Opinion
99 Civ. 4194 (LAP) (GWG).
November 6, 2001
REPORT AND RECOMMENDATION
This case is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner, Peter Wilson, is currently an inmate at Upstate Correctional Facility in Malone, New York.
I. PROCEDURAL HISTORY A. Evidence at Trial
The pertinent evidence at trial was as follows: On October 15, 1992, at about 10:15 p.m. in the area of 3436 Corsa Avenue, Glendolyn Foster was sitting on the hood of a parked car with Mervin Brown. (Tr. 62-64, 103, 112, 142, 221-22, 237, 238). [ insert name of testifying party for ALL transcript cites; e.g. (Brown: Tr. 62-54; Foster: 103, 112, 142, . . . etc.)] At approximately 10:30 p.m., Foster observed Peter Wilson, the defendant, walking towards them, along Corsa Avenue, from Hicks Street. Wilson had a seven-inch, silver automatic handgun in his waistband. (Tr. 64, 65, 82-83, 85-88, 103, 109-10, 122, 139, 140-41, 253, 342). As he approached, Wilson pulled out the gun and pointed it at Brown. (Tr. 87). Foster heard Wilson say to Brown, "Where's my money," to which Brown responded, "Put the gun down and I'll talk to you." (Tr. 88, 90-91, 126, 145). As Wilson came closer, Foster and Brown inched away into the street. Foster ultimately crouched down next to the car that was parked in front of the one that she and Lopez had been sitting on (Tr. 89, 126) and heard four shots, although she did not see the shooting. (Tr. 90-91, 123, 132).
"Tr." refers to the transcript of the trial in People v. Wilson, Indictment No. 7592/92, Supreme Court, Bronx County. "S. Tr." refers to the transcript of the sentencing.
Alvin Lopez was walking along Corsa towards Boston Post Road when he saw Peter Wilson holding a gun and arguing with Brown. (Tr. 222-23, 246, 250-51, 253, 264). Lopez heard Wilson ask Brown where his money was and heard Brown tell Wilson to put the gun down and that he would pay Wilson. (Tr. 225, 226, 254). Lopez then backed up close to a parked van and stood approximately twenty feet away from which point he saw Wilson fire the gun two or three times, shooting Brown. (Tr. 224-26, 233, 251, 254-55). When Brown was shot, he was holding both of his hands up at shoulder level, with palms out. (Tr. 227). Another eyewitness, Charles Wilson also saw Peter Wilson, the defendant, arguing with Brown, then pull out a gun and fire it at Brown. (Tr. 322-357). Brown later died at the hospital; the cause of death was one gunshot wound to the abdomen, resulting in injuries to the liver, mesenteric blood vessels, aorta, and intestines. (Tr. 166).
The only witness for the defense was Faye Buchanan, Wilson's mother, who testified she had called home several times on the evening of October 15, 1992. On direct examination, she testified she called home at approximately 8:00 or 8:15 p.m., 9:15 p.m., and 10:00 or 10:15 p.m. and spoke to Wilson each time (Tr. 398-400), though she was not as clear about these times during cross-examination. (Tr. 415-21).
On March 30, 1995, Wilson was convicted of Murder in the Second Degree under New York Penal Law § 125.25(1), and Manslaughter in the First Degree under New York Penal Law § 125.20. He was sentenced to concurrent terms of 25 years to life and 8-1/3 to 25 years respectively. (S. Tr. ___).
B. Direct State Court Appeals
Represented by counsel, Wilson appealed to the Appellate Division, First Department. See Brief for Defendant-Appellant to the Appellate Division, First Department, dated January 27, 1997 (reproduced as Exhibit 1 to Respondent's Affidavit in Opposition, dated May 18, 2001) (hereinafter, "Brief for Defendant-Appellant"). His brief alleged one ground for appeal: that the trial court denied Wilson his due process right to be present during two side-bar conferences during which the parties discussed whether defense counsel would be allowed to cross-examine two prosecution witnesses regarding their knowledge of a prior shooting involving Wilson. See Brief for Defendant-Appellant at 13-19.
The Appellate Division affirmed the judgment of conviction on July 3, 1997. See People v. Wilson, 241 A.D.2d 346, 346 (1st Dep't 1997). With respect to Wilson's ground for appeal, the Appellate Division stated:
The court properly denied defendant's request to be present at sidebar discussions regarding the scope of cross-examination, since they concerned only matters of law (see, People v Rodriguez, 85 N.Y.2d 586, 591), and there existed no "potential for [defendant's] meaningful participation" (supra, at 591). These discussions did not involve "factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position." (People v Dokes, 79 N.Y.2d 656, 660).People v. Wilson, 241 A.D.2d at 346-47.
Represented by counsel, Wilson sought leave to appeal to the New York Court of Appeals by letter dated July 14, 1997. See Letter from Carol Santangelo to Chief Judge Judith Kaye of the New York State Court of Appeals, dated July 14, 1997 (reproduced as Exhibit 3 to Respondent's Affidavit in Opposition, dated May 18, 2001). In this application, Wilson attached the same brief submitted to the First Department and asked the court to "consider and review all issues raised in the enclosed brief."Id. On December 1, 1997, the New York Court of Appeals denied leave to appeal. See People v. Wilson, 91 N.Y.2d 883 (1997). Wilson did not seek a writ of certiorari from the United States Supreme Court. He also did not mount a collateral attack on his conviction in State Court.
C. Wilson's Federal Habeas Corpus Petition
While Wilson's present petition for writ of habeas corpus (hereinafter "Habeas Petition") is dated March 1, 1999, see Habeas Petition at 7, his attached affidavit of service indicates that it was mailed on March 16. The document is stamped "received" by the Court's Pro Se Office on March 26, 1999. Wilson's petition presents the same claim that was raised in the state court appeal: that Wilson was denied his right to be present during the sidebars at his trial. See Habeas Petition, ¶ A.
On June 11, 1999, Chief District Judge Thomas Greisa ordered Wilson to show cause by affirmation why the statute of limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244, should not bar review of the habeas petition. Wilson submitted an affirmation to the court on August 12, 1999. The petition was referred to the undersigned for a Report and Recommendation on March 5, 2001.
The respondent has raised two defenses to the petition: (1) that it is barred by the statute of limitations under the AEDPA; and (2) that it must be denied on the merits. Each is discussed in turn.
II. STATUTE OF LIMITATIONS
Habeas corpus relief under 28 U.S.C. § 2254 is available to a petitioner in state custody in violation of the Constitution or a federal law or treaty. See 28 U.S.C. § 2254(a). On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2244) ("AEDPA"), was enacted. It provided a one year statute of limitations for filing a petition for a writ of habeas corpus. The AEDPA states in pertinent part:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.28 U.S.C. § 2244(d)(1). Thus, those petitioners whose convictions became final after the April 24, 1996, enactment date are required to file their petitions within one year of the date their convictions become final. See 28 U.S.C. § 2244(d)(1); Smith v. McGinnis, 208 F.3d 13, 14 (2d Cir. 2000). For purposes of calculating when the statute of limitations under the AEPDA expires, a conviction is "final" upon the conclusion of direct review or the expiration of time to seek direct review in the United States Supreme Court by writ of certiorari (which is ninety days after entry of the judgment of conviction or of the order denying discretionary review). See William v. Artuz, 237 F.3d 147 (2d Cir. 2001); Acosta v. Artuz, 221 F.3d ___, 119, 200; Smith, 208 F.3d at 14; Sup. Ct. R. 13(1).
Wilson was denied leave to appeal to the New York State Court of Appeals on December 1, 1998, so his judgment of conviction became final ninety days later, on March 1, 1998. Thus, Wilson was required to file his petition for writ of habeas corpus by March 1, 1999. See 28 U.S.C. § 2254 (d)(1).
Although Wilson's petition bears a date of "March 1, 1999," Petition at ___, Wilson concedes that he did not deliver his petition into the hands of the prison facility for mailing until March 16, 1999. See Petitioner's Affirmation, filed August 12, 1993, at 3 (following notarization of papers on March 16, 1999, "[t]he petition and Memorandum of Law was [sic] then sent to the Correspondent Department with a disbursement form to cover the cost of the postage to be mailed to the Court."). Under the doctrine of Houston v. Lack, 487 U.S. 266, 276 (1988), an incarcerated pro se petitioner is deemed to have filed a court document on date the petitioner delivered the document to prison officials for forwarding to the court clerk. Thus, Wilson's petition is deemed to have been filed on March 16, 1999, fifteen days after Wilson's March 1, 1999, deadline under the AEDPA for filing his petition.
In his submission to the Court, Wilson seeks to excuse his untimely petition by stating that "he was having extreme difficulties receiving legal assistance from the law library and minimal cooperation from the prison administration." Petitioner's Affirmation, filed August 12, 1993, at 3. He asserts that, as a result, the "filing of his petition sooner was beyond his control." Id. The specific facts offered in support of his claim are that the law library did not "pick up his papers" until September 1998; that he had a "clerk" at the prison law library "review" his papers; that the "clerk" told Wilson that he should make certain changes; that he had to send in an "in forma pauperis" application to be completed; that he did not "receive" his memorandum of law from the law library until March 12, 2001, and that he was not able to notarize his papers until March 16, 2001. Id. at 2-3.
Where a petitioner shows that "extraordinary circumstances prevented him from filing his petition on time," the one year limitation period may be equitably tolled. Smith v. McGinnis, 208 F.3d at 17 (where a petitioner ___________) Accord Acosta v. Artuz, 221 F.3d at 119;. Two of the factors to be considered in determining whether equitable tolling applies are (1) extraordinary circumstances preventing a petitioner from filing a petition and (2) reasonable diligence in attempting to file a petition despite those extraordinary circumstances. See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (intentional confiscation of prisoner's papers justifies equitable tolling); see also Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987) (________________).
Here, Wilson alleges that his late filing was due to the delay in receiving some kind of legal advice from a "clerk" in the law library. Equitable tolling of the AEDPA statute of limitations, however, is reserved for "rare and exceptional" situations. Smith, 208 F.3d at 17;Valverde v. Stinson, 224 F.3d at 134 (petitioner must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances"). Here, there is no reason why greater diligence on Wilson's part could not have allowed him to prepare his papers prior to the one-year filing deadline. Wilson instead seems to have been relying on some kind of outside legal help, not the kind of "extraordinary" circumstance that would warrant an equitable tolling of the statute of limitations. See, e.g., Hizbullahankhamon v. Walker, ___ F.3d ___, 2001 WL 672747 (2d Cir. June 15, 2001) (twenty-two days spent in solitary confinement without access to law library or other legal materials insufficient to meet "exceptional circumstances" standard for equitable tolling); Zarvela v. Artuz, 1999 WL 1487595 (E.D.N.Y. Dec. 3, 1999) (lack of access to a law clerk, illiteracy, lack of English fluency and ignorance of the law are insufficient to demonstrate that circumstances effectively prohibited petitioner from filing in a timely manner). Because no extraordinary events prevented Wilson from timely filing his petition, his petition is time-barred under by the AEDPA.
III. WILSON'S ABSENCE FROM THE SIDEBAR CONFERENCES
Even if this court were to evaluate the merits of Wilson's claim regarding his absence from the sidebar conferences, it would still deny the petition.
A. Factual Background
There were two side bar conferences at issue in Wilson's case: one involving the admissibility of the testimony of Lopez and the other involving the admissibility of the testimony of Detective Shiffman. During the cross examination of Lopez, the People objected to the defense counsel's questioning of Lopez concerning Lopez's knowledge of whether Wilson had previously been shot. (Tr. 269-70). While Lopez had already testified that he had not seen Wilson limping (Tr. ___), defense counsel wished to question Lopez on his knowledge of the shooting on the theory that if Wilson had in fact been shot and injured, this would undermine Lopez's identification of the defendant as an individual who was running away from the scene. (Tr. 270). The trial court sustained the prosecutor's objection, ruling that any evidence about the shooting would need to be proved by extrinsic evidence. (Tr. 271).
Prior to these two sidebars, defense counsel had indicated during an earlier sidebar that his client wished to be present at that and any future sidebars. (Tr. 75; see also Tr. 66). Because defense counsel's objection to the proposed testimony was sustained at this earlier sidebar (Tr. 79-80), the defendant's absence from the earlier sidebar is not of relevance to this petition. Nor was his absence raised an error before the state court.
Following the direct examination of Detective Shiffman, defense counsel sought leave during a sidebar to ask the Detective during cross-examination whether he knew Wilson had previously been shot. (Tr. 372-73). The People opposed the application and it was denied by trial court. (Id.).
B. Exhaustion
"Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1). In order for a claim to be considered exhausted, it must have been presented fully and fairly in federal constitutional terms to the State courts.See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir. 1989). Petitioners may "fairly present" their federal claims in state court by, inter alia, presenting explicit constitutional arguments, "relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that call to mind a specific right protected by the Constitution or alleging facts that fall well within the mainstream of constitutional litigation." Levine v. Comm'r of Correctional Services, 44 F.3d 121, 124 (2d Cir. 1995) (citations omitted); accord Daye v. Att'y Gen. of the State of New York, 696 F.2d 186, 192-93 (2d Cir. 1982) ("the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature").
Wilson presented this same claim before the Appellate Division, First Department in federal constitutional terms, by citing to federal case law. See Brief for Defendant-Appellant at ___. He also exhausted his remedies in state court by raising the same issue in his letter seeking leave to appeal from the New York State Court of Appeals. See, e.g., Morgan v. Bennett, 204 F.3d 360, ___ (2d Cir. 2000) (letter asking court to review issues raised in the lower court briefs sufficient for exhaustion purposes); accord Davis v. Strack, 2001 WL 1336002 at * ___ (2nd Cir. October 29, 2001). Therefore, for purposes of habeas review, Wilson's claim is considered exhausted.
C. Standard of Review 28 U.S.C. § 2254(d) requires deference to a state court's determination of a habeas petitioner's federal claims where the determination is made on the merits A state court ruling is "on the merits" where the court issues "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); see also id. at 311 ("Nothing in the phrase 'adjudicated on the merits' requires the state court to have explained its reasoning process."). Such was the case here as the Appellate Division directly ruled on Wilson's claim regarding his due process right to be present at the sidebar conferences.
The AEDPA requires the federal court to determine if the New York court's adjudication was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). 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 10 law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000).
D. The Merits of Wilson's Claim
A criminal defendant has a right both under the Sixth Amendment and the due process clause to be present at his or her trial. See United States v. Gagnon, 470 U.S. 522, 526 (1985). This right permits the defendant to be "present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15 (1975). Thus, a criminal defendant has a due process right to be present "whenever his presence has a relation, reasonably substantial to the fulness of his opportunity to defend against the charge" but only to the extent that "a fair and just hearing" would be thwarted by his absence. Snyder v. Massachusetts, 291 U.S. 97, 105-06, 107-08 (1934). Thus, courts dealing with a defendant's claims of exclusion from a sidebar conference during trial have invariably found no due process violation on the ground that "the Federal Constitution does not require a defendant's presence at sidebar conferences." Gaiter v. Lord, 917 F. Supp. 145, 152 (E.D.N.Y. 1996) (citing cases); accord United States v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993) (defendants' "absence from [nine sidebar] conferences did not detract from his defense or in any other way affect the fundamental fairness of his trial"); McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (S.D.N.Y. Aug. 2, 2000); Rodriguez v. Walker, 1999 WL 61834 at *4 (__.D.N.Y. 19___)Williams v. McCoy, 7 F. Supp.2d 214, ___ (E.D.N.Y. 1998); James v. Senkowski, 1998 WL 217903, at *8 (S.D.N.Y. Apr. 28, 1998); Zaire v. Mitchell, 1996 WL 82391, at *3 (S.D.N.Y. Feb. 27, 1996); see also Lynes v. Mitchell, 894 F. Supp. 119, 125-26 (S.D.N.Y. 1995) (no due process violation based on defendant's exclusion from pretrial where "petitioner has said nowhere in all of his papers, nor even intimated, what difference his presence . . . would or could have made in the result of the hearing or his trial"), aff'd mem., 104 F.3d 355 (2d Cir. 1996).
The side bar conferences in Wilson's case dealt exclusively with the scope of the cross-examination of two witnesses: that is, the trial court's determination of what evidence the jury would be allowed to hear (Tr. 66, 70-74). The legal arguments presented regarding the appropriateness of the cross-examination did not involve any factual information uniquely in the possession of the defendant. Instead, they revolved solely around whether defense counsel could properly elicit testimony about the witness' knowledge of an alleged prior shooting of the defendant that had occurred before the murder. (Tr. ___, ____). The trial court was thus presented with a pure legal issue: whether certain testimony was admissible. Such matters are within the discretion of the trial court to determine. See, e.g., United States v. Salameh, 152 F.3d 88, 131 (2d Cir. 1998). This was not a situation where the defendant's presence "would have contributed to [his] opportunity to defend himself against the charges." Kentucky v. Stincer, 482 U.S. 730, 744 n. 17 (1987).
The First Department's conclusion that Wilson was properly excluded from the sidebar conferences did not amount to an "unreasonable application" of Supreme Court law. 28 U.S.C. § 2254(d). Therefore, Wilson is not entitled to habeas corpus relief.
Conclusion
Wilson's petition for habeas corpus should be denied.
Notice of Procedure for Filing of Objections to this Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 40 Centre Street, New York, New York 10007, and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Preska. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).