Opinion
00-CV-4636 (JBW), 03-MISC-0066 (JBW)
August 20, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. Petitioner's request for discovery is denied as unneeded. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
On December 3, 1989 at approximately 3:00 p.m., petitioner entered the unlocked apartment of Grace Totillo and her husband, William Gredder. Petitioner, with his hand in his pocket, indicated that he had a gun, informed Ms. Totillo and Mr. Gredder that they would be killed if they did not do as they were told, and demanded that they place their money on the floor in front of him. Petitioner took the over two hundred dollars that they placed there and left the apartment. Ms. Totillo immediately called 911. Peter Puleo, a neighbor who heard the Sergeant Nicholls, who saw him leave the train wearing clothing described by Ms. Totillo and Mr. Gredder and saw money fall from defendant's hand to the platform floor.
Petitioner was charged with two counts of robbery in the first degree, one count of burglary in the first degree and two counts of criminal possession of stolen property in the fifth degree in connection with this incident. On December 11, 1991, he was convicted of two counts of robbery in the first degree and one count of burglary in the first degree. That conviction was reversed on February 14, 1995 by the Appellate Division, Second Department, which concluded that the trial court erred in allowing Mr. Gredder to make an in-court identification of the petitioner and in allowing Ms. Totillo to testify concerning an identification made at an inherently suggestive precinct show-up and to make an in-court identification of the petitioner. See People v. Barrett, 622 N.Y.S.2d 734 (App.Div.2d Dep't 1995). A new trial was ordered.
During jury voir dire at petitioner's second trial, petitioner elected to assert his constitutional right to proceed without counsel. The court ordered petitioner's appointed counsel to remain as standby. In addition to the complainants Grace Totillo and William Gredder, Peter Puleo and Sergeant Nicholls testified for the State at this second jury trial. Petitioner testified on his own behalf. With petitioner's permission, his standby counsel conducted the direct examination of him.
Petitioner was again convicted of two counts of robbery in the first degree and one count of burglary in the first degree and was sentenced on November 6, 1995, to three concurrent terms of imprisonment of twenty years to life. Petitioner's motion to set aside the verdict made Sentencing Tr. at 2. The court's denial of this motion does not appear to have been appealed. The claims raised by petitioner in it were not raised on direct appeal.
Before petitioner was sentenced, he filed a number of motions, including a motion to dismiss the indictment, a motion to reargue an earlier speedy trial motion, and a motion to vacate his sentence. In a decision dated March 21, 1996, these motions were denied. To the extent that these motions raised unrelated legal issues, the court treated them as a motion to set aside the judgment made pursuant to New York Criminal Procedure Law section 440.10. The 440.10 claims were then denied:
The facts relating to all of defendant's claims are record facts sufficient to allow appellate review To the extent that the facts do not appear on the record, defendant has failed to allege facts creating issues of fact as to a matter not appearing on the record.See Memorandum, People v. Barrett Indict. No. 16524-89, at 4 (N.Y.Sup.Ct. Mar. 21, 1996). No appeal appears to have been taken by petitioner from this decision.
Petitioner filed his first petition for a writ of habeas corpus in this court in December 1995, while the above post-trial motions were pending and before perfecting his direct appeal. That petition was dismissed for failure to exhaust state appellate remedies in May 1996. Barrett v. Kane 96 CV 910 (ERK) (E.D.N.Y. May 6, 1996).
A direct appeal of petitioner's conviction subsequently was taken. Four points were raised: (1) petitioner was not properly adjudicated a persistent violent felony offender; (2) an independent basis for an in-court identification did not exist and testimony therefore should have Petitioner's conviction and sentence were affirmed by the Appellate Division in February 1998. People v. Barrett, 669 N.Y.S.2d 244 (App.Div.2d Dep't 1998). Leave to appeal was denied by the New York Court of Appeals in April 1998. Petitioner's motion in the Appellate Division for reargument was denied in December 1998.
While his direct appeal was pending, petitioner filed a second motion to set aside the judgment pursuant to New York Criminal Procedure Law section 440.10 in which he alleged he was denied Rosario and Brady materials. The court denied the motion, finding all of petitioner's claims meritless, in June 1998. Leave to appeal was denied by the Appellate Division in December 1998. Although in his reply to the People's papers responding to this motion petitioner raised evidentiary issues with respect to the 911 call, his arrest photograph, and the hat allegedly in his possession at the time of his arrest, these claims were not addressed in the court's decision.
Petitioner filed a third motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law section 440.10 in June 1999. He claimed that no proper chain of custody was established for the 911 tape or for the arrest photograph; that standby counsel was ineffective in assisting him in making appropriate objections to testimony and exhibits placed in evidence, that the court had an off-the-record discussion with the complainant Mr. Gredder of which petitioner was not notified, that the court failed to explain to petitioner his right to be present at that hearing, that a People's witness refused to answer a pertinent question on cross-examination by defendant, and that the People unilaterally altered defendant's grand jury minutes and withheld pertinent information regarding questions asked by grand jurors. This motion was denied in September 1999:
Granting defendant's pro se pleading the benefit of every favorable inference, it appears that virtually all of his contentions are matters of record which could have been raised on direct appeal. Accordingly, they are no longer reviewable in postjudgment proceedings pursuant to CPL 440.10. Moreover, as to the remaining issues over which this court retains jurisdiction, defendant has failed to demonstrate either "good cause" for his failure to raise them on his prior CPL 440 motion ( see, CPL 440.10[3][c]) or that "there has been a retroactively effective change in the law controlling such issue" since the time of its rejection "upon [his] prior motion[s]" (CPL 440.10[3][b]).
Finally, to whatever extent defendant's motion papers may be read as challenging the effectiveness of his appellate attorney, the relief which he seeks is not available in this court, but, rather, on a writ of error coram nobis in the Appellate Division which decided his appeal.People v. Barrett Indict. No. 16524/89 (N.Y.Sup.Ct. Sept. 13, 1999). Leave to appeal was denied by the Appellate Division in May 2000.
Construing the petition broadly in light of petitioner's response to respondent's answer, petitioner in the instant application for a writ of habeas corpus claims (1) that he was denied due process because the court held ex parte off-the-record discussions with two of the People's witnesses, the complainant Mr. Gredder and Mr. Puleo, and did not inform petitioner of his right to be present at those conferences; (2) that the arrest photograph was doctored; (3) that the arrest photograph was not authenticated and its chain of custody was not established; (4) that the 911 tape was not authenticated and its chain of custody was not established; (5) that standby counsel was ineffective in assisting petitioner to make appropriate objections to testimony and exhibits placed in evidence; (6) that the trial court did not instruct the jury on the limited purpose of the 911 audiotape so as to eliminate any possible prejudice to the petitioner; (7) that the voluntary disclosure form did not indicate that the People intended to introduce into evidence at trial the the 911 tape or other audiotapes; (9) that Mr. Puleo, a witness for the People, refused to answer a question on cross examination; (10) that the People and the court reporter had a discussion at which the petitioner was not present and of which the trial court was not informed; and (11) that the People altered petitioner's grand jury minutes and withheld portions of the grand jury proceedings from him.
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 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. 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).
IV. 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." Coleman, 501 U.S. at 750.
"[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.
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 defendant's remaining 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.
V. Certificate of Appealability
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, 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, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (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").
VI. Analysis of Claims
As a preliminary matter, because petitioner's 1995 petition for a writ of habeas corpus was dismissed solely for failure to exhaust state remedies, the instant petition is not a second or successive petition for which petitioner must seek permission to file from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2244; Slack v. McDaniel, 529 U.S. 473, 485-87 (2000); James v. Walsh, 308 F.3d 162, 167-68 (2d Cir. 2002).
A. Procedurally Barred Claims
The following claims were not presented by petitioner on direct appeal, but were asserted in petitioner's third motion to vacate his judgment. The claims may be deemed exhausted because petitioner has no further state forum in which to raise them. See Coleman v. Thompson, 501 U.S. 722, 732 (1991); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). As discussed above, however, the New York Supreme Court found them all to be procedurally barred. See People v. Barrett Indict. No. 16524/89 (N.Y.Sup.Ct. Sept. 13, 1999), leave to appeal denied, 1999-09683 (App.Div.2d Dep't May 26, 2000).
The only cause for this default offered by petitioner is that his appellate attorney adopted a strategy on appeal that did not include these issues despite petitioner's protest. As already noted by the New York Supreme Court with respect to these claims, this cannot constitute cause for a procedural default; to the extent that petitioner is "challenging the effectiveness of his appellate attorney, the relief which he seeks is not available in this court, but, rather, on a writ of error coram nobis in the Appellate Division which decided his appeal." People v. Barrett Indict. No. 16524/89 (N.Y.Sup.Ct. Sept. 13, 1999), leave to appeal denied, 1999-09683 (App.Div.2d of petitioner's federal rights. Petitioner has made no claim of actual innocence. No fundamental miscarriage of justice therefore will result from a failure to consider the claims.
The procedurally barred claims will be briefly addressed individually below.
1. Defendant's Right to be Present.
Petitioner claims that he was denied due process because the court held ex parte off-the-record discussions with two of the People's witnesses, the complainant Mr. Gredder and Mr. Puleo, and did not inform petitioner of his right to be present at those conferences. Generally speaking, a criminal defendant has the right "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 5 (1975). However, "the right to be present is not absolute: it is triggered only when the defendant's `presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.'" Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Snyder v. Massachusetts, 291 U.S 97, 106-06 (1934)), This analysis is complicated in the instant case could be complicated by the fact that petitioner was representing himself with counsel serving only in an advisory or standby capacity.
The court's discussion with Mr. Gredder occurred during petitioner's cross examination of Mr. Gredder. It is recorded in the trial transcript as follows:
(Discussion off the record between the Court and witness)
THE COURT: All right. Approach the bench. Approach the bench,
(Discussion at the bench off the record)
See Trial Tr. at 609. The court's alleged discussion with Mr. Puleo apparently occurred at an off the record sidebar held at the beginning of petitioner's cross examination of Mr. Puleo. See Trial Tr. at 669.
It would be impossible for this court to address the substance of these claims now on the basis of this silent record. It cannot be ascertained from the transcript whether the discussions between the state trial court and the witness were audible, whether petitioner or his standby counsel were present at the sidebars noted, or whether any exchange between the court and a witness was explained at those sidebars. Although this court ultimately cannot reach the merits of these claims because the state court found it to be procedurally barred, it notes that this is yet another troubling manifestation of the frequently observed practice of the state courts to conduct sidebars or other discussions off-the-record. Failing to record all proceedings, even when not requested to do so by a party, may mask improprieties or give rise to frivolous and meritless claims. Later review of claims based on unrecorded proceedings on appeal or in a collateral attack on a conviction is thereby unnecessarily complicated.
2. Evidentiary Errors
Petitioner's third and fourth claims — that the arrest photograph was not authenticated and its chain of custody was not established, and that the 911 tape was not authenticated and its chain of custody was not established — raise alleged evidentiary errors. 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 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).
Even were these evidentiary claims not procedurally barred, they appear to be without merit. Petitioner has not established that the 911 tape and the arrest photograph were erroneously admitted, let alone that he was thereby denied a fundamentally fair trial. The proper admission of real evidence under New York law requires a showing of authenticity, or "that it is the identical evidence and has not been tampered with." People v. Julian, 41 N.Y.2d 340, 343 (1977). A complete chain of custody is one method of establishing authenticity. See id.; People v. Lanza, 749 N.Y.S.2d 618 (2002). An audiotape or a photograph alternatively may be authenticated through the testimony of "a competent witness possessing knowledge of the matter," who can identify the subjects and verify that the evidence accurately represents the subject matter depicted or recorded. People v. Byrnes, 33 N.Y.2d 343, 348 (1974); see also People v. Patterson, 93 N.Y.2d 80, 84-85 (1999).
Ms. Totillo, the complaining witness who made the 911 call, listened to the audiotape of that call in court and testified that it was her voice, that the recording accurately reflected her call, and that nothing in the recording had been altered or deleted. Sergeant Nicholls, the police officer who arrested petitioner, identified petitioner as the subject of the arrest photograph and testified that it accurately represented petitioner's appearance on the date of his arrest. The 911 call and the arrest photograph were adequately authenticated and therefore not erroneously admitted in this respect.
3. Ineffective Assistance of Standby Counsel
Petitioner in his fifth claim alleges that his standby counsel was ineffective in assisting trim to make appropriate objections to testimony and exhibits placed in evidence.
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "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).
A defendant in a state criminal trial has the constitutional right to proceed without counsel if he voluntarily and intelligently elects to do so. See Faretta v. California, 422 U.S. 806, 807 (1975). A defendant electing to represent himself may not then contend "that the quality of his own defense amounted to a denial of effective assistance of counsel." Id. at 834 n. 46. To the extent that a defendant is assisted by counsel acting in an advisory or standby role, however, counsel's competency with respect to the role assigned or assumed may be challenged. See Jelinek v. Costello, 247 F. Supp.2d 212, 265-66 (E.D.N.Y. 2003); see also United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997).
Although the court in the instant case ordered counsel to remain present in an advisory capacity and frequently advised and allowed petitioner to consult with counsel, because petitioner was reluctant to have counsel remain in any capacity counsel was permitted by the court to participate actively in the proceedings only with petitioner's express permission. Petitioner cannot contend that his own defense constituted ineffective assistance of counsel. This claim, then, even if not procedurally barred, would not appear to present a meritorious federal constitutional claim.
4. Jury Instruction
Petitioner's sixth claim asserts that the trial court did not instruct the jury on the limited purpose of the 911 audiotape so as to eliminate any possible prejudice to the petitioner. "In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.
Even if the court could reach this procedurally barred claim, it would appear to be without merit. Petitioner cannot show that the court's failure to include such an instruction to the jury was an error of state law, much less that such an error would violate a right guaranteed to him by federal law. The 911 audiotape was admitted, over petitioner's objection, as an excited utterance. It was not admitted for a limited purpose; no instruction as to its purpose was therefore warranted.
5. Refusal to Answer
Petitioner's ninth claim, that Mr. Puleo refused to answer a question on cross examination, appears to be frivolous even were it not procedurally barred. Although it is reflected in the record that Mr. Puleo was displeased at having to be present in court and testify, there is no indication in the transcript that he evaded or refused to answer any question posed to him by petitioner or by the People.
6. Grand Jury Claims
Petitioner in his eleventh claim contends that the People altered his grand jury minutes and withheld portions of the grand jury proceedings. The Fifth Amendment right to a grand jury presentation in felony cases is not applicable to the states. Alexander v. Louisiana, 405 U.S. 625, 633 (1972). "Once a state itself creates such a right, however, due process may prevent it from causing the right to be forfeited in an arbitrary or fundamentally unfair manner." Michael v. Dalsheim, No. 90 CV 2959, 1991 U.S. Dist. LEXIS 7273, at *30 (E.D.N.Y. May 22, 1991). Nonetheless, claims of deficiencies in state grand jury proceedings are generally not cognizable in a habeas corpus proceeding in federal court because any deficiencies have been rendered harmless by conviction at trial by a petit jury assessing petitioner's guilt under a heightened standard of proof. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). This claim even if not procedurally defaulted would not present any cognizable question.
B. Unexhausted Claims
The following claims do not appear to have been raised by petitioner on direct appeal or as part of any post-trial state collateral attack on the proceedings. They are therefore unexhausted. Notwithstanding petitioner's failure to exhaust state remedies, the court will deny these claim because they are without merit. See 28 U.S.C. § 2254(b)(2). The individual unexhausted claims are discussed briefly below.
1. Evidentiary Errors
Petitioner's second claim, that the arrest photograph was doctored, raises an evidentiary error. Although clearly an element of petitioner's trial strategy, this claim does not appear to have been raised at any point post-trial. It must fail for reasons substantially similar to those explained in connection with petitioner's earlier discussed contentions that the 911 tape and the arrest photograph were improperly allowed into evidence — petitioner has not established that the arrest photograph was erroneously admitted, or, even assuming that its admission was erroneous, that he was thereby denied a fundamentally fair trial. The arrest photograph was authenticated by Sergeant Nicholls. Petitioner has offered no evidence beyond his own assertion that the photograph was doctored.
2. Notice of Intent to Use the 911 Tape and Arrest Photograph
Petitioner in his seventh claim argues that the Voluntary Disclosure Form provided by the People did not indicate that the State intended to use the 911 tape and the arrest photograph at trial and that the People did not provide petitioner a list of items omitted from that Voluntary Disclosure Form. This appears to be a claim pursuant to New York Criminal Procedure Law section 710.30(1)(b) that petitioner received inadequate notice of the State's intent to elicit "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such."
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). However, 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).
Petitioner has offered no evidence other than his own assertion that the 911 tape and the arrest photograph were not included on the People's Voluntary Disclosure Form. The court finds this claim dubious. Even crediting petitioner's contention, however, petitioner cannot demonstrate that any such state error gave rise to a violation of petitioner's constitutional due process rights meriting relief in a federal habeas proceeding. Cf., e.g., Browning v. Walker, 1993 WL 97330, at *5 — *6 (S.D.N.Y. Mar. 31, 1993). Petitioner had more than adequate notice that the 911 call and the arrest photograph would be the subject of testimony at this trial. This was petitioner's second trial. The 911 tape and the arrest photograph were discussed extensively at pre-trial proceedings, and, as discussed below, were made available to petitioner's counsel prior to trial.
3. Rosario Claims
Petitioner in his eighth claim contends that the People did not provide him with the 911 tape or other audiotapes. This claim is frivolous. The 911 tape was made available:
[PEOPLE]: I have turned over duplicate Rosario that was I believe turned over at the first trial, which includes ... the 911 tape. I had a portion of it played to defense counsel and is available for listening to, as well as pictures for his inspection.
[COUNSEL FOR PETITIONER]: Your Honor, for the record, I heard the 911 tape.
Independent Source Hr'g Tr. at 46. This exchange took place before petitioner choose to proceed pro se. However, when petitioner elected to proceed with his attorney acting only in a standby capacity the Rosario material was turned over to petitioner. See id. at 205. Petitioner does not detail or further explain the "other audiotapes" to which he is referring; there is no indication in the trial record of any other relevant audiotapes.
Even had the State failed to turn these materials over to petitioner, no federal constitutional issue is presented by the claim as raised. Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Because a Rosario claim is purely a state right, embodying `"policy considerations grounded in state common law, not constitutional principles,'" the prosecutorial failure to turn over Rosario material is not subject to habeas review by a federal court. Whittman v. Sabourin, 2001 U.S. Dist. LEXIS 8049, at *12 (S.D.N.Y. June 12, 2001) (quoting Southerland v. Walker, 1999 U.S. Dist. LEXIS 19327, at *9 (S.D.N.Y. Dec. 10, 1999)).
4. Off-the-record Conversation Between the People and the Court Reporter
Petitioner finally claims that the People and the court reporter had a discussion at which the petitioner was not present and of which the trial court was not informed. This claim presumably refers to a conversation noted by the State in its response to petitioner's post-trial, pre-sentencing motion to set aside the verdict. Petitioner raised a claim with respect to the court's off-the-record discussion with Mr. Gredder. The State in its reply attempted to reconstruct the substance of that conversation after consultation with the court reporter.
In order to be entitled to habeas relief, petitioner must 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). Without considering whether any constitutional error in fact occurred, the court finds that this claim cannot succeed because any error was harmless. Petitioner has failed to allege that the conversation affected the jury's verdict or otherwise resulted in actual prejudice to him. The conversation between the People and the court reporter took place after the trial ended. Petitioner does not contend that it resulted in any change being made to the trial record. Petitioner received daily copies of the transcripts during trial, so he presumably could have pointed out an alteration if any had occurred. The fact that the conversation occurred and the substance of it were likely irrelevant to the resolution of petitioner's motion to set aside the verdict. This was a motion made before and decided by the judge who had presided over petitioner's trial. That court presumably relied on its own recollection or notes of its off-the-record conversation with Mr. Gredder and the subsequent sidebar, rather than on any reconstruction attempted by the People, in rendering its decision.
VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.