Opinion
00-CV-1332(JBW), 03-MISC-0066 (JBW)
September 3, 2003
MEMORANDUM, JUDGMENT ORDER
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
Petitioner was put on trial in 1992 for the killing of a woman who was shot, according to the prosecution, by a stray bullet fired by petitioner after an altercation with another person. According to two witnesses for the state, petitioner was observed arguing with a man and then reaching into his pants for a weapon. Petitioner tried to fire his weapon but it jammed. He adjusted the weapon and fired. The shot hit a bystander, Maria Rodriguez, who was exiting from her car.
In addition to eyewitness and other evidence, introduced against petitioner was his statement to a police detective upon his arrest that "he did not mean to shoot her." Trial Tr. at 381.
The defense called several witnesses who testified to a different version of events, Each of them stated that they observed petitioner arguing with another man on the street, but that it was the other man and not petitioner who drew a gun and fired the fatal shot. One of these witnesses testified that he observed petitioner arguing with two men. Each of these witnesses was cross-examined vigorously by the prosecutor about why they had not gone to police to report that petitioner had not committed the shooting for which he was arrested.
Petitioner testified in his own behalf and stated that he never intentionally fired a weapon at anyone. He claimed that he was approached by two men who demanded his chain. When he refused, one of the men reached to his waist and began to pull out a gun. Petitioner then wrestled with the man, and during the struggle the gun fired. On cross-examination, the prosecutor queried petitioner, who was arrested about a month after the incident, about why he did not report at the time that he was the victim of an attempted armed robbery,
Petitioner was found not guilty of second degree murder under a depraved indifference charge, but guilty of second degree murder under an intentional murder charge (on the basis that he killed the victim while intending to kill the another individual who was the real target of the shooting). He was also found guilty of second degree criminal possession of a weapon, He was sentenced to 25 years to life in prison.
Following the verdict, defense counsel made a motion for a new trial based on newly discovered evidence; (1) the recantation of the testimony one of the two prosecution witnesses; and (2) affidavits from two new witnesses who came forward after the trial to state that petitioner was the victim rather than the perpetrator of the crime, At a hearing ordered by the trial court, the prosecution witness testified that he called the assistant district attorney after the trial and spoke to her for nearly twenty minutes, indicating that everything he testified to at trial was a lie. He also testified at the hearing, however, that his discussion with the assistant district attorney in which he recanted his testimony was spurred by threats he received from unnamed individuals in his neighborhood, and that in fact he had not lied while on the stand during the trial.
In a written decision, the trial court held that a new trial was not warranted. The court found that the testimony of two additional witnesses corroborating petitioner's version of events would be "merely cumulative and does not constitute newly discovered evidence warranting a new trial." Sept. 25, 1992 Decision at 6. The court also found that the recantation of a state witness did not constitute newly discovered evidence warranting a new trial, observing that "[t]here is no form of proof so unreliable as recanting testimony," id. (quoting People v. Shilitano, 112 N.E, 733, 736 (N.Y. 1916), and that recantation evidence is inherently unreliable. Finally, the court concluded that it was not probable that a different result would have been achieve at trial if the evidence had been presented to the jury,
Petitioner's conviction was affirmed by the Appellate Division on direct appeal. Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.
In his application for a writ of habeas corpus, petitioner claims that: (1) the prosecutor's summation statements about petitioner's failure to provide exculpatory information to the police deprived him of a fair trial; (2) the prosecutor improperly questioned defense witnesses about their failure to provide exculpatory information to the police after petitioner's arrest; (3) the trial court erred by providing hypothetical examples to the jury in its instruction; and (4) the trial court erred by not granting petitioner a new trial in light of newly discovered evidence.
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 slate 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, Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "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," Francis S. v. Stone, 221 P. 3 d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[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, 27S (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App, LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent item the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Torres v. Berbary, No, 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003), 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. 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." Day e 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).
IV. Procedural Bar
A federal habeas court may not review a state prisoners 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 men 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 defendants 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.
V. Certificate of Appealability
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, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
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. Mate, 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").
VI. Analysis of Claims
All of petitioner's claims have been exhausted. Some were denied as "either unpreserved for appellate review or meritless." Those claims are, contrary to respondent's contention, not foreclosed from review on the merits in federal court. Under Su v, Filion, it may be that some of these preserved claims are entitled to a de novo standard of review rather than the standard set forth in AEDPA. Because none of petitioner's claims merit granting of the writ under any standard of review, this court will not try to divine whether the state courts did or did not rule on the merits of petitioner's federal claims. Unless otherwise indicated, all of petitioner's claims will be reviewed de novo.
Petitioner first claims that the prosecutor's summation statements about petitioner's failure to provide exculpatory information to the police deprived him of a fair trial. Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). Nonetheless, "when the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair," Mahorney v. Wallman, 917 E2d 469, 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S. at 643). Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceedings. DeChristoforo, 416 U, S, at 643. In order to view any prosecutorial misconduct in context, "we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. . . . Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted).
In the present case, petitioner told police after his arrest that he did not intend to shoot anyone and that he had been unable to sleep or eat since the shooting, At trial he testified that two men tried to rob him and that after one of the men pulled out a gun, a struggle ensued and the gun fired. On cross examination, he stated that he had not reported the attempted robbery to police.
In her summation, the prosecutor stated:
Now what would he have you believe? . . . If [petitioner] was the victim that night and the police came, why wouldn't he stay? Why would he run away? Why not say to the police that he was a victim, that this guy who shot this poor woman had tried to shoot him. Why not report it?
These are not — his actions were not the actions of a victim. They are consistent with what he said. He didn't mean to shoot the lady. He meant to shoot the guy he was arguing with. . . .
And, finally, when he was arrested and he said "I didn't mean to shoot the lady," would he have said that if he had been a victim? Wouldn't he have said no, I was a victim, what are you talking about? Someone tried to rob me. Didn't say that, "I didn't mean to shoot the lady,"
Trial Tr. at 569, Although defense counsel made no objection to these remarks at the time, petitioner now claims that the prosecutor used his pre-arrest and post-arrest silence as evidence of his guilt,
Impeachment of a defendant through the use of pre-arrest silence is improper under New York State law. See People v. DeGeorge, 541 N.R2d 11, 13 (N.Y. 1989), The Supreme Court of the United States has held, however, that the use of a defendant's pre-arrest silence for impeachment purposes does not offend guarantees contained in the United States Constitution. See Jenkins v. Anderson, 447 U.S. 231, 239 (1980) ("We hold that impeachment by use of pre-arrest silence does not violate the Fourteenth Amendment."). In contrast, use of post-arrest silence may violate notions of fundamental fairness where the defendant was advised by state actors that his silence would not be used against him. See Doyle v, Ohio, 426 U.S. 610, 618 (1976).
In the instant case, petitioner did not invoke his right to remain silent either after his arrest or at trial. Petitioner, having testified to his version of events at trial, was not denied a fundamentally fair trial when the prosecutor suggested to the jury that his story did not jibe with his statements to police made at his arrest, where he made no mention of having been the victim of a robbery. He waived his right to remain silent at the trial; he cannot now complain that the prosecution impeached his credibility by suggesting that his post-arrest statements contradicted his trial testimony and suggested that the later story was a fabrication. He was given the opportunity, both on direct and cross examination, to explain why he did not report the attempted robbery to police. The prosecution's comment on petitioner's failure to report the robbery was also responsive to defense counsel's suggestion that the prosecution's case was improbable — because the man whom petitioner was said to have fired a gun never made a report to the police. Petitioner has not demonstrated that he was deprived of a right guaranteed to him by federal law or the Constitution, Habeas relief on the claim is not warranted.
Petitioner also claims that the prosecutor improperly questioned defense witnesses about their failure to provide exculpatory information to the police after petitioner's arrest. Petitioner's claim does not raise an issue of federal constitutional law. Even under state law the claim is without merit. Although New York precludes the prosecutor from commenting on a defendant's silence on due process grounds, "[t]he same cannot always be said for an ordinary witness who may have no personal stake in remaining silent and who, indeed, may very well have a personal interest in speaking up in order to aid the defendant, It is this interest in speaking up which, in a given case, may render the witness' failure to do so of probative worth when used to impeach his or her testimony," People v. Dawson, 406 N.E.2d 771, 777 (N.Y. 1980), Comment is proper so long as the prosecutor lays a proper foundation, "demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities." Id. at 777 n. 4. This foundation was established in the instant case. In addition, after the prosecutor's inquiry of each witness the trial court advised the jury that there was no obligation under New York law for a citizen to report a crime. The questioning and advice were proper. Petitioner's federal constitutional rights were not violated, Habeas corpus relief is not warranted on this ground.
Petitioner next claims that the trial court erred by providing hypothetical examples to the jury in its instruction. This claim was addressed on the merits and denied by the Appellate Division. Review thus proceeds under the deferential standards of AEDPA, Petitioner contends that the court's choice of hypothetical examples in response to a jury query about the legal meaning of "intent" was flawed. The supplemental instruction was as follows:
Okay. Now, intent. Intent is the operation of a person's mind whereby a person has a conscious aim or objective to cause the act with which he is charged, It's a mental operation. You can't photograph it. It is silent and invisible, So you have to determine what the intent of a person is from what happens, from the totality of the circumstances. Okay?
Without using a gun, you must understand that if you do something, you have to decide when you see what is done what my intent was. If I pick up a book and I throw it to the ground, you have to decide if I intended to throw it to the ground, If I picked up the book and threw it at the jury, you have to decide what I intended from that act. You see what I mean?
You can't tell from what I say. It's from the totality of the circumstances is that you must determine, okay?
Trial Tr, at 630-31,
"In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law," Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973), The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.
The Appellate Division, in denying petitioner's erroneous jury charge claims, stated:
When the jury requests further instructions during its deliberations, the court must "give such requested information or instruction as [it] deems proper" (CPL 310.30). While the court possesses some discretion in framing its supplemental instructions, it must respond meaningfully to the jury's inquiries without prejudice to the defendant ( see, People v Almodovar, 62 N.Y.2d 126, 131-132, citing People v Malloy, 55 N.Y.2d 296, 301, cert denied 459 U.S. 847; People v Gonzalez, 293 N.Y. 259, 262). A trial court is not precluded from supplying hypothetical examples in its jury instructions as an aid to understanding the applicable law ( see, People v Jones, 216 A.D.2d 324; People v Wise, 204 A.D.2d 133; People v Fagan, 166 A.D.2d 290), However, the hypotheticals must be fair and balanced, must not indicate to the jury that the court has an opinion as to the defendant's guilt or innocence, and must not present factual patterns that are strikingly similar to the instant case ( see., People v Hommel, 41 N.Y.2d 427; People v Calix, 236 A.D.2d 550; People v Williams, 234 A.D.2d 912), In the instant case, the trial court's hypothetical examples were proper.People v. Johnson, 679 N.Y.S.2d 335, 335-36 (App.Div. 1998).
The court's instruction on intent in the instant case was not a model of clarity, as demonstrated in part by the fact that, immediately after it was given, a juror interjected, "I don't know if this is allowed. Can you give another hypothetical?" Trial Tr, at 631. The trial court refused, but noted for the jury that the hypothetical examples had "no bearing at all on the case." Id. at 640. Contrary to petitioner's assertion, the hypothetical examples were not "dangerously slanted" or indicative that the trial court had an opinion as to petitioner's guilt or innocence. Br, on Direct Appeal for Defendant — Appellant at 27, The Appellate Division's conclusion that the examples were not improper is reasonable. Petitioner was not denied a fair trial due to the instruction and habeas corpus relief is not warranted.
Finally, petitioner claims that the trial court erred by not granting petitioner a new trial in light of newly discovered evidence in the form of the recantation of testimony by one witness and the surfacing of two new eyewitnesses to support petitioner's version of events, Under New York law, a motion to set aside a verdict may be granted, in the trial court's discretion, if the defense can establish that newly discovered evidence (1) will probably change the result if a new trial is ordered; (2) is discovered since the conclusion of the trial; (3) is such that it would not have been discovered prior to trial by the exercise of due diligence; (4) is material to the issue resolved at trial; (5) is not cumulative to the issue; and (6) must not be merely impeaching or contradicting of the evidence presented at trial. See N.Y. Crim. Pro. Law § 330.30.
Petitioner has not explained how the trial court's failure to set aside the verdict dented him a federal constitutional right. The trial court did not abuse its discretion in refusing to grant a new trial. The court determined that the recantation of the testimony of a witness was unreliable, a reasonable determination given that (he witness testified at a hearing that he had received death threats after testifying against petitioner and given that be recanted his recantation at the hearing. The trial court also did not abuse its discretion in determining that it was not probable that a different verdict would have resulted if two additional witnesses had testified to petitioner's version of the events that transpired. Although the testimony of those witnesses might not be cumulative under the circumstances of this case, there was ample evidence of petitioner's guilt — most damningly his post-arrest statements to police — to make it unlikely that this additional testimony would have affected the verdict. Habeas relief is not warranted on this ground.
VII. 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.
SO ORDERED.