Opinion
02-CV-4466 (JBW), 03-MISC-0066 (JBW)
October 21, 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, He is represented by counsel,
I. Facts and Procedural History
This petition was filed on August 12, 2002, Petitioner sometimes referred to as defendant, claims:
The trial court deprived petitioner of his right to present a defense, to due process and to compulsory process, when it precluded his alibi defense where there was no evidence that counsel acted willfully or in any deliberate manner to gain an unfair advantage and where there was no prejudice to the state in the granting of late alibi notice, U.S. Const. Amends., VI, XIV; Taylor v. Illinois, 484 U.S. 400 (1988); Chambers v. Mississippi, 410 U.S. 284 (1973),
The following statement is based primarily on petitioner's brief, but accords with respondent's papers:
Following a jury trial held before New York State Supreme Court Justice Robert Hanophy, in Queens County, petitioner was convicted, pursuant to Indictment 3469/96 of murder in the second degree, [New York State Penal Law, (hereinafter "P.L.") § 125.25(2)] and criminal possession of a weapon in the second degree [P.L, § 265.03(2)]. On February 23, 1998, Justice Hanophy sentenced petitioner to concurrent terms of imprisonment of 25 years to life and 7 ½ to 15 years, respectively. Petitioner remains incarcerated pursuant to this judgment.
Petitioner filed a timely notice of appeal In his brief to the Appellate Division, Second Department, petitioner contended, inter alia, that the trial court violated his state and federal constitutional right to present a defense, to due process and to compulsory process, when the trial court precluded the defense's alibi testimony after another court of concurrent jurisdiction had granted the defense's motion to file late alibi notice. In an opinion dated November 27, 2000, the Appellate Division affirmed the judgment of conviction but reduced the sentence imposed for criminal possession of a weapon from 7 ½ to 15, to 5 to 15 years. People v. Wade, 277 A.D.2d 475, 716 N.Y.S.2d 897 (22nd Dept. 2000). The court ruled that the trial court properly found that petitioner had "failed to demonstrate good cause as to why he should have been allowed to file an untimely notice of alibi." On May 18, 2001, the New York Court of Appeals, denied leave to appeal People v. Wade, 90 N.Y.2d 836, 729 N.Y.S.2d 475 (2001).
On November 18, 1997 Just before the case was sent to a trial part and prior to petitioner being produced, defense counsel sought permission from the Honorable Pearle Appelman to file a late notice of alibi based on information he had uncovered four days earlier (CC:2), Although the State made no objections, Justice Appelman initially denied the request.
After petitioner was produced, counsel renewed the request, explaining that the first opportunity he had had to contact the witness was the previous Friday (CC:2). Based on counsel's representation, Justice Appelman changed her mind and allowed the late notice (CC:2-3). For the first time, the State voiced an objection, arguing that nothing had changed since the court denied the defense's request five minutes earlier (CC:4), In response, Justice Appelman stated that, due to the nature of the charges filed against petitioner, he must be given "every chance to defend himself (CC:4), The court then offered to adjourn the case to allow the State an opportunity to investigate the alibi. The State declined the offer, opting instead to take "exception again to the acceptance of the alibi notice at this late date" (CC:4-5). The State did not argue that it would be prejudiced by the late alibi notice.
The next day, before jury selection, the State renewed its objection to the late alibi notice before the trial judge, Justice Robert Hanophy, arguing that the notice was untimely and did not meet the statutory requirements because there was no information about where the witness worked (T:25). The State did not claim that it would be prejudiced by the lateness of the notice (29). Defense counsel defended the late notice explaining that his first contact with Ms. Stewart had been die previous Friday afternoon and that it was happenstance that in interviewing Ms. Stewart, he found out about the alibi (28). Counsel noted, petitioner — who was arrested several years after the incident — had maintained his innocence and had not been able to provide an alibi for the night in question since he could not recall his whereabouts (28), The following discussion ensued between defense counsel and the court:
Court: Let me stop you for a second. You just said now your client has not told you where he was on the night of this murder; is that correct?
Defense: That is correct. Other than the fact he said that he didn't do it, Court: Where do you get 91 Glenmore Street then?
Defense: I spoke to a witness and the witness that's mentioned on there is a witness that alerted me to where he (sic) whereabouts were on that night. Court: I see no reasonable excuse for failure to file a timely notice and a notice I might say doesn't give a place of work where she can be reached.
Defense: That presupposes that she has a place of work. Court: Telephone number or anything else like that, Defense: He asked for birthday, I supplied a birth date.
Court: The thing that bothers me the most that this is thrust upon (sic) at the People at the last second. They are going to be unduly prejudice, I am sure any access they have is going to be slim to none and on that ground. . . . I will preclude it.
Defense; That's not true, Judge, I have spoken with the witness. The witness is willing to speak to the People, provided there is an independent individual present from the defense. I would indicate also, Judge, that yesterday when this was submitted the case was third called to find out what the People's pleasure was going to be once Judge Appelman said that she would receive the notice. On the third call the People's representative also stated they are not requesting an adjournment and they are ready to keep the case in a ready stance.
Court: This case was sent to me for trial yesterday, so this thing was filed on the day it was supposed to go to trial, I find it would be an impossible task for the People to go out and get witnesses to try and counter this last minute notice of alibi, I have been a strong proponent for this for years, I do not like that. Its got to be done, I am not saying it has to be done exactly as the statute calls for, but this is a 1993 crime, He was arrested in [1996], There has been almost two years and there should have been something done. Filing a notice on the day of trial is not timely to me.
Counsel: Judge, if 1 can just state for the record so there is no surprise. In my discussions with the defendant over the course of the year the defendant has never been able to tell me his whereabouts other than the fact that he was not responsible for tins person's death on the date that this death, the date that this death occurred. . . . When I spoke to the witness, it was the witness who first alerted me to the whereabouts of the defendant on the night that this was alleged to have occurred and on that basis the alibi notice was prepared and I state for the record that this defendant throughout the past year has not been able to, all of the conversations we had, ever alert me to where his whereabouts were on that night, And that's the reason why the notice was served when it was, Judge.Court; For the reasons state, I am going to deny this notice on the day of trial, (V: 29-32).
After lunch recess, and before jury selection had begun, defense counsel again objected to the court's decision to preclude the alibi. The objection was rejected.
The following morning, before jury selection resumed, defense counsel asked Justice Hanophy to revisit his decision to preclude the alibi witness. Counsel reminded the court that the entire basis of the court's ruling was that the late notice would have purportedly prejudiced the State, but the State had not suffered any prejudice and had rejected Justice Appelman's offer to adjourn the case after she had accepted the late notice (V: 8-9). Defense counsel further argued that while the court had precluded petitioner's alibi witness based on prejudice to the State, the State had investigated the alibi (V: 9-10), Earlier that morning, several representatives from the District Attorney's Office had visited the alibi witness's home and had spoken to her (V:8),
The State did not dispute counsel's representations that members of its office had spoken to the alibi witness. The State also made no arguments that its case would be prejudiced by the late notice, The trial court adhered to its decision to preclude the alibi testimony.
The court later issued a written decision in which it again ruled that the late notice was properly excluded because defense counsel's explanation was "unreasonable" and "insufficient," It cited People v. Bernard, 210 A.D.2d 419 (2nd Dept. 1994), for the proposition that the prosecution had been prejudiced by the filing of a late notice because it would have been too late for them to find witnesses to counter the alibi testimony,
The Trial Testimony The Prosecution's Case
In the early morning hours of October 24, 1993, Rudolph Jones and Lawrence Munson, a.k.a. "Kahcem" were socializing together at a dance hall, called the "Q Club," in Queens County (T: 325-328). Jones and Munson had known each other for about three years and had been to the same "Q Club" on three prior occasions (T: 326-327, 386). On the night in question, Munson drove to the club in a red Mercury (T:330). They arrived at the club at about 2:00 a.m., but left and went to another club for about forty minutes or an hour, before returning to the "Q Club" (T: 329-330, 398-401).
At about 5:20 a.m., as Munson and Jones were leaving the club, Jones noticed two women walking toward a black BMW and he encouraged Munson to stop and talk to them (T:332-334, 339, 410). Munson pulled his car along side the BMW, got out and started to talk to the driver and the other woman in the BMW (T: 335-336, 339-340, 412). As Munson and Jones talked to the two women, two men approached (T: 345-346), One of the men stayed about ten feet away while the other man approached the passenger side of the BMW (T: 414-416). According to Jones, for about a minute, the man paced back and forth without saying anything (T: 419), At some point, Munson looked up at the man and said, "what you want?" but the man did not respond (T: 420-421, 428). About one minute later, the man angrily said to Munson, "yo, that's my girl, why you trying to talk to my girl?" Munson replied, "yo, I wasn't trying to talk [to her], she was trying to talk to me," to which the man responded, "Fuck that, I know you did." (T: 346, 356, 415-415, 422, 424-425),
Without referring to either man by name, the woman in the BMW pleaded with Munson and the man not to fight (T: 347). As they continued to argue, the man kept pacing and fidgeting with his waistband, prompting Munson, who was standing outside of his car, to challenge him stating, "yo, you, fuck that, we can fight right here. Yon act like you got a gun, don't act like you got heat" (T: 349, 357-358, 426-430). The man replied, "What you said to me punk?" and Munson repeated the challenge (T: 349, 426, 430). The man pulled out a gun, leaned over the BMW, and fired one shot at Munson, hitting him in the chest (T: 349, 430-432. At no time during the heated five-minute argument did Munson or the man refer to each other by name (T: 346-347, 425-426, 462),
After the shooting, Munson got back into his car and drove away while the shooter turned and walked in the direction of the "Q Club" (T: 348-351, 439), At trial, on direct examination, Jones testified that he turned around in the car and watched the man walk away and did not face forward until he felt a jolt as Munson hit someone on a bicycle (T: 352-353), He also testified that he turned to Munson and said, "he shot you. It hit you, didn't it?" to which Munson replied, "no doubt, yes" (T: 353., 440), Soon thereafter, Munson's eyes appeared to glaze over and Jones stopped the car (T: 354), When the car stopped, Jones got out and pulled Munson out of the driver's seat and helped him into the passenger scat (T: 355, 443). Jones got into the driver's seat and attempted to start the car but was unable to do so (T: 355), As a result, he left Munson in the car and went to find help, flagging down a nearby police car (T: 355-356),
In his trial testimony, Jones claimed that although Munson remained coherent after the shooting, Munson did not say much (T: 355). Shortly after the incident, however, Jones told a grand jury that, after Munson confirmed that he had been shot, he continued to talk for some time (T: 441). Munson never told Jones that he knew the man who had shot him. Munson died of a single gunshot wound (T: 447-448, 461; Medical Examiner, Dr. Jacqueline Lee; 515-517, 522-523).
The next morning, Jones told the police that the shooter was about five feet, ten inches to six feet tall, twenty-three to twenty-five years old, medium complexion and wore a caramel color three-quarter length leather jacket (T: 367, 416-417), He also described the shooter's companion as a black man, about six feet tall, approximately twenty-five years old wearing round "Ghandi" glasses (T: 367-368). Jones did not identify petitioner by name and he testified that he did not know petitioner (T: 461), Jones identified petitioner in court as the person who shot Munson (345-347),
The prosecution introduced testimony from two Albany police officers. Detective Sergeant Charles Arsenault and Detective Dennis Guiry and a stipulation from State Trooper Gregory Miller, that between 1994 and 1996, petitioner gave them a false name when they encountered him (T: 485-486, 490-491, 498-500).
Detective Wendell Stradford of the New York City Police Department's cold case squad arrested petitioner in Albany and brought him to Brooklyn on September 24, 1996 (T: 612-614, 617, 650). When they returned to Brooklyn, Stradford interviewed petitioner for about twenty minutes. The following day, after he had taken petitioner to another police precinct, Stradford wrote a statement, which he attributed to petitioner, The statement was based on Stradford's memory and his notes (T: 626, 628, 641-642, 647, 675-680).
According to Stradford, petitioner told him that he had left Long Island and moved to Albany to live with relatives after his friends and his father had told him that the police were looking for him (T: 631-632). Petitioner reportedly also stated that "he knew this would come upon him one day" (T: 631-632). Stradford further testified that petitioner told him that while he was in Albany, the police had stopped him several times but they did not learn his true identity, and he did not think too much "about it" (T: 632).
Stradford then insisted that petitioner told him that the night Munson, whom he called "Kaheem," was killed, petitioner went to the "Q Club" with several people, including his cousins, Kim Jackson and George Jackson, a.k.a. Geiso, a man named Patrick, Donna Beckett, Georgette, Keisha and Maxwell Walker, a.k.a. Max Dread (T: 634-635, 691). At some point during the night, petitioner saw Munson in the club with some "kid" whom he did not know, in the downstairs portion of the club where they served food (T: 632, 687-688).
Petitioner and the decedent had been longtime friends (T: 632, 635). They had had only one disagreement about a woman named Toni or Tonetta, but that argument had long been resolved (T: 635, 688-689). When they saw each other at the club, they hugged, shook hands and spoke for several minutes (T: 632-633, 683-685), Later that night, petitioner saw Munson and the same "kid" walking toward Munson's car, a Mercury (T: 633). Shortly thereafter, there was a "ruckus" which caused several people to run to the area to see what had happened (T: 633), Petitioner, however, did not join the crowd because he was high (T: 633). Petitioner soon left the club but could not remember where he went or if he left with the same people who had come to the club with him (T: 633).
Despite Stradford's insistence that petitioner bad recounted events from the night of the shooting, he conceded that petitioner told him that he did not remember the night Munson was killed (T: 633, 670-671, 675). Rather, petitioner told him about the last time he had seen Munson alive (T: 733-734). Also, petitioner told Stradford that he did not learn of Munson's death until November 5, 1993. (T: 633, 670-671, 675).
According to Stradford, after the oral statement, petitioner asked to make a telephone call to his girlfriend before he wrote any statement (T: 639). After speaking with his girlfriend, Consuella McClancy, petitioner told Stradford that he did not wish to talk anymore (T: 641). Petitioner neither wrote nor signed any of the statements attributed to him (T: 639). Stradford testified that petitioner orally waived Miranda warnings. When Stradford showed petitioner a Miranda form, petitioner apparently signed and initialed only the first three of the six questions on the form (T: 619-623, 626, 639, 643).
The next day, September 25, 1996, Detective Brendan Lally placed petitioner in a lineup and after looking at the participants for one or two minutes, Jones selected petitioner as the shooter (Jones: 370; Lally: 560, 579-581). Jones subsequently identified petitioner in court (345, 369-371). Prior to placing petitioner in the lineup, Detective Lally read Miranda warnings to him and petitioner initialed his responses to the questions then signed the bottom of the form indicating that he understood the questions (584-590). Petitioner did not give a statement (588-589).
The Defense Case
Donna Beckett, a twenty-seven year old mother of three, went to the "Q Club" once in October 1993, with a group of people including petitioner (798-799, 802), Beckett went to elementary, junior and high school with petitioner and Munson, whom she also knew as "Kaheem" (T: 800-801). The three of them were friends and rode the same bus to school for almost ten years (T: 801-802). The October night when Beckett went to the club, she rode with her cousin Keisha Graves and petitioner rode with Kim, Supreme, Max and Patrick (T: 803-804). Beckett saw Munson at the club and danced with him (T: 806). She also saw petitioner briefly talking to Munson (T: 807). Beckett, petitioner and the other people in the group left the club together sometime between 5:00 mid 5:30 a.m. (T: 811).
Beckett was certain that the night she saw petitioner and Munson was not the night Munson was killed because she only went to the dub on Thursday nights (T: 804). The shooting occurred early Sunday morning, October 24, 1993, Additionally, Beckett had only been to the club one time in October 1993, Sometime after she had been to the club, she had seen Munson at a gas station near die club (T: 811-812), Several days later, Munson was killed (T: 811-812).
On October 24, 1993, Detective Richard Kocienda was assigned to investigate Munson's death (T: 774-775). During the course of the investigation Kocienda obtained a videotape of the people who entered the front entrance of the "Q Club" on the night of October 23rd and into the morning of October 24th (T: 775-776). The day after the shooting, Kocienda showed the videotape to the prosecutor's eyewitness, Rudolph Jones (T: 776). Jones identified himself, Munson and the two women in the BMW (T: 779-780), 782). Jones did not identify anyone else (T: 780-781, 790-791).
Jury Deliberations and Verdict
The court submitted two counts of murder in the second degree (intentional and depraved indifference), and the lesser included offenses of manslaughter in the first and second degrees. It also charged criminal possession of a weapon in the second degree (T: 913-937),
The jury deliberated for two days, during which time it submitted at least eight notes requesting further testimony and instructions, including read back of the testimony of Jones, Beckett and the statement attributed to petitioner (T: 962-983). The jury acquitted petitioner of intentional murder and convicted him of depraved indifference murder and criminal possession of a weapon in the second degree (T: 1013-1017).
Sentencing
The trial court sentenced petitioner to concurrent, indeterminate terms of imprisonment of 25 years to life on the murder count and 7% to 15 years on the weapon count (S.3). The Direct Appeal
On appeal to the Appellate Division, Second Department, petitioner argued, inter alia, that the trial court violated his State and Federal rights to present a defense, to due process and to compulsory process, when it overruled a judge of concurrent jurisdiction and precluded petitioner from presenting an alibi defense. Citing Taylor v. Illinois, 484 U.S. 400 (1988), petitioner argued that defense counsel did not act wilfully or attempted to gain any unfair advantage when he sought permission to file a late alibi notice. (A: Petitioner's Appellate Brief).
On November 27, 2000, the Appellate Division, Second Department affirmed the conviction, ruling that,
under the circumstances, the trial court properly found that the defendant failed to demonstrate good cause as to why he should have been allowed to file an untimely notice of alibi, (See CPL § 250,20[1]). Hence, the trial court providently exercised its discretion in refusing to allow the defendant to file the notice (see, People v. Bernard, 210 A.D.2d 419; People v. Caputo, 175 A.D.2d 290),People v. Wade, 277 A.D.2d 475, 716 N.Y.S.2d 897 (2nd Dept. 2000), Petitioner sought leave to appeal to the New York State Court of Appeals, arguing, inter alia, that the trial court violated his state and federal constitutional rights to present an alibi defense, citing Taylor v. Illinois., 484 U.S. 400, 408 (1988), as support for his position, The court denied leave on May 18, 2001. People v. Wade, 96 N.Y.2d 836, 754 N.E.2d 217, 729 N.Y.S.2d 457 (2001).
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 in a decision that was contrary to, or involved an unreasonable application of, dearly 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. § 225 4 (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, 529 U.S. 362, 412-13 (2000) (O'Connor, L, 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(c)(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, 19%, 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 die 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, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N. v. Feb. 23, 199 S). 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 that 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 that 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 does 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. 02-26S3, 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 mid 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 ease, 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 less 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 Claudia v. Scully, 982 F.2d 798, 303 (2d Cir. 1992), Appellate counsel does not have a duty 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 does 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 Wade 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-MTSC-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. Irvin, 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-OS60, 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 (JEW), 2003 U.S. Dist. LEXIS 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 (JEW), 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 (JEW), 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, 9S-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 "had 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
The preclusion of the alibi defense was a serious matter since this was a one-witness identification case, Nevertheless, the close relationship of defendant and deceased made it unlikely that he was not aware of where he was on the night of the murder. Counsel was surprised by this late found alibi witness, but petitioner could not have been. The case comes down then to a willful withholding by the defendant and a rather wooden and rigid application of the rule by the trial judge.
The State would not have been disadvantaged by the late notice since it was able to interview die alibi witness and had interviewed all other witnesses in the course of its investigation.
Even though this court would have preferred to have a record with the alibi witness's testimony having been passed on by the jury, the State has a strong interest in insisting that its procedures be followed. Giving way to the strong policy of comity now embodied in federal statutory and Supreme Court habeas corpus rules, denial of the writ would appear to be mandated. Nevertheless, even though the Court o Appeals decision in Noble v. Kelly 246 F.3d 93 (2001), seems to put more weight on the right of a defendant to defend than on the State's right to enforce its alibi procedure rules, the writ should not be granted in this close case.
Because of the closeness of the issues die arguments of the parties are outlined below;
Argument of Petitioner
The court made no finding and the record is devoid of any evidence that counsel acted in a wilful and blatant manner in an attempt to gain any unfair advantage. Throughout the pendency of the case, petitioner, who was arrested three years after the incident, maintained his innocence, Because petitioner told his counsel he could not recall his whereabouts on the night in question, he could not provide an alibi defense, Defense counsel, therefore, had no basis to file an earlier alibi notice. It was undisputed that, through fortuity, counsel discovered — during an interview with a witness about general information — that an alibi defense was possible, Upon uncovering this vital information; counsel immediately informed the prosecutor and filed an alibi notice with the court. A state Supreme Court justice accepted the notice and offered to adjourn the case to allow the State an opportunity to investigate the alibi. The State, however, declined the adjournment, arguing instead that the witness should be precluded because of the untimely notice.
The following day, the case was transferred to a different state Supreme Court judge who overruled the previous judge's decision and precluded the alibi testimony, Without any new information, the trial judge held that the late notice would prejudice the State and that defense counsel had not proffered a good reason for non-compliance with the alibi notice statute, At no time, did the prosecution argue that its case would be prejudiced. Additionally, when the court precluded the alibi, jury selection had not yet begun. Under the circumstances of this case, the trial court's ruling violated petitioner's right to present a defense, to due process and to compulsory process. Accordingly, the petition for habeas relief should be granted. U.S. Const. Amends. VI. XIV; Taylor v. Illinois, 484 U.S. 400 (1988).
A criminal defendant has a fundamental right to present a defense. See Chambers v. Mississippi, 410 U.S. 284, 302 (1972); Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987) (criminal defendants have the right to put before a jury evidence that might influence the determination of guilt). The right to present a defense is grounded in the Compulsory Clause of the Sixth Amendment to the United States Constitution and the Due Process Clause of the Fourteenth Amendment. See, Taylor v. Illinois, 484 U.S. 400, 410 (1988) (defendant's right to offer testimony to rebut the prosecution's case is a right which is both fundamental and comprehensive to the effective functioning of the adversary system). As the Supreme Court noted in United States v. Nixon, 418 U.S. 683 (1974), to ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed by the prosecution or the defense. See also, Washington v. Texas, 388 U.S. 14, 19 (1967) (the accused has the right to present his own version of the facts, so that the jury may hear both sides and decide where the truth lies).
Under certain circumstances, state procedural discovery rules, such as notice-of-alibi statutes, may limit a defendant's right to present evidence. Such restrictions "may not be arbitrary or disproportionate to the purposes they are designed to serve," See, Michigan v. Lucas; 500 U.S. 145 (1991) (citing Rock v. Arkansas, 483 U.S. 44 (1987)), As the Supreme Court established in Taylor, supra, while a trial court may insist upon an explanation for a. party's failure to comply with the requisite procedural rule, the court must also weigh the defendant's right to present evidence against the countervailing public interest. Specifically, the Court noted that, "the integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance." Taylor, 484 U.S. at 414-415. The Court cautioned that, preclusion is not permissible every time a discovery rule is violated where sanctions other than exclusion are available and are adequate and appropriate. Id. at 413.
Applying the Taylor balancing test, the Second Circuit in Noble v. Kelly, 246 F.3d 93 (2001), upheld the district court's grant of a writ of habeas corpus. In Noble, the defense attorney did not provide alibi notice for a witness who would have testified that the defendant was inside a bar when the victim was shot outside of that bar. Counsel did not believe that the alibi statute applied since the indictment alleged that the crime occurred in the `Vicinity of the bar," which presumably included the bar's interior. As in the instant case, the trial court in Noble rejected the attorney's arguments and precluded the testimony., noting that the attorney had failed to provide a good excuse for his failure to provide alibi notice. The Court of Appeals for the Second Circuit affirmed the district court's decision to grant a writ of habeas corpus, noting that state court could have used less onerous sanctions, such as a adjournment, to minimize any prejudice to the State. The court further held that absent a finding that the defense attorney's non-compliance with the alibi notice rule was willful and motivated by a desire to obtain a tactical advantage, preclusion of the alibi testimony violated the Sixth Amendment's Compulsory Process Clause. Id. at 98-99.
Similarly, in Escalera v. Coombe, 852 F.2d 45 (2d Cir. 1988), after the prosecution had rested its case, the defense attorney informed the court of the existence of an alibi witness. Counsel, however, did not provide an explanation for the late notice. Although the prosecutor requested an adjournment to examine the witness, the court precluded the alibi testimony ruling that the defense had offered no plausible reason for his non-compliance with the alibi notice statute. In light of Taylor the Second Circuit determined that the absence of a good excuse for failure to file a timely alibi notice was not necessarily commensurate with willful conduct. It therefore remanded to the district court to determine whether the attorney's failure to comply with the alibi notice statute wilful and motivated by a desire to obtain a tactical advantage. Escalera, 852 F.2d at 48.
Several other federal circuit courts that have considered Taylor and, like the Second Circuit, have required a finding of bad faith by the defense attorney before preclusion of alibi testimony, See e.g. United States v. Levy-Cordero, 67 F.3d 1002, 1014 (1st Cir. 1995) (defendant's 6th Amendment right to present defense violated where counsel did not engage in wilful misconduct), cert. denied, Forty-Estremera v. United States, 517 U.S. 1162 (1996), on remand, United States v. Levy-Cordero, 156 F.3d 244 (1st Cir. 1998); United States v. Peters, 937 F.2d 1422, 1426 (9th Cir. 1994) (interpreting Taylor as permitting exclusion of exculpatory evidence only where discovery violation was wilful and blatant) ; Bowling w. Vose, 3 F.3d 559, 561 (1st Cir. 1993) (given the important nature of alibi, arson defendant should have been permitted to present testimony of alibi witness, although defendant failed to disclose reliance on alibi defense prior to trial, where defendant did not learn exact time fire was set until fire inspector was cross-examined at trial and that testimony gave rise to possibility of alibi defense), cert. denied, 510 U.S. 1185 (1994); Cf. United States v. Johnson, 970 F.2d 907 (D.C. Cir. 1992) (remand required where court did not articulate any application of the Taylor balancing test and did not state any basis for its decision to exclude alibi).
The trial court violated petitioner's ability to present vital exculpatory evidence. Admittedly, petitioner's alibi notice was late. However, a sanction less severe than the wholesale preclusion of die alibi testimony would have been appropriate. New York's alibi-notice statute, Criminal Procedure Law ("C.P.L.") section 250,20, does not mandate that the court preclude an alibi defense simply because the notice was untimely. Rather, the statute permits the court to extend the period for filing the notice provided that it grant the prosecution an adjournment to investigate the alibi defense, In relevant parts, C.P.L. § 250.20, provides that within eight days of the receipt of a demand for alibi, the defense is required to serve a "notice of alibi" reciting,
the place or places where the defendant claims to have been at the time in question, and the names, the residential addresses, the places of employment and the addresses thereof of every such alibi witness upon whom he intends to rely. For good cause shown, the court may extend the period for service of the notice. C.P.L. § 250.20 (2)(3).
Here, the trial court did not rule on the facts of the case and it did not perform the Taylor balancing test. Rather, the court precluded the alibi testimony because it was untimely.
While the trial court rejected counsel's explanation as not a sufficiently "reasonable excuse for failure to file a timely notice," it made no finding that counsel withheld the alibi notice for a strategic advantage. There was no evidence that counsel was trying to obtain a tactical edge by filing a late notice of alibi. Moreover, no one questioned the veracity of counsel's claim that he learned of the alibi, by chance, as he prepared for trial. Preclusion of the alibi, therefore, violated petitioner's constitutional right to present a defense, compulsory process and due process of law. See e.g., Noble v. Kelly, 246 F.3d 93, 101 (citing, Escalera, 852 F.2d at 48) (a finding that the attorney's explanation was not a reasonable excuse for filing late alibi notice not the same as finding wilful conduct); Walker v. Hood, 679 F. Supp. 372, 380-381 (S.D.N.Y. 1988) (it is constitutionally impermissible to enforce a notice-of-alibi statute against a defendant by precluding his own testimony as there is no legitimate government interests to balance against defendant's right to present his own testimony).
While the trial court also decided that the untimely notice would prejudice the State, there was no support for this conclusion.
Argument of Respondent
The Appellate Division's adjudication was not contrary to the Supreme Court's decision in Illinois v. Taylor. Contrary to defendant's argument, the mere absence of an express discussion of Taylor in the Appellate Division's opinion does not establish that the Appellate Division applied a rule that contravened Taylor. See Early v. Packer, U.S., 123 S.Ct. 362, 365 (Nov. 4, 2002) (noting that a state court need not cite the appropriate Supreme Court precedent in its opinion — "indeed, it does not even require awareness of our cases").
The Supreme Court in Taylor held that, to determine whether to preclude alibi testimony as a sanction for non-compliance with notice requirements, a trial court should consider several factors. The factors relevant to defendant's case include: 1) the extent of prejudice to the prosecution; 2) the effectiveness of a less severe sanction; 3) whether the defendant's non-compliance was willful; 4) the criminal justice system's interest in rejecting unreliable evidence; and 5) the impact of the preclusion of the alibi testimony on the verdict. Illinois v. Taylor, 484 U.S. at 414-15 n. 19, Here, each of these five factors weighed so heavily against defendant as to mandate preclusion,
First, defendant's non-compliance seriously prejudiced the prosecution because, by waiting more than a year after his arrest to serve an alibi notice, after having evaded arrest by giving false names and identification documents to police officers for three years, defendant made certain that there was no possibility that anyone who could contradict the alibi witness would recall events well enough to provide investigative leads or rebuttal testimony. The state trial court specifically found that the prosecution's ability to investigate the alibi was impaired by the passage of time, and this fact-finding is entitled to the presumption of correctness of the habeas statute. See U.S.C. § 2254(e)(1). This prejudice warranted preclusion of the testimony.
No lesser sanction, such as an adjournment of the trial to permit the People to investigate the alibi, could remedy this prejudice, because faded memories are irremediable. The state trial court specifically found that an adjournment could not remedy the prejudice defendant caused by failing to comply with the alibi-notice statute, and this fact-finding is entitled to the presumption of correctness of the habeas statute, See U.S.C. § 2254(e)(1).
Defendant's non-compliance with the alibi-notice statute was willful because the excuse he gave the court for failing to comply was false. Defendant claimed that he did not give timely alibi notice because he could never recall where he was the night of the crime. But the day he was arrested, he told a police detective exactly where and with whom he was the night of the crime. He told the detective that he knew he was a suspect — and so had reason to remember any alibi — only three weeks after the murder, This wilfulness warranted preclusion of the alibi testimony.
Defendant's statement not only placed defendant himself at the scene of the crime during the commission of the crime, but placed the alibi witness there with him. That the alibi testimony was a fabrication also warranted its preclusion.
Finally, the preclusion of the alibi testimony had no significant impact on the verdict because the jury would have rejected it. The alibi witness was not credible for several reasons, She was an interested witness because she was defendant's cousin and apparently a close friend of his family. Further, despite her closeness to defendant's family, she allowed defendant to languish in jail on murder charges for a year without ever contacting either the authorities or defendant himself with her alleged alibi,
And, most importantly, her claim that defendant was in Nassau County the night of the murder was belied by defendant's own statement to the police that placed himself, and the alibi witness, at the crime scene — and this statement was reliable on this point because it revealed an incriminating knowledge about the details of the events leading to the murder, even including the color and make of the car Mr. Munson and Mr. Jones walk to immediately before the incident. The minimal impact of precluding the alibi testimony on the outcome of the case also warranted its preclusion. Thus, the Appellate Division did not err, and certainly did not err unreasonably, in determining that preclusion of the alibi testimony was proper under the balancing test set out in Taylor.
Further, defendant is not entitled to a writ under the Second Circuit's interpretation of Taylor in Noble v. Kelly, 246 F.3d 93 (2d CIV. 2001). In Noble, the Second Circuit held that a trial court may not preclude alibi testimony as a sanction for a defendant's non-compliance with notice requirements unless it finds "some degree of willfulness," at least in cases in which "prejudice to the prosecution can be minimized with relative ease." 246 F.3d at 100 n. 3, Here, as discussed above, defendant's non-compliance was willful, and the prejudice to the prosecution could not be remedied with any lesser sanction. In any event, to the extent that the Second Circuit's holding in Noble would not permit preclusion in defendant's case, that holding misreads the balancing test the Supreme Court set out in Taylor v. Illinois.
In any event, any error was harmless. The harmless — error standard set out in Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), rather than the standard set in Chapman v. California, 386 U.S. 18, 24 (1967), applies here. For the same reasons that precluding the alibi testimony had no significant impact on the verdict, discussed above, it also had no substantial and injurious effect on the outcome of the case. Therefore, any error was harmless and does not warrant the granting of a writ.
The balancing factor: Judgment of the Appellate Division
Much of the argument of respondent is based on information not available to the trial judge when he precluded the alibi witness's testimony. The trial judge's ruling was not balanced under Taylor.
This limitation of information did not, however, inhibit the Appellate Division; it had the full trial record plus excellent briefs for both sides. Deference to its judgment is appropriate, particularly since it is the Appellate Division which has a primary responsibility for decision in the huge number of serious criminal cases in the Second Department.
XIV. Conclusion
Those claims not discussed in this memorandum are frivolous.
The petition for a writ of habeas corpus is denied,
A certificate of appealability is granted with respect to denial of the alibi defense, petitioner having made a substantial showing of the possible denial of a constitutional right,
SO ORDERED