal to the New York Court of Appeals, but "[a]fter discussing the Batson issue at length, Jordan's counsel asked for leave to appeal '[f]or all of these reasons and the reasons set forth in his Appellate Division briefs,' and noted that '[i]n support of his application, Mr. Jordan relies on this letter and on the briefs he filed in the Appellate Division.'" Jordan v. LeFevre, 22 F. Supp.2d at 267. This Court held the non-Batson claims to be unexhausted, and the Second Circuit affirmed that view, explaining that "arguing one claim in his 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 . . . . Counsel may not transfer to the state courts the duty to comb through an applicant's appellate brief to seek and find arguments not expressly pointed out in the application for leave." Jordan v. LeFevre, 206 F.3d at 199 (emphasis added). The Second Circuit affirmed the exhaustion issue "substantially for the reasons set out in [this Court's] thorough opinion and order . . . . Jordan v. LeFevre, 22 F. Supp.2d 259, 266-69 (S.D.N.Y. 1998)." Jordan v. LeFevre, 206 F.3d at 199.
See also, e.g., Lopez v. Warden, Sullivan Corr. Facility, No. 98-2877, 210 F.3d 354 (table), 2000 WL 374928 at *1 (2d Cir. Apr. 7, 2000) (submission of Appellate Division briefs along with leave to appeal letter which referred to "numerous substantive and procedural errors" but did not specifically mention voir dire claim, instead focusing on an unrelated claim, insufficient to exhaust voir dire claim), cert. denied, 121 S.Ct. 248 (2000); Mendez v. Artuz, 2000 WL 722613 at *26 (leave letter that states it is "writing to supplement the Appellate Division briefs" and then discusses several specific claims not sufficient to exhaust other claims in the Appellate Division briefs); Howard v. Lacy, 58 F. Supp.2d at 164; Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 n. 7 (Cote, D.J. Peck, M.J.); Ojeda v. Artuz, 96 Civ. 5900, 1997 WL 283398 at *3 (S.D.N.Y. May 29, 1997); Morrison v. McClellan, 903 F. Supp. 428, 430 (E.D.N.Y. 1995); Marrero v. Keane, 93 Civ. 3573, 1995 WL 66660 at *1 (continued. . .) (S.D.N.Y. Feb. 16, 1995) (reference to "Points I and II" of Appellate Division brief not sufficient under Grey; "[p]resentation requires more than a 'general reference' to the issues presented in an attached brief"); Brooks v. Kelly, No. 88-CV-0631, 1993 WL 350188 at *2 (W.D.N.Y. Sept. 10, 1993); Thebner v. Miller, 788 F. Supp. 714, 717 (E.D.N.Y. 1992) (Petitioner's "inclusion in his application to the Court of Appeals of a single sentence which refers, in a general way, to the various claims raised in his sixty-seven page brief to the Appellate Division, is insufficient to fairly apprise the Court of Appeals of the factual and legal issues in those claims.") (citing Grey).
Here, Bailey's reference to his First Department briefs was even less direct than the petitioner's reference in Jordan. Unlike Jordan, Bailey's counsel did not ask the Court of Appeals for leave for "the reasons set forth in his Appellate Division briefs." Jordan v. LeFevre, 22 F. Supp.2d at 267. Instead, Bailey's counsel's first leave letter enclosed copies of the Appellate Division briefs and, in addition, "request[ed] the opportunity to file a supplemental letter with the judge to whom this matter is assigned, addressing in greater detail the reasons why the Court should review [Bailey's] case . . . ." (Ex. 5:3/8/00 Bailey Leave to Appeal Letter.) The "fair import" of this submission to the Court of Appeals was that Bailey's counsel would inform the Court of Appeals, in a follow-up letter, as to what claims he planned to appeal. The follow-up letter then spent four and one-half single-spaced pages discussing only the bolstering issue. (Ex. 6:4/7/00 Bailey Leave to Appeal Letter.) That is insufficient under Grey and Jordan to put the New York Court of Appeals on notice that it should review the other claims as well.
Morgan v. Bennett, 204 F.3d 360 (2d Cir.), cert. denied, 121 S.Ct. 59 (2000), does not require a different conclusion. In Morgan, the petitioner's counsel did not argue any of the petitioner's claims in detail in his leave to appeal letter to the New York Court of Appeals. Id. at 369. Instead, petitioner's counsel's letter commenced with a brief description of the judgment of conviction and the Appellate Division's affirmance of same. Id. The letter then concluded with the following language:
I am enclosing copies of the briefs filed in the Appellate Division and that Court's order and opinion. Please advise me of the judge designated to decide this application so that I may send that judge a follow-up letter in support of the application. We request this Court to consider and review all issues outlined in defendant-appellant's brief and pro se supplemental brief.
Morgan v. Bennett, 204 F.3d at 369-70 (emphasis added). After he was informed of the assigned judge, Morgan's counsel sent the assigned judge a follow-up letter — discussing one issue in detail and drawing the Court's attention to another issue raised in the petitioner's pro se brief. Id. at 370. The Second Circuit held that counsel's statement in her initial letter to the Court of Appeals which expressly "'request[ed] this Court to consider and review all issues outlined in defendant-appellant's brief and pro se supplemental brief' submitted to the Appellate Division" was "sufficiently specific to alert the Court of Appeals that Morgan sought review of all of the issues raised in his pro se supplemental Appellate Division brief." Id. at 370-71. In distinguishing Morgan in Jordan, the Second Circuit made clear that it was the explicit request to review all issues in the Appellate Division briefs that made the difference: "Had appellant more clearly stated that he was pressing all of the claims raised in the attached brief, or had his letter made no argument in detail but rather only 'request[ed that the Court of Appeals] consider and review all issues outlined in defendant-appellant's brief, 'the result here would be different and the remaining claims would have been fairly presented to the Court of Appeals." Jordan v. LeFevre, 206 F.3d at 199 (citing Morgan v. Bennett, 204 F.3d at 370-71.)
See also, e.g., Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *4 n. 4 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.) (letter pointed out specific reasons why leave to appeal was warranted on five of ten issues raised in First Department but as to remaining five issues stated only that "The Appellate Division, First Department rejected the contentions set forth by Defendant-Appellant . . . in Point III and Point VI through Point X without specifying the basis in its opinion. It is respectfully suggested that each of these Points contains issues that warrant consideration by the Court of Appeals"; habeas court held that even the five issues dealt with in "throw-away manner" were exhausted); Lyon v. Senkowski, 109 F. Supp.2d 125, 134 n. 4 (W.D.N.Y. 2000) (issue contained in petitioner's pro se brief to appellate division exhausted where "correspondence between [petitioner] and the Court of Appeals suggests that the court was apprized of [petitioner]'s intention to raise all the issues in his pro se brief"); Cowan v. Artuz, 96 F. Supp.2d 298, 302 (S.D.N.Y. 2000) (issues exhausted where leave to appeal letter asked Court of Appeals to "'consider issues one through five inclusive of the Appellant's brief'"); Shepard v. Artuz, 99 Civ. 1912, 2000 WL 423519 at *4 (S.D.N Y Apr. 19, 2000) (exhaustion under same fact pattern as Morgan).
Bailey's case is clearly distinguishable from Morgan. Unlike counsel in Morgan, Bailey's counsel did not request that the Court of Appeals "consider and review all issues outlined in defendant-appellant's brief." Morgan v. Bennett, 204 F.3d at 369-70. Rather, Bailey's case is governed by Grey and Jordan: Bailey's mere enclosure of his Appellate Division briefs in his leave to appeal application, while discussing a single claim at length, is not sufficient. Bailey's first and third habeas claims therefore are unexhausted.
C. Bailey's Unexhausted Claims are Procedurally Barred
Bailey, however, would now be procedurally barred from raising these claims in the New York Court of Appeals. As the Second Circuit explained in Grey v. Hoke:
Here, New York procedural rules plainly bar petitioner from attempting to raise [the claims he raised before the Appellate Division but not in his application for leave to appeal] before the New York Court of Appeals. Petitioner cannot again seek leave to appeal these claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Court Rules § 500.10(a). Collateral review of these claims is also barred because the issues were previously determined on the merits on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(a); see also N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if a claim could have been raised on direct review) . . . .
We agree with the state, however, that petitioner's forfeiture in state court of [the claims not adequately raised before the N.Y. Court of Appeals] bars him from litigating the merits of those claims in federal habeas proceedings, absent a showing of cause for the procedural default and prejudice resulting therefrom. Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-09 (1977). Petitioner makes no showing of cause or of prejudice. The [claims not raised before the Court of Appeals] must therefore be dismissed without reaching the merits.
Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). A federal court may not reach the merits of a procedurally defaulted claim "unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a '"fundamental miscarriage of justice,"'" i.e., a showing of "actual innocence." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations omitted); accord, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
Accord, e.g., Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *3 (S.D.N.Y. July 5, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *26 (S.D.N.Y. June 6, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *9 nn. 10-11 (S.D.N.Y. May 16, 2000) (Peck, M.J.) ( cases cited therein).
See also, e.g., Ventura v. Artuz, 2000 WL 995497 at *9; Perez v. Greiner, 2000 WL 915114 at *3; Mendez v. Artuz, 2000 WL 722613 at *26-27 n. 19; Foreman v. Garvin, 2000 WL 631397 at *10 n. 12; Thomas v. Greiner, 111 F. Supp.2d 271, 278 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.) ( cases cited therein); Bond v. Walker, 68 F. Supp.2d 287, 297 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.), adhered to on reconsideration, 97 Civ. 3026, 2000 WL 460592 (S.D.N.Y. Apr. 19, 2000), aff'd, No. 00-2274, 242 F.3d 364 (table), 2000 WL 1804557 (2d Cir. Dec. 7, 2000); Avincola v. Stinson, 60 F. Supp.2d 133, 149 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 (S.D.N.Y. April 20, 1998) (Baer, D.J. Peck, M.J.); Farrington v. Senkowski, 19 F. Supp.2d 176, 180 (S.D.N.Y. 1998), aff'd, 214 F.3d 237 (2d Cir. 2000); Gibriano v. Attorney General, 965 F. Supp. at 492 n. 5; Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N Y 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.).
Here, Bailey has not alleged cause and prejudice nor has he made a showing of actual innocence. Thus, habeas review of his first and third claims is procedurally barred.
II. BAILEY'S CLAIM THAT THE TRIAL COURT ADMITTED HEARSAY THAT BOLSTERED AN UNDERCOVER OFFICER'S TESTIMONY DOES NOT PRESENT A FEDERALLY COGNIZABLE CLAIM
Bailey also attacks the alleged "bolstering" of the officer's identification of Bailey and Bailey's narcotics sale by the admission of a narcotics security envelope with the notation "JD Yellow." (Pet ¶ 12(B).) The officer involved in the drug sale described Bailey as a "John Doe" wearing yellow pants during the illegal transaction, and wrote "JD Yellow" on the envelope containing Bailey's narcotics. (Id.) The trial court and the First Department upheld the admission of this testimony, holding that it was not impermissible bolstering testimony. (See page 3 above.)
The Court need not decide whether the admission of the narcotics envelope constituted bolstering; evidence admission issues, such as this, generally are matters of state law not cognizable under the United States Constitution, and therefore not a basis on which the court may grant a habeas petition. See, e.g., Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *32 n. 23 (S.D.N.Y. June 6, 2000) (Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.) ( cases cited therein).
Specifically, "[a]lthough bolstering is a practice prohibited in various states, including New York, the practice is not forbidden by the Federal Rules of Evidence and is not sufficiently prejudicial to deprive a defendant of his due process right to a fair trial." Vega v. Berry, 90 Civ. 7044, 1991 WL 73847 at *1 (S.D.N.Y. Apr. 29, 1991) (footnote omitted); accord, e.g., Mendez v. Artuz, 2000 WL 722613 at *32 n. 23; Benitez v. Senkowski, 1998 WL 668079 at *5. Judge Weinfeld explicitly held that "this Circuit has never regarded the practice [of bolstering] as inimical to trial fairness." Orr v. Schaeffer, 460 F. Supp. 964, 967 (S.D.N.Y. 1978) (Weinfeld, D.J.); accord, e.g., Huber v. Schriver, No. 98-CV-0017, 2001 WL 403234 at *12 (E.D.N.Y. Apr. 17, 2001); Steed v. State of New York Executive Dep't Div. of Parole, 00 Civ. 2293, 2000 WL 1593342 at *7 (S.D.N.Y. Oct. 25, 2000) ("the issue of bolstering has never been presented to the Supreme Court because it is a matter of state law"); Diaz v. Greiner, 110 F. Supp.2d 225, 234 (S.D.N.Y. 2000) ("Bolstering claims have been (expressly) held not to be cognizable on federal habeas review.") (citing cases); Mendez v. Artuz, 2000 WL 722613 at *32 n. 23; Benitez v. Senkowski, 1998 WL 668079 at *5; see, e.g., Torres v. Miller, No. 97 CV 4406, 1998 WL 355322 at *2 (E.D.N.Y. May 5, 1998) ("Petitioner's third claim, that a witness for the People improperly bolstered the eyewitness's testimony, does not raise a federal constitutional claim cognizable on habeas corpus. This is a state evidentiary matter based on state law, and is beyond the scope of this Court's review."); Harris v. Hollins, 95 Civ. 4376, 1997 WL 633440 at *3 (S.D.N.Y. Oct. 14, 1997) (petitioner's bolstering claim "failed to state a federal constitutional claim. 'The concept of "bolstering" really has no place as an issue in criminal jurisprudence based on the United States Constitution. It is at most a New York State rule or policy, . . . [v]iolation of [which] does not rise to a constitutional level.'"); Malik v. Khoenan, 94 Civ. 8084, 1996 WL 137478 at *4 (S.D.N.Y. Mar. 26, 1996) ("A claim of bolstering is not a federal constitutional claim cognizable on habeas review."); Connolly v. Artuz, No. 93 CV 4470, 1995 WL 561343 at *7-8 (E.D.N.Y. Sept. 15, 1995); Styles v. Van Zandt, 94 Civ. 1863, 1995 WL 326445 at *5 (S.D.N.Y. May 31, 1995) ("a claim of improper 'bolstering' is not a cognizable basis of federal habeas relief"), aff'd mem., 101 F.3d 684 (2d Cir.), cert. denied, 117 S.Ct. 313 (1996); Ortiz v. State of New York, 93 Civ. 3062, 1993 WL 187875 at *1 (S.D.N.Y. May 25, 1993) ("A claim of 'bolstering' is not a federal constitutional claim cognizable on habeas review."); Battee v. Williams, No. 91-CV-0154, 1993 WL 117530 at *3 (W.D.N.Y. April 8, 1993) ("Bolstering is at most a state law evidentiary concept . . . and violation of that evidentiary rule does not rise to a federal constitutional level."); Billups v. Costello, 91 Civ. 6296, 1992 WL 170650 at *4 (S.D.N.Y. July 6, 1992); Cao v. Mann, 89 Civ. 5312, 1990 WL 89363 at *4 (S.D.N.Y. June 18, 1990); Ayala v. Hernandez, 712 F. Supp. 1069, 1074 (E.D.N.Y. 1989); Snow v. Reid, 619 F. Supp. 579, 582 (S.D.N.Y. 1985) ("The concept of 'bolstering' really has no place as an issue in criminal jurisprudence based on the United States Constitution. It is at most a New York State rule or policy . . . . Violation of that rule . . . does not rise to a constitutional level.").
The State also is correct in arguing (State Br. at 14-15) that Bailey's bolstering claim is unexhausted because although it was presented to the state courts, it was (not surprisingly) not presented in federal terms under Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), and its progeny. See, e.g., Bryant v. Bennet, 00 Civ. 5692, 2001 WL 286776 at *8 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.) (discussing ways in which federal nature of claim may be "fairly presented" to state courts) ( cases cited therein).
Accordingly, Bailey's claim that the trial court admitted hearsay that bolstered an undercover officer's testimony is not a basis for federal habeas relief.
CONCLUSION
For the reasons set forth above, Bailey's habeas corpus petition should be denied and a certificate of appealability should not be issued.
FILING OF 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 shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Michael B. Mukasey, 500 Pearl Street, Room 2240, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Chief Judge Mukasey. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).