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holding that admission of prior crimes evidence did not deprive petitioner of a fair trial in light of, inter alia, judge's limiting instructions
Summary of this case from Hogan v. WestOpinion
01 Civ. 11881 (SHS)(AJP)
July 18, 2002
REPORT AND RECOMMENDATION
Pro se petitioner Gilford Green seeks a writ of habeas corpus from his 1998 conviction in Supreme Court, New York County, for robbery and criminal possession of stolen property, and sentence as a predicate felon of twenty years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-6.) Green's petition alleges that he was deprived of his due process rights by: (1) "the trial court's erroneous ruling permitting . . . testimony that [Green] had committed a similar crime against the same complainant several months earlier," (2) the "prosecutor's misconduct during crossexamination and in summation by referring to matters concerning punishment and sentence, calling the defense witnesses liars, and . . . offering her personal opinion of [Green's] guilt," (3) "increased punishment at sentencing" based on his prior convictions, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and (4) "the cumulative effect of numerous" trial court errors. (Pet. ¶ 13, incorporating by reference Green 1st Dep't Br.)
For the reasons set forth below, Green's petition should be DENIED.
FACTS
The Trial Testimony
Green's trial began, after jury selection, on April 16, 1998, before then-Justice (now District Judge) George Daniels and a jury in Supreme Court, New York County. (Trial Transcript ["Tr."] 397.)
The Prosecution Case
The Victims' Testimony
On the morning of August 14, 1997, Mohammed Rana, the owner of Fulton Street Stationery, left a sole customer, a "heavy-built" man who was wearing a large quantity of "rings and necklaces," in the front area of his store while he used the restroom. (Rana: Tr. 412, 414-17.) When Rana returned, the customer was gone and Rana noticed that two Waterman pens, each with a retail value of $300, were missing from his showcase. (Rana: Tr. 415-17, 419-20.)
That same morning, Souleymane Bah, a Guinea native who spoke Fulani, a little French and even less English, was working at his video/music store located at 144 Fulton Street. (S. Bah: Tr. 667-70, 676.) Souleymane's assistant, Abdoul Bah, who monitored a jewelry stand outside the store (S. Bah: Tr. 670-71, 673, 699; A. Bah: Tr. 780-81, 790, 792-95), saw a "heavy set" man "wearing a red shirt" "grab a chain" bracelet from the stand and "put it in his [front pants'] pocket" (A. Bah: Tr. 781-84). From three or four feet away, Abdoul asked the man to "[p]ut [the chain] back, please," and to "[g]ive [the bracelet] back" but the man said "no" and started to walk away. (A. Bah: Tr. 782-84.) Souleymane did not see the man take anything, but upon hearing this verbal exchange, came outside the store and told the man to "put [the chain] down," but the man again refused. (S. Bah: Tr. 678-79, 684, 698, 702-03, 736-40; A. Bah: Tr. 782.) Souleymane repeated his requests, saying to the man "please put my merchandise down." (S. Bah: Tr. 679, 740.) After telling Souleymane "no," the man again began walking away. (S. Bah: Tr. 678-79, 684, 702, 739; A. Bah: Tr. 782, 784.)
Souleymane Bah and Abdoul Bah are not related. (S. Bah: Tr. 674; A. Bah: Tr. 780.)
The neighboring shopkeeper, Sabuj Hossain, also kept watch over the area and witnessed the incident. (S. Bah: Tr. 672-73, 675; Hossain: Tr. 824, 826-27, 844.)
Abdoul testified that the man was "wearing a red shirt" but that he was "not sure, maybe it was a jacket. It was a red — red something. . . ." (A. Bah: Tr. 784.)
Souleymane followed the "bigger," "tall," "dark" man, who was "holding a bag" and wearing a big shirt." (S. Bah: Tr. 681, 684, 702, 740.) Souleymane repeated "[g]ive me back my merchandise" (S. Bah: Tr. 703, 751; A. Bah: Tr. 782; Hossain: Tr. 829), when the man suddenly produced a "knife" and attempted to stab Souleymane (S. Bah: Tr. 679, 703-04, 734, 740-41, 749-50; A. Bah: Tr. 782, 786; Hossain: Tr. 832). Souleymane "put [his] hands [up] to block" the blow, and was cut on his left hand. (S. Bah: Tr. 679, 703-04, 741.) The man "slapped" and punched Souleymane in the face, causing Souleymane, who was bleeding from his hand, nose, and elsewhere on his face, to "f[a]ll down." (S. Bah: Tr. 679, 684, 702, 704-05, 735-36, 748; A. Bah: Tr. 782, 784-87, 796-98; Hossain: Tr. 827-30, 832.)
The "knife" was described by other witnesses as a "box cutter." (E.g., Chan: Tr. 636.)
On direct, Souleymane had stated that Green took a "long chain" and a "bracelet" from his store on the day Souleymane was stabbed. (Souleymane: Tr. 684.) On cross-examination by defense counsel, Souleymane said that Green only took a bracelet and not a chain that day (Souleymane: Tr. 715-16):
Q. Now, today, sir, you said that Mr. Green took two chains from your store, correct?
A. It's one that he took, not two; one bracelet.
Q. So, when you say he took a long chain, he did not take a long chain on this day, correct, "yes" or "no"?
THE WITNESS: The day that I was punched, he took one bracelet.
(Souleymane: Tr. 715-16; see also id. 732-33.) Defense counsel also asked Souleymane whether he told the defense investigator that Green took a long chain and a bracelet, and Souleymane denied saying that. (Souleymane: Tr. 733-34.)
On redirect, the prosecution went back into the bracelet/chain issue. (Souleymane: Tr. 752.) Defense counsel objected (Tr. 752) and the prosecution responded that the defense's cross-examination had opened the door and the prosecution should be allowed to rehabilitate the witness. (Tr. 752.) Because the defense had asked Souleymane if he had made a "mistake" in his testimony, the trial judge ruled that the defense opened the door, allowing the prosecution to go into it to show Souleymane did not make a mistake, but rather that the other piece of jewelry Souleymane mentioned was taken on a different day. (Tr. 754-62, 765-70.)
On redirect, Souleymane testified that August 14, 1997 was not the first day that he saw Green or that Green stole from him. (S. Bah: Tr. 771.) Souleymane testified that approximately "three or four months" prior to August 14, Green "came to [his] place, . . . saw a chain, [and] took it and put it in his pocket." (S. Bah: Tr. 771.) Souleymane testified that he asked Green "to put [the chain] back" and Green "said he's not going to put it back." (S. Bah: Tr. 771-72.) Souleymane did not get into a confrontation with Green on that occasion, but rather "let him go" and did not call the police. (S. Bah: Tr. 772.)
During Souleymane's redirect, the trial judge gave the jury a preliminary limiting instruction and told them he would give them a further instruction about this testimony at the close of the trial. (Tr. 773-74.) In his final instructions to the jury, the trial judge reminded the jury that this information was admitted only as to Souleymane's credibility and could not be used as propensity" evidence that Green was guilty here because he took property in the past. (Charge: Tr. 1124-27.)
Eyewitness Testimony
Alexander Chan, a paralegal and student at Brooklyn Law School, witnessed much of the incident. (Chan: Tr. 626-27.) Chan was "walking east along Fulton Street" when he "heard shouting." (Chan: Tr. 628-30.) He saw "two men" — one noticeably larger than the other — "yelling at each other" and "grabbing onto each other" in the "doorway of one of the stores" on the "south side of the street." (Chan: Tr. 629-31.) As Chan moved closer, he observed that the larger man, whom he identified in court as Green (Chan: Tr. 632), was "older, heavy-set, [with] a little pot belly," carrying a [pink] Conway bag," and wearing "a baseball cap," "a dark red shirt, jeans," and a chain." (Chan: Tr. 630-31, 636.) Green was "pushing and shoving" and "punching" the smaller man, later identified as Souleymane. (Chan: Tr. 631, 634.) Chan could not hear everything said, but did hear Green use profanity and say "[g]et off," and "[l]et me go." (Chan: Tr. 633.) Souleymane was "holding onto [Green's] hand," saying things like "stop," "no; don't go," and "police." (Chan: Tr. 633-34.) Chan saw Souleymane "throw up his hands to defend himself' and even unsuccessfully "try to push [Green] away," but did not see Souleymane "throw any punches." (Chan: Tr. 635.) As Souleymane and Green fought, they collided with Chan. (Chan: Tr. 635-36, 647, 662.) Chan saw Green "reach into . . . his front pants' pocket [and] pull out a box cutter." (Chan: Tr. 636, 660-62.) Green "used his teeth" to draw the box cutter's blade and "slash[ed]" two or three times at Souleymane's face and neck area. (Chan: Tr. 636-3 8, 644-45, 663-64.) Souleymane pleaded with the attacker to "Stop" and to "Let go." (Chan: Tr. 638.) People in the crowd that gathered screamed for Green to stop and were calling for the police. (Chan: Tr. 638.) Green eventually released Souleymane, who "collapsed to the floor — to the sidewalk." (Chan: Tr. 638.) Green "turned around; looked at [Chan], and walked away," east on Fulton Street. (Chan: Tr. 638.)
Neighboring store owner Sabuj Hossain came out of his store when Abdoul told him someone was stealing from Souleymane. (Hossain: Tr. 827-29, 842-44.) Hossain heard Souleymane ask for the bracelet back and saw Green, who was wearing a "red-colored T-shirt," hit and cut Souleymane with a knife. (Hossain: Tr. 827, 829-32, 846.) Hossain followed Green and saw him go "into the [Nassau] subway [station]" and "c[o]me out of the other side . . . up on the street" soon thereafter. (Hossain: Tr. 827, 833-34, 837.) Hossain watched Green enter a clothing store, Michael's Fashions, that was "opposite to 80 Maiden Lane." (Hossain: Tr. 835, 837.) Hossain "tried to [c]all" the police from a "phone booth on [his] side [of the street], but the booth was not working." (Hossain: Tr. 828, 835.) He "started looking for police all around [him]" and went up to "two policemen [he saw] coming by." (Hossain: Tr. 828, 835.) Hossain told the officers that "someone [was] trying to attack Souleymane." (Hossain: Tr. 828, 835-36.) Hossain "showed the man to the policemen," who said "[l]et's go to the store." (Hossain: Tr. 836.) Hossain testified that "[a]fter the police came in[to the store], then [Green] came out," and the officers arrested Green. (Hossain: Tr. 836, 849.) Hossain identified Green at trial as the assailant. (Hossain: Tr. 830.)
Police Testimony
On the morning of August 14, 1997, prompted by a passerby, Police Officer Timothy Keane ran to 140 Fulton Street and saw a man, later identified as Souleymane Bah, "in a doorway in front of 140 Fulton Street. . . . bleeding pretty heavy from the nose and mouth area." (Keane: Tr. 438-41.) Officer Keane attempted to stop Souleymane's bleeding, called for an ambulance, and began to interview people standing nearby. (Keane: Tr. 441.) Alexander Chan and another eyewitness (who did not testify at trial) approached Officer Keane, described what happened and described what the perpetrator looked like. (Keane: Tr. 442-43, 451, 467-68; Chan: Tr. 639-40, 656-57.) Officer Keane transmitted that information over his police radio. (Keane: Tr. 443, 469.)
After hearing Officer Keane's transmission, Sergeant Michael Sullivan responded to 140 Fulton Street. (Keane: Tr. 445; Sullivan: Tr. 512.) Sergeant Sullivan observed Souleymane lying in the doorway, "bleeding profusely from the face" and "from the left hand area." (Sullivan: Tr. 513-14.) Sergeant Sullivan attempted to speak with Souleymane, but Souleymane was incoherent. (Sullivan: Tr. 514, 566.)
Officer James Cahill "was on a two-wheel scooter, going eastbound on Nassau and Maiden Lane," when he heard Officer Keane's radio transmission. (Cahill: Tr. 477, 479-80.) A couple of minutes later," Officer Cahill noticed Green "carrying a pink Conway bag" and wearing a reddish brown shirt" and "a lot of silver chains around his neck" in front of 75 Maiden Lane (Michael's Fashions). (Cahill: Tr. 480-83.) The two officers that Hossain directed to Michael's Fashions approached Green about "two seconds" before Officer Cahill did and "asked if they could talk to him." (Cahill: Tr. 484-87.) Green placed the "full," open Conway bag — with pants and socks on top — at his right side. (Cahill: Tr. 485-88.) Officer Cahill testified that "before [the officers] could say anything else," the owner of Michael's Fashions came out of the store and "said the stuff which was right on top of the bag, belonged to him. [Green] just left his store and [the merchandise] was not purchased." (Cahill: Tr. 485-88; see also Khan: Tr. 427-28; Sullivan: Tr. 575.) Officer Cahill handcuffed Green and placed him under arrest for shoplifting from Michael's Fashions. (Cahill: Tr. 488.)
Meanwhile at 144 Fulton Street, Souleymane's store, Sergeant Sullivan heard a radio transmission from Officer Cahill regarding Green's arrest on Maiden Lane. (Keane: Tr. 452-53; Cahill: Tr. 479, 493; Sullivan: Tr. 517.) Sergeant Sullivan asked Abdoul Bah "if he could identify the person that had committed the crime" and Abdoul said "yes." (Sullivan: Tr. 518.) Sergeant Sullivan drove Abdoul to Maiden Lane, where Abdoul identified Green as the man who had stolen the bracelet and attacked Souleymane. (Sullivan: Tr. 518; A. Bah: Tr. 782, 787-88; see also Cahill: Tr. 494-95.)
Sergeant Sullivan also wanted Souleymane to go to Maiden Lane to see if he could identify Green, but the paramedics refused to take Souleymane there because they cannot "transport victims or any person under their care to another scene other than a hospital." (Sullivan: Tr. 517-18; see also Keane: Tr. 454.)
Officer Gordon Waite also responded to Officer Cahill's radio transmission and arrived at Michael's Fashions. (Waite: Tr. 861.) Sergeant Sullivan assigned Officer Waite the arrest and search of Green. (Waite: Tr. 864-65; Cahill: Tr. 496.) Officer Waite "patted [Green] down in the leg area and around any area where he could have reached with the handcuffs" for weapons. (Waite: Tr. 865.) Officer Waite "fe[lt] objects in [Green's] front pockets, . . . put [his] hand inside and removed a couple of objects that were bulging out of [Green's] pockets." (Waite: Tr. 865.) Officer Waite "found a grey-colored box cutter utility knife in one front pocket . . . [and] a small silver-colored bracelet in another front pants' pocket." (Waite: Tr. 865, 867; see also Cahill: Tr. 497-98, 505-06.) Officer Waite noticed that the bracelet was "shiny" and "appeared to be brand new." (Waite: Tr. 866-67.) He testified that "the bracelet [he] recovered from Mr. Green matched identically to the ones that were on the display" at Souleymane's store. (Waite: Tr. 870; 5. Bah: Tr. 710, 712.) From the Conway bag, Officer Waite recovered "seven pairs of men's socks," "a pair of olive green men's slacks," "two Waterman pens," "a brand new knapsack," and an "old blue knapsack." (Waite: Tr. 867-68; Sullivan: Tr. 524.) No receipts were recovered from Green. (Waite: Tr. 867-68; Sullivan: Tr. 529.) Later, the police brought the pens they retrieved from Green to Rana's store, where Rana identified the pens as those taken from his store that morning. (Rana: Tr. 416; Sullivan: Tr. 551.)
After the search, Green was placed in a police van and "taken up to the vicinity of 144 Fulton Street for a show-up" with Souleymane. (Waite: Tr. 868.) Green was "brought out onto the street . . . near where the ambulance was; where the victim had a chance to view [him]." (Waite: Tr. 869.) Souleymane identified Green as the man who had attacked him earlier. (S. Bah: Tr. 680, 682-83, 744; Waite: Tr. 869; see also Keane: Tr. 457-58; Sullivan: Tr. 525-28.) Green was "placed back into the van for . . . transportation back to the First Precinct for processing." (Waite: Tr. 869; Sullivan: Tr. 528.)
The Conway bag, bracelet, box cutter, pants and socks were vouchered as evidence. (Waite: Tr. 876-80, 882-84, 914-16; Sullivan: Tr. 525, 545-50.) The two Waterman pens, the new knapsack, and the school divider/organizer that were in the Conway bag were photographed and those photographs were vouchered into evidence. (Waite: Tr. 876, 881; Sullivan: Tr. 550-52.) A Polaroid camera and "an older blue knapsack" that Green identified as his personal property were vouchered for safekeeping, to be held until Green or someone on his behalf retrieved them. (Waite: Tr. 876, 884, 887; Sullivan: Tr. 532-34, 553, 578-80, 592-93.)
The Defense Case
The Defense Investigator's Testimony About His Interview of Souleymane
Defense counsel called Legal Aid Society Investigator James Brown in order to impeach Souleymane with prior inconsistent statements he made regarding the number of items Green allegedly took from his store. (Tr. 753, 950). Brown testified that he interviewed Souleymane with a Fulani interpreter. (Brown: Tr. 951-52, 954-55.) According to Brown, Souleymane told him that "Green [took] two pieces of jewelry[,] a chain, approximately 12 inches; and a silver bracelet" on the day of the August 14th robbery. (Brown: Tr. 952, 956.) Souleymane also told Brown that he saw Green "put [the chain and the bracelet] in his pocket." (Brown: Tr. 952.) On crossexamination, Brown conceded that Souleymane told him that Green had been to his store on more than one occasion. (Brown: Tr. 955, 957.) Souleymane told Brown that Green took something the first time he visited the store, but Souleymane did not specify to Brown what that "something" was. (Brown: Tr. 955.)
Green's Testimony
Green testified at trial in his own defense. Green conceded that he previously was convicted of three felonies and two misdemeanors. (Green: Tr. 967, 990-91.) Green did not deny that he stole most of the items in his possession when he was arrested, including the Waterman pens and clothing, nor did he deny having a physical encounter with Souleymane. (Green: Tr. 968, 975-77.) However, Green testified that the bracelet actually was his and he had it in his pocket because it was still wet from the "ammonia" he used to "clean [his] sterling silver" the night before. (Green: Tr. 968.)
Green testified that on August 14 he was "looking at the chains" at the store on Fulton Street when a man said, "'Give me back the long chain with the cross on it.'" (Green: Tr. 969.) Green said "'I ain't take no chain,'" and told the man the chains he was wearing belonged to him. (Green: Tr. 969.) Green walked away after the man said he saw Green "take a chain with the cross." (Green: Tr. 969.) The man "yelled something in the store" and another "man came out of the store with [a utility knife] in his hand, and he grabbed" Green. (Green: Tr. 969-70.)
At trial, defense counsel referred to the "box cutter" as a "utility knife." (Green: Tr. 969.) In subsequent testimony, Green referred to it as a box cutter. (Green: Tr. 969.)
The man who came out of the store, Souleymane, said "'Give me the chain; give me back the chain.'" (Green: Tr. 969-70.) Green told him that he did not have the store's chain. (Green: Tr. 969.) When Green saw "the box cutter in [Souleymane's] hand . . . [he] grabbed for it" and took it away from Souleymane. (Green: Tr. 969.) Green "stuck it in [his] back pocket" because he "was afraid to throw it on the ground, figuring [Souleymane would] get it again, and probably cut [Green] with it." (Green: Tr. 970.) Souleymane "swung — [Green] punched him twice with a closed hand" in his "mouth" and "nose." (Green: Tr. 970.) Green "didn't. . . intend to hurt [Souleymane], but . . . hit him because he struck at [Green] first." (Green: Tr. 970.)
Green testified that he had pictures in his backpack that showed him wearing his chains and bracelet. (Green: Tr. 970-72, 993.) Green denied stealing anything from Souleymane's store or stabbing Souleymane. (Green: Tr. 967, 975.)
On cross-examination, Green conceded that he was guilty of stealing the pants and socks from the fashion store, the pens from the stationery store, and the knapsack and organizer from Conway. (Green: Tr. 975-81, 984.) Over continued objections by defense counsel, the prosecutor questioned Green about the misdemeanor and felony charges he was facing as a result of the August 14th events:
Q. You know you're being charged with two counts of robbery; is that correct?
A. Yes.
Q. You're being charged with four counts of criminal possession of stolen property in the fifth degree; is that correct?
A. Y[es.]
Q. And you know that this chain is the basis of the robbery charges against you; is that correct?
A. Yes.
Q. Because you know that if you didn't steal this chain, then you're innocent of robbery; is that correct?
A. I didn't steal it.
Q. You don't know that?
A. No, I don't.
Q. You haven't discussed these charges with your lawyer?
A. Yeah, I discussed the charges with my lawyer.
Q. And you didn't know that if the jury believes if you didn't steal this chain, you'd be innocent of the robbery charges?
A. Idon'tknow.
Q. And you're admitting you stole the pants and the socks, correct?
A. Yes, I did.
Q. And you're admitting that you stole the knapsack and the organizer?
A. Yes.
Q. You're admitting you stole the pens?
A. I did.
Q. You know those charges are misdemeanor charges; is that correct?
A. I stole those.
Q. You know those charges, you're admitting to that, and those are misdemeanors, correct?
A. Yes.
Q. And you know that the robbery charges are felonies is that correct?
A. Yes it is.
Q. You know the difference between a felony and a misdemeanor, correct, sir?
A. Yes.
Q. And actually, you've been convicted of three felonies?
A. Yes.
Q. You have a felony conviction from February 23, 1982; is that correct?
A. Yes.
Q. You have another felony conviction from April 10, 1985?
A. Yes.
Q. And you have a third felony conviction from August 12, 1994?
A. Yes.
Q. You know what it means to be convicted of a felony?
A. Yes.
Q. You also have misdemeanor convictions; isn't that true?
A. Yes.
Q. And you were convicted of a misdemeanor on June 16, 1993?
A. Yes.
Q. And you were convicted of another misdemeanor on September 28, 1993?
A. Yes, yes.
Q. So, you're telling this jury that you're guilty of the misdemeanors, but you're not guilty of the felony?
A. I'm telling the jury I didn't take nothing from 144 Fulton Street on August 14. All right. I did stole them other items.
(Tr. 987-91, emphasis added.)
Green-Graham's Testimony
Green's sister, Carolyn Green-Graham, testified that she bought a bracelet "for [her] brother" like the one the prosecution alleged Green stole from Souleymane's store. (Green-Graham: Tr. 934, 946, 948-49.) Green-Graham testified she purchased the bracelet for about "$22, $23" from a vendor" "on 125th Street" and gave it to her brother "the end of April, or the beginning of May." (Green-Graham: Tr. 935.)
Summation
The prosecution argued in summation, over defense counsel's objections, that Green only admitted to the misdemeanor charges because he wanted to look good for the jury; it was unlikely that Souleymane, Abdoul, Hossain, and the other witnesses were lying about what took place; and Green's sister's testimony was an effort to help her brother. (Prosecution Summation: Tr. 1083-118.) Specifically as to Green's admission of the misdemeanor charges, the prosecution argued, over defense objection, as follows:
He's caught very close, very soon after, but there's more. All three witnesses, Souleymane Bah, Abdoul, and Sabuj Hossain promptly take a look at the person in the police car. "Is that the guy?" "Yes, that's the guy." He promptly is identified within minutes after the crime, and not only that, Sabuj Hossain follows him from this crime, from the robbery, all the way to the store where he's arrested. There can be no claim of mistaken identification. And then, you know, icing on the cake, he happens to have the box cutter in his pocket; and then, he happens to have the bracelet in his pocket that's identical. When confronted with all of that, it's no surprise that the defendant didn't come into this courtroom and say, "It wasn't me; I was mistaken."
. . . .
So, then, you hear the wheels turning, and — . . . And I guess I have to say it was there. He didn't have to say anything at all; he didn't have to testify in this case, ladies and gentlemen, but he did, so you could evaluate what he decided to say. Well, he can't claim, "It wasn't me, so yeah, I was there; I was there, but it didn't happen that way; it didn't happen the way they said it. So, let me think of what I'm going to admit, and what I'm going to deny. Well, I'll admit to the stolen pens and the stolen slacks, because I mean, I was caught with them in my bag." Those are minor misdemeanor charges; no big deal. "And I'll look good before you. I'm admitting that."
. . . .
"But, this robbery, man, I can't admit to that. That's a felony; I got three felonies; I can't do that. So, I'll deny taking this chain." And if the theft falls, then there's no robbery, and you could kind of see the thought process going on about how it came to be; how this defense came to be —
(Tr. 1086-89, 1108-09.)
Verdict and Sentence
The jury found Green guilty of one count each of first and second degree robbery, and four counts of fifth degree criminal possession of stolen property. (Verdict: Tr. 1148-51.)
On May 11, 1998, Green was sentenced as a persistent violent offender (Sentencing Tr. ["S."] 2-3) to concurrent terms of twenty years to life imprisonment for both robbery charges, and four concurrent terms of one year for each of the misdemeanor criminal possession of stolen property counts, which "merge with the twenty to life sentences that will run concurrent." (5. 14.)
Specifically as to sentencing as a persistent violent felon, the court informed Green that he was alleged to have been convicted of violent felonies on April 10, 1965 and February 23, 1982, and that he could "controvert any allegations in this statement of' predicate felonies. (S. 2.) The court further advised Green that "[i]f you wish to controvert, a hearing will be held to determine whether or not you are a predicate of two or more violent felony convictions" (S. 2), and that Green could challenge the constitutionality of any prior convictions (S. 3). Green admitted to his status as a persistent violent felon:
[COURT CLERK]: Do you admit that you're the same person mentioned in the statement and that the allegation is true?
THE DEFENDANT: Yes.
COURT CLERK: Do you wish to challenge the Constitutionality of your prior conviction?
THE DEFENDANT: No.
COURT CLERK: Thank you. Defendant admits.
THE COURT: Mr. Green is adjudicated a persistent violent felony offender.
(S. 3.) Green's admission at sentencing was not surprising since Green had admitted in his direct testimony at trial, and on cross-examination, that he had three prior felony convictions. (Green: Tr. 967, 990.)
Green's Direct State Appeal
On direct appeal to the First Department, Green's appellate counsel asserted violations of Green's federal and state constitutional due process/fair trial rights on the following grounds: (1) "the trial court's erroneous ruling permitting the People to elicit testimony that [Green] had committed a similar crime against the same complainant several months earlier" (Ex. B: Green 1st Dept Br. at 23-33); (2) "the prosecutor's misconduct during cross examination and in summation by referring to matters concerning punishment and sentence, calling the defense witnesses liars, and . . . offering her personal opinion of [Green's] guilt" (id.); and (3) Green's "concurrent sentences of twenty years to life imprisonment as a persistent violent felon . . . violate [Green's] rights . . . to a jury trial and to due process of law, as the enhanced sentences were premised upon the existence of two violent predicate convictions, [and] the existence of the prior convictions was neither submitted to a jury, nor contained in an indictment," citing the Supreme Court's Apprendi decision (Green 1st Dep't Br. at 3347).
Referenced exhibits are attached to the April 22, 2002 Affidavit of Assistant Attorney General Beth J. Thomas. (Dkt. No. 4.)
On June 7, 2001, the First Department affirmed Green's conviction and sentence, holding:
The court properly exercised its discretion in admitting evidence of an uncharged crime. The probative value of the uncharged theft outweighed its prejudicial effect, particularly after defendant elicited from the complainant a prior inconsistent statement that was capable of being explained by the complainant's confusing references to the instant and prior crimes.
The challenged portions of the People's cross-examination and summation could not have deprived defendant of a fair trial.
Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit.
People v. Green, 284 A.D.2d 144, 144, 725 N.Y.S.2d 204, 204-05 (1st Dep't 2001) (citations omitted).
On July 27, 2001, the New York Court of Appeals denied leave to appeal. People v. Green, 96 N.Y.2d 901, 730 N.Y.S.2d 799 (2001).
Green's Present Federal Habeas Corpus Petition
Green's timely pro se federal habeas corpus petition, dated November 19, 2001 and received by the Court's Pro Se Office on November 26, 2001 (Dkt. No. 1: Pet. at 1st last pages), alleges that he was deprived of his due process rights by: (1) "the trial court's erroneous ruling permitting . . . testimony that [Green] had committed a similar crime against the same complainant several months earlier," (2) the "prosecutor's misconduct during cross-examination and in summation by referring to matters concerning punishment and sentence, calling the defense witnesses liars, and . . . offering her personal opinion of [Green's] guilt," (3) "increased punishment at sentencing" based on his prior convictions, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and (4) "the cumulative effect of numerous" trial court errors. (Pet. ¶ 13, incorporating by reference Green 1st Dep't Br.)
The State concedes that the petition is timely. (See Dkt. No. 5: State Br. at 17.)
ANALYSIS
For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of the Report Recommendation, see Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *1041 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *1446 (S.D.N.Y. May 31, 2002) (Peck, M.J.); Christie v. Hollins, 01 Civ. 11605, 2002 WL 1149317 at *1648 (S.D.N.Y. May 29, 2002) (Peck, M.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8.9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *1243 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4.5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), cf., No. 01-2474, 2002 WL 1448474 (2d Cir. June 28, 2002).
Before the Court can determine whether Green is entitled to federal habeas relief on his evidence of an uncharged crime and prosecutorial misconduct claims, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(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) . . . 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)(1)-(2).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(l) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 2002 WL 1393902 at *5
Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).
Accord, e.g., Yung v. Walker, No. 01-2299, 2002 WL 1393902 at *4 (2d Cir. June 27, 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.
Accord, e.g., Yung v. Walker, 2002 WL 1393902 at *4; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.
In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term "unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id at 409 120 S.Ct. at 1521.
Accord, e.g., Yung v. Walker, 2002 WL 1393902 at *4; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.
The Second Circuit has explained "that while '[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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord Yung v. Walker, 2002 WL 1393902 at *4; see also, e.g., Loliscio v. Goord, 263 F.3d at 184. Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 2002 WL 1393902 at *4 Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 2002 WL 1393902 at *4
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For 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 at 312; accord, e.g., Aeid v. Bennett, No. 02-2089, 2002 WL 1466807 at *3 (2d Cir. July 8, 2002); Jenkins v. Artuz, Nos. 01-2355, 01-2328, 2002 WL 483547 at *6 (2d Cir. Apr. 1, 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word "denied" — triggered AEDPA deference."); Norde v. Keane, No. 01-2049, 2002 WL 483488 at *7 (2d Cir. Mar. 29, 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001) On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the "unreasonable application' or "contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:
We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).
Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Norde v. Keane, 2002 WL 483488 at *7; Aparicio v. Artuz, 269 F.3d at 93.
The First Department denied Green's uncharged crimes and prosecutorial misconduct claims on the merits, People v. Green, 284 A.D.2d 144, 144, 725 N.Y.S.2d 204, 204 (1st Dep't 2001), and therefore the deferential AEDPA review standard applies to those two claims. While the First Department denied Green's Apprendi sentencing claim on procedural grounds, it also held that claim to be without merit, People v. Green, 284 A.D.2d at 144, 725 N.Y.S.2d at 205. As discussed below, the First Department's holding is an adequate and independent state procedural ground that bars federal habeas review (see Point IV below), but because of the First Department's alternative holding on the merits, to the extent the federal courts reach the merits of the sentencing claim, the deferential AEDPA review standard applies. See Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *8 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.) ("The Second Circuit has not decided the appropriate AEDPA review standard in such a case [where the state court finds the claim procedurally barred and without merit] — which is not surprising, because usually such a state court holding would preclude any federal habeas review.").
In any event, Green would not be entitled to habeas relief on any of his habeas claims even if the pre-AEDPA review standard were applied.
II. GREEN'S CLAIM INVOLVING THE TRIAL COURT'S ADMISSION OF TESTIMONY REGARDING A PRIOR ROBBERY LACKS MERIT
Green claims that the trial court erroneously allowed the jury to hear testimony that he had committed a similar crime against Souleymane (i.e, that he stole a chain from the store) several months prior to the August 14, 1997 incident on trial. (Dkt. No. 1: Pet. ¶ 13, incorporating by reference Ex. B: Green 1st Dep't Br. at 23-33.)
A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings
For additional cases authored by this Judge discussing the habeas corpus review standard for claims of errors in state evidentiary rulings, in language substantially similar to that in this entire section of this Report Recommendation, see, e.g., Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *1546 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *56 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.).
"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480 (1991) ("We have stated many times that "federal habeas corpus relief does not lie for errors of state law."). Thus, a habeas petitioner must demonstrate that the allegedly erroneous state court evidentiary rulings violated an identifiable constitutional right. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) ("The [habeas] court must determine whether the exclusion [of testimony] was an error of constitutional dimension . . . ."); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial.") (emphasis in original), cert. denied, 464 U.S. 1000, 104 S.Ct. 503 (1983). That is a "heavy burden, for 'generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.'" Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).
See also, e.g., Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *12 nn. 19-20 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (citing cases); Roldan v. Artuz, 78 F. Supp.2d 260, 276 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Grant v. Demskie, 75 F. Supp.2d 201, 209 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.), aff'd 234 F.3d 1262 (2d Cir. 2000); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL668079 at *45 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *56 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.).
See also, e.g., Roldan v. Artuz, 78 F. Supp.2d at 276 (citing cases); Grant v. Demskie, 75 F. Supp.2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *5; James v. Senkowski, 1998 WL217903 at *5.
The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule would not be unconstitutional. See, e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constitutional magnitude); Jones v. Stinson, 94 F. Supp.2d at 391-92 (once the habeas court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis).
This assumes that the petitioner has not attacked the constitutionality of the state evidentiary rule itself See Jones v. Stinson, 94 F. Supp.2d 370, 387 n. 19 (E.D.N.Y.) (distinguishing between cases "where an evidentiary rule was correctly applied as a matter of state law, but is either unconstitutional on its face or violates a constitutional right as applied," and cases where the petitioner took no exception to the constitutionality of the state evidentiary rule, but asserted that the state court decision misapplied the state rule, resulting in a constitutional violation), rev'd on other grounds, 229 F.3d 112 (2d Cir. 2000).
See also, e.g., Williams v. Walker, No. 00-CV-59 12, 2001 WL 1352105 at *3 (E.D.N.Y. Oct. 31, 2001) (habeas court must first determine if ruling was erroneous under state law, and then whether error was of a constitutional magnitude); Coleman v. Greiner, No. 97-CV-2409, 1999 WL 320812 at *5 (E.D.N.Y. May 19, 1999); Till v. Miller, 96 Civ. 4387, 1998 WL 397848 at *4 (S.D.N.Y. July 16, 1998); Mitchell v. Herbert, 97 Civ. 5128, 1998 WL 186766 at *56 (S.D.N.Y. Apr. 20, 1998); Copes v. Schriver, 97 Civ. 2284, 1997 WL 659096 at *3 (S.D.N.Y. Oct. 22, 1997); Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N.Y. 1997); Dey v. Scully, 952 F. Supp. 957, 969 (E.D.N.Y. 1997) ("[T]he Court engages in a two part analysis, examining 1) whether the exclusion [of evidence] was error under state law, and 2) whether the error amounted to the denial of the constitutional right to a fundamentally fair trial."); see generally Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001) (in determining whether failure to give state jury charge violated federal constitution, first question for habeas court is whether the charge was required under New York law, and only if so, was the failure to give the charge of constitutional dimension).
Second, the petitioner must allege that the state evidentiary error violated an identifiable constitutional right. This necessarily eliminates consideration of purely state evidentiary errors not cognizable in the federal system. Here, Green alleged that the evidentiary error at issue — admission of evidence of a prior theft from the complainant's store — violated his due process right to a fair trial. (Ex. B: Green 1st Dep't Br. at 23-25, 28.)
See e.g., Landy v. Costello, No. 97-2433, 141 F.3d 1151 (table), 1998 WL 105768 at *1 (2d Cir. Mar. 9, 1998) ("To the extent that this claim is based on a Rosario violation, it must fail, because a habeas petition can only be granted to remedy some violation of federal law; the obligation to turn over Rosario material arises under state law. Thus, the only question is whether the prosecution violated Brady."); Arocho v. Walker, 01 Civ. 1367, 2001 WL 856608 at *3 (S.D.N.Y. July 27, 2001) ("Violation of the notice requirement of [N.Y. C.P.L.] § 710.30 is purely a matter of state law and raises no constitutional issues for a habeas court to review."); Ventura v. Artuz, 2000 WL 995497 at *12 (same); Roldan v. Artuz, 78 F. Supp.2d at 276 (Molineux claim not cognizable as such on habeas); Benitez v. Senkowski, 1998 WL 668079 at *5 (bolstering claim does not state federal claim, citing cases); Ayala v. Hernandez, 712 F. Supp. 1069, 1074 (E.D.N.Y. 1989) (police "bolstering" of eyewitness identification testimony held to be, at most, violation of state rule, and thus not could not form basis for constitutional claim).
Indeed, courts have rejected habeas relief where the error violated state rules but comported with the presumptively constitutional Federal Rules of Evidence See e.g., Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir. 1996) ("even if admission of [out of court declarant's] statement violated New York law — which unlike federal law requires independent indicia of reliability for a co-conspirator's statement — the statement does not offend the federal Confrontation Clause if it falls within Rule 801(d)(2)'s co-conspirator exception"), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Ford v. Crinder, 97 Civ. 3031, 2001 WL 640807 at *5 (S.D.N.Y. June 8, 2001) ("Admission of evidence that satisfies [the Federal Rules of Evidence] will not violate a [state] criminal defendant's due process rights or provide the basis for habeas corpus relief.").
Third, an erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only "'where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman, 839 F.2d at 925 (emphasis in original).
See also, e.g., Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000); Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.) ("The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence 'is so extremely unfair that its admission violates fundamental conceptions of justice.'"), cert. denied, 525 U.S. 840, 119 5. Ct. 101 (1998); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) ("In order to prevail on a [habeas] claim that an evidentiary error deprived the defendant of due process under the Fourteenth Amendment he must show that the error was so pervasive as to have denied him a fundamentally fair trial. . . .").
The "fundamental fairness" standard applies to the erroneous exclusion or admission of evidence. See, e.g., Dunnigan v. Keane, 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.") (quoting Johnson v. Ross 955 F.2d 178, 181 (2d Cir. 1992)); Rodriguez v. O'Keefe, No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1068 (1998); Collins v. Scully, 755 F.2d at 18-19; Roldan v. Artuz, 78 F. Supp.2d at 276.
For the reasons stated by Judge Block in Dey v. Scully, "[h]armless error analysis is simply inapplicable to [trial] error that only attains constitutional significance when considered in the context of the entire trial because such analysis inheres in the initial finding that the error was constitutionally significant. A determination that such error was not harmless, after having already concluded that it denied the defendant a fundamentally fair trial, would be tautological." Dey v. Scully, 952 F. Supp. at 974; see also Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 1567 (1995) ("Agurs . . . opted for its formulation of materiality . . . only after expressly noting that this standard would recognize reversible constitutional error only when the harm to the defendant was greater than the harm sufficient for reversal under Kotteakos."); Washington v. Schriver, 255 F.3d 45, 56-57 (2d Cir. 2001) ("The creation of otherwise non-existent reasonable doubt [under Agurs] satisfies the "substantial and injurious' standard" under Brecht) (quoting Jones v. Stinson, 229 F.3d at 120); Coleman v. Greiner, 1999 WL 320812 at *4-5.
The final question is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue recently addressed by the Second Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial. Id. at 116. In dealing with a case of excluded testimony, the Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard. Jones v. Stinson, 229 F.3d at 120-21.
The Agurs materiality standard asks whether the excluded evidence, evaluated in the context of the entire record, "creates a reasonable doubt that did not otherwise exist." United States v. Argus, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02 (1976).
In sum, for Green to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish (1) that the trial court's evidentiary ruling was erroneous as a matter of state law, (2) under Agurs, that the admission of the evidence deprived him of a fair trial, and (3) under the AEDPA, that the First Department's affirmation of the trial court's ruling constituted an unreasonable application of the Agurs standard.
B. Application of This Standard to Green's Evidentiary Claim
After the defense, in cross-examination of complainant Souleymane Bah, explored in depth whether Souleymane testified that Green stole a long chain and a bracelet, or just a bracelet, on August 14, 1997, the trial court allowed the prosecution on redirect to have Souleymane explain that Green stole the chain in a prior incident some three or four months before August 14. (See pages 4-5 above.) Green contends that the admission of this prior uncharged crime evidence deprived him of his due process right to a fair trial. (Pet. ¶ 13; Ex. B: Green 1st Dep't Br. at 23-33.) Specifically, Green argued that the defense did not "open the door" to this testimony, and that its prejudicial impact outweighed any limited probative value. (Ex. B: Green 1st Dep't Br. at 24-28.)
The trial judge correctly held that the defense had "opened the door" to the evidence of the prior theft. (See page 4 above.) In New York, "where . . . the opposing party "opens the door' on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect "to explain, clarify and fully elicit [the] question only partially examined' on crossexamination." People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 949-50 (1982); see, e.g., People v. Bolden, 58 N.Y.2d 741, 742, 459 N.Y.S.2d 22, 23 (1982); People v. Regina, 19 N.Y.2d 65, 78, 277 N.Y.S.2d 683, 693 (1966) ("the prosecution's question on redirect examination was properly within the scope of matters gone into on cross-examination and did no more than to explain, clarify and fully elicit a question only partially examined by the defense"); People v. Buchanan, 145 N.Y. 1, 24, writ of error denied, 158 U.S. 31, 15 S.Ct. 723 (1895); People v. Marrero, 156 A.D.2d 141, 142, 548 N.Y.S.2d 188, 189 (1st Dep't 1989) ("[T]he court below properly permitted the introduction of evidence and testimony concerning a prior negative lineup, where defense counsel had opened the door' to admission of that evidence by, on cross-examination, repeatedly challenging [a witness's] ability to accurately identify the defendant as the assailant."), appeal denied, 75 N.Y.2d 921, 555 N.Y.S.2d 40 (1990); see also, e.g., United States v. Rea, 958 F.2d 1206, 1225 (2d Cir. 1992) ("The concept of "opening the door'. . . gives the trial court discretion to permit a party to introduce otherwise inadmissible evidence on an issue (a) when the opposing party has introduced inadmissible evidence on the same issue, and (b) when it is needed to rebut a false impression that may have resulted from the opposing party's evidence."); cases cited in fn. 25 below. More specifically, the New York Court of Appeals has held:
The "opening of the door" theory has been recognized in a variety of situations. For example, apparent inconsistencies or contradictions in a witness' statements or acts brought out on cross-examination to discredit his testimony may be reconciled on redirect by relating to the jury the relevant surrounding circumstances.
People v. Melendez, 55 N.Y.2d at 451, 449 N.Y.S.2d at 950. The "opening the door" theory extends to evidence of a defendant's prior criminal activity or bad acts.
See, e.g., People v. Rodriguez, 85 N.Y.2d 586, 591-92, 627 N.Y.S.2d 292, 295-96 (1995) (defendant's testimony that he only sold fake crack vials opened the door to evidence of his prior conviction for selling crack); People v. Davila, 257 A.D.2d 485, 486, 685 N.Y.S.2d 5, 6 (1st Dep't) ("defense counsel opened the door to evidence of defendant's prior threats and intimidating conduct by questioning the complainant about his failure to identify defendant, whom he knew by a 'street name,' immediately after the assault"), appeal denied, 93 N.Y.2d 968, 695 N.Y.S.2d 54 (1999); People v. Smith, 219 A.D.2d 533, 534, 631 N.Y.S.2d 683, 684 (1st Dep't) ("By raising an agency defense during his testimony, defendant opened the door to cross-examination concerning his prior crimes in order to promote the jury's consideration of the issue whether he was a seller [of drugs] or merely doing a favor for a friend."), appeal denied, 87 N.Y.2d 907, 641 N.Y.S.2d 237 (1995); People v. Jackson, 214 A.D.2d 475, 476, 625 N.Y.S.2d 218, 219 (1st Dep't) ("Defendant argues that the court erred in admitting testimony that he used crack in the victim's apartment since it unfairly placed his prior criminality before the jury. Contrary to this contention, defense counsel's cross-examination of the victim with respect to whether he and defendant had ever spent time together, whether the victim had used drugs, and whether the victim had ever "specifically' borrowed six dollars from defendant raised the issue of whether or not there was drug use in the victim's apartment, which gave the jury the unfavorable impression that the victim borrowed money from defendant to purchase crack, and thus opened the door to the prosecutor's redirect of the victim eliciting the testimony about which defendant complains."), appeal denied, 86 N.Y.2d 796, 632 N.Y.S.2d 509 (1995); People v. Castaneda, 173 A.D.2d 349, 349-50, 569 N.Y.S.2d 719, 720 (1st Dep't) (defendant opened the door to cross-examination "about his prior convictions of drug related offenses" by raising an agency defense on direct examination "that after . . . two undercover officers approached him and told him that they wanted to buy drugs, he directed them to a woman who sold drugs with the hope that the men would give him a tip"), appeal denied, 78 N.Y.2d 963, 574 N.Y.S.2d 943 (1991); see also, e.g., United States v. Vasquez, 267 F.3d 79, 83-85 (2d Cir. 2001) (defense's cross-examination regarding witness' possession of a gun "opened the door" for the prosecution's redirect eliciting testimony that witness armed himself because defendant had a "reputation" for killing people), cert. denied, 112 S.Ct. 1111 (2002); United States v. Diaz 176 F.3d 52, 80 (2d Cir.) (upholding the admission of redirect testimony that witness received money from the government to flee because she feared defendant, because defendant "opened the door for the government's redirect by creating an impression that [the witness] was being paid for her testimony and that the government was subsidizing her alleged "vacation"), cert. denied, 528 U.S. 875, 120 S.Ct. 181, 314 (1999); United States v. Brennan, 798 F.2d 581, 589-90 (2d Cir. 1986) ("the district court . . . did not abuse its discretion in admitting "other crimes' evidence" of previous bribery incidents, which "helped explain to the jury how the illegal relationship between [the defendant] and [the witness] developed." "Without this evidence the jury would have had a truncated and possibly confusing view of the respective roles played by [witness] and [defendant] and of the basis for the trust between [the defendant] and [the witness] and between [the defendant] and [the government informant]."), cert. denied, 490 U.S. 1022, 109 S.Ct. 1750 (1989); United States v. Harris, 733 F.2d 994, 1006-07 (2d Cir. 1984) ("a district judge has broad discretion in deciding whether to admit" evidence of prior "narcotics dealings," and "under the circumstances present here, we do not consider it to have been an abuse of discretion for the district judge to admit this testimony, which, if nothing else, tended to show the basis for [defendant's] trust of" the government's informant); Aziz v. Warden, 92 Civ. 0104, 1992 WL 249888 at *78 (S.D.N.Y. Sept. 23, 1992) (Token booth clerk who was robbed by petitioner "blurt[ed]" at trial that she recognized petitioner from "[a] previous robbery." Prosecutor "had not "open[ed] this [area] up intentionally," and it was not error for trial judge to admit the witness' identification of petitioner because "[u]nder both the New York and federal rules of evidence, testimony regarding prior crimes is admissible when it goes to the issue of identity. . . . The judge must merely weigh the probative value of testimony regarding uncharged crimes against any undue prejudice it may engender. . . . A judge has broad discretion in making this determination. . . .") aff'd 993 F.2d 1533 (2d Cir.), cert. denied, 510 U.S. 888, 114 S.Ct. 241 (1993).
As noted above, the defense here explored on cross-examination of Souleymane whether Green stole a chain and a bracelet, or just a bracelet, on August 14, and went so far as to ask whether Souleymane made "a mistake." (See page 4 above; Souleymane: Tr. 732.) Particularly in light of Souleymane's difficulty in testifying clearly even with an interpreter, that cross-examination "opened the door" to the explanation on redirect that Green had stolen a chain previously and stole a bracelet on August 14.
Green also alleges that the prejudicial value of this evidence outweighed its minimal probative value. (Ex. B: Green 1st Dep't Br. at 25, 28.) The First Department, however, rejected that argument, holding that "the probative value of the uncharged theft outweighed its prejudicial effect, particularly after defendant elicited from the complainant a prior inconsistent statement that was capable of being explained by the complainant's confusing references to the instant and prior crimes." People v. Green, 284 A.D.2d 144, 144, 725 N.Y.S.2d 204, 204 (1st Dep't 2001). The balancing under the prejudice vs. probative value test, state or federal, is left to the sound discretion of the trial judge. See, e.g., United States v. George, 266 F.3d 52, 63 (2d Cir. 2001) (Trial judge "is obviously in the best position to do the balancing mandated by Rule 403" and accordingly, has "'broad discretion' . . . to admit or exclude evidence pursuant to Rule 403."); United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000); United States v. Napoli, No. 98-1124, 173 F.3d 847 (table), 1999 WL 265 024 at *3 (2d Cir. Apr. 28, 1999) ("Under the balancing test of Rule 403, a district court is granted broad discretion."), cert. denied, 528 U.S. 1162, 120 S.Ct. 1176 (2000); People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 853-54 (1974) ("The rules governing the admissibility of evidence of other crimes represent a balance between the probative value of such proof and the danger of prejudice which it presents to an accused. . . . The particular limitations of proof must always depend on the individual facts and circumstances of each case. Such determination will best be made by the trial court."); People v. Washington, 233 A.D.2d 684, 687-88, 650 N.Y.S.2d 334, 338 (3d Dep't 1996) (It "is within the discretion of the Trial Judge to decide whether the probative worth of the evidence of other crimes on the issue of defendant's credibility outweighs the risk of unfair prejudice to him.") (citing cases), appeal denied, 89 N.Y.2d 1042, 659 N.Y.S.2d 873 (1997).
In federal court, the prejudice vs. probative value issue is governed by Rule 403 of the Federal Rules of Evidence, which provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .
The trial court (and the First Department) here did not err in exercising that discretion, and hence did not violate a state evidentiary rule. See, e.g., Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *17 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (the state trial court's admission of certain demonstrative evidence was "not an abuse of discretion and thus not an error of state law, much less an error of constitutional magnitude."); Jovner v. Miller, 01 Civ. 2157, 2002 WL 1023141 at *8 (S.D.N.Y. Jan. 7, 2002) ("In this case petitioner has not even established that the trial court committed error, much less that any error was so prejudicial that it deprived him of due process."); Roias v. Senkowski, No. CV-95-1866, 1996 WL 449321 at *5 (E.D.N.Y. July 29, 1996) ("The [state] trial court was entirely justified in finding that the probative value [of the evidence] outweighed any prejudice, and the decision was well within the judge's discretion. Thus there was no error of constitutional magnitude in the trial court's ruling that would warrant granting petitioner's habeas corpus petition on this ground.") (citation omitted); Aziz v. Warden, 1992 WL 249888 at *8.
Nevertheless, even if permitting the testimony was erroneous as a matter of state law (which it was not), any such error did not deprive Green of a fundamentally fair trial, given the strong evidence against him and Green's own admission at trial to other thefts. Green admitted he was there — there was no mistaken identity defense. (See pages 11-12 above.) Indeed, Green admitted that he stole clothes from the fashion store and expensive pens from the stationery store. (See page 13 above.) Green also admitted that he had been convicted of three prior felonies as well as prior misdemeanors. (See pages 13-14 above.) While Green denied stealing the bracelet, and denied having a box cutter, several eyewitnesses corroborated Souleymane's testimony that Green was the man who stole the bracelet and physically assaulted and cut Souleymane. (See pages 5-7, 12 above.) Such strong evidence of Green's guilt — and his own admission of prior and virtually simultaneous crimes — renders it unlikely that Souleymane's testimony regarding Green's prior theft of a chain deprived Green of a fundamentally fair trial.
Moreover, the trial judge gave a very specific limiting charge to the jury to ensure that jurors considered information about the earlier theft only on the issue of Souleymane's credibility, not Green's guilt or innocence. (See page 5 above.) Limiting instructions have been found to militate against a finding of constitutional error See e.g., Cruz v. Greiner, 98 Civ. 7839, 1999 WL 1043961 at *31 n. 26 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.) (rejecting petitioner's argument that "if you throw a skunk into the jury box, you can't instruct the jury not to smell it" and finding that the court's instruction to disregard inadmissible evidence rendered harmless any prosecutorial misconduct) ( cases cited therein).
The jury is presumed to obey a court's curative instruction. See, e.g., Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8 (1987) ("We normally presume that a jury will follow an instruction to disregard inadmissible evidence . . . , unless there is an overwhelming probability' that the jury will be unable to follow the court's instructions."); Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709 (1987) ("juries are presumed to follow . . . instructions"); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S.Ct. 488, 463 (1962) (When a limiting instruction is clear, "[i]t must be presumed that the jury conscientiously observed it."); see also, e.g., United States v. Linwood, 142 F.3d 418, 426 (7th Cir.) ("Juries may not be familiar with the hearsay rule, but the law assumes that they can and do follow the limiting instructions issued to them."), cert. denied, 525 U.S. 897, 119 S.Ct. 224 (1998); Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir.) (the court "assume[s] that a jury applies the instructions it is given"), cert. denied, 519 U.S. 834, 117 S.Ct. 106 (1996); United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993); Cruz v. Greiner, 1999 WL 1043961 at *31 n. 26.
The admission of testimony that Green stole from Souleymane's store prior to August 14 did not constitute state law error, nor deprive Green of a fundamentally fair trial. This claim in Green's habeas petition should be denied.
III. GREEN'S PROSECUTORIAL MISCONDUCT CLAIM LACKS MERIT
Green alleges that his right to a fair trial was compromised by the prosecutor's misconduct during cross-examination and summation when she "improperly alerted the jury to matters concerning punishment and sentencing."(Pet. ¶ 13, incorporating Ex. B: Green 1st Dep't Br. at 29.) Specifically, Green claims that the prosecutor ignored C.P.L. § 300.10(2), which provides that "the jury may not, in determining the issue of guilt or innocence, consider or speculate concerning matters relating to sentence or punishment." Green argues that the prosecutor improperly claimed that Green "made a calculated decision to admit to the minor misdemeanor counts but not the felonies" to avoid an enhanced sentence and "committed an additional impropriety when she called [Green's] sister a liar," and expressed her personal view as to Green's guilt. (Ex. B: Green 1st Dep't Br. at 29-31.)
"Prosecutorial misconduct violates a defendant's due process rights only when it is of sufficient significance to result in the denial of the defendant's right to a fair trial." Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *25 (S.D.N.Y. May 8, 2002) (Peck, M.J.) (quoting Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3109 (1987)); accord, e.g., United States v. McCarthy, 54 F.3d 51, 55 (2d Cir.), cert. denied, 516 U.S. 880, 116 S.Ct. 214 (1995); Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158 (1991). Stated another way, "the law is settled that "federal habeas relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the summation as a whole, were so fundamentally unfair as to deny petitioner a fair trial.'" Tejada v. Senkowski, 92 Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993), aff'd mem., 23 F.3d 397 (2d Cir.), cert. denied, 513 U.S. 887, 115 S.Ct. 230 (1994).
See also, e.g., . . . Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *9 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *30 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 367 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Readdon v. Senkowski, 96 Civ. 4722, 1998 WL 720682 at *4 (S.D.N.Y. Oct. 13, 1998); Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *4 (S.D.N.Y. Sept. 19, 1997); Beverly v. Walker, 899 F. Supp. 900, 911 (N.D.N.Y. 1995), aff'd, 118 F.3d 900 (2d Cir.), cert. denied, 522 U.S. 883, 118 S.Ct. 211 (1997); Washington v. Walker, 89 Civ. 7841, 1994 WL 391947 at *3 (S.D.N.Y. July 28, 1994) ("Even where a prosecutor's remarks are improper, 'constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair.'") (quoting Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990) (quoting Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986))).
Accord, e.g., Cromwell v. Keane, 2002 WL 929536 at *25; Brock v. Artuz, 2000 WL 1611010 at *9; Cruz v. Greiner, 1999 WL 1043961 at *30; Lugo v. Kuhlmann, 68 F. Supp.2d at 367; Franza v. Stinson, 58 F. Supp.2d 124, 149 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); see also, e.g., Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873 (1974); Floyd v. Meachum, 907 F.2d at 355 (quoting Garofolo v. Coombe, 804 F.2d at 205); Edmonds v. McGinnis, 11 F. Supp.2d 427, 437 (S.D.N.Y. 1998); Gaiter v. Lord, 917 F. Supp. 145, 153 (E.D.N.Y. 1996); Jones v. Kuhlmann, 93 Civ. 5963, 1995 WL733649 at *4 (S.D.N.Y. Dec. 12, 1995).
To properly evaluate the prosecution's actions, the alleged misdeeds must be placed in context, and "[t]he severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry." Blissett v. LeFevre, 924 F.2d at 440; accord, e.g., Greer v. Miller, 483 U.S. at 766, 107 S.Ct. at 3109 ("it is important 'as an initial matter to place th[e] remar[k] in context'"); United States v. McCarthy, 54 F.3d at 55; United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990); United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104 (1986).
See also, e.g., Cromwell v. Keane, 2002 WL 929536 at *25; Brock v. Artuz, 2000 WL 1611010 at *9; Cruz v. Greiner, 1999 WL 1043961 at *30; Lugo v. Kuhlmann, 68 F. Supp.2d at 367; Hurd v. Keane, 1997 WL 582825 at *4; Beverly v. Walker, 899 F. Supp. at 911.
First, Green's claim as to C.P.L. § 300.10(2) is misplaced. (Ex. B: Green 1st Dep't Br. at 29-30.) The prosecutor's cross-examination of Green and summation were not referring to the punishment Green would get but rather were fair comments on Green's direct testimony admitting that he stole the clothes and pens (misdemeanor charges) but claiming he did not rob the bracelet (felony charges). (See pages 12-16 above.) This was not erroneous, and in any event did not deprive Green of a fair trial, in light of the context, including Green's testimony, the strong evidence of his guilt, and the court's curative instruction that the jury was not to consider punishment. (Charge: Tr. 1132.) See, e.g., People v. Reid, 2002 WL 1480770 at *1 (1st Dep't July 11, 2002) ("defendant was not deprived of a fair trial by a comment by the prosecutor in summation which . . . revealed to the jury the likelihood that a person convicted of seventh-degree possession [of a controlled substance] would receive a lenient sentence" because the court "delivered a thorough instruction to the jury that it should not consider punishment, which the jury presumably followed."); see also cases cited at page 39 below.
Second, Green claims that the prosecutor negatively commented on Green's credibility and called his sister a liar. (Ex. B: Green 1st Dep't Br. at 30-31.) In New York, it is generally improper for a prosecutor to refer to a defendant or defense witnesses as liars. See, e.g., People v. Miller, 174 A.D.2d 901, 903, 571 N.Y.S.2d 597, 599 (3d Dep't 1991); People v. Martin, 172 A.D.2d 268, 270, 568 N.Y.S.2d 91, 93 (1st Dep't 1991) (prejudicial question as to whether defendant sold crack "was compounded by the Assistant's repeated use of the word liar in summation, a practice which has been condemned"); People v. Negron, 161 A.D.2d 537, 538, 556 N.Y.S.2d 41, 42 (1st Dep't 1990) ("While the tactic of branding defendant a liar in a criminal trial has been condemned the prejudicial impact was palliated" by curative instruction) (citation omitted). Nevertheless, such improper conduct does not necessarily deprive the defendant of a fair trial as a matter of New York state law see, e.g., People v. Dunn, 158 A.D.2d 941, 942, 551 N.Y.S.2d 432, 432 (4th Dep't) ("although the prosecutor was overzealous and improperly . . . called defendant a liar, we cannot say under all the circumstances that defendant was deprived of a fair trial" where, inter alia, trial court gave a curative instruction), appeal denied, 76 N.Y.2d 734, 558 N.Y.S.2d 896 (1990); People v. Chaney, 155 A.D.2d 985, 986, 548 N.Y.S.2d 129, 130 (4th Dep't 1989) ("Although the prosecutor acted overzealously . . . in one instance calling defendant a liar, we cannot say under all the circumstances that defendant was deprived of a fair trial."), error coram nobis denied, 237 A.D.2d 999, 655 N.Y.S.2d 739 (4th Dep't), appeal denied, 90 N.Y.2d 891, 662 N.Y.S.2d 434, cert. denied, 522 U.S. 957, 118 S.Ct. 384 (1997); People v. Widger, 126 A.D.2d 962, 962, 511 N.Y.S.2d 735, 736 (4th Dep't) (citing People v. Roopchand, 107 A.D.2d 35, 36, 485 N.Y.S.2d 332, 333 (2d Dep't), aff'd, 65 N.Y.2d 837, 493 N.Y.2d 129 (1985)), appeal denied, 69 N.Y.2d 1011, 517 N.Y.S.2d 1045 (1987), much less entitle a petitioner to habeas relief. See, e.g., Portuondo v. Agard, 529 U.S. 61, 70-73, 120 S.Ct. 1119, 1125-27 (2000) (finding no impropriety in prosecutor's "generic" comments on summation about defendant's credibility); Gonzalez v. Kuhlman, No. 95-2282, 101 F.3d 1392 (table), 1996 WL 364548 at *3 (2d Cir. 1996) (quoting United States v. Peterson, 808 F.2d 969, 977 (2d Cir. 1996) (permissible for the prosecutor to use "liar" when characterizing disputed testimony when the witness's credibility is clearly an issue unless use was "excessive or is likely to be inflammatory")), cert. denied, 520 U.S. 1132, 117 S.Ct. 1283 (1997); Strouse v. Leonardo, 928 F.2d 548, 556-57 (2d Cir. 1991) (repeatedly referring to defendant as "liar" improper but not denial of fair trial); United States v. Sanchez Solis, 882 F.2d 693, 697 (2d Cir. 1989) (direct appeal; "we have approved the limited, non-inflammatory use by a prosecutor of terms such as "lies' to describe testimony that is challenged as untruthful"; prosecutor's summation statements that defendant had lied on witness stand "were not inflammatory."); United States v. Resto, 824 F.2d 210, 212 (2d Cir. 1987 (direct appeal; prosecutor's summation statement that defendant's testimony consisted of inter alia "flat out-and-out lies" deemed "neither excessive nor inflammatory."); United States v. Peterson, 808 F.2d 969, 977 (2d Cir. 1987) (direct appeal; "[u]se of the words "liar' and "lie' to characterize disputed testimony when the witness's credibility is clearly in issue is ordinarily not improper unless such use is excessive or is likely to be inflammatory.").
See also, e.g., People v. Ortiz, 125 A.D.2d 502, 503, 509 N.Y.S.2d 418, 419 (2d Dep't 1986); People v. Hudson, 104 A.D.2d 157, 158, 483 N.Y.S.2d 215, 216 (1st Dept 1984); People v. Dowdell, 88 A.D.2d 239, 247, 453 N.Y.S.2d 174, 179 (1st Dep't 1982).
See also, e.g., United States v. Hoffman, 415 F.2d 14, 21 (7th Cir.) (prosecutor's reference to the accused as a "liar, crook, wheeler and dealer" were improper, but harmless in light of the weight of the evidence), cert. denied, 396 U.S. 958, 90 S.Ct. 431 (1969); Valdez v. Mazzuca, No. 00-CV-4961, 2002 WL 1364089 at *2-3 (E.D.N.Y. June 21, 2002) (prosecutor's cross examination of petitioner and comments on summation regarding truthfulness of his testimony did not deprive him of a fair trial); Hendrix v. Williams, 92 Civ. 8227, 1993 U.S. Dist. LEXIS 20946 at *5052 (S.D.N.Y. Oct. 15, 1993) ("The prosecutor's repeated assertion that petitioner was lying was . . . not impermissible."), report rec. adopted, 1995 U.S. Dist. LEXIS 14391 (S.D.N.Y. Sept. 29, 1995); Lucas v. Scully, 86 Civ. 1206, 1989 WL 97866 at *14-15 (S.D.N.Y. Aug. 15, 1989) ("the sixteen instances where the prosecutor stated that [petitioner] lied on the witness stand were neither excessive nor inflammatory under the circumstances"); Nickens v. Henderson, 88 Civ. 4528, 1989 U.S. Dist. LEXIS 16875 at * 15-18 (S.D.N.Y. Oct. 6, 1989) ("use of the words "fabrication' or "lie' is not per se improper, and is not tantamount to a denial of a fair trial, particularly when [petitioner's] credibility is such an issue."), report rec. adopted, 1990 U.S. Dist. LEXIS 6837 (S.D.N.Y. May 9, 1990).
Here, however, the prosecutor in summation never called Green a liar (see Prosecution Summation: Tr. 1083-118), but merely commented on the credibility of the witnesses, including Green and his sister. In the context of the entire summation, and the strong evidence of Green's guilt, the prosecutor's summation did not deprive Green of a fair trial See e.g., United States v. Greenwood, No. 99-1545, 213 F.3d 627 (table), 2000 WL 562432 at *1 (2d Cir. May 4, 2000) ("A prosecutor's improper summation statements require a new trial only if they cause substantial prejudice to the defendant, depriving him of a fair trial." Even though prosecutor's comments constituted "misconduct," petitioner was not deprived of a fair trial where evidence of his guilt was "strong."); Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (although prosecutor made improper statements during summation such as that prosecution witnesses had no reason to lie, trial not fundamentally unfair where trial court instructed jury that the summations were not evidence and evidence against defendant was strong).
The prosecutor referred to Green's sister's testimony as a "little lie, just to help out" a family member. (Prosecution Summation: Tr. 1108-09.)
See also, e.g., Everett v. United States, No. 00-CV-6300, 2002 WL 1447487 at *2-3 (E.D.N.Y. July 3, 2002) (denying habeas because "the prosecutor's summation did not deny petitioner due process" even though the prosecutor made "several improper remarks" because "none of these comments, read in context, amounted to severe misconduct. . . . [and] in light of the strength of the evidence against petitioner, including that petitioner was caught exiting the victim's apartment building with the victim's jewelry, the certainty of conviction absent the comments is high."); Fernandez v. Artuz, 97 Civ. 2989, 2002 WL 977372 at *4 (S.D.N.Y. May 9, 2002) (The fact that the prosecutor "argued that the [defense] witnesses had fabricated their testimony" did not merit habeas relief, although a "prosecutor should never express a personal view, it cannot be said that the thrust of the argument was unfair" and "[i]n 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."); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 367-69 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.) (collecting cases).
____________In any event, the Court cannot say that the First Department's conclusion that the prosecutor's summation did not deprive Green of a fair trial, People v. Green, 284 A.D.2d at 144, 725 N.Y.S.2d at 204, involved an unreasonable application of clearly established federal law. See also, e.g., Valdez v. Mazzuca, 2002 WL 1364089 at *2.3 (The Appellant Division's holding — that "several [improper] remarks made by the prosecutor" during summation and cross-examination, such as accusing the petitioner of telling a "story" and asking whether petitioner has "any respect for the oath at all" nevertheless constituted "harmless error because the evidence of guilt was overwhelming" — did not merit habeas relief because petitioner failed to show that the state court's determination was "contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court"); Flores v. Keane, 94 Civ. 5096, 2001 WL 669152 at *5.8 (S.D.N.Y. June 13, 2001) ("The Appellate Division's decision to deny Petitioner's claims regarding the prosecutor's alleged misconduct was not "contrary to or an unreasonable application of clearly established federal law" in light of many factors, including "overwhelming" evidence of guilt.).
IV. GREEN'S CLAIM THAT THE USE OF HIS PRIOR CONVICTIONS TO ENHANCE HIS SENTENCE VIOLATED APPRENDI IS BARRED FROM HABEAS REVIEW BECAUSE IT WAS DENIED ON ADEQUATE AND INDEPENDENT STATE LAW GROUNDS, AND IN ANY EVENT IS WITHOUT MERIT
Green claims that his "concurrent sentences of twenty years to life imprisonment as a persistent violent felon pursuant to Penal Law § 70.08 and C.P.L. § 400.16 violate his rights to notice of the charges against him, to a jury trial, and to due process of law, as the enhanced sentences were premised upon the existence of two violent predicate convictions, where the existence of the prior convictions was neither submitted to a jury, nor contained in an indictment," and thus are constitutionally deficient under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). (Ex. B: Green 1st Dep't Br. at 33; see also id. at 33-47.) The First Department held that Green's "constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit." People v. Green, 284 A.D.2d 144, 144, 725 N.Y.S.2d 204, 205 (1st Dep't 2001).
A. Green's Apprendi Sentencing Claim is Barred By An Adequate and Independent State Procedural Bar
Because the trial court's decision rejecting Green's Apprendi sentencing claim was based on an adequate and independent state law ground, this claim is barred from federal habeas review.
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
For decisions by this Judge discussing the adequate and independent state ground doctrine see Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *34 (S.D.N.Y. July 9, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *829 (S.D.N.Y. May 31, 2002) (Peck, M.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *20 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *8 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *7 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *9 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 209 (S.D.N.Y. 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted, 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (S.D.N.Y. Apr. 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.), certificate of appealability denied, 2000 WL 8249 (S.D.N.Y. Jan. 4, 2000); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hansimajer, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).
"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 1O, 109 S.Ct. at 1044 n. 1O ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Garcia v. Lewis, 188 F.3d 71, 77-82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d at 724-25. Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.
Because there is an adequate and independent finding by the state trial court that Green procedurally defaulted his Apprendi claim, Green would have to show in his habeas petition "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; see also pages 43-44 above. Here, Green has not alleged cause nor made a showing of actual innocence. Thus, habeas review of Green's claim based on his enhanced sentence pursuant to Apprendi is procedurally barred.
Although the Supreme Court decided Apprendi in June 2000, two years after Green's sentencing, the New York Court of Appeals has unequivocally held that even where, as here, sentencing occurred before Apprendi, "any alleged error [in sentencing based on Apprendi] required preservation." People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 410, cert. denied, 122 S.Ct. 224 (2001).
See also, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995) (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence").
B. Even If It Were Not Procedurally Barred. Green's Apprendi Claim Lacks Merit
Even if Apprendi were applicable to Green's sentencing claim, his claim is meritless because it ignores the plain language of Apprendi.
Green's trial and sentencing preceded Apprendi, but he raised the issue on direct appeal to the First Department. It is not clear, therefore, whether there would be any retroactivity issue in connection with reaching the merits of Green's Apprendi claim on this § 2254 habeas petition. The State has not addressed any aspect of the Apprendi claim except the procedural bar/adequate and independent state ground issue.
The Court notes that neither the Supreme Court nor the Second Circuit has determined whether Apprendi applies retroactively in § 2254 habeas cases See e.g., Harris v. United States, 122 S.Ct. 2406, 2427 (2002) (Thomas, J., dissenting) ("No Court of Appeals, let alone this [Supreme] Court, has held that Apprendi has retroactive effect."); Beatty v. United States, No. 01-2493, 2002 WL 1041375 at *2 n. 3 (2d Cir. May 24, 2002) (declining to decide whether Apprendi applies retroactively on collateral review, but noting that the issue was sub judice in another case, which has not been decided as of the issuance of the present Report Recommendation); Forbes v. United States, 262 F.3d 143, 145, 146 n. 5 (2d Cir. 2001) ("it is clear that Apprendi is not a new rule of constitutional law which has been made retroactive to [§ 2255] cases on collateral review by the Supreme Court" in context of successive § 2255 petition, while leaving open issue of retroactive effect on first petitions under § 2255 or § 2254); Santana-Madera v. United States, 260 F.3d 133, 141 (2d Cir. 2001) ("To date, the Supreme Court has not offered any guidance on whether Apprendi has retroactive application to cases on collateral review. And this Court has not yet ventured where the Supreme Court has thus far feared to tread."), cert. denied, 122 S.Ct. 817 (2002); Ida v. United States, 00 Civ. 8544, 2002 WL 1203855 at *12 (S.D.N.Y. June 4, 2002) (issue of Apprendi's retroactive application on collateral review "still is open in this Circuit.").
In the § 2255 context, all of the other Circuit Courts that have reached the issue have held that Apprendi is not to be applied retroactively. See, e.g., . . . Johnson v. Menifee, No. 01-6900, 2002 WL 1473617 at *1 (4th Cir. July 10, 2002); United States v. McFadden, No. 01-6373, 2002 WL 1435913 (10th Cir. July 3, 2002) (quoting United States v. Mora, No. 01-8020, 2002 WL 1317126 at *4 (10th Cir. June 18, 2002)); Wright v. Brooks, No. 02-6038, 2002 WL 1371072 a *1 (4th Cir. June 26, 2002); Curtis v. United States, No. 01-2826, 01-2827, 2002 WL 1332817 at *1 (7th Cir. June 19, 2002); Chambers v. Romine, No. 01-3260, 2002 WL 1283398 at *2 (3d Cir. May 6, 2002); In re Smith, 285 F.3d 6, 9 (D.C. Cir. 2002); McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001), cert. denied, 122 S.Ct. 2362 (2002); United States v. Moss, 252 F.3d 993, 997-1001 (8th Cir. 2001), cert. denied, 122 S.Ct. 848 (2002). The vast majority of district court decisions in this Circuit have come to a similar conclusion in § 2255 cases. See, e.g., Acevedo v. United States, 00 Civ. 9696, 2002 WL 1453828 at *3 (S.D.N.Y. July 3, 2002); Hernandez v. Shearin, 01 Civ. 9847, 2002 WL 1431721 at *2 (S.D.N.Y. July 2, 2002); Vargas v. United States, 01 Civ. 5527, 2002 WL 1402010 at *4 (S.D.N.Y. June 28, 2002); Parrado v. United States, 01 Civ. 2892, 2002 WL 1392004 at *23 (S.D.N.Y. June 25, 2002); Hargrett v. United States, No. 5:01-CV-1046, 2002 WL 1343469 at *3 (N.D.N.Y. June 14, 2002); Quinones v. United States, No. 5:01-CV-0974, 2002 WL 1313204 at *2 (N.D.N.Y. June 14, 2002).
While few if any cases in this Circuit discuss Apprendi's retroactive application in § 2254 cases, those Courts of Appeals that have reached the issue have found that Apprendi does not apply retroactively in § 2254 habeas cases. See, e.g., Reynolds v. Cambra, 290 F.3d 1029, 1030 (9th Cir. 2002); Thompson v. Hill No. 01-35479, 2002 WL 1378958 at *2 (9th Cir. June 25, 2002); Meriweather v. Maass, No. 01-35375, 32 Fed. Appx. 973, 973, 2002 WL 5704323 at *1 (9th Cir. Apr. 16, 2002); Hunter v. Hill No. 01-35416, 31 Fed. Appx. 566, 566, 2002 WL 464749 at *1 (9th Cir. Mar. 11, 2002); Hartman v. Lee 283 F.3d 190, 192 n. 2 (4th Cir. 2002); United States v. Sanchez-Cervantez, 282 F.3d 664, 668 (9th Cir. 2002) ("[T]he Teague retroactivity doctrine applies to both § 2254 and § 2255 habeas petitions" and Apprendi does not "fit within one of Teague's exceptions," and thus does not have retroactive effect.); Burch v. Corcoran, 273 F.3d 577, 584 (4th Cir. 2001), cert. denied, 122 S.Ct. 2311 (2002). In any event, the Court need not reach any aspect of this issue here, since it is clear that Green's Apprendi claim lacks merit.
In Apprendi, the Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. at 23 62-63 (emphasis added). Apprendi therefore clearly is inapplicable on its face to a challenge, such as Green's here, to an increased sentence based on prior convictions. Indeed, all post-Apprendi decisions in which an enhanced sentence was based on a prior conviction(s) have held such a sentence to be valid under Apprendi. See, e.g., United States v. Anglin, 284 F.3d 407, 409-11 (2d Cir. 2002); see also, United States v. Calderon-Villeda, No. 01-1402, 2002 WL 535051 at * 1 (2d Cir. Apr. 10, 2002); United States v. Pimentel, 27 Fed. Appx. 15, 16, 2001 WL 1178804 at *1 (2d Cir. Oct. 3, 2001); United States v. Latorre-Benavides, 241 F.3d 262, 263-64 (2d Cir.), cert. denied, 532 U.S. 1045, 121 S.Ct. 2013 (2001).
See also, e.g., United States v. Martinez-Martinez, No. 01-10294, 2002 WL 1492144 at *2 (9th Cir. May 14, 2002); United States v. Moore, 286 F.3d 47, 50-51 (1st Cir. 2002) ("in the post-Apprendi era, we have ruled with a regularity bordering on the monotonous that, given the explicit exception and the force of Almendarez-Torres, the rational of Apprendi does not apply to sentence-enhancement provisions based upon prior criminal convictions.").
Moreover, Green admitted to his prior felony convictions at sentencing (S. 3) and before the jury at trial (Green: Tr. 990-91), which would obviate any Apprendi issue even if Apprendi applied to prior convictions. See United States v. Champion, 234 F.3d 106, 109-10 n. 3 (2d Cir. 2000) ("[A]t trial, [defendant] stipulated to the quantity of drugs involved in his crime. . . . Under the stipulation, a jury could not have found differently" and, therefore, "the fact that the judge, at sentencing" used the stipulated quantity to sentence defendant did not constitute an Apprendi violation.); cf., e.g., Hargrett v. United States, No. 01-CV-1046, 2002 WL 1343469 at *2 (N.D.N.Y. June 14, 2002) ("[W]hen the defendant admits the quantity of drugs for which he is accountable," in his plea allocution, "Apprendi is satisfied and does not limit the sentence which maybe imposed."); Carmona v. United States, No. 01-CV-0286, 2001 WL 761169 at *2 (E.D.N.Y. Apr. 25, 2001); Jimenez v. United States, 168 F. Supp.2d 79, 83 (S.D.N.Y. 2001).
For all these reasons, Green's A rendi claim should be denied.
V. GREEN'S CUMULATIVE ERRORS CLAIM IS UNEXHAUSTED AND PROCEDURALLY BARRED FROM HABEAS REVIEW
For additional decisions authored by this Judge discussing the exhaustion doctrine in language substantially similar to that in this entire section of this Report Recommendation, see Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *1546, *1920 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5-6 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Bailey v. People, 01 Civ. 1179, 2001 WL 640803 at *34 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *840 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Brock v. Artuz, 99 Civ. 1903, 2000 WL161 1010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at * S (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000); Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *2 (S.D.N.Y. July 5, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.), error coram nobis denied, 267 A.D.2d 1109, 703 N.Y.S.2d 430 (1st Dep't 1999); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999)(Baer, D.J. Peck, M.J.);Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground. rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).
Green alleges in his habeas petition that "the cumulative effect of numerous errors resulted in denial of a fundamentally fair trial." (Pet. ¶ 13.) Green failed to raise this claim before the New York appellate courts. (See generally Ex. B: Green 1st Dep't Br.)
Section 2254 codifies the exhaustion requirement, providing that "[a]n 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 . . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., ., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 1195, Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 1025 Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Dave v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732.
The Second Circuit determines whether a claim has been exhausted by applying a twostep analysis:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.); accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844-47, 119 S.Ct. at 1732-34.
"The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented' to the state courts." Daye v. Attorney General of New York, 696 F.2d at 191; accord, e.g.,, O'Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997). The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Jones v. Vacco, 126 F.3d at 4 13-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir 1984); Dave v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (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.
Dave v. Attorney General, 696 F.2d at 194; accord, e.g., Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997).
Green's brief to the First Department did not assert any claim of cumulative trial errors, much less raise such a claim in federal constitutional terms. See Ex. 4: Green 1st Dep't Br.) The claim, therefore, is not exhausted.
"'For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'" Reves v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989))).
Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); Bossett v. Walker, 41 F.3d at 828 ("[I]f the petitioner no longer has "remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted.").
"In such a case, a petitioner no longer has "remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.
In this case, it is clear that Green is now barred from raising his fourth habeas claim in state court because it could have been raised on direct appeal, but was not. As the Second Circuit explained in Washington v. James:
C.P.L. § 440.10(2)(c) states, in pertinent part:
2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:
Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.
As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal see McKinney's 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.996 F.2d at 1446-47 (emphasis in original).
See also, e.g., Reyes v. Keane, 118 F.3d at 139 ("Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added); Bossett v. Walker, 41 F.3d at 829.
"To avoid such a procedural default, a habeas petitioner must demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice, i.e., a showing of actual innocence." Brock v. Artuz, 2000 WL 1611010 at * 13 (internal quotations alterations omitted; citing cases).
Green has not attempted to show cause, prejudice, or actual innocence. Accordingly, Green s cumulative trial errors habeas claim should be denied as unexhausted and procedurally barred.
In any event, the claim is without merit. The Second Circuit recognizes a "cumulative error" rule for reversal of a conviction or habeas relief. See, e.g., Sanders v. Sullivan, 701 F. Supp. 1008, 1012 (S.D.N.Y. 1988) (citing United States v. Alonso-Perez, 535 F.2d 1362 (2d Cir. 1976), as "establish[ing] that the Second Circuit observes a "cumulative error' rule."); See also, e.g., United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir. 1999) ("the accumulation of non-errors does not warrant a new trial."); Jovner v. Miller, 01 Civ. 2157, 2002 WL 1023141 at *13 (S.D.N.Y. Jan. 7, 2002) ("Habeas relief may be justified based on the cumulative effect of errors that, standing alone, would not warrant the granting of a new trial. [citing Lumpkin.] But implicit in such a claim is, first, that the alleged individual errors a petitioner seeks to aggregate are actually errors. In addition, in order for the cumulative effect of errors to warrant a new trial, the claimed errors must be 'so prejudicial that they rendered petitioner's trial fundamentally unfair.'") (citations omitted, emphasis in original); Barrigar v. Couture, No. 9:98-CV-0668, 2001 WL 1860889 at *10 (N.D.N.Y. June 27, 2001); Collins v. Scully, 878 F. Supp. 452, 459-61 (E.D.N.Y. 1995). As Judge Motley noted, however, "[t]he cumulative-error rule, whatever form it takes, can only come into play after errors have been discovered; if no one error requires reversal, the whole body of error is to be assessed for prejudicial effect." Sanders v. Sullivan, 701 F. Supp. at 1013. The Court here has not found any error in the specific issues raised by Green (admission of prior crime evidence or prosecutorial comments), so there are no errors to cumulate. Moreover, the Court in preparing this Report Recommendation has reviewed the entire trial transcript, and finds that Green was not deprived of a "fundamentally fair" trial. Thus, Green's cumulative error claim, even if not procedurally barred, lacks merit.
CONCLUSION
For the reasons set forth above, Green's habeas petition should be denied. Since Green's petition fails to make a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. 28 U.S.C. § 2253(c)(2).FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Stein. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
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(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to. . . raise such ground or issue upon an appeal actually perfected by him. . .