Opinion
00 Civ. 4916 (GEL)
September 6, 2001
Paul Davila, pro se.
Raffaelina Gianfrancesco, Assistant District Attorney, Bronx County, Bronx, New York (Allen H. Saperstein, Assistant District Attorney, Robert T. Johnson, District Attorney, of counsel), for Respondent George B. Duncan.
OPINION AND ORDER
On July 8, 1993, Petitioner Paul Davila was sentenced in the Supreme Court of the State of New York. Bronx County, to concurrent terms of imprisonment aggregating 25 years to life, after having been convicted at trial of second-degree murder, four counts of attempted second-degree murder, second-degree criminal possession of a weapon and second-degree assault, The evidence at trial, which included positive identifications by three of the victims and testimony from two police officers who, contemporaneous to a 911 call, saw Davila exit a building in the proximity of the shooting, overwhelmingly demonstrated that Davila and an accomplice attacked Angel Cabrera, Nelson Cruz, and Edwin Concepcion, apparently rival drug dealers, and their female companions, as the victims were arriving at a Bronx building where some of the women apparently lived. (See, e.g., Tr. 160-61.) Numerous shots were fired, Concepcion was killed and Luz Rivera, one of the women, was shot in her right foot. (See, e.g., Tr. 349.) Davila and his accomplice fled from the scene, and were apprehended by the police shortly thereafter. Evidence at the trial also showed that Davila and his associates had threatened several victim-witnesses with death if they dared to testify against him. (See,e.g., Tr. 443-44, 684-85.)
On his petition for habeas corpus, and on various correspondence to the Court, petitioner's name is signed and spelled "Davila." The caption of his reply papers gives the name as "Davilla," although petitioner's actual signature uses only one "L." Both spellings appear in the underlying state record. We use the spelling petitioner himself uses, except in referring to the captions of state court decisions that contain the variant spelling.
Davila appealed his conviction to the Appellate Division, which unanimously affirmed his conviction on April 28, 1998. People v. Davilla, 249 A.D.2d 179, 672 N.Y.S.2d 107 (1st Dep't 1998). Leave to appeal was denied by the Court of Appeals on September 23, 1998, People v. Davilla, 92 N.Y.2d 924, 680 N.Y.S.2d 465, 703 N.E.2d 277 (1998), and on May 17, 1999, certiorari was denied by the Supreme Court of the United States. Davilla v. New York, 526 U.S. 1122 (1999). By petition filed on July 6, 2000, Davila now seeks habeas corpus in this Court. For the reasons set forth below, the petition is denied. Davila raises three issues, all of which were presented to the Appellate Division and, apparently, the Court of Appeals, in his state appeals.
DISCUSSION
I. Fourth Amendment
First, Davila argues that much of the evidence used against him was the fruit of what he contends was an illegal arrest by the police. Aware of the strictures of Stone v. Powell, 428 U.S. 465 (1976), which precludes habeas review of Fourth Amendment claims where the state has provided the defendant with a full and fair opportunity to litigate those claims, petitioner argues that his "ability to litigate his Fourth Amendment claim was circumscribed by the [state trial] court" (Traverse at 1.) He fails, however, to articulate any way in which the state courts impeded his ability to present his Fourth Amendment claims, objecting only to the Appellate Division's "fail[ure] to utilize its power to minimally remand the matter . . . for a hearing to determine the purported Fourth Amendment violation," and the failure of both the trial and appellate courts to "articulate their respective reasoning(s) of denial." (Id. at 2). The record belies any claim that Davila was not given a full and fair opportunity to litigate his suppression motion.
Following Stone v. Powell, the Second Circuit has held that federal habeas review of Fourth Amendment claims is available only in "one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir 1977) (en banc)) New York's procedures for raising Fourth Amendment claims, see N Y Crim. Proc. L. § 710.10 et seq., have been upheld as facially adequate,Capellan, 975 F.2d at 70 n. 1; Gates, 568 F.2d at 837 n. 4. Regarding the "unconscionable breakdown" exception, the Second Circuit has quoted with approval Professor Bator's statement that collateral review by a federal court is appropriate "if the process furnished was `claimed to be meaningless [because] the totality of state procedures allegedly did not provide rational conditions for inquiry into federal-law . . . questions.'" Capellan, 975 F.2d at 70 (quoting Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 456-57 (1963)).
No such breakdown of the process occurred here. Not only did state law provide Davila an opportunity to raise his Fourth Amendment claims, but he also took full advantage of that opportunity. Davila filed a pre-trial suppression motion presenting his claim that certain evidence in the case was the fruit of an illegal arrest, and the trial court held an evidentiary hearing, at which the arresting officers testified at length about the circumstances of the arrest (See, e.g., H. Tr. 269-76, 378-83), Davila's attorney argued that petitioner had been arrested without probable cause (H. Tr. at 423-30), and the prosecutor responded (H. Tr. at 430-34). The next day, the trial judge ruled on the motion, concluding on the record that "the arresting officer . . . had probable cause to arrest these defendants." (H. Tr. at 468.)
Contrary to Davila's claim, there was thus no need for the Appellate Division to remand for a hearing; a full evidentiary hearing had been held. Nor does the fact that the trial judge failed to develop his reasoning at greater length in a written opinion constitute a failure of process. As the Second Circuit has expressly held, a state court's failure to make detailed findings or fully articulate its reasoning "does not mean that the [court] failed to conduct a reasoned method of inquiry into relevant questions of fact and law." Capellan, 975 F.2d at 71 (internal quotation marks and citations omitted); see also Sellan v. Kuhlman, No. 99-2632, 2001 WL 909323, at *4-8 (2d Cir. Aug. 14, 2001) (holding that 28 U.S.C. § 2254 (d)(1) does not require a state court to explain its reasoning when adjudicating federal constitutional issues). The point was litigated, both facts and law were presented to the court, and the court ruled. Nothing more is required.
The judge stated that he expected to "prepar[e] written findings of fact and conclusions of law." (H. Tr. 467A.) Apparently, he never did.
The same is true of the Appellate Division's review of the point. Petitioner was afforded, and took, the opportunity to argue the Fourth Amendment point in approximately 30 pages of briefing (Gianfrancesco Aff. Ex. 1 at 12-32, Ex. 2 at 1-8), to which the prosecution responded at length (Id. Ex. 3 at 26-38). While the court's opinion dealt explicitly with another of Davila's contentions, it concluded the opinion by noting that "[w]e have examined the remaining contentions of the defendant and find them to be without merit." Davilla, 249 A.D.2d 179 at 181. 672 N.Y.S.2d at 109.
The court's ruling, moreover, was plainly correct in any event. Following the shooting, two pairs of police officers went to the scene, responding to a radio report of shots fired at 194th Street and Briggs Avenue. (See, e.g., H. Tr. 270-71.) No one was at the scene, though the physical evidence of the shootings remained, and as one pair of officers secured the crime scene, they were advised by radio of a 911 call reporting that persons involved with the shooting were leaving a building nearby. Observing three men leaving just that location, one of whom, like the suspect described in an earlier 911 call, was an Hispanic man in a beige jacket, the officers attempted to follow, and radioed to the other officers, then en route to a nearby hospital to locate the victims, to look for a small black or blue vehicle. (H. Tr. 274, 380-82.) The second team spotted such a vehicle about five or six blocks from the scene, which they observed run a red light, and, which, as they pursued it in their marked patrol car, began to speed at 50 to 60 miles per hour in a 30-mph zone. (H. Tr. 270-71.) The officers overtook the vehicle, stopped and frisked the occupants, and detained them. Within a few minutes, the other officers arrived and identified the men in the car as those they had seen entering the building, and within about a half-hour, victims of the shooting were brought to the scene and identified them as the shooters. (H. Tr. 276-77.)
The officers who detained petitioner clearly had at least a reasonable suspicion to justify a brief detention for further investigation: close to the scene of the shooting, they had observed, at a time when few cars could be expected to be on the street, a car matching the admittedly vague description broadcast by their fellow-officers as being operated by men who had been observed very near the crime scene and reported by an anonymous caller to be involved, and the driver, apparently on observing the police car, proceeded to flee. Cf. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). Moreover, the officers clearly had grounds to stop the car for traffic violations; that their actual purpose was to investigate the homicide (Tr. 571-72) is of no moment. See Whren v. United States, 517 U.S. 806, 813 (1996). The decision to detain the men for a short time until witnesses could be brought to the scene was entirely reasonable, and their arrest after the victims had identified the suspects was supported by ample probable cause. It is thus entirely unsurprising that the state trial and appellate courts disposed of petitioner's motion summarily.
II. Right to be Present at Trial
Second, petitioner argues that his right to be present at trial was violated when the trial court, during the testimony of one of the victim-witnesses, held an off-the-record sidebar with counsel, and then an off-the-record colloquy with the witness. (Tr. 181.) On appeal, Davila made the same argument, but the Appellate Division rejected it, holding that "the failure by the defendant to develop the factual record precludes review of the claimed error." Davilla, 249 A.D.2d at 180, 672 N.Y.S.2d at 108. As the court noted,
While defense counsel noted, for the record, the fact that the conversation took place, he made absolutely no attempt to inquire as to the nature of the conversation between the court and the witness. Counsel also did not bother to make a record as to the content of the just-concluded sidebar conference with the attorneys. Defendant's claim, therefore, is based purely on speculation as to the conversation and, since it was his burden to preserve the issue for appeal by making a record, he has failed to meet this burden with the present record and we decline to review this claim.Id. 249 A.D.2d at 180-81. 672 N.Y.S.2d at 108.
It is difficult to imagine a clearer instance of a procedural default. "[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam). The Appellate Division squarely held that defendant's claim of denial of his right to be present during the colloquy had been waived by his attorney's failure to make a record of what had occurred. There is thus no ambiguity whatsoever concerning the basis of the state court's ruling. Cf. Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809-11 (2d Cir 2000).
Nor was this a mere inadvertence or failure to raise an issue. Counsel had every opportunity either to ask that the sidebar and colloquy be on the record, or to ask the court to make a summary of what had occurred off the record. He did indeed make the record that a colloquy had occurred, but pursued the matter no further, perhaps preferring to imply to the jury that something untoward had occurred rather than to make a record for appeal that might well have revealed the conference to have been of no moment. Moreover, counsel's failure to press the point not only failed to present the issue properly to the trial court, but also, as the Appellate Division ruled, made his claim unreviewable on appeal and in this Court as well, since there simply is no record of what had occurred.
There is no basis for conducting an evidentiary hearing in an effort to reconstruct the events. As the Appellate Division ruled, under state law it was defendant's burden to make a record, and his failure to do so precludes appeal. Davilla, 249 A.D.2d at 180-81, 672 N.Y.S.2d at 108.
Petitioner makes no claim here, nor did he argue in the Appellate Division (where he was represented by new counsel) that trial counsel's choice constituted ineffective assistance of counsel. Nor does he make any other effort to show cause for his procedural default, nor to explain how he might have been prejudiced by counsel's failure. See Wainwright v. Sykes, 433 U.S. 72, 86-91 (1977). Davila's (plausible, but unsubstantiated) speculation that the conversation with the witness related to the witness's immediately subsequent statement that he had initially refused to cooperate and only chose to testify because he had been threatened by Davila could not, even if the speculation could be confirmed, disclose any prejudice. The trial court had considered the issue of the admissibility of the threatening comments pre-trial, and the decision to allow testimony about the threats was not error. See, e.g.,United States v. Mickens, 926 F.2d 1323, 1328-29 (2d Cir. 1991) (finding that district court's decision to admit "threat" evidence did not constitute abuse of discretion). There is thus no basis to look behind the Appellate Division's clear holding that the argument had been procedurally defaulted.
III. Speedy Trial
Finally, Davila claims that he was denied a speedy trial. Once again, the issue was specifically held by the state courts to have been defaulted.
Before trial, Davila moved to dismiss for violation of his right to a speedy trial. The issue was briefly discussed at a pretrial conference, but not decided. Less than two weeks later, the case was called for trial, and defense counsel proceeded to trial without further mention of the speedy trial motion. The issue did not surface again until sentencing, where the matter was argued but not decided.
Several months later, after the retirement of the trial judge and the reassignment of the case to a different judge, the court held a hearing on Davila's speedy trial argument, and reviewed transcripts of various pre-trial proceedings. The court sought briefing on whether Davila had abandoned the issue, and ultimately ruled, in a careful opinion, that Davila had indeed abandoned his speedy trial motion. As the court stated:
The minutes of May 3 and 14, 1993, show that the defendant did not pursue the C.P.L. § 30.20 [speedy trial] claim. Instead, the defendant used the motion to force the People to go to trial. At the time, this appeared to be a prudent strategy to follow because the People's witnesses had not been cooperative almost from the beginning of the case and the prosecutor . . . was not in touch with her witnesses. In these circumstances, the defendant might well expect to win a trial whereas his constitutional speedy trial motion could be denied if a court determined, as the People have claimed, that the defendant was responsible [for] the witnesses' reluctance to cooperate.People v. Davilla, Ind. No. 1130/90, slip op. at 3 (Bronx Sup. Ct. Apr. 20, 1996) (Bamberger, J.). On appeal, petitioner did not argue the merits of the speedy trial claim, arguing only that the court had erred in finding the issue abandoned. The Appellate Division affirmed, without express discussion of this argument. which was included in the catchall rejection of claims "without merit" mentioned above.
As with the right-to-presence-at-trial claim, there is no question that the state courts decided this matter on the adequate and independent state ground of procedural default. Such a default, which precludes habeas review, occurs whenever the last "reasoned" opinion on the claim explicitly relies on the procedural bar, and later orders affirming the decision are unexplained. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Here, the presumption in Ylst that the appellate court did not silently ignore the procedural default and decide the case on the merits is even more strongly supported, since the underlying merits of the speedy trial claim were not even presented to the Appellate Division, which was asked only to consider the correctness of the trial court's procedural ruling, and affirmed it.
Once again, petitioner does not attempt to show cause or prejudice. The record does not make clear that the speedy trial claim has merit. When the issue was presented at sentencing, the prosecutor attempted to justify the lengthy delay in bringing the matter to trial by pointing out that the defendant had been tried twice for other crimes between the indictment and trial in this matter, and that further delay had been occasioned by petitioner's change of counsel — both arguments that could justify the delay. The matter, however, was never resolved on the merits, since the state court decided, after full and careful consideration of the record and applying well-established New York law,see People v. Rodriguez, 50 N.Y.2d 553, 429 N.Y.S.2d 631, 407 N.E.2d 475 (1980), that the issue had been abandoned and a procedural bar applied. There is no basis for this Court to review that ruling.
CONCLUSION
For the reasons set out above, the petition for a writ of habeas corpus is denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253 (c)(2); Lucidore v. New York State Division of Parole, 209 F.3d 107, 111-13 (2d Cir.), cert. denied, 531 U.S. 873 (2000).