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In Ventura, the court found that that detective was able to speak both Spanish and English and "literally translated [the petitioner's] sentences in English as [the petitioner] spoke."
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99 Civ. 12025 (AJP)
July 19, 2000
OPINION AND ORDER
Petitioner Ramon Ventura seeks a writ of habeas corpus from his second degree murder conviction stemming from the shooting death of Allen Hilliard, for which Ventura was sentenced to fifteen years to life imprisonment. Ventura alleges that: (1) his translated confession was improperly admitted into evidence and violated his right to a fair trial (Pet. Addendum at 5), (2) the verdict was against the weight of the evidence (id. at 7), and (3) the trial court erred in admitting, without prior notice, police testimony about an additional statement allegedly made by Ventura (id. at 6).
For the reasons set forth below, the Court denies Ventura's petition.
FACTS Trial: The Shooting and Ventura's Confession
Allen Hilliard's body was found on December 31, 1992, on a stairway in Riverside Park just south of 152nd Street. (Dunleavy: Trial Transcript ("Tr.") 57-60, 64-66; Parker: Tr. 73-74; Esquerete: Tr. 125-29; Ranieri: Tr. 137-39, 162; Hendricks: Tr. 262; Guera: Tr. 408, 413.) Hilliard died of a single bullet wound to the head. (Dunleavy: Tr. 60; Schuster: Tr. 7-8, 43-47.) There were no weapons on Hilliard's person or in the surrounding area. (Dunleavy: Tr. 64; Parker: Tr. 74-75; Esquerete: Tr. 125.)
On January 5, 1993, five days after the murder, Ventura voluntarily walked into the 30th Precinct in Manhattan to confess to the murder. (Martinez: Tr. 82-85.) Ventura went over to the civilian receptionist, asked if she spoke Spanish, and when she said yes, Ventura pointed to an article in a Spanish-language newspaper and stated that he committed the homicide reported in the article. (Martinez: Tr. 80, 82-93.) Prior to his spontaneous confession, Ventura was not a suspect. (Ranieri: Tr. 183-84, 188-89.) Detective Anthony Vasquez administered full Miranda warnings in Spanish and after Ventura waived his rights, proceeded to question Ventura in Spanish. (Ranieri: Tr. 144-48, 189-205; Vasquez: Tr. 300-11, 341-42, 347, 355-57.) Detective Vasquez testified that he was bilingual, since his parents were Puerto Rican and he also had studied Spanish in school, and that as a detective he often had taken statements from Spanish-speaking defendants. (Vasquez: Tr. 300-01.)
Detective Vasquez took Ventura's statement in Spanish and transcribed it sentence by sentence into English. (Ranieri: Tr. 148-50; Vasquez: Tr. 309-10, 313-15, 347-51.) Detective Vasquez explained that he wrote the statement in English so other law enforcement personnel would be able to understand it. (Vasquez: Tr. 349.) Detective Vasquez orally translated the statement back to Ventura in Spanish and gave Ventura the opportunity to make changes, additions and/or deletions. (Vasquez: Tr. 311, 318-19, 348.) Ventura made no changes and both he and Detective Vasquez signed the statement. (Ranieri: Tr. 150; Vasquez: Tr. 311, 319.) Ventura also wrote a shorter, one-page statement of his own in Spanish. (Ranieri: Tr. 150, 205-06, 209, 256-57, 259; Vasquez: Tr. 312-13, 319-20, 358-60.)
Detective Vasquez read Ventura's confession to the jury. (Vasquez: Tr. 314-18.) Ventura said he was homeless and living in a car for the past two months. (Vasquez: Tr. 314.) Ventura saw Hilliard, who Ventura referred to as "Rata," steal Ventura's car-home from Riverside Drive near 152d Street a few days before the shooting. (Vasquez: Tr. 315-16.) Ventura saw Hilliard on December 31, they argued, and when Ventura saw Hilliard reach into his pocket as if going for a weapon, Ventura pulled out a .38 caliber revolver and shot Hilliard once in the head. (Vasquez: Tr. 317-18.) The Spanish-language confession that Ventura wrote was translated into English for the jury and was consistent with the English language confession. (Tr. 384-86.)
Detectives Ranieri and Vasquez then took Ventura to Riverside Drive and 152d Street, where they re-enacted the shooting, although Ventura's re-enactment was in certain respects inconsistent with the physical evidence from the murder scene. (Ranieri: Tr. 150-53; 220-25; Vasquez: Tr. 321-26, 360-62.) Ventura was taken back to the precinct, where Detective Vasquez challenged Ventura's confession. (Vasquez: Tr. 326-27, 366.) Detective Vasquez told Ventura that he did not want Ventura to confess to a murder that he had not committed in order to get three meals a day and a place to sleep. (Vasquez: Tr. 326-27, 366-70.) According to Detective Vasquez, Ventura responded, "`I'm telling you the truth, I killed that guy.'" (Vasquez: Tr. 326-27, 366-70.) Detective Vasquez did not mention this statement at the suppression hearing, and it did not appear in any statement written by Detective Vasquez or by Ventura. (Vasquez: Tr. 368-69.) Out of the jury's presence, defense counsel moved for a mistrial on the ground that he had never received any advance notice about the "I'm telling you the truth" statement. (Tr. 328-36.) The trial court reserved decision (Tr. 336-37) and later in the trial, after receiving case authority from the parties, denied the motion on the ground that notice that Ventura had made statements to the police was sufficient. (Tr. 375-79.)
The trial produced no additional evidence linking Ventura to the murder, aside from Ventura's confession. Ventura was unable to identify the victim in a photo array. (Ranieri: Tr. 212-18; Vasquez: Tr. 327, 338-39, 363-66.) Neither the murder weapon nor Ventura's allegedly stolen car was found. (Ranieri: Tr. 154-55; Schoeller: Tr. 273-78, 283-84.)
The defense did not call any witnesses. (Tr. 425.)
The Pretrial Suppression Hearing Testimony
Prior to trial, Ventura moved to suppress, inter alia, his statements, and on October 4 and October 5, 1993, Justice Dorothy Cropper conducted a combined Huntley/Mapp hearing. (Suppression Hearing Transcript ("S.") 1-198; see Ex. 3:11/30/93 Opinion.) Judith Martinez, a Spanish-speaking receptionist on duty at the 30th Precinct, and Detectives Joseph Ranieri and Anthony Vasquez testified. (See generally S. 1-198.)
References to Exhibits are to those in the Appendix to the State's brief.
Martinez testified that on January 5, 1993, Ventura walked up to the reception desk at the 30th Precinct, showed her a story in the Spanish newspaper, El Diario, describing Hilliard's murder, and told her in Spanish that he had committed that crime. (Martinez: S. 6-7, 9-11, 13-19, 110.)
Martinez called Detective Ranieri, who had been assigned to the case, and explained the contents of the newspaper article and Ventura's claim that he was the killer. (Martinez: S. 15-19; Ranieri: S. 22-23, 41-48.) Since Detective Ranieri did not speak Spanish, he requested the assistance of Detective Vasquez, who knew Spanish from school and from his Puerto Rican parents. (Ranieri: S. 25-26, 62-64; Vasquez: S. 112-15, 132.) Detective Vasquez informed Ventura in Spanish of his Miranda rights, and Ventura indicated that he understood and waived them. (Ranieri: S. 64-66, 100-01, 107-08; Vasquez: S. 116-20, 138-40.)
Detective Vasquez transcribed Ventura's statement as he spoke. (Ranieri: S. 27, 102; Vasquez: S. 121, 143.) Detective Vasquez translated Ventura's statements and wrote them in English "[f]or simplicity, for my co-worker, and for the Court." (Vasquez: S. 121, 143, 145, 160-61.)
Specifically, Detective Vasquez testified as to the transcription process at the hearing:
[VASQUEZ]: As Mr. Ventura was making a statement, he would say a statement. If he was speaking too fast I would tell him slow down and I would write it down in English sentence by sentence. It's not because — there may be a misconception here. It's not that he gave me a four page statement and I later on without taking any notes wrote a four page statement. It was sentence by sentence, stopping Mr. Ventura upon each sentence writing it out then reading it back and continuing.
[DEFENSE COUNSEL]: You wrote down everything that he said verbatim?
A. I would say so, yes.
Q. Is there anything that he said that is not included in the statement that you wrote?
A. He may have said something after I wrote the statement that is not in the statement.
Q. Is there anything that Mr. Ventura said prior to him signing the statement that you did not write down?
A. No.
Q. When you said that Mr. Ventura was making a statement, he spoke too fast, you would slow him down and you would write it down, were you questioning him in between him giving you information?
A. No, it was a statement that was coming directly from Mr. Ventura. He was speaking; I was writing out what he was saying.
Q. So at no point were you ever directing him to a particular area of what he had just said?
A. There may have been an occasion where I would ask him to explain it. He would explain it and I would write it down.
After the English transcription of Ventura's statement was completed, Detective Vasquez told Ventura that he would read it back to him in Spanish and Ventura could make any necessary changes. (Vasquez: S. 122.) Detective Vasquez proceeded to read each sentence to Ventura in Spanish. (Vasquez: S. 122-23, 144.) When Ventura was asked whether he wanted to make any changes, he answered, "no, that's fine, that's exactly what I said." (Vasquez: S. 123.) Both Ventura and Detective Vasquez signed the statement. (Ranieri: S. 79, 10, 107-08; Vasquez: S. 123-24, 143-44, 158-59.) Ventura also personally handwrote a shorter statement in Spanish. (Ranieri: S. 103-05; Vasquez: S. 125, 161.)
Detective Vasquez suggested that Ventura guide the police through the murder scene. (Ranieri: S. 90-91; Vasquez: S. 126.) There was conflicting testimony as to whether Ventura himself led the police to the correct location or whether Detective Ranieri, who had already investigated the area, directed Ventura to the scene. (Compare Ranieri: S. 91; with Vasquez: S. 126-27, 178-79.) Ventura used Detectives Vasquez and Ranieri as models to demonstrate where he and the victim were standing at the time of the shooting. (Ranieri: S. 92; Vasquez: S. 127.) The detectives testified that Ventura directed them to the Hudson River, where he claimed to have thrown the gun after the shooting. (Ranieri: S. 95-97; Vasquez: S. 128, 183-84, 187, 189.)
Back at the precinct, Ventura failed to identify Hilliard's photograph from a six-picture photo array. (Ranieri: S. 28-29, 82-85; Vasquez: S. 129-30, 91-94.) Although Ventura had previously stated that he had seen the victim often and was able to describe him, after the photo array Ventura said that he had only seen the victim once before the shooting, and that on both occasions the victim wore a hood over his head. (Ranieri: S. 82; Vasquez: S. 130, 193-94.)
In a written decision issued November 30, 1993, Justice Cropper denied Ventura's suppression motion. (Ex. 3:11/30/93 Opinion at 5-6.) She found the statements to be voluntary, made after Ventura was fully advised of his Miranda rights in Spanish. (Id. at 5.) The court also found Detective Vasquez to be "well-qualified to interpret in Spanish." (Id.)
Verdict and Sentence
On March 23, 1994, the jury found Ventura guilty of second degree murder and criminal weapons possession. (Tr. 636.) On April 15, 1994, the trial judge sentenced Ventura to concurrent terms, the longer being 15 years to life imprisonment. (4/15/94 Sentencing Tr. at 7, 10-11.) See also People v. Ventura, 250 A.D.2d 403, 403, 673 N.Y.S.2d 106, 106 (1st Dep't 1998).
At sentencing, Ventura stated that he was innocent but was paid $50,000 to plead guilty by someone named Jose Daniel. (Id. at 5-6.)
Ventura's Direct Appeal
Represented by the Office of the Appellate Defender, Ventura appealed to the First Department, arguing that: (1) Ventura's right to a fair trial was violated when the trial court admitted Detective Vasquez's notes, even though signed by Ventura, because he did not understand English (Ex. 5: Ventura 1st Dep't Br. at 17-30; Ex. 6: Ventura 1st Dep't Reply Br. at 1-9); (2) the trial court erred in admitting Detective Vasquez's testimony that Ventura said he was not falsely confessing because homeless, without adequate notice as required by New York CPL § 710.30 (Ventura 1st Dep't Br. at 30-43; Ventura 1st Dep't Reply Br. at 10-19); and (3) the verdict was against the weight of the evidence (Ventura 1st Dep't Br. at 44-49; Ventura 1st Dep't Reply Br. at 19-30).
CPL § 710.30(1) provides that:
1. Whenever the people intend to offer at a trial:
(a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20 . . . they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered . . .
On May 12, 1998, the First Department unanimously affirmed Ventura's conviction. People v. Ventura, 250 A.D.2d 403, 673 N.Y.S.2d 106 (1st Dep't 1998). The First Department held, in full:
Defendant's written confession, transcribed by a bilingual detective, was properly admitted at trial. The fact that defendant understood no English did not render the written statement inadmissible on the grounds of involuntariness or hearsay. The detective testified, at the suppression hearing and at trial, that he read the statement, written in English, back to defendant word for word in Spanish and that defendant adopted it as his own statement by signing each page. Police transcribed statements may be admissible, and we see no reason to distinguish those involving translation where, as here, the People lay a proper foundation through the testimony of a bilingual officer. We have reviewed defendant's other arguments on this subject and find them to be without merit.
The trial court properly denied defendant's motion for a mistrial based upon an alleged violation of CPL 710.30(1)(a), since the statement testified to was a reconfirmation of the statements that were contained in the People's statement notice and found voluntary at the Huntley hearing. In any event, any error that may have occurred was harmless given the other evidence.
The verdict was not against the weight of the evidence. We find no reason to disturb the jury's determination to credit defendant's confession, which was consistent with the physical evidence concerning the manner in which the crime occurred and which contained facts not reported in a newspaper article about the crime.
People v. Ventura, 250 A.D.2d at 403, 673 N.Y.S.2d at 106 (citations omitted).
Ventura (through appellate counsel) sought leave to appeal to the New York Court of Appeals. (Ex. 8: Ventura 6/24/98 Leave to Appeal Letter.) Ventura's counsel primarily argued that the statement translated by Detective Vasquez should have been excluded because Ventura did not understand the notes written in English and therefore could not adopt them as his own. (Id. at 1-4.) Ventura concluded that he sought leave to appeal "[f]or these reasons, and for the reasons explained in his briefs to the First Department." (Id. at 5.) The letter stated that "[i]n support of this application, Mr. Ventura relies on this letter and also on Point I of his opening and reply briefs to the Appellate Division" (id.), which concerned the admission of Detective Vasquez's "notes" of Ventura's confession. Neither in his initial letter of June 24, 1998, nor in subsequent letters dated July 23 and July 31, 1998, did Ventura expressly complain that his statement "I'm telling you the truth, I killed that guy," as Detective Vasquez testified, should have been excluded. (See Ex. 8: Ventura 7/23/98 7/31/98 Leave to Appeal Letters.)
On September 24, 1998, the New York Court of Appeals denied leave to appeal. People v. Ventura, 92 N.Y.2d 931, 680 N.Y.S.2d 472 (1998).
Ventura's Current Federal Habeas Petition
Ventura's current, timely pro se federal habeas petition is dated November 18, 1999 and was received by the Court's Pro Se Office on November 24, 1999. (Pet. at 2, 7.) Ventura's habeas petition alleges that: (1) his translated confession was improperly admitted into evidence because Ventura did not understand the English translation that he signed, and thus his right to a fair trial was violated (Pet. Addendum at 5), (2) the verdict was against the weight of the evidence (id. at 7), and (3) the trial court erred in admitting, without prior notice, Detective Vasquez's testimony of Ventura's statement "I'm telling you the truth, I killed that guy." (Id. at 6.)
ANALYSIS I. THE ADMISSION OF VENTURA'S TRANSLATED CONFESSION DID NOT VIOLATE HIS DUE PROCESS RIGHTS
In order to determine whether the trial court's decision to admit Ventura's translated confession warrants habeas relief, the Court must address the proper review standard under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 120 S.Ct. 1495, 1518 (2000); accord, e.g., Lainfiesta v. Artuz, 99 Civ. 11428, 2000 WL 739425 at *8 (S.D.N.Y. June 8, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.). The AEDPA imposed a more stringent review standard, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) 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; or (2) . . . 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)(1)-(2).
The "contrary to" and "unreasonable application" claims of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 120 S.Ct. at 1523.
Accord, e.g., Clark v. Stinson, No. 97-2885, 214 F.3d 315 (Table), 2000 WL 710044 at *4 (2d Cir. June 1, 2000); Lainfiesta v. Artuz, 2000 WL 739425 at *8; Mendez v. Artuz, 2000 WL 722613 at *22.
Accord, e.g., Lainfiesta v. Artuz, 2000 WL 739425 at *8; Mendez v. Artuz, 2000 WL 722613 at *22; Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.).
As to the "contrary to" clause,
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 120 S.Ct. at 1519-20.
Accord, e.g., Lainfiesta v. Artuz, 2000 WL 739425 at *9; Mendez v. Artuz, 2000 WL 722613 at *22; Fluellen v. Walker, 2000 WL 684275 at *10.
In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 120 S.Ct. at 1523. However, "[t]he term `unreasonable' is . . . difficult to define." Id. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state-court's application of clearly established federal law was objectively unreasonable." Id. at 1521.
Accord, e.g., Lainfiesta v. Artuz, 2000 WL 739425 at *9; Mendez v. Artuz, 2000 WL 722613 at *22; see also Van Tran v. Lindsey, 212 F.3d 1143, 1153 (9th Cir. 2000) (a state's application of federal law must be reversed when "independent review of the legal question does not merely allow [the reviewing court] ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves [the reviewing court] with a `firm conviction' that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the [state] court adopted, was erroneous — in other words that clear error occurred."); Jones v. Stinson, 94 F. Supp.2d 370, 393 (E.D.N.Y. 2000) (state court denial of a fair trial claim was "an objectively unreasonable application of the relevant clearly established federal law" where defendant, whose defense to drug sales charges was that he believed vials contained only baking soda, was prevented from testifying about his prior arrests and dismissals for alleged drug sales that turned out to be baking soda).
Ventura's case is appropriately analyzed under the "unreasonable application" clause, since the state courts identified the correct governing legal principle from Supreme Court decisions, that is, Miranda v. Arizona, 384 U.S. 436, 444, 475, 86 S.Ct. 1602, 1612, 1628 (1966). The state court correctly found Ventura's statements to the police to be voluntary under Miranda. After the Huntley hearing, Justice Cropper admitted Ventura's confession finding that "he was fully and completely advised of his Constitutional [i.e., Miranda] rights in Spanish by Det. Vasquez, who was well-qualified to interpret in Spanish [and that Ventura] knowingly and voluntarily chose to waive them." (Ex. 3:11/30/93 Opinion at 5.)
Indeed, the challenge on direct appeal and here is not to the Miranda-voluntariness of Ventura's statements but with whether Ventura, who spoke only Spanish and not English, could adopt Detective Vasquez's English-language "notes." (See pages 5, 7 above.) Case law allows admission into evidence of a voluntary confession even where it is actually written (or typed) by the police but then adopted by the defendant's signing the statement. Cf. Oregon v. Elstad, 470 U.S. 298, 301, 105 S.Ct. 1285, 1288 (1985) (admitting a typed statement reviewed by the respondent, which was read back to him for correction and then signed); Estelle v. Jurek, 450 U.S. 1014, 1017, 101 S.Ct. 1724, 1726 (1981) (finding transcribed confessions to be voluntary and admissible); Waterhouse v. Rodriguez, 848 F.2d 375, 377 (2d Cir. 1988); LaFrance v. Mitchell, 93 Civ. 0804, 1996 WL 741601 at *1 (S.D.N.Y. Dec. 27, 1996).
The difference here, of course, is that Ventura could not understand English. The Second Circuit, however, has recognized the admissibility of a translated confession. United States v. Lopez, 937 F.2d 716, 724 (2d Cir. 1991); United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir. 1989); United States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir. 1984); United States v. DaSilva, 725 F.2d 828, 829-32 (2d Cir. 1983); United States v. Lind, 542 F.2d 598, 599 (2d Cir. 1976); see also, e.g., United States v. Cordero, 18 F.3d 1248, 1252-53 (5th Cir. 1994) (adopting 2d Circuit's reasoning); United States v. Nazemian, 948 F.2d 522, 525-28 (9th Cir. 1991); LanFranco v. Abrams, 92 Civ. 5812, 1994 WL 267903 at *2-3 (S.D.N.Y. June 16, 1994). Admission of a voluntary, translated confession, in the proper factual circumstances, thus is neither contrary to nor an unreasonable application of Supreme Court law.
In this case, the evidence at the suppression hearing and later at trial does not support Ventura's contention that he did not understand the translation because it was in English. Detective Vasquez testified to his own ability to speak both Spanish and English. (Vasquez: S. 112-14; Vasquez: Tr. 300-01.) Detective Vasquez also explained that he literally translated Ventura's sentences into English as Ventura spoke. (Vasquez: S. 121, 143; Vasquez: Tr. 309-10, 313-15, 347-51.) Furthermore, Ventura signed the English version of his translated statement after listening to it read in Spanish and declining to make any changes. (Vasquez: S. 122-23; Vasquez: Tr. 311, 318-19, 348.) The state court rulings admitting the translated confession were not "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).
Ventura's habeas petition is denied as to the admissibility of his translated confession.
II. VENTURA'S CLAIM THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AT TRIAL DOES NOT PRESENT A COGNIZABLE CLAIM FOR HABEAS REVIEW
Ventura contends that the jury's verdict was against the weight of the evidence. (Pet. Addendum at 7; see also Ex. 5: Ventura 1st Dep't Br. at 44-49; Ex. 6: Ventura 1st Dep't Reply Br. at 19-30.) Ventura is pro se, and a pro se petitioner's pleadings are construed liberally and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *5 n. 11 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *7 (S.D.N.Y. Oct. 29, 1999) (Peck, M.J.). The Court therefore will assume that Ventura wished to raise a sufficiency of the evidence argument, and addresses that argument.
Ventura's weight of the evidence claim is deemed fully exhausted even though he did not raise it to the New York Court of Appeals. "A determination of whether a judgment of conviction is `against the weight of the evidence' is deemed to be on the facts (CPL 470.15[5]) and is the exclusive province of an intermediate appellate court." People v. Rayam, 94 N.Y.2d 557, 560, 708 N.Y.S.2d 37, 39 (2000); People v. Bleakley, 69 N.Y.2d 490, 493-94, 515 N.Y.S.2d 761, 762-63 (1987). Thus, the claim is fully exhausted although not raised in the New York Court of Appeals. See, e.g., Warmus v. Lord, No. 98-2427, 172 F.3d 39 (Table), 1999 WL 89530 at *2 (2d Cir. 1999); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995); Forman v. Artuz, 99 Civ. 9046, 2000 WL 37056 at *4 (S.D.N.Y. April 11, 2000) (Peck, M.J.); Figueroa v. Portuondo, 96 F. Supp.2d 256, 277 (S.D.N.Y. 1999); Todd v. Senkowski, 98 Civ. 7025, 1999 WL 335813 at *3 (S.D.N.Y. May 24, 1999).
"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt. . . ." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.
Accord, e.g., Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck. M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 267 (S.D.N.Y. 2000) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137-38 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. April 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N Y 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).
Petitioner Ventura bears a "very heavy burden":
[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).
Accord, e.g., United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.) (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[D]efendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "`very heavy'" and all inferences must be drawn in the government's favor); Estrada v. Senkowski, 1999 WL 1051107 at *15; Roldan v. Artuz, 78 F. Supp.2d at 267; Franza v. Stinson, 58 F. Supp.2d at 138; Carromero v. Strack, 1998 WL 849321 at *4; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
The Court's review of the jury's findings is limited:
[T]his inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (quotations and citations omitted).
See also, e.g, Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 860 (1993) (quoting Hyde v. Shine, 199 U.S. 62, 84, 25 S.Ct. 760, 764 (1905) ("[I]t is well settled that upon habeas corpus the court will not weigh the evidence.")); Tibbs v. Florida, 457 U.S. 31, 42-45, 102 S.Ct. 2211, 2218-20 (1982) (discussing distinction between weight and sufficiency of the evidence); United States v. Russo, 74 F.3d at 1395 (quoting United States v. Martinez, 54 F.3d at 1042-43); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *3 (S.D.N.Y. Jan. 4, 2000) ("A federal [habeas] court is not permitted `to make its own subjective determination of guilt or innocence.'"); Estrada v. Senkowski, 1999 WL 1051107 at *15; Roldan v. Artuz, 78 F. Supp.2d at 267; Franza v. Stinson, 58 F. Supp.2d at 138; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
The uncontradicted evidence showed that Ventura voluntarily appeared at the precinct to confess to the murder. (Martinez: Tr. 80-93.) The jury heard testimony from Detectives Vasquez and Ranieri describing Ventura's voluntary confession (Ranieri: Tr. 144-50; Vasquez: Tr. 300-20, 347-51) and also heard Ventura's statement to Detective Vasquez that "I'm telling you the truth, I killed that guy." (Vasquez: Tr. 326-27, 366-70.) The jury also was given Ventura's own handwritten confession, in Spanish, along with a stipulated English translation. (E.g., Vasquez: Tr. 312-13, 319-20, 358-60; Tr. 384-86.)
The jury chose to credit Detectives Vasquez's and Ranieri's testimony regarding Ventura's confessions and convict Ventura of Hilliard's murder. The "jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164 (1989)).
Accord, e.g., United States v. Rosa, 11 F.3d at 337; Estrada v. Senkowski, 1999 WL 1051107 at *16; Roldan v. Artuz, 78 F. Supp.2d at 269; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
This Court may not reassess the jury's finding of credibility: "`[f]ederal habeas courts are not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.'" Vera v. Hanslmaier, 928 F. Supp. at 284 (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. 1992), aff'd, 992 F.2d 320 (2d Cir. 1993)).
Accord, e.g., Estrada v. Senkowski, 1999 WL 1051107 at *16; Roldan v. Artuz, 78 F. Supp.2d at 269; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416-17; Williams v. Bennet, 1998 WL 236222 at *5; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Fagon v. Bara, 717 F. Supp. 976, 979-80 (E.D.N.Y. 1989).
Ventura's weight of the evidence claim is not cognizable on federal habeas review. Even if the claim is deemed to be an insufficiency of the evidence claim, there was sufficient evidence for a reasonable jury to find Ventura guilty beyond a reasonable doubt.
III. VENTURA'S CLAIM THAT THE TRIAL COURT ERRED IN ADMITTING "SURPRISE" EVIDENCE OF HIS ADDITIONAL STATEMENT THAT HE WAS COMFESSING BECAUSE HE WAS GUILTY, NOT BECAUSE HE WAS HOMELESS, IS PROCEDURALLY BARRED A. Since This Claim Was Not Mentioned in Ventura's Application for Leave to Appeal to the New York Court of Appeals, It Is Not Exhausted and Thus Procedurally Barred from Habeas Corpus ReviewSection 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44, 119 S.Ct. 1728, 1731 (1999) ("[t]he exhaustion doctrine . . . is now codified at 28 U.S.C. § 2254 (b)(1)"); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948 . . . in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732; Mendez v. Artuz, 2000 WL 722613 at *23; Thomas v. Greiner, 2000 WL 194677 at *3 ( cases cited therein).
See also, e.g., Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N Y May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 97 Civ. 2958, 2000 WL 194677 at *2 n. 2 (S.D.N.Y. Feb. 17, 2000) (Peck, M.J.) ( cases cited therein); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Marcelin v. Garvin, 97 Civ. 2996, 1999 WL 977221 at *8 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Bond v. Walker, 68 F. Supp.2d 287, 293 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 150 (S.D.N.Y. July 9, 1999) (Scheindlin, D.J. Peck, M.J.); Howard v. Lacy, 58 F. Supp.2d 157, 162 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 610 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 420 (S.D.N Y 1999) (Baer, D.J. Peck, M.J.); Gibriano v. Attorney General, 965 F. Supp. 489, 491 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.).
The Second Circuit has long held, and the Supreme Court recently confirmed, that "a state prisoner must present his claims to a state supreme [i.e., highest] court in a petition for discretionary review in order to satisfy the exhaustion requirement." O'Sullivan v. Boerckel, 526 U.S. at 839-40, 119 S.Ct. at 1730; accord, e.g., Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000); Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000); Bossett v. Walker, 41 F.3d at 828 ("To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims `to the highest court of the pertinent state.'"); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991) ("a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition"); Pesina v. Johnson, 913 F.2d at 54 ("We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition," citing Daye); Daye v. Attorney General, 696 F.2d at 191 n. 3 ("Exhaustion of available state remedies requires presentation of the claim to the highest state court from which a decision can be had."); Mendez v. Artuz, 2000 WL 722613 at *24; Foreman v. Garvin, 2000 WL 631397 at *7; Thomas v. Greiner, 2000 WL 194677 at *3 ( cases cited therein).
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
"First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim."
Thomas v. Greiner, 2000 WL 194677 at *3 (quoting Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845-48, 119 S.Ct. at 1732-34; Mendez v. Artuz, 2000 WL 722613 at *24; Foreman v. Garvin, 2000 WL 631397 at *7 n. 9; Cruz v. Greiner, 1999 WL 1043961 at *20; Marcelin v. Garvin, 1999 WL 977221 at *8; Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360-61 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Bond v. Walker, 68 F. Supp.2d at 293; Avincola v. Stinson, 60 F. Supp.2d at 150; Walker v. Miller, 959 F. Supp. 638, 641 (S.D.N.Y. 1997) (McKenna, D.J. Peck, M.J.); Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N Y May 31, 1996) (Batts, D.J. Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.).
Ventura's claim that it was error to admit Detective Vasquez's "surprise" testimony that Ventura said "I'm telling you the truth, I killed that guy" (Vasquez: Tr. 326-27, 366-70), was not raised in Ventura's counsel's letters seeking leave to appeal to the New York Court of Appeals. After spending four single-spaced pages discussing the issue of Ventura's English-language confession, Ventura's counsel stated in the conclusion of his leave letter: "In support of this application, Mr. Ventura relies on this letter and Point I of his opening and reply briefs to the Appellate Division." (Ex. 8: Ventura 6/24/98 Leave to Appeal Letter at 5.) Point I of those briefs deals only with the English-language confession issue. Ventura's leave to appeal letters do not directly or indirectly raise his claim that Detective Vasquez's testimony that Ventura's said "I'm telling you the truth, I killed that guy" warranted a mistrial or should have been excluded. Reference to Ventura's First Department briefs is not sufficient to have exhausted the claim in the New York Court of Appeals. In Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991), the petitioner argued one claim in his leave to appeal letter to the New York Court of Appeals, and also attached his Appellate Division briefs, which had raised that issue along with two others. The Second Circuit held that the claims referred to only in his attached briefs were not exhausted:
Petitioner argues that by attaching his Appellate Division brief to his letter application to the Court of Appeals, he presented that court with an opportunity to rule on his sentencing and prosecutorial misconduct claims. He concedes, however, that his letter application requested that the Court of Appeals review only the search and seizure claim. The letter made no mention of the sentencing and prosecutorial misconduct claims. Under these circumstances, we disagree with petitioner's assertion that the Court of Appeals was presented with his sentencing and prosecutorial misconduct claims.
The fair import of petitioner's submission to the Court of Appeals, consisting of his brief to the Appellate Division that raised three claims and a letter to the Court of Appeals arguing only one of them, was that the other two had been abandoned. The only possible indication that the other two claims were being pressed was the inclusion of a lengthy brief originally submitted to another court. This did not fairly apprise the court of the two claims. We decline to presume that the New York Court of Appeals has "a duty to look for a needle in a paper haystack." For a federal court to hold that a state court had the opportunity to rule on a constitutional claim as to which no ruling was requested, and then to rule on the merits of the claim itself, would undermine the very considerations of comity that the rules of exhaustion were designed to protect.
Grey v. Hoke, 933 F.2d at 120 (citations omitted).
Accord, e.g., Jordan v. LeFevre, 206 F.3d 196, 198-99 (2d Cir. 2000), aff'g on this ground rev'g on other grounds, 22 F. Supp.2d 259, 266-69 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.) ( cases cited therein); Mendez v. Artuz, 2000 WL 722613 at *24-25 (claims not exhausted where the application for leave to appeal to the New York Court of Appeals merely refers to the Appellate Division briefs without further elaboration of the claims); Howard v. Lacy, 58 F. Supp.2d at 162-63 n. 4 (claims procedurally barred where raised before 1st Dep't but not in application for leave to appeal); Cardenas v. Superintendent, Malone Correctional Facility, No. CV-94-5093, 1996 WL 497138 at *3-4 (E.D.N.Y. Aug. 26, 1996) (excessive sentence claim procedurally barred where raised before 2d Dep't but not in application for leave to appeal); DeLeon v. Hanslmaier, No. CV-94-5512, 1996 WL 31232 at *3 (E.D.N.Y. Jan. 19, 1996) ("The fact that petitioner attached his brief submitted to the Appellate Division [with his application for leave to appeal to the Court of Appeals] is not enough to satisfy the exhaustion requirement."), aff'd, 104 F.3d 355 (2d Cir. 1996); Figueroa v. Kelly, 95 Civ. 0216, 1995 WL 702327 at *2 (S.D.N.Y. Nov. 29, 1995) ("If a petitioner limits the issues to be reviewed in a letter application to the New York Court of Appeals, the other claims presented in his or her Appellate Division brief are not deemed exhausted under the Lundy requirement . . . [but] should be deemed procedurally forfeited for purposes of federal habeas review where the petitioner is now procedurally barred from presenting those claims to the state court."); McGann v. Kelly, 891 F. Supp. 128, 134 (S.D.N.Y. 1995) ("By failing to raise his ineffective assistance of counsel claim in his leave application, petitioner did not fairly apprise the [N.Y.] Court of Appeals of the factual and legal premises underlying his claim."); Bass v. Scully, 1995 WL 347040 at *3; Lynes v. Mitchell, 894 F. Supp. 119, 123 (S.D.N.Y. 1995), aff'd, 104 F.3d 355 (2d Cir. 1996); Morales v. Keane, No. CV-94-2379, 1995 WL 235222 at *13 n. 9 (E.D.N.Y. April 13, 1995); Smith v. Keane, No. CV-94-0514, 1995 WL 87330 at *2 (E.D.N.Y. Feb. 10, 1995); Esquilin v. Walker, No. CV-91-4608, 1992 WL 151903 at *2 (E.D.N.Y. June 16, 1992), aff'd, 990 F.2d 624 (2d Cir. 1993); Cornielle v. Riley, No. CV-92-1018, 1992 WL 142009 at *2 (E.D.N.Y. June 16, 1992).
Ventura, however, would now be procedurally barred from raising this claim in the New York Court of Appeals. As the Second Circuit explained in Grey v. Hoke:
Here, New York procedural rules plainly bar petitioner from attempting to raise [the claims he raised before the Appellate Division but not in his application for leave to appeal] before the New York Court of Appeals. Petitioner cannot again seek leave to appeal these claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Court Rules § 500.10(a). Collateral review of these claims is also barred because the issues were previously determined on the merits on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(a); see also N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if a claim could have been raised on direct review). . . .
We agree with the state, however, that petitioner's forfeiture in state court of [the claims not adequately raised before the N.Y. Court of Appeals] bars him from litigating the merits of those claims in federal habeas proceedings, absent a showing of cause for the procedural default and prejudice resulting therefrom. Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-09 (1977). Petitioner makes no showing of cause or of prejudice. The [claims not raised before the Court of Appeals] must therefore be dismissed without reaching the merits.
Grey v. Hoke, 933 F.2d at 120-21; accord, e.g., Mendez v. Artuz, 2000 WL 722613 at *26; Foreman v. Garvin, 2000 WL 631397 at *9 nn. 10-11 ( cases cited therein). A federal court may not reach the merits of a procedurally defaulted claim "unless the habeas petitioner can show `cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `"fundamental miscarriage of justice,"'" i.e., a showing of "actual innocence." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations omitted); accord, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
See also, e.g., Mendez v. Artuz, 2000 WL 722613 at *26-27 n. 19; Foreman v. Garvin, 2000 WL 631397 at *10 n. 12; Thomas v. Greiner, 2000 WL 194677 at *5 ( cases cited therein); Bond v. Walker, 68 F. Supp.2d at 297; Avincola v. Stinson, 60 F. Supp.2d at 149; Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N Y 1998) (Cote, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 (S.D.N.Y. April 20, 1998) (Baer, D.J. Peck, M.J.); Farrington v. Senkowski, 19 F. Supp.2d 176, 180 (S.D.N.Y. 1998), aff'd, 214 F.3d 237 (2d Cir. 2000); Cooper v. LeFevre, No. 94-CV-5958, 1998 WL 386340 at *1-2 (E.D.N.Y. July 8, 1998); Gibriano v. Attorney General, 965 F. Supp. at 492 n. 5; Wells v. LeFevre, 96 Civ. 3417, 1996 WL 692003 at *3 (S.D.N Y Dec. 2, 1996); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.).
Here, Ventura has not alleged cause and prejudice nor has he made a showing of actual innocence. Thus, habeas review of this claim is procedurally barred.
B. Even If Habeas Corpus Review Were Possible, Ventura Does Not State a Constitutional Violation Since His Claim is Solely a State Procedural Matter
Ventura's claim that the trial court erred in allowing Detective Vasquez to testify that Ventura said "I'm telling you the truth, I killed that guy" (Vasquez: Tr. 326-27, 366-70) raises only a question of state law that was fully addressed by the First Department's decision affirming the trial court's denial of Ventura's motion for a mistrial.
It is well-established that a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480 (1991). "In general, rulings by the state trial court on evidentiary questions are a matter of state law and pose no constitutional issue." Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y.), aff'd mem., 71 F.3d 406 (2d Cir. 1995). "Issues regarding the admissibility of evidence in state court concern matters of state law and are not subject to federal review unless the alleged errors are so prejudicial as to constitute fundamental unfairness." McCray v. Artuz, 93 Civ. 5757, 1994 WL 603057 at *2 (S.D.N.Y. Nov. 3, 1994); see, e.g., Rosario v. Kuhlmann, 839 F.2d 918, 924-25 (2d Cir. 1988) ("erroneous evidentiary rulings do not automatically rise to the level of constitutional error"; habeas courts must determine whether inclusion of evidence was an error of constitutional dimension by depriving petitioner of a fundamentally fair trial).
Accord, e.g., Morris v. Reynolds, 98 Civ. 5439, 1999 WL 1565179 at *7 (S.D.N.Y. Dec. 16, 1999) (Peck, M.J.); Grant v. Demskie, 75 F. Supp.2d 201, 209 (S.D.N.Y. Nov. 17, 1999) (Sprizzo, D.J. Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); see also, e.g., James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5 (S.D.N.Y. April 29, 1998) (Cote, D.J. Peck, M.J.); Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N Y 1997).
See also, e.g., Grant v. Demskie, 75 F. Supp.2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *4; James v. Senkowski, 1998 WL 217903 at *5; Simmons v. Ross, 965 F. Supp. at 480.
See also, e.g., Grant v. Demskie, 75 F. Supp.2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *4; James v. Senkowski, 1998 WL 217903 at *5; Watson v. Kelly, 91 Civ. 7925, 1996 WL 409198 at *3 (S.D.N.Y. July 22, 1996).
Ventura bases his claim on an alleged violation of N.Y. CPL § 710.30(1)(a). This is clearly a state law issue and is not cognizable under federal habeas review. See, e.g., Campbell v. Andrews, No. 97-CV-2534, 1999 WL 997277 at *4 (E.D.N.Y. Oct. 19, 1999); Matthews v. Artuz, 97 Civ. 3334, 1999 WL 349694 at *8 (S.D.N.Y. May 27, 1999); Hunter v. Kuhlmann, 97 Civ. 4692, 1999 WL 246740 at *6 (S.D.N.Y. Apr. 27, 1999); Roberts v. Scully, 875 F. Supp. 182, 191 (S.D.N.Y. Jan. 6, 1995).
CONCLUSION
For the reasons set forth above, Ventura's petition for a writ of habeas corpus is denied. Since Ventura has not made a substantial showing of the denial of a constitutional right, a certificate of appealability does not issue. 28 U.S.C. § 2253.
SO ORDERED.