Opinion
04 Civ. 4346 (BSJ)(KNF).
August 21, 2006
REPORT and RECOMMENDATION
I. INTRODUCTION
Before the Court is Curtis Davis' ("Davis") pro se petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. Davis contends that his confinement by New York state is unlawful because: (1) his right to due process was violated when the trial prosecutor and petitioner's trial counsel conspired to present false testimony during a hearing held in connection with a motion petitioner made pursuant to New York Criminal Procedure Law ("CPL") § 330.30; (2) his right to due process and effective assistance of counsel were violated when the trial court, in the absence of petitioner and his trial counsel, waived petitioner's rights under CPL § 180.80; (3) his right to due process was violated when the trial court determined that a sprint report or audio tape of a 911 call, made by a police officer at the time of the offense for which petitioner was convicted, was not admissible into evidence; and (4) his right to due process was violated when the prosecution offered perjured testimony during the grand jury proceeding in order to obtain an indictment against petitioner.
CPL § 330.30 provides, in pertinent part:
At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds:
1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.
CPL § 330.30(1).
CPL § 180.80 provides, in pertinent part:
Upon application of a defendant against whom a felony complaint has been filed . . . and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more than one hundred twenty hours . . . without either a disposition of the felony complaint or commencement of a hearing thereon, the local criminal court must release him on his own recognizance.
CPL § 180.80.
Respondent opposes the petition. He argues that claims (1) and (2) are procedurally barred; the state court's resolution of claim (3) was not contrary to or an unreasonable application of Supreme Court precedent; and claim (4) is unexhausted but should be deemed exhausted and procedurally barred.
II. BACKGROUND
On May 30, 1997, at approximately 9:30 a.m., Reynaldo Ugarte, a hospital police officer at North Central Bronx Hospital, saw petitioner and another individual, with window washing equipment, smoking cigarettes by the hospital's emergency room entrance. At approximately 10:15 a.m., Sergeant Cornelius Douglas and Detective James Davey, police officers who were working, off-duty, as couriers, arrived at the hospital carrying approximately $205,000 in cash, in two canvas bags. As Sgt. Douglas and Det. Davey walked to the emergency room entrance, two of petitioner's accomplices, Robert Cherry ("Cherry") and Robert Johns ("Johns"), ran to Det. Davey and dragged him away at gunpoint. Petitioner approached Sgt. Douglas from behind, pointed a gun at his head, and dragged him behind a pillar, away from Det. Davey. At trial, Sgt. Douglas identified petitioner as the individual who had pointed a gun at him.
The two police officers were handcuffed and placed on the ground. After petitioner and his accomplices fled the scene, Det. Davey managed to use a handcuff key, which was attached to a chain worn by Sgt. Douglas, to remove the officers' handcuffs. Det. Davey then called 911 for assistance. Meanwhile, police officers located on Mosholu Parkway observed a black minivan that matched a description previously given to them by an eyewitness to the robbery. The minivan stopped by the side of the road and Cherry and Johns emerged. After a brief struggle, Cherry and Johns were arrested, and the police officers recovered from them two canvas bags containing cash and guns.
During the arrest of Cherry and Johns, one of the officers observed petitioner in the minivan as it was being driven away from the scene by another of petitioner's accomplices. A brief chase ensued, and the minivan was stopped by a nearby roadblock. Petitioner and the driver, the only individuals in the minivan, were arrested.
On April 28, 1999, Davis was convicted for robbery in the first degree, after a jury trial in the New York State Supreme Court, Bronx County, and sentenced, as a second violent felony offender, to an indeterminate term of imprisonment of from twenty-three years to life. In February 2000, petitioner moved to vacate the judgment of conviction, pursuant to CPL § 440.10. The motion was denied on November 8, 2000. Petitioner did not seek leave to appeal the denial of the motion. In October 2002, petitioner again moved to vacate his judgment of conviction pursuant to CPL § 440.10. The motion was denied; petitioner did not seek leave to appeal the denial of the motion.
Thereafter, petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, First Department. In addition to the brief prepared by his appellate counsel, petitioner filed a pro se supplemental brief in support of his appeal. On September 11, 2003, petitioner's conviction was affirmed unanimously. See People v. Davis, 308 A.D.2d 343, 764 N.Y.S.2d 184 (App.Div. 1st Dep't 2003). Petitioner made an application for leave to appeal to the New York Court of Appeals. The application was denied on December 1, 2003. See People v. Davis, 1 N.Y.3d 570, 775 N.Y.S.2d 787 (2003).
Petitioner moved to vacate the judgment of conviction for a third time in March 2004. That motion was denied and, on January 4, 2005, the Appellate Division denied petitioner's application for leave to appeal the denial of the motion. Petitioner's fourth motion to vacate the judgment of conviction, made in February 2005, also was denied. Petitioner's application for leave to appeal the denial of his motion was denied by the Appellate Divison on August 18, 2005.
In April 2004, petitioner filed the instant petition for a writ of habeas corpus, presenting three of the claims previously raised by him in state court: (1) his right to due process was violated when the trial prosecutor and petitioner's trial counsel conspired to present false testimony during a hearing held in connection with petitioner's motion pursuant to CPL § 330.30; (2) his rights to due process and effective assistance of counsel were violated when the trial court, in the absence of petitioner and his trial counsel, waived his rights under CPL § 180.80; and (3) the trial court erred by deciding not to receive into evidence the sprint report of a 911 call made near the time of the crime for which petitioner was convicted.
In August 2004, respondent requested a stay of petitioner's habeas corpus petition on the ground that not all of the claims presented therein had been exhausted. In a decision dated September 2, 2004, the Court determined to stay the petition so that Davis might exhaust his remedies in state court. Thereafter, petitioner notified the Court, timely, that he had exhausted the claims raised in his third CPL § 440.10 motion, and requested a continuation of the stay to file an additional CPL § 440.10 motion. Petitioner's request was granted by order dated May 26, 2005. Thereafter, on September 12, 2005, petitioner filed what appears to be an addendum to his original habeas corpus application, asking the Court to consider a fourth claim, namely, that perjured testimony was introduced at the grand jury proceeding.
Petitioner's writing, dated September 6, 2005, is titled "motion," and is identified as such in the pertinent entry on the court's docket sheet for this action. However, the Court agrees with the respondent that the writing should be construed as an addendum to the instant petition and has resolved the claim presented therein accordingly.
III. DISCUSSION
Claims One and Two: False Testimony and WaiverAfter he was found guilty, petitioner filed a CPL § 330.30 motion asserting, inter alia, that he was denied effective assistance of counsel because his right to testify before a grand jury had not been protected by the attorney representing him at the time of that proceeding. A hearing was held in connection with the motion, which subsequently was denied. In the instant petition, Davis argues that: (1) his right to due process was violated when the trial prosecutor conspired with his first trial attorney to present false testimony to the trial court during the CPL § 330.30 hearing; and (2) his right to due process and effective assistance of counsel were violated when, in the absence of petitioner and his counsel, the trial court waived petitioner's right, pursuant to CPL § 180.80, to be released on his own recognizance within 120 hours of his arrest.
The instant claims were raised by petitioner in his third motion to vacate the judgment of conviction, pursuant to CPL § 440.10. The trial court denied the entire motion, finding, inter alia, that petitioner was precluded by CPL § 440.10(2)(c) from making the claims collaterally because he could have raised them on direct appeal, but failed to do so, and the Appellate Division declined to disturb that ruling.
CPL § 440.10(2)(c) provides that a defendant may not raise in a CPL § 440.10 motion a claim that could have been raised on direct appeal.
A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). Since the state court's reliance on CPL § 440.10(2)(c) constitutes an independent and adequate state law ground for the court's rejection of the claim, federal habeas corpus review is precluded. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001) (finding that a state court's rejection of a CPL § 440.10 motion on the basis of CPL § 440.10(2)(c) rests on an adequate and independent state procedural bar).
A habeas corpus petitioner may bypass the independent and adequate state law ground by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice will attend, that is, that the petitioner is actually innocent of the crime for which he was convicted, if the claim is not reviewed by the habeas court.See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989). Therefore, in order to overcome the procedural bar imposed by the trial court's determination that this claim is barred, Davis must show cause for his default and prejudice attributable thereto or demonstrate that the failure to consider his federal claims will result in a fundamental miscarriage of justice. However, Davis has shown neither cause for his procedural default nor prejudice. Moreover, he has not proffered any new evidence that he is actually innocent.
In light of the foregoing, the petitioner may not obtain habeas corpus relief on his first and second claims.
Claim Three: Evidentiary Ruling
Petitioner contends that he was denied his right to due process when the trial court determined that the sprint report or audio tape of the 911 call made by Det. Davey at the time of the incident in question was not admissible into evidence. Petitioner claims that the report and tape would have proved that only two individuals participated in the robbery and would have impeached the testimony of the prosecution witnesses that the robbery had been carried out by four individuals.
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 (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 'adjudicates' a petitioner's federal constitutional claims 'on the merits' when 'it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment.'" Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 [2d Cir. 2001]). The Second Circuit has "given a broad reading to state court dispositions, noting that '[a] state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required.'"Id. (quoting Aparicio, 269 F.3d at 93-94).
Petitioner's third claim, which was raised on direct appeal by way of his pro se supplemental brief, was adjudicated on the merits by the Appellate Division. In disposing of petitioner's claim, the Appellate Division stated: "We have considered and rejected defendant's remaining claims including those contained in his pro se supplemental brief." Davis, 308 A.D.2d at 345, 764 N.Y.S.2d 184. Although the Appellate Division declined to articulate its rationale for rejecting this claim, its finding is sufficient to trigger the standard of review set forth in the federal habeas corpus statute. See Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. 2004).
Since this claim was adjudicated on the merits, it is incumbent upon Davis to establish that the decision reached by the Appellate Division was either contrary to or an unreasonable application of federal law as enunciated by the Supreme Court, or grounded in an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Davis has done neither. Furthermore, petitioner has not presented clear and convincing evidence to this Court that rebuts the presumption of correctness accorded the findings of facts made by the state court. Since Davis has not met the burden placed upon him by 28 U.S.C. § 2254(d), he is not entitled to habeas corpus relief based on this claim.
Claim Four: Grand Jury Testimony
Petitioner argues that his right to due process was violated when the prosecution offered perjured testimony during the grand jury proceeding in order to obtain an indictment against him. According to petitioner, the complaining witnesses, the two police officers who were robbed, gave false testimony at the grand jury proceeding concerning the number of perpetrators of the robbery.
"[A] state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus." Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971). This requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman, 501 U.S. at 731, 111 S. Ct. at 2554-2555.
To satisfy the exhaustion requirement, a habeas corpus petitioner must meet a two-pronged test. First, the petitioner must "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 190-91 n. 3 (2d Cir. 1982) ( en banc). A claim is "fairly presented" if the state courts are informed of "both the factual and the legal premises of the claim [asserted] in federal court." Id. at 191. Second, "having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure state [appellate] review of the denial of the claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).
In this case, Davis raised his claim in his first CPL § 440.10 motion, but never sought leave to appeal its denial to the Appellate Division. The claim was not raised in his direct appeal or in any of his other CPL § 440.10 motions. Since the claim was not presented to the highest state court from which a decision could be rendered, it is unexhausted.
Even if a claim has not been fully exhausted, it will be deemed exhausted if it is clear that the state court would find it procedurally barred. See Harris, 489 U.S. at 263 n. 9, 109 S. Ct. 1038 n. 9; Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). Under New York law, a defendant is permitted only one opportunity to appeal to the New York Court of Appeals. In this case, Davis cannot seek leave to appeal his claim to the New York Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. Therefore, his claim may be deemed exhausted. Moreover, Davis' inability to return to state court constitutes an independent and adequate state ground upon which his claim is procedurally defaulted. Therefore, Davis is precluded from seeking federal habeas corpus relief on this claim unless he can demonstrate cause for the default and actual prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S. Ct. 2565.
Davis has not presented any evidence to the Court that demonstrates cause for his default or prejudice resulting therefrom. Davis is also unable to persuade the Court that finding his claim procedurally defaulted will result in a fundamental miscarriage of justice. In order to establish this, Davis must prove that he was actually innocent of the crime for which he was convicted. Nothing in the record before the Court supports this conclusion. Therefore, Davis is not entitled to habeas corpus relief on this claim.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.V. 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 Barbara S. Jones, 40 Centre Street, Room 2103, 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 Jones. 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. Johnson, 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).