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rejecting similar habeas claim based on affidavit from eyewitness disputing defendant's presence at crime scene
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97-CV-2001 (JG)
August 22, 2002
Carlos Marino, No. 89-A-3123, Eastern Correctional Facility, Napanoch, NY, Petitioner Pro Se.
Richard A. Brown, District Attorney, John M. Castellano, Robin A. Forshaw, Assistant District Attorneys, Queens County, Kew Gardens, NY, for Respondent.
MEMORANDUM AND ORDER
After a jury trial that commenced on October 24, 1989, a Queens County jury found petitioner Carlos Marino guilty of murder in the second degree, in violation of New York Penal Law § 125.25[1], and criminal possession of a weapon in the second degree, in violation of New York Penal Law § 265.03. Marino was sentenced to concurrent terms of from twenty-five years to life for murder and from five to fifteen years for criminal possession of a weapon. Marino petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that: (1) the prosecutor's failure to disclose before trial the names of witnesses who had identified his photograph deprived him of highly probative impeachment material; (2) the combined effect of the ineffective assistance of trial counsel, prosecutorial misconduct, and the court's favoritism of the state and its hostility towards the defense in questioning witnesses denied him a fair trial; (3) newly discovered evidence establishes his innocence; (4) the court's denial of his counsel's request for an adjournment denied him the right to a fair trial and the right to present an adequate defense; and (5) his trial counsel was ineffective in failing to discover evidence that would have established his innocence.
Marino included the first three grounds in his habeas corpus petition. By order dated February 16, 1999, I granted his application to amend his petition by adding the fourth and fifth claims.
The Facts
At about 4:20 a.m. on March 13, 1989, Fillipe Euse and his friend Luz Ramirez arrived at the Matecana Bar in Queens. They saw Carlos Marino at the bar and they proceeded to a table. After about five minutes, Marino approached Euse, along with two friends, and commented that Euse had money to drink but did not have money to pay Marino's brother the money he owed him. Marino then punched Euse, and Marino's friends pulled him away. Afterwards, Euse told Ramirez that the dispute concerned the money Euse owed to Marino's brother-in-law. (Tr. at 111-12, 114-15.)After the altercation, Euse's wife, Rosa Araujo, arrived at the bar and Ramirez left about ten minutes later. While Euse and Araujo were seated together, Araujo saw Marino, whom she had known for five years as "Giovanni," approaching their table. She said to Euse, "look, here comes Giovanni." As Marino neared, he took out a gun and began firing numerous shots at Euse. Euse stood up and tried to walk, but was unable to do so. (Tr. 40-41, 50-51, 54-55, 113.)
After the shooting, many patrons of the bar fled and Araujo tried to get an ambulance. The police arrived about fifteen minutes later. Sergeant Steven Wolmer went to the back of the bar, where he saw Euse lying face up in a pool of blood with Araujo crouching over him, screaming and crying. Soon, an ambulance arrived and Euse was transported to Elmhurst Hospital. Euse died that day, the cause of death being multiple bullet wounds to the face, neck, spine, spinal cord, chest, spleen, kidney, stomach, and intestine. The next day, Sergeant Wolmer identified Euse at the Queens County Morgue as the person who was shot at the Matecana Bar. (Tr. at 57, 288, 292, 321-23, 325-26.)
Marino was charged with one count of murder in the second degree, in violation of New York Penal Law § 125.25[1], and one count of criminal possession of a weapon in the second degree, in violation of New York Penal Law § 265.03.
Procedural History A. The Wade Hearing
In September and October of 1989, a Wade hearing was held to determine the admissibility of Araujo's testimony that she had identified Marino on the day of the arrest at the police precinct.
At the hearing, Detective Kenneth Allman testified that four days after the shooting, he was working at the Manhattan C.A.T.C.H. Unit when he spoke with two witnesses, one of whom was Araujo. He separated the witnesses and gave each a drawer of photographs containing pictures of Hispanic males in their early twenties. From the photographs, one witness identified Marino as the shooter. Detective Allman took the photograph of Marino and mixed it with others that resembled it. He then showed that assortment of photographs to the other witness. From the assortment, the other witness identified the photograph of Marino. As a result, Detective Keating made a wanted poster of Marino, which was distributed in the Tenth Precinct in Manhattan.
It was revealed at trial that the other witness was Marvin Ramirez.
Police Officer Henry Bengel testified that on April 9, 1989, he was on duty in the Tenth Precinct in Manhattan. At about 7:30 p.m., he received notice by radio that a male wanted for homicide was on Eighth Avenue and Sixteenth Street. Shortly thereafter, while members of the Anti-Crime Unit were showing him the wanted poster of Marino, Officer Bengel saw Marino walking in that area and he apprehended him.
Sergeant Paul Destefano testified that he then took custody of Marino at the Tenth Precinct and transported him to the 115th Precinct in Queens. There, an anonymous witness did a showup, identifying Marino through a one-way mirror.
Araujo also testified at the Wade hearing and made an in-court identification of Marino.
At the close of the hearing, the court concluded that the showup conducted at the 115th Precinct was unduly suggestive, but that Araujo's photographic identification of Marino was admissible, as was her in-court identification of him.
B. The Trial
October 24, 1989, Marino proceeded to a jury trial before Justice Ralph Sherman of the Queens County Supreme Court. The state called ten witnesses, including Luz Ramirez and Araujo. Marino's defense was that he was not present at the time of the shooting. He called three witnesses to testify in support of his theory that two unknown men shot Euse. These witnesses were Monica Jiminez, the barmaid on duty during the incident; Albert Peppers, a latent fingerprint expert; and Robert Breglio, a ballistics expert.
Jiminez testified that she saw two unknown men go to the rear dance floor area where Euse was and about two minutes later, she heard shots and saw Euse on the floor. Peppers testified that none of the three latent fingerprints at the crime scene belonged to Marino. Breglio testified that he was unable to conclude that the three spent bullets at the crime scene all came from the same weapon, thereby supporting Marino's theory that more than one person shot Euse.
On November 2, 1989, the jury convicted Marino of murder in the second degree and criminal possession of a weapon in the second degree. On December 4, 1989, Marino was sentenced to concurrent terms of from twenty-five years to life for murder and from five to fifteen years for criminal possession of a weapon.
C. The Direct Appeal
Marino appealed his conviction to the Appellate Division, Second Department, raising two grounds: (1) the prosecutor's failure to disclose before trial the names of witnesses who had identified his photograph deprived him of highly probative impeachment material; and (2) the combined effect of the ineffective assistance of trial counsel, prosecutorial misconduct, and the court's favoritism of the state and its hostility towards the defense in questioning witnesses denied him a fair trial. Marino claimed, inter alia, that his counsel was ineffective in failing to investigate the case adequately. On April 19, 1993, the Appellate Division affirmed Marino's judgment of conviction. See People v. Marino, 597 N.Y.S.2d 95 (2d Dep't 1993). Regarding Marino's ineffective assistance of counsel claim, the court stated that
trial counsel proceeded in as effective a manner as possible in view of the overwhelming evidence of the defendant's guilt. He made appropriate pretrial motions and obtained a Wade hearing. At trial, counsel vigorously cross-examined the People's witnesses, raised appropriate objections, delivered opening and closing statements consistent with his mistaken identity defense, and presented an expert witness on the defendant's behalf. In sum, the defendant received meaningful representation.Id. at 95 (citations omitted).
The court further held that "the Trial Judge's participation in the questioning of witnesses was generally appropriate and did not rise to such an extent as to deny the defendant a fair and impartial trial." Id. at 96 (citations omitted). Finally, the court held that "defendant's remaining contentions are either unpreserved for appellate review or without merit." Id.
On May 14, 1993, Marino applied for leave to appeal to the New York Court of Appeals on two grounds: (1) the prosecutor's failure to timely reveal the identifying witnesses' names deprived him of impeachment material; and (2) the trial court erred when it denied his counsel's request to adjourn the trial on the ground that his counsel was ill and unprepared to proceed to trial. On June 28, 1993, the New York Court of Appeals denied his application. See People v. Marino, 601 N.Y.S.2d 596 (N.Y. 1993).
D. The Motion to Vacate the Judgment of Conviction
On or about December 31, 1992, Marino moved pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 to vacate his judgment of conviction on the grounds of ineffective assistance of trial counsel and newly discovered evidence. As in his direct appeal to the Appellate Division, Marino claimed that his counsel was ineffective in failing to investigate the case adequately. He contended that the affidavits of two new witnesses, Jaime Londono and Marino's wife, Bibiano Hernandez, constituted newly discovered evidence under C.P.L. § 440.10(g).
In his affidavit, Londono stated that (i) he knew Euse and Marino; (ii) on the date of the shooting, he sat at a table with Euse and Araujo and saw three men approach, one of whom shot Euse; and (iii) at the time of the shooting, Marino was not present. He further stated that "[f]or several months subsequent to the shooting, I was incapable of being contacted by anyone connected to the case because Araujo did not know where I lived or with whom I was associated, on [sic] one in the Matecana Bar knew me, and I did not have a telephone."
In her affidavit, Bibiano Hernandez testified about (i) how she learned that Londono was at the bar during the shooting; and (ii) the efforts she made to locate him prior to the conclusion of Marino's trial.
On December 16, 1993, Marino's § 440.10 motion was denied. The court held that his ineffective assistance of counsel claim was procedurally barred because it had been rejected on the merits by the Appellate Division. It further held that his newly discovered evidence claim was without merit because: (i) the proposed testimony would not have created a probability of a more favorable verdict; (ii) Marino made an insufficient showing that due diligence was exercised to obtain the proposed testimony; and (iii) the proposed testimony would have been cumulative to other evidence presented at trial.
Having failed to make a timely motion to appeal this decision, Marino moved on May 9, 1994 for an extension of time to appeal. The Appellate Division denied his motion on July 27, 1994.
E. The Instant Petition
On April 14, 1997, Marino filed the instant petition for a writ of habeas corpus. His petition raises three claims: (1) the prosecutor's failure to disclose before trial the names of witnesses who had identified his photograph deprived him of highly probative impeachment material; (2) the combined effect of the ineffective assistance of trial counsel, prosecutorial misconduct, and the court's favoritism of the state and its hostility towards the defense in questioning witnesses denied him a fair trial; and (3) newly discovered evidence established his innocence.
See Houston v. Lack, 487 U.S. 266, 276 (1988) (where a prisoner is proceeding pro se, he is deemed to have filed a document on the date he delivered it to prison authorities for forwarding to the court clerk).
On July 29, 1997, the state moved pursuant to 28 U.S.C. § 2244(d)(1) and Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), to dismiss his petition as time barred. By Memorandum and Order dated October 8, 1997, I granted the motion to dismiss the petition as untimely, finding that Marino had waited an unreasonable time after his conviction became final to file the petition. Marino moved for a certificate of appealability from the Second Circuit. By order dated September 25, 1998, the Second Circuit denied his request as moot, but vacated my October 8, 1997 order in light of Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), and remanded the case to me for further proceedings.
In Ross v. Artuz, the Second Circuit held that a prisoner must be afforded a one-year grace period from the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") (effective April 24, 1996) in which to file for federal habeas relief.See id. at 103. Accordingly, Marino's habeas filing, which occurred between April 14 and 18, 1997, is timely because it came within the April 24, 1997 deadline.
By letter dated January 19, 1999, Marino moved to amend his habeas petition to include two additional claims: (4) the trial court's denial of his counsel's request for an adjournment denied him the right to a fair trial and the right to present an adequate defense; and (5) trial counsel was ineffective in failing to discover evidence that would have established Marino's innocence. By order dated February 16, 1999, I granted Marino's application to amend the petition.
For the reasons set forth below, Marino's petition, as amended, is denied.
Discussion A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("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).
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. Under the latter standard, "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 v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citing Williams, 529 U.S. at 411). 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." Id. (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted)).
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 inSellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001):
[f]or 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.Id. at 312.
B. Marino's Claims
As detailed below, each of Marino's claims is either procedurally defaulted or without merit because the state court's decision was neither contrary to nor an unreasonable application of clearly established Federal law. See Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411).
The Failure to Disclose Impeachment Material
Marino's first claim is that he was deprived of highly probative impeachment material by the prosecutor's failure to disclose before trial the names of witnesses who had identified Marino's photograph. Before the suppression hearing, the prosecutor gave Marino a redacted copy of the police report describing the photographic identification in this case. The report indicated that: (i) two witnesses looked through drawers of photographs; (ii) one witness identified a photograph of Marino as the shooter; (iii) that photograph was then mixed with photographs of similar-looking Hispanic men; and (iv) the other witness identified Marino's photograph from the mix. At trial, the unredacted report was disclosed, revealing that the first witness to identify Marino was Ramirez and that the second was Araujo. Marino contends that had he known the names of the witnesses at the time of the Wade hearing, he could have impeached Arajuo's testimony at that hearing that she had been the first of the two witnesses to identify Marino.
Marino raised this claim on direct appeal to the Appellate Division, which held that it was either unpreserved for appellate review or without merit. See People v. Marino, 597 N.Y.S.2d 95 (2d Dep't 1993). Marino then included this claim in his application seeking leave to appeal to the Court of Appeals, which was denied. See People v. Marino, 601 N.Y.S.2d 596 (N.Y. 1993). Thus, Marino has properly exhausted the claim.
The failure to fulfill a disclosure obligation "can implicate constitutional rights if it violates the due process mandates of Brady v. Maryland , 373 U.S. 83 (1963), and its progeny." Houston v. McGinnis , No. CV 97-6862, 1999 WL 1129613, at *8 (E.D.N.Y. Oct. 13, 1999). Brady requires the disclosure of evidence that is material either to guilt or punishment, and prior statements by crucial trial witnesses that radically differ from their testimony to the jury. Id. (citing Kyles v. Whitley , 514 U.S. 419, 442-45 (1995)). "There are three components of a trueBrady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Boyette v. Lefevre , 246 F.3d 76, 89 (2d Cir. 2001) (citing Strickler v. Greene , 527 U.S. 263, 281-82) (1999)). Favorable evidence is material, and constitutional error results from its suppression, "if there is a reasonable probability that, had the evidence been disclosed to the defense the result of the proceeding would have been different." United States v. Bagley , 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.); id. at 685 (White, J., concurring in part and concurring in judgment); see also United States v. Coppa , 267 F.3d 132, 146 (2d Cir. 2001) (holding that "material required to be disclosed by Brady and Giglio is material, which, if not disclosed, creates a reasonable probability of altering the outcome").
Marino fails to show that the names of the identification witnesses would have been impeachment material at trial. First, because Araujo did not testify about the photographic identification procedure at trial, there was no opportunity for Marino to impeach her with the alleged inconsistency. Second, Marino's alleged inconsistency is without merit because Araujo never testified at the Wade hearing that she was the first witness to identify Marino's photograph. Accordingly, there is no reasonable probability that had the names of the two witnesses been disclosed sooner, the result of the trial would have been different. See Bagley , 473 U.S. at 682. At the very least, the Appellate Division's decision on this issue is neither contrary to nor an unreasonable application of clearly established federal law.
At the Wade hearing, Araujo testified that she identified Marino from a mix of photographs and then gave that photograph to the police officer. The court then asked her whether that picture was given to the other witness, or what the policeman did with the picture, but she never answered the question because it drew an objection from the prosecutor, which the court sustained. Marino's attorney then sought to get an answer to the question, but upon the prosecutor's consent not to call the second identification witness at trial, Marino's counsel consented to the prosecutor's objection.
2. Ineffective Assistance of Trial Counsel, Prosecutorial Misconduct, and Court Hostility
Marino's second claim is that the combined effect of the ineffective assistance of trial counsel, prosecutorial misconduct, and the court's favoritism of the state and its hostility towards the defense denied him a fair trial. Specifically, he lists the following four grounds: (i) defense counsel was incompetent because he was ill and unprepared for trial; (ii) the court favored prosecution witnesses and was hostile towards defense witnesses in questioning them; (iii) the prosecutor intentionally provoked a highly emotional outburst by Araujo and made comments designed to scare the jury; and (iv) the prosecutor's comments exceeded the bounds of fair advocacy.
a. The Exhaustion Requirement
Before a court can grant a petition for a writ of habeas corpus, the petitioner must exhaust all available state judicial remedies. See 28 U.S.C. § 2254; see also Coleman v. Thompson, 501 U.S. 722, 731 (1991) ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.") (citing Ex parte Royall, 117 U.S. 241 (1886)). In order to exhaust his state remedies, a petitioner must fairly present his federal constitutional claims to the highest state court. See O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1731 (1999).
Section 2254 provides, in pertinent part:
(b)(1) 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 unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
b. The Procedural Bar
Although Marino raised each of the grounds of his second claim in his direct appeal to the Appellate Division, he failed to include any of these grounds in his application seeking leave to appeal to the Court of Appeals. Although at the end of his leave application, he stated that "I am enclosing herewith a copy of the briefs filed in the Appellate Division and that Court's decision and order," this language was insufficient to present any claims not specified in the application itself. See Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991) (holding that where petitioner's letter seeking leave to appeal to the Court of Appeals mentioned one claim, and the petitioner attached his Appellate Division briefs, which raised two additional claims, only the claim raised in the letter was properly exhausted). Thus, Marino has failed to exhaust his second claim.
However, the claim is deemed exhausted because it is procedurally barred from presentation to a state court. A federal claim is procedurally defaulted when a prisoner has "failed to meet the State's procedural requirements" for presenting it and has therefore "deprived the state courts of an opportunity to address [the claim] in the first instance." Coleman, 501 U.S. at 732. "For exhaustion purposes, `a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim 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)).
At this stage, New York procedural rules bar Marino from attempting to raise his sufficiency claim. Since Marino has already made the one request for leave to appeal to which he is entitled, he can no longer seek leave to appeal this claim to the Court of Appeals. See C.P.L. § 500.10(a). Collateral review of this claim in state court is also barred because "sufficient facts appear on the record of the proceedings underlying the judgment" to have permitted Marino to raise the claim on direct appeal. See C.P.L. § 440.10(2)(c) (barring review if a claim could have been raised on direct review). Because a state court would find Marino's unexhausted claim procedurally barred from state review, it is deemed exhausted. See Grey, 933 F.2d at 120-21.
Ordinarily, federal courts may not review procedurally barred claims unless the petitioner can show both cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989); see also Lee v. Kemna, 122 S.Ct. 877, 885, 888 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question" (citation omitted)).
A petitioner may establish cause by showing "that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable." McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's actual and substantial disadvantage. See Amadeo v. Zant, 486 U.S. 214, 222 (1988). If the petitioner cannot show cause and prejudice, the failure to raise the claim in an earlier petition may nonetheless be excused if her or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. A fundamental miscarriage of justice requires a showing of "clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner [guilty]." Sawyer v. Whitley, 505 U.S. 333, 335 (1992).
Marino fails to provide a basis for cause and I do not find that a fundamental miscarriage of justice will result if I decline to entertain his claim. Thus, his second claim is denied due to the procedural default.
In any event, the claim is without merit because there was overwhelming evidence at trial, including eyewitness testimony, that Marino killed Euse. Nothing in the record suggests that trial counsel's performance fell below an objective standard of reasonableness or that there is a reasonable probability that, absent any error on the part of trial counsel, the verdict would have been different. See Strickland v. Washington, 466 U.S. 668, 684, 695 (1984) (to satisfy a claim of ineffective assistance of counsel, petitioner must establish that counsel's performance was deficient, falling below an objective standard of reasonableness that is measured against "prevailing professional norms," and that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). Nor does Marino show that any conduct on the part of the prosecutor or the court denied him a fair trial. See Blissett v. LeFevre , 924 F.2d 434, 440 (2d Cir. 1991) (due process is denied only when the alleged prosecutorial misconduct is "`of sufficient significance to result in the denial of the defendant's right to a fair trial.'" (quoting Greer v. Miller , 483 US. 756, 765 (1987)); Daye v. Attorney General of New York, 712 F.2d 1566, 1572 (2d Cir. 1983) ("A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits.")
3. Newly Discovered Evidence
Marino's third claim is that the affidavits of two new witnesses, Jaime Londono and Marino's wife, Bibiano Hernandez, constitute newly discovered evidence under C.P.L. § 440.10(g), and establish his innocence. Marino raised this claim in his § 440.10 motion, which the state court denied on the merits. Having missed the deadline to appeal the decision, Marino moved for an extension of time to seek leave to appeal, which the Appellate Division denied. At this point, if Marino were to seek leave to appeal to the Appellate Division, his application would be denied as time-barred. See C.P.L. § 460.10(4)(a) (Defendant has 30 days from the date on which he receives the Notice of Entry to seek leave to appeal the denial of a C.P.L. § 440.10 motion to the Appellate Division.). Thus, his claim is deemed exhausted. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) ("For exhaustion purposes, `a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'" (citing Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)).
New York does not provide for leave to appeal to the Court of Appeals from the Appellate Division's denial of leave to appeal from the trial court's denial of a C.P.L. § 440.10 motion. See People v. Grossmann, 642 N.Y.S.2d 856, 856 (1966).
Due to the procedural default, I may review the claim only if Marino can show both cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989); see also Lee v. Kemna, 122 S.Ct. 877, 885, 888 (2002).
As bases for cause, Marino claims that his family could not afford to pay his attorney to timely appeal the denial of his § 440.10 motion and that his counsel was ineffective for requiring a fee that his family could not pay. These bases fail because Marino did not have a constitutional right to counsel for his collateral attack on his judgment of conviction, or for his appeal of its denial. See Coleman, 501 U.S. at 755 (to constitute "cause," ineffective assistance of counsel must be an "independent constitutional violation" which can occur only if there is a constitutional right to counsel in the proceeding where counsel was alleged to be ineffective); Pennsylvania v. Finley , 481 U.S. 551 (1987) ("We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, . . . and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals."). Furthermore, Marino fails to show that the occurrence of a fundamental miscarriage of justice would excuse his procedural default. Thus, his third claim is denied due to the procedural default.
For the same reasons, Marino's fifth claim, which is that his counsel was ineffective in failing to discover evidence that would have established his innocence, is also procedurally barred. Marino raised this claim in his direct appeal, but failed to include it in his leave application. He then included it in his § 440.10 motion, which was denied on the merits, but failed to timely seek leave to appeal that decision. The Appellate Division then denied his application for an extension of time to seek leave to appeal. If Marino were now to seek leave to appeal, his motion would be denied as time-barred. As with his claim of newly-discovered evidence, Marino fails to show cause and prejudice or that a fundamental of miscarriage of justice excuses his procedural default.
In any event, as described below, the newly discovered evidence is not so compelling that its absence from the trial denied him of fundamental fairness. Because the evidence would not have affected the result of the trial, his counsel's failure to discover it does not constitute ineffective assistance of counsel.
Moreover, as the Supreme Court stated in Herrera v. Collins, 506 U.S. 390 (1993), "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Id. at 400. Even under a more liberal application of this rule, the newly discovered evidence must be "so compelling that it would be a violation of the fundamental fairness embodied in the Due Process Clause not to afford a defendant a new trial at which the evidence could be considered." See White v. Keane, 51 F. Supp.2d 495, 502 (S.D.N.Y. 1999) (quoting Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir. 1992)).
The affidavit of Londono, supported by the affidavit of Marino's wife, fails to meet this standard. In light of the overwhelming evidence that Marino shot Euse, it is highly unlikely that Londono's testimony would have changed the outcome of the trial. Londono's credibility is severely undermined by his criminal history and his failure to contact the police or Euse's family upon witnessing the murder, despite his admission that he was a long-term friend of Euse. Thus, the jury was likely to reject Londono's testimony, which was consistent in substance with the other evidence that Marino presented and the jury rejected.
4. Denial of Request for an Adjournment
Marino's fourth claim is that the trial court erred in denying his counsel's request for an adjournment, which denied him the right to a fair trial and to present an adequate defense. It is well established that the due process right of an accused in a criminal trial includes the right to a "fair opportunity to defend against the State's accusations." See Chambers v. Mississippi , 410 U.S. 284, 294 (1973). Yet the right to present a defense is not absolute. The accused in a criminal case "must comply with established rules of procedure and evidence designed to assure both fairness and reliability." Id. at 302. State court error is of constitutional dimension only if it deprives petitioner of fundamental fairness. See Rosario v. Kuhlman , 839 F.2d 918, 924 (2d Cir. 1988).
This claim is exhausted because although Marino failed to raise it in his direct appeal to the Appellate Division, he did include it in his application for leave to appeal to the Court of Appeals, which was denied.
"Under New York law, the granting of an adjournment for any purpose is a matter of discretion for the trial court." Perez v. Keane , 95 Civ. 2640, 1996 WL 599695, at *3 (S.D.N.Y. Oct. 17, 1996) (citing People v. Singleton , 41 N.Y.2d 402 (1977)). To show abuse of that discretion, the defendant must demonstrate both that the court's denial of a continuance was arbitrary and that the denial substantially impaired his defense.See Wood v. Artuz , 39 F. Supp.2d 211, 214 (E.D.N.Y. 1999) (citing United States v. Edwards , 101 F.3d 17, 18 (2d Cir. 1996) (other citation omitted). Marino cannot make such a showing. Nothing in the record suggests that trial counsel's performance fell below an objective standard of reasonableness or that there is a reasonable probability that absent any error on the part of trial counsel, the verdict would have been different. See Strickland v. Washington, 466 U.S. 668, 684, 695 (1984).
Conclusion
Because Marino has not established any constitutional violations, his petition for a writ of habeas corpus is denied. Moreover, I decline to issue a certificate of appealability because he has not presented a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
So Ordered.