Opinion
19 Civ. 4763 (CS)(PED)
11-09-2022
Justin Curran, Petitioner, v. William F. Keyser Respondent.
REPORT AND RECOMMENDATION
Paul E. Davison .U.S.M.J.
TO THE HONORABLE CATHY SEIBEL, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Justin Curran (“Petitioner”) pro se filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence upon a jury verdict in the Supreme Court of the State of New York in the County of Dutchess. [Dkt. 2.] On March 12, 2014, Petitioner was convicted of two counts of attempted escape in the first degree, and five counts of assault in the second degree. For this conviction, Petitioner was sentenced to an aggregate of fourteen years in prison to be followed by three years of post-release supervision. Petitioner is currently serving his sentence at the Sullivan Correctional Facility in Sullivan County, New York. The Petition comes before me pursuant to an Order of Reference entered on August 20, 2019. [Dkt. 13.] For the reasons set forth below, I respectfully recommend that Your Honor DENY the Petition.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 2] and Respondent's Answer with attached exhibits [Dkts. 8, 9].
1. The Crime
On March 22, 2013, Ronald Prusakowsi, a corrections officer with the Dutchess County Sheriffs Office, was transporting Petitioner from the proceedings at the courthouse back to prison. Petitioner's court proceedings were in connection with a second degree murder charge.Officer Prusakowski informed Petitioner that his court appearance had been adjourned, and he removed Petitioner from the holding cell in the Dutchess County courthouse. Officer Prusakowski then removed Petitioner's handcuffs and they both then boarded an elevator that would take them to the first floor. Upon reaching the first floor, Petitioner would have been escorted to a van that would have transported him back to prison. However, while in the elevator, Petitioner struck Officer Prusakowski in the head and face. Officer Prusakwoski then wrestled Petitioner to the floor. When the elevator door opened on the first floor, Officer Prusakowski's partner, Michael Lee, saw the two struggling. Officer Lee tried to assist Officer Prusakowski, but instead was harmed in the struggle. An officer in the courthouse then returned the elevator to the second floor. At this point, the courthouse had been alerted to Officer Prusakowski and Officer Lee's struggle with Petitioner. When the elevator opened on the second floor Raymond Diaz, a court officer, tried to re-cuff Petitioner. However, Officer Diaz fractured his left elbow as a result of the struggle. Eventually, after approximately 10 to 12 minutes, the officers were able to get Petitioner under control.
Petitioner was ultimately convicted of murder. Petitioner seeks habeas relief with respect to that conviction in a separate action. See Curran v. Keyser, Case No. 19 Civ. 4196 (CS) (AEK).
2. Petitioner's Trial
In connection with these events, Petitioner was charged with two counts of attempted escape in the first degree, and six counts of assault in the second degree. Petitioner's trial began with jury selection on December 11, 2013. During the proceedings before jury selection, Petitioner, through his counsel Brace Petito, argued that the elevator was not a correctional facility:
At the end of its case, the prosecution moved to dismiss one of the charges for assault in the second degree and the court granted its motion. [See Dkt. 8-6 at 104.]
COURT: Just for the record, under 205 of the Penal Law a detention facility means anyplace used for the confinement pursuant to an order of a court. So, obviously the holding cells or whatever here in this courthouse are detention facilities and this is a detention facility. To me it would be axiomatic that a correctional facility would, therefore, be the same because the holding facilities that retain prisoners that go to court would be an extension of a correctional facility, but we could go into that later on.
PETITO: Remember the issue - this occurred in an elevator, Judge, not in the holding facility. It wasn't in the lockup.
COURT: I think you have to convince the Appellate Division of that, Bruce.
PETITO: I understand.
COURT: I think that's a little stretched.
[Dkt. 8-4 at 25-26.] The court was not persuaded by Petitioner's argument and ultimately concluded that the elevator was part of the courthouse. [Id. at 29.]
Prior to jury selection, Petitioner's counsel also advised the trial court about Petitioner's defense theory. [Dkt 8-4 at 12.] Petitioner's counsel noted that he may have Petitioner take the stand to testify to having suffered an anxiety/panic attack in the elevator. [Id. at 13.] The prosecution, represented by Edward Whitesell, observed that Petitioner might have a notice issue:
WHITESELL: Don't you have a notice problem here, Bruce? If you're going to put on a psychiatric defense, which you're sort of talking around and not actually saying -
PETITO: That's not what F m saying.
WHITESELL: Oh, come on, Bruce, it's a psychiatric defense masquerading as something else. The statute requires that you give notice of such a defense because if you're going to put on medical records that this individual had a psychiatric problem at the time, I have a right under the law to have him evaluated by my own doctor and have the ability to cross examine your doctor based upon what my doctor said. My opinion is you should be precluded from doing that because you didn't provide the appropriate notice under the Criminal Procedure Law. I believe you can indicate something other than a psychiatric defense.
PETITO: That's why I'm bringing it up now. We are saying he had this emotional issue that occurred and that he may be testifying to that effect as to this anxiety/panic attack.
COURT: And that would negate his intent to commit the crime, correct?
PETITO: Yes.
COURT: But you haven't served notice?
PETITO: No, we didn't serve a psychiatric notice. It would be based on his testimony, medical records, of possibly his former treating doctor, which is, also, the jail doctor. I'm asking for a preruling now because obviously if you pre-rule I'm not going to raise it.
COURT: I think you have to serve notice of it. I think you were required under the statute to serve notice. Again, I don't disagree with the Prosecutor. You're making - you're placing a defense and you're masquerading it as something that it's not. What it is is a psychiatric defense, and you served no notice of that psychiatric defense.
PETITO: You're precluding me from referencing it?
COURT: I'm not even sure what you're offering because - do you have an examination by a doctor, one, yes or no?
PETITO: We had an examination from Dr. Segal.
COURT: Do you have a report?
PETITO: No, I got an oral on the phone.
COURT: And the oral -
PETITO: The oral was on the murder case.
COURT: Would it be fair to say he did not give you psychiatric defense?
PETITO: He did not give me a psychiatric defense on the murder case.
COURT: Therefore, you served no notice, and now I believe you would be appropriately precluded from raising it now and this case happen - this is allegedly March of 2013, the murder was Thanksgiving of 2012.[Id. at 13-17.] Given the court's ruling, Petitioner was hesitant to testify. [Dkt. 8-6 at 111.] Nonetheless, during trial, Petitioner's counsel sought clarification from the judge as to whether Petitioner would be allowed to testify as to the medications he was taking, including Wellbutrin and Xanax:
PETITO: Two other things [Petitioner] would like to have testified to is the fact that he's a diabetic and he, also, was not given medications that have been previously prescribed to him, Wellbutrin and Xanax, which may have caused or affected any of the conduct alleged in this case, and we are claiming at that point that that would be not necessarily a psychological issue but rather a medical issue that we would be entitled to raise. My understanding is the Court will not allow me to go into that with [Petitioner]?
COURT: Well, I haven't heard of that. This is the first time I'm hearing
of it. I'm not aware of his medication schedule. It's never been raised before in terms of I never heard any complaints from [Petitioner] or anyone else that he was not receiving his medication. [Petitioner] has been before this Court on numerous, numerous occasions with regard to both the murder case, the murder charge, this charge, and he's had ample opportunity to even comment on it, and he never has.
PETITO: This is regarding the lack of the prescriptions given to him - to be given to him but were not given to him prior to this alleged assault so, in other words, that period of time from January until March 22nd when he was not give the necessary medications for both this physical and emotional stability.
COURT: ... Again, this is something that's never been raised before.
PETITO: Again, this is - if he testified, this would be things that I would intend to bring out. Obviously if you're not going to allow it, it would be a factor for him to decide whether he's going to take the stand.
COURT: Mr. Whitesell?
WHITESELL: I don't have anything to add, Your Honor. The fact of the matter is that in some form or another this is a psychological or psychiatric defense. There would be all sorts of records. We would need the jail records as to what he was given and not given, all of his diagnoses for the last two or three years, all of which would have, if the proper notice would have been given, the subject of the possibility of not only cross examination but rebuttal witnesses, all that sort of thing. I think the Court has made the right decision.
COURT: I, also, note, I don't want to be deemed a cynic, if [Petitioner's] request for a negotiated plea had been resolved in a fashion in which he was comfortable, my assumption would be that he would have allocuted that he had either taken his medication or didn't need his medication and, therefore, had a clear mind, otherwise he could not have allocuted.
WHITESELL: I'm going to avoid the cynicism, Your Honor, but I understand
what you're saying.
COURT: I'm not saying it - maybe the word cynic is too strong. I'm just making that observation.
WHITESELL: Thank you, Your Honor.
PETITO: May we have that five minutes?
COURT; Yes, certainly.
(Whereupon, a recess was taken.)
(In open court, defendant present.)
PETITO: I had a discussion with my client. We waive - my client will not testify. He understands that he willingly waives testifying.[Id. at 113-16.]
Also prior to jury selection, the parties discussed with the court the instructions that would be read to the jury. In particular, Petitioner's counsel sought to stipulate that Petitioner was attempting to escape when he was charged with a Class A felony, as opposed to murder in the second degree. The court ultimately decided that the charge needed to include the specific crime Petitioner was charged with:
COURT: We [have] had a lengthy discussion with regard to the District Attorney's Office initial request to elicit on his case in chief that the defendant had been charged with murder and faced a life sentence. In reviewing the Criminal Jury Instruction lists as essentially an element of count number two in this particular case that the District Attorney would have to show that the defendant was charged with the A under the Criminal Jury Instruction. It permits - actually mandates that they be told what the charge was, in this case it was, in this case it was murder in the first degree -
WHITESELL: Second.
COURT: Second, my bad, murder in the second degree. I don't know if we have to say second degree, we can just say murder. His previous request to say that he faced a life sentence I think is somewhat redundant at this point. As I indicated before, I think that - I don't think I would approve that, but you're not willing to stipulate, if I understand, Mr. Petito, that he - that that information be supplied to the jury by way of stipulation so he's going to have to prove it independently.
PETITO: As I said, I would be willing to stipulate that my client was charged with an A felony at the time of the alleged commission of this crime.
COURT: Okay. I actually disagree with you. I think I'm bound by the Jury Instructions, and it actually becomes an element in terms of what he has to prove so I don't think it can be modified. I don't think I have the inherent power or discretion to modify it.
[Dkt. 8-5 at 29-30.] In light of the court's rulings, the prosecution's opening statement noted that Petitioner “was scheduled to appear in this court having been charged with a crime of murder in the second degree, which is a Class A felony.” [Id. at 70.] In order to prevent the prosecution from providing evidence of the crime Petitioner was charged with, the parties ultimately stipulated that Petitioner was charged with murder in the second degree, which is a class A felony. [Dkt. 8-6 at 5-8.] The prosecution placed the following stipulation on the record: “That at the time this incident occurred on March 22nd of 2013 when this defendant appeared in the Dutchess County Courthouse, at that time he had a pending charge before this Court of murder in the second degree, which is a Class A felony under the New York State Penal Law.” [Id. at 7-8.] The court ultimately instructed the jury that “[a] person is guilty of escape in the first degree under this theory when having been arrested for or charged with a Class A felony he escapes from custody” and that “[m]urder in the second degree is a Class A felony.” [Dkt. 8-7 at 42, 43.]
During the trial, the prosecution called five witnesses, including Officer Prusakowski. Officer Prusakowski provided testimony concerning the events that transpired with Petitioner in the elevator. On cross-examination, Petitioner's counsel sought to question Officer Prusakowski regarding Petitioner's medication:
PETITO: Did you know anything about any medical history of [Petitioner] at the time?
WITNESS: Medical history?
PETITO: Were you ever told he was a diabetic?
WITNESS: No.
PETITO: Were you ever told that he had previous anxiety or panic attacks?
WITNESS: No.
PETITO: Were you aware of any medication that may have been prescribed?
WITNESS: No.
PETITO: Were you aware whether or not he may have been given the appropriate medication at any time during that twenty-four hour period -
WHITESELL: Objection. Can we have a sidebar, Judge?
COURT: You don't have to. The objection is sustained.
WHITESELL: Thank you.
PETITO: May I finish the question just for the record?
COURT: No, it's an inappropriate question based upon our previous discussion. Please move on.
[Dkt. 8-5 at 130-31.] Petitioner's counsel continued to cross examine Officer Prusakowski, but did not ask him any further questions about Petitioner's medications. After both parties presented their cases, the court instructed the jury. The jury then retired and deliberated for less than a day before returning a verdict finding Petitioner guilty on all counts. [Dkt. 8-7 at 64-65.]
B. Procedural History
1. The Direct Appeal
Petitioner, through counsel, appealed his conviction to the New York Appellate Division, Second Department, on April 16, 2015. [Dkt. 8-9 at 39.] In his brief, Petitioner raised four grounds for his appeal: (1) the trial court deprived Petitioner of his Sixth Amendment right when it precluded him from taking the stand in his own defense and testifying that he had not received his medicine; (2) the elevator in the courthouse does not constitute a detention facility; (3) over objection, the trial court instructed the jury that Petitioner was charged with attempted escape while under indictment for murder rather than an “A Felony”; and (4) over objection, the trial court precluded defense counsel from questioning the corrections officer about whether Petitioner received his medication that day. [Id. at 11-38.] The state submitted its brief in opposition on June 19, 2015. [Dkt. 8-10 at 43.]
The Appellate Division affirmed the judgment against Petitioner by decision dated May 25, 2016. People v. Curran, 32 N.Y.S.3d 309 (App. Div. 2016). The Appellate Division found that Petitioner's testimony concerning the failure of the local jail to administer his medication constituted psychiatric evidence, “since it tended to show a mental infirmity not rising to the level of insanity.” Id. at 311 (internal quotations and citation omitted). As a result, the Appellate Division held that the trial court properly precluded Petitioner from providing testimony regarding his medication because Petitioner had failed to provide the prosecution with notice as required by New York Criminal Procedure Law § 250.10 . See id. The Appellate Division rejected Petitioner's argument that “the secure holding area located in the rear of the Dutchess County Courthouse does not constitute a ‘detention facility,'” and found that the “subject area of the courthouse constitutes a detention facility as defined in the statute.” Id The Appellate Division further held that the trial court appropriately relied upon the Criminal Jury Instructions to instruct the jury that Petitioner was charged with murder in the second degree, and Petitioner failed to show how he was prejudiced. Id. at 312. Finally, the Appellate Division held that the trial court properly precluded Petitioner fiom eliciting psychiatric evidence during his cross-examination of the corrections officer, and that the corrections officer's testimony would have been “irrelevant and may have confused the jury.” Id.
Following the Appellate Division's decision, Petitioner's counsel filed an application for leave to appeal to the Court of Appeals on March 19, 2018. [Dkt. 8-12 at 1-2.] The state submitted its opposition on March 27, 2018. [Dkt. 8-13 at 1.] The Court of Appeals summarily denied Petitioner leave to appeal the Appellate Division's decision affirming the trial court's judgment. People v. Curran, 103 N.E.3d 1249 (Table) (N.Y. 2018).
2. The Instant Petition
Petitioner executed the instant Petition and delivered it to prison officials for mailing on May 6, 2019. [Dkt. 1 at 13.] The Petition was received by the Clerk's Office and filed on May 22, 2019. The Respondent filed a response in opposition to the Petition on August 9, 2019. [Dkt. 8.] On September 5, 2019, Petitioner filed a traverse in reply to Respondent's answer. [Dkt. 14.] Accordingly, the matter is fully submitted.
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with § 2254 (d). The procedural and substantive standards applicable to habeas review, which were substantially modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are summarized below.
A. Exhaustion Requirement
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); id. § 2254(c) (the petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented”). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19(1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). A claim may be “fairly presented” to the state courts therefore, even if the petitioner has not cited “chapter and verse of the Constitution,” in one of several ways:
(a) [R]eliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Att'y Gen. of NY, 696 F.2d 186,194 (2d Cir. 1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). “In such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g, Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Finally, notwithstanding the procedure described above, a federal court may yet exercise its discretion to review and deny a mixed petition containing both exhausted and unexhausted claims, if those unexhausted claims are “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); 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.”); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004) (interests in judicial economy warrant the dismissal of meritless, unexhausted claims).
B. Procedural Default
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon “an adequate and independent finding of a procedural default to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121,126 (2d Cir. 1995). A state court decision will be “independent” when it “‘fairly appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing Colman, 501 U.S. at 740). A decision will be “adequate” if it is “‘firmly established and regularly followed' by the state in questions.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 19991 (Quoting Fort v. Georgia, 498 U.S. 411, 423-24 (1991)).
The Supreme Court has held that a federal court may review a claim that is procedurally barred if the petitioner can show a “miscarriage of justice,” which occurs where a petitioner is “actually innocent of the crime for which he has been convicted.” Cotto v. Herbert, 331 F.3d 217, 239 n. 10 (2d Cir. 2002); see Coleman v. Thompson, 501 U.S. 722, 729 (1991).
C. AEDPA Standard of Review
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute “modifie[d] the role of federal habeas corpus courts in reviewing petitions filed by state prisoners,” and imposed a more exacting standard of review. Williams v. Taylor, 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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.§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim “on the merits,” and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
Under the first prong, a state court decision is contrary to federal law only if it “arrives at a conclusion opposite to that reached by the [the Supreme Court] on a question of law or if [it] decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision involves an “unreasonable application” of Supreme Court precedent if the state court “identifies the correct governing legal rule from the Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case,” or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” § 2254(e)(1).
IV. ANALYSIS
Petitioner raises four claims in his timely filed Petition: (1) the trial court deprived Petitioner of his Sixth Amendment right to present a defense when it precluded him from taking the stand in his own defense and testifying that he had not received his medication; (2) Petitioner was convicted of attempted escape in the first degree, even though an elevator in the back of a courthouse does not constitute a detention facility; (3) over objection, the trial court instructed the jury that Petitioner was charged with attempting to escape while under indictment for murder rather than an A felony; and (4) over objection, the trial court precluded Petitioner's counsel from asking the corrections officer who guarded him at the county jail whether he had received his medication that day. [Dkt. 2.]
Petitioner's claims were all raised in his direct appeal, and were included in his leave application, so Petitioner has “fairly presented] his claim[s] in each appropriate state court” and his claims therefore properly exhausted. Baldwin, 541 U.S. at 29.
A. Petitioner's Sixth Amendment Right to Testify Was Not Violated
Petitioner asserts that his Sixth Amendment rights were violated when he was precluded from testifying that he had not received his medication on the day of the incident. [Dkt. 2 at 5.] The Appellate Division held that Petitioner's testimony constituted psychiatric evidence, which required Petitioner to provide notice pursuant to CPL § 250.10. Curran, 32 N.Y.S.3d at 311. Because Petitioner failed to provide the appropriate notice, the Appellate Division concluded that the trial court appropriately precluded Petitioner from so testifying. Id. In order to obtain habeas relief, Petitioner must show that the Appellate Division's determination was contrary to Supreme Court law, or was an unreasonable interpretation of the facts. 28 U.S.C. § 2254(d).
The Sixth Amendment indeed provides a defendant with “the right to call witnesses in order to present a meaningful defense at a criminal trial[.]” Howard v. Walker, 406 F.3d 114, 131 (2d Cir. 2005). Nonetheless, [t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible,' and his right may yield to rules and procedure of the adversary process that ‘provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent s case. Id. at 131-32 (quoting Taylor v. Illinois, 484 U.S. 400, 410-11 (1988)). Nonetheless, the rules and procedures of the adversary process “may not be arbitrary or disproportionate to the purposes they are designed to serve.” Id. at 132 (quoting Rock v. Arkansas, 483 U.S. 44, 55-56 (1987)).
Here, the rule at issue, CPL § 250.10, provides that if a defendant seeks to proffer psychiatric evidence, the defendant must serve upon the people and file with the court “a written notice of his intention to present psychiatric evidence” and that “[s]uch notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the indictment.” N.Y. Crim. Proc. Law § 250.10 (2). “The purpose of § 250.10's notice requirement is to allow the prosecution an opportunity to acquire relevant information to counter the defense, as well as to promote fairness and avoid delay.” Singh v. Greene, 2011 WL 2009309, at * 18 (E.D.N.Y. May 20, 2011) (internal quotations and alterations omitted). “Absent special circumstances, § 250.10's notice requirement has been upheld as a constitutional restriction on the right to present evidence.” Id. (citing Almonor v. Keane, 27 Fed.Appx. 10, 12 (2d Cir. 2001)). Accordingly, the state court's application of CPL § 250.10's notice requirement was neither an unconstitutional restriction of Petitioner's Sixth Amendment right, nor contrary to Supreme Court law.
Copies of unreported cases cited herein will be mailed to Petitioner as a pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
The Appellate Division's holding was also not an unreasonable interpretation of the facts. The trial court determined that Petitioner's testimony would be psychiatric evidence, and nothing in the record contradicts that finding. Indeed, this conclusion is supported by Petitioner's counsel's own representation that Petitioner's testimony “would negate his intent to commit the crime”, and thus was being proffered as a psychiatric defense. [Dkt. 8-4 at 14.] The Appellate Division appropriately affirmed the trial court's determination, finding that “such evidence constituted psychiatric evidence, since it tended to show a mental infirmity not rising to the level of insanity.” Curran, 32 N.Y.S.3d at 311 (internal citation and quotation marks omitted). Accordingly, I conclude, and recommend Your Honor conclude, that this claim should be denied.
B. This Court Cannot Review the Claim Asserted in Ground 2
Petitioner argues that he was convicted of attempted escape in the first degree, even though an elevator in the back of a courthouse does not constitute a detention facility. [Dkt. 2 at 7.] Unpersuaded, the Appellate Division held that the courthouse elevator constituted a detention center as defined in the statute. Curran, 32 N.Y,S.3d at 311.
“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law grounds.” See Estelle v. McGuire, 502 U.S. 62, 72 (1991). “Thus, no constitutional error can be found where petitioner's real complaint is with the New York courts' interpretation of the definition of [a crime].” Jackson v. Bennett, 2002 WL 1770781, at *7 (S.D.N.Y. July 31, 2002). Here, the trial court and the Appellate Division determined as a matter of state law that the elevator constituted a detention facility for purposes of the criminal statute, and it is not for this Court to reinterpret state law. Accordingly, I recommend that this claim be denied.
C. Petitioner's Ground 3 Claim Is Meritless
Petitioner argues that, over his counsel's objection, the trial court instructed the jury that Petitioner was charged with attempting to escape while under indictment for murder as opposed to simply stating that he was under indictment for an “A felony.” [Dkt. 2 at 8.] The Appellate Division held that the trial judge appropriately relied upon New York's pattern Criminal Jury Instructions to craft the instruction, and that Petitioner failed to show how he was prejudiced by the jury instruction. Curran, 32 N.Y.S.3d at 312.
As noted above, “a federal habeas court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States.” Estelle, 502 U.S. at 67-68. The Second Circuit has observed that a “jury charge in a state trial is normally a matter of state law and is not reviewable on federal habeas corpus absent a showing that the alleged errors were so serious as to deprive defendant of a federal constitutional right.” U.S. ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974). Nonetheless if a jury instruction “so infected the entire trial that the resulting conviction violates due process”, then federal habeas relief is appropriate. Estelle, 502 U.S. at 72. A jury instruction violates due process if it does not “give effect” to the requirement that “the State must prove every element of the offense.” Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam) (citing Sandstrom v. Montana, 442 U.S. 510, 520-21 (1979)).
Petitioner argues that the trial court's instruction explaining to the jury that murder in the second degree was a Class A felony violated his due process right to a fair trial because it informed the jury that he was facing a pending murder charge. [Dkt. 1 at 35 n.4.] Petitioner's argument is undermined by the fact that the parties had already stipulated on the record to Petitioner's pending second degree murder charge. See Dkt. 8-6 at 6-8.] In addition, the prosecutor had, without objection, alluded to Petitioner's pending second degree murder charge during his opening statement. [See Dkt. 1 at 33; see also Dkt. 8-5 at 70.] Thus, the court s jury instruction did not expose the jury to new, arguably prejudicial information regarding Petitioner's pending charge, but instead simply tracked the parties' stipulation and incorporated information which was already before the jury.
The parties stipulated to the pending murder charge to avoid the introduction of evidence regarding the murder charge to satisfy the “having been arrested for, charged with, or convicted of a class A or class B felony” element of N.Y. Penal L. § 205.15(2). As respondent has argued, however, the gravity of the murder charge was also relevant to explain Petitioner's motive for the attempted escape. [Dkt. 9 at 50.]
Accordingly, Petitioner's has not shown that the jury instruction “so infected the entire trial that the resulting conviction violates due process[.]” Estelle, 502 U.S. at 72. The Appellate Division did not err in denying relief on this claim, and I recommend that your Honor deny habeas relief as well.
D. Petitioner's Ground 4 Claim Is Meritless
Petitioner's final claim for relief is that, over objection, the trial court precluded Petitioner's counsel from asking the corrections officer who guarded him at the county jail whether he had received his medication that day. [Dkt. 2 at 10.] The Appellate Division held that because the testimony Petitioner sought to introduce was psychiatric evidence, and the evidence would have been irrelevant and confused the jury, the trial judge appropriately precluded Petitioner from eliciting such testimony. Curran, 32 N.Y.S.3d at 312.
The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront and cross-examine witnesses against him. See Crawford v. Washington, 541 U.S. 36, 42 (2008). Nonetheless, atrial court may impose limitations on this right. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Thus, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Id. “Combining the standard for restricting cross-examination with the AEDPA standard, in order to grant a habeas petition we would have to conclude not only that the trial court abused its ‘broad discretion' by precluding cross-examination but also that the state appellate court could not reasonably have determined that the evidence would have been excludable had the trial court properly applied ‘standard rules of evidence[.]”' Alvarez v. Ercole, 763 F.3d 223, 230 (2d Cir. 2014) (alterations omitted).
Here, the trial court precluded Petitioner from cross-examining Officer Prusakowski regarding Petitioner's medication because the medication was relevant only to the psychiatric defense which the court had already precluded on notice grounds. As noted above in connection with Petitioner's first claim, CPL § 250.10's notice requirement is not unconstitutional. See Singh, 2011 WL 2009309, at *18. Having precluded Petitioner horn testifying that he had not received his medication on the day of the escape attempt, it would have made little sense for the court to permit Petitioner to elicit the same information via cross examination. Given the trial court's enforcement of the notice requirement regarding any psychiatric defense, the Appellate Division reasonably concluded that cross examination regarding Petitioner's medication “would have been irrelevant and may have confused the jury[.]” Curran, 32N.Y.S.3d at 312.
Accordingly, I respectfully recommend Your Honor deny Petitioner's final claim.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DENY the Petition for a Writ of Habeas Corpus. I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6 (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Cathy Seibel, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Seibel. A copy of this Report and Recommendation has been mailed to:
Justin Curran
DIN# 14-A-1061
Sullivan Correctional Facility
P.O. Box 116
Fallsburg, NY 12733-0116