Opinion
01 Civ. 2911 (MBM)
April 23, 2003
QUORO MARTINEZ, (Petitioner pro se), Stormville, NY.
ELIOT SPITZER, ESQ., Attorney General of the State of New York, ROBIN A. FORSHAW, Assistant Solicitor General, BETH J. THOMAS, Assistant Attorney General, New York, NY, (Attorneys for Respondent).
OPINION AND ORDER
Quoro Martinez petitions pro se, pursuant to 28 U.S.C. § 2254 (2000), challenging his state court conviction. In a Report and Recommendation dated August 13, 2001 ("Report"), Magistrate Judge Peck recommended the dismissal of Martinez's petition. For the reasons stated below, the Report is adopted, the writ is denied, and the petition is dismissed.
I.
The following is a summary of the relevant facts set forth more fully in the Report, familiarity with which is assumed. On May 12, 1995, Martinez was convicted in Supreme Court, New York County, of attempted robbery, robbery, burglary, and criminal impersonation. (Report at 2) Martinez was tried along with three co-defendants: Garfield Ewan, Willis Galloza, and Jesus Perez. The crimes occurred at a brothel, the Lucky 21 Club. (Id.) Martinez was sentenced to an aggregate sentence of 14 to 42 years imprisonment. (Pet. ¶ 3)
Martinez's habeas corpus petition alleges that he was "denied a fair trial where the trial court denigrated the defense team in front of the jury, unduly interfered with the defense team in front of the jury, unduly interfered with the defense team's effort to cross-examine witnesses, actively assisted the prosecution in presenting its case, and issue[d] faulty rulings blatantly favoring the prosecution." (Pet. ¶ 12(A))
Martinez's direct appeal to the First Department, for which he had counsel, raised three grounds. The only claim relevant to this petition was his claim that he was denied a fair trial by the trial court's excessive interference and biased rulings in the prosecution's favor. (Thomas Aff., Ex. D, Martinez 1st Dep't Br. at 30-50) On appeal, Martinez alleged that the trial court "denigrated the defense team and communicated its disbelief of the defense case by accusing counsel of trying to trick prospective jurors, by making faces during counsel's cross-examination, and by yelling at counsel in front of the jury." (Id. at 30-35) Martinez also alleged that the "trial court unduly interfered with the presentation of evidence to the detriment for the defense and the benefit of the prosecution." (Id. at 35-46) Martinez argued that "the court further demonstrated its bias by issuing improper rulings in the prosecution's favor." (Id. at 46-50) The State argued that Martinez's judicial misconduct claims were unpreserved and meritless.
On March 9, 2000, the First Department affirmed Martinez's conviction, along with the convictions of his three codefendants. People v. Martinez, 270 A.D.2d 69, 705 N.Y.S.2d 35 (1st Dep't 2000). With regard to the defendants' claim of judicial misconduct, the First Department held, in full:
By failing to object to the court's conduct as a whole or seek any remedy, defendants' contention that the trial court was biased and excessively interfered in the proceedings is not preserved (People v. Charleston, 56 N.Y.2d 886), and we decline to review it in the interest of justice. Were we to review this claim, we would find from our review of the entire record, that the court's interjections did not usurp the role of the attorneys, that the court's overall conduct did not convey to the jury any personal opinion regarding the evidence, and that none of the defendants were deprived of a fair trial (see People v. Moulton, 43 N.Y.2d 944; People v. Gonzalez, 228 A.D.2d 340, lv. denied 88 N.Y.2d 1021).Martinez, 270 A.D.2d at 70, 705 N.Y.S.2d at 36. The New York Court of Appeals denied leave to appeal on July 25, 2000. People v. Martinez, 95 N.Y.2d 955, 714 N.Y.S.2d 6 (2000).
Martinez filed a timely petition alleging that he was denied a fair trial because of the trial court's conduct. The Report describes a number of the trial court's challenged actions in detail (Report at 4-15), and I will not repeat these descriptions here. The State argues that this claim is barred from federal review because the First Department's decision rejecting the claim was based on an adequate and independent state law ground. (Resp't's Mem. at 10-22) Magistrate Judge Peck concludes that the First Department's finding that Martinez procedurally defaulted on his judicial misconduct claim is an adequate and independent finding. (Report at 17-26) The Report finds that Martinez failed to allege cause for the default, or that he suffered prejudice as a result of the alleged violation, or that a fundamental miscarriage of justice would result if the claim is not addressed. (Report at 26-27) Finally, Magistrate Judge Peck concluded that even if the court were to review Martinez's claim on the merits, the trial judge's alleged misconduct did not deprive Martinez of a fair trial. (Report at 27-32)
Martinez filed objections to the Report on January 15, 2002. ("Objections") He argues that the First Department incorrectly barred a legitimately preserved issue on appeal and thus the state court finding of procedural default is not "adequate." (Objections at 2-10) He states that a fundamental miscarriage of justice will occur if this court refuses to review his claim (Objections at 11), and argues that his claim has merit. (Objections at 11-14)
II.
A district court reviewing a magistrate judge's report may adopt those parts of the report to which no specific objection is raised, provided the findings are not clearly erroneous. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636 (b)(1) (2000); Thomas v. Am, 474 U.S. 140, 149 (1985). With respect to those parts of the report to which any party objects, the court must make a de novo determination. See United States v. Raddatz, 447 U.S. 667, 673-76 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). In this case, Martinez objects to all relevant aspects of Magistrate Judge Peck's recommendation. Accordingly, I will review the entire Report de novo.
III.
Federal habeas review of a state court judgment of conviction is generally precluded when that judgment "rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). A procedural default does not bar consideration of a federal claim unless the state court "clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (citation and internal quotation marks omitted). An adequate and independent finding of procedural default will bar federal review of the federal claim, unless the habeas petitioner can show "cause" for the default and "prejudice attributable thereto," or demonstrate that failure to consider the federal claim will result in a "fundamental miscarriage of justice."Harris, 489 U.S. at 262.
Here, I agree with Magistrate Judge Peck that the First Department's finding of procedural default is an independent and adequate state ground that precludes review by this court.
The First Department stated that "[b]y failing to object to the court's conduct as a whole or seek any remedy, defendants' contention that the trial court was biased and excessively interfered in the proceedings is not preserved." Martinez, 270 A.D.2d at 70, 705 N.Y.S.2d at 36. The Court cited People v. Charleston, 56 N.Y.2d 886, 453 N.Y.S.2d 399 (1982), where the New York Court of Appeals held that "[a] question of law for review in this court is presented on a claim of excessive interference by the Trial Judge when there has been an objection at trial in some form sufficient to give the Judge an opportunity to correct the problem or when it is clear from the record that objection would have been unavailing." Charleston, 56 N.Y.2d at 887, 453 N.Y.S.2d at 400. The Court said further:
As the court recognized in People v. Yut Wai Tom ( 53 N.Y.2d 44, 55), "Because a court is entitled to question witnesses to clarify testimony and to facilitate the progress of the trial, a defense attorney cannot be expected to enter an objection to the Trial Judge's conduct at the first sign of judicial overbearance." Nonetheless, after it becomes "clear that the Judge intends to exceed his permissible role and assume the advocate's function" (53 N.Y.2d, at p. 55), it is incumbent upon defense counsel at least to attempt to register some protest to that conduct to preserve the matter for appellate review. In addition, the objection or objections must be of a nature to apprise the Trial Judge that it is his or her intrusion into the conduct of the trial that is at issue.
In the instant case, although defense counsel objected three times to questioning by the Trial Judge, the record indicates that the objections were directed to specific questions rather than to the Judge's general course of action or participation as a whole. By failing to call the Judge's attention to his allegedly prejudicial conduct, defendant did not offer him an opportunity to alter or correct it. Defendant also failed to move for a mistrial, which would have given the trial court an additional opportunity to correct the asserted error. It is true in such cases, of course, that "the greater the Trial Judge's penchant for participation in the questioning of witnesses, the more difficult will it be for counsel to register objection to the Judge's conduct for fear of antagonizing him" (People v. Yut Wai Tom, 53 N.Y.2d 44, 55, supra), and it is conceivable that in an extreme form this might excuse a defendant's failure to make an appropriate objection. There is no indication in the record, however, that such a situation was present here. Defendant's failure to make an appropriate objection or to move for a mistrial, therefore, must preclude review of his claim by this court.Charleston, 56 N.Y.2d at 887, 453 N.Y.S.2d at 400. Magistrate Judge Peck points out that an objection must be made "by the party claiming error," N.Y.C.P.L. 470.05(2), and therefore a codefendant's counsel's objection is not sufficient. (See Report at 24, citing cases)
New York Criminal Procedure Law § 470.05(2) provides, in relevant part:
For the purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.
N.Y.C.P.L. 470.05(2).
In his Objections, Martinez points to instances during the trial that he claims show the trial court's bias and excessive interference. All of these instances were raised in Martinez's brief on direct appeal to the First Department. have examined the transcript pages to which Martinez refers in his Objections, and I agree with Magistrate Judge Peck that Martinez's counsel did not object in a manner that would preserve a claim of judicial bias or excessive interference under New York law.
The Report correctly points out that Martinez's counsel, Joseph Ronson, did not object to several of the instances about which Martinez now complains. Counsel for codefendant Galloza complained that the trial court referred to questions asked by defense counsel during voir dire as "tricks," "unfair," and "misleading," and he moved for the jury panel to be discharged. (Objections at 3; VD. 47-49, 68-76) However, Ronson was silent during these exchanges. During the trial, counsel for Perez and Ewan told the trial court during a bench conference that she had a habit of smiling and making faces during testimony, and that this conduct was damaging to the way the jury was perceiving the defense case. (Objections at 3; Tr. 159-162). The next day, counsel for Perez moved for a mistrial based on this conduct. (Tr. 224-225) Ronson was again silent during both of these exchanges.
The transcript of the first part of jury selection, occurring on February 15, 1995, is separately paginated from 1-179. The transcript of the completion of jury selection, the trial court's preliminary instructions, and the parties' openings (occurring on February 16, 1995) is separately paginated from 1 to 129; references to those pages are preceded by "VD." References to remainder of the trial transcript are preceded by "Tr".
The trial court responded: "I was not intentionally trying [in] any way to disparage the case. I should have called defense counsel up. . . . I did smile." (Tr. 161) She said that defense counsel had asked the same question 12 to 15 times and other questions asked were "a waste of time and irrelevant." (Id.)
Martinez complains that the trial court prevented his codefendant's counsel from asking a witness if he was sure that a weapon was the one he saw during the incident at the brothel. Instead the trial court rephrased the question and asked "does it look the same?" (Objections at 4; Tr. 797) However, Ronson did not object to this question. Martinez says also that the trial court did not allow his codefendant's counsel to refresh the recollection of a witness as to a previously-made statement. (Objections at 5; Tr. 764-766, 770-773) However, Ronson did not object to this ruling.
Martinez does point to several instances when Ronson did object to rulings or conduct by the trial court. Ronson questioned the Court as to why he was not permitted to impeach the arresting officer with grand jury material (Objections at 4; Tr. 354-355), and objected to the trial court's refusal to sanction the prosecution for its loss of a memo book of a police officer witness called in rebuttal (Objections at 6-7, Tr. 2316-2321). Ronson objected also to the trial court's rulings regarding a government witnesses's rap sheet. After the direct examination of Kim Young had begun, the government said that the rap sheet it had turned over for Young belonged to another Kim Young. (Tr. 429-430) When the government found new records, Ronson expressed concern about their accuracy and asked for the witness to be fingerprinted or for there to be a more exhaustive search of the records. The Court denied this request and instructed defense counsel to begin with cross-examination of the witness. (Objections at 5; 566-570). Ronson objected that a chain of custody had not been established for underwear the court admitted into evidence, which had been brought to the court that day by the witness himself. (Tr. 753)
Ronson renewed this request when the government later handed over another record relating to the witness. When the trial court told counsel to continue with their cross-examination, Ronson said: "Judge, this is no way to try a case with a jury," (Tr. 605), to which the Court responded: "Mr. Ronson, don't tell me how to try a case." (Id.)
Martinez points to several instances where Ronson objected to the trial court's questioning of witnesses. During the State's direct examination of Kim Young, when Young had trouble describing the alleged rape, the trial court asked over Ronson's objections what part of Martinez touched her, and asked several questions until the witness finally was able to describe that Martinez "forced his penis into [her] rectum." (Objections at 4; Tr. 420-421) The Court also asked Young questions relating to when she last saw her co-workers and when she stopped working — questions which Martinez argues helped the government avoid a missing witness charge. (Tr. 418) Finally, Martinez points to a discussion among counsel and the court at sidebar when his codefendant's counsel accused the trial court of "yelling at her" and the Ronson asked several times if the discussion could be held outside the hearing of the jury. (Objections at 4; Tr. 333, 336)
Martinez was also charged with rape and sodomy in the first degree of Young but he was acquitted on these charges. (Tr. 2674)
Ronson said: "Could we do this out of the hearing of the jury?" (Tr. 333) He later said: "It's not appropriate to let them hear any of this," (Tr. 336), to which the Court replied: "My voice is not loud." (Id.)
Martinez also complains that the trial court inserted her own conclusion that the trial testimony of a witness was consistent with her grand jury testimony. (Objections at 6) However, this discussion was during a bench conference, and during cross-examination the witness confirmed that her account had changed since she testified before the grand jury.
(Objections at 6; Tr. 1468-1472) Thus it is not evident how the trial court's statements could have had any effect on the jury.
Although Ronson did object at the times described above, all of these objections were to specific rulings, questions, or isolated events. The objections were not of a nature that would alert the trial court that the objection was directed to the court's general course of action or participation in the trial as a whole. See Charleston, 56 N.Y.2d at 887, 453 N.Y.S.2d at 400 ("In the instant case, although defense counsel objected three times to questioning by the Trial Judge, the record indicates that the objections were directed to specific questions rather than to the Judge's general course of action or participation as a whole. By failing to call the Judge's attention to his allegedly prejudicial conduct, defendant did not offer him an opportunity to alter or correct it. Defendant also failed to move for a mistrial, which would have given the trial court an additional opportunity to correct the asserted error."). Furthermore, the trial court's conduct was not of such an extreme nature that might excuse counsel's failure to object.See id. All of these instances of alleged misconduct by the trial court were raised in Martinez's brief to the First Department, and that court found the claim of judicial bias and excessive interference was not preserved. For the reasons stated in the Report, I agree that the First Department's judgment rested on an adequate and independent state ground.
Ronson did move for a mistrial several times. After Kim Young testified during the trial that Martinez forced her to perform oral sex, Ronson asked for a mistrial arguing that this was an uncharged crime. (Tr. 398) Ronson moved for a mistrial on the same basis two other times, arguing that two other witnesses had testified to uncharged crimes. (Tr. 718-719, 857) Ronson also moved for a mistrial based on comments made by the prosecution during summation. (Tr. 2595) These motions for mistrial were based on specific instances and were not directed at the court's overall conduct. Thus, they failed to preserve Martinez's claim as to the trial court's overall bias or excessive interference.
Martinez's claim may be heard despite the procedural default if he can show cause for the default and prejudice as a result of an alleged violation of constitutional law. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). However, Martinez has failed even to allege cause or prejudice. A federal court also may excuse a procedural default if a petitioner can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 496 (1986). Such a miscarriage of justice occurs "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 496. Martinez states in his Objections: "Petitioner contends that a fundamental miscarriage of justice will occur if the Court refuses to review his claim, which would result in petitioner's conviction of a crime to which he is innocent and was rendered in violation of a guaranteed right under the United States Constitution." (Objections at 11) Martinez makes no other statements regarding his claim of actual innocence and provides no new evidence. Because this bald statement does not raise a colorable claim of Martinez's actual innocence, see Schlup v. Delo, 513 U.S. 298, 316 (1995), his procedural default is not excused.
* * *
For the reasons stated above, I agree with the Report's conclusion that Martinez's claim is barred from review. Accordingly, the Report is adopted, the writ is denied, and the petition is dismissed.
"Where the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of reason would not find it debatable that the First Department's finding of procedural default rests on independent and adequate state grounds, and that Martinez has failed to show cause, prejudice, or that failure to consider the claim will result in a fundamental miscarriage of justice. Accordingly, a certificate of appealability will not issue.