Opinion
97-CV-0551E (F)
September 20, 2000
Attorneys For The Plaintiff: Hollie E. Bethmann, Esq., c/o The Bethmann Law Firm, 737 Columbia Turnpike, #B-3, East Greenbush, N Y 12061
Attorneys For The Defendant: Bernadine M. Agocha, Esq., Asst. Attorney General for NYS, 107 Delaware Ave., 4th Floor, Buffalo, N Y 14202
MEMORANDUM and ORDER
Restivo petitioned July 9, 1997 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Walker filed a motion to dismiss the petition which the undersigned referred to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1)(B) for a recommended determination of the merits of the factual and legal issues raised by the Plaintiff. On April 17, 2000 Magistrate Judge Foschio filed his Report and Recommendation ("the RR") recommending that the Respondent's motion to dismiss be granted and the petition for habeas corpus be dismissed. Restivo timely filed his objections. Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the undersigned has made a de novo review of those portions of the RR to which Restivo has objected. Such objections will be overruled, the RR will be adopted in its entirety and the motion to dismiss will be granted.
While familiarity with the RR is presumed, the pertinent facts are briefly summarized herein. Restivo was convicted of felony murder, burglary and grand larceny March 11, 1982 and sentenced to incarceration in the Auburn Correctional Facility. Restivo filed an appeal to the Appellate Division, Fourth Department and requested permission to proceed there in forma pauperis. Such was denied April 2, 1982 without a hearing as to his financial means. He renewed his appeal, which was again denied September 8, 1982 at which time his appeal was dismissed for failure to prosecute. He was denied leave to appeal to the Court of Appeals November 30, 1982. On January 20, 1988 Restivo filed a petition for habeas corpus asserting denial of due process in that he had, without a hearing, been denied permission to appeal his conviction in forma pauperis. By Order dated July 16, 1992 the undersigned granted Restivo's petition and ordered that his conviction be vacated unless his appeal in the Appellate Division was reinstated within 60 days and he was granted in forma pauperis status and given assigned counsel. Restivo's March 11, 1982 appeal was then reinstated by the Appellate Division July 28, 1992 and he was given in forma pauperis status and assigned appellate counsel. His conviction was then unanimously affirmed by the Appellate Division December 23, 1994 and the Court of Appeals denied leave to appeal April 11, 1995. Restivo then filed another petition for habeas corpus July 9, 1997 which was transferred to the Second Circuit Court of Appeals which determined that certification was unnecessary and transferred the petition to this Court for the instant proceedings.
Restivo had raised six grounds in is his second petition but subsequently withdrew two of them — which related to alleged ineffectiveness of trial counsel and of appellate counsel. Four grounds were therefore left for consideration by this Court — viz., (1) whether the Appellate Division lacked jurisdiction to reinstate his appeal, (2) the propriety of evidentiary rulings by the trial court, (3) whether procedural rulings by the trial court were proper and (4) the sufficiency vel non of the evidence for conviction.
The Magistrate Judge recommended that the motion to dismiss be granted as to each of the four grounds. Restivo objects to the RR on the grounds (1) that the Appellate Division did not have the authority to reinstate his appeal and therefore could only vacate his conviction, (2) that he had requested but had not been given an evidentiary hearing by the Magistrate Judge and (3) that the Magistrate Judge erred in finding that he had not exhausted his state remedies in regard to the alleged inadequacy of the jury instructions and the insufficiency of the evidence for conviction.
Restivo argues that, after this Court had granted his first petition for habeas corpus and ordered that his conviction be vacated unless his appeal was reinstated in forma pauperis within 60 days and he was assigned appellate counsel, the Appellate Division could only vacate his conviction, as it was without authority under state law to reinstate his appeal. Restivo argues that the Supremacy Clause — U.S. Const. art. VI, § 3 — only applies when there is a conflict between federal and state law and that, in this case, there was no such conflict to be resolved — but rather a lack of jurisdiction in the Appellate Division — and that a federal court cannot confer jurisdiction on a state court where none exists.
However, despite Restivo's contention, the Supremacy Clause does apply in this situation, as there is a conflict between state law which, as he alleges, does not provide for the reinstatement of an appeal after it has been dismissed and the Due Process Clause of the United States Constitution which requires that a hearing be conducted before permission to appeal a criminal conviction in forma pauperis is denied. Where the state court has violated a defendant's due process rights, the Supremacy Clause mandates that the defendant be given another appeal pursuant to a federal writ of habeas corpus even if state law does not procedurally provide for such. Badgley v. Santacroce, 800 F.2d 33, 38 (2d Cir. 1986). It is further noted that it is not a rarity that a dismissed state court appeal has been reinstated pursuant to a federal writ of habeas corpus. In Muwwakkil v. Hoke, the Second Circuit Court of Appeals affirmed a district court order denying habeas corpus on the condition that the Appellate Division reinstate the appeal. 968 F.2d 284, 285 (2d Cir. 1992). The Appellate Division, in that case as here, reinstated and then denied the appeal in People Negron, 570 N.Y.S.2d (App.Div. 2nd Dep't 1991). Restivo further argues that it was factually impossible for the Appellate Division to reinstate the appeal because state law did not authorize it. In support of this contention Restivo cites cases where such impossibility was used as a defense to civil contempt. Badgley at 37 (citing cases). In contrast to being unable to turn over documents not in one's possession, reinstating an appeal is not factually impossible, as Restivo should have realized from the simple fact that the appeal was reinstated and heard. It thus appears that he is attempting to argue legal impossibility, due to the absence of a state law provision to reinstate the appeal. Any such legal impossibility, as noted, is overcome by the Supremacy Clause. The Appellate Division therefore had the authority to reinstate Restivo's appeal and the objections to the RR on that basis will be overruled.
United States v. Fay, 247 F.2d 662, 665 (2d Cir. 1957) ("the Constitution requires that poor defendants must be afforded the same opportunity to secure review of their convictions as are available to those who can afford to pay the necessary costs and expenses an appeal").
Mikail Muwwakkil was also known as Michael Negron.
Restivo objects to that part of the RR which stated that no evidentiary hearing was necessary, by simply alleging that he had requested a hearing and therefore one should have been granted. Objections to RR at 11. However such hearing is not mandated simply because a petitioner requests it; rather the court has discretion to decide whether an evidentiary hearing is necessary — Pagan v. Keane, 984 F.2d 61, 64 (2d Cir. 1993). The Magistrate Judge stated in the RR that Restivo had neither requested an evidentiary hearing nor challenged the state record as factually inadequate. RR at 20. While the undersigned notes that Restivo had in fact requested an evidentiary hearing and had stated that a full and fair review of the issues raised had not been conducted by the state court — Memorandum of Law by Petitioner in Opposition to Motion to Dismiss at 1 —, he agrees with the Magistrate Judge that no evidentiary hearing was required in this case. In requesting an evidentiary hearing Restivo does not specifically state any reason why the state record below would be inadequate as a basis for ruling on his habeas corpus petition, or what additional evidence reasonably could be gleaned from an evidentiary hearing.
Before a federal court can hear a claim that a plaintiff is being held in violation of his constitutional rights the same claim must have been presented to and exhausted in the state courts. Daye v. Attorney General of State of New York, 696 F.2d 186, 190-191 (2d Cir. 1982). For such a claim to be considered to have been presented to and exhausted in the state courts it must have been presented to the state courts in a manner that would have alerted the state courts to any federal constitutional claim. Ibid. This can be done not only by citing chapter and verse of the Constitution, but also by
"(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claims in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Id. at 194.
Restivo objects to the RR on the basis that the Magistrate Judge erred in holding that he had failed to exhaust his state remedies as to two of his claims. The Magistrate Judge concluded that this Court lacked jurisdiction to hear Restivo's claims that he had been deprived of due process through (1) inadequate jury instructions and (2) insufficiency of the evidence to support a conviction because Restivo had not raised these issues in his state court appeal. In his brief to the Appellate Division arguing that the jury instructions were inadequate and the evidence insufficient to support a conviction, Restivo framed both issues solely under state law. Petitioner's Appellate Brief at 16-20. Restivo now attempts to have these issues reviewed by this Court, alleging that he had couched them in terms such that the state court had been on notice that he was in fact raising a due process claim. Such is without merit. In his appellate brief, Restivo claims that the jury instructions were inadequate to explain the relationship of the law to the facts in regard to the fingerprint evidence and time of death as required by N.Y Crim. Proc. Law § 300.10(2); however, he made no mention of a due process claim and, even viewing this claim in hindsight, the undersigned fails to see how his brief would have alerted a state court that Restivo was actually raising a due process claim under the Fourteenth Amendment. See id. at 16-17. This claim therefore has not been exhausted in the state courts and consequently this Court does not have jurisdiction to entertain it.
The same applies for the claimed insufficiency of the evidence for conviction, as to which Restivo simply states that the conviction was contrary to the weight of the evidence and cites state cases. Petitioner's Appellate Brief at 16-20. At no point does he state that he was denied due process, as he now claims in his petition for habeas corpus. One of the state cases cited in Restivo's argument to the Appellate Division that his conviction had been contrary to the weight of the evidence is particularly telling in this regard. In People v. Bleakley, the Court of Appeals stated that it was reversible error for an Appellate Division to fail to conduct a review to determine if the weight of the evidence is sufficient to support a conviction in a criminal case. 69 N.Y.2d 490, 492 (1987). The Court specifically stated that this review was required to be done under N.Y. Crim. Proc. Law § 470.15(5), which requires an intermediate appellate court to determine if the conviction was against the weight of the evidence and does not state that such is required by the Due Process Clause of the Fourteenth Amendment. Id. at 493. In contrast to section 470.15(5), the Due Process Clause of the Fourteenth Amendment only requires that there be substantial evidence, whether direct or circumstantial, that, when viewed in the light most favorable to the prosecution, would allow any rational trier of fact to find that the elements of the crime had been proven beyond a reasonable doubt. United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir 1989). It is thus clear that in his appellate brief Restivo's argument that the evidence was insufficient to support his conviction was not made under the Due Process Clause, but rather under section 470.15(5). Petitioner's Appellate Brief at 17-20. This Court therefore has no jurisdiction to hear this unexhausted claim.
Not only can this Court not now hear Restivo's allegations that he had been denied due process because he had failed to exhaust them in the state courts, but he has also procedurally defaulted on them by not raising such issues in his appeal to the Appellate Division and is now barred from raising them in state court, either through further review by the Court of Appeals or through collateral attack. Strogov v. Attorney General of State of New York, 191 F.3d 188, 193 (2d Cir. 1999). When a petitioner has procedurally defaulted on certain issues in state court, the only way a federal court can entertain those issues is if the petitioner can show cause for the default and resulting prejudice or demonstrate that a fundamental miscarriage of justice would result from a failure to consider such issues. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Restivo has presented neither any evidence of cause and resulting prejudice nor any reason why failure to consider these claims would be a fundamental miscarriage of justice; thus this Court has no jurisdiction to hear these claims on which he has procedurally defaulted in the state court.
Restivo heavily relies on Fay v. Noja, 372 U.S. 391 (1963), in his Objections to the RR, arguing that, if he had procedurally defaulted on the above claims, he did not do so intentionally so as to bar federal review under habeas corpus. However Fay was explicitly overruled by Coleman v. Thompson, 501 U.S. 722, 750 (1991). The rule today is that when a
"state prisoner has defaulted on his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Ibid.
Accordingly it is hereby ORDERED that Restivo's objections are overruled, that the RR is adopted in its entirety, that the motion to dismiss is granted and that this case shall be closed. There having been no substantial showing by Restivo of the denial of a constitutional right, no certificate of appealability pursuant to 28 U.S.C. § 2253 shall be issued.