Opinion
02-CV-0180 (JBW); 03-MISC-0066 (JBW)
October 16, 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
The evidence supported the following statement of facts:
In July of 1993, petitioner and two other men attempted to rob a store in Queens County. Petitioner, armed with a gun, entered the store with one of his accomplices. The other accomplice waited outside. Petitioner shot three employees. Two were seriously injured. One died.
At trial, during cross-examination of a witness, defense counsel asked the witness if he had previously been arrested for the crime of rape. The witness answered in the negative Defense counsel asked a second time about the alleged arrest for rape. The People objected, The trial court sustained the People's objection because the witness already answered the question.
Petitioner was convicted in April of 1999 of murder in the second degree (two counts), attempted murder in the second degree (two counts), assault in the first degree (two counts), attempted robbery in the first degree (three counts), and criminal possession of a weapon in the second degree. He was sentenced to prison terms of twenty-five years to life for each murder conviction, to be served concurrently; eight and one third to twenty-five years for each attempted murder conviction, to be served consecutive and consecutive to the sentence imposed on the murder convictions; five to fifteen years for each count of assault, to be served consecutive to each other but concurrent with the sentence imposed for murder and attempted murder; five to fifteen years on each attempted robbery conviction, consecutive to each other, but concurrent with the sentences imposed for murder and attempted murder and five to fifteen years for possession of a weapon, to be served concurrent with the sentence imposed for murder.
The Appellate Division affirmed the judgment of conviction. People v. Fernandez, 280 A.D.2d 680 (2d Dept. 2001). It held that because petitioner did not object to the trial court's refusal to allow him to ask the witness follow-up questions after the witness denied that he had been arrested for rape, petitioner's cross-examination claim was "unpreserved for appellate review." Id. The court decided mat any error on the trial court's ruling was harmless "since the defendant was permitted to impeach the witness's credibility by questioning him about other criminal acts, and the evidence of the defendant's guilt was overwhelming." Id. In regards to petitioner's sentencing claim, the court held that the trial court sufficiently articulated its intent that the sentences imposed for the convictions of attempted murder and assault of each wounded complainant run concurrently with each other, and consecutively to the concurrent terms imposed for murder. Id. Petitioner's application for leave to appeal to the New York State Court of Appeals was denied. People v. Fernandez, 96 N.Y.2d 862 (2001).
In his application for a writ of habeas corpus, petitioner claims that the trial court (1) denied him due process and his Sixth Amendment right to confrontation by limiting his cross-examination of a witness and (2) illegally sentenced him by ordering that the sentences on the attempted murder and assault convictions run consecutively to the sentences on the murder convictions.
II. 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, 117S (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. Under this 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," Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "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," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[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); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). 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).
III. 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 in ay 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).
IV. 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. Barllett, 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. July 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.
V. Certificate of Appealability
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), The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appeal ability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
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").
VI. Analysis of Claims Trial Court's Limitation on Cross-Examination
Petitioner claims that the trial court violated his right to due process and Sixth Amendment right to confrontation by limiting cross-examination of a prosecution witness. The witness had allegedly been arrested for the crime of rape. The claim is procedurally barred.
Failure to object to or protest the trial court's limitation on the cross-examination of the witness constituted a violation of New York's contemporaneous objection rule. N.Y. C.P.L. § 470.05, Section 470.05(2) provides, in relevant part: "For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same," N.Y. C.P.L, § 470.05. 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 v. Thompson, 501 U.S. 722, 750 (1991), The Appellate Division appropriately held that the claim was "unpreserved for appellate review," People v. Fernandez, 280 A.D.2d 680 (N.Y.App.Div. 2001). The claim is not eligible for federal habeas review.
Petitioner has not shown cause for his non-compliance with New York's procedural rule. He has not offered any explanation for his violation. The issue of cause "must ordinarily turn on whether the prisoner can show mat some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488(1986).
At any rate, petitioner has not been prejudiced by the default, Petitioner claims that if he had been allowed to fully cross-examine the witness about the alleged rape arrest, the testimony would have impeached the witness's credibility. Trial judges retain wide latitude to impose reasonable limitations on cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986), U.S. v. Flaharty, 295 F.3d 182, 190 (2d Cir. 2002). Defense counsel was permitted to ask the witness about the alleged arrest for rape, which the witness denied. Petitioner presents no credible argument that further questioning of the witness about the alleged arrest would have impeached the witness's credibility. As the Appellate Division noted, petitioner was allowed to impeach the witness's credibility by questioning him about other criminal acts, including drug dealing, domestic battery and theft, Any further impeachment of the witness's credibility by additional questioning on the alleged rape arrest would have been merely cumulative.
The evidence against the petitioner was overwhelming. It included admissions petitioner made to his half brother and his half brother's ex-wife, testimony of one of the victims, and testimony of a co-defendant, who identified petitioner as the shooter. Habeas relief requires that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted). No prejudice was shown.
In any event, the claim is meritless, In New York, witnesses may be impeached by proof of a conviction of a crime. Richard T. Farrell, Prince, Richardson on Evidence § 6-409 (11th ed, 1995), Witnesses cannot normally be asked whether they have been arrested, because an arrest is a mere accusation. People v. Mormon, 195 N.Y, 116 (N.Y., 1909), People v. Cascone 185 N.Y. 317 (N.Y, 1906).
Petitioner's due process rights were not violated. His Sixth Amendment right to confrontation was not violated.
The claim is meritless.
Consecutive Sentences
Petitioner claims that the trial court illegally sentenced him. He claims that his sentence should be modified because the sentences on two counts of attempted murder and two counts of murder run consecutively. See supra Part I. Facts and Procedural History, This claim was not raised in petitioner's direct appeal. On direct appeal, petitioner argued that the sentences on the two attempted murder convictions should be modified to run concurrently with the sentences on the assault convictions. Petitioner would now be precluded from raising this claim in any court of the State of New York, When a petitioner docs not have any other state remedies available to him, the federal court can deem the claim exhausted but procedurally barred. Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). This claim is deemed exhausted.
A procedurally defaulted claim cannot be reviewed "unless the [petitioner] 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 v. Thompson, 501 U.S. 722, 750 (1991). Petitioner has not shown cause for failing to argue this claim on direct appeal. In any event, he did not suffer any prejudice resulting from the default.
A challenge to the term of a sentence is not a cognizable constitutional issue if the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Consecutive sentences are permitted under New York Penal Law section 70.25 where separate and distinct acts are committed against separate victims, even if all occur during the course of a single, extended transaction. People v. Ramirez, 89 N.Y.2d 444 (N.Y., 1996), People v. Brathwaite, 63 N.Y.2d 839 (N.Y., 1984). Petitioner's murder of one worker and attempted murder and assault of two other workers were arguably separate and distinct acts.
Petitioner was legally sentenced. He has suffered no "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The claim is meritless.
VII. 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.