Opinion
98 Civ. 2601 (LTS)(MHD)
October 16, 2003
ORDER
On October 16, 2003, Magistrate Judge Michael H. Dolinger issued a Report and Recommendation ("Report") recommending that the petition of Jerald Price ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. No objections to the Report have been filed.
In reviewing a Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court "'need only satisfy itself that there is no clear error on the record.'" Johnson v. Reno, 143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation omitted). See also Bryant v. New York State Dep't of Corr. Serv., 146 F. Supp.2d 422, 424-25 (S.D.N.Y. 2001) (court may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous").
The Court has reviewed thoroughly Magistrate Judge Dolinger's well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the petition for writ of habeas corpus is denied.
The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability. The Court further certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
Magistrate Judge Dolinger's Report follows.
SO ORDERED.
TO: THE HONORABLE LAURA TAYLOR SWAIN, U.S.D.J.
Pro se petitioner Jerald Price seeks a writ ofhabeas corpus to challenge his January 12, 1993 conviction in the New York State Supreme Court, New York County, on single counts of Robbery in the Second and Third Degrees. Petitioner received a prison sentence of six to twelve years but has since been released to conditional parole supervision. He seeks federal relief on the ground that the prosecutor elicited "prejudicial, incompetent and inadmissible evidence" during the grand jury proceedings.
For the following reasons we recommend that the writ be denied and the petition dismissed.
BACKGROUND
I. The Robbery and Investigation
On August 8, 1990, the complainant, David Staton, was walking home from work at 12:45 A.M. along 141st Street in Manhattan. (Trial Transcript, Vol. I ("Tr."), at pp. 385, 387). He was carrying a shoulder bag containing, among other items, his checkbook and wallet, which held his bank card, social security card and fourteen dollars in cash. (Tr. at pp. 389-90). He was also wearing his high school class ring. (Tr. at 390).
When Staton reached 142nd Street between Convent and Amsterdam Avenues, a man who had been walking behind him moved past him, squatted down five or six feet in front of him and instructed him not to move. (Tr. at pp. 385, 386, 392-93). At trial, Staton identified petitioner as this man. (Tr. at pp. 386, 402). Staton described the man as a dark-skinned African-American, approximately five-feet-eleven, who was dressed in dark jeans and a white t-shirt and wearing a furry hat with a brim in front. The man carried a plastic shopping bag that appeared to Staton to contain an umbrella pointed in Staton's direction. (Tr. at pp. 390-91, 395, 418, 438, 440). Staton testified that the street was well-lit by street lights and that he did not feel afraid. (Tr. at pp. 388, 395).
Moments later, a second, unidentified man approached Staton from behind, silently removed Staton's bag from his shoulder, took out his wallet and checkbook and removed his class ring and his watch. (Tr. at pp. 396-97, 401, 439). This process took approximately two minutes. (Tr. at p. 401). When the second man had finished, the first man told Staton to cross the street. (Tr. at p. 402). Staton complied and sat on the concrete railing in front of one of the buildings, watching the two perpetrators walk west together along 142nd Street and turn north onto Amsterdam Avenue. (Tr. at pp. 403-05). Staton then retrieved his shoulder bag, which had been left lying by a parked car, went to his apartment and called 911. (Tr. at p. 405).
A short time later, patrol officer Steven Setteducato arrived at Staton's apartment to take a report. (Tr. at pp. 406, 471-73). Later that day, Staton spoke with other officers at the 30th Precinct, where he viewed three books of photographs. (Tr. at pp. 410, 440, 480). He focused particularly on two photos that resembled the perpetrator, but he eventually rejected the first one because the subject was lighter skinned than the perpetrator, and the second one because the subject had more hair than the perpetrator. (Tr. at p. 445).
On October 10, 1990, Staton went to the Manhattan Catch Unit located at 120 West 82nd Street, where he spent approximately forty-five minutes looking through loose mug shots, attempting to identify his perpetrator. (Tr. at p. 447; Wade Hearing Transcript ("Wade Tr."), at pp. 9, 11, 30). Based on Staton's description of his perpetrator, office associate Beulah Dickens gave him a drawer of photographs depicting African-American males between the ages of twenty-four and twenty-seven and between five-foot-seven and five-foot-nine in height. (Wade Tr. at pp. 9, 12). Staton chose seven photos that resembled the robber. On a scale of one to ten, with ten being an exact likeness of the perpetrator, Staton rated six of the photos a "seven" and one photo, which depicted petitioner, an "almost nine." (Tr. at pp. 447-48; Wade Tr. at pp. 18-19, 33).
At trial, Staton described his perpetrator as five-foot-eleven. (Tr. at 390). Petitioner is five-foot-eight. See People v. Price, 232 A.D.2d 156, 158 647 N.Y.S.2d 746, 748 (1st Dept. 1996) (Ellerin and Wallach, JJ., dissenting).
The photograph of petitioner had been taken at age twenty while petitioner was twenty-eight at the time of the robbery. (See Wade Tr. at p. 27-29). Moreover, Dickens' records from Staton's visit to the Catch Unit indicate that Staton selected only the one photo of petitioner; her records contain no mention of the other six photos Staton recalls rating as a "seven" in likeness to the man who had robbed him. (See id. at pp. 34-35).
Following Staton's selection of Price's photograph, the police unsuccessfully attempted to locate petitioner. (Tr. at p. 487). Four months later, on the morning of December 15, 1990, Officer Zontol Karpate arrested petitioner at the home of his girlfriend on St. Nicholas Avenue in Manhattan. (Tr. at pp. 491, 492). Upon learning that the robbery for which he was being arrested had occurred at 142nd Street and Convent Avenue, petitioner commented that his mother lived in that area.(Wade Tr. at p. 66). He also stated that on the date of the robbery he had been with his lawyer until one o'clock in the morning. (Id.).
Staton testified that, on December 15, Officer Karpate called to inform him that the police had just arrested a man for robbery, and wanted him to come to the precinct to view a line-up to see if he recognized the man he had identified from the photos. (Tr. at pp. 410, 448-50). Staton subsequently identified petitioner as one of the men who had robbed him. (Tr. at pp. 411-14, 451). On cross-examination, Staton conceded that petitioner was lighter skinned than he remembered the robber being, but he attributed this difference to the lighting in the line-up room. (Tr. at pp. 451, 455).
Detective Karpate testified that he had used the photo of petitioner selected by Staton at the Catch Unit as a guide in selecting the fillers for the line-up. (Wade Tr. at p. 75).
On August 8, 1990, the day of the robbery, Staton had rejected a photo resembling the perpetrator for the very reason that the man in the photo was lighter skinned than the robber. (See Tr. at p. 445).
II. Grand Jury Proceedings and Trial
In January 1991, Staton appeared before a grand jury and gave the following testimony regarding his photographic identification of petitioner:
Q: Now, I'd like to take you forward a little in that same day, August 8, 1990. Did you have occasion to go to the 30th Precinct?A: Yes.
Q: And did you speak with a detective there?A: Yes.
Q: After that, what did you do?
A: He had oh —
Q: Did you look at anything there at the precinct?
A: Yes. I looked through books of mugs shots.
Q: And did you recognize anyone in any of those books?A: No.
Q: Okay, Now let me take you forward to that Friday, August 10, 1990. Did you have an occasion to go to the police again?A: Yes.
Q: And did you look at more photographs?
A: Yes.
Q: Did you recognize anybody in any of those photographs?A: Yes.
Q: Where did you recognize a person in that photograph from?
A: From the Wednesday, the night of the robbery.
Q: And how is that person connected to that robbery?A: He was the gentleman in front of me.
Q: Was he one of the men who robbed you?
A: Yes.
(Affirmation of Assistant Attorney General Edward Rodriguez, Esq., dated September 11, 2000 ("Rodriguez Aff"), Ex. B, Brief of Appellant-Defendant (" Appellant Brief'), at pp. 16-17; Rodriquez Aff., Ex. C, Brief for Respondent at pp. 17-18). On January 25, 1991, the grand jury indicted petitioner, charging him with Robbery in the First, Second and Third Degrees. (Trial Transcript, Volume II ("Tr., Vol. III"), at pp. 19-20; Appellant Brief at p. 2).
On March 15, 1991, petitioner filed an omnibus motion seeking inspection of the grand jury minutes, dismissal of the indictment and aWade hearing. (See Brief for Respondent at pp. 18-19). The Honorable Howard Bell, S.C. J., declined to dismiss the indictment based on the legal sufficiency of the grand jury minutes and ordered a Wade hearing. (See id. at p. 19). At the Wade hearing held on January 5 and 6, 1993, the court denied petitioner's motion to suppress the complainant's photographic and line-up identifications, which petitioner contended had been made under unfairly suggestive circumstances.(Wade Tr. at pp. 99-100). The case was then assigned for trial to the Honorable Renee White, S.C. J. (See Memorandum of Law in Opposition to Petitioner's Application ("Opp. Memo"), at p. 2).
Prior to trial, defense counsel renewed petitioner's earlier motion to dismiss the indictment. Citing People v. Brewster, 63 N.Y.2d 419, 482 N.Y.S.2d 724 (1984), he argued that Staton's grand jury testimony regarding his photographic identification of petitioner through the viewing of "mug shots" had impaired the integrity of the proceeding within the meaning of C.P.L. § 210.35, requiring dismissal of the charges. (See Tr., Vol. III at pp. 5-15). Justice White referred the motion back to Justice Bell who, after hearing argument, denied it on the ground that Staton had also testified to his corporeal identification of petitioner, and that therefore the "mugshot testimony" had not so grossly distorted the evidence as to require submission to a new grand jury. (See id. at p. 22).
In Brewster, the New York Court of Appeals declined to dismiss a grand jury indictment. In that case, the complainant witness had testified before the grand jury that she had made an identification of the defendant but she did not inform the jurors that the identification had been photographic, thus precluding any prejudicial effect that might have resulted from the their knowing that the police possessed photos of the defendant. See id. at 423, 482 N.Y.S.2d at 725-26.
The State's primary evidence at trial consisted of Staton's eye-witness testimony and his identification of petitioner as one of the men who had robbed him. Petitioner presented an alibi defense through the testimony of Ms. Bareemah Musawwir, who claimed that petitioner had been meeting with her on a business matter at the time when Staton was being robbed. (Tr. at pp. 537, 539).
On January 12, 1993, the jury convicted petitioner of Robbery in the Second and Third Degrees. (See Opp. Memo at p. 7).
III. Post-Conviction Proceedings
On March 8, 1993, petitioner moved to set aside the verdict on the ground, inter alia, that the court had failed to give a proper instruction in response to a jury note submitted to the court during deliberations. Justice White denied that application in April 1993. (Appellant Brief at p. 4). On March 26, petitioner filed an equally unsuccessful motion to dismiss in the interest of justice. (See id. at pp. 4, 8). On May 3, 1993, Justice White sentenced petitioner to a term of six to twelve years. (See Rodriguez Aff. at ¶¶ 2, 4; Opp. Memo at p. 1).
In December 1994, petitioner appealed his conviction to the Appellate Division. In support of that appeal he asserted three grounds: (1) that the State had failed to prove his guilt beyond a reasonable doubt; (2) that the complainant's testimony to the grand jury that he had identified petitioner's "mug shots" had been prejudicial and required dismissal of the indictment; and (3) that the trial court's response to the jury note had been an abuse of discretion requiring reversal. (See Appellant Brief at pp. i-ii). The State responded: (1) that petitioner's guilt had been proven beyond a reasonable doubt; (2) that Staton's grand jury testimony did not impair the integrity of the indictment; and (3) that the court had correctly responded to the jury note. (See Brief for Respondent at pp. 8, 17, 24).
Affirming petitioner's conviction, the Appellate Division panel unanimously agreed that:
[t]he complainant's comment before the Grand Jury that he viewed "mug shots" prior to identifying defendant's photograph, while improper, did not impair the integrity of the Grand Jury proceeding within the meaning of CPL 210.35(5). This test is not satisfied by a showing of "mere flaw, error or skewing" of the evidence; the test is "very precise and very high," and the remedy of dismissal of the indictment on that ground is "exceptional."Price, 232 A.D.2d at 156, 647 N.Y.S.2d at 746. Over two dissents, the court further held that the evidence at trial sufficiently supported petitioner's conviction. Id. at 156-57. 647 N.Y.S.2d at 747.
The dissenting justices would have held that the verdict was against the weight of the evidence because of the unreliability of Staton's identification of petitioner and petitioner's unimpeached alibi.Id. at 160, 647 N.Y.S.2d at 749 (Ellerin and Wallach, JJ., dissenting).
Petitioner subsequently sought leave to appeal to the New York Court of Appeals solely on the question of whether the complainant's grand jury testimony had been prejudicial, requiring dismissal of the indictment. (See Rodriguez Aff, Ex. E). On September 11, 1997, the Court of Appeals denied petitioner's application, holding that "there is no question of law presented which ought to be reviewed." (Id., Ex. F.).
On February 5, 1998, petitioner filed this application for federalhabeas relief. (See Petitioner's Pro Se Petition Under 28 U.S.C. § 2254 ("Petition")).
ANALYSIS
Petitioner seeks federal habeas relief based on his contention that the prosecutor deliberately elicited "prejudicial, incompetent and inadmissible evidence" during the grand jury proceeding, requiring dismissal of the indictment. (Petition at p. 5). Petitioner's application fails to state a ground on which a writ may be granted.
I. No Constitutional Right to Indictment by a Grand Jury
A federal court may review a state prisoner's application forhabeas corpus relief only on the ground that the prisoner's conviction violated the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In other words, trial or appellate errors of state law do not trigger federal habeas relief. See id., at 67-68; Lewis v. Jeffers, 497 U.S. 764, 783 (1990).
Petitioner fails to allege that his conviction violates any constitutional right or federal law. He seeks review solely of the Appellate Division's decision to uphold his grand jury indictment despite the introduction of evidence that New York courts have held to be unfairly prejudicial under the terms of a New York statute. See, e.g., Brewster, 63 N.Y.2d at 423, 483 N.Y.S.2d at 726 (noting that grand jury testimony as to photographic identification may result in unfairness because jurors are likely to infer that if the police had a photograph of a defendant, he or she must have had a prior arrest record); People v. White, 115 Misc.2d 304, 305-06, 454 N.Y.S.2d 216, 217 (N.Y.Sup.Ct. 1982) (reading Brewster as stating that photographic identification testimony is incompetent and inadmissible before a grand jury).
Assuming that the Appellate Division's decision constituted error — although it appears to have been soundly reasoned — this error would be purely one of state law. See N.Y. C.P.L. § 210.35. The Fifth Amendment right to indictment by a grand jury has not been incorporated against the states by the Due Process Clause of the Fourteenth Amendment. See LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002) (citing Branzburg v. Hayes, 408 U.S. 665, 688 n. 25 (1972)); Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (citing Hurtado v. California 110 U.S. 516, 534-35 (1884)). Consequently, states are free to require grand jury indictments as they see fit, or not at all. See Fields, 920 F.2d at 1118.
While grand jury testimony as to photographic identification has been deemed improper under New York law, dismissal of an indictment is an "exceptional" remedy reserved for situations where the integrity of the grand jury proceeding has been impaired. See People v. Darby, 75 N.Y.2d 449, 455, 554 N.Y.S.2d 426, 428 (1990); People v. Winnincrham, 209 A.D.2d 461, 462, 618 N.Y.S.2d 450 (2d Dept. 1994). Such impairment requires more than a "mere flaw, error or skewing" of the evidence. Darby, 75 N.Y.2d at 455, 554 N.Y.S.2d at 428;Winningham, 209 A.D.2d at 462, 618 N.Y.S.2d at 451. Here, while it was improper for Staton to testify that he had identified petitioner by looking at "mug shots," his further testimony regarding his observations during the robbery and his subsequent line-up identification provided the grand jury with an independent and permissible basis for finding probable cause to charge petitioner. Thus, the Appellate Division appears to have committed no error in finding that Staton's testimony did not so severely impair the proceeding as to justify dismissal of the indictment.
New York's constitution creates a right to indictment by a grand jury for felony charges. See id.: N.Y. Const., art. 1 § 6 ("No person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury"). Moreover, state law governs how these proceedings are to be conducted and creates the remedies for any procedural violations. Thus, any alleged impropriety in petitioner's grand jury proceeding arises out of state law and cannot form the basis for federal habeas relief. See, e.g.,Hutchings v. Herbert, 260 F. Supp.2d 571, 577 (W.D.N.Y. 2003) (holding that petitioner's grand jury claim was purely a matter of state law and thus did not present a cognizable federal habeas claim); Gibbs v. New York, 2002 WL 31812682, *4 (S.D.N.Y. 2002) (same).
II. Petitioner's Conviction at Trial Renders Grand Jury Error Harmless
Petitioner's application for habeas relief fails as well because a petit jury's guilty verdict renders harmless any error in the grand jury proceedings. See United States v. Mechanik, 475 U.S. 66, 70, 71 (1986) (holding that the federal harmless-error standard applies to "errors, defects, irregularities, or variances" occurring before a grand jury). This curative effect results because a conviction proves that not only did probable cause exist for charging the defendant, but that he was guilty as charged beyond a reasonable doubt. See id. at 70.
In sum, any constitutional violation petitioner might have demonstrated would have been rendered harmless by his January 12, 1993 conviction, thus barring the requested relief. See, e.g., Lopez v. Riley, 865 F.2d 30, 33 (2d Cir. 1989) (holding that any errors in a state grand jury proceeding involving, inter alia, use of misleading and prejudicial evidence were cured by the petit jury's conviction and thus did not entitle petitioner to habeas relief); Alfini v. Lord, 245 F. Supp.2d 493, 503 (E.D.N.Y. 2003) (denying habeas relief where petit jury's guilty verdict transformed any defect in grand jury proceedings into harmless error).
CONCLUSION
For the reasons stated, we recommend that the writ be denied and the petition dismissed.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies to be delivered to the Honorable Laura Taylor Swain, Room 426, 40 Centre Street and to the chambers of the undersigned, Room 1670, 500 Pearl Street. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals.See, Thomas v. Am, 474 U.S. 140, 150 (1985);Small v. Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).