Opinion
01-CV-2892 (JBW) 03-MISC-0066 (JBW)
August 22, 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
On March 25, 1996, at approximately 4:20 a.m., Daniel Still was awakened by the doorbell in his fourth-floor apartment in Brooklyn. When he looked through the peephole, he saw petitioner and two accomplices standing outside with guns drawn. Still recognized petitioner as a drug dealer who operated several blocks from where Still sold drugs. He tried to silently lower the cover the peephole, When it made a slight noise, the men opened fire. Several bullets penetrated the door, hitting Still in the groin and stomach. The assailants fled. Still staggered onto the street and was able to flag down a police officer. He survived the attack after being hospitalized for five months.
Petitioner was charged with attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree. He was convicted of assault and criminal possession of a weapon and was acquitted of attempted murder. He was sentenced to concurrent terms of imprisonment of seven and one-half to fifteen years on each count. Petitioner appealed his conviction to the Appellate Division, Second Department, In his brief prepared by counsel, petitioner argued that the trial court had made an erroneous evidentiary ruling regarding certain shell casings. Petitioner submitted a supplemental pro se brief in which he claimed that the trial court failed to investigate possible jury coercion, that the verdict was against the weight of the evidence, and that the sentence was harsh and excessive.
The Appellate Division affirmed the conviction. See People v. Cruz, 712 N.Y.S.2d 869 (N.Y.App.Div.2d Dep't 2000). It held that the trial court's evidentiary ruling was correct because testimony at trial "sufficiently established the authenticity of [the] evidence through `reasonable assurances of identity and unchanged condition.'" Id. at 870. It held that all remaining contentions, including those raised in the pro se supplemental brief, "either were waived or are without merit." Id. at 870. Leave to appeal to the New York Court of Appeals was denied. See People v. Cruz, 749 N.E.2d 215 (N.Y. 2001).
Petitioner filed a timely petition for a writ of habeas corpus. In it, he raises three claims:
(1) that ballistics evidence was improperly received into evidence;
(2) that the trial court erred by failing to conduct a hearing to determine if the jury was coerced; and
(3) that the verdict was against the weight of the evidence.
II. Law
A. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. 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. "[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). 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).
B. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims, See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 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).
C. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural 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. My 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.
III. Analysis
A. Admission of Ballistics Evidence
Petitioner claims that the trial court erred in admitting into evidence five .45 caliber and three 9 millimeter shell casings and a .45 caliber slug. The 9 millimeter casings were found to be identical to those fired from a gun recovered in a vacant apartment where petitioner resided at the time of his arrest. Petitioner claims that mistakes made prior to vouchering created "an unbridgeable gap in the chain of custody." Petitioner's Appellate Brief, at 13.
As a preliminary matter, this evidentiary matter does not pose a federal question. For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must first show that evidence was erroneously admitted, and second 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).
Petitioner fails to show that an evidentiary error was made. The Appellate Division held that the trial court's decision to admit the casings and slug was not in error because trial testimony established "reasonable assurances of identity and unchanged condition." People v. Cruz, 712 N.Y.S.2d 869 (N.Y.App.Div.2d Dep't 2000). This decision was neither contrary to nor an unreasonable application of clearly established federal law.
Even assuming, arguendo, that an evidentiary error was made, petitioner fails to show resultant prejudice. The victim had known petitioner for nearly three years and unequivocally identified him as one of the assailants. This alone was sufficient to support a conviction. The physical evidence provided additional corroborating evidence but was not necessary in order to obtain a conviction. Even if the shells and slug had not been admitted, petitioner would almost certainly have been convicted.
B. Jury Coercion
Petitioner claims that the trial court erred by failing to conduct a hearing on whether or not jurors were coerced during deliberations. In his supplemental pro se brief submitted to the Appellate Division, he asserts that hours after the verdict was rendered, three jurors appeared at defense counsel's office. These three jurors, in addition to two contacted by counsel's investigator, allegedly were coerced by the other jurors into rendering a guilty verdict. Defense counsel also raised this fact during sentencing. See Sentencing Transcript, at 9-10. The record does not include any affidavit by a juror claiming to have been coerced.
Nothing in the record indicates that the trial court erred by failing to conduct a hearing. The jury acquitted petitioner on the attempted murder charge and convicted on the two remaining charges. Each juror was polled and each affirmed that this was his or her verdict. See Trial Transcript, at 1079-80. After the jury was excused, defense counsel noted that two jurors hesitated when asked "is that your verdict," In denying counsel's request for a hearing, the trial court stated that some hesitation was to be expected:
[. . .] it's certainly a very emotional thing to sit here in court and say in your presence and the defendant's presence that they stand by the verdict, but the jurors all said that.
Whether they hesitated a little or not, that's certainly in keeping with the unaccustomed situation that they're in. But no one said "that's not my verdict," no one indicated anything along those lines, and they all answered in the affirmative.
So that motion is denied. I'm not going to bring the jury back to poll them again. They were polled properly. They all answered that it was their verdict and that's the end of it.
Trial Transcript, at 1081-82. The trial court's words speak for themselves. Nothing in the record indicates that the trial court ought to have held a hearing.
Judicial inquiry into the state of mind of jurors during their deliberations is to be avoided in all but the most extraordinary circumstances. See King v. United States, 576 F.2d 432, 438 (2d Cir. 1978). The Court of Appeals for the Second Circuit explained:
There is a judicial reluctance, for sound and easily understood reasons, "to inquire into the state of mind of any juror and into the conduct of the jurors during their deliberations." This is to avoid harassment of jurors, inhibition of deliberation in the jury room, a deluge of post-verdict applications mostly without real merit, and an increase in opportunities for jury tampering; it is also to prevent jury verdicts from being made more uncertain.Id. at 438 (internal citations omitted); see also Tanner v. United States, 483 U.S. 107, 120-21 (1987) (post-verdict scrutiny would inhibit jurors' discussions and their willingness to return unpopular verdicts; it would also undermine the public's trust in the jury system generally). The threshold for authorizing a post-verdict inquiry is high: "To overcome this reluctance and to authorize a post-verdict inquiry, there must be `clear evidence', `strong evidence', `clear and incontrovertible evidence', `substantial if not wholly conclusive evidence.'" King, 576 F.2d at 438 (citation omitted).
Only rarely is this burden met, In Jacobson v. Henderson, 765 F.2d 12, 14, 15 (2d Cir. 1985), the Second Circuit Court of Appeals affirmed the denial of habeas corpus relief where the petitioner submitted juror affidavits alleging "screaming, hysterical crying, fist banging, name calling, [.,.] the use of obscene language" and chair throwing during deliberations. Cf. United States v. Grieco, 261 F.2d 414, 415 (2d Cir. 1958). The fact that some jurors have weaker wills than others, "or that one individual may bow to the pressure of eleven-cannot be a cause for reopening a case." United States v. Stoppelman, 406 F.2d 127, 133 (1st Cir. 1969).
Here, the only evidence supporting petitioner's contention that several jurors felt pressured is his statement to that effect in his pro se supplemental brief and his attorney's statement to the same effect made during sentencing. This is a far cry from the "clear and incontrovertible" evidence required by this circuit. Petitioner's claim is dismissed.
C. Verdict Against the Weight of the Evidence
Petitioner claims that his constitutional rights were violated because the verdict was against the weight of the evidence. His argument is that Still was not a credible witness and that no rational juror could believe him.
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. Although petitioner claims that his verdict was against the weight of the evidence, the court will liberally construe his pro se petition as one alleging that his guilt was not proven beyond a reasonable doubt.
Petitioner's claim lacks merit. Credibility of a witness is a matter for the jury to decide. Petitioner's counsel's cross-examination of Still revealed that he was a drug dealer with a criminal record. See Trail Transcript, at 409-414. Inconsistencies in Still's testimony were also revealed. Nonetheless, the jury chose to credit his testimony. A rational trier of fact could have done so. Petitioner's claim must be dismissed.
IV. Certificate of Appealability
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner 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).
V. 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.