Opinion
04 Civ. 9804 (LBS).
July 26, 2005
MEMORANDUM AND ORDER
Petitioner brings this habeas corpus application pursuant to 28 U.S.C. § 2254 alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner's state custody is pursuant to a judgment of conviction in New York County on charges of burglary in the second degree, criminal mischief in the third degree, and resisting arrest. Petitioner was sentenced as a discretionary persistent felony offender to a term of 15 years to life imprisonment.
I. Background
Petitioner's burglary conviction arises from his unlawful entry into the apartment building at 2259 Seventh Avenue in Manhattan, on January 8, 1999. Building superintendent Renardo Almanzar testified that after hearing the break-in from inside his apartment, he exited his apartment and ran down to the building's first floor landing, from where he saw petitioner in the building lobby. According to Almanzar's testimony, petitioner, upon being sighted, ran out of the building and headed for 134th Street. Almanzar began to follow him, but stopped after falling down. Almanzar subsequently encountered two police officers and explained the situation to them, describing the man he was chasing as petitioner. A witness on the street informed one of the officers that petitioner ran into 231 W 134th Street, where he lived on the second floor. Almanzar and the officers then went to petitioner's apartment, where both parties agree they found four people, including petitioner. Almanzar did not identify petitioner as the burglar, however, because, according to Almanzar's trial testimony, petitioner had already changed clothes and thus it would be difficult to prove that he was the culprit. In addition, Almanzar testified that he sought to take care of the situation himself, without police involvement. Meanwhile, petitioner contended at trial that he had been inside his apartment for the one and one-half hours preceding the burglary, and thus could not have been the burglar.
Five days after the burglary, police arrested petitioner and called Almanzar to view a line-up. At this time, Almanzar picked out petitioner from the line-up and identified him as the burglar. The photographs that the police took of the line-up were misplaced.
Petitioner was arraigned on an indictment charging him with second-degree burglary on March 24, 1999. At that arraignment, the prosecutor served petitioner with a demand for alibi notice pursuant to C.P.L. § 250.20(1).
Petitioner's first trial ended in mistrial in November 1999. Petitioner proceeded to a second trial on February 7, 2000.
At retrial, Almanzar's identification of petitioner at the line-up was suppressed due to misplacement of the line-up photos. Nonetheless, the court permitted Almanzar's in-court identification of petitioner because his previous familiarity with petitioner provided an independent source of identification.
At the charge conference, the court advised counsel that it would instruct the jury that evidence of flight could constitute consciousness of guilt, a charge that had not been included in petitioner's first trial. The next day, during the continuation of the charge conference and immediately prior to the testimony of the prosecution's final witness, defense counsel requested that he be able to call as an alibi witness a woman who would testify that she was in petitioner's apartment the night of the burglary and that petitioner had been inside the apartment for at least one-half hour prior to the police and Almanzar's arrival. The court precluded the alibi witness from testifying, however, on grounds that the notice was too late and that the testimony would be of minimal value. Defense counsel did not assert a constitutional right to present the alibi testimony.
Petitioner was convicted on May 15, 2000 of burglary in the second degree, criminal mischief in the third degree, and resisting arrested. Petitioner was sentenced, as a discretionary persistent felony offender, to an indeterminate prison term of fifteen years to life for the burglary counts, from two to four years for the criminal mischief count, and to a determinate sentence of one year for the resisting arrest count, with all sentences to run concurrently.
The Appellate Division affirmed petitioner's conviction on June 6, 2003, and leave to appeal to the Court of Appeals was denied on August 18, 2003. Petitioner now raises the following claims: (1) the preclusion of alibi testimony violated his constitutional right to present witnesses in his own defense; i.e., the compulsory process claim; (2) alternatively, his trial counsel's failure to serve timely an alibi notice violated his constitutional right to effective assistance of counsel; (3) he was improperly adjudicated as a persistent felony offender in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (4) there was no independent source for the in-court identification of petitioner.
There is no dispute that this petition is timely or that petitioner's habeas claims have been exhausted.
28 U.S.C. § 2244(d)(1) requires that a federal habeas corpus decision be filed within one year of the date on which petitioner's state court conviction became final. Petitioner's conviction became final on November 16, 2003, when the time for seeking a writ of certiorari from the United States Supreme Court expired. Petitioner's habeas corpus application was filed October 20, 2004.
Petitioner raised his habeas claims in the Appellate Division and sought leave on these issues to the New York Court of Appeals.
II. Discussion
A. The Compulsory Process Claim
Petitioner argues that the state court's preclusion of alibi testimony deprived him of his Sixth Amendment right to present witnesses in his own defense. Respondent counters that this claim is procedurally barred.
In denying petitioner's appeal, the Appellate Division relied on a New York state procedural rule that defendants who fail to specifically assert a constitutional right in objection to the preclusion of alibi testimony forfeit their constitutional claim.People v. Brown, 761 N.Y.S.2d 630, 631 (N.Y.App.Div. 2003). Although not explicit in the Appellate Division's decision, this rule is effectively an embodiment of New York's long adhered to, more general "rule of preservation," which states that, in order to preserve a question of law for appellate review, a party must make the trial court aware of its objection while there is time to cure the alleged error. See, e.g., People v. Martin, 409 N.E.2d 1363 (1980).
The procedural default rule generally bars federal habeas review of a state court conviction where the procedural rule relied upon by the state court is "independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). This Court must make its own determination as to whether a state court's reliance on a procedural default fits these criteria. See Arce v. Smith, 889 F.2d 1271, 1273 (2d Cir. 1989) (holding that the question of state procedural default "is itself a federal question").
It is clear from the face of the Appellate Division's decision here that the court was relying on an "independent" state procedural rule and not on any rule of federal law in denying petitioner's compulsory process appeal. See People v. Angelo, 606 N.E.2d 1333 (N.Y. 1996); People v. Walker, 743 N.Y.S.2d 403 (2002).
The fact that the Appellate Division indicated that if it were to review this unpreserved claim on the merits it would reject it is of no significance. The procedural default doctrine applies even where, as here, the Appellate Division issues an alternative holding addressing the procedurally defaulted claim on the merits. Harris v. Reed, 489 U.S. 255, 264 (1989).
The question remains to be determined whether the rule relied upon is "adequate" to support the decision. A procedural bar is "adequate" if it is based on a rule that is "firmly established and regularly followed by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Hathorn v. Lovorn, 457 U.S. 255, 262-263 (1982) (procedural bar adequate only if "strictly or regularly followed" by courts of state in question).
Whether application of the procedural rule is "firmly established and regularly followed" must be judged in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citing Lee v. Kemna, 534 U.S. 362, 386-87 (2002)). The Second Circuit has set forth the following "guideposts" for making this determination:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether the state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate government interest. Id. (citing Lee, 534 U.S. at 381-85).
Here, the first guidepost is not particularly helpful given the nature of the procedural violation at issue. "[W]hether the alleged procedural violation was actually relied on in the trial court is less applicable in [a] case [where it] would not, almost by definition, be mentioned by the trial court." Cotto, 331 F.3d at 242. Such is the case with the failure to comply with a preservation rule. Cf. id. (noting that trial court's lack of reliance on defendant's violation of contemporaneous objection procedure does not weigh heavily in adequacy analysis). As to the question of whether perfect compliance with the rule would have changed the trial court's decision, this is merely speculative.Cf. id. at 243. ("[T]he likely impact of a timely objection involves a certain degree of speculation."). The purpose of the rule at issue here is to give the trial court a clear opportunity to correct any error by bringing to its attention an issue on which it may not otherwise be focused.
Petitioner portrays his case as resembling the fact-pattern ofCotto, where the trial court had precluded defendant from cross-examining a witness and the New York Court of Appeals held the claim unpreserved for failure to comply with the state's contemporaneous objection procedure. In reversing, the Second Circuit noted that perfect compliance with the procedure would have been unlikely to change the trial court's decision. Yet, crucial to the Cotto court's analysis was the fact that the trial court had clearly considered the constitutional issue in issuing its decision, as evidenced by its citation to cases addressing the constitutional standard. And even under those circumstances, the court recognized that compliance with the procedure might have prompted argument that would have led the trial court to "come to a different conclusion." Id. Nevertheless, the instant case is readily distinguishable; for here the trial court appeared focused solely on compliance with New York's statutory alibi notice scheme, which generally leaves it to the discretion of the trial court to receive or exclude alibi testimony when alibi notice is not timely served. See N.Y. CRIM. PROC. L. § 250.20(1); Walker, 743 N.Y.S.2d at 403. The trial court's decision did not include any indication, such as a discussion of the standard of willfulness, which would have reflected that it understood the constitutional issue at stake. Accordingly, the likelihood that compliance with the preservation rule would have changed the trial court's result here is at least somewhat greater than the possibility that compliance with the contemporaneous objection procedure in Cotto would have changed the trial court's result in that case.
Applying the second factor to the facts of this case strongly favors respondent. New York case law demands compliance with the preservation rule in the context of defendant's compulsory process argument; that is, New York courts consistently require a defendant to specify that he or she is objecting on constitutional grounds in order to preserve a compulsory process claim on appeal. See, e.g., Angelo, 88 N.Y.2d at 217 (holding that defendant failed to preserve constitutional claim regarding right to present witnesses); Brown, 98 N.Y.2d at 226 (holding that defendant failed to preserve his constitutional arguments regarding notice of alibi). Indeed, New York courts rigorously follow this rule in the specific circumstances of petitioner's case; i.e., where defendant expressly seeks to introduce alibi testimony but does not explicitly state the constitutional nature of the asserted right. See, e.g., Walker, 743 N.Y.S.2d at 13 (finding petitioner's constitutional challenge to exclusion of alibi testimony unpreserved); People v. Parson, 704 N.Y.S.2d 8, 9 (N.Y.App.Div. 2000) (same);People v. Biavaschi, 697 N.Y.S.2d 53, 54-55 (N.Y.App.Div. 1999) (same).
The only case that the petitioner cites to the contrary is sixteen years old. See People v. Corpas, 541 N.Y.S.2d 584 (App.Div. 1989) (reviewing on the merits a constitutional claim relating to preclusion of alibi witness even though counsel merely asked trial court to excuse his service of late notice). Since then, New York courts have consistently applied the preservation rule in circumstances similar to those present here, such that its application must now be regarded as mandatory
The third guidepost is concededly not as clear-cut, but ultimately fails to help petitioner. The question is whether petitioner substantially complied with the state procedural rule. Petitioner never alerted the trial court to the constitutional nature of his objection. Nonetheless, petitioner did make clear to the trial court that he opposed the preclusion of the alibi testimony. On this basis, petitioner attempts again to fit this case into the mold of Cotto, where the court held that it was not necessary for the defendant to utter the words "confrontation clause" in order to comply substantially with the contemporaneous objection requirement when opposing the trial court's preclusion of cross-examination. Here, however, in light of the fact that the trial court and counsel were focused on compliance with New York's alibi notice statute, the words "alibi testimony" cannot be deemed as synonymous with compulsory process as "cross-examination" was with the confrontation clause in Cotto. In any event, even were this Court to agree with petitioner as to application of the third guidepost, it is the second guidepost that most clearly distinguishes the case from the facts ofCotto. See Fraceshi v. Walsh, 2004 U.S. Dist. LEXIS 9404 (E.D.N.Y. 2004) (placing greatest emphasis on second factor inCotto analysis).
In sum, application of the Cotto guideposts demonstrates that the procedural bar relied upon by the state court is one that is "firmly established and regularly followed." The Appellate Division's reliance on the state procedural rule in this situation constitutes both an "independent" and an "adequate" ground for its decision. See Parson v. Portunodo, 259 F. Supp. 2d 309 (S.D.N.Y. 2003) (holding that Appellate Division's denial of defendant's appeal on grounds that he failed to preserve his constitutional objection to the preclusion of aibli testimony is an "independent and adequate state ground").
A procedural default constituting an adequate and independent state ground for decision "will bar federal habeas review of the federal claim, unless the habeas petitioner can show `cause' for the default and `prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice," Harris v. Reed, 489 U.S. 255, 262 (1989), which requires a petitioner to demonstrate "actual innocence." Calderon, 523 U.S. at 538; accord Dretke v. Haley, 541 U.S. 386 (2004). As petitioner does not attempt to show cause and prejudice or a fundamental miscarriage of justice, the procedural default bars federal habeas review of his compulsory process claim.
B. Ineffective Assistance of Counsel
Petitioner argues in the alternative that his trial counsel's failure to serve an alibi notice in time constituted ineffective assistance of counsel. The New York Appellate Division rejected this claim on grounds that "the proposed alibi testimony had very little probative value under the fact pattern presented and there was no reasonable possibility that it would have affected the verdict." Brown, 761 N.Y.S.2d at 632 (N.Y.App.Div. 2003). The Appellate Division relied on the New York standard for effective assistance of counsel, embodied in People v. Benevento, 697 N.E.2d 584 (N.Y. 1998).
Pursuant to 28 U.S.C. § 2254(d)(1), petitioner is entitled to habeas relief on his ineffective assistance of counsel claim only if the Appellate Division's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law." Here, the relevant federal law is Strickland v. Washington, under which prevailing on an ineffective assistance of counsel claim requires a demonstration of (1) deficient performance by counsel that (2) resulted in prejudice. 466 U.S. 668, 687 (1984). Accordingly, the question is whether the Appellate Division's ruling represents an unreasonable application of the Strickland.
For petitioner to succeed pursuant to AEDPA's unreasonable application clause, he must do more than show that he would have satisfied the Strickland test if his claim were being analyzed in the first instance. Rather, he must show that the Appellate Division applied Strickland to the facts of his case in an objectively unreasonable manner. Bell v. Cone, 535 U.S. 685, 698-99 (2002). This standard requires that the state court decision be more than clearly erroneous. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.") The Second Circuit most recently stated its interpretation of the "objectively unreasonable" standard as applied to a Strickland claim in Henry v. Poole, 409 F.3d 48 (2005) (granting habeas relief where counsel presented and emphasized obviously false alibi evidence, which undermined defendant's misidentification defense).
As the petitioner in Poole also met the arguably more demanding standard of Lockyer, Poole should not be read as articulating a different interpretation of Lockyer than that followed here.
The failure of the counsel here to seek leave to call an alibi witness until the trial court indicated that it would charge the jury that flight may be considered evidence of guilt (a charge not given at the first trial) is hardly comparable to the magnitude of the multiple errors by defense counsel reflected inPoole. Also, as the Appellate Division noted, ". . . the proposed alibi testimony had very little probative value under the fact pattern presented and there was no reasonable possibility that it would have affected the verdict." Brown, 761 N.Y.S.2d at 632. The amount of evidence against petitioner, in combination with doubts as to whether the alibi witness's testimony would have actually accounted for petitioner's whereabouts at the time of the burglary and questions surrounding the witness's credibility, warrant the conclusion that the Appellate Division's decision was not an unreasonable application of the Strickland. C. The Felony Offender Statute
Next, petitioner argues that New York's discretionary persistent offender sentencing scheme, under which he was sentenced, violates the rule set forth in Apprendi. However, the Second Circuit recently rejected precisely this argument in Brown v. Greiner, 409 F.3d 523 (2d Cir. Jun 3, 2005). Accordingly, petitioner's Apprendi claim is denied.
D. The Identification Evidence
Finally, petitioner argues that his conviction violates due process because unreliable identification evidence was placed before the jury. After suppressing evidence of Almanzar's pre-trial identification of petitioner in a line-up, the trial court nonetheless permitted Almanzar's in-court identification on grounds that his previous familiarity with petitioner provided an independent basis for ensuring reliability. The Appellate Division affirmed this ruling. Petitioner may prevail here only if this decision was contrary to or an unreasonable application of clearly established federal law.
The pertinent Supreme Court decision is Mason v. Braithwaite, 432 U.S. (1977). Under Mason, five factors are applicable to determining whether there is an independent basis for finding that an identification is reliable: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Id. at 110-14.
The record reflects that Almanzar knew petitioner from the neighborhood and knew it was petitioner whom he was chasing following the burglary. Petitioner's claim that such prior familiarity is insufficient rests almost entirely on the fact that, following the burglary, Almanzar did not identify petitioner to police upon arriving at petitioner's apartment. However, in light of the overwhelming evidence that Almanzar knew who petitioner was, respondent's contention that Almanzar simply chose initially not to identify petitioner as the burglar is more compelling that petitioner's contention that Almanzar was unable to identify him.
The Appellate Division's conclusion that there was an independent source for the identification of petitioner, given the witness's prior familiarity with defendant and opportunity to view him during the crime, is therefore neither contrary to nor an unreasonable application of Mason. Petitioner is not entitled to habeas relief on this ground.
E. Certificate of Appealability
Finally, there is the question of granting petitioner a certificate of appealability. For such a certificate to issue, petitioner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
A "substantial showing" does not require petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002).
Here, reasonable jurists could debate whether a procedural bar properly applies to petitioner's compulsory process claim and, in turn, whether he is entitled to relief on the merits of this claim. The same is true as to the merits of petitioner's ineffective assistance of counsel claim, even given AEDPA's deferential standard of review.
III. Conclusion
For the reasons set forth above, petitioner's habeas corpus application is denied in its entirety. However, a certificate of appealability is granted as to his compulsory process and ineffective assistance of counsel claims.
SO ORDERED.