Opinion
04 Civ. 9680 (RMB) (RLE).
August 29, 2006
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se petitioner, John Jay Santiago ("Santiago"), filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 15, 2004. Santiago was convicted in New York State Supreme Court, New York County, of robbery in the first degree under New York Penal Law ("N.Y.P.L.") § 160.15(4), and criminal possession of a weapon in the second degree under N.Y.P.L. § 265.03. He was sentenced, as a persistent violent felony offender, to concurrent, indeterminate terms of twenty-two years to life on the robbery count and sixteen years to life on the weapon possession count. He is currently incarcerated at Elmira Correctional Facility in Elmira, New York.
Santiago argues that his incarceration is unconstitutional and that he was deprived of his due process right to a fair trial because: 1) the trial court misapplied People v. Sandoval , 34 N.Y.2d 371 (1974), and allowed the jury to hear about his prior robbery convictions; 2) the trial court erred in precluding evidence concerning witnesses' motives to lie on the stand; 3) the trial court erred in refusing to charge robbery in the third degree, a lesser included offense, where there was a question about whether a gun was used during the robbery; 4) the sentence, based on Santiago's two prior convictions, was determined by the court, rather than the jury; and 5) the prosecutor made improper and inflammatory remarks to the jury. Petition under 28 U.S.C. § 2254 ("Pet."), attached as Exhibit G to Kimberly Morgan's Declaration in Opposition to Petition for Writ of Habeas Corpus, dated June 20, 2005 ("Morgan Decl."). For the reasons set forth below, I recommend that Santiago's writ of habeas corpus be DENIED.
II. BACKGROUND
A. Factual BackgroundOn the evening of April 6, 1999, Santiago entered a grocery store which he frequented as a customer. He informed another customer of his intent to rob the store, and advised him to go to the back of the store. Santiago displayed a pistol to a different customer and to a high school student who was working in the store. Morgan Decl., Exh. B at 3-4; Exh. C at 3-7. Santiago approached the manager at the cash register, put a gun to his head, and threatened to kill him if he did not give him the money. Id. The manager emptied the cash register and gave approximately $300 to Santiago, who fled the store. Id. The police were notified of the robbery and took statements from three witnesses.
On April 8, at approximately 4:00 a.m., the police received a report of an altercation involving an armed man in front of a building near the grocery store. Santiago fit the description of the man with the gun, and was standing in front of the building. Id. When the police approached Santiago, he ran and tossed the gun into a nearby garbage can before he was apprehended. Id. He was taken into custody and questioned. See Morgan Decl., Exh. C at 13. Later that day, witnesses identified him as the person who had robbed the grocery store.
On April 15, a grand jury indicted Santiago on two counts of robbery in the first degree arising from the April 6 incident, and one count of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree arising from the April 8 incident. Morgan Decl., Exh. B at 26-27; Exh. C at 1. At a Sandoval [ People v. Sandoval , 357 N.Y.S.2d 849 (1974)] hearing, the court determined that the prosecution would be allowed to inquire about Santiago's criminal record, including every conviction in his record, without going into facts, warrants or length of imprisonment. Morgan Decl., Exh. B at 6. Since Santiago had two prior robbery convictions, and this would be his third, the court concluded that he "specialize[d] in this type of thing" and that "the totality of the record indicated that the defendant puts his own interests above those of society." Id. at 6-7. Santiago was tried before a jury, but did not present any evidence at trial. He was convicted, and sentenced on May 30, 2000.
B. Procedural Background
Santiago's conviction was affirmed by the Appellate Division, First Department, on March 27, 2003. People v. Santiago , 757 N.Y.S.2d 269 (App.Div. 1st Dep't 2003). On appeal, Santiago argued that: 1) the Sandoval ruling was unfair and prejudicial; 2) precluding the introduction of an alleged prior inconsistent statement by a State's witness was an improper use of discretion; 3) refusing to charge the lesser included offense of robbery in the third degree was erroneous; 4) his sentence was based on procedurally improper findings, and deprived him of due process; and 5) the inflammatory remarks by the prosecutor at summation were improper.
In rejecting his claims, the court found that: 1) the Sandoval ruling was proper because Santiago's prior robbery convictions were highly probative of his credibility, particularly because he was charged with first degree robbery; 2) precluding the prior inconsistent statement by the State's witness had little or no probative value on any material issue, and there was no impairment of Santiago's right to confront witnesses and present a defense; 3) the trial court properly declined to charge third degree robbery as a lesser included offense because there was no reasonable view of the evidence that Santiago used any type of force other than the display of what appeared to be a firearm; and 4) Santiago's constitutional challenge to his sentence was without merit. Id. at *270. Santiago's fifth claim concerning the prosecutors statements was not addressed by the court. Leave to appeal to the New York State Court of Appeals was denied on August 14, 2003. People v. Santiago, 766 N.Y.2d 174 (2003).
III. DISCUSSION
A. Threshold Issues
1. Timeliness
A petitioner must file an application for a writ of habeas corpus within one year of his conviction becoming final. See 28 U.S.C. § 2244(d)(1). A conviction becomes final when the time to seek direct review in the United States Supreme Court by writ of certiorari expires, that is, ninety days after the final determination by the state court. Williams v. Artuz , 237 F.3d 147, 151 (2d Cir. 2001) (quoting Ross v. Artuz , 150 F.3d 97, 98 (2d Cir. 1998). Accordingly, Santiago had until November 12, 2004, one year after his conviction became final, to file his petition. Since Santiago mailed his petition from Elmira Correctional Facility on October 26, 2004, it is timely filed under 28 U.S.C. § 2254(d)(1)(A). See Noble v. Kelly , 246 F.3d 93, 97-98 (2d Cir. 2001) (applying the "prison mailbox rule"), cert denied, 534 U.S. 886 (2001).
2. Exhaustion
Pursuant to 28 U.S.C. § 2254(b), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the Court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor , 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). In order to satisfy substantive exhaustion, a petitioner's claim before the state courts must have been federal or constitutional in nature. Although not an exacting standard, Santiago must have informed the state courts of "both the factual and the legal premises of the claim [he] asserts in federal court." Jones v. Vacco , 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc)).
Procedurally, Santiago must have utilized all avenues of appellate review within the state court system before proceeding to federal court. See Bossett v. Walker , 41 F.3d 825, 828 (2d Cir. 1994). He must have raised a federal claim at each level of the state court system, "present[ing] the substance of his federal claims `to the highest court of the pertinent state.'" Id. (quoting Pesina v. Johnson , 913 F.2d 53, 54 (2d Cir. 1990)). Santiago properly submitted claims in both his direct appeal to the Appellate Division, and in his application for leave to appeal to the Court of Appeals. His claims, with the exception of his fifth claim concerning prosecutorial misconduct, are exhausted and reviewable by this Court.
B. Merits of the Claims
1. Standard of Review
The AEDPA constrains a federal habeas court's ability to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. The Act limits issuance of the writ to circumstances in which the state 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); see Williams v. Taylor , 529 U.S. 362, 412 (2000). A state court decision is contrary to federal law if the state court applies "a conclusion opposite to that reached by [the Supreme] Court on a question of law or if [it] decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams , 529 U.S. at 413. Furthermore, in cases where the state court decision rests on a factual determination, the federal court must find that the "decision . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
An adjudication on the merits occurs when a state court: "(1) disposes of the claims `on the merits;' and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 1995) (quoting 28 U.S.C. § 2254(d)(1)). State courts are not required to explain their reasoning process in order to adjudicate on the merits. Id. at 311. Since Santiago's claims were adjudicated on the merits in the appellate court, this Court must review them under the standard of deference set forth in 28 U.S.C. § 2254(d)(1). 2. The Sandoval Claim
Santiago claims that the trial court's Sandoval ruling deprived him of a fair trial. Pet. at 3. At a Sandoval hearing, the court must determine which prior convictions or bad acts the prosecutor may use at trial if a defendant testifies. Sandoval , 357 N.Y.S.2d 849 (1974). In this case, the trial court ruled that the prosecutor could ask questions concerning Santiago's previous convictions for robbery in the first degree, attempted criminal sale of a controlled substance in the third degree, attempted robbery in the second degree, assault in the third degree, and attempted criminal impersonation in the second degree. The court, however, barred the prosecution from asking about the underlying facts of the convictions, the use of aliases, the length of prison sentences, or the issuance of warrants. Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("Resp. Mem.") at 10.
The court cannot review a Sandoval ruling unless the petitioner testified at trial and was cross-examined about the prior bad acts or convictions. "[F]ailure to testify is fatal to any claims . . . arising out of a Sandoval type ruling because in the absence of such testimony the Court has no adequate non-speculative basis upon which to assess the merits of that claim . . ." Hill v. Greiner, 2005 WL 3454737 (S.D.N.Y. Dec. 15, 2005) at *4; citing Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y. 1991), aff'd, 940 F.2d 649 (2d Cir. 1991). Here, Santiago did not testify at his trial. I recommend, therefore, that his Sandoval claim be DENIED.
3. Court's Preclusion of Santiago Presenting Evidence
Santiago claims that the trial court deprived him of his constitutional right to present a defense and to confront witnesses because he was not allowed to present testimony that would show that witnesses had a motive to lie. Pet., at 3. At trial, the grocery store owner testified for the State that gambling machines located in the store were not working at the time of the incident, but on cross-examination, he conceded that the machines were working. Santiago maintains that the store owner's inconsistent statements support his defense that he did not rob the store, but rather was there to collect gambling winnings, and when refused, only damaged the gambling machines in retaliation. Santiago's Memorandum of Law ("Santiago's Mem.") at 20, 35-6; citing Petitioner's Appendix, Habeas Corpus Petition ("Pet. App.") at A-58 to A-60; A-68 to A-70. To bolster his defense that he was at the store to collect his winnings, Santiago asked the court for permission to call a new witness to further explore the illegal gambling scheme in the store. Pet. App. at A-73 to A-74. Since the illegal gambling scheme was a collateral matter, unrelated to the underlying robbery charges, the trial court appropriately denied Santiago's request, and limited the testimony. Id. at A-73 to A-81.
The decision to admit or exclude evidence typically does not create an issue for habeas review. "A state court's erroneous ruling on an issue of state evidentiary law rises to a federal constitutional violation only if the error deprived the defendant of a fundamentally fair trial." Crawford v. Artuz , 165 F. Supp. 2d 627, 635 (S.D.N.Y. 2001) (emphasis in original); Taylor v. Curry , 708 F.2d 886, 891 (1983); Chambers v. Mississippi , 410 U.S. 284, 302-03 (1973). Furthermore, "all erroneous rulings that improperly restrict cross-examination under state or federal rules of evidence do not necessarily implicate the Confrontation Clause. Rather, the Constitution only `guarantees an opportunity for effective cross-examination, not cross-examination that is effective, in whatever way, and to whatever extent, the defense might wish.'" Id. at *57 (quoting Delaware v. Fensterer , 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original)). "[T]rial judges retain wide latitude . . . to impose reasonable limits on . . . cross-examination . . ." Harper v. Kelly , 916 F.2d 54 (2d Cir. 1990); quoting Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986); see also Williams v. McGinnis , 2006 WL 1317041 at *15, (E.D.N.Y. May 15, 2006).
Under Federal and New York State law, Santiago cannot use extrinsic evidence on a collateral matter for purposes of impeaching the credibility of a witness. Jacobson v. Henderson , 765 F.2d 12, 15-16 (2d Cir. 1985); Fed.R.Evid. 608(b); Badr v. Hogan , 75 N.Y.2d 629, 634-35 (1990); People v. Harris , 57 N.Y.2d 335, 345 (1982), cert. denied, 460 U.S. 1047 (1983). The trial court, therefore, properly precluded Santiago from introducing this evidence. Because he cannot establish that the trial court's evidentiary determinations were incorrect, Santiago cannot show that the court's ruling deprived him of a fundamentally fair trial, or that the Appellate Division's decision was contrary to, or an unreasonable application of clearly established Federal law. I recommend that this claim be DENIED.
4. Failure to Charge Third-Degree Robbery as a Lesser-Included Offense
Santiago was indicted for armed robbery with a deadly weapon (N.Y.P.L. § 160.15(2)), and robbery while displaying what appeared to be a firearm (N.Y.P.L. § 160.15(4)). The jury was instructed to consider these two counts in the alternative, and to consider the second count only if Santiago was acquitted of the first. Santiago argues that the trial court erred by failing to submit robbery in the third degree as a lesser-included offense to the jury. He contends that this error deprived him of a fundamentally fair trial. See Morgan Decl., Exh. C at 42.
New York State law differentiates robbery in the first degree and second degree from robbery in the third degree by noting that there must be more than just forcibly stealing property to support a first or second degree charge. A conviction for first-degree robbery requires a finding that "a dangerous instrument" was involved while second-degree robbery requires the lesser-included finding that there ". . . appears to be a . . . firearm, "[N.Y.P.L. § 160.15(3); N.Y.P.L. § 160.15(4)]. Third degree robbery, however, eliminates use or threat by any dangerous instrument. Santiago claims that because some of the witnesses could not properly identify or affirmatively state that an actual firearm was used in the April 6 robbery, the jury could have found that the prosecution failed to prove an element for both first and second degree robbery. He maintains, therefore, that the jury instructions should have included the offense of robbery in the third degree. The Court disagrees.
The trial court has discretion to include a lesser-included offense if, "there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offenses, but did not commit the greater." N.Y.C.P.L. § 300.50; Perez v. Greiner , 2003 WL 21203351 (S.D.N.Y. May 21, 2003) at *2; see also People v. Heide , 84 N.Y.2d 943, 944 (1994). However, if there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense. N.Y.C.P.L. § 300.50. In the facts of this case, there is no reasonable view of the evidence that would support a finding that the trial court should have submitted the lesser offense of third degree robbery. Three witnesses testified that Santiago displayed a "weapon" or "gun" in the grocery store during April 6, 1999 robbery. App. at A-13, A-56-57a, A-71. While the evidence could support a finding that it only "appeared to be" a gun, i.e., second-degree robbery, the testimony indicates that more than just force was used during the commission of the robbery. A charge on third-degree robbery would not be allowed under N.Y.C.P.L. § 300.50. Therefore, I recommend the claim be DENIED. 5. Apprendi Claim
Santiago claims that his adjudication as a persistent violent felony offender deprived him of his right to a trial by jury because the factual finding that he had two previous felony convictions should have been made by the jury. This claim is without merit. The fact of a prior conviction need not be submitted to a jury. Apprendi v. New Jersey , 530 U.S. 466, 490 (2000).
In New York, an individual may be sentenced as a persistent violent felony offender if he or she "stands convicted of a violent felony offense" [N.Y.P.L. § 70.08(1)(a)], and has been previously convicted of two or more violent felony offenses [N.Y.P.L. § 70.10(2)]. "The court must first conclude that defendant had previously been convicted of two or more felonies for which a sentence of over one year was imposed," and only afterwards, may it "review `matters pertaining to defendant's history and character and the nature and circumstances of his criminal conduct . . . established by any relevant evidence, not legally privileged' to determine whether actually to issue an enhanced sentence." Witherspoon v. Woods, 2006 WL 721510 (E.D.N.Y. Mar. 6, 2006) (quoting People v. Rosen, 96 N.Y.2d at 334-35 (2001)). In fact, the New York State Court of Appeals makes clear that "prior felony convictions are the sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender," and that inquiry into "additional facts" would "violate Apprendi." People v. Rivera, 800 N.Y.S.2d 51, 52-53 (2005) (italics in original). If not already established, the court has the discretion, pursuant to N.Y.C.P.L. § 400.20, to authorize a hearing on "facts relating to the defendant's history and character" to determine whether the defendant is in fact a persistent felony offender, and if such sentence imposed on the defendant would best serve the public interest. In Rivera, the court elaborated that this hearing is merely "a right to an airing and an explanation, not a result" and that any facts at such a hearing are not a necessary condition for imposition of an enhanced sentence, but that the judge has the discretion to sentence the defendant merely on the basis of his prior felony convictions, regardless of the evidence presented at the sentencing hearing. N.Y.C.P.L. § 400.20; Rivera, 800 N.Y.S.2d at *52-53.
Here, the Sandoval hearing revealed that Santiago had been convicted of two prior felony offenses. When the jury found him guilty of first-degree robbery and second-degree criminal possession of a weapon, the court sentenced him as a persistent violent felony offender. N.Y. Penal Law §§ 70.08(1)(a), (2), (3)(b). The sentencing was consistent with Federal and New York State law, and the Appellate Court's decision was not contrary to the holding in Apprendi. Therefore, I recommend this claim be DENIED.
6. Prosecutor's Improper and Inflammatory Remarks at Trial and Defense Counsel's Ineffectiveness
Santiago argues that his conviction should be vacated because of the prosecutor's misconduct, and statements during the trial. He also claims that his defense counsel was ineffective in failing to object to the prosecutor's misconduct at summation. Santiago Mem. at 67. Relief for allegations of prosecutorial misconduct is available only where the court "find[s] that the prosecutor's comments constituted more than mere trial error, and were instead so egregious as to violate the defendant's due process rights" and are deemed so "prejudicial that they rendered the trial in question fundamentally unfair." Jones v. Spitzer , 2003 WL 1563780 (S.D.N.Y. March 26, 2003) at *30. This standard is not met here. Here, the prosecutor did not use incorrect statements of law, inject personal beliefs, or make personal attacks. See, e.g., Floyd v. Meachum , 907 F.2d 347, 354-56 (2d Cir. 1990).
Although Santiago raised this claim in his amended petition to this Court, he did not raise it in the Appellate Division. The record indicates that there is no egregious violation of Santiago's due process rights based on the prosecutor's remarks during summation that would render this trial fundamentally unfair. In summation, the prosecutor made statements such as: "Quite frankly, the defendant just isn't that bright and he isn't that good at committing robberies," Santiago Mem. at 50; citing A-99; the witnesses would not lie unless they were "truly psychopaths," Id. at 50; citing A-91-97; and calling the defense theory "innuendo" and "ridiculous," Id. at 50-51. While some of the prosecutor's statements, at their worst interpretation, may have been improper, those interpretations are not clear from the record. For example, it is not clear that the prosecutor intended to attack the integrity of defense counsel, or intended to vouch for his witnesses, and the Court should not infer the most damaging meaning from an ambiguous remark. Donnelly , 416 U.S. at 647.
Santiago claims that his defense counsel was ineffective because she failed to object to the prosecutor's allegedly improper statements. This claim is without merit. "The Constitution guarantees the defendant a fair trial, not a perfect one." People v. Henry , 95 N.Y.2d 563, 565 (2000) (quoting Delaware v. Van Arsdell , 475 U.S. 673 (1986)). "[I]solated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is "so serious that the defendant did not receive a fair trial." People v. Flores , 84 N.Y.2d at 188-89). A review of the record indicates that defense counsel's conduct was proper and professional. Counsel was simply not ineffective and the prosecutor's statements were not so egregious as to deprive Santiago of a fundamentally fair trial. Therefore, this claim is without merit and should be DENIED.