Opinion
No. 04 Civ. 9941 (GEL).
April 27, 2005
OPINION AND ORDER
Dwaine Gilley, a New York State prisoner, petitions for habeas corpus to challenge his November 28, 2001, conviction for sodomy and sexual abuse of his then ten-year-old daughter, and his resulting sentence to concurrent determinate prison terms totaling eight years. Gilley's petition reiterates arguments advanced in his appeal in the state courts. The state courts' resolution of these issues was not contrary to, or an unreasonable application of, Supreme Court precedent, and thus the petition must be denied.
BACKGROUND
The principal witness at Gilley's jury trial in Supreme Court, Bronx County, was his daughter, Jasmine B. Jasmine testified that in late July 2000, she moved out of her mother's house and moved in with Gilley, his girlfriend, and his son (her half-brother). Shortly thereafter, Gilley and his girlfriend broke up, the son went to live with his mother, and Gilley and Jasmine entered the homeless shelter system. In the shelters, they stayed in a single room with two separate beds and a private bathroom.
Jasmine testified that while she and her father were living in the shelters, Gilley subjected her to various inappropriate sexual acts, including one occasion on which he fondled her breasts, and another, on August 20, 2000, when he attempted to penetrate her anus with his penis. A few days after this incident, Jasmine reported it to her aunt, and, later, to a police detective. A subsequent medical examination revealed no sign of trauma. The prosecution also offered expert testimony from a medical doctor, who testified that the absence of medical evidence of trauma a week later was not inconsistent with the child's testimony, and from a clinical psychologist who testified concerning post-traumatic stress symptoms common to child victims of sexual abuse.
The jury returned a guilty verdict. On appeal, Gilley, represented by counsel, argued (1) that Jasmine should not have been permitted to testify to acts of sexual misconduct other than the anal-genital contact that formed the basis for the sodomy charge and the fondling of her breasts that formed the basis for the sexual abuse count, and (2) that the psychologist's testimony should not have been admitted. The Appellate Division rejected both arguments on the merits and affirmed the conviction, People v. Gilley, 770 N.Y.S.2d 868 (1st Dept. 2004), and leave to appeal was denied. 2 N.Y.3d 799 (2004). Gilley then timely filed this pro se petition for habeas corpus.
DISCUSSION
I. Petitioner's Claims
There is some ambiguity about the claims that Gilley attempts to raise. In his pro se petition, prepared on a standard form provided by the Administrative Office of the United States Courts ("Form AO 241") by "a[n] inmate Law Library Clerk" (Pet. ¶ 11(d)), Gilley asserts two grounds for relief. He describes "Ground one" as follows:
(b) Conviction obtained by use of coerced confession and uncharged crimes.
In the immediately following space on the form that calls for "Supporting FACTS" relating to "Ground one," he states:
Defendants due process Right to a fair Trail was violated when the trial Court erroneously allowed the complainant to Testify to prior uncharged crimes or immoral Acts that defendant allegedly committed with her — including washing her buttocks in the shower observing her on a toilet seat and smelling her Vagina.
(Pet. ¶ 12A; lettering of ground, spelling, capitalization, and punctuation as in original.)
Similarly, as "Ground two," Gilley specifies:
(f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.
He then proceeds to list as "Supporting FACTS" for that ground the following:
The Trial Court committed reversible error in allowing expert testimony with respect to Post-Traumatic stress Syndrome exhibited by Victims of child sex abuse, thus depriving defendant of his Right to a farir Trial.
FACTS were presented to the Appellate Division-breif of Defendant.
(Pet. ¶ 12B; lettering of ground, spelling, capitalization, and punctuation as in original.)
Thus, while the "facts" set forth embody the two grounds presented to the Appellate Division on petitioner's direct appeal, the "grounds" section of the form alludes to two potential claims, concerning a "coerced confession" and undisclosed exculpatory evidence, that were never presented to the state courts and that are not further described in the petition.
It appears clear that Gilley does not intend to advance any such claims. First, except for the addition of the words "and uncharged crimes" in ¶ 12A, the legal arguments listed as "grounds" are copied verbatim from the list of "most frequently raised grounds for relief in habeas corpus proceedings" set forth on the standard Form AO 241 — even down to the parenthetical letter designations (b) and (f), which otherwise make no sense in terms of the organization of the petition. Moreover, the record does not disclose the introduction of any "confession" or other statement made by Gilley to the authorities, "coerced" or otherwise. The invocation of this ground thus seems entirely unrelated to petitioner's case. The trial record by definition cannot conclusively resolve whether the case presents an issue as to undisclosed exculpatory evidence. But Gilley does not identify any, and the prosecution (unsurprisingly) asserts that it knows of none. (Affidavit of William K. Clark, dated April 15, 2005, ¶ 15.) Thus, it appears that the references to a coerced confession and undisclosed exculpatory evidence represent not an effort to raise actual legal issues regarding these subjects, but the effort of the unschooled petitioner and his inmate advisor to shoehorn the claims that petitioner does advance — the allegedly erroneous evidentiary rulings challenged in his brief to the Appellate Division — into the categories provided on Form AO 241, which do not include the erroneous admission of evidence of prior similar acts or expert testimony.
Nevertheless, simply to adjudicate the petition on the assumption that the Court understands what issues petitioner does or does not intend to raise poses a risk of prejudice, in light of the restrictions imposed on a petitioner seeking to present a second habeas corpus petition. See 28 U.S.C. § 2244. If Gilley does intend to raise additional claims beyond those raised in his state brief, it would appear that those claims had never been presented to the state courts. The Court would then have to address whether any such claim had been procedurally defaulted. Alternatively, if a claim (such as the failure to disclose exculpatory evidence) is based on recently-discovered information, it may still be possible for Gilley to present that claim to the state courts. In such a case, his petition would appear to be a "mixed" petition, which must either be dismissed entirely, or stayed to permit Gilley an opportunity to present his new claim to the state courts. Rhines v. Weber, 125 S. Ct. 1528 (2005); Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001).
In view of the procedural pitfalls facing habeas petitioners, Gilley should be given an opportunity to advise the Court if its interpretation of his claims is erroneous before a final judgment on the instant petition is entered. Cf. Castro v. United States, 540 U.S. 375 (2003) (district court should not recharacterize a pro se litigant's motion without affording the litigant an opportunity to withdraw or amend); Gitten v. United States, 311 F.3d 529 (2d Cir. 2002) (same). At the same time, in the interests of judicial efficiency, because it appears virtually certain that Gilley is not attempting to raise the claims identified in the petition, and because the Court has already reviewed the petition and record in this case, and should not be required to duplicate this effort at some future time, after Gilley has had an opportunity to address the question, the Court will proceed to address the issues indisputably raised in the petition, and stay entry of judgment on those issues until petitioner has had an opportunity to advise the Court if he intended to raise the additional questions suggested by his petition.
If Gilley intends to claim that a coerced confession was used against him, and/or that exculpatory evidence was withheld from him, he should so advise the Court, specifically stating the facts supporting any such claim, and (if such claims have not previously been presented to the state courts) the reasons for the failure to raise them before.
II. Evidentiary Issues
Both of Gilley's evidentiary claims were presented to the Appellate Division, and rejected on the merits. The Appellate Division ruled that the victim's testimony regarding "uncharged crimes or immoral acts" was admissible because it "completed her narrative and assisted the jury in its comprehension of the crimes charged, providing necessary background material to explain her relationship with defendant while they lived together in the homeless shelters, and to place the events in a believable context." 770 N.Y.S.2d at 868. The Court alternatively found the testimony admissible "to anticipate and address a potential issue as to whether defendant was seeking sexual gratification," id., an element of the sexual abuse charge. The Court ruled that the trial court "properly exercised its discretion in admitting expert testimony regarding Child Sexual Abuse Syndrome," because the "testimony tended to explain matters beyond the ken of the typical juror, such as reactions and behavior of children as a result of sexual abuse, including a general explanation of such victims' untimely disclosures." Id.
Because the state courts rejected Gilley's claims on the merits, habeas relief is only available if the state court's ruling was "contrary to" or "an unreasonable application of" Supreme Court precedent. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362 (2000). That standard cannot be met here.
In order to constitute an adjudication on the merits of a defendant's federal claims, a state court decision need not explicitly refer to the federal claim or cite federal law.Sellan v. Kuhlmann, 261 F.3d 303, 314 (2d Cir. 2001); see Dallio v. Spitzer, 343 F.3d 553, 560 (2d Cir. 2003). Here, the Appellate Division clearly addressed the substance of Gilley's claims, and provided a reasoned explanation for its conclusion.
Routine evidentiary rulings by a state trial court generally do not give rise to violations of the United States Constitution cognizable on habeas corpus, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), unless they are "so pervasive as to have denied [petitioner] a fundamentally fair trial." Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985). McGuire is directly relevant to Gilley's claim regarding uncharged crimes. The petitioner there objected to the admission of evidence of prior injuries suffered by his daughter, whom he was accused of murdering. The Supreme Court held that the evidence was relevant to prove intent, noting the parallel to Fed.R.Evid. 404(b) and concluding that the admission of relevant evidence did not violate the Constitution. 502 U.S. at 67-70. Under the reasoning of McGuire, the admission of the prior act evidence plainly was not contrary to established Supreme Court precedent. The acts in question occurred within a month of the acts charged as crimes, and were integrally related to the course of conduct that culminated in those crimes. Their admission as background evidence is thus in accord not only with the Constitution, but with both state and federal evidentiary rules.
The same is true as to the admission of the expert testimony. The standards for admission of expert testimony in New York,see People v. Cronin, 60 N.Y.2d 430 (1983), are virtually identical to those in Fed.R.Evid. 702, promulgated by the Supreme Court. The Appellate Division's determination that the expert testimony here was relevant and helpful to the jury was entirely reasonable. Even if it were not, it would be difficult to find that an erroneous decision with respect to the highly discretionary matter of the admission of expert testimony is contrary to, or an unreasonable application of, Supreme Court precedent. The Supreme Court has expressly declined to "decide whether the introduction of an expert opinion with no basis could ever be so lacking in reliability, and so prejudicial, as to deny a defendant a fair trial." Delaware v. Fensterer, 474 U.S. 15, 22-23 (1985). If that is an open question about which reasonable jurists could disagree, then plainly the New York courts' far more routine application of evidentiary rules did not deny Gilley due process.
Accordingly, the Appellate Division's rejection of Gilley's evidentiary arguments did not deny him a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, and his petition for habeas corpus on those grounds must be denied.
CONCLUSION
For the reasons set forth above, Gilley's petition for a writ of habeas corpus is denied. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
However, because it is unclear whether Gilley intended to assert additional grounds for relief, entry of judgment in accordance with this opinion is stayed for 60 days to permit petitioner the opportunity to advise the Court of such grounds. In simple terms, this means that the denial of the petition will become final on June 27, 2005, unless petitioner files a further response stating that he intends to challenge his conviction on the basis of a coerced confession and/or the withholding of exculpatory evidence by the prosecution, and stating the facts on which any such challenge is based, and, if such claims were not presented to the state courts, the reasons why they were not.
SO ORDERED.