Opinion
00 CV 1198
October 30, 2003
BISHAM GOBERDHAN, Malone, New York, for petitioner
RICHARD BROWN, District Attorney, John Michael Castellano, Kenneth V. Byrne, Noreen Healey, Assistant District Attorneys, Kew Gardens, New York, for Respondent
MEMORANDUM AND ORDER
Petitioner Bisham Goberdhan seeks a writ of habeas corpus, challenging his convictions in state court arising out of a shooting outside of a social club in Queens. After due consideration of the papers, the petition is denied for the reasons stated below.
BACKGROUND
On May 30, 1992, Harry Surujlall and his brother Gopaul Surujlall ("Harry" and "Gopaul," respectively) were shot outside the Benob Social Club on Jamaica Avenue in Queens, New York. Prior to the shooting, Harry had argued inside the social club with a person who was with Goberdhan. The argument continued outside the club, but Harry and Gopaul walked away from it. Goberdhan first shot Harry in the neck. He then shot Gopaul in the buttocks as he tried to run away. While Gopaul was lying on the ground, Goberdhan approached him, aimed at his head, and shot. He hit Gopaul in the arm because Gopaul moved his head.
After interviewing the victims, the police put together a photograph array that included a photograph of Goberdhan, Both Harry and Gopaul identified Goberdhan as the shooter. On August 21, 1992, after Goberdhan was arrested, he was identified by the two victims in a line-up at a police precinct. In post-arrest statements, Goberdhan admitted that he was present in front of the Benob Social Club on the night in question when shots were fired, but he denied any participation in the shooting.
Goberdhan was charged with two counts of attempted murder in the second degree, two counts of assault in the first degree, one count of criminal possession of a weapon in the second degree and one count of criminal possession of a weapon in the third degree.
Before trial, Goberdhan moved to suppress both his post-arrest statements and the line-up identifications by Harry and Gopaul. At the hearings, photographs of the line-up were entered into evidence, photocopies of which were given to the defense. The motion was denied after a Huntley/Wade hearing was held in Supreme Court, Queens County.
At a Huntley hearing the judge determines the admissibility of a confession before it is heard by a jury. People v. Huntley, 204 N.E.2d 179, 182-183 (N.Y. 1965). A Wade hearing allows the judge to consider whether line-up identification testimony or evidence is appropriate for trial. United States v. Wade, 388 U.S. 218, 241-242 (1967).
On June 13, 1994, just before the trial began, Goberdhan moved to dismiss the indictment on speedy trial grounds pursuant to section 30.30 of the New York Criminal Procedure Law ("CPL"). The trial court denied the motion.
At trial in Supreme Court, Queens County, Goberdhan again objected to testimony about Gopaul's line-up identification, saying he had not received the photographs of the event. The prosecutor explained that the original photographs, which had been received in evidence at theHuntley/Wade hearing, were missing, though it was not the prosecution's fault. In any event, the prosecutor argued, copies had been given to the defendant at the Huntley/Wade hearing. The court allowed the testimony.
Towards the end of the trial, Goberdhan requested that the court give a missing witness charge regarding Karen Mandell. Mandell was a friend of the two victims and had driven them to the Benob Social Club and to the hospital after the shootings. Goberdhan alleged that Mandell had told police she thought she would be able to identify the shooter and, consequently, should have been called as a witness by the prosecution. The prosecutor told the court that when he asked Mandell about her statement to the police, she said that, in fact, she had not seen the shooting take place. The court did not give a missing witness instruction.
On July 15, 1994, the jury found Goberdhan guilty of the two counts of attempted murder in the second degree, one count of assault in the first degree and both weapons possession charges. Goberdhan was sentenced to from twelve and one-half to twenty-five years for the attempted murder convictions, seven and one-half to fifteen years for the assault conviction and one year each for the possession counts, All sentences were imposed concurrently.
Goberdhan appealed to the Appellate Division, Second Department, raising the missing witness charge and the speedy trial issue, and claiming that the court should have suppressed the evidence of the line-up identification by Gopaul On April 6, 1998, the Appellate Division affirmed the judgment of the Supreme Court, Queens County holding that the court correctly decided not to give a missing witness charge.People v. Goberdhan, 671 N.Y.S.2d 281, 282 (App.Div. 1998) ("The defendant failed to make a prima facie showing on the record that the proposed witness was knowledgeable about a material issue pending in the case or was in control of the People.") Regarding the speedy trial issue, the court found that the motion to dismiss was properly denied because "[t]he defendant served his motion and made it returnable on the first day of trial, so that there was no reasonable notice to the People." Goberdhan, 671 N.Y.S.2d at 282. Finally, the Appellate Division held the line-up testimony issue to be both "unpreserved for appellate review and, in any event, without merit." Id. (internal citations omitted). Goberdhan applied for leave to appeal on April 30, 1998, raising only the speedy trial issue and claiming that his speedy trial motion was made in a timely fashion. The Court of Appeals denied leave to appeal on June 5, 1998. People v. Goberdhan, 699 N.E.2d 443 (KY. 1998).
Subsequently, Goberdhan filed a pro se motion to vacate his judgment of conviction under section 440.10 of the CPL, claiming ineffective assistance of counsel with regard to the speedy trial motion. On August 11, 1999, the Supreme Court, Queens County denied the motion. Goberdhan's application for leave to appeal was denied on April 6, 2000,
Goberdhan filed the instant petition on February 29, 2000, In his petition, Goberdhan alleges the following three grounds: (a) the trial court erred in failing to give a missing witness charge in reference to Karen Mandell; (b) he was denied the right to a speedy trial; and, (c) the trial court erred in failing to suppress testimony about the line-up identification by Harry and Gopaul Surujlall where the prosecutor lost the photograph of the line-up,
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 slate 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. 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 (citingWilliams, 529 U.S. at 411). 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. (citingFrancis 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 v. 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. Goberdhan's Claims
1. The Missing Witness Charge
Goberdhan first claims that the trial court erred by not giving a missing witness instruction after the prosecution failed to call Karen Mandell as a witness. Respondent correctly argues that this claim, which was never presented to the New York Court of Appeals, is unexhausted and has been procedurally defaulted. Even if Goberdhan had exhausted the claim, however, it would not survive federal habeas review because the claim has no merit.
The more common version of a missing witness instruction, and the one Goberdhan claims he was entitled to, has been referred to by the Second Circuit as the "control" version. United States v. Caccia, 122 F.3d 136, 138-39 (2d Cir. 1997). It "permits the jury to draw an adverse inference against a party failing to call a witness when the witness's testimony would be material and the witness is peculiarly within the control of that party." Caccia 122 F.3d at 138 (citing United States v. Torres, 845 F.2d 1165, 1169 (2d Cir. 1988)).
The second version of a missing witness charge, sometimes called the "uncalled witness" charge, Caccia, 122 F.3d at 139, may be given where the uncalled witness is equally available to both sides. In those circumstances, the district court has discretion to (1) give no charge at all on the issue, leaving it entirely to summations; (2) instruct the jury that no negative inference may be drawn against either side; or (3) instruct that a negative inference may be drawn against either or both sides, See id. The Second Circuit has suggested that in this situation, the best course is no instruction at all.Id.
Precisely when a given witness is within the government's "control" for the purposes of such an instruction is not always clear. For example, the mere fact that a witness is physically available to both sides but refuses to be interviewed by the defense does not necessarily make that witness either within the control of the government or equally available to both sides. See Torres, 845 F.2d at 1170. Rather, a witness's "relationship to the government and his refusal to be interviewed by the defense" are only factors in the determination of whether a witness is equally available to both sides or practically unavailable to the defense, Id. It has been noted, however, that, "courts have been reluctant to find a witness practically unavailable when it appears that the defense has no real interest in calling the witness to the stand, but merely is engaged in a form of gamesmanship in an effort to obtain a missing witness charge," Id. Accordingly whether a missing witness charge of this type should be given is committed to the "sound discretion" of the trial court. Id. at 1170-71; see United States v. Mittelstaedt, 31 F.3d 1208, 1215-16 (2d Cir. 1994) (witness not unavailable to defendant despite her immunity agreement with the government and her abrupt mid-trial departure for Florida, where the defense never approached her to give testimony); United States v. Nichols, 912 F.2d 598, 601-02 (2d Cir. 1990) (agents equally available to defendant where government offered to make them available to defense counsel); United States v. Saa, 859 F.2d 1067, 1076 (2d Cir. 1988) (allowing government to argue in summation that jury could draw negative inference from defendant's failure to call informant was error where informant's identity had not been disclosed and he was uniquely within the government's control).
Here, Goberdhan has not shown that Mandell was in the prosecution's control. Goberdhan suggests that she was because she was a friend of the two victims, and spoke to police about her ability to identify their shooter. However, "[t]he fact that the witness initially provided information about the crime, or even identified the defendant, does not constitute indicia of control." Manning v. Walker, No. 99-CV-5747, 2001 WL 25637, at *10 (E.D.N.Y. Jan. 3, 2001) (citation omitted). Since Mandell was neither in the control of the prosecution nor a material witness, the trial judge did not err in refusing to give a missing witness charge.
Moreover, Goberdhan has failed to show that Mandell had material testimony to provide even if she had been called. The prosecutor reported that Mandell was unable to identify the shooters because she did not see the shooting. The Appellate Division's determination that Goberdhan had "failed to make a prima facie showing on the record that the proposed witness was knowledgeable about a material issue" was reasonable and amply supported by the record, Goberdhan, 671 N.Y.S.2d at 282.
2. The Speedy Trial Claim
Although section 30.30 of the CPL requires the People to be ready for trial within six months of commencement of the case, a claimed violation of that New York statute is not cognizable on habeas review. Federal habeas can be granted only upon a showing that the state court judgment is based on a violation of federal law. See 28 U.S.C. § 225 4(a).
In any event, the Appellate Division rejected Goberdhan's speedy trial claim on procedural grounds. Specifically, it held that defense counsel, who served the motion on the first day of trial, failed to provide reasonable notice to the People. Goberdhan, 671 N.Y.S.2d at 282 (citing CPL § 210.45[1]). 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").
A defaulted claim will be considered by the court upon a showing of cause and the right of speedy trial; rather, they must be considered together with such other circumstances as may be relevant as part of "a difficult and sensitive balancing process." Davis, 316 F.3d at 127.
Goberdhan was indicted on October 26, 1993. His motion to suppress the line-up identifications was heard in March 1994. His trial occurred in June 1994. This insignificant delay in bringing him to trial is plainly insufficient to establish a constitutional speedy trial violation. A delay of less than one year in bringing a defendant to trial does not normally implicate a defendant's constitutional speedy trial right.
An earlier indictment, filed on September 4, 1992, was dismissed based on the People's failure to grant Goberdhan's request to testify before the grand jury.
Other courts have held that longer periods of time than the amount of time cited by Goberdhan did not violate defendants' speedy trial rights. See Flowers v. Warden, 853 F.2d 131, 133 (2d Cir. 1988) (17 months): United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (2 years); Barker, 407 U.S. at 533-34 (over 3 years);Warwick v. Kuhlmann, No. 98 Civ. 6393, 2003 WL 22047883, at *3 (S.D.N.Y. Aug. 29, 2003) (27 months); Davis v. McLaughlin, 122 F. Supp.2d 437, 443 (S.D.N.Y. 2000) (just over 1 year).
To the extent that Goberdhan raises an ineffective assistance of counsel claim based on counsel's failure to timely make a speedy trial motion (see Pet'r Reply to Resp't Opp. to Pet. at 5-6), his claim has no merit. In denying Goberdhan's motion to vacate based on this claim, the state court concluded that defense counsel "was competent in making the motion when he did —" (See id.) (quoting court decision). Upon review of the record, it is clear that the state court's decision does not meet the requisites for habeas relief under the standards of AEDPA and Strickland v. Washington, 466 U.S. 668, 686 (1984) (in determining claim of ineffective assistance of counsel, the standard is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,").
3. The Line-up Claim
Goberdhan claims that testimony about the line-up identification of him should have been suppressed because the prosecutor had lost the original photograph of the line-up. The Appellate Division rejected this claim as both procedurally defaulted and lacking in merit. Goberdhan, 671 N.Y.S.2d at 282.
The former holding precludes habeas review of the claim, as discussed above, Goberdhan cannot show prejudice flowing from his default, or a miscarriage of justice because his counsel had seen the original photographs of the line-up at the Wade hearing and had been provided with photocopies of the photographs both at that time and at trial. Moreover, there has been no showing that the unavailability at trial of the photographs prejudiced his defense.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Goberdhan has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.