Opinion
01-CV-3256, 03-MISC-0066
August 20, 2003
MEMORANDUM, ORDER AND JUDGMENT
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary, This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
By petition filed May 18, 2001, petitioner (sometimes referred to as defendant) seeks a writ of habeas corpus on the following grounds:
Police obtained appellant's inculpatory statement by unfairly manipulating his right to counsel. Preparatory to arresting appellant and bringing him back to New York, the assigned detective applied for an arrest warrant. Instead of a warrant based on their investigation of this case, the police obtained a warrant listing an older, unrelated robbery in which appellant also was a suspect. Based on the suppression hearing under this indictment, appellant's alleged role in the tire store robbery/killing was the reason the police were interested in him.
Appellant's right to be present at all material stages of his trial and to have the court supervise all such proceedings were violated. During Leibe Hernandez's testimony, the prosecutor sought to refresh Hernandez's recollection about seeing a gun in codefendant Ortiz's possession. Because the refreshment document was written in English and Hernandez speaks only Spanish, the court ordered the proceeding to be held out of the jury's presence, lest the jury hear what the interpreter was saying. Instead of dismissing the jury, the court ordered the procedure outside the courtroom.
The evidence showed that on Sunday, December 4, 1994, petitioner Raymond Santiago and codefendant Santos Ortiz drove to the Bushwick Tire shop in Brooklyn, where they inquired for the second time in two days about purchasing a distinctive set of four chrome wheels. When store employee Harry Joseph repeated that the rims cost $700, petitioner Santiago and codefendant Ortiz asked to see how the rims would be installed. Joseph escorted the two men to the workshop, where 78-year-old shop owner Andrew West was seated. Saying nothing, petitioner Santiago grabbed Joseph from behind, while codefendant Ortiz pulled out a 9-millimeter handgun. West swung his crutch at codefendant Ortiz, who aimed his handgun at West and fired, fatally wounding West in the abdomen.
Petitioner Santiago and codefendant Ortiz bound Joseph and the still living West with duct-tape before rifling through their pockets and taking cash. Then, petitioner Santiago and codefendant Ortiz left the shop, taking with them the distinctive chrome tire rims. A short time later, they sold the rims for $600.
Detective Burzotta obtained an arrest warrant for petitioner pertaining to an unrelated Brooklyn case. He faxed the warrant to Florida, and petitioner was arrested on that warrant in Pope County, Florida. Detective Burzotta — in the presence of Detective Vigiani — interviewed petitioner at 11:15 p.m., on January 15, 1995, in the Pope County Sheriffs office. The detective advised petitioner of his rights, reading them from his memo book. Petitioner waived his rights. Petitioner did not ask for a lawyer, and he agreed to make a statement.
Petitioner stated:
Miguel and me went to Bushwick Avenue and Covert Street. Our intention is to snatch four rims and leave.
I was outside looking at the rims. Shorty comes up to me and states can I help you. I asked him how much for the rims. He states $700, a thousand with the tires.
Miguel goes into the trailer, I had the duct tape. I was out with Miguel before. I carried duct tape.
We were going to do someone, rob someone. We were going to do a drug spot or a number's spot. These spots don't file reports.
Those rims came up and we saw the old man. We thought we wouldn't have any problems.
I then went into the trailer by the door. I put the duct tape on the floor. I went back to the rims and distracted Shorty. I then heard a pop. Shorty then snuffs me.
I took Shorty inside the trailer and tied him up with duct tape. At this point I saw Miguel and the old man struggling.
I ran out and grabbed two rims. I ran down Covert Street toward Evergreen. I went to the car. We had a black Honda two door.
The car was on Evergreen Avenue and Covert Street. I put the rims in the trunk and Miguel came down the block with the other two rims and he put them in the trunk.
I asked Miguel what happened in there. Miguel stated a tire blew out. I was struggling with the old man.
We then left in the car. Miguel drove the car. Miguel dropped me off near my house.
I found out on the news on Monday that the old man was killed. I knew Miguel for two months.
Petitioner refused to sign the statement.
Detective Burzotta showed petitioner a photo array containing codefendant Ortiz's photo. Petitioner identified Ortiz as "Miguel, the guy I was with." The detective flew with petitioner to New York. Petitioner wanted to talk on route to airport, but Detective Burzotta told him to wait until they were at the precinct, so that he could write it down. Upon their arrival at the 83rd Precinct, at 7:00 on the evening of January 17, 1995, Detective Burzotta again advised petitioner of his rights, which petitioner waived. Petitioner said that he lied about certain facts in his initial statement and recounted the following;
I know Miguel for two months. I stated his name is Miguel. His name is Santos. I know Santos for two months. Santos stated we can get money for these rims on Covert Street and Bushwick Avenue.
We were looking to do drug spots or a number's spot. I needed money for my kids. We went to the tire shop to get the rims. I approached Shorty and asked how much for the rims.
Shorty stated $700.00. I distracted Shorty while Santos went into the rear door of the trailer.
Shorty and me went into the front of the trailer. In the trailer I was with Shorty in the front. Santos was with the old man in the rear of the trailer struggling.
Me and Shorty were fighting. The old man hit Santos with a crutch. I then heard one loud blast. I was not sure if it was a shot or a blown tire. I still see the old man and Santos struggling.
I then duct tape Shorty's arms and legs and I then run out the rear door and take two rims. I run to the car, black two door Honda we parked on the corner of Evergreen and Covert Street. I put the two rims in the trunk.
Three minutes later Santos is walking down the block with the other two rims. We get into the car and Santos drives away.
I asked Santos what happened. He states a tire blew out. I felt sick at this time. We drive to Fulton at this time. We sold the rims in East New York. I was throwing up. I was upset. We then split up.
The next day I watched T. V. and I see that an old man was killed in a tire shop. I went looking for Santos.
I was upset. I saw Santos three days later and I went up to him. I told him you heard about the news on T.V. Santos stated no. The old me got killed. Santos stated, what you saying, I killed him? I told Santos I'm asking if you killed him. Santos stated no.
I told Santos I don't want to be part of it. Santos left.
No one else was in the trailer except Santos, me and the old man and Shorty.
Petitioner again refused to sign the statement.
When put before a video camera, petitioner asked for a lawyer.
Later that same evening, Detective Burzotta conducted a lineup in which petitioner was a participant. Harry "Shorty" Joseph did not identify petitioner. However, three other witnesses — James Berberena, Leibe Hernandez, and Osvaldo Linares — identified petitioner as one of two men that each had seen in possession of the stolen rims following the robbery. Petitioner and the codefendant were charged with two counts of murder in the second degree for the shooting death of Andrew West (P.L. § 125.25[1], [3]. Petitioner and the codefendant were also charged with four counts of robbery in the first degree (P.L. § 265.02 [4]).
A pretrial hearing was conducted on petitioner's motion to suppress his statements. Prior to the hearing, defense counsel had informed the court that he was contesting the admissibility of the statements on two grounds: (1) whether the statements were given freely, willingly after a full assessment of his rights under Miranda, and (2) whether petitioner made the statements at all. Detective Burzotta was the sole witness. In his cross-examination of Detective Burzotta, defense counsel focused on factual details in the two statements. Counsel did not question the detective about the arrest warrant. He asked only if petitioner asked for a lawyer in Florida and then if petitioner asked for a lawyer on videotape. At the conclusion of the hearing, defense counsel argued that petitioner's request for counsel when he was asked to give a videotaped statement evinced that petitioner's two earlier statements were not voluntary.
The hearing court denied the defense motion to suppress the two statements. The court found that Detective Burzotta was a credible witness. It found that petitioner was advised of his Miranda rights prior to both statements, and that petitioner knowingly, voluntarily, and intelligently waived those rights. The court found that the voluntariness of the statements was not undermined by petitioner's decision not to sign them.
Petitioner Santiago and codefendant Ortiz were simultaneously tried before separate Juries.
Three witnesses identified petitioner at the trial.
The jury convicted petitioner of both counts of robbery in the first degree. The jury acquitted petitioner of felony murder (2257-61). His codefendant was convicted of murder in the second degree.
On October 10, 1995, the court sentenced petitioner to two concurrent terms of imprisonment of twelve and one-half to twenty-five years.
On direct appeal to the Appellate Division, Second Department, petitioner claimed
POINT I — The police obtained petitioner's inculpatory statements by "unfairly manipulating" his right to counsel. According to petitioner, (i) he was questioned about this case while he was in custody on another case, as to which petitioner's right to counsel had attached; (ii) he either had or had requested counsel in the other case when he was questioned about this case; (iii) the police investigating this case conspired to deny him the right to counsel by securing his arrest in the other case in order to gain unrestricted access to him.
POINT II — The trial court deprived petitioner of his right to a public trial by excluding his children and wife from the courtroom during the charge.
POINT III — The trial court's and petitioner's absence from a procedure in which the prosecutor refreshed a witness's recollection of a statement with a police document violated petitioner's right to be present at all material stages of his trial and to have the court supervise all such proceedings.
The Appellate Division correctly rejected as without merit petitioner's claim that his statements to the police should have been suppressed because he was denied the right to counsel through trickery. The hearing record is devoid of any substantiation for petitioner's claim that petitioner's arrest in Florida on an unrelated warrant was strategically engineered by the police in order to deny petitioner his right to counsel in this case. The hearing record does not substantiate petitioner's claim that, upon his arrest in Florida on the unrelated warrant, he had requested counsel or was already represented by counsel in the unrelated criminal matter when he was questioned about the robbery and murder at issue in this case. At trial no evidence was adduced to substantiate these claims.
Petitioner moved to suppress his two statements on the ground that he had not been properly advised of and had not waived his rights prior to his first statement in Florida, where he had been arrested on a warrant issued in an unrelated Brooklyn case. Petitioner also claimed that he had not made the statements. Petitioner did not argue — either before, during, or after the hearing — that his statements should be suppressed (i) because he had been questioned while in custody on another case (the "custodial Brooklyn case"), as to which his right to counsel had attached; (ii) because he had requested counsel or had counsel in the Brooklyn custodial case when he was questioned in the absence of counsel about the crimes now at issue and (iii) because the police investigating the instant case had conspired to deny him the right to counsel by securing his arrest in the custodial Brooklyn case in order to gain unrestricted access to him. Petitioner did not make part of the record any "facts" that would arguably have been necessary to resolve these new theories of error.
The People went forward with evidence that Detective Burzotta informed petitioner that he had the right to remain silent and the right to have counsel and that petitioner waived those rights and voluntarily made a statement about the case on appeal, not about the unrelated custodial case. The hearing court determined that petitioner was competent to waive his right to counsel in the instant matter, and that the police did not violate his right to counsel by advising him of his rights and eliciting a waiver.
Petitioner nevertheless argued, as he does now, that the interrogation did violate his right to counsel because he was he was in custody on another case when he was approached by Detective Burzotta about the crimes now at issue.
Based upon the hearing evidence, a derivative right to counsel did not attach in this case. There was no evidence that petitioner had actual representation on the custodial Brooklyn case or that the right to counsel in that case had attached. There was no evidence that the two criminal matters were so closely related that questioning on the unrepresented matter would all but inevitably have elicited incriminating responses about the represented matter. Thus, consideration of any theory of derivative rights would be founded solely upon speculation.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. 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." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003), Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted" 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDP A's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. My 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "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." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the petitioner's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal petitioner beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that petitioner violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal petitioner "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const, amend, VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S., No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland., 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001), The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's, prejudice prong, See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994), Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No, OO CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudia v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California., 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XII. Certificate of Appealability
Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, F.3d ___, No. 02-2320, slip op. at 10 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right.
XIII. Analysis of Claims
A.
While the petitioner failed to exhaust the claims respecting the arrest and statement in Florida by not raising the issue in the New York Court of Appeals, there is no reason to postpone final decision of the case. The claim is frivolous. It was adequately considered and properly ruled on by the state trial and intermediate appellate courts. The evidence was so overwhelming that it would have made no difference had the Florida statement not been taken.
B.
Petitioner claims that he was denied due process because the trial court failed to supervise a material stage of the trial, during which an interpreter translated a portion of a prior statement for a witness in the presence of counsel for the petitioners and the prosecutor. The Appellate Division held that petitioner did not preserve this claim for review. People v. Santiago, 277 A.D.2d 473, 474 (2d Dep't 2001).
New York State's contemporaneous objection rule is an adequate and independent state ground for decision. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). A federal court, when reviewing a habeas petition from a state prisoner, cannot consider the merits of a federal constitutional claim when the state court refused to review the merits of the claim on an adequate and independent state ground.
Although the Appellate Division went on to find that the claim was also without merit, this claim is nevertheless procedurally barred from habeas review. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("By its very definition, the adequate and independent state-ground doctrine required the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law"); Vargas v. Keane, 86 F.3d 1273, 1280 (2dCir. 1996).
Petitioner has not asserted any cause for his failure to comply with the state's contemporaneous objection rule. Nor has he shown any prejudice. See Murray v. Carrier, 477 U.S. 478, 485 (1986), and discussion, supra, Point II.
The claim seems so trivial as not to warrant further consideration. There is nothing wrong with interpreters helping counsel to understand documents, whether in or outside the courtroom. The judge need not be there. Nor need the petitioner. Because it has not, apparently, been raised before it is considered extensively below on the merits.
A petitioner has the right to be present "whenever his presence has a relation, reasonably substantial, to the fullness of the opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934). This right does not extend to those aspects of a trial where the petitioner's presence "would be useless, or the benefit but a shadow." Id. at 106-07.
Here, the record establishes that petitioner could have offered nothing to the procedure during which the interpreter — at the specific direction of the trial court and under the observation of both the prosecutor and defense counsel — read in Spanish a brief portion of a witness's statement that had been transcribed in English. The trial court did not abrogate its duty to preside over the trial when it directed the manner in which this proceeding was to be conducted in its absence.
During pretrial proceedings, the prosecutor alerted the court that he was encountering difficulty in securing the presence of previously cooperative witnesses because they felt threatened. Neither counsel for petitioner nor for the codefendant challenged the accuracy or veracity of the prosecutor's statements. Instead, both counsel stood by while te trial court clearly and unequivocally warned that any further threats or intimidation of witnesses would not be tolerated.
The prosecutor's direct examination of witness Leibe Hernandez — who spoke no English and who testified through a translator — was interrupted when the court adjourned until the following day. The prosecutor had not yet elicited from Hernandez the fact that the codefendant, not long after the robbery and murder, was in possession of a 9-millimeter handgun — which other evidence had established was the type of weapon he used to fatally shoot the victim. The defense knew that Hernandez had included this fact in pretrial statement because the People had disclosed it as Rosario material.
The following day, the prosecutor told the court that Hernandez had advised him that the codefendant had made a throat-slashing gesture when Hernandez had walked past the defense table after leaving the witness stand the previous day. Hernandez had interpreted the gesture asa threat by the codefendant to kill him because of his testimony. The court noted that it had earlier admonished the codefendant about threats to witnesses, and it considered whether to allow the prosecutor to question Hernandez about the gesture (Trial Record at 352).
When the People assumed direct examination of Hernandez the next morning, Hernandez was less responsive to questions than he had previously been. This led the court to give the prosecutor permission to pose leading questions "in view of the manner in which this witness is answering" (Trial Record at 365-66). When, however, Hernandez purported not to understand the prosecutor when he inquired whether he had seen a gun in the codefendant's waistband, the court denied the prosecutor's request to pose leading questions. It ruled, however, that, under the circumstances, the prosecutor could attempt to refresh Hernandez's memory through his prior statement (Trial Record at 365). Petitioner did not object, while counsel for the codefendant objected on the ground that Hernandez had not testified that he did not recall the fact. The court overruled the objection as a matter within its discretion (Trial Record at 365).
Because, Hernandez's statement about the weapon had been recorded in English — which Hernandez did not understand — it was necessary for the interpreter to translate into Spanish the pertinent and very short portion of the statement addressing the observation of the gun — which the prosecutor had clearly marked with a yellow highlight marker. The court directed that this brief procedure take place outside the courtroom, "so the jury can't hear what the interpreter is saying" to Hernandez (Trial Record at 365-66).
Defense counsel did not object. Counsel for the codefendant asked to be present. The court directed that both defense counsel and the prosecutor be present when the interpreter read the highlighted portions of the statement to Hernandez (Trial Record at 366). After the out-of-court procedure had concluded, the prosecutor immediately resumed direct examination of Hernandez (Trial Record at 366-67).
The court invited the parties to make a record of what had transpired in the hallway. The prosecutor stated:
My recollection is that I asked Mr. Hernandez to step into the rear of the Court. I showed him a DD-5 of one of his statements, it's DD-5 26, a statement taken from im on 12-20 of `94 b Detective Burzotta, I had the interpreter read a highlighted passage that I highlighted in my copy with a yellow highlighter that: Santos had a gun. He was playing with the gun, a gray 9-millimeter — which the interpreter translated to Mr. Hernandez. I had no conversations with Mr. Hernandez. Then we came back inside.
(Trial Record at 520-21). The court then invited counsel for the codefendant "to add or subtract from that narrative," and counsel responded:
I recall that he was read a highlighted portion from a Complaint Follow-up Report. I frankly don't recall exactly the substance of it, but the procedure relayed by Mr. Mueller is correct.
(Trial Record at 521). Next, counsel for petitioner stated that he had "nothing to add or subtract" and that the "defense is satisfied on behalf of Mr. Santiago with the agreement" (Trial Record at 521).
The court then found:
Having read pages 366 and 367 [of daily copy], on the basis of Mueller's uncontroverted narrative, I find that Mr. Mueller has accurately stated what happened outside of the courtroom, but since Mr. Soss [counsel for the codefendant] is not able to concede that fact, from now on we will do everything like that on the record.
(Trial Record at 522). Counsel for the codefendant then promptly conceded the accuracy of the prosecutor's recollection of what transpired (Trial Record at 522). Counsel for the codefendant then promptly conceded the accuracy of the prosecutor's recollection of what transpired (Trial Record at 522).
The court added:
I also find that the subject of the colloquy outside of the courtroom with Mr. Hernandez was a subject that [petitioner] and [codefendant] had no factual knowledge of since they weren't present during Mr. Hernandez' interview by the detective who wrote the report, which was translated to him outside of the courtroom.
So, no ones right to be present at the trial was violated.
(Trial Record at 522-23).
Neither petitioner expressed any disagreement. Neither moved for a mistrial on any ground.
C.
Petitioner has had a fair trial with adequate trial and appellate counsel. The prosecutor was appropriate. The judge carefully protected petitioner's rights. There is no issue of innocence or of a miscarriage of justice. No other claim is meritorious.
This habeas corpus application is an important matter to petitioner. The court has considered all of his claims. Those claims not discussed in this memorandum are frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may as already indicated, seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.