Opinion
No. 97 Civ. 3305 (LTS)(DFE)
April 19, 2002
MEMORANDUM OPINION AND ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION
On October 20, 2000, Magistrate Judge Douglas F. Eaton issued a Report and Recommendation ("Report") recommending that the Court treat as exhausted and dismiss Ground One of he petition for Writ of Habeas Corpus filed by Gregory Counts ("Petitioner" or "Counts") and dismiss the remaining grounds asserted for lack of merit pursuant to 28 U.S.C. § 2254(b)(2) for lack of merit even though they were not exhausted. Leonard Portuondo ("Respondent") interposed timely objections to the Report, arguing that none of the grounds had been fairly presented to New York Court of Appeals and thus none of the issues raised in the petition had properly been presented for federal habeas corpus review and relief.
Upon review of the Report, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C.A. § 636(b)(1)(C) (West 1993). "To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are filed. See Id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
As noted above, Respondent objects to Magistrate Judge Eaton's determination that the five grounds on which Petitioner sought habeas corpus relief were fairly presented to the New York Court of Appeals. Respondent argues that Petitioner failed to "fairly present" his claims to the highest state court when he submitted a general leave letter to the New York State Court of Appeals. seeking to appeal the determination of the Appellate Division, First Department, and attaching the briefs that had been submitted to the Appellate Division. Respondent contends that recent Second Circuit case law requires something more than an "ambiguously worded" leave petition because, without greater specificity, the Court of Appeals would have "no clue as to which claims therein he sought to raise once more." (Respondent's Objections at 2.)
The cases dealing with the "fair presentation" of federal constitutional claims first address the "fair import" of the petitioner's submission to the highest state court. The fair import of Counts' submission to the New York Court of Appeals was that he was appealing on all of the grounds argued below in the brief to the Appellate Division. Case law to which Respondent refers in his objection differs factually from the instant petition, and thus the "fair import" of the submissions in those instances was also substantially different. In Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000), the Petitioner argued a Batson claim in the first part of his leave application but made no reference to the other claims set forth in the Appellate Division briefs. The Second Circuit held that "arguing a single claim at length and making only a passing reference to possible other claims to be found in the attached briefs does not fairly apprise the state court of those remaining claims." Jordan, 206 F.3d at 198. The fair import in a situation where the leave letter "urged a single claim" and ignored the others contained in the appellate brief was that the highlighted claim was the only one up for review. Id. See also Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (fair import of submission consisting of Appellate Division brief raising three claims, along with a leave letter arguing one claim forcefully, was that the other two claims had been abandoned);Durden v. Artuz, No. 97-C3562, 2002 U.S. Dist. LEXIS 964, at *6-7 (S.D.N.Y. Jan. 14, 2002) (clear inference, where leave letter was silent on what issues were being presented for appeal, and two subsequent letters included one issue and expressly excluded another, was that the issue excluded in one of the subsequent letters had not been fairly presented). In Morgan v. Bennett, 204 F.2d 360 (2d Cir. 2000), the leave letter referencing the attached Appellate Division brief requested notification of the judge designated so that appellate counsel could send a follow-up letter in support of the leave application. The letter further requested that the court review all the issues presented in the appellate and supplemental pro se briefs. Id. at 369. Appellant's counsel then sent a follow-up letter arguing one issue while merely referencing the remaining issues found in the supplemental pro se brief submission.Id. at 370. The Second Circuit held that the first request to review all the issues in both briefs was sufficient to "alert the Court of Appeals that Morgan sought review of all the issues raised in his pro se supplemental Appellate Division brief" Id. at 371. The panel did not "think it appropriate to infer that the New York Court of Appeals would construe counsel's second letter as eliminating issues as to which review had been expressly requested." Id. The fair import of the appellant's dual letter submission was that counsel's second letter was to be "considered in addition to, not in lieu of or as a limitation on, the issues raised in counsel's initial letter." Id.
In the instant case, Petitioner's counsel submitted a leave letter along with the Appellate Division briefs, expressly stating that Petitioner was appealing the Appellate Division's decision. Unlike the one at issue in Jordan, Petitioner's leave letter did not identify one issue and leave others unmentioned. The Court of Appeals did not have to "seek and find arguments not expressly pointed out in the application for leave," Jordan, 206 F.3d at 199. Also, unlike in Morgan, there was no further correspondence to the Court of Appeals that might have muddied the water as to the nature of Petitioner's appeal. It was clear from counsel's letter that Petitioner was appealing the determinations of the Appellate Division on the five grounds presented in the brief, and the letter did not leave the Court of Appeals with "no clue" as to what issues New York's highest court should be reviewing. Furthermore, in his certificate denying leave to appeal, New York Court of Appeals Associate Judge Levine stated "there is no question of law presented which ought to be reviewed. . ., "(emphasis added) (Exhibit J to Respondent's Memorandum in Support of Answer Opposing Petition for a Writ of Habeas Corpus); he did not deny leave on the basis that no issues had been presented to the Court for review. Having reviewed this issue de novo, the Court finds that the "fair import" of Petitioner's leave letter was that he was seeking review of all the Appellate Division's determinations.
Under the federal habeas corpus statute, 28 U.S.C. § 2254, any state prisoner seeking habeas corpus review must exhaust all available state remedies. 28 U.S.C.A § 2254(b)(1), (c) (West 1993). The exhaustion requirement was developed to support considerations of comity, and is not satisfied until the petitioner "fairly presents" all of his federal constitutional claims in the state court system. Dave v. Attorney General of New York, 696 F.2d 186 (2d Cir. 1982). As Magistrate Judge Eaton notes in his Report. the question of fair presentation of a federal constitutional claim turns on whether the claim is worded in such a way "as to call to mind a specific right protected by the constitution." Daye, 696 F.2d at 194.
As Judge Eaton further notes. a challenge to sufficiency of the evidence states a federal constitutional claim. Report, citing Jackson v. Virginia, 443 U.S. 320 (1979). Thus, Petitioner's claim that his conviction was based on insufficient evidence was "fairly presented" and is exhausted for purposes of habeas corpus review.
The Court agrees with Judge Eaton to the extent that he holds that the four remaining grounds argued on Petitioner's state appeal did not "fairly present" federal constitutional questions to the Court of Appeals, and are thus unexhausted for the purposes of federal habeas corpus review. Principles of comity dictate allowing "state courts. . . the first opportunity to hear the claim sought to be vindicated in a federal habeas corpus proceeding." Picard v. Connor, 404 U.S. 270, 275-276 (1971); see also O'Sullivan v. Boerkel, 526 U.S. 838, 844 (1999); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). Judge Eaton recommends that the four unexhausted claims (Grounds Two, Three, Four and Five in the petition) be dismissed for lack of merit pursuant to Section 2254(b)(2). Following the issuance of Judge Eaton's Report, the Second Circuit clarified the standard for dismissal on the merits of unexhausted habeas corpus claims, holding that such claims are not to be dismissed unless they are "hopeless" and `obviously' not ones upon which habeas relief may be granted." Jones v. Senkowski, No. 00- 2145, 2001 U.S. App. LEXIS 28391, at *18 (2d Cir. October 5, 2001) (emphasis added). This approach, the panel noted, is flexible and sensitive to "underlying concerns about comity, fairness and judicial efficiency." Id. at *20-21. The Court finds that, in the interests of comity, fairness and in light of the Second Circuit's holding in Jones, the four remaining unexhausted claims should not be dismissed on their merits.
Petitioner may be able to pursue the federal constitutional claims not raised on direct appeal in a motion to vacate a judgment under § 440.10 of New York Criminal Procedure Law, which allows for post-judgment collateral attack on the verdict. Although § 44O.10(2)(a) prohibits post conviction review of points previously determined on appeal, except in the rare instance where a subsequent change in the law must be given effect, the Writ may be used to "adjudicate previously unconsidered constitutional claims." Cameron v. Fastoff, 543 F.2d 971, 978 (1976) quoting from ex rel. Gibbs v. Zelker, 496 F.2d 991, 994 n. 6 (1974); see also Jones v. Senkowski, No. 00-2145, 2001 U.S. App. LEXIS 28391, at *5 n. 1 (2d Cir. 2001) (Petitioner might be able to bring an ineffective assistance of counsel claim, for failure to raise suggestiveness claim on direct appeal, under $440.10 of the New York Criminal Procedure Law).
Originally, a "mixed petition" presenting both exhausted and unexhausted claims was to be dismissed without prejudice so that the petitioner could return to the state courts to exhaust his claim. If a remedy was not to be had there, then petitioner could return to federal court and pursue the habeas corpus petition. Rose v. Lundy, 455 U.S. 509 (1982). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations period to file federal habeas corpus petitions and imposed strict limitations on sequential habeas corpus filings. Duncan v. Walker, 533 U.S. 167, 174 (2000). The one-year statute of limitations begins to run either one year from the effective date of the AEDPA (April 24, 1996) or, if the conviction became final after that, one year from the date the petitioner's state conviction became final. Id. As Judge Eaton notes in the Report, this petition was filed shortly before the statute of limitations expired. In Zarvela v. Artuz, 254 F.3d 374, 381 (2001), the Second Circuit held that the district court has the discretion to either dismiss a mixed habeas corpus petition without prejudice, or dismiss only the unexhausted claims and stay the remainder of the petition until all of the claims in the petition have been exhausted. The exercise of such discretion is appropriate "where the outright dismissal `could jeopardize the timeliness of a collateral attack.'" Id. at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000). Subsequent to Zarvela, the Supreme Court, in Duncan v. Walker, held that the pendency of a federal habeas corpus proceeding does not toll the one-year state of limitations. 533 U.S. 167 (2000). The Supreme Court's limitation of the statute's tolling provision to state proceedings counsels in favor of an approach protective of Petitioner's access to federal court.
Magistrate Judge Eaton's Report, which is set forth in full below, is adopted to the extent it finds that Petitioner has exhausted his state remedies with respect to Ground One of his petition and has failed to exhaust his state remedies with respect to Grounds Two through Five of the petition. Judge Eaton's recommendation that the petition be dismissed on the merits in its entirety is not adopted.
This Court will exercise its discretion to stay the proceedings with respect to Petitioner's exhausted claim, dismissing without prejudice his unexhausted claims. If Petitioner presents the unexhausted claims to the appropriate state court and returns to this Court within the time limits set forth below, he will be permitted to amend his petition to reinstate those claims and such amendment will relate back to the date of the original petition. Zarvela, 254 F.3d at 381-382. Petitioner must 1) initiate the appropriate state proceedings within forty-five (45) days from the date hereof and 2) apply to this Court to reinstate the claims within forty-five (45) days after the relevant state proceedings have been completed. Cf. Zarvela, 254 F.3d at 382.
Proceedings in this Court are stayed as to Ground One of the petition and this case shall be placed on the suspense calendar pending Petitioner's further state proceedings and until further order of the Court. Grounds Two through Five of the petition are dismissed, without prejudice, as unexhausted.
SO ORDERED.
DOUGLAS F. EATON, United States Magistrate Judge.
The habeas petition of Gregory Counts challenges his conviction after a 1992 trial in Supreme Court, New York County. He and his codefendant. Perry VanDyke, were charged with acting in concert against a single victim. The jury found Counts and VanDyke each guilty of four counts of rape, three counts of sodomy and one count of kidnapping. Justice Ronald Zweibel sentenced Counts to seven concurrent terms of 8 to 20 years and one consecutive term of 8 to 24 years.
Edith Blumberg filed a brief for Counts with the Appellate Division, which affirmed the conviction at 220 A.D.2d 218, 632 N.Y.S.2d 4 (1st Dept. 1995). She submitted a letter requesting leave to appeal to the New York Court of Appeals; in December 1995, Judge Howard A. Levine denied leave to appeal.
Counts then came to our Court with a habeas petition dated April 21, 1997, just barely within the one-year statute of limitations enacted effective April 24, 1996. He used the form provided by the Pro Se Office and listed five "grounds":
1. The evidence at trial was insufficient to support the rape and sodomy convictions;
2. The prosecutor's summation was improper;
3. The evidence of uncharged crimes — drug dealing involving the defendants and the victim's boyfriend — contravened the principles of People v. Molineux, 168 N.Y. 264 (1901);
4. The prosecutor's actions before the grand jury were improper;
5. Counts may have been denied the right to attend a portion of the proceeding — namely, a legal argument about the presentation to the grand jury.
These five grounds repeated the headings of Attorney Blumberg's appellate brief, which is Exhibit C to the Respondent's Answer.
On March 11, 1999, Assistant District Attorney James D. Gibbons served and filed an Answer, a Memorandum of Law and a volume containing the following ten exhibits:
Exh. A. The codefendant VanDyke's brief to the Appellate Division.
Exh. B. VanDyke's reply brief to the Appellate Division.
Exh. C. Petitioner's brief to the Appellate Division.
Exh. D. The People's Brief to the Appellate Division opposing petitioner's appeal (but we lack the People's brief opposing Van Dyke's appeal).
Exh. E. The Appellate Division's decision affirming Van Dyke's conviction.
Exh. F. The Appellate Division's decision affirming petitioner's conviction.
Exh. G. Van Dyke's supplemental letter requesting leave to appeal to the Court of Appeals.
Exh. H. Petitioner's letter requesting leave to appeal to the Court of Appeals.
Exh. I. Judge Levine's denial of Van Dyke's application for leave to appeal.
Exh. J. Judge Levine's denial of petitioner's application for leave to appeal.
Counts did not submit any reply. In November 1999, my law clerk requested ADA Gibbons to verify that Counts had received the March 1999 Answer, Exhibits in Support of Answer and Memorandum of Law. On November 15, 1999, ADA Gibbons sent an affidavit to me and to Counts showing that Counts had received the March 1999 documents. Counts has no obligation to submit a reply, and I conclude that he has elected not to submit one.
Standard of Review
Petitioner's second, third, fourth and fifth grounds were never presented to the state courts as grounds raising a federal constitutional issue. In other words, these grounds are unexhausted. Federal habeas courts now have three options for handling unexhausted claims:
Option One: Dismiss the petition, as unexhausted or mixed. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982).
Option Two: Entertain the petition to deny it on the merits pursuant to 28 U.S.C. § 2254(b)(2). The consensus developing in the courts is that § 2254(b)(2) should only be utilized if "it is obvious, based on established law and a relatively quick reading of the record, that the claim does not raise any issue upon which a habeas court may grant relief." Norman v. New York, 1999 WL 983869, *5 (S.D.N.Y. 1999) (Mukasey, J.).
Option Three: Address the merits if the petitioner's failure to exhaust resulted in a procedural default," i.e., he can no longer go to state court, and if the petitioner has shown cause for the default and prejudice arising from imposing the bar of a default. Counts has put forth no showing of cause or prejudice.
For the reasons below, I recommend that Judge Preska (a) treat Counts's first ground as exhausted and dismiss it for lack of merit and (b) dismiss the remaining grounds for lack of merit pursuant to § 2254(b)(2). even though they were not exhausted.
The Trial Evidence
A third perpetrator (named Leonard) was allegedly involved in the crime, but he had not been arrested as of the time of the trial of VanDyke and petitioner. The victim testified that her boyfriend sold drugs with Van Dyke and Leonard, and that in the Fall of 1990 Leonard and petitioner (whom she knew as "Head Moe" or "Headmo") beat up her boyfriend after telling her that he was blameworthy because some drug money was "short." (Tr. 130-40) On a later date, she heard that her boyfriend had shot and wounded VanDyke. (Tr. 145-46) On the evening of January 17, 1991, as she approached a subway station in Queens, VanDyke, Leonard and petitioner kidnapped her and then raped and sodomized her while they drove around Manhattan and tried to force her to reveal the whereabouts of her boyfriend. (Tr. 147-72) She testified that petitioner was the one who first approached her and forced her at knifepoint into the car (Tr. 152-54) and that he sodomized and raped her more than once, in the back seat of the car and also outside the car, in Central Park (158-66). When the men finally let her go, she ran from the Park, found a police car, and was taken to St. Luke's Hospital. (Tr. 166-69)
Also testifying for the prosecution were Sgt. Walter Ebeling, the first policeman she met (Tr. 394-401), Dr. Cynthia Figueroa, the doctor who examined her (Tr. 329-67), Patricia Zippo, a police chemist who analyzed parts of the Vitulo kit (Tr. 369-82), and Detective James Flaherty of the N.Y.P.D. Special Victims Squad (Tr. 267-328).
Counts presented two witnesses and a stipulation. Richard Cunningham, a forensic scientist retained by the State, performed a DNA test on a semen stain found on the victim's panties. (Tr. 403-48) His analysis found that it did not match with the DNA of either of the two men who had been arrested. (Tr. 413-14) Detective Glen Whelpley interviewed the victim at the hospital and she said three men had vaginal sex with her during the course of the evening and morning of January 17-18, 1991. (Tr. 449-56) Similarly, the parties stipulated that Police Officer Nicholas Batista interviewed the victim at the hospital and she said she was raped by all three males twice. (Tr. 457) As noted above, the third perpetrator (Leonard) had not been arrested as of the time of the trial of Van Dyke and petitioner. There were no other defense witnesses.
Legal Analysis
As noted above, the petition's five grounds repeat those raised by Attorney Blumberg in the direct appeal to the Appellate Division. Her subsequent application to the Court of Appeals enclosed the Appellate Division briefs, but did not focus on any particular claim. Accordingly, she fairly presented all five claims to the highest state Court. See the recent opinion in Jordan v. Lefevre, 206 F.3d 196 (2d Cir. 2000). The Second Circuit found that Jordan had exhausted only one of his claims because his "leave letter" had focussed only on that claim:
. . . Jordan forcefully argued his Batson claim in the first three paragraphs of his application for leave, but made no reference to his other claims. In the fourth paragraph of his counsel's letter to the New York Court of Appeals he asked that he be given permission to appeal "[f]or all of these reasons and the reasons set forth in his Appellate Division briefs." Arguing a single claim at length and making only passing reference to possible other claims to be found in the attached brief does not fairly apprise the state court of those remaining claims.206 F.3d at 198. The Court then stated that the exhaustion analysis would be different if Jordan's attorney had done what (it now turns out) Attorney Blumberg essentially did in Exh. H. The Court said:
Had appellant [Jordan] more clearly stated that he was pressing all of the claims raised in the attached brief, or had his letter made no argument in detail but rather only "`request[ed that the Court of Appeals] consider and review all issues outlined in defendant-appellant's brief,'" the result here would be different and the remaining claims would have been fairly presented to the Court of Appeals.206 F.3d at 199 (emphasis added).
The next question is whether petitioner's claims were presented to the highest court of the state as implicating federal constitutional rights. Petitioner's appellate counsel, Edith Blumberg, wrote an able, 49-page brief to the Appellate Division, and she also adopted the arguments made in the brief of VanDyke's appellate counsel, Renee Reso. Their briefs cited many New York cases, but no federal cases, and they made no citation to the federal Constitution. The question remains: did they allege any claims "in terms so particular as to call to mind a specific right protected by the Constitution," or "allege a pattern of facts that is well within the mainstream of constitutional litigation?" Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982). I find that the answer is "yes," but only as to the claim attacking the sufficiency of the evidence (which is the only claim I find to be deserving of extended discussion).
The Petition's First Ground — sufficiency of the evidence
The claim concerning the sufficiency of the evidence was adequately presented as a federal constitutional issue. Strogov v. Attorney General of State of New York, 191 F.3d 188, 192 (2d Cir. 1999). Appellate counsel conceded that corroborative medical evidence is not necessarily required for a conviction, but she argued that the evidence in this case was insufficient to support the convictions for rape and sodomy. In Jackson v. Virginia, 443 U.S. 320, 322, 99 S.CT. 2781, 2791 (1979), the Supreme Court held that "[a] challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim." Moreover, "New York applies the federal habeas standard described in Jackson to evaluate sufficiency of the evidence on appeal," Einaugler v. Supreme Court, 109 F.3d 836, 839, n. 1 (2d Cir. 1997), and therefore it is reasonable to conclude that the First Department's rejection of Counts's sufficiency argument necessarily demonstrates a rejection of a Constitutional argument. See Evans v. Court of Common Pleas, 959 F.2d 1227, 1233 (3d Cir. 1992). Hence I will proceed to evaluate the petition's first ground.
In affirming Counts's conviction, the Appellate Division said:
We reject defendant's contention, based on the forensic scientist's conclusion that the DNA isolated from, the semen stain on the complainant's clothing did not belong to defendant, that the evidence of his guilt on the rape and sodomy counts was insufficient, since corroborative medical evidence is not required to sustain a rape conviction based on a theory of forcible compulsion (citation omitted). We note the absence of defendant's DNA in the semen sample was readily explained: complainant testified that she did not know whether defendant had ejaculated during the sexual assaults and that she had engaged in sexual intercourse with her boyfriend on the evening before and the morning of the day of the attack.220 A.D.2d 218, 218-19, 632 N.Y.S.2d 4 (1st Dep't 1995). I would add one comment; the semen could have come from the third rapist (Leonard). (Tr. 449-57) As of the time of the trial, he had not been arrested and therefore his DNA was not available for a comparison.
A federal habeas court must evaluate an insufficiency claim by analyzing the evidence in the light most favorable to the prosecution, comparing it with the substantive elements of the crime as defined by state law. Einaugler, 109 F.3d at 839-40. At trial, the trial attorneys for VanDyke and for petitioner made a variety of arguments in an attempt to impeach the victim's testimony. See Tr. 474-86, 486-99. They pointed out that the DNA testing did not implicate either man. They also pointed to the lack of physical evidence to support the victim's story (for example, lack of bruises, and her outer clothing was not kept as evidence). In addition, they argued that the victim had a motive to protect the life of her boyfriend (because she knew that he had shot Van Dyke and that he owed drug money which both defendants were demanding from him). Conceivably, one way to protect her boyfriend would be to achieve the incarceration of his enemies by falsely accusing them of rape. (Tr. 474-75) On the other hand, her complaint to the police about the rape apparently led to the arrest and incarceration of her boyfriend for possession of a gun, presumably the gun he had used to shoot VanDyke in the foot. (Tr. 271-72, 279-80)
It is undisputed that New York law did not require corroborative medical evidence on the rape charges. See Exh. C at 42-44. The evidence was sufficient to persuade a rational jury that petitioner was guilty beyond a reasonable doubt. He and the other two men were previously known to the victim, and she selected petitioner from a line-up. (Tr. 150, 276) Sgt. Ebeling testified that the victim ran up to his patrol car at 3:30 a.m.; her hair was very messed up, her clothing was disheveled and dirty, and she was very hysterical. (Tr. 394-400) Dr. Figueroa testified that when she first saw the victim, two hours after the police brought her in to St. Luke's, she could not examine her right away because the victim was still "pretty hysterical" and too upset to give a medical history. (Tr. 333-34) Dr. Figueroa "noted her vaginal walls were tender upon examination." (Tr. 342) Petitioner has not met the heavy burden of demonstrating that no rational jury could have found the evidence sufficient to prove his guilt beyond a reasonable doubt.
The Petition's Second, Third and Fourth Grounds
When Counts raised these three grounds, the Appellate Division ruled against him by referring to the separate appeal which had been taken from the same trial by the codefendant VanDyke. In affirming VanDyke's conviction, the Appellate Divsion had written:
There is no merit to defendant's contention that the prosecutor's response to a grand juror's question as to whether there was physical evidence of rape — "that that should not concern you at this time * * * [and] will be dealt with at a later time, in a different forum" — impaired the integrity of the Grand Jury within the meaning of CPL 210.35(5). We also reject defendant's contentions that the prosecutor's summation deprived him of a fair trial, and find that the court did not abuse its discretion in allowing evidence of uncharged drug dealing by defendant that tended to show his motive for participating in the kidnapping, rape and sodomy of the complaining witness.People v. VanDyke, 214 A.D.2d 468, 625 N.Y.S.2d 529 (1st Dep't 1995) (citations omitted).
The comment in the grand jury
For purposes of a federal habeas petition, any claims of impropriety concerning a state grand jury proceeding are rendered harmless when a trial jury returns a verdict of guilt. Lopez v. Reilly, 865 F.2d 30, 32-33 (2d Cir. 1989).
The evidence of uncharged drug dealing, offered to show defendants' motive for kidnapping and assaulting the victim.
Again, this issue was presented to the state court solely as an issue of state law, not federal law. In any event, the federal courts allow such evidence for a variety of purposes, including motive. See Rule 404(b). Federal Rules of Evidence. Here, the illegality of the debt explained why it could not be collected by lawful means such as a lawsuit.
The prosecutor's trial summation
The prosecutor's summation was bombarded with objections, and Justice Zweibel sustained many of the objections. (Tr. 502, 512, 515, 516, 517, 519, 521, 525, 529) In the middle of her summation, he summoned her to the sidebar and cut off one of her arguments. (Tr. 533-35) But he denied the motion for a mistrial. (Tr. 541-47) To be entitled to federal habeas on this ground, petitioner must show "that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict."Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (citation omitted). The record in the case at bar does not support such a finding.
The Fifth Ground — petitioner's absence from a legal argument
At Tr. 44-54, defense counsel, having obtained the grand jury transcript, objected to one comment that the prosecutor had made to the grand jury. Justice Rothwax had previously reviewed the grand jury transcript in camera and found that the indictment was valid. See Tr. 44- 51. At Tr. 50-51 petitioner's attorney said, "I'd ask that the Court send it [our objection] forthwith to his [Justice Rothwax's] part, and we'll waive the presence of our clients for purposes of that argument, so as to expedite the matter." But Van Dyke's attorney argued that the clients were entitled to be present before Justice Rothwax. Justice Zweibel ruled that this issue, also, would be decided by Justice Rothwax. The attorneys went to Justice Rothwax, re-argued the propriety of the grand jury proceeding, and Justice Rothwax adhered to his original decision. Petitioner now argues that he had a right to be personally present at the argument before Justice Rothwax. Not so. A defendant has no right to attend a "conference or argument upon a question of law." See, Fed.R.Crim.P. 43(c)(3); Clark v. Stinson, 214 F.3d 315, 322-23 (2d Cir. 2000). The issue before Justice Rothwax related solely to the prosecutor's conduct in the grand jury — as I have discussed above, that issue is irrelevant in a federal habeas petition. of course, petitioner and VanDyke had not been present before the Grand Jury; therefore they would not have been able to contribute any relevant fact if they had attended the argument before Justice Rothwax.
CONCLUSION
For the reasons stated above, I recommend that Judge Preska deny the petition and dismiss the complaint. Respondent's Answer, at p. 2, fn *, requests that the transcripts and the volume of "Exhibits in Support of Answer" not be made publicly available, because they identify the victim and her boyfriend. I am informed that the Clerk's vaults are overloaded with sealed materials. I have not sent these materials for filing, and I am forwarding them directly to Judge Preska.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, any party may object to this recommendation within 10 business days after being served with a copy, by filing written objections with the Clerk of the U.S. District Court and mailing copies (a) to the opposing party, (b) to the Hon. Loretta A. Preska, U.S.D.J. at Room 1320, 500 Pearl Street, New York, N Y 10007 and (c) to me at Room 1360, 500 Pearl Street. Failure to file objections within 10 business days will preclude appellate review. Thomas v. Am, 474 U.S. 140 (1985);Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988). Any request for an extension of time must be addressed to the District Judge.
I direct Mr. Counts not use the names of the victim or her boyfriend in his objections or other correspondence; instead he should say "the victim" or "her boyfriend."