Opinion
99 Civ. 11234 (MBM)(AJP)
November 3, 2000
REPORT AND RECOMMENDATION
To the Honorable Michael B. Mukasey, United States District Judge:
Pro se petitioner Javier Mercado seeks a writ of habeas corpus from his conviction of second degree murder and assault, for which he was sentenced to 25 years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) Mercado alleges that: (1) the jurors at his trial "were fatally tampered with or unduly coerced during deliberations" (Pet. ¶ 12(A)); (2) the trial court's polling of the jury unduly coerced one juror (Pet. ¶ 12(B)); and (3) New York's post-conviction procedures (CPL § 440.10) are unconstitutional because "officials sit in judgment of their own causes" and the procedures "allow officials to negate the Power of Trial by Jury" (Pet. ¶¶ 12(C)-(D)).
For the reasons set forth below, Mercado's petition should be denied.
FACTS Trial Evidence
On July 16, 1994, Brenton Rousey met his friend Daniel Serrano at Penn Station in Manhattan and they went to Serrano's cousin Wendy's house, located at Valentine Avenue and the Grand Concourse in the Bronx, arriving at 8:00 or 8:30 p.m. (Rousey: Trial Transcript ["Tr."] 73-74, 77.) Two of Serrano's other cousins, Michael Fernandez and "Chuckie," arrived later that evening. (Rousey: Tr. 74; Fernandez: Tr. 260-62.) At approximately 11:00 p.m., Rousey and Fernandez wanted some "weed" and Serrano wanted ice cream, so they left the apartment. (Rousey: Tr. 75-76, 137; Fernandez: Tr. 261-62.) After Fernandez purchased a five dollar bag of marijuana, they began to walk back to Wendy's house, when someone angrily and excitedly said to Rousey, "I know you." (Rousey: Tr. 77; Fernandez: Tr. 263-64, 278-79.) Rousey, who was from New Jersey, replied, "I don't know you. . . . I'm not from around here. I don't want no problems." (Fernandez: Tr. 261, 265; Rousey: Tr. 72.) A "little guy" approached Rousey, and asked him if he "ha[d] a beef with him" and to "give him respect." (Rousey: Tr. 78-79, 88, 105; Fernandez: Tr. 282.) Rousey and his friends replied, "we don't want . . . no beef. We just want to go back," but the "little guy" kept saying "respect, respect." (Rousey: Tr. 79, 90, 107, 132.) A group of five to eight people approached Serrano, Rousey and Fernandez. (Rousey: Tr. 79-80; Fernandez: Tr. 266.) Fernandez, hoping to calm the situation, stepped forward and said, "no problems, please." (Fernandez: Tr. 266.)
The group, including Mercado and a man named Joel "Lucky" Arroyo, came at Rousey, Fernandez and Serrano. (Rousey: Tr. 80, 108; Lee: Tr. 181; Benitez: Tr. 320-21.) Serrano, Rousey and Fernandez tried to back away, and one of them said "Stop. We don't want no trouble" and we "don't want to fight." (Lee: Tr. 185, 207; Benitez: Tr. 320, 327.) Someone hit Fernandez on the back of the head with a forty ounce beer bottle, knocking him to the ground unconscious. (Rousey: Tr. 80, 94, 110-11; Lee: Tr. 181, 208; Fernandez: Tr. 268-69, 296-98; Benitez: Tr. 320.) Rousey and Serrano were trying to drag Fernandez to safety when Mercado, who was standing across the street, started firing a gun in their direction. (Rousey: Tr. 80-82, 94, 109, 114-15, 132-33, 139; Fernandez: Tr. 298; Benitez: Tr. 321, 324-25.) Fernandez came to and Rousey told him to run. (Rousey: Tr. 119; Fernandez: Tr. 270, 298-99.) Rousey could clearly see Mercado's face in the light of the street lamp as Mercado kept shooting, moving ever closer. (Rousey: Tr. 81, 96, 117, 134, 144.) Three guys jumped Serrano and began beating him up, forcing him to the ground. (Rousey: Tr. 83.) Mercado crossed the street and, standing over Serrano, shot him. (Rousey: Tr. 83, 97-98, 123, 132-33, 139-40; Lee: Tr. 183, 186, 190-92; Benitez: Tr. 337.) "Lucky" also fired several shots at Serrano. (Lee: Tr. 183, 186, 190-92.)
Meanwhile, Theresa Lee, who lived on Valentine Avenue and had known Mercado for approximately one year, was sitting outside with her son when she saw the above-described fight erupt. (Lee: Tr. 180-81, 195-96.) Also witnessing the fight and the shooting from her window overlooking Valentine Avenue was Lisette Benitez, who had known Mercado for ten or more years. (Benitez: Tr. 317-19, 330.)
Fernandez ran away yelling for help. (Lee: Tr. 184; Fernandez: Tr. 271, 298.) Lee called 911 and watched as Mercado got on a motorcycle and rode away. (Lee: Tr. 189, 209, 215.) Lee approached Serrano, who was lying on the ground bleeding, and determined that he was dead. (Lee: Tr. 184, 209-210.) In the meantime, Rousey had run into a building, where he remained until he heard sirens. (Rousey: Tr. 83, 98, 149; Lee: Tr. 208-09.)
Dr. John Pearl of the New York City Medical Examiner's Office performed Serrano's autopsy. (Pearl: Tr. 363-66.) Dr. Pearl found two gunshot wounds to the chest, two gunshot wounds to Serrano's right thigh, and several abrasions and tears to the skin which were consistent with being kicked and hit. (Pearl: Tr. 368-71.) Dr. Pearl determined that the cause of death was the gunshot wounds to the chest. (Pearl: Tr. 375.) He also noted that all of the gunshots appeared to be from the same gun. (Pearl: Tr. 398.)
Detective Anthony Tota of the New York City Police Department Ballistics Squad received three bullets in connection with the case, including one recovered from Serrano's chest cavity, and determined that all three were fired from the same gun. (Pearl: Tr. 373; Tota: Tr. 408.) He also determined that the five shell casings recovered from the crime scene were "consistent with being fired from one gun." (Tota: Tr. 403-04.)
On July 19, 1994, three days after the incident, Rousey identified Mercado in a lineup as the man who had fired a gun at him and shot Serrano. (Rousey: Tr. 99, 101.)
The defense called as a witness Nicole Merrill, who knew Mercado from the neighborhood (Merrill: Tr. 440, 469), saw the fight from her fifth floor apartment window overlooking the scene (id. at 440-42), and testified that only Lucky shot and killed Serrano (id. at 443-45, 462-66, 475, 478, 481-82). Merrill also testified that Mercado tried to stop Lucky from shooting Serrano. (Id. at 444, 449, 465-71.)
The Verdict and the Polling of the Jury
The jury foreperson declared that the jury had reached a unanimous verdict finding Mercado guilty of second degree murder and second degree assault, but not guilty on the remaining counts of the indictment. (Tr. 746-48.) At defense counsel's request, the trial judge directed the clerk to poll the jury. (Tr. 748.) The clerk read the verdict aloud and then asked jurors numbers one through five, in turn, "Is that your verdict?," to which they each responded "yes" without incident. (Tr. 748-49) When the clerk got to juror number six, the following colloquy took place:
COURT CLERK: Juror number six, is that your verdict?
(No response.)
THE COURT: Juror number six?
COURT CLERK: Is that your verdict, ma'am?
(No response.)
[DEFENSE COUNSEL]: Judge —
THE COURT: Juror number six, is that your verdict?
(No response.)
THE COURT: Is that your verdict?
(No response.)
[DEFENSE COUNSEL]: Judge, I have an application.
THE COURT: Give the juror an opportunity to respond. Juror number six, please answer yes or no. Is that your verdict?
(No response.)
THE COURT: Please answer, yes or no?
(No response.)
THE COURT: What's the juror's name?
COURT CLERK: Betty Hallums.
THE COURT: Miss Hallums, do you hear me?
JUROR NUMBER SIX: Yes.
THE COURT: Yes? Do you hear me?
JUROR NUMBER SIX: Yeah.
THE COURT: Do you understand my question?
JUROR NUMBER SIX: Yes.
THE COURT: Do you understand that you're being asked whether you agree with the verdict that's been announced? Do you understand that?
You do understand that?
Do you agree with that verdict? Is that your verdict as it was announced?
Please tell us yes or no?
(No response.)
[DEFENSE COUNSEL]: Judge, I request a sidebar.
THE COURT: No. I want a response. Either yes or no?
(No response.)
THE COURT: What is that you want to say? Are you able to speak?
JUROR NUMBER SIX: Yes.
THE COURT: Tell us, either yes or no? Do you agree with that verdict or do you not agree with that verdict?
(No response.)
THE COURT: Miss Hallums, it is necessary for you to respond to that question. You must tell us either yes or no?
(No response.)
THE COURT: Please respond.
(No response.)
THE COURT: Please respond, Miss Hallums?
(No response.)
THE COURT: Miss Hallums, we cannot continue until we get a response from you?
(No response.)
THE COURT: Respond either yes or no?
(No response.)
THE COURT: What is your response please?
(No response.)
THE COURT: Is that your verdict, yes or no?
(No response.)
THE COURT: Now, Miss Hallums, it's obvious that you're very emotional about this and that you are taking your job as a juror seriously. We understand that. But you have indicated your verdict in the jury room and it is necessary for us to confirm it here if, in fact, that was your verdict. And therefore you are being asked whether that, in fact, is your verdict, yes or no?
Please make a response to my question?
JUROR NUMBER SIX: Yes.
THE COURT: What was the response?
COURT REPORTER: Yes.
[DEFENSE COUNSEL]: Judge, I didn't hear it and earlier I saw her indicating her head no.
THE COURT: Is your response, yes? The juror — the Reporter says that the juror responded yes.
[DEFENSE COUNSEL]: Judge, just prior to that I saw her shaking her head no so I'd like to hear it.
THE COURT: Continue polling the jury.
(Tr. 749-53.)
The polling continued with jurors seven through twelve each replying "yes" when asked by the court clerk "Is that your verdict?" (Tr. 753-54.) After all the jurors had been polled, the following took place:
[DEFENSE COUNSEL]: Judge, let the record reflect the juror is leaning down. She appears to be sick. She's throwing up now. Judge —
THE COURT: I'll let you make a record at the appropriate time. The court officers will assist the juror who obviously is emotionally upset.
[DEFENSE COUNSEL]: Judge, let the record reflect the juror had to be carried out by one or two court officers. She was throwing up profusely.
THE COURT: She was not throwing up profusely. She didn't throw up at all.
[DEFENSE COUNSEL]: The Court personnel put something to her mouth to prevent you from seeing that. She had something under her mouth in case she was about to throw up.
THE COURT: She was emotionally upset. It's obvious it was very difficult for her to arrive at a verdict but I am convinced that is her verdict. She so indicated in the jury room which is why the jury announced the unanimous verdict. While it was difficult for her to say it and to confirm it here in the courtroom, she did.
[DEFENSE COUNSEL]: Let the record reflect it took her over seven minutes to say that. I'll let the record speak for itself.
[PROSECUTOR]: I heard her say yes.
THE COURT: It's irrelevant. I heard her say yes and the Reporter heard her. Are you reserving all motions until the day of sentence?
[DEFENSE COUNSEL]: Yes.
THE COURT: The defendant is remanded. The date for sentence will be November 13, 1995.
[DEFENSE COUNSEL]: I didn't hear the date.
THE COURT: November 13 for sentence.
[DEFENSE COUNSEL]: Judge, let the record reflect I hear the juror yelling from the back in a very loud voice.
THE COURT: I have no idea who that is, Mr. Silveri.
[DEFENSE COUNSEL]: Judge, let the record reflect I believe it's the voice of the female juror.
(Tr. 754-56.) Court was then adjourned. (Tr. 756.)
Sentencing
On November 13, 1995, the date set for sentencing, Mercado's attorney orally requested an adjournment, stating that he needed additional time to prepare a motion concerning the "very unusual event during the polling of the jury." (11/13/95 Sentencing Transcript ["S."] 2.) The judge denied defense counsel's request, since "there's no reason why motion practice can't be conducted after sentence is imposed." (S. 3.) After hearing from the victims' relatives (S. 5-15) and an unrepentant Mercado (S. 23-27), the judge sentenced Mercado to concurrent terms of twenty-five years to life on the second degree murder count and two to six years on the assault count. (S. 29.)
Direct State Appeal
Mercado appealed to the First Department, arguing, inter alia, that "the failure of the court to have taken remedial action to insure that the jury verdict was unanimous, and the uncertainty about its unanimity, mandates reversal." (Ex. 1: Mercado 1st Dep't Br. at 6; see also id. at 6-11.)
References to numbered exhibits are to the exhibits accompanying the 3/7/99 Affidavit of Assistant District Attorney Edward L. Schnitzer. References to lettered exhibits are to the exhibits accompanying Mercado's habeas corpus petition.
On June 26, 1997, the First Department affirmed Mercado's conviction, with two justices dissenting. People v. Mercado, 230 A.D.2d 488, 659 N.Y.S.2d 453 (1st Dep't 1997). As to Mercado's claim concerning the unanimity of the verdict, the First Department held as follows:
When juror number 6 repeatedly did not respond to the court's query whether the verdict announced by the foreperson was her verdict, defense counsel only requested a sidebar; the application was denied so that the court could repeat its question to the juror. Counsel did not request further relief, rendering unpreserved the appellate claim that the court erred in accepting the verdict without conducting a hearing as to juror number 6. In any event, we find no basis on this record to conclude that defendant was deprived of his right to a unanimous jury verdict.
Criminal Procedure Law 310.80 provides in relevant part that after a verdict has been rendered, upon polling the jury, if "any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume deliberation". (emphasis added). Giving the specific language of the statute its literal meaning, the requirement of further deliberation turns on whether a negative answer is imparted by the juror to the court. As articulated succinctly in People v. Maddox, 139 A.D.2d 597, 598, 527 N.Y.S.2d 89 lv. denied 72 N.Y.2d 862, 532 N.Y.S.2d 512, 528 N.E.2d 903, in the "absence of a declaration in the negative . . . or a claim of duress, no more was required" during polling to uphold the validity of the verdict.
In the present case, juror number 6 did not at any time make a negative declaration in response to the court's question as to whether the stated verdict was hers. Although she initially failed to respond to the court's inquiry, she later answered "yes" unequivocally. Upon further inquiry, the court reporter informed the court that she said "yes". When the court once again asked: "Is your response, yes?" Juror number 6 confirmed that the verdict was hers.
The trial court, an experienced and discerning jurist, noted for the record that the juror clearly took her responsibility as a juror seriously, and was visibly upset in discharging the responsibility. The juror's momentary inability to articulate her individual verdict may have been caused by fear, or stage fright, or by being overwhelmed by the violent nature of the crime involved or the gravity of her decision. However, an inquiry would have served no statutory purpose under these circumstances, where the record clearly reflects that the juror provided an unqualified affirmative response to the court, which is the dispositive consideration. Based on the juror's affirmative response during polling, together with the announcement by the foreperson that a unanimous verdict had been reached, we find no basis to conclude that the verdict was less than unanimous.
Id. at 490-91, 659 N.Y.S.2d at 454-55 (emphasis added, citations omitted).
The two dissenting justices stated that "Given the equivocal nature of the elicited response, the court's repeated demands for an open court 'yes' or 'no' answer, over defense counsel's requests for a sidebar, were unduly coercive, presenting an unacceptable risk that the juror did not render an independent verdict but instead merely acquiesced to the verdict announced by the foreman." Id. at 495, 659 N.Y.S.2d at 457 (dissent). The dissent further stated that:
Given the instant juror's extreme reluctance to respond, it was incumbent upon the judge to have acknowledged the potential uncertainty of the verdict, and taken an appropriate remedial action, either: (1) conducting further separate inquiry of this juror as to the source of her hesitance within the bounds of the secrecy of the deliberative process, (2) instructing the jury to resume its deliberations for purposes of avoiding a premature verdict, (3) replacing the juror with the defendant's consent, or (4) discharging the jury upon declaration of a mistrial.
Since the court did not present this juror, who was obviously emotionally upset and had to be led out of the courtroom, with an opportunity to explain or expound upon the predicament in which she found herself, I would reverse the judgment . . . and order a new trial.
Id. at 496, 659 N.Y.S.2d at 458 (dissent, citations omitted).
On April 30, 1998, the New York Court of Appeals unanimously affirmed Mercado's conviction. People v. Mercado, 91 N.Y.2d 960, 672 N.Y.S.2d 842 (1998). As to Mercado's jury verdict claim, the New York Court of Appeals stated as follows:
As provided under the Criminal Procedure Law, either party may request polling the jury after a verdict has been rendered and, if "any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberations." Even in the absence of an outright negative declaration, a juror's response during polling may engender doubts about a full verdict and we have recognized the responsibility of a court to resolve any uncertainties. However, a request for a specific procedure to correct or clarify claimed irregularities in a verdict must be preserved for appellate review.
Here, defendant assigns error to the manner and conduct of the jury polling and claims that the court failed to inquire further into an individual juror's vote upon the verdict. However, defendant failed to make this specific objection or request such procedures when the juror was being polled. Defendant again failed to object after the entire jury was polled before the panel was dismissed. Instead, defense counsel concentrated on describing his impression of the juror's reactions and simply resolved to "let the record speak for itself." It does. Defendant's contention on appeal concerning a claimed failure of the trial court to make certain inquiries is unpreserved for our review.
Id. at 962-63, 672 N.Y.S.2d at 843 (emphasis added, citations omitted).
Mercado's CPL § 440.10 Motion
On February 9, 1999, nearly thirty-nine months after sentencing, Mercado moved pro se to have his conviction vacated pursuant to New York Criminal Procedure Law § 440.10, claiming, inter alia, that "[t]he record plainly proves that the prosecution [sic — trial judge] grossly intimidated all the Jurors in the instant matter by brutally oppressing one helpless Juror to the point that extreme mental anguish was induced and the victimized Citizen-Juror had to be physically assisted from the courtroom." (Ex. A: Mercado CPL § 440.10 Motion at 7.)
On April 1, 1999, Mercado submitted papers entitled "Affirmation Supporting Reply and Amendment to Petition" (Ex. H) which included an unsworn handwritten statement allegedly made by juror number six (Ex. D).
The juror statement reads in relevant part as follows:
In the fall of 1995 I was on jury duty in Bronx Supreme Court on a murder case. One of the defendants Julio [sic] Mercado went to trial — the jury learned that the other defendant took a plea to the murder after one of the jurors read the newspapers. Once I heard about the plea and was told to [sic] codefendant had done the shooting I feel to this day that the subject Mr. Mercado should have been found guilty of either the lesser charge or not guilty. During deliberations, one of the jurors, a male Jamaican started to harass and became verbally abusive towards me. I was a hold out for the lesser charge especially after learning the other defendant took a plea for the lesser charge. After two nights of sequestion [sic] the jury went into the courtroom. The judge started polling each juror. The judge started to ask me if I agreed with the verdict when I was with the jury. After approximately 5 minutes of being asked of my initial response of yes the judge stated isn't that what you agreed to with the jury. There was no more dialogue. I started crying and EMS was called. I was examined by them. The verdict stood as guilty. One of the other charges was not guilty. I feel that I was verbally abused and harassed by another juror and that knowing the information about the other defendant was already in the newspapers and told to the jury that the jury should have been dismissed because we learned about the newspaper article.
(Ex. D.) Mercado claimed that the juror statement: (1) "affords conclusive proof of Movant's averred charges of criminal intimidation (coercion) of Ms. Hallums and by the prosecution's judicial advocate and assisted by the prosecution's executive-branch advocate (assistant district attorney)"; (2) "provides newly discovered evidence of jury-tampering by un-named parties and to the effect of the Jury's learning from newspaper articles of telling-evidence in this case and which directly affected said Jurors' deliberations, conduct toward each other, and involved both harassment and verbal abuse of Ms. Hallums"; and (3) proves that Ms. Hallums "did not give an affirmative answer in the polling of the Jury, but, rather, that she was brutalized by the coercive conduct of the prosecution's presiding advocate and to the point that 'EMS was called' to assist her 'after approximately 5 minutes' of same coercion and utter lack of concern for her welfare." (Ex. H at ¶¶ 2-4.)
On May 25, 1999, the trial court denied Mercado's CPL § 440.10 motion. (Ex. B: 5/25/99 Order Denying CPL § 440.10 Motion.) The trial court held that "[a]ll of the material issues raised by defendant were either raised and determined on the merits on appeal or could have, with due diligence, been so raised." (Id. at 1.) The court further stated that:
Irrespective of defendant's myriad assertions (including a claim of "new evidence" which consists of an unsworn photocopy of a post-judgment statement purportedly made by a juror), the fact remains that the Appellate Division did address at length the issue of the jury polling, and found that there was ". . . no basis to conclude that the verdict was less than unanimous." (People v. Mercado, 230 A.D.2d 488, at 491.) There is nothing new in the papers presently before the court to warrant vacatur of the defendant's conviction or any reconsideration of this court's prior rulings.
(Id.)
On July 8, 1999, Mercado sought leave to appeal the denial of his CPL § 440.10 motion. (Ex. E: Application for Leave to Appeal.) In his leave application, Mercado also argued that "current procedural law, article 440, is constitutionally deficient pursuant to due process or equal protection mandates when, upon evidence of officials' fraud or use of duress, same officials are allowed to sit in judgment of the cause." (Ex. E at 7.) On July 19, 1999, Mercado submitted an affidavit from private investigator Ralph LeFemina, notarized July 7, 1999, stating that LeFemina "met with Betty Hallums who gave [him] a statement regarding her feelings as a juror while on the Javier Mercado trial" and that "[t]he statement is in [LaFemina's] handwriting and was signed by Betty Hallums." (Ex. F: 7/7/99 LaFemina Aff.; see Schnitzer Aff. ¶ 18.)
Accompanying Mercado's habeas petition is a xerox copy of an affirmation by Mercado's trial counsel, Jon M. Silveri, dated September 2, 1998, which states as follows:
I was Javier Mercado's trial counsel. I have reviewed the minutes of the events surrounding the polling of the jury. It is my recollection that they are incorrect. On at least three occasions I tried to approach the bench and was denied permission during the polling of the jury. I also requested that it was our desire to have the juror in question repeat her answer for us to hear it.
(Ex. G: 9/2/98 Silveri Aff.) It is unclear whether Silveri's affirmation was submitted to the state courts.
On August 26, 1999, the First Department denied leave to appeal from the trial court's denial of Mercado's CPL § 440.10 motion. (Ex C: Certificate Denying Leave.)
Mercado's Present Federal Habeas Petition
Mercado's present federal habeas petition is dated October 13, 1999 and was received by the Court's Pro Se Office on October 25, 1999. (See Dkt. No. 2: Pet. cover page date stamp; Pet. at p. 7.) The petition alleges that: (1) the jurors at his trial "were fatally tampered with or unduly coerced during deliberations" (Pet. ¶ 12(A)); (2) the trial court's polling of the jury unduly coerced one juror (Pet. ¶ 12(B)); and (3) New York's post-conviction procedures (CPL § 440.10) are constitutional because "officials sit in judgment of their own causes" and the procedures "allow officials to negate the Power of Trial by Jury" (Pet. ¶¶ 12(C)-(D)).
ANALYSIS I. MERCADO'S PETITION IS TIMELY
On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
. . . .
(2) 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 toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2).
Here, Mercado's conviction became final on July 29, 1998, ninety days after the New York Court of Appeals' April 30, 1998 decision affirming his conviction, "when his time to seek direct review in the United States Supreme Court by writ of certiorari expired." Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998); see, e.g., Acosta v. Artuz, 221 F.3d 117, 120 (2d Cir. 2000); Acosta v. 17, 2000); Smith v. McGinnis, 208 F.3d 13, 15 n. 1 (2d Cir. 1999), cert. denied, No. 99-9695, 2000 WL 719571 (Oct. 2, 2000); Stokes v. Miller, 00 Civ. 0806, 2000 WL 640697 at *2 (S.D.N.Y. May 18, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1121364 (S.D.N Y July 21, 2000) (Berman, D.J.).
See also, e.g., Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *5 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *3 n. 2 (S.D.N.Y. April 13, 2000) (Peck, M.J.); Forman v. Artuz, 99 Civ. 9046, 2000 WL 378056 at *3 (S.D.N.Y. April 11, 2000) (Peck, M.J.), report rec. adopted in relevant part, 2000 WL 1099935 (S.D.N.Y. June 14, 2000) (Berman, D.J.); Martinez v. Stinson, 98 Civ. 7718, 2000 WL 284191 at *2 (S.D.N.Y. March 9, 2000) (Sprizzo, D.J. Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 359 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.) (citing cases); Varsos v. Portuondo, 98 Civ. 6709, 1999 WL 558147 at *2 (S.D.N.Y. July 9, 1999) (Batts, D.J. Peck, M.J.); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *4 (S.D.N.Y. April 29, 1999) (Peck, M.J.), rep. rec. adopted by 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.); Torres v. Irvin, 33 F. Supp.2d 257, 271 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.).
The Court also notes that in Acosta v. Artuz, 2000 WL 639924 at *1, the Brooklyn District Attorney's Office conceded that a conviction is not final for purposes of the AEDPA limitations period until the 90-day period for seeking a writ of certiorari has expired.
In any event, even if Mercado's conviction were to be considered final on April 30, 1998, the petition would still be timely because of the toll from Mercado's CPL § 440.10 motion.
The Second Circuit recently confirmed that the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew; such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations by bringing a belated state collateral attack. E.g., Smith v. McGinnis, 208 F.3d at 17; Stokes v. Miller, 2000 WL 640697 at *2. "Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Torres v. Miller, 1999 WL 714349 at *4. Mercado brought his CPL § 440.10 application on February 9, 1999. (See page 13 above.) The trial court denied the motion on May 25, 1999 and the First Department denied leave to appeal on August 26, 1999. (See pages 15-16 above.) Thus, under § 2244(d)(2), Mercado was entitled to a toll from February 9, 1999 to August 28, 1999, a toll of 198 days.
See also, e.g., Foreman v. Garvin, 2000 WL 631397 at *5; Mojica v. David, 99 Civ. 11990, 2000 WL 631385 at *2 (S.D.N.Y. May 16, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 991391 (S.D.N.Y. July 19, 2000) (Cote, D.J.); Forman v. Artuz, 2000 WL 378056 at *3; Martinez v. Stinson, 2000 WL 284191 at *3; Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Lucidore v. New York State Division of Parole, 99 Civ. 2936, 1999 WL 566362 at *4 (S.D.N.Y. Aug. 3, 1999) (Peck, M.J.); Varsos v. Portuondo, 1999 WL 558147 at *3; DeVeaux v. Schriver, 1999 WL 1216298 at *4; Cromwell v. Keane, 33 F. Supp.2d 282, 285 (S.D.N.Y. 1999) (Peck, M.J.).
Accord, e.g., Smith v. McGinnis, 208 F.3d at 17; Stokes v. Miller, 2000 WL 640697 at *2; Foreman v. Garvin, 2000 WL 631397 at *6; Mojica v. David, 2000 WL 631385 at *2; Forman v. Artuz, 2000 WL 378056 at *3; Martinez v. Stinson, 2000 WL 284191 at *3; Lucidore v. New York State Division of Parole, 1999 WL 566362 at *4; Varsos v. Portuondo, 1999 WL 558147 at *3; DeVeaux v. Schriver, 1999 WL 1216298 at *4; Cromwell v. Keane, 33 F. Supp.2d at 285.
The State argues that Mercado is not entitled to a toll from his CPL § 440.10 motion because it was denied by the state court on the procedural ground that the claims were raised or could have been raised on direct appeal, and hence the State claims that Mercado's CPL § 440.10 motion was not "properly filed." (State Br. at 8-14.) The Court finds this argument to be foreclosed by Second Circuit precedent. In Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999), cert. granted, 120 S.Ct. 1669 (2000), the Second Circuit stated that "We . . . construe 'properly filed' to mean simply that an application for state post-conviction relief recognized as such under governing state procedures has been filed." 199 F.3d at 123 (holding that petitioner's CPL § 440 motion, which was dismissed without an opinion by the state court, was "properly filed" regardless of whether motion was procedurally barred under state law); see also, e.g., Torres v. Artuz, 97 Civ. 4697, 1999 WL 553778 at *4 (S.D.N.Y. July 29, 1999) (Mukasey, D.J.).
Thus, from July 29, 1998 (expiration of the 90-day certiorari period) until the February 9, 1999 filing of Mercado's CPL § 440.10 motion, 195 days of the one-year AEDPA limitations period had run. Mercado's CPL § 440.10 motion entitled him to a toll from February 9, 1999 until the First Department's denial of leave to appeal on August 26, 1999. From August 26, 1999 until the date when Mercado's habeas petition was filed — no later than October 25, 1999, when it was received by the Court's Pro Se Office (see page 16 above) — at the very most, 60 days of the one-year period had run. Thus, a total of not more than 255 non-tolled days had passed when Mercado filed his current federal habeas petition. Since that is less than 365 days, Mercado's habeas petition is timely.
Under Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 2382 (1988), a pro se prisoner's papers are considered filed when they are given to prison officials for forwarding to the court. See also, e.g., Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *7 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Rhodes v. Senkowski, 82 F. Supp.2d 160, 165 (S.D.N.Y. 2000) (Buchwald, D.J. Peck, M.J.); Torres v. Miller, 1999 WL 714349 at *4; Torres v. Irvin, 33 F. Supp.2d at 270; Covington v. City of New York, 916 F. Supp. 282, 286 (S.D.N.Y. 1996) (Scheindlin, D.J. Peck, M.J.). The difference between the October 13 date on the petition and the October 25, 1999 receipt by the Court's Pro Se Office does not affect the result here, whichever of those dates is used.
Another and perhaps simpler calculation is as follows: the period from July 29, 1998 until October 25, 1999 is 453 days, but is reduced by a toll of 198 days from the pendency of Mercado's CPL § 440.10 motion, for a total of 255 untolled days.
II. MERCADO'S FIRST CLAIM, THAT THE JURY WAS FATALLY TAMPERED WITH AND UNDULY COERCED DURING DELIBERATIONS, IS WITHOUT MERIT
The first ground upon which Mercado seeks habeas relief is that the jurors at his trial "were fatally tampered with or unduly coerced during deliberations." (Pet. ¶ 12(A).) Mercado alleges that the unsworn statement purportedly made by juror number six "gives evidence of corruption of deliberation process by newspaper article's information, and that at least one juror was unduly coerced into giving a guilty verdict during deliberations." (Id.)A. Alleged Juror Misconduct
Mercado alleges that "at least one Juror was unduly coerced into giving a guilty vote during deliberations." (Pet. ¶ 12(A).) In bringing this claim, Mercado relies on that part of the juror statement averring that a fellow juror "harass[ed] and became verbally abusive towards" juror number six. (Id.; see Ex. D: Juror Statement, quoted at page 14 above.)
As the Second Circuit has explained:
There is a judicial reluctance, for sound and easily understood reasons, "to inquire into the state of mind of any juror and into the conduct of the jurors during their deliberations." . . . This is to avoid harassment of jurors, inhibition of deliberation in the jury room, a deluge of post-verdict applications mostly without real merit, and an increase in opportunities for jury tampering; it is also to prevent jury verdicts from being made more uncertain.
King v. United States, 576 F.2d 432, 438 (2d Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 155 (1978).
See also, e.g., Tanner v. United States, 483 U.S. 107, 120-21, 107 S.Ct. 2739, 2747 (1987) ("full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct"); United States v. Rosario, 111 F.3d 293, 298-99 (2d Cir.), cert. denied, 522 U.S. 969, 118 S.Ct. 418 (1997); United States v. Radonjich, 1 F.3d 117, 119-21 (2d Cir. 1993), cert. denied, 510 U.S. 1079, 114 S.Ct. 897 (1994); United States v. Ianiello, 866 F.2d 540, 543 (2d Cir. 1989); United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983) ("It hardly bears repeating that courts are, and should be, hesitant to haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences."), cert. denied, 466 U.S. 971, 104 S.Ct. 2344 (1984); Sullivan v. Fogg, 613 F.2d 465, 467 (2d Cir. 1980); United States v. Dioguardi, 492 F.2d 70, 78-80 (2d Cir.), cert. denied, 419 U.S. 873, 95 S.Ct. 134 (1974).
"To overcome this reluctance and to authorize a post-verdict inquiry, there must be 'clear evidence,' 'strong evidence,' 'clear and incontrovertible evidence,' 'substantial if not wholly conclusive evidence.'" King v. United States, 576 F.2d at 438 (quoting United States v. Dioguardi, 492 F.2d at 78, 79, 80); see also, e.g., United States v. Rosario, 111 F.3d at 299 ("a trial court is required to hold a post-trial juror interrogation only when reasonable grounds for investigation exist . . . Reasonable grounds are present when there is 'clear,' 'strong' and 'incontrovertible' evidence."); United States v. Ianiello, 866 F.2d at 543 (hearing required where investigator for defendants obtained affidavits of three jurors alleging specific acts of inappropriate conduct by the trial judge and the federal marshal responsible for the jury).
Against this standard, it is clear that Mercado's submission of a weakly authenticated juror statement containing vague allegations of "harassment" and "verbal abuse" does not entitle him to an evidentiary hearing or any other relief from this Court. See, e.g., Jacobson v. Henderson, 765 F.2d 12, 14, 15 (2d Cir. 1985) (affirming denial of habeas relief where petitioner submitted juror affidavits alleging instances of "screaming, hysterical crying, fist banging, name calling, and the use of obscene language" and chair-throwing during deliberations); United States v. Grieco, 261 F.2d 414, 415 (2d Cir. 1958) (refusing to upset verdict where juror testified that, during deliberations, fellow juror "kept yelling all the time," "wouldn't let [her] talk" and told her that she had "no commonsense," to point that she "had chills" and was "sick," "upset" and "practically in a daze"; "We do not say that there can be no threats short of violence by one juror against a recalcitrant dissenter that will upset a verdict, but certainly there was nothing in the case at bar to justify such action."), cert. denied, 359 U.S. 907, 79 S.Ct. 582 (1959); Valentin v. Snow, 83 Civ. 2278, 1985 WL 2310 at *2-3 (S.D.N Y Aug. 13, 1985) (denying habeas relief where petitioner submitted post-trial statement of juror complaining of harassment by other jurors during deliberations); see also, e.g., United States v. Stoppelman, 406 F.2d 127, 133 (1st Cir.) ("The fact that some jurors have weaker wills than others — or that one individual may bow to the pressure of eleven — cannot be a cause for reopening a case."), cert. denied, 395 U.S. 981, 89 S.Ct. 2141 (1969); People v. Maddox, 139 A.D.2d 597, 598, 527 N.Y.S.2d 89, 91 (2d Dep't 1988) (recognizing that "articulate jurors may intimidate the inarticulate [and] the aggressive may unduly influence the docile").
Accordingly, Mercado's claim based on juror misconduct is without merit.
B. The Jury's Alleged Exposure to Extra-record Information
Relying on the same juror statement, Mercado claims that his constitutional rights were violated by the introduction of extra-record information into the deliberations. (Pet. ¶ 12(A).)
In bringing this claim, Mercado relies on that part of the statement alleging that the jury learned, through a newspaper article, that another defendant had pled guilty to the murder for which Mercado was on trial. (See Ex. D: Juror Statement, quoted at page 14 above.) "The Sixth Amendment guarantees criminal defendants the right to a trial by jury, including the right to confront one's accusers. . . . A defendant's Sixth Amendment rights are therefore implicated when the jury considers incriminating evidence that was not admitted at trial." Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir.), cert. denied, 513 U.S. 901, 115 S.Ct. 261 (1994).
As the Second Circuit has explained: "The touchstone of a decision in a case such as we have here is thus not the mere fact of infiltration of some molecules of extra-record matter . . ., but the nature of what has been infiltrated and the probability of prejudice." United States ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373 (1971); accord, e.g., Bibbins v. Dalsheim, 21 F.3d at 16; United States v. Weiss, 752 F.2d 777, 783 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308 (1985); United States v. Hilliard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431 (1983). In determining prejudice, the Court must "apply an objective test, assessing for itself the likelihood that the [extra-record information] would affect a typical juror." Bibbins v. Dalsheim, 21 F.3d at 17; United States v. Ianiello, 866 F.2d 540, 544 (2d Cir. 1989); accord, e.g., United States v. Calbas, 821 F.2d 887, 895-96 n. 9 (2d Cir. 1987), cert. denied, 485 U.S. 937, 108 S.Ct. 1114 (1988); Miller v. United States, 403 F.2d 77, 83 n. 11 (2d Cir. 1968); United States v. Crosby, 294 F.2d 928, 948-50 (2d Cir. 1961), cert. denied, 368 U.S. 984, 82 S.Ct. 599 (1962).
In terms of what extra-record information reached the jury, the statement submitted by Mercado alleges only that the jury learned through a newspaper article that someone else had pled guilty to the murder for which Mercado was on trial. (See Ex. D: Juror Statement, quoted at page 14 above.) Mercado did not provide the state courts, and has not provided this Court, with a copy of the newspaper article or any further information regarding its content. It is difficult to see how knowledge of another's plea, without more, would have prejudiced Mercado in the instant case. If anything, such information would help Mercado, by shifting the blame away from Mercado and to Lucky who, the defense witness had testified, had acted alone. (See, e.g., Merrill: Tr. 463.) Accordingly, as Mercado has failed to show a probability of prejudice flowing from the jury's alleged exposure to the newspaper article, his claim asserting corruption of the deliberation process by extra-record information is without merit. See, e.g., United States v. Calbas, 821 F.2d at 887-97 (affirming denial of motion for new trial where jury's alleged consideration of extra-record information in its deliberations was not prejudicial to defendant); United States v. Weiss, 752 F.2d at 783 (same); United States v. Hilliard, 701 F.2d at 1063-64 (same); United States v. Costello, 352 F.2d 848, 852-53 (2d Cir. 1965) (affirming conviction where newspaper article allegedly read by jurors, which said other defendants had pled guilty, "contained nothing that could deprive [defendants] of a fair trial"), rev'd on other grounds, 390 U.S. 39, 88 S.Ct. 697 (1968); United States v. Crosby, 294 F.2d at 948-50 (affirming denial of motion for new trial where jurors read newspaper article reporting that co-defendant had pled guilty).
Indeed, the statement alleges that juror number six "was a hold out for the lesser charge especially after learning the other defendant took a plea." (See Ex. D: Juror Statement.)
As to Mercado's challenge to the judge's polling of the jury, the New York Court of Appeals held as follows:
[D]efendant assigns error to the manner and conduct of the jury polling and claims that the court failed to inquire further into an individual juror's vote upon the verdict. However, defendant failed to make this specific objection or request such procedures when the juror was being polled. Defendant again failed to object after the entire jury was polled before the panel was dismissed. Instead, defense counsel concentrated on describing his impression of the juror's reactions and simply resolved to "let the record speak for itself." It does. Defendant's contention on appeal concerning a claimed failure of the trial court to make certain inquiries is unpreserved for our review.
People v. Mercado, 91 N.Y.2d 960, 963, 672 N.Y.S.2d 842, 843 (1998) (emphasis added).
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice,'" i.e. a showing of "actual innocence." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506 (1977); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
See also, e.g., Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (April 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).
Here, the New York Court of Appeals held that Mercado's challenge to the "manner and conduct of the jury polling" was unpreserved for appellate review because of defense counsel's failure to lodge a specific objection. People v. Mercado, 91 N.Y.2d at 962-63, 672 N.Y.S.2d at 843. "The Second Circuit has held that the failure to object at trial is an adequate and independent state ground." Cruz v. Greiner, 1999 WL 1043961 at *14 (citing cases); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. April 20, 1998) (Baer, D.J. Peck, M.J.) (where First Department held that jury note issue was unpreserved because defendant "never objected to the procedure employed by the trial court and never requested that the court take any of the remedial measures he now suggests on appeal," state court decision rested on adequate and independent state ground barring habeas review).
In his brief to the New York Court of Appeals, Mercado challenged the First Department's determination that his claim regarding the unanimity of the verdict was unpreserved, arguing that Mercado's trial counsel "made as energetic an attempt as possible to register the appropriate protest . . . by twice alerting the Trial Judge, at the critical juncture of the jury poll, that he had an application, and then requesting a sidebar, but that he was either put off or simply refused by the trial court." (Ex. 3: Mercado Ct. App. Br. at 12, citing Tr. 749, 751-53.) While defense counsel's requests — first for a sidebar and then for an opportunity to make an application — were indeed refused by the trial judge (Tr. 749, 751), defense counsel was subsequently given an opportunity to speak, at which point he requested only that the juror be asked to repeat her response because he had not heard it (Tr. 752-53). No justification has been advanced for defense counsel's failure to make the appropriate objection at that time. Thus the Court of Appeals' determination that Mercado's claim was unpreserved was an "adequate" state ground (and the trial court's actions do not constitute "cause" for the procedural default). See, e.g., Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2648 (1986) ("[C]ause for a procedural default . . . ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim."); Farrington v. Senkowski, 19 F. Supp.2d 176, 180 (S.D.N.Y. 1998) (Petitioner "has not shown 'cause' because his trial counsel was not prevented by some external impediment from raising either objection."), aff'd, 214 F.3d 237 (2d Cir. 2000); compare, e.g., Pedrero v. Wainwright, 590 F.2d 1383, 1390 (5th Cir.) (petitioner "did all that he could to comply" with state rule but compliance was impossible), cert. denied, 444 U.S. 943, 100 S.Ct. 299 (1979); 2 James Liebman Randy Hertz, Federal Habeas Corpus Practice Procedure§ 26.3(b) at 1097 n. 33 (3d ed. 1988) (listing cases where cause for procedural default found because "[a]ctions of the state, state courts, or other officials hindered compliance with the procedural rule or made compliance 'impracticable'").
Thus, Mercado's' claim that the trial court's polling of the jury was unduly coercive is barred from federal habeas review unless Mercado can show cause for the default and prejudice, or a fundamental miscarriage of justice.
Mercado has not alleged cause and prejudice, nor has he made a showing of actual innocence.
B. Mercado's Judicial Juror Coercion Claim Lacks Merit
Even if Mercado's judicial coercion claim were not barred from habeas review by an "adequate and independent" state ground, the claim is without merit.
Where a juror gives an uncertain or equivocal answer when polled, it is proper for a court to attempt to clear up that uncertainty by continuing to question the juror in open court. See, e.g., Scruggs v. Williams, 903 F.2d 1430, 1434-35 (11th Cir. 1990); United States v. Hernandez-Garcia, 901 F.2d 875, 877-78 n. 4 (10th Cir.) (trial court asked juror five times if guilty verdicts signed by jury foreperson were his verdicts before juror responded "yes"; "The fact that in the first instance a juror, when polled, indicates uncertainty 'does not require setting the trial at naught' and further inquiry 'can serve to clear up apparent confusion' on the part of a juror."), cert. denied, 498 U.S. 844, 111 S.Ct. 125 (1990); United States v. Lawrence, 618 F.2d 986, 987-88 (2d Cir. 1980); Williams v. United States, 419 F.2d 740, 744-46 (D.C. Cir. 1960) ("The trial judge properly tried to clarify the confused verdict of [a juror]. In our view these efforts were essentially neutral and are not objectionable as having been intended or calculated to affect her judgment."); Ronson v. Commissioner of Correction, 551 F. Supp. 450, 458-60 (S.D.N.Y. 1982) (denying habeas relief where juror was crying and initially did not respond to jury poll, then after repeated questioning responded to court's question "Is that your verdict?" with answer "I suppose it is," before finally making clear that she joined in verdict; "Although the announcement of the verdict at [the petitioner]'s trial did not proceed without incident, I cannot agree with petitioner's contention that a unanimous verdict was not properly reached and recorded. . . . [A]lthough Juror Gertel was emotionally distraught at the thought of finding a man guilty of manslaughter and had a hard time composing herself when asked to report her verdict, the record demonstrates that she truly believed [petitioner] guilty under the applicable legal standards.
In such a situation, it is proper for the court to examine the juror in open court to clear up all doubts concerning her inability to articulate her verdict clearly."), aff'd mem., No. 82-2392, 742 F.2d 1446 (2d Cir.), cert. denied, 469 U.S. 841, 105 S.Ct. 144 (1984); United States v. Lockhart, 366 F. Supp. 843, 848 (E.D.Pa. 1973) (rejecting "proposition that a judge must refrain from attempting to extract unanimity by questioning from the bench"), aff'd mem., No. 73-2098, 495 F.2d 1369 (3d Cir. 1974); 75B AmJur2d Trial § 1770 n. 20 (1992) ("Where a juror's equivocal, ambiguous, inconsistent, or evasive answers leave doubt as to whether he has assented to the verdict, but his answers are not such as to indicate involuntariness or coercion, it is generally held that a subsequent answer which indicates clear and unequivocal assent, either on further interrogation or after further deliberation, will cure the defect.") (citing cases).
Here, although juror number six remained silent in the face of numerous requests that she state whether or not she joined in the verdict announced by the foreperson, when she finally did respond to the poll, her reply was unequivocal. (See Tr. 749-53, quoted at pages 5-8 above.) At no point did the juror state that she had not joined in the verdict in the jury room, that she had any doubts as to the verdict, or that she agreed to the verdict only conditionally, under duress or for some other improper reason. (See id.)
Compare, e.g., United States v. Nelson, 692 F.2d 83, 83-85 (9th Cir. 1982) (where juror disavowed verdict, error to ask juror why she did not agree and then to accept verdict); Sincox v. United States, 571 F.2d 876, 877, 880 (juror told court he had "reasonable doubt"); United States v. Edwards, 469 F.2d 1362, 1366-67 (5th Cir. 1972) (procedure held coercive where trial judge continued to question juror after juror stated "It's my verdict, but I am still in doubt"); United States v. Sexton, 456 F.2d 961, 962-67 (5th Cir. 1922) (judge continued to question juror after juror responded to poll by stating "I didn't vote either way"); United States v. McCoy, 429 F.2d 739, 741-43 (D.C. Cir. 1970) (judge continued to question juror after juror responded to clerk's request to "state yes or no whether or not your verdict is the same as that given your foreman" with the answer, "Yes, with a question mark"); Cook v. United States, 379 F.2d 966, 969-70 (5th Cir. 1967) (trial court accepted verdict despite notation on verdict sheet and jurors' responses to initial poll conditioning verdict on a strong leniency recommendation); United States v. Pleva, 66 F.2d 529, 532-33 (2d Cir. 1933); Matthews v. United States, 252 A.2d 505, 506 (D.C.Ct.App. 1969) (juror indicated his verdict was "conditional").
Moreover, the form of the judge's questions was entirely neutral — at no point did he (or the clerk) suggest that the juror must join in the verdict. (See Tr. 749-53.)
As the Eighth Circuit has noted, "in evaluating the trial court's polling procedure, since the trial judge is present on the scene, we must pay due deference to his views on whether the recalcitrant juror's ultimate acquiescence in the verdict came freely, without pressure from the court." Amos v. United States, 496 F.2d 1269, 1273 (8th Cir.), cert. denied, 419 U.S. 896, 95 S.Ct. 174 (1974). This is particularly so on habeas review where "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254 (e)(1). Here, the trial judge stated as follows with respect to juror number six:
See also, e.g., Hatcher v. Jackson, 853 F.2d 212, 213-14 (3d Cir. 1988) (deferring to state court's finding that juror unequivocally joined in guilty verdict, though juror had "severe emotional breakdown" immediately after she responded in affirmative to court's question as to whether she joined in verdict), cert. denied, 488 U.S. 1018, 109 S.Ct. 815 (1989); United States v. McClintock, 748 F.2d 1278, 1292-93 (9th Cir. 1984) (trial court found that juror was "obviously emotionally affected" but accepted verdict where juror first asked clerk to repeat the question, then asked for permission to speak, to which court responded that she would have to acknowledge whether verdict was hers or not, to which juror responded, after a long pause, "yes"; "We . . . must rely on the trial court's appraisal of the circumstances here. Only the trial judge could determine whether or not the her affirmative response was tainted, coerced or in any other way demonstrative of uncertainty."), cert. denied, 474 U.S. 822, 106 S.Ct. 75 (1985); United States v. Luciano, 734 F.2d 68, 70 (1st Cir. 1984); United States v. Aimone, 715 F.2d 822, 832 (3d Cir. 1983) ("We must rely on the trial judge's appraisal of the circumstances" surrounding whether a juror assented to the verdict.), cert. denied, 468 U.S. 1217, 104 S.Ct. 3585 (1984); Jackson v. Howard, 403 F. Supp. 107, 109 (W.D.Pa. 1975) (deferring to trial court's finding that verdict was freely assented to; "There are so many circumstances which do not appear in the written language of a transcript but which must be taken into consideration in assessing the nature of a juror's response and accordingly a trial court's discretion must be respected upon appeal."), aff'd mem., No. 76-1477, 547 F.2d 1161 (3d Cir.), cert. denied, 430 U.S. 957, 97 S.Ct. 1606 (1977).
She was emotionally upset. It's obvious it was very difficult for her to arrive at a verdict but I am convinced that is her verdict. She so indicated in the jury room which is why the jury announced the unanimous verdict. While it was difficult for her to say it and to confirm it here in the courtroom, she did.
(Tr. 755.)
In light of the juror's unequivocal answer when she finally did respond to the poll and the absence of any impropriety in the form of the judge's questions, the state trial court's finding that juror number six joined in the verdict will not be upset by this Court.
Accordingly, Mercado's second habeas claim, alleging judicial coercion, is without merit and should be denied.
IV. MERCADO'S CHALLENGE TO THE CONSTITUTIONALITY OF NEW YORK'S POSTCONVICTION PROCEDURES IS WITHOUT MERIT
Mercado argues that New York State's post-conviction procedures are constitutionally deficient because "officials sit in judgment of their own causes" and the procedures "allow officials to negate the Power of Trial by Jury." (Pet. ¶¶ 12(C)-(D)). These claims are without merit. Insofar as Mercado challenges the propriety of having "officials sit in judgment of their own causes," the only claim Mercado brought in his CPL § 440.10 motion challenging the conduct of the trial judge was his judicial coercion claim with respect to the judge's polling of the jury. Since the judicial coercion claim was raised on direct appeal, it was barred from collateral review under CPL § 440.10(2)(a), which prevents postconviction review of points previously determined on appeal.
New York Criminal Procedure Law § 440.10(2)(a) provides that "the court must deny a motion to vacate a judgment when . . . [t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue."
Moreover, to the extent that Mercado challenges the propriety of having trial judges revisit their prior rulings, "[i]t has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant." Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147, 1155 (1994); see, e.g., Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997) ("Petitioner does argue that because the trial judge was being asked at the post-conviction hearing to change his final judgment, he should have been disqualified. This argument is facially unsound. . . . If fashioned into a rule [petitioner's] argument would result in unnecessarily dislodging trial judges from post-conviction proceedings on the false assumption that trial judges are not capable of doing what the law requires. . . . We cannot identify any fault with [the state's] rule that assigns post-conviction review matters to the original trial judge."), cert. denied, 525 U.S. 903, 119 S.Ct. 237 (1998); Lechuga v. United States, No. 93-1411, 48 F.3d 1221 (table), 1995 WL 84603 at *1 (7th Cir. 1995) (rejecting argument that trial judge abused his discretion by failing to recuse himself from § 2255 proceedings challenging denial of suppression motion where petitioner "offers no reasons for the judge's recusal except for his familiarity with the case and his adverse decision on [petitioner]'s motion to suppress"). As Justice Kennedy has stated, "Some may argue that a judge will feel the 'motivation to vindicate a prior conclusion' when confronted with a question for the second or third time, for instance, upon trial after a remand. . . . Still, we accept the notion that the 'conscientious judge will, as far as possible, make himself aware of his biases of this character, and, by that very self-knowledge, nullify their effect.'" Liteky v. United States, 510 U.S. at 562, 114 S.Ct. at 1160 (Kennedy, J., concurring).
Mercado's claim that the State's post-conviction procedures "allow officials to negate the Power of Trial by Jury" appears to be just another way of challenging the trial judge's handling of the polling of the jury, a claim addressed at length earlier in this Report and Recommendation.
Mercado's challenge to New York's CPL § 440.10 post-conviction procedures should be denied as without merit.
CONCLUSION
For the reasons set forth above, Mercado's petition for a writ of habeas corpus should be denied. Since Mercado has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability should not issue. 28 U.S.C. § 2253.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Michael B. Mukasey, 500 Pearl Street, Room 2240, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Chief Judge Mukasey. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).