Opinion
97-CV-615 (DNH/GLS).
June 8, 2000
WILLIAM RUST, Petitioner, Pro Se, Bare Hill Correctional Facility, Malone, NY.
HON. ELIOT SPITZER, Attorney General of the State of New York, Department of Law, OF COUNSEL, STEVEN H. SCHWARTZ, ESQ., Asst. Attorney General, Albany, New York, FOR THE RESPONDENT.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed a habeas corpus petition on April 29, 1997. This court issued an Order pursuant to the Rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent and requiring service of an answer or other pleading by respondent. Respondent has filed his answer together with the pertinent state court records and a memorandum of law.
Petition was signed on April 18, 1997.
The State court records submitted by the respondent are listed on pages 1-2 of the answer.
Petitioner complains of a judgment of conviction rendered against him on May 8, 1995, following a jury trial in Broome County Court wherein the petitioner was convicted of criminal possession of a weapon in the third degree. Petitioner was acquitted of assault in the second degree and attempted assault in the second degree. Petitioner was adjudicated a second felony offender and was sentenced to two to four years imprisonment.
When this court contacted the respondent's counsel, he advised this court of the petitioner's release and parole. Habeas corpus review is proper in this case because the Supreme Court and the Second Circuit have recognized that a prisoner who has been released but has been placed on parole remains "in custody" for habeas purposes. Inter alia, Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989); Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994). Petitioner has not informed this court of a change of address.
On April 14, 1995, petitioner filed a motion pursuant to N.Y. Crim. Proc. Law § 330.30 in which he argued that his conviction for criminal possession of a weapon in the third degree should be set aside. He argued that due to his acquittal of assault in the second degree and attempted assault in the second degree, the verdicts were "repugnant." On April 25, 1995, the Broome County Court denied the motion. (Sentencing Tr. at 8-9). On March 27, 1996, the petitioner filed an appeal with the Appellate Division, Third Department, which affirmed the conviction on November 27, 1996. People v. Rust, 233 A.D.2d 778, 650 N.Y.S.2d 831 (3rd Dep't 1996). The New York Court of Appeals denied leave to appeal on February 5, 1997. People v. Rust, 89 N.Y.2d 988, 678 N.E.2d 1363, 656 N.Y.S.2d 747 (1997).
On direct appeal, the petitioner argued that: 1) the court committed reversible error in failing to make an appropriate response to a jury inquiry during deliberations; 2) the verdicts were repugnant; 3) the conviction was against the weight of the evidence; and, 4) he received ineffective assistance of counsel.
Petitioner raises three Grounds for relief in his application for habeas corpus. He argues that: 1) the court committed reversible error in failing to make an appropriate response to a jury inquiry during deliberations; 2) the verdicts were repugnant, and this court should reach the issue in the interest of justice; and, 3) the conviction was against the weight of the evidence.
Respondent seeks dismissal of the petition because the petitioner has procedurally defaulted on each of the claims raised in his petition.
For the following reasons, this court recommends that the petition be denied and dismissed.
1. Facts
Petitioner's conviction of criminal possession in the third degree results from an incident that occurred on July 4, 1994, wherein the petitioner and his father-in-law engaged in a heated argument. Petitioner approached his father-in-law with a six inch fillet knife, and a struggle ensued. As a result of this incident, the petitioner was charged with two felonies, and he was convicted and sentenced to the referenced term.
Petitioner was charged with assault in the second degree and criminal possession of a weapon in the third degree. The People requested and received a jury instruction on the lesser included offense of attempted assault in the second degree. (Trial Tr. at 432).
2. Procedural Default
Federal habeas review is barred where the last state court rendering a decision in the case has rejected federal claims pursuant to an independent and adequate state procedural rule, unless the petitioner can demonstrate cause for the default and actual prejudice resulting from the alleged violation of federal law, Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991), or if he can establish that he is "probably . . . actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). If the last state court to render a judgment on the issue "clearly and expressly" stated that its judgment rested on a state procedural bar, federal habeas review is barred. Harris v. Reed, 489 U.S. 255, 262-263, 109 S.Ct. 1038,1043, 103 L.Ed.2d 308 (1989).
Federal courts may address the merits of a claim that has been procedurally defaulted in state court only upon a showing of cause for the default and prejudice to the petitioner. Wainright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d (1977). Cause may be established by "a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that `some interference by state officials' made compliance impracticable, . . . [or] the procedural default is the result of ineffective assistance of counsel." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). When the petitioner has not established cause for his procedural default, it is unnecessary for the court to determine whether he has suffered actual prejudice. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir 1985).
In Ground One, where petitioner claims that the trial court committed reversible error by responding improperly to a question from the jury, petitioner has procedurally defaulted. This issue was raised on direct appeal. The Appellate Division, Third Department, decision, clearly and expressly stated that the issue was unpreserved for appellate review due to counsel's failure to timely object. People v. Rust, 233 A.D.2d 778, 779, 650 N.Y.S.2d 831, 832 (3rd Dep't 1996). Since the Appellate Division decision rests upon a state procedural rule, federal habeas corpus review of Ground One is barred. Therefore, Ground One of the petition should be dismissed.
In order to preserve a question of law for appellate review, New York State law requires that, "a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding [be] presented, . . . by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court ha[s] an opportunity of effectively changing the same." N.Y. Crim. Proc. Law § 470.05(2).
In Ground Two, where petitioner alleges that the verdicts were repugnant, the petitioner has also procedurally defaulted. This issue was also raised on direct appeal. The Appellate Division, Third Department, found that the petitioner had "concede[d] that this argument [wa]s unpreserved" for appellate review. People v. Rust, 233 A.D.2d 778, 779, 650 N.Y.S.2d 831, 832 (3rd Dep't 1996). Petitioner's counsel conceded error when he failed to object to the verdict being repugnant. Counsel claimed that his objection "would [have] put at risk an adverse reconsideration of the acquittal on the other charges." (Pet'r Mot. to Set Aside Verdict at 3). Since the Appellate Division decided this issue pursuant to an independent and adequate state procedural bar, federal habeas review of Ground Two is barred.
Even if the petitioner's repugnant verdict claim was not procedurally barred, "inconsistent jury verdicts are not a ground for habeas relief." Estrada v. Senkowski, 1999 WL 1051107, *13 (S.D.N.Y. November 19, 1999) (citing inter alia, United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 473, 83 L.Ed.2d 461 (1984); Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 464, 70 L.Ed.2d 530 (1981); Dunn v. United States, 284 U.S. 390, 393-394, 52 S.Ct. 189, 190-9, 76 L.Ed. 356 (1932); United States v. Acosta, 17 F.3d 538, 545 (2d Cir. 1994). Petitioner has not demonstrated cause for his default or established that he is actually innocent. Thus, this court need not address whether the petitioner has suffered actual prejudice, accordingly Ground Two of the petition should be dismissed.
3. Exhaustion
Generally, if a federal habeas petition contains unexhausted claims, a federal court should dismiss it. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). However, when it is clear that the state court would consider the unexhausted claims to be procedurally barred from presentation to that court, the claims are deemed exhausted. Grey v. Hoke, 933 F.2d 117, 120-121 (2d Cir. 1991). Moreover, a habeas corpus petitioner who fails to raise a claim in the highest state court is precluded from asserting the same claim in a habeas corpus proceeding, absent a showing of cause for the procedural default and "prejudice resulting therefrom." Grey, 933 F.2d at 121.
In Ground Three, where the petitioner alleges that the verdict is against the weight of the evidence, the petitioner has failed to exhaust all of the state remedies. By not raising his claim in his application seeking permission to appeal to the state's highest court, the petitioner failed to fulfill the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). Since New York procedural rules only allow one application for leave to appeal to the Court of Appeals, the petitioner's failure to present this issue precludes further consideration in the New York State courts. Thus, this claim is deemed exhausted.
N.Y. Court Rules § 500.10(a).
Nevertheless, the petitioner's claim is procedurally defaulted. Petitioner cannot litigate the merits of this claim in a federal habeas proceeding because he failed to bring this claim before the Court of Appeals. Absent a showing of cause and prejudice, the petitioner is procedurally barred. Petitioner has not alleged a cause for his failure to present the weight of the evidence issue to the Court of Appeals. Therefore, this court need not address whether the petitioner actually suffered prejudice and Ground Three should be dismissed.
Although the petitioner raised the issue of ineffective assistance of counsel before the Court of Appeals, he did not include this claim in his petition for habeas corpus.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN (10) DAYS within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). It is further
ORDERED, that the Clerk of the Court issue a copy of this Report-Recommendation to the parties by regular mail.