Opinion
97 Civ. 2989 (MGC)
May 9, 2002
Petitioner Pro Se, ADALBERTO FERNANDEZ, 88-T-1851, Stormville, New York.
Attorney for Respondent, ROBERT M. MORGENTHAU, District Attorney of New York County, New York, New York. By: Donna Krone, Assistant District Attorney.
OPINION
Adalberto Fernandez, a person in custody pursuant to the judgment of a state court, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition is denied.
BACKGROUND
On October 13, 1987, petitioner and Jorge Gonzalez were arrested in connection with their alleged participation in the murders of Victor Gomez and Victor Duran on July 9, 1987. On October 20, 1987, a grand jury indicted petitioner, Gonzalez and a third co-defendant, Leonardo Larrea, on two counts each of second degree murder. On August 22, 1988, Justice Frederick Berman granted the government's motion to dismiss the indictment against Gonzalez.
Petitioner proceeded to a jury trial before Justice Berman on October 18, 1998. At trial, the government's principal witness was Miguel Tejada, the only government witness who identified petitioner as one of the shooters. On November 2, 1988, the jury convicted petitioner of two counts of second-degree murder. On November 30, Justice Berman sentenced him to two consecutive prison terms of fifteen years to life. On October 13, 1992, the Appellate Division, First Department, unanimously affirmed his conviction. People v. Fernandez, 588 N.Y.S.2d 1014 (1st Dep't 1992). Petitioner sought leave to appeal to the New York Court of Appeals. On January 19, 1993, the New York Court of Appeals denied petitioner's application. People v. Fernandez, 81 N.Y.2d 788 (1993).
Petitioner then filed a motion to set aside his conviction pursuant to New York Criminal Procedure Law § 440.10 on the basis of "newly discovered evidence." Justice Berman denied this motion. The Appellate Division, First Department, denied petitioner's request for leave to appeal from Justice Berman's denial. People v. Fernandez, 1993 N.Y. App. Div. LEXIS 10199 (1st Dep't October 28, 1993).
In this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner asserts five grounds for relief: (1) that his conviction was "against the weight of the evidence" because the testimony of Miguel Tejada, the government's main witness, was not credible; (2) the trial judge violated the Sixth and Fourteenth Amendments by limiting petitioner's cross-examination of Tejada; (3) the state court permitted Tejada to identify Gonzalez and Larrea through "mug shots" and then allowed him to identify petitioner through a Polaroid photograph, thus misleading the jury into believing that the photograph of petitioner was also a mug shot; (4) various statements made by the prosecutor during summation violated petitioner's "due process right to a fair trial" in violation of the Fourteenth Amendment; and (5) petitioner's sentence was "unduly harsh and excessive."
DISCUSSION
I. Exhaustion
Respondent argues that the petitioner has failed to exhaust his state remedies with respect to four of his five claims. 28 U.S.C. § 2254 states:
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 unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254(b)(1). The exhaustion requirement is satisfied if the federal claim was fairly presented to the highest state court capable of reviewing the claim. Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). Respondent admits that petitioner fairly presented his confrontation claim. However, respondent argues that petitioner has failed to exhaust his state remedies with respect to all of his other claims because he did not raise them in his request for leave to appeal to the New York Court of Appeals.
An examination of his leave application reveals that petitioner only argued his confrontation claim to the New York Court of Appeals. He did not refer to any other claim in his leave application. Instead, petitioner merely stated that the Court of Appeals should grant his leave application "[f]or all of the foregoing reasons stated in appellant's brief." He then stated: "Enclosed are all briefs, and the Appellate Division's decision and order in this case."
In Jordan v. Lefevre, 206 F.3d 196 (2d Cir. 2000), the petitioner fairly presented a single claim in his leave application. However, he made no particularized reference to his other claims, instead referring the Court of Appeals to "the reasons set forth in his Appellate Division briefs." Id. at 198. The Second Circuit held that such a reference is inadequate:
[A]rguing one claim in his letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of exhaustion requirement underlying federal habeas jurisdiction. . . . Counsel may not transfer to the state courts the duty to comb through an applicant's appellate brief to seek and find arguments not expressly pointed out in the application for leave.Id. at 198-99. Thus, Fernandez has failed to exhaust the other claims.
II. Dismissal of Unexhausted Claims Under 28 U.S.C. § 2254(b)(2)
"An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). In Jones v. Senkowski, ___ F.3d ___, 2001 WL 1230800 (2d Cir. October 5, 2001), the Second Circuit held that a district court may dismiss an unexhausted claim on the merits under section 2254(b)(2) if the petitioner has not made a sufficiently substantial showing of the denial of a constitutional right to warrant a certificate of appealability.Jones, at 6. For the following reasons, petitioner has failed to make such a showing on any of his unexhausted claims.
A. Standard For Review of a Habeas Corpus Petition
28 U.S.C. § 2254 states in part:
(d) 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). In Williams v. Taylor, 529 U.S. 362 (2000) the Supreme Court held that a state court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Id. at 405-06. "When a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provision's `unreasonable application' clause." Id. at 409.
B. Claim That Conviction was "Against the Weight of The Evidence"
Petitioner contends that his conviction in state court was "against the weight of the evidence." His sole argument in favor of this claim is that the testimony of Tejada, the government's main witness, was not credible. The jury's assessment of the weight of the evidence and the credibility of the witnesses must be given deference. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); U.S. v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993); U.S. v. Parker, 903 F.2d 91, 97 (2d Cir. 1990). The jury saw and heard Tejada's testimony, and their determination of his credibility is not a ground for granting a petition for habeas corpus.
C. Photographic Evidence
At trial, Tejada identified Gonzalez and Larrea as participants in the shooting through the use of photo arrays. Trial Transcript, at 304. The court admitted the mug shots into evidence. Tejada later identified petitioner through a single, unmarked Polaroid photograph that was not admitted into evidence. Id. at 310. Petitioner argues that the jury was led to believe that the photograph of petitioner was also a mug shot, and that the resulting prejudice deprived him of his right to a fair trial as guaranteed by the Fourteenth Amendment.
An evidentiary ruling by a trial judge does not constitute a basis for issuing a writ of habeas corpus unless the ruling "was an error of constitutional dimension." Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988). The Second Circuit has ruled that the admission of past mug shots of a defendant can be so prejudicial as to deprive him of his due process right to a fair trial. See U.S. v. Harrington, 490 F.2d 487, 491 (2d Cir. 1973). However, petitioner's claim is without merit in light of the fact that the trial judge did not admit the photograph into evidence. Petitioner's argument that the presentation of the photo of the defendant to Tejada led the jury to believe that the photograph was a mug shot is unpersuasive.
D. The Prosecution's Summation
Petitioner also argues that the prosecution's summation denied him a fair trial in violation of the Fourteenth Amendment. Petitioner does not point to any specific parts of the summation in support of this claim. However, his brief to the Appellate Division made the same argument and referred to specific portions of the prosecutions's summation.
Examination of these portions reveals that the prosecution's statements did not rise to the level of a constitutional violation. To be entitled to relief, petitioner must show that the summation "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The summation must have caused "substantial prejudice," as measured by "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (quoting Bentley v. Scully, 41 F.3d 818, 823 (2d Cir. 1994)). Petitioner has not made the required showing.
For example, the prosecution reviewed the testimony of a number of defense witnesses, and noted their remarkable ability to recall the exact time at which they had attended events that occurred weeks ago. Trial Transcript, at 791-96. The prosecution gave as an example the testimony of one defense witness who remembered going to the grocery store on Labor Day, approximately seven weeks before the trial, at 3:10 in the afternoon. The prosecution then argued that the witnesses had fabricated their testimony. Id. at 795-96. Although the prosecutor should never express a personal view, it cannot be said that the thrust of the argument was unfair.
Petitioner also argues that other portions of the prosecution's summation were unduly inflammatory. Trial Transcript, at 761, 787-88 (asking the jury to ignore the defense's "high pitched rhetoric" and "theatrical sense outrage [sic]"). None of these remarks were sufficiently inflammatory to compel any objection from the defense. Furthermore, "[in] undertaking this analysis, [a court] must examine the statements within the context of the entire trial." U.S. v. Thompson, 29 F.3d 62, 66 (2d Cir. 1994). The determination of these issues, and whether curative instructions should be given, rests in the sound discretion of the trial judge. In light of the evidence of guilt produced at trial, petitioner has not made a substantial showing that the prosecution's summation violated his constitutional right to due process.
E. Petitioner's Claim of "Harsh and Excessive" Sentence
Petitioner alleges that the state court erred in imposing consecutive sentences of fifteen years to life. However, "[n]o federal issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Petitioner was convicted of two counts of second degree murder, a class A-I felony under the New York Penal Code. New York Penal Law § 125.25(4). A class A-I felony is punishable by imprisonment for anywhere from fifteen years to life imprisonment, to twenty-five years to life imprisonment. New York Penal Law § 70.00(2)-(3).
Nor does the imposition of consecutive sentences violate federal law or the Constitution. As the Second Circuit has noted, "Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence." U.S. v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988). This case does not involve an "extraordinary set of circumstances" demonstrating that the imposition of consecutive sentences constitutes cruel and unusual punishment. See U.S. v. Golomb, 811 F.2d 787, 791 (2d Cir. 1987).
For the foregoing reasons, petitioner has not made a sufficiently substantial showing of a constitutional violation on any of his unexhausted claims to warrant a certificate of appealability.
IV. Confrontation Claim
Petitioner's only exhausted claim is the claim that he was deprived of the right to confront the witnesses against him in violation of the Sixth Amendment. Petitioner argues that the trial court denied him his constitutional right to confront Tejada, the government's central witness, through a series of evidentiary rulings that limited the scope of his cross-examination.
The Sixth Amendment right "to be confronted with the witnesses against him," U.S. Const. Amend. VI, "has long been read as securing an adequate opportunity to cross-examine adverse witnesses." United States v. Owens, 484 U.S. 554, 557 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1987) Nevertheless, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679.
Petitioner first argues that the court violated his constitutional right to confront Tejada when it precluded defense counsel from asking Tejada whether he had shot at petitioner "at some point in time a few days before the homicides." Trial Transcript, at 349. The court did so after Tejada's lawyer stated, out of the presence of the jury, that Tejada intended to invoke the Fifth Amendment in response to the question. Id. at 350.
Any error by the trial judge was harmless. Even if the judge's ruling deprived petitioner of an opportunity to impeach a witness for bias, it was not a structural error mandating reversal. Van Arsdell, 475 U.S. at 684; see also Henry v. Speckard, 22 F.3d 1209, 1215 (2d Cir. 1994). Moreover, an examination of the record of the trial discloses that preclusion of this one inquiry did not have "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Tejada was the only government witness who identified Fernandez as a shooter. Thus, the strength of the evidence against petitioner depended almost entirely on the jury's assessment of Tejada's credibility and bias. Capable defense counsel recognized this, and cross-examined Tejada at great length. During cross-examination, petitioner elicited from Tejada that he had a relationship with at least one of the victims through a mutual friend and drug dealer, Martine. Trial Transcript, at 360-61. Additionally, petitioner had the opportunity to elicit any information about the alleged shooting from Gonzalez, and elected not to do so.
Furthermore, petitioner attacked Tejada's credibility with his extensive criminal record, his drug use, and admissions that he had lied to the government on previous occasions. Petitioner also elicited the fact that Tejada did not approach the government with information related to the shootings until after he had been arrested on an unrelated robbery charge. Id. at 327-30. To the extent petitioner desired to show Tejada's personal animosity towards petitioner, he was able to do so thoroughly without reference to the alleged shooting. Furthermore, defense counsel was unable to represent to the trial judge that Tejada had shot at petitioner, only that "Tejada fired a shot at [Gonzalez] or my defendant."Id. at 350 (emphasis added). In light of the substantial evidence defendant marshaled in attacking Tejada's credibility and potential bias, the exclusion of the additional evidence did not have a substantial and injurious effect on the jury's verdict.
Petitioner also argues that the court violated his constitutional right of confrontation by precluding him from cross-examining Tejada about his involvement in the death of the drug dealer Sting, apparently an acquaintance of Gonzalez. Id. at 337-342. However, in response to the trial court's request, defense counsel was not able to present any evidence of Tejada's involvement in Sting's death. Id. at 338. Defense counsel was only able to present an allegation that Martine, Tejada's friend, wanted to kill Sting. Id. The court did not commit constitutional error when it precluded cross-examination into Tejada's involvement in Sting's death for lack of a good faith basis.
Finally, petitioner claims that the trial judge committed constitutional error by precluding him from questioning Tejada "as to why he lied [in] accusing Gonzalez as one of the shooters at the Grand Jury proceedings." Petitioner apparently refers to the court's refusal to allow evidence of the government's dismissal of the indictment against Gonzalez. However, the trial judge allowed the jury to hear that Tejada had named Gonzalez as one of the shooters, and that Gonzalez was not currently charged with any crime related to the shootings. Id. at 310-11. The judge only precluded petitioner from introducing the fact that the government had dismissed an indictment against Gonzalez. All of these evidentiary rulings were well within the discretion of the trial judge.
CONCLUSION
For the foregoing reasons, the petition is denied.