Opinion
02-CV-3299 (JBW), 03-MISC-0066 (JBW)
October 10, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary.
This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on June 5, 2002, Petitioner (sometimes referred to as defendant) claims:
1) Trial court['s] ruling unfairly restricting cross-examination and impeachment. Trial counsel['s] efforts at effectively confronting and impeaching the complainant and her mother was impeded by the trial Judge, Trial counsel could not demonstrate to the jury that the complainant was manipulated into stating fabrications and allegations against the Petitioner to further a civil lawsuit filed by complainant[*]s mother,
2) Denied the right to a public trial. The Petitioner's wife and fellow teachers were removed from the courtroom during the defense presentation, after testifying for the defense. The People held that those defense witnesses could "conceivably" or "possibly" be called for rebuttal. The Court failed to engage in a "careful inquiry" as to the need for their exclusion, and did not consider a narrower exclusion by removing the colleagues, but letting the Petitioner['s] wife remain, to avoid the appearance [ sic] to the jury that the Petitioner was abandoned by both family and friends.
3) Error in the court[']s charge to the jury. The Court made an inappropriate remark to the jury regarding the complainant[']s civil lawsuit against the Petitioner. The civil suit and the fabrication to a criminal charge was pivatol [ sic] in this case, and by making the statement it gave the jury the impression that the Court sanctioned the civil lawsuit and unduly influenced the jury's ability to determine a central issue of this case, namely whether there was a financial motive to fabricate,
4) Improper cross-examination of an alibi witness. The prosecution failed to lay a proper foundation for the cross-examination of an alibi witness regarding his failure to come forward with exculpatory alibi information, however the Court allowed for the cross-examination of this witness,
The evidence supports the following statement. Because these abuse cases involving young children are especially prone to prejudice, the evidence is set forth at length.
On October 20, 1997, petitioner, a third-grade school teacher, molested an eight-year-old girl during a lunch recess. He was arrested the next day and made admissions to a detective and signed a sworn written (A.3-6).
On October 30, 1997, petitioner was indicted for one count of Sexual Abuse in the First Degree under Penal Law Section 130.65(3), a class "D" felony, and one count of Endangering the Welfare of a Child wider Penal Law Section 260.10(1), a class "A" misdemeanor.
On May 26, 1999, a Huntley hearing was held in the County Court of Suffolk County to determine the admissibility of petitioner's oral and written statements. On May 27, 1999, a written decision was issued which denied the motion to suppress except for one statement that was not included in the notice as required by Criminal Procedure Law Section 710.30(A.10-16).
The victim was ten years old when she testified. Nicole lived with her mother, Lauric Belfiore, a single parent, in an apartment in Ronkonkoma, Suffolk County, New York. Her father, whom she lived with occasionally, lived in Florida. Nicole attended the Helen B. Duffield Elementary School and, during her third-grade school year of 1997-1998, petitioner was her teacher, Nicole was, by all accounts, a good student who got along well with others (T.108, 112-113).
On October 20, 1997, Nicole went to school dressed in a Little Mermaid dress over a long-sleeved white turtleneck. The dress, which had a picture of a mermaid and a fish on the front, came down to her knees. Nicole also had on tights and underpants and wore her black dress shoes. When Nicole arrived at school that morning, she had a cold, and her nose was "a little stuffed up." Her classroom, number 131, had a bathroom in the back, with a sink and cubbies located outside of the bathroom. In the morning, the class worked on reading and math. While the students were reading quietly at their desks, petitioner called Nicole to the front of the room. He asked Nicole if she had the sniffles or a "sinus headache or something." Nicole said she did, and petitioner told her that he had gone to a special place (a chiropractor), and they taught him a special stretch that made his sinus headache go away. Petitioner then told her that, at lunchtime, she was to "go to the bathroom, go into the bathroom and pretend you have to go to the bathroom," and he would bring the other children to lunch and return (T.114-116, T.138-140).
When asked if petitioner told Nicole why she should go into the bathroom, she said, "So no one thinks that I would be staying back for lunch," During this conversation between Nicole and petitioner, which he conducted in a whisper, the other students were working at their desks. Nicole then returned to her desk. Before lunch, during snack time, when the children were allowed to talk to each other, Nicole did not mention to any of her classmates the conversation which she had with petitioner. At 12:10 p.m., petitioner told the children to get their lunch boxes and sit down. Then he called the different rows to line up for lunch, and the children lined up at the door that led out into the hallway (T.140-142).
Nicole, acting upon petitioner's instructions, got her lunch box when the other children did and put it on her desk, Then, when petitioner called Nicole's row to line up, he looked at her and nodded his head toward the bathroom door. In response, Nicole got up and went into the bathroom. She stood there for several minutes until another child, Mohammed Sayed, needed to use the bathroom and knocked on the door. While Mohammed was in the bathroom, Nicole stayed at the sink washing her hands until he came out and the class left for lunch (T.146, 148, 236).
Nicole returned to her seat while petitioner walked the rest of the class to lunch and, a few minutes later, he returned to the classroom. He told Nicole to go to a table that was situated in the rear of the room. At the same time he shut the door to the classroom. While Nicole sat at the table, which had a cutout area, petitioner brought over his desk chair and told Nicole to bring her chair over to the cutout part of the table, Then petitioner said that he was going to show Nicole something that would help her headache and her sniffles. He told her to kneel on the chair with both knees on the chair, which was turned with its back to her left side. Nicole leaned onto the table and petitioner sat behind her on his chair, Then, petitioner started rubbing me from my shoulders down to my ankles." Using both hands, petitioner continued to rub Nicole's "shoulders, back, rear end, thighs, legs, and ankles." At first, petitioner said nothing during the time he was rubbing Nicole's body, but then he said that he "needed more skin," and pulled Nicole's Little Mermaid dress up and "rubbed again the same spots" (157, 158). Then petitioner pulled Nicole's dress up to her shoulders and pulled her tights and underwear down to her ankles. While pulling down her tights and underwear, petitioner asked Nicole to stand up for a second so that he could get her clothing over her knees. After Nicole's tights and underwear were down around her ankles, petitioner, without saying anything, "started rubbing me from my shoulders and then my back and then my rear end and then the back of my thighs and down the rest of my leg." He then pulled Nicole onto his lap and asked her if it was working, and she said that it was. Petitioner asked Nicole if she was feeling uncomfortable and she said she wasn't. Just at that time there was a knock at the door, and petitioner told Nicole to get up. Either petitioner or Nicole pulled up her underpants and tights. Then, either on her own initiative or possibly at petitioner's suggestion, Nicole, wasn't sure which, she hid next to the cubbies that were near the bathroom so that she wouldn't be seen by the person at the door. Nicole thought that whoever was at the door would "probably think that it was weird because the rest of the third graders were at lunch and I wasn't" (T.150-162, 250-253).
Petitioner walked over to the classroom door and asked who was there. Someone responded, "Mr. Card." Nicole heard Mr. Card and petitioner talking and then Mr. Card left. After he left, Nicole came out of hiding, and petitioner said not to tell anyone what had happened and, if someone asked, then she should say that her foot hurt and she needed to stay back for a little while, Nicole then went, by herself, to lunch, When she got to the lunchroom, her friend Candice asked Nicole why she was late, and she gave the answer that petitioner had told her to give. Nicole didn't tell any of her classmates about what had just happened in petitioner's classroom (T. 164-167).
After school that day, Nicole went to her friend Melanie's house because Melanic's mother watched Nicole until Mrs. Belfiore got home from work, Nicole did not tell either Melanie or Melanie's mother what had happened at school. At about 6:00 p.m., Mrs. Belfiore picked Nicole up at Melanie's house and they went home. They watched television and had a quick dinner because Mrs. Belfiore had a church meeting to attend that evening. A neighbor, Kimee, came to stay with Nicole while her mother was at her meeting, Nicole did not tell Kimee what had occurred at school (T.167-169).
When Mrs. Belfiore returned home, Nicole was still awake and, after watching television for a little while, they went to the bedroom which they shared, While they were lying in bed, Mrs. Belfiore asked Nicole how her school day had been and then "that is what brought up what happened." At first, Nicole said that school was "good," and "it was just, like, a normal day." And then, when asked again about school, "It made me think of what, like what I was going to tell her, but I forgot to when she was, like, rushing around and stuff" (T.169-170, 280).
At that point, Nicole told her mother what had happened between her and petitioner. She asked her mother not to tell anyone and not to tell the principal because, "I didn't really know what to do at that time." Nicole thought her mother looked "very upset and very scared." Her eyes were "really, like, really open because she was very surprised and she didn't know what to do at that time either when I told her: (T. 169-171, 280).
Mrs. Belfiore testified about what she recalled about the events of October 20, 1997. She remembered that Nicole went to school that day dressed in a Little Mermaid dress with a white mock turtle underneath, and white tights and shoes. She also remembered that Nicole was "sniffling." Mrs. Belfiore picked Nicole up from Virginia Sacowski's (the babysitter's) house about 6:15 p.m. During the first hour that they were home, Mrs. Belfiore was busy preparing dinner and getting ready for a church meeting. The babysitter, Kim Rexach, arrived at the Belfiore house at approximately 7:15 p.m. When Mrs. Belfiore returned, she and Nicole went to the bedroom which they shared. Once in bed, they started talking, and Nicole told her mother what had happened that day between her and petitioner. After their conversation, Mrs. Belfiore called her father, who lived in Florida. He told her to call the police, which she did, Several police officers who came to the Belfiore home spoke with Nicole. One detective advised Mrs. Belfiore to keep Nicole home from school the next day (T.301, 303-305, 307-308, 312).
The next morning, at about 8:30 or 9:00 a.m., Mrs. Belfiore called the secretary at Nicole's school to tell her that Nicole would not be in school that day. At about 10:00 a.m., Mrs. Belfiore received a phone call from petitioner. He asked if Nicole was okay, and Mrs. Belfiore said that her allergies were bothering her and that she was resting. Then petitioner asked if Nicole could possibly come to school in the afternoon, because he didn't want her to miss the science lesson on buoyancy. Mrs. Belfiore did not send Nicole to school that afternoon or for the rest of the week. During that week, Nicole had stomachaches every morning and vomited once or twice. When she wore her jacket, she would put the hood up so that it covered her face (T.313, 361, 366, 456),
Detective Ronald Rafferty testified he was assigned to the Sex Crimes Unit of the Suffolk County Police Department. On Tuesday, October 21, 1997, Detective Rafferty was assigned to investigate the instant case. After interviewing Nicole and Mrs. Belfiore, Detective Rafferty and Detective/Sergeant Paul Fuhrmann set up a surveillance at the Duffield Elementary School in Ronkonkoma in order to apprehend petitioner. They saw petitioner leave the school and get into his car. They then ran a check on his license plate, and it came back to petitioner. As they followed petitioner, who was driving "kind of erratically" and speeding, Detective Rafferty and Detective/Sergeant Fuhrmann called for assistance. Petitioner drove into Hidden Pond Park and stopped at the ice-skating rink. Detective Rafferty pulled his car in behind petitioner's car and then approached petitioner, who was still in his car. Detective Rafferty told petitioner that a complaint had been made against him and he would have to come to the precinct, Once petitioner was seated in the police vehicle, Detective Rafferty advised him of his constitutional rights. Petitioner did not request an attorney (T.467, 474-481, 901),
On the way to the Fifth Precinct in Patchogue, Detective Rafferty told petitioner a little more about the complaint, saying that a student of his had accused petitioner of "sexual molesting" or "sexual abuse," Detective Rafferty did not remember which term he had used. He said that the student, Nicole Belfiore, had made a complaint that petitioner had touched her on the buttocks. Petitioner initially denied the allegations, saying that he didn't touch Nicole. He then spoke about his family, and that fact that he was a good teacher and that his wife was also a teacher, He also talked about sports therapy and stretching and how he taught his students how to stretch. As for Nicole, petitioner claimed to have been helping Nicole, who had a "gym injury," stretch during the lunch hour. Then, while telling Detective Rafferty that Nicole, a good student, was from a broken home, he suddenly said, "Nicole is a liar." Detective Rafferty responded to petitioner, that, "In my experience, children don't usually lie about these things" (T.484, 489-491, 907-908).
When asked to further explain the "stretching," petitioner said that he rubbed Nicole's back. Then, he said, "I pulled, I took the tights down," and put his head in his hands and sobbed. When asked about Nicole's underpants, petitioner said, "Them, too," or "Those, too," Detective Rafferty couldn't remember which, and, "I took them down," When asked where he touched her, petitioner answered, "The buttocks and the legs." He also admitted that he told Nicole to wait in the bathroom while he walked the other children to the lunchroom. Petitioner kept repeating, "I'm ruined, I'm ruined, my family is going to disown me, I'm going to lose my job" (T.492, 497-498, 908-909).
When they got to the Fifth Precinct, petitioner was brought to the interview room. He was "extremely upset." He became flushed, was breathing erratically, and complained of nausea. After petitioner began to feel better, he agreed to make a written statement. After again being advised of his rights, petitioner made a statement which was reduced to writing. The sum and substance of the statement was that petitioner, age 51, was a third-grade teacher at the Duffield Elementary School in Ronkonkoma, One of his twenty-one students was Nicole Belfiore. She was one of the better students. On the day in question, Nicole had a cold, and petitioner let her stay in the classroom at lunchtime. He told her to wait in the bathroom while he took the other children to the lunchroom. Then he wanted to have her stretch out to help her sinuses. He had her kneel on a chair and rubbed her back and legs. He told her to take down her tights and underpants, and he rubbed her legs and buttocks for about two minutes, He became repulsed at what he was doing, and stopped. He told Nicole not to tell anybody. He did not get any "sexual feelings" that he remembered. When Nicole was absent from school the next day, he called her home and was relieved when Mrs. Belfiore didn't say anything about what had happened. After completing his statement, petitioner refused to contact his family because he didn't want them to know what was going on (T.499-500, 510, 521-523, 546).
Kaitlan Moran testified as a student at the Helen B. Duffield School. On October 20, 1997, Kaitlan and Nicole were classmates in petitioner's third-grade class. Lunchtime that day, as every day, was at 12:10 p.m. Kaitlan remembered that, as the class lined up for lunch, two children, Nicole and Mohammed, had to go to the bathroom. The other children waited on line, Then, without Nicole, who was at her desk, Kaitlan joined her classmates, and the class was led to the lunchroom by petitioner. It wasn't until about halfway through lunch (which was twenty minutes long) that Nicole came to the cafeteria. Later, towards the end of the school day, the class was taken to music period in the cafeteria, Nicole did not accompany her class to music. During music period, Kaitlan left the cafeteria and returned to her classroom to use the bathroom. She knocked on the classroom door and, when no one answered, tried to open it, but it was locked. As Kaitlan turned away from the classroom to return to music, petitioner poked his head out the door, said something (Kaitlan couldn't remember what he said) in a "mean voice," and she left (T. 743-745, 749-753),
Jo-Ann Croci testified as the principal of the Helen B. Duffield School in the fall of 1997. She testified that during that time the third-grade classes had lunch between 12:10 p.m. and 12:50 p.m. She also testified that the district policy in connection with students who were absent on any particular day was to have the office secretary call the home to ascertain the reason for the absence (T.789-790, 815),
Petitioner testified in his own defense. He outlined the usual classroom procedure at lunchtime, which procedure he followed on October 20th. About two minutes after twelve he would tell the children to get ready for lunch. The children would then get their lunches and return to their seats to wait for petitioner to line them up. On October 20th, petitioner claimed, there was no child left behind at lunchtime. He walked his class to the cafeteria and left them there. Then, he said, he went directly to the faculty room to eat his lunch. He got to the faculty room just before 12:10, Petitioner also claimed that the back table, which Nicole said she was seated at when petitioner "rubbed" her, was covered with items being used in connection with a lesson on buoyancy, The door, according to petitioner, remained open during this period of time, and for the entire day. At 12:50 p.m., the children returned to the classroom (T.1407, 1424-1425, 1427-1432, 1434, 1436, 1441),
At 1:50 p.m., petitioner told his class to get their recorders and line up for music. Nicole told petitioner that she couldn't find her recorder, and she was upset because she thought she would get into trouble. She asked if she could stay back, and petitioner agreed. Another student, named Jacqueline, was also not feeling well, and she stayed back, too. About 2:00 p.m., a fellow teacher, Steve Card, came to petitioner's classroom, and they spoke for approximately ten to twelve minutes. Until he left to pick up his class, petitioner worked in his classroom, When petitioner and the class returned to the classroom at 2:30 p.m., Nicole and Jacqueline were still there (T. 1436-1440, 1443),
When the police stopped him at the ice skating rink and arrested him, petitioner claimed that he had no idea what the problem was until they told him of what he was accused. According to petitioner, Detective Rafferty told him in the police car that he was ruined and that his wife, children and Mends would disown him. At the precinct, Detective Rafferty said that he believed Nicole and not petitioner. He said, "You know you did it," and petitioner kept denying it. At one point, Detective Rafferty told petitioner he would have to "sign some of these papers . . . routine paperwork." Petitioner recalled signing his name "about a dozen times," without reading any of the papers which he signed (T.1456, 1459, 1464-1465, 1468).
Petitioner also contradicted the prosecution testimony by making denials of at least ten separate portions of Nicole and Detective Rafferty's testimony, specifically (1) that Nicole stayed in the classroom at lunchtime; (2) that petitioner told Nicole to wait in the bathroom while he took the other children to the lunchroom; (3) that petitioner wanted Nicole to stretch out to help her sinuses; (4) that petitioner made Nicole kneel on a chair; (5) that petitioner rubbed her back and legs; (6) that petitioner told Detective Rafferty that he stopped because he became sickened; (8) that petitioner told Nicole not to tell anybody; (9) that petitioner didn't get any sexual feeling; and (10) that petitioner told Detective Rafferty that he was relieved after he spoke to Nicole's mother and she didn't say anything to him about what had happened (T.1475-1483).
On July 2, 1999, the jury returned a verdict of guilty as charged for Sexual Abuse in the First Degree and Endangering the Welfare of a Child.
On September 28, 1999, petitioner was sentenced in the County Court of Suffolk County to an indeterminate term of imprisonment from two years to four years and one year jail with the misdemeanor to be served concurrently into the felony (A. 17-34), On September 30, 1999, petitioner obtained a stay of execution from the Supreme Court of Suffolk County and was released from custody pending appeal.
The direct appeal was perfected on or about May 8, 2000, with an appellant's brief that raised five issues: (1) denial of public trial; (2) unfair limitation on cross-examination; (3) improper cross-examination of alibi witness; (4) improper jury instruction; and (5) prosecutorial misconduct during direct examination of Detective Rafferty and in summation (A. 35-79),
On February 5, 2001, the Appellate Division issued a Decision and Order affirming the judgment of conviction. The Court held, inter alia, there was no merit to the contention that the cross-examination of prosecution witnesses was improperly limited, It also held that a proper foundation was laid for the alibi witness cross-examination (A. 136-137).
On June 12, 2001, the Court of Appeals denied leave to appeal (A.154). On June 22, 2001, petitioner was remanded to serve his sentence of imprisonment,
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted m 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; or (2) resulted in a decision that 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),
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999), Under the "contrary to" clause, "a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts," Williams v. Taylor, U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, Under this standard, "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." Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "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," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted),
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App, LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1),
III Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A), A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired, See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion," Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000), "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground," Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" Includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review), A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause, See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements, Brown v. Superintendent, 199S U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998), But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law," Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000), Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably, Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir 2000), "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate mat he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time," Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 168 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991), The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc),
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An 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."), In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, " unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.' Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says mat a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996), When 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." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling docs 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," Su v. Filion, No, 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "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." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted," Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002),
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321, "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful," Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a Free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding,"), A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances),
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense," U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added), The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and 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. See also Wiggins v. Smith, 539 U.S. ___ No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed," Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003),
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after Jess than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy-a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel, See Eze, 2003 U.S. App, LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was " unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required, Caballero v. Keane., 42 F.3d 738, 741 (2d Cir. 1994), Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted, See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel, See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duly to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance," Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief docs not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991), Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson., 507 U.S. 619, 623 (1993) (quotation omitted),
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant,'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wads v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003),
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, 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). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction, Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y, June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y, June 10, 2003) (Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXTS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op, at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y, June 12, 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y, June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "bad substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California., 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit, See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003),
XIII, Analysis of Claims
A.
Petitioner's trial and appellate counsel both made extensive arguments about the scope of cross-examination. The decision to allow the fact of the related civil lawsuit was expanded on by defense counsel who brought out detail. The eight-year-old girl had never been asked if she sat naked in petitioner's lap, That added detail came out first at trial. Defense counsel was not prevented from arguing the recent nature of that particular revelation,
Inquiries into bias, interest or other motives to lie, are proper subject of cross-examination but they are witness specific. Defendants do not have the right to cross-examine a third party abut the credibility of some other witness without a proper foundation. Petitioner was subject to reasonable judicial discretion in seeking to cross-examine the victim's mother about the victim's alleged credibility. The child's answers, including, "I don't know," "I don't remember," and, "I'm not sure," were not unexpected. Asking the mother what the daughter knew about the civil lawsuit was subject to judicial control. Petitioner could still inquire directly about the mother's supposed monetary motive to fabricate, and this was done repeatedly. This theory went to the jury and was rejected,
To ask the mother what the daughter had said or not said about lap sitting was, arguably, hearsay, again subject to judicial control. Defense counsel was seeking to establish that the statement about naked lap sitting was not made prior to trial, and therefore it was not to be believed. The disallowance of hearsay testimony from the mother did not preclude petitioner from basing his argument of recent fabrication on the victim's testimony,
Petitioner has postulated a conflict in New York's evidentiary rues for impeachment by omission. Arguably, in People v. Bornholdt, 33 N.Y.2d 75 (1971), cert. denied 416 U.S. 905 (1974), the New York State Court of Appeals held that an impeaching party must show that the witness was asked about the subject matter of the omission. The omission must be of a detail that the witness's attention had been specifically drawn to when the witness made the prior statement. In People v. Savage, 50 N.Y.2d 673 (1980), the New York State Court of Appeals seemed to extend this definition to include omissions of critical facts which would be "most unnatural to omit" when giving the prior statement. The fact that Nicole provided an additional and significant detail of her abuse only during her trial testimony was not kept from the jury, Petitioner is objecting to the discretionary determination not to admit the victim's written statement which is different than a complete denial of the right to confrontation. Davis v. Alaska, 414 U.S. 308 (1974), Extrinsic evidence on matters of credibility are barred by discretion of the trial court relying [on] the collateral impeachment rule. People v. Inniss, 83 N.Y.2d 653 (1994); People v. Ferere, ___ A.D.2d ___ 742 N.Y.S.2d 884 (2nd Dept. 2002).
In a habeas petition, the federal court is limited to a determination of whether the challenged ruling involved an error of constitutional magnitude. Richmond v. Lewis, 506 U.S. 40 (1992); Roberts v. Scully, 875 F. Supp. 182 (S.D.N.Y.), aff'd, 71 F.3d 406 (2nd Cir. 1995). Generally, when trial court evidentiary rulings are matters of state law, they do not pose a federal constitutional issue. Estelle v. McGuire., 502 U.S. 62 (1991); Aponte v. Scully, 740 F. Supp. 153 (E.D.N.Y. 1990). This analysis applies to both the civil lawsuit inquiry and the impeachment by omission.
Trial judges have broad discretion to impose reasonable limits which means defense counsel are not the sole arbiters of what is necessary cross-examination. Delaware v. Fensterer, 474 U.S. 15 (1985); United States v. Jenkins, 510 F.2d 495 (2nd Cir. 1975); United States v. Roldan-Zapata, 916 F.2d 795 (2nd Cir. 1990), cert. denied, 499 U.S. 940 (1991), To warrant reversal, petitioner must show the trial court abused that discretion. Alford v. United States, 282 U.S. 687 (1931), The test is, if the limitation was in error, whether the jury possessed sufficient information to make a discriminating appraisal of the particular witness's possible motive for testifying falsely. United States v. Singh, 628 F.2d 758 (2nd Cir.), cert. denied, 449 U.S. 1034 (1980), Petitioner's claims about the victim and her mother were presented to the jury. The trial court's evidentiary rulings were not an abuse of discretion. Beyond that, in the absence of any error that had a substantial influence on the jury's verdict, harmless error analysis is also available. Henry v. Speckard, 22 F.3d 1209 (2nd cir.), cert. denied, 513 U.S. 1029 (1994).
This claim has no merit.
B.
Petitioner claims the closing the courtroom to exclude witnesses had harmful effects. All three of the persons excluded (two fellow school teachers and petitioner's wife) had already been called to the stand in support of petitioner's alibi defense, The possibility of rebuttal was not ephemeral. The fact that they were not called again is irrelevant.
Witness exclusion is left to trial court discretion; only an abuse of that discretion will be reversible error. People v. Joseph, 59 N.Y.2d 496 (1983); People v. Wood, 259 A.D.2d 777 (3rd Dept.), lv. denied, 93 N.Y.2d 1007 (1999); People v. Roundtree, 234 A.D.2d 58 (1st Dept. 1996), lv. denied 89 N.Y.2d 988 (1997); People v. Smith, 111 A.D.2d 883 (2nd Dept. 1983); People v. Felder, 39 A.D.2d 373 (2nd Dept. 1972). The fact that a witness is a friend or family member is one factor to be balanced in the inquiry and does not trump the court's discretion.
The exclusion here was within the trial court's discretion,
This claim has no merit,
C.
Petitioner complains about the court's unusual comment during jury instructions, that "the law encourages civil lawsuits" did not deny petitioner a fair trial, Other explanatory admonitions included that the law does not discourage lawsuits, and the fact of civil lawsuit alone does not by itself make a criminal complainant more or less credible. The argument that the court diluted the defense theory that the Belfiores were motivated to lie in the criminal case for monetary gain in the civil lawsuit is not sustainable. That theory was adequately placed before the jury and explained in the jury charge,
Even if one were to assume that the isolated instruction was erroneous, it must be viewed in the context of the entire charge. Cupp v. Naughten, 414 U.S. 141 (1973); Fox v. Mann, 71 F.3d 66 (2nd Cir. 1993); United States v. Locasio, 6 F.3d 924 (2nd Cir. 1993), cert. denied sub nom. gotti v. United States, 511 U.S. 1070 (1994). Petitioner's theory of severe prejudice infecting the entire trial is not sustainable.
This claim has no merit.
D.
Petitioner contends that the prosecutor improperly cross-examined one Raymond D'Annolfo about allegedly being with petitioner on the date and time in question and not coming forward with that potentially exculpatory information. The cases about the limited nature of federal habeas review of state evidentiary rulings are also applicable. There was arguably no error in the cross-examination of this alibi witness.
Under New York State case law, the proper cross-examination of alibi witnesses for a criminal defendant requires that a proper foundation be established before such a witness is questioned as to why he did not come forward sooner than he did with exculpatory information. That foundation is as follows: The prosecutor should demonstrate that the witness: (1) was aware of the nature or the charges pending against the defendant; (2) had reason to recognize that he possessed exculpatory information; (3) had a reasonable motive for acting to exonerate the defendant; and (4) was familiar with the means to make such information available to law enforcement authorities. People v. Dawson, 50 N.Y.2d 311 (1980),
The necessary foundation was arguably established in the instant case. As to the first requirement, Mr. D'Annolfo testified that on Wednesday, October 22, 1997, he became aware that petitioner had been arrested and charged with a serious crime and was aware of the nature of the charges (T.996, 1016). As to the second requirement, petitioner claims that Mr. D'Annolfo did not have reason to believe that he possessed exculpatory evidence. By Mr. D'Annolfo's own admission, he agreed that he had information "that might be of assistance in terms of the day that these incidents — the day that the defendant was arrested on the 20th or 21st" (T.1017, 1018). He testified that approximately four months after October 20, 1997 (Feb, 1998), he received a call from petitioner asking him if he "remembered anything," As to the third requirement, Mr. D'Annolfo had a reasonable motive to want to see petitioner exonerated. He and petitioner were not only colleagues, but had attended high school together and were Mends (T.993, 1016), As to the fourth requirement, given Mr. D'Annolfo's educational background and profession, it is reasonable to assume that he knew how to contact the police with any information which he believed would be relevant and useful to the defense (T.993, 1017). The line of inquiry in question was arguably proper. People v. Knight, 80 N.Y.2d 845 (1992),
Witnesses may remain silent if they were explicitly instructed to do so by the defense attorney. Defense counsel sent Mr. D'Annolfo a letter dated June 1, 1998 in which he said, "I'm requesting you not to speak to the police who may contact you shortly" (1028, 1029). There remained a period of time between February, 1998 (when Mr. D'Annolfo learned that he might have exculpatory information) and June 1, 1998 (when Mr. D'Annolfo could have, but did not, contact the police with the information that he was with petitioner during lunchtime on October 20, 1997). It was arguably appropriate to preclude the prosecutor from questioning Mr. D'Anolfo about his failure to come forward between February, 1998 and June 1, 1998. The court itself asked Mr. D'Annolfo if there was some reason if, during that period of time, "You chose not to speak with the police or come to the police?" Mr. D'Annolfo did not offer any explanation as to why he did not contact the police (T.1022), He was not questioned about his failure to come forward after June 1, 1998 when he received the letter from defense counsel asking him not to speak to police. Since all four foundational requirements were arguably met, the witness was, the state courts could hold, properly questioned after his failure to come forward.
Mr. D'Annolfo's testimony that he met with defense investigators after he received the phone call from petitioner asking him if be "remembered anything" is not disputed (T.1045, 1046-1047), He stated that the meeting with defense investigators may have occurred in June of 1998; he did not testify that the phone call from petitioner could have occurred as late as June of 1998. March of 1998 was established as the very latest time that the phone call from petitioner to Mr. D'Annolfo could have been made (T.1045, 1046), Contrary to petitioner's claim, Mr. D'Annolfo appeared only to be confused about when the meeting with the defense investigator occurred, not when he possessed exculpatory information, Mr. D'Annolfo's testimony made it clear that he believed that he possessed exculpatory information after he received a phone call from petitioner (T. 1018),
Beyond the limited nature of federal habeas review of state evidentiary rulings, petitioner also argues that the cross-examination of Mr. D'Annolfo amounted to prosecutorial misconduct that denied him a fair trial. There was no error, or at most, harmless error. No adverse impact has been shown. Tankleff v. Senkowski, 135 F.3d 235 (2nd Cir. 1998); Collins v. Scully, 735 F.2d 16 (2nd Cir. 1985).
This claim has no merit,
E.
Those claims not discussed in this memorandum are frivolous.
IV. Conclusion
The petition for a writ of habeas corpus is denied,
A certificate of appealability is granted with respect to limitations on cross-examination by defense counsel, Petitioner may, as already indicated, seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.