Summary
adding that "nothing in the record . . . remotely suggests that [the witness whose statements petitioner sought] said anything . . . that would have been useful to the defense"
Summary of this case from Ortiz v. BarkleyOpinion
01 Civ. 4219 (GEL)
August 26, 2002
Joseph Johnson, pro se, for petitioner.
Elliot Spitzer, Attorney General of the State of New York, (Nicola N. Grey, Assistant Attorney General, of counsel), for respondent.
OPINION AND ORDER
Joseph Johnson seeks habeas corpus, challenging his conviction by a jury for unlawful possession of cocaine and a firearm and his resulting sentence of one to three years in prison. Johnson argues that he was denied a fair trial because of the withholding of prior statements of witnesses, prosecutorial misconduct, and the failure of the trial court to give a missing witness instruction. Because he has not shown any violation of his federal constitutional rights, the petition will be denied.
Johnson was sentenced on June 6, 1994. Although he has now completed his sentence, because he did not begin serving it until the completion of his direct appeal, he was in custody when the instant petition was filed.
I. Facts
The evidence of Johnson's guilt was overwhelming. Johnson was arrested in an apartment where the police, executing a search warrant, found four triple-beam scales and several crack pipes all containing cocaine residue, ajar of lactose, a 9 mm. handgun, and a plastic bag containing 1800 milligrams of cocaine. Johnson admitted to the police that he lived in the apartment, and his name was on the mail box. Police also recovered personal items and identification belonging to Johnson from the bedroom of the apartment.
II. Procedural Issues
The State argues that this Court should not reach the merits of any of Johnson's claims, because he did not exhaust the remedies available to him in the state courts, as required by 28 U.S.C. § 2254(b)(1)(A). More specifically, the State points out that all of Johnson's arguments on his direct appeal were made in terms of state law, and that he therefore failed to present any argument in terms of federal constitutional law.
In fact, Johnson's pro se petition raises in this Court precisely the same arguments he made through counsel on his direct appeal, and phrases them no more in specifically federal terms here than he did in the state courts. Because Johnson's claims closely resemble claims that could be made under federal law, and because the rejection of the state-law claims under identical or more liberal state law makes clear that the state courts would correctly find no merit to the analogous federal claims, it is more efficient to address Johnson's arguments on the merits than to waste the time of the state courts by requiring exhaustion. This more efficient course is explicitly permitted by 28 U.S.C. § 2254(b)(2).
III. Johnson's Arguments
A. Rosario Claims
Johnson's first argument is that he was "prejudiced by the People's failure to provide Rosario materials." (Pet. at 5.) The reference is to People v. Rosario, 9 N.Y.2d 286 (1961), which requires the prosecution to make available its witnesses' prior statements in their entirety to a defendant for purposes of cross-examination. The Appellate Division rejected this argument, in the following terms:
We reject defendant's claim that the [trial] court failed to properly and sufficiently address four Rosario claims. We agree with the court that two of the statements did not constitute Rosario material. In another instance, defendant received the remedy he requested and, in the final instance, he chose not to make a sufficient record and sought no sanction.People v. Johnson, 257 A.D.2d 439, 439, 684 N.Y.S.2d 513, 514 (1st Dep't 1999).
Rosario announces a principle of discovery under state law that is not required by the Constitution. Thus, it is well settled that a Rosario claim is "one of state law that is not subject to review under a petition for a federal writ of habeas corpus." United States ex rel. Butler v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y. 1974), aff'd, 508 F.2d 837 (2d Cir. 1975). Construing Johnson's pro se complaint liberally, it could be understood to raise a claim under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), since Johnson alleges that he was hampered in cross-examining a witness, Detective Warren Lockley, by the unavailability of certain prior statements. But Johnson makes no showing that the prosecutor wrongfully suppressed any prior witness statements that were in the government's possession, let alone that any of the statements in question were materially exculpatory, or would have cast the slightest doubt on Lockley's testimony.
Johnson's habeas petition refers to two prior statements made by Lockley. The first was testimony given by the detective at a civil trial in which Johnson's landlord sought to evict him. The trial court found that this was not Rosario material because it was never find the possession of the prosecutor and apparently no longer existed at the time of the trial. But whatever the ruling as a matter of state law, the civil trial testimony could not have been Brady material since Johnson, who not only was present at the civil trial but personally cross-examined Lockley in that proceeding, was fully aware of the contents of the testimony.
The second statement referenced in the petition is Lockley's "testimony" in support of a search warrant application. The reference is not to Lockley's affidavit, which was available to the defense, but to answers he may have given in response to questions by the magistrate issuing the warrant. In rejecting an attack on the warrant, the state court found that the minutes of the proceeding were no longer available, and the trial judge further found that in his long experience on the bench, police officers rarely gave substantive testimony in such proceedings. At any rate, there is nothing in the record that remotely suggests that Lockley said anything in seeking the warrant that would have been useful to the defense, or that casts any doubt on the court's finding that the statement was not in the possession of the prosecution.
Though Johnson refers to "an extraordinary amount of Rosario violations" (Pet. at 5), these are the only statements referred to specifically in the petition. On direct appeal, he raised two other Rosario claims. With respect to the third, the judge granted the extraordinary remedy of striking the witness's entire testimony because certain material had not been turned over. There was no showing that any of the material was impeaching or exculpatory, and as the witness's testimony was stricken, no prejudice could have resulted. The Appellate Division ruled that the fourth matter had not properly been preserved, and this independent state-law ground of decision precludes habeas review.
Accordingly, Johnson's Rosario claims provide no basis for finding a violation of constitutional rights.
B. Prosecutorial Misconduct
Johnson argues that the prosecutor's "conduct throughout the trial was prejudicial" to his defense. But none of the incidents referred to in the petition or in Johnson's brief on direct appeal, taken singly or together, constitute the sort of "`egregious misconduct . . . amount[ing] to a denial of constitutional due process'" that alone raises a federal constitutional issue. Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974)). See also Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir. 1991) (same).
Specifically, Johnson objects that in his opening statement, the prosecutor mentioned photographs taken during the execution of a search warrant and money ($563) seized from the defendant, despite knowing that both items had been lost and could not be introduced into evidence, and indeed despite an order from the judge not to mention the photographs. However, the judge gave the specific curative instruction requested by the defense. Moreover, the defendant could not have been prejudiced by the mention of the photos, as the defense counsel, seeking the obvious tactical benefit of undermining the credibility of the police investigation, cross-examined Lockley about the taking and loss of the photos. The trial court also instructed the jury that it could draw an adverse inference against the prosecution from the failure to introduce the money into evidence. Particularly given the modest sum involved, it is difficult to see how the defendant could have been prejudiced.
To succeed in a habeas claim based on prosecutorial misconduct, the petitioner must demonstrate "that he suffered actual prejudice because the prosecutor's [conduct] had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). Johnson can come nowhere near such a showing. The evidence against him was overwhelming; the prosecutor's actions, while regrettable, were not terribly prejudicial; and the trial court took prompt and effective curative actions. There is no basis for disturbing the judgment.
C. Missing Witness Instruction
Johnson argues that it was error for the trial court not to give a missing witness instruction regarding the prosecution's failure to call the other police officers who participated in the search. But an error with respect to jury instruction presents only a question of state law unless the error was so serious that it deprived defendant of a fair trial. Sams v. Walker, 18 F.3d 167, 171 (2d Cir. 1994). See also Estelle v. McGuire, 502 U.S. 62, 72 (1991). The Appellate Division found that the failure to give the instruction was not erroneous at all. People v. Johnson, 257 A.D.2d at 439-40, 684 N.Y.S.2d at 514. Any claim that the failure to give the instruction at issue here "so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U.S. 141, 147 (1973), would be frivolous. The testimony made clear to the jury that other witnesses were available, and defense counsel was free to argue to the jury that the prosecution's failure to call the witnesses undermined the prosecution's case.
CONCLUSION
For the foregoing reasons, the petition for habeas corpus is denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253 (c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
SO ORDERED.