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holding that the petitioner's "moral certainty" challenge was "not cognizable on habeas review"
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02-CV-2779 (JG).
May 24, 2004
TONY FRANCESEHI, DIN: 99A6067, Green Haven Correctional Facility, Stormville, NY, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Adam Samuel Charnoff, Assistant District Attorney, Attorneys for Respondent.
MEMORANDUM AND ORDER
Tony Francesehi petitions for a writ of habeas corpus, challenging his convictions in state court. On April 16, 2004, I held oral argument, in which Francesehi participated by telephone conference. The petition is denied for the reasons set forth below.
BACKGROUND
The government's evidence at trial established that, on December 18, 1977, Tony Francesehi and Vincent Cilone struck off-duty Officer Ronald Stapleton in the face with a sharp instrument and then shot him twice, outside the Trade Winds Bar in Brooklyn. Robert Race, a detective at the time, met Stapleton at the emergency room where Stapleton relayed that he was grabbed by a couple of guys who beat him up, struck him in the face with a sharp instrument, and then, shot him. Stapleton died of complications from the gunshot wounds.The case remained unsolved until nearly twenty years later, when the federal government indicted mobster Frank Gioia in another case. Gioia provided information to the police about the Stapleton murder after he found out that his fiancee, the niece of Francesehi, cheated on him with another man. Specifically, Gioia reported that Francesehi had boasted to him on several occasions that he had been involved in the murder of an off-duty police officer many years ago. The details provided by Gioia matched those of Stapleton's murder. Mobster Michael Cilone, Vincent Cilone's brother and a nephew of Francesehi's wife, also reported that Francesehi had similarly boasted to him numerous times.
As a result of this belated information, almost twenty-one years after Stapleton was murdered, Francesehi was finally charged with his murder. The jury found him guilty of murder in the second degree and he was sentenced to a term of imprisonment of twenty-five years to life.
Francesehi, through counsel, appealed to the Appellate Division, Second Department. Appellate counsel raised the following claims: (a) the evidence was legally insufficient to support Francesehi's conviction; (b) the prosecutor improperly elicited testimony on Francesehi's post-arrest demeanor; (c) the trial court incorrectly denied Francesehi's request for a circumstantial evidence charge which incorporates a "moral certainty" standard; and (d) the trial court's Allen charge was improper.
On occasion, when jury "discussions become `log-jammed' and no further progress can be anticipated . . . [a] trial court will sometimes give the jury supplemental instructions commonly known as an Allen charge, which encourages jurors to listen to each other and reminds them that they have a `duty to decide the case if they [can] conscientiously do so.'" United States v. Crispo, 306 F.3d 71, 75-76 (2d Cir. 2002) (quoting Allen v. United States, 164 U.S. 492, 501 (1896)).
The Appellate Division rejected all of these challenges and affirmed Francesehi's conviction on October 29, 2001. People v. Francesehi, 733 N.Y.S.2d 193 (2d Dep't 2001). The court ruled as follows:
Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Additionally, the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses. Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record. Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence.
The defendant's contention that the trial court should have declared a mistrial based on the prosecutor's reference to the defendant's postarrest demeanor is without merit. The trial court promptly instructed the jury to strike the reference from their minds, and followed up that instruction in detail in its jury charge. Furthermore, because the defendant declined the court's offer to give further curative instructions, any contentions related to the sufficiency of those instructions are unpreserved for appellate review (see, CPL 470.05 [2]). The defendant's remaining contentions are unpreserved for appellate review.Id. (internal citations omitted). The Court of Appeals denied Francesehi's application for leave to appeal on December 21, 2001. People v. Francesehi, 738 N.Y.S.2d 297 (2001).
On April 28, 2002, Francesehi filed a pro se petition for a writ of habeas corpus in this Court, on the same grounds raised by his appellate counsel on direct appeal.
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." 28 U.S.C. § 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 clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
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 (citingWilliams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome 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." Gilchrist, 260 F.3d at 93 (citing Francis 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 in Sellan 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).
However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
B. Francesehi's Claims
1. Sufficiency of the Evidence
Francesehi argues that the evidence was insufficient to sustain his conviction because the only evidence against him came from the mouths of "career criminal-Mafia associates [Frank Gioia and Michael Cilone] — who, while under indictment and investigation for murders and other crimes, made stunningly beneficial cooperation agreements." (Pet., Pt. One.) In addition to these witnesses, Francesehi similarly complains about the credibility of Robert Race. (Pet. Traverse at 11-12.) At trial, Race testified that Stapleton, while he was in the hospital, told him that he was exiting the Trade Winds Bar when two men grabbed him, used a sharp device on this face, and then shot him. Race further told the jury that he disavowed the story that he had told the police initially — that Stapleton told him that two African-American males had assaulted him in the course of his investigation of a suspicious incident. Race explained to the jury that he fabricated this initial story in order to ensure that Stapleton's family would have no difficulty collecting the officer's pension. Apparently, Race was trying to distance Stapleton from the Trade Winds Bar (which was off-limits to the police because it was a mafia hangout), as pension benefits would only be given after a line-of-duty death. At the time of the incident, Stapleton was off-duty.
Respondent, for its part, contends that the evidence was legally sufficient, and that the jury was entitled to find the witnesses credible, despite their unsavory pasts (Michael Cilone and Gioia) and their previous lies (Race). (Resp't Mem. Law at 2-9.) I agree.
A petitioner who challenges a conviction on the sufficiency of the evidence bears a "very heavy burden." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quotation marks omitted); Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (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 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) (emphasis in original); see also Ponnapula, 297 F.3d at 179 ("[W]e review the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial.").
In making this assessment, the court may not "disturb the jury's findings with respect to the witnesses' credibility,"United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), or "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)). 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). However, challenges to the weight of the evidence supporting a conviction are not cognizable on federal habeas review. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).
As stated earlier, Michael Cilone and Gioia testified that Francesehi had bragged to them about murdering a police officer many years ago with Vincent Cilone. The details provided by Francesehi to these witnesses matched the specific details of the Stapleton murder. For instance, Francesehi told these witnesses that he had used the cop's own gun to kill him, a fact that was confirmed by a police officer who arrived on the scene. He also told them that the murder occurred outside a Mafia bar "out in the Bay," referring to Sheepshead Bay in Brooklyn. As another example, Francesehi told Gioia that Vincent Cilone tortured the cop by gouging his eye, which matched what had actually happened. Relatedly, Michael Cilone confirmed that his brother Vincent had "liked" to use soda hooks for purposes other than working on a soda truck, and so always carried one with him. Vincent Cilone's widow, Frances Cilone-Softy, testified similarly about her husband's penchant for using soda hooks. She also testified about that a couple years after the murder she heard Francesehi and Vincent Cilone fighting, because Vincent asked Francesehi to leave him alone. At that time, Frances overheard Francesehi say the following to Vincent: "What are you fucking crazy, telling her. Why did you tell her? * * * Don't you know she could put us away if she leaves you? I told you not to fuckin tell nobody." (Resp't App. Div. Br. at 28 (quoting Tr. at 365-66).) Frances testified that she knew what Francesehi was referring to since she had spoken to Vincent on other occasions about the murder. As to the checkered pasts of Gioia and Michael Cilone, I cannot on habeas review re-examine their (or Race's) credibility. I must conclude that the jury resolved that issue in favor of the government. The evidence, if believed by the jury, was amply sufficient to support Francesehi's conviction. At the very least, I cannot say that the Appellate Division unreasonably applied federal law in so holding. As such, Francesehi is not entitled to habeas relief on this claim.
2. Post-Arrest Demeanor
a. Exhaustion
Respondent contends that Francesehi failed to exhaust this claim because he did not present it to the New York Court of Appeals. Respondent is wrong.
In order to exhaust his state remedies, a petitioner must have fairly presented his federal constitutional claims to the highest state court. See Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (in banc). A petitioner can present his federal claim to New York Court of Appeals in a leave-to-appeal application by expressly requesting consideration of all issues outlined in the Appellate Division briefs attached to the application. Such a statement is adequate to alert the Court of Appeals that petitioner seeks review of all issues raised in those attached briefs, includingpro se supplemental briefs. Morgan v. Bennett, 204 F.3d 360, 370-71 (2d Cir. 2000). Such a leave letter is sufficiently specific to present the federal claims set forth in the briefs to the Appellate Division, regardless of whether the petitioner repeats such claims in a subsequent letter to the Court of Appeals. Id.
Francesehi, through counsel, wrote an initial letter to the New York Court of Appeals on November 20, 2001, in which he states "I am enclosing copies of the briefs filed in the Appellate Division and that Court's order on appeal." It goes on to state: "We request that this Court consider and review all issues outlined in defendant-appellant's brief." (Emphasis added). Subsequently, counsel sent a letter dated December 17, 2001 to the assigned judge, in which he highlighted certain aspects of the appeal, but not the demeanor issue. This second letter did not act as a revocation of the first, which requested review on all issues. Thus, I now proceed to decide the merits of the claim.
At oral argument, Francesehi stated that he filed a pro se application to the Court of Appeals, in which he raised this claim. The Respondent stated that he did not do so and that there was no record of such submission. Because I have concluded that this claim is preserved and will thus decide it on the merits, I do not need to determine whether or not such an application was filed, although I note that I have received nothing to suggest that such an application was in fact filed by Francesehi.
b. The Merits
Francesehi asserts that the prosecution violated his privilege against selfincrimination by eliciting testimony from the arresting officer about Francesehi's post-arrest silence. (Pet. Pt. Two.) I am not persuaded by this argument.
During the prosecutor's direct examination of the arresting officer at trial, the following exchange occurred:
Q: Detective, what was [defendant's] demeanor during the arrest and processing of that arrest?
A: He was indifferent during the vast majority of the arrest.
Q: I'm not sure that I understand what you mean by that, indifferent.
A: That he was neither excited nor upset about the nature of the charges of the arrest.
Q: Was he informed of the nature of the charges?
A: Yes, he was.
(Resp't Mem. Law at 15-14 (quoting Tr. at 475).) The trial court immediately sustained defense counsel's objection and directed the jury to ignore the testimony, stating, "it's not evidence." (Id. (quoting Tr. at 476).)
A prosecutor engages in the unconstitutional use of silence against a defendant when the "fact of [the defendant's] post arrest silence [is] submitted to the jury as evidence from which it [is] allowed to draw any impermissible inference." Greer v. Miller, 483 U.S. 756, 764-65 (1987). Likewise, it is improper to "use `defendant's refusal to talk to police as evidence of guilt.'" Michaels v. Portuando, No. 99-CV-3195 (JG), 2002 WL 1732813, at *9 (E.D.N.Y. July 23, 2002) (quoting Splunge v. Parke, 160 F.3d 369, 372 (7th Cir. 1998)).
Nonetheless, not every constitutional violation of this sort requires habeas relief. The Supreme Court has determined that the prosecutor's use of post-Miranda silence requires reversal only if it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 631, 631 (1993). In determining whether this standard has been satisfied, the court may consider a variety of factors, including "(1) the severity of the prosecutor's conduct; (2) what steps, if any, the trial court may have taken to remedy any prejudice; and (3) whether the conviction was certain absent the prejudicial conduct." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994).
It is an open question in this circuit whether Brecht survives AEDPA, or whether now a federal habeas court should determine instead whether the state court's decision was contrary to, or involved an unreasonable application of, the Chapman v. California harmless error standard, 386 U.S. 18, 24 (1967) ("[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."). See Loliscio v. Goord, 263 F.3d 178, 185 n. 1 (2d Cir. 2001); Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir. 2001). Because I conclude that the error alleged by Francesehi was either not error at all or harmless under both standards, I need not decide this question.
Even assuming that the challenged testimony implicitly commented on Francesehi's exercise of his Fifth Amendment rights, there was no prejudice to him. This testimony was extremely brief, and the objection and curative instruction were swift and direct. Furthermore, the trial court invited defense counsel to request yet another curative instruction for the jury (see Resp't Mem. Law at 16 (quoting Tr. at 487-88: "I will fashion charges specifically to that if you would like indicating whatever you want.")), although counsel chose not to accept such invitation, (id. (citing Tr. at 489-90)). In short, whereas it might have been error if the trial court had overruled the objection, the sustaining of the objection actually prevented error from occurring. In any event, the Appellate Division's rejection of this claim was not an unreasonable application of federal law. Accordingly, Francesehi is not entitled to relief on this claim, either.
3. Trial Court's Jury Charges
Francesehi claims that two jury charges were constitutionally erroneous.
a. The Allen Charge
First, Francesehi contends that the trial court's secondAllen charge was improper because it did not include the admonition that jurors should not abandon their conscientious convictions. As noted above (see supra n. 1), "[t]he term `Allen charge' is a generic term used for a type of supplemental instruction that is given to a deadlocked jury, first approved by the Supreme Court in Allen v. United States, 164 U.S. 492 (1896). A traditional Allen charge reminds the jurors about the importance of obtaining a verdict and encourages jurors to listen `to each other's arguments' while also emphasizing that `the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows.'" Smalls v. Batista, 191 F.3d 272, 275 n. 1 (2d Cir. 1999) (quoting Allen, 164 U.S. at 501). Here, the trial judge's second Allen charge stated as follows: "Today's a new day and it's early and I have discussed it with both sides and they are firmly convinced that they are not going to present the case any differently in the future and this is the jury that is going to have to decide the case and we want you to go back and work on it." (Def's App. Div. Br. at 20 (quoting Tr. at 672-72).)
The respondent maintains that I cannot consider this claim because it is procedurally barred. I agree.
Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261 (1992); Levine v. Comm'r of Corr, Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review.Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [their] own errors."); see also Lee v. Kemna, 534 U.S. 362, 376 (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").
The Appellate Division held that Francesehi's challenge to theAllen charge was procedurally barred. See Francesehi, 733 N.Y.S.2d at 194 ("The defendant's remaining contentions are unpreserved for appellate review."). Although the Appellate Division did not explain why this was true, the record makes it clear that the basis was defense counsel's failure to comply with New York's contemporaneous objection rule, N.Y. Crim. Proc. Law § 470.05(2). That provision provides, in pertinent part:
For purposes of appeal, a question of law with respect to a ruling . . . of a criminal court during a trial . . . is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling . . . known to the court, or if in reponse [sic: response] to a protest by a party, the court expressly decided the question on appeal. In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling . . . is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule . . . accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.
N.Y. Crim. Proc. Law § 470.05(2).
The state court record reveals that on the second day of deliberations, the jury announced an 11 to 1 deadlock, following which the court instructed the jurors to continue deliberating until they reached a verdict, but reminded them of their duty to reach agreement only "`if [they] could do so without violence to individual judgment.'" (Def's App. Div. Br. at 19-20 (quoting Tr. at 658).) The state court record also reflects that on the third day of deliberations, the jury advised the court, for the second time, that it was deadlocked. The government requested "a firmerAllen charge," since the previous one had not had the desired effect. (Def's App. Div. Br. at 20 (quoting Tr. at 671).) Defense counsel objected to any additional Allen charge. (Id.) The trial judge agreed to give the jury a short, succinct instruction. The instruction did not include the charge that the jury was to reach agreement only if it could do so without violence to their individual judgment but the defense counsel did not object to the trial court's formulation of the charge. Nor did counsel suggest the inclusion of the "individual judgment" language, in words or in substance. (Resp't App. Div. Br. at 58 (citing Tr. at 671-72).)
The only remaining issue is whether the Appellate Division's application of the procedural bar was proper. The relevant case law provides that, "ordinarily, violation of `firmly established and regularly followed' state rules" — such as New York's contemporaneous objection rule — "will be adequate to foreclose review of a federal claim." Lee, 534 U.S. at 376. The only exception is where the case "falls within `the small category of cases in which [the] asserted state grounds are inadequate to block adjudication of the federal claim' or `in which the exorbitant application of a generally sound rule renders the state ground inadequate' to bar consideration of the federal constitutional claim." Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003) (alteration in original) (quoting Lee, 534 U.S. at 376, 381).
"Before accepting a procedural bar defense, a federal court must examine the adequacy of the alleged procedural default," as "`state courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.'" Cotto, 331 F.3d at 239 (quoting Garcia, 188 F.3d at 77). In Cotto, the Second Circuit discussed the three considerations the Lee Court used in determining that Lee's case fell into that "limited category," Lee, 534 U.S. at 376:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state case law indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto, 331 F.3d at 240. I use these three factors as "guideposts in `evaluat[ing] the state interest in a procedural rule against the circumstances of a particular case.'" Id. at 240-41 (quoting Lee, 534 U.S. at 386-87).
Here, only the second factor requires discussion. New York case law indicates that compliance with the contemporaneous objection rule is demanded under these circumstances, and was not complied with by defense counsel. New York courts have consistently foundAllen charge claims to be unpreserved where the defense counsel did not alert the trial court to the offensive language at issue. Thus, this claim is barred from federal habeas review.
See, e.g., People v. Aponte, 759 N.Y.S.2d 486, 488-89 (1st Dep't 2003) (Allen claim based on the absence of a cautionary instruction that jurors should not abandon conscientiously held beliefs was preserved where defense counsel's objection to the charge "included the assertion that the supplementary instruction `would lead [jurors] to feel that they were doing something improper' if they were `steadfastly holding to a firm conviction either way whether for a conviction or acquittal' and was made "in sufficient time `to call the court's attention to and permit it to correct' the asserted error."); People v. Cowen, 672 N.Y.S.2d 138, 138 (2d Dep't 1998) ("The defendant's contention that the trial court's Allen charges were coercive is unpreserved for appellate review. The defense counsel neither requested a specific charge nor objected to the charges that were given by the trial court.") (citation omitted); People v. Arnold, 641 N.Y.S.2d 318, 319 (2d Dep't 1996) (claim that Allen charge coercive not preserved where defense counsel neither requested a specific Allen charge nor objected to the charge that was given by the court) (citingPeople v. Perdomo, 614 N.Y.S.2d 105, 105 (1st Dep't 1994) (no preservation where "Defendant did not request that the trial court include in its charge the specific language he now cites, and his subsequent exception did not alert the court to his current claim that, by failing to give this additional charge, he was denied his right to a fair trial")); People v. Jackson, 618 N.Y.S.2d 340, 341 (1st Dep't 1994) ("Defendant's argument that the court coerced the jury to reach a verdict by delivering anAllen charge to a hopelessly deadlocked jury is unpreserved since the defendant never objected to the court's instructions that the jury was to decide the case only on the evidence presented in open court."); People v. Marrero, 617 N.Y.S.2d 780, 781 (2d Dep't 1994) ("The defendant's contention that the trial court's Allen charges were coercive is unpreserved for appellate review. The defense counsel neither requested a specific charge nor objected to the charges that were given by the trial court.") (citation omitted); see also Larrea v. Bennett, No. 01 Civ. 5813 (SAS), 2002 WL 1808211, at *1-2 (S.D.N.Y. Aug. 6, 2002) (Allen charge challenge based on specific language used was not preserved even though defense counsel immediately objected to the charge on the ground that the charge was unduly coercive, because counsel did not specifically object to the particular language challenged on appeal), aff'd ___ F.3d ___, 2004 WL 1094269 (2d Cir. May 18, 2004) (procedural bar issue conceded by defendant).
b. Circumstantial Evidence: The "Moral Certainty" Charge
Second, Franchesehi contends that the trial court should have given the jury a circumstantial evidence charge, which would have included a "moral certainty" instruction, given the absence of physical evidence, eyewitness testimony, or direct evidence linking him to Stapleton's shooting. To support his argument, Francesehi points to New York law, which he argues provides that in a case where the evidence against the accused is wholly circumstantial, the government must prove the accused's guilt to a moral certainty and the accused is entitled to a charge to that effect.
The respondent urges me not to consider this issue, because the Appellate Division held that it was procedurally barred. To that end, respondent points to the fact that while defense counsel initially requested a circumstantial evidence charge (see Resp't App. Div. Br. at 57 (citing Tr. at 490)), once the court indicated that it would not give a "moral certainty" charge in light of the fact that some of defendant's admissions and confessions were direct evidence of his guilt, defense counsel did not renew his objection, (id. (citing Tr. at 491-92)). The respondent adds that at the end of the court's main charge, the court once again asked defense counsel if he had any additions or exceptions, to which defense counsel replied no. (Id. (citing Tr. at 624).)
I assume without deciding that this claim was preserved under New York's contemporaneous objection rule because it has no merit in any event.
As Francesehi correctly points out, New York law provides that, "[w]henever a case relies wholly on circumstantial evidence to establish all elements of the charge, the jury should be instructed, in substance, that the evidence must establish guilt to a moral certainty. However, where a charge is supported with both circumstantial and direct evidence, the court need not so charge the jury." Moore v. Scully, 956 F. Supp. 1139, 1151 (S.D.N.Y. 1997) (quotingPeople v. Daddona, 81 N.Y.2d 990, 992 (1993) (citations omitted)).
Challenges like this one, which rely on state law, are not cognizable on habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991); Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) (non-constitutional claims not cognizable in federal habeas corpus proceedings). Only constitutional challenges are actionable, and there was no constitutional violation here. The trial judge emphasized that the government must prove its case, whether by direct or circumstantial evidence, beyond a reasonable doubt. (See Def's App. Div. Br. at 16-19 (quoting Tr. at 602-09).) Because that accurate instruction protected Francesehi's federal right not to be convicted except upon proof beyond a reasonable doubt establishing his guilt, Francesehi has not met the high burden imposed by Cupp v. Naughten, 414 U.S. 141 (1973). See id. at 147 (requiring, as a condition to habeas relief, that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process"). Thus, he is not entitled to the writ on this ground.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Francesehi has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.