Opinion
No. 97 Civ. 2982 (MGC).
December 20, 2000.
HOMERO BORDAS, 91-A-4773, Clinton Correctional Facility, Dannemora, New York, Petitioner Pro Se.
ROBERT T. JOHNSON, District Attorney of the County of Bronx, New York, Attorney for Respondent.
MEMORANDUM OPINION AND ORDER
Homero Bordas, a person in custody pursuant to the judgment of a state court, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition is denied.
BACKGROUND
Following a jury trial in the New York Supreme Court for Bronx County, Bordas was convicted of kidnapping in the first degree, attempted grand larceny in the second degree, and criminal possession of a weapon in the third degree. On June 5, 1991, he was sentenced to concurrent terms of 20 years to life, two and one-third to seven years, and two and one-third to seven years. On April 23, 1996, the Appellate Division, First Department, unanimously affirmed Bordas's conviction. People v. Bordas, 226 A.D.2d 261, 641 N.Y.S.2d 537 (1st Dep't 1996). Bordas did not seek leave to appeal.
In the original federal submissions, the parties disputed whether petitioner had sought leave to appeal to the New York Court of Appeals from the order of the Appellate Division that affirmed his conviction.Compare Pet. ¶ 9[e] with Gaviria Aff. ¶ 8. The parties were directed to submit additional materials, and their submissions clarify that petitioner did not seek leave to appeal.
In his petition to this Court, Bordas asserts two grounds for relief: (1) that he was denied due process of law when "the trial court erroneously sought and accepted a partial verdict which effectively ended the trial, where the jury did not announce a partial verdict or indicate that it was having difficulty reaching a verdict, . . ., which denied petitioner a fair and impartial verdict," and (2) that the sentence of 20 years to life is cruel and unusual punishment, "since the petitioner is a first felony offender and there were no aggravating factors attributable to the petitioner and there was a mitigating factor, in that the petitioner did in fact protect the victim from his co-defendant."
Bordas states that his claim is that he "was denied Due Process of Law." Petition ¶ 12.A: "Ground one." In describing the supporting facts for that claim, however, he also alleges a denial of his equal protection rights. Petition ¶ 12.A: "Supporting Facts." Because the facts relied on by Bordas, in his petition and his appellate brief, do not state a violation of the Equal Protection Clause, I construe his first claim to be grounded solely in the Due Process Clause.
DISCUSSION
A. Exhaustion
A state prisoner seeking federal habeas corpus review must first exhaust his available state court remedies. 28 U.S.C. § 2254 (b)(1) (A) (1999). At the core of the exhaustion requirement is the "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). Though both federal and state courts are charged with securing a state criminal defendant's federal rights, the state courts must be given the opportunity to consider and correct any violations of federal law. Id.
The exhaustion requirement is satisfied if the claim has been "fairly presented" to the state courts. See Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971)). A claim has been "fairly presented" if the "the nature or presentation of the claim [was] likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192.
The most forthright way to present a constitutional claim to a state court is, of course, to recite the relevant facts and then make an explicit constitutional argument. Levine v. Commissioner, 44 F.3d 121, 124 (2d Cir. 1995). A habeas petitioner in state court is not required, however, to cite "chapter and verse" of the Constitution to satisfy the exhaustion rule. Id. (quoting Daye, 696 F.2d at 194). Instead, he may fairly apprise the state court of a federal constitutional claim by relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that "call to mind a specific right protected by the Constitution," or alleging facts that fall "well within the mainstream of constitutional litigation." Levine, 44 F.3d at 124.
Eighth Amendment Claim
In his brief to the Appellate Division, Bordas argued that his sentence was "harsh and excessive" because he "had no prior felony conviction, Ms. Jiminez [the victim] was unharmed, and [he] assisted her when she was threatened by others." Bordas App. Br. at 8. In support, Bordas cited one New York case in which defendant's sentence was reduced as a matter of discretion. See People v. Ferrer, 205 A.D.2d 305, 613 N.Y.S.2d 865 (1994) (reducing a sentence of 25 years to life to a term of 15 years to life "as a matter of discretion in the interest of justice"). In its opposition brief, the State argued that the sentence reflected a sound exercise of discretion by the trial court. Resp. Br. at 34-36.
It cannot be said that Bordas "fairly presented" his federal constitutional claim to the state court. He did not invoke the Eighth Amendment, did not cite any cases that involved alleged violations of the United States (or the New York State) Constitution, and did not argue that the sentence constituted "cruel and unusual punishment." He in no other way made clear that his claim was grounded in the United States Constitution. Bordas argued only that the trial court abused its discretion, and it was this issue that the appellate court addressed. The Appellate Division disposed of the claim in one sentence: "We perceive no abuse of discretion in sentencing." Bordas, 226 A.D.2d at 261, 641 N.Y.S.2d at 537.
Despite his failure to raise the Eighth Amendment claim on direct appeal, Bordas may still raise it in the New York courts by a motion under New York Criminal Procedure Law § 440.20. N.Y. Crim. Proc. L. § 440.20 (McKinney 1994); see Levine, 44 F.3d at 125-26; Brown v. Miller, No. 97 Civ. 1874 (SS), 1998 WL 91081, at *2 (S.D.N.Y. March 3, 1998). Accordingly, this ground of relief is unexhausted.
Due Process Claim
On appeal, Bordas argued that the trial court erred in seeking and accepting a partial verdict that effectively ended the trial. His brief incorporated by reference co-defendant Rafael Mendez's argument on the issue. In his brief, Mendez argued that he had been deprived of a "fair trial" because the trial judge had interrupted jury deliberations to seek and take a partial verdict. Mendez Br. at 16. He argued that the judge interrupted the deliberations without a compelling reason "with the effect of finalizing a partial verdict that the jury had not itself finalized" and that, as a result, the jury was "foreclosed from revisiting its initial votes on the other counts." Id. at 17, 18. "But for the court's interference, the jury's deliberations . . . would have continued without notification to the court that a vote had been taken, and any change of mind by any juror could have resulted in a different verdict — or no verdict — on one of the other counts." Id. at 24. Mendez analogized to decisions by federal and state courts regarding premature mistrials: "Just as a trial court's hasty and illconceived declaration of a mistrial violates a defendant's `valued right to have his trial completed by a particular tribunal,' United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557 (1971), this trial court's hasty and unwarranted interruption of jury deliberations in Mr. Mendez'[s] case violated his right to a verdict rendered only after the jury was permitted to deliberate to a conclusion." Mendez Br. at 19. Mendez also argued that the New York statute governing partial verdicts, N.Y. Crim. Proc. L. § 310.70(1) (McKinney 1994), did not permit the trial judge to take a partial verdict in the circumstances of this case. Mendez Br. at 24-32.
As the Second Circuit has observed, a description of a claim as a denial of a "fair trial" is alone insufficient to alert a state court to its constitutional dimension. Daye, 696 F.2d at 193. A federal court must look to the manner in which petitioner presented his claim and the underlying facts to determine whether the state court was fairly apprised of the constitutional nature of the claim.
In this case, Bordas explicitly argued that by prematurely interrupting jury deliberations, the trial court violated his right to a verdict following complete deliberation by a jury. Bordas admittedly did not make clear the source of the right, but his description of the deprivation, together with his analogy to cases under the Double Jeopardy Clause, fairly alerted the state court that he was asserting a due process claim. Moreover, the factual allegations supporting the complaint — that the trial judge interfered with the deliberations of the jury — are "well within the mainstream of constitutional litigation." Levine, 44 F.3d at 124.
While Bordas "fairly presented" his due process claim to the Appellate Division, he did not seek leave to appeal to the Court of Appeals to challenge the Appellate Division's determination of the claim. Normally, the exhaustion requirement mandates that federal claims be presented to the highest court of the state before a federal court may consider the petition. Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (holding that petitioner who did not seek leave to appeal to the New York Court of Appeals had not exhausted his state remedies with respect to the claim at issue). However, a petitioner is not required to formally exhaust his claim if it would be futile to pursue a state remedy because the state court has ruled on the identical issue. LaBruna v. U.S. Marshal, 665 F.2d 439, 442 (2d Cir. 1981); Mercado v. Rockefeller, 502 F.2d 666, 672 (2d Cir. 1974); 17A Charles Alan Wright et al., Federal Practice and Procedure § 4264.5 (2d ed. 1988).
Here, Mendez — petitioner's co-defendant — did seek leave to appeal on the basis of the partial verdict, and leave was denied.People v. Mendez, 87 N.Y.2d 923 (1996). Mendez's argument challenging the partial verdict was identical to Bordas's. In fact, Bordas's appellate attorney did not brief the issue; his brief to the Appellate Division merely incorporated Mendez's argument by reference. Furthermore, the Appellate Division, in rejecting Bordas's argument on the partial verdict, relied almost entirely on its rejection of Mendez's argument on the same issue. See Bordas, 226 A.D.2d at 261, 641 N.Y.S.2d at 537 (citing People v. Mendez, 221 A.D.2d 162, 163, 634 N.Y.S.2d 46, 48 (1st Dep't 1995)). Accordingly, it would have been futile for Bordas to have sought leave to appeal, and his due process claim was effectively exhausted for purposes of 28 U.S.C. § 2254. See United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1130 (2d Cir. 1974).
B. Merits of the Due Process Claim
Because the Eighth Amendment claim was not exhausted and the Due Process claim was exhausted, the petition is "mixed." Under the case law prior to the amendment of 28 U.S.C. § 2254 in 1996, district courts were required to dismiss "mixed petitions." See Rose v. Lundy, 455 U.S. 509, 522 (1982). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended the statute to permit courts to deny — but not grant — applications for a writ of habeas corpus on the merits where a petitioner failed to exhaust state remedies. 28 U.S.C. § 2254 (b)(2). The rule of Rose v. Lundy, as modified by AEDPA, gives courts discretion to deny mixed petitions. Brown v. Miller, 1998 WL 91081, at *2. In this case, I exercise my discretion to consider the merits of Bordas's exhausted due process claim. See Loving v. O'Keefe, 960 F. Supp. 46 (S.D.N.Y. 1997).
Upon review of the trial record, I find that the trial judge did not violate Bordas's right to due process. A criminal defendant has the right under the Sixth and Fourteenth Amendments to a fair trial before an impartial jury. U.S. Const. Amend. VI, XIV (1999); Rosenberg v. Martin, 478 F.2d 520, 524 (2d Cir. 1973). This right is violated when the trial judge coerces the jury into giving a verdict. See Lowenfeld v. Phelps, 484 U.S. 231, 241, 108 S.Ct. 546, 552 (1988) ("Any criminal defendant being tried by a jury is entitled to the uncoerced verdict of that body."); Smalls v. Batista, 191 F.3d 272 (2d Cir. 1999) (affirming grant of § 2254 petition where trial judge gave jury unconstitutionally coercive Allen charge).
See Allen v. Unites States, 164 U.S. 492, 17 S.Ct. 154 (1896) (holding that a judge may give a deadlocked jury a supplemental charge encouraging it to continue deliberating in order to reach a verdict).
There is no indication in the trial transcript, however, that the trial judge coerced the jury into announcing a partial verdict before it was ready. The judge called in the jury and asked it whether it had reached a decision as to each of the counts. Trial Tr. 1444-1453. As to the first two counts, kidnapping and attempted grand larceny in the second degree, the foreperson responded that the jury had reached guilty verdicts. Id. at 1444-1446. As to the third count, attempted grand larceny in the second degree, the foreperson responded that the jury had reached a not guilty verdict. Id. at 1446. As to the next count, attempted assault in the first degree, the foreperson responded that the jury had not reached a verdict. Id. at 1446-1447. As to the last count, criminal possession of a weapon, the foreperson responded that the jury had reached a guilty verdict. Id. at 1447. The judge then polled the jury, and each juror concurred with the verdicts. Id. at 1450-1452.
The judge did not tell the jury that it was required to announce a verdict as to any of the counts, and there is no sign that the jurors felt compelled to announce a verdict against their will. To the contrary, the jury foreperson freely announced that the jury had not reached a verdict as to one of the counts and rendered a not guilty verdict as to another count. Each individual juror was given the opportunity to object to each verdict and none did so.
Absent a showing of coercion implicating Bordas's constitutional rights, the conduct of the trial judge in this case is governed by state law. The Appellate Division found that the conduct at issue was not improper as a matter of state law, Bordas, 226 A.D.2d at 261, 641 N.Y.S.2d at 537, and I must defer to that judgment.
CONCLUSSION
For the reasons set forth above, the petition is denied.
SO ORDERED.