Opinion
02 CV 4496 (JG).
December 3, 2004
ROBERT MACK, Cocksackie, New York, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Morgan J. Dennehy, Assistant District Attorney, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Robert Mack seeks habeas corpus relief from his conviction for criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the seventh degree, entered after a jury trial in state court. I held oral argument on November 19, 2004. For the reasons set forth below, the petition is denied.
BACKGROUND
The evidence at trial established that on May 17, 1999, Detective Joseph Doherty, as part of a team of detectives, conducted a "buy and bust" operation. Doherty was approached on the street by a woman who then took him to apartment 2R at 1274 Decatur Street in Brooklyn. In the apartment, Doherty witnessed Mack give one glassine envelope of heroin to Jimmy Gonzalez in exchange for money. Doherty then informed a member of his back-up team that Gonzalez had made a purchase. In response, police officers stopped and searched Gonzalez and found a glassine bag of heroin. While Gonzalez was in custody on the street, Doherty identified him as the buyer from the apartment.
The next day, another detective from the team, Thomas Garrity, obtained a search warrant for apartment 2R at 1274 Decatur Street, where Doherty had witnessed the sale. (Trial Tr. at 459.) On May 25, 1999, the police executed the warrant and recovered from inside the apartment eight glassine bags, three with heroin in them, and two ziplock bags of crack cocaine. They also recovered $20 from the fire escape outside of the kitchen window, as well as 50 glassine bags of heroin, weighing over one-eighth ounce in total, and $375 in cash in the backyard underneath that window. Mack was the only person in the apartment at the time the warrant was executed.
Mack was charged with third and fifth degree criminal sale of a controlled substance, two counts of third degree criminal possession of a controlled substance, fifth degree criminal possession of a controlled substance and four counts of seventh degree criminal possession of a controlled substance.
A. Jury Selection and Trial
Jury selection began on February 23, 2000. The trial court judge asked Mack's trial counsel, Winston Gordon, twice whether Mack would agree to a waiver of his rights under People v. Antommarchi, 80 N.Y.2d 247 (1992). In Antommarchi, the New York Court of Appeals held that a defendant's "fundamental right to be present during any material stage of the trial" is violated when the defendant is not present during sidebar discussions "explor[ing] prospective jurors' backgrounds and their ability to weigh the evidence objectively." Id. at 250. Gordon responded, "He's not waiving his Antommarchi." (Trial Tr. 12.)
Although Mack challenges on this petition only the last of the bench conferences that occurred during jury selection, I briefly describe below all of the bench conferences. In the first round of jury selection, after voir dire, the trial judge asked the jurors to leave the courtroom. ( Id. at 169-70.) The court then proceeded with "for cause" and peremptory challenges. During the course of the challenges, the attorneys approached the bench for a conference off the record three times. ( Id. at 172, 174, 179.) The first time, a juror was challenged for cause by Mack's attorney on account of a hearing problem. The prosecutor first disputed the existence of such a problem, but after a conference off the record, the prosecutor consented to striking the juror. (Trial Tr. 172.) The second conference followed a statement by Mack's attorney that "I would like to raise a little issue because I see the district attorney is preempting (sic) a classified group of people who basically gave the same type of response like other members of the jury." ( Id. at 174). After the conference off the record, Mack's counsel stated on the record, "Okay, I will withdraw the Batson application that I made earlier." ( Id. at 175.) The final bench conference occurred after the first three jurors were announced by the court clerk (without the prospective jurors being present). After the conference off the record, Mack's attorney announced that one of the prospective jurors would be the second alternate. At the end of the first round of jury selection, three jurors and the second alternate were empaneled.
The same procedure was followed again for the second round of jury selection, and at the end of the questioning, the judge once again asked the prospective jurors to step outside the courtroom. ( Id. at 283.) During the second round of challenges, two "bench conference[s] [were] held off the record." ( Id. at 286, 293.) One was held before seven jurors were empaneled. After the second conference, a prospective juror, Donna Reilly, was named as a possible first alternate. ( Id. at 293.)
The third and final round of jury selection then took place. At the end of the questioning, the judge asked the prospective jurors to exit the courtroom, and then asked counsel to "come up for a second." ( Id. at 342.) The transcript again notes that "a bench conference was held off the record." ( Id.) The court then requested that Mack's attorney "put it on the record." ( Id.) Mack's attorney announced the last two jurors selected and confirmed Reilly as the first alternate. (Trial Tr. 342-43.) The challenges "for cause" and the peremptory challenges were not made on the record in this last round.
B. Procedural History
On March 1, 2000, the jury convicted Mack of one count of third degree criminal sale of a controlled substance (based on the sale to Gonzalez) and two counts of seventh degree criminal possession of a controlled substance. On April 6, 2000, he was sentenced as a second violent felony offender to a five to ten-year term of imprisonment for the sale and a one-year term for each possession count, to run concurrently. Mack timely appealed the conviction on the ground that his right to be present at and to participate in jury selection, which is a material stage of his trial, was denied in the third round of jury selection when the last two jurors were chosen outside his presence and without giving him an adequate opportunity for his input.
The Appellate Division, Second Department, affirmed the conviction, holding that
a presumption of regularity attaches to all judicial proceedings, and the defendant bears the burden of rebutting that presumption. Here, the defendant failed to rebut the presumption of regularity. The transcript indicates that the sidebar conferences were conducted in the defendant's presence, in the courtroom, albeit off the record and at the bench. There were no prospective jurors in the courtroom and, presumably, relevant discussions were conducted in normal conversational tones. As there is no indication in the record from which to infer that the defendant was unable to hear the relevant proceedings, he failed to establish that he was, in fact, denied the right to be present during jury selection.People v. Mack, 741 N.Y.S.2d 445, 445-46 (2d Dep't 2002) (citations omitted). Mack requested leave to appeal on this ground, which was denied on July 23, 2002. People v. Mack, 98 N.Y.2d 699 (2002).
On June 10, 2002, before leave to appeal was denied, Mack filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10(1) on the ground that the prosecutor knowingly adduced perjured testimony from police officers at trial with respect to whether the officers used "Kel devices" — which transmit oral conversations to nearby officers — during "buy and bust" operations, and whether certain officers had known Mack because they had previously arrested him.
While that motion was pending, Mack sought habeas corpus relief from this Court in petitions dated August 1, 2002 and August 4, 2002, which are jointly treated here as a single petition. Together they raise two claims: (1) Mack was deprived of his right to be present at a critical stage of his trial (i.e., the jury selection claim); and (2) the government failed to disclose a police report (or reports) concerning his arrest that, Mack further claims, would have been useful to him at trial. Specifically, Mack alleges that his name was not mentioned in the arrest report(s), a fact he could have used at trial in cross-examining Doherty.
Both of Mack's submissions indicated that he had filed a § 440.10 motion in state court alleging that the prosecutor had knowingly used false testimony at his trial. On November 1, 2002, Mack's petition was stayed pending the exhaustion of this latter claim. Mack v. Cotello, 02 Civ. 4496, (Bloom, M.J. November 1, 2002). On December 24, 2002, the New York Supreme Court denied the § 440.10 motion. People v. Mack, Ind. No. 4328/99 (N.Y.Sup.Ct. Dec. 24, 2002). Mack failed to seek leave to appeal that denial to the Appellate Division, Second Department.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "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). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
Habeas relief is also warranted where the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2). That subsection is not relevant here.
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." Id. at 2151.
Under the "unreasonable application" standard set forth in Williams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
The Supreme Court has explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":
[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.Alvarado, 124 S. Ct. at 2149.
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
B. Mack's Claims
1. Right to be Present at Jury Selection and Sidebar Conferences
A criminal defendant has the right "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15 (1975). The right is rooted in the Sixth Amendment and in the Due Process Clause, with the latter applying "in situations where the defendant is not specifically confronting witnesses or evidence against him." United States v. Jones, 381 F.3d 114, 121 (2d Cir. 2004) (citing United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam)). The Second Circuit has held that "pre-screening of prospective jurors is a material stage of trial at which the defendant has a constitutional right to be present." Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002).
However, the right to be present is not absolute: "the defendant's absence is reversible error only where it would have a `relation, reasonably substantial, to his opportunity to defend.'" Clark v. Stinson, 214 F.3d 315, 323 (2d Cir. 2000) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Here, there was no such relationship between Mack's absence from the final bench conference during jury selection and his opportunity to defend his case. At oral argument on November 19, 2004, Mack confirmed what seems apparent from the record: to the extent he was "absent" at all, it was only for his attorney's (and the prosecutor's) exercise of their challenges to prospective jurors in the final round of jury selection. Mack was able to view each juror during the voir dire and to consult with his attorney about his challenges. He was apprised in open court of the results of the challenges. Thus, even assuming that the bench conference occurred outside of Mack's hearing, his rights were not violated because he did not have a constitutional right to be present for the exercise those challenges. Cohen, 290 F.3d at 490.
Also at oral argument, Mack raised a different basis for his inability to participate in jury selection: he was unable to understand the proceedings because he was in "de-tox," and he was mentally unable to participate in his defense. This claim arose for the first time at oral argument. Because Mack has not raised it in state court, I will not address it here.
In sum, though I remain mystified by the practice of having any proceedings in a criminal trial off the record — let alone events as critical as peremptory challenges and other jury selection matters — the state court's decision that Mack's right to be present during material stages of his trial was not violated was neither contrary to nor an unreasonable application of federal law.
2. Failure to Disclose Police Reports
Mack raises for the first time in his petition a claim that the prosecution withheld police reports that would have assisted in his defense at trial. The claim is both unexhausted, which in this case bars habeas relief, and without merit.
Before a federal court may consider a state prisoner's claim for habeas corpus relief, the petitioner must have exhausted all available state judicial remedies. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275 (1971). In other words, a petitioner must have fairly presented his federal constitutional claims to the highest state court. Daye v. Attorney Gen., 696 F.2d 186, 191 n. 3 (2d Cir. 1982) (in banc). A petitioner has fairly presented a claim if he or she apprised the state courts of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Id. Even if a petitioner raises precisely the same legal claims in state and federal proceedings, reliance in the two proceedings upon different factual grounds that fundamentally alter the legal claim will foreclose a conclusion that the claim is exhausted. Vasquez v. Hillery, 474 U.S. 254, 260 (1986); see also Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir. 2003) ("A petitioner has `fairly presented' his claim only if he has informed the state court of both the factual and the legal premises of the claim he asserts in federal court." (quotation marks omitted)). In other words, the claim presented to the state court "must be the substantial equivalent of the claim raised in the federal habeas petition." Keane, 329 F.3d at 295 (quotation marks omitted). Furthermore, "the basic requirement remains that `the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature.'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye, 696 F.2d at 192).
Here, Mack has not raised any claim in his state court proceedings that is remotely related to the Brady claim presented in his petition. Although he alleged in his § 440 motion that the prosecutor had knowingly elicited perjury, his claim that the failure to produce police reports from the night of his arrest has never been presented to any state court. It is therefore unexhausted.
Moreover, Mack has procedurally defaulted this claim, since New York's procedural rules now bar him from raising it in New York courts. Further direct review by the Court of Appeals is no longer available, see N.Y. Rules of Court, Court of Appeals, § 500.10(a) (authorizing only one request for review of conviction), and the failure to have raised the claim on direct review now forecloses further collateral review in state court, see N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if claim could have been raised on direct review). When a habeas petitioner no longer has any state remedies available to him (i.e., when a petitioner has defaulted his federal claim in state court), such claims are deemed exhausted even though the state courts have had no opportunity to previously consider them. A federal court need not require that a federal claim be presented to a state court if the state court would hold the claim to be procedurally barred. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) ( citing Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)).
Because a state procedural bar represents an adequate and independent state ground for deciding the claim against the petitioner, however, a federal habeas court may review a procedurally barred claim on the merits only if the petitioner demonstrates cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). Since Mack has not attempted to meet this standard, his claim is barred from review.
In any event, the claim is without merit. In a criminal prosecution, the government has a constitutional obligation to disclose material, exculpatory evidence to the defendant. See Giglio v. United States, 405 U.S. 150, 154 (1972); Brady v. Maryland, 373 U.S. 83 (1963). Exculpatory evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler v. Greene, 527 U.S. 263, 280 (1999) (quotation marks omitted). To merit relief, the nondisclosure must "undermine confidence in the outcome of the trial." Kyles v. Whitly, 514 U.S. 419, 434 (1995) (quotation marks omitted). The "individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police." Kyles, 514 U.S. at 437; see also Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (assuming that state protective-service agency files could be Brady material).
For purposes of the government's responsibilities under Brady, the Supreme Court draws no distinction between impeachment evidence and exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985) ("Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule. Such evidence is `evidence favorable to an accused,' so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." (citations omitted) (quoting Brady, 373 U.S. at 87)).
Mack claims that access to the police reports, which he alleges do not name him, would have changed the outcome of his trial, and perhaps even precluded the government from indicting him. (Pet'r Reply dated October 13, 2004 at 2-3.) This conclusion is untenable given the evidence presented at trial. First, Doherty testified that he saw Mack sell heroin to Gonzalez. Second, when the search warrant was executed at the apartment where the sale was made, Mack was the only one present, drugs were in plain view in the apartment and the circumstances strongly suggested that Mack had tossed drugs and money out the window. In other words, the proof against Mack was overwhelming. Even if the police reports did not name him, that fact would not undermine confidence in the outcome of the trial. See Kyles, 514 U.S. at 434.
Though Mack never formally amended his petition to assert this claim, the petition was stayed to permit him to exhaust it. Moreover, respondent had proposed a stay in its opposition to the petition, arguing that the misconduct claim was made in Mack's original habeas petition and that the same claim was still pending in his § 440.10 motion in state court. (Feigus Aff't ¶¶ 12-13.) Therefore, I see no prejudice to respondent in allowing Mack to pursue it.
In his § 440.10 motion, Mack claimed that the prosecutor knowingly presented false testimony that (1) the officers did not use Kel transmitting devices during "buy and bust" operations; and (2) the officers did not know Mack from previous encounters.
"A conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." Napue v. Illinois, 360 U.S. 264, 269 (1959) (citations omitted). The same is true when the government, "although not soliciting false evidence, allows it to go uncorrected when it appears." Id. Under this standard, I must set aside Mack's conviction if "the prosecution knew, or should have known, of the perjury," and "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976). The Second Circuit has declined to "draw the contours of the phrase `should have known.'" Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003). Because the Supreme Court has not clearly established that habeas relief is available in the complete absence of prosecutorial knowledge of perjury, I may not, consistent with § 2254(d)(1), grant relief on this ground. See id. at 345 n. 2 (AEDPA overrules Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988), which granted habeas relief in the absence of prosecutorial knowledge of perjury). In any event, given Mack's failure to demonstrate that any material false testimony occurred, this issue is not dispositive.
The New York Supreme Court denied Mack's § 440.10 motion on the grounds that the issue could have been raised during the trial so as to create a record of facts allowing for adequate review of the claim, and that Mack did not demonstrate that there was good cause for his failure to do so. (Dennehy Decl., Ex. E at 2-3). The court also found the claim to be meritless, holding that a judgment may only be vacated "on the ground that the prosecutor knowingly adduced false material evidence" and that "the evidence at issue here is not material to the jury's determination of whether defendant possessed the drugs." ( Id. (emphasis added.)) Finally the court held that Mack did not "substantiate the essential facts upon which the motion is based, i.e., that the officers' testimony was false, and that the prosecutor knew it was false." ( Id. (quotation marks and citations omitted.))
I agree. First, Mack has not supported his allegations of prosecutorial misconduct with evidence either of false testimony by the police or knowledge by the prosecutor that the police testimony was not true. Second, he has failed to establish the materiality of the issues involved, i.e., whether a transmitting device was in use or whether the officers had known Mack. Third, as discussed above, there was powerful evidence supporting the jury's determination that Mack sold and possessed the drugs at issue. Thus, the state court's rejection of this claim was neither contrary to nor an unreasonable application of federal law.
CONCLUSION
For the foregoing reasons, the petition is denied. As Mack has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.