Opinion
00-CV-0985 (JBW), 03-MISC-0066 (JBW)
June 10, 2003
JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts
On January 10, 1991, at approximately 11:00 p.m., petitioner and three accomplices entered a jewelry store and robbed the owner. Daniel Valentine, at gunpoint. During the robbery. petitioner shot and killed Valentine. Petitioner was charged with three counts of murder in the second degree (two counts of felony murder), one count of robbery in the first degree, four counts of unlawful imprisonment in the first degree. three counts of criminal possession of a weapon in the second degree, and three counts of criminal possession of a weapon in the third degree.
In the early morning hours of February 23, 1991, petitioner and one Carlos Madrid robbed another jewelry store in Brooklyn. During the robbery, petitioner shot and killed Luis Medina.
Following his arrest, petitioner confessed to this crime. Petitioner and Madrid were charged with three counts of murder in the second degree, two counts of robbery in the first degree, one count each of robbery in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree.
In conjunction with the first crime committed on January 10, 1991, petitioner pled guilty to manslaughter in the first degree. He was sentenced to a prison term of six to eighteen years.
For the charges stemming from the second crime, on February 23, 1991, petitioner was tried in early 1992. This petition raises questions only with respect to this case.
Following a jury trial, he was convicted of one count of murder in the second degree (felony murder) and related charges. He was sentenced to an aggregate prison term of twenty-five years to life. Petitioner appealed. In May 1995, the Appellate Division, Second Department. reversed this conviction on a variety of grounds.
In July 1997, following a second jury trial for the second robbery, petitioner was convicted of one count of murder in the second degree, robbery in the second degree, and criminal possession of a weapon in the second degree. He was sentenced for these crimes, as a persistent felony offender. to concurrent prison terms of twenty-five years to life for the second degree murder conviction. twelve and one-half to twenty-five years for the second degree robbery conviction, and seven and one-half to fifteen years on the weapon possession. The sentences were to run concurrently, but consecutively to the sentence imposed in connection with the first robbery committed on January 10, 1991 of six to eighteen years.
Petitioner again appealed. By memorandum and order dated June 25, 1999, the Appellate Division unanimously modified defendant's judgment of conviction in the interest of justice, and ordered that all terms of imprisonment run concurrently. It affirmed petitioner's conviction denying the remainder of his appeal on the merits. See People v. Beniquez, 699 N.Y.S.2d 878 (N.Y.App.Div.2d Dep't 1999).
By letter dated December 20, 1999, petitioner applied for permission to appeal from the Appellate Division to the New York Court of Appeals. In a certificate dated January 14, 2000, the Court of Appeals denied petitioner permission to appeal further. See People v. Beniquez, 94 N.Y.2d 877 (N.Y. 2000) (Kaye, J.).
Petitioner then filed a timely application for a federal writ of habeas corpus on February 9, 2000. In the present petition he claims that (1) he was deprived of his due process rights and a fair trial when the trial court dismissed a prospective juror without sufficient inquiry into the juror s state of mind; (2) the police delayed in arraigning him with the intent of eliciting statements from him; and (3) the prosecutor's summation comments exceeded constitutional bounds and deprived him of due process and a fair trial.
II. Law
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law. as determined by the Supreme Court, may as much be a generalized standard that must be followed. as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002).
III. Claims
A. Juror Dismissal
Petitioner first claims that his due process rights were violated and that he was deprived of a fair trial when the trial court dismissed a prospective juror without sufficient inquiry into the juror's state of mind. The juror was dismissed based upon the fact that she stated she was not able to trust eye-witness testimony and that she believed "word of mouth is not proof." Jury Selection. p. 127. Petitioner is barred from bringing this claim because the Appellate Division found that this claim was unpreserved for appellate review because petitioner failed to urge the court to question the juror further to clarify her views. See People v. Beniquez, 699 N.Y.S.2d 878 (N.Y.App.Div.2d Dep't 1999).
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
If a state court holding contains a plain statement that a claim is procedurally barred (as it does here) then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alterative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
Even if the petitioner could procedurally bring this claim, it is meritless. The trial court removed this juror for cause because her answers to the court's inquiry indicated that she would not accord testimonial evidence appropriate weight. This decisions was appropriate.
B. Failure to Promptly Arraign Petitioner
Petitioner's second claim is that the police's failure to promptly arraign him violated his right to counsel and that the statements he made during this period of delay should be suppressed. He claims that the forty-eight hours he was held violated both the terms of the warrant and the statute. Allegedly, if the police had promptly brought him before a judge, as required, his right to counsel would have automatically attached. He contends that since the delay was improper, any statements made during this period should have been suppressed.
A delay in arraignment is not in itself a violation of the Sixth Amendment's guarantee of the right to counsel. "[T]o the extent that federal habeas courts have even considered the constitutionality of delaying arraignment of state defendants, they have only done so as part of a Fifth Amendment based analysis of the voluntariness of confessions." Holmes v. Scully, 706 F. Supp. 195, 202 (E.D.N.Y. 1989) (citing United States ex rel. Wade v. Jackson, 256 F.2d 7, 11-12 (2d Cir. 1958)). Were this claim not procedurally barred, it lacks merit. The delay was caused by petitioner himself, who requested to be transferred to the 83rd Precinct; upon his arrival there he asked to speak to an officer who was not present and needed to be called in from home. therefore causing a further delay.
In any event, a reasonable delay in arraignment alone is not a basis for granting the writ. See Irons v. Ricks, No. 02 Civ. 4806, 2003 WL 21203409, at *10 (S.D.N.Y. May 22, 2003) (twenty-seven hour delay); Williams v. Ward, 845 F.2d 374 (2d Cir. 1988), cert. denied, 488 U.S. 1020 (1989) (seventy-two hour delay).
Petitioner also claims he was denied supporting affidavits to an arrest warrant. This claim is not reviewable by a federal court. Under Stone v. Powell, 428 U.S. 465 (1976), a federal habeas court is barred from reviewing Fourth Amendment claims so long as the state has provided petitioner with the opportunity fully and fairly to litigate his claim. Petitioner in this case was afforded an opportunity to litigate fully his claims in state court, and therefore he has no federal claim.
There appears to have been no error in the warrant. There has been no showing that the affidavit's contents would have assisted petitioner. His claim lacks merit.
C. Prosecutor's Unconstitutional Summation Comments
The third claim is that the prosecutor's summation exceeded constitutional bounds and deprived him of due process and a fair trial. The prosecutor said three things at trial to which petitioner objects. First, petitioner alleges that the prosecutor deprived him of a fair trial when he made comments regarding Carlos Madrid, the man who committed the robbery with the defendant, but then would not identify petitioner at trial.
Petitioner alleges that the prosecutor's speculations were not supported by the evidence about what happened in that bullpen the night that petitioner and Madrid were arrested for the robbery committed on February 23, 1991. Petitioner argued in his brief that since his own confession was critical in this case, any motivation for that confession is at issue, and therefore any speculation by the prosecutor in his summation was prejudicial. He argues further that the court s overruling his objection to these statements gives the prosecutor's statement validity. Appellant's Brief, pp. 30-31.
The statements made by the prosecutor about what may have occurred in the bullpen are apparently involved in the following rather opaque interchange.
MR. IRVIN [Prosecutor]: Think about it. Eight months to go if the Parole says okay. You have testified, you have told what happened. You know yourself that the person you did that robbery with, without telling you he was going to do it, surprising, perhaps, even you, blows away, shoots, murders, Louis Medina.
That wasn't supposed to be a part of the robbery, according to Carlos. And that's the person, the D.A. wants you to not only tell what happened, but point him out. So, what do you maybe do, tell what happened.
MR. FEINMAN [Defense Counsel]: Objection.
THE COURT: To what?
MR. FEINMAN: The comment as to what you maybe do, regarding Carlos Madrid.
THE COURT: Overruled.
MR. IRVIN: Look around the courtroom. I'm not going to point him out. Is that plausible? Human nature? If anything, what does that say about the person sitting right there, not just Madrid, but about the person on trial?
And if you use that common sense and you apply what the detectives said and what you saw happen and ask those questions, you'll come out to one conclusion, the person Carlos Madrid was with was that person in the bullpen . . . is the person sitting here in court today.
Trial Transcript, pp. 554-555.
MR. IRVIN: And we begin, Mr. Foreman, you begin with the evidence about Carlos Madrid and Adam Beniquez. And you start off, and you get back to the juryroom [sic] and you say what do we have as far as witnesses? We have not one, but two.
You ask, "What do you mean, two witnesses? I only heard form Carlos Madrid." And you respond to that. No. He said it also. We saw him on videotape.
So, we have two people saying he was involved himself as to what happened. And I ask you, do you remember when I stood up here in jury selection and I told you Carlos Madrid, he didn't hide anything, I didn't wait until he got on the stand or in Cross-Examination. I told you he entered into this cooperation agreement, would you, sir, would you, would you, be willing to listen, to consider what he has to say to all the other facts? And each of you said yes.
And so, you got the chance to listen to him. And you heard, not only what he said here, but you can imagine what happened in that bullpen.
He's in the bullpen. That person there is in the bullpen with him. And he told you he got arrested, and Madrid, he got charged with murder and robbery. And imagine what happened in that bullpen. Imagine you do something with someone else, and the other person has escalated it, imagine your reaction.
He probably said, "What did you do with that extra jewelry?" He told you about that on the video. "I put it underneath the dashboard."
"Did you take that Carlito?"
Carlito is probably saying, "You didn't tell me we were driving a stolen car, you never said that."
MR. FEINMAN: Objection, Judge.
THE COURT: Overruled.
Trial Transcript, pp. 556-557.
When the jury left the courtroom, the judge re-affirmed his decision, explaining,
Now, because the D.A. may not have had exact testimony in this case as to what took place in that bullpen that led to that does not mean that he's prevented from circumstantially proving to this jury and asking the jury to draw what he views to be a reasonable inference from the way the thing came down, so to speak, that this is probably what happened.
The jury can reject that, the jury doesn't have to accept that, as long as it's a reasonable conclusion.
Trial Transcript. p. 580.
The next two statements made by the prosecutor in summation were not objected to at trial. The prosecutor said,
What is the truth?
And it is something since [sic] those 2,000 years that we have searched for. We do it in the courtrooms, what is the truth in a case?
And when you and I talked during jury selection, we talked about what do we look for. And when I questioned each of you when you sat here as prospective jurors, I asked you, things that we see exhibits, would you consider that? Yes. Things that you hear, testimony from this witness stand, would you consider that? Yes. Statements? Yes, statements are evidence, do you realize that, statements are evidence. Yes."
Trial Transcript, p. 545.
Later in his summation, the prosecutor argued,
Carlito is probably saying, "Adam, why did you shoot him, why did you have to shoot him?" And they talk. And Carlito was probably upset at him to the degree of, "Adam, you didn't have to shoot him. We could have got out of there, got rid of the jewelry. No one is going — he's the only witness, who is going to believe Louis Medina, Carlos Medina? That's one witness. No jury is going to believe one witness. They're not going to believe Medina.
But they're there and they talk, and he eventually agrees to talk to the police . . . they agree on that. There is no evidence whatsoever that the police forced him to come back out and make another statement. No evidence. The only evidence before us, and nothing, it's uncontradicted, the only evidence that he himself told Carlito, "I'll talk to Nieves again." And he did.
Trial Transcript, pp. 557-558.
A prosecutor's misconduct during summation will require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). If "the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair." Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S. at 643).
Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceedings. DeChristoforo, 416 U.S. at 643. In order to view any prosecutorial misconduct in context, "the court must "look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. . . . Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted). In order to grant habeas relief, the statements made by the prosecutor would have to "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (citing DeChristoforo, 416 U.S. at 643).
In this case, the prosecutor made one comment to the jury which was objected to at trial, and summarily overruled, plus two additional comments to which petitioner did not object at trial, but objects to now. The first was regarding the identification of the petitioner at trial and what allegedly occurred in the bullpen. The next two statements were that the trial was a search for the truth and that certain evidence was uncontested.
Even if the jury could have interpreted these summation remarks made by the prosecutor to be evidence, the trial judge informed the jurors expressly that any summation remarks offered by either side is not evidence when he said,
Summations are closing remarks to the jury. You have heard all the evidence you are going to see and hear in this case, exhibits, and you have heard all the testimony. You are not going to hear any more evidence.
Summations, also, like openings, are not evidence. Summations are arguments to the jurors that you can accept or reject, based upon the testimony and the evidence in the case.
If there is some portion of the testimony that either one of the attorneys attempts to recall to make a point to you and your recollection of that testimony differs from their recollection, you are free to reject theirs and adopt your own.
Trial Transcript, p. 480.
None of these remarks rises to the level of fundamental unfairness. They did not infect the trial such that petitioner's right to due process was violated. The Appellate Division also dismissed this claim as meritless. See People v. Beniquez, 699 N.Y.S.2d 878 (N.Y.App.Div.2d Dep't 1999). Nothing in the record indicates that this decision was contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Price v. Vincent, ___ U.S. ___, 123 S.Ct. 1848, 1852 (2003).
IV. Conclusion
The petition for a writ of habeas corpus is denied.
This opinion complies with Miranda v. Bennett, 322 F.2d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).