Opinion
99 Civ. 0755 (MBM)
March 1, 2001
NATCH BLACK (Petitioner pro se) 94-A-7733 Southport Correctional Facility, Pine City, NY.
ASHLEY G. MARSH, ESQ. (Attorney for Respondent) Assistant District Attorney, Bronx, NY.
OPINION ORDER
Natch Black petitions pro se, pursuant to 28 U.S.C. § 2254 (West 1994 Supp. 2000), challenging his state court conviction for two counts of robbery in the first degree and one count of criminal possession of a weapon in the second degree. Magistrate Judge Henry Pitman recommended in a Report and Recommendation, dated April 27, 2000 (the "Report"), that the writ be denied on procedural and substantive grounds. Petitioner submitted a Notice of Objection to the Report and Recommendation, in which he objected to "Magistrate Judge Pitman's overall conclusion." Respondent also has submitted a Notice of Objection, which objects to Magistrate Judge Pitman's reliance on Second Circuit precedent to decide the merits of petitioner's claim and cites as well a recent Supreme Court case that treats the requirements for obtaining a certificate of appealability. For the reasons stated below, Magistrate Judge Pitman's Report and Recommendation is modified, and Black's petition is dismissed.
I.
The relevant facts are set forth in the Report, and are summarized as follows. On April 8, 1993, at approximately 9:00 A.M., Fatou Janneh, her husband Damba Jahneh, his uncle Musa Janneh, and a guest, Buba Garjo, were asleep in the Jannehs' home in the Bronx. (Tr. 353, 415-16, 524) Garjo and Musa Janneh awoke to find petitioner standing over them with a gun. (Tr. 415, 434, 524, 526-27) Another man, who had a knife, was with petitioner. (Tr. 416, 524) Petitioner signaled Garjo and Musa Janneh to remain quiet, and demanded money from Garjo. (Tr. 525) When Garjo responded that he had no money, petitioner directed Garjo and Musa Janneh to the bedroom. (Tr. 525-26)
References to "Tr." are to the trial transcript.
Petitioner woke Fatou and Damba Janneh and ordered all four occupants to lie down on the floor. (Tr. 353-54, 418, 526) After his accomplice took Damba's wallet and money from under the mattress, petitioner took Garjo back into the living room and ordered him to open a briefcase. (Tr. 529-33, 356) Garjo said he did not have the key. (Tr. 533) A struggle ensued. (Tr. 535-38) Petitioner's accomplice fled. (Tr. 357, 536) Fatou Janneh ran out to call the police. Damba Janneh also ran out of the apartment, and Musa Janneh and Garjo wrested the gun away from petitioner. (Tr. 357, 428, 537, 540-42) Garjo aimed the gun at petitioner and pulled the trigger, but the gun did not fire. (Tr. 540)
Garjo and Musa tied petitioner with a telephone cord. (Tr. 520-42, 608-609) Damba Janneh returned to the apartment and helped restrain petitioner. (Tr. 538, 540-42) The police arrived to find petitioner lying on his stomach on the bedroom floor, restrained by Musa and Damba Janneh. (Tr. 359, 487, 623-25) A revolver lay on the floor a few feet away. The officers recovered the weapon and took petitioner into custody. (Tr. 488, 625)
Petitioner's trial began on February 9, 1995 in Supreme Court, Bronx County. (Tr. 331) Fatou and Musa Janneh, and Garjo identified petitioner at the trial. (Tr. 360, 434, 526-27) Damba Janneh did not testify. Fatou Janneh testified that Damba Janneh had disappeared sometime after the robbery, abandoning her and her three-month old child. (Tr. 391-93) Musa Janneh testified that he had not seen Damba Janneh since shortly after the incident, and Garjo testified that he had last seen Damba "about a year" before the trial. (Tr. 457, 569, 617)
Defense counsel moved for a missing witness charge because Damba Janneh did not testify at the trial. (Tr. 673) Counsel claimed that Damba Janneh would have offered noncumulative testimony, and sought to have the prosecution state what efforts, if any, it had made to secure his appearance. (Tr. 673) The trial court denied the request for a missing witness charge, finding that Damba Janneh was not available to the prosecution. (Tr. 673-74) The trial court did not require the prosecutor to state what efforts had been made to locate Damba Janneh.
In his summation, defense counsel argued that petitioner had been led or invited into the apartment, and that the occupants held him at gun point, beat him, tied him up and concocted the robbery story to explain their actions to the police. (Tr. 681, 688-89) Defense counsel noted that "we don't know what Mr. Damba Janneh would have said since he was not produced [in] court to testify." (Tr. 684)
Petitioner appealed his conviction and sentence to the Appellate Division, First Department, arguing that (1) the trial court improperly refused to give a missing witness charge, and (2) the sentence should be reduced in the interests of justice. (Aff. in Opp., Ex. 1) The Appellate Division modified petitioner's sentence, but held that the trial court properly denied petitioner's request for a missing witness charge. (Aff. in Opp., Ex. 3) Petitioner sought leave to appeal with the New York Court of Appeals. The letter requesting leave did not identify any issues, and stated only that the briefs from the Appellate Division were attached. (Aff. in Opp. Ex. 4) The Court of Appeals denied leave to appeal. (Aff. in Opp., Ex. 5)
II.
A district court may adopt those parts of a magistrate judge's report and recommendation to which no specific objection is raised, unless the findings are clearly erroneous. However, in this case, because petitioner objects to every recommendation in the Report, I must conduct a de novo review. 28 U.S.C. § 636(b)(1)(1994); Fed.R.Civ.P. 72(b).
Petitioner bases his request for relief on two grounds, both of which arise from Damba Janneh's failure to testify at petitioner's trial. First, he claims that the trial court's refusal to give a missing witness charge violated his "due process right to a fair trial." (Pet. at 5) Second, petitioner argues briefly in his supporting memorandum that Damba Janneh's absence from the trial deprived him of the right to confront his accuser. Although petitioner did not list his Confrontation Clause claim as a separate ground in his petition, and Magistrate Judge Pitman did not address it, I will consider it despite the requirement that the petition "specify all grounds for relief." See Rules Governing § 2254 Cases, Rule 2(c).
Before a federal court will hear a state prisoner's habeas corpus petition, he must exhaust available state remedies. 28 U.S.C. § 2254(b) (c) (West 1994 Supp. 2000). To satisfy the exhaustion requirement, the petitioner's claims must have been "`fairly presented' to the highest court of the state." Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982) (quoting Wilwording v. Swenson, 404 U.S. 249 (1971)). In this case, petitioner did not fairly present either his due process or his Confrontation Clause claim to the New York Court of Appeals.
Petitioner never raised his Confrontation Clause claim in the state courts. Defense counsel did not raise the claim during the trial, nor was it raised before the Appellate Division. Petitioner's letter requesting leave to appeal to the New York Court of Appeals did not mention the Confrontation Clause. See Rivera v. Keane, 1999 WL 816178, at 4 n. 2 (S.D.N Y 1999) (citing Daye, 696 F.2d at 191). Therefore, he failed to exhaust the available state court remedies for this claim.
With respect to petitioner's due process claim, respondent argues that, although petitioner raised this claim in his brief before the Appellate Division, he failed to present it fairly to the New York Court of Appeals. The letter requesting leave to appeal to the New York Court of Appeals did not identify any issues, and stated only that the appellate brief was attached.
The Second Circuit consistently has held that an issue is not "fairly presented" to the New York Court of Appeals if it is not identified in the letter requesting leave to appeal. In Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991), the letter written to the New York Court of Appeals addressed one issue in detail, and made no mention of the remaining two claims raised in the appellate briefs. The Court held that the claims not mentioned in the letter had been abandoned, and therefore were not fairly presented to the New York Court of Appeals. Id.
Similarly, in Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000), the Court held that "[a]rguing a single claim at length and making only passing reference to possible other claims to be found in the attached briefs does not fairly appraise the state court of those remaining claims." Although the issue must be identified, it need not be discussed at length in the letter requesting leave to appeal. An explicit request that the Court of Appeals "consider and review all issues outlined in the [defendant's appellate] brief" fairly presents all the claims in the brief to the Court of Appeals. Morgan v. Bennett, 204 F.3d 360, 370-71 (2d Cir. 2000).
In the instant case, petitioner did not expressly request review of all the issues outlined in his appellate brief; he did not present one issue to the exclusion of others. Rather, petitioner's letter requesting leave for appeal identified no issues. Where the attached appellate brief contains multiple claims, a petitioners's failure to identify any issues in his application for leave "transfer[s] to the state courts the duty to comb through an applicant's appellate brief to seek and find arguments."Jordan, 206 F.3d at 199; see also Perez v. Greiner, 2000 WL 915114, at 4-5 (S.D.N.Y. 2000); Jordan v. Lefevre, 22 F. Supp.2d 259, 262 (S.D.N.Y. 1998), aff'd on this ground, rev'd on other grounds, 206 F.3d 196 (2d Cir. 2000) (describing as subverted by Grey" cases holding that the failure to identify any issues in the letter requesting leave to appeal fairly presents issues raised in the attached appellate brief). By failing to identify any issues in his request for leave to appeal, petitioner failed to "fairly present the substance of a federal constitutional claim to the state court." Daye, 696 F.2d at 192. Therefore, petitioner failed to exhaust the available state remedies for his due process claim.
This case bears some similarity to Concepcion v. Portuondo, 1999 WL 604951, at 3 (S.D.N.Y. 1999). In that case, the letter to the Court of Appeals also failed to identify any issues. However, the appellate brief raised only one claim. That claim cited the Fourteenth Amendment. Id. Therefore, in Concepcion, "the only issue that the Court of Appeals could have considered [was also] the sole issue raised in [the] petition."Id.; see also Rivera, 1999 WL 816178, at 4
In this case, the attached appellate brief raised two claims. The first cited the Fourteenth Amendment to argue that the trial court erred by refusing to give a missing witness charge. The remaining claim sought a sentence reduction in the interests of justice. The New York Court of Appeals determination that "upon the record and proceedings herein, there is no question of law which ought to be reviewed by the Court of Appeals," could be responsive to either or both claims. (Aff. in Opp., Ex. 5); People v. Thompson, 60 N.Y.2d 513, 521, 470 N.Y.S.2d 551, 555 (1983) (reaffirming that a question as to the harshness or severity of an otherwise lawful sentence is not a question of law reviewable by the New York Court of Appeals) Because petitioner's due process claim was not identified in his letter requesting leave to appeal, and it is not the sole issue that the Court of Appeals could have considered when denying leave to appeal, petitioner failed to fairly present his due process claim to the New York Court of Appeals.
Petitioner is now barred from presenting his Confrontation Clause and due process claims to the New York Court of Appeals. See 22 N.Y.C.R.R. § 500.10(a) (West 1995) (permitting only one application for appeal); see also N.Y.C.P.L. § 440.10(2)(c) (McKinney 1994) (barring collateral review if claim could have been raised on direct review but was not); Grey, 933 F.2d at 120. His claims are therefore deemed exhausted for habeas corpus purposes. See Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994). However, to gain review of the merits of these procedurally defaulted claims, petitioner must show cause for the default and prejudice resulting from the asserted claims. Id. at 829. Cause exists if "the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice exists if "`there is a reasonable probability' that the result of the trial would have been different" absent the complained of constitutional violation. Stickler v. Greene, 527 U.S. 263, 289 (1999) Petitioner has shown neither cause nor prejudice. Accordingly, I agree with Magistrate Judge Pitman's conclusion that petitioner's due process claim is procedurally barred. As noted, his Confrontation Clause claim is also procedurally barred.
III.
In deciding the merits, Magistrate Judge Pitman applied the standard set by the Antiterrorism and Effective Death Penalty Act, finding that the state court's decision was not "contrary to" or "an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d) (West Supp. 2000). Respondent objects to Magistrate Judge Pitman's reliance on Second Circuit case law, pointing to the Supreme Court's recent decision inWilliams v. Taylor, 529 U.S. 362, 412 (2000), which explained that the source of "clearly established law" under § 2254(d) is restricted to Supreme Court jurisprudence. Magistrate Judge Pitman's reasoning on the merits has been further called into question by a recent Second Circuit decision. See Washington v. Schriver, 2001 WL 12841, at 7 (2d Cir. 2001) (examining the petitioner's claims under the pre-AEDPA standard because "the state court's decision did not make any reference to a federal constitutional claim either by citing controlling Supreme Court case law or state court precedents which themselves apply the relevant federal law."). However, in this case, a decision on the merits of petitioner's claims is unwarranted because his claims are procedurally barred.
IV.
"Where the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). This showing has two components. Id. at 485-86.
Jurists may find it debatable whether the procedural ruling in this case is correct. Although, as discussed above, the facts in Concepcion are not identical to those presented here, a reasonable jurist could find the reasoning in Concepcion that the constitutional claim was not a "needle in a paper haystack" — persuasive. Concepcion, 1999 WL 604951, at 3 Petitioner's appellate brief raised only two claims, one of which — the request for a sentence reduction — was clearly not reviewable by the New York Court of Appeals. People v. Thompson, 60 N.Y.2d 513, 521, 470 N.Y.S.2d 551, 555 (1983). Moreover, the Appellate Division's decision was less than two pages long.
However, petitioner does not satisfy the second component of the standard for granting a certificate of appealability. Circuits that have considered the second component have characterized it as a "`quick look' at the face of the complaint to determine whether the petitioner has `facially allege[d] the denial of a constitutional right.'" Paredes v. Atherton, 224 F.3d 1160, 1161 (10th Cir. 2000) (quoting Lambright v. Stewart, 220 F.3d 1022, 1025-26 (9th Cir. 2000) (citations omitted) ) (alterations in original). Petitioner's Confrontation Clause claim does not adequately allege the denial of a constitutional right. The Sixth Amendment right to confront one's accusers does not extend to witnesses who do not provide evidence at trial. See United States v. Coven, 662 F.2d 162, 170 (2d Cir. 1981). Petitioner claims also that the trial court wrongly decided not to give a missing witness charge and thereby violated his "due process right to a fair trial." However, even assuming the decision not to give the charge was error, petitioner fails to raise any facts that suggest that "the failure so infected the entire trial that the resulting conviction violated due process." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). As noted, his lawyer could argue only that "we don't know what Mr. Damba Janneh would have said . . . ." See page 4,supra. When witnesses to the events in question have testified, and there is no reason to believe that another witness would have provided anything but cumulative testimony, there can be no denial of due process for failure to give a missing witness charge. See Rivera v. Keane, 1999 WL 816178, at 6 (S.D.N Y 1999); see also Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992).
The Report is modified insofar as it did not address petitioner's Confrontation Clause claim and applied a different standard to the question of whether a certificate of appealability should issue. I agree with the Report's rejection of petitioner's due process claim as procedurally barred, and find that petitioner's Confrontation Clause claim is also procedurally barred. Therefore, the petition is dismissed. A certificate of appealability will not issue.
SO ORDERED