Opinion
00-CV-7647 (JG)
November 7, 2003
GUY FLUERANT, Woodbourne Correctional Facility, Woodbourne, New York, for Petitioner Pro Se
CHARLES J. HYNES, District Attorney, Tziyonah M. Langsam, Assistant District Attorney, Brooklyn, New York, for Respondent
MEMORANDUM AND ORDER
Guy Fleurant petitions for a writ of habeas corpus, challenging his convictions in state court arising out of a shooting Incident in Brooklyn on July 23, 1993, On November 7, 2003, I held oral argument, in which Fleurant participated by telephone conference. The petition is denied for the reasons set forth below.
During the hearing, Fleurant moved for the appointment of counsel. Because. based on my review of the petition, none of the claims Fleurant has raised have any substance. that motion is denied. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989).
BACKGROUND
The People's evidence at trial established that, on the evening of July 23; 1993, petitioner Guy Fleurant approached Garnett Scott (otherwise known as "Gomer") and began a conversation, after which Fleurant's friend, Serge Paul, joined them. Next, both Fleurant and Paul drew their guns. Fleurant grabbed Scott and thrust a gun In his side, After Scott broke free, Fleurant fatally shot Scott several times. Paul, too, had fired at Scott, as well as into a crowd of people in the vicinity.
Paul pled guilty to criminal possession of a weapon in the second degree and agreed to testify at Fleurant's trial. On March 7, 1995, Fleurant was convicted by a jury of murder in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in die first degree. He was sentenced to concurrent prison terms of from fifteen years to life, five to fifteen years, and two and one-half to seven years, respectively.
On March 29, 1996, Fleurant, through counsel, filed a motion in the Supreme Court to vacate his judgment of conviction pursuant to section 440.10 of the New York Criminal Procedure Law ("CPL"), He claimed that the prosecution committed a Rosario/Brady violation in failing to timely turn over to defense counsel a transcript of Paul'sHuntley/Wade hearing. During this hearing, Detective Mischel testified that Tracy Travis (a prosecution witness) had originally identified Paul as one of the shooters at the scene of the shooting. In this connection, Fleurant also asserted that defense counsel was ineffective for neglecting to recall Travis (who had already testified) after the prosecution finally turned over the hearing minutes.
Pursuant to People v. Rosario, 9 N.Y.2d 286 (1961), the state must provide a criminal defendant with the pretrial statements of any witness who will be called to testify on behalf of the prosecution. 9 N.Y.2d at 289-90. Brady v. Maryland, 373 U.S. 83 (1963), provides that the prosecution has a continuing duty to disclose evidence known to them which is favorable to defendant and is material to the issue of guilt. 373 U.S. at 87-88.
At a Huntley hearing the judge determines the admissibility of a confession before it is heard by a jury. People v. Huntley, 15 N.Y.2d 72, 78 (1965), At a Wade hearing the judge considers whether line-up identification testimony or evidence is admissible at trial United States v. Wade, 388 U.S. 218, 241-242 (1967).
On November 21, 1996, the state Supreme Court denied Fleurant's motion to vacate his judgment of conviction. It held that there was noRosario violation because defense counsel had received the transcript before the close of the People's case, when it was still usable, and indeed defense counsel had a reasonable opportunity to review the transcript during an overnight recess. The court stressed the fact that defense counsel could have moved to recall Travis, but chose not to do so. With respect to the purported Brady violation, the court held that Fleurant failed to show that the outcome would have been different. Last, the court concluded that defense counsel was not ineffective because counsel may have reasonably determined that recalling either Travis or Detective Mischel would not be worthwhile because there was little, if any impeachment value to be gained. The court also explained that defense counsel mounted a vigorous defense. On May 1, 1997, the Appellate Division denied Fleurant's application for leave to appeal.
On November 6, 1998, Fleurant appealed his judgment of conviction to the Appellate Division, Appellate counsel filed a brief raising the two claims discussed above, as well as the following claims: (1) it was reversible error for the court to permit the People to impeach their witness, Paul, during summation, (2) the court erred in refusing to charge lesser degrees of homicide, (3) the court unfairly prejudiced Fleurant by restricting defense counsel's cross-examination of the medical examiner and of Paul, (4) the late disclosure of Rosario material relating to Fleurant'sMapp/Huntley hearing required that Fleurant receive a de novo hearing on his suppression motion, (5) it was improper for the People to secure the testimony of Paul in exchange for a reduced sentence, and (6) the trial judge erred in replacing an ill juror. The Appellate Division rejected these challenges and affirmed Fleurant's conviction on November 15, 1999. People v. Fleurant, 698 N.Y.S.2d 155 (2d Dep't 1999). It held that Fleurant failed to preserve for appellate review his argument that he did not timely receive certain Rosario material. Id. It went on to reason that, in any event, because the prosecution turned over the material in sufficient time for defense counsel to make good use of it, Fleurant was not substantially prejudiced by the delay. Id. The court denied Fleurant's remaining contentions as meritless. Id. On January 31, 2000, the New York Court of Appeals denied Fleurant's leave to appeal his conviction. People v. Fleurant, 94 N.Y.2d 880 (2000).
On December 26, 2000, Fleurant filed a pro se petition for a writ of habeas corpus in this Court, on the following grounds:
(a) that the prosecution failed to disclose Rosario/Brady material until after the defense's witnesses had testified and were cross-examined;
(b) it was reversible error for the court to permit the prosecution to impeach their witness, Paul, during summation;
(c) the court erred in refusing to charge lesser degrees of homicide;
(d) the defense was unfairly prejudiced by the court's restriction of cross-examination, and
(e) trial counsel was ineffective for his failure to utilize the belatedly turned-over Rosario material.
On December 13, 2001, Fleurant, by letter, sought to amend the petition to add a claim for ineffective assistance of appellate counsel. He had recently exhausted this new claim through a motion for a writ of error coram nobis, See People v. Fleurant, 732 N.Y.S.2d 360 (2d Dep't 2001) (denying the writ on the merits). By order dated January 8, 2002, this Court ordered Fleurant to submit papers explaining how his proposed amendment complies with Federal Rule of Civil Procedure 15(c), and ordered the respondent to file papers addressing both the procedural aspect and the merits of this additional claim.
Fleurant filed his petition for a writ of error coram nobis with the Appellate Division on August 23, 2001.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, If "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts,"Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003)).
Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." GilChrist, 260 F.3d at 93 (citing Williams. 529 U.S. at 411); see also Yarborough v. Gentry, 72 U.S.L.W. 3278, at *7 (U.S. Oct. 20, 2003) (No. 02-1597) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same), Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Id. (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether It has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman:
[f]or the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits" and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.Sellan y. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
B. Fleurant's Claims
1. The Rosario/Brady Material Claim
Fleurant asserts in his petition that he is entitled to the writ because the prosecution failed to turn over the minutes from Paul'sHuntley/Wade hearing, in which Detective Mischel testified as to what Travis told him about the shooting incident. Respondent contends that Fleurant is procedurally barred from raising this claim here because the state court's decision rested on an adequate and independent state procedural ground and that, in any event, the prosecution's delay in turning over such materials did not deprive Fleurant of a fair trial (Resp't Opp. Pet. at 1-3.) I agree with respondent.
Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261 (1992); Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review. Coleman v. Thompson, 501 U.S. 722, 750 (1991) (noting the State's Interest in "channeling the resolution of claims to the most appropriate forum, in finality, and having the opportunity to correct [their] own errors");see also Lee; v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").
If a state court holding contains a plain statement that a claim is procedurally barred, then the federal habeas court may not review it, even if the state also rejected the claim on the merits in the alternative. See Harris, 489 U.S. at 264 ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision.) Where a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved," Glenn v, Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996).
A defaulted claim will be considered by the court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750; Teague v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing "that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable" Amadeo v. Zant, 486 U.S. 214, 222 (1988) (internal quotation and citation omitted). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage." Flores v. Keane, 211 F. Supp.2d 426, 434 (S.D.N.Y. 2001) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)), If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. See McCleskey v. Zant 499 U.S. 467, 494 (1991). To succeed on such basis it is necessary for petitioner to make a colorable showing of actual innocence,McCleskey, 499 U.S. at 495.
As noted earlier, the Appellate Division held that Fleurant failed to preserve this claim and that in any event, there was no merit to it.See Fleurant, 698 N.Y.S.2d 155 ("The defendant failed to preserve for appellate review his argument that he did not timely receive certain alleged Rosario material. . . . In any event, he received the alleged Rosario material in sufficient time to make meaningful use of it, and was not substantially prejudiced by the delay.") (citations omitted). Here, Fleurant has shown neither cause for the default nor prejudice flowing therefrom, and no miscarriage of justice will occur if the claim is barred.
Defense counsel failed to preserve this claim because at trial, when he received the materials in question, he failed to lodge any objection, See N.Y. Crim. Proc. Law § 470.05(2); see also People v. Rogelio, 79 N.Y.2d 843, 844 (1992).
On the merits, Fleurant's claim is similarly unsuccessful. Putting aside the fact that a Rosario claim does not present a federal question reviewable by a habeas court, gee Morrison v. McClellan, 903 F. Supp. 428, 429 (E.D.N.Y. 1995) ("Any error under Rosario at trial would be a violation of state law, and, thus, not subject to review under a petition for a writ of habeas corpus"), defense counsel received the purported Rosario/Brady materials in sufficient time to use them at trial. Defense counsel could have recalled Travis and/or Detective Mischel and made use of any alleged inconsistencies in their prior statements.
Fleurant's Brady claim does not suffer from this deficiency as there is a constitutional obligation to disclose exculpatory to a criminal defendant, Brady, 373 U.S. at 86.
In any event, despite Fleurant's protests to the contrary, there appears to be no inconsistency between Travis's trial testimony that both Fleurant and Paul had shot at Scott (Trial Tr. at 171-73), and Detective Mischel's testimony at Paul's hearing that Travis had identified Paul as the shooter or one of the shooters of Scott (Jan. 3, 1995 Hr'g Tr. at 18-19); People v. Fleurant, Indict No. 9126-93, at 5 (Nov. 21, 1996) ("At th[e] hearing, Detective Mischel testified that at the scene of the shooting, Tracy Travis said, `That's one of the people that shot Gomer,' referring to co-defendant Paul. Detective Mischel also testified that Travis subsequently identified co-defendant Paul as the person who shot [Scott].")
Fleurant argues that the testimony at Paul'sHuntley/Wade hearing is contrary to the testimony at trial, (See Pet'r Traverse at 4) ("The pretrial transcripts in question revealed that the witness Travis had told Detective Mischel that Paul-a cooperating witness was the one who actually shot Scott not petitioner. Second, the transcripts exposed a major contradiction in this witnesses Travis and Paul testimony, whom both lied telling jury that petitioner was the shooter when this evidence in question proved Paul was the actual shooter as stated by Travis to Detective Mischel.") Fleurant maintains that Paul, and not he, was the actual shooter. (Id. at 5-6).
2. The Ineffective Assistance of Trial Counsel Claim
Based on the purported Rosario/Brady violation discussed above, Fleurant asserts that he was deprived of his Sixth Amendment right to effective assistance of counsel in the trial court because his trial counsel neglected to use such material (once he received it) to Fleurant's benefit.
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient, This requires that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance fell below an "objective standard of reasonableness," Strickland, 466 U.S. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Id. at 694. In assessing the reasonableness of counsel's performance, "[j]udicial scrutiny of counsel's performance must be highly deferential," and the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstance, the challenged action `might be considered sound trial strategy.'" Id at 689 (citation omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 19981); see also Yarborough v. Gentry, 72 U.S.L.W. 3278, at *7 (U.S. Oct. 20, 2003) (No. 02-1597) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'"Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms'" Id. at 2535 (quotingStrickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" Id. at 694, "A reasonable probability is a probability sufficient to undermine confidence in the outcome," Id., This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight.See Lockhart v. Fretwell 506 U.S. 364, 372 (1993).
As noted earlier, the Supreme Court, Kings County concluded that defense counsel was not ineffective because he may have reasonably determined that recalling Travis and/or Detective Mischel to explore any possible inconsistencies would not be worthwhile. I agree, There was no real inconsistency between Detective Mischel's testimony at Paul'sHuntley/Wade hearing and either his or Travis's testimony at trial, Furthermore, as the state court noted, defense counsel mounted a vigorous defense, He made pre-trial motions, obtained aHuntley/Wade hearing, ably confronted the People's witnesses, delivered cogent opening and closing statements and highlighted the frailties of the People's case. In short, the state court's rejection of Fleurant's claim on the merits cannot reasonably be characterized as an unreasonable application of the Strickland standard.
3. The Impeachment/Improper Summation Claim
Fleurant claims that his due process right to a fair trial was violated by the prosecutor's summation, in which he Impeached Paul, a prosecution witness. In particular, he challenges the prosecution telling the jury to disregard most of Paul's testimony, but yet to believe the part that was favorable to the People, (See Pet'r Traverse at 10) (the prosecutor's remarks "misdirect[ed] the jury. . . . The suggestions by the prosecutor to the jury to disregard part of Paul's testimony, yet emphasizing that portion which do benefit his case against petitioner with his use of incriminating letter [from Fleurant to Paul in which Fleurant admitted to his participation in the crime] during summation in order to aid in bolstering Paul's testimony was improper and cannot be justified as an invited response.")
The challenged portions of the summation are as follows:
PROSECUTION: You heard [defense counsel] berate Serge Paul at length, I'm going to tell you right now, ladies and gentlemen, Serge Paul deserves to be sitting right next to Mr. Fleurant. You can tell by the way I questioned him, by my tone, by my demeanor, Serge Paul only gives you two things, this letter and the motive. Serge Paul, the rest of his testimony is complete garbage.
DEFENSE: Objection, He's impeaching his own witness.
THE COURT: Overruled.
PROSECUTION: Ladies and gentlemen, Serge Paul pled out on a cooperation agreement and you heard it was with a different D.A., it wasn't me. We just met three weeks ago —
DEFENSE: Objection.
THE COURT: Sustained.
PROSECUTION: You heard him testify to the terms of his cooperation agreement and when he signed that cooperation agreement, in November of `94, not three weeks ago when he met me. Serge Paul was only brought before you for those two things and we will go through why that's important. The rest of Serge Paul's testimony you can do whatever you want with it.
DEFENSE: Objection.
THE COURT: Overruled.
(Pet'r Traverse at 9) (quoting Trial Tr. at 603-04,)
PROSECUTION: What else to do we know about Serge Paul? Serge Paul, ladies and gentlemen, tells you a bunch of lies with respect to what happened.
DEFENSE: Objection, Judge.
THE COURT; Overruled.
PROSECUTION: Serge Paul is still this man's buddy, is his friend —
DEFENSE: Objection, This is nothing in evidence.
THE COURT: Sustained.
(Id.) (quoting Trial Tr. at 617.)
PROSECUTION: This letter, ladies and gentlemen, the only thing besides the motive that I think you could believe out of Serge Paul's mouth, Serge Paul, [defense counsel] said on summation, I'm going to write a parole letter or some recommendation —
DEFENSE: Objection. That was an objection sustained by the Court.
THE COURT: That was sustained. . . . The jury is directed to disregard that.
(Id.) (quoting Trial Tr. at 623.)
PROSECUTION: I suggest to you, ladies and gentlemen, this defendant saw Corner Scott, thought maybe he was the one that robbed his chain, grabbed him, put the gun to his side, His buddy Serge Paul comes up with the gun, tells everybody to back up and they shoot him. This defendant shoots him, Serge Paul's attempts to shoot. Nobody else gets killed, ladies and gentlemen, not to look for nobody else. That's the motive right there, there corroborates Serge Paul's testimony, not to look for nobody else.
(Id.) (quoting Trial Tr. at 631.)
PROSECUTION: I can tell you one thing, ladies and gentlemen, regardless of what happened in this case, Serge Paul is not going anywhere, He's in jail. His testimony here, what he says about this defendant doesn't buy him any less time. He doesn't get out in two years, he doesn't get out in three years. He might not get out for thirteen years. He doesn't get any payment. He doesn't get any pats on the back from me. He gets no parole recommendation. He gets nothing from me. Think about that when you are assessing what you believe.
(Id.) (quoting Trial Tr. at 633.)
Respondent contends that the prosecutor's comments were "fair, appropriate, and responsive to defense counsel's summation," but that even if they were not so, Fleurant was not substantially prejudiced and received a fair trial. (Resp't Opp. Pet. at 8-9.)
Habeas relief based on a claim of prosecutorial misconduct is unavailable unless the misconduct "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). A petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict."Bentley v. Scully, 41 F.3d 818. 824 (2d Cir. 19941 cert. denied, 516 U.S. 1152 (1996). In making this determination, the habeas court should consider the severity of the prosecutor's conduct; the measures, if any, that the trial court took to remedy any prejudice; and the certainty of conviction absent the prosecutor's remarks. See Bentley, 41 F.3d at 824.
Fleurant's claim fails for several reasons. First, it does not raise a federal claim. Rather, as the argument was made in the state courts, it relied on principles of New York law that narrowly restrict a party's ability to impeach its own witness. (See Def's Appellate Br. at 21-24.) Those principles have no federal analogue. Indeed, as set forth in Federal Rule of Evidence 607, "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Fed.R.Evid. 607. Thus, Fleurant has failed to raise a claim that is cognizable on habeas review.
Second, the challenged portions of the summation are not objectionable. In light of the fact that defense counsel told the jury in summation that Paul testified falsely that, inter alia, Fleurant shot Scott in revenge for being robbed (Trial Tr. at 477, 478, 505-06), the prosecutor's contention that Paul was lying in another portion of his testimony constituted permissible argument. Moreover, the prosecutor's comments were supported by the trial testimony. Paul testified that the person Fleurant was talking to (Scott) pulled a gun on Fleurant and put him in a headlock, thus creating an issue as to whether Fleurant shot Scott in self-defense. (Id. at 383.) Yet, no other eyewitness testified to that account, and one witness explicitly stated that he did not see Scott with a gun. during the incident. (Id. at 312, 324) (Stakeman).
As stated above, the prosecutor explained to the jury that he only called Paul as a witness to move defendant's letter into evidence.
Finally, even assuming that the prosecutor's summation was improper, the combination of the trial court's curative instructions to the jurors and the overwhelming evidence of Fleurant's guilt rendered any error harmless. At the end of summation, the court instructed the jurors that; "[t]he opening statements and the summations of the lawyers arc not in evidence" (Id. at 652), and that the jurors "should determine which of the witnesses, what portion of their testimony you're willing to accept, and what weight you will give to such testimony, No one in this case, including . . . the lawyers, can do better than you in judging the testimony and deciding the issues" (Id. at 658). The evidence at trial of Fleurant's guilt was strong. Three eyewitness testified that Fleurant pointed and fired the gun at Scott. (Id. at 170-72, 208) (Travis); (id. at 288) (Coplon); (id. at 311, 323, 326) (Stakeman). There was also the letter that Fleurant wrote to Paul, admitting that he shot Paul. (W. at 389-91,) Thus, I am convinced that Fleurant received a fair trial, and is not entitled to habeas relief on this ground.
4. The Jury Charge Claim
Fleurant contends that he is entitled to habeas relief because the court charged the jury as to second degree murder, but failed to charge the lesser included offenses of first and second degree manslaughter. This claim is not cognizable here because it does not involve a federal constitutional right. See Smith v. Walsh, 02 Civ. 5755, 2003 WL 2 J 649485, at *7 (S.D.N.Y, July 14, 2003) (citing Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)), Neither the Supreme Court nor the Second Circuit has determined that a court's failure to instruct a jury on lesser included offenses in a non-capital case is a constitutional issue that may be addressed in a habeas petition. See Smith, 2003 WL 21649485, at *7 (citing Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir. 1995)); see also Jones v. Hoffman, 86 F.3d 46, 47 (2d Cir. 1996) (per curiam). Thus, the petitioner is not entitled to habeas relief on this claim.
5. The Cross-Examination Claim
Fleurant alleges that he was denied a fair trial because defense counsel was precluded from asking the medical examiner (who examined Scott after he had died) about Scott's level of intoxication from drugs and alcohol, in a related argument, he challenges the court's refusal to allow the defense to use the medical examiner's testimony about Scott's intoxication level to undermine the credibility of two of the prosecution's witnesses, William McClaurin and Tracy Travis. (Attach. to Pet., Jan. 18, 2000 Ltr. seeking leave to appeal to the Court of Appeals.) In that regard, Fleurant claims that although McClaurin and Travis admitted to the consumption of alcohol that night, their testimony that they drank only "insignificant amounts," as well as their statements that they did not do drugs, must be false because Scott, who they drank with that day, had a high blood-alcohol level and had consumed drugs. (Id.) Fleurant urges that these lapses were highly prejudicial because "[e]vidence that the decedent (Scott) was impaired by drugs and alcohol was consistent with the defense of justification" and that the intoxication level of the witnesses "was highly probative" of their reliability, (Id.); (see also Pet'r Traverse at 14-15.)
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial.United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it. In short it must have been crucial, critical, highly significant," Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quotations omitted). This test applies post-AEDPA. See Wade v. Mantello, 333 F.3d 51, 59 (2d Cir. 2003).
Although Fleurant cites the correct standard for considering purported evidentiary errors on habeas review (see Pet'r Traverse at 12-13), he errs in its application, Even assuming that the court did err by not allowing defense counsel to elicit testimony from the medical examiner as to Scott's intoxication, it is not clear how such a lapse denied Fleurant a fundamentally fair trial Specifically, it is unclear how the fact that Scott may have been intoxicated would have supported Fleurant's justification defense, In any event, defense counsel was allowed to question Travis and McClaurin as to Scott's drug and/or alcohol consumption on the night in question;
DEFENSE: Did you see Garnett Scott smoke pot that night?
McCLAURIN: Never smoke reefer.
DEFENSE: If I were to tell you an autopsy said he had cannabis in his bloodstream —
PROSECUTION: Objection.
THE COURT: Overruled.
DEFENSE: Would that change your mind?
McCLAURIN: No.
(Trial Tr. at 67-68,)
As to the question of the eyewitnesses' credibility — in light of their alleged drug and alcohol consumption — the record reflects that the court allowed defense counsel, on cross-examination, to question both McClaurin and Travis as to whether they had been under the influence of alcohol or marijuana. (See id. at 65-68, 192-04.) In his brief to the Appellate Division, defense counsel argued that he should have been able to introduce (through the medical examiner) Scott's high blood-alcohol level as well as his drug consumption. Defense counsel wished to contradict Travis's testimony that he was not intoxicated by proving that someone he was with was intoxicated. (See Def's Appellate Br. at 28), It was well within the trial court's discretion to preclude that evidence, In any event, the court's evidentiary ruling did not prevent defense counsel from arguing that Travis's and McClaurin's perceptions were impaired that night due to their admitted drinking of alcohol. Thus, there was no constitutional deprivation.
6. The Motion to Amend (to Raise Ineffective Assistance of Appellate Counsel Claim)
To the extent that Fleurant may be asserting that the trial court erroneously precluded defense counsel from asking Paul what sentence he would have faced had he not received a cooperation agreement from the People (Attach. to Pet., Jan. 18, 2000 Ltr.), he is also in error. This evidentiary ruling cannot be construed as depriving Fleurant of a fair trial. The fact that the jury knew Fleurant "made a deal" was enough to apprise the jury of the fact that Paul may have had a motive to lie.
Fleurant seeks to amend his petition to add a claim of ineffective assistance of appellate counsel. He argues that appellate counsel erred in not presenting the following claims on appeal; (1) that trial counsel was ineffective because he presented two different trial defenses-one of actual innocence and one of justification; and (2) that trial counsel was unprepared to handle the various issues regarding Paul, Fleurant's accomplice.
These issues, regarding Paul, are: (1) that in summation, trial counsel stated that he could not remember everything that Paul had testified to; (2) that trial counsel should have objected to the letter written by Fleurant to Paul, and called a handwriting expert to testify as to its authenticity, and (3) that In summation, defense counsel failed to point out to the jury that Haul had a motive to lie. (See Pet. Writ of Error Coram Nobis at 9-12.)
As Fleurant's motion to amend is untimely, in order for him to proceed on this claim he must meet the requisites of Federal Rule of Civil Procedure 15(c). See Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 816 (2d Cir. 2000). Rule 15(c) provides, in pertinent part, that "[a]n amendment of a pleading relates back to the date of the original pleading when the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading," Fed.R.Civ.P. 15(c)(2). For simplification, I assume that Fleurant has satisfied these requisites and proceed to the merits of his claim, geeFama, 235 F.3d at 816.
The Court has already determined that Fleurant's claim is barred by the statute of limitations, unless he can meet the Rule 15(c) standard. See Fleurant v. Duncan, No, CV-00-7647 (Jan. 8, 2001) (Order), As the Court explained, the New York State Court of Appeals denied petitioner's application for leave to appeal on January 31, 2000. See People v. Fleurant, 94 N.Y.2d 880 (2000). Petitioner's conviction thus became final on April 30, 2000.See 28 U.S.C. § 2244(d). Yet, Fleurant did not file his motion to amend until August 13, 2001, when he informed the Court by letter of his intention to include his new claim and to exhaust the claim in state court. He filed his motion for a writ of error coram nobis in state court on August 23, 2001. Because Fleurant sought to amend his petition approximately one year and four months after his conviction became final, his filing is untimely. See id.
Without resolving the issue, I note that, contrary to respondent's arguments (Resp't Opp. Amend. Pet. at 3), Fleurant's claim, at least broadly construed, appears to arise out of the claims in his original pleading. In his original petition, he raised an ineffective assistance of trial counsel claim based on the Rosario issue. Now, his claims for ineffective assistance of appellate counsel are based on appellate counsel's failure to raise trial counsel's ineffectiveness, the same general claim as before, albeit not on the same ground.
Fleurant's claim is meritless. As I explained above, trial counsel's performance was not ineffective; quite to the contrary, defense counsel mounted a vigorous defense. (See supra Part B.2.) That being the case, it certainly was not unreasonable for appellate counsel to choose not to raise other ineffective assistance claims, and in any event, this purported error would not have changed the outcome of the proceedings against Fleurant in light of the substantial evidence against him. (See supra Part B.3.) Furthermore, as respondent pointed out, appellate counsel raised eight non-frivolous legal issues on appeal, including an ineffective assistance of counsel ground. It is well-established that "[c]ounsel is not obliged to advance every nonfrivolous argument that could be made," Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (citing Evitts v. Lucy, 469 U.S. 387, 394 (1985); Jones v. Barnes, 463 U.S. 745, 754 (1983)). Rather, counsel is expected to focus on the stronger arguments.Jones, 463 U.S. at 751-52, Last, the particular claims that Fleurant raises now do not meet the Strickland standard. The New York courts have allowed defense counsel to present both an innocence and a justification defense. See People v. Steele, 26 N.Y.2d 526, 528-29 (1970); see also People v. Butts, 536 N.Y.S.2d 730, 732 (1988) ("It is established New York case law that a defendant's entitlement to a charge on a claimed defense is not defeated solely by reason of its inconsistency with some other defense raised or even with the defendant's outright denial that he was involved in the crime,") (citations omitted)). As to the various issues with trial counsel's preparedness to deal with Paul, none of them warrants habeas relief. Thus, this claim, too, fails to entitle Fleurant to habeas relief
Defense counsel's off-hand statement in summation that "I'm not that all prepared with Serge Paul" (Trial Tr. at 478) was innocuous; the transcript reveals that counsel was prepared and that the meaning of this comment was just that counsel could not perfectly remember all of Paul's testimony. Also, defense counsel did point out to the jury, in summation, that Paul had a motive to the, (See id. at 480.) Last, there is no reason to believe that the letter from Fleurant to Paul was not authentic or otherwise inadmissible. Paul (a long-time friend of Fleurant) testified that he was familiar with Fleurant's handwriting and that the letter was in Fleurant's handwriting. (Trial Tr. at 331-32, 388.) Further, under C.P.L. § 240.45(a), the prosecution had no obligation to turn over this letter to defense counsel prior to Paul's testimony, because the letter was an admission of the defendant himself.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Fleurant has railed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.