Opinion
98-CV-5880 (JBW) and 03-MISC-0066
August 12, 2003
MEMORANDUM, ORDER AND JUDGMENT
Petitioner was granted a hearing. She was present by telephone.
The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied for the reasons stated orally on the record. This memorandum briefly addresses petitioner's claims.
I. Facts
Petitioner and her boyfriend were charged with second degree murder for the killing of petitioner's grandmother, Mary Bowe, with whom they resided. The apparent motive behind the killing was to obtain money with which to purchase crack cocaine. Petitioner held down Mary Bowe's legs while her boyfriend straddled the victim and held a piece of plastic and a pillow over her face. The boyfriend then slit the victim's wrists to make her death appear to be a suicide.
The trial evidence consisted of several prosecution witnesses as well as confessions by petitioner, including a videotaped confession. Some question arose regarding whether or not petitioner had been given her Miranda warnings prior to making the statements. The trial court conducted a hearing and found that petitioner voluntarily accompanied the police to the precinct; that she was given Miranda warnings before she made her statements; and that her statements were made freely and voluntarily. See Exhibit B, at 4 n. 1. Petitioner did not present any witnesses at trial. During deliberations, the jury asked to view the videotape again. Defense counsel informed the court that it was not necessary to reconvene. The trial court determined that "consequently, the video will go directly to the jury room where it will be viewed by the jury — and the District Attorney." Trial Transcript ("Tr."), at 479.
On August 25, 1993, petitioner was found guilty of murder in the second degree, and on September 14, 1993 she was sentenced to an indeterminate prison term of twenty years to life. She appealed her conviction to the Appellate Division, Second Department. On appeal, she claimed (a) that she was denied a fair trial because the trial court denied counsel's request for a more complete answer to a jury question regarding the significance of a finding that the police were lying; and (b) that the trial court's response to two jury requests to review the confession videotape deprived petitioner of her fight to judicial supervision of the trial and her right to be present with counsel at such a proceeding.
The Appellate Division held that petitioner's second claim concerning a viewing of the videotape was unpreserved for appellate review. It declined to reach the issue in the exercise of its "interest of justice" jurisdiction. See People v. Bowe, 643 N.Y.S.2d 367 (N.Y.App.Div.2d Dep't 1996). It held that petitioner's remaining claim was without merit. See id. Leave to appeal to the Court of Appeals was denied. See People v. Bowe, 658 N.Y.S.2d 247 (N.Y. 1997).
II. Habeas Corpus Claims
Petitioner's habeas corpus petition is dated March 6, 1998. It was originally filed in the Southern District of New York. Because she was convicted and sentenced in Kings County, the habeas action was transferred to the Eastern District of New York by Chief Judge Griesa on September 14, 1998. On April 27, 2001, Judge Johnson denied petitioner's application for a writ of habeas corpus on timeliness grounds. However, on May 25, 2001, Judge Johnson vacated the April 27, 2001 Memorandum and Order, held that the petition was timely, and ordered the Clerk of the Court to reinstate the case to the docket for consideration on the merits.
Petitioner made two claims in her petition. First, she claimed that her Fifth Amendment privileges were violated because (a) there were conflicting statements by detectives regarding the exact time at which Miranda warnings were given and (b) she was not represented by counsel during the oral and videotaped confessions. Second, she claimed that she was denied the effective assistance of counsel because (a) counsel did not permit her to testify on her own behalf and (b) counsel failed to preserve a fundamental right to judicial supervision during jury deliberations.
By letter dated June 25, 2003, petitioner sought to amend her petition. She claimed that at the time she was filing her petition, she believed that she had to choose one or more of the ten grounds listed on page 5 of the standard habeas petition form (AO 241 Rev. 5/85). Having realized that she is not limited to the ten enumerated grounds, she seeks to amend her petition. With regard to the first claim, petitioner seeks to replace the language in the petition with the following: "I feel I was denied [a] fair trial because the court denied counsel's request for `a more complete answer' to a key jury question regarding the legal significance of a finding that the police were lying about testimony of when Miranda rights were given." With regard to the second claim, petitioner wishes to amend the petition to argue that she was denied a fair trial because the jury reviewed the confession videotape in the presence of the district attorney but outside the presence of petition or her trial counsel. As a civil motion, a habeas corpus petition may be amended as per the regular rules of civil procedure. See 28 U.S.C. § 2242. The court therefore addresses the petition as amended by petitioner's June 25, 2003 letter.
III. Law
A. 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. Kuhiman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[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).
B. 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 CW. 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).
If a petitioner specifies only certain issues that he deems worthy of review in a letter seeking leave to appeal a conviction to the New York Court of Appeals, he will be deemed to have waived any remaining claims in the original appellate brief. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).
A claim may be presented for habeas review even if the federal grounds were not explicitly asserted before the state courts if the petitioner, in asserting his claim before the state court, relied on pertinent federal cases employing constitutional analysis, relied on state cases employing constitutional analysis in like fact situations, asserted his claims in terms so particular as to call to mind specific rights protected by the constitution, or alleged a pattern of facts well within mainstream of constitutional litigation. See Daye v. Attorney General, 696 F.2d 186 (1982).
C. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural while 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 contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Fihon, 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.
A state prisoner is not required to seek collateral relief on facts and issues already decided on direct review. Brown v. Allen, 344 U.S. 443, 447 (1953).
IV. Claims
A. Fifth Amendment Claims
For the first time, petitioner makes the argument that she was deprived of her privilege against self-incrimination because there was some disagreement at trial as to when Miranda warnings were administered. Cf. People v. Bowe, 227 A.D.2d 499, 643 N.Y.S.2d 367 (N.Y.App.Div.2d Dep't 1996) (rejecting an argument on timing). This claim is therefore not exhausted as required by the habeas statute. See 28 U.S.C. § 2254(b)(1)(A). Cf. Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). Petitioner cannot now bring her claim to the Appellate Division on direct appeal, because she has already taken the one appeal to which she was entitled. See New York Crim. Proc. Law § 450.10(1). Petitioner is also unable to seek collateral review of the issue pursuant to section 440.10 because that statute holds that a motion to vacate a judgment must be denied where a petitioner unjustifiably fails to raise the claim on direct appeal. See id. at § 440.10(2)(c). In sum, petitioner failed to pursue a Fifth Amendment self-incrimination claim in state court and is now precluded from doing so directly or collaterally. Consequently, she is barred from making the argument as part of her petition for a writ of habeas corpus. See, e.g., Teague v. Lane, 489 U.S. 288, 297 (1989); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994).
A court may examine a procedurally defaulted claim if a petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this case, petitioner makes no such allegation. The court notes that Bowe filled out a pre-printed habeas corpus petition. Question 13 of the form states that if the claims made in the petition were not previously presented to any other court, the petitioner must state the reasons they were not presented. Bowe did not complete this question and thus did not provide any justification for having failed to raise the defaulted claim below. In light of her failure to do so, this court is procedurally barred from addressing it.
Assuming, arguendo, that Bowe's Fifth Amendment claim were not procedurally barred, it lacks merit. The trial court held a lengthy hearing on the matter and noted that "there are some times [sic] discrepancies with respect to testimony given by various police officers with reference to when things occurred." December 17, 1992 Tr., at 71. Such discrepancies notwithstanding, the trial court was "well satisfied that the defendants were advised of their rights, that the advice as to their rights was before they made the incriminating statements, and even if they had not been advised of their rights, [the trial court was] not at all sure that [it] would find that at the time the statements were made that they were in custody." Id. at 71. The trial court concluded that it was "clear that each statement of each defendant was made freely and voluntarily, without any threats or promises that would affect the voluntariness of the statements." Id. at 72.
The trial court's findings were based on the testimony of several witnesses in a hearing that was held on several days over the course of a month. A full review of the transcript reveals that the trial court's determination regarding the administration of the Miranda warnings and the voluntariness of the confessions is amply supported by the testimony received at the hearing. In light of these facts, there is no merit in petitioner's Fifth Amendment argument.
B. Sixth Amendment Claims
Petitioner's Sixth Amendment argument is that she was denied the effective assistance of counsel because her counsel did not permit her to testify on her own behalf. As with petitioner's Fifth Amendment claim, this claim is being made for the first time. Petitioner provides no justification for her failure to raise the argument in state court. For the reasons set forth above, petitioner is precluded from raising the issue in a petition for habeas corpus. See 28 U.S.C. § 2254.
Even if the claim were not procedurally barred, petitioner has provided no support for her assertion that her attorney refused to permit her to testify on her own behalf. The issue was not raised at trial or on direct appeal, where petitioner was represented by a different attorney. She provides no details on her trial counsel's alleged decision to refuse to allow her to testify. It is hardly uncommon for lawyers to urge their clients against taking the stand; it is common for clients to resent their decision not to testify once a conviction is returned. Petitioner provides neither evidence nor an explanation to support her allegation that her attorney would depart from well-established practice by refusing to permit her to testify. The court heard petitioner's claim by telephone and did not find her allegations credible. Petitioner's claim is denied.
C. Faulty Jury Instruction
In her amended petition, petitioner argues that she was denied a fair trial when the trial court denied her counsel's request for a "more complete answer" to a jury question regarding the significance of a finding that the police were lying about when her Miranda rights were administered. The jury sent the following note: "If you do not find a witness credible, could we exclude any of those counts?" See Trial Tr., at 437. The trial court gave the following answer:
I charged you during the course of the trial that if you find that any witness had lied in a material aspect of his or her testimony, you have a right to disregard all testimony of that witness, or you could take it apart, and then you can believe those portions of the witness' testimony that are credible, and disbelieve those portions of the witness' testimony that aren't credible.
In other words, it's up to you. Either throw out all of that person's testimony, or accept the parts you believe are truthful, and reject the parts you think are untruthful.
In the final analysis, the People still have to prove the defendant's guilt beyond a reasonable doubt, and after you examine all the evidence and consider all the facts, if you are not satisfied of the defendant's guilt beyond a reasonable doubt, you would be required to acquit him [sic].
On the other hand, if you are satisfied of the defendant's guilt, you would be required — you must find her guilty.
Trial Tr., at 442. Petitioner's trial counsel did not object to the court's response to the jury note. See id. at 445.
After further deliberations, the jury submitted the following note to the court:
If we doubt the testimony of Detective Varvaro or Detective Carmosin, would that invalidate any one or more of the three charges?
When you charged us this morning, you stated that if we do not believe the credibility of one or more witnesses, we are to go with the lesser charge of manslaughter. This afternoon, you stated that we could disclaim any part of a witness' statement and still take a verdict of either count one or two.
Please explain both.
See Trial Tr., at 454. Before responding to the note, the court held a colloquy with the prosecutor and petitioner's counsel. Petitioner's counsel objected to the court's decision to answer the first question contained in the note with a "no", arguing that a more complete explanation was necessary. Petitioner's counsel did not object to the court's denying that it had told the jury that if it did not believe the credibility of one or more witnesses, that it had to "go with the lesser charge of manslaughter." Id. at 454.
The trial judge gave the following answer in response to the jury's note:
All right, the first part — first sentence reads — "If we doubt the testimony of Detective Varvaro or Detective Carmosin, would that invalidate any one on [sic] more of the three charges?"
The answer is emphatically — "No", it would not invalidate any of the three charges.
The second sentence — "When you charged us this morning, you stated that if we do not believe the credibility of one or more witnesses, we are to go with the lesser charge of manslaughter." I never said any such thing or anything close to that — nothing like that;
And finally the last sentence.
"This afternoon, you stated that we could disclaim any part of a witness' statement and still take a verdict of either count one or count two."
What I said this afternoon is to repeat a portion of my charge, and that is that I charged you, and charge you again, that if you find any witness has lied on a material aspect of his or her testimony, you have a right to disregard all the testimony of that witness. You don't have to believe anything that witness said.
On the other hand, it is within your province to dissect — to take apart the testimony of such a witness in which event you can believe those things that you think he or she testified truthfully, and disregard those portions of his testimony that you think he was lying as to.
Now, whether you do that or you don't do that with respect to any witness, you take all of the testimony, everything in the case, and you then decide whether or not based on all the testimony that you believe, all of the testimony that you accept, everything in the case, you then decide whether or not the People have established the defendant's guilt as to each one of the charges.
As I previously told you, and you never reach manslaughter in the lesser include offense until you have first found that the defendant is not guilty of both of the murder charges.
Trial Tr., at 462-64. Petitioner's argument, also made on direct appeal, is that the court's answer of "emphatically — `No'" suggested to jurors that they were irrational to consider acquitting petitioner because they disbelieved the detectives. The Appellate Division rejected petitioner's argument.
The standard for granting habeas corpus relief based on an erroneous jury charge is high. "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.
In this case, petitioner is unable to show either that the instruction was incorrect or that her federal rights were violated. Petitioner did not contend on appeal, and does not now contend, that the instructions were incorrect as a matter of law. Instead, petitioner's claim is that the instruction contained inappropriate emphasis. In addition, petitioner argues that the court should have given a more thorough answer. Because petitioner is unable to demonstrate that the instruction misstated state law, her claim must be rejected. Moreover, even if the instruction did misstate state law, nothing indicates that any of petitioner's federal rights were violated. In her brief before the Appellate Division, petitioner cites only state cases (except passing references to Miranda which is not directly relevant).
The instruction concerns a question of state law and does not implicate any of petitioner's federal rights. In any event, it seems perfectly appropriate.
D. Insufficient Judicial Supervision
Petitioner argues in her amended habeas corpus petition that her right to a fair trial was violated when the jury apparently reviewed the videotaped confession in the presence of the district attorney and outside the presence of the trial judge, petitioner, or petitioner's counsel. See Trial Tr., at 479.
After the jurors retired to deliberate, the prosecution and defense stipulated as follows: "if the jury requests any exhibits [. . .] they be delivered to the jury room without the necessity of reconvening especially for such a purpose." Trial Tr., at 402-03. When the jury asked to review the videotape, both the prosecution and defense agreed to permit the jury to do so in the jury room. See Id. at 404. The trial court later admonished the jury not to deliberate while the video technician and alternate jurors were present. See Id. at 405-06. Later, the jury again sought to view the videotape. The court then outlined the procedure for doing so:
I consulted with defense counsel, Mr. Goldberg, and asked him whether he felt it was necessary to reconvene before sending the tape to the jury room. He indicated that it was not necessary, and consequently, the video will go directly to the jury room where it will be viewed by the jury — and the District Attorney.
Trial Tr., at 479. Petitioner's counsel did not object to this procedure. Petitioner raised this argument on appeal, arguing that the issue was reviewable even in the absence of an objection. The Appellate Division rejected this claim, holding that the claim was not reviewable because no objection had been made. See People v. Bowe, 643 N.Y.S.2d 367 (N.Y.App.Div.2d Dep't 1996). The Appellate Division explicitly declined to rule on the merits of the issue. See Id. at 367.
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
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).
In this case, petitioner demonstrates neither cause nor prejudice. Petitioner provides no explanation for failing to object to the procedure pursuant to New York's contemporaneous objection rule. She never argued, either on direct appeal or in a motion pursuant to section 440 of the New York Criminal Procedure Law, that her trial counsel was ineffective. Moreover, she is unable to demonstrate that she was prejudiced by the videotape viewing procedure. In light of the substantial evidence against her, any prejudice petitioner suffered by virtue of the videotape reviewing was minimal. Consequently, petitioner is procedurally barred from bringing this claim because the Appellate Division rejected it on an independent and adequate state ground (i.e., failure to contemporaneously object).
At the hearing, respondent's attorney stated that at no time was the assistant district attorney in the jury room. The court finds this testimony credible and supported by a sensible reading of the transcript. It is inconceivable that the trial court would have permitted the jury to review the videotape in the presence of the assistant district attorney but outside the presence of petitioner or her counsel.
V. Conclusion
The petition for a writ of habeas corpus is denied.
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner fails to make such a showing with respect to any of her claims. She 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).
SO ORDERED.