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dealing with denial of admission of favorable evidence, receipt of consecutive rather than concurrent terms, and failure to present certain charges to the jury
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No. 02 Civ. 1834 (PAC) (RLE).
December 15, 2005
Kevin Scullark, Green Haven Correctional Facility Drawer B Stormville, NY, Pro se Petitioner.
Kimberly Morgan, Assistant District Attorney, Bronx, County, Bronx, NY, Attorney for Respondent.
REPORT AND RECOMMENDATION
To the HONORABLE PAUL A. CROTTY, U.S.D.J:
I. INTRODUCTION
Pro se petitioner Kevin Scullark ("Scullark") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for second-degree murder, second-degree criminal possession of a weapon (two counts), third-degree criminal possession of a weapon (two counts), and first-degree criminal use of a firearm (two counts) in New York State Supreme Court, Bronx County. After a jury trial, Scullark was sentenced to consecutive indeterminate terms of: a) twenty-five years to life for murder, and b) two terms of five to fifteen years for the second-degree possession convictions, which run concurrently with two concurrent indeterminate terms of two and one-third to seven years for the third-degree possession conviction and two concurrent indeterminate terms of twelve and one-half to twenty-five years for the first degree firearm conviction. Affidavit of Kimberly Morgan, Assistant District Attorney, in Opposition to Petition for Habeas Corpus ("Opp. Aff."), ¶ 4. Scullark is currently serving his sentences at Green Haven Correctional Facility in Stormville, New York.Scullark challenges his conviction and asserts that: 1) he was denied favorable evidence in violation of People v. Rosario, 9 N.Y.2d 286 (1961); 2) he received consecutive rather than concurrent sentences for his murder and weapons possession convictions; and 3) the trial court failed to give the jury an accomplice-corroboration charge. Petition ("Pet.") at 5-6. For the reasons set forth below, I recommend that Scullark's petition be DISMISSED.
II. BACKGROUND
Scullark's convictions are the result of a shooting incident on October 7, 1993. Opp. Aff., Exh. 2, Brief for Defendant-Appellant, Appellate Division, First Department, December, 1999 ("Scullark App. Brief") at 2. Accompanied by two acquaintances, Michael Shields ("Shields") and Nathaniel Notice ("Notice"), Scullark armed himself and then shot Germaine President ("President"), a man with whom he had had prior altercations. Id. at 3. Notice was not indicted. Id. at 2-3. At trial, Scullark testified that he saw President enter his car, saw a bullet being fired from the car, and fired back in self-defense, but the prosecution presented evidence that no shots were fired from the car. Id. Shields was arrested after running from the scene. Id. at 5. He was carrying three guns when police arrested him, and pled guilty to one count of criminal facilitation. Id. at 8. He testified for the prosecution at Scullark's trial, describing the events leading up to the shooting. Id. He reported that Scullark told him he wanted to kill President, and that both men went to Notice's house, all three leaving with guns. Id. Notice told him he was to take the guns after the shooting and take a cab back to Notice's house. Id. After the shooting, Scullark and Notice gave Shields their guns. Id. at 9. Shields testified he agreed to cooperate with the police because he did not want to be penalized for something he did not do. Id. He admitted to assisting with the crime, but believed he was not responsible since he did not fire a gun. Id.In contrast, Scullark testified he, Notice, and Shields got together to "meet some girls." Id. at 12. Scullark told the other men he was armed because he was going into President's neighborhood and that President had fired on him before. Id. All three men took guns from Notice's apartment. Id. Scullark saw President as they came into the neighborhood and turned onto another street to avoid him. Id. The group kept walking until they saw President's car backing up the street towards them. Scullark saw a flash, heard a shot, fired back three or four times, and ran away. Id.
At trial, no accomplice-corroboration instruction was requested or given. Id. The jury returned its verdict on February 20, 1997. See Opp. Aff. ¶ 4. The Appellate Division, First Department, affirmed Scullark's convictions on May 30, 2000, People v. Scullark, 709 N.Y.S. 2d 516 (App.Div. 1st Dep't 2000), and leave to appeal to the Court of Appeals was denied on November 20, 2000. People v. Scullark, 95 N.Y.2d 938 (2000).
III. DISCUSSION
A. Timeliness
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year statute of limitations applies to habeas corpus petitions by state prisoners. 28 U.S.C. § 2244(d). The limitations period "does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired." Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Scullark's conviction was final ninety days after leave to appeal to the Court of Appeals was denied: February 18, 2001. His one-year statute of limitations period, therefore, ended February 18, 2002. The Pro se Office received this petition on February 26, 2002. However, the prison mailbox rule applies to habeas petitions and the date on which Scullark handed his petition to prison authorities for mailing is the date of filing. Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.), cert denied, 534 U.S. 886 (2001). The Court does not have that date from Scullark. For the purposes of this Report and Recommendation, Scullark's petition is considered to be timely, as I recommend herein that his claims be dismissed. With any objections filed, Scullark should supply the Court with the date upon which he submitted his petition to prison authorities for mailing.
B. Exhaustion
Generally, a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A). The exhaustion doctrine requires a habeas petitioner challenging a state conviction on federal grounds to have presented his or her claims to the state courts first. See Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). In Daye, the Court indicated four ways in which a petitioner may "fairly present" federal constitutional claims to the state courts: "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Id. at 194. Citation to the due process clause and the Fourteenth Amendment in the point heading of a state appellate court brief can be sufficient to exhaust a petitioner's claims, Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001), but mere references to "due process" and "fair trial" are insufficient if the argument rests on issues of state law. Petrucelli v. Coombe, 735 F.2d 684, 688-90 (2d Cir. 1984).
Scullark's appellate brief includes citations to the Fourteenth Amendment to the United States Constitution in the point headings and the opening paragraphs of each section. See Scullark App. Brief at 15, 18, 19, 21, 22. His first letter asking for leave to appeal to the Court of Appeals also cites the Fourteenth Amendment. See Opp. Aff., Exh. 4. However, the arguments do not cite any federal case law or reference any federal constitutional issue. The first possibility presented in Daye, therefore, is not met in this case.
The arguments regarding Scullark's Rosario claim depend exclusively on state law. The prosecution's mandatory disclosure requirements, established in People v. Rosario, 9 N.Y.2d 286 (1961), and codified in New York Criminal Procedure Law ("NYCPL") § 240.45, are purely a creature of state law, although Rosario itself cites a federal case which focuses on federal evidentiary rules. 9 N.Y.2d at 290 ( citing Jencks v. United States, 353 U.S. 657, 667 (1957)). A claim focused solely on Rosario material would appear to be unexhausted under the principles outlined in Daye, although some courts in this district have found Rosario claims to be exhausted, without discussion, apparently because the claims were presented to the state courts in the first instance. See, e.g., Bell v. Albaugh, 2000 WL 1877103, at *4-6 (S.D.N.Y. Dec. 27, 2000) (finding Rosario claim exhausted because it was presented to the state courts, but finding it not cognizable on federal review); Iglesias v. Keane, 1995 WL 384431, at *2 (S.D.N.Y. June 28, 1995) (same). Compare with Gumbs v. Kelly, 2000 WL 1172350, at *6-7 (S.D.N.Y. Aug. 18, 2000) (finding petitioner's claim unexhausted because on state appeal it was argued only in terms of the Rosario rule).
Similarly, the arguments Scullark presented on state appeal which support his sentencing claim focus on rights created exclusively by New York state law which provides that concurrent sentences must be imposed "for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other." New York Penal Law ("NYPL") § 70.25(2). Some of the cases Scullark's brief cites mention the issue of double punishment, e.g., People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 269-70 (1957), but Scullark's brief does not discuss double jeopardy or cite the Fifth Amendment. See Scullark App. Brief. at 18-21. An indirect reference to federal law is too attenuated to fairly present federal claims to the state courts. See, e.g., Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (finding sentencing-related claim unexhausted where petitioner's appellate brief cited a state case, which in turn cited a federal case).
The portions of Scullark's appellate brief discussing his accomplice-corroboration charge claim also only briefly cite the Fourteenth Amendment, without making any specific constitutional arguments or otherwise citing federal law. See Scullark App. Brief at 15-18. The argument is based on state law, which states that a defendant cannot be convicted based on the testimony of an accomplice unsupported by other corroborative evidence. NYCPL § 60.22(1). However, some of the cases cited by Scullark refer to federal cases and mention that even under federal law, an accomplice-corroboration charge is necessary, even if the defendant fails to request one, if the "guilt of the defendant largely hinges on the testimony of the accomplice." See, e.g., People v. Ramos, 418 N.Y.S.2d 103, 107 (App.Div. 1st Dep't 1979) ( citing United States v. Evans, 398 F.2d 159 (3d Cir. 1968) and Williamson v. United States, 332 F.2d 123 (5th Cir 1964)). While the Rosario and sentencing claims are unexhausted for failure to refer to a federal constitutional issue, Scullark has fully exhausted his accomplice-corroboration charge claim because the cases he cites refer to federal law and the issue falls within the "mainstream of constitutional litigation." Daye, 696 F.2d at 194. As for the unexhausted claims, district courts have the power to deny a habeas petition on the merits even if some of the claims have not been exhausted. 28 U.S.C. § 2254(b)(2). Therefore, I will consider the merits of all of Scullark's claims.
C. The Rosario and Sentencing Claims are Not Cognizable on Habeas Review
Because Scullark's Rosario and sentencing claims are both based exclusively on state law they are not only unexhausted, but are not cognizable on federal review.
1. Rosario Claim
Scullark's trial counsel asked the court to review the notes of the detective who interviewed witnesses at the scene of the crime because those notes suggested there were other notes the prosecution had not turned over. Scullark App. Brief at 22. The detective testified he did not remember taking other notes, and the court, therefore, declined to review the notes. Id. On appeal, the Appellate Division ruled that the trial court had "properly exercised its discretion" in this area, noting that Scullark had only offered "speculation as to the possible existence of missing notes." Scullark, 709 N.Y.S.2d at 517. Scullark alleges in his petition that, by failing to turn over the alleged missing notes, the prosecution failed to disclose favorable evidence to the defense as required under Rosario, 9 N.Y.2d 286. Pet. at 5; Scullark App. Brief at 21. A claim based solely on a violation of Rosario is not, however, cognizable on federal review as the claim does not present a federal issue and is purely a matter of state law. See Ellis v. Phillips, 2005 WL 1637826, at *27 (S.D.N.Y. Jul. 13, 2005) (distinguishing between the federal Brady rule and New York's Rosario rule). See also Randolph v. Warden, Clinton Corr. Facility, 2005 WL 2861606, at *5 (S.D.N.Y. Nov. 1, 2005); Green v. Artuz, 990 F. Supp. 267, 274-75 (S.D.N.Y. 1998). Therefore, I recommend that this claim be DISMISSED.
2. Sentencing Claim
Similarly, Scullark's sentencing claim presents no federal constitutional issue. He claims, as he did on appeal in the state courts, that the trial court violated NYPL § 70.25(2) when it imposed consecutive, rather than concurrent, sentences for his murder and weapons possession charges. Scullark App. Brief at 18-21. However, "there is `no constitutionally cognizable right to concurrent, rather than consecutive, sentences.'" United States v. McLean, 287 F.3d 127, 136-37 (2d Cir. 2002) ( citing United States v. White, 240 F.3d 127, 135 (2d Cir. 2001)). To present a federal claim, "a petitioner must show the trial court's sentencing decision amounted to an improper, `arbitrary or capricious abuse of discretion' that deprived the petitioner of his liberty. Herrera v. Artuz, 171 F. Supp. 2d 146, 151 (S.D.N.Y. 2001) ( quoting Jones v. Hollins, 884 F. Supp. 758, 761-62 (W.D.N.Y.), aff'd, 89 F.3d 826 (2d Cir. 1995)). In order to violate the Eighth Amendment's prohibition on cruel and unusual punishment, a sentencing decision must present "extraordinary circumstances." Id. (citations omitted). Accord Ellis, 2005 WL 1637826, at *18-19; Arocho v. Walker, 2001 WL 856608, at *3 (S.D.N.Y. July 27, 2001).
The state court decisions here did not rise to such a level. The Appellate Division ruled that Scullark's unlawful possession of the weapon he used in the shooting was complete prior to using that weapon to commit the murder, which "constituted a separate, successive act permitting the imposition of consecutive sentences." Scullark, 709 N.Y.S. 2d at 517. The precise facts of Scullark's case arguably presented an open question. See Opp. Aff., Exh. 5, Criminal Leave Application, July 10, 2000. The Court of Appeals had decided that NYPL § 70.25(2) prohibited consecutive sentences unless the prosecution could show the defendant developed two separate intents, for example, one, unlawful use of a weapon, and two, intent to kill. See People v. Salcedo, 92 N.Y.2d 1019, 1022 (1998) (holding consecutive sentences allowed because defendant's original intent was to use the gun to force victim to leave with him, although he eventually used it to kill her); People v. Parks, 95 N.Y.2d 811, 815 (2000) (holding consecutive sentences on two robbery counts not allowed where neither the indictment nor the court indicated which robbery served as the predicate for felony murder). Based on these cases, Scullark's appellate defense counsel appropriately argued that the trial court's sentencing decision should be overturned.
Recently, the state courts have indicated that Scullark's case might come out differently today. See People v. Hamilton, 797 N.Y.S.2d 408, 409-10 (2005) (holding consecutive sentences not allowed where defendant went in a building, emerged with a gun, and shot the victim because the prosecution had not established "that he possessed the pistol with a purpose unrelated to his intent to shoot [the victim]"); People v. Sims, 797 N.Y.S.2d 8, 9 (App.Div. 1st Dep't. 2005) (holding consecutive sentences not allowed where defendant's use of the gun in a robbery was not a separate act and there was no evidence to support trial court's statement that the defendant pointed the gun at a police officer).
On the other hand, the trial court's sentencing decision was supported by existing case law. See, e.g., People v. Simpson, 619 N.Y.S.2d 259, 259 (App.Div. 1st Dep't 1994) (finding separate acts where defendant put a gun in his pants and then went downstairs, spoke with deceased, and shot him in the head); People v. Almodovar, 62 N.Y.2d 126, 130 (1984) ("Once the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime."). Therefore, Scullark cannot show that the sentencing decision was an arbitrary or capricious abuse of discretion, and his sentencing claim should be DISMISSED.
C. The Accomplice-Corroboration Charge Claim is Procedurally Barred
A petitioner may be precluded from pursuing his claims on the merits because he procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Jones v. Vacco, 126 F.3d 408, 414 (2d Cir. 1997) ( citing Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994)). This preclusion from federal habeas review results when: (1) the state court declines to address petitioner's federal claim because petitioner failed to meet a state procedural requirement, and (2) the state court decision rested on an independent and adequate state ground. See Coleman, 501 U.S. at 729-30. Accordingly, the federal district courts cannot hear procedurally barred claims unless petitioner "can demonstrate cause for the default and actual prejudice . . . or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id. at 750.
In order to show "cause," the petitioner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) ( citing Murray v. Carrier, 477 U.S. 478, 488 (1989)). The "prejudice" requirement is satisfied by a showing of "actual prejudice resulting from the errors of which [petitioner] complains." United States v. Frady, 456 U.S. 152, 168 (1982). Failing the "cause and prejudice" test, a petitioner may claim a "miscarriage of justice" only if he can supplement his alleged constitutional violation with a "colorable showing of factual innocence" in the form of newly adduced evidence. See Washington v. Superintendent, Otisville Corr. Facility, 1997 WL 178616, at *7 (S.D.N.Y. Apr. 11, 1997) ( citing McCleskey, 499 U.S. at 495).
1. The Appellate Division Found the Claim Procedurally Defaulted and Based its Decision on an Independent and Adequate State Ground
Scullark claims that the trial court failed to give the jury an accomplice as a matter of law charge with respect to Shields, a witness for the prosecution. Pet. at 6. Scullark also raised this claim on appeal. Scullark App. Brief at 15-18. The Appellate Division found the claim unpreserved and declined to review it "in the interest of justice." Scullark, 709 N.Y.S.2d at 517. The court also noted that "Were we to review such claim, we would find that although such a charge should have been provided, its absence did not deprive defendant of a fair trial in view of the overwhelming evidence independent of the accomplice's testimony." Id. (citations omitted). Under New York criminal procedure law, a "defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense." NYCPL § 60.22(1). However, such objections must be raised at trial to be preserved for appellate review. NYCPL § 470.05(2). No such objection was made at trial. Scullark App. Brief at 16.
"[A] state court procedural default will bar habeas review when `the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) ( quoting Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert denied, 520 U.S. 1108 (1997)). The Appellate Division's decision finding Scullark's accomplice-corroboration claim unpreserved clearly refers to a state procedural bar which constitutes an independent and adequate state ground and therefore precludes the claim from habeas review. Accord Spencer v. McCray, 2004 WL 1110244, at *7 (S.D.N.Y. Apr. 30, 2004) (finding accomplice-corroboration claim procedurally barred from habeas review where Appellate Division found the claim unpreserved). This remains true even though the Appellate Division addressed the merits of Scullark's claim in the alternative. Green, 414 F.3d at 294; Glenn, 98 F.3d at 725. Furthermore, the fact that the Court of Appeals denied leave to appeal without explanation does not change this outcome. The Appellate Division's decision is the last "reasoned" opinion on the claim and explicitly imposed the procedural bar. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
2. Scullark Has Not Shown Cause and Prejudice or a Fundamental Miscarriage of Justice
As noted above, the procedural bar can be overcome by showing 1) "cause" for the procedural default, an "objective factor external to the defense" which "impeded counsel's efforts to raise the claim in state court," McCleskey, 499 U.S. at 493; and "actual prejudice resulting from the errors," Frady, 456 U.S. at 168; or 2) a miscarriage of justice, that is, a "colorable showing of factual innocence." McCleskey, 499 U.S. at 495. Scullark fails on each count.
Scullark's habeas petition and state appellate briefs provide no information as to the cause for his failure to request an accomplice-corroboration charge, or to object to the court's failure to deliver such a charge. The Supreme Court has indicated that cause may be shown if the "factual or legal basis for a claim was not reasonably available" or there was "interference by officials" making it impracticable to comply with the procedural rules. Carrier, 477 U.S. at 488. Neither of those circumstances are present here. Scullark's counsel was apparently aware that Shields had pled guilty to criminal facilitation, Scullark App. Brief at 15, and there is no evidence any official interfered with Scullark's or his counsel's compliance with the rules.
Similarly, there is no showing of prejudice, that Scullark's failure to raise the claim so affected his trial as to deny him fundamental fairness. Id. at 494. The Appellate Division found that while the trial court should have given the charge even though Scullark failed to request it, there was "overwhelming evidence" of Scullark's guilt apart from Shields's testimony. Scullark, 709 N.Y.S.2d at 517. While Shields's testimony was critical to the trial, the prosecution presented an additional witness to the incident. Scullark App. Brief at 17. See, e.g., People v. Crespo, 764 N.Y.S.2d 411, 412 (App.Div. 1st Dep't 2003) (testimony of accomplice was "extensively corroborated" by another witness and scientific evidence); People v. Pelc, 476 N.Y.S.2d 661, 661 (App.Div. 4th Dep't 1984) (prosecution presented testimony from two other witnesses in addition to accomplice). Compare with People v. Leon, 509 N.Y.S.2d 1, 3-4 (App.Div. 1st Dep't 1986) (reversing conviction in the interest of justice because of trial court's failure to give accomplice-corroboration charge where conviction rested "substantially" on testimony of accomplice and only one other witness connected the defendant to the crime).
Furthermore, the error must be of "constitutional dimensions." Carrier, 477 U.S. at 494. While the Appellate Division indicated the trial court should have given the accomplice-corroboration charge, this is a matter of a state law, not federal. "In marked contrast to New York law . . . there is no federal constitutional requirement that accomplice witness testimony be independently corroborated." Spencer, 2004 WL 1110244, at *8-9 ( citing Caminetti v. United States, 242 U.S. 470, 495 (1917) ("there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them")). Scullark has not shown that his federal constitutional rights were violated. United States v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999) ("A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.") (internal citations and quotations omitted).
Finally, Scullark has not made a showing of factual innocence to demonstrate a miscarriage of justice. See Bousley v. United States, 523 U.S. 614, 623 (1998) ( citing Carrier, 477 U.S. at 496); Smith v. Murray, 477 U.S. 527, 537 (1986)). Therefore, his accomplice-corroboration charge claim is procedurally barred from federal habeas review.
IV. CONCLUSION
For the foregoing reasons, I recommend that the petition be DISMISSED.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Paul A. Crotty, 500 Pearl Street, Room 2102, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. §§ 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).