Opinion
00-CV-2O54 (JBW) 03-MISC-OO66 (JBW)
August 20, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was put on trial primarily for first degree burglary. The chief evidence presented against him at trial was the testimony of Darrin Mobley, who testified that petitioner forced his way into the home of Tawana Yard, petitioner's former girlfriend, and hit her. According to Mobley, petitioner first came to the house and rang the doorbell to speak with Yard. She did not allow him to enter and instead spoke with petitioner outside. They argued, and petitioner kicked in the door. Yard ordered petitioner to "get out [of] my house — get out [of] my house," Trial Tr. at 120. Petitioner grabbed Yard and threw her against the wall. Mobley, who ear door, pulled the screen door open, and entered the house. Mobley saw that petitioner was low carrying a firearm. Petitioner approached Yard, told her to tell Mobley that she still loved Petitioner, and then hit her in the face with the gun. He subsequently hit her eight to ten more times in the head. He also kicked her. Yard ran to the bedroom to call the police. Petitioner picked up the phone extension and said, "bitch, you better not try to call the cops on me and if I go to jail you are dead." Id. at 114. Petitioner then fled.
When he was arrested, petitioner twice admitted to striking Yard, though he denied having a gun.
The victim refused to testify at trial. No witnesses were called by the defense.
Petitioner was convicted of first degree burglary, second degree unlawful imprisonment, and second degree menacing. He was sentenced to a total of 3 to 9 years in prison.
The Appellate Division affirmed the conviction and sentence on appeal. Leave to appeal to the New York Court of Appeals was denied. No collateral proceedings were initiated.
In his application for a writ of habeas corpus, petitioner claims that (1) the evidence was legally insufficient to support a guilty verdict beyond a reasonable doubt and that the verdict was against the weight of the evidence; and (2) that he was deprived of a fair trial when the prosecutor made improper hearsay comments during summation. Construing petitioner's pro se habeas application liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), he also claims that a police officer's testimony was indirect hearsay and that the trial court gave contradictory and confusing instructions to the jury.
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 he 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 "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. 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, 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 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 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. 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 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
Petitioner claims the evidence was legally insufficient to support a guilty verdict beyond a reasonable doubt and that the verdict was against the weight of the evidence. In particular, petitioner claims there was no evidence that he was aware that he did not have license to enter Yard's home because they had been involved in a romantic relationship. To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
Petitioner's claim is without merit. Uncontroverted evidence at trial was that Yard and petitioner had stopped dating four months earlier. Yard refused to allow petitioner into her house when he rang the door bell. She told him to leave after he kicked in the front door and entered. Upon returning to the home petitioner broke a lock on the back door in order to enter. Viewing the evidence in the light most favorable to the prosecution, the sufficiency of the evidence with respect to this mens rea element of the crime of burglary was established. Habeas relief is not warranted.
Petitioner also claims that he was deprived of a fair trial when the prosecutor made improper comments during summation. In particular, petitioner states that it was improper for the prosecutor (1) to state that Tawana Yard and other witnesses would have told the same story that Mobley testified to if they had testified in court; and (2) to rely on hearsay to establish that petitioner's entry into Yard's home was unlawful. This claim was deemed procedurally barred when raised on direct appeal because it was unpreserved for appellate review. The substance of the claim may not, therefore, be considered by this court.
At any rate, the claim is without merit. 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 to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. 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).
In addition, a prosecutor's misconduct will ordinarily require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). Nonetheless, "when the impropriety complained of effectively deprived the defendant of 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S. at 643). Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceedings. DeChristoforo, 416 U.S, at 643. In order to view any prosecutorial misconduct in context, "we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. . . . Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly," Few v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted).
The prosecutor stated during summation that Yard — who did not testify at trial — told petitioner to leave her house. In doing so, the prosecutor relied upon the testimony of Mobley, who in answer to questions from the defense on cross examination stated that Yard told petitioner to "get out of my house." Use of the trial testimony elicited by the defense was not improper.
The prosecutor's statement that "I could prove this case to you with 20 witnesses, but I submit to you each witness that would [have] been called would have said the same thing," Trial Tr. at 180-81, was improper. Nonetheless, there was no objection and the issue is no longer open. Had an objection been made contemporaneously it is likely that a curative instruction would have been given. On this record it cannot be said that petitioner was denied a fair trial as a result of the statement. Habeas relief on these grounds is not warranted.
In his brief in support of his habeas application, petitioner glancingly makes two further state court and are therefore unexhausted. Because they could have been raised on direct appeal but were not, they would now be procedurally defaulted. They may therefore be deemed exhausted but barred for purposes of review in this court. See Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994) (if a state prisoner has not exhausted his state remedies with respect to a claim, but no longer has a state forum in which to raise the claim, the claim is procedurally barred).
At any rate, the claims are without merit. Petitioner complains that a testifying officer engaged in indirect hearsay and bolstering when he stated that after speaking with Tawana Yard he began looking for petitioner. In the context of eyewitness identification, "the testimony of a third party (typically, a police officer) to the effect that the witness identified a defendant as the perpetrator on some prior occasion is generally inadmissible." People v. Bute, 658 N.E.2d 192, 197 (N.Y. 1995), This rule, with modifications, has been codified by New York Criminal Procedure Law section 60.25. See id. "Indirect hearsay" describes testimony in which the "act of the hearer . . . leads by direct inference to the precise words of the speaker." Mitchell v. Hoke, 745 F. Supp. 874, 876 (E.D.N.Y. 1990). In such a situation, the speaker's credibility must be evaluated to determine its probative force, and the hearsay rule should generally be applied in order to prevent an "end run" around the proscription against admitting otherwise inadmissible evidence.
Even if the unobjected-to admission of this testimony was error, for a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must petitioner's identity was never in any doubt. Any error was harmless and habeas relief is not warranted.
Petitioner also complains about "contradictory" jury instructions. He points to the trial court's instruction to the jury that "our law requires the People of the State of New York to prove the defendant's guilt beyond a reasonable doubt. The law does not require the People to prove the defendant's guilt beyond a reasonable doubt or to a mathematical certainty. It is guilt under the law requires that it be proved beyond a reasonable doubt." Trial Tr. at 193 (emphasis added). No objection to this charge was made by defense counsel. "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, 146-41 (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.
The italicized portion of the instruction quoted above is not a correct statement of the law. Nonetheless, it is clearly an isolated misstatement by the trial court — or perhaps a reporting error — that is of no importance when read in the entire context of the instruction, which repeatedly emphasizes (as in the first line quoted above) that petitioner's guilt had to be proven beyond a reasonable doubt. On the same page of the transcript, for instance, the trial court tells consideration." Trial Tr. at 193-94.
Similarly, petitioner complains that in setting forth the elements of the crime of first degree burglary, it told the jury that the state had to prove that petitioner "lawfully entered a dwelling." Id. at 198 (emphasis added). Again, the trial court either misspoke or the court reporter made an error in transcription. No objection was made by counsel. Either way, petitioner's claim is meritless because the court repeatedly told the jury that they had to find that petitioner entered the dwelling unlawfully. See, e.g., id. at 197. Habeas relief on these grounds is not warranted.
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.
SO ORDERED.