Opinion
00 CV 2209
October 31, 2003
KAREEM FAUNTLEROY, Attica, New York, for Petitioner
CHARLES J. HYNES, District Attorney, Cynthia Kean, Assistant District Attorney, Brooklyn, New York, for Respondent
MEMORANDUM AND ORDER
Petitioner Kareem Fauntleroy seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court, I held oral argument by telephone conference on October 31, 2003, For the reasons set forth below, the petition is denied.
BACKGROUND
On July 27, 1995, at about 10:00 p.m., Fauntleroy robbed a bodega in Bedford-Stuyvesant, killing a father and son who owned the store. Fauntleroy shot the father seven times and the son twice, and fled with a bullet in his own chest, fired by the son from a gun kept in the store. Fauntleroy was arrested at Woodhull Hospital, where he had gone for treatment, after an eyewitness identified him.Fauntleroy was charged with two counts of intentional murder, two counts of felony murder, robbery in the first degree, and criminal possession of a weapon in the second and third degrees. On October 15, 1996, Fauntleroy was convicted by a jury of two counts of intentional murder in the second degree, two counts of felony murder in the second degree, and one count each of robbery in the first degree and criminal possession of a weapon in the second and third degrees. He was sentenced to consecutive sentences of 25 years to life on each of the felony murder counts, and to concurrent sentences of 25 years to life for each of the two intentional murder counts, 12 ½ to 25 years for robbery in the first degree, 7 ½ to 15 years for criminal possession of a weapon in the second degree, and three and one half to seven years for criminal possession of a weapon in the third degree,
Fauntleroy appealed his conviction to the New York State Appellate Division, Second Judicial Department. In his brief on appeal, Fauntleroy raised the following claims: (1) that he was denied a fair trial by the court's undue interference in his trial, (2) that he was denied due process by the court's refusal to grant a missing witness charge, and (3) that the evidence against him was legally insufficient.
On February 22, 1999, the Appellate Division unanimously affirmed Fauntleroy's judgment of conviction. People v. Fauntleroy, 683 N.Y.S.2d 916 (2d Dep't 1999). On May 5, 1999, Fauntleroy's application for leave to appeal to the Court of Appeals of New York was denied. People v. Fauntleroy, 93 N.Y.2d 924 (1999) (Wesley, J.). In his habeas petition, Fauntleroy alleges the three claims raised in his brief to the Appellate Division, and, in addition, requests that I review the record for "harmful issues" not raised by Fauntleroy's appellate counsel.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision," Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, "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 [the Supreme Court] has on a set of materially indistinguishable facts."Williams, 529 U.S. at 413. A decision is an "unreasonable application" of dearly established Supreme Court law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Under the latter standard, "`a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable,'" Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411). InterpretingWilliams, the Second Circuit has "added that although `some increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Id. (alteration in original) (quotingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim-even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001), In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1),
B. Fauntleroy's Claims
1. Sufficiency of the Evidence
Viewing the evidence in the light most favorable to the government, the Appellate Division found that it was legally sufficient to establish Fauntleroy's guilt beyond a reasonable doubt. Fauntleroy, 683 N.Y.S.2d at 916. A petitioner "challenging the sufficiency of the evidence bears a very heavy burden." Ejnaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (internal quotation marks omitted), A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational truer of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony," Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).
Fauntleroy cannot meet that heavy burden here. One witness identified his face, and four other witnesses described him and the clothes he was wearing. The witnesses did not lose sight of Fauntleroy from the time he left the crime scene until his apprehension. Fauntleroy gave detailed confessions to two jailhouse informants on two separate occasions. The weapon was recovered near where Fauntleroy had stopped on the street and, significantly, Fauntleroy was shot at the scene in the course of committing the crime, It therefore cannot be said that the jury's finding that the murders were committed by Fauntleroy was irrational. At the very least, it cannot be said that the state court's finding that the evidence was sufficient was an unreasonable application of federal law,
2. The Performance of Appellate Counsel
As his fourth ground for relief, Fauntleroy writes, "I request for the court to review the record and to see harmful issues that wasn't [sic] raised in my brief by my appellant [sic] counsel." (Petition at 6.) It was unclear from this whether Fauntleroy was raising an ineffective assistance of appellate counsel claim, or merely asking me to review his record for other potential claims. At the oral argument, Fauntleroy clarified the issue for me, stating that he simply wanted me to review the record "on a whole" in deciding his claims, That does not amount to a claim of ineffective assistance of appellate counsel.
To the extent that Fauntleroy would have me review his record for claims not raised in state court, any such resulting claims would be unexhausted. Before a federal court may consider a state prisoner's petition for a writ of habeas corpus, the petitioner must have exhausted all available state judicial remedies. 28 U.S.C. § 2254(b);Picard v. Connor, 404 U.S. 270, 275 (1971). In order to exhaust his state remedies, a petitioner must have fairly presented his federal constitutional claims to the highest state court. Dave v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982), A petitioner has fairly presented a claim if he or she apprised the state courts of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court," Id. Even if a petitioner raises precisely the same legal claims in state and federal proceedings, reliance in the two proceedings upon different factual grounds that fundamentally alter the legal claim will foreclose a conclusion that the claim is exhausted. Vasquez v. Hillery, 474 U.S. 254, 260 (1986), "However, the basic requirement remains that `the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature,'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Dave, 696 F.2d at 192).
Previously, if a petition contained both exhausted and unexhausted claims, the petition was dismissed. See Rose v. Lundy, 455 U.S. 509, 522 (1982). Under AEDPA, however, a federal district court now has discretion to deny a petition that contains both exhausted and unexhausted claims on the merits. 28 U.S.C. § 2254(b)(2), To the extent that Fauntleroy asks me to review the record for potential claims not raised in state court, I decline to do so for the reasons stated above.
As stated above, I do not interpret the petition, as clarified by Fauntleroy, to raise a claim of ineffective assistance of appellate counsel. In any event, even assuming such a claim had been raised, it would have no merit.
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance fell below an "objective standard of reasonableness," Id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Id. at 694. In assessing die reasonableness of counsel's performance, "judicial scrutiny of counsel's performance must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstance, the challenged action might be considered sound trial strategy." Id. at 689;see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome.Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome," Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993),
Although the Supreme Court formulated the Strickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding die performance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel need not present every nonfrivolous argument that could be made. See Mayo 13 F.3d at 533; see also Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant"). Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices.See Mayo, 13 F.3d at 533. A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker, Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").
Fauntleroy has failed to demonstrate in this case that his appellate counsel's actions amount to constitutionally inadequate performance. In his 34-page brief to the Appellate Division, Fauntleroy's appellate counsel focused on three issues that, he urged, warranted a reversal of Fauntleroy's conviction: (1) the judge's interference with direct and cross examinations in a way that bolstered the government's case; (2) the trial court's refusal to issue a missing witness charge; and (3) the insufficiency of the evidence. The brief included a detailed review of the evidence presented at trial as well as citations to the record. Further, Fauntleroy fails to allege what claims or issues his appellate counsel failed to raise, simply asking that I review the record for "harmful issues." Fauntleroy, therefore, has shown neither that his appellate counsel's performance fell below an objective standard of reasonableness, nor that he was prejudiced by his appellate counsel's decisions.
3. Judicial Bias and Interference with Direct and Cross Examinations
Fauntleroy contends that the trial court denied him a fair trial when it unduly interfered with direct and cross-examination of certain witnesses in a way that bolstered the government's case and indicated to the jury a bias against Fauntleroy. The Appellate Division concluded that Fauntleroy's contention was unpreserved for appellate review, and in any event, meritless: "The court's function is to clarify the issues and to facilitate the orderly and expeditious progress of the proceedings, A review of the record reveals that the court's intervention was appropriate." Fauntleroy, 683 N.Y.S.2d at 917 (citation omitted). For the reasons set forth below, I conclude that the claim is procedurally defaulted and, in any event, it is without merit,
a. Procedural Default
Federal courts generally may not review state court decisions that rest on an adequate and independent state procedural ground unless the petitioner can show both cause and prejudice for the default or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989);see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question"). A petitioner may establish cause by showing that the basis for the claim was not reasonably available to his counsel or that some interference by officials made compliance impracticable, gee McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's actual and substantial disadvantage, See Murray v. Carrier, 477 U.S. 478, 493-94 (1996), If a petitioner cannot show cause and prejudice, the procedural default may nonetheless be excused if he can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, A fundamental miscarriage of justice requires a showing "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner [guilty]."Sawyer v. Whitley, 505 U.S. 333, 336 (1992).
As Fauntleroy has failed to show any cause for his procedural default, and I do not find that a fundamental miscarriage of justice will result if I decline to entertain this claim, it is rejected,
b. The Merits
In his petition, Fauntleroy alleges that the trial court acted improperly by conducting its own examination of the witnesses, impugning "the character and credibility" of Fauntleroy's lawyer with "demeaning comments in front of the jury," and bolstering the credibility of the government's witnesses. The Supreme Court has established that due process "requires a `fair trial in a fair tribunal' before a judge with no actual bias against the defendant or interest in the outcome of his particular case," Bracy v. Gramley, 520 U.S. 899, 904 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). While defendants are entitled to a fair trial, however, they are not entitled to a perfect one. Only judicial misconduct that renders the trial so fundamentally unfair as to violate federal due process under the Constitution requires habeas relief. Gayle v. Scully, 779 F.2d 802, 806 (2d Cir. 1985);United States v. Robinson, 635 F.2d 981, 984 (2d Cir. 1980), More specifically, habeas relief on the ground of judicial misconduct at the state trial level is warranted only if the federal court determines that the alleged improprieties, taken in the context of the total trial, undermined fundamental fairness to the defendant, Dave v. Attorney Gen., 712 F.2d 1566, 1572 (2d Cir. 1983).
A review of the trial record indicates that the court's conduct never approached the level of impropriety that would constitute a deprivation of Fauntleroy's right to fundamental fairness, The court's commentary consisted of nothing other than ordinary attempts to clarify the testimony of witnesses, and to keep the proceedings moving at an acceptable pace. The court's actions did not disproportionally advantage one side over the other, and represented acceptable exercises of judicial discretion, In fact, the court at times elicited testimony helpful to the defense. Even if viewed in a highly critical light, none of the court's conduct would have tainted the trial to such an extent that Fauntleroy's right to a fair trial was denied. Accordingly, this claim is insufficient to support habeas relief.
I highlight one notable exchange as an example. The following is an excerpt from defense counsel's cross-examination of the government's only identifying witness:
Q: Now, you saw two men run out of that bodega [where the murders were committed] that night, correct?
THE COURT: He never saw your client come out of the bodega. Sustained.
[DEFENSE COUNSEL]: You're right, Judge. I am sorry.
Q: You saw my client, stand outside and then run, and another man run out of the bodega, that's correct, right?
A: Yes.
(Tr. 144.)
4. Failure to Give a Missing Witness Charge
Fauntleroy also claims that the trial court's failure to provide the jury with a missing witness charge denied him due process and a fair trial. In his brief to the Appellate Division, Fauntleroy argued that a Michael Reyes would have testified that he saw an individual with dreadlocks (Fauntleroy had very short hair at the time of the crime) running from the bodega where the murders occurred. This testimony, argued Fauntleroy, would have conveyed to the jury that the police failed to investigate this individual with dreadlocks. The trial judge refused to give the instruction after hearing argument from both sides, (Tr. 696-700.) Despite Fauntleroy's contentions, however, his trial counsel was allowed to mention Reyes and the police officer's failure to investigate the individual with dreadlocks, during his summation and over the government's objection. (Id. 740-41.)
"In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985), "In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context."Brooks v. Ricks, No. 00-CV-3746, 2003 U.S. Dist. LEXIS 13646, at *11 (E.D.N.Y, July 29, 2003) felting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)). I must ask "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147.
The decision whether to give a missing witness charge rests within the sound discretion of the trial court. See United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988). "Its decisions in this area will rarely support reversal or habeas relief since reviewing courts recognize the aura of gamesmanship that frequently accompanies requests for a missing witness charge as to which the trial judge will have a surer sense than any reviewing court." Malik v. Kelly, No. 97-CV-4543, 1999 U.S. Dist. LEXIS 7942, at *21-22 (E.D.N.Y. Apr. 6, 1999) (internal quotation marks omitted).
The Appellate Division reasonably concluded that this claim was without merit. Prior to deciding the issue, the trial court heard both from defense counsel and the government. The prosecutor argued that not only did she not know where Reyes was currently located, but that he had not witnessed the shooting and could not have been expected to testify favorably for the People. (Tr. 699-700.) The trial judge's decision, and the Appellate Division's affirmation, were therefore reasonable under New York law. The trial court's refusal to grant the charge was within its discretion, and no due process or fair-trial rights possessed by Fauntleroy were violated.
A missing witness charge is appropriate when it is "shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him[;] and that the witness is available to such party,"People v. Gonzalez, 502 N.E.2d 583, 586 (N.Y. 1986), "It is well settled that the mere failure of a party to produce a witness at trial, standing alone, is insufficient to justify a missing witness charge." People v. Bostick , 541 N.Y.S.2d 581, 582 (N.Y. A.D. 1989).
CONCLUSION
For the foregoing reasons, the petition is denied. Because Fauntleroy has failed to make a substantial showing of a dental of his constitutional rights, no certificate of appealability shall issue.