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finding no misconduct where, inter alia, "[t]he prosecutor's statements were brief and not a significant part of the State's argument or summation"
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No. 03 CIV. 8580 (DLC).
February 7, 2006
OPINION AND ORDER
This Opinion considers petitioner Darren Miller's ("Miller") motion for reconsideration, timely filed on September 13, 2005. On September 13, this Court's Pro Se Office received several submissions from Miller: a notice of appeal, a motion to extend his time for appeal in the event the notice was not timely received, and an affidavit in support of a motion for an order for a "New trial or [to] Amend the judgement [sic]." Several exhibits to the affidavit argued that this Court's August 3, 2005 Opinion ("August 3 Opinion"), which adopted Magistrate Judge Kevin N. Fox's Report and Recommendation ("Report") and denied petitioner's habeas corpus petition, was wrongly decided. The Pro Se Office provided these documents to this Court on October 27, for assistance in assessing petitioner's purpose. An Order of November 1, 2005 ("November 1 Order") stated that petitioner's submissions would be deemed to be filed in support of his pending notice of appeal unless the petitioner informed the Court by November 18 that he intended instead to move for reconsideration of the August 3 Opinion. The November 1 Order also directed petitioner to be cognizant that, while his notice of appeal was timely, it appeared that any motion for reconsideration would be untimely. In a letter of November 7, 2005, petitioner informed the Court that the documents originally submitted were intended "as a supplement to my notice of appeal" but that he "was unaware that said documents could also be used for reconsideration." He went on to indicate that he "would very much like to move for reconsideration." In his subsequently filed motion for reconsideration, Miller claims that some of his original contentions were not fully addressed by this Court in its August 3 Opinion. For the reasons below, the motion for reconsideration is denied.
Under Rule 59(e), Fed.R.Civ.P., a motion for reconsideration must be filed within ten business days after entry of judgment. Wight v. Bankamerica Corp., 219 F.3d 79, 84 (2d Cir. 2000). Even though this Court's Opinion and Order adopting the Magistrate Judge's Report and Recommendation was issued on August 3, 2005, judgment was not entered in the action until September 8, 2005. Petitioner's submission was received by the Pro Se Office on September 13, 2005. Despite the comment in the November 1 Order that a motion for reconsideration would be untimely, which was premised on the date of the August 3 Opinion, petitioner's motion was timely submitted.
Discussion
Local Civil Rule 6.3 reads in pertinent part as follows:
A notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion. There shall be served with the notice a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.
S.D.N.Y. Local Civil Rule 6.3. In moving for reconsideration, the moving party "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000) (citation omitted). The moving party may not "advance new facts, issues, or arguments not previously presented to the Court." Geneva Pharms. Tech. Corp. v. Barr Labs., Inc., No. 98 Civ. 3607 (RWS), 2002 WL 1933881, at *1 (S.D.N.Y. Aug. 21, 2002) (citation omitted).
In his motion for reconsideration, petitioner makes three arguments: (1) the trial court's jury instruction on accomplice liability was inadequate and led to jury confusion; (2) petitioner's counsel's brief absence from the courtroom denied him effective assistance of counsel; and (3) certain of the prosecution's statements during closing arguments were improper.
This Court's August 3 Opinion fully addressed the first two points. Miller does not highlight any law or facts relevant to these issues that the Court overlooked in its August 3 Opinion. His current submission on these points is essentially a reargument of factors already considered by the Court.
Petitioner has correctly noted, however, that the Court's August 3 Opinion did not directly address one of the allegedly improper statements made by the prosecution. Miller argues that the prosecutor improperly implied that petitioner had lied about the involvement of an Officer Ruiz in Miller's arrest. During his closing argument, the prosecutor said, "Now I won't even get into the mysterious Detective Ruiz who you only heard testimony about from the defendant. Also remember when his story made no sense." Petitioner argues that the prosecutor's statement amounts to a lie, since Detective Ruiz was, in fact, on the City's list of officers involved in "buy and bust" operations on the day petitioner was arrested.
The New York Supreme Court Appellate Division rejected this argument when petitioner appealed the judgment of conviction. "The challenged portions of the prosecutor's summation constituted fair comment on the evidence in response to defense arguments and there was no pattern of egregious misconduct."People v. Miller, 759 N.Y.S.2d 658, 658 (1st Dep't 2003) (citation omitted).
The Supreme Court has long emphasized that prosecutors must not employ "improper methods calculated to produce a wrong conviction." United States v. Young, 470 U.S. 1, 7 (1985) (citation omitted). Every instance of prosecutorial misconduct, however, does not warrant reversal of a guilty verdict. In order to merit such extreme corrective action, a defendant must show that the misconduct caused "the defendant substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process." United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) (citation omitted). It is "a rare case" in which a prosecutor's improper comments are "so prejudicial that a new trial is required." United States v. Newton, 369 F.3d 659, 680 (2d Cir. 2004) (citation omitted).
In determining whether a prosecutor's allegedly improper statements warrant reversal of a guilty verdict, the court looks at three factors: "(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of conviction absent the improper statements." United States v. Thomas, 377 F.3d 232, 245 (2d Cir. 2004) (citation omitted). When analyzing the severity of alleged misconduct, the court examines the prosecutor's statements in the context of the entire trial. Id. at 244. Reversal is appropriate only when the remarks, "viewed against the entire argument before the jury, deprived the defendant of a fair trial." United States v. Pena, 793 F.2d 486, 490 (2d Cir. 1986) (citation omitted).
The prosecutor's statements were brief and not a significant part of the State's argument or summation. Immediately after the prosecutor referred to Detective Ruiz, the judge told the jury, "Okay, disregard the remarks about Detective Ruiz role or lack of role in this please." Immediate curative instructions have been found to be sufficient to prevent prejudicial effect. See, e.g., United States v. Tutino, 883 F.2d 1125, 1136-37 (2d Cir. 1989). Although the judge rejected Miller's subsequent request to remind the jury to disregard the prosecutor's statement during delibrations, his initial instruction was sufficient, particularly given the presumption that the jury follows limiting instructions. United States v. Casamento, 887 F.2d 1141, 1154 (2d Cir. 1989).
In determining the appropriate remedy for a prosecutor's allegedly improper statement, the court also considers whether the defendant would have been convicted even in the absence of the comment. Petitioner must show that he would not have been convicted but for the improper statement. United States v. Elias, 285 F.3d 183, 192 (2d Cir. 2002). Where the specific remarks the prosecutor makes neither "touch upon [n]or bolster the most potent of the government's evidence," a court will not generally overturn a verdict. Id. In other words, a court will not ignore otherwise strong evidence of a defendant's guilt on the basis of a single prejudicial remark. Thomas, 377 F.3d at 245.
The evidence that led to Miller's conviction included an undercover officer's testimony that petitioner handed a sandwich bag with cocaine vials to an accomplice, and the defendant's own admission that he was present at the scene of the drug sale. Detective Ruiz's involvement — or lack thereof — was not central to the State's case. As a result, the Appellate Division's determination that the prosecutor's allegedly improper statement did not justify overturning the jury's verdict is not contrary to, nor does it involve an "unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254 (d).
Conclusion
For the foregoing reasons, petitioner's motion for reconsideration is denied. The petitioner has not made a substantial showing of a denial of a federal right, and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). In addition, I find, pursuant to 28 U.S.C. § 1915 (a) (3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of the Court shall dismiss the petition and close the case.
SO ORDERED.