Opinion
00 Civ. 4785 (SHS) (GWG)
July 19, 2001
Carmelo Monserrate, Pro Se, Petitioner, Five Points Correctional Facility, Romulus, New York.
Mark Dwyer, Esq., Assistant District Attorney, District Attorney, New York County, Attorney for Respondent, New York, New York.
REPORT AND RECOMMENDATION
To the Honorable Sidney H. Stein, United States District Judge:
I. BACKGROUND
A. Procedural History
In this pro se petition brought pursuant to 28 U.S.C. § 2254, petitioner Carmelo Monserrate seeks a writ of habeas corpus to set aside a judgment of conviction issued on March 14, 1996, by the Supreme Court, New York County (Mary McGowan Davis, J.). See Petition for Writ of Habeas Corpus, dated May 17, 2000 (hereinafter "Monserrate Pet."). Monserrate was convicted of two counts of Murder in the Second Degree (intentional murder and depraved indifference murder, New York Penal Law § 125.25(1), (2)), one count of Attempted Murder in the Second Degree (New York Penal Law §§ 110.00, 125.25(1)), one count of Criminal Use of a Firearm in the First Degree (New York Penal Law Section § 265.09(1)), one count of Criminal Possession of a Weapon in the Second Degree and one count of Criminal Possession of a Weapon in the Third Degree (New York Penal Law §§ 265.03, 265.02(4)). Monserrate was sentenced to concurrent prison terms of 25 years to life for the two murder counts and to lesser sentences for the remaining counts to run concurrent with the murder sentences. He is currently incarcerated at the Five Points Correctional Facility in Romulus, New York pursuant to the judgment of conviction.
The petitioner's name was spelled "Monserate" in all the New York State court proceedings. The papers submitted by the petitioner in this case, however, spell his name "Monserrate" and that spelling will be used in this Report.
B. Evidence at Trial — The Prosecution's Case
At Monserrate's trial, several witnesses to different portions of the underlying incident testified for the prosecution, including Thomas Cintron, who was the co-perpetrator in the incident; Martha Velazquez; Felix Velazquez; Vidal Sotomayer; Maximo Hernandez and Geraldo Rivera.
In November 1993, Monserrate was the "manager" of a drug organization which sold crack cocaine on 119th Street between First and Second Avenues. (Tr. 239-243, 355). On November 29, 1993, Monserrate advised Thomas Cintron, his boss in the drug organization, that they had a "problem" with Robert Ortiz, an individual who also sold crack on 119th Street between First and Second Avenues. (Tr. 356-59, 362). Apparently Ortiz had refused to allow Monserrate's mother to sell cocaine on 119th Street. (Tr. 356-60). During their conversation about the "problem" with Ortiz, Monserrate told Cintron that they had to "kill that motherfucker," referring to Ortiz. (Tr. 357-58). Cintron also wanted to kill Ortiz, both to solve Monserrate's problem with Ortiz, and also so that he and Monserrate could take over Ortiz's drug-selling territory. (Tr. 364-65).
"Tr." refers to the transcript of the trial in People v. Monserrate, No. 10809/94, Supreme Court, New York County. "V. Tr." refers to the transcript of the voir dire of the jury in that trial, the pages of which are numbered separately.
Later that afternoon, Cintron had a confrontation with Ortiz concerning Monserrate's mother. (Tr. 371-73, 377). During that conversation, Ortiz told Cintron that he would kill Monserrate if he came to 119th Street and that Monserrate's mother should stay away from 119th Street. (Tr. 371-73, 377). At about 7:30 in the evening, Monserrate stopped at a grocery store on 118th Street and told a number of people standing outside that there were "going to be some problems" and there was going to be a "flood." (Tr. 516-18, 542, 561-64). Martha Velazquez, one of the individuals who was present near the store at the time, testified that the word "flood" used in this context meant that "blood was going to run or something like that." (Tr. 542). A few minutes later, Monserrate met Cintron at the corner of 118th Street and Second Avenue. (Tr. 367-69, 518-21, 572-74). They walked to the grocery store on the corner where Monserrate had warned of an impending "flood" just minutes before. (Tr. 368-69, 519-21, 573-74). This time, Cintron told some other individuals from the neighborhood who were standing outside the store that he was "tired of this bullshit" and that "you better close the spot, because there is going to be a flood around." (Tr. 521, 574). Monserrate stated that "we got to do what we got to do." (Tr. 521, 574). Monserrate and Cintron then left the store to find Ortiz and kill him (Tr. 363-65, 370-71, 378, 475-76). Both were carrying guns. (Tr. 368, 378-79, 437, 457). Cintron was holding a .38 caliber revolver and Monserrate was holding a .40 caliber automatic pistol. (Tr. 368, 378-79, 437, 457).
Monserrate and Cintron walked toward 119th Street and Second Avenue, where they encountered Ortiz. (Tr. 370-71, 463-66). A verbal confrontation took place between Cintron and 3 Ortiz, following which Monserrate and Cintron both began shooting at Ortiz. (Tr. 246-47, 379-81, 290-91). None of the shots struck Ortiz. (Tr. 381). At that point, shots were fired at Monserrate and Cintron from the other side of Second Avenue. (Tr. 380, 382-84). Monserrate and Cintron ran south on Second Avenue, heading toward 118th Street. (Tr. 313-14, 396-98, 525). As they ran, both Monserrate and Cintron continued firing their weapons, shooting in the direction of 119th Street. (Tr. 524-526). As Monserrate and Cintron headed toward 118th Street, more shots were fired at them from across Second Avenue. (Tr. 410-412).
At the time of this shootout, Nilma Rivas was walking home from a nearby store with her seven-year-old grandson on the east side of Second Avenue between 118th and 119th Streets. (Tr. 124-27). When they heard the gunshots, Rivas and her grandson began running. (Tr. 129-30, 132-34). Rivas was shot in the right leg and collapsed on the sidewalk near the northeast corner of 118th Street and Second Avenue. (Tr. 54, 61, 131, 197-99). She was taken to the emergency room and was pronounced dead at 8:20 p.m. (Tr. 55).
Subsequent to the shooting, Monserrate gave a version of the events that day to Maximo Hernandez. (Tr. 497). Hernandez testified that Monserrate had said that he and Cintron had gone to see Ortiz. (Tr. 498). When Ortiz saw there was a gun, Ortiz began to "back away" at which point Cintron pulled out his gun and started shooting. (Tr. 498-99, 503). Monserrate said that he and Cintron then "started running." (Tr. 499). Monserrate was arrested on October 26, 1994. (Tr. 677-78).
C. Evidence at Trial — The Defense Case
Detectives Brian Rafferty and Robert Stewart testified as to the contents of two witness statements. (840-44, 859-63). The trial judge allowed these two hearsay statements to be 4 elicited from the Detectives as a curative sanction for the prosecution's failure to disclose these statements to Monserrate until the beginning of trial. (Tr. 805-11). These statements, which form the basis for Monserrate's claim under Brady v. Maryland, 373 U.S. 83 (1963) (hereinafter, "Brady"), are discussed further in Sections I.D and III.B below.
Detective Rafferty testified that the police had taken a statement from a woman named Wanda Cruz concerning the November 29th shooting. In her statement, Cruz stated that at around 7:45 p.m. on November 29, 1993, she was at the corner of 119th Street and Second Avenue and saw Cintron in the area with two other individuals she knew as "Junior" and "Lee." She also saw a Hispanic man named "Lingo" drive up to the corner of 118th Street and Second Avenue in a burgundy Maxima. When "Junior" and "Lee" saw the Maxima, they ran onto 119th Street and returned with Cintron. Cintron pointed his gun at the Maxima, fired four shots, and a "lady on another corner fell down." (Tr. 841-44).
Detective Stewart testified that police had taken a statement from an individual named Germaine Ponce. Ponce stated that he was standing at 119th Street and Second Avenue on the night of the shooting. He heard shots that came from across Second Avenue but did not see who fired the shots. After these shots were fired, a five foot seven inch light-skinned Puerto Rican man ran out of the Renegade building on Second Avenue and started shooting at a white car. The white car stopped, picked up a man, and sped off. Ponce saw a lady fall down and heard the Puerto Rican man say "Oh shit, I shot the fucking lady." (Tr. 859-863).
Monserrate then testified in his own defense at trial. (Tr. 877-925). He testified that on November 29, 1993, while celebrating the birth of his new daughter with some friends between 118th and 119th Streets, he learned that Cintron had gone to 119th Street. (Tr. 878-80). Concerned that Cintron would encounter some difficulty with Ortiz at that location, he began to walk along Second Avenue toward 119th Street. (Tr. 880). As soon as he turned the corner of 119th Street, he heard shots. (Tr. 880). He saw Cintron run past him down Second Avenue. (Tr. 880). He denied that he saw Rivas and her grandson, that he had a weapon when he went in search of Cintron on 119th Street, and that he had a gun in his hand when he was running. (Tr. 884, 889, 890, 915).
D. The Brady Material
On February 1, 1996, during the voir dire of prospective jurors, defense counsel for Monserrate informed the trial court that the prosecution had provided him "yesterday" with a statement from a Wanda Cruz, which he believed to be Brady material because it "did not mention my client by his nickname Mello or Carmelo or in any way. I believe that I should have been notified [of] that a long time [ago]." (V. Tr. 221-22). The prosecution replied that Wanda Cruz's statement had been discounted "for a long time" because she was a "crack head in very bad condition" and had ultimately reneged on her statements to the police. (V. Tr. 224). After being alerted to the existence of Ms. Cruz, the court stated that "obviously, if it needs to be accommodated to get that person in to testify for you, I will make such an accommodation, reasonable accommodation." (V. Tr. 224-25). Defense counsel reiterated his concerns about the late disclosure of the putative Brady material:
If it turns out that she could have been available and if she was not, I also want the record to note, to prevent [sic] my client's record on appeal, because I believe that was Brady material that should have been turned over immediately upon my being appointed as counsel.
(V. Tr. 225). Defense counsel did not request a sanction for the late disclosure at that time. (V. Tr. 222-25).
The Brady issue surfaced again during the People's direct case at trial. On February 6, 1996, defense counsel informed the court that the statement by Wanda Cruz "describe[d] the entire scene" and did not "mention my client." (Tr. 347-48). Defense counsel argued that he should be permitted to elicit this statement through a police witness because it was a statement "against penal interest" (Tr. 347), although he did not make an argument based on Brady. (Tr. 347-48). He also informed the court that he had an investigator looking for Wanda Cruz. (Tr. 347). The court made no ruling at that time as to whether the statement would be admissible. (Tr. 348).
On February 8, 1996, still during the People's direct case, defense counsel informed the court that he had just "found" a statement from Germaine Ponce in his file. (Tr. 652). Counsel admitted that he had previously been in possession of the statement but that he had "missed it" because it was "stuck together" with another sheet of paper. (Tr. 652). He argued that it too was Brady material and that the prosecutor should have turned over the statement immediately. (Tr. 653-54). Defense counsel stated that he would try to locate Germaine Ponce, but that he should be allowed to elicit the statement through Detective Stewart if Ponce could not be found. (Tr. 654-5). The prosecution argued that Ponce's statement was not exculpatory and that attempts to locate Ponce previously had been unsuccessful. (Tr. 654). The court did not rule at that time as to the admissibility of the statement. (Tr. 656).
On February 1, 1995, during the voir dire of prospective jurors, defense counsel apprised the court of the witness statements he had read. (V. Tr. 227-28). At that time, he told the court "I do remember reading various statements, the names Ponce, the ones that stuck out were Jose Ortiz and Wanda Cruz." (V. Tr. 228). However, it is unclear from that colloquy with the court as to when defense counsel had actually received the Ponce statement.
Later that day, defense counsel sought once again to elicit the statements of Cruz and Ponce through police witnesses. (Tr. 708). The court asked the parties to research that issue and adjourned the proceedings for that day. (Tr. 711). On February 9, 1996, defense counsel again argued that he be allowed to elicit the statements by Cruz and Ponce through police witnesses. (Tr. 722-23). Defense counsel contended that such a sanction was appropriate because the statements were Brady material which should have been produced "as soon as this case became viable," and the prosecution should "pay the penalty" for such late disclosure. (Tr. 723). Defense counsel asserted that neither Cruz nor Ponce could be found. (Tr. 724). After hearing these arguments, the court ruled that these statements were not made against penal interest and therefore were not admissible on that ground but stated that the witness statements would be addressed "later." (Tr. 723-24).
Later that day, at the close of the People's case, defense counsel renewed his argument that he should be allowed to elicit the statements through police witnesses as a sanction for the prosecution's late disclosure of Brady material. (Tr. 783-86). The prosecution responded that Wanda Cruz had been "discounted as a witness" because she was a "drug addict" who was "barely conscious" when she made her statement. (Tr. 788). The prosecution also argued that the Ponce statement was not exculpatory because it "corroborate[d] a lot of [the] People's evidence." (Tr. 789). Defense counsel argued that although he "should ask for a dismissal on Brady grounds" he was instead seeking a "compromise" solution from the court by which the statements would come into evidence through the police witness testimony. (Tr. 792-96). The 8 court did not rule at that time, but instead stated that it would "go back and look at Brady." (Tr. 797).
When the trial resumed on February 13, 1996, the court granted Monserrate's request that he be allowed to elicit the statements of Wanda Cruz and German Ponce through police witnesses. (Tr. 805-811). The court stated:
As a sanction for the prosecutor's failure to disclose that at a time when it could have been useful to the defense, I will permit the substance of those statements to be elicited without the People having the opportunity to cross-examine the persons who gave those statements.
(Tr. 805). The prosecution's objections to this ruling were overruled by the court. (Tr. 807-808). Monserrate did not object to the court's ruling. (Tr. 805-811). Detective Rafferty thereupon testified as to the statement of Cruz; Detective Stewart testified as to the statement of Ponce. (Tr. 841-44, 859-863).
E. State Court Review
Monserrate appealed his conviction to the Appellate Division, First Department raising four grounds for reversal of the conviction: (1) that the People had failed to prove beyond a reasonable doubt that he was guilty of either intentional murder or depraved indifference murder; (2) that it was reversible error for the trial court to submit the intentional and depraved indifference murder counts to the jury in the conjunctive rather than in the alternative; (3) that the People had failed to prove beyond a reasonable doubt that he was guilty of attempted murder in the second degree and (4) that the untimely disclosure of Brady material had deprived him of his right to a fair trial. See Appellant's Brief, undated (reproduced as Exhibit A to Answer and 9 Appendix in Support of Answer to Petition for a Writ of Habeas Corpus, dated September 28, 2000) (hereinafter, "Monserrate Appellate Br."), at 20-41.
On December 1, 1998, the Appellate Division affirmed the conviction. People v. Monserate, 256 A.D.2d 15 (1st Dep't 1998). The court held that the verdicts were supported by legally sufficient evidence; that the trial court properly submitted the intentional and depraved indifference murder counts to the jury in the conjunctive rather than in the alternative; and that Monserrate had failed to preserve his Brady claim for appellate review. Id. at 15-16.
In his application for leave to appeal to the Court of Appeals, Monserrate raised the same grounds as those presented in his appeal to the Appellate Division. Letter dated January 15, 1999 from Richard Wojszwilo (reproduced as Exhibit D to Answer and Appendix in Support of Answer to Petition for a Writ of Habeas Corpus, dated September 28, 2000) (hereinafter, "January 15, 1999 Letter to Court of Appeals") at 1. On February 24, 1999, the Court of Appeals denied Monserrate's application for leave to appeal. People v. Monserate, 93 N.Y.2d 855 (1999).
F. The Present Petition
Monserrate's pro se petition for writ of habeas corpus is dated May 17, 2000, was received by the Pro Se Office of this Court on May 26, 2000, and was filed on June 28, 2000. The petition asserts grounds for relief that are essentially identical to the grounds raised before the Appellate Division and the New York Court of Appeals. These claims, reproduced in the margin, are designated as Grounds "One, Two, Three and Four" in his petition. Monserrate's
The grounds are described as follows:
Ground One: The state failed to prove beyond a reasonable doubt that 10 petition advances these claims largely through the incorporation by reference of the brief submitted on his direct appeal to the Appellate Division. petitioner was guilty of either intentional murder 125.25(1) or depraved indifference murder 125.25 (2). . . . Ground Two: It was reversible error for the trial court to submit the intentional and depraved indifference murder counts in the conjunctive rather than in the alternative . . . Ground Three: The state failed to prove beyond a reasonable doubt that petitioner was guilty of attempted murder in the second degree 100/125.25(1). . . Ground Four: The prosecution's failure to supply trial counsel in a timely way with the statements of two eyewitness [sic] to the offense, deprived petitioner of his statutory and constitutional rights to be provided with Brady material.
See Appendix A to Monserrate Pet. at 1, 2, 4, 5 (citations to appellate brief omitted).
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 re-examine 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., Estelle, 502 U.S. 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, e.g., Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982); see also 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 a 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. . . ."). In order for a claim to be deemed exhausted, a petitioner is required to have presented the same claim he presents in his 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 bring 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); Daye, 696 F.2d at 194. 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 satisfied the exhaustion requirement for habeas review purposes) (citations omitted); accord Daye, 696 F.3d at 192.
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, 735 (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). Even though procedurally defaulted claims are considered technically "exhausted" for habeas corpus purposes, they are not subject to review by the federal court. See, e.g., Bossett v. Walker, 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) Much like the exhaustion doctrine, the rule barring federal court review of procedurally defaulted claims rests on the principle of comity and respect for state court judgments. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 81 (1977); Epps v. Comm'r of Corr. Servs., 13 F.3d 615, 617 (2d. Cir. 1994) ("comity and federalism concerns and the requirement that States have the first opportunity to correct their own mistakes" preclude federal habeas review of decisions based on adequate and independent state grounds).
III. ANALYSIS OF MONSERRATE'S CLAIMS UNDER EXHAUSTION AND PROCEDURAL DEFAULT REQUIREMENTS
A. Grounds One, Two and Three
Monserrate presented to the Appellate Division same four grounds for appeal that he presented in his present petition. Compare Monserrate Appellate Br. at 20-41 with Monserrate Pet. at 1-8. These same grounds were also presented to the New York Court of Appeals in Monserrate's application for leave to appeal, which was denied on February 24, 1999. See January 15, 1999 Letter to Court of Appeals; People v. Monserate, 93 N.Y.2d 855, 688 (1999).
Monserrate also "fairly presented" these grounds as federal claims to the state courts. In the point heading of his brief to the Appellate Division, Monserrate argued that his guilt as to the intentional murder and depraved indifference murder charges against him was not proved "beyond a reasonable doubt"; he also indicated that he was challenging the "sufficiency of the proof of trial." Monserrate Appellate Br. at 20. Claims alleging insufficiency of evidence and a failure to prove the petitioner guilty beyond a reasonable doubt are within the mainstream of due process jurisprudence. See, e.g., Jackson v. Virginia, 443 U.S. 307, 316 (1979). Although Monserrate does not explicitly invoke the Fourteenth Amendment or "due process" in his insufficiency argument, his claim certainly "calls to mind" the due process protections of the Fourteenth Amendment as set forth in Jackson. See generally Daye, 696 F.2d at 194 (federal claim fairly presented to state court where the claim has been asserted "in terms so particular as to call to mind a specific right protected by the Constitution").
In support of Ground Two of his petition, Monserrate explicitly invoked the Fourteenth Amendment in the third point heading to his state court appellate brief, Monserrate Appellate Br. 14 at 28, thus satisfying the Second Circuit's rule that the mere citation of a specific constitutional provision satisfies the exhaustion requirement for federal habeas review purposes. Reid, 61 F.2d at 376. Although the inclusion of a constitutional provision citation within Monserrate's appellate brief does not necessarily indicate that he has made a valid constitutional argument, we will assume that such a citation suffices for exhaustion purposes. See Gonzalez v. Sullivan, 934 F.2d 419, 423 (2d Cir. 1991) (acknowledging that although "it would be better practice . . . when relying on a broad constitutional doctrine like the Fourteenth Amendment to support the claim with a factual premise and by citation to federal cases," citation to the Fourteenth Amendment fulfills the exhaustion requirement and allows for federal habeas review of such a claim).
Like his Ground One insufficiency claim, Monserrate's argument challenging his conviction for attempted murder in the Second Degree for failure to prove him guilty beyond a reasonable doubt, Monserrate Appellate Br. at 20-27, calls to mind the constitutional protections guaranteed by the Fourteenth Amendment under Jackson and its progeny. Daye, 696 F.2d at 194. Accordingly, Monserrate has "fairly presented" his constitutional claims to the state court in regard to Grounds One, Two and Three of his petition.
B. Ground Four: The Brady claim
Unlike the other claims, Ground Four of the petition, the Brady claim, is procedurally barred and is thus not subject to federal habeas review. Under New York law, defendants procedurally default on claims when they fail to follow the "contemporaneous objection rule" which requires that a defendant object to an error at trial in order to preserve it for appellate review. New York Criminal Procedure Law §§ 440.10(2)(c) and (3); People v. Medina, 53 N.Y.2d 951, 952-53 (1981) (defendant failed to preserve issue for appellate review where defense counsel failed to request ruling from judge at trial); People v. Aezah, 191 A.D.2d 312, 313 (1st Dep't 1993) (defendant failed to preserve his claim for appellate review where defendant requested a curative instruction from the court, received a ruling in his favor and made no further objections to the ruling at trial). Such a procedural default is an independent and adequate state ground for the state court's decision and accordingly bars federal habeas review of the decision. Wainwright v. Sykes, 433 U.S. at 86-87; Velasquez v. Leonardo, 898 F.2d at 9.
In Monserrate's Traverse, dated November 29, 2000, and submitted in response to respondent's Answer to his petition (hereinafter, "Traverse"), Monserrate states that he has "withdrawn" his Brady claim "without prejudice" on the ground that "Petitioner does not have sufficient knowledge of law to fully or properly litigate or argue this point at this time." See Traverse at p. 4. However, because Monserrate cannot withdraw his Brady claim without prejudice inuring to him, this Court will address it.
In this case, Monserrate's defense counsel informed the trial court during voir dire that the prosecution had produced the previously undisclosed witness statement of Wanda Cruz to him for the first time. (Tr. 221-24). He raised this issue with the trial court at several points during the People's case, alleging that both the Cruz and Ponce statements had been disclosed in an untimely fashion. (Tr. 347-48, 652-56, 708-711, 722-24, 783-89, 792-96). Defense counsel stated that although he "should ask for a dismissal on Brady grounds," due to this late disclosure, he was "suggesting . . . what [he] thought would be a compromise." (Tr. 791-92). That compromise was to elicit the hearsay statements from Detective Rafferty and Detective Stewart. (Tr. 792-96). The prosecution objected. (Tr. 807-808). The trial court overruled the objection and acceded to defense counsel's request that the Cruz and Ponce statements be elicited during the testimony of Detectives Rafferty and Stewart. (Tr. 805-811). Obviously, defense counsel raised no objection to this curative sanction. Nor did he subsequently move for any other or 16 additional sanction or relief in regard to the witness statements. Monserrate in fact obtained the very relief he sought from the trial court in regard to the purported Brady violation.
In its opinion, the Appellate Division rejected Monserrate's Brady claim on the ground that "[d]efendant's claim that he was prejudiced by eve-of-trial disclosure of Brady material is unpreserved because defendant received the precise remedy he requested, to wit, permission to place certain hearsay statements in evidence, and we decline to review his present claim in the interests of justice." People v. Monserate, 256 A.D.2d 15, 16 (1st Dep't 1998). Accordingly, this claim is procedurally barred on federal habeas review under the "adequate and independent state ground" rule. Wainwright, 433 U.S. at 81; Epps v. Comm'r of Corr. Servs., 13 F.3d at 617. As Monserrate has not demonstrated cause for his procedural default, has not shown prejudice, and has not shown there has been a fundamental miscarriage of justice, e.g., Coleman v. Thompson, 501 U.S. at 735, federal review of the merits of his habeas Brady claim is foreclosed. Accord Sutherland v. Walker, 1999 WL 1140870 at *8-9 (S.D.N.Y. December 10, 1999) (habeas petitioner's Brady claim procedurally barred where defense counsel had failed to pursue petitioner's Brady claim after raising it with the trial court and the Appellate Division subsequently held that the Brady claim was unpreserved).
In dicta, the Appellate Division rejected the substance of Monserrate's Brady claim, stating that if it were to address the claim "we would find that defendant received a meaningful opportunity to use the alleged exculpatory material as evidence in his case." Monserate, 256 A.D.2d at 16. However, because the Appellate Division explicitly denied Monserrate's Brady claim on the ground that it was unpreserved, Monserrate is not entitled to federal habeas review of his claim. See Harris v. Reed, 489 U.S. at 261-62; Velasquez v. Leonardo, 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").
IV. THE MERITS OF CLAIMS ONE, TWO AND THREE
Having determined that Monserrate has exhausted the claims contained in Grounds One, Two and Three of his petition, we now turn to the merits of these claims.
A. Standard of Review.
Under the Antiterrorism and Effective Death Penalty Act of 1996, P.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), a federal court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). This standard applies where a claim has been "adjudicated on the merits in [a] State Court proceeding" and where that adjudication "resulted in a decision." 28 U.S.C. § 2254(d), (d)(1). Where these elements are not met, the pre-AEDPA de novo standard of review is applicable. See Washington v. Schriver, 2001 WL 674248 at *8 (2d Cir. June 15, 2001).
It is not clear, however, what sort of decision constitutes an adjudication entitled to the AEDPA's deferential standard of review. In Washington v. Schriver, the Second Circuit left open the possibility that the standard may apply whenever the State court has issued a decision that results in an adjudication of a claim, regardless of the extent or nature of its discussion of the claim. 2001 WL 674248 at *6 (under "[t]his approach . . . even the most summary orders disposing of federal claims without comment are adjudications on the merits"). Washington made clear, however, that in those situations where the State court has "identif[ied] in some fashion the legal rule through which the result was reached" or has "provide[d] some sense of its reasoning," the AEDPA's standard would unquestionably apply. Id. at *7.
In Monserrate's case, the Appellate Division specifically adverted to the federal legal standard at issue — whether the verdict was based on "legally sufficient evidence" — albeit without citations to federal law. People v. Monserate, 256 A.D.2d at 15. The Court then proceeded to discuss whether there was "evidence" that the defendant's conduct had met the elements of the crimes at issue. Id. That it relied on State cases for this purpose is not surprising because the Jackson standard requires a court to look at state law to determine a legal sufficiency claim. See, e.g., Einaugler v. Sup. Ct. of New York, 109 F.3d 836, 839 (2d Cir. 1997).
The court's use of the "legally sufficient evidence" standard demonstrates that its decision was an "adjudication on the merits" of the federal claim under 28 U.S.C. § 2254(d). New York State case law makes clear that the "legally sufficient evidence" standard derives from the federal constitutional due process right discussed in Jackson v. Virginia, 443 U.S. at 316. The New York Court of Appeals, in applying that standard in the past, has frequently adverted to the Jackson case itself. See, e.g. People v. Contes, 60 N.Y.2d 620, 621 (1983); People v. Taylor, 94 N.Y.2d 910, 911 (2000). The decision in Monserrate's case was perforce a result of the court's consideration of this federal constitutional doctrine. Cf. Cowan v. Artuz, 96 F. Supp.2d 298, 307 (S.D.N.Y. 2000) (for exhaustion purposes, a claim in New York State court regarding sufficiency of evidence raises issue of federal due process).
While we believe Monserrate's claims would fail even under the pre-AEDPA de novo standard of review, the AEDPA requires this Court instead to determine if the New York courts' adjudication was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Accord Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir.) ("[A] writ of habeas corpus may be issued for evidence insufficiency only if the state courts have unreasonably applied the Jackson standard. Federal review of these claims therefore now turns on whether the state court provided fair process and engaged in reasoned, good-faith decisionmaking when applying Jackson's 'no rational trier of fact' test.") (citations omitted), vacated and remanded on other grounds, 522 U.S. 801 (1997); Mobley v. Stinson, 1997 WL 80587 at *2 (S.D.N.Y. Feb. 26, 1997) ("[T]oday and pursuant to the [AEDPA], federal courts must give 'deferential review to state court decisions on sufficiency of the evidence claims.' . . . That is, a habeas petition may be granted for evidence insufficiency only where the state courts have unreasonably applied the standard set forth in Jackson.") (citation omitted). Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000).
B. Grounds One and Three: Whether the Evidence Was Sufficient to Prove Intentional Murder, Depraved Indifference Murder and Attempted Murder Beyond a Reasonable Doubt
The due process clause of the Fourteenth Amendment protects a defendant from conviction of a crime unless there is proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the defendant has been charged. See Jackson v. Virginia, 443 U.S. at 316. Accordingly, when challenging a state conviction pursuant to 28 U.S.C. § 2254, a petitioner will be "entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324; accord Farrington v. Senkowski, 214 F.3d 237, 240-41 (2d Cir. 2000). A federal court considering the sufficiency of a state law conviction "must look to state law to determine the elements of the crime," Fama v. Comm'r of Corr. Servs., 235 F.3d at 811 (citation omitted); accord Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999), and consider whether "there was sufficient evidence for a jury to find that the prosecution proved the substantive elements of the crime as defined by state law." Einaugler, 109 F.3d at 839 (citations omitted); accord Malsh v. Hanslmaier, 102 F.3d 69, 70 (2d Cir. 1996) (citing to the Jackson standard).
Moreover, the evidence must be viewed in the light most favorable to the state and all permissible inferences must be construed in its favor. See, e.g., United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993); accord Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.) (court must "credit every inference that could have been drawn in the State's favor, . . . whether the evidence being reviewed is direct or circumstantial") (citations omitted), cert. denied, 488 U.S. 929 (1988). The Second Circuit has held that an insufficiency challenge does not rise to constitutional dimensions "absent a record so totally devoid of evidentiary support that a due process issue is raised." Mapp v. Warden, New York State Corr. Inst. for Women, 531 F.2d 1167, 1173 n. 8 (2d Cir. 1976) (citation omitted).
1. The Intentional Murder and Depraved Indifference Murder Counts
In the present case, Monserrate challenges the sufficiency of the evidence supporting his conviction for two counts of Murder in the Second Degree (intentional murder and depraved indifference murder). Pursuant to New York Penal Law §§ 125.25(1) and (2), a person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person;
[or]
. . .
2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
a. Intentional Murder Count.
Monserrate principally argues, both in his petition and through its adoption of his appellate brief, see Exhibit A to Monserrate Pet. at 1-2, that there was no proof that the gunshots by the unknown individual that killed Rivas were in fact "caused" by Monserrate. See Monserrate Appellate Br. at 25. He argues that it was "more likely that Mrs. Rivas' death resulted from an act unrelated to the conduct of either defendant," id. at 27, such as "some other drug-related dispute," id. at 28, and that "there was no link between the defendants' conduct and the death of Mrs. Rivas to support a conviction of murder under a transferred intent theory," id. at 28-29.
To prove intentional murder under New York Law, the People must prove that the defendant had the "intent to cause the death of another person." Penal Law § 125.25(2). Such intent was amply established by Monserrate's statements to others regarding his intent to murder Ortiz and his firing of a gun at Ortiz (Tr. 246-47, 257, 312, 356-59, 370-71, 463-66). See, e.g., Mallette v. Scully, 752 F.2d 26, 32 (2d Cir. 1984) ("circumstantial evidence is as persuasive as direct evidence" with regard to establishing an intent to kill).
The statute does not require, however, that the defendant's actions cause the death of the same person whom the defendant intended to kill. Rather, the statute permits a conviction where the death of "a third person" is caused. This doctrine, known as transferred intent, "serves to ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some other 'lucky mistake,' the intended target was not the actual victim." People v. Fernandez, 88 N.Y.2d 777, 781 (1996).
The requirement that the defendant "cause" the death of an individual is fulfilled where there is evidence that the defendant's actions were an "actual contributory cause of death" and the defendant "sets in motion the events which ultimately result in the victim's death." People v. Matos, 83 N.Y.2d 509, 511 (1994) (citing People v. Stewart, 40 N.Y.2d 692, 697-(1976); People v. Kibbe, 35 N.Y.2d 407 (1974)). The defendant's acts need not be the sole cause of death. Matos, 83 N.Y.2d at 511 (citing Matter of Anthony M. 63 N.Y.2d 270, 280 (1984)). In Matos, the defendant Matos and his accomplices had robbed the employees of a McDonald's restaurant at gunpoint. Id. at 510. Police officers arrived while the robbers were still at the store. Id. Matos then attempted to escape up a ladder to the roof. Id. at 511. An officer pursuing Matos up the ladder fell from the ladder down an air shaft and was killed. Id. The Court of Appeals held that because it was "foreseeable" that the defendant would be pursued by an officer and that it was also foreseeable that someone might fall while in pursuit of him, Matos had "caused" the death of the officer. Id. at 512.
While the defendant in Matos was charged with felony murder under Penal Law § 125.5(3), the term "'causes' in the felony murder provision should be accorded the same meaning it is given in subdivisions (1) and (2) of section125.25 of the Penal Law." See People v. Hernandez, 82 N.Y.2d 309, 317 (1993).
A later case from the Court of Appeals makes the same point. In People v. Hernandez, 82 N.Y.2d 309 (1993), the defendant attempted to rob an undercover officer who was engaging in a "buy and bust" operation. The officer announced he was a policeman and began firing his weapon. Id. at 312. The defendants ran from the scene and the police backup unit started firing. One of the officers was killed in the gun battle, though not by either of the defendants. Id. The Court of Appeals held that these actions were sufficient to prove the "causation" element of the murder statute, noting that "it was highly foreseeable that when Hernandez continued toward the officer with his gun drawn that shots would be fired and someone might be hit." Id. at 312. The court cautioned that "[f]oreseeability does not mean that the result must have been the most likely event. . . . [I]t is simply implausible for defendants to claim that defendants could not have foreseen a bullet going astray when Hernandez provoked a gun battle outside a residential building in an urban area." Id. See also People v. Kibbe, 35 N.Y.2d 407 (1974) (defendants caused victim's death when they left him drunk by the side of an unlit road in subfreezing temperatures and he was killed by a passing truck).
Viewing the evidence presented at trial in the light most favorable to the prosecution, a "rational" fact finder, Jackson, 443 U.S. at 324, could have found Monserrate "caused" Rivas's death. There was evidence at trial that after Monserrate shot at Ortiz on a residential urban street (Tr. 379-81, 290-91), he continued to shoot toward 119th street after meeting with return fire from unknown shooters. (Tr. 313-14, 380, 524-26). Rivas was shot and killed near 118th Street and Second Avenue as Monserrate was fleeing the area. (Tr. 124-27, 129-30, 131-34, 198-99).
As put succinctly by the Appellate Division, "[w]e reject defendant's speculative claim that the shot that killed the bystander victim could have been fired by a non-participant in the gun battle initiated by defendant." Monserate, 256 A.D.2d at 15. This Court finds this conclusion to be a not "unreasonable" application of the Jackson standard, Williams v. Taylor, 529 U.S. 362 at 411, and concurs that a rational jury could find that Monserrate, intending to kill only Ortiz, "set in motion the events" that led to the death of Rivas. Matos, 83 N.Y.2d at 511.
Monserrate also argues that this verdict — as well as the verdicts on the other counts — was improper because Ortiz — the intended victim — did not testify at trial. See Appendix A to Monserrate Pet. at 1, 2, 4. The testimony of the intended victim, however, is not necessary for there to be sufficient evidence of the commission of a crime. "[T]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979); accord Edwards v. Jones, 720 F.2d 751, 753 (2d Cir. 1983) ("while [the sole eyewitness's] testimony and character were less than inspiring," the testimony of the sole eyewitness was nevertheless sufficient to support a conviction under Danzey as the jury had the opportunity to evaluate the credibility of the witness).
For these reasons, Monserrate's right to due process was not denied by his conviction of murder in the second degree on the intentional murder count.
b. Depraved Indifference Murder Count. Monserrate argues that he was merely fleeing the area to protect himself and that "it is not logical to conclude that simply by fleeing the area after engaging in alledged [sic] gunfire, a person evinced a depraved indifference to human life." See Appendix A to Monserrate Pet. at 2.
This argument ignores the evidence at trial that, after firing at Ortiz, Monserrate continued to shoot back toward 119th street as he ran in the direction of 118th Street after meeting with return fire from unknown shooters. (Tr. 524-26). A rational jury could determine that Monserrate's firing of these shots on a street that had many people (Tr. 52-54, 65-67, 83, 99-101) essentially instigated a gunfight in a crowded area in the early evening, thereby evincing a depraved indifference to human life. Case law in New York has recognized that the firing of 25 guns in some public areas evinces a depraved indifference to human life under New York Penal Law § 125.25(2). See, e.g., People v. Brathwaite, 63 N.Y.2d 839 (1984) (shots fired in grocery store sufficient evidence of depraved indifference); People v. Register, 60 N.Y.2d 270, 275 (1983) (firing a gun in a crowded barroom presented a grave risk of danger); People v. Smith, 148 A.D.2d 965 (4th Dep't 1989) (firing at stopped vehicle and striking nearby pedestrian was sufficient evidence to support conviction for depraved indifference murder). We cannot say that the state court was "unreasonabl[e]" Williams v. Taylor, 529 U.S. at 411, in finding that the record was not "so totally devoid of evidentiary support" for the depraved indifference conviction as to amount to a due process violation. Mapp v. Warden, New York State Corr. Inst. for Women, 531 F.2d at 1173 n. 8.
2. Attempted Murder Count
Under New York Penal Law § 110.00, "a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of the crime." Viewing the evidence presented at trial in the light most favorable to the prosecution, a rational fact finder could have found Monserrate guilty of the attempted murder of Ortiz. Although Monserrate concedes that evidence at trial indicated that he had "wanted to kill Robert Ortiz," he contends that it was not proven that he acted to carry out that intent. See Appendix A to Monserrate Pet. at 4 ("Evidence at trial indicated that petitioner wanted to kill Robert Ortiz. With that said, or even with it said that petitioner was armed with a weapon, it is insufficient without the requisite conduct. It was not proven that petitioner acted to carry out that intent against Robert Ortiz."). As already discussed, however, the evidence at trial was that Monserrate not only intended to kill Ortiz but also approached Ortiz and shot at him. Cintron testified that Monserrate had told him that they had a "problem" with Ortiz (Tr. at 356-59, 362), that Monserrate had said that they had to "kill that motherfucker," referring to Ortiz (Tr. at 357-58), that Monserrate had approached Ortiz (Tr. at 370-71, 463-66), and that Monserrate had fired shots at Ortiz at the same time as Cintron had done so. (Tr 246-47, 379-81, 290-91). Felix Velazquez testified that he saw Monserrate kneeling and shooting (Tr. 246-47, 257, 312). These facts would permit a jury to conclude that Monserrate had the intent to commit the crime of intentional murder of Ortiz and that Monserrate engaged in conduct — specifically, the firing of a gun at Ortiz — tending to effect the commission of the crime of murder. See New York Penal Law § 110; accord People v. Joseph, 207 A.D.2d 750 (1st Dep't 1994) (firing of shots established that defendant intended to kill victim); People v. Irizarry, 233 A.D.2d 209, 210 (1st Dep't 1996) (sufficient evidence to support attempted murder conviction where defendant was armed at the scene and fled scene with co-perpetrators immediately after shooting). Accordingly, a rational jury could properly conclude that Monserrate was guilty of attempted murder in the second degree.
C. Ground Two: Submission to the Jury of Intentional Murder and Depraved Indifference Murder in the Conjunctive Rather than in the Alternative
Monserrate argues that the submission to the jury of the intentional murder count and the depraved indifference count in the conjunctive rather than the alternative violated the Fourteenth Amendment. See Appendix A to Monserrate Pet. at 2-3. He argues that this submission was improper by citing to New York case law holding that in some circumstances intentional murder and depraved indifference murder are mutually exclusive and therefore must be presented to the 27 jury in the alternative. See Monserrate Appellate Br. at 31-33, citing People v. Gallagher, 69 N.Y.2d 525 (1987).
It is unclear what Fourteenth Amendment right is at issue here. As most liberally construed, it appears that Monserrate is arguing that the due process clause would constrain the jury from finding him guilty of both intentional and depraved indifference murder in this case. We believe this argument regarding mutual exclusivity again raises the issue of whether there was sufficient evidence under Jackson for a jury to find that the prosecution could have logically proved the substantive elements of both crimes "as defined by state law." Einaugler, 109 F.3d at 839. Accordingly, we will again look to state law to determine whether the submission of the two counts in the conjunctive was proper.
New York law is clear that both an intentional murder count and a depraved indifference murder count may be submitted to the jury in the conjunctive where the intended and actual victims are two different individuals. See, e.g., People v. Mills, 214 A.D.2d 423, 424 (1st Dep't 1995) (depraved indifference murder count and intentional murder count were properly submitted to the jury in the conjunctive where "defendant fired his gun at one person with the intent to kill him and also recklessly engaged in conduct that created a grave risk of death to the decedent"); see also People v. Tankleff, 199 A.D.2d 550, 553 (2d Dep't 1993) (a defendant can possess the intent to kill and evince depraved indifference where defendant's actions are directed toward two different victims). In this case, Monserrate intended to kill Ortiz, fired shots at Ortiz and continued to fire shots as he fled the scene. (Tr. 246-47, 290-91, 357-58, 379-81, 516-18, 542, 561-64, 524-26, 574). Rivas was killed in the midst of this gunfire. (Tr. 124-27, 129-30, 131, 132-34, 198-99). Through these actions, Ortiz was the intended victim of Monserrate's intention to commit murder (even though he ultimately caused the death of a third person, Rivas).
As part of the same incident, Monserrate continued to shoot towards 119th street, a street with people on it (Tr. 52-54, 65-67, 83, 99-101), after he met with return fire from unknown shooters. (Tr. 313-14, 524-26). With respect to these actions, a jury could properly conclude that he acted with depraved indifference towards all the bystanders in the area, including Rivas. Because there were different victims of Monserrate's actions, the submission of the intentional murder count and the depraved indifference murder count to the jury in the conjunctive rather than in the alternative was proper under New York State law.
In sum, the Appellate Division did not unreasonably conclude that the evidence presented against Monserrate was "sufficient . . . for a jury to find that the prosecution proved the substantive elements" of each crime "as defined by state law." Einaugler, 109 F.3d at 839 (citations omitted). As the Appellate Division stated, "[Monserrate] acted intentionally as to his intended victim, causing the death of the bystander victim with transferred intent, and defendant also acted with depraved indifference as to the people in the street, including the bystander victim." 256 A.D.2d at 16. Because a rational jury could have so concluded, Monserrate's conviction on both counts did not violate his right to due process.
CONCLUSION
For the reasons as set forth above, the undersigned recommends that the Court dismiss Monserrate's petition for writ of habeas corpus.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Stein. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985).