Summary
noting that the U.S. Constitution generally does not require a defendant's presence at sidebar conferences
Summary of this case from Quintana v. LeeOpinion
05 Civ. 3542 (BSJ) (AJP).
December 28, 2006
REPORT AND RECOMMENDATION
Pro se petitioner Antonio Morales seeks a writ of habeas corpus from his May 3, 2001 conviction in Supreme Court, Bronx County, of second degree depraved indifference murder and sentence of twenty-five years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.) See People v. Morales, 308 A.D.2d 383, 383-84, 764 N.Y.S.2d 411, 412-13 (1st Dep't 2003), appeal denied, 1 N.Y.3d 599, 776 N.Y.S.2d 230, reconsideration denied, 3 N.Y.3d 709, 785 N.Y.S.2d 37 (2004). Morales' federal habeas corpus petition alleges that: (1) he was denied his right to be present during a material stage of his trial when the trial judge ruled that Morales waived his Antommarchi rights and excluded him from subsequent sidebar conferences during jury selection (Pet. at 15-22); (2) his conviction of depraved indifference murder was against the weight of the credible evidence (Pet. at 23-25); and (3) he was deprived of due process when the trial court refused to charge the jury that two prosecution witnesses were accomplices as a matter of fact (Pet. at 26-30).
For the reasons set forth below, Morales' habeas petition should be denied.
FACTS
Voir Dire
At the beginning of voir dire on March 15, 2001, Justice Robert Straus asked defense counsel to speak to Morales and co-defendant Richard Crespo about their Antommarchi rights, i.e., the right to be present during voir dire sidebar discussions. (Voir Dire Transcript ("V.") 60.) Michael Torres, counsel for Crespo, replied that he had discussed Antommarchi with his client and Crespo wished to be present at all sidebars. (V. 60.) Justice Straus reminded Crespo that that would mean that he would be "flanked" by court officers every time he approached the bench, and Torres stated that Crespo understood. (V. 60.) Patrick Bruno, trial counsel for Morales, stated that "Mr. Morales, as well, would like to participate and approach the bench at the appropriate times." (V. 60-61.) Justice Straus accepted those requests and reminded counsel and both defendants that their participation in sidebars meant watching and listening to what everyone said at sidebar, but not commenting or asking questions. (V. 61.)
On March 22, 2001, after Justice Straus announced that he was going to bring certain prospective jurors up to the bench to question them about prior arrests, Morales' counsel Bruno stated: "Mr. Morales will not approach with me. I think I will then summarize what the discussion is." (V. 346.) Justice Straus responded: "If [for] any reason you feel it's necessary to leave the bench and speak to him, you can do that." (V. 346.) Bruno responded, "That's great, thank you." (V. 347.)
Morales' petition asserts that he was present at several other sidebars after that. (Dkt. No. 1: Pet. at 16, citing V. 369-79, 846-73 930-32.) However, the transcript demonstrates that during sidebars on March 22 and March 29, 2001, only defendant Crespo was present at voir dire sidebars with all counsel. (V. 369, 846.) Later on March 29, 2001, both defendants Crespo and Morales went up to the bench with counsel for a sidebar with a prospective juror (who the judge excused). (V. 930-31.)
The three venirepersons questioned at the bench on March 22 were discussing arrests of family members or friends. (V. 369-79.) The issue discussed with prospective jurors on the morning of March 29, 2001 was hardship if the jury was sequestered. (V. 846-73.) Twelve of the fifteen interviewed were excused for hardship on consent. (V. 848, 849, 850-51, 853, 860, 862, 866, 868, 869, 871, 872, 873; see also V. 874.) Three others were kept in the venire when they agreed they could serve without hardship. (V. 854, 856-57, 863.)
After the lunch break on March 29, 2001, Justice Straus stated on the record:
With regard to Anto[m]marchi rights, before we started the trial, Mr. Morales waived Anto[m]marchi rights. Mr. Crespo did not, yet in the sealed courtroom when one of the last jurors came up to the bench, Mr. Morales came up. I allowed it at that moment. But the law is, as I understand it, once you waive Anto[m]marchi rights, it is waived for the course of the jury selection, it is not restored.
So unless you have something contrary under the law, he cannot come up any further.
(V. 933.) Morales' counsel Bruno began to respond to Justice Straus, but stopped and said he could not respond at that time because the jury was entering the courtroom. (V. 933.) Justice Straus responded: "There is no response. That's the law." (V. 933.) Thereafter, Morales did not attend the final sidebar conference during voir dire with one prospective juror. (V. 970-72.) The Trial The Prosecution Case Daniel Feliciano's Testimony
That venireperson stated that he had been arrested for smoking marijuana in a park but he had learned his lesson and could be fair. (V. 970-72.) That venireperson was further questioned in open court. (V. 972-75.) Thereafter, Morales' counsel declined to exercise a peremptory challenge against that potential juror, although co-defendant Crespo's attorney expressed a desire to challenge that person. (V. 1020-24.)
Feliciano's Past Crimes and Plea Agreement
The prosecution's first witness was Daniel "Danny" Feliciano. (Trial Transcript ("Tr.") 71.) At the time of trial, Feliciano was twenty-three years old. (Tr. 72.) Feliciano sold drugs, marijuana, cocaine and crack cocaine since he was fourteen years old. (Tr. 316-18.) Feliciano also used cocaine and marijuana up through the summer of 1996, when he was eighteen years old. (Tr. 322-24.) Feliciano had committed and pleaded guilty to several past crimes, including turnstile jumping on multiple occasions, petit larceny, and burglary. (Tr. 73-76, 89-93, 311-15.)Feliciano entered into an agreement with the prosecution in the Morales-Crespo case in which he would testify in return for a lesser punishment on his unrelated 1996 first degree burglary charge. (Tr. 75-80, 90-93, 216-20, 304-05, 542.) Feliciano entered into the agreement with prosecutors in October 1997 and got out of jail without bail as a result of that agreement in July 1998. (Tr. 218, 305-06.) Part of the agreement with the prosecution was that Feliciano would not be sentenced on the burglary conviction until the Morales-Crespo trial was over. (Tr. 227-28, 231.) If Feliciano failed to cooperate in the Morales-Crespo case, he would receive four to eight years incarceration on the burglary charge; if Feliciano testified at the Morales-Crespo trial, he would receive a reduced sentence of one and a half to three years incarceration. (Tr. 309, 543, 562-64.)
Feliciano's Relationship with the Deceased, Lenny Slatest
During the summer of 1996, when Feliciano was eighteen years old and lived in the Bronx, he met Lenny Slatest, a dean at Dodge High School. (Tr. 80, 86, 231-33.) Feliciano met Slatest through his then-girlfriend Melissa, who was fifteen or sixteen years old and went to Dodge High School. (Tr. 80-83, 231-32.) Melissa had told Feliciano that she knew Slatest because Slatest had helped her obtain an abortion. (Tr. 81-82, 233-34.) At one point that summer, Slatest asked if Feliciano could help him "get rid of his truck" for an "insurance job." (Tr. 83.) Slatest told Feliciano that he had paid a lot of money for the truck and that "he wanted to get it stolen so he could collect some money on it." (Tr. 83.) The truck was a black 1996 Toyota 4-Runner. (Tr. 84.) Feliciano had never had that type of conversation with Slatest before, so he was "skeptical" about it and "didn't bite." (Tr. 84.) Feliciano said that he did not know and would get back to Slatest. (Tr. 85-86.) The issue of stealing the car never came up again between Feliciano and Slatest. (Tr. 86.)
Soon after that, Slatest approached Feliciano and said that he had obtained $200,000 from a settlement and wanted to invest in a drug operation. (Tr. 86, 210, 236.) Feliciano was still skeptical of Slatest, but told Slatest that he could probably help him out. (Tr. 86-87.) Feliciano told Slatest that they would need to be able to communicate with each other, so Slatest gave Feliciano approximately $300 to buy a pager and for "pocket money." (Tr. 87, 236, 547-48.) The next day, Feliciano told Slatest that he would need $1500 to start the drug operation. (Tr. 87, 236.) The day after that, Slatest gave Feliciano the money. (Tr. 87.)
Feliciano bought cocaine with the $1500. (Tr. 88.) Feliciano planned to take the cocaine to a friend on Tremont Avenue, who would sell it. (Tr. 88, 236.) Feliciano did not sell the cocaine on the street himself, but wholly depended on others to sell it for him. (Tr. 237.) Slatest told Feliciano that he wanted to invest in something bigger and faster than what Feliciano planned. (Tr. 88, 237.) Feliciano discussed with Slatest that if he bought more drugs, he would be able to make more money, and explained that normally it takes a little while to get established. (Tr. 88-89.) Feliciano went with Slatest to the bank, where Slatest gave Feliciano $11,000 to purchase more drugs. (Tr. 93-94, 237.) While Slatest was at the bank, Feliciano waited outside in Slatest's black Toyota 4-Runner. (Tr. 94.) Slatest did not expect to be involved in the drug transactions; he just expected to get back the money he put into the operation, as well as to split any profit fifty/fifty with Feliciano. (Tr. 98, 237, 239.)
Feliciano took at least three bus trips to Pennsylvania to try to sell the drugs he purchased with the money. (Tr. 94-98, 238, 342.) Slatest paid for Feliciano's bus ticket and hotel in Pennsylvania. (Tr. 94, 98, 210.) Feliciano had never been to Pennsylvania before and did not have any connections in Pennsylvania. (Tr. 95.) Feliciano stated that during his first two trips to Pennsylvania, everything went very well, he was able to make back much of Slatest's money and send it to him, and he had enough money to operate, but on his third trip, he was arrested for falsification while driving without identification. (Tr. 95-98, 104-05, 241, 324-25, 356-57.) Feliciano called Slatest several times from jail in Pennsylvania, but Slatest did not come to Pennsylvania nor provide bail money. (Tr. 95, 105-06, 342.) Feliciano and Slatest had agreed before Feliciano went to Pennsylvania that if either one of them got in trouble, the other would be there to help him out. (Tr. 95, 107, 241, 342.) Feliciano pleaded guilty to the falsification charge in Pennsylvania and spent twenty days in prison. (Tr. 89-90, 95, 105, 344.)
Feliciano called Slatest from Pennsylvania when he got out of prison and told Slatest that he was angry that Slatest did not come to Pennsylvania to bail him out. (Tr. 109-10, 241-47, 261, 351.) When Feliciano got out of prison, he came back to the Bronx and attempted to contact Slatest at least once a day, to no avail, and then "got tired of it." (Tr. 106-07, 242, 344.) Feliciano left a message on Slatest's answering machine stating that "it was going to be on." (Tr. 110, 242-47, 344, 351, 499-501.) Feliciano testified that what he meant by that statement was that he hoped that Slatest had a good excuse for not bailing him out, but that he did not intend to hurt Slatest. (Tr. 245, 351-52, 499-501.) The next time Feliciano saw Slatest after leaving that message was on July 24, 1996, the day that Slatest was killed. (Tr. 110, 261, 501.)
The July 24, 1996 Murder of Lenny Slatest
During the summer of 1996, Feliciano knew a person by the street name of White Cloud, which, by the time of trial, Feliciano knew to be Richard Crespo. (Tr. 99, 248, 338, 553.) Feliciano had met Crespo through another acquaintance several months before July 24, 1996. (Tr. 99-100.) Crespo used to hang out at 181st Street near the hair salon. (Tr. 100.) Prior to July 24, 1996, Feliciano had seen Crespo approximately ten to twelve times. (Tr. 100, 195.) Shortly before July 24, 1996, Feliciano met Antonio Morales, who went by the nickname of "Tone." (Tr. 100-01, 248.) Feliciano had seen Morales three to five times prior to July 24, 1996. (Tr. 101, 248.) Feliciano had seen Crespo and Morales three or four times hanging out together on 181st Street near the hair salon. (Tr. 101, 201-02.) Feliciano identified Morales and Crespo for the record at trial. (Tr. 112-13.)
Feliciano testified that Morales spoke "a lot about his business," including some issues with "his uncle." (Tr. 101.) Feliciano remembered Morales telling a story to someone else about Morales' uncle raping his sister. (Tr. 102, 249, 260.) Morales said that he had been injured by his uncle in an incident where Morales fell down the stairs, and Morales had a metal plate in his head as a result. (Tr. 102, 260.)
On July 24, 1996, Feliciano paged Crespo to find out where Slatest was. (Tr. 110-11, 203, 262.) Feliciano denied using any drugs that day. (Tr. 324.) Although Feliciano had paged Slatest, Slatest had not returned his calls. (Tr. 111, 262.) Near dusk, Feliciano ran into Crespo and Morales on the street near the hair salon at 181st Street and the Grand Concourse, and Crespo told Feliciano that Slatest was on his way to that location. (Tr. 112, 203-05, 357-58.) Crespo told Feliciano that Crespo had started a business relationship with Slatest running a marijuana operation out of the hair salon, and that Slatest had purchased the hair salon. (Tr. 204-05.) Feliciano testified that the reason he wanted to get in touch with Slatest that day was because some people in Pennsylvania had some of Slatest's cocaine, but Feliciano was not able to contact them, and also because another person was locked up in Pennsylvania in relation to the drug operation, and Feliciano wanted to get money from Slatest to bail that person out. (Tr. 114.)
During cross examination, Feliciano testified that Morales was not present when he first arrived at the block, and that he had only spoken with Crespo. (Tr. 360.)
On July 24, 1996, when Feliciano met Slatest on the street near the hair salon on 181st Street, he asked Slatest why he did not come to Pennsylvania to bail him out. (Tr. 111, 114-15, 510.) Slatest gave him "a run around excuse." (Tr. 115.) When Feliciano asked Slatest for $2500 to purchase more "material," Slatest agreed to give it to him. (Tr. 116-17, 206-07, 354-55.)
Slatest and Crespo went into the hair salon while Feliciano stayed outside on the corner. (Tr. 117-18, 207.) Crespo came back outside and said to Feliciano, "'we just going to have to yap him, we just going to have to yap him,'" meaning to rob him. (Tr. 118, 208, 264, 266, 366.) Feliciano testified that he had explained to Crespo that there was no need to go that far because Slatest is a "bank," and that as long as Slatest was happy, they would be happy. (Tr. 118-19, 208-09, 266.) Feliciano called Slatest a "bank" because in the past, Slatest had asked Feliciano how much money he needed, and gave it to him. (Tr. 119-20, 209.) Feliciano testified that it was not his intention to rob Slatest that day. (Tr. 209, 265.)
Feliciano and Crespo entered the hair salon. (Tr. 120, 263, 265.) Crespo pulled out a gun, pointed it at Slatest and told him to step to the back of the hair salon. (Tr. 121, 210-11, 366, 533-34.) Slatest raised his hands above his shoulders and screamed "don't kill me, you guys are the only guys I know who do these type of things. I'm all bullshit." (Tr. 121-23.) Feliciano believed that Slatest said that because Slatest had mentioned something in the past to him about knowing "some Albanian people" who would back him up if anything ever happened to him. (Tr. 122-23, 267-68.) Morales was buzzed in and came into the hair salon. (Tr. 124, 263-64, 360, 363.) Crespo passed the gun to Morales, and Crespo got an electrical extension cord and began to tie Slatest up. (Tr. 125-26, 128, 533-34.) Morales continued to hold the gun while Crespo searched Slatest and took several things out of his pockets, including his wallet, chain and watch. (Tr. 126, 145.) Crespo passed Slatest's wallet to Feliciano, who saw that it contained less than twenty dollars. (Tr. 145, 282-83.) Feliciano stated that Morales did not actually point the gun at Slatest but "it was in plain view that [Slatest] could see that the gun was there." (Tr. 127-28.) Crespo continued tying Slatest up with his arms behind his back and legs together with one or more extension cords. (Tr. 128-30.) Slatest was lying on the floor of the hair salon while Crespo tied him up. (Tr. 130.) Crespo got some duct tape and "started to tape him up, but not completely." (Tr. 130, 368, 389-90.) At this point, the only people in the room were Slatest, Crespo, Morales and Feliciano. (Tr. 130.)
On cross examination, Feliciano admitted that when he first gave a statement to Detective Lane, he had told Detective Lane that Feliciano, Crespo and Morales all went into the hair salon together. (Tr. 363.)
Crespo left the hair salon and came back with another man, who Feliciano had never seen, but later learned was Juan Santiago, the superintendent of the building complex in which the hair salon was located. (Tr. 131-33, 269-71, 275.) Feliciano also later learned that Santiago was Morales' uncle. (Tr. 552, 567.) When Santiago saw Slatest on the floor, he "grabbed a handkerchief or rag from his pocket and put it over his [own] face." (Tr. 131, 142, 276.) Crespo got a gray plastic bag and put it over Slatest's head and began to "duct tape [Slatest's] head completely with the duct tape." (Tr. 133-36, 389-90.) Slatest already had a cloth in his mouth before Crespo put the bag over his head. (Tr. 135.) Crespo used the entire roll of duct tape, and taped the bag over Slatest's head from his neck to the top of his head. (Tr. 136, 387, 389-90.) At this point, Feliciano, Morales, Crespo, and Santiago were in the room with Slatest, and Morales had the gun in his hand. (Tr. 136-37.) Crespo kicked Slatest in the head and said "something about be fucking" with him. (Tr. 138-39, 386-88.) Santiago left the hair salon at some point, and Feliciano never saw him again. (Tr. 139-41, 277-78, 529-32, 554-61.) A few minutes after Crespo kicked Slatest, Feliciano heard a gagging sound coming from Slatest, and knew that Slatest was dead. (Tr. 139-40, 148.)
Feliciano testified on cross examination and on redirect that he did know around the time of Slatest's murder that this man was a superintendent in the complex or at least had seen him around the neighborhood. (Tr. 272-75, 512-13, 526-29, 566-67.)
During cross examination, Feliciano admitted that during his grand jury testimony, he stated that all four of them left the hair salon at the same time. (Tr. 277-78, 280-81, 554-61.)
Crespo, Morales, and Feliciano left the hair salon. (Tr. 140-41, 143, 532, 554-61.) Crespo closed the hair salon's gate and told Morales and Feliciano to meet at the hair salon the next day, and to make sure that they did not say anything about what had just happened, which Feliciano took as a threat. (Tr. 141, 213-14, 281-82, 369-70, 501, 535-36.) Feliciano went home and cried. (Tr. 170.) Feliciano's brother was at home, but Feliciano did not tell his brother or anyone else about the murder. (Tr. 170.) Feliciano testified that he did not tell anyone right away about Slatest's murder because he was scared for his life and for his family. (Tr. 170, 215, 289, 306, 310, 369.)
Feliciano met Crespo the next day in front of the hair salon. (Tr. 144, 169-71, 369-70, 536-38.) Feliciano did not know where Slatest's body was, because the hair salon was open for business. (Tr. 144.) Crespo just told Feliciano that he would "read about it in the paper." (Tr. 144-45, 171.) Feliciano saw that Crespo was wearing Slatest's watch. (Tr. 146.)
Feliciano's Actions after Lenny Slatest's Murder
After Slatest's murder, Feliciano went to Puerto Rico to visit his father for one and a half to two weeks, but he did not tell his father about the murder. (Tr. 174, 288, 372-73.) When Feliciano came back from Puerto Rico, he lived with his grandmother in the Bronx, but he did not tell her about Slatest's murder. (Tr. 175, 288.) Soon after that, Feliciano left the Bronx to work in another state, where he was working at the time of trial. (Tr. 216, 306, 540.)
About a month after Slatest's murder, Feliciano learned that Detective Lane of the 40th Precinct had spoken to Feliciano's girlfriend, Melissa, during which his name had come up. (Tr. 147-49, 175-76, 283-86.) A few days later, Feliciano called Detective Lane from a pay phone. (Tr. 149-50, 285-86, 503.) Feliciano did not tell Detective Lane about his relationship with Slatest. (Tr. 176, 326-28.) Feliciano testified that he did not give Detective Lane accurate information at that point; instead, he told Detective Lane that he did not have anything to do with Slatest's murder and that he was going to try to find out what happened to Slatest. (Tr. 151, 177, 326-28, 330-31, 502.) Feliciano testified that he was "fishing" to see what the police knew because he might be implicated in the murder, and he was scared of being killed or of something happening to his family if he told the truth since he had seen what happened to Slatest. (Tr. 151-52, 306, 310, 336, 341, 506, 547.)
Feliciano testified that he is approximately five foot three inches tall and 127 pounds, while Crespo is at least six feet tall. (Tr. 498.)
For their next conversation, which was also during the end of summer in 1996, Feliciano agreed to meet Detective Lane, who picked up Feliciano from his street and took him to the 40th Precinct. (Tr. 178-79, 334, 504, 507.) Feliciano told Detective Lane that he was working for Slatest selling cocaine and had made some trips to Pennsylvania to sell cocaine, but still did not admit that he was present when Slatest was killed. (Tr. 156, 177, 179, 330-31, 334-35, 341-42, 506-07.)
It was not until April 22, 1997 that Feliciano told Detective Lane what he knew about Slatest's murder. (Tr. 156, 230, 271-72, 289-90, 309, 320.) At that time, Feliciano's burglary case was pending and he was in jail. (Tr. 157, 290, 310, 320, 337.) Feliciano also had learned that Crespo and Morales were arrested on another matter, which made him feel more secure about talking to the police. (Tr. 157, 290, 304.) Feliciano testified that one of the reasons he decided to talk to Detective Lane was because he wanted to try to get a better deal on his burglary charge. (Tr. 321-22, 337.)
Feliciano testified that he had a good relationship with Slatest, that Slatest never threatened him, that he never had any physical altercations with him, and that Slatest was very generous to him by taking him out to dinner frequently and buying him small things. (Tr. 108-09, 509.) Feliciano denied killing Slatest because Slatest allowed him to serve twenty days in jail in Pennsylvania. (Tr. 510-11.) Detective Loser Lane's Testimony
Detective Loser Lane had worked for the New York City Police Department for seventeen years; he was an investigator for twelve years, and was a detective in the 40th Precinct Detective Squad for nine of those years, including during the summer of 1996 when Slatest was killed. (Tr. 594-96.) Detective Lane identified Crespo and Morales at trial as the two individuals he arrested in connection with his investigation of Slatest's death. (Tr. 596-97.)
At 8:00 a.m. on July 25, 1996, Detective Lane responded to a call regarding a burned automobile near 158th Street and Tinton Avenue. (Tr. 598-99, 734.) Detective Lane observed a burned up 1996 Toyota 4-Runner at the scene. (Tr. 600, 734.) Detective Lane traced the truck's license plate to Lenny Slatest's wife, and learned that Lenny Slatest was the deceased in the truck. (Tr. 603-05.)
Detective Erica Dangerfield of the Crime Scene Unit testified that on July 25, 1996 at approximately 5:55 a.m. she went to 158th Street and Tinton Avenue in the Bronx, where a white Toyota 4-Runner had been set on fire. (Tr. 779-82.) In the truck's rear cargo area there was a dead body, face down, the arms and legs bound with wire, and the face bound with silver duct tape. (Tr. 782, 784-85.) Detective Dangerfield testified that the truck was totally burned, including both the interior and the exterior. (Tr. 787.)
Later that day, Detective Lane observed Slatest's autopsy at the medical examiner's office. (Tr. 605-06.) Detective Lane saw that Slatest had burns on most of his body, had gray tape wrapped around his head and had wire tying his arms and legs. (Tr. 606-09, 618-20, 644-46.) The wire bound Slatest's arms behind his back and his legs behind his body as though he was kneeling. (Tr. 619.) Detective Lane identified photographs of Slatest's body at trial, and the photographs were published to the jury. (Tr. 607-09, 612-18, 620.) Detective Lane did not observe a watch or a chain on or near Slatest's body when he observed the autopsy. (Tr. 622.)
Dr. Zoya Shmuter of the Chief Medical Examiner's office testified that she performed an autopsy on the body of Lenny Slatest on July 25, 1996. (Tr. 754-55, 60-62.) Dr. Shmuter testified that when she received Slatest's body, his limbs and hands were bound by wires and his mouth and nose were covered by gray silver duct tape. (Tr. 763-64, 768-69.) Dr. Shmuter found that there was a fracture and bleeding of the right thyroid cartilage in the neck. (Tr. 765-66.) Dr. Shmuter found that Slatest's entire head, including his nose and mouth, was wrapped with duct tape. (Tr. 766, 769.) Dr. Shmuter concluded that Slatest died of "mechanical asphyxia," meaning that something prevented him from breathing. (Tr. 766-67.) Dr. Shmuter testified that blunt force injuries to Slatest's neck would be consistent with the foot of a human being making contact with his neck on two separate occasions. (Tr. 767, 771-72, 774-75.) Dr. Shmuter concluded that the severe burns on Slatest's body did not cause his death, and that he was dead before his body was burned because his blood had a very low level of carbon monoxide in it. (Tr. 769-70.) Dr. Shmuter did not find a chain or watch on Slatest's body when she performed the autopsy. (Tr. 771.)
Detective Lane arrested Morales and Crespo in connection with this case in the spring of 1998. (Tr. 650, 666.) Detective Lane testified that Crespo was six feet one inches tall and approximately 180 pounds, and that Morales was five feet six inches tall and approximately 160 pounds. (Tr. 651-52.)
Detective Lane had interviewed many people in connection with his investigation in this case. (Tr. 652-54, 719.) Detective Lane obtained a list of approximately fifteen or twenty telephone numbers along with nicknames kept by Slatest, and when he cross referenced those nicknames to real names, he learned that White Cloud's real name was Richard Crespo. (Tr. 654-58, 663-66.) Detective Lane interviewed Melissa Martinez and Danny Feliciano in connection with Slatest's murder. (Tr. 677, 721-23, 731.) Danny Feliciano contacted Detective Lane in August 1996 by telephone. (Tr. 677-78, 731.) On August 31, 1996, Detective Lane spoke with Feliciano about Slatest again at the 40th Precinct, after Detective Lane picked him up in an arranged spot on the street in the Bronx. (Tr. 678-80, 731.) On September 4, 1996, Detective Lane again spoke to Feliciano. (Tr. 680-81, 731, 738-39.) Feliciano told Detective Lane that he had heard from someone named Rafael Torres that "somebody by the name of Crespo killed Slatest." (Tr. 733.)
Feliciano referred to the person as White Cloud, and Detective Lane provided Feliciano with White Cloud's real name, Richard Crespo, and used Crespo's real name on Feliciano's statement. (Tr. 682, 739.)
On April 22, 1997, after a period of no contact with one another, Feliciano contacted Detective Lane and stated that he wanted to speak to him about the Slatest murder case. (Tr. 683-85.) Feliciano was incarcerated at that time on an unrelated burglary case. (Tr. 685, 740.) Feliciano was brought to the 40th Precinct and wrote out a statement. (Tr. 685-91.) Detective Lane told Feliciano at that time that Juan Antonio Santiago was a superintendent. (Tr. 697.) Neither Detective Lane nor Feliciano asked for or offered any assistance on Feliciano's burglary case if he were to be a witness in the Slatest murder case. Feliciano was returned to Riker's Island when he finished speaking with Detective Lane. (Tr. 697.)
Detective Lane testified that during his investigation, he interviewed David Pilossoph, Lenny Slatest's roommate, who gave the police Slatest's answering machine tape that held Felciano's voice message to Slatest. (Tr. 719-21.) Detective Lane later interviewed Feliciano about the tape, and Feliciano acknowledged that it was his voice on the tape. (Tr. 720-21.)
Several weeks later, on April 4, 1997, Detective Lane took a written statement from Juan Antonio Santiago in connection to this case. (Tr. 691-93.) Detective Lane already knew that Juan Antonio Santiago was Morales' uncle, because he learned that information from Morales in 1996, when he had interviewed Morales about the death of his other uncle, David Santiago. (Tr. 666-69, 695.)
When Detective Lane looked up Morales' 1996 address, it was 2150 Creston Avenue, which is the address of the complex where the hair salon on 181st Avenue is located. (Tr. 699, 725-26, 728.)
On March 18, 1998 Detective Lane arrested Morales after a lengthy investigation into Slatest's murder. (Tr. 699-700.) Morales made a videotaped statement in connection with this case. (Tr. 701.) Morales told Detective Lane that he knew Lenny Slatest for approximately two weeks before Slatest's death. (Tr. 702.) Morales also told Detective Lane that Juan Antonio Santiago was Morales' uncle and the superintendent at 2150 Creston Avenue. (Tr. 702-03, 726, 728.) Morales told Detective Lane that he was outside the hair salon on the night of Slatest's murder. (Tr. 703, 716-17.) Morales told Detective Lane that he went up to Juan Antonio Santiago's apartment that night, "but didn't know what was going on." (Tr. 717.)
Juan Antonio Santiago's Testimony
At the time of trial, Juan Antonio Santiago was 36 years old and worked outside of New York State doing maintenance work. (Tr. 805.) Santiago knew both defendants in this case; Antonio "Tony" Morales was his nephew. (Tr. 805-06, 809.) Santiago identified Morales and Crespo in court. (Tr. 805-07.) Santiago only knew Crespo by his nickname, White Cloud. (Tr. 808-09, 895.)
During the summer of 1996, Santiago worked as a superintendent at 2150 Creston Avenue, where he also lived, and performed maintenance on apartments and stores in the complex. (Tr. 807, 859-60, 906.) Santiago helped Morales obtain apartment 3D of that complex. (Tr. 807-08.) During the summer of 1996, Crespo lived a block away from Santiago. (Tr. 808.) For approximately a year prior to July 24, 1996, Santiago saw Morales hanging out with Crespo many times, including inside 2150 Creston Avenue, and had engaged in small talk with Crespo many times. (Tr. 808-10, 835, 896.)
Santiago used to do maintenance inside some of the stores that had storefronts in the 2150 Creston Avenue complex, including the hair salon on 181st Street. (Tr. 811, 906.) Santiago testified that he was not familiar with the owner(s) of the hair salon, since "[t]hey rented it to drug dealers, they catch them and then they rent it again. It had so many owners." (Tr. 907.) Santiago believed that Morales and Crespo were operating the hair salon as a drug operation in July 1996. (Tr. 907.)
On July 24, 1996, Santiago had finished work and was in his apartment getting ready for dinner. (Tr. 811-12, 866-67, 896.) Morales came to the apartment and asked Santiago to come down to the hair salon, but he declined because he was just sitting down to dinner. (Tr. 813-17, 867-68, 896, 923.) Crespo came to the apartment and said that he needed Santiago to go to the hair salon to do something. (Tr. 817, 868-69, 896, 907-08.) Santiago went to the hair salon with Crespo but did not bring any tools, since he did not know what the reason was for him to go to the hair salon. (Tr. 817, 868-69, 907-08.)
During cross examination, Santiago admitted that in his written statements to the police, he omitted the statement that Crespo came to his apartment, and stated only that Morales came to the apartment to get him and that he went to the hair salon with Morales. (Tr. 901-05.)
Santiago went inside the hair salon with Crespo and saw a "guy tied up on the floor . . . asking for his life saying, look, why you doing this to me, I gave you all my money, I left you the business, you know, why you doing this to me." (Tr. 818, 908.) Santiago saw Morales and Crespo near the man. (Tr. 818-19.) Santiago had never seen the man on the floor before. (Tr. 819, 905.) Santiago saw that Morales had a gun in his hand. (Tr. 820, 823, 830.) Crespo told Santiago to make a hole in the floor to bury the man, and Santiago told Crespo that he was crazy and should not have brought him inside the hair salon for this. (Tr. 820, 832, 869-73.) Morales took some duct tape and a plastic bag off a counter and handed them to Crespo. (Tr. 909-10.) Crespo put a gray plastic bag over Slatest's head and started putting tape on his head. (Tr. 820-22, 826, 830, 873.) Crespo put more tape on Slatest's head and kicked him in the head and said "mother fucker, this is for messing with me . . . show you not to mess with me." (Tr. 822-23, 830-31, 917-18.) Santiago stated that the man was on the floor on his stomach "hog tied" with his arms behind his back and his feet tied with his knees bent. (Tr. 824-26, 829.) Santiago covered his face with his handkerchief because he was "all nervous." (Tr. 826-27, 875, 916-17.)
When Crespo and Morales "turned their attention to what they were doing," Santiago left the hair salon "real fast." (Tr. 832, 873-74.) Santiago saw his brother David outside around the corner from the hair salon. (Tr. 832, 874-75.) Santiago began to talk with David, and a few minutes later Morales came up to them to see what they were talking about. (Tr. 833.) Santiago went back to his apartment. (Tr. 834-35.) The only person that Santiago told about what he had seen was his brother. (Tr. 834.) Santiago did not call the police. (Tr. 834.) Later that night, through his peephole, Santiago saw Morales go into his basement and grab some plastic bags. (Tr. 835, 919-20.) Santiago never saw the person who was on the floor of the hair salon again, and does not know what happened to his body. (Tr. 836.)
The day after the incident, Santiago saw Crespo and Morales across the street from the hair salon watching the storefront. (Tr. 836-37.) Santiago did not speak to them at that time. (Tr. 837.)
A couple of weeks later, Santiago went to the 40th Precinct on an unrelated matter regarding the death of his brother, David. (Tr. 837, 843, 878-79, 920-22.) When Santiago got to the precinct, Morales was there. (Tr. 838, 844, 879.) When Santiago spoke with Morales, Morales pointed in the direction of the burned Toyota 4-Runner parked outside the precinct, and said "that is the car we burnt him in." (Tr. 844, 880-83.) Santiago identified photographs of the burned vehicle taken at the crime scene as the same vehicle that was parked outside the precinct that day. (Tr. 845.) Santiago reviewed photographs of Slatest's body and confirmed that they accurately represented the manner in which he was tied up and taped up. (Tr. 846.)
Santiago testified that his brother David was murdered, and he believed that his nephew Morales was instrumental in David's murder. (Tr. 888-89, 922.)
After this incident, Santiago left the Bronx and moved to another state. (Tr. 846-47, 924.) On March 19, 1997, after he had moved and believed he was safe, Santiago contacted the police and told them about the incident at the hair salon. (Tr. 848-51, 893, 896-901, 920-22.) When Santiago told the police about the incident, he referred to Morales as "Tony" and to Crespo as "White Cloud." (Tr. 849.) Santiago testified that the police did not promise him anything in return for testifying at trial. (Tr. 848-50.)
The Defense Case
The defense rested without calling any witnesses. (Tr. 938.)
The Jury Charge Conference
During the jury charge conference, Morales' counsel requested that Justice Straus "charge [that] the witnesses Danny Feliciano and Juan Santiago are accomplices or could be viewed from the weight of the evidence to be accomplices." (Tr. 953-54.) Justice Straus asked Morales' counsel if he wanted the court to "charge that they're accomplices as a matter of law so that their testimony has to be corroborated" (Tr. 954), and Morales' counsel said yes, explaining:
[W]ith reference to Mr. Feliciano we note that amongst other things he enters the subject store having heard from White Cloud [Crespo] and believing White Cloud that he quotes, wanted to yap Mr. Slatest, which means rob him.
He went in knowing he could be in on the possible robbery of Mr. Slatest. He then participates, at a minimum as he stated, by taking the man's stolen wallet and rifling through it and actually counting out the money.
With reference to Mr. Santiago, he you know, hedges a bit more. He removes himself from this. However, we do have his, meaning Mr. Santiago, acknowledging he covers his face with a handkerchief, but then hedges it's a habit to hold the handkerchief in front of him.
However, Mr. Feliciano states Mr. Santiago covers his face with a white cloth or handkerchief. In addition, Mr. Feliciano tells us that at some point White Cloud leaves the store, comes back with the super and with duct tape. There was a series of questions, the clear implication being that the super provides the subject duct tape.
(Tr. 954-55.) Justice Straus rejected that request, stating:
Okay. The evidence does not indicate to me that either of those witnesses is an accomplice as a matter of law. Certainly, there is nothing in Santiago's testimony to lead to that conclusion.
With regard to Feliciano he did testify along the lines that you state, but I don't find sufficient evidence to rule that he is an accomplice sharing the same intent with regard to any of the crimes charged and in anyway aiding either of the defendants to commit the crimes charged.
So, I decline to charge that either is an accomplice as a matter of law.
(Tr. 955-56.)
Crespo's counsel requested that Justice Straus "consider charging accomplice testimony just as an issue of fact for the jury to determine based upon those facts because they could have well come to the conclusion on their own, even if the Court doesn't do it as a matter of law, that in fact they were accomplices, and there is ample evidence in this record for them to come to that conclusion." (Tr. 956.) The prosecutor responded:
I would submit here that the mere presence doesn't indicate anyone as an accomplice. There is testimony here clearly indicating no communication or relationship or connection between either of the two individuals who the defense is now submitting to the Court should be viewed as accomplices.
Each corroborates the others noninvolvement in each other's presence there. According to Mr. Feliciano — the mere fact that according to Mr. Feliciano Mr. Crespo passed him the deceased's wallet or handed him the deceased's wallet and Mr. Feliciano opened it up and looked in it, can't overcome the fact that according to Mr. Feliciano, uncontradicted, he did nothing with it, didn't take any money from it.
There was not one scintilla of evidence through any witness which would in anyway suggest or allow this jury under the facts to conclude that either Mr. Santiago or Mr. Feliciano was merely there, and their testimony is clear in that regard.
I would submit to the Court that there is no basis under the law for this jury being given that instruction to consider the fact, considering the testimony of each of those witnesses as it relates to the other.
(Tr. 956-57.) Justice Straus reserved decision until the next day. (Tr. 958.) The next day, Justice Straus denied the defense request, stating:
[T]here's an application by each defense counsel to submit to the jury as an issue of fact the question of whether Danny Feliciano and Juan Antonio Santiago were accomplices in this case for the purpose of the rule requiring corroboration of an accomplice testimony.
I reviewed the case law on the subject yesterday and the case law is — indicates that where there is evidence in the case from which it can be reasonably inferred that a witness participated in the offense or offenses charged, or an offense based upon the same or some of the same facts or conduct which constitutes the offense charged, then the jury can consider that as an issue of fact, make a determination, and if their determination is that the witness has that status, then the corroboration rule would have to be followed.
The cases are interesting in their fact patterns because they deal with reasonable inferences from testimony at the trial as opposed to some other speculation in the question of accomplice liability unsupported by evidence at trial.
From the cases I read, the evidence is insufficient in this case to create a jury issue as to whether either Mr. Feliciano and/or Mr. Santiago are or were accomplices in the commission of the crime or crimes charged.
. . . .
In the record in this case, I find the evidence insufficient to conclude that either Mr. Feliciano or Mr. Santiago involved themselves in such a way as to raise an inference of accomplice liability.
For example, there is no proof that they participated in any way in planning the crimes charged nor is there evidence they were aware of what was going to happen. There's no evidence that they in any particular way assisted the charged perpetrators or shared in the fruits of any charged crime.
Mere presence without more does not constitute a reasonable basis for a jury to conclude that a witness is an accomplice within the meaning of CPL 60.22 Sub. Div. 2.
. . . .
In the case on trial, I know there is testimony concerning Feliciano's presence and contact with and observation of the wallet of Leonard Slatest. But I find that contact to be insufficient to establish participation in the crime, or even dominion and control in that it was transitory contact. And there is no other testimony about that. Nothing was taken and the wallet was returned to a defendant.
I also find no connection, based on the evidence in the case, between Feliciano and Santiago.
So based on all of the facts and circumstances of the trial testimony, I find insufficient evidence to support an inference by the jury that either of the two witnesses, Feliciano or Santiago, had participated in the offense charged or any offense based upon the same or some of the same facts or conduct which constitute the offense charged such as would warrant submitting to the jury the question of the witness' complicity.
You have an exception to the ruling.
(Tr. 978-82.) Justice Straus did not charge the jury on accomplice liability. (Tr. 1146-1224.)
Verdict and Sentence
The jury convicted both Crespo and Morales of depraved indifference murder and acquitted them of all other charges. (Tr. 1306-13; see also Tr. 1189-94, 1216-18, 1221.)
On May 3, 2001, Justice Straus sentenced Morales and Crespo each to the maximum sentence, twenty-five years to life imprisonment. (Sentencing Tr. ["S."] 27.) Morales' Direct Appeal
Represented by the Center for Appellate Litigation, Morales' appeal to the First Department claimed that: (1) Morales' conviction for depraved indifference murder was against the weight of the credible evidence (Dkt. No. 4: A.D.A. Coddington Aff. Ex. 1: Morales 1st Dep't Br. at 27-35); (2) Justice Straus erred in refusing to instruct the jurors that the cooperating witness (Feliciano) and the other eyewitness (Santiago) could be considered accomplices as a matter of fact (Morales 1st Dep't Br. at 36-49); (3) Justice Straus' credibility charge impermissibly lowered the burden of proof (Morales 1st Dep't Br. at 50-54); and (4) Morales was improperly excluded from a sidebar conference based on the court's ruling that Morales waived his Antommarchi rights (Morales 1st Dep't Br. at 54-59).
On appeal, Morales' claim was based on the argument that Feliciano and Santiago were not credible witnesses. (Morales 1st Dep't Br. at 27-35.) The claim did not raise any issue as to intentional versus depraved indifference murder.
On September 23, 2003, the First Department affirmed Morales' (and Crespo's) conviction, holding:
The verdict was not against the weight of the evidence. Issues of credibility were properly considered by the jury and there is no basis for disturbing its determinations.
The court should have submitted to the jury the factual issue of the possible accomplice status of a witness who, inter alia, went through the victim's wallet. However, the court properly declined to deliver such a charge as to a second witness who could not have been reasonably viewed to be an accomplice. Since the first witness's testimony was extensively corroborated by that of the second witness, as well as the scientific evidence, we conclude that the error in failing to deliver an accomplice charge as to the first witness was harmless.
The record establishes that defendant Morales waived his right to be present at all sidebar conferences with prospective jurors, and fails to support his claim that his waiver was limited in any manner.
. . .
Defendants' remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.People v. Morales, 308 A.D.2d 383, 383-84, 764 N.Y.S.2d 411, 412-13 (1st Dep't 2003) (citations omitted).
On January 28, 2004, the New York Court of Appeals denied leave to appeal. People v. Morales, 1 N.Y.3d 599, 776 N.Y.S.2d 230 (2004).
On July 2, 2004, Morales submitted a pro se letter requesting that the Court of Appeals reconsider its decision. (Coddington Aff. Ex. 8: 7/2/04 Morales Ltr.) On September 16, 2004, the Court of Appeals denied Morales' reconsideration motion. People v.Morales, 3 N.Y.3d 709, 785 N.Y.S.2d 37 (2004). Morales' Federal Habeas Corpus Petition
On November 27, 2006, Judge Hellerstein denied Crespo's federal habeas petition. See Crespo v. Fischer, 06 Civ. 2577, 2006 WL 3486805 (S.D.N.Y. Nov. 27, 2006).
Morales' pro se federal habeas corpus petition asserts that: (1) he was denied his right to be present during a material stage of his trial when the trial judge ruled that Morales waived hisAntommarchi rights and excluded him from a sidebar conference during jury selection (Dkt. No. 1: Pet. at 15-22); (2) his conviction of depraved indifference murder was against the weight of the credible evidence (Pet. at 23-25); and (3) he was deprived of due process when the trial judge refused to charge the jury that two prosecution witnesses were accomplices as a matter of fact (Pet. at 26-30).
ANALYSIS
I. THE AEDPA REVIEW STANDARD
For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see, e.g., Murray v. Greene, 06 Civ. 3677, 2006 WL 3751294 at *7-10 (S.D.N.Y. Dec. 21, 2006) (Peck, M.J.); Brown v. Brown, 05 Civ. 10434, 2006 WL 3405480 at *8-11 (S.D.N.Y. Nov. 27, 2006) (Peck, M.J.); Simms v.Moscicki, 06 Civ. 2056, 2006 WL 2466811 at *5-8 (S.D.N.Y. Aug. 25, 2006) (Peck, M.J.); McLean v. Conway, 06 Civ. 0807, 2006 WL 2405067 at *13-16 (S.D.N.Y. Aug. 21, 2006) (Peck, M.J.); Llanos v. Goord, 06 Civ. 0261, 2006 WL 1981749 at *11-14 (S.D.N.Y. July 14, 2006) (Peck, M.J.); A.S. Goldmen, Inc. v. Phillips, 05 Civ. 4385 05 Civ. 5496, 2006 WL 1881146 at *28-31 (S.D.N.Y. July 6, 2006) (Peck, M.J.); Rosario v. Walsh, 05 Civ. 2684, 2006 WL 1431410 at *12-15 (S.D.N.Y. May 25, 2006) (Peck, M.J.), report rec. adopted, 2006 WL 1880958 (S.D.N.Y. July 5, 2006); Hardison v. Artus, 06 Civ. 0322, 2006 WL 1330064 at *6-8 (S.D.N.Y. May 16, 2006) (Peck, M.J.), report rec. adopted, 2006 WL 1763678 (S.D.N.Y. June 23, 2006); Harris v. Woods, 05 Civ. 5582, 2006 WL 1140888 at *13-16 (S.D.N.Y. May 1, 2006) (Peck, M.J.), report rec. adopted, 2006 WL 1975990 (S.D.N.Y. July 10, 2006); Nelson v.Sears, 05 Civ. 10341, 2006 WL 775123 at *5-8 (S.D.N.Y. Mar. 28, 2006) (Peck, M.J.); Hopkins v. Burge, 05 Civ. 8230, 2006 WL 519782 at *7-10 (S.D.N.Y. Mar. 3, 2006) (Peck, M.J.); Bryant v.Fischer, 05 Civ. 0437, 2005 WL 3418282 at *10-14 (S.D.N.Y. Dec. 14, 2005) (Peck, M.J.); Olivo v. Thorton, 05 Civ. 3237, 2005 WL 3292542 at *5-8 (S.D.N.Y. Dec. 6, 2005) (Peck, M.J.) (citing my earlier decisions), report rec. adopted, 2006 WL 1636742 (S.D.N.Y. June 12, 2006) 2006 WL 2689889 (S.D.N.Y. Sept. 19, 2006); Boyd v. Smith, 03 Civ. 5401, 2004 WL 2915243 at *5-7 (S.D.N.Y. Dec. 17, 2004) (Peck, M.J.) (citing my earlier decisions); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *12-14 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing my earlier decisions); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002), aff'd, 368 F.3d 179 (2d Cir. 2004); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000), aff'd, 303 F.3d 411, 417 (2d Cir. 2002), cert. denied, 537 U.S. 1245, 123 S. Ct. 1353 (2003); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, 41 Fed. Appx. 497 (2d Cir. 2002), cert. denied, 538 U.S. 978, 123 S. Ct. 1787 (2003).
Before the Court can determine whether petitioner is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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) . . . 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)(1)-(2).
See also, e.g., Henry v. Poole, 409 F.3d 48, 67 (2d Cir. 2005), cert. denied, 126 S. Ct. 1622 (2006); Howard v. Walker, 406 F.3d 114, 121-22 (2d Cir. 2005); Cox v. Donnelly, 387 F.3d 193, 197 (2d Cir. 2004); Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 541 U.S. 961, 124 S. Ct. 1713 (2004); Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S. Ct. 1611 (2002)).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S. Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 341 F.3d at 110; accord,e.g., DelValle v. Armstrong, 306 F.3d at 1200.
Accord, e.g., Henry v. Poole, 409 F.3d at 68; Howard v.Walker, 406 F.3d at 122; Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.), cert. denied, 540 U.S. 1091, 124 S. Ct. 962 (2003); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S. Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S. Ct. 865 (2001).
Accord, e.g., Carey v. Musladin, 127 S. Ct. 649, 654 (2006) ("Given the lack of holdings from the Court regarding this [issue], it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"); Yarborough v.Alvarado, 541 U.S. 652, 659, 124 S. Ct. 2140, 2147 (2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Wiggins v. Smith, 539 U.S. 510, 519, 123 S. Ct. 2527, 2534 (2003); Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Howard v. Walker, 406 F.3d at 122; Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 541 U.S. 1047, 124 S. Ct. 2171 (2004); Parsad v. Greiner, 337 F.3d at 181; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 341 F.3d 104, 109-110 (2d Cir. 2003);Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S. Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. at 1519-20.
Accord, e.g., Brown v. Payton, 544 U.S. 133, 125 S. Ct. 1432, 1438-39 (2005); Bell v. Cone, 543 U.S. 447, 452-53, 125 S. Ct. 847, 851 (2005); Price v. Vincent, 538 U.S. 634, 640, 123 S. Ct. 1848, 1853 (2003); Lockyer v. Andrade, 123 S. Ct. at 1173-74;Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006); Henry v.Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Rosa v.McCray, 396 F.3d 210, 219 (2d Cir.), cert. denied, 126 S. Ct. 215 (2005); Tueros v. Greiner, 343 F.3d at 591; DelValle v.Armstrong, 306 F.3d at 1200; Yung v. Walker, 341 F.3d at 109;Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.
In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521. "Objectively unreasonable" is different from "clear error." Lockyer v.Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . 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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 541 U.S. at 663, 124 S. Ct. at 2149.
Accord, e.g., Brown v. Payton, 544 U.S. at 141, 125 S. Ct. at 1439; Wiggins v. Smith, 539 U.S. at 520, 123 S. Ct. at 2534-35;Lynn v. Bliden, 443 F.3d 238, 246 (2d Cir. 2006); Howard v.Walker, 406 F.3d at 122; Parsad v. Greiner, 337 F.3d at 181.
See also, e.g., Yarborough v. Alvarado 541 U.S. at 664, 124 S. Ct. at 2150; Wiggins v. Smith, 539 U.S. at 520, 123 S. Ct. at 2535; Price v. Vincent, 538 U.S. at 641, 123 S. Ct. at 1853 ("As we have explained: '[A] federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quotingWoodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 360 (2002)); Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175;Hawkins v. Costello, 460 F.3d at 243; Lynn v. Bliden, 443 F.3d at 246; Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 219; Cox v. Donnelly, 387 F.3d at 197; Eze v. Senkowski, 321 F.3d at 124-25; DelValle v.Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").
Accord, e.g., Yarborough v. Alvarado, 541 U.S. at 664, 124 S. Ct. at 2150; Wiggins v. Smith, 539 U.S. at 520-21, 123 S. Ct. at 2535; Price v. Vincent, 538 U.S. at 641, 123 S. Ct. at 1853;Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1174-75;Woodford v. Visciotti, 537 U.S. at 25-27, 123 S. Ct. at 360-61;Mosby v. Senkowsky, No. 05-1122, ___ F.3d ___, 2006 WL 3439478 at *3 (2d Cir. Nov. 30, 2006); Hawkins v. Costello, 460 F.3d at 243;Lynn v. Bliden, 443 F.3d at 246; Henry v. Poole, 409 F.3d at 68;Howard v. Walker, 406 F.3d at 122; Cox v. Donnelly, 387 F.3d at 197; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Loliscio v. Goord, 263 F.3d at 184;Lurie v. Wittner, 228 F.3d at 128-29.
Accord, e.g., Lynn v. Bliden, 443 F.3d at 246; Henry v. Poole, 409 F.3d at 68; Howard v. Walker, 406 F.3d at 122; Rosa v.McCray, 396 F.3d at 219; Cox v. Donnelly, 387 F.3d at 197, 200-01; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 341 F.3d at 110; Loliscio v. Goord, 263 F.3d at 184.
The Supreme Court explained:
[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.Yarborough v. Alvarado, 541 U.S. at 663, 124 S. Ct. at 2149;accord, e.g., Hawkins v. Costello, 460 F.3d at 243.
Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.
Accord, e.g., Tueros v. Greiner, 343 F.3d at 591; Yung v.Walker, 341 F.3d at 109; see Yarborough v. Alvarado, 541 U.S. at 665-66, 124 S. Ct. at 2150-51 ("The petitioner contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.") (citations omitted).
Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v.Walker, 341 F.3d at 109; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853; Mosby v. Senkowski, 2006 WL 3439478 at *2.
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853 ("Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation.");Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Mosby v. Senkowski, 2006 WL 3439478 at *2;Hawkins v. Costello, 460 F.3d at 243; Lynn v. Bliden, 443 F.3d at 246; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 220; Wade v. Herbert, 391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was "'without merit.'" "Such a summary determination, even absent citation of federal case law, is a 'determination on the merits' and as such requires the deference specified by § 2254." Moreover, "[I]f any reasonable ground was available [for the state court's decision], we must assume that the [state] court relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 543 U.S. 872, 125 S. Ct. 110 (2004);Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference.").
Where the state court decision is not clear as to whether it rests on federal law or state procedural law, the Second Circuit in Jiminez v. Walker, 458 F.3d 130, 145-46 (2d Cir. 2006), instructed that the court must "examine the three clues laid out in Coleman, Quirama and Sellan" — that is, "(1) the face of the state-court opinion, (2) whether the state court was aware of a procedural bar, and (3) the practice of state courts in similar circumstances." Jiminez v. Walker, 458 F.3d at 145 n. 16. Using these three factors, the court should
classify the decision as either:
(1) fairly appearing to rest primarily on federal law or to be interwoven with federal law or
(2) fairly appearing to rest primarily on state procedural law.
Absent a clear and express statement of reliance on a state procedural bar, the Harris presumption applies to decisions in the first category and deems them to rest on the merits of the federal claim. Such decisions are not procedurally barred and must be afforded AEDPA deference as adjudications "on the merits" under 28 U.S.C. § 2254(d). The Harris presumption does not apply to decisions in the second category, which show themselves to rest on an independent state procedural bar. Nor does it apply to decisions in the first category which contain a clear statement of reliance on a state procedural bar. No AEDPA deference is due to these decisions, but the state may successfully assert that habeas relief is foreclosed provided that the independent state procedural bar is adequate to support the judgment and that neither cause and prejudice nor a fundamental miscarriage of justice is shown.
The effect of these rules is to present federal habeas courts with a binary circumstance: we either apply AEDPA deference to review a state court's disposition of a federal claim or refuse to review the claim because of a procedural bar properly raised. The middle ground . . . does not exist.Jiminez v. Walker, 458 F.3d at 145-46 (citations fns. omitted);accord, e.g., Hawkins v. Costello, 460 F.3d at 242 ("In Jiminez v. Walker, we recently made clear that when a state court rejects a petitioner's claim as either unpreserved or without merit, the conclusive presumption is that the adjudication rested on the merits."). Of course, "[i]f there is no [state court] adjudication on the merits [and no procedural bar], then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003); see also Jiminez v. Walker, 458 F.3d at 145 n. 17.
Finally, "[i]f [the] court finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless." Howard v. Walker, 406 F.3d at 122.
In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); accord, e.g., Lynn v. Bliden, 443 F.3d at 246-47;Rosa v. McCray, 396 F.3d at 220. "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)); accord, e.g., Lynn v. Bliden, 443 F.3d at 246-47. II. MORALES' CLAIM THAT HE WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE COURT QUESTIONED PROSPECTIVE JURORS DURING VOIR DIRE AT SIDEBAR IN HIS ABSENCE SHOULD BE DENIED BECAUSE THERE IS NO FEDERAL CONSTITUTIONAL RIGHT TO BE PRESENT AT SIDEBAR DURING VOIR DIRE
Morales alleges that voir dire sidebar discussions were conducted in his absence, violating his constitutional right to be present at all material stages of trial. (Dkt. No. 1: Pet. at 15-22.)
A. The Applicable Federal Legal Standard
For additional decisions by this Judge discussing the federal legal standard as to presence at voir dire sidebars in language substantially similar to that in this entire section of this Report and Recommendation, see, e.g., Ellis v. Phillips, 04 Civ. 7988, 2005 WL 1637826 at 12-14 (S.D.N.Y. July 13, 2005) (Peck, M.J.); Curry v. Burge, 03 Civ. 0901, 2004 WL 2601681 at *11 (S.D.N.Y. Nov. 17, 2004) (Peck, M.J.); Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *17 (S.D.N.Y. July 29, 2004) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *3 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.);Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.).
A defendant in a state criminal trial "has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v.California, 422 U.S. 806, 819 n. 15, 95 S. Ct. 2525, 2533 n. 15 (1975). Further, "[i]t is well-established that the impaneling of the jury is one such stage." Tankleff v. Senkowski, 135 F. 3d 235, 246 (2d Cir. 1998); accord, e.g., Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002), cert. denied, 537 U.S. 1117, 123 S. Ct. 879 (2003); Sanchez v. Duncan, 282 F.3d 78, 81 (2d Cir.),cert. denied, 537 U.S. 843, 123 S. Ct. 175 (2002).
Accord, e.g., Paccione v. New York, 353 F. Supp. 2d 358, 367 (E.D.N.Y. 2005); Mack v. Cotello, No. 02-CV-4496, 2004 WL 2757912 at *5 (E.D.N.Y. Dec. 3, 2004); Pounce v. McLaughlin, No. 04-CV-668, 2004 WL 2360037 at *7 (E.D.N.Y. Oct. 20, 2004);Hamilton v. Herbert, No. 01-CV-1703, 2004 WL 86413 at *20-21 (E.D.N.Y. Jan. 16, 2004).
See also, e.g., Moe v. Walker, 97 Civ. 4701, 1998 WL 872417 at *3 (S.D.N.Y. Dec. 15, 1998).
Under New York law, a defendant is entitled to be present at sidebar discussions when the merits of the case are discussed or where "prospective jurors' backgrounds and their ability to weigh the evidence objectively" are discussed. People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 35 (1992).
See also, e.g., McKnight v. Superintendent Albauch, 97 Civ. 7415, 2000 WL 1072351 at *6 (S.D.N.Y. Aug. 2, 2000); Gaiter v.Lord, 917 F. Supp. 145, 151-52 (E.D.N.Y. 1996).
However, "'[f]ederal standards regarding a defendant's presence at a sidebar are less stringent than New York's standards.'"McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Nichols v. Kelly, 923 F. Supp. 420, 425 (W.D.N.Y. 1996)). "Indeed, the Federal Constitution generally 'does not require a defendant's presence at sidebar conferences.'" McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Gaiter v. Lord, 917 F. Supp. at 152); accord, e.g., Cameron v. Greiner, 119 Fed. Appx. 340, 342-43 (2d Cir. 2005); United States v.Feliciano, 223 F.3d 102, 111 (2d Cir. 2000) (noting that the Court has found no case "in which an appellate court has found a structural defect where a defendant was present throughout but unable to hear a circumscribed portion of voir dire, and whose counsel was allowed to consult with him about the limited questioning outside his hearing."), cert. denied, 532 U.S. 943, 121 S. Ct. 1405, 1406 (2001); Sanchez v. Burge, 04 Civ. 2622, 2005 WL 659195 at *3 (S.D.N.Y. Mar. 22, 2005) ("Here, petitioner fails to cite to any federal statute or Supreme Court precedent holding that a petitioner has a right to be present at sidebar conferences during voir dire. Antommarchi is a state law rule and does not entitle petitioner to federal habeas corpus relief."); Perez v. Greiner, 00 Civ. 5504, 2005 WL 613183 at *5-6 (S.D.N.Y. Mar. 14, 2005) ("Although the pre-screening and impaneling of jurors is a material stage of trial at which a defendant has a constitutional right to be present, there is no clear Supreme Court precedent supporting a claim that absence from a sidebar conference during voir dire violates the Sixth Amendment. Therefore, the Appellate Division's adjudication of this claim is not contrary to, or an unreasonable application of, that law.") (citations omitted); Diaz v. Herbert, 317 F. Supp. 2d 462, 473 (S.D.N.Y. 2004) ("[E]ven if [petitioner's] rights under Antommarchi were violated, it does not rise to the level of a federal constitutional violation. Therefore, any alleged violation of these rights is not cognizable on habeas review."); Persaud v. Mantello, No. 99 CV 1861, 2002 WL 1447484 at *2 (E.D.N.Y. July 2, 2002) ("district courts in this circuit have held that there is no right to be present at a sidebar conference during voir dire") (citing cases); Johnson v. McGinnis, 99 Civ. 11231, 2001 WL 740727 at *3 (S.D.N.Y. June 29, 2001) ("The right to be present at sidebar during voir dire derives from New York state statutory law. Since a federal court on habeas review is limited to considering only violations of the federal Constitution or federal statutory law, I am procedurally barred from considering this claim.") (citations omitted); Benitez v. Senkowski, 1998 WL 668079 at *8 ("However, there is no Constitutional right to appear at sidebar conferencing for peremptory challenges; at most, there is a more limited right to presence during the formal exercise, in open court, of peremptory jury challenges.") (citing cases), cited with approval, Cohen v. Senkowski, 290 F.3d at 490; James v.Senkowski, 97 Civ. 3327, 1998 WL 217903 at *8 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.) ("'there is not now and never has been a right guaranteed in the federal Constitution that a defendant be present at sidebar voir dire.'").
See also, e.g., Brown v. Edwards, 96 Civ. 3444, 1998 WL 1286349 at *5 (S.D.N.Y. Jan. 20, 1998) ("there is no right guaranteed in the federal Constitution that a defendant be present at sidebar voir dire"); Nichols v. Kelly, 923 F. Supp. at 426; People v. Sprowal, 84 N.Y. 2d 113, 119, 615 N.Y.S.2d 328, 332 (1994) ("the doctrinal underpinning of the right to be present at voir dire sidebars [is] one of State, not Federal, law"); cf. Sanchez v. Duncan, 282 F.3d at 81-83 n. 4 (holding that "any alleged error at trial related to [petitioner's] absence from voir dire bench conferences was harmless" and thus "[i]n view of our holding, there is no need for us to decide whether [petitioner] in fact had a 'clearly established' federal constitutional right to be present at the voir dire sidebars in this case.").
In any event, even if a federal right to be present at sidebar during jury selection existed, it is subject to waiver, so long as the waiver is knowing and voluntary. E.g., Cohen v. Senkowski, 290 F.3d at 491; Polizzi v. United States, 926 F.2d 1311, 1319 (2d Cir. 1991). The waiver may be made by the defendant or by defense counsel. See, e.g., Polizzi v. United States, 926 F.2d at 1322; Giles v. Kuhlmann, 2002 WL 1751401 at *5; Persaud v.Mantello, 2002 WL 1447484 at *2; Moe v. Walker, 1998 WL 872417 at *3. Waiver also may be found through the defendant's conduct, such as his failure to object to the sidebar procedure. E.g.,Cohen v. Senkowski, 290 F.3d at 491, 492 ("when a defendant is fully apprised of the nature of the [sidebar] procedure, makes no objection to the procedure, and has counsel present for the duration of the [sidebar procedure], a knowing waiver of the right to be present occurs.") (citing cases); United States v. Torres, No. 98-1075, 98-1115, 98-1372, 199 F.3d 1324 (table), 1999 WL 1022488 at *2 (2d Cir. Oct. 25, 1999), cert. denied, 531 U.S. 1170, 121 S. Ct. 1137 (2001); Perez v. Greiner, 2005 WL 613183 at *5-6 ("[E]ven if counsel for the defendant did not waive the defendant's right to be present, if the defendant was present in the courtroom during sidebar conferences and knew that the conferences were taking place, his failure to assert his right to be present at the time amounts to a waiver."). B. Application of the Standard to Morales' Claim
See, e.g., Giles v. Kuhlmann, No. 98-CV-7368, 2002 WL 1751401 at *4 (E.D.N.Y. July 11, 2002) (if the right to be present at a jury sidebar exists, it is subject to waiver); Persaud v.Mantello, 2002 WL 1447484 at *2; Johnson v. McGinnis, 2001 WL 740727 at *3.
See also, e.g., Pellington v. Greiner, 307 F. Supp. 2d. 601, 605 (S.D.N.Y. 2004) ("a waiver [to be present at any stage of the criminal proceeding] may be implied by a defendant's conduct."),aff'd, 132 Fed. Appx. 868 (2d Cir. 2005); Pounce v. McLaughlin, 2004 WL 2360037 at *7 ("Moreover, the right to be present is 'clearly waivable under both the Federal and [New York] State Constitutions.' There is no rule requiring 'a defendant's personal statement in court to bring about a constitutionally valid waiver of his right to [be] present.' 'The waiver must be knowing and voluntary, but it can be implied from the defendant's conduct.'") (citations omitted); Rodriguez v. Herbert, No. 02-CV-895, 2004 WL 1125431 at *6 (E.D.N.Y. May 20, 2004) ("Although trial courts must vigorously safeguard a criminal defendant's right to be present, a defendant may expressly or effectively waive the right. . . . Tellingly, [petitioner] did not object when the sidebar conference occurred outside his presence. Therefore, as it is reasonable to conclude that Rodriguez understood what was going on and that he had a right under New York law to be present at sidebar, the likely explanation for his absence is that he and his lawyer did not think it was important for him to be present at the sidebar conference.") (citations quotation marks omitted); Giles v.Kuhlmann, 2002 WL 1751401 at *5 (petitioner's conduct can supply the evidence that a waiver was knowing and voluntary); Moe v.Walker, 1998 WL 872417 at *3 ("The right may impliedly be waived when the defendant fails to invoke the right to be present at a [voir dire sidebar] conference that he knows is taking place.").
Justice Straus informed Morales of his state Antommarchi right to be present at voir dire sidebars. (V. 60-61.) While Morales' counsel initially told Justice Straus that Morales wanted to be present during all sidebars (V. 60-61), later during voir dire Morales' counsel stated that "Mr. Morales will not approach with me. I think I will then summarize what the discussion is" (V. 346). Morales remained in the courtroom during the entire voir dire process, and expressed no desire to attend any particular sidebar conference after that.
Later during the voir dire questioning, Morales came up during a sidebar conference with one venireperson. (V. 930-31.) After that sidebar conference, Justice Straus stated that Morales had waived his right to be present at voir dire sidebar conferences, and told Morales that he could not come up again. (V. 933.)
While Justice Straus stated that Morales had waived hisAntommarchi right "before we started the trial" (V. 933), in fact Morales originally asserted his Antommarchi right to be present (V. 60-61), but later in voir dire waived the right to be present (V. 346-47). Justice Straus' factual error has no effect on resolution of the issue.
As noted above, the federal constitution does not require a defendant's presence at voir dire sidebar conferences. (See cases cited in Point II.A above.) Thus, Morales' Antommarchi claim is not cognizable on federal habeas review.
Moreover, even if the claim were cognizable, under both federal and state law, the right to be present at voir dire sidebar is subject to waiver. (See cases cited on pages 39-40 above.) Here, Morales originally asserted his right to be present at sidebar, but then waived it. (See pages 2-4, 41 above.) While Morales now claims that he only waived it for that particular sidebar (Pet. at 16), in fact he did not come up to the bench for several sidebar conferences thereafter in which co-defendant Crespo participated. (See page 3 above.) Justice Straus' factual determination based on that record that Morales had waived hisAntommarchi rights for all purposes is entitled to deference under the AEDPA. (See cases cited at page 35 above.) Under New York law, once a defendant has waived Antommarchi rights, the trial judge does not abuse discretion by refusing to allow the defendant to rescind the waiver. People v. Williams, 92 N.Y. 2d 993, 995-96, 684 N.Y.S.2d 163, 165 (1998); see also, e.g., People v. Evans, 25 A.D.3d 328, 328, 806 N.Y.S.2d 210, 210 (1st Dep't) (defendant does not have right to rescind Antommarchi waiver),appeal denied, 6 N.Y.3d 833, 814 N.Y.S.2d 81 (2006). Thus, as a matter of both state and federal law, neither the trial judge nor the First Department erred.
Even if Justice Straus were factually incorrect as Morales claims (see Pet. at 16), that does not constitute a constitutional issue cognizable on habeas review.
Finally, even if Justice Straus erred — which he did not — any error would be harmless. Harmless error analysis can apply here. Sanchez v. Duncan, 282 F.3d 78, 81-82 (2d Cir.) (using harmless error analysis to evaluate petitioner's habeas claim that the state trial court coerced him into waiving his right to be present at sidebar voir dire conferences), cert. denied, 537 U.S. 843, 123 S. Ct. 175 (2002); United States v. Feliciano, 223 F.3d 102, 112 (2d Cir. 2000) (using harmless error analysis to evaluate defendant's claims relating to his right to be present during sidebar voir dire conferences), cert. denied, 532 U.S. 943, 121 S. Ct. 1405 (2001); Clark v. Poole, 440 F. Supp. 2d 235, 248 (W.D.N.Y. 2006) ("In two recent cases, the Court of Appeals for the Second Circuit has held that, if the right to be present at sidebar conferences during voir dire exists, it is subject to harmless error analysis," citing Sanchez and Feliciano); Ellis v.Phillips, 04 Civ. 7988, 2005 WL 1637826 at *15 (S.D.N.Y. July 13, 2005) (Peck, M.J.); Giles v. Kuhlman, No. 98-CV-7368, 2002 WL 1751401 at *4 (E.D.N.Y. July 11, 2002). After Justice Straus stated that Morales could not come to the bench for voir dire sidebar conferences, there was only one more sidebar, in which the potential juror (Mr. Busby) stated that although he had been arrested for smoking marijuana, he had learned his lesson and could be a fair juror. (V. 970-72.) The potential juror was further questioned in open court. (V. 972-75.) Thereafter, Morales' attorney declined to exercise a peremptory challenge against potential juror Busby, although co-defendant Crespo's attorney expressed a desire to challenge Busby. Under these facts, even if there were any constitutional error in excluding Morales from the brief final voir dire sidebar — and there was no error — any such error would be harmless. See, e.g., United States v. Feliciano, 223 F.3d at 112 (finding harmless error where "[o]nly two venire members who came to the bench to discuss a potentially substantive matter (their exposure to media reports concerning Los Solidos) were selected to serve on the jury, and their selection was not opposed by any defense counsel," and where "after questioning the jurors in open court and (in a few instances) at the bench, the peremptory challenges were made, the defendants were able to discuss with counsel any matters revealed during the bench questioning").
Morales' claim that he was denied his constitutional right to be present during a voir dire sidebar is not cognizable on federal habeas review and, even if it were cognizable, is without merit. Morales' voir dire sidebar habeas claim, therefore, should be DENIED.
III. MORALES' WEIGHT OF THE EVIDENCE CLAIM IS NOT COGNIZABLE ON HABEAS REVIEW
Morales claims that his conviction for depraved indifference murder was against the weight of the credible evidence. (Dkt No. 1: Pet. at 23-25.)
The First Department held that: "The verdict was not against the weight of the evidence. Issues of credibility were properly considered by the jury and there is no basis for disturbing its determinations." People v. Morales, 308 A.D.2d 383, 383, 764 N.Y.S.2d 411, 412 (1st Dep't 2003) (citations omitted).
A. A Weight of the Evidence Claim is not Cognizable on Habeas Review
For additional decisions authored by this Judge discussing weight of the evidence claims in language substantially similar to that in this entire section of this Report and Recommendation,see, e.g., Rosario v. Walsh, 05 Civ. 2684, 2006 WL 1431410 at *18-19 (S.D.N.Y. May 25, 2006) (Peck, M.J.); Nelson v. Sears, 05 Civ. 10341, 2006 WL 775123 at *8-9 (S.D.N.Y. Mar. 28, 2006);Olivo v. Thorton, 05 Civ. 3237, 2005 WL 3292542 at *13-14 (S.D.N.Y. Dec. 6, 2005) (Peck, M.J.); Roman v. Filion, 04 Civ. 8022, 2005 WL 1383167 at *30-31 (S.D.N.Y. June 10, 2005) (Peck, M.J.); Brown v. Fischer, 03 Civ. 9818, 2004 WL 1171277 at *6 (S.D.N.Y. May 27, 2004) (Peck, M.J.); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *26-27 n. 33 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.) (citing my prior decisions).
A challenge to a verdict based on the weight of the evidence differs from one based on the sufficiency of the evidence: "[T]he 'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles." Garbez v. Greiner, 01 Civ. 9865, 2002 WL 1760960 at *8 (S.D.N.Y. July 30, 2002) (citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987)).
The New York Court of Appeals in Bleakley explained the difference as follows:
Although the two standards of intermediate appellate review — legal sufficiency and weight of evidence — are related, each requires a discrete analysis. For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.
To determine whether a verdict is supported by the weight of the evidence, however, the appellate court's dispositive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony."People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d at 763 (citations omitted).
It is well-settled that a weight of the evidence claim is not cognizable on federal habeas review. E.g., Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the 'weight' of the evidence . . ."),cert. denied, 476 U.S. 1123, 106 S. Ct. 1991 (1986); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence . . ."), aff'd, 263 U.S. 255, 44 S. Ct. 103 (1923); Guerrero v. Tracey, 425 F. Supp. 2d 434, 447 (S.D.N.Y. 2006); Feliz v. Conway, 378 F. Supp. 2d 425, 430 n. 3 (S.D.N.Y. 2005); Glisson v. Mantello, 287 F. Supp. 2d 414, 441 (S.D.N.Y. 2003); Pitter v. Fischer, 234 F. Supp. 2d 342, 349 n. 6 (S.D.N.Y. 2002); Garbez v. Greiner, 2002 WL 1760960 at *8 ("by raising a 'weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review."); Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) ("[W]e have no authority to review a weight of the evidence argument because it is a state law claim."); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (weight of evidence is not cognizable on habeas review).
See also, e.g., Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001) ("'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. Accordingly, the Court is precluded from considering the [weight of the evidence] claim.") (citations omitted); Peralta v. Bintz, 00 Civ. 8935, 2001 WL 800071 at *5 (S.D.N.Y. July 16, 2001) (Petitioner "raises only the state law issue of whether the weight of the evidence supported his conviction. Because [petitioner] raises no cognizable federal issue, his petition must be denied."); Kearse v. Artuz, 99 Civ. 2428, 2000 WL 1253205 at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief.");Rodriguez v. O'Keefe, 96 Civ. 2094, 1996 WL 428164 at *4 (S.D.N.Y. July 31, 1996) ("A claim that the verdict was against the weight of the evidence is not cognizable on habeas review."),aff'd, No. 96-2699, 122 F.3d 1057 (table) (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068 (1998); cf.,Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim; "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues").
Accordingly, Morales' weight of the evidence habeas claim should be DENIED.
B. Even If Morales' Petition Could Be Read To Raise A Sufficiency Of The Evidence Claim, Such A Claim Would Be Barred As Unexhausted But Deemed Exhausted And Procedurally Barred
Morales' habeas petition also cites to In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970), and Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). (Dkt. No. 1: Pet. at 24.) Those cases deal with claims of sufficiency of the evidence. Even if Morales' petition, liberally construed, could be read as raising a sufficiency of the evidence claim, that would not benefit Morales. Morales never raised such a claim in state court. Thus, any sufficiency of the evidence claim is unexhausted but deemed exhausted and procedurally barred. 1. The Exhaustion Doctrine: Background
For a discussion of the sufficiency of the evidence standard in habeas cases, see generally, e.g., Murray v. Greene, 06 Civ. 3677, 2006 WL 3751294 at *10-11 (S.D.N.Y. Dec. 21, 2006) (Peck, M.J.); A.S. Goldmen, Inc. v. Phillips, 05 Civ. 4385 05 Civ. 5496, 2006 WL 1881146 at *58-59 (S.D.N.Y. July 6, 2006) (Peck, M.J.); Rosario v. Walsh, 05 Civ. 2684, 2006 WL 1431410 at *19-20 (S.D.N.Y. May 25, 2006) (Peck, M.J.); Nelson v. Sears, 05 Civ. 10341, 2006 WL 775123 at *9-10 (S.D.N.Y. Mar. 28, 2006) (Peck, M.J.); Olivo v. Thorton, 05 Civ. 3237, 2005 WL 3292542 at *14 (S.D.N.Y. Dec. 6, 2005) (Peck, M.J.), report rec. adopted, 2006 WL 1636742 (S.D.N.Y. June 12, 2006); Roman v. Filion, 04 Civ. 8022, 2005 WL 1383167 at *31-33 (S.D.N.Y. June 10, 2005) (Peck, M.J.); Castro v. Fisher, 04 Civ. 0346, 2004 WL 1637920 at *23-25 (S.D.N.Y. July 23, 2004) (Peck, M.J.) (citing my prior decisions), report rec. adopted, 2004 WL 2525876 (S.D.N.Y. Nov. 8, 2004); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *10-13 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.) (citing my prior decisions), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) 2003 WL 22846044 (Dec. 2, 2003) (Kaplan, D.J.);Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *11-14 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.) (citing my prior decisions).
For a discussion of New York's evolving interpretation of its depraved indifference murder statute, see, e.g., Policano v.Herbert, 7 N.Y.3d 588, 2006 WL 3313126 at *11-13 (Nov. 16, 2006);People v. Swinton, 7 N.Y.3d 776, 820 N.Y.S.2d 537 (2006); People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691 (2006); People v.Suarez, 6 N.Y. 3d 202, 811 N.Y.S.2d 267 (2005); People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116 (2004); People v. Gonzalez, 1 N.Y.3d 464, 775 N.Y.S.2d 224 (2004); People v. Hafeez, 100 N.Y.2d 253, 762 N.Y.S.2d 572 (2003); People v. Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312 (2002); People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174 (1987); People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599 (1983), cert. denied, 466 U.S. 953, 104 S. Ct. 2159 (1984).
In state court, Morales' claim was that Feliciano and Santiago were not credible. (See page 25 n. 15 above.) Morales' appeal did not raise the issue he now raises, that the evidence may have established intentional murder but not depraved indifference murder. (Pet. at 23-25.) The Court notes that co-defendant Crespo raised this issue only as one of ineffective assistance of appellate counsel. See Crespo v. Fischer, 06 Civ. 2577, 2006 WL 3486805 at *7-8 (S.D.N.Y. Nov. 27, 2006).
For additional decisions by this Judge discussing the unexhausted but deemed exhausted and procedurally barred doctrine in language similar to that in this section of this Report Recommendation, see, e.g., Simms v. Moscicki, 06 Civ. 2056, 2006 WL 2466811 at *8-11 (S.D.N.Y. Aug. 25, 2006) (Peck, M.J.);Rosario v. Walsh, 05 Civ. 2684, 2006 WL 1431410 at *15-16 (S.D.N.Y. May 25, 2006) (Peck, M.J.), report rec. adopted, 2006 WL 1880958 (S.D.N.Y. July 5, 2006); Ellis v. Phillips, 04 Civ. 7988, 2005 WL 1637826 at *16-17 (S.D.N.Y. July 13, 2005) (Peck, M.J.); Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *9-10 (S.D.N.Y. July 29, 2004) (Peck, M.J.); Castro v. Fisher, 04 Civ. 0346, 2004 WL 1637920 at *26-27 (S.D.N.Y. July 23, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 2525876 (S.D.N.Y. Nov. 8, 2004) (Cote, D.J.); Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL 1627220 at *10-11 (S.D.N.Y. July 21, 2004) (Peck, M.J.),report rec. adopted, 2006 WL 3735684 (S.D.N.Y. Dec. 15, 2006);Hernandez v. Fillion, 03 Civ. 6989, 2004 WL 286107 at *16-17 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) (citing my prior decisions), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *15-16 (S.D.N.Y. May 15, 2002) (Peck, M.J.) (citing my prior decisions), report rec. adopted, 238 F. Supp. 2d 595 (S.D.N.Y. 2002); Jordan v. LeFevre, 22 F. Supp. 2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).
Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S. Ct. at 1203;accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S. Ct. at 1732.
See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S. Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S. Ct. 723 (1984).
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v.Boerckel, 526 U.S. at 843-48, 119 S. Ct. at 1732-34.
"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v.Attorney Gen., 696 F.2d at 191. The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue.E.g., Cox v. Miller, 296 F.3d at 99; Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988);Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Attorney Gen., 696 F.2d at 194. 2. Morales' Sufficiency Of The Evidence Claim Was Not Presented To The State Courts And Thus Is Unexhausted and Procedurally Barred
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844, 119 S. Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S. Ct. at 512; Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir.), cert. denied, 540 U.S. 1046, 124 S. Ct. 804 (2003); Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002), cert. denied, 537 U.S. 1192, 123 S. Ct. 1273 (2003); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).
Accord, e.g., Smith v. Duncan, 411 F.3d 340, 348 (2d Cir. 2005); Jackson v. Edwards, 404 F.3d 612, 618 (2d Cir. 2005); Rosa v. McCray, 396 F.3d 210, 217-18 (2d Cir.), cert. denied, 126 S. Ct. 215 (2005); St. Helen v. Senkowski, 374 F.3d 181, 182-83 (2d Cir. 2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 871 (2005);Cox v. Miller, 296 F.3d at 99; Ramirez v. Attorney Gen., 280 F.3d 87, 95 (2d Cir. 2001); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S. Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v.Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688.
Morales' sufficiency of the evidence claim could have been raised on Morales' direct appeal but it was not. As noted above, while Morales raised a weight of the evidence claim on appeal, the argument was based on the claim that Feliciano and Santiago were not credible; no argument was made as to intentional versus depraved indifference murder.
"'For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quotingHarris v. Reed, 489 U.S. 255, 263 n. 9, 109 S. Ct. 1038, 1043 n. 9 (1989))). "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., St. Helen v. Senkowski, 374 F.3d at 183; DiGuglielmo v. Smith, 366 F.3d at 135; McKethan v. Mantello, 292 F.3d at 122-23; Ramirez v. Attorney Gen., 280 F.3d at 94; Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S. Ct. 895 (1994);Grey v. Hoke, 933 F.2d at 120-21.
Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004) ("even if a federal claim has not been presented to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it has become procedurally barred under state law."); DiGuglielmo v.Smith, 366 F.3d 130, 135 (2d Cir. 2004) (petitioner's procedurally defaulted claims deemed exhausted where he could no longer obtain state-court review because of his procedural default); McKethan v. Mantello, 292 F.3d 119, 122-23 (2d Cir. 2002) (claims deemed exhausted where they were "procedurally barred for not having been raised in a timely fashion"); Ramirez v. Attorney Gen., 280 F.3d 87, 94 (2d Cir. 2001); Bossett v.Walker, 41 F.3d 825, 828 (2d Cir. 1994) ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted."), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995).
Accord, e.g., cases cited in fn. 17 above.
In this case, it is clear that Morales is now barred from raising a sufficiency of the evidence claim in state court because such a claim could have been raised on direct appeal, but was not. As the Second Circuit explained in Washington v.James:
Consequently, we do not believe [petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.
. . . .
As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York's collateral procedures are unavailable because [petitioner] could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.996 F.2d at 1446-47.
C.P.L. § 440.10(2)(c) states, in pertinent part:
2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:
. . . .
(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . . raise such ground or issue upon an appeal actually perfected by him. . . .
See also, e.g., Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.) ("a petitioner cannot claim to have exhausted his or her remedies by dint of no longer possessing 'the right under the law of the State to raise, by any available procedure, the question presented,' if at some point the petitioner had that right but failed to exercise it.") (citation omitted), cert. denied, 544 U.S. 1025, 125 S. Ct. 1996 (2005); DiGuglielmo v. Smith, 366 F.3d at 135 (Second Circuit affirmed denial of petitioner's habeas claim because "his claims were not properly exhausted and . . . his procedural default is not excusable."); Jones v. Keane, 329 F.3d 290, 296 (2d Cir.) ("[Petitioner] has procedurally defaulted his vagueness claim since New York's procedural rules now bar [petitioner] from raising it in New York courts. Further direct review by the Court of Appeals is no longer available. . . ."),cert. denied, 540 U.S. 1046, 124 S. Ct. 804 (2003); Reyes v.Keane, 118 F.3d at 139 ("Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added).
To avoid a procedural default on his unexhausted claim, Morales would have to "show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claims 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., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S. Ct. 851, 865-67 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 2557 (1991).
See also, e.g., Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006); Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005); Smith v. Duncan, 411 F.3d 340, 347 (2d Cir. 2005); DeBerry v.Portuondo, 403 F.3d 57, 64 (2d Cir.), cert. denied, 126 S. Ct. 225 (2005); St. Helen v. Senkowski, 374 F.3d at 183-84;DiGuglielmo v. Smith, 366 F.3d at 135; 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).
Morales has not alleged cause and prejudice nor has he made a showing of actual innocence. Thus, if his habeas petition were read to assert not only a weight but also a sufficiency of the evidence claim, any such claim is barred. IV. MORALES' ACCOMPLICE JURY CHARGE CLAIM SHOULD BE DENIED
Morales claims that he was deprived of due process when the trial court refused to charge the jury that two prosecution witnesses were accomplices as a matter of fact. (Dkt. No. 1: Pet. at 26-30.)
A. Standard of Review of a State Court's Jury Instructions
For additional decisions by this Judge discussing the standard of review of a state court's jury instructions in language substantially similar to that in this entire section of this Report and Recommendation, see, e.g., Otero v. Eisenschmidt, 01 Civ. 2562, 2004 WL 2504382 at *25 (S.D.N.Y. Nov. 8, 2004) (Peck, M.J.); Rodriquez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *24 (S.D.N.Y. March 15, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *22 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003);Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *27 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *9 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Riles v.Breslin, 00 Civ. 3283, 2001 WL 175250 at *4 (S.D.N.Y. Feb. 23, 2001) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *4-5 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Gillette v.Greiner, 76 F. Supp. 2d 363, 370 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5 (S.D.N.Y. April 29, 1998) (Cote, D.J. Peck, M.J.).
It is well-established that a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'") (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102 (1990)).
As the Second Circuit has stated: "'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.'" Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); accord, e.g., Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001); Sams v. Walker, 18 F.3d 167, 171 (2d Cir. 1994). Failure to give a properly requested jury charge does not by itself violate a petitioner's right to due process. E.g., Blazic v.Henderson, 900 F.2d at 541 ("A mere error of state law does not deny a defendant his right to due process."). Moreover, "[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736 (1977).
See, e.g., Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400 (1973); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *12 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *5 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.);Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *13 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.).
See also, e.g., Schaefer v. Leone, 443 F.2d 182, 185 (2d Cir.), cert. denied, 404 U.S. 939, 92 S. Ct. 277 (1971).
"For an erroneous state jury charge to result in a federal constitutional deprivation, 'the ailing instruction by itself [must have] so infected the entire trial that the resulting conviction violates due process.'" Blazic v. Henderson, 900 F.2d at 541 (quoting Cupp v. Naughten, 414 U.S. at 147, 94 S. Ct. at 400); see also, e.g., Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985); Carmona v. Attorney Gen., 96 Civ. 8045, 1997 WL 876737 at *11 (S.D.N.Y. Oct. 7, 1997) ("Jury charges that contain errors, even if they lead to the jury misapplying state law, do not ordinarily give rise to federal habeas corpus relief in non-capital cases. . . . Rather, an erroneous jury charge must have 'infected the entire trial' to be a cognizable claim in a habeas corpus proceeding."), report rec. adopted, 1998 WL 213781 (S.D.N.Y. Apr. 29, 1998).
B. Application of the Standard to Morales' Claim
Morales asserts that, in refusing to charge the jury that two prosecution witnesses were accomplices as a matter of fact, Justice Straus violated his right to a fair trial under the Fourteenth Amendment. (Dkt. No. 1: Pet. at 26-30.) The First Department held:
The court should have submitted to the jury the factual issue of the possible accomplice status of a witness who, inter alia, went through the victim's wallet. However, the court properly declined to deliver such a charge as to a second witness who could not have been reasonably viewed to be an accomplice. Since the first witness's testimony was extensively corroborated by that of the second witness, as well as the scientific evidence, we conclude that the error in failing to deliver an accomplice charge as to the first witness was harmless.People v. Morales, 308 A.D.2d 383, 383-84, 764 N.Y.S.2d 411, 412-13 (1st Dep't 2003) (citations omitted).
This Court cannot say that the First Department's determination that it was harmless error for Justice Straus to refuse to instruct the jury that Feliciano was an accomplice as a matter of fact so infected the entire trial that Morales' depraved indifference murder conviction would violate due process. The First Department correctly found that Santiago was not an accomplice. Santiago's testimony corroborated Feliciano as to Crespo's and Morales' actions in the hair salon — tying up Slatest and covering Slatest's head with a plastic bag and duct tape, leading to his death by asphyxiation. (See pages 19-20 above.)
In addition, even if both Feliciano and Santiago were accomplices, there is no federal constitutional rule requiring the corroboration of accomplice testimony. Caminetti v. United States, 242 U.S. 470, 495, 37 S. Ct. 192, 198 (1917) ("there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them"); accord, e.g., Besser v.Walsh, 02 Civ. 6775, 2003 WL 22093477 at *24 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *18 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J Peck, M.J.); see, e.g., United States v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999) ("Any lack of corroboration of an accomplice's or co-conspirator's testimony goes merely to the weight of the evidence, not to its sufficiency. . . ."), cert. denied, 528 U.S. 875, 957, 120 S. Ct. 181, 314, 315, 386 (1999); United States v.Green, No. 96-1185, 104 F.3d 354 (table), 1996 WL 665719 at *3 (2d Cir. Nov. 14, 1996); United States v. Elusma, 849 F.2d 76, 79 (2d Cir. 1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570 (1989). Thus, even an incorrect jury instruction on the accomplice corroboration rule would not have violated Morales' federal constitutional right to a fair trial.
See, e.g., Clark v. Greiner, No. 97-CV-2483, 2001 WL 135732 at *4 (E.D.N.Y. Feb. 2, 2001) (prosecutor's misstatement of accomplice corroboration rule during closing argument did not violate a federal right; "there is no federal constitutional rule requiring the corroboration of accomplice testimony"); Mariani v.Kelly, No. 97-CV-384, 2001 WL 1860961 at *4 (N.D.N.Y. Jan. 17, 2001) ("The Federal Constitution does not prohibit the conviction of a defendant based on the uncorroborated testimony of an accomplice. . . ."); Dawson v. Donnelly, 111 F. Supp. 2d 239, 251 (W.D.N.Y. 2000) (accomplice corroboration rule "is a state law and not a Constitutional requirement, and may not be raised in a Federal habeas petition"); Lyon v. Senkowski, 109 F. Supp.2d 125, 136 (W.D.N.Y. 2000) ("[C]orroboration of accomplices' testimony does not implicate a Federal right."); Estrada v. Senkowski, 1999 WL 1051107 at *18 ("There is no federal constitutional rule requiring the corroboration of accomplice testimony."); Hayes v.Coombe, 96 Civ. 865, 1996 WL 650728 at *2 (S.D.N.Y. Nov. 7, 1996), aff'd, 142 F.3d 517 (2d Cir. 1998), cert. denied, 525 U.S. 1108, 119 S. Ct. 879 (1999); Gaiter v. Lord, 917 F. Supp. 145, 150 (E.D.N.Y. 1996) (dismissing habeas claim "because the Federal Constitution does not prohibit the conviction of a defendant based on the uncorroborated testimony of an accomplice");Cartagena v. Mitchell, 93 Civ. 4759, 1993 WL 276070 at *1 (S.D.N.Y. July 20, 1993); Colon v. McClellan, 91 Civ. 6475, 1992 WL 162644 at *1 (S.D.N.Y. June 19, 1992), aff'd mem., 992 F.2d 319 (2d Cir.), cert. denied, 510 U.S. 847, 114 S. Ct. 141 (1993);Smithwick v. Walker, 758 F. Supp. 178, 186 (S.D.N.Y.) ("the requirement of accomplice corroboration is solely a product of New York State law. . . . Under federal law, it has long been established that a defendant can indeed be convicted on the uncorroborated testimony of an accomplice."), aff'd mem., 948 F.2d 1278 (2d Cir. 1991).
The Court notes that Judge Hellerstein denied Morales' co-defendant Crespo's habeas claim on this same accomplice issue.Crespo v. Fischer, 06 Civ. 2577, 2006 WL 3486805 at *5-6 (S.D.N.Y. Nov. 27, 2006).
Morales' accomplice jury charge claim should be DENIED.
CONCLUSION
For the reasons set forth above, the Court should deny Morales' habeas petition in its entirety, and a certificate of appealability should not be issued.
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 Barbara S. Jones, 500 Pearl Street, Room 620, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Jones (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 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).