Opinion
99 Civ. 11232 (MBM)(FM)
April 17, 2002
REPORT AND RECOMMENDATION
I. Introduction
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, pro se petitioner Ramon Lebron ("Lebron") challenges his conviction on seven counts of Robbery in the First Degree, four counts of Robbery in the Second Degree, one count of Criminal Possession of a Weapon in the Second Degree, one count of Criminal Possession of a Weapon in the Third Degree, and one count of Criminal Possession of a Controlled Substance in the First Degree. Lebron contends that he was denied a fair trial due to certain comments made by the trial judge to the jury during voir dire. For the reasons set forth below, I recommend that Lebron's petition ("Petition" or "Pet.") be denied.
"Tr." refers to the trial transcript; "V." refers to the transcript of the jury voir dire; "S." refers to the transcript of the sentencing.
A. Relevant Facts
1. People's Case
The evidence adduced by the People at Lebron's trial established the following:
Marien Garcia shared an apartment with Julia Perez and Juan Rosario. (Tr. 415). On the night of December 10, 1995, as Ms. Garcia was entering her apartment, Lebron and two other men charged in carrying guns. (Id. at 33). They pushed Ms. Garcia into the living room. (Id.). Lebron subsequently followed Ms. Perez into the bedroom, after which Ms. Garcia heard Ms. Perez plead with Lebron not to kill her. (Id. at 33-34). She then heard "what was like a loud boom," which she later learned was caused by a gunshot wound to Ms. Perez's right arm. (Id. 34-35, 424).
At trial, when she was asked to identify the person who shot her, Ms. Lebron pointed to one of the jurors. (See Tr. 421, 442-43).
During the incident, Lebron and his accomplices also forced Mr. Rosario and two friends who were visiting him into the kitchen, where they were handcuffed to the fire escape through an open window. (Id. at 36, 429). Lebron and his accomplices then took a Bulova watch and two bracelets from Ms. Perez and a religious medallion from Ms. Garcia. (Id. at 34-35, 52-54, 425-28). They forced the two women into the bathroom and left the apartment. (Id. at 35-36, 428).
Subsequently, Ms. Garcia and Ms. Perez left the bathroom and entered the kitchen, where Mr. Rosario and his friends were still handcuffed. (Id. at 36-37, 428-29). Ms. Garcia gave a knife to Mr. Rosario, who attempted to cut himself loose. (Id. at 37, 429). After tying a makeshift tourniquet around Ms. Perez's arm, Ms. Garcia proceeded to call "911." (Id. at 37-38, 429-30).
When the police arrived on the scene, Ms. Perez was taken to an area hospital. (Id. at 163, 430). Police Officer Hiram Calero spoke to a witness who gave him the license plate number of a vehicle. (Id. at 159, 574). That license plate number and a description of the vehicle were transmitted over the police radio. (Id. at 180-81).
Approximately forty-five minutes later, Officer Brian Settle of the Port Authority Police Department observed a vehicle matching the radioed description entering the Holland Tunnel. (Id. at 176, 181). He called for assistance and followed the vehicle through the tunnel, stopping it as it entered New Jersey. (Id. at 181-84). A subsequent search of the vehicle and its three occupants led to the recovery of two loaded .38 caliber pistols, a sawed-off shotgun, shotgun shells, and the jewelry that had been taken from Ms. Garcia and Ms. Perez. (Id. at 185, 243-44, 249, 251-52, 332-35). The officers arrested Lebron and his associates and took them into custody. (Id. at 184-88). Ballistics tests later matched the guns seized from the car to spent shells found in the apartment. (Id. at 393).
2. Defense Case
Lebron did not put on a case.
3. Jury Selection
On February 21, 1997, the Honorable Colleen McMahon, then a Justice of the Supreme Court of the State of New York, and now a member of this Court, began the jury selection for Lebron's trial in New York County. As part of the process, each juror was given a questionnaire. (See V. 126). In an effort to explain to the prospective jurors the manner in which she wanted them to respond to the questionnaire, Justice McMahon answered the questions herself "as though [she were] sitting in [a juror's] seat." (Id. at 127). Among other things, she told the jurors where she was born and educated, her marital status, whether she had children, and what she did in her spare time. (Id. at 128). She also mentioned that she had been the victim of several crimes, including burglary ("somebody broke into my apartment once and took my wedding silver") and a crime of violence, but stated that "those things would not have any effect on my ability to be a fair and impartial juror in this case." (Id. at 129). After telling the jurors about her experiences as a crime victim, Justice McMahon paused to explain why that information was relevant:
Let me stop here for a moment and say some of you will have had experiences with the criminal justice system, and some of you will have been victim[s] of crimes or someone close to you [will] have been the victim of a crime.
And we don't mean to pry. What we need to know, though, is the nature of what happened to you and most of all whether it will affect your ability to be fair and impartial in this case.
(Id. at 129-130).
When the first jurors seated in the jury box were asked to respond to the questionnaire, two prospective jurors made reference to the substance of the Justice's answers. One stated that her "spare time is spent much like the Judge's." (Id. at 136). The other told the Justice that he, too, had been "the victim of a lot [sic] of [the] small type of crimes you described." (Id. at 147).
After the first panel of prospective jurors answered the questionnaire, Justice McMahon afforded the prosecutor and defense counsel an opportunity to question them. (See id. at 159). At a bench conference during the course of this questioning, Lebron's counsel made an application for a mistrial on the grounds that Justice McMahon had "created a situation by answering the questionnaire where [the jurors] [we]re liable to identify with [her]." (Id. 171-72). Justice McMahon denied the motion, explaining:
I don't think there's any merit to [the motion] at all. Indeed, this is the first time it's been suggested. But I have had more lawyers tell me that they have found out more things from jurors as a result of my practice of taking them through the questionnaire and have had more jurors tell me that I caused them to say things that they had forgotten about or repressed or otherwise wouldn't have dealt with, that I am absolutely convinced that it is the right way to go because we find out what we need to find out about the jurors.
(Id. 191-92).
When Justice McMahon subsequently answered the questionnaire for a second set of prospective jurors, defense counsel asked to approach, but the Justice deemed his motion for a mistrial renewed without a sidebar conference. (Id. at 415). At the completion of voir dire, Justice McMahon noted that the motion for a mistrial made "in the middle of the voir dire" was denied. (Id. at 462). Thereafter, both of the prospective jurors who had referred to Justice McMahon's background were excused. The first was excused for cause on the defense's motion; the second by the People through the exercise of a peremptory challenge. (Id. at 196-97, 200).
B. Procedural History
The indictment returned by the Grand Jury contained thirty-five counts. At the close of the evidence, Justice McMahon dismissed seventeen counts of the indictment, leaving eighteen counts for the jury to consider. (See Tr. at 946-47; Affirm. of Edward Rodriguez, Esq. (undated) ("Rodriguez Affirm.") Ex. A (Indictment)).
On March 5, 1997, the jury convicted Lebron on seven counts of Robbery in the First Degree, four counts of Robbery in the Second Degree, one count of Criminal Possession of a Weapon in the Second Degree, one count of Criminal Possession of a Weapon in the Third Degree, and one count of Criminal Possession of a Controlled Substance in the First Degree. (Tr. at 1117-18). On March 25, 1997, Justice McMahon sentenced Lebron as a predicate felony offender to consecutive terms of imprisonment of twenty-five years on four of the first degree robbery counts, to run concurrently with terms of twenty-five years on the three remaining first degree robbery counts and the drug possession count, fifteen years on the second degree robbery and weapons possession counts, and seven years on the third degree weapons possession count. (S. 25-28).
Lebron appealed his conviction to the Appellate Division, First Department, claiming that the imposition of consecutive sentences for four of his first degree robbery convictions was improper, and that Justice McMahon improperly had commented on her experiences as a crime victim and refused to grant a mistrial. (See Rodriguez Affirm. Ex. B (Lebron Appellate Br.) at 1). The First Department issued its opinion concerning Lebron's appeal on February 2, 1999. People v. Lebron, 685 N.Y.S.2d 42 (1st Dep't 1999). After hearing reargument, however, the court recalled and vacated its prior decision, substituting a new Decision and Order and issuing a new opinion on May 25, 1999. See id.; People v. Lebron, 691 N.Y.S.2d 760 (1st Dep't 1999) (granting reargument); People v. Lebron, 261 A.D.2d 291, 690 N.Y.S.2d 418-19 (1st Dep't 1999) (vacating prior decision). In its May Decision and Order, the court reduced the sentence on each first degree robbery count to fifteen years, reduced the sentence on the first degree criminal possession of a controlled substance to fifteen years to life, and "direct[ed] that all sentences run concurrently." Lebron, 261 A.D.2d at 291, 690 N YS.2d at 418. The court rejected Lebron's contentions concerning jury selection because there was no showing that Justice McMahon's comments "displayed any bias or otherwise caused any prejudice." Id., 261 A.D.2d at 291, 690 N.Y.S.2d at 419. Lebron sought leave to appeal to the New York Court of Appeals, which denied his application, without opinion, on August 13, 1999. People v. Lebron, 93 N.Y.2d 1021, 697 N.Y.S.2d 580 (1999).
On or about October 21, 1999, Lebron filed his Petition. Lebron contends that Justice McMahon's failure to declare a mistrial after informing the jury that she had been the victim of burglary and a crime of violence denied him a fair trial. (Pet. ¶ 12(A)).
Lebron claims that his Sixth and Fourteenth Amendment rights were violated. (Pet. ¶ 12(A)). However, after examining his Petition and his Traverse, I am unable to discern the substance of his Sixth Amendment claim. As such, I have addressed only his Fourteenth Amendment fair trial claim.
On or about February 3, 2000, the Respondent filed an Affirmation and Memorandum of Law in opposition to Lebron's Petition.
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). Rather, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
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.28 U.S.C. § 2254(d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to `contrary [to]' and `unreasonable.'" "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. 529 U.S. at 409, 120 S.Ct. at 1521. This standard does not require that all reasonable jurists would agree that the state court was wrong. Id. 529 U.S. at 409-10, 120 S.Ct. 1495 at 1521-22. Rather, the standard "falls somewhere between `merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)) (emphasis added).
Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1510.
B. Merits of Lebron's Claim
Lebron claims that Justice McMahon's revelation that she had been the victim of several crimes, including a crime of violence, "conveyed the appearance of impropriety" because Lebron was charged with similar "New York City" crimes. (Pet. ¶ 12(A) (Attach. at 2)). More specifically, Lebron contends that the Justice's statement that she had been the victim of a crime of violence, in a case in which he was charged with multiple violent crime counts, gave the appearance that she would not be an impartial arbiter and, thus, deprived him of a fair trial.
To prevail on a claim based on judicial misconduct, a habeas petitioner must demonstrate that the trial judge engaged in conduct so "fundamentally unfair" that it violated the due process requirements of the United States Constitution. See Daye v. Attorney Gen. of N.Y., 712 F.2d 1566, 1570-71 (2d Cir. 1983); Salahuddin v. Strack, No. 97-CV-5789, 1998 WL 812648, at *8 (E.D.N.Y. Aug. 12, 1998). A showing that the conduct was merely "undesirable" is not sufficient. See Daye, 712 F.2d at 1572. See also Suarez v. Stinson, No. 97 Civ. 3039, 1999 WL 335373, at *4 (S.D.N.Y. May 26, 1999) (Chin, J.) (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L. Ed. 2d 368 (1973)). "The judge's intervention in the conduct of a trial must be both significant and adverse to the defense `to a substantial degree before the risk of either the impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceed[s] constitutional limits.'" Gayle v. Scully, 779 F.2d 802, 806 (2d Cir. 1985) (quoting Daye, 712 F.2d at 1572) (brackets in original). Petitioners are able to make this showing only rarely. See Gayle, 779 F.2d at 806.
As the Appellate Division correctly observed, Lebron has not shown that Justice McMahon's conduct was adverse to him, nor has he shown that it was a factor in determining his guilt. The Justice's statements that she had been the victim of several crimes — including a crime of violence — did not reflect a bias against Lebron. Rather, the statements were merely illustrative of the sort of information that the Justice wanted the prospective jurors to volunteer. These statements consequently cannot possibly be interpreted as an indication that Justice McMahon believed that Lebron was guilty. Moreover, even if Lebron truly believes that Justice McMahon's statements somehow tipped the scales against him, courts in this circuit have found that a state prisoner's right to a fair trial has not been violated in cases in which the trial judge's conduct was far more intrusive and actually suggested some animosity toward defense counsel. See, e.g., Gayle, 779 F.2d at 807-08 (finding that the trial judge did not exceed constitutional bounds of fairness when he made frequent remarks "which may be described as caustic and sometimes sarcastic — [and] still other comments [which] were gratuitous and might have been better left unsaid"); Daye, 712 F.2d at 1572 (finding trial judge did not violate defendant's right to fair trial when he questioned him in a hostile manner and invited "two witnesses to reinforce the strength of their identification testimony"); Suarez, 1999 WL 335373, at *5 (finding no infringement of right to fair trial where judge "often made unnecessary comments" and "answered for witnesses during cross").
Justice McMahon's conduct also did not give rise to an appearance of impropriety. Indeed, she gave her reasons for answering the questionnaire to all those present during jury selection: "[T]he easiest way that I have found to explain to you how I like to have the questionnaire dealt with is to deal with it myself." (V. at 126-27). Additionally, the fact that one prospective juror stated that she spent her time "much like the Judge," (id. at 136), and another said that he had been the victim of the types of crimes that the Justice had described, (id. at 147), does not suggest that Lebron's trial was somehow tainted. In fact, both of these prospective jurors were excused — one at the behest of the prosecution — before the jury was sworn.
Finally, it bears mention that during the trial, Lebron's counsel advanced te somewhat narrower argument that the Justice's decision to answer the questionnaire was fine, but that she should have done so "in a hypothetical." (Id.). Even if Lebron were able to show that this suggested procedure would have been preferable — which he has not — as the Appellate Division found, Justice McMahon's comments did not indicate "any bias or otherwise cause any prejudice." Lebron, 261 A.D.2d at 291, 690 N.Y.S.2d at 419. Consequently, Lebron has not made the substantial showing necessary to establish a violation of his due process rights.
IV. Conclusion
For the foregoing reasons, the relief requested by Lebron should be denied and his Petition dismissed. Furthermore, because Lebron 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.