Opinion
97 Civ. 3031 (RMB) (JCF).
June 8, 2001
REPORT AND RECOMMENDATION
Corey Ford brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, Bronx County for second degree murder and related charges. He argues that: (1) the court improperly dismissed a juror during the course of the trial; (2) the prosecutor violated his due process rights by referring to a possible motive for the crime during cross-examination of a defense witness; and (3) the prosecution violated the requirements of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961), when it failed to disclose to the defense an audiotape concerning the victim's autopsy. For the following reasons, I recommend that the petition be denied.
Background
On the evening of October 16, 1988, Alberto Sanchez stopped at the corner of Bouck Avenue and Burke Avenue in the Bronx and spoke with a group of men including James McFadden, who was in the process of dealing narcotics. (Tr. 209-10). After Mr. Sanchez left the group and walked along Burke Avenue, he heard a gunshot. (Tr. 210, 251). Immediately thereafter, the petitioner, Corey Ford, ran past him carrying a gun in his waistband. (Tr. 210, 217). Mr. Sanchez knew Mr. Ford from having seen him in the neighborhood on a daily basis for eight or nine months. (Tr. 208). Mr. Sanchez also saw Mr. Ford's younger brother Derrick running in the same direction on the other side of the street. (Tr. 219).
"Tr." refers to the trial transcript.
Mr. Sanchez returned to the corner of Bouck and Burke Avenues and found Mr. McFadden lying in the street. (Tr. 210-11). Mr. McFadden told him that Corey Ford and his brother had tried to rob him and that the petitioner had shot him. (Tr. 210-11). Mr. Sanchez stayed with Mr. McFadden until an ambulance arrived. (Tr. 211).
The victim was taken to Jacobi Hospital where he died from a gunshot wound to the lower right chest that had been fired from close range and perforated his liver, bowel, and kidney. (Tr. 114-15, 178-81). Detective Frank DiChiaro arrived at the hospital where Alberto Sanchez told him that the victim had said that "Corey shot him." (Tr. 114-15, 117, 158-60).
The petitioner was arrested and proceeded to trial before the Honorable Frank Diaz. At the beginning of the second day of trial, a juror advised the court that she recognized a woman who had been in the courtroom the previous day and who was determined to be Mr. Ford's mother. (Tr. 46-49). When questioned, the juror stated that she had seen this woman several times in her neighborhood and might have spoken to her. (Tr. 48, 50). She further testified that she would not be afraid to vote for conviction but that she felt nervous and could no longer be fair and impartial. (Tr. 49, 51-52). Defense counsel argued that the juror had arrived late on that day and was simply trying to avoid jury duty. (Tr. 53-54). Justice Diaz rejected that contention, finding the juror's testimony to be credible. (Tr. 56). Accordingly, he dismissed her from the jury and substituted the first alternate juror. (Tr. 56-58).
During the course of the trial, the defense called Jeremy Williams as a witness to undermine the credibility of Alberto Sanchez's testimony. Mr. Williams testified that he and Mr. McFadden had both sold crack cocaine for Mr. Sanchez. (Tr. 339-40). On cross-examination, he gave the following testimony. Q. Did you every see Corey deal drugs?
A. No.
Q. No?
A. No.
Q. Did you ever see Derrick deal drugs?
A. No.
Q. And in fact —
[THE PROSECUTOR]: Sorry, strike that.
Q. Isn't it a fact Corey, his brother Derrick killed James McFadden because he was on their turf? A. No.
Q. No?
A. No.
Q. Isn't it a fact that Corey Ford and his brother Derrick were mad with James McFadden for dealing the drugs on their turf?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A. No.
Q. No?
A. No.
(Tr. 347-48).
At the conclusion of the trial, the petitioner was convicted of Murder in the Second Degree, N.Y. Penal Law § 125.25(1), Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03, and Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02(4). On December 6, 1990, Justice Diaz sentenced Mr. Ford as a second felony offender to concurrent terms of imprisonment of twenty years to life on the murder charge, five to ten years on the second degree weapons charge, and three and one-half to seven years on the third degree weapons charge.
The petitioner appealed his conviction to the Appellate Division, First Department, arguing that Justice Diaz should not have dismissed the recalcitrant juror and that the prosecutor committed misconduct by cross-examining a defense witness about the petitioner's purported drug dealing. (Petitioner's Appellate Brief ("Pet. App. Brief"), attached as Exh. 1 to Affidavit of Nancy D. Killian dated Sept. 3, 1997 ("Killian Aff.")). Mr. Ford also moved pursuant to New York Criminal Procedure Law ("CPL") § 440.10 to vacate his conviction on the ground that the prosecution had breached its obligation under Rosario to produce an audiotape from the autopsy of the victim. (Killian Aff. ¶ 7). Justice Diaz denied that motion but the Appellate Division granted leave to appeal and consolidated the appeal with Mr. Ford's direct appeal. (Killian Aff. ¶ 7).
On appeal from denial of his § 440.10 motion, the petitioner separated his Rosario claim into three separate arguments, just as he does in grounds 3, 4, and 5 in the instant petition (Killian Aff., Exh. 3).
On January 10, 1995, the Appellate Division affirmed the conviction and the denial of the Section 440.10 motion. People v. Ford, 211 A.D.2d 438, 621 N.Y.S.2d 309 (1st Dep't 1995). Leave to appeal to the New York Court of Appeals was denied on August 24, 1995. (Killian Aff. ¶ 11).
Mr. Ford then filed the instant petition. On October 3, 1997, the petition was dismissed as time-barred pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The dismissal was vacated, however, by the Second Circuit Court of Appeals in light of its decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), and the case was remanded for a decision on the petition
Discussion
A. Exhaustion and Procedural Default
The respondent contends that the petitioner has procedurally forfeited the first two claims in the petition by failing to elucidate them in his application for leave to appeal.
The doctrine of exhaustion generally requires a petitioner in a habeas corpus proceeding to exhaust all available state court remedies for each claim prior to federal review. 28 U.S.C. § 2254(b), (c) (1994 2000 Supp.); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-24 (2d Cir. 2000). In order to fulfill the exhaustion requirement, a petitioner must have presented his claim "to the highest court of the pertinent state." Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (per curiam); see also Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994). This includes making application for any available form of discretionary review. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In New York, requesting discretionary review consists of seeking leave to appeal to the Court of Appeals.
Even if a claim has not been fully exhausted, it will be deemed exhausted if it is clear that the state court would find it procedurally barred. See Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Bossett, 41 F.3d at 828-29; Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). That same procedural bar, however, precludes the habeas corpus court in most instances from reviewing the defaulted claim on the merits. See Gray v. Netherland, 518 U.S. 152, 162 (1996); Bossett, 41 F.3d at 829; Sims v. Stinson, 101 F. Supp.2d 187, 191 (S.D.N.Y. 2000). Any claim for which leave to appeal to the Court of Appeals has not been sought is procedurally forfeited: "[t]he failure to raise issues before the Court of Appeals precludes further consideration in the New York courts because [the petitioner] has already made the one request for leave to appeal to which he is entitled. N.Y. Court Rules § 500.10(a)." Bossett, 41 F.3d at 829.
Here, the petitioner's leave application focused primarily on his Rosario claims. However, it then alluded to the two other claims at issue as follows:
In addition, as set forth in Points I and II of [Defense Counsel's] February 1993 brief appealing from the judgment of conviction, appellant was deprived of due process of law and his right to a jury trial, under the state and federal constitutions, because of errors that occurred in jury selection and misconduct committed by the prosecution.
(Affidavit of Kevin Scott Koplin dated April 26, 1999, Exh. 7). The respondent, relying on Grey, 933 F.2d 117, contends that this was insufficient to alert the Court of Appeals to the petitioner's desire to press these claims.
In Grey, the petitioner had pursued his direct appeal on three grounds. In his application for leave to appeal to the Court of Appeals, however, he discussed only one of those issues but did attach his Appellate Division brief to his letter. Id. at 119. The Second Circuit concluded that the petitioner had forfeited habeas corpus review of all claims except that which he had explicitly referred to in the application. The court reasoned that "[t]he fair import of petitioner's submission to the Court of Appeals, consisting of his brief to the Appellate Division that raised three claims and a letter to the Court of Appeals arguing only one of them, was that the other two had been abandoned." Id. at 120.
That rationale does not apply to a case such as this, where the petitioner's leave application expressly refers, albeit with varying emphasis, to each of the claims now raised in the habeas corpus petition. This is clear from two Second Circuit decisions that succeeded Grey. In Jordan v. Lefevre, 206 F.3d 196 (2d Cir. 2000), the court upheld a finding of procedural default on the ground that "arguing one claim in [the petitioner's] 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 the exhaustion requirement underlying federal habeas jurisdiction." Id. at 198-99 (emphasis added). The court went on to observe:
Had appellant more clearly stated that he was pressing all of the claims raised in the attached brief, or had his letter made no argument in detail but rather only "`request[ed that the Court of Appeals] consider and review all issues outlined in defendant-appellant's brief,'" the result here would be different and the remaining claims would have been fairly presented.
Id. at 199 (quoting Morgan v. Bennett, 204 F.3d 360, 370-71 (2d Cir. 2000)). Morgan, in turn, had held that a leave application asking the Court of Appeals to consider all claims raised in two attached briefs was adequate to preserve each of those claims for habeas review. 204 F.3d at 370-71. That same reasoning applies with even greater force in this case. Mr. Ford's leave application did not merely incorporate by reference his entire appellate brief; rather, it alluded to each particular claim. Therefore, the petitioner's first two claims are not procedurally forfeited, and they must be addressed on the merits.
B. Dismissal of a Juror
There is no federal constitutional requirement that the composition of the jury remain unaltered throughout a criminal trial. Rather, "substitution of an alternate juror for reasonable cause is the prerogative of the court and does not require the consent of any party." United States v. Millar, 79 F.3d 338, 342 (2d Cir. 1996) (internal quotations and citation omitted). See also Shepard v. Artuz, No. 99 Civ. 1912, 2000 WL 423519, at *5 (S.D.N.Y. April 19, 2000); Edmonds v. McGinnis, 11 F. Supp.2d 427, 432 (S.D.N.Y. 1998).
The only issue in this case, then, is whether Justice Diaz's determination to discharge the juror in Mr. Ford's trial was reasonable. Certainly, the reason the court articulated was a legitimate one: a juror who is unable, for whatever reason, to render a fair verdict should be dismissed. See Sanders v. Sullivan, 701 F. Supp. 1000, 1002-03 (S.D.N Y 1988) (court properly discharged juror who indicated inability to remain impartial). Furthermore, Justice Diaz's finding that the juror in Mr. Ford's case would not be unbiased is entitled to substantial deference. In general in a habeas corpus proceeding, "a determination of a factual issue made by a state court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Moreover, the finding that a juror is incapable of rendering an impartial verdict is a factual determination involving credibility and, therefore, is granted particular deference. See Patton v. Yount, 467 U.S. 1025, 1036-38 (1984).
Here, Justice Diaz's conclusion was well-supported. The juror's answers to his questions and those of counsel indicated that after she recognized Mr. Ford's mother as someone she knew from her neighborhood she was no longer confident that she could render a fair verdict. The alternative interpretation advocated by Mr. Ford's attorney on appeal and reiterated by the petitioner here does not dictate a different result. If, as the petitioner suggests, the juror was lying about her lack of impartiality to avoid further jury service, then that act of perjury would itself have rendered the juror unfit to continue.
Accordingly, this claim is without merit.
C. Cross-Examination of Defense Witness
The petitioner's claim that the prosecutor improperly introduced evidence of his bad character through the cross-examination of Jeremy Williams also fails. Generally, counsel may offer a factual proposition as the predicate for a question on cross-examination provided there is a good faith basis for believing that the proposition is true. Here, counsel for Mr. Ford did not challenge the basis for the prosecutor's assertion that the petitioner was engaged in dealing drugs. People v. Ford, 211 A.D.2d at 439, 621 N.Y.S.2d at 311.
Nevertheless, Mr. Ford argues that the testimony consisted of inadmissible evidence of uncharged crimes. Under the Federal Rules of Evidence, evidence of prior bad acts is not admissible to show a propensity to commit the crime charged, but it is admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of accident or mistake." Fed.R.Evid. 404(b). Admission of evidence that satisfies this standard will not violate a criminal defendant's due process rights or provide the basis for habeas corpus relief. See Shannon v. Artuz, 984 F. Supp. 807, 810 (S.D.N.Y. 1997).
Here, the prosecutor proffered evidence of Mr. Ford's drug dealing to establish motive: it was the prosecution's theory that the petitioner killed Mr. McFadden in a "turf war" over the entitlement to sell narcotics in a particular area. Evidence of narcotics dealing is commonly introduced as the motive for homicide and does not violate the rights of the accused. See United States v. Sanchez, 992 F.2d 1143, 1160 (11th Cir. 1993) (evidence of drug dealing charges as motive in murder for hire); United States v. McKinney, 954 F.2d 471, 480-81 (7th Cir. 1992) (prior drug dispute as motive for murder); United States v. Chaverra-Cardona, 879 F.2d 1551, 1153-54 (7th Cir. 1989) (proof of drug charges as motive for conspiring to murder prosecutor); United States v. Frank, 11 F. Supp.2d 314, 317 (S.D.N.Y. 1998) (evidence of drug dealing as motive for kidnapping resulting in death). Moreover, the fact that the prior bad act (sale of narcotics) is less serious than the charged crime (homicide) reduces the possibility of undue prejudice. See United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000). Accordingly, this claim fails.
D. Rosario Claims
Mr. Ford's remaining claims all relate to his assertion that he was denied his Rosario rights when the prosecution failed to turn over tape recorded comments made by the pathologist during the autopsy of the victim. Rosario provides that a prosecutor in New York is required to produce to the defense any prior statement of a prosecution witness relating to the subject matter of the witness' testimony. Rosario, 9 N.Y.2d at 289, 213 N.Y.S.2d at 450.
The respondent argues that these claims are procedurally forfeited. To satisfy exhaustion requirements, a petitioner must have "fairly presented" his federal constitutional claims in state court. Picard v. O'Connor, 404 U.S. 270, 275-76 (1971); see also Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). 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 (internal quotations and citations omitted). He can accomplish this by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc).
Here, the petitioner merely alluded to the Fourteenth Amendment in a point heading in his memorandum to the Appellate Division and then referred to the claims in that appellate brief when he applied for leave to appeal to the Court of Appeals. Although courts in this Circuit have criticized the practice of merely making passing reference to a constitutional claim in a point heading, they have nevertheless recognized that this satisfies the minimal requirements of Daye. See Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (per curiam); Gonzalez, 934 F.2d at 423; Salcedo v. Artuz, 107 F. Supp.2d 405, 415 (S.D.N Y 2000); Shepard, 2000 WL 423519, at *3; Morales v. Miller, 41 F. Supp.2d 364, 375-76 (E.D.N.Y. 1999); Richter v. Artuz, 77 F. Supp.2d 385, 393 (S.D.N.Y. 1999); Joseph v. McGinnis, No. 97 Civ. 2969, 1999 WL 595645, at *2 (S.D.N.Y. Aug. 9, 1999). Furthermore, once a petitioner has succeeded in raising a federal claim in a brief to the Appellate Division, he may complete exhaustion by incorporating by reference that section of the brief into his leave application. See Morales, 41 F. Supp. at 375; Joseph, 1999 WL 595645, at *2. Thus, Mr. Ford's Rosario claims are exhausted and not procedurally barred.
They are, however, also without merit. Habeas corpus is available to redress only claims that rise to the level of a federal constitutional violation. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990). The Rosario rule is grounded in state law and a violation does not establish the deprivation of a constitutional right. See Copes v. Schriver, No. 97 Civ. 2284, 1997 WL 659096, at *4 (S.D.N.Y. Oct. 22, 1997); Boyd v. Hawk, No. 94 Civ. 7121, 1996 WL 406680, at *6 (S.D.N.Y. May 31, 1996); Williams v. Bartlett, No. 92 Civ. 4217, 1993 WL 299299, at *1-2 (S.D.N.Y. Aug. 4, 1993); United States ex rel. Butler v. Schuben, 376 F. Supp. 1241, 1247 n. 16 (S.D.N.Y. 1974). Therefore, Mr. Ford's Rosario claims, even if well-founded as a matter of state law, would not entitle him to habeas relief
Conclusion
For the reasons set forth above, Mr. Ford's application for a writ of habeas corpus should be denied and the petition dismissed. 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 M. Berman, Room 201, 40 Foley Square, New York, New York 10007 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.
Respectfully submitted,
JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York June 8, 2001
Copies mailed this date to:
Corey Ford 91-A-0126 Sing Sing Correctional Facility 354 Hunter Street Ossining, New York 10562
Nancy D. Killian, Esq. Assistant District Attorney 198 East 161st Street Bronx, New York 10451