Opinion
99 Civ. 12279 (RCC)(DFE)
September 11, 2000
Opinion and Order
Charles Jones filed a pro se petition for a writ of habeas corpus, requesting release on bail pending the appeal of his conviction in New York State Supreme Court, for burglary and criminal possession of a weapon. Jones alleges that the Justice in the New York State Supreme Court, Appellate Division First Department (the "First Department"), arbitrarily, without justification and without a written opinion, denied his application for bail. Jones contends that he meets the statutory standards for bail under New York Criminal Procedure Law, and therefore, the Court should grant his petition. The Court referred this action to the Honorable Douglas F. Eaton, United States Magistrate Judge, who issued a Report and Recommendation dated March 15, 2000 (the "Report"). The Report recommends that the petition for habeas corpus relief be denied. Jones filed objections to the Report on March 22, 2000 (the "Objections"). The Court has undertaken a de novo review of the record and considered the Objections. For the reasons set forth below, the Report is adopted in its entirety and the petition for bail pending appeal is denied.
I. BACKGROUND
In April of 1993, Jones was indicted in New York State for burglarizing the apartment of Marla Maples, criminal possession of stolen property and criminal possession of a weapon. See Jones v. Vacco, 944 F. Supp. 229, 230 (S.D.N.Y. 1996). After a three week trial (the "first trial") before Justice Richard Andrias, which commenced on or about January of 1994, he was convicted on all counts. See id. In April of 1996, Jones was sentenced to one and one-half to four and one-half years in prison. Id. Jones appealed the conviction to the First Department, which affirmed the decision. He was later denied leave to appeal to the New York Court of Appeals. Id. On June 27, 1996, he filed a petition for a writ of habeas corpus requesting a new trial. The Honorable Shira A. Sheindlin granted the petition for a new trial on September 19, 1996. See Jones v. Vacco, 1996 WL 535544 (S.D.N.Y. Sep. 19, 1996). Onoctober 19, 1996, Jones was released from confinement on his own recognizance. (Decl. at ¶ 11.)
"Decl." refers to Jones' Declaration in Support of the Petition for Writ of Habeas Corpus to Secure Release Pending Appeal.
In May of 1999, Jones was retried and convicted of burglary and criminal possession of a weapon, but acquitted of criminal possession of stolen property (the "second trial"). On June 11, 1999, he was sentenced to one and one-half to four and one-half years in prison. The trial judge stayed execution of the sentence pending Jones' application for bail. On June 15, 1999, "[Jones] and standby counsel Harold Ramsey appeared" before Justice Joseph Sullivan on the application for bail pending appeal and a stay of execution of the judgment pending appeal. (Decl. at ¶ 17.) Although it is unclear from the record whether any prosecutor was present at the bail application, Jones asserts that "the People did not respond to the undersigned's application for bail before Justice Sullivan." (Id. at ¶ 19.) Jones raised nine issues before Justice Sullivan in support of his application: i) the trial court had denied him assistance of counsel, forcing Jones to proceed pro se; ii) the burglary charge should have been dismissed because the prosecution failed to call two witnesses, Maples' roommates, to testify as to the elements of license and privilege; iii) the trial court had deprived him of his Sixth Amendment right to confrontation by limiting his cross-examination of Maples; iv) the trial court failed to give an instruction on the issues of license and privilege; v) the trial judge made comments affecting his right to present a defense and his credibility; vi) prosecutorial misconduct based on comments made in the prosecution's summation; vii) juror misconduct; viii) the trial court's preclusion of certain evidence; and ix) the trial court failed to give a "missing witness" charge to the jury. ( Id. at ¶¶ 28(a)-(j).) Justice Sullivan denied Jones' application without issuing a written opinion. ( Id. at ¶ 20.)
Jones then filed a motion for reconsideration/reargument of the denial of bail and moved for leave to appeal directly to the New York Court of Appeals, both of which were denied by the First Department. (Decl., Exh. A-2.) The First Department did, however, appoint appellate counsel for him.
This petition was filed with the Pro Se Office of the United States District Court for Southern District of New York on December 9, 1999. On December 22, 1999, the petition was assigned to the Honorable Barbara Jones, who subsequently recused herself because she had been the Chief Assistant District Attorney at the time of Jones' indictment in 1993. The petition was reassigned to this Court on January 14, 2000. On March 13, 2000, the Court referred this matter to Judge Eaton, who issued the Report, recommending that the petition be denied. Jones also filed a petition for a writ of mandamus in the Second Circuit, which was denied on May 4, 2000.
In the petition seeking habeas relief, Jones contends that Justice Sullivan's denial of bail, without "stating the reasons therefore . . . constituted a wilful [sic] misapplication" of New York Criminal Procedure Law, and was "arbitrary and without rational [sic] or justification." (Decl. at ¶¶ 29-30.) Jones argues that he should be granted his release on bail because he satisfies the standards for a grant of bail under N.Y. Crim. Proc. Law § 510.30(2)(a), (b) and that his bail application was tainted by the bias of the Justices of the First Department. Jones avers that Justice Richard Andrias, who presided over the first trial, is biased against him because Jones' conviction was overturned on the basis of Justice Andrias' order, banning overnight consultation between Jones and his attorney. See Jones v. Vacco, 126 F.3d 408, 415-17 (2d Cir. 1997). Consequently, Jones now argues that the entire First Department has been infected with this bias because Justice Andrias has since been elevated to the First Department. Thus, he contends that the denial of bail has deprived him of due process under the Fourteenth Amendment. Jones emphasizes that the petition now before the Court is "specifically limited to the issue of bail pending appeal." (Decl. at ¶ 47.)
II. DISCUSSION
Initially, Jones generally objects to the fact that his petition was referred to Judge Eaton. ( See Objections at ¶¶ 3-6.) He claims that there was no basis for Judge Eaton to review the petition because it is not a dispositive motion. However, under 28 U.S.C. § 636(b)(1), petitions for writs of habeas corpus are properly and routinely referred to magistrate judges to conduct appropriate proceedings and recommend dispositions. See Thomas v. Arn, 474 U.S. 140, 141, 106 S.Ct. 466 (1985); Grassia v. Scully, 892 F.2d 16, 18-19 (2d Cir. 1989); Cheek v. Artuz, 2000 WL 335551 at *1 (S.D.N.Y. Mar. 29, 2000); Richter v. Aruz, 77 F. Supp.2d 385, 388 (S.D.N Y 1999). This objection, therefore, is wholly without merit.
With regard to the actual Report, Jones argues that Judge Eaton failed to consider or address the issue of the First Department's prejudice against him. He claims that the First Department "has embarked on a crusade to penalize [him]," and therefore, "cannot be trusted on the law or the merits of [his] current appeal." (Objections at ¶¶ 51-52.) This allegation is the foundation underlying Jones' position that the denial of bail pending appeal lacks any rational basis. Jones contends that because the "First Department cannot be trusted" to make fair and impartial decisions concerning his appeal or bail application, Judge Eaton should not have given deference to Justice Sullivan's assessment of the bail application. ( Id. at ¶ 56.) Consequently, he argues that Judge Eaton failed to evaluate any of the criteria for granting bail or cite any credible evidence to support the recommendation in the Report. Jones assails the Report as being based upon "conjecture and surmise" and that the Court should not give credence to Judge "Eaton's crystal ball logic." ( Id. at ¶ 39.)
Jones' repeated claim of bias on the part of the First Department, stems from his own mistrust of Justice Andrias and the First Department's affirmance of his conviction after the first trial. Jones believes that Justice Andrias maintains a vendetta against him, stemming from the habeas action reversing his first conviction. Justice Andrias provided uncorroborated testimony in the habeas proceedings that played a significant role in the reversal of Jones' first conviction. He now contends that since Justice Andrias has been elevated to the First Department, his bias has somehow infected the other Justices of the First Department. Jones also claims that the First Department will "give uncostitutional [sic] treatment to a second appeal as payback for the perceived temerity of [Jones] to successfully exert legal rights in federal court." (Objections at ¶ 57(b).) He believes that because three of the five justices who reviewed his appeal after the first trial remain on the bench, their presence, along with that of Justice Andrias, precludes him from obtaining a fair and impartial determination of his appeal and bail application. He accuses the entire First Department of bias and prejudice, without more than these bald assertions. On the face of Jones' statements alone, there is no evidence to suggest, much less substantiate, the existence of this pervasive bias against him. Having failed to provide more than conclusory statements to support this allegation, the Court is unconvinced that such bias exists. See Dory v. Commissioner of Correction of the State of New York, 865 F.2d 44, 45 (2d Cir. 1989) (quoting Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510 (1962)); Polanco v. United States, 2000 WL 1072303 at *10 (S.D.N.Y. Aug. 3, 2000); see also Jones, 126 F.3d at 415 (holding that on a petition for a writ of habeas corpus, petitioner bears burden of proving by a preponderance of the evidence, that his constitutional rights were violated). Accordingly, it cannot be concluded that Justice Sullivan's denial of the bail application was not proper, on the basis that it was poisoned by the alleged bias.
Nevertheless, Jones contends that Justice Sullivan's decision was arbitrary and without a rational basis because he qualifies for bail under the criteria established by New York Criminal Procedure Law. Where a state has made provisions for the grant of bail pending appeal, the Constitution mandates that bail "not be denied arbitrarily or unreasonably." Finetti v. Harris, 609 F.2d 594, 599 (2d Cir. 1979). However, in determining whether such a denial was arbitrary or unreasonable:
the mere failure of the state court to articulate reasons for its denial of bail pending appeal does not create a "presumption of arbitrariness." Rather, judgments of the state courts, when attacked collaterally through a federal habeas corpus petition, carry a "presumption of regularity." This presumption may be overcome; but the defendant bears the burden of showing that there is no rational basis in the record for the denial of bail.Id. at 601 (citations omitted); see Danylocke v. Dalsheim, 662 F. Supp. 961, 963 (S.D.N Y 1987); Pulaski v. Hopkins, 745 F. Supp. 882, 885 (E.D.N.Y. 1990). Although the Second Circuit has not specifically delineated "what constitutes a sufficient showing by a petitioner to initially rebut and ultimately sustain, [this] burden," clearly the burden is placed upon Jones to demonstrate that there was no rational basis in the record for Justice Sullivan's decision. Danylocke, 662 F. Supp. at 964. Therefore, the Court need only determine whether a rational reason exists in the record to support the denial of bail. See Finetti, 609 F.2d at 601-02; Osinoiki v. Riley, 1990 WL 152540 at *3 (E.D.N.Y. Sep. 28, 1990).
Under N.Y. Crim. Proc. Law § 510.30(2), the criteria for evaluating an application for bail are grouped into two categories; the risk of flight if the petitioner were to be released on bail and "the likelihood of ultimate reversal of the judgment." N.Y. Crim. Proc. Law § 510.30(2)(a), (b). The Court now addresses the first of these considerations. Admittedly, the record appears to indicate that Jones does not pose a risk of flight because he meets a number of the listed criteria. In addition to his family ties, the Court cannot overlook the fact that Jones was granted bail pending appeal after his conviction in the first trial. Given the absence of a remand to custody, it also appears that Jones attended all the interim court proceedings and complied with the attendant court orders between the time of the first trial up until his application for bail before Justice Sullivan. The Court also can appreciate that Jones may serve at least the minimum amount of his sentence pending his appeal, and recognizes that this may also weigh in favor of granting his release on bail.
However, Jones has not proven that no rational basis exists for denying him bail under these considerations. For example, there is insufficient evidence in the record to consider the important issue of the potential danger to the community. See Finetti, 609 F.2d at 602 (noting that bail decisions balance concerns of defendant against concern for protection and security of the community); Danylocke, 662 F. Supp. at 962 (recognizing that a court may deny bail if defendant is likely to flee court's jurisdiction or is a substantial threat to the community). With respect to his character and employment history, two additional criteria to evaluate, the Court is not in a position to certify whether these factors weigh in Jones' favor. Jones' underlying conviction stems from his employment relationship with Maples and he has, in the past, committed acts of harassment, such as faxing altered obscene photographs of Maples to various individuals. Jones v. Maples, 691 N.Y.S.2d 429, 430 (1st Dep't 1999). These facts may militate against his release on bail. As Judge Eaton points out, Justice Sullivan was in a far better position to assess Jones' behavior and demeanor, as well as these other elements. Although his prior grant of release on bail and his conformance with the conditions thereof weigh in his favor, the Court cannot conclude that Jones has established that there was no rational basis for Justice Sullivan's decision. Moreover, because an application for bail pending appeal is "addressed to the discretion of the [state] court," this Court is reluctant to now substitute its judgment for that of Justice Sullivan. Tuthill v. Sherwood, 399 F. Supp. 32, 33 (S.D.N.Y. 1975).
Jones also asserts that his "pending appeal has substantial likelihood of success" (Decl. at ¶ 27), and that the nine points on appeal "are backed by sound legal authority and the trial record/transcript" (Objections at ¶ 42). He further asserts that the First Department cannot be trusted to adjudge his appeal evenhandedly because of its desire to punish him for successfully appealing his first conviction in federal court. (Objections at ¶¶ 50-52.) Jones argues, therefore, that the decision to deny bail could not be based upon the lack of merit of his appeal, in light of this bias against him. ( Id. at ¶ 56.)
The Court reiterates its reluctance to substitute its judgment of the merits of Jones' appeal for that of Justice Sullivan. See Finetti, 609 F.2d at 600 (noting that district courts "`do not . . . sit as appellate courts to review the use or abuse of discretion'" by state courts in determining bail applications) (citations omitted); Danylocke, 662 F. Supp. at 963-64 (declining to review record so as not to be compelled to comment on merits of pending state appeal); Osinoiki, 1990 WL 152540 at *3 (expressing desire to not comment on ultimate resolution of pending appeal). However, for the limited purpose of reviewing whether the denial of bail was arbitrary and unreasonable, the Court finds that the decision could have been based upon Justice Sullivan's evaluation of the merits of the appeal and its likelihood of success. Simply asserting that alleged bias will taint the First Department's evaluation of the appellate issues will not suffice, when based only upon Jones' unsubstantiated conclusions and opinions. See Dory, 865 F.2d at 45; Polanco, 2000 WL 1072303 at *10; see also Osinoiki, 1990 WL 152540 at *3 (denying petition for writ of habeas corpus requesting bail, where two of petitioner's bases for relief were based on "nothing more than rank speculation"). As addressed previously, absent any credible evidence to corroborate the alleged bias, the Court does not conclude that the persecution Jones complains of exists.
Moreover, even if the Court were to review the merits of the appeal, there appears to be a rational basis for Justice Sullivan to have concluded that a successful appeal is unlikely. For example, Jones contests areas in which a trial judge is afforded considerable deference, such as the limiting of cross-examination, juror prejudice and the exclusion of evidence. However, it was reasonable to conclude that an appeal attacking matters for which the trial court is given broad discretion is unlikely to be successful. See People v. Dixon, 645 N.Y.S.2d 1, 1 (1st Dep't) (scope of cross-examination lies within sound discretion of trial judge), appeal denied, 651 N.Y.S.2d 412 (1996); People v. Simmons, 623 N.Y.S.2d 309, 310 (2nd Dep't) (trial judge vested with broad discretion in ruling on issue of juror prejudice) (citing People v. Genovese, 225 N.Y.S.2d 26 (1962)), appeal denied, 631 N.Y.S.2d 621 (1995); People v. Aska, 674 N.Y.S.2d 271, 272 (1998) (trial court granted broad discretion in making evidentiary rulings precluding or admitting proffered evidence). Justice Sullivan was in a better position to evaluate these considerations and make a judgment regarding bail. Therefore, the Court sees no credible reason to disregard that judgment now.
III. CONCLUSION
Jones has failed to meet his burden of proving that the decision denying him bail on appeal, was not founded upon any rational basis. For these reasons, the petition for a writ of habeas corpus, granting bail pending the appeal of his conviction, is denied.