Opinion
No. 01 Civ. 9936 (LMM) (KNF).
July 13, 2005
REPORT and RECOMMENDATION
TO THE HONORABLE LAWRENCE M. McKENNA, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Before the Court is Thanh Giap's ("Giap" or "petitioner") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Petitioner alleges that his confinement by the state of New York is unlawful because the trial court's decision to preclude admission, as a declaration against penal interest, of a statement by an individual claiming responsibility for the crime for which petitioner was convicted, deprived petitioner of his constitutional due process right to present a defense.
The respondents oppose petitioner's application for habeas corpus relief. They contend that the application should be denied because petitioner's claim is unexhausted, but should be deemed exhausted and procedurally barred. The respondents contend further that, in any event, the statement in question was inherently unreliable and petitioner had no federal constitutional right to introduce it into evidence at trial.
II. BACKGROUND
On Friday, April 19, 1996, Richard Han ("Han") drove to Manhattan in his father's Ford Explorer to visit his girlfriend, Song Lee. Shortly after midnight on April 21, 1996, petitioner and two other men accosted Han as he sat in the Ford Explorer outside of Song Lee's apartment building on West 23rd Street in Manhattan. While two men assaulted Han, Giap retrieved a gun from a Nissan Pathfinder parked in front of the Explorer and walked back to Han's vehicle. When Giap returned with his gun, his cohorts ran back to the Pathfinder. With his arms stretched out in front of him, Giap methodically fired his weapon several times at Han, who was struck by four bullets in his upper torso.Stephen Marshall ("Marshall"), a passenger in a taxicab idling in traffic next to Han's Explorer, witnessed the beating and murder and saw Giap flee the scene in the Pathfinder. Instructing the cab driver to follow the Pathfinder, Marshall kept the vehicle in sight until he had recorded its license plate number, which he then reported to the police. The murder was also witnessed by Israel Martinez ("Martinez"), who testified that he saw a man standing in a "shooter's stance" firing his weapon at the victim. Martinez rushed to the scene, where Han told Martinez that he was shot "because of a girl." Han, whose condition continued to deteriorate rapidly, was rushed by ambulance to a hospital, where he died from bullet wounds to his lungs and aorta.
During the police investigation immediately following the shooting, the police spoke to Song Lee and obtained from her a wallet containing Giap's driver's license. Police went to the address listed on the driver's license and found the Nissan Pathfinder with the license plate recorded by Marshall. Inside the vehicle were documents bearing Giap's name and his fingerprints. Days later, the police also obtained Giap's pager from his girlfriend, Dawn Do ("Do"). Tracing telephonic messages left on the pager, the police located petitioner in California, where he was arrested and brought back to New York.
On May 9, 1996, two and a half weeks after the shooting, Giap was placed in a police lineup, at which Marshall identified him as the shooter. In a previous identification procedure, Marshall had also identified Quan Huynh ("Huynh") as one of the two men at the scene of the shooting. On or about May 17, 1996, a New York County grand jury charged Giap, along with Hung Tran ("Tran") and Huynh, with murder in the second degree (N.Y. Penal Law § 125.25). Giap was also charged with criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03) and criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02). Giap and Huynh went to trial on September 18, 1997. At the conclusion of the trial, the jury convicted Giap for murder in the second degree and acquitted Huynh of all charges. On December 23, 1997, the court sentenced Giap to an indeterminate term of imprisonment of 25 years to life.
Tran, in whose name the Pathfinder was insured, was charged in a superseding indictment with murder in the second degree and hindering prosecution in the first degree. He did not go to trial with Giap and Huynh.
Prior to trial, the petitioner sought to introduce into evidence a tape-recording made by Do of a conversation she had with an individual, now deceased, named Joey Cole ("Cole") during which Cole allegedly confessed to shooting Han. The petitioner contended that Cole's confession was admissible because it met all the criteria for a declaration against penal interest, as set forth in, inter alia, People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 882 (1978). The criteria are: 1) the declarant must be unavailable; 2) the declarant must have been aware that his statement was against his penal interest when he made it; 3) the declarant must have had competent knowledge of the facts underlying his statement; and 4) there must be supporting circumstances independent of the statement itself to attest to its trustworthiness and reliability. The trial court found that Cole's statement met the first and second criteria; Cole's death established his unavailability and the tape-recording of his confession displayed his awareness that his statements were contrary to his penal interest. However, with respect to the third element of the Settles test, the court found that Giap did not have competent knowledge of the underlying facts because it was evident that "Do clearly is leading [Cole] with questions that suggest an answer, indicating [Cole's] unfamiliarity with the actual facts of what transpired at the scene of the shooting." The court determined that:
[Cole's] statement was not corroborated by competent evidence independent of the declaration: [Cole] was not identified by an eyewitness to the shooting, though the other defendants were identified; nor was there any physical evidence to place [Cole] at the scene. Significantly, co-defendant Tran, in a videotaped confession, admitted taking part in the shooting with Giap, but did not mention [Cole].
Noting that Cole had later repudiated his confession under oath, and had claimed that he was paid by Do to implicate himself in the murder, the trial court concluded that "the totality of the circumstances indicating that [Cole's] statement was fabricated is overwhelming." Consequently, the trial court ruled that the audiotape of Cole's confession was inadmissible.
On appeal to the Appellate Division, First Department, Giap raised three claims, only one of which is relevant here. Giap claimed that the trial court precluded the defense from introducing Cole's taped, out-of-court statement erroneously, thus depriving him of his constitutional right to present a defense. The Appellate Division affirmed the judgement of conviction unanimously, rejecting Giap's claims. See People v. Giap, 273 A.D.2d 54, 709 N.Y.S.2d 62 (App.Div. 1st Dep't 2000). The court found, in pertinent part, that the trial court had properly precluded Giap from introducing into evidence Cole's recorded statement. The court noted that Cole's statement was "based on facts supplied by the girlfriend, and that the declaration was insufficiently reliable." Id. at 54, 62. Additionally, the court found that there was no independent evidence corroborating Cole's account of events. The court also noted that Cole had recanted his entire declaration. Accordingly, the court found that the trial court denied petitioner's request for admission of the alleged confession properly. Thereafter, Giap applied to the New York Court of Appeals for leave to appeal from the determination of the Appellate Division. That application was denied by an associate judge of that court. See People v. Giap, 95 N.Y.2d 872, 715 N.Y.S.2d 227 (2000). The instant application for a writ of habeas corpus followed.
On motion by the respondents, the Court recommended that the petition be dismissed as time-barred. Thereafter, the assigned district judge, sustaining the petitioner's objections to the Court's recommendation, found that the doctrine of equitable tolling should be applied in this case. Therefore, the petition is now before the Court on the merits.
III. DISCUSSION
Exhaustion of State RemediesBefore a federal court may entertain a habeas corpus petition on behalf of a state prisoner, the petitioner must first exhaust his or her available state remedies. See 28 U.S.C. § 2254 (b) and (c); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997);Daye v. Attorney Gen. of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc). Premised on the principles of comity, the exhaustion doctrine assures "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions," Daye, 696 F.2d at 191, and "increas[es] the likelihood that the factual allegations necessary to a resolution of the claim will have been fully developed in state court, making federal habeas review more expeditious." Id. Although the writ of habeas corpus provides a remedy for imprisonment in violation of federal law, see id., state courts, as well as federal courts, are charged with protecting a criminal defendant's federal rights, and the exhaustion doctrine requires that state courts "be given the opportunity to consider and correct any violations of federal law." Jones, 126 F.3d at 413.
To satisfy the exhaustion doctrine, a habeas corpus petitioner must, first, "fairly present" his or her federal claim to the highest state court from which a decision can be rendered.Daye, 696 F.2d at 190-91 n. 3. A claim is "fairly presented" if the state courts are informed of "both the factual and the legal premises of the claim [asserted] in federal court." Id. at 191. Additionally, "the petitioner must have placed before the state court essentially the same legal doctrine [asserted] in [the] federal petition." Id. at 192. A petitioner must alert a state court "to the fact that the [prisoner is] asserting claims under the United States Constitution" by clearly stating so. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887 at 887-88, reh'g denied, 514 U.S. 1032, 115 S. Ct. 1394 (1995). The Second Circuit has stated:
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance 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, 696 F.2d at 194. Moreover, the Second Circuit has held that "citing a specific constitutional provision or relying on federal constitutional precedents" satisfies the fair presentation prong of the exhaustion doctrine. Jones, 126 F.3d at 413-14.
Second, "having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure state [appellate] review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).See also Nelson v. Walker, No. CV-94-1702, 1996 WL 148321, at *5 (E.D.N.Y. Mar. 20, 1996), aff'd 121 F.3d 828 (2d Cir. 1997) (petitioner must utilize "all available avenues of appellate review within the state court system," either by direct appeal or collateral attack).
Petitioner has satisfied both elements of the exhaustion requirement. Petitioner "fairly presented" the factual and legal premises of his federal constitutional claim to the appropriate state court. In his brief to the Appellate Division, petitioner: (a) cited relevant provisions of the federal Constitution; (b) relied on pertinent Supreme Court precedent as set forth inChambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038 (1973); (c) cited state precedent that employs a constitutional analysis in circumstances similar to those presented here; (d) claimed the deprivation of a particular right specifically protected by the Constitution; and (e) set forth a "factual matrix" that is "well within the mainstream" of litigation premised on the principles set forth in Chambers. Daye, 696 F.2d at 193. Petitioner's citations to relevant provisions of the Constitution alone are sufficient to satisfy the first prong of the exhaustion doctrine.See id. at 192. Thus, petitioner's brief more than adequately apprised the intermediate state appellate court of the constitutional nature of his claim.
Additionally, petitioner raised his claim in the highest court in the state in such a way as to implicate a federal constitutional issue. Merely attaching an appellate brief to a leave application without alerting a court to the pertinent claim raised in that brief does not constitute fair presentation for purposes of the exhaustion requirement. See Jordan v. Lefevre, 206 F.3d 196, 198 (2d Cir. 2000); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). However, where a leave application expressly seeks review of "all issues" outlined in an attached appellate brief, the claims presented in the application satisfy the exhaustion requirement. Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir. 2000). Here, in his leave application to the New York Court of Appeals, petitioner indicated to the reviewing judge that he had enclosed his Appellate Division brief and, immediately thereafter, summarized the three grounds on which he was seeking leave to appeal. These were the same three claims previously raised by petitioner in his brief to the intermediate state appellate court. Since that brief had "fairly presented" the constitutional issues raised by petitioner's claims, those issues were properly presented to the New York Court of Appeals when petitioner offered the brief in its entirety for review by that court. Therefore, petitioner's claim is exhausted.
Right to Present a Defense
Petitioner maintains that the trial court's decision to preclude admission, as a declaration against penal interest, of Cole's confession of the crime for which petitioner was convicted, violated his federal constitutional right to present a defense, as articulated by the Supreme Court in Chambers.
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) was contrary to, or involved an unreasonable application of federal law, as determined by the Supreme Court of the United States; or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to" clearly established Supreme Court precedent if "the state court applies a rule that contradicts" Supreme Court precedent or if "the state court confronts a set of facts that are materially indistinguishable from a decision of the [Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams, 529 U.S. at 405-06, 120 S. Ct. at 1519-20. A state court decision involves an "unreasonable application" of Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case."Id. at 407-08, 1520-21. A federal habeas court applying the "unreasonable application" standard should ask whether the state court's application of Supreme Court precedent was "objectively unreasonable" and not merely an incorrect or erroneous application of federal law. Id. at 409, 1521; see also Francis S., 221 F.3d at 111 (holding that to permit habeas relief under an "unreasonable application" standard, more is required than an incorrect application of federal law, although the "increment of incorrectness" need not be great).
The threshold question under the federal habeas corpus statute, when a claim has been adjudicated on the merits in state court, is whether the petitioner seeks to apply a rule of law that was clearly established at the time his state court conviction became final. See Williams, 529 U.S. at 390, 120 S. Ct. at 1511. In a petition for habeas corpus relief alleging deprivation of the right to present a defense, this question can be answered in the affirmative because the merits of such a claim are governed by the Supreme Court's ruling in Chambers. In the instant case, the Appellate Division's ruling on the issue of Giap's right to introduce Cole's confession into evidence as a statement against penal interest, does not refer to Chambers. Nevertheless, the standard applied by the Appellate Division "is not diametrically different, opposite in character or nature, or mutually opposed to the federal standard," as articulated in Chambers. Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001) (quoting Williams, 529 U.S. at 405, 120 S. Ct. at 1519 [internal quotation marks omitted]); see also Loliscio v. Goord, 263 F.3d 178, 192-93 (2d Cir. 2001). Furthermore, the Appellate Division's decision relies on Settles, a state case that citesChambers in the context of an analysis of the due process right to present a defense by introducing a declaration against penal interest. Therefore, petitioner may be afforded habeas corpus relief only if the Appellate Division's decision was contrary to or unreasonably applied the governing legal standard for precluding the introduction of a confession against penal interest.
"Few rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers, 410 U.S. at 302, 93 S. Ct. at 1049. The due process right to present a defense, however, is not absolute: "[i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Id. In particular, both the accused and the state must comply with the hearsay rule, which prohibits the introduction of out-of-court statements offered to prove the truth of the matter asserted. On the other hand, the Sixth Amendment precludes application of the hearsay rule "mechanistically to defeat the ends of justice." Id.
The exception to the hearsay rule for a declaration against penal interest is "founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it is made." Id. at 299, 1047-48. In order to be admissible at trial, however, a declaration against penal interest must meet certain indicia of reliability; for example, it must be trustworthy, it must be corroborated by other evidence and it must be against the declarant's interest. See id. at 299-301, 1048-49. Similarly, as noted above, under New York law, a declaration against penal interest may be introduced only when the declaration offered satisfies four requirements:
In Chambers, the petitioner sought to introduce exculpating evidence that another man had previously confessed to the crime for which the petitioner was convicted. The Court found that the confession at issue "was made spontaneously to a close acquaintance" and "was corroborated by some other evidence in the case," including the other man's sworn testimony, eyewitness testimony supporting the confession's veracity and the "sheer number of independent confessions" made. Id. at 300, 1048-49. Furthermore, the confession was "unquestionably against interest," as the other had nothing to gain by disclosure. Id. at 301, 1048-49. Finally, the other's presence in the courtroom under oath would have allowed the jury to weigh the credibility of his confession while under cross-examination by the state.Id. The Court concluded that the exclusion of this apparently reliable testimony through the operation of a "mechanistically" applied state hearsay rule violated the constitutional due process rights of the petitioner. Id. at 302, 1049.
[F]irst, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability.Settles, 46 N.Y.2d at 167, 412 N.Y.S.2d at 882.
A federal court is limited on habeas corpus review to a determination of whether a challenged state-court ruling involves an error of federal constitutional magnitude. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991). "Erroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus." Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). Rather, a writ of habeas corpus will issue only where a petitioner can show that an evidentiary error deprived him or her of a fundamentally fair trial. See id. (quoting Chambers, 410 U.S. at 302-03, 93 S. Ct. at 1049). Where a petitioner claims that evidence was precluded erroneously, the test for determining whether the petitioner was denied a fundamentally fair trial is whether the evidence, "viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). Furthermore, establishing constitutional error is a heavy burden because "generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation." James v. Goord, No. 02 Civ. 1174, 2004 WL 1207906, at *8 (S.D.N.Y. June 1, 2004) (quoting Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454, at *2 [S.D.N.Y. July 27, 2001]).
In the case at bar, the trial court determined that Cole's statement should not be admitted into evidence because it failed to meet the applicable indicia of reliability. Cole did not appear to have confessed "spontaneously," but did so only at the prompting of petitioner's girlfriend, who was not a disinterested party. The confession was not corroborated by other evidence in the case but, rather, was contradicted by eyewitness accounts of the several witnesses to the murder. The events described by the witnesses varied significantly from those described by Cole, indicating that he was not even present at, let alone responsible for, Han's murder. Specifically, his contention that petitioner and the victim wrestled for control of the firearm before Cole fired the fatal shots varies significantly from eyewitness testimony that the victim never had a gun and that the shooter stood alone as he fired the shots into the vehicle. Moreover, Cole repudiated his declaration and alleged that Do had paid him to "confess" to the murder. Therefore, the trial court did not commit any error by refusing to admit Cole's statement into evidence at trial. Additionally, even if the decision to preclude admission of Cole's statement was error, in light of the other evidence adduced at trial, petitioner's constitutional right to a fair trial was not violated.
Petitioner has not presented clear and convincing evidence to this Court that rebuts the presumption of correctness accorded the trial court's finding of facts. Furthermore, the Court finds that the Appellate Division, in reviewing petitioner's conviction, applied the standard set forth in Chambers in finding that Cole's statement did not bear sufficient indicia of reliability, and therefore could not be admitted into evidence.
Since the Appellate Division's determination was neither contrary to nor involved an unreasonable application of clearly established Federal Law, as determined by the Supreme Court, there is no basis upon which to grant petitioner habeas corpus relief on this claim. In like manner, the Court finds that the Appellate Division's adjudication did not result in a decision that was premised on an unreasonable determination of the facts in light of the evidence presented in the trial court. Accordingly, petitioner's claim that he is entitled to habeas corpus relief because the trial court improperly precluded admission of Cole's statement is without merit.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any response to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lawrence M. McKenna, 500 Pearl Street, Room 1640, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge McKenna. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).