Opinion
00 Civ. 4773 (VM)
October 14, 2003
DECISION AND ORDER
Pro se petitioner Eric Glisson ("Glisson"), incarcerated at Five Points Correctional Facility ("Five Points"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that his state court convictions in New York State Supreme Court, Bronx County (the "Trial Court") on two counts of Murder in the Second Degree violated his rights under the United States Constitution because: (1) his counsel's opening statement and efforts to cross-examine the prosecution's main eyewitness were interrupted and curtailed by rulings from the Trial Court; (2) the Trial Court improperly admitted a confession by a non-testifying co-defendant; (3) the Trial Court improperly allowed evidence of uncharged crimes; (4) the Trial Court refused to give a negative inference charge regarding certain ballistics evidence or impose sanctions for certain Brady violations; (5) he was arrested inside his home without a warrant and certain statements he made subsequent to this arrest were improperly admitted into evidence; and (6) his conviction was against the weight and sufficiency of the evidence. The State of New York (the "State") filed an opposition on behalf of respondent Dominic Mantello, who was the Superintendent of Coxsackie Correctional Facility, where Glisson was incarcerated when he first filed his habeas petition.
The Court referred the case to Magistrate Judge Frank Maas and on July 2, 2003, he issued a Report and Recommendation (the "Report"), recommending that the writ be denied for reasons more fully explained below. The Report is attached and incorporated hereto. On August 13, 2003, Glisson filed objections to the Report, asserting, among other things, that: (1) his Confrontation Clause claim was not procedurally defaulted/ (2) the Report's reliance on Richardson v. Marsh, 481 U.S. 200 (1987), to uphold the introduction of Glisson's non-testifying co-defendant led to an incorrect decision; (3) the Report incorrectly assessed the significance of the introduction of evidence of uncharged crimes; (4) the Report incorrectly analyzed Glisson's claims of prosecutorial violations pursuant to the doctrine articulated inBrady v. Maryland, 373 U.S. 83 (1963); (5) Glisson's alleged statement to the police following his purportedly illegal arrest should have been suppressed; (6) Glisson's claim that he was denied the right to present a full opening argument had been properly exhausted; and (7) the Report could not have reached a fair conclusion regarding the sufficiency of the evidence because the Magistrate Judge did not have access to the entire trial transcript. The State did not file any objections to the Report. For the reasons discussed below, the Court denies Glisson's writ of habeas corpus.
I. FACTUAL DISCUSSION AND STATE PROCEEDINGS
Because of the Report's exhaustive discussion of both the facts of this case and the subsequent procedural history,(see Report at 2-19), the Court conducts a brief discussion of only the factual background and procedural history.
Glisson was convicted in September 1997 in the Trial Court on two counts of Murder in the Second Degree (Penal Law §§ 125.25[1] and [3]). The evidence presented at Glisson's trial (the "Trial") convinced the jury that around 4:00 a.m. on January 19, 1995, Glisson was involved in the robbery of Baithe Diop ("Diop"), a driver for the New Harlem Cab Company, and fired the fatal shot that killed Diop.
The State presented several witnesses to establish Glisson's guilt, including one eyewitness, Miriam Taveras ("Taveras"), a former acquaintance and love interest of Glisson, who testified that she watched from her bathroom when Glisson fired the shot that killed Diop. Glisson's principal defense witness was Jose Rojas Tolentino ("Tolentino"), an inmate at Sing Sing Correctional Facility who testified that he had robbed and killed Diop with four other individuals, and that Glisson had not been involved.
After his conviction, Glisson appealed to the New York Supreme Court, Appellate Division, First Department (the "Appellate Division"), which affirmed his conviction. See People v. Glisson, 689 N.Y.S.2d 38 (App.Div. 1st Dept. 1999). On May 24, 1999, the New York State Court of Appeals denied Glisson's application for leave to appeal. See People v. Glisson, 93 N.Y.S.2d 1002 (N.Y. 1999).
After a series of subsequent state court filings, Glisson filed a habeas petition with this Court on June 28, 2000, which was amended on August 10, 2000. Glisson later filed an affidavit on January 22, 2001 to withdraw the petition in order to exhaust certain state claims, then subsequently submitted a petition to reopen the habeas proceeding on November 30, 2001 and a motion requesting leave to re-file his petition on April 7, 2003.
II. DISCUSSION
A. STANDARD OF REVIEW
The Federal Magistrate Act provides that a district judge may "designate a magistrate to conduct hearings, including evidentiary hearings" in order to "submit to a judge of the court proposed findings of fact and recommendations for the disposition . . . of applications for post-trial relief made by individuals convicted of criminal offenses. . . ." 28 U.S.C. § 636 (b)(1)(B) (2000). In reviewing the Report, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id.; see also Fed.R.Civ.P. 72(b). Any party may object to the Magistrate Judge's findings and recommendations. See 28 U.S.C. § 636 (b)(1). If any objections are timely filed, as is the case here, the Court is bound to make a "de novo determination of those portions of the report . . . or recommendations to which objection is made."Id.; see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Having conducted a careful de novo review of the Magistrate Judge's well-reasoned Report, and of the objections filed by Glisson, the Court denies the petition essentially on the basis of the reasoning and authorities supporting the findings and recommendation of the Report.
B. OBJECTION #1: UNEXHAUSTED CLAIM
A federal district court may examine claims raised in a petition for a writ of habeas corpus only if the petitioner has first "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (b) (1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971). Specifically, a habeas petitioner must have "fairly presented" the claims that are raised in the habeas petition in state court by offering both the factual and legal premises of his claims to the highest court of the state.Picard, 404 U.S. at 275; see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Moreover, the habeas petitioner must present to the state court the constitutional nature of all such claims so that the state court is fairly alerted to the particular constitutional concerns involved. See Dave v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en bane), cert.denied, 464 U.S. 1048 (1984); Orraca v. Walker, 53 F. Supp.2d 605, 608 n. 2 (S.D.N.Y. 1999).
Here, one of Glisson's habeas petition claims was that the Trial Court improperly curtailed his counsel's opening statement, first by instructing defense counsel sua sponte in front of the jury at the opening of the statement that counsel could not discuss the specifics of Taveras's prior statement to the police because the Trial Court had not yet ruled on the statement's admissibility, then by cautioning defense counsel in front of the jury near the end of the opening statement that he was "going outside the scope of an opening statement."
The Report found that this claim was never properly exhausted because it was not raised in federal constitutional terms on direct appeal, and although Glisson sought to dismiss his original habeas petition in order to exhaust the claim, he never actually did. Glisson responds that he never received this Court's memo endorsement, dated January 25, 2001, dismissing Glisson's petition without prejudice to enable Glisson to exhaust all unexhausted claims in state court, and therefore he was unaware of his obligation to return to state court to exhaust the claim and consequently never did so. Glisson argues, however, that his prior citation to People v. Crimmins, 367 N.Y.S.2d 213 (N.Y. 1975) in his state court briefs was sufficient to place the state court on notice that they were to consider federal constitutional issues with regard to the claim.
The Court acknowledges the possibility that Glisson was not made aware of his obligation to exhaust until nine months after the Court dismissed the petition, when he received a letter from Magistrate Judge Maas, dated November 9, 2001. Indeed, Glisson attaches to his Affidavit in Support of Objection, dated August 13, 2003, a letter to Glisson from Five Points's First Deputy Superintendent John K. Hoxie, dated April 3, 2002, stating that Glisson did not receive any legal correspondence during the months of January and February of 2001 — which is when the Court mailed its dismissal order to Glisson — at the correctional facility at which he was then housed.
However, even assuming Glisson was not informed of the dismissal of his habeas petition, the Court concurs with the Report's finding that Glisson's brief reference in his state court briefs to Crimmins — a New York Court of Appeals case that did not discuss the proper scope of an opening statement — to set forth New York's harmless error standard did not give the Appellate Division any notice that a federal constitutional issue was being raised regarding the Trial Court's interruption of defense counsel's opening statement. Thus, Glisson did not exhaust this claim, and despite having seventeen months between first being made aware of the dismissal of the habeas petition and his filing a motion to refile the habeas petition, Glisson never did exhaust the claim. Indeed, Glisson's first action upon discovering the Court had dismissed his claim in accordance with his request was to file to re-open the habeas petition, rather than pursue exhaustion of the claim. As a result, the Court agrees with the Report that this claim should be dismissed for want of exhaustion.
The Court also concurs with the Report's observation that were Glisson permitted to return to state court, his claim would be barred from collateral review because "the failure to have raised the claim on direct review . . . forecloses further collateral review in [New York] state court. "Jones v. Keane, 329 F.3d 290, 296 (2d Cir. 2003); see also Spence v. Superintendent. Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir. 2000) ("New York permits only one application for direct review, and having failed to raise the claim on direct appeal [the petitioner] may not seek collateral relief in New York courts.") (citations omitted). Furthermore, the Court agrees that with the Report's observation that Glisson's claim of a constitutional violation because of the Trial Court's interruptions of defense counsel's opening statement is without merit. (See Report, at 28 n. 8.)
C. OBJECTION #2: PROCEDURALLY BARRED CLAIM
Even when a habeas petitioner "fairly presents" his claims before the state courts, federal habeas review is prohibited if a state court rests its judgment on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261-62 (1989). A state procedural default qualifies as an adequate and independent ground unless the petitioner shows "cause for the default and prejudice resulting therefrom."Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir. 1991) (citations omitted). When a claim is procedurally barred in this way, a petitioner cannot obtain federal habeas corpus review of the merits of the claim "unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris, 489 U.S. at 262 (citations omitted; internal quotations omitted); see also Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977).
In his brief to the Appellate Division, Glisson contended that the Trial Court unduly limited cross-examination of the eyewitness regarding her acknowledged bias against Glisson, thereby violating his right to confrontation. The Appellate Division found that this claim had not been preserved at trial, and consequently declined to review it. See Glisson, 689 N.Y.S.2d at 39. The Appellate Division also noted that if it were to review the claim, it "would find that the [Trial Court] accorded ample scope of cross-examination on this subject." Id.
Under New York's contemporaneous objection rule, questions of law can only be preserved for appellate review if "a protest . . . 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. Crim. Proc. Law § 470.05 (McKinney 1994). The Second Circuit has consistently held that failure to object at trial in accordance with this rule constitutes an adequate and independent state ground to dismiss a claim. See,e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Thus, the Court agrees with the Report that this claim is procedurally defaulted.
As previously mentioned, the United States Supreme Court has established two exceptions to such procedural defaults whereby a habeas court can still review a procedurally defaulted claim. With regard to the first exception, a petitioner must show both cause for the default and actual prejudice as a result of the error. See Wainwright, 433 U.S. at 87. With regard to the second exception, a procedural default can be overlooked if there has been a "fundamental miscarriage of justice." Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
The Supreme Court has defined a showing of cause as "some objective factor external to the defense" which explains petitioner's failure to comply with the procedural rule, such as ineffective assistance of counsel. Id. at 488. Prejudice is established by showing that "the constitutional errors raised in the petition actually and substantially disadvantaged [petitioner's] defense so that he was denied fundamental fairness." Id. at 494. Moreover, "mere possibility of actual prejudice resulting from an error at trial is not enough."Wainwright, 433 U.S. at 91. The Court agrees with the Report that Glisson has failed to establish any cause for his failure to contemporaneously object to the Trial Court's limitations on defense counsel's cross-examination. Consequently, the Court need not even consider the issue of actual prejudice.
As for the second exception, Glisson fails to show that there has been a "fundamental miscarriage of justice," which the United States Supreme Court has explained must be shown "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, 335 (1992). The Court agrees with the Report that Glisson has neither presented such evidence, nor is it possible, even accepting his allegation as true, that such purported constitutional errors alone would have caused a reasonable juror to find Glisson guilty. Thus, the Court concurs with the Report's conclusion that the Court lacks jurisdiction to consider this claim.
The Court notes that despite the Report's finding that this claim was procedurally defaulted, the Report proceeds to discuss the merits of this purported constitutional violation, and finds that defense counsel was able to engage in a thorough cross-examination that fills more than 200 pages of the trial transcript. (See Report at 29-31.) In light of this extensive cross-examination, the Report concludes that the Trial Court's limits on further questioning of Taveras was not an abuse of the considerable discretion such court retains over trial proceedings, and that even if Taveras should have been allowed to answer such questioning, such error in not permitting the questioning was harmless. (See id. at 31.) The Court concurs with this assessment.
C. OBJECTION #3: CO-DEFENDANT'S STATEMENT
During the Trial, Detective Michael Donnelly ("Donnelly") testified that, while being questioned in a interrogation room in the 43rd Police Precinct, co-defendant Michael Cosme ("Cosme") told the police: "Yeah, right, I did that motherfucker." (Trial Transcript ("Tr."), at 776.) Donnelly also testified that immediately following that statement, Glisson, who was being detained in a nearby holding cell, shouted: "Yo, Mike, shut up, they ain't got shit." (Id.) Glisson contends that the admission of Cosme's statement confessing to the crime violated Glisson's Sixth Amendment Right under the Confrontation Clause "to be confronted with the witnesses against him." U.S. Const, amend. V. To support this claim, Glisson cites Bruton v. United States, 391 U.S. 123 (1968), where the Supreme Court held that even if the jury was instructed to disregard a non-testifying codefendant's confession implicating the accused insofar as the jury's consideration of the accused's guilt was concerned, such a confession was not admissible.See id. at 135-6.
Cosme was tried separately from Glisson.
The Court agrees with the Report that Cosme's statement was properly admitted at the Trial. The Bruton doctrine does not apply because the statement by itself did not implicate Glisson at all.See People v. Wheatman, 334 N.Y.S.2d 842, 851 (N.Y. 1972) (" [T] he rule laid down in Bruton does not apply to a case in which the challenged statement . . . does not incriminate any of the declarant's codefendants."). Instead, the statement provides context for the introduction of Glisson's statement, which was properly admitted into evidence. Indeed, without Cosme's statement, Glisson's response would be so vague as to render it unhelpful to the jury, and therefore Cosme's statement was important to provide the necessary context for Glisson's outburst. Consequently, as the Trial Court instructed the jury both immediately after the testimony and in the final jury charge, the statement was not offered for the truth of its content, but rather to explain Glisson's subsequent action. See People v. Jordan, 607 N.Y.S.2d 828, 828 (App.Div. 4th Dep't 1994) (allowing third-person testimony into evidence that when man walked by defendant and co-defendant, "the co-defendant said that was the person they had shot, and that both defendant and co-defendant thereupon `ducked down'").
D. OBJECTION #4: UNCHARGED DRUG CRIMES
During the Trial, Lieutenant Sean O'Toole ("O'Toole") testified that, when Glisson was arrested, "[t]here was garbage strewn all over the apartment, crack vials, marijuana, bags in the apartment." (Tr., at 652.) Defense counsel asked to approach the bench immediately after this testimony, and, following an off-the-record sidebar discussion, the Trial Court instructed the jury to disregard any reference to the items O'Toole had observed in the apartment. Glisson argues that such testimony was highly prejudicial and a mistrial should have been granted. The Court disagrees.
As the Report noted, courts "normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it." Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987). For O'Toole's utterance to constitute a constitutional wrong, Glisson must demonstrate both (1) that it is "overwhelming[ly] probab[le]" that the jury will be unable to follow the instruction, Richardson v. Marsh, 481 U.S. 200, 208 (1987), and (2) that the effect of the evidence would have a strong likelihood of being "devastating" to the defendant.Bruton, 391 U.S. at 136.
Glisson fails to make a showing on either element. The statement constituted two lines in a transcript containing over a thousand pages,see Dickens v. Herbert, No. 00 CIV. 3249, 2002 WL 1728514, at *5 (S.D.N.Y. July 25, 2002) (noting that the challenged testimony "took up a single line of trial transcript, followed by the testimony of 14 other witnesses"), and the instruction, given almost immediately following the statement, was easy to understand and follow. See United States v. Paone, 782 F.2d 386, 395 (2d Cir. 1985) (noting that "the jury was not asked to perform olympian mental gymnastics" in considering curative instruction). Thus, Glisson's case does not present a situation where it is overwhelmingly probable that the jury could not follow the Trial Court's instructions. See United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993) (holding that the inadvertent admission of two items of evidence regarding weapons did not violate defendant's rights because the court ordered that the admission be stricken); Roldan v. Artuz, 78 F. Supp.2d 260 (S.D.N.Y. 1999) (holding that even if testimony produced inadmissible evidence of uncharged crimes, the trial court's prompt curative instructions to the jury eliminated the risk of unfair prejudice). Moreover, the Court is not persuaded that such inadvertent testimony had any effect on the jury's conviction of Glisson, much less a "devastating" one.
E. OBJECTION #5: BRADY VIOLATIONS
The State's obligation under Brady v. Maryland, 373 U.S. 83 (1963) is to disclose evidence favorable to the defense which is material to either guilt or punishment. To establish a violation of theBrady doctrine, Glisson must demonstrate: 1) that the evidence in question was favorable to the accused, either because it is exculpatory or impeaching; 2) that the evidence was suppressed by the government, either willfully or inadvertently; and 3) that prejudice ensued, i.e., there was a reasonable probability that the outcome would have been different had the evidence not been suppressed.See Strickler v. Greene, 527 U.S. 263, 280-82 (1999).
Glisson claims there were two separate Brady violations during the Trial. First, Glisson contends that the Trial Court erred when it denied his request for an adverse inference charge with respect to certain bullets recovered from Diop's body, which were unavailable at the Trial because they had been stolen during a prior proceeding. Glisson argues that the existence of these bullets was relevant to his defense because Tolentino testified that he had killed Diop using a gun containing blue bullets, and thus establishing the fact that at least one of the bullets was blue could bolster Tolentino's testimony. However, the color of the bullets was known to the defense before the Trial, and was an uncontested fact. Thus, the Court agrees with the Report that the existence of the bullets would not have served as exculpatory or impeachment evidence from which Glisson could have benefited.
Second, Glisson contests the Trial Court's ruling that the telephone records linked to Diop's cellular phone — which were not turned over to the defense until they were mentioned by Donnelly under cross-examination — were not Brady material. Glisson argues that these records were favorable to the defense and could have been exculpatory because they showed phone calls to a compatriot of Cosme, but not to any friends or family members of Glisson. The Trial Court ruled that the telephone records did not tend to exculpate Glisson, and the Report agreed with this conclusion.
The Court concurs as well. Such evidence proves nothing regarding Glisson's involvement in the crime charged because even if the cellular phone was only used by Cosme, such a fact would not exclude Glisson as a defendant. Moreover, it is just as likely that Glisson possessed the phone but decided not to use it, or had no reason to use it to contact friends or family, as it is that the lack of such use exonerates Glisson. Thus, the Court is not persuaded that the telephone records were favorable to Glisson in a way that required the invocation of Brady.
F. OBJECTION #6: SUPPRESSION OF GLISSON'S STATEMENT
Glisson also argues that he was arrested without a warrant in his home and that his subsequent statement at the police station should have been suppressed pursuant to Payton v. New York, 445 U.S. 573 (1980). A Fourth Amendment claim arising from a state criminal conviction is barred from federal habeas corpus review unless the state courts denied the petitioner a full and fair opportunity to litigate the claim.See Stone v. Powell, 428 U.S. 465 (1976). As a result, a federal court is not permitted to judge the merits of the state court's decision, but instead must evaluate only whether the state court's procedure for resolving Fourth Amendment claims is "facially adequate," and determine that no "unconscionable breakdown" of the process occurred in the petitioner's case. Capellan v. Riley, 975 F.2d 67, 71 (2d Cir. 1992). An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the petitioner's claim. See Papile v. Hernandez, 697 F. Supp. 626, 633 (E.D.N.Y. 1988).
Federal courts have approved New York's procedure for litigating Fourth Amendment claims — a process embodied in N.Y. Crim. Proc. Law § 710.10 et seq. (" § 710.10") ((McKinney 1995) — as being facially adequate.See Capellan, 975 F.2d at 70 n.l. Therefore, "federal scrutiny of [petitioner's] Fourth Amendment claim is not warranted unless he demonstrates that he was in fact precluded from utilizing [that procedure] by an unconscionable breakdown in the review process."Shaw v. Scully, 654 F. Supp. 859, 863-64 (S.D.N.Y. 1987).
In the instant case, Glisson availed himself of the procedures set forth in § 710.10, and the state court conducted a reasoned inquiry into the relevant questions of facts and law. Over several days prior to the Trial, a state court held a pretrial hearing (the "Hearing") where Donnelly and Detective Joseph Sanderson testified as to the circumstances surrounding Glisson's arrest, and were subject to cross-examination. Glisson also testified and was cross-examined. Based on this testimony and other evidence introduced at the Hearing, the judge presiding over the Hearing ruled that the arrest was valid. Such a procedure reflects a "reasoned inquiry" into Glisson's claims, and as a result, the Court is persuaded that Glisson was not the victim of an unconscionable breakdown in state procedure and that his Fourth Amendment claim is unreviewable by this Court. See Ortiz v. Artuz, 113 F. Supp.2d 327, 336 (E.D.N.Y. 2000).
G. OBJECTION #7: WEIGHT AND SUFFICIENCY OF THE EVIDENCE
Glisson finally contends that the jury's verdict of guilty was against the weight of the evidence presented during the Trial. The Second Circuit has held that a "state prisoner `is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 839 (2d Cir. 1997) (quoting Jackson v. Virginia, 443 U.S. 307 (1979)); accord Farrington v. Senkowski, 214 F.3d 237, 240-241 (2d Cir. 2000); Rukaj v. Fischer, No. 02 Civ. 3529, 2003 WL 194201, at *3 (S.D.N.Y. Jan. 28, 2003). Moreover, the Court must consider "the evidence in the light most favorable to the prosecution." Ponnapula v. Spitzer, 297 F.3d 172, 176 (2d Cir. 2002). Thus, on the matter of the sufficiency of the evidence, Glisson has a heavy burden and must "rebut the presumption that all factual determinations made by the state court were correct." Id.; see also 28 U.S.C. § 2254(e).
After reviewing the evidence presented at the Trial in the light most favorable to the prosecution, the Court is not persuaded that Glisson can meet this rigorous burden. While the Court agrees with the Report's observation that both Taveras's and Tolentino's testimony are imperfect, the Court also acknowledges that in analyzing a sufficiency of the evidence claim, the Second Circuit has held that a court must "defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998) (citation omitted).
Indeed, one of the sacred tenets of jury trials is that determinations of witness credibility "are within the sole province of the jury."Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996); see also Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) ("[A]ssessments of the weight of the evidence or the credibility of witnesses are for the jury and [are] not grounds for reversal on appeal"). If Tolentino's testimony had been withheld or suppressed from the jury's consideration, then the Court would be concerned about the sufficiency of the conviction. Instead, the jurors were able to watch Tolentino testify before them and judge his credibility for themselves. Likewise, the jury had the opportunity to hear directly from Taveras, and either credit or discount her testimony. The jury obviously chose to believe Taveras over Tolentino, which is not a conscience-shocking decision considering Tolentino's constant confusion over certain key facts, such as who robbed the livery car with him, his recent extended stays in psychiatric hospitals because he heard voices telling him to kill himself or others, his use of certain medications for his psychiatric condition, and his admission that he had "trouble distinguishing between what was real and what was not real." (Tr. at 1191.) It is not the role of the Court to interfere in such credibility determinations by the jury.
In addition, while the Court acknowledges that the transcripts of the Trial as provided to the Court and the Magistrate Judge are incomplete because they do not contain any portions of the Trial after the close of the defense's case, the Court concurs with the Report that the transcript portions provided, along with the state court briefs filed on appeal, are sufficient to resolve the issues raised in the habeas petition, in particular because none of Glisson's claims or objections directly refer to the portions of the Trial contained in the missing section.
III. CONCLUSION AND ORDER
For the reasons set forth above, it is hereby ORDERED that Glisson's petition for a writ of habeas corpus is DENIED.
The Clerk of Court is directed to close this case. SO ORDERED.