Spencer v. McCray

Full title: DEMETRIUS SPENCER, Petitioner, v. FRANK McCRAY, Respondent

Court: United States District Court, S.D. New York

Date published: Apr 30, 2004

01 Civ. 8029 (DAB)(FM) (S.D.N.Y. Apr. 30, 2004)

Opinion

01 Civ. 8029 (DAB)(FM)

April 30, 2004

REPORT AND RECOMMENDATION TO THE HONORABLE DEBORAH A. BATTS ^_

_ This Report and Recommendation was prepared with the assistance of Samantha Ettari, a student at Brooklyn Law School, Class of 2005.

FRANK MAAS, Magistrate Judge

I. Introduction

Petitioner Demetrius Spencer ("Spencer") brings this pro se habeas corpus proceeding pursuant to 28 U.S.C. § 2254, to challenge his conviction on one count each of Criminal Possession of a Weapon in the Second and Third Degrees, following a jury trial in Supreme Court, New York County. (Pet. ¶¶ 1, 4). On March 16, 1993, Justice Daniel P. Fitzgerald sentenced Spencer to concurrent indeterminate prison terms of seven to fourteen years and three to six years, respectively, on these charges. (See id. ¶¶ 2, 3). Thereafter on July 8, 1996, Justice Mickie A. Scherer sentenced Spencer to a concurrent two to four year term on a bail jumping charge to which he had pleaded guilty following his failure to appear for trial on the weapons charges. (Resp't's Mem. of L. at 5-6).

In his petition, Spencer contends that (a) the trial court's accomplice corroboration instruction was improper; (b) he should not have been tried in absentia because the trial court failed to update findings that it had made months earlier concerning his flight; and (c) his appellate counsel was ineffective. (Pet. ¶¶ 12(A)-(C)). For the reasons that follow, Spencer's petition should be denied. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Spencer should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.

II. Relevant Facts

A. Trial

The People's proof at trial would have permitted a reasonable juror to find as follows:

On July 29, 1991, while Spencer and Edward Melendez ("Melendez") were drinking alcoholic beverages on 29th Street between 10th and 11th Avenues in Manhattan, they decided to "stick somebody up." (TII-11-12).¹ The two selected as their target the occupants of a light blue Chrysler which was "rocking up and down" with the engine running. (Id. at 14-15, 23). Inside the car, Stella Kinsner ("Kinsner"), a prostitute, was performing oral sex on Suwei Chuang ("Chuang") in the back seat (TI-298-99).

1 "H." refers to the minutes of the pretrial hearing held April 16, 1992. "TI-" refers to the trial minutes of November 17, 1992. "TII-" refers to the separately-paginated trial minutes of November 24, 1992. "S." refers to the minutes of Spencer's sentencing on March 16, 1993.

As they entered the front of the Chrysler, Melendez was brandishing a loaded .32 caliber handgun and Spencer a switchblade. Kinsner fled from the car, but Chuang was unable to escape. (Id. at 300; TII-16). Once inside the car, Spencer declared, "This is a stick up" and unsuccessfully demanded money from Chuang who had spent the last of his funds on Kinsner's services. (TI-301; TII-16). On their way out of the Chrysler, Spencer and Melendez nevertheless were able to steal a cell phone and a purse. (TI-302; TII-16).

Spencer and Melendez ran to the vicinity of 11th Avenue and 28th Street where they got into a black four-door Oldsmobile in which Rafael Alkayem ("Alkayem") and Hector Carasquela ("Carasquela") were already seated. (TII-7, 9-11, 17, 28). As Spencer, Melendez, and the others were fleeing the scene, Kinsner was able to locate two police officers and give them descriptions of the robbers. (Id. at 83-85).

Within minutes, Officers Mark Anderson ("Anderson") and Steven Arcati ("Arcati") stopped the black Oldsmobile. (Id. at 28-29, 90). As the vehicle's occupants were exiting, Arcati saw Melendez attempt to kick a switchblade underneath the car. (Id. at 122-23). Arcati also noticed a cell phone in the front of the car. (Id. at 91). The four occupants of the car were then were taken to the 10th Precinct. (Id. at 32).

A little while later, Chuang went to the precinct to report the incident. (TI-310-11). After Officer Arcati learned that Melendez had wielded a gun during the robbery, he searched the Oldsmobile and found a loaded .32 caliber semi-automatic handgun stuffed under the back left seat. (See id. at 311; TII-125-26). At trial, Chuang identified the gun as looking "very much like the one" Melendez had displayed during the robbery. (TI-311).

The People established their case at trial through the testimony of Chuang, Anderson, Arcati, and Melendez, who was a cooperating witness.² The defense did not call any witnesses. Indeed, Spencer was tried in absentia because he fled from New York prior to trial.

2 In return for his cooperation, Melendez was permitted to plead guilty to a charge of attempted first degree robbery for which he later was sentenced to a prison term of one and one-half to four and one-half years. (TII-18-19; Resp't's Mem. of L. at 4 n. 1).

B. Conviction and Sentence

On November 30, 1992, the jury found Spencer guilty on the weapons charges, but acquitted him on a first degree robbery charge. (TII-569-72).

On March 16, 1993, Justice Fitzgerald sentenced Spencer in absentia to concurrent prison terms of seven to fourteen years and three to six years, respectively, on the second and third degree weapons charges.³ (S. 15). Spencer was released on parole on February 19, 2003.⁴ (See http://nysdocslookup.docs.state.ny.us/kingw00 (last visited April 28, 2004)).

3 Spencer was later charged with bail jumping on December 18, 1992, and, after his involuntary return, pleaded guilty to that charge before New York State Supreme Court Justice Micki Scherer. (Resp't's Mem. of L. at 5-6). On July 8, 1996, Justice Scherer sentenced Spencer to a two to four year prison term, to be served concurrently with the previously-imposed sentences. (Id. at 6).

4 Spencer has not furnished this Court with a new forwarding address. Accordingly, this Report and Recommendation has been sent to his last known address, at the Livingston Correctional Facility.

C. Alleged Errors

1. Trial in absentia

Spencer claims that he was improperly tried in absentia. At an April 16, 1992, pretrial conference, the People requested "Parkerization."⁵ (H. 2). In response to this request, Justice Fitzgerald cautioned Spencer as follows:

5 In People v. Parker, 57 N.Y.2d 136, 141 (1982), the New York Court of Appeals held that before a defendant could be deemed to have waived the right to be present at trial, the defendant "must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial. This, of course, in turn requires that defendant simply be aware that trial will proceed even though he or she fails to appear."

I'm going to leave you out pending trial and we're adjourning it to May 1st for trial. If you don't show upon on that date, decide not to show up for trial, we can start the trial without you, you can be convicted in your absence and sentenced in your absence. That's the essence of it.

(Id. at 3-4). The Justice also added that it would be "stupid" not to appear for trial because "there are a lot of additional matters that would [then] be a problem for [Spencer]," including possible bail jumping charges, a negative influence on the jury, and an inability on his part to assist his counsel at trial. (Id. at 4).

Thereafter, on June 23, 1992, Justice Fitzgerald advised Spencer that he was "on trial" and should appear in court on June 25, 1992 for jury selection. (Aff. of Assistant Attorney General Beth J. Thomas, sworn to on Feb. 28, 2002 ("Thomas Aff."), Ex. B ("People's Br.") at 21-22). On June 25, however, Spencer failed to appear — much to the surprise of his counsel, who had spent the prior day preparing him for trial. (Id. at 22). Justice Fitzgerald consequently postponed the trial so that the State could attempt to locate Spencer. (See TI-4-6).

Spencer later contacted his girlfriend, telling her that he had left the country, planned not return, and hoped to alter his fingerprints. (Id. at 6; People's Br. at 22-23). On November 17, 1992, on the basis of an affirmation from the prosecutor setting forth these and other facts, Justice Fitzgerald granted the People's application to proceed to trial despite Spencer's absence. (TI-4-6).⁶

6 Although the Respondent has been unable to locate this affirmation, (see Resp't's Mem. of L. at 17 n. 6), its contents are apparently not in dispute. See Thomas Aff. Exs. A ("Pet'r's Br.") at 5-7, People's Br. at 21-24.

2. Jury Instructions

Prior to closing arguments, Justice Fitzgerald indicated that he would give an instruction to the jury concerning Melendez's role as an "accomplice as a matter of law." (TII-401). Thereafter, in his charge, the Justice stated as follows:

Because Mr. Melendez is an accomplice, you are required to be familiar with a related principle of law. That section [in] relevant part states: [t]hat a defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.⁷ Under that law, the defendant on trial may not be convicted solely on the testimony of a witness who is an accomplice. Our law views with suspicion [the] testimony of an accomplice in a criminal trial since by his own testimony he was a participant in the events charged in the indictment. [This is e]specially true where an accomplice sought or received a promise of some consideration in exchange for his testimony. The law requires [that] the testimony of an accomplice be corroborated by other evidence apart from the accomplice's own testimony.

7 Justice Fitzgerald was quoting Section 60.22(1) of the New York Criminal Procedure Law.

(Id. at 523). The jurors were also instructed that if they found the testimony of the accomplice insufficient to satisfy them that the defendant was connected with the crime, they must "disregard [it] and strike his testimony from [their] minds." (Id. at 524-25).

In a related vein, Justice Fitzgerald instructed the jurors about the legal consequences of acting in concert, stating that "[u]nder New York law, a person is criminally liable for an act not only when he directly commits it, but also when acting with the same mental culpability required for the commission of the crime he solicits, requests, or intentionally aids in its commission." (Id. at 525).

Finally, Justice Fitzgerald instructed the jury that "the guilt of a defendant may be established without proof that the defendant himself did each and every act constituting the crime charged." (Id. at 526). Further explaining the role of an accomplice, the judge stated that, "[e]very person who deliberately and purposely participates in the commission of a crime may be found guilty of that very crime." (Id.). Thus, the jurors were advised that if they found that Spencer intentionally aided Melendez in the commission of the crime, he could be held criminally liable for Melendez's acts. (Id. at 528).

Spencer claims that Justice Fitzgerald's accomplice testimony instruction denied him "his due process right to a fair trial," because the Justice failed to inform the jurors that evidence independent of the accomplice testimony "had to link [Spencer] with each of the specific crimes for which he was on trial." (Pet. ¶ 12(A); Pet'r's Br. at 19). Noting that he was acquitted of the robbery counts but convicted on the weapons counts, Spencer claims that Justice Fitzgerald's purportedly incorrect instruction confused the jury with respect to the need for independent corroboration between Spencer and the gun recovered from the car. (See Pet'r's Br. at 19-24).

3. Ineffective Assistance of Appellate Counsel

Spencer's final claim is that his appellate counsel was ineffective. He alleges that his appellate counsel should have argued that his trial lawyer was ineffective because he failed to challenge — either peremptorily or for cause — two jurors who Spencer claims were not impartial.

During voir dire, in response to a questionnaire, juror Harvey Gaddy ("Gaddy") stated that he had been "on the job" as an auxiliary police officer for a five-year period that ended some six years earlier. (TI-58). Gaddy further disclosed that he had friends in the 28th Precinct. (Id.). Both the prosecutor and defense counsel pursued this issue in their questioning. In response to the prosecutor's inquiry, Gaddy stated that he did not think that the experience of having made a few arrests would affect his impartiality. (Id. at 80). Gaddy also advised counsel that he did not believe police officers would have any reason to lie, but that he would not "treat them any differently" and would follow the judge's instructions as to the law. (Id. at 90, 101-02). Subsequently, Gaddy became the jury foreperson. (Id. at 275).

The other juror Spencer finds objectionable was Charlotte Ahrendt ("Ahrendt"), a secretary who had served as a juror in connection with the trial of a narcotics case four years earlier. (Id. at 118, 150-51). In response to defense counsel's questions, Ahrendt stated that she could not assure him that nothing she learned "during that process" would enter into her deliberations in Spencer's case. (Id. at 151). Ahrendt also noted, however, that there was nothing particularly upsetting about the earlier trial. (Id.).

Spencer's counsel did not challenge either of these jurors at trial, nor was their selection questioned by Spencer's counsel on direct appeal.

B. Subsequent Procedural History

Spencer's appeal to the Appellate Division, First Department, asserted three grounds for reversal: (1) that the trial court's accomplice testimony instructions denied him his "due process right to a fair trial," (2) that he was improperly tried in absentia, and (3) that his sentence was an abuse of discretion. (See Pet'r's Br.). On December 7, 1999, the Appellate Division affirmed Spencer's conviction on both the weapons and bail jumping charges. People v. Spencer, 701 N.Y.S.2d 1 (1st Dep't 1999). In its decision, the court found that Spencer's jury instruction claim was unpreserved and declined to review it in the interest of justice. Id. at 2. The court went on to observe that if it had reviewed the claim it would have found it meritless because "the charge, read as a whole, clearly informed the jury that they were required to find independent evidence connecting defendant to each crime charged." Id.

The Appellate Division also rejected Spencer's objection to being tried in absentia, reasoning that he had "forfeited his right to be present at trial" by "absconding after being told that his case was on trial and that he was to return the next day for jury selection." Id. The court further held that this forfeiture applied even though the trial was held five months later because "the record established that defendant fled to a foreign country with no intention of returning and hid his identity so as to avoid apprehension." Id. Finally, the court concluded that Spencer's sentences were not an abuse of discretion. Id.

On January 20, 2000, the New York Court of Appeals summarily denied Spencer's application for leave to appeal. People v. Spencer, 94 N.Y.2d 885 (2000). Less than one year later, Spencer submitted to the Appellate Division a pro se application for a writ of error coram nobis in which he advanced the ineffective assistance of appellate counsel claim that he now seeks to prosecute in this forum. (See Thomas Aff. Exs. G, H). The Appellate Division denied that application on July 5, 2001. People v. Spencer, 731 N.Y.S.2d 906 (2001) (unpublished table decision).

Spencer's habeas petition is dated July 16, 2001, and was timely received by this Court's Pro Se Office on July 20, 2001. (See Docket No. 2). In his petition, Spencer renews his prior claims concerning the accomplice witness instructions, trial in absentia, and the alleged ineffective assistance of his appellate counsel.

III. Discussion

A. Standard of Review

A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).

Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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.

28 U.S.C. § 2254(d)(1) (emphasis added).

As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "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 [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that reasonable jurists would all agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).

Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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."

Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."

"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. at 389. As discussed below, because Spencer has failed to show that his conviction resulted from such constitutionally infirm proceedings in state court, he is not entitled to federal habeas relief.

B. Exhaustion

A court may not grant a writ of habeas corpus unless it appears that the petitioner has exhausted all available state court remedies, or there is an absence of state corrective process,or circumstances render that process ineffective to protect the petitioner's rights. See 28 U.S.C. § 2254(b)(1)(A), (B). As a defendant charged with a crime in New York State, Spencer unquestionably had an effective process available to him through the state statutes governing appeals in criminal cases. See N.Y. Crim. Proc. Law § 450.10 (McKinney 1994). Therefore, to satisfy the exhaustion requirement with respect to a particular federal claim, Spencer must show that he presented the substance of "the same federal constitutional claim that he now urges upon the federal courts to the highest court in the . . . state." Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001) (internal citations and quotation marks omitted).

"A federal constitutional claim has not been fairly presented to the [s]tate courts unless the petitioner has informed those courts of 'all of the essential factual allegations' and 'essentially the same legal doctrine he asserts in his federal petition.'" Strogov v. Attorney Gen. Of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982)). To meet this requirement, it is not necessary that the federal constitutional claim be presented to the state courts in haec verba. Indeed, there are a number of ways in which the claim may be presented, including:

[1] reliance on pertinent federal cases employing constitutional analysis, [2] reliance on state cases employing constitutional analysis in like fact situations, [3] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and [4] allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Daye, 696 F.2d at 194.

The Respondent contends that Spencer's claim regarding Justice Fitzgerald's accomplice testimony instructions is barred from federal review because Spencer failed to present it as a federal claim. (See Resp't's Mem. of L. at 9-10). In his direct appeal, Spencer alleged that the Justice's instructions violated his "due process right to a fair trial," but he relied exclusively on state law cases which made no reference to the United States Constitution. (See Pet'r's Br. at 19-24). Indeed, without the proper assertion of a federal constitutional violation, Spencer's jury instruction claim is not properly exhausted. See Daye, 696 F.2d at 194. In Gonzalez v. Sullivan, 934 F.2d 419, 423 (2d Cir. 1991), the Second Circuit held that the citation of a federal constitutional provision in a point heading of a petitioner's brief to the Appellate Division sufficiently alerted the state courts to the federal nature of his claims. The court stated that "it is plain that a state court must first have been given appropriate warning as to the federal nature of the claim before a federal court will consider it." While the court found that permitting a state petitioner to exhaust his remedies "merely by alluding to the federal constitution . . . undercuts this policy . . . we believe nonetheless that petitioner at least arguably complied with the requirements set forth in Daye."

Here, Spencer arguably has not met the minimal threshold that the Gonzalez court reluctantly set forth. Spencer's claim regarding Justice Fitzgerald's jury instructions in his brief to the Appellate Division does not allude to the United States Constitution at all, even in a point heading. (See Pet'r's Br. at 19-24). Whether or not this claim was properly exhausted is of little moment, however. As set forth below, Spencer's jury instructions claim is procedurally defaulted, and this Court thereby lacks jurisdiction to review it.

C. Procedural Default

Even if Spencer's accomplice instruction claim had been properly exhausted it is well-settled that a federal court may not consider an issue of federal law raised in a state prisoner's petition for a writ of habeas corpus if the state court's prior denial of that claim rested on an adequate and independent state ground. E.g., Harris v. Reed, 489 U.S. 255, 262, (1989);Wainright v. Sykes, 433 U.S. 72, 81, (1977). A procedural default qualifies as such an adequate and independent state ground, Harris, 489 U.S. at 262, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).

Here, Spencer's trial counsel never requested that Justice Fitzgerald employ specific language in his accomplice corroboration charge, nor did counsel object to the charge actually given. Accordingly, the Appellate Division found that Spencer's jury instruction claim was unpreserved and declined to review it in the interest of justice. Spencer, 701 N.Y.S.2d at 2. Pursuant to New York's contemporaneous objection rule, an objection must be raised at trial in order to preserve it for appellate review. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 2001). The Appellate Division's finding of procedural default therefore constitutes an adequate and independent state ground for rejecting his claim. See Washington v. James, 996 F.2d 1442, 1447-48 (2d Cir. 1993) (federal courts are "reluctant to hear claims procedurally defaulted in state court . . . out of respect for the dual court system and deference to the integrity of state courts"); Philips v. Smith, 717 F.2d 44, 48 (2d Cir. 1983) ("explicit state court reliance on a procedural default bars federal habeas review of the forfeited claim absent a showing of cause and prejudice regardless of whether the state court ruled alternatively on the merits of the forfeited claim").⁸

8 The subsequent order of the Court of Appeals denying leave to appeal without comment after the Appellate Division had expressly based its decision on a state procedural bar does not change this result. See Torres v. Hanslmaier, No. 94 Civ. 4082 (MGC), 1995 WL 272527, at *4 (S.D.N.Y. May 8, 1995) (citingLevine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995)).

Accordingly, this Court may not consider Spencer's claim concerning the accomplice witness charge unless he can showboth cause for the default and actual prejudice or that the failure to consider his claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. To demonstrate cause, a petitioner must adduce "some objective factor external to the defense" which explains why he did not raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488 (1986); Gonzalez, 934 F.2d at 422 (quoting Murray). The circumstances which may constitute cause include: (1) interference by government officials making compliance impracticable; (2) situations in which the factual or legal basis for a claim was not reasonably available to counsel; and (3) ineffective assistance of counsel. See Murray, 477 U.S. at 488; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray). A showing of prejudice requires a petitioner to demonstrate that the failure to raise the claim previously had a substantial injurious effect on his case such that he was denied fundamental fairness. Reyes v. New York, No. 99 Civ. 3628 (SAS), 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999). Finally, to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is "actually innocent."Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).

Spencer has not made any of the showings necessary to overcome his procedural default. Accordingly, this Court lacks jurisdiction to consider whether Spencer was prejudiced by Justice Fitzgerald's accomplice witness instructions. See Levine, 44 F.3d at 127 (2d Cir. 1995).

D. Merits

Although a federal court need only address claims which are exhausted and not procedurally barred, it is understandable that an inmate would want the merits of his claims to be reached. Moreover, there is always the possibility (however remote) that another court could reach a different conclusion concerning the threshold issues of exhaustion and procedural forfeiture. For these reasons, I have considered all of Spencer's claims on the merits. As shown below, none of his claims warrant habeas relief.

1. Jury Instruction Claim

To succeed on his jury instruction claim, Spencer must show that the error violated his federal constitutional rights. See Jackson v. Keane, No. 93 Civ. 5826 (LBS), 1994 WL 281831, at *4 (S.D.N.Y. June 23, 1994) (citing United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975)). In marked contrast to New York law, however, there is no federal constitutional requirement that accomplice witness testimony be independently corroborated. See Caminetti v. United States, 242 U.S. 470, 495 (1917) ("there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them"); Gaiter v. Lord, 917 F. Supp. 145, 150 (E.D.N.Y. 1996) (dismissing habeas claim "because the Federal Constitution does not prohibit the conviction of a defendant based on the uncorroborated testimony of an accomplice"); Smithwick v. Walker, 758 F. Supp. 178, 186 (S.D.N.Y. 1991) (New York safeguards regarding accomplice testimony exceed those of the Constitution); see also Estrada v. Senkowski, No. 98 Civ. 7796 (WHP)(AJP), 1999 WL 1051107 at *18 (S.D.N.Y. Nov. 19, 1999) (under New York law, the corroborative testimony only needs to "connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth") (citing People v. Daniels, 37 N.Y.2d 624, 630 (1975)). Therefore, under federal law "'[a] conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.'"United States v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999) (quotingUnited States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993)).

Here, Spencer could have been convicted, even without Melendez's testimony, on the basis of the circumstantial evidence of his guilt. He also could have been convicted on the basis of Melendez's testimony alone. Accordingly, an instruction which failed to set forth New York's limitations regarding accomplice witness testiony does not raise a federal claim.

In any event, even if state law were somehow applicable, Justice Fitzgerald properly conveyed the substance of the corroboration requirement by instructing the jury that Melendez was an accomplice and reciting the substance of Section 60.22(1) of the New York Criminal Procedure Law. Consequently, even if state law were controlling, Spencer would not be entitled to habeas relief on the basis of his jury instruction claim.

2. Trial in absentia

Spencer also claims that the trial court violated his Sixth and Fourteenth Amendment rights by trying him in absentia five months after the original trial date without updating its findings regarding the People's efforts to locate him.

The right to be present at every critical state of a trial is a "fundamental right of each criminal defendant," Rushen v. Spain, 464 U.S. 114, 117-18 (1983), which is rooted in both the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fifth and Fourteenth Amendments. See United States v. Canady, 126 F.3d 352, 360 (2d Cir. 1997) (citations omitted). Indeed, the right to be present is "scarcely less important to the accused than the right of trial itself." Diaz v. United States, 223 U.S. 442, 455 (1912).

Notwithstanding the importance ascribed to this right, it plainly may be waived. Thus, the Supreme Court has held that defendant who knowingly absents himself from the courtroom after trial has commenced "leaves the court free to proceed with trial in like manner and with like effect as if he were present."Diaz, 223 U.S. at 445. A defendant also may lose the right to be present at trial by engaging in disruptive conduct. Illinois v. Allen, 397 U.S. 337, 343 (1970). Although the Federal Rules of Criminal Procedure prohibit a federal court from commencing a trial in the defendant's absence, see Fed.R.Crim.P. 43, there is "nothing in the Constitution that prohibits a trial from being commenced in the defendant's absence so long as the defendant knowingly and voluntarily waives his right to be present." Smith v. Mann, 173 F.3d 73, 76 (2d Cir. 1999); see also Clark v. Stinson, 214 F.3d 315, 322-28 (2d Cir. 2000) (affirming denial of writ where petitioner was voluntarily absent from Wade hearing in state court).

A waiver of the right to be present at trial "can be either express or implied from the defendant's conduct." United States v. Nichols, 56 F.3d 403, 416 (2d Cir. 1995). Here, there was no express waiver prior to Spencer's trial. Nevertheless, Spencer clearly was aware of the trial date and chose to abscond. He therefore impliedly waived his constitutional right to be present at trial. See Mann, 173 F.3d at 76-77 (petitioner who allegedly overslept on the morning of trial and subsequently fled the jurisdiction out of fear was properly tried in absentia because his absence was voluntary and knowing); Phillips v. Miller, No. 01 Civ. 1175 (DF), 2000 WL 33650803, at *15 (S.D.N.Y. Dec. 3, 2000) (petitioner voluntarily waived his right to be present at trial when he refused to return to the courtroom for closing arguments, the jury charge, and the verdict, despite warnings that the court would proceed in his absence); McGann v. Kelly, 891 F. Supp. 128, 133-34 (S.D.N.Y. 1995) (petitioner voluntarily absented himself when he knowingly failed to appear for trial after being advised by the judge the day before that he had "better be ready to proceed").

Spencer's petition does not contest Justice Fitzgerald's finding that Spencer knowingly and voluntarily absented himself from trial after he was given Parker warnings and advised of the trial date. Instead, he advances the narrower claim that the trial judge should have updated his findings before the trial actually commenced some five months after the original trial date. Suffice it to say, he has cited no case that imposes such a requirement, nor is this court aware of any such authority. Accordingly, Spencer has not shown, as he must, the Appellate Division's rejection of his claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." See 28 U.S.C. § 2254(d)(1). His jury instruction claim is therefore meritless.

3. Ineffective Assistance of Appellate Counsel

Spencer's final claim is that his appellate counsel was ineffective because he failed to argue to the Appellate Division that Spencer's trial counsel was ineffective. Spencer contends that but for his trial counsel's failure to challenge two of the jurors, either peremptorily or for cause, he likely would have been granted a new trial.

In order to prevail on an ineffective assistance of counsel claim, Spencer must demonstrate that his counsel's performance (a) "fell below an objective standard of reasonableness" and (b) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). The Strickland standard applies not only to trial counsel but also to an attorney handling a defendant's appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985);Aparicio, 269 F.3d at 95.

In preparing a brief, appellate counsel is not required to raise every claim arising out of a trial and has the discretion to eliminate weaker ones. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) ("counsel does not have a duty to advance every nonfrivolous argument that could be made"). Furthermore, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. In order to satisfy the first prong of the Strickland standard, Spencer therefore must show that his appellate counsel did something more than omit from his brief a nonfrivolous argument that Spencer wished to pursue. See Evitts, 469 U.S. at 394;Aparicio, 269 F.3d at 95. He must establish that counsel opted not to raise "significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533; Bragg v. Kuhlman, No. 97 Civ. 3025 (SHS), 1998 WL 867245, at *3 (S.D.N.Y., Dec. 14, 1998).

Spencer's ineffective assistance of appellate counsel claim suffers from numerous defects. First, the record does not support his claim that the failure to challenge the two jurors was objectively unreasonable. Spencer contends that juror Gaddy, a former auxiliary police officer, was unfit to serve because he expressed a belief that police officers would have no reason to lie. However, when he was questioned further Gaddy assured defense counsel that he would treat police witnesses the same as others and would follow the judge's instructions, thereby indicating that he could be a fair and impartial juror. (TI-90, 101-02). Along with his fellow jurors, Gaddy also indicated that he would presume Spencer's innocence. (See Id. at 68).

Spencer alleges that juror Ahrendt should have been challenged because she could not assure the court that a previous criminal trial, in which she had acted as a juror, would not "come into play." (Id. at 151). Ahrendt also stated, however, that she did not expect that any information from the prior trial would affect her deliberations during Spencer's trial. (Id.). Accordingly, rather than exhibiting a predisposition to convict, Ahrendt merely indicated candidly that her prior life experience might have an impact on her view of the case.

When one of the other potential jurors exhibited bias, Spencer's trial counsel successfully secured his removal for cause. (Id. at 226-28, 233-35, 266-67). The facts relating to jurors Gaddy and Ahrendt, on the other hand, simply do not provide a basis for defense counsel to challenge them for cause.See Patton v. Yount, 467 U.S. 1025, 1035 (1984) (test for determining whether a juror is biased is whether the juror "had such fixed opinions that [he] could not judge impartially the guilt of the defendant"); Torrez v. Sabourin, No. 00 Civ. 3236 (AGS)(JCF), 2001 WL 401444, at *7 (S.D.N.Y. Apr. 19, 2001) (voir dire record did not support claim of juror bias where one juror assured the court that he could fairly evaluate police witnesses, and a second juror, who was a victim of prior burglaries, stated that he would not be influenced during determinations of guilt);Readdon v. Senkowski, No. 96 Civ. 4722 (JFK), 1998 WL 720682, at *4 (S.D.N.Y. Oct. 13, 1998) (affirming rejection of challenge for cause even though potential juror expressed belief that defendant was guilty of at least one charge).

Additionally, even if Spencer's jury selection claim had merit, it by no means follows that the issues that his appellate lawyer did raise were significantly less promising grounds for a reversal. Spencer therefore has not overcome the Strickland presumption that his appellate counsel's representation was adequate.

Turning to the second prong of the Strickland analysis, even if Spencer's trial and appellate counsel were inadequate, their shortcomings plainly were not outcome determinative. See Strickland 466 U.S. at 694. Indeed, the evidence against Spencer, which included the uncontradicted testimony of his accomplice and the recovery of both weapons from the vehicle in which he was riding, was simply overwhelming. Accordingly, any jury that heard the evidence presented by the People at trial would likely have concluded that Spencer was guilty of the weapons charges.

Finally, perhaps the best indication that Spencer's ineffective assistance claim is frivolous is the fact that he was acquitted on the first degree robbery count. A jury which included jurors who were was impermissibly biased against Spencer presumably would not have reached this result.

IV. Conclusion

For the foregoing reasons, Spencer's habeas petition should be denied. Moreover, because Spencer has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.

V. Notice of Procedure for Filing of Objections to this Report and Recommendation

The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send courtesy copies to the chambers of the Honorable Deborah A. Batts, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Batts. Any 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); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).