Opinion
No. 97-CV-0300E (F)
September 17, 2001
MEMORANDUM and ORDER
Salvator Letizia filed a petition for a writ of habeas corpus April 27, 1997 pursuant to 28 U.S.C. § 2254 on the following grounds — (1) denial of his Sixth Amendment right to confrontation, (2) violation of his Fifth and Fourteenth Amendment right to exculpatory information, (3) violation of his Fourteenth Amendment right to present evidence on his own behalf, (4) the prosecution's allegedly seeking testimony known to be false, (5) failure to provide Brady material, (6) improper reasonable doubt jury instructions, (7) ineffective assistance of trial counsel and (8) ineffective assistance of appellate counsel. The undersigned referred this matter to Magistrate Judge Leslie G. Foschio for a consideration of the merits and legal issues raised by Letizia in his application for post-conviction relief.
After the filing on May 10, 2001 of Judge Foschio's Report and Recommendation (the "RR") in which he recommended that the Petition be granted based on the denial of Letizia's Sixth Amendment right to confrontation but denied on all other grounds, respondent Hans Walker (Supervisor of the Auburn Correctional Facility) filed his Affirmation objecting to the RR. Letizia replied, urging this Court to adopt the RR to the extent that it recommended that his Petition be granted on Sixth Amendment Confrontation Clause violation grounds, and filed an objection to the RR on all grounds therein for which his Petition was denied. For the reasons set forth below, this Court does not adopt the RR to the extent that it recommended a finding that Letizia had exhausted his Sixth Amendment Confrontation Clause violation claim and adopts the remainder of the RR. The net effect of this Court's holding is that Letizia's Petition for a writ of habeas corpus will be denied.
Letizia has also made a motion for reconsideration of his motion for bail. Because his habeas corpus Petition will be denied, Letizia's motion for bail will also be denied.
While familiarity with the facts of this case is presumed, the relevant details are repeated. Letizia was found guilty of Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110 and 125.25-1) (McKinney 1998), Assault in the First Degree (N.Y. Penal Law § 120.10-1) and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 165.02-1), in connection with the stabbing of Joseph Bruno on June 29, 1987 that occurred in the apartment of Joseph Johnson located at 1234 Hertel Avenue in Buffalo, N.Y. Letizia was sentenced to indeterminate terms of incarceration ranging from seven to twenty-one years for the attempted murder conviction, four to twelve years on the assault conviction and two to six years for the weapons possession conviction, a11 terms to run concurrently.
Unless otherwise indicated, all references to New York Penal Law are to "McKinney 1998."
The indictment also charged Johnson as a co-defendant in the attempted murder and assault charges, and separately charged Johnson with criminal weapon possession and two drug related crimes.
Johnson plead guilty to the assault.
Letizia filed a timely appeal to the Appellate Division, New York Supreme Court, Fourth Department, which was unanimously denied. Leave to appeal to the New York Court of Appeals was denied. Letizia filed a motion to vacate the judgment of conviction pursuant to N.Y. Criminal Procedure Law § 440.10 (McKinney 1994) which also was denied as was his motion for reargument. Leave to appeal this ruling to the Appellate Division was denied. Letizia then filed a petition for a writ of error coram nobis with the Appellate Division, asserting that he had been denied effective assistance of counsel and that his Sixth Amendment right of confrontation had been violated. Said motion was denied. While this motion was pending, Letizia filed this Petition seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This Court referred the Petition to Judge Foschio.
Unless otherwise indicated, all references to New York Criminal Procedure Law are to McKinney 1994.
As a preliminary matter, this Court notes that Letizia's Sixth Amendment Confrontation Clause violation claim has not been exhausted and is therefore not before this Court. Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (b), a federal court shall not grant a state prisoner s application for a writ of habeas corpus "unless it appears that the applicant has exhausted the remedies available in the courts of the State ***."
Judge Foschio correctly recognized that Letizia had not exhausted his Sixth Amendment Confrontation Clause violation claim because such had not been included in his application to the New York Court of Appeals. RR at 23. Judge Foschio also correctly noted that, by failing to include his claim for Sixth Amendment violation in his direct review, Letizia is also foreclosed from seeking collateral relief from the New York courts. RR at 23 (citing Strogrov v. Attorney General of the State of New York, 191 F.3d 188, 193 (2d. Cir. 1999)). Therefore and because Letizia "failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted" and a writ of habeas corpus will not issue "unless he can demonstrate cause and prejudice for the default." Washington v. James, 996 F.2d 1442, 1447 (2d. Cir. 1993).
Letizia first argues that he has exhausted his Confrontation Clause violation argument in his writ of error coram nobis. Petitioner's Response to Respondent's Objections to RR ("Response") at 4. Letizia raised this ground in an application to the Appellate Division for such writ on January 13, 1997 and said application was subsequently denied. People v. Letizia, 238 A.D. 967 (4th Dept. 1997). However, Letizia's Confrontation Clause argument was not properly before the Appellate Division because "the writ of error coram nobis lies in [the Appellate Division] only to vacate an order determining an appeal on the ground that the defendant was deprived of effective assistance of appellate counsel." People v. Gordon, 183 A.D.2d 915, 915 (2d Dep't 1992) (citing People v. Bachert, 69 N.Y.2d 593 (1987)). The only way that Letizia could claim that his Sixth Amendment right of confrontation has been exhausted is if effective counsel would have appealed on those grounds. Turner v. Artuz, 2001 U.S. App. Lexis 18269, *12-13 (2d Cir. Aug. 13, 2001). As the Second Circuit Court of Appeals has recently noted, however, a "court considering ineffective assistance might never reach the underlying constitutional claims, and the rejection of the ineffective assistance claim without detailed comments does not bespeak any necessary ruling on the underlying constitutional claim." Id. at 13. Therefore, Letizia's Confrontation Clause claim was not exhausted by his petition for a writ of error coram nobis.
Letizia alternatively asks that this Court hear his case because the Appellate Division in its treatment of his Confrontation Clause violation issues in his application for a writ of error coram nobis did not clearly and ambiguously rely on a state procedural bar in dismissing his application. Response at 4-6. Letizia argues that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989). When the Appellate Division rejected Letizia's Confrontation Clause claim in his writ of error coram nobis proceeding, it simply stated "[m]otion for writ of error coram nobis denied." Letizia, 238 A.D.2d at 967. Therefore, according to Letizia, this Court should address his Confrontation Clause violation claim because the Appellate Division did not clearly and unambiguously rely on state law procedural grounds. Response at 5-6.
What Letizia fails to recognize is that "the writ of error coram nobis lies in this Court only to vacate an order determining an appeal on the ground that the defendant was deprived of the effective assistance of appellate counsel." People v. Gordon, 183 A.D.2d 915, 915 (2d Dep't 1992) (citing People v. Bachert, 69 N.Y.2d 593); Turner v. Artuz, 2001 U.S. App. Lexis 18269 (2d Cir. Aug. 13, 2001). Therefore and because his Confrontation Clause argument was not properly before the Appellate Division to begin with, the Appellate Division did rely on a state procedural bar in denying his claim and this Court will not address it.
However and even after having decided that Letizia's claim that he was denied his Sixth Amendment right to confrontation was not properly exhausted, this Court can still reach the merits of Letizia's claim if he can "either: (1) show cause for the default and actual prejudice as a result of the constitutional violation, or (2) demonstrate that failure to consider the claim would result in a fundamental miscarriage of justice, or, in other words, an unjust incarceration." Spence v. Superintendent, Great Meadow Cor. Fac. 219 F.3d 162 (2d Cir. 2000). The RR found that there was cause for the default which resulted in prejudice and also that there would be a miscarriage of justice if Letizia's claim was not heard. RR at 24-25. This Court, however, rejects that phase of the RR and holds that Letizia has met neither the cause resulting in prejudice test nor the "fundamental miscarriage of justice" test necessary for the merits of this case to be heard.
Internal citations omitted.
Judge Foschio recommended that Letizia's appellate counsel's failure to include his Confrontation Clause argument in his application for leave to appeal to the New York State Court of Appeals constituted ineffective assistance of appellate counsel. RR at 24. He reasoned that, because this ineffective assistance of appellate counsel resulted in procedural default of a meritorious claim, such constitutes the cause necessary to excuse the procedural default for purposes of habeas corpus review, RR at 24-25; Coleman v. Thompson, 501 U.S. 722, 753-54 (1991), and, "where cause is demonstrated based on ineffective assistance of counsel, prejudice is legally presumed." Restrepo v. Kelly, 178 F.3d 634, 641 (2d Cir. 1999). This Court disagrees with such conclusion that there was ineffective assistance of counsel because leave to appeal to the New York Court of Appeals is discretionary — N Y Crim. Proc. Law § 450.90 — and the Supreme Court has specifically declined to extend the right to counsel to post conviction discretionary appeals. Ross v. Moffitt, 417 U.S. 600, 610 (1974). Therefore, because Letizia has not shown the cause resulting in prejudice necessary under Spence, this Court will not address this unexhausted claim.
Internal citations omitted.
This Court also declines to adopt the recommendation that it is necessary to reach the merits of Letizia's claim in order to avoid a fundamental miscarriage of justice. RR at 25. Such can be established by showing that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent" of the crime of which he has been convicted. Murray Carrier, 477 U.S. 478, 496 (1986). The Supreme Court has stated that, in order for there to be a fundamental miscarriage of justice, there needs to be either new evidence of Letizia's innocence or production by Letizia of evidence of his innocence that is so strong that "a court cannot have confidence in the outcome of the trial ***." Schlup v. Delo, 513 U.S. 298, 316 (1995). Here the only new evidence of innocence presented was Johnson's affidavit that he was the sole attacker of Bruno. This Court views this affidavit with suspicion as it was made by a person with an obvious bias against Bruno and who therefore may well be inclined to lie in order to see Bruno's convicted attacker go free. Also, this Court is not convinced that the evidence of Letizia's innocence is so strong as to justify hearing an unexhausted claim. Therefore and because Letizia has not shown that this Court's refusal to hear an unexbausted claim would result in a fundamental miscarriage of justice, this Court will not address his Confrontation Clause violation claim.
This Court adopts the RR's recommendation that Letizia's second ground for relief — viz., that Assistant District Attorney Yvonne Vertlieb concealed exculpatory evidence by not revealing that Bruno had made a deal with her in return for his testimony and then denied that any such deal was made — does not entitle Letizia to habeas corpus relief. RR at 40-42. While Letizia disputes such by arguing that Vertlieb had a subjective expectation during the entire course of the trial that she would recommend that the Nevada Probation department show leniency toward Bruno for helping in Letizia's prosecution — Pet.'s Reply in Supp. of Partial Objections ("Reply") at 2-3; Pet.'s Objections to Portions of RR ("Objection") at 4 —, Letizia has come forward with no evidence that such a deal was made. Therefore, this Court adopts the recommendation that Letizia's application be denied on said ground.
Letizia also objected to the RR to the extent that it denied his writ of habeas corpus on the ground that, when Vertlieb made a deal with co-defendant Johnson, she improperly influenced him not to testify on Letizia's behalf. RR at 42-44. The only evidence Letizia puts forth on this point is an affidavit by Johnson attesting to such acts by Vertlieb. Reply at 3-4; Objection at 5-7. Johnson's word cannot be taken on its face as his intense dislike for Bruno is obvious, based on the fact that he admitted attempting to kill him. Therefore, Johnson would have a strong motive to lie in order to help Bruno's convicted attempted murderer escape his conviction. For that reason and the reasons listed in the RR at 42-43, this Court adopts the recommendation that Letizia's claim that Vertlieb improperly influenced Johnson not to testify on Bruno's behalf should be dismissed.
Letizia's third objection to the RR is that Vertlieb used perjured testimony in that she allowed Bruno to testify that Letizia had participated in the attack even though she knew that he had originally identified only Johnson as the attacker. Reply at 4; Objection at 8. This Court rejects this claim and adopts that portion of the RR for the reasons given therein. RR at 45. This Court also adopts the recommendation that Vertlieb's failure to turn over to the Crime Victims Compensation Board Bruno's statement that only Johnson was the attacker — a possible Brady violation — does not warrant a granting of habeas corpus relief in that such information would be merely cumulative because Bruno admitted in the witness box that he originally identified only Johnson as the attacker. RR at 46-47.
Letizia next objects to the recommended denial of his habeas corpus petition on the ground that New York Supreme Court Justice Kubiniec gave the "two inference" jury charge which has been specifically condemned by the Second Circuit Court of Appeals. Reply at 6; Objection at 13. This Court adopts the recommendation that, even though this jury charge was impermissible, the surrounding language cleared up any defect. RR at 48-57. Therefore, Letizia's petition is denied as to this ground.
Letizia's final two objections are based on the recommended finding that he had not been deprived of his Sixth Amendment right to effective counsel at either the trial or the appellate level. RR 52-62. As with Letizia's Sixth Amendment Confrontation Clause violation argument, his ineffective assistance of trial counsel contention was not included in his application for leave to appeal to the Court of Appeals and therefore is unexhausted. RR at 25. This Court also adopts the RR's recommendation that Letizia has failed to show cause resulting in prejudice or that there has been a miscarriage of justice sufficient for the hearing of an unexhausted claim. RR at 53-54.
Letizia then objected to the recommendation that he had not been denied ineffective assistance of appellate counsel because his appellate counsel had not appealed the introduction of a knife for which the chain of custody had not been established. Reply at 7-8; Objection at 16-18. This Court adopts the RR's recommendation that the admission of the knife did not deny him a fundamentally fair trial such that failure to argue it on appeal would have denied him his right to effective assistance of appellate counsel. RR at 59-60. This is because, as Judge Foschio has observed, any possible tampering with the knife would not go to its admissibility but rather to the weight given to it by the jury. Id. at 61-62. Therefore, this Court will deny Letizia's habeas petition on this ground.
Because this Court will deny Letizia's petition for a writ of habeas corpus, Letizia's application for bail will also be denied.
It is hereby ORDERED that Magistrate Judge Foschio's Report and Recommendation is not adopted to the extent that it recommends granting petitioner's habeas corpus petition, that it is adopted to the extent that it recommends that petitioner's habeas corpus petition be denied, that petitioner's application for bail is denied and that this case shall be closed.