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rejecting similar argument on habeas review where "the jury instruction did not misstate state law"
Summary of this case from Newton v. KeiserOpinion
01 Civ. 2916 (GWG)
August 15, 2002
Calvin McRae, Pro Se, Green Haven Correctional Facility, Stormville, New York, Petitioner.
Robin A. Forshaw, Assistant Solicitor General, Attorney General of the State of New York, New York, New York, For Respondent.
OPINION AND ORDER
I. BACKGROUND
A. Procedural History
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 brought by Calvin McRae, proceeding pro se. The parties have consented to the disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
McRae seeks to set aside a judgment of conviction issued on October 20, 1997, following a jury trial, by the Supreme Court, New York County. McRae was convicted of six counts of Robbery in the First Degree and four counts of Criminal Possession of a Weapon in the Fourth Degree. McRae was sentenced, as a second violent felony offender, to an aggregate term of 45 years imprisonment. McRae is currently incarcerated at the Green Haven Correctional Facility in Stormville, New York pursuant to the judgment of conviction.
B. Evidence at Trial
The evidence presented at trial consisted of the testimony of three eyewitnesses, Dennis Wierl, Jennifer Norden, and Simone White, each of whom testified as the sole witness to each of the three robberies for which McRae was convicted. Three police officer witnesses also testified.
1. Dennis Wierl
Dennis Wierl testified that on February 28, 1997, at about 10:30 p.m., he was in his second floor office located at 152 West 25th Street. (Wierl: Tr. 165, 170). The building did not have a doorman or a camera in the lobby. (Wierl: Tr. 167). He took the elevator to the lobby and saw a man standing near the elevator. (Wierl: Tr. 173). The man pulled a knife out of his coat pocket and told Wierl to get back on the elevator and to give him his money. (Wierl: Tr. 174 75). The man held the knife as Wierl got back on the elevator and gave the robber some money. (Wierl: Tr. 176-78). He asked Wierl if he had a car and Wierl told him that he did not. (Wierl: Tr. 178). The robber then told him to go back up on the elevator. (Wierl: Tr. 178). After Wierl told the robber that the elevator had to be unlocked in order to operate, the robber asked for Wierl's keys to unlock the elevator, unlocked the elevator and gave Wierl back his keys. (Wierl: Tr. 179). Wierl went back to the second floor, called 911, and described the robber as a six-foot tall black man of medium complexion and build, wearing jeans and a tan jacket. (Wierl: Tr. 179-81). Wierl viewed a suspect detained nearby (Wierl: Tr. 183) and looked at about a hundred mug shots, but did not identify the robber. (Wierl: Tr. 185). On March 19, 1997, Wierl viewed a line-up and identified McRae. (Wierl: Tr. 187-89). He also identified McRae in court. (Wierl: Tr. 175).
On May 11, 1997, Wierl received a phone call and a male voice asked if he was the person who had been mugged. (Wierl: Tr. 190-91). The caller identified himself as a "friend" of the mugger and told Wierl that he knew where he lived and, if he was smart, he would "let this thing go." (Wierl: Tr. 191). Wierl's phone records showed that a call had been placed to Wierl's phone on May 11, 1997, from a pay phone at Rikers Island. (Stipulation: Tr. 212-13). New York City Department of Corrections inmate records showed that someone using McRae's personal identification number had placed a call on May 11, 1997, to Wierl's phone number. (Stipulation: Tr. 214-16).
2. Jennifer Norden
Jennifer Norden testified that on March 1, 1997, she and her boyfriend were returning to his apartment on West 24th Street after seeing a late afternoon movie. (Norden: Tr. 218, 221). As they entered the building, they passed a man who had gotten off the elevator. (Norden: Tr. 222). The man turned and followed them and as they got on the elevator held the door open with his foot and demanded their money. (Norden: Tr. 222). The man held a knife in one hand and a screwdriver in the other hand. (Norden: Tr. 222). After Norden and her boyfriend gave the man some money, he asked Norden for her rings and Norden's boyfriend for his coat. (Norden: Tr. 224-25). The robber also asked Norden's boyfriend if he had a car. (Norden: Tr. 225). The robber then told them to take the elevator back upstairs where Norden's boyfriend called the police. (Norden: Tr. 227). Norden viewed a few hundred mug shots following the robbery, but did not identify any as the perpetrator. (Norden: Tr. 228). Some time later Norden identified McRae after viewing him in a line-up. (Norden: Tr. 229-31). She described the robber at trial as a thin man, about six feet tall, with dark skin, minimal facial hair and almond eyes. (Norden: Tr. 223). She testified that at the time of the robbery, the robber was wearing a three-quarter length beige coat. (Norden: Tr. 232). She also identified McRae as the man who robbed her and testified that People's Exhibit 3 resembled the beige coat the robber wore at the time of the robbery. (Norden: Tr. 232).
3. Simone White
Simone White testified that on March 3, 1997, she was working on the third floor of 29 West 17th Street. (White: Tr. 239, 242). At about 5:00 p.m., she left her office and took the elevator down to the lobby. (White: Tr. 242). When the door to the elevator opened, a man blocked her exit by putting his foot in the elevator door, showed her a knife, and demanded her money and jewelry. (White: Tr. 243-44). At trial, she described the robber as a dark-skinned black man about six feet tall, thin, with a goatee who was wearing dark clothes and a dark jacket. (White: Tr. 245, 248). After Norden gave the robber money, he pulled the collar of her shirt and pushed aside her hair to check for jewelry. (White: Tr. 245-46). She was not wearing jewelry. (White: Tr. 246). The robber then told White to go back upstairs and get more money. (White: Tr. 246). White went up in the elevator and called the police, providing them with the same description that she gave in her court testimony. (White: Tr. 247-48). She viewed a couple hundred mugshots as well as two suspects who had been stopped near the scene, but she did not identify either the suspects or any of the mug shots as the robber. (White: Tr. 249-50).
On March 19, 1997, at about 1:00 p.m., White left her office building at 29 West 17th Street to run an errand when she saw the robber across the street. (White: Tr. 251-52). She crossed the street to get a better look and came within 10 feet of the robber. (White: Tr. 252-53). White went back to her office and called 911. (White: Tr. 253). As she looked out the window she gave a description to the police. (White: Tr. 254). She went down to the street and met with a police officer. (White: Tr. 256-57). She told him that she did not want the robber to see her so the police officer took her to an ice cream truck on 5th Avenue and 17th Street in order to view the suspect. (White: Tr. 257). She identified McRae, who at this time had been handcuffed by police, as the man who had robbed her. (White: Tr. 257, 263, 265).
4. Police Officer Witnesses
At trial, Police Officer Brian Bartlett testified as to the apprehension of McRae, and the circumstances of White's identification of McRae from the ice cream truck. (Bartlett: Tr. 271-85). Detective Michael Hanratty testified as to the circumstances of the line-up identification of McRae by Wierl. (Hanratty: Tr. 292-302). Detective Joseph DiPaolo testified as to the circumstances of the line-up identification of McRae by Norden. (DiPaolo: Tr. 307-13).
C. The Summation and Jury Charge
A charge conference was held on September 21, 1997. At that time, defense counsel requested that the trial court instruct the jury that the trial consisted of three separate cases and that each case was a one-witness identification case. (Tr. 318). The prosecution stated that it had no objection to that charge. (Tr. 318). On the next trial date, however, the trial court stated that the prosecutor "left a voice message on my machine over the weekend, and he indicates that he feels that I should charge the identification charge which does not say that this is the only evidence in the case against Mr. McRae." (Tr. 327-28). The court explained that "I think [the prosecutor's request] rests, one, on his theory that there's a common scheme or plan here, a modus operandi and also as to Mr. Wierl, more specifically, that the evidence, the direct evidence of the phone conversation, is other evidence that could be used by the jury in determining whether or not your client committed that particular crime." (Tr. 328).
The court then suggested to the attorneys two potential jury charges regarding identification evidence. (Tr. 329). The first charge was as follows:
[The charge] says so and so testified that the defendant is the perpetrator or the right man. This is the only evidence — — apart from his testimony, that defendant is the right man. There's no other evidence whatsoever that identifies the defendant as the perpetrator. In such a case the law requires that the jury be satisfied that identification testimony by — — the name of the witness, is as certain as human recollection permits under the most favorable circumstances.
(Tr. 329). The second charge was then read by the trial judge:
In this case, part of the evidence which was offered to establish that the defendant, Mr. McRae, is the right man, that is, the actual perpetrator of the crime, was the testimony of "Blank." He testified that the defendant is the person who committed the crime.
In addition to "Blank's" testimony, the People have offered other evidence which they contend also serves to establish that the defendant is the actual perpetrator. And then it goes on to say you have to look at all the circumstances surrounding it, etc, etc."
(Tr. 329-30).
Defense counsel stated that he "would prefer the [first] one, and not seek to do the second one" because "the incident, [was not] so unique to warrant the. . . change in the charge." (Tr. 330). In response the prosecution argued that the crimes were so similar that a positive identification in one case "could be considered by the jury in their determination of another witness's identification of the defendant." (Tr. 331). The prosecution further argued that if the jury found McRae guilty of robbery based on Wierl's identification, coupled with evidence regarding the telephonic threat made to Wierl, this could be considered evidence that McRae was the perpetrator of the other two robberies. (Tr. 332). The prosecution argued that the crimes were similar based on the time, place and manner of the commission of the crime, as well as by the nearly identical descriptions of the attacker by each victim. (Tr. 332-33). The prosecution stated that he intended to argue to the jury during summation that "if the jury were to find that Mr. Wierl's identification, coupled with the evidence of the threats, was proof beyond a reasonable doubt that he was the perpetrator of the robbery. . . that [the jury] could consider that as to the question of whether or not he's the perpetrator of the other two robberies." (Tr. 332- 33).
The trial court ruled that [the prosecution] is entitled to the charge which includes the fact that there's other evidence, at least as to Dennis Wierl, and I'll add that to the charge. And I believe that, at least based on this case, it would look like you can make some argument. I would just warn you not to go overboard in that regard, inasmuch as the People still have the burden on each count.
They still have the burden to show that this is the defendant on each count. And I think it's wise to proceed, to the extent that you can, in that fashion, because I don't want any thought on the jury's part that somehow the burden is depleted or the need to prove the identification is in any way less because there's more than one incident here.
(Tr. 336). The court asked both counsel if "either of you have anything else on the charge," (Tr. 336), and both the prosecution and McRae's defense counsel answered "No, judge." (Tr. 336).
On summation, after separately addressing each incident and each eyewitness' testimony, (Tr. 353-70), the prosecution argued that the
evidence shows you beyond a reasonable doubt that Calvin McRae robbed Dennis Wierl. Therefore, he is the robber. He robbed Jennifer Norden, he robbed David Hodge, he robbed Simone White. The robber was the same person. Look at these similarities. Detective Hanratty told you why they classify these things as patterns, because it's exactly the same. Friday night, Saturday night, Monday night. Where's your car? What kind of car do you have? Give me your money and your jewelry. Always with a knife. It's always in an elevator. It's always in a building where there's no one else around. The robber is right handed. In 2 instances he's wearing a tan jacket and a goatee. In every case the robber sends the victims back up in the elevator, telling them, go get more. And while they ride back up in the elevator, he's gone. . . . They all occur in the same neighborhood, and they all occur at night. And every single victim gives the exact same description of the man who robbed them. The robberies were committed by one person, and he's right here, in this courtroom."
(Tr. 373-74). On the identification issue, the trial court ultimately gave the following charge to the jury:
Under our law, the identification of an accused by a single witness as the one involved in the commission of a crime is, in and of itself, sufficient to justify a conviction of such person, provided of course that you are satisfied beyond a reasonable doubt of the identity of the accused as the one who committed the crime.
The People must therefore convince you beyond a reasonable doubt on each count of the indictment independently that the defendant was the person who committed that crime. If you are not convinced beyond a reasonable doubt that the defendant Calvin McRae was the person who committed the crime charged in any of the counts of the indictment, you must find him not guilty as to that count.
The law requires that the jury be satisfied that the identification testimony of each complainant on each count of the indictment is as certain as human recollection permits. In addition to these identifications, or the identification testimony, the People have offered other evidence, particularly the testimony of Dennis Wierl, which the People contend tends to connect the defendant with the commission of the crimes charged herein.
(Tr. 389-90).
Following the charge, the judge called counsel up to the bench and asked if either had "any exception." Defense counsel replied "no." (Tr. 403).
D. State Court Review
McRae appealed his conviction to the Appellate Division, First Department, see Brief for Defendant-Appellant, filed December 21, 1999 (hereinafter "Def. Br.") reproduced in Exhibit A to Respondent's Declaration, dated August 28, 2001 ("Resp. Decl."), raising the following arguments:
Point I: Where the evidence did not establish a unique modus operandi, [McRae] was denied a fair trial when the prosecutor argued, and the court instructed, that the jury could commingle the evidence for all three robberies. U.S. Const. Amend. XIV; N.Y. Const., Art I., § 6;
Point II: In a case that hinged on the jury's evaluation of the identification evidence, the cumulative impact of improper evidence bolstering the reliability of the complainant's identifications, including (a) testimony by the officer that appellant was arrested after one complainant's identification, and repetition of two additional complainants' lineup identifications, and (b) the introduction of irrelevant negative identification evidence, denied appellant his due process right to a fair trial. U.S. Const. Amends. VI, XIV; N.Y. Const., Art. I, § 6.
Appellant's Brief at 16, 25 (capitalization omitted). The respondent filed a brief in opposition to McRae's appeal. See Brief for Respondent ("Resp. Br."), dated August 2, 2000, reproduced in Exhibit A to Resp. Decl.
The First Department affirmed McRae's conviction on October 17, 2000. People v. McRae, 276 A.D.2d 332 (1st Dep't 2000). The court rejected McRae's claim regarding the allegedly improper prosecution summation on the merits, stating that "[s]ince the various robberies of which defendant was convicted shared sufficiently distinctive circumstances so that the over-all pattern tended to prove that the same person committed all of the crimes, the prosecutor was properly permitted to make such an argument in summation." Id. at 332-33 (citations omitted). The court went on to reject McRae's "remaining contentions [as] unpreserved" and declined to review them in the "interest of justice," noting that even if the court had reviewed such claims, "[it] would reject them." Id. at 333. By letter dated October 24, 2000, McRae sought leave to appeal to the New York Court of Appeals, raising the same claims that he raised to the Appellate Division. See Affirmation of Robin A. Forshaw, dated August 29, 2001 ("Resp. Aff".), ¶ 15. The Court of Appeals denied his application for leave to appeal on December 29., 2000. People v. McRae, 95 N.Y.2d 966 (2000).
E. The Present Petition
McRae's pro se petition is dated February 23, 2001, was received by the Pro Se Office of this Court on March 6, 2001 and was filed on April 6, 2001. In the section of the form petition that required McRae to "state every ground on which you claim that you are being held unlawfully . . .," McRae wrote "See the Brief" and attached a copy of his Appellate Division brief. See Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody ("Petition"), ¶ 13. Accordingly, this Court will refer to McRae's first claim brought on direct appeal to the First Department as Ground One of his Petition and to his second claim as Ground Two.
II. APPLICABLE LEGAL PRINCIPLES
A. The Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254
Under 28 U.S.C. § 2254(a),
The Supreme Court, a Justice thereof a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
Errors of state law are not subject to federal habeas review See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). Rather, petitioners must demonstrate that their convictions resulted from a state court decision that violated federal law. See, e.g., id. at 68. Petitioners bear the burden of proving such violations of federal law by a preponderance of the evidence. See, e.g., Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
B. The Exhaustion Requirement
Before a federal court may determine the merits of a habeas corpus claim, petitioners are required first to exhaust their available state court remedies. See 28 U.S.C. § 2254(b)(1)(A) ("[a]n 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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ."); accord Dave v. Attorney General, 696 F.2d 186, 190 (2d Cir. 1982), cert. denied, 464 U.S. 1048 (1984). In order for a claim to be exhausted, a petitioner is required to have presented any claim in the habeas petition to each level of the state courts to which the right to appeal lies. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Daye, 696 F.2d at 191. Petitioners must also have fairly presented the constitutional nature of their claim to the state courts. Daye, 696 F.2d at 191. Petitioners may "fairly present" their federal claims in state court by, inter alia, presenting explicit constitutional arguments, relying on federal and state cases that employ a constitutional analysis, asserting claims in such a way as to call to mind a specific right protected by the Constitution or alleging facts that fall within the mainstream of constitutional analysis. Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 106 (1997) (citations omitted); Dave, 696 F.2d at 193-94. Even "a minimal reference to the Fourteenth Amendment satisfies the exhaustion requirement." Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (citation to the Fourteenth Amendment in a point heading of petitioner's brief exhausts claim for habeas review purposes) (citations omitted).
C. Procedural Default
Where a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision that will "bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations and internal quotations omitted); accord Coleman v. Thompson, 501 U.S. 722, 750 (1991); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). To show a "fundamental miscarriage of justice" requires a demonstration of "actual innocence." See, e.g., Calderon v. Thompson, 523 U.S. 538, 559 (1998). Although procedurally defaulted claims are deemed to be exhausted for habeas corpus purposes, they are not subject to review by the federal court. See, e.g., Bossett, 41 F.3d at 829. "[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris, 489 U.S. at 264 n. 10. The doctrine applies even where the State court issues an alternative holding that addresses the procedurally defaulted claim on the merits. See, e.g., Velasquez v. Leonardo, 898 F.2d 7,9 (2d Cir. 1990).
III. ANALYSIS OF GROUND ONE OF THE PETITION
A. Exhaustion
As previously noted, McRae set forth both grounds of his habeas petition by incorporating his Appellate Division brief by reference. See Petition, ¶ 13. Thus, Ground One of the petition was presented to the Appellate Division. See Def. Br. at 16-24. In addition, McRae presented this claim to the New York Court of Appeals. See Resp. Aff., ¶ 15. Accordingly, McRae has fulfilled the requirement that Ground One of his habeas petition be presented to each level of the state courts. See, e.g., Duncan v. Henry, 513 U.S. at 365-66; Picard, 404 U.S. at 276; Dave, 696 F.2d at 191. McRae also "fairly presented" Ground One as a federal claim to the state courts. See Levine, 44 F.3d at 121. While he did not cite to any federal case law, he did make specific reference to "due process" and to his right to a "fair trial" and cited to the 14th Amendment under the United States Constitution. See Def. Br. at 16, 17, 24. Such references are more than "minimal" and thus satisfy the requirement that the State court be alerted to the federal nature of McRae's claim Reid, 61 F.2d at 376.
B. Procedural Default and/or Merits
McRae's Ground One claim actually consists of two separate claims: (1) that McRae was denied his right to due process because "the prosecutor [was allowed] to argu[e] on summation that the similarity of the crimes established the identity of the robber as the same person," see Def. Br. at 17; and (2) that the trial court issued an improper "modus operandi" charge to the jury, which "permitted the jury to consider the evidence in one of the cases as proof of guilt on the other cases." Def. Br. at 17. Each is addressed separately.
1. Prosecution Summation Claim
a. Standard of Review. The claim regarding the prosecutor's summation was not the subject of any procedural default and thus was decided on the merits by the Appellate Division. Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, federal courts must defer to the state court's determination of a habeas petitioner's federal claims on the merits. A state court ruling is "on the merits" even where the ruling does not discuss the federal claim or any federal law in its opinion adjudicating the state law conviction. See Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) ("Nothing in the phrase "adjudicated on the merits' requires the state court to have explained its reasoning process."). All that is required to trigger the statutory standard of review is the issuance of "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Id. Such was the case here because the Appellate Division decided the substance of McRae's argument concerning the prosecutor's summation. See McRae, 276 A.D.2d at 332-33.
Where, as here, there has been a ruling on the merits, habeas relief may not be granted unless the state court decision was 1) "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or 2) 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).
A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it unreasonably applies a governing legal rule to the particular facts of a case. Id. at 409. Thus, the federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was simply incorrect. Id. at 410.
b. Merits of the Prosecution Summation Claim. To prevail on a claim of prosecutorial misconduct, a defendant 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, 647-48 (1974)). "[A] prosecutor's comments upon summation must "so infect the trial with unfairness as to make the resulting conviction a denial of due process.'" United States v. Coriaty, 2002 WL 1358183, at *9 (2d Cir. June 21, 2002) (quoting Donnelly, 416 U.S. at 643). Even if a prosecutor's remarks are improper, ""constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair.'" Floyd, 907 F.2d at 355 (quoting Garofolo v. Coombe, 804 F.2d 201, 206 (2d also Greer v. Miler, 483 U.S. 756, 765 (1987) (prosecutorial misconduct violates a defendant's due process rights only when it is ""of sufficient significance to result in the denial of a defendant's right to a fair trial'") (quoting United States v. Bagley, 473 U.S. 667, 676 (1985)). Furthermore, the "severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry." Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir.) (citations omitted), cert. denied, 502 U.S. 852 (1991).
With respect to a challenge to "fairness," the Second Circuit has noted that:
habeas petitioners challenging their state convictions under the general "fairness" mandate of the due process clause bear an onerous burden. Because of the significant procedural protection provided by direct review through the state system, we will not lightly conclude that state court proceedings were so arbitrary as to violate due process. See Brecht v. Abrahamson, 507 U.S. 619, ----, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993) (presumption of finality and legality attaches to state criminal proceedings); TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, ----, 113 S.Ct. 2711, 2720, 125 L.Ed.2d 366 (1993) (plurality opinion) ("Assuming that fair procedures were followed, a judgment that is a product of that process is entitled to a strong presumption of validity."). In the absence of some affirmative irregularity in the administration of the criminal law by the state, only in limited circumstances is habeas relief available under the general "fairness" mandate of the Fourteenth Amendment, and even then, only upon clearly defined and narrowly limited grounds.
Herring v. Meachum, 11 F.3d 374, 378-79 (2d Cir. 1993) (some citations omitted), cert. denied, 511 U.S. 1059 (1994).
McRae argues that he was denied due process of law because "the prosecution argued on summation that the similarity of the crimes established the identity of the robber as the same person." Def Br. at 17. In the course of his summation, the prosecutor argued:
[E]vidence shows you beyond a reasonable doubt that Calvin McRae robbed Dennis Wierl. Therefore, he is the robber. He robbed Jennifer Norden, he robbed David Hodge, he robbed Simone White. The robber was the same person. Look at these similarities. Detective Hanratty told you why they classify these things as patterns, because it's exactly the same. Friday night, Saturday night, Monday night. Where's your car? What kind of car do you have? Give me your money and your jewelry. Always with a knife. It's always in an elevator. It's always in a building where there's no one else around. The robber is right handed. In 2 instances he's wearing a tan jacket, and a goatee. In every case the robber sends the victims back up in the elevator, telling them, go get more. And while they ride back up in the elevator, he's gone. . . . They all occur in the same neighborhood, and they all occur at night. And every single victim gives the exact same description of the man who robbed them. The robberies were committed by one person, and he's right here, in this courtroom.
(Tr. 373-74).
These comments did not deprive McRae of his right to due process of law under the Fourteenth Amendment because, far from resulting in a "fundamentally unfair" trial, the comments were not even legally improper. The thrust of the prosecution's argument was that the crimes shared such unusual and common characteristics that they served to identify the defendant in each instance as the perpetrator. Such an argument is permissible under New York law. See, e.g., People v. Rios, 245 A.D.2d 470, 470 (2d Dep't 1997) ("[s]ince the defendant's identity was a primary issue at trial and the three robberies, all sharing the same distinctive modus operandi, were properly joined," the jury may consider evidence of guilt as to one robbery as evidence that the defendant was the perpetrator of the other robberies), appeal denied, 91 N.Y.2d 944 (1998). The prosecutor in his summation accurately laid out these elements, including the fact that each robbery occurred at night and in the same neighborhood; that the robber carried a knife; that the approach to the victim was made in an elevator in a deserted building; that the victim was sent away in the elevator and told to get more money; and that the robber fled while the victim was in the elevator. Because of the distinctiveness of McRae's modus operandi, "it was not improper for the prosecutor to argue that it was likely petitioner who committed all of the crimes." Matthews v. Artuz, 1999 WL 349694, at *5 (S.D.N.Y. May 27, 1999) (finding "nothing improper about the prosecutor's summation" where the prosecution's theory of the case was that petitioner had committed seven robberies and sexual assaults and where "the testimony elicited from each of the victims clearly demonstrated that the circumstances surrounding the crimes were strikingly similar"). Thus, there was nothing "unfair" in the prosecutor making these comments.
In sum, the Appellate Division's conclusion that the prosecutor properly adverted to the similarity of the crimes was not "contrary to, or involv[ed] an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," 28
U.S.C. § 2254(d).
2. Erroneous Jury Instruction Claim
a. Procedural Default. Unlike the prosecution summation claim, the claim that the judge gave an erroneous jury instruction was held to be procedurally barred by the Appellate Division. This is plain from the text of the decision itself, which explicitly discusses merits of the argument challenging the prosecutor's comments on summation but states that the defendant's "remaining" contentions are unpreserved. See McRae, 276 A.D. at 333. The court thus necessarily held that the challenge to the jury instruction was unpreserved.
The Appellate Division's ruling on this score finds a solid basis in the record. Although McRae's defense counsel stated that he "preferred" a charge instructing the jury that the trial involved three separate cases, each one a one-witness identification case, and argued that the crimes were not sufficiently unique to warrant a special modus operandi instruction, see (Tr. 329- 330), McRae's defense counsel failed to object to the charge that was ultimately proposed by the court and given to the jury. Instead, after a discussion of the appropriate charge, and the judge's announcement that he would be giving a charge different from the one requested, the judge asked both counsel "either of you, have anything else on the charge." (Tr. 336). Defense counsel replied "No, judge." (Tr. 336). In addition, following the delivery of the charge, defense counsel made no objection to the charge as given. Defense counsel's conduct thus fails to meet New York State's requirement that an objection be registered "at the time of [the] ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." See New York Criminal Procedure Law § 470.05(2); People v. Hoke, 62 N.Y.2d 1022, 1025 (1984).
Thus, the Appellate Division's reliance on the procedural default constitutes an "adequate and independent state ground" upon which the erroneous jury instruction claim contained in Ground One of McRae's petition was denied. See Wainwright v. Sykes, 433 U.S. 72, 81 (1977); Harris, 489 U.S. at 261-62; Epps v. Comm. of Corr. Servs., 13 F.3d 615, 617 (2d Cir.), cert. denied, 511 U.S. 1023 (1994).
The respondent, however, has not relied on this procedural default in opposing the petition and has instead sought to justify the Appellate Division's decision on the merits. See Resp. Aff. at 19-22. The question thus arises whether this Court should consider the procedural default sua sponte. The Second Circuit has held that a court may in certain circumstances raise a procedural default sua sponte. See Washington v. James, 996 F.2d 1442, 1448 (2d Cir. 1993), cert. denied, 510 U.S. 1078 (1994); see also Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir. 1998) (same for motion under 28 U.S.C. § 2255), cert. denied, 527 U.S. 1012 (1999). In this instance, however, the Court is reluctant to raise the defense on the State's behalf in the absence of affording each side an opportunity to brief both the question of whether the defense should be raised now and the merits of that defense. See Esslinger v. Davis, 44 F.3d 1515, 1528 ) (11th Cir. 1995) ("we think it fundamentally unfair for a court sua sponte to invoke a procedural default without giving the petitioner an opportunity to show cause for the default"). Because the Supreme Court has made clear that a court is not required to raise a procedural default sua sponte, see Trest v. Cain, 522 U.S. 87,89 (1997), the Court declines to do so in this instance.
b. The Merits of the Claim. In considering the merits of the claim, the Court employs the standard of review discussed supra in section III.B.1.a.
As noted, the prosecution argued to the jury that the three crimes were similar because shared a number of distinctive characteristics. After discussions with counsel, the trial judge gave the following identification charge:
Under our law, the identification of an accused by a single witness as the one involved in the commission of a crime is, in and of itself, sufficient to justify a conviction of such person, provided of course that you are satisfied beyond a reasonable doubt of the identity of the accused as the one who committed the crime.
The People must therefore convince you beyond a reasonable doubt on each count of the indictment independently that the defendant was the person who committed that crime. If you are not convinced beyond a reasonable doubt that the defendant Calvin McRae was the person who committed the crime charged in any of the counts of the indictment, you must find him not guilty as to that count.
The law requires that the jury be satisfied that the identification testimony of each complainant on each count of the indictment is as certain as human recollection permits. In addition to these identifications, or the identification testimony, the People have offered other evidence, particularly the testimony of Dennis Wierl, which the People contend tends to connect the defendant with the commission of the crimes charged herein.
(Tr. 389-90).
McRae argues that the jury instruction given by the trial court on the issue of identity violated his rights to "due process" under the Fourteenth Amendment. Def. Br. at 17. McRae's complaint is not that the court gave a modus operandi charge since the court gave no such charge. To the contrary, the judge specifically instructed the jury that the prosecution must "convince you beyond a reasonable doubt on each count of the indictment independently that the defendant was the person who committed that crime." (Tr. 389) (emphasis added). At no time did the court instruct the jury that it might consider evidence of one crime as proof that the defendant was the perpetrator of other crimes. In fact, the instruction given by the trial court provided a great benefit to the defendant by requiring that the identification testimony of each complainant be "as certain as human recollection permits" (Tr. 389) — a charge that is not even required under New York Law. See Aparicio v. Artuz, 269 F.3d 78, 99-100 (2d Cir. 2001).
Rather, McRae's argument is only with respect to the portion of the instruction that noted that "in addition to the identifications," there was other evidence, "particularly the testimony of Dennis Wierl, which the People contend tends to connect the defendant with the commission of the crimes charged herein." (Tr. 389-90). McRae argues that this sentence — presumably through the use of the word "crimes" rather than the word "crime" — "created the possibility that the evidence in Wierl's case was considered by the jury in the other two cases for a purpose other than establishing identity." Appellate Br. at 22.
It is well established that ""in order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.'" Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); see also Donnelly, 416 U.S. at 642-43 (petitioner must establish not merely that instruction was erroneous but that it violated a constitutional right); Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001) ("`[I]t is not the province of a federal habeas court to reexamine state-court determinations of state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.") (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
When a petitioner alleges error in a jury instruction,
"it must be established 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." Cupp v. Naughten, 414 U.S. 141, 146 (1973). The question is not whether the trial court gave a faulty instruction, but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147; see also Estelle, 502 U.S. at 72 (quoting and reaffirming Cupp).
Davis v. Strack, 270 F.3d at 123 (some parallel citations omitted). The reviewing court also must view the instruction in the context of the overall jury charge. Donnelly, 416 U.S. at 645.
Certainly, the jury instruction did not "misstate state law." Blazic, 900 F.2d at 540. Indeed, McRae does not point to any aspect of the charge that misstates State law. In addition, the instruction did not result in any violation of due process. Considered in context, the judge was obviously intending to instruct the jury that — with respect to the Wierl robbery — the prosecution had offered not merely identification evidence but also other evidence (specifically, the telephone call to Wierl from Rikers Island that connected McRae to the robbery). (Stipulation: Tr. 212-16). Because there was virtually no non-identification evidence other than the telephone call to Wierl and the modus operandi evidence, it might have been clearer to specifically marshal this evidence for the jury. But there was no suggestion in the challenged portion of the charge that the evidence in the Wierl case could have been used by the jury for some wholly improper reason such as to show criminal propensity. Rather, the judge's use of the word "connect" (Tr. 390) would have suggested to a jury at most that the evidence in the Wierl case could be used to determine whether the perpetrator of the Wierl robbery was the same as the perpetrator of the other robberies.
Moreover, several other circumstances lead to the conclusion that the jury did not consider the evidence with respect to the Wierl count for any improper purpose. First, the defense's theory of the case revolved exclusively on their contention that defendant was the subject of a mis-identification. (Tr. 341-50). Second, the prosecutor's argument regarding the connection between the crimes related to the identity of the perpetrator. (Tr. 373-74). Third, there was no suggestion anywhere in the prosecutor's summation that the prosecution was relying on McRae's criminal propensity. Finally, the trial judge had specifically stated that the prosecution had to "convince you beyond a reasonable doubt on each count of the indictment independently that the defendant was the person who committed that crime." (Tr. 389) (emphasis added); see also (Tr. 389) (Court instructs jury that if it was "not convinced beyond a reasonable doubt that the defendant Calvin McRae was the person who committed the crime charged in any of the counts of the indictment, you must find him not guilty as to that count") (emphasis added).
Given these circumstances, the challenged sentence of the instruction did not result in a violation of the defendant's due process rights. Certainly, this is not a case where the Appellate Division's decision to uphold the charge represented an "unreasonable application," Williams, 529 U.S. at 409, of the Supreme Court case law requiring that a conviction be overturned where an instruction has "so infected the entire trial that the resulting conviction violat[ed] due process." Henderson v. Kibbe, 431 U.S. 145, 154 (1997) (internal quotation marks and citation omitted). Accordingly, the Court rejects McRae's contention with respect to this claim.
IV. ANALYSIS OF GROUND TWO OF THE PETITION
Ground Two of McRae's Petition is procedurally barred and thus is not subject to federal habeas review. The Appellate Division, after rejecting McRae's claim regarding the alleged improper prosecution summation on the merits, stated that "[d]efendant's remaining contentions are unpreserved and we decline to review them in the interests of justice. Were we to review these claims, we would reject them." McRae, 276 A.D.2d at 333. The "remaining contentions" included those contained in Point II of McRae's brief, Appellate Br. at 25-32, and thus the Appellate Division explicitly found Point II to be procedurally barred. As the People had argued in the Appellate Division, the defendant's contention regarding the admission of witness identification testimony had never been the subject of an objection before the trial court and thus was not preserved under Criminal Procedure Law § 470.05(2). See Resp. Br. at 39.
The Appellate Division's rejection of this claim on state procedural grounds constitutes an "adequate and independent state ground" upon which it rejected the arguments in Ground Two of McRae's petition. See Wainwright, 433 U.S. at 81; Harris, 489 U.S. at 261-62; Epps, 13 F.3d at 617. This result is not changed by the fact that the Appellate Division also rejected the claim in the alternative on the merits. See, e.g., Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996) (claim not subject to habeas review where the state court has explicitly stated that the claim is "not preserved" for appellate review and also finds that "in any event" it is without merit), cert. denied, 520 U.S. 1108 (1997); Velasquez, 898 F.2d at 9 ("federal 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"). As McRae has not demonstrated cause for his procedural default, has not demonstrated prejudice and has not shown that there has been a fundamental miscarriage of justice, see, e.g., Coleman, 501 U.S. at 750, federal review of the merits of Ground Two is foreclosed.
Conclusion
For the foregoing reasons, McRae's petition is denied. Should the petitioner seek to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith.