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holding that "[c]hallenges to the weight of the evidence supporting a conviction are not cognizable on federal habeas review" (citing Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996))
Summary of this case from Higgins v. ArtusOpinion
00 CV 4526 (JG).
July 22, 2004
JOEL A. BRENNER, East Northport, New York, Attorney for Petitioner.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Victor Barall, Assistant District Attorney, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Larry Robinson, an inmate at the Upstate Correctional Facility, seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument on May 11, 2001 and again on June 11, 2004. For the reasons set forth below, the petition is denied.
BACKGROUND
By memorandum and order dated September 7, 2001, I dismissed Robinson's petition as untimely. Robinson v. Ricks, 163 F. Supp. 2d 155, 156-59 (E.D.N.Y. 2001). That opinion was vacated and the case remanded for adjudication on the merits. Robinson v. Ricks, 56 Fed. Appx. 7 (2d Cir. 2003). The facts and complex procedural history of this case are set out in my September 7, 2001 decision, 163 F. Supp. 2d at 156-59, and I will only briefly recount the facts here before proceeding to a determination of the merits of Robinson's petition.
On the afternoon of August 16, 1988, Perette Andre and her boyfriend, Frenel St. Clair, went to Prospect Park in Brooklyn for a picnic. After falling asleep on their blanket, Robinson and an unidentified Hispanic man approached the couple. After the two men whispered to each other, the Hispanic man stole St. Clair's wallet and some of Andre's jewelry. Robinson watched from a few feet away. Andre awoke and screamed as her jewelry was being taken, waking St. Clair, who chased the Hispanic man and knocked him to the ground. As they struggled, Robinson approached St. Clair from behind and hit him on the back of the head with a small brown object. St. Clair was then stabbed in the heart and killed. The government's eyewitnesses gave inconsistent testimony as to whether Robinson or the Hispanic man stabbed St. Clair. Robinson and the Hispanic man then fled the park together.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("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).
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, 123 S. Ct. 1166, 1175 (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 inWilliams, "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 (citingWilliams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 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).
In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1041 (2003)).
B. Robinsons's Claims
1. Insufficiency of the Evidence
Robinson argues that the "credible evidence" presented at trial was insufficient to establish his guilt beyond a reasonable doubt. Robinson bears a "very heavy burden" on this claim.Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quotation marks omitted); Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks omitted). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Ponnapula, 297 F.3d at 179 ("[W]e review the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial.").
In making this assessment, the court may not "disturb the jury's findings with respect to the witnesses' credibility,"United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), or "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony," Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326). Challenges to the weight of the evidence supporting a conviction are not cognizable on federal habeas review.Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).
Denying this claim, the Appellate Division, Second Department, held:
Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence. Although the testimony of the People's witnesses was inconsistent with regard to whether it was the defendant or his cohort who stabbed the victim, this conflict was legally insignificant, since the defendant was tried under an acting in concert theory.People v. Robinson, 670 N.Y.S.2d 880, 882 (2d Dep't 1998).
a. Neptune's Testimony
The problem with Robinson's argument on this point is revealed in his caption to the argument: "THE CREDIBLE EVIDENCE WAS INSUFFICIENT TO ESTABLISH PETITIONER'S GUILT BEYOND A REASONABLE DOUBT." (Mem. Law Supp. Pet. at 16 (emphasis added) ("Pet. Mem.").) Robinson asks me to reevaluate the credibility of prosecution witness Anselm Neptune, the sole identifying eyewitness. As discussed above, this I cannot do. See Fagon, 717 F. Supp. at 979 (citing Zabare, 871 F.2d at 286). The jury evaluated Neptune's credibility at trial. In reviewing Robinson's petition, I must presume that the jury resolved any conflicts in favor of the prosecution and defer to that resolution. Wheel, 34 F.3d at 66. That Neptune's testimony may have contradicted testimony of other witnesses was a matter for the jury, not this Court on habeas review, to resolve.
Neptune had seen Robinson before and recognized him from the neighborhood. Indeed, he called the police on multiple occasions prior to Robinson's arrest to inform them that he had again seen the perpetrator. See infra Part B.5.b.
b. Acting in Concert
i. Exhaustion and Procedural Default
Robinson argues for the first time that the evidence at trial was insufficient to prove that he was acting in concert with the unidentified Hispanic man who robbed the victim. This claim is unexhausted, as it was not raised in the state courts. Furthermore, allowing Robinson the opportunity to exhaust would be futile as the claim would now be procedurally barred in state court.
Exhaustion. Before a federal court may consider a state prisoner's petition for a writ of habeas corpus, the petitioner must have exhausted all available state judicial remedies. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275 (1971). In order to exhaust his state remedies, a petitioner must have fairly presented his federal constitutional claims to the highest state court. Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (in banc). A petitioner has fairly presented a claim if he or she apprised the state courts of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Id. Even if a petitioner raises precisely the same legal claims in state and federal proceedings, reliance in the two proceedings upon different factual grounds that fundamentally alter the legal claim will foreclose a conclusion that the claim is exhausted. Vasquez v. Hillery, 474 U.S. 254, 260 (1986);see also Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir. 2003) ("A petitioner has `fairly presented' his claim only if he has informed the state court of both the factual and the legal premises of the claim he asserts in federal court." (quotation marks omitted)). In other words, the claim presented to the state court "must be the substantial equivalent of the claim raised in the federal habeas petition." Id. at 295 (quotation marks omitted). Furthermore, "the basic requirement remains that `the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature.'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye, 696 F.2d at 192).
Previously, if a petition contained both exhausted and unexhausted claims, the petition had to be dismissed. See Rose v. Lundy, 455 U.S. 509, 522 (1982). Under AEDPA, however, a federal district court has discretion to deny on the merits a petition that contains both exhausted and unexhausted claims. 28 U.S.C. § 2254(b)(2).
Here, Robinson's state court insufficiency argument was not premised on the same allegations as the argument here, namely, that the government failed to prove that he was acting in concert beyond a reasonable doubt. Furthermore, were Robinson to raise this claim in state court now, it would be procedurally barred, as the claim could have been raised on direct review, but was not. See Keane, 329 F.3d at 296.
Procedural Default. Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground."Harris v. Reed, 489 U.S. 255, 261 (1992); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review. Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [its] own errors"); see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").
A defaulted claim will be considered by the court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750;Teague v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing "`that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions."Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).
Here, none of Robinson's briefs and letters, prepared by his attorney, even attempt to explain why this claim was not raised in state court. Furthemore, Robinson's claim of ineffective assistance of counsel — which in some cases may satisfy cause for a procedural default — was not raised to address this procedural default. Indeed, Robinson would need to raise an ineffective assistance of appellate counsel claim in order to prove cause for not raising the claim on direct appeal. Therefore, as Robinson's claim that the evidence was insufficient to prove an acting in concert theory is procedurally barred, I cannot review it on the merits. In any event, even if I did so, it would fail, as discussed below.
ii. The Merits
To establish an acting in concert theory, the prosecution must prove not only that a defendant shared the requisite mens rea for the underlying crime, but also that he, "in furtherance of the crime, solicited, requested, commanded, importuned or intentionally aided the principal in the commission of the crime." People v. Bello, 92 N.Y.2d 523, 526 (1998). Here, according to Robinson, the government asked the jury to find that Robinson was acting in concert with the Hispanic man based on the evidence that Robinson (1) stood with the Hispanic looking at the eventual victim; (2) struck the victim on the head when the victim was on top of the Hispanic man; and (3) fled the park with the Hispanic man. (Pet. Mem. at 20.) Though Robinson advances various permissible, though improbable, innocent explanations for Robinson's conduct, I am limited to drawing all inferences in favor of the prosecution. E.g., Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). As such, the evidence was sufficient for the jury to find that Robinson was acting in concert with the Hispanic man.
2. Speedy Trial Violation
Robinson contends that the various delays in state proceedings constituted a violation of his right to a speedy trial. In denying this claim, the Appellate Division held that Robinson's "constitutional right to a speedy trial was not violated. Although the delay was lengthy, not all of it was attributable to the People, and the defendant failed to establish that he was prejudiced." Robinson, 670 N.Y.S.2d at 882.
The determination of whether pretrial delay violates the Sixth Amendment is governed by Barker v. Wingo, 407 U.S. 514, 530 (1972); see also Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003). Barker identified four factors "courts should assess in determining whether a particular defendant has been deprived of his right[:] Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 533. None of the four factors is alone either necessary to or sufficient for a finding of a deprivation of the right of speedy trial; rather, they must be considered together with such other circumstances as may be relevant as part of "a difficult and sensitive balancing process." Davis, 316 F.3d at 127. I address these factors in turn.
First, the crime for which Robinson was convicted occurred on August 16, 1988. He was arrested on March 9, 1989 and released on bail on July 19, 1990. The Wade hearing occurred on April 19, 1991. Therefore, just over twenty-five months had elapsed from arrest to trial. Much longer delays have withstood constitutional attack. See, e.g., Barker, 407 U.S. 514 (over five years); Montalvo v. United States, 862 F.2d 425, 426 (2d Cir. 1988) (eight years); Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (over seven years); Holden v. Miller, No. 00 Civ. 0926, 2000 U.S. Dist. LEXIS 11889, at *35 (S.D.N.Y. 2000) (over 31 months). This factor therefore weighs against Robinson.
Robinson argues that this seven-month period between crime and arrest should weigh in his favor under Barker, arguing that Neptune named Robinson as the perpetrator "almost immediately." (Pet. Mem. at 28.) However, Neptune first identified Robinson to police in a photo array on February 6, 1989. (Apr. 19, 1991 Hr'g Tr. at 13.)
As to the second and third factors, the Appellate Division expressly found that "not all" of the delay was attributable to the government. Robinson, 670 N.Y.S.2d at 334. While the parties dispute (and the record is unclear with respect to) who consented to which adjournments, Robinson concedes that two adjournments were consented to by both parties, and another was sought solely by Robinson. (Pet. Mem. at 30.) Furthermore, though Robinson was arrested on March 9, 1989, he did not move for dismissal on speedy trial grounds until April 16, 1991, just three days before the Wade hearing. Despite Robinson's claim that he was prejudiced by the delay — a claim I discuss below, in the context of the alleged Brady violation,see infra Part B.3 — in light of these three factors, I cannot say that the Appellate Division was unreasonable in denying this claim. This is especially true in light of the general nature of the test established by Barker. See Yarborough v. Alvarado, 124 S. Ct. 2140, 2149 (2004).
This is viewing the evidence in the light most favorable to Robinson. According to exhibit C to the prosecution's response in the Appellate Division, an Assistant District Attorney's affirmation, Robinson sought and received adjournments on April 19, 1989, June 2, 1989, July 20, 1989, September 18, 1989, and January 11, 1990, consented to adjournments on September 18, 1989, October 3, 1989, October 25, 1989, December 12, 1989, February 27, 1990, March 16, 1990, March 22, 1990, June 18, 1990, October 16, 1990, October 26, 1990, March 1, 1991, and April 2, 1991, and was unavailable on November 17, 1990, April 18, 1990, May 24, 1990, June 20, 1990, and August 16, 1990. These dates do not include several adjournments required for the purpose of making, responding to, or ruling on defense motions.
3. Brady Violation
Robinson claims that the government violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to provide him with the information necessary to locate two witnesses who, Robinson maintains, would have provided exculpatory testimony.
In a criminal prosecution, the government has a constitutional obligation to disclose material, exculpatory evidence to the defendant. See Giglio v. United States, 405 U.S. 150, 154 (1972); Brady, 373 U.S. 83. Exculpatory evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler v. Greene, 527 U.S. 263, 280 (1999) (quotation marks omitted). Furthermore, to merit relief, the nondisclosure must "undermine confidence in the outcome of the trial." Kyles v. Whitly, 514 U.S. 419, 434 (1995) (quotation marks omitted). For purposes of the government's responsibilities under Brady, the Supreme Court draws no distinction between impeachment evidence and exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985) ("Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule. Such evidence is `evidence favorable to an accused,' so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." (citations omitted) (quoting Brady, 373 U.S. at 87)). The "individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police." Kyles, 514 U.S. at 437; see also Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (assuming that state protective-service agency files could be Brady material).
The discussion of this claim requires some background. Elizabeth Gilchrist ("E. Gilchrist") and Robert Niles, both eyewitnesses to the crime, had each given statements to the police shortly after witnessing the homicide. They later testified before the grand jury. On June 2, 1989, the prosecutor turned over various "DD-5s," i.e., reports of interviews prepared by police officers, to the defense, including those of E. Gilchrist and Niles, with names and addresses redacted. Because, according to Robinson, some of the statements were exculpatory, Robinson moved, on September 5, 1989, for an order directing the government to provide the names and addresses of exculpatory witnesses. The court granted Robinson's motion on October 13, 1989, and the government complied with that order by November 1989, seventeen months before trial. By that time, however, E. Gilchrist and Niles could not be located. They did not testify at either of Robinson's trials.
The Appellate Division denied this claim, holding:
Nor are we persuaded that the People's delay in turning over the names and addresses of two eyewitnesses to the crime to defense counsel constituted a Brady violation. Although these witnesses could not be located and therefore did not testify, prior to trial the People turned over to defense counsel copies of the statements they gave police. The defendant did not attempt to introduce them into evidence or otherwise use them at trial, and his contention that the statements should have been admitted into evidence is therefore unpreserved. Moreover, the statements did not tend to exculpate the defendant, and therefore, earlier disclosure would not have helped the defendant's case or changed his trial strategy.Robinson, 670 N.Y.S.2d at 333-34 (citations omitted). For the following reasons, this decision was not unreasonable.
The procedural history underlying the Appellate Division's holding that this claim was unpreserved for appellate review is especially tortured. According to Robinson's attorney here (who was also his attorney in the Appellate Division), Robinson's trial attorney, after receiving the redacted DD-5s, made a motion for disclosure of the names of the witnesses (i.e., E. Gilchrist and Niles) under Brady. By the time that motion had been granted and the names disclosed, E. Gilchrist and Niles could not be found. Robinson's trial attorney therefore moved to dismiss the indictment, or, in the alternative, for sanctions. According to Robinson's lawyer here, the motion for sanctions included a motion for admission of E. Gilchrist's and Niles's prior statements. (The government disputes that the motion for sanctions included a motion for admission of the statements.) The motions to dismiss and for sanctions were denied.
On direct appeal before the Appellate Division, Robinson's appellate lawyer (again, the same lawyer representing him here) confused the motion for disclosure of the witnesses' names with the motion for sanctions, appealing the former but not the latter. Then, when the government told the Appellate Division that there had been no effort to admit the statements, appellate counsel agreed, thereby unintentionally "mislead[ing]" the Appellate Division. (May 11, 2001 Tr. at 13; see also id. at 20; Pet. Mem. at 34 n. 35.)
Based on these representations by Robinson's counsel, it is clear that neither the Appellate Division, nor any other state court, had the opportunity to pass on the issue of whether it was error to exclude the statements. Furthermore, as Robinson's attorney agrees, any attempt to raise that claim now in the state court would be futile, and therefore the claim is procedurally barred. (May 11, 2001 Tr. at 20.) As cause for this default, Robinson's attorney points to his own mistake in appealing the wrong motion. However, this claim — ineffective assistance of appellate counsel — was not raised in the state court, and therefore cannot serve as cause until exhausted. See Edwards v. Carpenter, 529 U.S. 446 (2000).
Both E. Gilchrist and Niles testified, like Neptune, that Robinson wore a white shirt and shorts. E. Gilchrist's DD-5 states that the black perpetrator (Robinson) was about 5' 9" tall (Robinson is 6' 1") and was wearing a black cap. She later could not remember whether the perpetrator wore a black hat. Niles indicated that the perpetrator was about six feet tall. He too was unsure whether the perpetrator wore a black hat. Furthermore, E. Gilchrist's brother, James ("J. Gilchrist"), who also witnessed the murder, testified that Robinson was wearing a black hat. In sum, the testimony that E. Gilchrist and Niles would have provided would have been both largely inculpatory and largely cumulative, and therefore no reasonable possibility exists that the outcome of the proceeding would have been different had Robinson been provided with E. Gilchrist's and Niles's names prior to November 1989. At the very least, the Appellate Division's decision was not an unreasonable application of Brady.
Neptune testified that Robinson was not wearing a black hat.
That E. Gilchrist and Niles told the police that the Hispanic perpetrator, not Robinson, stabbed the victim is irrelevant, as the government proceeded on an acting-in-concert theory at trial. In any event, this testimony would have cumulative of the testimony of James Gilchrist ("J. Gilchrist") — E. Gilchrist's brother — who also witnessed the murder and testified at Robinson's first trial that the Hispanic perpetrator had stabbed the victim. Though J. Gilchrist was unavailable to testify at Robinson's second trial, his testimony was read into the record.
4. Trial Court Bias
Robinson claims that the trial court demonstrated bias in favor of the government when it questioned Robinson's mother ("Lyons") during her direct examination. Even reviewing this claim de novo, it lacks merit for the reasons discussed below.
The Appellate Division did not expressly mention this claim, and so presumably denied it along with Robinson's "remaining contentions" as "either unpreserved for appellate review or without merit." Robinson, 670 N.Y.S.2d at 882. Although the record is clear that Robinson's trial attorney did not object to the trial court's questioning, the Appellate Division's disposition was insufficiently specific to earn the deference accorded to state court decisions based on adequate and independent state grounds. See Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 (2d Cir. 2000) (holding that where "a state court uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit' the validity of the claim is preserved and is subject to federal review"). Moreover, the prospect that the Appellate Division's decision was based on procedural grounds appears to deprive the decision of the deference AEDPA accords to decisions on the merits:
[W]here a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits.Shih Wei Su v. Filion, 335 F.3d 119, 126 n. 3 (2d Cir. 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). In the same footnote, the Shih Wei Su court wrote, "In other words, our cases seem to contemplate situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required. But, to decide the instant case, we need not determine whether that indeed is so." Id. The notion that a state court determination might get neither the "procedural default" deference nor the "adjudication on the merits" deference because its decision could rest both on a default and on the merits strikes me as anomalous. However, because Robinson's claim of trial court bias fails even under a de novo standard of review, I need not address this issue.
a. Background
At trial, Robinson sought to introduce the testimony of his mother to establish that he could not have been at the park when the murder occurred. As set forth below, Lyons testified that she spoke to Robinson on the phone throughout the day of the murder, and met him to shop that afternoon. Robinson emphasizes the following portions of Lyons testimony as evidencing the trial court's biased questioning:
Robinson's trial attorney claimed that Lyons was not an alibi witness, but rather that he put her on the stand for her description of Robinson as calm and unruffled when he met her to shop after the murder occurred (Tr. at 539), as detailed below.See also infra note 13.
Q Now, Miss Lyons, can you tell me how tall your son is?
[PROSECUTOR]: Objection, your Honor.
THE COURT: Do you know?
THE WITNESS: Yes.
THE COURT: Tell us.
THE WITNESS: Six-feet-one.
THE COURT: He's approximately, or he is?
THE WITNESS: I'm sure he's six-feet-one. The last time we measured one another, he was six-feet-one.
. . . .
Q Now, while you were standing on West 11th Street and Sixth Avenue, did you see Larry?
. . . .
A Yes, I saw him walking from the south, coming from the south part of Sixth Avenue, walking up towards West 11th Street.
THE COURT: You saw him coming from Tenth Avenue?
THE WITNESS: No, south, coming up Sixth Avenue, like coming uptown. He was walking toward uptown.
THE COURT: Sixth Avenue runs north and south?
THE WITNESS: North.
THE COURT: Runs north and south, doesn't it?
THE WITNESS: North.
I don't understand what you mean.
THE COURT: Sixth Avenue is a north and south street?
THE WITNESS: Yes, but it's one-way traffic, going north.
THE COURT: And he was going with traffic or against traffic?
THE WITNESS: With traffic.
. . . .
Q Now, on August 16, 1988, did you have any telephone conversations with your son?
A Yes, several.
Q And were those conversations related in any way to your meeting with him later that day?
A Yes.
Q And did you agree to meet someplace with him?
[PROSECUTOR]: Objection, your Honor.
THE COURT: Sustained.
Q And what was the purpose of those telephone conversations?
A To discuss if I was going to be able to leave work early to meet him.
THE COURT: Let me ask you something, Ms. Lyons.
What time of day did you receive the first call?
THE WITNESS: It was about eleven o'clock.
THE COURT: Next call, what time was that?
THE WITNESS: He called me and I called him approximately every 45 minutes to an hour after that.
THE COURT: He called you at 11:00 and he called you after 12:00?
THE WITNESS: We call back and forth. He called me more than I called him. He called me about every 45 minutes.
THE COURT: So, starting at 11:45 up until when did the —
THE WITNESS: Ten after three, when I told him —
THE COURT: He called you every 45 minutes from 11:45 to ten after three?
THE WITNESS: Yes.
THE COURT: Do you know where he was calling from?
THE WITNESS: From home.
THE COURT: How do you know? You were at work?
THE WITNESS: Because I called him also.
THE COURT: You called him every 45 minutes?
THE WITNESS: Maybe in between that few times, I called him to see —
THE COURT: How much time elapsed from the time he called you and you called him back?
THE WITNESS: Maybe, like, a half hour. I would say to him, "Larry, I can't talk right now. I will call you back."
THE COURT: Are you testifying that during this half hour, you knew that he was at home?
THE WITNESS: Yes, he was at home.
THE COURT: Although you didn't see and couldn't talk to him, you knew that during the half-hour hiatus he was at home?
THE WITNESS: Yes.
Q Now, how long were these telephone calls?
A Quick, a minute or two.
THE COURT: Let me ask you something, Miss Lyons.
How far is 250 — you said 250 East Seventh Street?
THE WITNESS: 255.
THE COURT: How far is that from Grand Army Plaza and Prospect Park?
THE WITNESS: Going which way, walking, driving?
THE COURT: Walking.
Say, from Third Street and Prospect Park and 255 East Seventh Street, how far is that?
THE WITNESS: About an hour.
THE COURT: I'm talking about Prospect Park, 255 East Seventh Street.
THE WITNESS: Yes.
THE COURT: You say that's about an hour?
THE WITNESS: Close to an hour.
THE COURT: So, from Prospect Park to where you live takes about an hour?
THE WITNESS: To the point where you said, yes.
THE COURT: How far is it from Parkside and Church Avenue and Prospect Park to where you live?
THE WITNESS: Parkside and what?
THE COURT: Parkside and Church Avenue intersect and Prospect Park, how far is that from where you live at 255 East Seventh Street?
THE WITNESS: I don't know Parkside and Church Avenue to intersect.
THE COURT: Well, where the entrance is, it comes out at Church Avenue there, Prospect Park West, Church Avenue and Parkside.
THE WITNESS: Twenty minutes, maybe.
THE COURT: Thank you.
(Tr. at 506, 515-16, 526-30.) The court continued questioning the witness during cross-examination:
THE COURT: Mrs. Lyons, may I ask you this? What was so important that you had to talk to your son that frequently between 11:45 and three o'clock?
THE WITNESS: Because anytime I'm taking Larry shopping, he calls me a hundred times to find out if I'm going to meet him. That's something that always happens.
THE COURT: In other words, you say it takes that number of times to reassure him that you're going to meet him?
THE WITNESS: Yes, because he knows how my job is, anything can happen at work.
(Id. at 561.) And also during redirect:
Q And when you found out that these telephone calls were not recorded [on Lyons's telephone bills], what did you do?
A I called up someone I knew in the business office and asked them why they weren't on there and they told me calls of short intervals were not recorded. And I also asked for my own records from where I had called from work also.
THE COURT: Let me ask you something. What is your definition of a short interval?
THE WITNESS: Anything below five minutes.
THE COURT: So, in other words, all the calls that you made between 11:45 or were made to you between 11:45 and 3:15 in the afternoon, all of them were calls less than five minutes?
THE WITNESS: Yes.
THE COURT: And you did that every 45 minutes?
THE WITNESS: 45 minutes to an hour.
Q And what was the nature of the call that you made?
[PROSECUTOR]: Objection as to relevance.
THE COURT: Overruled.
A If I called, I was telling Larry, "It looks like I'm going to be able to leave." If he called me it was, "Ma, are you going to be able to meet me?" "Yes, Larry, I'll be able to meet you. I will let you know," that type of call, and hang up.
THE COURT: All of your conversations always included just those remarks?
THE WITNESS: That's it, because that's all we ever do. If he's going shopping, that's all he's interested in, is if I can leave.
Q At your job, are you fairly busy?
A Very.
Q And you mentioned on cross-examination —
THE COURT: Excuse me. . . .
Mrs. Lyons, let me ask you this: How many times had you told him that you could leave before three o'clock?
THE WITNESS: You said how many times had I told him that I could leave or couldn't?
THE COURT: That you could.
THE WITNESS: Maybe seven or eight times between, or maybe more between calls I made and the calls he made. But Larry's impatient. He wants to know. It's always been that way.
THE COURT: In other words, three times wouldn't be enough?
THE WITNESS: No, not for him.
THE COURT: All right.
. . . .
Q Now, you were asked questions with regard to what you remember that day by the District Attorney on cross-examination.
Why is it that you remember so clearly the events of that day?
. . . .
A Because when I was given the date of August 16th I knew it was close to the time that I had just returned from a cruise and I knew sometime that week that me and Larry had went shopping. It was just at that time. I didn't exactly know what date we went out.
Q And was there anything specifically that refreshed your recollection as to what date you went shopping?
. . . .
A Yes.
Q What was that?
A The bank receipt where I withdrew money.
[PROSECUTOR]: Objection, your Honor.
THE COURT: Sustained.
[PROSECUTOR]: Also move to strike the question and answer.
THE COURT: As to form.
He wants to show you what's been marked as Defendant's G. Look at it.
Have you seen it?
THE WITNESS: Yes.
THE COURT: Give her the question.
Q Now, Ms. Lyons, how did this receipt aid you in recollecting —
THE COURT: Counsel, it's not in evidence.
Q How did the receipt aid you in recollecting what happened that particular day?
[PROSECUTOR]: Objection.
THE COURT: Sustained as to form.
Q Now, I show you Exhibit G. Is this the girl [sic: receipt?] that you received on that particular day, August 16th, that you've just testified about?
THE COURT: Is that what you testified to?
THE WITNESS: Yes, that's the receipt.
THE COURT: And that, you claim, is the thing that refreshes your recollection as to what occurred?
THE WITNESS: Yes.
[DEFENSE]: At this time I would re-offer it.
THE COURT: Any objection?
[PROSECUTOR]: Yes, your Honor.
THE COURT: Overruled. Received.
(Id. at 579-82, 583-85.) And finally, on recross:
Q August 18, 1988, did you speak to [Robinson's girlfriend ("Colon")] that day?
Telephone records introduced at trial showed that a call had been made on the day of the murder at 4:43 p.m. — during the time Lyons claimed that she and Robinson were out shopping — from Lyons's home to Colon's place of employment. Lyons claimed that Colon had not worked that day, but had instead spent the day at Lyons's home. (Through a rebuttal witness, the prosecution offered Colon's time card for that day, which indicated that she had arrived at work at 10:18 a.m. Though the time card did not show when Colon left, the rebuttal witness testified that she worked for six and one half hours.) In this line of questioning, the prosecutor asks Lyons if she remembers whether Colon worked on various days before and after August 16.
A Where?
Q Anywhere.
A At work more than likely.
. . . .
Q More than likely or you did, do you remember?
A I spoke to her very regular at her job.
Q And on August 18th was she at your home?
A In the morning?
Q Between eight and five P.M.
A No, I don't believe she was that day.
Q You don't believe, or she was not, do you know?
A I'm not sure about the 18th, to tell you the truth.
Q And how about the 19th, Friday, August 19th?
A I am not sure about the 19th.
Q You don't know if she went to work that day?
A No, I don't.
Q How about August 22nd, that would be the following Monday?
A I am not sure about that day either.
Q How about the 23rd, that Tuesday, a week later?
A I'm not sure about that day either.
THE COURT: Let me ask you this: Are you sure of any days other than August 16th?
THE WITNESS: The Monday after I came back from the cruise, because I remember those two days after the cruise.
THE COURT: Other than Monday after the cruise and August 16th, are you sure of any other days?
THE WITNESS: No. I just know that I called —
THE COURT: Are you sure of any other days?
THE WITNESS: No.
(Id. at 588-90.)
Robinson also alleges that the trial court further demonstrated his disbelief of Lyons's testimony in a question during cross-examination to a defense witness from the telephone company, where Lyons worked, who was called to testify that no records were kept of calls lasting less than five minutes:
Q Isn't it true, sir, that no one employed by the Telephone Company, such as you in the security department, can testify to what calls were made from [a certain company number] to an 802 number here in Brooklyn if they were of short duration?
A That's correct, sir.
Q That would be an impossibility; isn't that true, for you or anyone in your security department?
[DEFENSE]: Object.
THE COURT: Sustained as to form.
Let me ask you something, Mr. Prehn, other than a person stating that he or she made the call, you would have no independent source by which you could verify that, would you?
THE WITNESS: No, your Honor.
(Id. at 596-97.)
In reviewing this claim de novo, I look to pre-AEDPA habeas cases involving extensive questioning by the trial court.
"[I]t is axiomatic that all criminal trials must be conducted within the bounds of fundamental fairness." Gayle v. Scully, 779 F.2d 802, 805 (2d Cir. 1985). "`It is clear that a judge does not deny a defendant due process of law by merely intervening in a trial to question witnesses. Further, it is abundantly clear that only infrequently does intervention by a trial judge rise to the level of a due process violation.'" Id. at 806 (citingJohnson v. Scully, 727 F.2d 222, 226 (2d Cir. 1984); Daye v. Attorney General, 712 F.2d 1566, 1572 (2d Cir. 1983)). Indeed, it is the responsibility of the trial judge to be more than a "mere moderator or umpire"; "he should take part where necessary to clarify testimony and assist the jury in understanding the evidence." Id. (quotation marks and alterations omitted).
The Second Circuit has repeatedly held in the habeas context that "the mere occurrence of adverse questioning" does not violate a defendant's constitutional rights:
"[E]ven the most neutrally framed questions, asked solely for clarification, may elicit answers devastating to the defendant. Moreover, a trial is not rendered constitutionally unfair every time a trial judge asks a question obviously intended to permit a witness to emphasize testimony helpful to the prosecution or clearly designed to challenge testimony favorable to the defense."Id. (alteration in original) (quoting Daye, 712 F.2d at 1572).
To justify granting the writ, "[t]he judge's intervention in the conduct of a trial must be both significant and adverse to the defense `to a substantial degree.'" Id. (quoting Daye, 712 F.2d at 1572); see also Daye, 712 F.2d at 1572 ("A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits."). Therefore, while there is "`some point . . . beyond which the quantity and nature of a trial judge's questioning renders a trial unfair in the constitutional sense,'" Robinson faces a "difficult task," as a federal court "will not lightly intervene when such a claim is asserted." Gayle, 779 F.2d at 806 (quotingDaye, 712 F.2d at 1572).
Significantly, a federal habeas court does not review a state trial judge's behavior under the same standard a federal appellate court would employ on direct review of a federal trial judge's behavior. This is so because the federal courts' "institutional considerations . . . are of a different genre than constitutional standards, and it cannot be gainsaid that we have no power or authority to apply our institutional considerations to state court proceedings." Id. at 813.
"[T]rial judge intervention will exceed federal standards of judicial propriety before transgressing the limits of fundamental fairness required by the Constitution. The distinction reflects an important facet of federalism: federal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts and lack such authority with respect to state courts. The only commands that federal courts can enforce in state courts are those of the Constitution."Id. (ellipsis omitted) (quoting Daye, 712 F.2d at 1571); see also Johnson, 727 F.2d at 226 ("[T]he constitutional standard is not transgressed as readily as the standards used by both federal and state appellate courts in exercising their supervisory authority over the administration of criminal justice within their respective jurisdictions."); Daye, 712 F.2d at 1571 (distinguishing "between the extent of trial court intervention that offends federal court standards and the more fundamentally unfair conduct that exceeds constitutional limits").
The trial court's questioning of Lyons, though overzealous, does not rise to the level of a constitutional violation underGayle, Johnson, and Daye. In Daye, the trial court intervened to allow two witnesses to reenforce the certainty of their identification of the defendant. 712 F.2d at 1568-69. On twelve separate occasions, the judge referred to the robber as "the defendant." Id. at 1569. Finally, the judge twice challenged the defendant's account of what occurred at the scene of the crime (the defendant claimed to have been a victim of the robber). Id. at 1569-70. The Second Circuit affirmed the district court's denial of Daye's petition. Id. at 1572.
In Johnson, the trial judge asked more questions than either the prosecutor or defense counsel. 727 F.2d at 225. He "frequently asked each of the State's witnesses to repeat aspects of their testimony damaging to the defendants" and "needlessly emphasized the prosecution's view of the relevance of its evidence, often discussing the evidence and the ground of its admissibility at great length in the presence of the jury." Id. "More disturbing was his challenge to [defendant's] claim of innocence. . . ." Id. In summarizing each side's evidence during the jury instructions, the trial court made the following "pointed adverse remark" while informing the jury that it could consider the defendants' living arrangement as bearing on credibility: "Do you regard [defendant Hall's] admission that she was being kept by defendant Johnson as an act of moral turpitude? Do decent, normal people carry on that way?" Id. at 226. Finally, "the entire trial was punctuated by sharp exchanges between the trial judge and defense counsel, with defense counsel frequently rebuked in the presence of the jury." Id. The Second Circuit reversed the district court, which had granted the writ, and remanded with instructions to enter judgment for the government. Id. at 227.
In Gayle, the trial judge "frequently" made statements that were "caustic and sometimes sarcastic — still other comments were gratuitous and might have been better left unsaid." 779 F.2d 802, 807 (2d Cir. 1985). Much of the court's questioning bolstered the government's case. Id. at 808-09 nn. 4-7. The court also expressed disbelief at the defendant's testimony, including "needlessly sarcastic" questioning. Id. at 810-11. The "single most offensive conduct during trial" was the conduct of the judge and prosecutor with respect to a line of inquiry regarding Rastafarians:
Q [by the prosecutor]: [Mr. Gayle, d]o you know what the Resfarians [sic] are?
MR. GALIAN: Objection.
THE COURT: Objection overruled.
A I know what the Resfarian [sic] are.
Q What are the Resfarian [sic]?
A They are some Jamaicans.
Q What are they?
A They are some Jamaicans.
Q What are they, a church group, a football team?
A I see them on the street. I know they're Jamaicans.
THE COURT: What are they, animals?
THE WITNESS: They are people.
Q Is it a group?
A It's a set of people that I see all the time.
Q Are they assassins?
MR. GALIAN: Objection, your Honor, there's no evidence —
THE COURT: Objection is overruled.
A When you say assassins, could you explain to me what that mean?
Q Killers.
A I don't know of them.
Q Are you a Resfarian [sic]?
A No.
Q Didn't you come to this country to kill Dennis Nunes?
A No.
MR. GALIAN: Objection, your Honor. This is very prejudicial.
THE COURT: The objection is overruled. The witness has answered, "No," and that is all that the jurors have before them.
MR. GALIAN: Your Honor, as this time I make a motion for a mistrial.
THE COURT: The motion is denied.
MR. GALIAN: On the basis that it is a prejudicial remark made by the D.A. with no basis for it.
MR. ROSENBAUM: I object to counsel's comments.
THE COURT: Just a moment. Let me keep the record straight. The district attorney didn't make a single remark. He asked a question. The witness answered a question.Id. at 811-12 (quotation marks omitted) (alterations in original).
The court in Gayle noted that there was neither predicate evidence nor a good-faith basis for the prosecutor's line of questioning quoted above, and that the trial judge should have quickly put an end to it. Id. at 812. The court also held that while the state court's question whether Rastafarians were "animals" was "gross and unwarranted," standing alone, it did not "fatally affect the trial." Id. Nor did the totality of events render the trial unfair, though this was a "closer question."Id. The Second Circuit therefore affirmed the district court's denial of the writ. Id. at 813.
At Robinson's trial, the judge's questioning of Lyons betrayed his disbelief of her story, but it certainly does not rise to the level of a constitutional violation under the reasoning ofDaye, Johnson, and Gayle. Lyons's testimony covered approximately seventy-two pages in the trial record. (Tr. at 504-30, 546-90.) The trial court asked questions of Lyons on twenty-four of these pages (id. at 506, 515-17, 526-30, 550, 552-53, 561, 567, 572-74, 580-82, 584-85, 589-90), the majority of which were unobjectionable. See Daye v. Attorney General, 712 F.2d 1566, 1568 (2d Cir. 1983) ("The number of questions asked by the judge is not determinative . . . though the degree of intervention provides the context in which the risks of adverse questioning should be assessed."). Based on Second Circuit precedent in the habeas context, this amount of questioning is relatively limited. See Johnson v. Hall, 727 F.2d 222, (2d Cir. 1984) ("[The trial judge] asked more questions than either the prosecutor or the defense attorneys."); Daye, 712 F.2d at 1568 ("[O]f the 478 pages reflecting examination of witnesses, on 192 pages Justice Roberts asked no questions. . . ."), 1572 ("[Q]uestioning by the trial judge . . . went beyond routine clarification . . . on only 29 of the 478 pages of witness examination.").
Furthermore, a trial judge "is under no obligation to test every witness's recollection with equal thoroughness." Gayle, 779 F.2d at 813. In Gayle, the court noted that the defendant's testimony "exhibited far more internal inconsistency than that of any other witness during the trial." Id. Here, Robinson's mother testified that, during the period of time surrounding the commission of the crime — i.e., from 11:45 a.m. until 3:00 p.m. — Robinson called her every forty-five minutes, and she called him back every thirty minutes or so. Although the court's questioning placed in clearer relief the fact that the defendant's mother was providing a somewhat improbable alibi for her son, it did not render the trial constitutionally infirm. Cf. id.
As in Daye, there was here "some risk that some jurors might have thought that [the trial judge] was persuaded of the defendant's guilt." 712 F.2d at 1572. However, the statements by the trial court in this case do not approach in either number or degree the questions and statements of the trial courts inDaye, Johnson, and Gayle. Rather, while the trial court's questioning here was unfortunate, it "was neither significantly helpful to the prosecution," id., which could have easily impeached Lyons's story itself, "nor devastating to the defense,"id., which had other witnesses of its own as well as internal inconsistencies in the government's witnesses' testimony to exploit. Furthermore, the jurors "were not told nor given a basis from which to infer that they ought to shade their judgment to accommodate what may well have been the judge's view of the defendant's guilt." Id. Therefore, even reviewing this claim de novo, the trial judge's conduct "did not cross the line that permits [me] to rule that the Constitution has been violated," id., and thus, this claim does not justify issuance of the writ.
5. Erroneously Excluded Evidence
Robinson focuses on two instances of excluded testimony. First, he argues that Robinson's mother should have been allowed to testify that Robinson did not own white shorts. Second, he argues that he should have been allowed to present expert testimony on the unreliability of eyewitness testimony.
Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously excluded evidence warrants habeas relief only if the omission deprived the petitioner of a fundamentally fair trial. Estelle v. McGuire, 502 U.S. 62, 72 (1991); Taylor v. Curry, 708 F.2d. 886, 891 (2d Cir. 1983). The test for determining whether erroneous evidentiary rulings denied the defendant a fair trial centers on whether the excluded evidence would have created "a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112 (1976).
a. The White Shorts
At trial, all of the eyewitnesses to the murder agreed that the black perpetrator was wearing white shorts. At trial, the court precluded Lyons from testifying that Robinson neither owned nor wore white shorts. Robinson contends that this was error, and that it deprived him of his due process right to present a defense. Robinson's attorney's attempt to introduce testimony from Lyons as to whether Robinson owned white shorts is as follows:
The state court did not expressly deny this claim on the merits. Rather, this claim was denied as one of Robinson's "remaining contentions" as "either unpreserved for appellate review or without merit." Robinson, 670 N.Y.S.2d at 882. Here, however, in contrast to the claim of trial court bias, the prosecutor did not argue on appeal that this claim was procedurally barred, presenting only a merits-based argument to the Appellate Division. As it is clear from the record that the Appellate Division denied this claim on the merits, its decision is accorded AEDPA deference. See Ryan v. Miller, 303 F.3d 231, 246 (2d Cir. 2002); see also Shih Wei Su v. Filion, 335 F.3d 119, 126 n. 3 (2d Cir. 2003); supra note 8.
Q Now, have you ever known Larry [i.e., Robinson] to wear white shorts?
[PROSECUTOR]: Objection, your Honor.
THE COURT: Sustained.
Q Are you familiar with your son's clothing wardrobe?
A Yes.
Q And how are you familiar with his wardrobe?
[PROSECUTOR]: Objection, your Honor.
THE COURT: Sustained.
Q Have you ever seen Mr. Robinson in possession of shorts?
[PROSECUTOR]: Objection.
THE COURT: I don't understand your question.
[DEFENSE]: Shorts, like pants, short pants, three-quarter length pants.
THE COURT: Sustained.
You mean the outer shorts?
[DEFENSE]: I'm talking about the type of shorts —
THE COURT: I said the ones that you wear on the outside?
[DEFENSE]: Yes.
THE COURT: Sustained.
[DEFENSE]: May we approach, your Honor?
THE COURT: No, I don't want you to approach.
[DEFENSE]: I'm confused by your ruling.
[PROSECUTOR]: Objection.
THE COURT: Next question.
(Tr. at 518-19.) Later, the trial court explained the basis for his ruling:
THE COURT: It's totally irrelevant. She doesn't know what he owns. She can only testify what she has seen. He may have decided to wear shorts between August 7th and August 14th.
[DEFENSE]: That's for the jury to determine. She testified that she takes care of his clothes.
THE COURT: Totally irrelevant.
[DEFENSE]: Then I would like to reopen my direct examination for the purpose of laying a foundation as to what she knows about his clothing.
THE COURT: Forget it. It's totally irrelevant. That's an exercise in futility.
[DEFENSE]: Is this Court ruling on that question on the grounds of irrelevancy?
THE COURT: I told you it was totally irrelevant at the time I made the ruling. That's the end of it. It's all in the record, everything I said.
[DEFENSE]: Irrelevant, you mean, as to whether or not he owned a pair of shorts, or the answers that she would give?
THE COURT: The whole thing is irrelevant to the case at hand The only issue here is for her to try to establish an alibi for Mr. Robinson and she said from 11:45 until she saw him coming, about three o'clock, she talked with him off and on. When she called, he was there. When he called, she was there.
The jury must believe that he was able to run all the way from where he came or drive from where he was to Prospect Park, commit this murder, drive home and be there when his mother called.
If they believe her, then he couldn't have done it, because he was home.
[DEFENSE]: I'm not using her as an alibi witness, your Honor.
THE COURT: What are you using her for?
[DEFENSE]: I'm using her to establish the improbability that this individual would have committed a murder in Prospect Park and then met his mother and gone shopping and presumably eaten pizza immediately afterwards, after he had just committed a murder.
It's for the jury to determine whether this is probable or not.
[PROSECUTOR]: Your Honor, when defense was asking for motions in limine, in fact, if defense wants to make that argument that he could not have committed this crime and then have gone about his business and would even try to elicit that from the mother, what he might do is open the door to any prior acts and determine what the defendant acted like soon after that in the eyes of the mother.
THE COURT: What counsel is trying to do by indirection is what he can't do by direction.
[PROSECUTOR]: So the Court is aware, given the fact that this is not an alibi witness —
THE COURT: She is an alibi witness.
[PROSECUTOR]: Your Honor, she says she saw him about 4:05 to 4:20 P.M.
THE COURT: She's testifying that he could not have been two places at one time because he was home all the time making calls to her and she was calling him.
[DEFENSE]: She didn't testify where he was at 2:50.
THE COURT: She testified he called her every 45 minutes, and she called him back every 30 minutes and he was there.
[PROSECUTOR]: She said until about 3:15 P.M. she spoke to him the last time.
THE COURT: That's right.
. . . .
[DEFENSE]: . . . I really felt that — and, possibly, I didn't lay a sufficient foundation for the clothing issue, the shorts, but it seemed to me that if I —
THE COURT: Has nothing to do with the case. She wasn't there. Has nothing to do with the case. He never wore shorts before?
[DEFENSE]: If he did testify that she buys his clothes, she washes his clothes, she is aware of what he wears, and she has never seen a pair of shorts.
THE COURT: How old is your client?
[DEFENSE]: 23 now.
THE COURT: When I was 23 I ha[d] a set of clothes at home and a set of clothes other places. So, that doesn't mean anything about what he wears.
[DEFENSE]: I'm just saying that, sure you could argue that he may have had shorts elsewhere, a place elsewhere, but the testimony is he lived at home.
THE COURT: You can't argue anything because she can't even get it in.
(Id. at 538-40a, 543-44.)
Though I believe that the trial court's exclusion of this evidence was error, I cannot say that its admission would have created a reasonable doubt that did not otherwise exist without it. First, the testimony would have come from Robinson's mother, who, as the jury was of course aware, had every incentive to provide testimony useful to her son's defense. As with respect to her implausible alibi testimony, the jury could have considered her relationship to Robinson in judging her credibility and determining what weight to give her testimony. Second, had Lyons testified that she had neither purchased white shorts for Robinson nor ever seen him wear white shorts, the prosecutor almost certainly would have impeached that testimony on cross-examination by asking, for instance, whether Robinson had ever purchased clothes on his own, or whether it was possible that he had kept clothes at his girlfriend's home or the home of a friend. Had Lyons answered that these scenarios were not possibilities, the prosecutor could have argued that such a categorical answer implicated Lyons's credibility; had she answered that they were possibilities, the prosecutor could have argued that not only were they possibilities, but that that was exactly what had happened here.
Defense counsel's claim in the quoted colloquy that Lyons was not an alibi witness was less than candid. The obvious implication of Lyons's testimony about the numerous calls back and forth to her son on the afternoon of the murder was that Robinson was home at the time of the murder.
I pose these hypotheticals only to demonstrate that Robinson cannot carry his burden of showing that the omission deprived him of a fundamentally fair trial. Estelle v. McGuire, 502 U.S. 62, 72 (1991). For the reasons described above, the proffered evidence itself was not so damaging to the government's case, the witness was too interested, and impeachment was too easy to allow me to conclude that the excluded evidence would have created "a reasonable doubt that did not otherwise exist" in its absence.United States v. Agurs, 427 U.S. 97, 112 (1976).
b. The Expert Testimony
Prior to trial, Robinson, who had retained counsel, moved for the court to appoint an expert in the field of eyewitness identification. The court denied the motion on the grounds that Robinson had not filed an application setting forth his financial condition, and because no clear reasons were provided for the need for such a witness. Robinson submitted a renewed motion including an affidavit of indigence, but that motion was also denied. Robinson contends that this decision deprived him of his right to present a complete defense. I disagree.
Like Robinson's claim regarding Lyons's excluded testimony, this claim was denied by the Appellate Division as "either unpreserved for appellate review or without merit."Robinson, 670 N.Y.S.2d at 882. It is clear from the record, however, that the Appellate Division denied the claim on the merits. See supra notes 8, 12. I therefore accord the Appellate Division's decision AEDPA deference.
Though Robinson is correct that only one witness, Neptune, was able to identify Robinson, his argument has several fatal defects. First, the admissibility of such expert testimony is the subject of disagreement among courts. Thus, Robinson cannot show that the decision not to allow him to present it was contrary to clearly established Supreme Court law. Second, Robinson ignores the fact that Neptune had known Robinson from the neighborhood before the murder, and had called the police upon seeing him after the murder, i.e., before being shown photos of him. (Tr. at 293-94, 307-12; Apr. 19, 1991 Hr'g Tr. at 43-44, 48.) Thus, expert testimony casting doubt on the identification procedures used by the police would have been of little utility because there were ample indicia that the identification was independently reliable. Accordingly, the trial court was well within its discretion to exclude it.
Compare United States v. Welch, 368 F.3d 970, 975 (7th Cir. 2004) (holding that the usefulness of such evidence is best determined on a case by case basis, with great weight afforded the trial court's decision), United States v. Mathis, 264 F.3d 321, 340 (3d Cir. 2001) ("[E]xperts who apply reliable scientific expertise to juridically pertinent aspects of the human mind and body should generally, absent explicable reasons to the contrary, be welcomed by federal courts, not turned away."), and United States v. Smithers, 212 F.3d 306, 311-12 n. 1 (6th Cir. 2000) (describing a trend towards admitting such evidence), with Buell v. Mitchell, 274 F.3d 337, 359 (6th Cir. 2001) ("[A] habeas petitioner does not have a constitutional right to the presentation of expert testimony on the reliability of eyewitness identification."), United States v. Harris, 995 F.2d 532, 534-35 (4th Cir. 1993) (holding that except in narrow circumstances, such evidence "almost by definition, can be of no assistance to the jury"), and United States v. Serna, 799 F.2d 842, 850 (2d Cir. 1986) (holding that while the decision to admit such evidence rests in the trial court's sound discretion, it is properly excluded when the proposed testimony "basically consisted of general pronouncements about the lack of reliability of eyewitness identification" or contained "conclusions [that] coincided with common sense").
6. Erroneous Jury Instruction
Robinson makes two arguments with respect to the court's instructions. First, he argues that the court should have instructed the jurors that they could consider Robinson's failure to flee the neighborhood, despite knowing he was a suspect in the case, as evidence of his "consciousness of innocence." (Pet. Mem. at 66.) Second, he argues that the court improperly shifted or lessened the government's burden of proof.
Both of these claims were denied as "either unpreserved for appellate review or without merit." Robinson, 670 N.Y.S.2d at 882. Furthermore, the record is unclear as to which grounds the Appellate Division relied on in denying the claims. However, as these claims fail even when reviewed de novo, as I do below, I need not address whether they should be accorded AEDPA deference.See supra note 8.
I would note, however, that the "consciousness of innocence" argument seems to have been preserved in the state courts. At the close of the evidence, the defense attorney requested that, as the court was going to instruct the jury on flight and consciousness of guilt, it also charge the jury that Robinson's failure to leave the neighborhood evidenced his consciousness of innocence. It therefore appears that the Appellate Division's denial of this claim should be accorded AEDPA deference. However, as stated above, I review the claim de novo.
In order to obtain a writ of habeas corpus based on an error in the state court's instructions to the jury, Robinson must show that the error violated a right guaranteed by federal constitutional law. See Cupp v. Naughten, 414 U.S. 141, 146 (1973); Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). The relevant issue is not whether the instruction was "undesirable" or "erroneous," but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147. "In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context." Brooks v. Ricks, No. 00-CV-3746, 2003 U.S. Dist. LEXIS 13646, at *11 (E.D.N.Y. July 29, 2003) (citing Cupp, 414 U.S. at 146-47).
a. Consciousness of Innocence
Robinson argues, in essence, that the trial court's refusal to give a "consciousness of innocence" instruction amounted to a refusal to charge the theory of the defense. It did not. Rather, it amounted only to a wholly permissible refusal not to highlight the particular evidence in the charge.
While a defendant at trial "is entitled to instructions relating to his theory of defense, for which there is some foundation in the proof," United States v. Dove, 916 F.2d 41, 47 (2d Cir. 1990), "a conviction will not be overturned for refusal to give a requested charge unless that instruction represents a theory of defense with basis in the record that would lead to acquittal," United States v. Bok, 156 F.3d 157, 163 (2d Cir. 1998). Reversal is required only where "the instructions, taken as a whole, caused a defendant prejudice."Id. at 160.
At trial, evidence was presented to the jury that Robinson remained in the neighborhood after the crime. Robinson's attorney emphasized that evidence at length during his summation, arguing that the jury should infer Robinson's lack of guilty knowledge from his continued presence. (Tr. at 658-62.) Nothing in the charge impaired that argument. The charge sought by Robinson was not a defense-theory charge, but a charge that a particular inference was permissible from a fact in evidence. No error was committed when the request was denied. Moreover, Robinson fails to allege any prejudice resulting from the absence of the requested charge.
b. Improper Burden Shifting
Robinson points to the following portion of the jury instruction in arguing that the trial court unconstitutionally shifted or lessened the burden of proof:
Now, this is what we call a defense which is commonly known as an alibi. It is the contention that at the time of the commission of the alleged crime, the defendant was elsewhere than at the scene of the alleged crime. An alibi, if believed by you, is the best defense the defendant could possibly have because, obviously, a defendant cannot be in two different places at the same time.
The alibi evidence which the defendant has placed before you has for its purpose to convince you that the defendant was elsewhere at the time of the alleged crime and, therefore, could not possibly have committed the acts charged.
Whether you believe that he was or was not present and, therefore, could or could not have done that which he is charged with having done is for you to determine, along with all the other facts in the case. If, therefore, the alibi evidence raises a reasonable doubt in your mind as to whether this defendant participated in the crime or was present at the time and place when and where the crime is charged to have been committed, he should be acquitted. He is entitled to have this evidence treated just as any other evidence.
(Tr. at 760-61.)
Robinson ended the quotation there in his petition. But the instruction continues as follows:
He [i.e., Robinson] is not obliged to establish that it was impossible for him to have committed the acts charged. The prosecution at all times has the burden to establish the defendant's guilt beyond a reasonable doubt and this includes all the elements of the crime, including his presence at th[e] place and his committing or participating in the commission of certain acts in that place sometime in the day referred to in the indictment.
Even if considering all the evidence which he has presented you, you believe it might still have been possible for him to have committed the crime charged, it is your duty to determine whether the People, the prosecution, have established his guilt beyond a reasonable doubt that the defendant committed or participated in the commission of the crime charged. Just as any other evidence, you are to weigh the effects of such evidence and determine the credibility of all the witnesses.
Bear in mind that the burden is not upon the defendant to establish his alibi but that the burden is upon the People to establish beyond a reasonable doubt that this defendant was actually at the scene of the commission of the crime and did participate in its commission.
(Id. at 761-62.) The instruction, viewed as whole, belies Robinson's claim that the trial court improperly placed on him the burden of proving his innocence, or in any way lessened the government's burden to prove his guilt beyond a reasonable doubt.
7. Ineffective Assistance of Counsel
Finally, Robinson claims that his trial counsel provided ineffective assistance by failing to (1) inform Robinson that he had the right to testify and that the decision whether to exercise that right was solely Robinson's; and (2) object to the trial court's questioning of Lyons and the court's alibi charge.
Robinson originally raised this claim in a post-conviction motion to vacate his conviction brought pursuant to New York Criminal Procedure Law § 440.10. The Supreme Court, Kings County, denied these claims for the following reasons:
The complaint about counsel's failure to object to the trial court's allegedly excessive questioning during the trial was deemed by the Appellate Division to be either without merit or unpreserved for Appellate Review. Moreover, the record before the court indicates that the court's questioning was equally divided between direct and cross-examination, and the court's questioning of defendant's mother was neither biased nor inflammatory.
. . . . The complaint that counsel's failure to object to the trial court's instruction on the defense of alibi resulted in ineffective assistance of counsel is refuted by the trial transcript in this case. At page 762 the court instructed the jury that the burden of proof remains with the prosecution to establish beyond a reasonable doubt that the defendant was actually at the scene of the crime and did participate in its commission. Even if counsel objected to the trial court's language he would have been overruled and the failure to object did not violate defendant's right to meaningful representation.New York v. Robinson, No. 3500/89, slip op. at 5-6 (N.Y.Sup.Ct. Feb. 17, 2000).
I do not set forth the court's decision on the claim that trial counsel failed to inform Robinson of his right to testify. I held an evidentiary hearing on that point, and my findings and conclusions are discussed below.
a. The Ineffective Assistance Standard
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, Robinson must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,"id. at 694. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 2535 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 2535 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
b. The Application of the Standard
i. Failure to Inform Robinson That He Had the Right to Testify
On August 24, 2001, I held an evidentiary hearing on the question of what Robinson's trial attorney told him regarding his right to testify at trial. I made the following findings of fact:
I credit the testimony of [trial counsel] in its entirety. He testified that he had a preference for the defendants to take the witness stand He also testified that he discussed at some length, on multiple occasions. I believe he said two or three times with Mr. Robinson whether or not he should testify. It is true that he advised him, that [trial counsel] advised Robinson not to testify.
I credit his testimony that he had a practice that he followed, that he would never tell a defendant not to testify or that he could not.
I credit his testimony that the decision not to testify was a decision that was made by Robinson. This is information that was, in essence, imparted to the Judge during the course of the trial.
I find that Robinson knew that he had a right to testify. He had exercised that right albeit in a hearing in another case, but he had exercised it prior to the trial, the second trial in this case.
I note that the testimony of [trial counsel] is not at all necessarily inconsistent, and I am not sure it is really arguably inconsistent with the testimony of the petitioner's mother. Of course, she was not present for all of the conversations between Robinson and [trial counsel], between her son and [trial counsel]. At bottom the conversation that she testified about was, as she put it at one point, that the lawyers stated to Mr. Robinson that it wouldn't be advisable for him to testify. They wouldn't want to put him on the stand
These are the sorts of statements made between a defense lawyer and clients that might readily be perceived by a layperson as a statement that he could [sic: could not] testify. I don't place a lot of significance in that perception, if that was Mrs. Robinson's [sic: Lyons's] perception.
For similar reasons, the statement by Berman [a family friend and former attorney who Lyons originally retained for Robinson and who brought trial counsel in as lead counsel] that he actually stated to Mr. Robinson and, of course, Berman was not present for all of [trial counsel]'s discussions on the subject with Robinson either. But similarly, Berman's statement that he told Robinson that he can't testify, I mean, as lawyers if these words are parsed in retrospect, one could say that a statement to a defendant that he can't take the witness stand is a prohibition that he take the stand despite his expressed desire to do so. But that is not what happened here. That is not the proper characterization in the real world of what happened. As Berman said himself, he said that not by way of telling his client that he couldn't take the witness stand even if he wished to do so, but by way of a lawyer's efforts to persuade a client away from doing something that the lawyer felt is inadvisable to do. It happens all of the time in this setting and certainly, in my judgment, did not rise to the denial of the defendant's choice, of the denial of the defendant of his right to make the choice whether or not to testify. This was a lawyer's persuasion of his client. There are ample reasons in retrospect, certainly, folks might disagree as to the wisdom of the tactic or the wisdom of the advi[c]e but retrospect hindsight is 20[/]20. There is ample reason to give that advice, including his priors, and including the fact that he managed to, apparently, persuade 11 jurors in the first case without testifying. There are plenty of reasons why a lawyer might give that advice. That is what it was, it was advi[c]e. It wasn't an abrogation of the client's right to choose whether or not to take the witness stand
(Aug. 24, 2001 Hr'g Tr. at 137-40.)
Based on these findings, there is no merit to Robinson's claim that his trial attorney told him he could not testify at trial, or that his attorney failed to inform him that he had that right.
ii. Failure to Object to the Trial Court's Questioning
Nor was the state court's holding that Robinson's attorney was not ineffective for failing to object unreasonable. Any trial attorney should be wary of conflict with the judge in front of the jury. Few things are more important to effective trial advocacy than winning the trust of the jury. As the judge is one of the few people in the courtroom that the jury immediately trusts, openly provoking him or her can be fatal to that goal and do great damage to the case. This is only one reason that an attorney could decide that objecting to the judge's questions is poor strategy. Another, of course, is that the very act of objecting often highlights for the jury the very thing the advocate wants the jury to be instructed to ignore. Robinson's attorney was therefore not ineffective for failing to object to the court's questions.
Robinson's contention that his trial attorney was ineffective for failing to object to the alibi instruction is denied based on my analysis of the merits of the underlying claim, i.e., that there was no error in the court's alibi charge.See supra Part B.6.b.
Besides the claims discussed above, Robinson's petition includes claims based on (1) Neptune's lineup identification, (2) limitations placed on Robinson's cross-examination of Andre, (3) the trial court's failure to charge the jury as to the "nonkiller" affirmative defense to felony murder, and (4) prosecutorial misconduct. Robinson's attorney expressly stated, at oral argument on June 11, 2004, that he is no longer pursuing these claims.
CONCLUSION
For the foregoing reasons, the petition is denied. As Robinson has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.So Ordered.