Opinion
02 Civ. 1183 (HB).
June 25, 2003.
OPINION ORDER
Tito Kello ("petitioner") brings this habeas petition pursuant to 28 U.S.C. § 2254 to challenge his conviction. Magistrate Judge Maas issued a Report and Recommendation ("R R") recommending that this Court dismiss in its entirety his habeas petition ("petition"). Petitioner filed written objections to the R R within the statutory 10-day period. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). For the foregoing reasons, petitioner's § 2254 habeas petition is denied and the R R affirmed.
I. BACKGROUND
A jury convicted petitioner on one count of manslaughter in the first degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree. During trial, two witnesses, Lakesha Bryant and Richard Monroe, testified that they were at the shooting and that petitioner had told them he shot Frazier because he "had a beef with the kid." In addition, several "911" calls were admitted into evidence. These calls informed the police that the killer was at the scene, that the killer was wearing green shorts, and that the police had apprehended the wrong person. Further, petitioner's girlfriend, Michele Patrick, was interviewed by detectives and provided a signed statement attesting that petitioner told her he had shot Frazier. The jury found that on August 12, 1993, between 4:30 and 5 a.m., petitioner shot and killed Darrien Frazier with an automatic assault rifle. On April 27, 1995, petitioner was sentenced to concurrent prison terms, constituting an aggregate indeterminate sentence of twelve and a half to twenty five years in prison.
Following trial, Kello appealed to the Appellate Division, First Department. Petitioner alleged that the trial court erred by admitting the "911" calls without proper redaction, violating his Sixth Amendment right to confront witnesses and Fourteenth Amendment right to a fair trial. More specifically, petitioner contends that the "911" calls are not present sense impressions because they were made between 7:00 and 7:30 a.m., hours after the shooting, and thus their admission violated the hearsay rule. In addition, petitioner contends that the trial court erred by refusing to grant a mistrial after the prosecutor impeached Patrick, purportedly in violation of New York Criminal Procedure Law § 60.35(1) . While testifying at trial, Patrick refused to admit to the facts she provided in her statement to the police following the shooting. After Patrick testified that she had forgotten what was in the statement, the prosecutor attempted to refresh Patrick's memory with the information contained in her sworn statement. The prosecutor showed Patrick her signed statement which Patrick claimed she was unable to read because it was in script. Patrick testified that she told the police what they wanted to hear so they would leave her alone. The prosecutor asked Patrick whether she believed the police wanted to hear that Kello had shot and killed the victim, and whether she had told them he had done so in order to get the police to leave her alone. Patrick responded that she told the police anything because she was scared. After consideration, the trial court informed counsel a few days later that it believed that the questions directed to Patrick in regard to her prior written statements had been improper and offered to strike all of the objectionable portions of Patrick's direct testimony and to instruct the jury to disregard that testimony. The court gave defense counsel the weekend to consult with his client regarding the offer. Defense counsel, after the weekend, requested a mistrial, which the court denied. Although the defense counsel declined to accept the trial court's offer to strike her testimony, the court nonetheless instructed the jury to disregard the information given in the questions by the prosecutor concerning the contradictory statement Patrick had provided to the police.
New York Criminal Procedure Law § 60.35(1) states:
When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony.
The Appellate Division, on December 16, 1999, unanimously affirmed Kello's conviction, finding that Kello's "generalized objection, followed later in the trial by an untimely mistrial motion," failed to preserve his claim as to the improper impeachment of Patrick. People v. Kello, 267 A.D.2d 123, 123-24 (1st Dep't 1999). Although the Appellate Division declined to review the claim in the interest of justice, they stated, "[w]ere we to review this claim, we would find that the court properly exercised its discretion in denying the mistrial motion. The court struck the offending testimony with suitable curative instructions, and, in light of the overwhelming evidence against defendant, any error was harmless." Id. at 124. The Appellate Division also found that the trial court properly exercised its discretion in admitting the redacted "911" calls. Id.
Petitioner appealed to the New York Court of Appeals only on the issue of the "911" calls. See Resp. Ex. 5 at 2. Specifically, petitioner contended that the "91 1" calls were not admissible because they are hearsay, and furthermore, admission of the calls violated his Sixth Amendment right under the Confrontation Clause. The Court of Appeals found that the claim under the Confrontation Clause was not properly before it because petitioner had not raised the objection at trial. Although the Court of Appeals agreed that the trial court erred in admitting the "911" calls because they did not fall within the present sense exception to the hearsay rule, it held that the admission of the "911" calls constituted harmless error because, "1) proof of guilt was overwhelming; and (2) there was no significant probability that the jury would have acquitted had the proscribed evidence not been introduced." Id. at 744.
II. STANDARD OF REVIEW
Under 28 U.S.C. § 2254, federal courts have limited power to review criminal convictions in state court. Section 2254(d) provides,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in 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. Further, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting a habeas review, federal courts are limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Pursuant to the Federal Rules of Civil Procedure, a district court reviews de novo the portion of the magistrate judge's R R to which specific written objection has been made. Fed.R.Civ.P. 72(b).
III. DISCUSSION
Petitioner objects to the R R on the grounds that he did not receive a fair trial based on the District Attorney's impeachment of Patrick, and the admission of the "911" calls. More specifically, petitioner contends the trial judge's failure to instruct the jury to disregard Patrick's testimony until five days after the testimony was given prejudiced his right to a fair trial. Petitioner further asserts that the trial judge should have granted a mistrial based on the fact that the information from Patrick's statement, which was introduced by the prosecution during Patrick's testimony, was firmly implanted in the jurors' minds. Furthermore, petitioner contends that the judge should have also instructed the jury to disregard the "911" calls.
A. Independent and Adequate State Grounds
Both of petitioner's claims were denied by state courts on adequate and independent state grounds, and therefore this Court is procedurally barred from considering either of the claims presented in petitioner's habeas, It is well settled that when a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)); see also Harris v. Reed, 489 U.S. 72, 81 (1977); Wainwright v. Sykes, 433 U.S. 72, 81 (1977).
Here, the Appellate Division held that the petitioner's "generalized objections" to Patrick's testimony and the "untimely mistrial motion" failed to preserve the objection pursuant to New York's contemporaneous objection rule. N.Y.C.P.L § 470.05(2); Kello, 267 A.D.2d at 123-24; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Although the Appellate Division declined to review the merits of the claim, it stated that had it done so, it would have found that the trial court properly exercised its discretion. Kello, 267 A.D.2d at 123-24. Although the Appellate Division ruled in the alternative on the merits of the claim, this Court is procedurally barred from reviewing the claim. Glenn, 98 F.3d at 724 (quoting Velasquez, 898 F.2d at 9) ("federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim"). Because petitioner never raised his constitutional objections at trial in regard to the "911" calls, the New York Court of Appeals found the constitutional objections waived and rejected petitioner's claim that his conviction should be reversed on the ground that admission of the "911" calls at trial violated the common-law hearsay rule. Kello, 96 N.Y.2d at 743. Both claims were rejected on adequate and independent state grounds. Accordingly, petitioner's asserted claims in his habeas petition are precluded from federal review by this Court.
1. Cause and prejudice
In order to demonstrate "cause" for the procedural default, the petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Factors that meet this standard include, a factual or legal basis for a claim not being reasonably available to counsel, interference by officials which made compliance impracticable, or ineffective assistance of counsel. See id, at 488; Bossett v. Walker, 41 F.3d 825 (2d Cir. 1994). To establish prejudice, the petitioner must show that "the constitutional errors raised in the petition actually and substantially disadvantaged [petitioner's] defense so that he was denied fundamental fairness." Reyes v. State, 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999) (citing Murray, 477 U.S. at 494). The prejudice must be actual. The "mere possibility of prejudice resulting from an error at trial is not enough." Wainwright, 433 U.S. at 91. Petitioner fails to put forward facts to allow me to conclude that "cause" exists. Further, petitioner offers nothing besides his conclusory statement that he was denied a fair trial, which is inadequate to support the contention that his constitutional rights were compromised. Accordingly, petitioner fails to show any "cause" or prejudice here.
2. Fundamental miscarriage of justice
"A fundamental miscarriage of justice occurs only in those extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime." Funderbird-Day v. Artuz, 2002 WL 31427345 (S.D.N.Y. Nov. 4, 2002) (quoting Rodriquez v. Mitchell, 252 F.3d 191, 204 (2d Cir. 2001). To show a fundamental miscarriage of justice, petitioner must show by clear and convincing evidence that but for the constitutional error, no reasonable juror would have found the petitioner guilty. Reyes, 1999 WL 1059961, at *2 (quoting Sawyer v. Whitley, 505 U.S. 333, 335 (1992)). Here, petitioner does not make any showing to meet his heavy burden.
B. Exhaustion
Additionally, petitioner's claim in regard to the prosecution's impeachment must fail because it is unexhausted in state court. The only issue presented to the New York Court of Appeals was whether the "911" calls were impermissibly admitted, and therefore petitioner's impeachment claim is not exhausted. Petitioner must have exhausted all of his remedies available through the state courts first before obtaining federal review, unless there is an absence of state corrective process available or the circumstances render that process ineffective to protect his rights. 28 U.S.C. § 2254(b)(1). Petitioner makes no showing, however, that circumstances rendered the state process ineffective to protect his rights. Id. § 2254(b)(1)(A)(ii). Furthermore, although there is "an absence of available State corrective process," id. § 2254(b)(1)(A)(i), because petitioner is now procedurally barred from applying a second time to the Court of Appeals to exhaust his impeachment claim, see N.Y.C.P.L. § 460.20; People v. McCarthy, 250 N.Y. 358 (1929), the Second Circuit has held that in such a circumstance "federal habeas courts also must deem the claims procedurally defaulted." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1). Petitioner fails to show good cause and prejudice or a miscarriage of justice to excuse this procedural fault, and his impeachment claim is therefore barred from federal review for this additional reason. Id.; Glenn, 98 F.3d at 724.
IV. CONCLUSION
For the foregoing reasons, petitioner's § 2254 habeas petition is denied and the R R affirmed. The Clerk of the Court is instructed to close any pending motions and remove this case from my docket.