Opinion
97 Civ. 2116 (RCC) (JCF)
February 21, 2002
REPORT AND RECOMMENDATION
David Calderon brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions following two separate jury trials in New York State Supreme Court, New York County. The petitioner was convicted of two counts of attempted murder and one count of criminal possession of a weapon at his first trial (the "attempt trial") and one count of murder at his second trial (the "murder trial"), and is currently incarcerated at Lakeview Correctional Facility. He brings the instant petition to overturn both convictions. In connection with the attempt trial, Mr. Calderon alleges that: (1) the trial court denied him due process by improperly shifting the burden of proof; (2) the court violated his right to present a defense by precluding a witness from testifying; (3) the court wrongly barred him from introducing the full text of a statement from which an excerpt was introduced by the prosecution; (4) the court erred by not giving instructions limiting the jury's consideration of other crimes evidence; (5) the petitioner's sentence of twenty-years to life imprisonment for attempted murder of a police officer without consideration of mitigating factors amounted to cruel and unusual punishment and deprived the petitioner of equal protection and due process; (6) the petitioner was denied effective assistance of counsel; and (7) the state court denied him due process by failing to order an evidentiary hearing regarding the effectiveness of counsel. In connection with the murder trial, Mr. Calderon claims that: (1) the prosecutor deprived him of due process by eliciting false testimony; (2) the trial court failed to give instructions limiting the jury's consideration of other crimes evidence; and (3) the state court improperly failed to conduct an evidentiary hearing on his claim of newly discovered evidence. For the reasons set forth below, I recommend that the petition be denied.
This petition was originally filed pro se. After it was found not to be time-barred, counsel was appointed. In his Memorandum of Law, petitioner's counsel states that Mr. Calderon incorporated into his habeas petition all arguments raised in his appellate brief and collateral motions. (Memorandum of Law in Support of a Petition for a Writ of Habeas Corpus ("Pet. Memo."), at 61-62). However, there is one claim raised by the petitioner post-conviction that was not included in the instant petition: specifically, that attempted murder in the first degree is a non-existent crime and his conviction should therefore be modified to attempted murder in the second degree. (Petition at 5-6B). Because counsel does not substantively address this claim in his memorandum of law and because Mr. Calderon did not include it in his petition, it is not before the Court.
Background
On December 13, 1979, around 7:40 p.m. a feud between Ramon Mesa and a group of his own drug dealers culminated in the murder of Mr. Mesa's bodyguard, Jerome Alvarado. (M. Tr. 52-101, 203, 236-37, 289-90). Mr. Mesa and Mr. Alvarado were sitting in a van parked on East 112th Street in Manhattan, when the petitioner and an accomplice approached the van and opened fire. (M. Tr. 109-10). Mr. Alvarado died at the scene from seven gunshot wounds. (M. Tr. 203, 237, 566). Several hours after the shooting, the petitioner confessed to a cohort, Robert Garcia (M. Tr. 106-10), and on February 13, 1980, he also confessed to a local youth counselor, Daniel Gonzalez. (M. Tr. 657, 677-78).
"M. Tr." refers to the trial transcript of the petitioner's trial for murder held from April 23 to May 7, 1981.
On August 8, 1980, around 1:00 a.m., the petitioner was standing with Deborah White on Lexington Avenue near 110th Street. (A. Tr. 253-55). Shortly thereafter, Detective Fred Cappetta and Officer Michael Gentile, dressed in civilian clothes, approached the petitioner to arrest him for the Alvarado murder. (A. Tr. 127-32, 216-20, 361-66). According to the officers who arrived on the scene, after Officer Gentile identified himself as a police officer the petitioner fled, firing two shots at the officers. (A. Tr. 132-33, 152, 221, 366-67). When Mr. Calderon reached the corner, another plainclothes officer, Gregory Lynch, approached him. (A. Tr. 179, 367). The petitioner continued to flee while shooting, and the officers lost him when they ran out of ammunition. (A. Tr. 134, 370). Neither the officers nor the petitioner were hit by the bullets, but Carlos Gonzalez, a sixteen-year-old bystander, was struck in the leg. (A. Tr. 312-13). The petitioner was arrested on August 15, 1980, in California. (A. Tr. 393).
"A. Tr." refers to the trial transcript of the petitioner's trial for attempted murder held from March 9 to March 18, 1981.
In contrast, Ms. White testified that the plainclothes officers who approached Mr. Calderon did not identify themselves before pointing their guns at him but only ordered him to "freeze." (A. Tr. 257).
A. Pretrial Hearing
On March 9, 1981, the prosecution made an application to Justice Bentley Kassal, requesting that the attempted murder and related charges be tried first and the murder charge second. (A. Tr. 3). Previously, Justice Brenda Soloff had severed the murder count from the remaining counts in the indictment. After hearing from both sides, Justice Kassal found that the attempted murder and related counts should be tried first. (A. Tr. 8). He reasoned in part that if the trial for the murder charge were to go first and the petitioner were acquitted, it would unduly prejudice the prosecution in the trial for the attempted murder charges, because the state would not be able to present a motive for why the petitioner fled from and shot at the police officers pursuing him. (A. Tr. 9). He further ruled that there could be no reference made in the attempted murder case to the fact that the defendant was charged with a murder or was being sought for a murder; instead, the parties could refer to a serious criminal offense. (A. Tr. 11).
B. Attempt Trial
Later that same day, the attempt trial proceeded before Justice Kassal. The police officers, who attempted to arrest the petitioner on August 8, 1980, testified that they were seeking to arrest the petitioner for a serious offense he had previously committed. (A. Tr. 125, 174, 216, 359).
The prosecutor also called Ms. White, the friend of the petitioner's who was with him on August 8, 1980. Although she testified before the grand jury that the petitioner was carrying a gun the day of the shooting, at trial she stated that he was not. (A. Tr. 268-70). On cross-examination by defense counsel, she explained that she had lied in the grand jury proceedings because she had been coerced by the police. (A. Tr. 279-80). She further stated that despite these threats from law enforcement, she had given a truthful statement to police when they interviewed her several days after the shoot-out. (A. Tr. 283-84, 295). The prosecutor then offered and the court accepted into evidence only the portion of the statement that read, "The statement above is the truth as best I can remember at this time. No one has forced me to give this statement and I am giving it of my own free will." (A. Tr. 291-92, 389-92).
Subsequently, the petitioner moved to admit the full text of the statement to show the jury what she claimed was truthful. (A. Tr. 414-16). In this portion of the statement, Ms. White allegedly claimed that someone else committed the shooting on August 8 and did not mention anything about the petitioner possessing a gun or firing any shots. (Brief for Defendant-Appellant ("Pet. App. Br."), included as Exh. J in Appendix in Support of Answer Opposing Petition for a Writ of Habeas Corpus ("Resp. App."), at 42). Suspicious of the witness' allegations of coercion, the judge denied this request, finding that it was an inadmissable prior consistent statement that improperly bolstered her potentially perjured testimony. (A. Tr. 419-22).
The petitioner also attempted to call his sister, Anna Calderon, as a witness to impeach Detective Cappetta. (A. Tr. 495-96). She would have alleged that, on the morning after the shooting, Detective Cappetta threatened her and threatened to kill the petitioner. (A. Tr. 496, 498-500, 504). The judge precluded Ms. Calderon's testimony as irrelevant, reasoning that the detective could not be impeached based on collateral or extraneous matters. However, he further found that Ms. Calderon's testimony could be relevant to the issue of flight if it was used to show that the petitioner fled for fear of his life, not because he was guilty. (A. Tr. 500-01). Because the defense failed to make any showing that the petitioner knew of Detective Cappetta's actions prior to flight or that these actions induced flight, Ms. Calderon was not allowed to testify. (A. Tr. 501-02, 505-06).
At the end of the trial when instructing the jury about what constitutes intent, Justice Kassal stated, "The law permits you to presume that a person intends the natural consequences of his voluntary acts. But this presumption may be rebutted on the basis of other evidence presented." (A. Tr. 607-08).
The full definition of intent given by Justice Kassal reads as follows:
A person acts intentionally with respect to a result or conduct when his conscious objective is to cause such result or engage in such conduct. A person's intent may be determined from his acts, words and from all of the facts and circumstances surrounding his conduct at the time he allegedly committed the act. In this regard, the law permits you to presume that a person intends the natural consequences of his voluntary acts. But this presumption may be rebutted on the basis of other evidence presented.
(A. Tr. 607-08).
The following day, the jury requested a redefinition of intent. (A. Tr. 640). The judge reread the definition he had previously given to the jury and provided an additional explanation. (A. Tr. 643-46). As part of the definition, he stated that "the law says that a person is presumed to intend that which he actually does." (A. Tr. 646). The judge concluded his supplemental definition by declaring, "That's my definition of intent, both the one I gave you yesterday and an additional supplementation slightly different version [sic]. But to the same effect." (A. Tr. 646). Defense counsel made no objection to the instructions on intent.
On March 18, 1981, Mr. Calderon was convicted of two counts of Attempted Murder in the First Degree, N.Y. Penal Law §§ 110 125.27, and one count of Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02. (A. Tr. 651).
C. Murder Trial and Sentencing
Prior to the murder trial, the petitioner requested the list of civilian witnesses whom the prosecution might call to testify and notification of any promises made to them. (Affirmation of David P. Greenberg dated Dec. 21, 1983 ("Greenberg Aff."), Exh. B, included in 440.10 Motion ("First 440 Motion"), included as Exh. D in Resp. App., at 1, 6). The prosecutor refused to reveal the identity of the witnesses at that time for fear that harm might come to them, but he did state that "their cooperation with the District Attorney would be brought to the attention of the Court at the time of their sentence, if applicable." (Greenberg Aff., Exh. C, ¶¶ VI(a), X(b)(15)).
During the murder trial, Mr. Garcia testified that the petitioner had confessed the murder to him. Previously, Mr. Garcia had pled guilty to an unrelated manslaughter charge in the Bronx. At trial, the prosecutor asked him what kind of promises had been made to him in connection with the Bronx case. Mr. Garcia answered that the Bronx District Attorney's Office had promised him a maximum sentence of fifteen years in prison in exchange for his testimony against his co-defendant, Floyd Cowart, in the Bronx case. He denied that anybody from the Manhattan District Attorney's Office or any police involved in Mr. Calderon's case had made him any promises in return for his testimony against Mr. Calderon. (M. Tr. 114-15). On cross-examination defense counsel also asked what, if any, promises were made in exchange for his testimony against Mr. Calderon. Again, he denied that there existed any promises. (M. Tr. 150, 168). During his summation, however, defense counsel implied that Mr. Garcia was less than truthful about not having received any consideration for his testimony:
[Mr. Garcia] tells us that he testified against Cowart, his cohort, his friend, his buddy. . . . He testified against him and he admits, "Oh, yes, I got a deal, I was promised perhaps a lighter sentence," whatever that is.
Your recollection is better than mine on this matter. He was promised something. He admits to us that it was because it was a Bronx case, a Bronx District Attorney, and something was happening up there. We come down to the New York District Attorney, with a New York case, with Danny Calderon here. He tells us, "Oh, I wasn't promised anything."
You remember listening to Floyd Cowart and after hearing that testimony, I submit to you . . . that Robert Garcia would testify against anybody for any reason if he could help himself, and so far he has. So far the direct testimony tells us that he has helped himself. Not in the New York case. He wants us to believe he didn't do it in the New York case. That is something else.
(M. Tr. 1017-18). Additionally, the prosecutor mentioned in his closing argument that "Robert Garcia is in this case because he hopes to gain a benefit. . . . He made a deal, let's make no bones about that. He's in this case for something. He's looking to get something. He's giving something and he's getting something." (M. Tr. 1051, 1057).
After the trial, the prosecutor sent a letter to the Bronx County District Attorney's Office in connection with Mr. Garcia's up-coming sentencing for his manslaughter conviction. The letter stated, "As we promised, we indicated that we would bring Mr. Garcia's cooperation to the attention of the Court at the time of sentencing," and requested that this information be conveyed to Mr. Garcia's sentencing judge. (Sentence Hearing, included in Appendix to Memorandum of Law in Support of a Petition for a Writ of Habeas Corpus ("Pet. App."), at 77-78). Based in part on Mr. Garcia's cooperation with the Manhattan District Attorney's Office in the petitioner's murder trial, the Bronx judge reduced Mr. Garcia's promised sentence of seven and one-half to fifteen years incarceration to six to twelve years. (Pet. App. at 78-79, 82-83).
During Mr. Calderon's murder trial, defense counsel objected to any reference to the events pertaining to the attempted murder conviction. (M. Tr. 500-01). Justice Kassal overruled his objection and found that the prosecutor could elicit testimony about the petitioner's shoot-out with police officers because it was evidence of his consciousness of guilt. (M. Tr. 505-06, 508). However, the judge limited any testimony to the flight itself and barred testimony about the other details, including the fact that the petitioner shot a civilian. (M. Tr. 506-10).
On May 7, 1981, Mr. Calderon was convicted of one count of Murder in the Second Degree in violation of New York Penal Law § 125.25. (M. Tr. 1282). On May 20, 1981, he was sentenced to three concurrent terms of twenty years to life on the murder and attempted murder counts, to run concurrently with a term of two and one-third to seven years on the weapons count. (Resp. App., Exh. C).
D. Collateral Motions and Direct Appeal
In a motion dated December 21, 1983, the petitioner moved for an order pursuant to New York Criminal Procedure Law ("CPL") § 440.10, to vacate the murder conviction or, in the alternative, for a hearing on the motion. (First 440 Motion). The petitioner brought the motion on the grounds of newly discovered evidence and prosecutorial misconduct. He contended that Mr. Garcia, while incarcerated, admitted to a jailmate, Pablo Guzman, that he had committed the murder of Mr. Alvarado. In support of his motion, the petitioner attached affidavits from Mr. Guzman in which he claimed that Mr. Garcia killed Mr. Alvarado and had implicated the petitioner because the petitioner did not reciprocate Mr. Garcia's sexual advances. (Greenberg Aff., ¶ Affidavits of Pablo Guzman dated Feb. 19, 1982 Nov. 19, 1982, attached as Exhs. D, E to Greenberg Aff.). Mr. Calderon also asserted that the prosecution repeatedly failed to correct Mr. Garcia's false testimony in which he stated that he was not receiving anything from the prosecution in return for his testimony. (Greenberg Aff., ¶ 1).
Justice Soloff denied the petitioner's motion in a written decision dated June 15, 1984. (Resp. App., Exh. F). On August 2, 1984, Justice Fritz W. Alexander granted the petitioner permission to appeal. (Resp. App., Exh. I).
In March of 1986, the petitioner filed a consolidated appeal of both of his convictions and of Justice Soloff's order. (Pet. App. Br.). The petitioner claimed that: (1) the trial court denied him due process in the attempt trial by precluding a witness and rejecting defense counsel's attempts to admit into evidence the full text of Ms. White's written statement; (2) the court also denied him due process at that trial by shifting the burden of proof in its instructions to the jury and by failing to give a limiting instruction concerning the petitioner's criminal activity; (3) Justice Soloff should have held an evidentiary hearing on the basis of newly discovered evidence that exculpated Mr. Calderon of the murder; (4) the prosecutor deprived him of due process at the murder trial by failing to disclose that a witness was testifying under an agreement with the New York County District Attorney's and failing to correct the witness' false testimony to the contrary; (5) the court in the murder trial also failed to give a limiting instruction about the petitioner's criminal history; and (6) attempted murder in the first degree is a non-existent crime, and his convictions should be modified to attempted murder in the second degree. (Pet. App. Br.; Supplemental Brief for Defendant-Appellant ("Pet. Supp. App. Br."), included as Exh. K in Resp. App.).
On November 13, 1986, the Appellate Division, First Department, affirmed both convictions and Justice Soloff's order without an opinion. People v. Calderon, 124 A.D.2d 1078, 507 N.Y.S.2d 783 (1st Dep't 1986). The petitioner sought leave to appeal to the New York State Court of Appeals (Resp. App., Exh. N), but that court denied leave on March 20, 1987. People v. Calderon, 69 N.Y.2d 878, 515 N.Y.S.2d 1025 (1987).
In a notice dated January 2, 1990, the petitioner moved, pursuant CPL § 440.20, to set aside as unconstitutional his sentence for attempted murder. (Notice of Motion ("Second 440 Motion"), included as Exh. Q in Resp. App.). On January 22, 1990, this motion was denied (Resp. App., Exh. R), and on March 27, 1990, leave to appeal was denied. (Resp. App., Exh. U).
The petitioner then moved to vacate his conviction for attempted murder pursuant to CPL § 440.10, claiming ineffective assistance of counsel, and to "remand" the case for an evidentiary hearing. (Defendant's Motion to Vacate Judgment of Conviction ("Third 440 Motion"), included as Exh. V in Resp. App., at 21). Mr. Calderon specifically alleged that defense counsel failed to cross-examine the police officers about alleged inconsistent statements regarding how many shots were fired, to call an unidentified witness who was apparently also shot on August 8, 1980, and to object to both the prosecution's comments in summation about intent and to the trial judge's charge on that issue. (Third 440 Motion, at 6-14, 17-18). On March 22, 1991, this motion was denied (Resp. App., Exh. W), and on August 27, 1992, the Court of Appeals denied leave to appeal that decision. (Resp. App., Exh. Z).
On March 17, 1997, the petitioner filed the instant petition.
Discussion
The respondent argues that all of the claims are either procedurally defaulted or without merit. The claims common to both trials will be discussed first, those relating to the attempt trial second, and those pertaining to the murder trial last.
The respondent also maintains that this Court should apply the "concurrent sentence" doctrine and reject the petition without substantively addressing the claims from both trials. (Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus("Resp. Memo.") at 12-13). Under this doctrine, a habeas court may decline to review the petition when the sentence imposed on the challenged conviction is being served concurrently with an equal sentence that has been upheld or is not otherwise challenged. See Lurie v. Wittner, No. 98 Civ. 7697, 1999 WL 246809, at *4 (S.D.N.Y. April 26, 1999), aff'd in part and rev'd in part on other grounds, 228 F.3d 113 (2d Cir. 2000), cert. denied, ___ U.S. ___, 121 S. Ct. 1404 (2001). Here, the doctrine is clearly inapplicable because the petitioner challenges the convictions from both trials.
Moreover, even if this Court were to find all the claims from one trial without merit, application of the doctrine on the claims from the other trial would still be inappropriate. Courts have been increasingly reluctant to employ the concurrent sentence doctrine because of the "collateral consequences flowing from convictions on multiple counts, even where the aggregate sentence is unaffected." Id. In United States v. Vargas, 615 F.2d 952, 959-60 (2d Cir. 1980), the Second Circuit set forth five factors to evaluate the collateral consequences of convictions, one of which was the effect on possible parole. In this case, such a consequence is relevant. "A parole board faced with one count of [murder], along with . . . [two other counts for attempted murder of police officers], would in all likelihood view the offense conduct more seriously than if only the . . . [murder] count was involved." Lurie, 1999 WL 246809, at *4. Therefore, the concurrent sentence doctrine should not be applied.
A. Claims Common to Murder and Attempt Cases
1. Failure to Conduct Evidentiary Hearings
The petitioner argues that the state court that decided his first and third 440 motions denied him due process by failing to conduct evidentiary hearings about his allegations of ineffective assistance of counsel at his attempt trial and newly discovered exculpatory evidence in connection with his murder conviction. (Petition at 5, 6B; Pet. Memo. at 61). These claims are not cognizable by this Court.
"[F]ederal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings." Diaz v. Greiner, 110 F. Supp.2d 225, 235 (S.D.N.Y. 2000) (quoting Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998)). Claims that focus only on the state's post-conviction remedy and not on the conviction which is the basis for his incarceration are not cognizable on habeas review. Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998); Jones v. Duncan, 162 F. Supp.2d 204, 218 n. 21 (S.D.N.Y. 2001). Accordingly, these claims should be dismissed.
2. Failure to Give Limiting Instructions
The petitioner contends that Justice Kassal, the trial judge in both cases, failed to give limiting instructions sua sponte about the petitioner's alleged involvement in other criminal activity. (Petition at 5, 6A; Pet. Memo. at 61). The criminal activity to which Mr. Calderon refers is the testimony in the attempted murder trial about his having previously committed a serious offense and, conversely, the testimony in the murder trial about the August 8 shoot-out. The petitioner maintains that the judge should have given specific instructions to the jury that an inference of criminal propensity could not be drawn from this testimony. (Pet. App. Br. at 52-53, 63-64). The respondent argues that this claim is procedurally barred either based on the doctrine of independent and adequate state grounds or because the petitioner failed to include the claim in his letter application to the Court of Appeals. (Resp. Memo. at 15-17). Since the first argument is determinative, it is unnecessary to reach the second.
A federal court may not review a federal question on habeas review if the state court's "decision rests upon adequate and independent grounds." Harris v. Reed, 489 U.S. 255, 261 (1989) (citations and quotations omitted). In most cases the state court must have "clearly and expressly" rejected the claim based on state law for federal review to be barred. Id. at 263; Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995); see also Coleman v. Thompson, 501 U.S. 722, 733 (1991) (reliance on state law must be "clear from the face of the opinion"). However, where the state court has affirmed the conviction without opinion and where procedural arguments were made in the appellate briefs, it is assumed that the state court based its decision on state procedural grounds unless there is "`good reason to question whether there is an independent and adequate state ground for the decision.'" Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) (quoting Coleman, 501 U.S. at 739). This presumption applies even where the prosecution has presented both procedural and substantive arguments on appeal. Quirama, 983 F.2d at 14; see generally, Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809-10 (2d Cir. 2000).
Under New York Criminal Procedure Law, the Appellate Division may not review questions of law that were not preserved by an objection at trial. See N.Y. Crim. Proc. Law §§ 470.05(2) 470.15. In this case, the petitioner made no objection nor requested any limiting instructions at either trial, thus rendering these claims unpreserved for appellate review. The prosecution then raised this procedural bar in his appellate brief (Brief for Respondent ("Resp. App. Br."), included as Exh. L in Resp. App., at 41-42), and the Appellate Division affirmed Mr. Calderon's conviction without opinion. Under Quirama and its progeny, this Court must presume that the Appellate Division based its decision on procedural grounds, despite the fact that the prosecution also argued the issue on substantive grounds. Accordingly, these claims are procedurally barred based on the doctrine of independent and adequate state grounds. See Quirama, 983 F.2d at 14.
The petitioner argues that there is "good reason" to believe that the Appellate Division did not rest its decision on procedural grounds, because it had discretion under N.Y. Crim. Proc. Law § 470.15(3) to review the unpreserved claims in the interest of justice. (Pet. Memo. at 37-38). However, the Second Circuit has already rejected this argument. In Quirama, it found that "because New York permits review of the merits of claims not raised in the trial court only sparingly[,] . . . it is thus reasonable to presume that silence in the face of arguments asserting a procedural bar indicated that the affirmance was on state procedural grounds." 983 F.2d at 14 (citation omitted).
The petitioner can overcome this procedural bar by demonstrating either cause for the default and prejudice resulting therefrom or that a fundamental miscarriage of justice would result if the claims were not reviewed. See Coleman, 501 U.S. at 749-50; Harris, 489 U.S. at 262; Fama, 235 F.3d at 809. Mr. Calderdon has demonstrated neither; therefore, these claims should be dismissed.
B. Attempt Trial Claims
1. Improper Jury Instructions
Mr. Calderon claims that Justice Kassal improperly shifted the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510 (1979), when discussing intent in his charge and when he responded to the jury's question about intent during deliberations. The respondent again argues that this claim is procedurally barred either based on the doctrine of independent and adequate state grounds or because the petitioner failed to include the claim in his letter application to the Court of Appeals. (Resp. Memo. at 37-39). Since the petitioner failed to preserve this issue at trial, and the respondent on appeal argued that the claim was procedurally barred, this claim should be dismissed based on the doctrine of independent and adequate state grounds for the reasons discussed above. See Quirama, 983 F.2d at 14.
2. Ineffective Assistance of Counsel
The petitioner next asserts that he received ineffective assistance of counsel because his attorney failed to object to portions of the prosecution's summation and the judge's charge that allegedly shifted the burden of proof, to cross-examine the police officers present at the shooting about alleged inconsistent statements regarding how many shots were fired, and to call an unidentified civilian witness who was apparently injured in the shoot-out. (Petition at 6B; Pet. Memo. at 62; Third 440 Motion at 6-14, 17-18). This claim fails because counsel's representation of the petitioner did not fall below an objective standard of reasonableness or prejudice the defense.
In order to obtain a reversal of a conviction for ineffective assistance of counsel, a petitioner must demonstrate that: (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). When reviewing trial counsel's performance, a habeas corpus court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689. The court must not rely upon hindsight and second-guess counsel's unsuccessful trial strategy. Id. Indeed, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Id. at 690.
With respect to the first prong of the Strickland test, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness. . . . [T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. The "prejudice" prong of the test requires a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," and that there is a reasonable probability that "but for" the claimed errors of counsel, the trial result would have been different. Id. at 687, 694.
Although Strickland and its progeny apply retroactively, whether counsel's conduct fell below reasonable professional standards and the alleged prejudice resulting therefrom must generally be gauged by the law in effect at the time of counsel's performance. See Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993); Strickland, 466 U.S. at 690. Therefore, only cases predating the 1981 trial are applicable.
a. Failure to Object to the Jury Charge
The petitioner alleges that defense counsel's assistance was ineffective because he failed to object to the judge's charge on intent. Mr. Calderon maintains that portions of the jury charge and of the supplemental charge were mandatory presumptions that shifted the burden of proof to the defendant in violation of the Constitution as set forth in Sandstrom v. Montana, 442 U.S. 510 (1979), and Francis v. Franklin, 471 U.S. 307 (1985). (Third 440 Motion at 18).
In Sandstrom, the Supreme Court found the trial court's instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts" was unconstitutional because it was a mandatory instruction that impermissibly shifted the burden of proof. 442 U.S. at 515, 524. Here, the trial court told the jury in his original charge that "the law permits you to presume that a person intends the natural consequences of his voluntary acts." (A. Tr. 607). He then reiterated this same charge when the jury asked for it to be read back to them. This instruction does not mandate any presumption; it merely permits such a presumption. Therefore, it was reasonable for defense counsel not to have objected to such a charge, as it was constitutionally sound.
Franklin, which was decided after the petitioner's trial, and subsequent caselaw have conclusively established that such permissive instructions pass constitutional muster. See Franklin, 471 U.S. at 314-16.
In contrast, the trial judge's supplemental charge on intent, which was the judge's last instruction to the jury on the topic, omits any permissive language. In that charge the judge stated,
On the question of intent, the law says a person is presumed to intend the natural and probable consequences of his act.
We readily understand that the intention with which a person commits an act or crime is seldom, if ever, put into words by him.
Crimes are ordinarily secret and a person does not advertise beforehand or say beforehand what he intends to do. So the law says that a person is presumed to intend that which he actually does.
That's my definition of intent, both the one I gave you yesterday and an additional supplementation slightly different version [sic]. But to the same effect.
(A. Tr. 646) (emphasis added). This language clearly runs afoul of the Supreme Court's holding in Sandstrom, 442 U.S. at 515, 524. Nevertheless, in order to establish that the charge was constitutionally impermissible, the instruction "must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973).
It is not necessary for this Court to weigh the entire charge to determine whether this instruction created a mandatory presumption, because if there was an error, the petitioner did not suffer any prejudice. Strickland, 466 U.S. at 687, 694. Counsel's failure to object to the alleged improper instruction could not have been "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," because there was convincing evidence that the predicate facts established intent. Strickland, 466 U.S. at 687. At trial, police officers testified that the petitioner fled from them after they had identified themselves as law enforcement officers, drew an automatic handgun, and then fired eight to twelve times at them. (A. Tr. 132-34, 139-40, 142, 152, 154-56, 159-60, 219-21, 234-35, 366, 369, 374, 378-81). Under these circumstances the jury could hardly have failed to conclude that Mr. Calderon was acting intentionally. See N.Y. Penal Law § 110.00 (defining attempt to commit a crime as "when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime"); A. Tr. 607-11 (jury charge defining intent). Because the petitioner has not shown any prejudice resulting from defense counsel's failure to object to the instruction, his claim fails.
Even the defense witness, Ms. White, who testified that the officers said "freeze" but not "police," stated that right before Officer Gentile approached him, Mr. Calderon remarked that a vehicle, which passed twice, was actually an undercover police car. (A. Tr. 255, 257).
b. Failure to Properly Cross-Examine and to Call Unidentified Witness
Mr. Calderon also contends that defense counsel should have impeached several police witnesses based on the alleged discrepancy between their testimony at trial and the initial report filed by the same witnesses. The petitioner alleges that the report stated that he fired his gun five to six times, while the officers' testimony indicated that he fired ten to fifteen shots at them. (Third 440 Motion at 6). Mr. Calderon believes this discrepancy should have put his attorney on notice to use ballistics evidence to disprove the prosecution's theory and impeach the testimony. (Third 440 Motion at 6-13). The petitioner next claims that if his counsel had reviewed the police reports he would have discovered a reference to another male who had been shot and should have called him as a witness. (Third 440 Motion at 13-14).
The petitioner fails the first part of the Strickland test because he has not demonstrated that trial counsel was deficient in these two instances. The decision not to call a particular witness and the conduct of cross-examination are typically questions of trial strategy that habeas courts will not second guess unless there is no tactical justification for the course taken. See Pavel v. Hollins, 261 F.3d 210, 217 (2d Cir. 2001); United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998). In this case, the inconsistencies in the officers' prior statement would have done little to impeach their credibility and may, very well, have harmed the defense's case by emphasizing to the jury how many shots were actually fired by the petitioner. Similarly, the other wounded individual may have only reiterated the version of events presented by the other prosecution witnesses, thus bolstering the prosecution's case. Without more, Mr. Calderon has failed to show that defense counsel's performance was outside "the wide range of professionally competent assistance." Strickland, 466 U.S. at 688-90.
3. Preclusion of the Petitioner's Sister
The petitioner next contends that the trial court violated his due process rights and his right to present a defense by improperly precluding his sister, Anna Calderon, from testifying. (Petition at 5; Pet. Memo. at 58). The respondent counters that this claim is unexhausted and procedurally defaulted because Mr. Calderon failed to specifically raise this claim in his letter application seeking leave to appeal his conviction to the Court of Appeals. (Resp. Memo. at 26-30). This claim is exhausted, yet without merit.
a. Exhaustion
Under federal law, a petitioner must exhaust all available state court remedies for each claim prior to federal habeas review. 28 U.S.C. § 2254(b), (c). To achieve exhaustion, the factual and legal predicate for each claim must be fairly presented to the highest available state court. Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (citations omitted). To fully exhaust a claim raised on direct appeal in New York state court, a petitioner must present it in his letter application to the Court of Appeals. Ramirez v. Attorney General of the State of New York, ___ F.3d ___, No. 99-2047, 2001 WL 1028326, at *6 (2d Cir. Sept. 7, 2001).
The respondent concedes that the petitioner's letter application is missing from the record, but argues that the district attorney's response letter, which is included in the respondent's appendix, makes clear that the petitioner only raised two arguments, neither of which concerned the improper preclusion of Anna Calderon. (Resp. App., Exh. O; Resp. Memo. at 5-6, fn.*). While the petitioner may have only discussed two claims at length, it is unknown whether he may have satisfied the exhaustion requirement by requesting that his other claims also be reviewed by the Court of Appeals. See Morgan v. Bennett, 204 F.3d 360, 370-71 (2d Cir.), cert. denied, 531 U.S. 819 (2000). Moreover, it is clear from the considerable litigation in this circuit that exhaustion under these circumstances rests on the presence or absence of quite precise language in the letter application. See Ramirez, 2001 WL 1028326, at *8-9 ("References to attached briefs without more will preserve issues only if the Court of Appeals is clearly informed that the reference is asserting issues in those briefs as bases for granting leave to appeal."); Jordan v. LeFevre, 206 F.3d 196, 198-99 (2d Cir. 2000) (letter application that only addressed one issue and at end of request sought review "for all of these reasons and the reasons set forth in his Appellate Division briefs" did not fairly present other claims in briefs to Court of Appeals); Morgan, 204 F.3d at 369-70 (letter application that stated, "We request this Court to consider and review all issues outlined in [the briefs]" fairly presented all claims to highest state court even though there was a subsequent letter to assigned Court of Appeals judge that only addressed some issues raised in briefs). Therefore, without reviewing the letter application itself, it is impossible to determine whether the petitioner properly alerted the Court of Appeals to this specific claim. Accordingly, this claim must be considered exhausted.
Specifically the letter states, "[d]efendant raises two issues in his application for leave," and then goes on to argue that both claims are without merit. The claims presented were that the motion to vacate the judgment on the grounds of prosecutorial misconduct was erroneously denied and that his conviction for attempted first degree murder should be modified, because no such crime exists. (Resp. App., Exh. O).
b. Merits
The petitioner argues that the trial judge violated his right to present a defense when he precluded the testimony of Anna Calderon. (Pet. Memo. at 58). Defense counsel maintained that Ms. Calderon's testimony was relevant to impeach Detective Cappetta's credibility because his alleged bad behavior the day after the shooting was consistent with someone who "might very well change his story on the witness stand or exaggerate or distort facts." (A. Tr. 499). This claim is without merit.
"The Sixth Amendment right to present a defense is not unqualified; [it is] subject to countervailing public interests." Lurie v. Wittner, 228 F.3d 113, 133 (2d Cir. 2000) (citation and internal quotations omitted), cert. denied, U.S., 121 S. Ct. 1404 (2001). A trial court has broad discretion to exclude evidence that is immaterial, irrelevant, or otherwise inadmissable based on rules of evidence. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973). In order to establish a constitutional violation of the right to present a defense, the petitioner must demonstrate that such rules are either "`arbitrary' or `disproportionate to the purposes they are designed to serve.'" United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
In this case, the petitioner has not shown that the exclusion of his sister's testimony was either arbitrary or disproportionate. See Dawson v. Donnelly, 111 F. Supp.2d 239, 249 n. 6 (W.D.N Y 2000) (preclusion of witness whose testimony purports to impeach prosecution witness on collateral issue does not violate Compulsory Process Clause). Rather, the petitioner's arguments only raise an issue of state evidentiary law. See McCray v. Artuz, No. 93 Civ. 5757, 1994 WL 603057, at *3 (S.D.N.Y. Nov. 3, 1994). Under state, as well as federal law, "extrinsic evidence cannot be used to impeach a witness on a collateral issue." Dawson, 111 F. Supp. 2d at 249; see also United States v. Purdy, 144 F.3d 241, 245-46 (2d Cir. 1998); McCray, 1994 WL 603057, at *3. Since the issue at trial was the petitioner's guilt as to attempted murder and related charges, whether Detective Cappetta threatened Ms. Calderon after the shooting was a collateral issue, and the trial judge committed no error by excluding the testimony. That testimony, although inadmissible for impeaching the detective, might have been relevant to establish that the petitioner fled the state not because he was guilty, but because he feared for his life. However, defense counsel did not suggest that Mr. Calderon was aware of the threats prior to his absconding. Absent an indication that this was the case, Ms. Calderon's testimony was properly excluded. Therefore, this claim should be dismissed.
4. Exclusion of Ms. White's Full Statement
The petitioner next argues that the trial court improperly excluded the full written statement made by Ms. White, part of which was introduced by the prosecution. (Petition at 5; Pet. Memo. at 61). The respondent contends that this claim is procedurally defaulted because the petitioner failed to specifically raise it in his letter application seeking leave to appeal his conviction to the Court of Appeals. (Resp. Memo. at 30). For the reasons previously stated, this argument is without merit. The respondent further maintains that this claim is unexhausted and procedurally defaulted because the petitioner based his argument on state evidentiary law and did not fairly present the constitutional issue to the state courts. (Resp. Memo. at 26-30). Although the claim is exhausted, it ultimately fails on the merits.
a. Exhaustion and Fair Presentment
As previously discussed, a petitioner must fairly present each claim to the state courts prior to seeking review in a federal habeas court. Picard v. Connor, 404 U.S. 270, 275 (1971); Daye, 696 F.2d at 191. Although the petitioner need not have cited "book and verse on the federal constitution," he must have articulated "the substantial equivalent" of the federal habeas claim. Picard, 404 U.S. at 278 (citations omitted). While acknowledging that Mr. Calderon cited the Fourteenth Amendment of the United States Constitution and mentioned "due process" in his state court brief (Pet. App. Br. at 38-39), the respondent claims that these references were insufficient to alert the New York courts to the petitioner's federal constitutional claim. (Resp. Memo. at 28-29). The respondent, however, presents an overly restrictive reading of the relevant case law. The Second Circuit recently held that, "if a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court." Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001) (citations omitted) (claim fairly presented where petitioner mentioned due process right to a fair trial and the Fourteenth Amendment in point heading in appellate brief). Mr. Calderon's claim was therefore fairly presented.
b. Merits
The petitioner claims that the exclusion of the full text of the written statement given by Ms. White violated his due process rights. (Petition at 5; Pet. Memo. at 61; Pet. App. Br. 38-39). In order to show that an erroneous evidentiary ruling rises to the level of constitutional error, the petitioner must demonstrate that the excluded evidence deprived the defendant of a fundamentally fair trial. See Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001); Rosario v. Kuhlman, 839 F.2d 918, 924-25 (2d Cir. 1988). The focus of this analysis is on the materiality of the excluded evidence and whether it "creates a reasonable doubt that did not otherwise exist." Agard v. Portuondo, 117 F.3d 696, 705 (2d Cir. 1997) (quoting United States v. Agurs, 427 U.S. 97, 112-13 (1976)), rev'd on other grounds, 529 U.S. 61 (2000).
Assuming for the sake of argument that the exclusion of the statement was erroneous, the petitioner has still failed to demonstrate that this alleged error created a reasonable doubt that did not otherwise exist. In his appellate brief, Mr. Calderon argues that admission of the complete statement would have enabled the defense to rehabilitate Ms. White; without the full statement, Ms. White appeared to have changed her story to cater to the needs of Mr. Calderon. (Pet. App. Br. at 43-44). However, the full statement would have only corroborated her testimony given in court, in which she exculpated the petitioner; it would have done little to rehabilitate that portion of her trial testimony in which she claimed that she lied before the grand jury when she testified that the petitioner did have a gun with him on the night in question. Because the jury was aware of the version of events presented in Ms. White's written statement by virtue of her trial testimony, its inclusion would not have created a reasonable doubt. Accordingly, this claim should be denied.
5. Improper Sentence
Mr. Calderon claims that his sentence deprived him of equal protection and due process and amounts to cruel and unusual punishment in violation of the Eighth Amendment. He specifically alleges that the statute defining attempted murder of a police officer is unconstitutional because it imposes a harsher penalty due to the fact that the victim is a police officer, mandates a maximum sentence of life even absent physical injury, and does not account for any mitigating factors. (Petition at 6A; Second 440 Motion at 1, 5, 7).
To establish a violation of equal protection, the petitioner must demonstrate that there is no rational relation between the state sentencing scheme and a legitimate state interest. U.S. Const. Amend. XIV; Liberta v. Kelly, 839 F.2d 77, 82 (2d Cir. 1988). The Supreme Court has held that "[t]here is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property." Roberts v. Louisiana, 431 U.S. 633, 636 (1977). Clearly, imposing a more severe punishment for a crime that endangers the lives of law enforcement officers is rationally related to this special interest. See id. Therefore, Mr. Calderon's equal protection claim should be dismissed because he has failed to show that there is no rational relation between the statute and a legitimate state interest.
The petitioner does not allege any specific due process violation nor does he allege any facts to support such a violation; therefore this claim should also be denied.
Finally, with regard to the petitioner's Eighth Amendment claim, habeas relief is available only upon demonstration that the sentence is grossly disproportionate to the crime committed. See Solem v. Helm, 463 U.S. 277, 290 (1983). In deciding whether a sentence was disproportionate, the Supreme Court in Solem compared the "gravity of the offense and the harshness of the penalty," the other crimes in the jurisdiction for which the same sentences could be imposed, and the sentences for the same crime in other jurisdictions. Id. at 290-91. Here, the petitioner repeatedly fired at police officers who were in close proximity and had previously identified themselves as law enforcement officials. He was given a minimum term of incarceration of twenty years which is less than the highest minimum term of twenty-five years authorized under the statute. N.Y. Penal Law § 70.00(3)(a)(i). Given the serious and violent nature of the offense, the sentence was not unduly harsh. See Thomas v. Senkowski, 968 F. Supp. 953, 957 (S.D.N.Y. 1997) (18 years to life sentence not excessive for second-degree murder conviction); Diaz v. LeFevre, 688 F. Supp. 945, 949-50 (S.D.N.Y. 1988) (sentence of 25 years to life was not excessive for second-degree murder conviction); Carter v. Henderson, 602 F. Supp. 1186, 1188-89 (S.D.N.Y. 1985) (15 years to life sentence not grossly disproportionate to crime of attempted murder of police officer), aff'd, 779 F.2d 36 (2d Cir. 1985). Moreover, the petitioner has not presented any argument demonstrating that his sentence is disproportionate to the crime for which he was convicted based either on other crimes in the same jurisdiction that carry the same sentence or on the sentences imposed in other jurisdictions for the same crime. See Diaz, 688 F. Supp. at 949-50; Carter, 602 F. Supp. at 1188-89. Accordingly, this claim should be dismissed.
C. Murder Trial
Finally, Mr. Calderon argues that the prosecution deprived him of due process by eliciting Mr. Garcia's false testimony that the prosecution had not promised him anything in exchange for his testimony against the petitioner. (Petition at 6, Pet. Memo. at 38).
In order to successfully challenge a conviction because of a prosecutor's knowing use of false testimony, a petitioner must demonstrate that "(1) there was false testimony, (2) the Government knew or should have known that the testimony was false, and (3) there was `any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" United States v. Helmsley, 985 F.2d 1202, 1205-06 (2d Cir. 1993) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).
As all three factors are required for a showing of prosecutorial misconduct, it is unnecessary to determine whether Mr. Garcia's testimony was false or whether the prosecution knew or should have known it to be false, because there is no reasonable likelihood that the testimony influenced the jury's verdict. See Mills v. Scully, 826 F.2d 1192, 1195 (2d Cir. 1987); Thiam v. Artuz, No. 98 Civ. 6708, 2000 WL 1056323, at *5 (S.D.N.Y. Aug. 1, 2000).
While Mr. Garcia's statements may not have been totally false and the prosecution may have truly believed that an agreement to provide a letter is not a promise, the prosecutor should have made the jury aware of his "commitment," as the respondent prefers to calls it (Resp. Memo. at 65-75), to report back to the Bronx District Attorney's Office about Mr. Garcia's performance in Mr. Calderon's case. The prosecutor may not have explicitly promised nor even stated that Mr. Garcia would or might receive anything in return, but it is quite apparent that such a letter would serve, at the very least, as a recommendation that the Bronx Court grant some degree of leniency towards the defendant. By distinguishing between an agreement to write a favorable letter to the sentencing court and a promise of a specific sentence, the respondent tries to get around the fact that, in either case, the witness' credibility may be called into doubt, albeit to varying degrees. This is the obvious point of questioning about a witness' pending cases, cooperation agreements, and promises. The semantic distinctions made by the prosecutor between promises and commitments at best unintentionally misled the jury, and, at worst, venture dangerously close to violating the Constitution's protection against the knowing use of false testimony. See Mills, 826 F.2d at 1195 ("there may be a deprivation of due process if the prosecutor . . . pos[es] misleading questions to the witnesses"); DuBose v. LeFevre, 619 F.2d 973, 979 (2d Cir. 1980) ("The fact that the promise may not have taken a specific form did not allow the prosecution to avoid disclosing to the jury the fair import of its understanding with the witness when the question arose . . . .").
Mr. Garcia's credibility had already been significantly damaged by details of his criminal history — which included a plea to first degree manslaughter and convictions for armed robbery, possession of stolen property, and possession of dangerous weapons (M. Tr. 115) — and by his plea agreement in the Bronx in exchange for testimony, such that his character was not greatly rehabilitated by the fact that he claimed he was not receiving anything in exchange for his testimony in this case. See United States v. Gambino, 838 F. Supp. 744, 747-48 (S.D.N.Y. 1993). Moreover, even if the prosecutor's "commitment" to Mr. Garcia had come out at trial, it would not have "create[d] a reasonable doubt about the witness's credibility that did not otherwise exist." Id. at 748 (quoting Helmsley, 985 F.2d at 1205-06) (alterations omitted).
Other factors that may have caused the jury to question Mr. Garcia's credibility include his testimony about a longstanding feud between himself and the victim's employer and testimony at trial by Mr. Cowart that Mr. Garcia had confessed to shooting Mr. Alvarado. (M. Tr. 52-70, 827-28).
Finally, there was other evidence that corroborated Mr. Garcia's version of events and independent evidence of Mr. Calderon's guilt. See Lamberti v. United States, 22 F. Supp.2d 60, 79-80, 83 (S.D.N.Y. 1998); see also United States v. Salameh, 54 F. Supp.2d 236, 262 (S.D.N.Y. 1999) (applying analogous federal rule), aff'd, Nos. 99-1619 to — 1623, 2001 WL 881112 (2d Cir. Aug. 6, 2001). First, Mr. Calderon was shot by Mr. Alvarez two months before the murder, giving him a motive to retaliate. (M. Tr. 234-37). Second, Daniel Gonzalez, a youth counselor who had no incentive to testify in exchange for a deal, stated that the petitioner had given him a confession that included the type and number of weapons used in the shooting. (M. Tr. 677-82). This information matched the forensic evidence found at the scene of the crime and other witnesses' statements. Finally, Mr. Calderon's shoot-out with the police was evidence of his consciousness of guilt. Based on Mr. Garcia's already compromised credibility and the substantial evidence supporting the verdict apart from of his testimony, there is no reasonable likelihood that the allegedly false testimony influenced the jury's verdict. Therefore, this claim should also be dismissed.
Mr. Gonzalez testified that Mr. Calderon told him that he and an accomplice approached a van on 112th Street and Third Avenue and both opened fire, but that Mr. Calderon's .380 automatic jammed after firing two shots. The petitioner further confessed that as he was fleeing the scene, the gun accidentally discharged. (M. Tr. 677-78, 681).
Angela Ramirez, who lived on 112th Street and Third Avenue, corroborated the portion of Mr. Gonzalez's testimony about the sequence of shots fired. She stated that on December 13, 1979, she saw a van parked on the street, heard several shots fired, and after a pause, heard one more shot that came from a different location on the block. (M. Tr. 201-04).
In addition, testimony from and evidence authenticated by police officers also supported the petitioner's confession as recounted by Mr. Gonzalez. Police officers who arrived on the scene recovered shell casings from a .380 automatic pistol in, near, and underneath the van. One shell casing was found approximately fifty feet away from the van. (M. Tr. 317-18, 393-94, 424-26, 431-32). Analysis of the casings demonstrated that two guns were used in the shooting. (M. Tr. 623-24).
Conclusion
For the reasons set forth above, I recommend that the petitioner's application for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard C. Casey, Room 1950, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.