Opinion
99 Civ. 9082 (DLC)
December 21, 2000
Robert Anthony Green, Sr., Pro Se, Attica, NY.
S. Kenneth F. Jones, Assistant Attorney General New York, NY, for Respondent.
OPINION AND ORDER
In a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed on August 23, 1999, Robert Anthony Green ("Green") challenges his conviction following trial for robbery in the first and second degrees. On August 29, 2000, Magistrate Judge Francis issued a Report, recommending that this petition be dismissed. Based on the analysis which follows, the Report is adopted and this petition is dismissed.
The petition was received by the Court's Pro Se Office on July 29, 1999, but was not filed until August 23, 1999.
BACKGROUND
The evidence at the September 1994 trial before Justice Martin Rettinger in New York State Supreme Court, New York County, established the following. On April 23, 1994, at approximately 11:00 p.m., Green and his co-defendant Paul Braxton ("Braxton") entered a 24-hour convenience store on Amsterdam Avenue at 145th Street in Manhattan, where the store owner and an employee Amid Sheiff ("Sheiff") were working. Sheiff recognized the petitioner as a customer. Braxton purchased a beer and left the store with Green. Both men returned shortly, and Green asked for a free beer. When refused, Green became angry. After Yahya Ibrahim ("Ibrahim"), another store employee, entered the store to begin his shift, Braxton closed the door and sat down in front of it on a milk crate. Green pulled out a gun and fired it while forcing the employees to the cash register for money. Green then took the money and fled with Braxton. Sheiff subsequently called 911 to report the crime and provided a description of Green. The Officer who responded to the scene could not locate the robbers. On May 4, Sheiff saw the petitioner and Braxton leaving a nearby Chinese restaurant. He called 911 from the convenience store and also stopped an unmarked police car to direct them to the defendants. Green and Braxton were arrested, and on May 5, Ibrahim identified Green in a line-up.
Green called his mother, Diana Powell ("Powell"), on his own behalf and also took the stand himself. Powell testified that her son was at home on the evening of April 23, 1994 — that he had a curfew and did not leave the apartment that evening. She further explained that her apartment has only one door, which must be unlocked with a key from the inside in order to leave, and that she had the only key.
Green testified on direct exam that although he knew Braxton from his neighborhood, he had not been in the convenience store at any time on the evening of the robbery. When his defense counsel indicated that he had no further questions, Justice Rettinger pointed out that, in the interests of fundamental fairness, Green could provide an alibi if he remembered where he was on the evening of April 23, 1994. When questioned by his lawyer as to his whereabouts, Green asked what day of the week it was and, upon learning that it was a Saturday, testified that he was at home because he stays in on weekends.
On September 29, 1994, Green was convicted of robbery in the first and second degrees and was sentenced to concurrent prison terms of eight to sixteen years and six to twelve years, respectively. Green filed a Notice of Appeal with the Appellate Division, First Department, on November 10, 1994. On March 14, 1996, Green's appellate attorney filed a brief in support of the motion alleging two grounds that are urged in this petition: that the trial court improperly seated two jurors over petitioner's objection, and that the petitioner was deprived of effective assistance of counsel. The brief on appeal also argued that the petitioner was denied a fair trial by the prosecutor's improper and inflammatory summation. On January 23, 1997, the Appellate Division, First Department unanimously affirmed the conviction.People v. Green, 652 N.Y.S.2d 955 (N.Y. A.D. 1997). Leave to appeal was denied on June 30, 1997. People v. Green, 683 N.E.2d 1059 (N.Y. 1997).
On January 31, 1998, petitioner filed a motion pro se to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") §§ 410.10, 440.20 and 440.30, alleging that: (1) he was subject to unlawful search and seizure; (2) the prosecutor knowingly used perjured testimony; (3) the first degree robbery conviction exceeded the boundaries of the indictment; (4) there was insufficient proof to establish first degree robbery; and (5) robbery in the second degree is not a lesser included offense of robbery in the first degree. On May 12, 1998, the trial court denied the motion. Green moved for leave to appeal, and the motion was denied on September 29, 1998.
Green filed a motion for a writ of error coram nobis on July 2, 1998, alleging ineffective assistance of appellate counsel. The motion was denied on April 20, 1999. People v. Green, 688 N.Y.S.2d 371 (N.Y. A.D. 1999). The Appellate Division denied the petitioner's motion for reargument on April 20, 2000, and the New York Court of Appeals denied his motion for leave to appeal on May 18, 2000.
Green filed this petition on August 23, 1999. He raises six claims: (1) that he was denied effective assistance of trial counsel; (2) that the prosecutor knowingly used perjured testimony at trial; (3) that the first degree robbery conviction exceeded the charges in the indictment; (4) that second degree robbery is not a lesser included offense with respect to first degree robbery; (5) that the trial court improperly seated two jurors; and (6) that the arresting officer conducted a search without probable cause. On September 24, 1999, this Court referred the petition to Magistrate Judge Francis for a Report and Recommendation. On August 29, 2000, the Magistrate issued his Report, recommending that the petition be dismissed. Green timely served objections to portions of the Report. The State asks the Court to accept the Report.
Petitioner also included as a separate ground for habeas relief the issue of "whether the People made out a prima facie case of discrimination is not moot" and referred the Court to his reply brief from his direct appeal. Judge Francis' Report indicates that, in his brief, the petitioner argued both that the trial court erroneously found that the defense was using its peremptory strikes in a racially discriminatory manner and that this issue was not moot. The Report concluded that this allegation is not a separate claim but rather "an elaboration on the petitioner's improper jury selection claim." As petitioner did not object to this conclusion, this Court reviews it for facial error and, finding none, adopts the Report's conclusion.
STANDARD
In reviewing the Report, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record."Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court shall make a de novo determination of those portions of the report to which objections are made. Id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Section 2254, as amended, provides for the following standard of review:
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). In connection with paragraph (d)(1), the Supreme Court has recently construed "clearly established Federal law" to indicate Supreme Court jurisprudence, that is, the "holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision." (Terry)Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000); see also Vasquez v. Strack, 228 F.3d 143, 148 (2d Cir. 2000). A state court decision is "contrary" to clearly established Federal law when it applies a rule of law that
"contradicts the governing law set forth in" the Supreme Court's cases or . . . when it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court's] precedent."
In either event, a state court rule is "contrary to" Supreme Court precedent only if it is "`diametrically different,' `opposite in character or nature,' or `mutually opposed'" to the precedential holding.Lurie v. Wittner, 228 F.3d 113, 127 (2d Cir. 2000) (quoting(Terry) Williams v. Taylor, 120 S.Ct. at 1519 (internal citations omitted)).
A state court decision involves an "unreasonable application" of clearly established Federal law when, judged under an objective standard, it is "not only erroneous but also unreasonable." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). While "[s]ome increment of incorrectness beyond error is required," that increment "need not be great." Id.; see also Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000). An unreasonable application of clearly established Federal law may include an "unreasonable refusal to extend a Supreme Court precedent" to cover situations not yet confronted by the Court.Lurie, 228 F.3d at 130.
With respect to factual findings, Section 2254(e)(1) states that "a determination of a factual issue made by a State court shall be presumed to be correct" and that a petitioner is required to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Mask v. McGinnis, No. 99-2071, 2000 WL 1701646, at *6 (2d Cir. Nov. 15, 2000).
DISCUSSION
A. Procedural Default
The Report found that four of Green's six claims were procedurally barred because the petitioner had failed to raise them on direct appeal, having raised them for the first time in his state court collateral motion. They are that the prosecutor knowingly used perjured testimony at trial, that the first degree robbery conviction exceeded the charges in the indictment, that second degree robbery is not a lesser included offense with respect to first degree robbery, and that the arresting officer conducted a search without probable cause.
The state trial court — in what is the "last reasoned state judgment" in the case, Jones, 229 F.3d at 118 (internal citations omitted) — denied the collateral motion pursuant to CPL §§ 440.10(2)[a], [c] and (3)(b), holding that these issues "could have been raised by defendant on appeal." It noted that the "case record at the time of defendant's appeal was sufficient to have permitted adequate appellate review of the grounds or issues that are now being raised by him in this motion." Despite this procedural bar, the trial court also rendered an opinion on the merits on all but one of petitioner's claims. With respect to the claim that a search had been conducted without probable cause, the court noted that it had previously addressed the merits following the pretrial suppression hearing. In each instance, the court rejected the claim on the merits.
The doctrine of procedural default is "`grounded in concerns of comity and federalism.'" Edwards v. Carpenter, 120 S.Ct. 1587, 1591 (2000) (quoting Coleman v. Thompson, 501 U.S. 722, 730 (1991)). When a state court has declined to address a prisoner's federal claims because the prisoner failed to meet a state procedural requirement or when it "clearly and expressly states that its judgment rests on a state procedural bar," federal habeas review is barred, Coleman, 501 U.S. at 736 (internal quotation omitted), unless the prisoner "demonstrate[s] cause for his state-court default of any federal claim, and prejudice therefrom," Edwards, 120 S.Ct. at 1591 (citing Coleman, 501 U.S. at 750). See also Jones v. Stinson, 229 F.3d at 118. The existence of cause "ordinarily turn[s] on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Amadeo v. Zant, 486 U.S. 214, 222 (1988) (internal quotation omitted); see also Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir. 1999). Prejudice is actual prejudice, such that the petitioner must convince the court that "there is a reasonably probability that the result of the trial would have been different." Strickler v. Greene, 527 U.S. 263, 289 (1999) (internal quotation omitted). The fundamental question is whether the error is sufficient in the context of the entire trial "to undermine confidence in the verdict." Id. at 290 (internal quotation omitted).
The only exception to the requirement that the petitioner show cause and prejudice for a procedural default is where the petitioner can "demonstrate a sufficient probability that [the federal habeas court's] failure to review his federal claim will result in a fundamental miscarriage of justice." Edwards, 120 S.Ct. at 1591. A fundamental miscarriage of justice occurs in the "extraordinary case," such as where "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1985); see also Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). In order to demonstrate actual innocence in a collateral proceeding, a petitioner must present "`new reliable evidence that was not presented at trial' and `show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'"Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298, 299, 327-28 (1995)) (brackets in original). Further, actual innocence means factual innocence, not mere legal insufficiency. Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998).
By failing to raise these four claims on direct review, they are procedurally defaulted. See Spence, 219 F.3d at 170 (finding trial claims not raised on direct review to have been procedurally defaulted under CPL Section 440.10(2)(c)). Green has offered no explanation for the failure to raise these claims on appeal. He was on notice of each of these claims at the time of his direct appeal, including the alleged perjury. As reflected in the May 12, 1998 opinion of the Supreme Court, Green even knew before trial of the facts on which he bases his claim that the prosecution used perjured testimony. Having failed to present any argument to support a finding of cause, it is unnecessary to determine whether there is actual prejudice from these alleged errors. Similarly, Green has not argued his actual innocence. Accordingly, Green has failed to support a finding of a "fundamental miscarriage of justice." The remaining reviewable claims in Green's habeas petition are for the ineffective assistance of trial counsel and the improper seating of two jurors over Green's objection.
Green claims that the Assistant District Attorney learned before trial that the testimony of the arresting officers that they had received a "radio transmission" to respond to the area where the defendant was arrested was false. The Supreme Court found that Green learned about the prosecutor's inability to provide a tape recording of this radio transmission during a pretrial hearing when the prosecutor turned over a Sprint report and stated on the record that the tape itself had been erased.
B. Ineffective Assistance of Trial Counsel
As identified by the Report, Green claims that his trial attorney, Jerry Rosen, failed to provide effective assistance in six instances: (1) Rosen conducted an insufficient examination of Powell and Green, and "forgot about" Green's alibi defense; (2) he conducted an inadequate cross-examination of a detective; (3) he neglected to cross examine two police officers; (4) he invited damaging testimony by incompetent cross-examination; (5) he asked Green during the trial whether he wanted to take a plea; and (6) he gave an inadequate and offensive summation.
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that "(1) counsel's performance was unreasonably deficient under prevailing professional standards, and, (2) but for counsel's unprofessional errors, there exists a reasonable probability that the result would have been different." United States v. Torres, 129 F.3d 710, 716 (2d Cir. 1997) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Flores v. Demeskie, 215 F.3d 293, 304 (2d Cir. 2000) (citing Strickland, 466 U.S. at 694). There is a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance."United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990). The right to effective assistance of counsel, however, may be violated by "even an isolated error of counsel if that error is sufficiently egregious and prejudicial." Murray, 477 U.S. at 496.
The Report found that "[e]ven assuming that Mr. Rosen's performance fell below an objective standard of reasonableness, the petitioner's claims all fail because he makes no showing of prejudice." Green does not specifically object to this analysis. Reviewing the analysis for facial error, and finding none, the Report's recommendation as to those six instances of alleged ineffective assistance by counsel is adopted. Green does, however, include in his objections a reference to evidence of what he characterizes as Rosen's "midtrial `tantrum,'" specifically, that on an occasion that Rosen appeared late to court he used profanity in addressing Justice Rettinger, who admonished him. This incident — as regrettable as it is — fails to meet the prejudice standard elucidated in Strickland. The petitioner has failed to show that "but for" this incident, the trial result would have been different. Rosen's actions and comments were outside the presence of the jury and thus could not have been considered by it during jury deliberations. Green is therefore not entitled to relief on this claim.
C. Jury Selection
Green contends in his petition that he was denied the right to use his peremptory challenges to strike two jurors, in violation of his rights under the Fourteenth Amendment of the United States Constitution. The petitioner's argument, incorporated by reference to the brief filed by his attorney in his direct appeal, is based on Batson v. Kentucky, 476 U.S. 79 (1986), which forbids race-based peremptories on equal protection grounds, and whose progeny, as discussed below, have extended this equal protection argument to include gender-based peremptories. The petitioner struck the two jurors, however, not based on race or gender but based on occupation, and the equal protection principles of Batson and its progeny therefore do not apply. The Report recommends that this Court not grant relief to the petitioner on this claim because his argument does not invoke federal laws or the United States Constitution. The right to peremptory challenges under New York State law has no equivalent in the United States Constitution, see United States v. Martinez-Salazar, 120 S.Ct. 774, 779 (2000), and a violation of state law does not by itself rise to a violation of the United States Constitution. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) Green has not objected to this portion of the Report, and as the following discussion indicates, there is no facial error in the Report's conclusion.
During voir dire, the prosecutor claimed that the defense was using its peremptory challenges to eliminate Caucasian jurors. In particular, the prosecutor pointed out that defense counsel had used all of its peremptories on white males in the second of the two venire panels. Defense counsel argued that the prosecutor had failed to make a prima facie case of discrimination because only two prospective jurors had been African-American, making it hard for the defense to strike anyone who was not Caucasian. CitingBatson, the prosecutor argued that a prima facie case of discrimination had been made since "[f]our out of four is about all you can get" and requested that the defense provide race neutral reasons. When the court required an explanation, counsel for Green's co-defendant denied that he had challenged two jurors because they were white. He explained that he had challenged them because they were doormen and therefore "particularly suspicious of people with color." Counsel for Green responded that doormen are "para security people" and "blood related to the police." The prosecutor agreed that if the challenge was used "solely because doormen are para-security or are security," it would be an acceptable race-neutral reason. Upon reconvening the next morning, Justice Rettinger held that the jurors were challenged based on the belief that "doormen in the city have a built-in-bias, by virtue of the nature of their work, against minorities," and that such a reason was "unacceptable." He further found that defense counsel had provided no basis for concluding that the jurors "could not be able to perform diligently and attentively." He then seated the two jurors. The Court also noted that it could not be bound by the objections made by Green's attorney because he had offered his comments only "after he heard what the argument was all about," which posed the possibility that he had tailored his argument in order to "sanitize what otherwise would constitute . . . a racially motivated challenge."
The defense also challenged a third white juror because the juror was not paying attention and a fourth white juror because the juror was a crime victim. Following those explanations, those challenges were not contested by the prosecutor.
One was seated as an alternate.
The Batson test evaluates claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. The test was extended to a criminal defendant's exercise of peremptory challenges in Georgia v. McCollum, 505 U.S. 42 (1992). First, the prosecutor must make a prima facie case showing that the defendant has exercised peremptory challenges on the basis of race. Batson, 476 U.S. at 96, as applied thoughMcCollum, 505 U.S. at 48-50. Second, if the requisite showing has been made, the burden shifts to the defendant to articulate a race-neutral explanation for striking the jurors in question. Id. at 97-98. Finally, the trial court must determine whether the prosecutor has carried his burden of proving purposeful discrimination. Id. at 98. Deference is to be accorded to the trial judge's determination "[s]ince the trial judge's findings in th[is] context . . . largely will turn on evaluation of credibility." Batson, 476 U.S. at 98 n. 21; see also Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000).
New York state law applies the principles of both Batson and McCollum. See, e.g., People v. Delgado, 649 N.Y.S.2d 472 (N.Y. A.D. 1996).
In the context of a petition made pursuant to 28 U.S.C. § 2254, the state court's determination of whether the use of a peremptory challenge was motivated by discriminatory intent is a factual finding and therefore entitled to a presumption of correctness. Purkett v. Elem, 514 U.S. 765, 769 (1995) (applying former § 2254(d)); Bryant v. Speckard, 131 F.3d 1076 (2d Cir. 1997) (same). The petitioner must rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The petitioner argues that although no prima facie case of discrimination was presented by the prosecutor, the court still required the defense to offer a race-neutral explanation for its challenges. Because the venire was virtually all-white, with only one black juror on each of the two panels, "pattern" evidence — which consisted of striking white jurors — was insufficient to establish a prima facie case. The court, according to the petitioner, never rejected the defense explanation as not being race-neutral, but rather "merelydisagreed with the defense as to whether the two challenged panel members would be good jurors, concluding that the defense had failed to provide a `basis for concluding that the prospective juror[s] could not be able to perform diligently and attentively [their] jury responsibility'" (emphasis in original). In so doing, the court required that the defense peremptory challenges "rise to the level of challenges for cause." Finally, the petitioner argues that the court "compounded its errors when it ruled that it would not `allow any serious consideration' of the race-neutral reasons offered by [the petitioner's] attorney in support of the jury challenges," namely that doormen function as quasi-security officers. The court's proffered reasoning — that the attorney gave his reasons after listening to the argument and therefore had the opportunity to tailor his response — did not, according to the petitioner, justify the preclusion under the law as articulated in Batson.
According to the petitioner, white people made up 93% of the venire (27 out of 29 panel members). The defense challenged 23.5% of them (8 challenges in two rounds). Petitioner argues that although the defense exercised 100% of its challenges against whites, "the difference between 93% and 100% is hardly significant."
Any error by the trial court during the voir dire did not give rise to a violation of Green's federal rights. Batson reaffirmed the principle that prosecutors engaging in "racial discrimination in jury selection offends the Equal Protection Clause." Batson, 476 U.S. at 85. The Court applied the race-based protection ofBatson to the context of civil litigation, Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), and, as discussed above, defendants' exercise of peremptories in criminal cases, Georgia v. McCollum, 505 U.S. 42 (1992). The Court later extended the equal protection argument to include gender-based challenges.J.E.B. v. Alabama, 511 U.S. 127 (1994). A principal concern of the Court in Batson and its progeny was that race — or gender-based peremptories "cause harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process." J.E.B., 511 U.S. at 140. The interest in preventing this harm was too great even to "give way to the rights of a criminal defendant." McCollum, 505 U.S. at 57. When the Court held that extending the principles ofBatson to criminal defendants' use of peremptories did not violate the defendant's constitutional rights, it noted that
peremptory challenges are not constitutionally protected fundamental rights; rather, they are but one state created means to the constitutional end of an impartial jury and a fair trial. This Court repeatedly has stated that the right to a peremptory challenge may be withheld altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.Id.; see also Martinez-Salazar, 120 S.Ct. at 779-89.
The petitioner's reference to Batson is misplaced because he does not allege that peremptory challenges were used in a race or gender-biased way. Rather, by his own admission, he struck the two jurors not because they were white or male, but because they were doormen. Occupation, unlike race or gender, is not a category protected by Batson's Equal Protection Clause analysis: "[W]here peremptory challenges are made on the basis of group characteristics other than race or gender (like occupation, for example), they do not reinforce the same stereotypes about the group's competence or predispositions." J.E.B., 511 U.S. at 142 n. 14 (emphasis added). As a result, under McCollum, petitioner's argument fails to invoke a federal question and is therefore inappropriate for federal habeas review, which extends only to "violation[s] of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). See Estelle, 502 U.S. at 71-72.
CONCLUSION
For the reasons stated, the Report and Recommendation of August 29, 2000 is adopted and the petition for a writ of habeas corpus is denied. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted.Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998);Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED: