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finding that habeas corpus petitioner's claim was adjudicated on the merits where the Appellate Division stated that it had "considered and rejected" the claim
Summary of this case from Perez v. GreinerOpinion
00 CIV. 8271 (DLC)
April 24, 2002
APPEARANCES
Reginald Burgess #97-R-4140, Queensboro Correctional Facility, Long Island City, N.Y. 11101, Petitioner, Pro Se.
David Camuzo, Assistant Attorney General for the State of New York, New York, N.Y. 10271, Attorney for Respondent.
OPINION AND ORDER
Following his conviction for burglary, Reginald Burgess ("Burgess") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 28, 2001, Judge Dolinger issued a report recommending that Burgess's petition be denied ("Report"). For the reasons that follow, the Report is adopted and Burgess's petition is denied.
Burgess's petition was dated October 5, 2000, received by the Pro Se Office on October 13, 2000, and filed on October 30, 2000.
BACKGROUND
Burgess was arrested on June 27, 1996, after he was observed entering a commercial building on 28 West 27th Street at approximately 4:15 a.m. and was subsequently found in an elevator of that building in possession of burglar's tools. After testifying before the grand jury, Burgess was indicted on August 9, 1996, on charges of burglary in the third degree, attempted burglary in the third degree, and possession of burglar's tools.
The trial began on April 28, 1997. Prior to jury selection, Burgess moved to represent himself. After assessing Burgess's ability to represent himself and informing him of the risks associated with self-representation, the trial court granted his motion.
At trial, the State presented the testimony of four police officers, two of whom had observed Burgess entering the building. When Burgess failed to appear after approximately half an hour, the officers radioed for assistance and entered the building. The officers found Burgess trapped in the elevator on the eleventh floor, and one of them, from his position on the roof, saw Burgess push a crowbar to a gap in the side of the elevator and then heard a crash at the bottom of the elevator shaft. Burgess was arrested and taken to the precinct. A bent wire coathanger was found in the elevator, and a crowbar was recovered from the bottom of the elevator shaft. The State also called the assistant manager of the print shop on the eleventh floor, who testified that Burgess did not have permission to enter the printshop on the morning of June 27.
Burgess argued that the officers were too far away to have seen the manner of his entry because the door was recessed into the building.
In his memorandum of law in support of his habeas petition, Burgess states that he testified before the grand jury that he had planned to attend a jam session on the fourth floor with other musicians on the evening of June 26. He overslept and arrived at the apartment at 3 a.m. Burgess rang the bell for the fourth floor music shop and was buzzed in. He attempted to take the elevator to the fourth floor, but the elevator malfunctioned and he was trapped at the eleventh floor. Burgess did not testify at trial.
Prior to jury selection, Burgess moved to suppress statements he made to the police two days before his arrest. At approximately 4:25 a.m. on June 25, 1996, two officers had observed Burgess sitting in front of a building on Broadway between 26th and 27th with a box of tools. When questioned, Burgess gave the officers a false name. The court ruled that because the encounter was not "sufficiently probative of intent" due to the "absence of clear criminality," the prosecution would be allowed to inquire about the details of the encounter on June 25 and Burgess's statements to the officers only if Burgess opened the door to such testimony.
On cross-examination of one of the officers, Burgess asked a series of questions that the court ruled opened the door to testimony about the June 25 encounter. The court excluded evidence, however, about Burgess's use of a false name.
On the morning of the second day of trial, Burgess asked the court to appoint a private investigator. He renewed this request before he rested. He explained that the investigator could "talk to potential witnesses that the defendant may introduce at this trial," and talk to the owner or sublessor of the fourth floor to confirm his "intended purpose" in the building. Burgess also stated that the investigator could take measurements of the doorway to the building. The court denied his request.
Burgess also called his former attorney, who testified that she had taken pictures of the outside of the building and determined that the door was recessed approximately three feet from the sidewalk. She stated that she could not see the door when she stood on the sidewalk approximately ten feet east of the entrance.
On April 30, 1997, Burgess was convicted on all three counts. He was sentenced on June 4, 1997, to concurrent sentences of three and a half to seven years on the first count, two to four years on the second, and one year on the third.
On appeal, Burgess argued through appellate counsel that the trial judge's decision not to appoint an investigator denied him his rights to due process, to present a defense, and to equal protection of the law. Burgess filed a supplemental pro se brief in which he argued that: (1) the grand jury prosecutor improperly questioned him about his past crimes, improperly questioned him about inconsistencies between his testimony and the testimony of the police officers, and failed to question jurors who appeared to be sleeping through Burgess's testimony; (2) the State failed to give notice of certain of his statements it intended to use at trial; (3) he was denied his right to a speedy trial; (4) the trial court's admission of testimony regarding the June 25 encounter was erroneous; and (5) the trial court improperly interfered with Burgess's cross-examination of witnesses.
The First Department denied his appeal on March 23, 2000, stating that the trial court "properly exercised its discretion in denying defendant's request for an investigator, since defendant's claim of necessity was speculative." People v. Burgess, 706 N.Y.S.2d 316, 317 (1st Dep't 2000). The court also stated: "We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief." Id.
The Court of Appeals denied Burgess's application for leave to appeal on May 19, 2000. People v. Burgess, 95 N.Y.2d 794 (2000). He did not seek a writ of certiorari from the Supreme Court. His federal habeas petition was timely.
In his petition, Burgess advances challenges to his grand jury proceedings and to his trial. Burgess raised each of these issues on direct appeal from his conviction. He argues that the prosecutor improperly questioned him about his prior criminal history before the grand jury, improperly asked him about inconsistencies between his testimony and the testimony of the officers who testified, and failed to question members of the grand jury who appeared to be sleeping during his testimony. Regarding his trial, Burgess argues that: (1) the decision to admit testimony about the June 25 encounter was prejudicial because it portrayed him as having a propensity to commit burglaries; (2) he was denied his right to present a defense, to equal protection, and to due process when the judge refused to authorize the hiring of an investigator; and (3) he was denied his right to a fair trial because the judge questioned witnesses and interrupted his cross-examination of witnesses.
Judge Dolinger recommended that Burgess's petition be denied. By letter dated December 10, 2001, Burgess informed the Court that he objected to the Report and requested an extension of time to file written objections. He also informed the Court that his expected release date was December 11, 2001, and that he would inform the Court if and when he was released. Burgess did not detail his specific objections to the Report. By Order of January 23, 2002, the Court granted Burgess until February 15, 2002, to submit a memorandum of law to accompany his objection to the report. Burgess has not submitted additional materials or communicated with the Court since his December 10 letter.
Burgess's release would not moot his habeas petition. Section 2254 "requires only that the habeas petitioner be in custody under the conviction or sentence under attack at the time the petition is filed."Wheel v. Robinson, 34 F.3d 60, 63 (2d Cir. 1994) (citation omitted).
DISCUSSION
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636 (b)(1)(C). The Court reviews de novo those portions of the report to which an objection has been made. Id.; see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Assuming without deciding that Burgess's December 10 letter is sufficient to constitute objections to the entire Report, the Report will be reviewed de novo.
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides the following standard of review for a challenge to a state conviction:
An 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d) (2001). The Second Circuit recently outlined the procedure to follow when applying Section 2254(d)(1) in Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001). See also Jenkins v. Artuz, ___ F.3d ___, Nos. 01-2355 01-2328, 2002 WL 483547, at *5 (2d Cir. Apr. 1, 2002); Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002).
1. Appointment of an Investigator
Burgess's challenge to the trial judge's decision not to appoint an investigator, and to the Appellate Division's affirmance of that decision, is based on clearly established federal law. This law, as set forth in Supreme Court precedent, establishes (1) the right of a criminal defendant to present a defense, and (2) the right of an indigent criminal defendant to assistance necessary for the presentation of an adequate defense. While states are not required to "purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, . . . fundamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversary system."Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (citation omitted); cf. Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1 (1985).
Burgess's claim based on the denial of an investigator was adjudicated on the merits by the Appellate Division, which held that the trial court "properly exercised its discretion in denying defendant's request for an investigator, since defendant's claim of necessity was speculative."Burgess, 706 N.Y.S.2d at 317. For the reasons described in the Report, this holding was neither contrary to nor an unreasonable application of clearly established federal law.
2. Grand Jury Proceedings
Burgess challenges alleged deficiencies in his grand jury proceedings. This claim, as well as all the remaining claims raised by Burgess on direct appeal from his conviction, were adjudicated on the merits by the Appellate Division. After rejecting Burgess's claim based on denial of his application for an investigator, the Appellate Division stated: "We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief." Burgess, 706 N.Y.S.2d at 317.
The Appellate Division's rejection of this claim was neither contrary to nor an unreasonable application of clearly established law. Where the defendant has subsequently been convicted by a petit jury, "any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt." United States v. Mechanik, 475 U.S. 66, 70 (1986).
3. Admission of Testimony Regarding June 25
Burgess challenges the trial court's decision to admit testimony about the June 25 encounter on the ground that this testimony was unfairly prejudicial because it portrayed him as having a propensity to commit burglaries. The Appellate Division's rejection of this claim is neither contrary to nor an unreasonable application of clearly established federal law. As described in the Report, even erroneously admitted evidence does not violate due process unless it can be said to have violated "fundamental conceptions of justice." Dowling v. United States, 493 U.S. 342, 352 (1990) (citation omitted). As the Report carefully explains, there was no such violation with the admission of the June 25 evidence.
4. Trial Judge's Conduct
Burgess argues that he was denied his right to a fair trial because the judge interrupted and commented during his cross-examination of witnesses. The Appellate Division's rejection of Burgess's challenge to the trial judge's questioning of witnesses and comments during trial was not contrary to or an unreasonable application of clearly established federal law.
Although the judge must refrain from conduct that would be inconsistent "with due regard to the right and duty of the jury to exercise an independent judgment in the premises, or with the circumspection and caution which should characterize judicial utterances," Starr v. United States, 153 U.S. 614, 626 (1894), the conduct of the judge who presided over Burgess's trial was fully consistent with this necessary regard for the independence of the jury. "[T]he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law." Bollenbach v. United States, 326 U.S. 607, 612 (1946) (citation omitted). While the trial judge asked a number of questions, these questions were neutrally phrased and intended to clarify the witness's testimony. Although Burgess claims that one of the judge's comments caused the jurors to laugh, this comment does not appear to have given an impression of bias against the defendant. The Appellate Division's decision that the judge did not improperly influence the jury was not an unreasonable application of the relevant federal law.
CONCLUSION
For the reasons stated above, Judge Dolinger's recommendation is adopted and Burgess's petition for a writ of habeas corpus is denied. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). In addition, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962)