Opinion
09 Civ. 7899 (DLC).
June 29, 2010
For petitioner: Rajesh S. James, Davis Polk Wardwell LLP, New York, NY.
David Crow, The Legal Aid Society, New York, NY.
For respondent: Paul M. Tarr, Office of the Attorney General, New York State, New York, NY.
OPINION ORDER
On September 14, 2009, Curtis Munford ("Munford") filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, following his conviction at a jury trial of two counts of first degree robbery, five counts of second degree robbery and one count of grand larceny, and his sentence to an aggregate term of thirty-five years' imprisonment as a second felony offender. This case was referred to Magistrate Judge Andrew J. Peck for a report and recommendation ("Report"). The Report was filed on February 24, 2010, and recommends that the petition be denied. Munford, through his counsel, has objected to the Report. For the following reasons, the Report is adopted and the petition is denied.
Two indictments, charging Munford with four counts of first degree robbery and lesser offenses, were consolidated for trial. Munford's habeas petition relates only to one of those indictments, the robbery of a jewelry store. The other indictment, which involved stealing DVDs from a music store, is not at issue.
BACKGROUND
The facts relevant to Munford's petition are set out in the Report and are summarized here. On March 2, 2004, the robbery of a midtown Manhattan jewelry store was captured by a surveillance camera. Two days later an anonymous informant identified Reberto Grant ("Grant") as a participant in the robbery. Detective Joseph Monahan ("Monahan") ran a check of Grant's known associates and discovered that Grant and Munford had previously committed a similar crime together. Monahan concluded that Munford's mug shot "strongly resembled" one of the robbers in the surveillance video. Monahan then received a tip from a second informant who identified Munford, Grant and three others as participants in the robbery. The second informant claimed to have held the gun taken from a security guard during the robbery. The police arrested Munford based on this evidence.
At Munford's suppression hearing, defense counsel sought to admit the surveillance video into evidence to show that Monahan could not have identified Munford from the video. Defense counsel also cross-examined Monahan to challenge the credibility of the second informant. The court did not receive the video into evidence, and limited defense counsel's cross-examination of Monahan on the subject of the second informant's identity and when the informant claimed to have held the gun taken in the robbery. Defense counsel argued that the totality of the circumstances surrounding the anonymous informants failed to establish the necessary probable cause. The court determined that there was probable cause for Munford's arrest and denied Munford's motion to suppress.
At Munford's trial, the court ruled that Grant's certificate of conviction for the robbery could be received in evidence despite defense counsel's Confrontation Clause objection. Defense counsel then stipulated to the contents of the certificate to avoid having the document received in evidence. The prosecution played the surveillance video for the jury. Monahan testified about his investigation, and a salesperson and security guard from the jewelry store, both of whom were present during the robbery, testified about the robbery. The security guard had identified Munford in a line-up prior to trial and identified him as well at the trial. Additionally, the prosecution introduced clothing found at Munford's apartment after his arrest that the two jewelry store witnesses identified as being worn by one of the robbers, and cellular telephone records reflecting twelve calls between Munford and Grant near the location of the jewelry store on the day of the robbery. On February 4, 2005, the jury convicted Munford of two counts of first degree robbery, five counts of second degree robbery and one count of grand larceny.
Munford appealed on the grounds that, inter alia, there was no probable cause for his arrest, he was denied due process at the suppression hearing, and the admission of Grant's conviction violated Munford's Confrontation Clause rights. The Appellate Division, First Department affirmed the conviction on March 25, 2008, finding no violation of Munford's Fourth Amendment rights as a result of the denial of the motion to suppress. The First Department held that the information supplied by the second informant satisfied both prongs of the Aguilar/Spinelli test because the reliability of the information was established "by corroboration through independent verification of sufficient details of that information" and the informant's basis of knowledge was "verified by independent police investigation."People v. Munford, 49 A.D.3d 444, 445-46 (1st Dep't N.Y. 2008). Additionally, the First Department noted that "the confidential informant's statement that he held the pistol that had been seized in the robbery indicates that he had `intimate knowledge of the criminal enterprise.'" Id. The First Department also found that, while Munford's Sixth Amendment "right of confrontation was violated when the trial court permitted the People to establish that a nontestifying codefendant had been previously convicted of the jewelry store robbery, the error was harmless, even under the standard for constitutional error" because the evidence of the conviction "did not significantly strengthen the People's overwhelming case." Id. The New York Court of Appeals denied leave to appeal. People v. Munford, 10 N.Y.3d 937 (2008).
DISCUSSION
The Report recommends that both of Munford's claims of error be rejected. Munford's petition argues that he was denied a full and fair opportunity to litigate his Fourth Amendment claim as a result of the limitations placed on defense counsel at the suppression hearing and the prosecution's reliance on a new factual theory on appeal. The petition also argues that Munford's Sixth Amendment rights were violated when the appellate court applied harmless error review in an objectively unreasonable manner. Munford's counsel has filed timely objections to the Report.
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The court must make a de novo determination of the portions of the report to which petitioner objects. Id.; see Finkel v. Romanowicz, 577 F.3d 79, 84 n. 7 (2d Cir. 2009) (citation omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, modified the standard under which federal courts review § 2254 petitions where the state court has reached the merits of the federal claim. Habeas relief may not be granted unless 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" or "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)(1), (d)(2). State court factual findings "shall be presumed to be correct" and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. § 2254(e)(1).
1. Fourth Amendment Claims
The Report correctly determined that habeas relief was precluded on Munford's Fourth Amendment claims by Stone v. Powell, 428 U.S. 465 (1976), which instructs that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494. The Report noted that a state corrective process was available to and employed by Munford. He litigated his Fourth Amendment claims at the pretrial suppression hearing and on direct appeal to the First Department. Moreover, Munford has not shown that the limited exception to this well established principle is available to him; he was not shown an "unconscionable breakdown" in state procedure. Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977). None of Munford's objections to the Report suggests that this is the rare case in which an exception to Stone v. Powell lies.
2. Sixth Amendment Claim
The First Department concluded that the trial court's violation of Munford's Sixth Amendment confrontation right was harmless. Munford argues that the First Department applied harmless error review in an objectively unreasonable manner.
The First Department applied Chapman v. California, 386 U.S. 18 (1967), in making its harmlessness determination. Relying on Fry v. Pliler, 551 U.S. 112, 121-22 (2007), the Report applied theBrecht "substantial and injurious effect" standard for harmless error review. Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). Munford asserts that Fry is not controlling, but concedes that the determination of whether any error was harmless should be identical under both standards.
The parties do not dispute that Munford's rights under the Confrontation Clause were violated by the evidence that Grant had already been convicted of the jewelry store robbery. See United States v. Reifler, 446 F.3d 65, 86-87 (2d Cir. 2006) (error to admit a co-conspirator's plea allocution). When such an error has occurred, a court must determine whether the error was harmless.United States v. Oluwanisola, 605 F.3d 124, 133 (2d Cir. 2010). Harmless error review in this context requires the court to ask "whether [it] can conclude with fair assurance that the errors did not substantially influence the jury." Id. (citation omitted). That determination is made by considering the five factors enumerated in Delaware v. Van Arsdall, 475 U.S. 673 (1986): "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Perkins v. Herbert, 596 F.3d 161, 177 (2d Cir. 2010) (quoting Van Arsdall, 475 U.S. at 684).
The Report recommends that the challenge to the First Department's harmless error review be rejected. The Report described the trial evidence unrelated to Grant and characterized it as "overwhelming." As the Second Circuit has explained, "the strength of the prosecution's case is probably the single most critical factor" in a harmlessness determination.Perkins, 596 F.3d at 177 (citation omitted). The Report also noted that the "prosecutor's summation did not over-emphasize the importance of Grant's conviction."
In his objections, Munford argues that the admission of Grant's conviction had a substantial effect on the jury because the other evidence was not overwhelming and the improperly admitted evidence played a prominent role in the prosecution's case. This mischaracterizes the evidence at trial. Munford's conviction was based on extensive evidence, including the surveillance video, testimony from the jewelry store's salesperson and security guard, and the clothing found at Munford's apartment. Although the prosecution mentioned Grant's conviction several times during summation, the Report correctly characterizes those references as "fleeting" in the context of the entirety of the summation. In sum, Munford has failed to show that the First Department was unreasonable in concluding that the admission of Grant's conviction was harmless.
CONCLUSION
The September 14, 2009 petition for a writ of habeas corpus is denied. In addition, the Court declines to issue a certificate of appealability. Munford has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Court also finds 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 Court shall dismiss this petition and close the case.
SO ORDERED: