Opinion
01 Civ. 11605 (MBM)
October 3, 2003
JEFFREY T. SCOTT, ESQ., Sullivan Cromwell, New York, New York, for Petitioner
ELIOT SPITZER, ESQ., Attorney General of the State of New York, JO W. FABER, ESQ., Assistant Attorney General, New York New York, for Respondent
OPINION AND ORDER
Conway Christie petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (West 1994 Supp. 2000), challenging his New York State conviction for criminal possession of a weapon in the third degree. In a Report and Recommendation dated May 29, 2002 (the "Report"), Magistrate Judge Andrew J. Peck recommended denial of Christie's petition. For the reasons stated below, the Report is modified, the writ is denied, and the petition is dismissed.
I.
Familiarity with the Report is assumed for present purposes, and I set forth below only so much of the factual background as is necessary to resolve Christie's objections to it.
Christie was indicted for second and third degree criminal possession of a weapon and first degree reckless endangerment in connection with a shooting incident at an outdoor music concert in July 1996. (Report at 1) He was tried twice in Supreme Court, New York County. (Id.) The first trial," in May 1997, resulted in Christie's acquittal of second degree weapons possession and reckless endangerment, and a mistrial on the third degree weapons possession count. (Id. at 1, 2 n. 1) The second trial, in July 1997, resulted in Christie's conviction of third degree weapons possession. (Id. at 1)
The central question underlying the count of conviction was whether Christie possessed the gun involved in the shooting at the music concert. (Id. at 26) The second trial consisted of essentially the same evidence and testimony as the first trial, except for the testimony of Violet Smith, an exculpatory witness. (Id. at 2 n. 1) At the first trial, Smith testified that she and Christie were close friends, she attended the music concert with Christie, and Christie did not possess or shoot a gun at the concert. (Id. at 28) Smith testified also that she had never been convicted of a crime. (Id.) At the second trial, Christie's attorney informed the Court, two weeks after the commencement of the trial, that he was "unable to locate" Smith, despite various attempts by Dwayne Matthews, an investigator hired by Christie, "to run [Smith] down." (Id. at 17) Matthews testified, and the prosecution cross-examined him, at length about his efforts to locate Smith. (Id. at 19-20) Christie then moved to admit Smith's testimony from the first trial on the ground that he could not locate Smith to testify at the second trial. (Id. at 21) The Court denied the motion, finding that Christie had not made sufficient good-faith efforts to locate Smith, and thus Smith was not an "unavailable witness" for the purpose of admitting her former testimony. (Id. at 23)
On July 16, 1997, the jury in Christie's second trial convicted him of third degree weapons possession. (Id. at 29) On July 3O, 1997, the Court sentenced Christie as a predicate felon to the maximum term of seven years' imprisonment. (Id.)
Christie appealed to the Appellate Division, First Department, arguing,inter alia, that the trial court had denied him a fair trial and compulsory process rights by denying his motion to admit Smith's former testimony, and by failing to grant a limited adjournment to obtain the testimony. (Scott Aff. Ex. E: Christie 1st Dep't Br. at 29) On December 7, 2000, the Appellate Division affirmed Christie's conviction as follows:
The [trial] court properly denied defendant's request to have the testimony of a witness who testified at defendant's first trial admitted into evidence since defendant failed to meet his burden of establishing that the witness could not "with due diligence be brought before the court" (see CPL 670.10(1); People v. Broome, 222 A.D.2d 1094, 636 N.Y.S.2d 243) . In any event, upon our review of the entire trial, we conclude that there was no reasonable possibility that this witness's testimony would have affected the verdict.People v. Christie, 278 A.D.2d 37, 38, 717 N.Y.S.2d 523, 523 (1st Dep't 2000). The New York Court of Appeals denied leave to appeal on April 6, 2001. People v. Christie, 96 N.Y.2d 798, 726 N.Y.S.2d 376 (2001).
Christie, through counsel, has filed a timely habeas corpus petition ("Pet."), alleging that "the trial court denied [him] his due process right of a fair trial and compulsory process rights by denying his motion to admit [Smith's] former testimony. . . ." (Pet. ¶ 12(A)) Christie's appeal to the Appellate Division and request for leave to appeal to the New York Court of Appeals satisfy the exhaustion requirement for seeking relief under § 2254 from a federal court. See Ramirez v. Att'y Gen. of New York, 280 F.3d 87, 94 (2d Cir. 2001). Therefore, he is entitled to consideration of the merits of his claims.
II.
A district court reviewing a Magistrate Judge's report may adopt those parts of the report to which no specific objection is raised, provided the findings are not clearly erroneous. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1) (2000); Thomas v. Arn, 474 U.S. 140, 149 (1985). With respect to those parts of the report to which any party objects, the court must make a de novo determination. SeeUnited States v. Raddatz, 447 U.S. 667, 673-76 (1980);Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). In this case, Christie objects to the Magistrate Judge's findings that: (1) the Appellate Division did not unreasonably conclude that Smith was not an unavailable witness; and (2) the Appellate Division did not unreasonably conclude that Smith's excluded testimony would not have affected the verdict. Accordingly, I will review of those findings de novo, and adopt the remainder of the Report because it is not clearly erroneous.
III.
Both of Christie's objections implicate this court's authority to grant relief under the "unreasonable application" clause of 28 U.S.C. § 2254(d)(1). That clause states, in relevant part, that a federal court may not grant a habeas corpus writ unless the state court's decision "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States."
In his Memorandum in Support of a Petition for a Writ of Habeas Corpus ("Christie Mem."), Christie also argues that "[t]he state decision was contrary to . . . clearly established Supreme Court precedent." Christie Mem. at 29 (emphasis added). Magistrate Judge Peck found no support for habeas relief under AEDPA's "contrary to" clause (see Report at 41-42) and Christie does not raise an objection to that finding. I adopt that part of the Report concerning Christie's entitlement to habeas relief pursuant to the "contrary to" clause, and thus do not address that issue here.
As Magistrate Judge Peck explained, the "unreasonable application" clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners. (Report at 32-35) A petitioner seeking relief under the "unreasonable application" clause must show not only that the state court applied federal law incorrectly, but that the state court's decision was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000).
In early cases involving the "unreasonable application" clause, the Supreme Court acknowledged that the "the term `unreasonable' is . . . difficult to define,' Williams v. Taylor, 529 U.S. at 410, and lower federal courts, including the Second Circuit, have made considerable effort to give the term more tangible meaning. See, e.g., Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (noting that the term "unreasonable" encompasses "some increment of incorrectness beyond error," but "caution[ing] . . . that the increment need not be great").
Although the term "unreasonable" continues to defy easy definition, the Supreme Court in more recent cases — some decided after Magistrate Judge Peck released his Report — has underscored the difference between merely "incorrect" and "unreasonable" applications of federal law. See, e.g., Lockyer v. Andrade, 123 S.Ct. 1166, 1174 (2003) ("In order for a federal court to find a state court's application of our precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous."); Price v.Vincent, 123 S.Ct. 1848, 1853 (2003) ("[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied a [Supreme Court case] incorrectly. . . . "); Woodford, 537 U.S. at 25-26 (reversing Ninth Circuit judgment granting habeas relief on the ground that the Ninth Circuit "ultimately substituted its own judgment for that of the state court, in contravention of 28 U.S.C. § 2254(d)"); see also Eze v. Senkowski, 321 F.3d 110, 124 (2d Cir. 2003) (noting that habeas petitioner "must do more than show that he would have [prevailed] if his claim were being analyzed in the first instance. . . . ").
Andrade offers perhaps the clearest guidance concerning the difference between "unreasonable" and "incorrect" in the AEDPA context. In that recent case, the Court reversed a Ninth Circuit judgment granting habeas relief to a petitioner claiming his lengthy prison sentence, imposed by a state court, violated the constitutional prohibition against cruel and unusual punishment. The Court emphatically rejected the Ninth Circuit's interpretation of "objectively unreasonable" as requiring no more than "clear error," noting that "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Andrade, 123 S.Ct. at 1175. Nor, the Court noted, was it "enough that a federal court . . . is left with a firm conviction that the state court was erroneous." Id.
Applying the highly deferential standard to state court decisions required under AEDPA, and availing myself of the Supreme Court's recent decisions clarifying the distinction between "incorrect" and "unreasonable" applications of federal law, I find that neither of Christie's objections warrants granting habeas relief.
A. Smith's Unavailability
I agree with Magistrate Judge Peck's finding that the Appellate Division did not unreasonably conclude that Smith was not unavailable. As Magistrate Judge Peck explained, a witness is deemed unavailable under C.P.L. § 670.10(1), the governing provision, only if the party moving to admit the witness' testimony has made good faith efforts to obtain the witness' presence at trial. (Report at 36-38) Christie objects to the Magistrate Judge's finding on two grounds: (1) the trial court refused to allow defense counsel to testify about his own efforts to locate Smith and "[i]t is difficult to imagine how a court can discharge its obligation to determine whether a defendant made good faith efforts to locate a trial witness without hearing important evidence offered by one directly related to that issue" (Christie Opp'n at 4); and (2) the Appellate Division "incorrectly interpret[ed] the `good faith efforts' standard to require a defendant to make an `all out effort' to find a missing witness." (Id. at 9) Neither of these objections survives scrutiny.
With respect to the trial court's refusal to hear defense counsel's testimony, I find such refusal was of no consequence because the Court had already accepted as true the substance of defense counsel's proffer. The Court made reference to this fact several times:
MR. TATEM: Your Honor, this may be a little out of the ordinary. I don't know, even though I'm counsel for the defendant, there was a lot of information in terms of contacting [Matthews] as well as other folks that I conveyed to him in regards to getting Miss Smith here.
THE COURT: You conveyed to Mr. Matthews?
MR. TATEM: Right. For example, the reason he has the beeper number, even though I'm not testifying, but if necessary I'm willing to be sworn in and testify, I —
THE COURT: I don't think it is necessary. It is clear what is going on here. You have been trying to reach this woman [Smith]. She went to California. She is back now. The mother has told her that you are trying to reach her. She knows that you're trying to reach her, but she is not showing up.
MR. TATEM: What I wanted to add in continuation of this is, that the defendant's sister was in court yesterday and was trying to call her.
THE COURT: I have no question that everybody that I have had contact with tried desperately to get her to come to court. I have no question about that. I have no question that you have notified her of the court date.
MR. TATEM: I want to make known the things that I did, which he didn't know about, and I can testify to that.
THE COURT: I think it's clear that a sincere effort has been made by everybody to get Miss Smith to come to court. That has been going on for two weeks, from July 2nd until today, I believe. I accept his [Matthew's] testimony. I believe that is correct. I believe you have been trying for two weeks to get her to come to court and she has not come . . .
(Trial Transcript ("Tr.") at 534-36) (emphasis added) In other words, the trial court concluded that Smith was not unavailable notwithstanding defense counsel's efforts to locate him. Absent a showing that the refusal to admit defense counsel's testimony affected the trial court's (and, later, the Appellate Division's) ultimate conclusion that Smith was not unavailable, that conclusion cannot have been "objectively unreasonable" on that ground.
Christie's next objection — that the Appellate Division "incorrectly interpret[ed] the `good faith efforts' standard" — is equally unavailing. As discussed above, the relevant inquiry for a habeas court is not whether the state court's finding is incorrect, but whether that finding is objectively unreasonable. In this case, several facts lend support to the Appellate Division's finding that Christie failed to make sufficient good faith efforts to locate Smith: defense investigator Matthew's delay in making efforts to contact Smith until July 9, the day after the prosecution rested its case, despite Smith's absence from court as early as July 2 (Tr. at 526-27); Christie's delay in notifying the trial court of his difficulties in locating Smith (Tr. at 513-14; Tr. at 514-34); and Christie's failure to subpoena Smith for the second trial, even though Smith was subpoenaed for the first trial (Tr. at 519-20), and all of Christie's other eyewitness friends were subpoenaed for the second trial. (Tr. at 404-05) In these factual circumstances, it was not unreasonable for the Appellate Division to conclude that Smith was not unavailable. See People v. Broome, 222 A.D.2d 1094, 1094, 636 N.Y.S.2d 243, 244 (4th Dep't 1995) (finding prosecution's efforts to locate missing witness insufficient, even though two investigators attempted to locate witness for week before trial);People v. Peterson, 160 A.D.2d 563, 564, 554 N.Y.S.2d 521, 522 (1st Dep't 1990) (affirming exclusion of witness' prior testimony where [t]he record shows no effort by defendant to subpoena or otherwise compel attendance of the witness"), appeal denied, 76 N.Y.2d 863, 560 N.Y.S.2d 1002 (1990). See also Allen v.Senkowski, 178 F. Supp.2d 318, 322-23 (E.D.N.Y. 2001) (Weinstein, D.J.) (denying habeas petition brought on ground that trial court excluded prior testimony of alibi witnesses who were sick at time of trial; while trial court's "reasoning seems thin," no constitutional violation found).
In his objections to the Report, Christie argues also that Magistrate Judge Peck incorrectly required him to explore improbable leads to locate Smith. (Christie Opp'n at 5-9) I need not address this argument because, conducting de novo review, I find that the Appellate Division did not unreasonably conclude that Smith was not unavailable.
Christie argues that Judge Korman's decision to grant relief inPhan v. Greiner, 165 F. Supp.2d 385 (E.D.N.Y. 2001) — a case that involved facts similar to those present here — illustrates "[t]he unreasonable nature of the state court decision denying Christie's motion to admit former testimony." (Christie Opp'n at 9) However, Judge Korman decided Phan before the Supreme Court's recent decisions emphasizing the distinction between "incorrect" and "unreasonable" applications of federal law. Had Judge Korman been aware of the Court's recent decisions, as I am here, he might have reached a different outcome in Phan. Moreover, notwithstanding the State's concession that Phan "mirrored" the present action (Christie Opp'n at 9), the habeas inquiry in each case inescapably turns on particular facts. In Phan, unlike the present action, the defense team visited the witness's former employer, former neighbors and other associates; obtained from the post office the witness's last known address and change-of-address information; and contacted the telephone company to obtain the witness' number. See Phan, 165 F. Supp.2d at 394-96. Judge Korman also found it significant that the case against Phan rested on the testimony of a single eyewitness. Id. at 398. In the present action, several police officers gave incriminating testimony. (Report at 2-8) Thus, Judge Korman's finding in Phan does not suggest that relief should be granted here.
B. Materiality of Smith's Prior Testimony
I also agree with Magistrate Judge Peck's finding that the Appellate Division did not unreasonably conclude that Smith's excluded testimony would not have affected the verdict. Christie correctly argues that Smith's testimony did not merely duplicate that of his other exculpatory witnesses. (Christie Opp'n at 14-15) However, other factors substantiate the Appellate Division's conclusion. For instance, that Smith's prior testimony would have been admitted in the second trial via transcript undercuts, at least in part, Christie's argument that the testimony would have swayed the jury. The exculpatory value of Smith's testimony is also reduced because she and Christie were "close friends," "went to school together," and worked together in the modeling profession. (Tr. at 322, 324, 328-29) Moreover, the jury in the second trial may well have found the police officers' incriminating testimony more credible than did the jury in the first trial.
For these reasons, and in view of the deference that federal courts owe to state court decisions under AEDPA, see supra discussion at 5-7, I cannot find that the Appellate Division was unreasonable when it concluded that Smith's prior testimony was not material to Christie's defense. See Allen, 178 F. Supp.2d at 322 (denying habeas relief for state court's exclusion of alibi witness' prior grand jury testimony because "[t]he trial judges had technically sound reasons for denying petitioner's motion to introduce the [prior] testimony of the missing alibi witness"; "[W]hile the issue is troublesome, there appears to have been no constitutional violation").
IV.
In rendering this judgment, I need not, and do not, decide whether the Appellate Division's decisions concerning Smith's availability and the materiality of Smith's prior testimony were erroneous. It suffices that those decisions, even if erroneous, were not unreasonable for the reasons discussed above at pages 10-11. For Christie to obtain habeas relief, the "unreasonable application" clause demands that he establish "some increment beyond error"; for the cited reasons, Christie fails to satisfy this rigorous standard.
Nevertheless, I may issue a certificate of appealability if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (West Supp. 2000). In other words, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (certificate of appealability should issue "if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further"), cert. denied, 531 U.S. 873 (2000). I agree with Magistrate Judge Peck that the questions raised in Christie's habeas petition can be considered "close" ones. (Report at 45, 46) Because reasonable jurists could find that the Appellate Division's decisions were unreasonable, a certificate of appealability will issue.
* * *
The Report is modified insofar as Magistrate Judge Peck does not address the trial court's refusal to hear defense counsel's testimony, the writ is denied, and the petition is dismissed. However, because reasonable jurists could disagree with my conclusions, a certificate of appealability will issue.
SO ORDERED.