Opinion
98 Civ. 550 (MGC).
April 2000.
KEVIN R. MAYS, Petitioner, Pro Se, #94-A-4759, Upstate Correctional Facility Malone, NY.
Marisa Rieue, Esq., Assistant Attorney General. DENNIS C. VACCO, Attorney General of the State of New York, Attorney for Respondent, New York, NY.
OPINION
Kevin Mays, a state prisoner, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that he was deprived of his right to a fair trial under the United States Constitution because the trial judge's law secretary read portions of the jury charge when the judge experienced vision problems. Petitioner also alleges that the judge failed to instruct the jury properly in his preliminary instructions not to visit the crime scene. For the reasons discussed below, the petition is denied.
BACKGROUND
MIRIAM GOLDMAN CEDARBAUM, United States District Judge
The trial record establishes the following facts. In the early morning of October 2, 1993, Sherwin Cherry, a toll collector on the Henry Hudson Bridge, was held up at gun point at his toll booth by two men in a car. The driver, whom Cherry later identified as the petitioner, pulled up to the toll booth, pointed a revolver at Cherry and threatened to shoot unless Cherry handed over all of the money in the booth. Cherry gave the driver a stack of bills, including large denomination bills that Cherry had previously marked when they were collected. The car pulled away and Cherry noted the car's make, model, and license plate number. Cherry immediately called his supervisor and reported the robbery.
Two hours after the robbery, police located the car near 219 West 145th Street in Manhattan, the address on the car's registration. While surveilling the area, the police saw two men matching the description provided by Cherry. Police apprehended petitioner and recovered from him the key to the car and money bearing Cherry's markings. The gun used in the crime was later recovered in a search of petitioner's apartment. Cherry positively identified petitioner as the man who committed the robbery.
After a jury trial in the Supreme Court of New York County, petitioner was convicted of robbery in the first degree and robbery in the second degree. He was sentenced, as a persistent violent felony offender, to two concurrent terms of 25 years to life.
In his appeal to the Appellate Division of the Supreme Court of New York, First Department, Mays contended that he was deprived of his right to a fair trial because the trial judge: 1) failed to instruct jurors properly not to investigate on their own the scene of the alleged crime; and 2) improperly delegated a judicial duty by having his law secretary read portions of the charge to the jury. The Appellate Division affirmed petitioner's conviction on the grounds that petitioner had not preserved his objections for appeal and that petitioner's contentions in any event lacked merit. People v. Mays, 232 A.D.2d 332, 649 N.Y.S.2d 409 (1st Dep't 1996). Petitioner was denied leave to appeal his conviction to the New York Court of Appeals. People v. Mays, 89 N.Y.2d 926, 677 N.E.2d 300, 654 N.Y.S.2d 728 (1996).
Petitioner is currently incarcerated in the Upstate Correctional Facility. In this petition, he raises the same claims that he asserted in his appeal to the Appellate Division.
DISCUSSION
I. Statute of Limitations
Respondent argues initially that the petition must be dismissed because it was filed after the expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Absent certain special circumstances, § 2244(d)(1) provides that the limitations period begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Petitioner was convicted on June 16, 1994. He was denied leave to appeal to the New York Court of Appeals on December 19, 1996. Respondent argues that since the petition was not received by the court until January 12, 1998, more than a year later, the petition is time-barred.
However, a conviction does not become final for purposes of determining the starting date of the limitations period under § 2244(d)(1) until ninety days after the defendant has either lost his appeal in the state's highest court or has been denied leave to appeal to that court. Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998); Alexander v. Keane, 991 F. Supp. 329, 333 n. 2 (S.D.N.Y. 1998). Accordingly, the limitations period during which petitioner could file a timely habeas petition began to run on March 18, 1997 and ended one year later on March 17, 1998. It is undisputed that petitioner filed his petition well before that date. The petition was thus timely filed.
II. Delivery of Jury Charge
Before reading the jury charge, the trial judge stated, in the presence of the jury, that he had recently undergone eye surgery and that his law secretary would read parts of the charge when the paper got "a little foggy." (Tr. at 834.) Petitioner argues that he was deprived of his right to a fair trial under the United States Constitution because the law secretary's reading of portions of the charge to the jury effectively resulted in the judge being absent during a critical phase of the trial, even though the judge was present throughout the reading by his law secretary. However, this claim is procedurally barred, and in any event fails to establish a violation of petitioner's federal constitutional rights.
A. Procedural Issues
Petitioner is procedurally barred from pursuing this claim because he failed to object at trial to the manner of delivery of the jury charge. On appeal, the Appellate Division held that petitioner's failure to assert a timely objection at trial waived the objection for purposes of appeal. The New York Court of Appeals denied leave to appeal.
The Supreme Court has held that a criminal defendant forfeits federal habeas review of constitutional claims when he fails to adhere to state rules of procedure governing their presentation, unless he can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).
Petitioner must show cause and prejudice even if the state court ruled alternatively on the merits of the forfeited claim, as is the case here. Phillips v. Smith, 717 F.2d 44, 48 (2d Cir. 1983).
Petitioner may establish cause for a procedural default if he "can show 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, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Petitioner may establish cause by demonstrating the unavailability to counsel of a factual or legal basis for an objection, or by proving "interference by officials" that made compliance impracticable. See id. (quoting Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469 (1953)).
Petitioner alleges that defense counsel was unable to object to the judge's decision to have the law secretary read parts of the charge "out of fear of placing [himself] in the disfavor of the jurors." (Mays Pet. at 13.) This is not an objective factor external to the defense. Petitioner's failure to object was a tactical decision, or, even more likely, a judgment by defense counsel that the objection lacked merit. Moreover, defense counsel could have requested a sidebar conference prior to the reading of the charge to state petitioner's objection outside the jury's presence. At the very least, defense counsel could have stated the objection at the sidebar conference following the reading of the charge when the judge solicited objections to the charge as read. In any event, petitioner has not alleged, and as discussed below, cannot show, actual prejudice, that but for the alleged violation, the outcome of his case would have been different. Accordingly, because petitioner has shown neither cause for his default nor resulting prejudice, he is barred from asserting this claim on federal habeas review.
B. Substantive Issues
Even if petitioner's claim were not procedurally barred, it would nonetheless fail to establish a violation of petitioner's constitutional rights.
The Sixth Amendment to the United States Constitution provides criminal defendants the right to a "speedy and public trial, by an impartial jury of the State." It is well-settled that this right is violated if the tribunal consists of less than "at least one judge and twelve jurors." Freeman v. United States, 227 F. 732, 759-60 (2d Cir. 1915). Petitioner argues that the trial judge's assignment to his law secretary of the reading of portions of the jury charge was an improper delegation of judicial authority that prevented him from receiving a fair trial because the judge was effectively absent during certain portions of the proceedings.
However, the record shows, and petitioner concedes, that the trial judge never left the courtroom while the jury was present. Nor did the judge make himself otherwise unavailable to supervise the proceedings. The judge himself read a substantial portion of the charge. He interjected on numerous occasions to elaborate or clarify certain aspects of the portions of the charge read by the law secretary. The judge answered the jury's questions himself and presided over the reading back of testimony and the production of exhibits. The record establishes that the trial judge never relinquished either his authority or his presence. Accordingly, petitioner has not shown that he was deprived of his constitutional right to have a judge preside over his trial. Compare Riley v. Deeds, 56 F.3d 1117, 1121 (9th Cir. 1995) (reversing conviction where trial judge's law clerk granted jury's request to have testimony read back without consulting the judge and presided over that proceeding without the judge being present).
III. Preliminary Jury Instructions
Petitioner alleges that the trial judge failed to instruct the jury in his preliminary instructions not to visit the scene of the crime and that the instructions given actually encouraged the jurors to do so. This contention lacks merit.
Jury charges in state criminal trials are generally matters of state law that are not subject to federal habeas review without a showing that the alleged errors were so serious as to deprive the defendant of a federal constitutional right. United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974). Furthermore, petitioner must establish "not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Id. at 1359 (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). Thus, the "question is `whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Grey v. Henderson, 788 F. Supp. 683, 693 (E.D.N.Y. 1991) (quoting Cupp, 414 U.S. at 147, 94 S.Ct. at 401).
Petitioner has not shown that the preliminary instructions to the jury deprived him of a constitutional right. He asserts that the judge's preliminary instructions to the jury invited jurors to visit the crime scene and investigate the facts themselves. However, a review of the relevant portion of the instructions shows that the judge in fact discouraged such activity:
I do not prohibit any citizen from going to any place he or she wishes to go in the City of New York. You can do that but throughout the trial don't play detective. You are not here to assist anyone. You are here to determine whether the evidence presented in this Court is sufficient to establish the guilt of the defendant. So don't go out trying to see whether the statement by a witness is true or not on the outside.
(Tr. at 258-59.) These instructions were sufficient to admonish the jurors not to investigate the facts on their own. Moreover, there is no evidence that any member of the jury actually visited the crime scene. Petitioner has thus not shown that the preliminary instructions contained any error, let alone an error of constitutional magnitude.
Although not argued by respondent, this claim is also procedurally barred because petitioner failed to object to the instructions at trial and has shown neither cause for his default nor prejudice from the alleged error. See Part II-A, supra.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is denied. Because petitioner has not made a showing of the denial of a constitutional right, a certificate of appealability will not issue.SO ORDERED.