Opinion
97-CV-384 (FJS/GLS)
January 17, 2001
FOR THE PETITIONER: JAMES MARIANI, Petitioner, Pro Se, Attica Correctional Facility, Attica, New York.
FOR THE RESPONDENT: HON. ELIOT SPITZER, OF COUNSEL: KEITH KAMMERER, ESQ., Asst. Attorney General, Attorney General of the State of New York, Albany, New York.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Frederick J. Scullin, Jr., Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed his habeas corpus petition and supporting brief on March 21, 1997. Magistrate Judge Smith issued an Order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading. Respondent has filed his answer, together with the pertinent state court records and a memorandum of law. Petitioner filed a traverse (Dkt. No. 12) and a memorandum of law. (Dkt. No. 15).
This case was re-assigned to this court on November 21, 1997. (Dkt. No. 16). Thereafter, it was reassigned to Magistrate Judge Scanlon (Dkt. No. 23), and again re-assigned to the undersigned on August 13, 1998. (Dkt. No. 29).
The state court records submitted by respondent are listed in the first paragraph of the answer. (Dkt. No. 9).
On January 26, 1998, petitioner filed a pro se motion to expand the record, in which he requested permission to take a lie detector test. (Dkt. No. 17). Magistrate Judge Scanlon denied the motion, noting that petitioner could expand the record by affidavit. (Dkt. No. 25). Petitioner retained counsel, who filed a memorandum of law subsequent to issuance of the Order. (Dkt. No. 26). The Court considered counsel's memorandum of law, but found no reason to alter its prior Order. (Dkt. No. 27). Subsequently, petitioner submitted two affidavits. (Dkt. Nos. 28, 30). On March 15, 1999, petitioner filed an additional memorandum of law. (Dkt. No. 32).
Petitioner complains of a judgment of conviction rendered against him on October 20, 1992, following a jury trial in the Albany County Court, wherein he was convicted of two counts of murder in the second degree, and two counts of burglary in the second degree. Petitioner was sentenced to an aggregate indeterminate term of forty years to life.
The Appellate Division, Third Department affirmed the conviction on April 21, 1994. People v. Mariani, 203 A.D.2d 717, 610 N.Y.S.2d 967 (3rd Dep't 1994). The New York Court of Appeals denied leave to appeal on September 29, 1994. People v. Mariani, 84 N.Y.2d 869, 642 N.E.2d 334, 618 N.Y.S.2d 15 (1994).
In April of 1995, petitioner made a motion to vacate the judgment pursuant to Article 440 of the New York Criminal Procedure Law [hereinafter "C.P.L."], on the grounds of ineffective assistance of counsel and prosecutorial misconduct. The Albany County Court denied the motion. See Decision and Order, dated July 17, 1995. (Breslin, J.), at Pet'r's Ex. A, at 59 — 62.
Petitioner argued that counsel was ineffective for: 1) failing to request that Mark Torra's testimony be stricken; 2) failing to again seek severance before trial, due to the admission into evidence of improperly redacted statements by co-defendants and statements to non-police personnel; 3) failing to prepare an alibi defense; and, 4) disclosing a burglary charge that was prejudicial. See Decision and Order, at A-60. Petitioner also argued that the judgment should be vacated due to prosecutorial fraud and misrepresentation resulting from the prosecutor's failure to give oral notice of statements petitioner made to Mark Torra. Id. at 61. The County Court found that sufficient facts appear on the record such that the ineffective assistance of counsel issue could have been raised on direct appeal. The Court alternatively ruled that the claim lacked merit. See Id. at A-60. The Court held that the requirement of notice was not applicable to petitioner's statement to Torra, since Torra is a private citizen. Id. at A-61. Further, the Court held that petitioner was not "ambushed," since he was provided with a copy of the police report that recited Torra's receipt of the metal box and coins from petitioner, as well as a copy of Torra's grand jury testimony. The Court noted that the discrepancy between Torra's grand jury and trial testimony was a credibility issue, which petitioner's counsel did attack, and is not evidence of prosecutorial fraud. Id. at A-61.
Petitioner filed an application for a writ of error coram nobis alleging ineffective assistance of appellate counsel. The application was denied by the Appellate Division, Third Department, on December 15, 1995. See Pet'r's Ex. A, at A-64.
Petitioner raises three claims in the instant application for habeas corpus relief. Petitioner alleges that: (1) the evidence adduced at trial was insufficient to support the verdicts; (2) the indictment was based upon defective grand jury proceedings and should have been dismissed; and, (3) the prosecutor's failure to produce a witness referred to extensively in his opening statement unduly prejudiced petitioner and denied him a fair trial.
Respondent seeks dismissal of the petition on the grounds that it is barred by the applicable statute of limitations. Alternatively, respondent submits that petitioner failed to satisfy the standard set forth in 28 U.S.C. § 2254(d). Respondent submits that: a) the evidence adduced at trial was sufficient to sustain the verdicts; b) the grand jury claim raised in Ground Two is not cognizable for federal habeas corpus review; and, c) petitioner procedurally defaulted on the claim raised in Ground Three, which in any event, fails to state a claim upon which habeas corpus relief may be granted.
This section provides as follows:
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 proceeding 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.
This court finds that petitioner's application is not barred by the applicable statute of limitations, but for the following reasons agrees with the respondent and recommends that the petition be denied and dismissed.
1. Facts
Petitioner's conviction resulted from his involvement in the burglary that took place at his grandparents' home in Colonie, New York, on May 15, 1986. The burglary was carried out by co-defendants Robert Skinner and Keith Snare. During the commission of the crime, petitioner's grandparents, Jake and Dora Cohn, were murdered.
Marjorie Trainosky is petitioner's mother and the victim's daughter. Trainosky was on the phone with her mother, Dora Cohn, when her mother said, "Stop, wait a minute, Jake; stop, Jake, wait a minute, please." (Trial transcript [hereinafter "T."] at 185). Trainosky then heard a lot of noise, including sounds of things "crashing" and a lot of "feet movement." (T. 185). Thinking her father and mother were fighting, Trainosky called the Colonie police department and reported a domestic dispute. (T. 187). Trainosky then called petitioner, and they both went to the Cohn's home. (T. 187, 210-211).
The day after the murders, Trainosky and her brother, Fred Cohn, went to the Cohns' home, and determined that the only items missing were Dora Cohn's pocketbook and a silver metal box, in which Jake Cohn kept his coin collection. (T. 141). Also on May 16, 1986, petitioner called Lieutenant Raymond Krolack to inquire whether the police had found his grandfather's will. Petitioner told Krolack that his grandfather had promised him a lot of money. (T. 341-343).
The police first received information that petitioner was involved in the crime in February of 1990 when convicted felon Fred Paqua informed the Colonie Police that he had some information. Petitioner and Paqua were incarcerated in the same correctional facility. (T. 794, 797). Paqua told the police that petitioner had been very upset on February 14, 1990 (T. 797), and confided in Paqua that his grandparents had been killed during a burglary that "went bad." Petitioner told Paqua that it was not supposed to have happened that way, and that he (petitioner) had told the others "plenty of times" not to hurt his grandparents and that he did not "want nothing to happen to them." (T. 800, 804, 808). Petitioner told Paqua that he knew his grandparents had kept money, and that his grandfather was "good for a couple of thousand." (T. 804). Petitioner lamented his own "big mouth," and complained that he would not have been caught had he not called the police the day after the crime to inquire about his grandfather's will. (T. 806-807). The next day, petitioner warned Paqua that he was not to tell anyone about their conversation. (T. 810).
On March 27, 1990, the Colonie Police received a call about the murders from Mark Torra, an inmate at the Schenectady County jail. (T. 878). Torra told the police that he had planned on participating in the burglary at the Cohn residence, but changed his mind when he learned that co-defendant Skinner was going to bring along a gun. (T. 888). Torra testified that several hours after Skinner and Snare left to commit the crime, they returned to Torra's apartment with money and a metal box containing coins. Snare said that "something went wrong" and that "someone got hurt very bad." (T. 882).
Torra testified that petitioner came to his apartment early in the morning the day after the murders, and said to Skinner and Snare, "I can't believe you guys did that shit. It wasn't supposed to happen like that. I can't believe you did this. Why did you have to do it. It didn't have to be done." (T. 892). Torra also testified that several weeks later, petitioner asked him to sell some coins and said "[y]ou know where they came from." (T. 905-906). Torra testified that he sold one coin and gave the money to petitioner (T. 905).
2. Statute of Limitations
On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. The AEDPA provides that an application for a writ of habeas corpus from a person in custody pursuant to a State court judgment must be filed within one year from the latest of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . ." AEDPA § 101, 28 U.S.C. § 2244(d)(1)(A) ("subsection (A)").
However, in Ross v. Artuz, 150 F.3d 97, 101 (2d Cir. 1998), the Second Circuit set forth a bright line rule providing prisoners whose convictions became final prior to the enactment of the AEDPA a one-year period after the effective date of AEDPA in which to file a first § 2254 petition or a first § 2255 motion. Petitioner's conviction became final on September 29, 1994, when he was denied permission to appeal to the New York Court of Appeals, or certainly no later than December 29, 1994, which marks the conclusion of the ninety days during which he could have sought certiorari in the United States Supreme Court. See Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997) (citing Rule 13 of the Rules of the Supreme Court of the United States); see also, Figueroa v. Kelly, 1997 WL 833448, at *3 (E.D.N.Y. Dec. 19, 1997). Since petitioner's conviction became final before the effective date of the AEDPA, he was statutorily accorded until April 24, 1997, to file his habeas corpus petition. Ross, 150 F.3d at 103. Petitioner's application was filed on March 21, 1997, and was thus timely.
In Ross, the Court concluded that
[. . .] in light of the importance of the subject matter of habeas petitions and § 2255 motions, the grace period should be clear; and in light of Congress' selection of one year as the limitations period, we conclude that prisoners should have been accorded a period of one year after the effective date of AEDPA in which to file a first § 2254 petition or a first § 2255 motion.150 F.3d at 103.
3. Proof Beyond a Reasonable Doubt
In Ground One, petitioner contends that the evidence presented by the People was insufficient to establish his guilt beyond a reasonable doubt. On habeas corpus review, a state verdict must be upheld if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Wright v. West, 505 U.S. 277, 283, 112 S.Ct. 2482, 2485, 120 L.Ed.2d 225 (1992); Green v. Abrams, 984 F.2d 41, 44 (2d Cir. 1993).
The Appellate Division, Third Department, held that the evidence was legally sufficient, finding as follows:
Contrary to defendant's assertions, our review of the record satisfies us that the evidence adduced was legally sufficient to establish each element of the crimes charged and, after considering the probative force of the testimony and the varying inferences that could be drawn therefrom, that the verdict was not against the weight of the evidence. (People v. Bleakley, 69 N.Y.2d 490, 495, 508 N.E.2d 672, 515 N.Y.S.2d 761 (1987)). Mariani, 203 A.D.2d at 718-719, 610 N.Y.S.2d at 970.
Petitioner claims that the prosecution: a) failed to corroborate the testimony of Mark Torra with evidence tending to connect petitioner with the commission of the charged offenses; and, b) failed to prove that petitioner acted with the mental culpability required for the commission of the burglary, and in furtherance thereof, solicited, requested, commanded, importuned or intentionally aided his co-defendants to engage in such activity.
a). Corroboration of Torra's Testimony
A federal court may entertain a habeas petition only to the extent that it alleges custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Thus, claims based on violations of state law are not generally cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 479, 116 L.Ed.2d 385 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)) (additional citation omitted); Hameed v. Jones, 750 F.2d 154, 160 (2d Cir. 1984).
Petitioner's claim that the accomplice testimony was not sufficiently corroborated alleges purely a matter of state law, and is thus not cognizable on federal habeas corpus review. See Lewis, 497 U.S. at 780; Estelle, 502 U.S. at 67. The Federal Constitution does not prohibit the conviction of a defendant based on the uncorroborated testimony of an accomplice, if the accomplice's testimony is credible. See e.g., Gaiter v. Lord, 917 F. Supp. 145, 150 (E.D.N.Y. 1996); Perez v. Metz, 459 F. Supp. 1131 (S.D.N.Y. 1977), aff'd without op. sub. nom Perez v. Harris, 603 F.2d 214 (2d Cir. 1979). In any event, the record reveals that Mark Torra's testimony was corroborated by the testimony of Fred Paqua, and Frederick Cohn, who testified that his father's metal box containing rare coins was missing (T. 141). See Mariani, 203 A.D.2d at 718, 610 N.Y.S.2d at 970.
New York Criminal Procedure Law § 60.22(1) provides as follows:
1. A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.
2. An "accomplice" means a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in:
(a) The offense charged; or
(b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.
b). Sufficiency of the Evidence
Petitioner submits that the prosecution failed to prove that he acted with the mental culpability required for the commission of the burglary, and that in furtherance thereof, solicited, requested, commanded, importuned or intentionally aided Skinner and Snare. This court does not agree.
On direct appeal, petitioner urged that he could not be held liable through accessorial conduct because the evidence demonstrated, at best, that he had knowledge that the burglary was to take place, but not that he solicited, requested or aided Skinner and Snare in committing the crime. See Mariani, 203 A.D.2d at 717, 610 N.Y.S.2d at 969. The Appellate Court held that although the statements attributable to petitioner, as testified to by Paqua and Torra, did not per se demonstrate that he assisted Skinner and Snare in the burglary of his grandparents' home, it is clearly inferable that he did so, thus presenting a question of fact for the jury to determine. (citation omitted). Indeed, it is axiomatic that where competing inferences may be drawn from the evidence, so long as they are not unreasonable, they are within the exclusive domain of the finders of fact. (citation omitted). Mariani, 203 A.D.2d at 718, 610 N.Y.S.2d at 969.
New York law provides that a person can be held liable for the criminal conduct of another person when, "acting with the mental culpability required for the commission [of the conduct which constitutes an offense], he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct." N.Y. Penal Law § 20.00. In rendering their verdict in the instant case, the jury necessarily credited the testimony of Fred Paqua and Mark Torra.
On habeas corpus review, a state verdict must be upheld if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Wright, 505 U.S. at 283; Green v. Abrams, 984 F.2d 41, 44 (2d Cir. 1993). The habeas court does not weigh the evidence nor determine the credibility of witnesses. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (citing United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993). It is up to the jury to determine the credibility of a witness, and the court must defer to the jury's decision to believe or disbelieve a witness' testimony. See United States v. Khan, 53 F.3d 507, 514 (2d Cir. 1995); see also, Williams v. McCoy, 7 F. Supp.2d 214 (E.D.N.Y. 1998).
Crediting the People's witnesses, the jury could reasonably have inferred that petitioner was involved in planning the burglary. Torra testified that early in the morning the day after the crime was committed, petitioner came to Torra's apartment and said to Skinner and Snare, "I can't believe you guys did that shit. It wasn't supposed to happen like that. I can't believe you did this. Why did you have to do it? It didn't have to be done." (T. 892). Furthermore, the jury could infer petitioner was involved in the burglary and received proceeds from the crime if it credited Torra's testimony that petitioner asked Torra several weeks after the crime to sell coins, at which time he stated that Torra "[knew] where they came from" (T. 905-906).
In conjunction with Paqua's testimony that petitioner told him that his grandparents died in a burglary that went bad, that it was not supposed to happen that way, that he knew his grandfather had kept money and that he had told the others not to hurt his grandparents (T. 800, 808), this court finds that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that petitioner acted with the mental culpability required for the commission of burglary, and that he either solicited, requested, commanded, importuned or intentionally aided another to commit the crime of burglary.
Therefore, this court recommends that Ground One of the petition should be denied and dismissed.
4. Grand Jury Proceedings
In Ground Two, petitioner submits that he was denied due process of law as a result of grand jury improprieties, consisting of the introduction of perjured testimony and testimony regarding uncharged crimes.
The Appellate Division noted that there was no allegation that the prosecutor knowingly introduced perjured testimony. The court held that the testimony of Danielle Van Wagner, which implicated Skinner, and of Janice Miller, which pertained to an unrelated burglary that allegedly involved petitioner, "can hardly be considered of such import as to have materially influenced the grand jury." Mariani, 203 A.D.2d at 719, 610 N.Y.S.2d at 969. At the grand jury proceedings, David Coons testified regarding incriminating conversations he had with petitioner while they were both incarcerated at the Schenectady County jail. Coons also testified about an incriminating conversation that he had with Robert Skinner, which implicated petitioner. The prosecutor withdrew Coons as a trial witness when he learned that Coons was incarcerated at the time of the alleged conversation with Skinner, and thus, it could not have taken place at the time and location testified to by Coons. See Mariani, 203 A.D.2d at 719, 610 N.Y.S.2d at 969. The Appellate Division held as follows:
Because Coons did not testify at trial, it is impossible to determine from the record before us whether Coons actually lied. In any event, we note that there was ample additional evidence before the Grand Jury to support the elements of the crimes charged (see, People v. Goetz, 68 N.Y.2d 96, 497 N.E.2d 41, 117, 506 N.Y.S.2d 18 (1986)). We have considered defendant's other contentions regarding the Grand Jury proceedings and find them to be without merit.
Mariani, 203 A.D.2d at 719, 610 N.Y.S.2d at 970.
Petitioner's contentions of improprieties in the grand jury proceedings are not cognizable for federal habeas corpus review. See e.g., United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986); Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). In Mechanik, the Supreme Court held that:
the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.
Mechanik, 475 U.S. at 70, 106 S.Ct at 942.
The Second Circuit has held that this reasoning is applicable to collateral federal court claims concerning state grand jury proceedings. See Lopez, 865 F.2d at 32 ("If federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in federal court").
In Lopez, 865 F.2d at 32, the petitioner's claims of impropriety before the grand jury concerned the sufficiency of the evidence, a failure to develop exculpatory evidence by the prosecutor, the presentation of prejudicial evidence and error in explaining the law. The Court held that each impropriety was cured in the jury trial which resulted in the petitioner's conviction, and as such, any error before the grand jury was harmless.
This court finds that any improprieties that occurred in the grand jury proceedings in petitioner's case were cured by the petit jury's guilty verdict. As such, this court recommends that Ground Two of the petition be denied and dismissed.
Relying on United States v. Basurto, 497 F.2d 781 (9th Cir. 1974), petitioner asserts that the indictment should be dismissed because the prosecutor introduced perjured testimony. In Basurto, 497 F.2d at 785, it was held that "the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached." However, petitioner concedes that there is no indication that the prosecutor knew the evidence was perjured at the time it was introduced. See Pet'r's Supporting Br. at 32-33. Indeed, the Appellate Division noted that it is possible that Coons did not actually perjure himself, but was mistaken as to when the conversation with Skinner occurred. Mariani, 203 A.D.2d at 719, 610 N.Y.S.2d at 970.
5. Procedural Default
In Ground Three, petitioner claims that he was deprived of a fair trial as a result of the prosecutor's failure to call David Coons as a witness, especially since the prosecutor referred to Coons' anticipated testimony in his opening statement. The Appellate Division held that the issue was not preserved for appellate review since petitioner did not request a mistrial. Mariani, 203 A.D.2d at 720, 610 N.Y.S.2d at 970. The Appellate Division alternatively considered the merits of petitioner's claim, and held that petitioner suffered no undue prejudice. Id.
In his opening, the prosecutor stated that David Coons would testify that he spoke to Jimmy Mariani [petitioner] about burglarizing his grandparents' house. He spoke to him about the money that was kept in the silver box; that Jimmy Mariani wanted to recruit someone to rip off his grandparents; that he didn't actually want to go and do the deed. But that he would get part of the proceeds. (T. 95-96).
The Appellate Division held as follows:
Initially, we note that defendant did not request a mistrial and thus has not preserved the issue for our review. (citations omitted). In any event, it is well known that prosecutors make representations in opening statements that later are incapable of proof and in the absence of bad faith or undue prejudice, they will not result in reversible error. (citation omitted). Here, Supreme Court properly instructed the jury that the comments of the attorneys were not evidence, and although Coons was supposed to testify concerning defendant's admission to him regarding his involvement in the burglary, Paqua's testimony served to fulfill that purpose. Accordingly, we do not perceive any undue prejudice to defendant.
Mariani, 203 A.D.2d at 720; 610 N.Y.S.2d at 970.
Federal habeas review is barred where a state court has rejected federal claims as defaulted pursuant to an independent and adequate state procedural rule. If the last state court to render a judgment on the issue "clearly and expressly" stated that its judgment rested on a state procedural bar, federal habeas review is barred. Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). The outcome is not affected by the fact that the court alternatively ruled on the merits of petitioner's claim. "[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); see also, Glenn, 98 F.3d at 722-724; Arce v. Smith, 889 F.2d 1271, 1273 (2d Cir. 1989).
Federal habeas review is not barred when a petitioner can demonstrate cause for the default and actual prejudice resulting from the alleged violation of federal law, Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991), or establish that he is "probably . . . actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). Petitioner has not attempted to establish cause for the procedural default, thus the Court need not decide whether he suffered actual prejudice. See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985). Since the record does not suggest that he is actually innocent, this court recommends that Ground Three be dismissed.
Rather, petitioner insists that the Appellate Division did not clearly and expressly rely on a state procedural bar because the Court "note[d] that the defendant did not request a mistrial and thus has not preserved the issue for our review." See Memorandum of law (Dkt. No. 15), at 12 (quoting Mariani, 203 A.D.2d at 719-720, 610 N.Y.S.2d at 970) (emphasis added). In support of his argument that the court's "mere notation" of a procedural default does not constitute a clear and express holding of default, petitioner cites Ramirez v. Leonardo, 764 F. Supp. 762, 764 (E.D.N.Y. 1991). However, the Second Circuit has made clear that federal habeas corpus review is foreclosed when the state courts have addressed both the procedural bar and alternatively ruled on the merits. See Velasquez, 898 F.2d at 9. The case currently before the court is not comparable to situations in which the Appellate Division holds a claim "either unpreserved or without merit," language which the Second Circuit has found too ambiguous to preclude habeas review. See e.g., Cruz v. Greiner, 1999 WL 1043961, at *13 (S.D.N.Y. Nov. 17, 1999) (citing Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998). In the instant case, the Court noted there had been no objection, and found the issue to be unpreserved. The use of the phrase "in any event" shows that the Appellate Court found the claims unpreserved, yet was alternativelynaddressing the merits.
Even if this court were to address the merits of petitioner's claim, petitioner would not be entitled to habeas corpus relief. A federal court's review of a prosecutor's action on habeas corpus is very limited. To obtain relief, a habeas petitioner must show that 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 v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). Petitioner must prove that he suffered actual prejudice such that the prosecutor's misconduct "had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). The allegedly improper conduct must be reviewed within the context of the entire trial to determine whether it amounted to "prejudicial error." Strouse v. Leonardo, 928 F.2d 548, 557 (2d Cir. 1991). The court must consider "the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct." United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990).
This court finds that the prosecutor's reference to Coons' anticipated testimony in his opening statement did not have a substantial and injurious effect or influence in determining the jury's verdict. The court instructed the jurors that the attorney's comments did not constitute evidence (T.1109) and that they were to decide the case exclusively on the basis of admissible evidence (T. 1211-1212). Furthermore, Paqua's testimony provided evidence that petitioner was involved in planning the burglary. Thus, in light of the totality of evidence, any harm or prejudicial impact from the prosecutor's reference to Coons in his opening statement was insignificant and did not deprive petitioner of a fair trial.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN (10) DAYS within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.