Opinion
05 Civ. 9028 (GEL).
August 28, 2006
Edwardo Gonzales, pro se.
Frederick H. Wen, Assistant Attorney General of the State of New York (Luke Martland, Assistant Attorney General, and Eliot Spitzer, Attorney General of the State of New York, on the brief), for respondent.
OPINION AND ORDER
Edwardo Gonzales, also known as Edgar Morales, petitions for habeas corpus under 28 U.S.C. § 2254, challenging his conviction for robbery in the first degree, robbery in the second degree, and burglary in the second degree, resulting in a sentence of 18 years' imprisonment. Because none of his claims have merit, the petition will be denied.
BACKGROUND
In the early morning hours of November 29, 2001, a Manhattan couple and their children were victimized by a team of robbers who invaded their home. (Trial Tr. 145-51.) During the robbery the attackers were apparently warned by walkie-talkie that the police were arriving at the scene, and so fled, taking with them watches, jewelry, and $2,400 in cash. (Id. at 155-60, 190-91, 211-12.)
A police officer arriving at the scene observed Gonzales rapidly leaving the building where the crime took place, and called to him to stop. (Id. at 28-33, 47-48, 82-85, 107, 124-25, 130-31, 138.) Instead of complying, Gonzales ran to a double-parked van and jumped into the passenger seat. (Id. at 32-33, 48, 135.) The van immediately made a U-turn and sped away, pursued by police cars. (Id. at 33-34, 49-50, 91.) The van was soon apprehended, and Gonzales and the driver were arrested and frisked. (Id. at 34-35, 50-51, 92, 110, 253-55, 281-82, 372-73, 422-23, 446-47.) Another robber was caught by one of the crime victims and his neighbors, and also arrested; two bracelets belonging to a member of the victimized family and a folding pocket knife were recovered from him. (Id. at 165, 167, 169-70, 183-84, 228-37, 241, 375, 454-55, 475.)
Gonzales was transported to a police station in a police car in handcuffs, sitting alone in the back seat. (Id. at 258-60, 279-80.) Upon arrival, an officer searched the back seat of the police car, and found $2,400 tucked into a crease in the seat cushions. (Id. at 262.) Later that day, another officer performing an inventory search of the seized van found a watch belonging to the family that was robbed. (Id. at 201-02, 412-13, 415-16, 427, 469-70, 475.)
Gonzales was eventually released on bail, absconded after a preliminary hearing, and was tried in absentia. (See Habeas Corpus Petition at 2; Respondent Mem. 2-3.) Unsurprisingly, in light of the above evidence, he was convicted by a jury. After being rearrested, he was sentenced to 18 years in prison on September 10, 2002. The Appellate Division affirmed the conviction, People v. Gonzales, 792 N.Y.S.2d 407 (1st Dep't 2005), and leave to appeal to the Court of Appeals was denied,People v. Morales, 5 N.Y.3d 766 (2005).
DISCUSSION
In this timely habeas petition, Gonzales repeats arguments that were presented on direct appeal. Since his claims were rejected on the merits by the state courts, habeas relief may not be granted unless the Appellate Division's decision was "contrary to, or involved an unreasonable application of" Supreme Court precedent. 28 U.S.C. § 2254(d)(1); see Serrano v. Fischer, 412 F.3d 292, 296-97 (2d Cir. 2005). Gonzales cannot meet this standard.
Relief is also available under § 2254 where a matter adjudicated on the merits in state court "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)(2). Petitioner does not present an argument for relief under this provision.
First, Gonzales argues that the trial court violated his right to a fair trial by rejecting his lawyer's challenges to a potential juror for cause. The juror had stated during voir dire that, after the events of September 11, 2001, he was "more apt to give the benefit of the doubt to police officers" in assessing credibility. (Voir Dire Tr. 290.) Asked if he could nevertheless be impartial, he replied: "Intellectually, yes. Emotionally, I think so." (Id. at 291.) The juror was stricken by a defense peremptory challenge and did not sit. (Id. at 305-06, 317.)
The Appellate Division ruled that the trial court "properly denied [the] challenge for cause," since the potential juror "gave an unequivocal assurance of his impartiality and his ability to evaluate [police] testimony fairly." 792 N.Y.S. 2d at 407. Giving appropriate deference to the ability of the trial judge to evaluate jurors' credibility and the meaning of their responses in full context, there is no basis to conclude that this ruling was incorrect.
But even if the were somehow erroneous, it could not provide a basis for habeas relief. The Supreme Court has expressly held that an erroneous denial of a challenge for cause does not constitute a constitutional error or deny a defendant's right to trial by an impartial jury where, as here, the arguably biased juror is removed by a peremptory challenge and does not sit.United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000) ("We hold . . that if the defendant elects to cure [the erroneous refusal of a trial judge to dismiss a potential juror for cause] by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right."); see also Ross v. Oklahoma, 487 U.S. 81, 88-89 (1988).
Second, Gonzales argues that he was denied a fair trial by the trial court's refusal to grant a missing witness charge with respect to (a) the officer who drove the van to the police station prior to the inventory search, and (b) the officer who frisked Gonzales before he was placed in the police car and failed to find the $2,400 that was later found in the police car. The Appellate Division ruled that the instruction was properly denied, since the uncalled officers "played peripheral roles in [Gonzalez's] arrest," and the claim "that these officers could have provided material, non-cumulative testimony is highly speculative." 792 N.Y.S.2d at 407.
The propriety of a state court's jury instruction is ordinarily a state law matter that does not raise a federal question. See Cupp v. Naughten, 414 U.S. 141, 146 (1973); Cottrel v. New York, 259 F. Supp. 2d 300, 304-05 (S.D.N.Y. 2003). Even where a jury instruction is erroneous under state law, habeas relief is not available unless the error "so infected the entire trial that the resulting conviction violates due process." Cupp, at 147.
No such unfairness appears here. The testimony of the searching officers could have had little value to Gonzales. They obviously did not find the money when Gonzales was frisked, permitting defense counsel to argue that this money found in the police car could not have been on Gonzales when he was arrested, and must have been planted. (Trial Tr. 535-36.) The jury considered and rejected this argument; there is no constitutional significance to the failure of the trial court to bolster the claim with a missing witness instruction. As for the officer who impounded the van, first, since his or her identity was not recorded (id. at 488-89), it is doubtful whether that officer was a witness who could have been called by the prosecution in any event, and second, the defense was able to argue to the jury that the officer's failure to testify raised doubts warranting an acquittal. (Id. at 524; see id. at 523-25, 535-36, 531-32.) The issues were fairly put to the jury, which is all that due process requires.
Third, Gonzales objects to an instruction that an inference of guilt may be drawn from recent and exclusive possession of the fruits of the crime. This instruction was proper under state law,People v. Baskerville, 60 N.Y.2d 374, 382 (1983), and no Supreme Court precedent rejects it. As noted above, an allegedly erroneous jury instruction only raises constitutional concerns if the instruction denied petitioner a fair trial. That cannot remotely be claimed here. The trial judge made emphatically clear that the inference of guilt drawn from recent and exclusive possession was only "a permissive inference," meaning that the jury " may consider" it as evidence of guilt. (Trial Tr. 581-82) (emphasis added). The judge further instructed the jurors that it was their responsibility to judge the facts, and that before they could draw the inference in question, they had to find beyond a reasonable doubt that property stolen from the victims was in Gonzales's possession, shortly after the crime, and that such possession was unexplained. (Id. at 583-86). Finally, the judge stressed that this potential inference did not "in any way, shift the burden of proof." (Id. at 588.) These eminently fair instructions were not erroneous, and did not deprive Gonzales of due process.
CONCLUSION
The petition for habeas corpus is denied. As petitioner has not made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue.
SO ORDERED.