Opinion
CV-03-4922 (SJF).
August 16, 2004
OPINION ORDER
I. Introduction
Pro se prisoner Axel Adams ("Adams") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Adams asserts that: (1) the trial court failed to pay attention during trial; (2) his trial counsel was ineffective; (3) the trial court's charge concerning a prosecution witness's exercise of his Fifth Amendment privilege denied Adams his right to a fair trial; (4) the trial court violated Rule 32(a) of the Federal Rules of Criminal Procedure by declining to read a letter from Adams's wife before sentencing; (5) the trial court's evidentiary rulings denied Adams his constitutional right to present a defense and his right to a fair trial; (6) a prosecution witness's exercise of his Fifth Amendment privilege denied Adams his Sixth Amendment right to confront the witness against him; (7) Adams's silence was used against him at trial; and (8) the prosecutor engaged in misconduct. For the reasons set forth below, the petition is DENIED in its entirety.
The facts and procedural history are derived from the following documents: Petition under 28 U.S.C. § 2254 ("Petition"); Affidavit in Opposition to Petition for a Writ of Habeas Corpus ("Bordley Aff."); Respondent's Memorandum of Law ("Resp't Mem. of Law"); Transcript of Trial Proceedings ("Trial Tr."); and the exhibits attached to these documents.
On October 2, 1998, Wilfredo Jorge Olsen ("Olsen") was robbed at knifepoint inside a building at 1159 Bedford Avenue in Brooklyn. On the same date, an individual attempted to rob Ingrid Scholl in an adjacent business located in the same building. Adams was arrested near the scene of the crimes and identified by Olsen. In the vicinity, the police recovered a chain taken from Olsen and a knife that resembled the knife used in the robbery.
Adams was charged with one count each of robbery in the first degree, robbery in the second degree, robbery in the third degree, attempted robbery in the first degree, attempted robbery in the third degree, assault in the third degree, grand larceny in the fourth degree, petit larceny, attempted petit larceny, and criminal possession of a weapon in the fourth degree, as well as two counts each of attempted robbery in the second degree and assault in the second degree. A jury convicted Adams of robbery in the first degree and attempted robbery in the second degree, for which he was sentenced to concurrent prison terms of fifteen years and seven years for the two charges, respectively. Adams timely filed a notice of appeal from his judgment of conviction.
On January 26, 2001, Adams moved to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, arguing that his trial counsel was ineffective. Upon appeal from his judgment of conviction to the Appellate Division, Second Department, the newly-assigned attorney representing Adams claimed: (1) speedy trial violations pursuant to New York Criminal Procedural Law § 30.30; (2) that the conviction of attempted robbery in the second degree was against the weight of the evidence; (3) that the trial court violated New York Criminal Procedure Law § 390.40(1) by declining to read a letter from Adams's wife before sentencing him; (4) that the trial court abused its discretion under New York Criminal Procedural Law § 260.20 and violated Adams's Fourteenth Amendment right to a fair trial by failing to reopen his case after the final charge had been given to the jury; (5) that the trial court violated the Sixth Amendment by failing to pay attention during trial; and (6) that the Appellate Division should modify Adams's sentences pursuant to New York Criminal Procedural Law § 470.15(3).
In a pro se letter, Adams asked the Appellate Division to hold his appeal in abeyance until he received a decision on his motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. By pro se motion, Adams sought leave to file a supplemental brief to raise an ineffective assistance claim based upon trial counsel's failure to interview alibi witnesses. The Appellate Division issued an order denying both requests, People v. Adams, No. 98-10106, slip op. at 1 (N.Y.App.Div., 2d Dep't May 22, 2001), after which Adams filed pro se motions to reargue. In his affidavit in support of the motions, Adams claimed that he had incorrectly described the issue he intended to raise in his proposed pro se supplemental brief, and contended that his trial counsel was ineffective for failing to interview and cross-examine witnesses competently. The Appellate Division denied the motions to reargue. People v. Adams, No. 98-10106, slip op. at 1 (N.Y.App.Div., 2d Dep't Sept. 6, 2001).
On July 9, 2001, the Supreme Court, Kings County denied Adams's motion to vacate his judgment of conviction. Adams then applied for a certificate granting leave to appeal the order denying his motion to vacate, which was denied by the Appellate Division. People v. Adams, No. 98-10106, slip op. at 1 (N.Y.App.Div., 2d Dep't Sept. 21, 2001).
Adams's judgment of conviction was affirmed by the Appellate Division. People v. Adams, 296 A.D.2d 418, 744 N.Y.S.2d 512 (N.Y.App.Div., 2d Dep't 2002). On October 1, 2002, leave to appeal the Appellate Division's order was denied by the Court of Appeals, People v. Adams, 98 N.Y.2d 766, 752 N.Y.S.2d 6 (2002), and reconsideration of the denial of leave to appeal was also denied. People v. Adams, 99 N.Y.2d 579, 755 N.Y.S.2d 715 (2003).
The instant petition followed.
III. Standard for Habeas Corpus Review
A. General Principles
A petitioner in custody pursuant to a judgment of a state court is entitled to habeas relief only if his detention violates the United States Constitution, federal law, or treaties of the United States. 28 U.S.C. § 2254(a) (2004). The objective of federal habeas review of state court convictions is to "assure that when a person is detained unlawfully or in violation of his constitutional rights he will be afforded an independent determination by a federal court of the legality of his detention, even though the issue may already have been decided on the merits by a state tribunal." United States ex rel. Radich v. Criminal Court of New York, 459 F.2d 745, 748 (2d Cir. 1972).
B. Exhaustion Doctrine
Generally, a petitioner must have exhausted available state court remedies before seeking federal habeas relief unless there is no state remedy or exhaustion would be ineffective or futile to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1);Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Strogov v. Attorney General of New York, 191 F.3d 188, 191 (2d Cir. 1999). However, notwithstanding the petitioner's failure to exhaust state court remedies, a federal court has discretion to deny a petition on the merits. 28 U.S.C. § 2254(b)(2).
C. Standard of Review
Pursuant to § 2254, if a petitioner's federal claims were adjudicated on the merits by a state court, a petition will not be granted unless such adjudication resulted in a decision that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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) (internal citation omitted). If a state court has not adjudicated the claim "on the merits," the state court's decision is not entitled to any deference and the federal court must review the state court's disposition of the federal claim de novo. Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003).
D. Independent and Adequate State Grounds
If the state court's decision "`rests on a state law ground that is independent of the federal question and adequate to support the judgement,'" a federal court should not address the claims of state prisoners in habeas corpus actions. Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 151 L. Ed. 2d 820 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991)) (emphasis added by Lee). If the highest state court that rendered a judgment in the case "clearly and expressly states that its judgment rests on a state procedural bar," such procedural bar represents independent and adequate grounds on which to deny review of the habeas petition. Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989) (internal quotations and citations omitted); see also Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995); Diaz v. Herbert, No. 01-9395, 2004 WL 1085197, at *5 (S.D.N.Y. May 10, 2004).
However, even where a state prisoner has been denied relief in state court pursuant to an independent and adequate state procedural rule, federal habeas review is still permissible if the prisoner can demonstrate either justification for the default and actual prejudice from the alleged violation of federal law, or that the failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To demonstrate justification for the default, the petitioner must show "`some objective factor, external to the defense [that] impeded counsel's efforts' to raise the claim in state court."McCleskey v. Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 113 L.Ed. 2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). A miscarriage of justice is only present in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent. . . ." Murray, 477 U.S. at 496.
IV. Analysis
A. Trial Court Attentiveness
During the trial court's final charge, the judge reminded the jurors that he had no opinion regarding the facts of the case. (Resp't Ex. L at 305). The judge then stated:
If as you saw the witnesses testify you happened to look over at me, you would have seen I was taking notes, I was conferring with my court staff, reading the most recent decisions by my Appeals Court. I wasn't even looking at witnesses because that is your job.
(Id. at 305-06).
Based upon this statement, Adams alleges that the judge failed to pay attention during trial in violation of his right to a fair trial and due process of law. The United States Supreme Court has held that a "trial by jury" requires the presence and "superintendence" of a judge. Capital Traction Co. v. Hof, 174 U.S. 1, 13-14 (1899). Here, the trial judge was on the bench throughout the trial, see United States v. Grant, 52 F.3d 448, 449 (2d Cir. 1995) (discouraging trial judges' absence from the bench); United States v. Pfingst, 477 F.2d 177, 196-97 (2d Cir.) (same), cert. denied, 412 U.S. 941, 93 S. Ct. 2779, 37 L. Ed. 2d 400 (1973), and actively participated in the proceedings. Moreover, Adams has not specified the harm suffered as a result of the trial judge's alleged inattentiveness and a review of the record reveals none.
B. Ineffective Assistance of Counsel
Adams also claims his trial counsel was ineffective in failing to pursue a particular defense strategy. The highest state court to render judgment on this claim pursuant to Adams's motion to vacate his judgment of conviction held that "the failure alleged by the defendant in his papers are largely matters that appear on the record and are reviewable on the appeal of this case, and thus not cognizable in this motion to vacate." (Resp't Ex. C at 4). Since New York Criminal Procedure Law § 440.10 is an independent and adequate state law ground, Levine v. Comm'r of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995); Katowski v. Greiner, 212 F. Supp. 2d 78, 87-88 (E.D.N.Y. 2002), federal habeas review of Adams's claim for ineffective assistance of counsel is precluded unless there is a showing of cause and actual prejudice, or the failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). Adams has demonstrated neither. While cause may be demonstrated by showing that the procedural default is the result of ineffective assistance of counsel, Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)), since petitioner's claim of ineffectiveness pertains to his trial rather than appellate counsel, it cannot be the basis of cause for his default. In any event, Adams has also failed to demonstrate actual prejudice or a fundamental miscarriage of justice.
C. Trial Court's Charge
Insofar as Adams claims that the trial court erred in charging the jury, the highest state court to consider the claim found that it was also "a matter on the record for consideration by the appellate court." (Resp't Ex. C at 6). Accordingly, the failure to raise the claim on appeal and the failure to demonstrate cause and prejudice or that a failure to consider the claim will result in a miscarriage of justice precludes review of the claim.
D. Remaining Claims
Adams has failed to exhaust the remedies available to him in state court with respect to his five remaining claims that: (1) the trial court violated Rule 32(a) of the Federal Rules of Criminal Procedure by declining to read a letter from Adams's wife before sentencing; (2) the trial court's evidentiary rulings denied Adams his constitutional right to present a defense and his right to a fair trial; (3) a prosecution witness's exercise of his Fifth Amendment privilege denied Adams his Sixth Amendment right to confront the witness against him; (4) Adams's silence was used against him at trial; and (5) the prosecutor engaged in misconduct. The exhaustion requirement is satisfied if the federal claim has been "fairly presented" to the state courts. Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1983).
The Court notes that Fed.R.Crim.P. 32(a) pertains to the definitions applicable under the Rule and does not contain any substance regarding sentencing procedures.
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Id. at 194; see also Helen v. Senkowski, No. 03-2777, 2004 U.S. App. LEXIS 13820, at *4-*5 (2d Cir. July 6, 2004).
Respondent correctly contends that since Adams previously based his argument only upon state statutory law, he never alerted the state court to the federal nature of his claim. In his direct appeal, Adams alleged that the trial court violated New York Criminal Procedure Law § 390.40(1) by declining to read a letter from his wife before sentencing him. Adams's Appellate Division brief relied solely upon the language of New York Criminal Procedure Law § 390.40(1) and did not cite a case, federal or state, employing constitutional analysis. Moreover, couching an argument exclusively upon New York's criminal procedure regarding pre-sentence memoranda is insufficient to "call into mind a specific right protected by the Constitution." Daye, 696 F.2d at 194. Lastly, the facts of Adams's case do not fit within the mainstream of constitutional litigation. Since Adams's federal sentencing claim was not fairly presented to the state courts, the exhaustion requirement has not been satisfied.
With respect to the four remaining claims, Adams failed to raise these issues in either his Appellate Division brief or in his motion to vacate his judgment of conviction, and therefore the exhaustion requirement has not been satisfied.
"[E]ven if a federal claim has not been presented to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it has become procedurally barred under state law." Helen, 2004 U.S. App. LEXIS 13820, at *6; see also Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). New York's procedural rules now bar him from raising these claims in New York courts, see N.Y. Court Rules § 500.10(a) (authorizing only one request for review of a conviction), and the failure to raise these claims on direct review precludes additional collateral review in state court.See N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if claim could have been raised on direct review). However, "[i]n the case of procedural default (including where an unexhausted claim no longer can proceed in state court)," a federal court may "reach the merits of the claim `only if the defendant can first demonstrate either cause or actual prejudice, or that he is actually innocent." Helen, 2004 U.S. App. LEXIS 13820, at *7 (quoting Bousley v. United States, 523 U.S. 614, 622, 119 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)). Adams has failed to meet this standard.
V. Conclusion
For the reasons set forth above, Adams's petition for a writ of habeas corpus is DISMISSED in its entirety. Since Adams has failed to make a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003);Luciadore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Clerk of Court is directed to close this case.