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Simmons v. Mazzuca

United States District Court, S.D. New York
May 21, 2001
00 Civ. 8174 (AJP) (S.D.N.Y. May. 21, 2001)

Summary

applying AEDPA review standard to insufficiency of evidence claim

Summary of this case from Simpson v. Portuondo

Opinion

00 Civ. 8174 (AJP)

May 21, 2001


OPINION AND ORDER


Pro se petitioner Felix Simmons seeks a writ of habeas corpus from his conviction after a jury trial in Supreme Court, New York County, for three counts of first degree robbery, alleging insufficient identification evidence (Pet. ¶ 12(A)) and prosecutorial misconduct during cross-examination and summation (Pet. ¶ 12(B)). The parties have consented to resolution of the petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 7.)

For the reasons set forth below, Simmons' petition is DENIED.

FACTS

The Prosecution Case at Trial

Trial began on March 7, 1994 before Justice Edwin Torres. (Trial Transcript ["Tr."] 8.) Willie Huffaker testified that at about 5:00 or 6:00 p.m. on August 3, 1993, he and Felix Simmons took a taxi from the Bronx to 96th Street and Columbus Avenue in Manhattan. (Huffaker: Tr. 265, 270.) Leaving the cab double-parked at the corner, Simmons and Huffaker entered the Sloans supermarket on the corner of 96th and Columbus. (Huffaker: Tr. 270-72.) Simmons had with him a bag, containing a black gun; Huffaker also had a bag, but his did not contain a weapon. (Huffaker: Tr. 271.) Once inside the store, the men split up — Huffaker walked over to a cash register and Simmons went to the manager's office. (Id.)

Huffaker had pleaded guilty to this robbery as well as one he had committed on August 13, 1993 and had received concurrent sentences for those crimes. (Huffaker: Tr. 263-64, 283.) As part of his plea agreement, Huffaker agreed to testify "truthfully" at Simmons' trial. (Huffaker: Tr. 264-65, 296, 302-03.)

Manager Frank Woode testified that he was counting money in the office when, at about 6:25 p.m., there was a knock on the door. (Woode: Tr. 22-23, 27-28.) Woode opened the door "slightly" to "peek" out, but the door quickly "flashed" open and he was "knock[ed]" on the back of the head or neck with what felt like a gun. (Woode: Tr. 28, 37, 39.) The robber said, "Don't look at my face. If you look at my face, I'll smoke you," which Woode understood as a threat to shoot him, and complied. (Woode: Tr. 29; see also Woode: Tr. 34-35.)

At trial, Woode described the robber's conduct but did not identify Simmons as the robber, since he never saw the robber's face. (Woode: Tr. 33, 35, 44-46.)

After taking about $1,000 in single, twenty and hundred dollar bills from Woode's desk, the robber directed Woode to open the safe outside the office. (Woode: Tr. 25, 28-30, 41.) Following the robber's directions, Woode knelt beside the safe and opened it; the robber stood behind him and again repeated, "Don't look at my face." (Woode: Tr. 30-31.) Woode looked straight ahead as the robber took from the safe single dollar bills, as well as rolls of quarters, dimes, nickels and pennies. (Woode: Tr. 31, 42-43.) After he emptied the safe, the robber walked away. (Woode: Tr. 32.) For fifteen minutes, Woode remained on his knees looking straight ahead. (Woode: Tr. 32.)

Meanwhile, upon entering the store, Huffaker had gone to the cash register operated by Edward Roach. (Roach: Tr. 58, 61-62; Huffaker: Tr. 272.) Roach testified that he had noticed Simmons and Huffaker enter the store and stand together at a soda display at the front of the store for about thirty seconds before splitting up. (Roach: Tr. 60-62, 64, 81-82.) While noticing that Simmons was a dark skinned black man, Roach focused on Huffaker, a light skinned black man wearing plaid shorts and a white hat, as he approached. (Roach: Tr. 62-64, 81.) Gesturing with the bag he was holding, Huffaker said, "Don't move." (Roach: Tr. 64; see also Huffaker: Tr. 273.) Roach complied, believing there was a gun in Huffaker's bag. (Roach: Tr. 64.) At Huffaker's direction, Roach opened his register, took out the cash drawer, and Huffaker took the cash and put it in his pocket. (Roach: Tr. 65; see also Huffaker: Tr. 273-74.) Huffaker turned to Barbara Sanchez, the cashier at the register next to Roach's, and took the money from her register. (Roach: Tr. 65-66; see also Huffaker: Tr. 274.) Huffaker began smoking a cigarette while waiting for the second robber. (Roach: Tr. 67-68.) Roach had heard "a thump" coming from the manager's office — as if someone had fallen — but did not look in that direction because he did not want to look away from Huffaker. (Roach: Tr. 67, 80.)

Huffaker had been smoking for about three minutes when the second robber walked over, and the two men left the store. (Roach: Tr. 67-68, 84.) From a distance of about ten feet, Roach glanced at the second robber for about a second as he walked out, but not enough to tell what he looked like. (Roach: Tr. 69-71, 78-79, 83-85.) Roach noticed that the second robber was wearing a gold chain as well as a white hat that was "identical" to Huffaker's. (Roach: Tr. 69-71, 76-77, 88.) Roach testified that the second robber was carrying a black knapsack with a box of quarters sticking out; as he walked out, the second robber held the bag up and kept his head down. (Roach: Tr. 86-88.) The bag appeared to be heavy and the second robber seemed to be struggling with it. (Roach: Tr. 88.)

Artie Munoz was leaning on a mailbox talking to friends on 96th Street near Columbus Avenue when Simmons and Huffaker came walking toward him. (Munoz: Tr. 91-97.) Munoz, who had an unobstructed view of the men, noticed that Huffaker was a tall, "skinny," light skinned black man carrying a canvas bag, and that Simmons was a dark skinned black man, shorter and heavier than Huffaker, carrying plastic shopping bags. (Munoz: Tr. 96-98, 140-47.) Munoz's attention was drawn to the men by the bags they were carrying — a canvas bag with boxes of quarters sticking out and plastic supermarket shopping bags containing paper money and boxes of money — which led Munoz to conclude that the men might have robbed the Sloans supermarket. (Munoz: Tr. 98-100.) Munoz therefore looked at their faces so he would be able to identify them. (Munoz: Tr. 101-02.) Munoz noticed that while Huffaker was walking fast, Simmons had a "struggling walk," like a limp. (Munoz: Tr. 102, 150-151.) Simmons bumped into Munoz as he walked past, at which point Munoz looked "directly" into Simmons' face. (Munoz: Tr. 102-03, 131-32.) At trial, Munoz identified the man who bumped into him as the defendant, Simmons. (Munoz: Tr. 103.) Munoz observed that Simmons was wearing a white hat, a white tee shirt under dark clothing and a gold crucifix on a gold chain. (Munoz: Tr. 106-08, 157-60.) Munoz watched Simmons and Huffaker get into the back seat of a car that had been double-parked at the corner, its driver inside, for about half an hour. (Munoz: Tr. 94, 104-06.) The time from when Munoz first saw them until they got into the car was about a minute. (Munoz: Tr. 147.) As the car slowly drove off towards the West Side Highway, Munoz's friend wrote down the car's license plate number on the mailbox. (Munoz: Tr. 106, 109-11, 149.)

Munoz noticed that the man in the driver's seat was Hispanic or black with short hair, but although Munoz looked at his face, he did not see him that well. (Munoz: Tr. 105-06, 251-52.)

Once in the car, Huffaker took the bags from Simmons including the gun in the bag. (Huffaker: Tr. 274-76, 305-06.) That night, he met Simmons and the driver at the home of Chariffe Jones, where each of them got a $500 share of the $1,500 crime proceeds. (Huffaker: Tr. 276-78, 302.)

Police officer Zultan Karpati arrived at 96th Street and Columbus Avenue shortly after the car drove away and spoke to Munoz. (Karpati: Tr. 189-91, 219; Munoz: Tr. 111-13.) After that conversation, Officer Karpati looked at the mailbox, saw that the license plate number was written on it, took a photograph of the number on the mailbox, and went to the Sloans supermarket and interviewed people there. (Karpati: Tr. 190-92.) Officer Karpati radioed the license number to Central Communications and was told that the plate had been issued to the Zercon Cab Corporation at 1685 Jerome Avenue in the Bronx. (Karpati: Tr. 192-93.) Officer Karpati went to Jerome Avenue but there was no such address. (Karpati: Tr. 192.) After inquiring at nearby locations and the Taxi and Limousine Commission, on August 10, 1993 Officer Karpati found a car with that license plate number at a repair shop which leases cars to cab drivers, located at 1440 Bruckner Boulevard in the Bronx. (Karpati: Tr. 193-95.) Records maintained by Edgar Mena, who worked at the garage, confirmed that Simmons leased the car six days a week, picking up the car at about 5:00 or 6:00 p.m. each day for a twelve hour shift, beginning about July 23, 1993 and continuing through August 3, 1993 and beyond. (Mena: Tr. 169-74, 181-82, 184-85; Karpati: Tr. 195-96, 244-45.)

On the day before Mena testified at trial, Simmons and Huffaker showed up at the new garage where Mena worked; Mena had previously seen the two men together "a lot of times." (Mena: Tr. 174-75; see also Simmons: Tr. 428-29.) Simmons asked Mena if Mena remembered that he had paid to use the car on August 3, 1993. (Mena: Tr. 175.) When Mena replied that Simmons had paid him, Simmons said "Okay." (Mena: Tr. 175-76.)

Later on the afternoon of August 10, 1993, Officer Karpati took Munoz to the garage and showed him the car. (Karpati: Tr. 197; Munoz: Tr. 114-15.) Munoz confirmed that the car was the one he had seen the robbers get into on August 3, 1993. (Munoz: Tr. 114-16.) At about 5:40 p.m. that day, Officer Karpati arrested Simmons as he walked into the garage and took him to the 24th Precinct. (Karpati: Tr. 197-98; see also Simmons: Tr. 431.) Simmons was not on crutches. (Karpati: Tr. 195.)

On Labor Day, September 6, 1993, Officer Karpati was on duty at the West Indian Day Parade and was "surprised" to see Simmons "marching on the sidewalk next to the parade." (Karpati: Tr. 213-14, 249-50.) Although Simmons had "a particular walk," he was walking without crutches, a cane or other assistance. (Karpati: Tr. 214.)

That evening, Officer Karpati assembled a lineup which included Simmons. (Karpati: Tr. 199.) Sloans employees Roach and Woode viewed that lineup, but neither identified Simmons as one of the robbers. (Karpati: Tr. 201-02; Roach: Tr. 71-74.) Officer Karpati assembled a second lineup later that evening, at which Munoz selected Simmons as one of the men he had seen get into the car on 96th Street. (Munoz: Tr. 116-18; Karpati: Tr. 202-04, 232-33.) Munoz had "no doubt" about the identification. (Munoz: Tr. 119.) Immediately following the lineup, Munoz also told Officer Karpati "Look, definitely number one." (Karpati: Tr. 233, 235; see also Munoz: Tr. 118.)

Later that evening, Sheryse Lawson came to the station house and said she was Simmons' girlfriend. (Karpati: Tr. 204-05, 246-47.) Lawson was wearing a gold chain with a crucifix on it which she said belonged to Simmons. (Karpati: Tr. 204-05.) Officer Karpati asked for the chain and Lawson gave it to him. (Karpati: Tr. 205-06, 249.)

On August 13, 1993, Huffaker, Jones and Henry Russell robbed a Gristedes supermarket located on East 96th Street. (Huffaker: Tr. 279-81, 284-85, 301-03.) A fourth man, Henry Bernard, drove them for that robbery. (Huffaker: Tr. 279, 284-85.) On September 7, 1993, after receiving information about the Gristedes robbery, Officer Karpati put Huffaker in a lineup, from which Roach identified Huffaker as the light skinned robber. (Karpati: Tr. 207-09; Roach: Tr. 72-73.) On September 20, 1993, Officer Karpati showed photographs of that lineup to Munoz who also selected Huffaker as one of the men he had seen carrying bags full of money on the evening of August 3, 1993. (Karpati: Tr. 209; Munoz: Tr. 112-22.)

At trial, Huffaker identified Simmons as his accomplice in the August 3, 1993 Sloans robbery. (Huffaker: Tr. 267-78.) Munoz identified Simmons and Huffaker as the men who had gotten in the double-parked car after the crime. (Munoz: Tr. 103-04, 121-24.) Munoz also identified the chain worn into the station house by Simmons' girlfriend as the one worn by the robber, but admitted that the chain was not an unusual one. (Munoz: Tr. 107-08, 158-60.)

Munoz also viewed Henry Russell, who the defense claimed was the second robber, and confirmed that Russell was not one of the men who got into the waiting car. (Munoz: Tr. 119-20.) In addition, Timothy Conliffe, who would testify as a defense witness, was brought to the courtroom and Munoz testified that he was not the driver of the car. (Munoz: Tr. 111.)

The Defense Case (Including the Prosecution's Cross-Examination of Simmons)

Sheryse Lawson testified that when she went to the precinct after Simmons' arrest, Officer Karpati asked her if Simmons had a "chain with a cross on it." (Lawson: Tr. 315-16.) Lawson replied that Simmons did not but that he had a chain with the initial "F" and also said that she owned a chain with a cross. (Lawson: Tr. 315-16.) Lawson identified the chain with a cross as hers, which she had taken off her neck and given to Officer Karpati. (Lawson: Tr. 317-18.) Officer Karpati asked her to go home and bring Simmons' chain back to the precinct, which she did. (Lawson: Tr. 316-19.) According to Lawson, Officer Karpati kept the chain with the cross and returned the chain with the "F." (Lawson: Tr. 319.)

Learning that the date of the robbery was August 3, Lawson also brought Timothy Conliffe back to the precinct "so he could tell the police what happened." (Lawson: Tr. 316.) Lawson testified that she remembered August 3 and that she, Simmons, and Simmons' home attendant were waiting for a nurse who made periodic visits since Simmons' surgery a few months previously. (Lawson: Tr. 320-22.) The nurse came between 2:00 and 3:00 p.m. and left at about 4:00 p.m. (Lawson: Tr. 322-23.) Thereafter, Lawson and Simmons drove the attendant to her home and did some other errands before returning home. (Lawson: Tr. 323-25.) At about 7:00 p.m. Conliffe came to the house. (Lawson: Tr. 327-28.)

Lawson was able to remember the details of August 3 because it was the day after she had resigned from her job at Jacobi Hospital, and August 10, the day Simmons was arrested, but could not remember the intervening days because nothing unusual had happened. (Lawson: Tr. 323, 329-41.)

Testifying in his own behalf, Simmons testified that on August 3, 1993, his friend Conliffe used the cab Simmons had rented from Mena. (Simmons: Tr. 418-21.) Simmons admitted paying Mena for taking the cab out and admitted visiting him before his testimony with an investigator and Conliffe. (Simmons: Tr. 420-21, 428-30.) Simmons also admitted telling Officer Karpati that he had a chain with a cross on it at home, but explained that that was a mistake because his chain was the "F chain" and the other chain was Lawson's which she wore every day. (Simmons: Tr. 433, 442.) Simmons denied ever seeing Huffaker before seeing him in court in a prior proceeding in the case. (Simmons: Tr. 425-26.)

On cross-examination, the prosecutor asked Simmons whether he had been convicted of a felony. (Simmons: Tr. 427.) When Simmons answered in the affirmative, the prosecutor asked:

Q: And that felony for which you were convicted after trial involved an offense —

THE COURT: No, no, no allusion to the nature and quality of the prior felony. (Simmons: Tr. 427.) In addition, the prosecutor questioned Simmons about falling behind in his rent and his public assistance running out. (Simmons: Tr. 433-35.) Defense counsel made a general objection which was overruled by the court. (Simmons: Tr. 434.)

Earlier, the court had ruled that the prosecutor could "[m]erely . . . ask in the generic sense if [Simmons had been] convicted of a felony. Not go into the particulars of the fact it was a crime identical in essence, a [gunpoint] robbery." (Tr. 3, 6-7.)

Conliffe testified that on August 3, 1993, he got a cab from his friend Simmons and picked up two men who wanted to go to 96th Street and back to the Bronx. (Conliffe: Tr. 357, 361.) Conliffe described both these men as wearing white hats, white shorts and gold chains; one was big and the other was "skinny." (Id.) Conliffe drove them to West 96th Street. (Id.) They asked him to wait and he double-parked and waited no longer than five minutes. (Conliffe: Tr. 361-62, 368, 413-14.) They came back with a bag, and the larger man put a gun to Conliffe's head and told him to drive them back to the Bronx, where they gave him twenty dollars. (Conliffe: Tr. 362-64, 414.) Conliffe went to Simmons' house, told Simmons and Lawson what had happened, but did not call the police. (Conliffe: Tr. 362, 364-66, 413; Simmons: Tr. 421-22.)

When Conliffe learned on August 10, 1993 that Simmons had been arrested for a robbery that took place on August 3, he went to the precinct and spoke to Officer Karpati, even though he feared he might be arrested. (Conliffe: Tr. 366-67.) Conliffe signed a written statement. (Conliffe: Tr. 367-68.) Henry Russell was produced in the courtroom and Conliffe testified that he was the man who pointed the gun at him in the cab, i.e., the heavier one. (Conliffe: Tr. 369-70, 379-80, 444.) Conliffe identified Huffaker from a photograph as the second, "skinny" man. (Conliffe: Tr. 370.)

Dr. Paul Jendrek, who had treated Simmons for neck and spinal cord injuries, testified that as of July 19, 1993 and September 7, 1993 when he treated Simmons, Simmons could not walk without a cane and would not have been able to carry something in both hands while walking. (Jendrek: Tr. 392-407.)

The Prosecution Rebuttal Case

Officer Karpati testified on rebuttal that he asked Simmons "where is your chain with the cross on it" and Simmons replied "it's at home on top of the dresser." (Karpati: Tr. 447, 450.) Officer Karpati asked Lawson to bring Simmons' chain with the cross to the station house, which she did. (Karpati: Tr. 447-48, 451.) Lawson told Officer Karpati that it was Simmons' chain. (Karpati: Tr. 448-49.)

Henry Russell testified that he was serving a three to nine year sentence for the August 13, 1993 Gristedes robbery as well as another supermarket robbery in the Bronx. (Russell: Tr. 452-54.) When arrested, Russell confessed that he had committed the August 13, 1993 robbery. (Russell: Tr. 453.) In court, Russell denied committing the August 3, 1993 Sloans robbery. (Russell: Tr. 453.)

Summations

In summation, defense counsel, inter alia: argued that Munoz's identification testimony was not credible, highlighting the inconsistencies between his grand jury and trial testimony (Tr. 463-65, 473-79, 483); attacked Huffaker's testimony based on his plea agreement and the incredibility of his doing a robbery with someone he had not met before (Tr. 482-83, 489-91); argued that the gold chain linking Simmons to the robbery was not unique (Tr. 470-72); and asserted that Dr. Jendrek's testimony showed that it was physically impossible for Simmons to have committed the acts described by the prosecution witnesses (Tr. 491-93).

The prosecution's summation emphasized the credibility of its witnesses, including Munoz's positive identification of Simmons, while pointing out the defense witnesses' motives to lie, as well as inconsistencies in the defense case. (Tr. 501-30.) Defense counsel made several general, unspecified objections during the prosecutor's summation (see Tr. 513, 514, 515, 516, 518, 519, 520, 524, 527, 528), as well as three specific objections (see Tr. 511 (objecting to prosecutor's remark that "if . . . disabled needs the money . . . was justification, about six million people in this City would have justification for doing a robbery" as an "unfair comment"), Tr. 512-13 (objecting to prosecutor's statement "Did Mr. Simmons ever once deny that he was walking alongside that parade?" as an "improper comment placing the burden on the defendant"), Tr. 517 (prosecutor explained that Huffaker had not implicated Simmons in the robbery until shortly before trial because he had not pleaded guilty until shortly before trial and then stated "It's the first time because before that time he was pleading not guilty. Before that time he didn't do it. Before that, before Thursday, `Mom, I didn't do it, you have to believe me. I didn't do it. I don't know this guy.' That's what that means. `Ma, I didn't do it, ma, I don't even know this guy. He might have done it. I didn't do it;'" defense counsel objected on grounds that prosecutor's statement was "not accurate").) Defense counsel's objections were overruled. (See Tr. 511-20, 524, 527, 528.)

Verdict and Sentence

The jury found Simmons guilty of three counts of first degree robbery. (Tr. 592-93.) On June 1, 1994, Simmons was sentenced as a second violent felony offender to three concurrent terms of ten to twenty years imprisonment. (6/1/94 Sentencing Transcript at 4, 22.)

Direct Appeal

Simmons appealed his conviction to the First Department alleging, inter alia, (1) that his identity as the robber was not proven beyond a reasonable doubt (Dkt. No. 6: Asst. Atty. General Dian Kerr McCullough Aff. Ex. B: Simmons 1st Dep't Br. at 36-43); and (2) that "prosecutorial misconduct . . . in cross-examination and in summation, involving deceptive arguments on critical credibility issues for the jury's determination, deprived [Simmons] of his due process right to a fair trial" (id. at 43-57).

With respect to his prosecutorial misconduct claim, Simmons complained that:

During cross-examination of appellant, the prosecutor attempted to circumvent the Sandoval ruling and questioned him at length, over objection, about falling behind in his rent and his Medicaid running out, thereby suggesting an economic motive to commit robbery. In summation, the prosecutor's improper arguments ran the gamut from vouching for his witnesses and using his authority and the authority of his office to selectively endorse and discredit his own witness Huffaker's testimony, to the oft-condemned ploy of denigrating the defense and the defense witnesses by calling them liars.

(Id. at 44.)

The First Department affirmed, holding that "[t]he evidence of guilt was legally sufficient and the verdict was not against the weight of the evidence. We see no reason to disturb the jury's determinations concerning credibility and identification." People v. Simmons, 259 A.D.2d 345, 345, 684 N.Y.S.2d 789, 790 (1st Dep't 1999). In addition, the First Department held: "By failing to object, by making general objections, or by objecting on different grounds than raised on appeal, defendant has not preserved his various challenges to the prosecutor's cross-examination and summation, and we decline to review these claims in the interest of justice. Were we to review these claims, we would find no basis for reversal." Id.

On June 24, 1999, the New York Court of Appeals denied leave to appeal. People v. Simmons, 93 N.Y.2d 979, 695 N.Y.S.2d 65 (1999).

Simmons' Current Federal Habeas Petition

Simmons timely filed his present federal habeas petition alleging that: (1) his identity as one of the robbers was not proven beyond a reasonable doubt (Pet. ¶ 12(A)); and (2) prosecutorial misconduct during cross-examination and summation deprived him of a fair trial (Pet. ¶ 12(B)).

ANALYSIS

I. SIMMONS' CLAIM THAT HIS CONVICTION RESTED ON LEGALLY INSUFFICIENT EVIDENCE IS WITHOUT MERIT

"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.

Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997); Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at *7 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N Y Nov. 19, 1997) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N Y Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N Y 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

Petitioner Simmons bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).

Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a `heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 121 S.Ct. 778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a `very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. . . . In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor."), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.) (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor); Jones v. Duncan, 2001 WL 322190 at *7; Cassells v. Ricks, 2000 WL 1010977 at *6; Ventura v. Artuz, 2000 WL 995497 at *8; Roldan v. Artuz, 78 F. Supp.2d at 267; Estrada v. Senkowski, 1999 WL 1051107 at *15; Cruz v. Greiner, 1999 WL 1043961 at *25; Jones v. Strack, 1999 WL 983871 at *13 n. 9; Franza v. Stinson, 58 F. Supp.2d at 138; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).

Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d 1383, 1395 (quoting United States v. Martinez, 54 F.3d 1040, 1042-43; Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984); Jones v. Duncan, 2001 WL 322190 at *7; Cassells v. Ricks, 2000 WL 1010977 at *6; Ventura v. Artuz, 2000 WL 995497 at *8; Roldan v. Artuz, 78 F. Supp.2d at 267; Estrada v. Senkowski, 1999 WL 1051107 at *15; Cruz v. Greiner, 1999 WL 1043961 at *25; Jones v. Strack, 1999 WL 983871 at *13; Franza v. Stinson, 58 F. Supp.2d at 138; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.

Here, Simmons argues that his "identity as the second robber was not proven beyond a reasonable doubt, where serious defects existed in the prosecution's identification case, and where petitioner presented a strong defense case." (Pet. ¶ 12(A).) Simmons' argument is without merit as the evidence linking Simmons to the crime was sufficient to establish Simmons' guilt beyond a reasonable doubt.

First, Huffaker testified that Simmons was the other member of the robbery team and his account of the robbery matched the account of events described by Sloans employees Woode and Roach. (See pages 2-4 above.) Second, Simmons' identity as the second robber was further established by Munoz's unequivocal identification of Simmons, in a lineup and in court, as the man he observed leaving the Sloans supermarket. (See Munoz: Tr. 103-04, 117-19.) Munoz testified that he was standing outside near the store talking with friends when the robbers walked past him. (Munoz: Tr. 95-108.) Munoz testified that Simmons bumped into him while on his way to the getaway car, allowing Munoz to get a good look at him. (Munoz: Tr. 102-03, 131-32.) Munoz testified that he concentrated on the men's faces because he believed they had committed a robbery and he wanted to be able to identify them. (Munoz: Tr. 101-02.) Munoz also observed that Simmons, who was a dark skinned black man, was shorter and heavier than his accomplice and was wearing a white hat, a white tee shirt under dark clothing and a gold crucifix on a gold chain and that he had a "struggling" walk or kind of limp. (Munoz: Tr. 97-102.) This description was consistent with Roach's description of the second robber. (See Roach: Tr. 70-71, 84-85.) Finally, Munoz had his friend write down the license plate number of the getaway car (Munoz: Tr. 106, 109-11, 149) — a number that was traced to a taxi rented that day by Simmons. (See pages 6-7 above.)

Also supporting the jury's finding that Simmons committed the robbery was Officer Karpati's testimony that, shortly after Simmons' arrest, Simmons' girlfriend came into the station house wearing a gold crucifix on a gold chain — the kind of necklace worn by the dark skinned robber — and said that the necklace belonged to Simmons. (Karpati: Tr. 205-06.)

The jury chose to credit Huffaker's and the other prosecution witnesses' testimony and convict Simmons of the robbery of the Sloans supermarket. "[T]he jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164 (1989)).

Accord, e.g., United States v. Rosa, 11 F.3d at 337; Ventura v. Artuz, 2000 WL 995497 at *8; Roldan v. Artuz, 78 F. Supp.2d at 269; Estrada v. Senkowski, 1999 WL 1051107 at *16; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.

This Court may not reassess the jury's finding of credibility: "`[f]ederal habeas courts are not free to reassess the facts specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.'" Vera v. Hanslmaier, 928 F. Supp. at 284 (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N Y Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993)).

Accord, e.g., Ventura v. Artuz, 2000 WL 995497 at *8; Roldan v. Artuz, 78 F. Supp.2d at 269; Estrada v. Artuz, 1999 WL 1051107 at *16; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416-17; Williams v. Bennet, 1998 WL 236222 at *5; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; see also, e.g., Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony").

Here, as in prior cases, "the jury's decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981). That there were some inconsistencies in the prosecution's case does not change the result. See, e.g., Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony). Nor does the fact that Huffaker testified pursuant to a plea agreement. See, e.g., United States v. Diaz, 176 F.3d 52, 92 (2d Cir.) ("In addition to the general principles noted above in reviewing sufficiency of the evidence claims, we have recognized that `[a] conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.'"), cert. denied, 528 U.S. 875, 120 S.Ct. 181 (1999); United States v. Messina, 388 F.2d 393, 394 (2d Cir.) ("Appellants . . . assert that Farrah's testimony should not have been believed. It is true that Farrah's credibility was open to attack; he had made several statements to FBI agents before trial which were inconsistent with his trial testimony, he received a reduction in sentence at about the time he began cooperating with government investigators, and it is not unlikely that he was an accomplice in the crimes. On the other hand, his account was plausible and was in part corroborated by the testimony of other witnesses. Farrah's credibility was for the jury to assess; that it chose to believe his testimony presents no ground for appellate reversal."), cert. denied, 390 U.S. 1026, 88 S.Ct. 1413 (1968).

Accord, e.g., Roldan v. Artuz, 78 F. Supp.2d at 269; Estrada v. Senkowski, 1999 WL 1051107 at *17; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Williams v. Bennet, 1998 WL 236222 at *6; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.

See also, e.g., Carromero v. Strack, 1998 WL 849321 at *5 (evidence sufficient where jury credited prosecution witnesses' testimony "despite some inconsistencies between their trial testimony and prior statements to the police and to the grand jury"); Davis v. Senkowski, No. 97-CV-2328, 1998 WL 812653 at *5 (E.D.N.Y. Aug. 6, 1998) ("The jury here chose to believe [the prosecution witness]'s testimony despite any inconsistencies in the evidence, and I will not reassess that decision."); Williams v. Bennet, 1998 WL 236222 at *5 ("Williams relies on inconsistencies in his victim's trial testimony as compared to her statements to the police, the District Attorney's office and before the grand jury. These inconsistencies were placed before the jury by the defense, which made them a central focus of its case. The jury's decision to credit [the victim]'s testimony, despite its inconsistencies, over Williams' testimony, is fully supported by the record."); Taxiarhopolous v. Spence, No. CV 92-0790, 1992 WL 403112 at *4 (E.D.N.Y. Dec. 28, 1992) (The petitioner "cannot show that the evidence was insufficient to support conviction. For example, he challenges the credibility of the main prosecution witness . . ., pointing to alleged inconsistencies in his testimony. This, however, was an argument made to, and properly resolved by, the trial jury.").

See also, e.g., United States v. Taylor, 82 F.3d 200, 201 (8th Cir. 1996) (Defendant "claims that [his accomplices] were not credible because they were testifying pursuant to a plea agreement. But it is for the jury, not [the Court], to assess the credibility of witnesses."); United States v. Henderson, 58 F.3d 1145, 1149 (7th Cir. 1995) (convictions were supported by sufficient evidence even though government witnesses had prior convictions and received favorable plea agreements based on cooperation with the government); United States v. Byerley, 999 F.2d 231, 235 (7th Cir. 1993) ("Only if the testimony is `inherently unbelievable' will this court overturn a guilty verdict based on the testimony of a co-conspirator testifying pursuant to a plea agreement.").

Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act ("AEDPA") has further limited this Court's role in determining sufficiency of the evidence habeas petitions. The AEDPA amended 28 U.S.C. § 2254(d) to provide that:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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. § 2254(d). See, e.g., Williams v. Taylor, 529 U.S. 362, 402-09, 120 S.Ct. 1495, 1518-21 (2000) (explaining scope of "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1)). For the reasons stated above, this Court cannot say that the First Department's decision that the evidence was sufficient to convict Simmons of robbery was contrary to established federal law or was based on an unreasonable determination of the facts.

See also, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (same; "[s]ome increment of incorrectness is required" for there to be "unreasonable application") (quoting Francis S. v. Stone, 221 F.3d 100, 107-11 (2d Cir. 2000)); Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000), cert. denied, 121 S.Ct. 865 (2001); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *21 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Collins v. Travis, 00 Civ. 3746, 2000 WL 1476664 at *5-6 (S.D.N.Y. Oct. 5, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5-6 (S.D.N.Y. July 19, 2000) (Peck M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *13-23 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report recommendation adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Roldan v. Artuz,78 F. Supp.2d at 269-70.

See, e.g., Huber v. Schriver, No. 98-CV-0017, 2001 WL 403234 at *6, 9-11 (E.D.N.Y. Apr. 17, 2001) (applying AEDPA review standard to insufficiency of evidence claim); Manning v. Walker, No. 99-CV-5747, 2001 WL 25637 at *5-6 (E.D.N.Y. Jan. 3, 2001) (same); Davis v. Keane, 97 Civ. 8328, 2000 WL 1041454 at *2-3 (S.D.N.Y. July 28, 2000) (same); Garvey v. Kelly, 104 F. Supp.2d 169, 170-73 (W.D.N.Y. 2000) (same); Roldan v. Artuz, 78 F. Supp.2d at 269-70 (same); Estrada v. Senkowski, 1999 WL 1051107 at *17-18 (same); see also, e.g., Hurtado v. Tucker, 245 F.3d 7, 14-20 (1st Cir. 2001) (suggesting "guidelines as to some . . . of the principles in an insufficiency-of-the-evidence case to be used in making the evaluation of objective unreasonableness under § 2254(d)(1)"); Romano v. Gibson, 239 F.3d 1156, 1164-65 n. 2 (10th Cir. 2001) (recognizing split in Tenth Circuit "as to whether under AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1)").

Accordingly, Simmons' insufficient evidence habeas claim is denied.

II. SIMMONS' PROSECUTORIAL MISCONDUCT CLAIM IS BARRED FROM HABEAS REVIEW BECAUSE THE FIRST DEPARTMENT'S DECISION WAS BASED ON AN ADEQUATE AND INDEPENDENT STATE LAW GROUND

Simmons contends that "[t]he pervasive prosecutorial misconduct which received the imprimatur of the trial court, in cross-examination and in summation, involving deceptive arguments of critical credibility issues for the jury's determination deprived [him of] a fair trial." (Pet. ¶ 12(B).)

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996, cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

See also, e.g., Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at *4 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (April 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).

"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must `clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("a state court need not fear reaching the merits of a federal claim in an alternative holding"); Garcia v. Lewis, 188 F.3d 71, 77-82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d at 724-25. Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.

Accord, e.g., Jones v. Duncan, 2001 WL 322190 at *4; Riles v. Breslin, 00 Civ. 3283, 2001 WL 175250 at *4 (S.D.N.Y. Feb. 23, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *5 (S.D.N.Y. May 25, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *9 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 1999 WL 1043961 at *13; Avincola v. Stinson, 60 F. Supp.2d 133, 153 n. 7 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.).

See also, e.g., Jones v. Duncan, 2001 WL 322190 at *4; Cruz v. Greiner, 1999 WL 1043961 at *13; Chisolm v. Headley, 58 F. Supp.2d at 286-87; Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."); Torres v. Irvin, 33 F. Supp.2d at 274; Campbell v. Brunnelle, 925 F. Supp. 150, 157 (S.D.N.Y. 1996) (Leisure D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. Apr. 20, 1996) (Baer, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. at 285.

Accord, e.g., Jones v. Duncan, 2001 WL 322190 at *4; Cruz v. Greiner, 1999 WL 1043961 at *13; Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irwin, 33 F. Supp.2d at 274; Williams v. Bennet, 1998 WL 236222 at *6; Vera v. Hanslmaier, 928 F. Supp. at 275.

With respect to Simmons' challenges to the prosecution's alleged improprieties on cross-examination and in summation, the First Department stated that "By failing to object, by making general objections, or by objecting on different grounds than raised on appeal, defendant has not preserved his various challenges to the prosecutor's cross-examination and summation, and we decline to review these claims in the interest of justice. Were we to review these claims, we would find no basis for reversal." People v. Simmons, 259 A.D.2d 345, 345, 684 N.Y.S.2d 789, 790 (1st Dep't 1999).

State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.

Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559. Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found to be too ambiguous to preclude habeas review, see Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1991), the First Department here explicitly stated that it found Simmons' prosecutorial misconduct claim to be unpreserved, People v. Simmons, 259 A.D.2d at 345, 684 N.Y.S.2d at 790, and the fact that the First Department also stated the conclusion it would reach "[w]ere we to review these claims" does not change the result. See, e.g., Glenn v. Bartlett, 98 F.3d at 724-25 (state decision which denied prosecutorial misconduct claim as "not preserved for appellate review" represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds). Thus, the First Department's decision rested on a state procedural ground, but the Court next must consider whether that state procedural basis was "adequate."

Accord, e.g., Jones v. Duncan, 2001 WL 322190 at *4-5; Cruz v. Greiner, 1999 WL 1043961 at *13; Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274; Williams v. Bennet, 1998 WL 236222 at *6; Vera v. Hanslmaier, 928 F. Supp. at 286.

See also, e.g., Jones v. Duncan, 2001 WL 322190 at *5 (claims held to be unpreserved not cognizable on habeas even though First Department stated its conclusion as to merits of claims "were we to review" them); Yeung v. Artuz, 2000 WL 145103 at *10 (same); Cruz v. Greiner, 1999 WL 1043961 at *12-13 (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274; Owens v. Portuondo, 1999 WL 378343 at *5-6; Stanley v. Kuhlman, 10 F. Supp.2d 250, 254 (E.D.N.Y. 1998) (challenge to prosecutor's summation that Appellate Division held to be unpreserved for appellate review not cognizable on habeas even though Appellate Division found, in an alternative holding, that the prosecutor's challenged remarks constituted a fair response to defense counsel's summation); Williams v. Bennet, 1998 WL 236222 at *6; Vera v. Hanslmaier, 928 F. Supp. at 285; Liner v. Keane, 1996 WL 33990 at *7.

The New York Court of Appeals denied Jones' application for leave to appeal without opinion. People v. Jones, 93 N.Y.2d 973 979, 695 N.Y.S.2d 58 65 (1999). The Supreme Court held in Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803, 111 S.Ct. at 2594; accord, e.g., Aramas v. Donnelly, 2000 WL 559548 at *4; Yeung v. Artuz, 2000 WL 145103 at *10; Cruz v. Greiner, 1999 WL 1043961 at *13 n. 3; Chisolm v. Headley, 58 F. Supp.2d at 287; Owens v. Portuondo, 1999 WL 378343 at *5 n. 3; Torres v. Irvin, 33 F. Supp.2d at 274 n. 2; Williams v. Bennet, 1998 WL 236222 at *7 n. 2; Vera v. Hanslmaier, 928 F. Supp. at 286 n. 3. Jones has presented no facts to rebut that presumption here.

Under New York law, Simmons was required to raise his challenges to the prosecutor's alleged errors on cross-examination and in summation by way of specific objections before the trial court, but did not. See, e.g., People v. Dordal, 55 N.Y.2d 954, 956, 449 N.Y.S.2d 179, 180 (1982) (failure to timely object to prosecutor's summation comments rendered challenge to those comments unpreserved for appellate review); People v. Bowen, 50 N.Y.2d 915, 917, 431 N.Y.S.2d 449, 450 (1980) (challenge to prosecution's cross-examination of defendant was unpreserved "inasmuch as no timely protest was registered"); People v. Dawson, 50 N.Y.2d 311, 324, 428 N.Y.S.2d 914, 923 (1980) (challenges to prosecution's cross-examination and summation unpreserved where defendant challenged cross-examination on ground different from that objected to below and had not objected to summation at all); People v. Williams, 46 N.Y.2d 1070, 1071, 416 N.Y.S.2d 792, 793 (1979) ("The . . . prosecutorial summation statements to which defendant has drawn our attention went without objection at all. Consequently, they are not preserved for our review."); People v. Henry, 264 A.D.2d 672, 672, 696 N.Y.S.2d 21, 21-22 (1st Dep't) ("By failing to object, or by failing to request further relief after objections were sustained, defendant has not preserved his . . . challenges to the prosecutor's cross-examination . . . ."), appeal denied, 94 N.Y.2d 863, 704 N.Y.S.2d 539 (1999); People v. Laguerre, 184 A.D.2d 783, 783, 585 N.Y.S.2d 502, 503 (2d Dep't 1992) (issue unpreserved where defense counsel raised only general objection to prosecutor's cross-examination of defendant), appeal denied, 81 N.Y.2d 842, 595 N.Y.S.2d 741 (1993); People v. Devonish, 159 A.D.2d 320, 321, 552 N.Y.S.2d 597, 597 (1st Dep't) ("Defendant challenges portions of the prosecutor's summation, but at trial either failed to object, giving the court an opportunity to strike the remarks or give curative instructions, or give general objections, not sufficiently alerting the court to the complaints he now raises. Therefore, these issues have not been preserved for our review."), appeal denied, 76 N.Y.2d 733, 558 N.Y.S.2d 895 (1990).

See also, e.g., People v. Ayala, 228 A.D.2d 177, 177, 644 N.Y.S.2d 162, 163 (1st Dep't 1996) ("Defendant's challenge to the prosecutor's cross-examination of him is unpreserved as a matter of law since defense counsel failed to object . . . ."); People v. Lisyansky, 177 A.D.2d 509, 509, 575 N.Y.S.2d 910, 911 (2d Dep't 1991) (defendant's failure to object to prosecutor's questions on cross "renders these claims unpreserved for appellate review"), appeal denied, 79 N.Y.2d 859, 580 N.Y.S.2d 731 (1992); People v. McGrath, 136 A.D.2d 658, 658, 523 N.Y.S.2d 889, 890 (2d Dep't) (challenge to prosecutor's cross-examination of defense witness unpreserved where defense counsel had objected at trial on ground different than that raised on appeal), appeal denied, 71 N.Y.2d 1030, 530 N.Y.S.2d 565 (1988); People v. Lafayette, 118 A.D.2d 593, 593, 499 N.Y.S.2d 197, 197 (2d Dep't 1986) ("The defendant failed to object at trial to the prosecutrix's comments during her summation which she now claims constituted improper vouching for the prosecutrix's witnesses. Accordingly, he had not preserved his claim for appellate review.").

The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, CPL § 470.50, is an adequate and independent state ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. 478, 485-92, 497, 106 S.Ct. 2639, 2644-48, 2650 (1986) (same); Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object to prosecutor's statements in opening and on cross-examination constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground).

N.Y.Crim. Proc. Law § 470.05(2) provides, in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.

See also, e.g., Jones v. Duncan, 2001 WL 322190 at 6; Gumbs v. Kelly, 2000 WL 1172350 at 9; Yeung v. Artuz, 2000 WL 145103; Davis v. Miller, 99 Civ. 2423, 1999 WL 1125055 at *4-5 (S.D.N Y Dec. 8, 1999) (failure to make specific objections to prosecutor's summation remarks constituted adequate and independent state ground); Cruz v. Greiner, 1999 WL 1043961 at *14; Owens v. Portuondo, 1999 WL 378343 at *6; Torres v. Irvin, 33 F. Supp.2d at 263-64, 273-74; Stanley v. Kuhlman, 10 F. Supp.2d at 253-54 (failure to object to prosecutor's statements in summation constituted adequate and independent state ground); Vera v. Hanslmaier, 928 F. Supp. at 285 ("Failure to object at trial is an independent and adequate state procedural bar."); Liner v. Keane, 1996 WL 33990 at *7; Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously to a state prosecutor's alleged improper summation constitutes an adequate and independent basis for barring habeas review.") (collecting cases); Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *4 (E.D.N.Y. Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993); Bigelow v. Charles, No. 86 CV 1487, 1986 WL 15363 at *1 (E.D.N.Y. Dec. 12, 1986) (failure to object to prosecutorial errors at trial, including allegedly improper attempt to impeach petitioner on cross-examination, constituted adequate and independent state ground).

Because there is an adequate and independent finding by the First Department that Simmons procedurally defaulted on these claims, Simmons would have to show in his habeas petition "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 v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565. Simmons has failed to allege cause and prejudice or that a fundamental miscarriage of justice would result if these claims are not addressed. Therefore, Simmons' prosecutorial misconduct claim is barred from habeas review.

See also, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995) (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence"); Jones v. Duncan, 2001 WL 322190 at *6; Lugo v. Kuhlmann, 68 F. Supp.2d 347, 363 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Owens v. Portuondo, 1999 WL 378343 at *6; Torres v. Irvin, 33 F. Supp.2d at 264, 274; Williams v. Bennet, 1998 WL 236222 at *6; Farrington v. Senkowski, 19 F. Supp.2d at 180 ("The miscarriage of justice exception applies where a petitioner is `actually innocent' of the crime of which he was convicted or the penalty which was imposed.").

Were the claim not barred from review, the Court would find it to be without merit.

CONCLUSION

For the reasons set forth above, Simmons' petition for a writ of habeas corpus is denied. Furthermore, because Simmons has not made a "substantial showing of the denial of a constitutional right," the Court denies a certificate of appealability. 28 U.S.C. § 2253(b).

SO ORDERED.


Summaries of

Simmons v. Mazzuca

United States District Court, S.D. New York
May 21, 2001
00 Civ. 8174 (AJP) (S.D.N.Y. May. 21, 2001)

applying AEDPA review standard to insufficiency of evidence claim

Summary of this case from Simpson v. Portuondo
Case details for

Simmons v. Mazzuca

Case Details

Full title:Felix SIMMONS, Petitioner, v. William MAZZUCA, Respondent

Court:United States District Court, S.D. New York

Date published: May 21, 2001

Citations

00 Civ. 8174 (AJP) (S.D.N.Y. May. 21, 2001)

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