Opinion
99 Civ. 9245 (LMM)(FM)
April 9, 2002
REPORT AND RECOMMENDATION
I. Introduction
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, Petitioner Ricardo Lamberty ("Lamberty") challenges his conviction in the Supreme Court of the State of New York, Bronx County, on multiple counts of rape, attempted rape, and sodomy. (Pet. ¶ 4). Lamberty contends that his right to an impartial jury under the Sixth Amendment and his due process right to a fair trial under the Fourteenth Amendment to the United States Constitution both were violated because his ex-wife gave perjurious testimony during his trial. (Id. ¶ 12(A)).
In my prior Report and Recommendation, dated March 30, 2001, I recommended that the Respondent's motion to dismiss the petition as untimely be denied without prejudice because the status of one of Lamberty's state court applications for collateral relief was unclear. (Docket No. 13). Your Honor adopted that Report and Recommendation on April 24, 2001. (Docket No. 16). Thereafter, on June 5, 2001, the Respondent filed an "Affidavit in Opposition to the Petition" and an accompanying memorandum of law. (Docket No. 17). Having reviewed the petition and those responsive papers, I now recommend that Lamberty's petition be dismissed because it is procedurally barred.
To date, the respondent has been unable to furnish his Court with a copy of the trial transcript. (See Resp't's Mem. at 16 n. 2). The transcript is unnecessary, however, to resolve the dispositive procedural issue here.
II. Background
A. Trial and Sentencing
Following a trial before the Hon. William H. Wallace, III, and a jury, Lamberty was convicted of two counts of Attempted Rape in the First Degree, eight counts of Sodomy in the First Degree, and eight counts of Rape in the First Degree. (Pet. ¶ 4; Affidavit of ADA Nancy Killian in Opp'n to Pet. for Habeas Corpus, sworn to on June 4, 2001 ("Killian Aff."), ¶ 4 Ex. 7 (Lamberty Br. on Appeal) at 1). On or about October 9, 1996, Justice Wallace sentenced Lamberty to concurrent indeterminate prison terms of seven and one-half to fifteen years on each of the attempted rape counts and ten to twenty years on each of the rape and sodomy counts. (See Pet. ¶ 3; Killian Aff. ¶ 4 Ex. 7 at 18-19).
B. Post-Conviction Proceedings
1. State Court Lamberty appealed his conviction to the Appellate Division, First Department, raising three issues: (a) whether the trial court erred by allowing the two child victims to testify; (b) whether certain expert testimony was improperly admitted; and (c) whether there was sufficient evidence to convict him on the two attempted rape counts. (See Killian Aff. Ex. 7 at 19-35). On June 9, 1988, the Appellate Division, First Department, summarily affirmed Lamberty's conviction. People v. Lamberty, 141 A.D.2d 349, 530 N.Y.S.2d 424 (1st Dep't 1988). Thereafter, on November 3, 1988, the New York Court of Appeals denied his application for leave to appeal from the Appellate Division's order of affirmance. People v. Lamberty, 73 N.Y.2d 787, 536 N.Y.S.2d 747 (1988).
In addition to his direct appeal, between September 25, 1989, and October 4, 1991, Lamberty filed a series of post-conviction applications, each of which was denied by the trial court. (See Killian Aff. ¶¶ 12-15). In one such application, filed on or about October 31, 1990 (the "1990 Motion"), Lamberty sought to vacate his conviction, pursuant to N.Y. Crim. Proc. L. § 440.10, on the basis of "new" evidence that his ex-wife, Wanda Lamberty, had testified falsely at his trial regarding their divorce proceeding. (See Killian Aff. Ex. 16). Lamberty was served with the complaint in that divorce proceeding on September 25, 1985, more than five years before he filed his motion. (See Pet. Attach. 1). In his papers, Lamberty alleged that Mrs. Lamberty testified at trial that he had resided with her until October 1985, but had sworn under oath in the divorce complaint that he had abandoned her in April 1984. (Killian Aff. Ex. 16 (Mem. of L. at A-B)). Lamberty contended that the introduction of this "perjured and . . . fabricated" trial testimony violated his rights under "New York Rules and the Fifth (5th), Sixth (6th) and Fourteenth (14th) Amendments of the United States Constitution." (Id. (Lamberty Aff. ¶ 4)).
On October 4, 1991, Justice Wallace denied the 1990 Motion because: (1) N.Y. Crim. Proc. L. § 440.10(2)(c) precluded Lamberty from raising collaterally an issue that could have been raised on direct appeal; and (2) even if the issue could have been raised collaterally, because Lamberty had failed to assert it in one of his prior Section 440.10 motions, N.Y. Crim. Proc. L. § 440.10(3)(c) precluded him from raising it in the 1990 Motion. (Killian Aff. Ex. 17 (Decision) at 2-3). After noting that Lamberty had filed no fewer than five prior applications for post-conviction relief, Justice Wallace went on to observe that Lamberty had "exhausted all post-judgment remedies available to him. Therefore, any further motions submitted by him would be denied in similar form." (Id. at 3). There is no indication in the record that Lamberty sought to appeal the denial of the 1990 Motion.
2. Habeas Petition Lamberty's petition is dated May 19, 1999, and file-stamped as having been received by this Court's Pro Se Office on May 27, 1999. (Pet. at 1, 7). In his petition, Lamberty seeks habeas relief on the theory that the introduction of his ex-wife's allegedly perjured testimony deprived him of his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to a fair trial. (Pet. ¶ 12(A)).
The Respondent's opposition papers, filed on or about June 5, 2001, concede that he cannot prove that all of Lamberty's post-conviction applications for collateral relief were exhausted more than one year before his habeas petition was filed, as the prior motion to dismiss had suggested. (See Killian Aff. ¶ 17). Nevertheless, the Respondent contends that the petition must be denied because the state court previously rejected Lamberty's federal claims on independent and adequate state procedural law grounds in response to the 1990 Motion.
III. Discussion
Under settled Supreme Court precedent, a federal court may not consider an issue of federal law raised in a state prisoner's petition for a writ of habeas corpus if the state court's prior denial of that claim rests on an adequate and independent state ground. E.g., Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Wainright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503-04, 53 L.Ed.2d 594 (1977). A finding of procedural default qualifies as such an adequate and independent state ground, Harris, 489 U.S. at 262, 109 S.Ct. at 1043, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . 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, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000). To demonstrate cause, a petitioner must adduce "some objective factor external to the defense" which explains why he did not raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray). A showing of prejudice requires a petitioner to demonstrate that the failure to raise the claim previously had a substantial injurious effect on his case such that he was denied fundamental fairness. Reyes v. New York, No. 99 Civ. 3628, 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999) (Scheindlin, J.). Finally, to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is "actually innocent." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
It often can be difficult to determine whether a state court's decision regarding a federal claim rests on an adequate and independent state procedural ground. See Harris, 489 U.S. 262, 109 S.Ct. 1043; Jones v. Stinson, 229 F.3d 112, 117-18 (2d Cir. 2000). Here, however, in denying the 1990 Motion, Justice Williams never reached the merits of Lamberty's federal claim. Instead, he relied exclusively on two provisions of the New York Criminal Procedure Law which courts of this Circuit have recognized as adequate and independent state law grounds for the denial of habeas review. See, e.g., Ramirez v. Attorney Gen. of N.Y., 280 F.3d 87, 89 (2d Cir. 2001) (barring habeas review because of state court's reliance upon § 440.10(2)(c)); Colon v. Artuz, 174 F. Supp.2d 108, 115 (S.D.N.Y. 2001) (Swain J.)(same); Mercado v. Portuondo, No. 99 Civ. 11234, 2001 WL 987926, at *5 (S.D.N.Y. Aug. 29, 2001) (Mukasey, J.) (Section 440.10(3)(c) constitutes procedural bar to habeas review of a federal claim not raised in a prior motion pursuant to N.Y. Crim. Proc. L. § 440.10); Gil v. Kelly, No. CV-90-0603, 1992 WL 151901, at *3 (E.D.N.Y. June 16, 1992) (petitioner's "failure to raise [his federal] issue on appeal or at his previous CPL § 440.10 motion, when he was in a position to do so, was ground for denial of the motion under CPL § 440.10(2)(c) and (3)(c)" and constitutes a procedural bar to habeas review).
Accordingly, the Court may not hear Lamberty's federal claims unless he can show both cause for the default and actual prejudice or that the failure to consider his federal claims will result in a fundamental miscarriage of justice. Lamberty has not made either of these alternative showings. As his own state court papers confirm, Lamberty was well aware of the allegations in the divorce proceeding before his trial. As Justice Williams noted, Lamberty therefore could have raised his perjured testimony claim before the filing of the 1990 Motion some four years after the date of his conviction.
Lamberty also has not shown, as he must, that the boilerplate pleadings in the divorce action, if used to cross-examine his ex-wife at trial, would have had an effect on the outcome. Indeed, it appears that Lamberty himself contradicted those divorce pleadings by admitting at trial that he had continued to reside with his wife and children until October, 1985. (See Killian Aff. Ex. 7 at 16 (quoting trial transcript at 319-20)). This, of course, is the very allegation by his wife that he now seeks to impeach.
Finally, apart from Lamberty's own self-serving statements, there has been no showing that he is actually innocent of the charges brought against him. Given that a jury convicted Lamberty after he testified in his own defense, his renewed protestations of innocence are entitled to little or no weight.
IV. Conclusion
For the foregoing reasons, the relief requested by Lamberty should be denied and his habeas petition dismissed. Furthermore, because Lamberty has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.