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finding that the defendant's presence in the court when the trial judge announced that the juror would remain was a “sufficient opportunity” for the defendant to object to his absence during articulation of “for cause” and peremptory challenges
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04 CV 668 (JG).
October 20, 2004.
LUIS POUNCE, Hudson Correctional Facility, Hudson, New York, Petitioner Pro Se.
ELIOT SPITZER, Attorney General, State of New York, New York, Luke Martland, Assistant Attorney General, Attorneys for Respondent.
MEMORANDUM AND ORDER
Petitioner Luis Pounce seeks habeas corpus relief from a criminal sale of a controlled substance conviction entered after a jury trial in state court. I held oral argument on October 15, 2004. For the reasons set forth below, the petition is denied.
BACKGROUND
On March 16, 1998, Pounce was arrested pursuant to a "buy and bust" operation in which an undercover officer went to a known drug location and was approached by Rami Habachi. Habachi asked him if he was looking for drugs and took him to Pounce when the undercover answered in the affirmative. Pounce, through Habachi, sold the undercover two packets of a substance later determined to be cocaine in exchange for $30 pre-recorded buy money. The undercover officer's partner, Detective Luisa Rodriguez, acted as a "ghost," walking behind him. Once the sale was complete, the undercover officer transmitted to his team that there was a positive buy. Detective Rose, responding to the call, took Pounce into custody based on the description he had received in the call. After the undercover officer positively identified Pounce, he was arrested and searched. The pre-recorded buy money was found in his pocket.Pounce was charged with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree.
A. Jury Selection and Trial
Pounce's case, beginning with jury selection, was called for trial on July 19, 1999. The trial court judge asked Pounce's trial counsel, Norman Anthony, whether Pounce would agree to a waiver of his rights under People v. Antommarchi, 80 N.Y.2d 247 (1992). In Antommarchi, the New York Court of Appeals held that a defendant's "fundamental right to be present at any material stage of the trial" is violated when the defendant is not present during sidebar discussions "explor[ing] prospective jurors' backgrounds and their ability to weigh the evidence objectively." Id. at 250. Anthony responded, "I have explained it to Mr. Ponce with the assistance of the Spanish interpreter who's present and he is refusing to sign" the Antommarchi waiver. (Trial Tr. 14.) The court said, "Fine," and proceeded with the voir dire.
At the end of the morning session, after the prospective jurors left the room, Pounce made an application for new counsel. (Trial Tr. 56.) The court denied the application, holding "there's no grounds," and requested that trial counsel "sit down with [Pounce] and try to address [his] client's concerns." (Trial Tr. 58.) Upon returning from the lunch break, in response to questions from the judge, Pounce agreed that "everything was explained" to him and that he was "satisfied now" with his attorney. (Trial Tr. 59-60.)
More questioning of the panel followed, after which the court announced ". . . I am going step [sic] outside with counsel" and the transcript notes state "[o]utside the presence of the jurors and defendant." The court then asked Anthony, "[y]ou waive your client's appearance for the execution of challenges?," to which he responded, "[y]es, Judge." The court then proceeded with the "for cause" and peremptory challenges. Seven jurors were chosen in this first round. (Trial Tr. 109.) After the challenges were exercised, the trial transcript notes, "[c]ontinuing in open court," and the judge announced, in open court and in the presence of Pounce, the seven jurors who were to be impaneled.
The above procedure was followed again for the second round of selection, and at the end of questioning the court stated, "[o]nce again, I am going to step into the robing room with counsel." (Trial Tr. 162.) The transcript notes: "[o]utside the presence of the jury panel and the defendant." ( Id.) The court then asked Anthony if he "waive[d] [his] client's presence during the execution of challenges" and Anthony responded "[y]es, your honor." ( Id.) After the execution of the challenges, only five additional jurors and one alternate remained, leaving the selection short one alternate juror. The court asked whether either party would take someone they challenged as a second alternate, noting that it was unlikely that a second alternate would be needed. (Trial Tr. 167.) The court then had a discussion with counsel off the record, at the conclusion of which two new alternates were chosen. ( Id.) The court asked if the two alternates were "stipulated by the parties" and both responded "yes." ( Id.) The transcript then notes, "[c]ontinuing in open court," and the court clerk announced that those whose names are called will be "remaining with us through this trial." (Trial Tr. 167-68.)
B. Procedural History
On July 22, 1999, the jury convicted Pounce of criminal sale of a controlled substance in the third degree. On October 13, 1999, he was sentenced to a seven and one-half to fifteen-year term of imprisonment based on his adjudication as a second felony offender. Pounce timely appealed the conviction on the ground that his right to be present at and to participate in jury selection, which is a material stage of his trial, was denied when peremptory challenges were exercised outside his presence. The Appellate Division, Second Department, held that "[u]nder the circumstances of this case, the defendant was not deprived of his right to be present at a material stage of the trial." People v. Ponce [sic], 734 N.Y.S.2d 456 (2d Dep't 2001) (citing People v. Velasco, 77 N.Y.2d 469 (1991)). People v. Velasco, cited by the court in Ponce, held that there is no right to be present
. . . in the robing room during which counsel advised the court of their peremptory challenges and challenges for cause. The voir dire was conducted in open court and the challenges were exercised and recorded in open court, after the conference. . . . Defendant's statutory and constitutional right to be present at the impaneling of the jury was not violated by this procedure inasmuch as he was present during the voir dire of the jurors, the exercise of the challenges in open court, and the removal of those jurors from the panel. He had an opportunity to consult with his attorney before the challenges were made. The in-chambers discussion was a mere preliminary advisement of the court of challenges later effectuated in open court in the presence of defendant and thus did not constitute a material part of the trial.77 N.Y.2d at 473. Pounce requested leave to appeal on this ground, which was denied on January 28, 2002. People v. Ponce [sic], 97 N.Y.2d 707 (2002).
Pounce then filed a federal habeas petition on May 28, 2002, which was dismissed on July 16, 2002 without prejudice to allowing him to return upon exhausting his ineffective assistance of counsel claim in state court. Pounce v. Rivera, No. 02 Civ. 3257 (E.D.N.Y. July 16, 2002). Pounce filed a notice of appeal in the Second Circuit, which held on August 13, 2002, that the appeal was dismissed without prejudice because there was neither a certificate of appealability nor a denial thereof. Pounce v. Rivera, No. 02-2489 (2d Cir. Aug. 13, 2002).
Pounce also filed a number of petitions in state court. First, on October 16, 2002, he filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10(1) on the grounds that (1) his Fourth and Fourteenth Amendment rights were violated by the use of electronic surveillance, (2) his Fifth, Sixth and Fourteenth Amendment rights were violated because he was not provided his Miranda rights in the Spanish language, and (3) his Sixth Amendment right to effective assistance of counsel was violated because he could not participate in or understand the proceedings by reason of mental disease or defect, or by reason of his inability to understand the English language. The court denied Pounce's motion on March 4, 2003 on the ground that his claims were procedurally barred because they could have been (but were not) raised on direct review; the motion was also denied on the merits. People v. Ponce [sic], Ind. No. N10544-98 (Queens County Ct. Mar. 4, 2003). Pounce did not appeal this decision.
Subsequently, on October 2, 2003, Pounce filed both a petition for a writ of error coram nobis in the Appellate Division, Second Department, and a state writ of habeas corpus in Columbia County. The latter petition was denied on December 11, 2003. The coram nobis was still pending when Pounce filed the present petition on February 10, 2004. It was denied on March 29, 2004.
In the instant petition, Pounce asserts the same claim he has advanced throughout his various state court challenges, i.e., that he was deprived of his constitutional right to be present at material stages in his trial when certain aspects of jury selection were held outside his presence.
DISCUSSION
A. The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") signed into law on April 24, 1996, provides in relevant part that:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). The statute also provides the following tolling provision for post-conviction, collateral attacks in state court:
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(2). See also Lindh v. Murphy, 521 U.S. 320, 327 (1997) (§ 2244 applies "to the general run of habeas cases . . . when those cases had been filed after the date of the Act."); Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998).
Ordinarily, and in this case as well, the one-year period of limitation runs from the date on which the state criminal judgment of conviction becomes final. As noted earlier, on November 19, 2001, the Appellate Division affirmed petitioner's conviction, and on January 28, 2002, the New York State Court of Appeals denied petitioner leave to appeal. Thus, petitioner's conviction became final on April 28, 2002, upon expiration of the 90-day period for seeking a writ of certiorari. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). Pounce filed this petition on February 10, 2004, nearly two years later. He relies on the tolling provision in 28 U.S.C. § 2244(d)(2) in support of his claim that his petition is timely
Federal habeas petitions do not toll the one-year time period set by § 2244(d)(2). See Duncan v. Walker, 533 U.S. 167, 181 (2001) ("§ 2244(d)(2) does not toll the limitation period during the pendency of a federal habeas petition"). Thus, the limitation period was not tolled during the pendency of Pounce's first habeas petition, dated May 28, 2002, and denied on June 16, 2002.
However, AEDPA provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation." 28 U.S.C. § 2244(d)(2). Here, Pounce filed a motion to vacate his judgment of conviction under N.Y. Crim. Proc. L. § 440.10 on October 16, 2002, after 171 days of his 365-day period of limitation under the statute had run. The motion was denied on March 4, 2003. The government argues that the tolling period ends on this date because the motion was then no longer "pending," as required for tolling under the statute.
Thus, the government argues, the limitation period was not tolled during the period between March 4, 2003, when the § 440.10 motion was denied, and October 2, 2003, when Pounce filed his petition for a writ of error coram nobis, again tolling the one-year limitation period. This is a total of 212 days, so that a total of 383 days (171 + 212) expired between the date when Pounce's conviction became final and when his current petition was filed. The government argues that since this exceeds the 365 days allotted by the statute, Pounce's petition is untimely.
Critical to the government's calculation is Pounce's failure to appeal the denial of his § 440.10 motion. The government contends that the 30-day period during which Pounce could have, but did not, appeal this decision was not part of the tolled period, i.e. the motion is not "pending" under § 2244(d)(2) once it is denied. There is some question as to whether a motion for collateral relief is deemed "pending" under § 2244(d)(2) through the date it is decided or until further appellate review is no longer available. See Hall v. Herbert, No. 02 Civ. 2299, 2004 WL 287115, *5 (S.D.N.Y. Feb. 11, 2004) ( citing Duamutef v. Mazzuca, No. 01 Civ. 2553, 2002 WL 413812, at *7 n. 5 (S.D.N.Y. Mar.15, 2002)). The Supreme Court has held that, with respect to motions for collateral review, "intervals between a lower court decision and a filing of a new petition in a higher court [are] within the scope of the statutory word `pending.'" Carey v. Saffold, 536 U.S. 214, 223 (2002). However, it has not definitively held that a motion for collateral relief remains "pending" under § 2244(d)(2) while further review is available if, in the end, such review is never sought.
Although I believe the respondent's argument is correct, I need not decide the issue because even if the limitations period were not a bar to Pounce's petition, he could not prevail on the merits of his claim
B. The Merits
1. The AEDPA Standard of Review
AEDPA has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
Habeas relief is also warranted where the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2). That subsection is not relevant here.
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
However, there is "force" to the argument "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"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." Id. at 2151.
Under the "unreasonable application" standard set forth in Williams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[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." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":
[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.Alvarado, 124 S. Ct. at 2149.
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
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.261 F.3d 303, 312 (2d Cir. 2001).
2. Right to be Present at Jury Selection and Sidebar Conferences
A criminal defendant has the 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 (1975). The right is rooted in the Sixth Amendment and in the Due Process Clause, with the latter applying "in situations where the defendant is not specifically confronting witnesses or evidence against him." United States v. Jones, 381 F.3d 114, 121 (2d Cir. 2004) (citing United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam)). The "pre-screening of prospective jurors is a material stage of trial at which the defendant has a constitutional right to be present." Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002).
However, the right to be present is not absolute: "the defendant's absence is reversible error only where it would have a `relation, reasonably substantial, to his opportunity to defend.'" Clark v. Stinson, 214 F.3d 315, 323 (2d Cir. 2000) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). In other words, "any possible error is subject to harmless error review." Jones, 381 F.3d at 122 (citing United States v. Nichols, 56 F.3d 403, 416 (2d Cir. 1995)). Moreover, the right to be present is "clearly waivable under both the Federal and [New York] State Constitutions." Clark, 214 F.3d at 323 (quotation marks omitted). There is no rule requiring "a defendant's personal statement in court to bring about a constitutionally valid waiver of his right to present." Id. at 324. "The waiver must be knowing and voluntary, but it can be implied from the defendant's conduct." Jones, 381 F.3d at 122 (quotation marks omitted).
In this case, Pounce was present, with a translator, throughout the questioning of the prospective jurors. Thus, his claim is based solely on his absence when counsel announced the "for cause" and peremptory challenges. However, as the Second Circuit has held on precisely this issue, Pounce's constitutional rights to be present "were sufficiently preserved by his presence during the questioning of jurors, his opportunities to confer with counsel, and the formal announcement of the stricken and seated jurors in open court." Cohen, 290 F.3d at 490. In short, Pounce was not excluded from the process of the jury selection. He was present for the questioning and clearly had "the opportunity to register his opinions with counsel after juror questioning." Id.
Thus, the state court's decision, that Pounce's constitutional right to be present during material stages of his trial was not violated by the recitation of challenged jurors outside of his presence, is neither contrary to nor an unreasonable application of federal law.
Finally, the seating of two alternates, one of whom Pounce's counsel had challenged (Curtis), does not require a different result. First, Pounce was present during the questioning of Curtis and had the opportunity to discuss this juror with counsel. It is entirely possible that his counsel agreed to seat Curtis as the second alternate because Pounce had no objection to seating this juror at all. Moreover, the court specifically asked Pounce's attorney whether Pounce waived his right to be present while the challenges were raised, and his attorney stated that he did. (Trial Tr. 162.) Although Pounce had refused to waive his rights under Antommarchi, this does not invalidate his subsequent decision, as communicated by his attorney, to not be present when the judge was told which jurors each party challenged. See Antommarchi, 80 N.Y.2d at 250.
As noted above, supra 3-4, after for cause and peremptory challenges were exercised by both parties in the second round of jury selection, only one alternate was chosen. The court then asked the parties if they could agree on a challenged prospective juror as an alternate. After discussion off the record, two new alternates were chosen. The first alternate, Sinang, had been previously excluded based on a peremptory challenge by the prosecution, and the second alternate, Curtis, had been previously excluded based on a peremptory challenge by Pounce's counsel.
Second, even if Pounce did object to Curtis, he was present when the court announced that Curtis would remain in the box as a juror. This was a sufficient opportunity for him to raise an objection; his failure to do so, especially given the waiver of his presence by his attorney, constitutes a waiver of his right. See Jones, 381 F.3d at 122 (holding that defendant waived his right to be present when he "never objected to his absence from the in-chambers hearings, even though he was present during the subsequent hearing in open court when the court made its ruling"); see also Clark, 214, F.3d at 327 (finding that "it can be assumed that when [the defendant] was in court, he and his counsel must have discussed what happened at the sidebar" and that "the absence of any contemporaneous objection is strongly suggestive that the absence was acceptable to [defendant] at the time"); see also Cohen, 290 F.3d at 492.
Third, regardless of the waiver, Pounce must establish an error caused by the seating of Curtis as an alternate in order to make a viable claim. Snyder, 291 U.S. at 105-06 (finding that there is no "privilege of presence when presence would be useless, or the benefit but a shadow"); see also Jones, 381 F.3d at 122 (citing United States v. Nichols, 56 F.3d 403, 416 (2d Cir. 1995)). Here, Pounce provides no evidence to support a finding that his presence when the attorneys listed their challenges would have changed the outcome of the verdict. Based on the record, where (1) Pounce was present during questioning, (2) he had time to consult with his attorney, (3) he could have objected when the jurors were actually named, (4) his attorney stated that he waived his right to be present for the challenges and (5) the juror initially objected to was later seated as the second alternate and did not participate in the jury's deliberations or verdict, (Trial Tr. 599-600), I cannot conclude that Pounce's absence when the challenges were made warrants habeas relief.
At the beginning of the jury deliberations, the trial court notes:
Finally, you're not deliberate [sic] at any time unless all twelve sworn jurors are present.
With that, the court directs the officer to remove the jury, holding the alternate separate and a part [sic].
(Trial Tr. 599-600.) By the end of the trial, one alternate remained. ( Id. at 600.) Although this means that one of the alternates took part in the jury deliberations, Curtis was the second alternate and did not deliberate.
CONCLUSION
For the foregoing reasons, the petition is denied. As Pounce has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.