06 Civ. 15291 (LTS) (KNF).
September 10, 2008
REPORT AND RECOMMENDATION
Norcott Corby ("Corby"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Corby maintains his confinement by New York State, upon a conviction for second-degree murder and first degree robbery, is unlawful because the trial court deprived him of his right to confrontation, when it limited his cross-examination of the principal prosecution witness, Xanderia Burnett ("Burnett"), and, thereby, violated his Sixth Amendment rights, made applicable to the state by the Fourteenth Amendment. According to the petitioner, this limitation prevented him from communicating to the jury the essence of his defense: that Burnett had learned from a detective that Corby had accused her of committing the charged crimes — although Corby had not made such an accusation to that detective — and, consequently, Burnett had a motive to testify falsely that the petitioner committed the charged crimes. The respondent opposes Corby's petition. He contends the state court's determination of Corby's constitutional violation claim was neither contrary to nor an unreasonable application of clearly established federal law.
BACKGROUNDIn January 1996, Burnett went to a Manhattan after-hours nightclub. While at the nightclub, Burnett encountered the petitioner, who had dated her mother previously and whom she knew as "Sweet Pea." Burnett had not seen Corby for approximately a decade, and they began to converse. During their conversation, Corby offered to pay Burnett $1,500 in exchange for using her Manhattan apartment to "meet up" with a person who, at that time, he identified only as a "friend," but whom she would learn later was named Yousef Mohammed ("Mohammed"). Burnett accepted Corby's offer, although she suspected the petitioner intended to conduct a narcotics-related transaction, with Mohammed, in her apartment. Before leaving the nightclub, Burnett gave Corby her telephone number and told him to contact her, when he was ready to use her apartment, as they had discussed.
A few hours after Burnett and Corby had separated, he and a confederate, Orlando Moreno, whom Burnett had met earlier at the nightclub and knew only as "Moe," arrived at her apartment. Corby and Moe took up residence in Burnett's apartment immediately and remained there for approximately five days, as they awaited Mohammed's arrival, from San Francisco, with a large quantity of heroin.
When Mohammed arrived in New York, Corby, Moe, Burnett and her son, Bedrock, who was two years old, traveled from Burnett's apartment building to the Off-Soho Suites Hotel, located in the Chinatown/Bowery area of lower Manhattan. Upon arriving at the hotel, the group proceeded to one of its suites. Corby knocked on the door to the suite, and the man who opened it was introduced to Burnett as "Yousef." He ushered the group into the suite, where they remained for less than one hour. During that time, Burnett, her son and Moe watched television, while Corby and Mohammed spoke in another room of the suite. Burnett did not overhear their conversation. However, when it was concluded, Corby and those who had accompanied him to Mohammed's hotel, returned to Burnett's apartment. During the return trip, Corby assured Burnett that she would receive her money the following day and that he would soon vacate her apartment.
Three or four days later, Burnett observed Corby in her living room loading bullets into a small caliber automatic pistol that was equipped with a silencer. She told the petitioner to remove the firearm from her apartment because "I have kids in here," and Corby agreed to do so.
On January 22, 1996, Corby, Burnett, Moe and another of Corby's confederates, Walter Farrow ("Farrow"), drove from Burnett's apartment building to Mohammed's hotel in two cars. Upon their arrival at the hotel, Mohammed joined the group and they returned to Burnett's apartment. Thereafter, at Corby's suggestion, Burnett accompanied him to a Bronx courthouse, where Corby visited his parole officer. Moe, Farrow and Mohammed remained at Burnett's apartment.
When Corby and Burnett returned from the courthouse, Burnett observed Moe and Farrow in her living room watching television, but she did not see Mohammed. Burnett asked where Mohammed was and, before Moe or Farrow could respond, Corby asked them whether they had obtained "the key" and, if so, where it was located. The three men then entered Bedrock's bedroom and closed its door. They emerged several minutes later, and Corby directed Burnett to accompany him to the Off-Soho Suites Hotel; Burnett complied. While en route to the hotel, Corby instructed Burnett to help him transport drugs back to her apartment. When they reached the hotel, Corby used a key to unlock and enter Mohammed's suite. Corby searched the suite and located approximately 20 "little brown lunch bags" fastened with tape, which he indicated to Burnett contained heroin. Corby and Burnett exited the suite with the bags.
Corby and Burnett returned to her apartment building. When they reached Burnett's apartment, Corby, Moe and Farrow entered Bedrock's bedroom and closed the door. When they emerged from the bedroom, its door remained ajar. Burnett began to walk toward a bathroom located along the hallway adjacent to Bedrock's bedroom. As she did so, Burnett observed Mohammed's body positioned face down on the bed. His hands were bound behind his back and blood was oozing from a head wound. Burnett asked Corby what happened to Mohammed. She recalled that the petitioner responded "bitch, you better calm down or you [will] be dead too." Burnett saw Corby, Moe and Farrow divide, among themselves, the brown paper bags she and Corby had transported from Mohammed's hotel suite. Thereafter, the men wrapped Mohammed's body in a rug and bound it with tape.
That evening, Burnett assisted the men in placing Mohammed's body in her shopping cart and removing it from the apartment. Corby directed Burnett to return to the apartment and cleanse it of Mohammed's blood; she followed his direction. However, while Burnett was alone cleaning the apartment, she did not attempt to contact law enforcement officials to report Mohammed's death, because she feared the men would learn of the report. The men placed Mohammed's body in the trunk of Farrow's automobile, drove it approximately ten blocks and discarded the body on Riverside Drive, near a hospital, where it was soon discovered by a security guard who alerted the police to his discovery.
The detective assigned to investigate Mohammed's death, John Bourges ("Bourges"), obtained Mohammed's possessions from the hotel suite on January 31, 1996. Bourges found, among other items: (1) papers which contained the petitioner's name, handwritten as "Sweet Pea Norcott Corby," as well as the names of Corby's mother, brother and sister-in-law; (2) notations with the petitioner's nickname "Sweet Pea" and a contact number, in care of another person; and (3) the telephone number at the Florida residence of Corby's parents. Mohammed's death was linked quickly to Burnett's apartment through some of the documents the detective recovered from the hotel suite, including a purchase order for checks that Mohammed had instructed a New York bank to ship to him, in care of Burnett, at her address.
Bourges also visited Burnett's apartment on January 31, 1996, and Corby answered the door. He informed Bourges that Burnett was not at home, and the detective left. Bourges returned to the apartment on February 2, 1996, and interviewed Burnett. As he did so, Bourges observed the petitioner inside the apartment. He asked Burnett to identify Corby, and she did. However, Burnett did not reveal anything to Bourges about Mohammed or his murder, because Corby had threatened to "snap" Bedrock's neck if Burnett ever spoke about the incident.
Corby continued to reside at Burnett's apartment for months after Mohammed's murder. At some point during that time, he gave Burnett $2,000.00. Although the petitioner was not in the apartment constantly with Burnett during those months, she never reported Mohammed's murder to law enforcement authorities during that time. According to Burnett, she feared that Corby would kill her or her relatives.
In April 1996, Corby was arrested and incarcerated for a parole violation. However, Burnett determined not to report Mohammed's murder to law enforcement officials at that time, because she feared that Corby and his two accomplices, who were still at large, might harm her or her family. That fear prompted Burnett to move from New York to Philadelphia, in January 1997, upon learning that Corby's release from prison was imminent.
In April 1998, approximately 27 months after Mohammed's murder, Corby approached Detective Robert Hom ("Hom"), who was assigned to work with the United States Drug Enforcement Administration ("DEA"). Corby offered to serve DEA as a paid confidential informant. Corby represented to Hom that he had information about drug-related crimes and indicated he wanted Hom's assistance in locating Burnett. Corby explained that Burnett was his girlfriend and claimed she had stolen jewelry and money from him. Hom declined the petitioner's offer to assist DEA as a confidential informant and suggested that Corby report the alleged theft to his local police precinct.
Corby visited Horn again. This time he provided information about narcotics transactions and informed Hom of the homicide that had occurred in Burnett's apartment. Corby told Hom he was present in Burnett's apartment with Burnett, her cousin and Mohammed. Corby stated that he left the apartment to visit his parole officer and, upon his return several hours later, he observed Mohammed's body on the floor of the apartment. According to Corby, Mohammed had been "shot in the head and ice picked." Corby maintained that Burnett and her cousin wrapped the body in a rug and that he assisted them in: (a) removing the body from the apartment, via a shopping cart; and (b) dumping it behind a hospital. Some time in May 1998, Hom relayed Corby's information about the homicide in Burnett's apartment to Bourges.
In July 1998, Bourges contacted Burnett, via telephone, and informed her that he had additional questions pertaining to the checks that Mohammed caused to be shipped to her address. Bourges traveled from New York to Philadelphia to meet with Burnett. During their meeting, he showed her a series of photographs, including those of Mohammed and Corby. Burnett acknowledged that she recognized Corby's photograph, but she denied recognizing Mohammed's. Bourges told Burnett, falsely, that during a conversation with Bourges, Corby had implicated her in Mohammed's murder. At that point, Burnett "broke down and wept."
At the conclusion of the interview at her home, Burnett accompanied Bourges to a police station in Philadelphia, where she received Miranda warnings. Thereafter, Burnett told Bourges that the petitioner was involved in Mohammed's murder and provided a written statement implicating Corby, Moe and Farrow in the robbery and killing. Bourges returned to Burnett's Philadelphia home in August 1998, accompanied by a New York County assistant district attorney. In October of that year, the prosecutor and detective interviewed Burnett in New York City, and she identified a photograph presented by Bourges that depicted the rug used by the three men to dispose of Mohammed's body. Burnett also identified photographs of Farrow and a "much younger" Moe.
Corby was indicted by a New York County grand jury, in November 1998, for second-degree murder and first-degree robbery. He proceeded to trial before a jury. During the trial, Corby's counsel sought to elicit from Burnett, on cross-examination, that she did not implicate the petitioner in the charged crimes, for approximately two years, until Bourges told her that Corby had accused Burnett of participating in Mohammed's murder. However, the court sustained the prosecution's objections to the line of inquiry and barred Corby's trial counsel from asking Burnett about what Bourges reported to her, albeit falsely, about Corby's allegation concerning Burnett's involvement in the murder. The trial court reasoned that, through cross-examination, counsel to the petitioner was attempting to place into the trial record "impermissible, self-serving hearsay statements," attributed to Corby, about which the prosecution would not be able to cross-examine him, because he had elected not to testify at his trial and, furthermore, that such cross-examination would confuse the jury and cause speculation.
The court noted that the petitioner's counsel had been given "every latitude" in cross-examining Burnett to establish her "motive to lie" and had advised counsel of the permissible scope of his cross-examination. For example, the court advised Corby's counsel that he could inquire of Burnett whether Bourges confronted her with statements or information he obtained from Corby without mentioning exactly what Corby said. However, the court indicated that, notwithstanding its instructions to the petitioner's trial counsel regarding the permissible scope of Burnett's cross-examination, counsel "did not even ask all [the questions the court] said [he] could [ask]."
Corby's trial counsel attempted to convince the court, repeatedly and unsuccessfully, to reconsider its ruling and to permit him to inquire of Burnett regarding Bourges' statement to her about the allegation Corby purportedly made, implicating Burnett in Mohammed's murder. The stated goal of the line of inquiry was to provide the jury with a more precise understanding of the defense's theory: Burnett had a specific motive to testify falsely that the petitioner committed the charged crimes, because Corby told law enforcement personnel of Burnett's complicity in those crimes. Corby's counsel explained that inquiring of Burnett concerning the petitioner's alleged accusation was critical to the defense, because no other prosecution witness linked Corby directly to the crime. Counsel's entreaties were to no avail, and the jury convicted Corby for the charged crimes.
After the court refused to allow the petitioner's trial counsel to pursue the subject line of inquiry with Burnett, he asked to be allowed to pursue it when cross-examining Bourges. The court denied that request.
Corby appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. He argued, before that court, that reversible error had been committed by the trial court when it precluded him from eliciting testimony from Burnett which demonstrated she had a motive to lie and implicate him in the charged crimes. However, the Appellate Division, with one justice dissenting, found no reason to determine whether the "challenged ruling was erroneous because the record . . . makes it clear, beyond a reasonable doubt, that [Burnett's] motive to lie was readily apparent to the jury, and, therefore, the court's error, if any, was harmless."See People v. Norcott, 15 A.D.3d 14, 15, 787 N.Y.S.2d 241, 242 (App.Div. 1st Dep't 2004). The lone justice who dissented from the Appellate Division's determination granted the petitioner permission to appeal to the New York Court of Appeals.
Corby urged the New York Court of Appeals to upset his conviction because he was denied the constitutional rights to confront his accuser and to present a defense, by the trial court, when it precluded him from cross-examining Burnett regarding her motive to accuse him falsely and to deflect blame for the charged crimes from herself. Furthermore, Corby asserted that the Appellate Division erred in concluding that any error made by the trial court, in limiting the scope of his trial counsel's cross-examination, was harmless.
The New York Court of Appeals, with one judge dissenting, affirmed the petitioner's conviction upon a finding that "no constitutional violation occurred." People v. Corby, 6 N.Y.3d 231, 233, 811 N.Y.S.2d 613, 614 (2005). In reaching its decision, the New York Court of Appeals noted that the trial court "gave [the petitioner] wide latitude in showing that Burnett had a motive to lie and delineated the boundaries of cross-examination that would elicit Burnett's bias and hostility toward [the petitioner]." Id. at 235, 811 N.Y.S.2d at 615. In addition, the court found that "Burnett's fear-based motive to lie and hostility toward [the petitioner] were evident to the jury" from accumulated testimony and evidence in the record. Furthermore, the court explained, proof that Burnett's motive to lie was apparent to the jury can be found through a review of the closing statement given by Corby's counsel, who "argued vigorously in summation that Burnett had great reason to lie." Id. at 235, 811 N.Y.S.2d at 616.
Under these circumstances, and relying, in part, on Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431 (1986), the New York Court of Appeals concluded that the trial court had exercised its discretion properly in limiting the scope of the petitioner's cross-examination of Burnett, after weighing the probative value of the precluded line of cross-examination against the possibility that it would introduce, into the trial record, evidence that would confuse the jurors and cause speculation on their part respecting the truth of the accusation, purportedly made by Corby, about Burnett's participation in the charged crimes. Moreover, according to the court, the additional evidence Corby sought to obtain through Burnett, "would have been cumulative and of little probative value to [the petitioner's] case." Corby, 6 N.Y.3d at 236, 811 N.Y.S.2d at 616. After the New York Court of Appeals affirmed Corby's conviction, he made the instant application for a writ of habeas corpus alleging, as he did before the New York Court of Appeals, that the right secured to him by the Confrontation Clause was violated when the trial court limited his cross-examination of Burnett and that the trial court's error was not harmless.
A petitioner seeking federal habeas corpus relief bears the burden of proving, by a preponderance of the evidence, that a violation of the petitioner's constitutional rights has occurred.See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100, 108 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
A state-court decision is contrary to clearly established federal law: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law[;]" or (2) "the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" that reached by the Supreme Court. Williams, 529 U.S. at 405, 120 S. Ct. at 1519;see also Francis S., 221 F.3d at 107-08. A state-court decision involves an "unreasonable application" of Supreme Court precedent if: (1) "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case[;]" or (2) "the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, at 407, 120 S. Ct. at 1520.
The inquiry that must be undertaken by a federal habeas court is not whether the state court's application of, or refusal to extend, the governing law was erroneous; rather, the court must determine whether it was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 5, 124 S. Ct. 1, 4 (2003); Davis v. Grant, 532 F.3d 132, 140 (2d Cir. 2008). In this judicial circuit, the "objectively unreasonable" standard imposes on a petitioner the burden of identifying some increment of incorrectness by the state court that is beyond error before the petitioner would be entitled to habeas corpus relief. See Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003). However, "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., 221 F.3d at 111. (quotation and citation omitted).
Right to Confrontation
"The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution `to be confronted with the witnesses against him.' The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings, `means more than being allowed to confront the witness physically.' Indeed, `[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Van Arsdall, 475 U.S. at 678, 106 S. Ct. at 1435 (citations omitted) (emphasis in original). Notwithstanding the Confrontation Clause's essential purpose of ensuring the accused in a criminal prosecution the opportunity of cross-examination, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. at 679, 106 S. Ct. at 1435. Moreover, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. at 679, 106 S. Ct. at 1435 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 295 (1985) ( per curiam) (emphasis in original).
Thus, a Confrontation Clause violation is established when a criminal defendant shows he or she was barred from pursuing otherwise appropriate cross-examination, the purpose of which was to demonstrate a prototypical form of bias on the part of a witness, and thereby reveal to a jury facts from which the jury could appropriately draw inferences respecting the reliability of the witness. See Van Arsdall, 475 U.S. at 680, 106 S. Ct. at 1436; see also Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 1111 (1974). In analyzing a Confrontation Clause violation claim, a court need not require the claimant to make a showing of prejudice with respect to the trial as a whole. Rather, the court must assess whether the claimant's confrontation right was violated by focusing on the particular witness whose examination was constricted by the trial court and not on the outcome of the entire trial. See Van Arsdall, 475 U.S. at 680, 106 S. Ct. at 1435.
In the case at bar, the New York Court of Appeals found that Corby was given an opportunity, that is, "wide latitude" by the trial court, to show, effectively, through cross-examination, that Burnett had a motive to lie. See Fensterer, 474 U.S. at 20, 120 S. Ct. at 295. Focusing on Burnett's testimony, as a court should when confronted with a Confrontation Clause violation claim, pursuant to Van Arsdall, the New York Court of Appeals noted that:
Burnett testified that the murder was committed by men she invited into her apartment to engage in a drug transaction, that she assisted in discarding the body and that she cleaned the apartment of any evidence of the murder. Furthermore, Burnett testified that when she was first interviewed by Bourges at her apartment, [Corby] was in residence and had threatened to harm her child if she said anything about the murder. Burnett also testified that she did not contact the police with the information when [Corby] left the apartment because she feared for her family's safety and that she relocated to Philadelphia while [Corby] was incarcerated on an unrelated parole violation. Burnett also admitted to stealing from [Corby] when he was imprisoned.Corby, 6 N.Y.3d at 235, 811 N.Y.S.2d at 615-16.
The court also indicated that Corby was allowed to cross-examine Burnett about welfare fraud, her familiarity with the drug trade and her conviction for possessing a weapon. By virtue of the wide latitude given to the petitioner by the trial court to cross-examine Burnett, the New York Court of Appeals concluded that Corby was able to lay a foundation in the trial record, from which his trial counsel could argue vigorously, in his closing statement to the jury, the theory of the defense: Burnett had a motive to lie when she testified against Corby at his trial.
The petitioner contends "it was vital that the defense be allowed to cross-examine Burnett with any material information that might demonstrate her reason to falsely inculpate petitioner" and that the restriction placed on his cross-examination prevented that. (emphasis added). However, the petitioner's assertion of an unbridled entitlement to cross-examine Burnett ignores the discretionary authority vested in a trial court to exclude testimony "to accommodate other legitimate interests in the criminal trial process," provided that the restrictions imposed to accommodate the "other legitimate interests" are not "arbitrary or disproportionate to the purposes they are designed to serve." Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S. Ct. 2704, 2711 (1987).
In assessing the determination of the trial court to limit Corby's cross-examination of Burnett, the New York Court of Appeals stated that the trial court's reasoning, in deciding to preclude the questioning which is at the heart of the instant matter, was influenced by its desire to prevent cross-examination that would, inter alia, elicit evidence that could confuse the jury or cause it to speculate concerning a statement allegedly made by Corby about Burnett's complicity in the charged crimes. According to the Supreme Court, avoiding confusion of the issues is, like harassment and prejudice, among the permissible reasons upon which a court may rely in exercising its discretion to impose reasonable limits on the scope of cross-examination. See Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435.
The restriction placed on Corby's cross-examination of Burnett was imposed to ensure that the jury would not be: (i) confused by the evidence; (ii) invited to speculate on the truth of an accusation purportedly made by Corby; or (iii) subjected to cumulative evidence of little probative value to the petitioner's case. These are all legitimate interests for a court to accommodate through a preclusion order, and as such, the Court finds that the trial court's decision restricting the scope of Burnett's cross-examination, was neither arbitrary, since it was not perfunctory and was based on reason, nor disproportionate to the purpose it was designed to serve. This is so because, notwithstanding the restriction, Corby's counsel was allowed "wide latitude" to cross-examine Burnett and establish her motive(s) to testify falsely about Corby's involvement in the charged crimes.
The petitioner maintains the precluded cross-examination "was the only way to reveal Burnett's hostility and motive to lie against the petitioner." However, this claim is undermined by the closing arguments urged on the jury by Corby's trial counsel. He marshalled the trial record evidence to demonstrate to the jury that Burnett was unworthy of belief, because she had dissembled repeatedly in her dealings with government agencies and with law enforcement officials to further her self-interest and, in the instant case, to avoid being exposed to a criminal prosecution premised on her complicity in the charged crimes. In any event, it must be remembered that the guarantee the Confrontation Clause provides is the opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent the petitioner might wish. See Fensterer, 474 U.S. at 20, 106 S. Ct. at 294.
Corby also alleges that the decision reached by the New York Court of Appeals is contrary to Supreme Court precedent because, the court failed to decide his Confrontation Clause violation claim by focusing solely on Burnett. Rather, the petitioner contends, the court also assessed other evidence adduced at the trial.
A state-court decision is contrary to Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law." Williams, 529 U.S. at 405, 120 S. Ct. at 1519. The conclusion of New York Court of Appeals, that no constitutional violation occurred when the trial court limited the scope of Burnett's cross-examination, is in keeping with Supreme Court precedent establishing the right of a trial court to place restrictions on a litigant's ability to cross-examine a witness. Such restrictions may be imposed if they are "not arbitrary or disproportionate to the purposes they are designed to serve" and are used "to accommodate other legitimate interests in the criminal trial process." Rock, 483 U.S. at 55-56, 107 S. Ct. at 2711.
The New York Court of Appeals concluded that no Confrontation Clause violation occurred, in part, because the trial court's preclusion order was tailored narrowly to guard against the introduction, into the trial record, of evidence that could confuse the jury or invite it to speculate about the truth of a statement attributed to the petitioner, see Van Arsdall, 475 U.S. at 685, 106 S. Ct. at 1438, while affording the petitioner wide latitude to cross-examine Burnett and the opportunity to establish for the jury that she had a motive to testify falsely against Corby and insulate herself from prosecution. Consequently, the petitioner's assertion, that the decision of the New York Court of Appeals is contrary to Supreme Court precedent, is wrong, and does not warrant the court in granting him habeas corpus relief. See Jimenez v. Walker, 458 F.3d 130 147 (2d Cir. 2006).
Based on the above, the Court finds that Corby has not met the burden placed on him by 28 U.S.C. § 2254(d) of showing that the New York Court of Appeals' decision on his Confrontation Clause violation claim was either: (1) contrary to or involved an unreasonable application of clearly established federal law; (2) or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. The New York Court of Appeals made a determination on Corby's Confrontation Clause violation claim that is in harmony with Supreme Court jurisprudence, and did so after identifying the governing Supreme Court precedent and applying it reasonably to the facts with which it was confronted. Moreover, where a court finds no Confrontation Clause violation has occurred, as the New York Court of Appeals found here, no harmless error analysis is needed. See Fuller v. Gorczyk, 273 F.3d 212, 220 (2d Cir. 2001). In the circumstance of the instant case, Corby is not entitled to habeas corpus relief on his Confrontation Clause claim.
For the reasons set forth above, the petitioner's application for a writ of habeas corpus should be denied.
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 shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura T. Swain, 500 Pearl Street, Room 755, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).