Opinion
14-CV-7501 (PGG) (RLE)
09-15-2017
SHELDON HARRIS, Petitioner, v. WILLIAM A. LEE, Respondent.
REPORT AND RECOMMENDATION
Ronald L. Ellis United States Magistrate Judge
To the HONORABLE PAUL G. GARDEPHE, U.S.D.J.:
I. INTRODUCTION
Pro se Petitioner Sheldon Harris (“Harris”) seeks a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, challenging his August 29, 2009 conviction in New York State Supreme Court, Bronx County, of murder in the second degree (N.Y. Penal Law (“N.Y.P.L.”) § 125.25(1)), attempted murder in the second degree (N.Y.P.L. §§ 110, 125.25(1)), weapon possession in the second degree (N.Y.P.L. § 265.03(2)), and endangering the welfare of a child (N.Y.P.L. § 260.10). Harris was sentenced to a term of forty-seven years to life in prison and is currently incarcerated in Green Haven Correctional Facility in Stormville, New York. (Doc. No. 1, Petition (“Pet.”).)
In his Petition for Writ of Habeas Corpus (“Petition”), Harris raises the following challenges to his conviction: (1) the trial court improperly admitted a medical examiner's expert testimony on ballistics, in violation of his Fifth and Fourteenth Amendment right to due process; (2) the prosecutor's summation deprived him of his Fifth and Fourteenth Amendment right to due process; and (3) the trial court erroneously admitted a 911 call into evidence, denying him a fair trial. (Pet. at 10, 13, 15.) For the reasons that follow, I recommend that Harris's petition be DENIED.
II. BACKGROUND
A. Factual Background
Sheldon Harris and Colleen Brown (“Colleen”) met in 2000 and formed a tumultuous relationship for six years. (Trial Transcript (“Tr.”) at 418-19.) In 2004, they had a daughter, Taylor. (Id. at 417.) Colleen alleged that Harris had been controlling, and had threatened to kill her as well as their daughter instead of paying child support. (Id. at 422.) Harris testified that Colleen was jealous and suspicious after she found out he had cheated on her, and that she had smashed a bottle through his car when she saw him with another woman. (Id. at 1173-74, 1206.)
Colleen lived in an apartment with her mother, Joan Brown (“Joan”). (Id. at 308.) Her grandmother, Clarissa Bryant (“Clarissa”), lived in the basement of their apartment building. (Id.) Joan did not allow Harris to visit the apartment, but he was allowed to visit with Taylor on the adjacent landing. (Id. at 319, 427, 434.)
In July 2006, Harris and Colleen had broken up for good. (Id. at 430.) On the evening of September 3, 2006, Harris and Colleen went out to dinner together to make sure their breakup was her “final decision.” (Id. at 432.) Colleen testified that Harris seemed normal, and that he had dressed up for dinner. (Id. at 433.) Harris testified that he had been crying the whole time, and had told her that he wanted to kill himself. (Id. at 1246.)
On the morning of September 4, 2006, Colleen, Joan, Clarissa, Taylor, and Marjorie Lawrence (“Marjorie”), a friend of Joan's, were all present in Joan's apartment. (Id. at 431-35, 438, 516, 662.) Harris testified that he visited the apartment with the plan to say goodbye to Taylor and then kill himself in front of Colleen. (Id. at 1247-48.) Harris was playing with Taylor on the landing, but when Colleen came out to tell him it was time to leave, Colleen testified that Harris became upset, grabbed her arm, and wanted to know where she was going. (Tr. at 439.) Harris asked for a kiss, which Colleen refused because they were “not together anymore.” (Id. at 440.) Harris testified that he had cried and asked Colleen to help him but she refused. (Id. at 1250.)
Harris pulled out a gun and shot Colleen twice. (Id. at 440.) She screamed for her mother and fell on the floor in the doorway of the apartment. (Id. at 443.) Clarissa testified that as Joan went to her daughter, Harris shot Joan in the chest. (Id. at 625.) Joan went back towards her bedroom. (Id. at 627.) As Clarissa asked Harris why he was doing this, he shot her in her leg. (Id. at 627.) Clarissa struggled with Harris, but he regained control of the gun. (Id. at 627.) Harris then knelt near Colleen, said “you know I love you, why are you breaking up with me?” then shot her a third time. (Id. at 629.) Harris testified that he shot himself three times. (125961.) Clarissa testified that she kicked the gun out of Harris's hand and Marjorie picked it up. (Id. at 636.) Harris testified that he shot Colleen and himself, but not Joan or Clarissa, and that he “didn't know what happened to [the bullets] after they exit[ed his] body.” (Id. at 1260-62, 1267.)
As Joan was dying, she dialed 911 but was unable to speak when the operator picked up. (Id. at 338.) Marjorie then called 911. (Id. at 338-39.) After police officers arrived, they took Colleen, Joan, Clarissa, and Harris to the Emergency Medical Services at Jacobi Medical Center. (Id. at 277.) Colleen, Clarissa, and Harris survived their gunshot wounds, but Joan was pronounced dead.
B. Procedural History
1. Trial Proceedings
Harris's trial began on May 28, 2009, before Judge Lieb in New York State Supreme Court. (Tr. at 1.) The prosecution's theory was that Harris had intentionally shot Clarissa and Joan because he was “harboring ill will towards everyone in [Joan's] apartment.” (Id. at 2012.) The defense's theory was that Harris had not intended to shoot Joan or Clarissa, and their injuries resulted from the shots that Harris had fired into his own stomach. (Id. at 1899.)
a. Dr. Carolyn Kappen's Testimony
Dr. Carolyn Kappen, a city medical examiner, testified for the prosecution. (Id. at 70708.) She testified that she did not have expertise in scene reconstruction, but did have expertise in giving opinions on bullet wounds of people who were alive. (Id. at 714-15.) She had analyzed and provided opinions for gunshot wounds of living people “probably five times.” (Id. at 715.) The defense asked that Dr. Kappen's expertise be “limited to the autopsy and her findings on Joan Brown, not a [reconstruction] of how the shooting occurred.” (Id. at 715.) The court found this request “hard to do in the abstract, ” and instructed the defense to raise objections as the questioning proceeded. (Id. at 716.)
On direct examination, Dr. Kappen testified that the gunshot wound to Joan's abdomen caused her death and that Joan's wound was not consistent with a bullet passing through an intermediate target. (Id. at 719, 743.) She testified that a bullet's entrance wound looks “very different” from a bullet's exit wound. (Id. at 719.) The court overruled defense's objection that Dr. Kappen's testimony was “getting into [the] trajectory of [the] bullet.” (Id. at 725-26.)
Dr. Kappen testified that the reason she performs autopsies was to “determine the bullet path.” (Id. at 727.) She noted that Joan's autopsy revealed that the bullet had perforated her liver, stomach, kidney, and aorta. (Tr. at 726.) Dr. Kappen also testified that when a bullet passes through an intermediate target, an autopsy would reveal more than one hole or holes that are “very irregular looking.” (Id. at 742.) She opined that in Joan's case, there was no intermediate target, as the entrance wound on her body was “pristine, ” and not the kind of entrance wound that is seen when there is an intermediate object. (Id. at 743.) Defense counsel objected to Dr. Kappen's opinion that Harris was not an intermediate target to the gunshot wound to Joan. (Id. at 746.) The court overruled the objection, finding that Dr. Kappen was qualified to offer the testimony, after Dr. Kappen explained that she was “trained to identify injuries and ... can tell to a certain degree what did or didn't happen such [as] with this whole intermediate target issue.” (Id. at 746-47.)
During cross examination, Dr. Kappen testified that she did not testify earlier as to her knowledge about “bullets and ammunition, ” but rather “about the path and what the marks that are made on the skin surface from bullet wounds [look like].” (Id. at 752.) Dr. Kappen testified that she was “not claiming to be a ballistic expert” and believed that Joan's wound represented a “typical entrance wound without the bullet passing though anything but a thin nightgown.” (Id. at 756, 901.)
b. The 911 Calls
Outside the presence of the jury, the court asked to hear the 911 calls placed by Joan and Marjorie. (Id. at 294.) The defense objected to admitting the tapes into evidence because Marjorie would be testifying at the trial, and offered to stipulate that Joan had called 911 and “passed away in [the bedroom].” (Id. at 296.) The defense argued that the calls were “extremely” prejudicial. (Id.)
The prosecution argued that the second call, by Marjorie, was relevant because it demonstrated the “grave condition that Joan was in” at that time, and that “Colleen was in bad shape.” (Tr. at 297.) It also showed Marjorie's “state of mind at the time of the incident.” (Id.) The prosecutor also argued that the first call, in which Joan had been unable to speak because of her gunshot wound, was relevant because the “distinct scream” in the background was “exactly the same scream we hear in the next call[, ]” which corroborates that “nothing [had] changed” from the first call to the second. (Id. at 298.)
The court overruled the defense's objection, finding that, for the reasons stated by the prosecution, the probative value outweighed the prejudicial effect of admitting the tapes. (Id. at 298-99.) The court further stated that the fact that Marjorie was available to testify did not “change anything” because Marjorie's testimony and the tapes are admissible under the present sense exception to the hearsay rule. (Id. at 298.) The court noted that while the tapes are “emotional[, ] ... this is an emotional case, the jury understands that.” (Id. at 298.)
c. Prosecutor's Summation
The prosecutor began his summation by accusing the defense of carrying out a “smear campaign” to make Colleen Brown look like “she was the one that drove this man to this.” (Id. at 2001.) He suggested that Harris was “playing [a] game and harboring ill will towards everyone in the apartment” except for Marjorie. (Id. at 2012.) The prosecutor suggested that it was unlikely that Harris had planned to kill only himself, stating “one bullet to the brain arid he could not have fired two more times ... that is not what he wanted ... he wanted attention.” (Id. at 2013.)
Defense counsel made numerous objections throughout the summation. The prosecutor noted that Colleen had said Harris looked “fine” the night before the shooting, and defense counsel objected. (Tr. at 2014.) The court overruled the objection, stating “the Jurors' recollection of the evidence will control.” (Id.) Defense counsel also objected to the prosecutor describing Marjorie as a “shattered woman, ” without stating the basis. The court overruled the objection, stating that the jurors' recollection would control. (Id. at 2017.) Defense counsel objected to the prosecutor's suggestion that Marjorie did not rush to the sound of gunshots because she didn't have a gun, and the court sustained the objection. (Id. at 2027.) Defense counsel also objected to the prosecutor's statement that “if Joan Brown were alive today, she would tell you, she will never forget the sound of her daughter.” (Id. at 2028.) The court sustained the objection. (Id.) When the prosecutor stated that Harris was “on a rampage” when Clarissa Bryan “knock[ed] the gun out of his hand, ” defense counsel objected, but the court overruled the objection. (Id. at 2032.) When the prosecutor stated that Joan Brown's wound “couldn't have been better placed, ” defense objected, and the court overruled the objection. (Id. at 2037.)
The prosecutor also argued that the bullets did not travel through an intermediate target prior to striking Joan and Clarissa, stating that the defense's experts had observed that the gunshot wound was “relatively clean, ” and “agreed ... a hundred percent with Dr. Kappen.” (Id. at 2041.) The court overruled defense counsel's objection to this, but instructed the prosecutor to “take back” the “hundred percent.” (Id. at 2042.)
The court instructed the jury that “nothing the lawyers say in their summation is evidence, ” that their statements are “simply argument” which the jury should disregard if not based on evidence. (Id. at 1856.) The court also instructed the jury that they alone “are the judges of the facts.” (Id. at 1858.)
2. Verdict and Sentence
On August 29, 2009, the jury convicted Harris of second-degree murder, attempted second degree murder, first degree assault, second-degree weapon possession, and endangering the welfare of a child. (Doc. No. 8, Declaration of Nancy D. Killian in Opp. (“Killian Decl.”) at ¶ 3.) The court sentenced Harris to an indeterminate term, from twenty-five years to life on the murder count, to run consecutively with concurrent determinate terms of twenty-two years on the attempted murder and assault counts each, fifteen years on the weapon count, one year on the child endangerment count, and five years of post-release supervision, running concurrently. Id.
3. Appeals
On September 21, 2009, Harris filed a timely appeal in the New York State Appellate Division, First Department. (Killian Decl., Ex. 1, Appellant's Brief, at 2.) On appeal, he raised the following relevant issues: (1) The trial court improperly admitted the medical expert's testimony, depriving Harris of his Fifth and Fourteenth Amendment right to due process under the United States Constitution; (2) the prosecutor's summation deprived Harris of his Fifth and Fourteenth Amendment right to due process under the United States Constitution; and (3) the admission of the 911 call into evidence denied Harris a fair trial. (Id. at 45, 60, 62.) The Appellate Division unanimously affirmed the conviction on October 23, 2012. (Killian Decl. Ex. 5); People v Harris, 99 A.D.3d 608, 608 (N.Y.App.Div. 1st Dep't 2012). The New York Court of Appeals denied Harris's application for leave to appeal on June 13, 2013. People v. Harris, 21 N.Y.3d 1004 (N.Y. 2013). Harris filed this Petition on September 11, 2014. (Killian Deci, at 4.)
4. Harris's Claims for Habeas Relief
Harris raises three grounds for habeas relief, alleging that all three errors of the trial court deprived him of the right to a fair trial. First, he alleges that the trial court improperly admitted the testimony of Dr. Carolyn Kappen over his attorney's objection that she was testifying outside her area of expertise when she opined that the entrance wound on Joan's body did not appear to have been made following an intermediate target. (Pet. At 8-10.) Second, he alleges that the prosecutor made comments during his closing statement that, inter alia, raised facts not in evidence, unfairly characterized evidence, and “became an unsworn witness.” (Id. at 11-13.) Although the court sustained several of defense counsel's objections, Harris contends that it refused to provide curative instructions at the close of the summation. (Id. at 13.) Finally, he alleges that the court's admission of the 911 call made by Joan was unduly prejudicial and lacked probative value. (Id. at 14-15.)
III. ANALYSIS
A. Threshold Issues
1. Timeliness
A petitioner must file an application for a writ of habeas corpus within one year of his conviction becoming final. 28 U.S.C. § 224(d)(1)(A). A conviction becomes final “when [the] time to seek direct review in the United States Supreme Court by writ of certiorari expires, ” that is, ninety days after the final determination by the state court. Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001) (quoting Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998)) (internal quotes omitted).
Respondent does not contest timeliness. (Killian Deel, at 4.) The Court of Appeals denied Harris's leave to appeal on June 13, 2013. People v. Harris, 21 N.Y.3d 1004 (2013). His conviction became final for purposes of the AEDPA ninety days later, on September 11, 2013. Green Haven Correctional Facility reported that Harris' request for funds for postage was processed on September 12, 2014, “and could not rule out the possibility that petitioner submitted his petition to prison authorities for mailing September 11, 2014, ” one year after his conviction became final. (Killian Deci, at 4.); 28 U.S.C § 2244 (d)(1)(A). As a pro se and incarcerated habeas petitioner, the mailbox rule applies to Harris; thus, the Court deems his Petition filed on the date it was given to correctional authorities for mailing to the Court, see Houston v. Lack, 487 U.S. 266, 270 (1988); Noble v. Kelly, 246 F.3d 93 (2d Cir. 2001), cert, denied, 534 U.S. 886 (2001), and therefore timely.
2. Exhaustion
A federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state remedies, procedurally and substantively. 28 U.S.C. § 2254(b)(1)(A); Picard, v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelley, 112 F.3d 50, 52 (2d Cir. 1997). In order for a claim to be procedurally exhausted, the petitioner must raise a claim at each level of the state court system, “[presenting] the substance of his federal claims to the highest court of the pertinent state.” 28 U.S.C. § 2554(b)(1); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (internal citations omitted); see also Rose v. Lundy, 455 U.S. 509, 510 (1982) (federal district court must dismiss a “petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts”). The exhaustion requirement is “based on considerations of comity between federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their prisoners' federal constitutional rights.” Warren v. McClellan, 942 F.Supp. 168, 170 (S.D.N.Y. 1996) (citing Picard v. Conner, 404 U.S.279, 275 (1971)).
“Under the provisions of AEDPA, however, "an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”” Jackson v. Moscicki, 2000 U.S. Dist. LEXIS 5577, *29 (S.D.N.Y. Apr. 25, 2000) (quoting 28 U.S.C. § 2254(b)(2)). The Court can then consider and deny any unexhausted claims where “the Court also denies any exhausted claims on the merits.” Jackson, 2000 U.S. Dist. LEXIS 5577, at *29 (citing Glover v. Portuondo, 1999 U.S. Dist. LEXIS 7986, *6-7 (S.D.N.Y. May 25, 1999)).
A petitioner must also utilize all available procedures permitted by state law to meet the exhaustion requirement. See 28 U.S.C. § 2254(c). In New York, a petitioner must file a § 440 motion to vacate judgment if a claim was not raised on direct appeal that requires exhaustion. Reyes v. Keane, 118 F.3d 136 (2d Cir. 1997). A claim is substantively exhausted when: (1) “the nature or presentation of the claim [in state court, was] .. . likely to alert the court to the claim's federal nature, ” and (2) the claim presented to the habeas court is “substantially equivalent” to the claims brought in state court. Jones v. Keane, 329 F.3d 290 (2d Cir. 2003); see also Daye v. Attorney General, 696 F.2d 186, 192 (2d Cir. 1982). The petitioner need not, however, cite “book and verse on the federal constitution.” Picard, 404 U.S. at 278. He may alert the state court to his federal claims in several ways, including (1) reliance on pertinent federal cases employing constitutional analysis; (2) reliance on state cases employing constitutional analysis in like fact situations; and (3) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution. Daye, 696 F.2D at 194.
3. Procedural Bar for Claims Rejected on Independent and Adequate State Law Ground
In addition to the constraint that the exhaustion requirement places on a petitioner's claim, procedural default, also known as a procedural bar, may thwart a petitioner's ability to pursue a claim on its merits. “[A] petitioner who procedurally defaults on his state court remedies is barred from obtaining federal habeas relief.” Picard, 404 U.S. at 275; see also Jones, 126 F.3d at 414 (citing Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994)); Coleman v. Thompson, 501 U.S. 722, 750 (1991). A federal court does not have the jurisdiction to review claims that have been decided on an independent and adequate state procedural rule. Michigan v. Long, 463 U.S. 1032 (1983). “Even where the state court has ruled on the merits of a federal claim ‘in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default.” Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (citation omitted). See also Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996).
A state law grounds is “adequate” to foreclose federal review when the law is “firmly established and regularly followed.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991). There are, however, “exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” Lee v. Kemna, 534 U.S. 362, 376 (2002). The Second Circuit has identified three factors that a court must use as “guideposts evaluating the state interest in a procedural rule against the circumstances of a particular case.” Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. N.Y. 2003) (citing Lee, 534 U.S. at 381-85.) The factors are:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id.
Even if a claim is procedurally barred, a petitioner may nevertheless receive habeas review if he can demonstrate “cause for the default and actual prejudice as a result of [an] alleged violation of federal law” or a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 749-50. In order to show “cause, ” a petitioner must demonstrate that “some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule.” Murray v. Carrier, 477 U.S. 478 (1986). Additionally, the “prejudice” component requires the petitioner to show that there was a “reasonable probability that the result of the trial would have been different” absent the admission of the evidence. Strickler v. Greene, 527 U.S. 263, 289 (1999).
Absent a showing of cause and prejudice, a petitioner can also overcome a procedural bar if there has been a fundamental miscarriage of justice, that is, the constitutional violation before the court on habeas review “has probably resulted in the conviction of one who is actually innocent.” Carrier, 477 U.S. at 496. The “fundamental miscarriage of justice” claim “is only available where the petitioner can supplement his constitutional violation with ‘a colorable showing of factual innocence'” in the form of newly adduced evidence of innocence. Washington v. Superintendent, Otisville Correctional Facility, No. 96 Civ. 2729 (SAS), 1997 WL 178616, at *7 (S.D.N.Y. April 11, 1997) (quoting McCleskey, 499 U.S. at 494); see also Schlup v. Delo, 513 U.S. 298, 332 (1995).
4. Application to Harris's Claims
a. Dr. Kappen's Expert Testimony
Harris procedurally exhausted his claim that Dr. Kappen's expert testimony was improperly admitted, having presented the issue to both the Appellate Division and the Court of Appeals. (Killian Decl. Ex. 5 at 45; Pet. at 7-15.) Harris also satisfied the factors used to determine whether a claim sufficiently apprises the courts of its constitutional nature, by stating that the admission of this testimony denied him “due process rights of law as guaranteed by the 5th and 14th Amendments of the U.S. Constitution” and citing Miller v. Pate, 386 U.S. 1, 3 (1967). (Killian Decl. Ex. 1 at 45.) Accordingly, Harris “fairly presented his federal claim” to the Appellate Division, and the claim is exhausted. Daye, 696 F.2d at 191.
In addition, the Appellate Division, the last state court to render a decision, did not reject Harris's claim that Dr. Kappen's testimony was improperly admitted on a state procedural ground, but rather reviewed the claim on its merits. The court ruled that the trial court effectively exercised its discretion because the witness was not testifying as a “ballistics expert without being qualified to do so.” Harris, 99 A.D.3d at 608. The court found that Dr. Kappen's testimony was on “the effect of gunshots on human tissue and the conclusions to be drawn therefrom, ” which her “extensive training and expertise qualified her to provide.” Id. (citing People v. Boozer, 298 A.D.2d 261, 748 N.Y.S.2d 379 (N.Y.App.Div. 1st Dep't 2002.) Moreover, the Appellate Division found that, even if the testimony was improper, its admission was “harmless given the overwhelming evidence of defendant's guilt under the murder count.” Id. (citing People v Sorrentino, 93 A.D.3d 450, 939 N.Y.S.2d 452 (N.Y.App.Div. 1st Dep't 2012)). Accordingly, Harris's claim that the expert testimony was improperly admitted, denying him of his right to a fair trial, is not procedurally barred from habeas review.
b. Joan's 911 Call
Harris has failed to exhaust his claim that the recording of Joan's 911 call was improperly admitted. Although the claim was raised on appeal to the Appellate Division, Harris failed to apprise the state court of the constitutional nature of the claim. Harris's appellate brief argues exclusively that the probative value of the call was outweighed by the prejudicial impact it had on the jury. (Killian Decl., Ex. 1 at 60-62.) Harris argues only that the admission of both 911 calls “denied Defendant a fair trial.” (Id. at 62.) However, “alleging lack of a fair trial does not convert every complaint about evidence or a prosecutor's summation into a federal due process claim.” Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. N.Y. 1984) (internal quotations omitted) (petitioner's claim was unexhausted where arguments to state appeals court focused on only the prejudicial impact of evidence on the jury.) Accordingly, Harris's claim is unexhausted.
c. Prosecutor's Summation
Harris procedurally exhausted his claim that the prosecutor's summation deprived him of his fundamental right to a fair trial, having presented the issue to both the Appellate Division and the Court of Appeals. (Killian Decl. Ex. 4 at 49.) He satisfied the factors used to determine whether a claim sufficiently apprises the courts of its constitutional nature, by stating that due process of law as guaranteed by the Fifth and Fourteenth Amendments was denied by the summation and citing a federal case employing constitutional analysis, Donnelly v. Dechristoforo, 416 U.S. 637 (1974). (Killian Decl. Ex. 1 at 60.)
The state court procedural bar that gives rise to exhaustion, however, provides an independent and adequate state law ground for the conviction. See Gray v. Netherland, 518 U.S. 152, 162 (1996). The Appellate Division denied Harris's appeal, stating that his claim was unpreserved, and citing People v Romero, 7 N.Y.3d 911 (N.Y. 2006). Harris, 99 A.D.3d at 609. Whether the Appellate Division will determine an appeal is governed by New York Criminal Procedure Law § 470.05, which states that the Appellate Division will not review any ruling or instruction of a criminal court that was not challenged at trial. N.Y. CRIM. PROC. LAW § 470.05(2) (Consol. 2016). “Because New York's contemporaneous objection rule is an independent and adequate state law ground that is ‘firmly established and regularly followed,' a state court decision on that ground will bar habeas review unless the rule was exorbitantly applied.” Liggan v. Senkowski, 2016 U.S. App. LEXIS 10867, *3-4 (2d Cir. June 16, 2016) (quoting Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011)).
The Court finds that the contemporaneous objection rule was not exorbitantly applied in this case. The first factor, whether the trial court “actually relied” on the procedural violation, does not apply in this case “because the lack of a contemporaneous objection would not, almost by definition, be mentioned by the trial court.” Cotto, 331 F.3d at 242. Under the second factor, the Court finds that New York law required compliance under the circumstances presented, weighing in favor of finding the decision adequate. Under the state law, remarks by a prosecutor are unreviewable when they “were met with only unspecified, general objections.” Romero, 7 N.Y.3d at 912; People v. Harris, 98 N.Y.2d 452 (N.Y. 2002) (“defendant's single-word objections to the ... statements fell far short of apprising the court of the constitutional claims he now raises on appeal”). Here, defense counsel made only general objections throughout the prosecutor's summation. (See, e.g., Tr. at 2014, 2017, 2027, 2028, 2032.) Finally, the Second Circuit has recognized that demanding compliance with the contemporaneous objection rule serves the legitimate governmental interest of “allowing the trial court to have the first opportunity to rule on and possibly rectify any alleged legal error.” Garvey v. Duncan, 485 F.3d 709, 720 (2d Cir. 2007). Moreover, where a petitioner has made a general objection to an evidentiary ruling, “the New York Court of Appeals has long rejected invitations to review constitutional arguments purportedly raised implicitly in the trial court.” Wright v. Duncan, 500 Fed.Appx. 36, 38 (2d Cir. 2012).
The Court also notes that, although the Appellate Division ruled that “as an alternative ruling, we find no basis for reversal, ” Harris, 99 A.D.3d at 609, “federal habeas review is foreclosed” because the court “also expressly relied on the petitioner's procedural default.” Murden, 497 F.3d at 191.
Harris therefore has not provided any evidence of “cause, ” and consequently this Court will not need to consider “prejudice.” See McClesky v. Zant, 499 U.S. 467, 502 (1991). Harris has not shown that failure to consider his claim of prosecutorial misconduct will give rise to a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. This exception is only available where the petitioner can supplement his constitutional violation with a “colorable showing of factual innocence” in the form of newly adduced evidence of innocence. Washington v. Otisville, 1997 WL 178616 at *7 (S.D.N.Y. April 11, 1997); see also Schlup v. Delo, 513 U.S. 298, 332 (1995). Harris does not contest that he was at the crime scene, that he pointed the gun, or that Joan was shot by bullets from the gun. (Pet. at 28.) Harris does not support his allegations of constitutional error with new reliable evidence that was not presented at trial to show that he is actually innocent of the crime. Schlup, 513 U.S. at 299. Harris's claim regarding the prosecutor's summation is therefore procedurally barred and should be dismissed.
B. Merits of Harris's Claims
1. Standard of Review
A federal court may grant a writ of habeas corpus if a petitioner demonstrates one of two conditions: “the state-court adjudication resulted in a decision that (1) ‘was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) ‘involved an unreasonable application of... clearly established Federal law as determined by the Supreme Court of the United States.'” Williams v. Taylor, 529 U.S. 362, 412 (2000) (quoting 28 U.S.C. § 2254(d)(1)-(2)). A state court decision is “contrary to” federal law “if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law" or if it "decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. 413. A state court decision involves an "unreasonable application" of Supreme Court precedent “if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. Finally, “clearly established federal law, as determined by the Supreme Court of the United States” refers only to Supreme Court “holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision.” (Id. at 412.)
State judicial determinations are afforded even more deference than before the passage of the AEDPA. Rodriguez v. Bennett, No. 98 Civ. 580 (LBS), 1998 WL 765180, at *3 (S.D.N.Y. Nov. 2, 1998). In reviewing state court factual determinations, the Court “must apply a presumption of correctness . .. unless rebutted by clear and convincing evidence.” Id. Further, “[w]hen reviewing a mixed question of law and fact, the federal court must defer to the judgment of the state court provided the state court determination does not constitute an ‘unreasonable application' of clearly established federal law as determined by the Supreme Court.” Id.
“Erroneous state evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus.” Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). “Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial.” Id. (citing Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973)). Reviewing courts must first determine whether the state court decision violated the evidentiary rule itself, “because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.” Yapor v. Mazzuca, 2005 U.S. Dist. LEXIS 6597, *42 (S.D.N.Y. Apr. 19, 2005). Then, a petitioner must demonstrate that the error implicated an identifiable constitutional right and that it was “an error of constitutional dimension.” Rosario v. Kuhlman, 839 F.2d 918, 924 (2d. Cir. 1988).
a. Prosecutorial Misconduct During Summation
Prior to the enactment of the AEDPA, “mixed” petitions - those presenting both unexhausted and exhausted claims - were dismissed in their entirety. Consequently, this left petitioners with the option of choosing between either exhausting the unexhausted claims in state court, or abandoning them entirely. See Rose v. Lundy, 455 U.S. 509, 519, 522 (1982). However, pursuant to the AEDPA, federal courts may deny mixed petitions on their merits notwithstanding a petitioner's failure to exhaust state judicial remedies. 28 U.S.C. § 2254(b)(2); see, e.g., Hogan v. Ward, 998 F.Supp. 290, 293 (W.D.N.Y. 1998) (“[W]here a court deems unexhausted claims to be patently frivolous, it may now address the merits of both exhausted and unexhausted claims.”).
Harris's petition is “mixed” because his claim concerning prosecutorial summation is procedurally barred and therefore unexhausted. The claim, however, is meritless. “A criminal conviction is not to be lightly overturned on the basis of a prosecutor's inappropriate comments standing alone in an otherwise fair proceeding.” United States v. Young, 470 U.S. 1, 11 (1985). Prosecutorial misconduct during summation is grounds for reversal only when the remarks cause actual prejudice to the defendant. See Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). The alleged misconduct “must have so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
In federal habeas corpus proceedings, the standard of review for claims of prosecutorial misconduct is whether the prosecutor engaged in “egregious misconduct. . . amount[ing] to a denial of constitutional due process. ” Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly, 416 U.S. at 647-48)). Under the Fourteenth Amendment, constitutional Due Process is denied only when the alleged misconduct is “of sufficient significance to result in the denial of the defendant's right to a fair trial.” Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir. 1991), cert, denied, 502 U.S. 852 (1991) (quoting Greer v. Miler, 483 U.S. 756, 765 (1987), reh'g denied, 483 U.S. 1056)). To fairly determine whether the prosecutor's comment deprived a petitioner of a constitutionally fair trial, it is important to first “place th[e] remar[k] in context.” Greer v. Miller, 483 U.S. 756, 766 (1987) (alteration in original) (quoting Darden, 477 U.S. at 179.). The Second Circuit has adopted a three-part test to analyze whether prosecutorial misconduct denied the petitioner due process considering “[t]he severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct.” Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir. 1991). As described above, the statements in this case were not extreme in nature. In addition, the court sustained objections to some of the comments, gave curative instructions, and reminded the jurors that the lawyers' statements were not evidence. Finally, the physical evidence against Harris was substantial. He was at the scene. He fired the fatal shots, though he claimed he did not intend to cause harm to the victims. The claim that the prosecutor's summation unconstitutionally affected the jury is meritless.
b. Dr. Kappen's Expert Testimony
Harris argues that the trial judge erred in allowing Dr. Kappen to testify that there was no “intermediate target” through which the bullet passed before striking Joan Brown's body. (Pet. at 8.) The testimony is relevant to Harris's defense theory that he did not intentionally shoot Joan, but that she was struck with bullets that had passed through his own body. Dr. Kappen testified that the entrance wound on Joan's body was “a typical entrance wound” and that it did not “look anything like an intermediate entrance wound would look.” (Tr. at 747.) Moreover, Dr. Kappcn opined that the bullets had fractured “pretty thick bone” which they would not have been able to do had they lost their “nice spin” by first passing through an intermediate target, such as Harris's abdomen. Id. The trial court permitted the testimony, over defense counsel's objection, finding that Dr. Kappen was “trained to identify injuries and.. .can tell to a certain degree what did or didn't happen such [as] with this whole intermediate target issue.” (Id. at 746-47.) The Appellate Division upheld the ruling, finding that the trial court acted within its discretion, and rejected Harris's argument that Dr. Kappen was testifying as a “ballistics expert.” Harris, 99 A.D.3d at 608.
Under New York law, “the admissibility and limits of expert testimony lay primarily in the sound discretion of the trial court.” People v. Lee, 96 N.Y.2d 157, 162 (N.Y. 2001.) A witness who has been qualified as an expert may not give testimony on subject matter that exceeds the scope of her expertise. People v Inoa, 25 N.Y.3d 466, 473 (N.Y. 2015). A court may abuse its discretion when it permits testimony by an expert that “palpably overtakes the jury's function to decide matters within its unaided competence.” (Id. at 472.) Because Dr. Kappen's testimony, as the Appellate Division pointed out, was not about “ballistics” but rather about “the effect of gunshots on human tissue and the conclusions to be drawn therefrom, ” it was within the scope of her training as a medical examiner. Harris, 99 A.D.3d at 608. Moreover, the trial court reminded the jury during Dr. Kappen's testimony that “ultimately it is your decision whether to accept the testimony of this expert, since you must make these ultimate decisions.” (Tr. at 747.) The Court finds no violation of state evidence law, and accordingly finds that the trial court's admission of the testimony was constitutional. Moreover, Harris asserts no violation of “constitutional proportions, ” arguing only that the admission of the evidence was prejudicial and deprived him of “a fair trial.” Accordingly, the Court finds no merit in his claim.
c. Joan's 911 Call
Although Harris's claim that the trial court erroneously admitted the recording of Joan's 911 call is unexhausted, the claim would also fail on its merits. 20 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.”) Under New York law, 911 recordings can be admitted into evidence as a present sense impression exception to the hearsay rule. People v. Brown, 80 N.Y.2d. 729 (N.Y. 1993) (affirming that the present sense impression exception to the federal rule against hearsay was properly applied in New York when the trial court allowed 911 tape recordings to be played to the jury at defendant's trial.); see generally Fed.R.Evid. 803(1) (stating that a present sense impression is “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”) The Appellate Division in this case found that the 911 call fell under this exception. (Tr. 298.)
Additionally, the Appellate Division found that the 911 call was relevant for corroboration and was not unduly prejudicial, noting that the case itself was “emotional.” Id. The Court agrees, and finds no violation of state evidence law. Similar to Harris's argument against the admission of Dr. Kappen's testimony, he does not assert a violation of “constitutional proportions.” Accordingly, the Court finds no merit in his claim.
IV. CONCLUSION
For the reasons articulated above, I recommend that Harris's Petition be DENIED.
The parties shall have fourteen days (14) from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Paul G. Gardephe, 40 Foley Square, Room 2204, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 1970, New York, New York 10007. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)', 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(d).