Opinion
04 Civ. 4354 (SAS) (JCF).
June 9, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE SHIRA A. SCHEINDLIN, U.S.D.J.:
David Rosa brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial in New York State Supreme Court, Bronx County, the petitioner was convicted of murder and criminal possession of a weapon. He challenges his conviction on the grounds that: (1) he was denied a fair trial by the court's admission into evidence of his past convictions; (2) the court improperly allowed the prosecution to introduce an uncharged illegal drug transaction to establish the identity of the petitioner; and (3) his due process rights were violated when the court limited his cross-examination of a prosecution witness at a pretrial hearing. For the reasons set forth below, I recommend that the petition be denied.
Background
On June 4, 1999, Robert Vasquez and David Cox observed a man named Robert Vargas argue with and then slap the petitioner. (Petitioner's Appellate Brief ("Pet. App. Brief"), attached as Exh. 1 to the Affidavit of Susan Baumgartner dated Nov. 18, 2004 ("Baumgartner Aff."), at 20; Respondent's Appellate Brief ("Resp. App. Brief"), attached as Exh. 2 to Baumgartner Aff., at 6). Shortly thereafter, Mr. Vasquez watched the petitioner return to the area with a handgun. (Pet. App. Brief at 20; Resp. App. Brief at 6). Mr. Vasquez then heard one of the petitioner's companions yell that Mr. Vargas was in a nearby car. (Pet. App. Brief at 20; Resp. App. Br. at 7). As Mr. Vargas drove away, Mr. Rosa began shooting at the car. (Resp. App. Brief at 7). Mr. Vargas fled the scene unharmed, but a stray bullet hit and killed a woman who was sitting in a city park behind the car. (Pet. App. Brief at 20-21; Resp. App. Brief at 7).
The respondent has not submitted the trial transcript. However, because the parties do not disagree as to the facts revealed in the record, I will refer to their appellate briefs in summarizing the factual background.
The next day, June 5, Mr. Vasquez was arrested on an unrelated charge, and while incarcerated he informed a police officer that he had witnessed the shooting. (Pet. App. Brief at 21; Resp. App. Brief at 8). On June 8, Mr. Rosa was arrested, and on the same day, Mr. Vasquez identified him in a lineup. (Pet. App. Brief at 21; Resp. App. Brief at 8). Mr. Vasquez subsequently identified the petitioner at trial.
The identity of the petitioner was also corroborated by Mr. Cox, the only other eyewitness. (Pet. App. Brief at 22). Mr. Cox had also been arrested on an unrelated charge, and, while in jail, informed an officer that he had observed the crime. Mr. Cox also saw Mr. Vargas slap the petitioner, subsequently heard gunshots, and saw the victim fall. (Pet. App. Brief at 22; Resp. App. Brief at 7). After the shooting, he saw the petitioner walk slowly away from the scene. (Pet. App. Brief at 22; Resp. App. Brief at 7).
Additionally, the identification of the petitioner was aided by a security camera installed in a bodega near the scene. (Resp. App. Brief at 6).
On March 29, 2001, a Wade hearing was held to determine whether the pretrial identification procedure employed by the police was suggestive. The only witness at the hearing was Detective William Brusack. The petitioner sought to elicit testimony from Detective Brusack regarding the circumstances of the arrests of Mr. Vasquez and Mr. Cox, but the court barred any such inquiry, ruling that it was collateral to the issue of the suggestiveness of the pretrial identification procedure employed by the police. (Wade Tr. at 50).
See United States V. Wade, 388 U.S. 218 (1967). The transcript of that proceeding is designated "Wade Tr."
The court also held a Sandoval hearing to determine whether the petitioner could be cross-examined about his prior convictions, should he choose to testify. Between 1992 and 1998, Mr. Rosa had been convicted of assault as a youthful offender, two drug felonies, five drug misdemeanors, and misdemeanor contempt, trespass, and mischief charges. (Resp. App. Brief at 12).
See People v. Sandoval, 34 N.Y.2d 371, 537 N.Y.S.2d 849 (1974).
With respect to the felonies, the trial court limited questioning to the fact of conviction and permitted no inquiry into the underlying circumstances. (Resp. App. Brief at 13). As to the misdemeanors, the court ruled that the prosecutor could elicit that the petitioner was convicted of four misdemeanors between 1993 and 1995, and that he was convicted of two misdemeanors in 1998. (Resp. App. Brief at 13). The court did, however, allow the prosecutor to inquire into the facts underlying the contempt and mischief convictions. (Resp. App. Brief at 13).
Finally, the court held a Molineux hearing to determine whether any uncharged crimes or bad acts attributable to Mr. Rosa could be introduced for the purpose of establishing his identity. The prosecution sought to elicit testimony establishing that Mr. Vasquez knew the petitioner because he had frequently bought drugs from him. (Pet. App. Brief at 28). The court ruled that the only method by which the petitioner could avoid such testimony being admitted at trial was to stipulate that he had some relationship with Mr. Vasquez. (Petitioner's Reply Memorandum in Further Support of Petitioner's Writ of Habeas Corpus ("Pet. Reply Memo.") at 21). The petitioner refused to stipulate, and therefore Mr. Vasquez was allowed to testify at trial that he knew the petitioner because he had bought drugs from him. (Resp. App. Brief at 25).
See People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901).
On May 16, 2001, the petitioner was convicted after a jury trial of one count of Murder in the Second Degree in violation of New York Penal Law § 125.25(1) and one count of Criminal Possession of a Weapon in violation of Penal Law § 265.03, and he was sentenced to concurrent terms of imprisonment of 25 years to life and 15 years, respectively. People v. Rosa, 299 A.D.2d 161, 753 N.Y.S.2d 359 (1st Dep't 2002).
The petitioner appealed to the Appellate Division, First Department, claiming that he was denied a fair trial because: (1) the admission of his prior convictions prevented him from testifying on his own behalf; (2) the trial court erroneously admitted testimony that Mr. Vasquez had bought drugs from him; and (3) the trial court precluded inquiry regarding the arrests of Mr. Vasquez and Mr. Cox. (Pet. App. Brief). On November 7, 2002, the Appellate Division affirmed Mr. Rosa's conviction.Rosa, 299 A.D.2d at 161, 753 N.Y.S.2d at 359. As to all three issues, the Appellate Division held that the trial judge had properly exercised his discretion. Id. at 161, 753 N.Y.S.2d at 359. On December 13, 2002, Mr. Rosa sought leave to appeal to the Court of Appeals. (Letter of Robert Carrigan dated Dec. 13, 2002 ("Leave Letter"), attached as Exh. 3 to Baumgartner Aff.). The Court of Appeals denied leave to appeal on January 30, 2003.People v. Rosa, 99 N.Y.2d 585, 755 N.Y.S.2d 721 (2003). Mr. Rosa then filed the instant petition, raising the three issues that he raised before the Appellate Division.
The prosecution opposes the petition on the merits and has also moved to dismiss it on the basis that the claims are all unexhausted and procedurally defaulted. The petitioner has responded with a request to stay the petition without prejudice. Specifically, Mr. Rosa asks that the Court hold his petition in abeyance so that he can return to the state courts to file a writ of error coram nobis, based on the ground that his appellate counsel was ineffective for failing to present his claims to the Appellate Division in federal constitutional terms. (Pet. Reply Memo. at 1-2).
Discussion
A. Exhaustion and Procedural Default
The respondent argues that Mr. Rosa's claims should be deemed unexhausted because his application for leave to appeal to the Court of Appeals did not specify the claims he wished the court to review and because he did not present his arguments in federal constitutional terms. The respondent further contends that the claims are now procedurally barred due to the fact that, in New York, a criminal defendant is entitled to only one application to the Court of Appeals.
The respondent's argument that all of the petitioner's claims are unexhausted because his letter seeking leave to appeal was not sufficiently specific is no longer viable. It was previously unclear whether, when a petitioner merely attached his Appellate Division brief to his application for leave to appeal and did not specify which claims he sought to appeal, he had exhausted all of his claims for purposes of habeas review. That uncertainty was resolved earlier this year in Galdamez v. Keane, 394 F.3d 68 (2d Cir. 2005). In that case the Second Circuit held that state court remedies are deemed exhausted if a petitioner submits his appellate briefs with the leave application, notwithstanding the fact that the letter does not identify the particular issues for which review is sought. The court stated that "today we resolve a disagreement among the district courts and hold that [the petitioner] properly exhausted his state court remedies as required by § 2254(b)(1) and (c) when he submitted his Appellate Division briefs with his letter application for leave to appeal to the New York Court of Appeals, notwithstanding that the letter did not identify particular issues for that court's review."Id. at 71-72.
The respondent also argues that the claims should be deemed unexhausted because they were not presented to the state appellate courts in federal constitutional terms. The exhaustion requirement is satisfied when the federal claim has been "fairly presented" to the state courts. Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982). A petitioner will have met the exhaustion requirement without citing the United States Constitution "chapter and verse" to the extent that he (a) relied on federal cases, (b) relied on state cases that draw on federal constitutional analysis, (c) asserted the claim in a way that calls to mind a specific right protected by the Constitution, or (d) alleged a pattern of facts that is well within the mainstream of constitutional litigation. St. Helen v. Senkowski, 374 F.3d 181, 182-83 (2d Cir. 2004) (per curiam).
Mr. Rosa's claim that the trial court erred in precluding inquiry into the arrests of Mr. Vasquez and Mr. Cox at the Wade hearing was fairly presented to the state appellate courts. In his brief to the Appellate Division, the petitioner explicitly relied on Brady v. Maryland, 373 U.S. 83 (1963). (Pet. App. Brief at 36). He also cited a state case, People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893 (1979), that relies on federal constitutional analysis. In that case, the court found that the defendant's claim implicated "the constitutional and statutory guarantees of compulsory process and ultimately, the companion right of confrontation," and cited the Sixth Amendment and two Supreme Court cases. Id. at 546, 423 N.Y.S.2d at 895.
Mr. Rosa also fairly presented the federal nature of his claim that the trial court erred in holding that his prior convictions could be admitted. In his appellate brief, he claimed that this decision prevented him from testifying on his own behalf. (Pet. App. Brief at 25). This characterization "call[s] to mind a specific right protected by the constitution." St. Helen, 374 F.3d at 183. In Rock v. Arkansas, 483 U.S. 44 (1987), the United States Supreme Court ruled that a right to testify is rooted in the United States Constitution. The Court held that the right is a corollary to the Fifth Amendment right to remain silent and the Sixth Amendment right to present witnesses in the defendant's favor. Id. at 53-54. The Court further found that the right to testify is protected by the Fourteenth Amendment as "one of the rights that are essential to due process of law in a fair adversary process." Id. at 51.
By contrast, Mr. Rosa did not present the state courts with the federal nature of his claim that the testimony that Mr. Vasquez had bought drugs from him was improperly admitted. In his appellate brief, Mr. Rosa did not rely on any federal cases or any state cases that employ constitutional analysis. (Pet. App. Brief at 28-33). He characterized the claim as a denial of a fair trial, but "alleging lack of a fair trial does not convert every complaint about evidence . . . into a federal due process claim."Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir. 1982); Smith v. Smith, No. 02 Civ. 7308, 2003 WL 22290984, at *6 (S.D.N.Y. Sept. 29, 2003); DeLeon v. Duncan, No. 99 Civ. 9086, 2001 WL 1029400, at *8 (S.D.N.Y. Sept. 5, 2001). If a "habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court." Duncan v. Henry, 513 U.S. 364, 366 (1995). To be sure, the exhaustion requirement may nevertheless be satisfied where the "legal standards for [a petitioner's] federal and state claims were so similar that, by presenting his state claim, he also presented his federal claim," Jackson v. Edwards, 404 F. 3d 612, 621 (2d Cir. 2005), but that is not the situation here. Mr. Rosa argued in state court under state law that the admission of the uncharged crime was error because the prejudicial value of the evidence outweighed its probative value. (Pet. App. Brief at 28-33). This is the state law standard under Molineux, 168 N.Y. at 293-94, and People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 264 (1981). The federal due process standard, however, requires that a violation be predicated upon proof that error resulting from improperly admitted evidence was "so pervasive as to have denied [the defendant] a fundamentally fair trial." Collins v. Scully, 755 F. 2d 16, 18 (2d Cir. 1985).
Mr. Rosa's claim is procedurally defaulted because New York State law disables him from returning now to state court to assert the federal nature of his claim. N.Y. Crim. Proc. Law § 440.10(2)(c) (collateral procedures unavailable to defendant who could have raised a claim on direct review but neglected to do so); DeLeon, 2001 WL 1029400, at *9. Thus, there is no reason to stay the petition to allow the petitioner to return to state court to exhaust this claim. And, even if there were no procedural bar, the application for a stay should nevertheless be denied because the unexhausted claim is plainly without merit. The Antiterrorism and Effective Death Penalty Act (the "AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), allows a district court to deny a petition despite the existence of unexhausted claims if the claims are without merit. 28 U.S.C. § 2254(b)(2) ("[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State"). As will be discussed below, Mr. Rosa's due process claim based on the admission of uncharged crimes is entirely groundless, so it would serve no purpose to stay a determination while he exhausted that claim in the state courts.
B. Merits
Prior to passage of the AEDPA, factual findings made by a state court after an evidentiary hearing were presumed correct in a federal habeas proceeding, but federal courts were not required to defer to state court determinations of law and of mixed questions of law and fact. See Thompson v. Keohane, 516 U.S. 99, 107-12 (1995); Brown v. Artuz, 283 F.3d 492, 497 (2d Cir. 2002). Under the AEDPA, however, a writ of habeas corpus may not issue "with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
A decision is contrary to clearly established Federal law if it "contradicts the governing law" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from" the Supreme Court. [Williams v. Taylor, 529 U.S. 362,] 4050-6 (2000). An unreasonable application of federal law is more than an incorrect application, but the petitioner need not show that all reasonable jurists would agree that a state court determination is incorrect in order for it to be unreasonable. Id. at 409-12. Instead, a federal court should review a state court's interpretation of federal law using a standard of objective reasonableness. Id. at 409. Objective unreasonableness includes an unreasonable refusal "to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d 36, 45 n. 2 (2d Cir. 2002). The "increment of incorrectness beyond error . . . need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002).
The AEDPA standard applies to this case since Mr. Smith filed his petition after the Act's effective date. See Brown, 283 F.3d at 498 n. 2. Nevertheless, since each of the petitioner's claims fails under the less deferential pre-AEDPA standard, there is no need to conduct the AEDPA's more intricate analysis. Cf. Kruelski v. Connecticut Superior Court for the Judicial District of Danbury, 316 F.3d 103, 106-07 (2d Cir. 2003) (suggesting, in post-AEDPA cases, that habeas courts assess first whether state court's ruling was erroneous under "correct interpretation" of the federal law at issue, then whether the ruling was unreasonable).
1. Uncharged Crimes
Habeas review does not extend to erroneous evidentiary rulings by a state trial court, unless the error is of constitutional magnitude. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner must demonstrate not only that the evidence was wrongly admitted, but that it "was sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it." Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins, 755 F.2d at 19). Moreover, the petitioner must meet a "heavy burden" of proving that reasonable doubt would have existed if the contested evidence had been excluded. Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993). The federal standard, in short, requires a petitioner to prove that he was denied a "fundamentally fair trial." Collins, 755 F.2d at 18.
While bad acts and uncharged crimes are normally inadmissible because of the risk of prejudice, a well-established exception exists when the evidence is admitted to prove motive, opportunity, intent, preparation, plan, knowledge, absence of mistake, or, as in this case, identity. See Fed.R.Evid. 404(b). The constitutionality of the admission of uncharged crimes or bad acts to prove identity does not violate due process as long as: (1) the evidence is submitted for a proper purpose, (2) it is relevant, (3) the probative value outweighs its potential for unfair prejudice, and (4) if requested, the trial court gives a limiting instruction to the jury. See Huddleston v. United States, 485 U.S. 681, 691-92 (1988).
This standard was plainly met in the instant case. Evidence that would tend to prove that Mr. Vasquez could accurately identify the petitioner was clearly relevant and presented for a legitimate purpose. Any danger of prejudice was diminished by the fact that the uncharged crime — sale of narcotics — was unrelated to the murder and gun possession charges for which Mr. Rosa was on trial. Finally, the trial court offered the petitioner the option of stipulating that he had had prior interactions with the witness, and, when Mr. Rosa declined, the judge gave a limiting instruction cautioning the jury to consider the uncharged crime only with respect to the identification issue. (Resp. App. Brief at 25-26).
2. Prior Convictions
Mr. Rosa claims that the trial court prevented him from testifying by erroneously ruling that, were he to take the stand, his prior convictions would be admissible for impeachment. This claim is not cognizable on habeas review, however, because the petitioner chose not to testify. In Luce v. United States, 469 U.S. 38, 43 (1984), the Court held that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." "It is well-settled that a petitioner's failure to testify at trial is fatal to any claims of constitutional deprivation arising out of a Sandoval-type ruling." McEachin v. Ross, 951 F. Supp. 478, 481 (1997). Mr. Rosa's claim must therefore be rejected.
3. Pretrial Identification Procedure
Finally, Mr. Rosa argues that the trial court denied him a fair trial, and that the prosecution withheld Brady material, when he was precluded from inquiring as to the facts underlying the arrests of Mr. Vasquez and Mr. Cox at the Wade hearing.
The purpose of a Wade hearing is to determine whether the pretrial identification procedure employed by the police was suggestive. Wade, 388 U.S. at 242; Twitty v. Smith, 614 F.2d 325, 333 (2d Cir. 1979); Blas v. Herbert, No. 02 Civ. 6257, 2003 WL 22480093, at *2 n. 3 (S.D.N.Y. Oct. 31, 2003). Accordingly, the only witness at the Wade hearing in this case was Detective Brusack, who testified about the procedures utilized. While the circumstances of the arrests of Mr. Vasquez and Mr. Cox might be pertinent to their testimony at trial, since it could show that they had a motive for altering their testimony to curry favor with the prosecution, the arrests had no relevance to the objective facts surrounding the identification procedures.
Mr. Rosa also claims that the failure of the prosecution to provide the facts underlying the arrests of Mr. Vasquez and Mr. Cox before the Wade hearing amounted to a Brady violation. Although Brady material includes information useful for impeachment, Giglio v. United States, 405 U.S. 150, 154 (1972), the prosecution need only turn over such material in time for its effective use. United States v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001). Since the information at issue went only to the state of mind of Mr. Vasquez and Mr. Cox and not to the conduct of the lineup, the prosecution was not compelled to turn over the material before the Wade hearing. Conclusion
For the reasons set forth above, I recommend that Mr. Rosa's application for a stay be denied and the petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) 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, with extra copies delivered to the chambers of the Honorable Shira A. Scheindlin, Room 1620, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.