Opinion
00 Civ. 2305 (AKH)
April 16, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Ramon Guerrero, the petitioner, petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner makes the following challenges to his conviction for murder in the second degree pursuant to New York Penal Law § 125.25(1), entered on April 27, 1995: (1) the prosecutor exercised his peremptory jury challenges in a racially discriminatory manner in violation of the Equal Protection Clause of the Fourteenth Amendment; (2) the prosecutor violated Petitioner's Due Process rights by improperly vouching for the credibility of prosecution witnesses and by employing "inflammatory rhetoric" in his summation; and (3) Petitioner's sentence of twenty-five years to life was excessive. None of the stated grounds merits relief, and the petition is denied.
I. Background
On April 23, 1992, Victor Maria Caba-Lez was shot to death on University Avenue in the Bronx. By indictment filed on May 15, 1992, a Bronx County Grand Jury indicted petitioner, Ramon Gurrero, of four counts relating to the death of Mr. Caba-Lez: Murder in the Second Degree, Manslaughter in the First Degree, Criminal Use of a Firearm in the First Degree, and Criminal Possession of a Weapon in the First Degree. On April 27, 1999, after a trial by jury, petitioner was convicted of Murder in the Second Degree, and sentenced to an indeterminate term of twenty-five years to life in prison.
In his appeal of the conviction to the New York State Supreme Court, Appellate Division, First Department, petitioner asserted the same three grounds for reversal that he asserts in his Petition for a Writ of Habeas Corpus: (1) that the prosecutor exercised his peremptory challenges in a racially discriminatory manner; (2) that the prosecutor's improper vouching and inflammatory remarks in his summation denied petitioner a fair trial; and (3) that the sentence of twenty-five years to life was excessive. By order dated January 12, 1999, the Appellate Division rejected all three grounds and affirmed petitioner's conviction.
In a letter dated February 16, 1999, petitioner's counsel applied for leave to appeal to the New York State Court of Appeals. In his letter, petitioner's counsel argued that the Appellate Division had incorrectly resolved the issues whether the prosecutor had exercised his peremptory challenges in a racially discriminatory manner, and adverted without elaboration or explanation to Point III of petitioner's brief to the Appellate Division, which made the excessive sentence argument. On April 8, 1999, the Court of Appeals denied petitioner's application. People v. Guerrero, 93 N.Y.2d 899 (1999) (table).
Petitioner then timely filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 27, 2000. Because none of the grounds advanced by petitioner merit the requested relief, his Petition is dismissed.
II. Discussion
A. Exhaustion of State Remedies
The State of New York preliminarily argues that the second and third grounds asserted by petitioner — that improper comments made by the prosecutor in summation at trial deprived him of a fair trial and that his sentence of twenty-five years to life was excessive — should be dismissed because petitioner failed properly to present them as constitutional claims on direct appeal from his conviction to the Appellate Division and in his letter requesting leave to appeal to the Court of Appeals. Under 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus may not be granted unless the "applicant has exhausted the remedies available in the courts of the State," or "there is an absence of available State corrective process," or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(A) (B).
In order to properly satisfy the exhaustion requirement, a habeas petitioner must have presented the federal constitutional claims asserted in his petition to the appropriate state court, and must have "utilized all available mechanisms to secure [state] appellate review of the denial" of those claims. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). The petitioner not only must have presented the same factual arguments to the state courts, but also must expressly make the courts aware that he is relying on the United States Constitution as a basis for the requested relief. Id.
The State argues that while the petitioner presented all three grounds in his Petition to the Appellate Division on direct appeal, he only argued that the prosecutor's summation and excessive sentence were improper under state law rather than expressly styling these arguments as constitutional claims. The rationale behind the exhaustion requirement is that comity mandates that state courts be given the first opportunity to consider and, if necessary, correct alleged constitutional violations. Thus, "[a]dherence to exhaustion principles does not require petitioner to raise his claims `by citing chapter and verse' of hornbook law; it simply mandates that the state be given fair opportunity to hear the claim." Blissett v. LeFevre, 924 F.2d 434, 438 (2d Cir. 1991) (quotingAbdurrahman v. Henderson, 897 F.2d 71, 73 (2d Cir. 1990)). "A petitioner has given the state court such an opportunity where he has presented, on direct appeal, the essential factual and legal allegations contained in his federal claim." Id.
In his brief to the Appellate Division on direct appeal, while petitioner did not provide express federal constitutional analysis of his claim that the prosecutor's improper remarks in summation denied him a fair trial, his third subheading of the section discussing the prosecutor's summation is entitled "The Cumulative Effect of These Errors Deprived Mr. Gurrero of His Constitutional Right To A Fair Trial." (Govt. Aff. in Opp'n, Ex. 1, at p. 23). Moreover, that section of petitioner's appellate brief cites People v. Crimmins, 36 N.Y.2d 230, 247 (1975), in which the Court of Appeals expressly discussed federal constitutional standards for assessing error at trial. I hold that petitioner's brief on direct appeal was therefore adequate to apprise the Appellate Division of the constitutional nature of petitioner's argument that the prosecutor's improper remarks in summation deprived petitioner of a fair trial.
The government is correct, however, that petitioner's argument that a sentence of twenty-five years to life was excessive did not fairly present a constitutional issue. Petitioner asked the Appellate Division to exercise its discretion to reduce petitioner's sentence under New York law, but made no constitutional argument. (Govt. Aff. in Opp'n, Ex. 1, at p. 24-25). Since petitioner failed to argue that a constitutional right had been violated, petitioner's claim is unexhausted. Klein, 667 F.2d at 282. This is so in the Appellate Division, and is also the case in petitioner's motion to the Court of Appeals. Jordan v. LeFevre, 206 F.3d 196, 198-99 (2d Cir. 2000) (requiring all claims to be properly presented to Court of Appeals). However, whether or not the petitioner exhausted his excessive sentence claim is irrelevant because I also deny that ground of his petition on the merits for the reasons stated infra.See 28 U.S.C. § 2244(b)(2) (allowing dismissal on the merits notwithstanding failure to exhaust state remedies).
B. Standard of Review of State Court Determinations
The standard of review under which this Court must review the decisions of the New York courts when considering habeas petitions is set forth in 28 U.S.C. § 2244(d), which provides that a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in the State Court proceedings unless 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); Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
C. Batson Claim
The first ground for relief advanced by petitioner is that the prosecutor at his trial exercised peremptory challenges in a discriminatory manner to remove all African-American women in their fifties from the final panel in violation of the Equal Protection clause of the Fourteenth Amendment. See Batson v. Kentucky, 476 U.S. 79 (1986). During jury selection for petitioner's trial, the prosecutor exercised all of his first four peremptory challenges to excuse African-American female jurors. (Tr. 215). Defense counsel objected, arguing that the prosecution was using its peremptory challenges in a facially discriminatory manner because all four challenged venirepersons were African-American female jurors who appeared approximately fifty years old. Id. The trial court declined to require the prosecutory to give non-discriminatory reasons for the challenges at that point because it ruled that a prima facie case of discrimination had not been established. Id. Defense counsel renewed his Batson application during the next round of jury selection, when the prosecutor exercised another peremptory to excuse another African-American female who "appear[ed] to be of the age of about fifty." (Tr. 280).
Though the trial court voiced doubts that defense counsel had established a prima facie case of discrimination given the significant numbers of African-American venirepersons unchallenged by the prosecutor, he nevertheless requested that the prosecutor express his reasons for exercising five of his first seven peremptories to eliminate African-American women. (Tr. 289). The prosecutor then provided raceneutral and gender-neutral reasons for excusing each of the five African-American females — that one juror showed an uncooperative demeanor, that another showed a lack of attention, that a third juror would be distracted because of a need to care for her dog, that a fourth juror's residence was near the crime scene, and that a fifth juror had exhibited slowness and confusion on voir dire. (Tr. 291-298). Defense counsel then renewed his Batson objection, arguing that the prosecutor's explanations were disingenuous and that his challenges were discriminatory. (Tr. 300-02). The Court disagreed, holding that the explanations proffered by the prosecutor were rational and were consistent with the answers and behavior of the struck venirepersons during voir dire. (Tr. 302-03). Therefore, the Court ruled that there was no evidence of intentional discrimination by the prosecutor and refused to dismiss the panel of selected jurors.
Citations in this form are to the transcript of voir dire proceedings before Supreme Court Justice William C. Donnino on October 7, 1994.
The trial Court judge further laid out his reasoning for denying defense counsel's Batson application to dismiss the jury panel in a short written opinion. (Govt. Aff. in Opp'n, Ex. 8). Judge Donnino reasoned that defense counsel had not established a prima facie case of discrimination by the prosecution against African-American women because the prosecutor peremptorily challenged five of a total of fifteen African-American female venirepersons, while three of a total of four non-Hispanic Caucasian venirepersons had already been dismissed for cause. Id. In any event, Judge Donnino concluded that even if African-American women who are approximately fifty years old constitute a constitutionally cognizable class under the Equal Protection Clause, the prosecutor's race-neutral and gender-neutral explanations for his challenges of the five African-American women "were true as to the observations, demeanor, and answers of the jurors, and the reasons were plainly neutral." Id.
Petitioner urges this Court to find that a prima facie case of discrimination had been established and that the trial Court wrongly refused to recognize the pretextual nature of the prosecutor's race and gender-neutral explanations for his challenges. The Supreme Court has held that the discriminatory exercise of peremptory challenges on the basis of race alone, Batson, 476 U.S. at 97, or on the basis of gender alone, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 141-43 (1984), violates the Equal Protection Clause. I find, however, on the basis of the evidence in the record, that the prosecutor exercised peremptory challenges in a race-neutral and gender-neutral manner. Justice Donnino's finding that the defense failed to establish a prima facie case of unconstitutional discrimination is not contrary to clearly established federal law. Hernandez v. New York, 500 U.S. 352, 359 (1991).
Justice Donnino reasonably found that the prosecutor's explanations for his peremptory strikes were appropriate and non-discriminatory. Ultimately, the issue is factual, largely turning on the credibility of the prosecutor, and "the trial Court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal . . . ." Id. at 364. Justice Donnino expressly found in his written opinion that the prosecutor's explanations for each of his peremptory strikes of were consistent with the demeanor of the venirepersons and their responses to questions in voir dire. Moreover, as Justice Donnino noted, there were approximately fifteen African-American female venirepersons, and the prosecutor's peremptory challenges striking five of them did not create an inference of discrimination given the prosecutor's credible explanations. The trial Court's rejection of petitioner's Batson application, and the Appellate Division's affirmance of that decision, People v. Guerrero, 257 A.D.2d at 434 (relying on Hemandez), were not unreasonable, and correctly applied Supreme Court precedent. I therefore dismiss petitioner's first ground for habeas relief.
C. Claim Based on Prosecutor's Improper Summation
The second ground for relief advanced by petitioner is that the prosecutor's improper remarks during summation, including vouching for government witnesses, commenting upon facts not in evidence, and using inflammatory rhetoric, denied petitioner a fair trial. In considering this allegation of violation of constitutional due process, "[t]he relevant question is whether the prosecutor's comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quotingDonnelly v. DeChristoforo, 1 416 U.S. 637, 643 (1974)).
In his direct appeal to the Appellate Division, petitioner takes issue with two aspects of the prosecutor's summation at trial. First, petitioner argues that the prosecutor improperly vouched for the credibility of the prosecution's two eyewitnesses to the murder by denying that they had a motive to lie and arguing that their testimony was consistent. Upon review of the record, I find that the prosecutor in this case did not vouch improperly for government witnesses, but fairly responded to the attacks on the credibility of the government's two eyewitnesses in defense counsel's summation. It is fair argument for the prosecutor to argue that a cooperation letter from the government does not mean that a cooperating witness has a motive to lie. (Govt. Aff. in Opp'n, Ex. I, at p. 18). Defense counsel argued that the witness was lying in order to obtain more lenient treatment, (Govt. Aff. in Opp'n, at p. 30), and the prosecutor may argue to the contrary, and point to the consistency of the two eyewitnesses' testimony. (Govt. Aff. in Opp'n, Ex. 1, at p. 19). None of the remarks by the prosecutor cited by petitioner in his brief to the Appellate Division amount to the sort of improper bolstering that would violate Due Process. Cf. United States v. Young, 470 U.S. 1, 4 (1985) (prosecutor's statement that he personally believed the defendant to be guilty was error). Moreover, the trial Court expressly instructed the jury that the arguments of counsel in summation were not evidence and that they should base their verdict solely upon their own recollection of the evidence in the case. See Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991).
government has been unable to obtain a full transcript of petitioner's trial from the Bronx County Supreme Court. This Court's discussion of petitioner's arguments is therefore based upon the portions of the prosecution and defense summations quoted at length in the briefs submitted by petitioner and the government on direct appeal to the Appellate Division. See (Govt. Aff. in Opp'n, Ex. 1 Ex. 2). I find that the current record suffices to allow me to resolve petitioner's claims.See Rules Governing Section 2254 Cases in the U.S. District Courts, Rule 5 ("If a transcript is neither available or procurable, a narrative summary of the evidence may be submitted.").
Petitioner also argues that the prosecutor's "inflammatory" references to the defendant as a "cold-blooded murderer" who "follow[ed] after [the victim] like a wounded dog," were prejudicial and deprived him of a fair trial. (Govt. Aff. in Opp'n, Ex. 1, at pp. 20-21). In order to violate constitutional due process, "it is not enough that the prosecutors' remarks were undesirable or even universally condemned," but must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181. In this case, just as in Darden, the prosecutor's summation "did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent."Id. at 18 1-82. Rather, the prosecutor's summation reflected the testimony of the eyewitnesses in the case, who had described how Mr. Gurrero shot the victim once in the torso, followed him, and shot him twice more.
In all, I find that the remarks made by the prosecutor in summation were fair commentary on the evidence and fair rebuttal of defense credibility attacks on government witnesses. The prosecutor's remarks, even if arguably inflammatory, did not so distort the evidence before the jury, especially considering the judge's curative instructions. I therefore dismiss petitioner's second ground for relief
C. Excessive Sentence
As a third ground warranting issuance of a writ of habeas corpus, petitioner argues that his sentence of twenty-five years to life in prison was constitutionally excessive. Regardless of petitioner's failure to exhaust this claim, I find that the claim is meritless.
While the Eighth Amendment requires that criminal sentences imposed by state courts and legislatures be proportionate to the offense, federal courts "should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." Solem v. Helm, 463 U.S. 277, 290 (1983); see Bellavia v. Fogg, 613 F.2d 369, 373 (2d Cir. 1979) (federal Court should defer to state legislature concerning mandatory sentences). Here, petitioner's sentence of twenty-five years to life in prison is within the guidelines established by New York law for the crime of second degree murder. N.Y. Penal Law §§ 70.00[2][a], 70.00[3][a], 125.25 (McKinney's 1990). No Supreme Court precedent or other federal law suggests that an indeterminate sentence of twenty-five years to life for the crime of second degree murder is disproportionate under the Eighth Amendment, and I therefore dismiss petitioner's third and final ground for relief
III. Conclusion
For the reasons stated above, the petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied in its entirety. Because petitioner has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2252(c)(2), petitioner is not entitled to a certificate of appealability. There are no issues worthy of appellate review, and no certificate of appealability will be issued.
The Clerk of the Court is directed to mark this matter as closed.