Hinds v. Ricks

Full title: MONTY HINDS, Petitioner, v. THOMAS RICKS, Superintendent of State…

Court: United States District Court, E.D. New York

Date published: Jul 29, 2003

00-CV-3578 (JBW), 03-MISC-0066 (JBW) (E.D.N.Y. Jul. 29, 2003)

Opinion

00-CV-3578 (JBW), 03-MISC-0066 (JBW)

July 29, 2003

MEMORANDUM, JUDGMENT ORDER

JACK WEINSTEIN, Senior District Judge.

The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

The evidence showed that in June, 1996 at approximately 4:20 a.m. at Kingston Avenue and Bergen Street in Brooklyn, petitioner shot and killed one Joseph Felder.

Petitioner was charged by Kings County Indictment Number 8737/96 with two counts each of Murder in the Second Degree (N.Y. Penal Law §§ 125.25[2]), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.3), and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02[4]).

Following a jury trial petitioner was convicted of Murder in the Second Degree (N.Y. Penal Law § 125.25[2]) and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265,03).

He was sentenced to concurrent prison terms of twenty years to life for the, murder count and three to six years for weapon possession count. The same trial judge presided at the suppression hearing, trial and sentence.

Petitioner appealed from his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department. See N.Y. Crim. Proc. Law § 450.10(a). In his brief on appeal, petitioner claimed:

1. The prosecutor committed misconduct by failing to disclose Brady and Rosario material, concealing the whereabouts of a witness, and making improper summation comments;

2. The Court's bias, as evidenced by a number of its rulings, deprived petitioner of a fair trial;

3. Several of the court's jury instructions were erroneous;

4. The court erred when it permitted a juror to attend to a personal matter during deliberations; and

5. The court improperly admitted into evidence a written transcript of petitioner's videotaped statement.

By decision and order dated May 3, 1999, the Appellate Division unanimously affirmed the judgment of conviction. People v. Hinds, 261 A.D.2d 415, 690 N.Y.S.2d 74 (2d Dep't 1999). It held that the People did not violate Brady v. Maryland, 373 U.S. 83, 87 (1963), because the People had disclosed the document in question to the defense before jury selection. Id. All of petitioner's remaining claims were either "unpreserved for appellate review or without merit." Id.

Petitioner applied for permission to appeal to the New York Court of Appeals. See N.Y. Crim. Proc. Law §§ 450.90, 460.20. By certificated dated August 13, 1999, a judge of the Court of Appeals denied permission to appeal further. People v. Hinds, 93 N.Y.2d 1019, 697 N.Y.S.2d 578 (1999).

An application for a federal writ of habeas corpus was filed on June 16, 2000. Petitioner claims, as he did in his brief to the Appellate Division, that he had been denied his right to a fair trial by the trial court's bias, its defective jury instructions, and its improper admission of a written transcript of his videotaped statement. Additionally, petitioner claims that the prosecutor committed a Brady violation, and that a juror's family court appearance during deliberations compromised the verdict.

II. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. Limitations Period

Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.

Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).

"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.

In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).

The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).

The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).

A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").

The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).

Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,

If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.

Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).

IV. Exhaustion

In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).

V. Procedural Bar

A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can 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." Coleman, 501 U.S. at 750.

If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.

VI. Actual Innocence

"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).

Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.

A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).

VII. Ineffective Assistance of Counsel

The Counsel Clause of the Sixth Amendment provides that a criminal "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).

As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").

There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).

Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).

VIII. Errors of State Law

Federal habeas corpus relief does not lie for mere errors of state law, Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).

IX. Evidentiary Error

For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).

IX. Verdict Against the Weight of the Evidence

To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.

X. Legal Claims Frequently Raised in Habeas Corpus Applications

For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);

XI. Harmless Error

In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).

When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).

XII. Certificate of Appealability

This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").

A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, ___ F.3d ___, No. 02-2320, slip op. at 10 (2d Cir. July 18, 2003).

XIII. Analysis of Claims

As the first ground petitioner claims that the prosecutor's withholding of "material[s] relating to eyewitnesses, [including] their criminal histories and [their] perpetrator descriptions given to the police," constituted a violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), because the information would have undermined claims as to the voluntariness of petitioner's inculpatory statements.

In his brief to the Appellate Division petitioner asserted that the prosecutor committed Brady and Rosario violations by failing to disclose the criminal history of the People's eye witness, Leon Taylor. He also claimed that the prosecutor did not disclose a police complaint follow-up report documenting an interview with Billy Phillips — a man to whom Taylor allegedly had recounted his observations of the murder without specifically inculpating petitioner in the shooting. Petitioner argued that, had he possessed these materials, he would have been able to impeach the suppression hearing testimony of the arresting detective, thereby establishing a lack of probable cause to support his arrest.

In its brief to the Appellate Division, the People argued that it had not committed Brady and Rosario violations because the materials in question were disclosed to the defense prior to trial. The Appellate Division agreed correctly holding that no violations had occurred because the materials had been turned over to the defense before the commencement of jury selection.

Here, the People satisfied their disclosure obligations by providing Taylor's criminal history and the police complaint follow-up report to the defense prior to trial. The timely disclosure of Taylor's criminal history is illustrated by Taylor's extensive trial testimony about his contacts with the criminal justice system (Taylor: 138-45, 216-17, 222-35). Moreover, as acknowledged by defense counsel, petitioner was in receipt of the police complaint follow-up report detailing the interview with Phillips prior to jury selection (191, 371, 599-600). Thus, because petitioner's timely receipt of these materials enabled him effectively to use them at trial, petitioner's due process rights were not violated.

To the extent that petitioner claims that he was entitled to Taylor's criminal history and the police report detailing the interview with Phillips prior to the suppression hearing, petitioner's claim is not persuasive. Petitioner was not entitled to these materials at that juncture because neither Taylor nor Phillips testified at the suppression hearing. See N.Y. Crim. Proc. Law § 240.45(1)(a). They were not Brady materials.

Had these materials been disclosed prior to the suppression hearing, the hearing court's determination that petitioner's statements were voluntary would have been unaffected. Detective Paul testified at the suppression hearing that after he had read petitioner his Miranda warnings from a pre-printed card, petitioner signed the card, stating that he understood all of his rights, then admitted that he shot the victim (Paul: H. 11-14, 16-17, 31, 35-37, 39). Several hours later, petitioner repeated his statement to an assistant district attorney (Paul: H. 20, 40-41, 44; Gleeson: H. 53-55).

In light of this evidence, Taylor's criminal history and the police complaint follow-up report would have had no foreseeable impact on the hearing court's denial of petitioner's motion to suppress his statements. Thus, there is no reasonable probability that, had his counsel had access to the materials earlier, the results of the suppression hearing and trial would have been different. See United States v. Bagley, 473 U.S. at 682. Accordingly, to the extent that petitioner's Petition is based upon an alleged Brady and Rosario violations, the petition is denied.

As the second ground petitioner claims that the trial court displayed a bias against him by denying his request to examine pages of the police precinct record book, and by "reliev[ing] the prosecutor from his burden of proof by holding that there could be an `explanation' for the prosecutor's refusal to provide critical evidence." This claim is procedurally barred and is meritless. Any errors were harmless. The Appellate Division denied petitioner's present claim on the basis of an adequate and independent state ground.

Petitioner has not asserted any cause for his failure to comply with the state's contemporaneous objection rule. The trial court did not deny petitioner's request to view the precinct log book. Instead, petitioner asked for production of the log book, the court reserved judgment, and the log book was never mentioned again (H. 47). In any event, the police precinct log book had little relevance to the proceedings. Petitioner sought the log book to impeach the arresting detective's suppression hearing testimony about when he first contacted the district attorney, but, even if the log book would have accomplished this objective, the hearing court's determinations would have been unaffected.

The trial court did not dilute the prosecutor's burden of proof. In support of this claim, petitioner relies on the trial court's observation that the times listed on petitioner's statements would ordinarily refer to the time the statement was executed, although there could be an "explanation if it is otherwise" (H 71). It is unclear how the court's observation could have diluted the prosecutor's burden of proof. The challenged remark was made in response to defense counsel's argument that the times on the documents merely reflected when the document was signed. Thus, the prosecutor was not "relieved" of his burden of proof. As the trier of the facts on preliminary motions, the trial court properly expressed its view on appropriate inferences.

Here, in light of the overwhelming evidence of petitioner's guilt based on petitioner's admissions and the positive and reliable identification by an eyewitness who knew petitioner, any alleged errors did not have a substantial or injurious effect in determining the jury's verdict. Accordingly, the petitioner's claim is rejected.

As the third ground petitioner claims that he was deprived of a fair trial when the court permitted a juror to attend a Family Court proceeding during deliberations. This claim is procedurally barred and meritless.

In the Appellate Division petitioner claimed that the court erred when it interrupted deliberations so that a juror could attend a Family Court proceeding. The People, in their respondent's brief, argued that this claim had been waived because petitioner had suggested that the court suspend deliberations to accommodate the juror. The People also argued that, in any event, the trial court's actions were entirely proper.

In the morning of the first day of jury deliberations, the court was informed that Juror Number Two had a child support case calendared for 12:00 p.m. that day in Brooklyn Family Court (751-53). After questioning the juror about the nature of the proceeding, and ascertaining that the juror had waited a long time for the arrival of the Family Court date, the court informed the juror that it would arrange to have her case called later in the day, presumably after deliberations had concluded, so that she could attend her court date (752-54). The court later indicated that it had succeeded in getting the juror's Family Court case adjourned to 2:00 p.m. that day (755).

Claiming that the juror might be inclined to rush her deliberations so that she could attend her 2:00 p.m. court date, defense counsel moved for a mistrial. The court denied petitioner's motion (756-57). Defense counsel then requested that the court suspend deliberation so that the juror could honor her Family Court commitments (767, 769). After reminding the juror of the importance of her deliberations, and urging the juror to not let her Family Court matter interfere with her present duties, the court permitted the juror to attend her 2:00 p.m. court date (770-71). Deliberations were suspended, Juror Number Two was instructed not to discuss the case with anyone until she returned, and the juror was escorted across the street to Brooklyn Family Court, and presumably back again, by a court officer (772, 786). Later that day, at approximately 4:00 p.m., the jury reached a verdict (787).

The court's inquiry of the juror and its decision to permit the juror to honor her Family Court date were proper. While section 310.10(1) of the New York Criminal Procedure Law provides that a deliberating jury must be kept together, a court has discretion to permit separation of jurors so long as the separated jurors are supervised. People v. Fernandez, 81 N.Y.2d 1023, 1024, 599 N.Y.S.2d 911 (1992); People v. Speed, 226 A.D.2d 1090, 1091, 641 N.Y.S.2d 937 (4th Dep't 1996). Here, Juror Number Two was accompanied by a court officer.

Petitioner has failed to show how he was prejudiced by the juror's brief absence. In fact, by granting defense counsel's request and permitting the juror to appear in Family Court, the court effectively alleviated any pressure the juror might have felt to compromise her deliberations in order to deliver a speedy verdict. Moreover, the court's questioning of the juror and subsequent cautionary instructions ensured that the deliberations and resulting verdict were not compromised. Accordingly, petitioner's claim of error is rejected.

Petitioner claims that the court erred in permitting the jury to read a transcript of a videotape while the videotape was played in open court. Specifically, petitioner argues that because the prosecutor failed to establish a proper foundation, the transcript should have been excluded. This claim is procedurally barred, meritless and harmless. The practice is regularly followed in federal courts. State courts are not limited to the 18^th Century in their use of technology.

Here, the court minimized any claimed prejudice by instructing the jury that it was to use the transcript solely as an aid and that it should primarily focus on the tape's contents (500). No claim was raised as to the correctness of the transcript. Further, the evidence of petitioner's guilt was overwhelming. This claim is rejected.

The fifth and final ground in support of his petition is that several aspects of the court's jury instructions deprived him of a fair trial. Specifically, petitioner claims that the court erred when it: (1) failed to instruct the jurors that they should not "abandon a personal opinion for that of their colleagues;" (2) "liken reasonable doubt to an undefined `shadow of a doubt';" (3) declined to charge all of the elements of attenuation; (4) inaccurately marshaled the evidence by misstating the time at which petitioner made a statement to Detective Paul; and (5) responded to the jury's request for further instructions by merely re-reading it's original instructions. All of petitioner's claims regarding the court jury charge are meritless. In any event, any possible errors were harmless.

The court specifically instructed the jurors that they should safeguard their personal opinions. The court stated, "It is your duty to agree upon a verdict, if possible, without the surrender of your own personal conscientious opinion and view of the evidence, but do not be arbitrary or stubborn" (709). Thus, petitioner's claim is inaccurate.

Contrary to petitioner's contention, the court's reasonable doubt instructions were correct. At the outset of its reasonable doubt charge, the court stated,

The standard of proof required by law in every criminal case is proof of guilt beyond a reasonable doubt. That standard, however, does not require the People to prove the defendant guilty beyond all possibility of doubt or beyond a shadow of a doubt. It requires the People to establish the defendant's guilt beyond a reasonable doubt.

(671).

Petitioner now claims that the court erred in referring to "a shadow of a doubt." This portion of the court's reasonable doubt charge is nearly identical to that contained in the New York State model criminal jury instructions, including the reference to "a shadow of a doubt." See N.Y. C.J.I. § 6.20. Petitioner's unsupported claim to the contrary should be rejected.

Petitioner's claim that the court's attenuation instructions were incomplete is also meritless. The charge, when read in its entirety, conveyed the correct legal standard. The factors to be considered in determining attenuation of "poison" between what would be inadmissible and admissible admissions are the length of time between the illegal arrest and the statement, the presence of intervening factors, and the purpose and flagrancy of the official misconduct. See People v. Harris, 77 N.Y.2d 434, 440-41, 568 N.Y.S.2d 702, 706 (1991); see also People v. Conyers, 68 N.Y.2d 982, 983, 510 N.Y.S.2d 552 (1986). Here, the court instructed the jury that the factors that it should consider in determining whether petitioner's statement was attenuated from possible illegal police conduct were the passage of time (685-86), intervening events (686-87), and the purpose and flagrancy of the official misconduct (687). The court's instruction was satisfactory.

Petitioner's claim that the court inaccurately marshaled the evidence when it stated that petitioner had made a statement at 1:45 a.m. is unfounded. In its charge regarding the requirement that all statements be voluntarily given, the court stated,

In this case, the testimony was that the petitioner Monty Hinds, gave his first statement, the written statement on June 25, 1996, at approximately 1:45 am. and thereafter a video statement was taken from the petitioner on the same day at approximately 5:10 a.m.

(686).

The court's recollection of the trial testimony was correct. Detective Paul testified that petitioner signed his Miranda card at 1:45 A.M. and then gave a statement (Paul: 391-95). Therefore, the court's instruction, which accurately reflected the trial testimony, was proper.

Finally, petitioner claims that the court erred by rereading its original charge in response to the jury's request for additional instructions on the definitional elements of murder and manslaughter. This claim is meritless. A jury may request further instructions at any time during its deliberations and if it does so the court must "give such requested information or instructions as [it] deems proper." See N.Y. Crim. Proc. Law § 310.30. While the court possesses discretion in giving its supplemental instruction, it must respond meaningful to the jury's inquiry. The sufficiency of a response is measured by "the form of the jury's question, which may have to be clarified before it can be answered, the particular issue of which the inquiry is made, the supplemental instructions actually given and the presence or absence of prejudice to the petitioner." People v. Almodovar, 62 N.Y.2d at 131-32, 476 N.Y.S.2d at 98, quoting People v. Malloy, N.Y.2d at 301, 449 N.Y.S.2d at 169.

In this case, the court responded meaningfully to the jury's inquiry. During deliberations, the jury asked, "May we have a written description of counts two and three? If not possible May we hear them again" (757) (emphasis added). The court denied the jury's request for a written description and, as requested, reread the definitional elements of the murder and manslaughter charges (757-66). After the elements were re-read, the court asked the jury foreperson if another reading was necessary. The foreperson responded, "no" (766), presumably indicating that the jury's questions had been answered.

Any possible errors in the court's charge were harmless.

This claim is rejected.

This habeas corpus application is an important matter to petitioner. The court has considered all of his claims. Those claims not discussed in this memorandum are frivolous.

XIV. Conclusion

The petition for a writ of habeas corpus is denied.

No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.

The court has examined the records in this case. The trial court was fair, counsel for both sides were competent, the trial was conducted pursuant to constitutional standards before a properly selected jury. Appellate counsel was adequate and the petitioner was granted adequate post conviction rights. His brief to the Appellate Division was comprehensive and as persuasive as possible given the strong evidence in the case.

SO ORDERED.