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concluding that the use of "largely unpreserved" by the Appellate Division was "equivocal" and, thus, did not present an adequate and independent state ground that would bar habeas review
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97 Civ. 2999 (RPP)(GWG)
July 26, 2001
REPORT AND RECOMMENDATION
To the Honorable Robert P. Patterson, United States District Judge:
Background
John McCaskell, currently an inmate at Clinton Correctional Facility, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 2, 1992, McCaskell was found guilty by a jury of Criminal Possession of a Controlled Substance in the First Degree (New York Penal Law § 220.21[1]). On March 26, 1992, McCaskell was sentenced by Justice Allen Alpert to a sentence of twenty-five years to life. For the reasons given below, the undersigned recommends that the petition be denied.
Summary of Relevant Evidence at Trial
On August 23, 1990, a confidential informant named Hezekia Salone told the Queens Tactical Narcotics Team that McCaskell and another man, Paul Stanley, would be picking up cocaine at a certain address in Manhattan. (Salone: Tr. 169-70). Salone had previously entered into a cooperation agreement under which the Queens District Attorney would recommend leniency in an unrelated narcotics case if Salone agreed, inter alia, to provide the police with "truthful and accurate" information to "help [the police to] make arrests." (Kelly: Tr. 161; Salone: Tr. 202-13). In exchange for being a registered confidential informant (Kelly: Tr. 26-27, 55), the Queens District Attorney's Office made a motion to vacate Salone's original plea of guilty to a felony charge of aiding and abetting a narcotics sale and he was charged instead with a misdemeanor that carried of a sentence of a conditional discharge. (Salone: Tr. 219-21).
"Tr." refers to the trial transcript of People v. McCaskell, Indictment No. 10246/90, Supreme Court, New York County. "S." refers to the transcript of the sentencing, the pages of which are numbered separately.
Starting in September 1989, Salone had spent "anywhere from nine to fourteen, fifteen hours a day" with McCaskell. (Salone: Tr. 163-65). On August 22, 1990, Salone contacted the police and told them that McCaskell planned to buy drugs in Manhattan. (Salone: Tr. 166).
Earlier that day, McCaskell had told Salone that "we got to go pick up some stuff in the morning so we can leave with enough stuff until we get back." (Salone: Tr. 165-66). Salone reported this conversation to Detective Kelly. (Kelly: Tr. 27; Salone: Tr. 166).
Early in the morning of August 23, 1990, McCaskell called Salone and said, "get up, we got business to take care of." (Salone: Tr. 166, 167). Salone met McCaskell and the two men drove in Salone's car to an apartment on Hillside Avenue in Queens where McCaskell asked two women in the apartment if they "needed any open vials, whether they had enough vials." (Salone: Tr. 167-68).
That same day, after a trip to Brooklyn, the two men returned to Jamaica, Queens to pick up a third individual, Paul Stanley, because McCaskell felt that "neither of [them could] afford to get a drug charge." (Salone: Tr. 168-70). When Salone had a free moment while McCaskell and Stanley were talking, Salone called Detective Kelly to say that Salone and McCaskell were getting ready to go into Manhattan and that Stanley would be joining them. (Salone: Tr. 170). McCaskell returned to the car and the three men drove to a cab station on Archer Avenue where McCaskell told a cabdriver to follow them into Manhattan. (Salone: Tr. 170-71). The plan was for Stanley to return to Queens in the cab with the drugs. (Salone: Tr. 177-78). At one point on the trip to Manhattan, McCaskell stopped at a pay phone to answer a call on his beeper; Salone used this opportunity to update Detective Kelly once again. (Salone: Tr. 171). During the cab ride, Salone observed McCaskell counting one-hundred dollar bills in "stacks." (Salone: Tr. 171-72).
The three men first drove to 561 West 147th Street, but did not meet McCaskell's contact person. (Salone: Tr. 172). Instead, a person named Rafael offered to sell drugs to McCaskell at a lower price on 150th Street. (Salone: Tr. 172-73). As McCaskell spoke to Rafael, Salone pretended he received a page on his beeper, went to a phone, and called Detective Kelly. (Salone: Tr. 173). McCaskell returned and the three men drove to 150th Street between Broadway and Amsterdam where Salone double-parked his car. (Salone: Tr. 174, 176). Outside the car, McCaskell and Rafael were "talking about the price, how much he was going to get." (Salone: Tr. 174, 175). When McCaskell, Stanley and Rafael walked into the building, Salone walked back across Broadway and called Detective Kelly to tell him that the sale location had been changed. (Salone: Tr. 175-76).
After Detective Kelly spoke to Salone, officers from the 30th Precinct went to the location of the sale in an unmarked police car, accompanied by a backup team that waited nearby in another unmarked vehicle. (Kelly: Tr. 30; Sanchez: Tr. 94-96; Salone: 252-53). Detective Sanchez, one of the undercover agents, had initially parked on the southwest corner of 147th Street and Broadway to alert the field team when McCaskell and Salone entered and exited 561 West 147th Street. (Sanchez: Tr. 95-96; Bonari: Tr. 248-49). Detective Sanchez had spotted Salone's car, a black Pathfinder, and tried to follow it, but had lost sight of it on Broadway. (Sanchez: Tr. 98-99). Following Salone's call to Detective Kelly, Detective Sanchez arrived at the 150th Street location in time to see McCaskell and Stanley enter the building at 600 West 150th Street. (Sanchez: Tr. 99-101, 109, 113, 129-30,135, 139, 145; Bonari: Tr. 250-51). Detective Sanchez parked on the northeast corner of 150th Street and Broadway and was able to see Salone, the cabdriver, and the black Pathfinder. (Sanchez: Tr. 101-03).
After about 15 minutes, both Salone and Detective Sanchez observed McCaskell and Stanley leaving the building and start walking across 150th Street. (Sanchez: Tr. 102-03, 110,139-41; Salone: Tr. 176). Detective Sanchez reclined his seat to prevent McCaskell and Stanley from seeing him because Detective Sanchez "was really close to them, because they were waiting on the same side as [himself]." (Sanchez: Tr. 103). As McCaskell and Stanley drew near Detective Sanchez's unmarked police car, Detective Sanchez "observed McCaskell from his waist area removing a white package, plastic bag" and hand the bag to Stanley. (Sanchez: Tr. 103-04). Stanley then put the bags in his pants. (Sanchez: Tr. 103-04). Salone observed the same event, testifying that as McCaskell and Stanley "got almost to the sidewalk, I saw [McCaskell] pass Stanley a bag and put it in his pants." (Salone: Tr. 176-77).
After the package was passed, Detective Sanchez radioed for the backup team to pick up McCaskell, Stanley, and the confidential informant. (Kelly: Tr. 31-32, 77; Sanchez: 104). Stanley was found in possession of two plastic bags containing over 4-3/8 ounces of cocaine. (Kelly: Tr. 33, 36-37, 44-45, 70, 72-73). No drugs were found on McCaskell's person. (Kelly: Tr. 67).
Procedural History
1. Trial Court
On September 7, 1990, John McCaskell was charged with Criminal Possession of a Controlled Substance in the First Degree (Penal Law § 220.21[1]). See Brief for Respondent, February 1995 (reproduced in Respondent's Affidavit in Opposition, dated March 3, 1999, Exhibit C) (hereinafter, "Brief for Respondent"), at 2. McCaskell's trial began before Justice Allen Alpert and a jury on February 25, 1992. (Tr. 1). On March 2, 1992, the jury returned a verdict convicting McCaskell. (Tr. 400). On March 26, 1992, McCaskell was sentenced. (S. 52).
2. State Court Appeals
Represented by counsel, McCaskell appealed to the Appellate Division, First Department submitting a brief alleging six trial court errors (numbered 1 through 6 below). See Brief for Defendant-Appellant, undated (reproduced in Respondent's Affidavit in Opposition, dated March 3, 1999, Exhibit A) (hereinafter, "Brief for Defendant-Appellant"). The petitioner submitted an additional two claims (numbered 7 and 8) by means of a pro se supplemental brief. See Defendant's Appellant's Pro Se Supplimental [sic] Brief, undated (reproduced in Respondent's Affidavit in Opposition, dated March 3, 1999, Exhibit B) (hereinafter, "Defendant-Appellant's Pro Se Supplemental Brief"). The eight issues raised were as follows:
(1) The prosecution did not establish McCaskell's knowledge of the weight of the drugs, one of the elements of the crime for which he was convicted;
(2) Trial testimony of an out-of-court identification of McCaskell from a photograph possessed by the police was overwhelmingly prejudicial;
(3) The trial court's interested-witness jury charge was erroneous;
(4) McCaskell's sentence was excessive;
(5) McCaskell was denied a fair trial because of the prosecution's misconduct during summation;
(6) The prosecution violated New York Criminal Procedure Law by failing to give McCaskell notice of its intent to introduce his statements to the police;
(7) McCaskell was deprived of a fair trial because defense counsel stipulated to the testimony of a chemist without first establishing whether McCaskell made a knowing and intelligent stipulation; and
(8) McCaskell was denied effective assistance of trial counsel because the stipulation to the chemist's testimony waived his right to cross-examine the chemist.
See Brief for Defendant-Appellant at i-ii; Defendant-Appellant's Pro Se Supplemental Brief at i.
The Appellate Division affirmed the judgment of conviction on July 27, 1995. See People v. McCaskell, 217 A.D.2d 527, 527 (1st Dep't 1995). With respect to McCaskell's grounds for appeal, the Appellate Division considered and rejected all eight grounds, either for procedural reasons or on the merits. See id.
McCaskell, through his counsel, sought leave to appeal to the New York Court of Appeals. McCaskell's two letters, dated August 21, 1995, and September 22, 1995, advanced the same issues presented to the First Department identified as Claims 1 through 6 above. Claims 7 and 8 were never presented to the Court of Appeals. See Letter from Karl F. Pflanz, Esq. (Counsel for Defendant) to Chief Judge Judith S. Kaye of the New York Court of Appeals, dated August 21, 1995 (hereinafter, "Letter to Chief Judge Kaye (dated August 21, 1995)") and Letter from Karl F. Pflanz, Esq. (Counsel for Defendant) to Chief Judge Judith S. Kaye of the New York Court of Appeals, dated September 22, 1995 (hereinafter, "Letter to Chief Judge Kaye (dated September 22, 1995)") (both reproduced in Respondent's Affidavit in Opposition, dated March 3, 1999, Exhibits E F).
On November 28, 1995, the Court of Appeals denied leave to appeal from the decision of the Appellate Division. See People v. McCaskell, 87 N.Y.2d 848 (1995). McCaskell did not seek collateral relief in State court. Nor did he seek a writ of certiorari from the Supreme Court of the United States.
3. McCaskell's Federal Habeas Corpus Petition
McCaskell's petition for a writ of habeas corpus is dated March 28, 1997, and was received by the Court on April 18, 1997. The petition presents essentially the same eight claims that were presented in his direct State court appeal to the First Department. See Petition under 28 U.S.C. § 2254 For Writ of Habeas Corpus by a Person in State Custody, dated March 27, 1997 (hereinafter, "Petition"), at 5a. On May 5, 1997, District Judge Robert P. Patterson referred the petition to Magistrate Judge Sharon Grubin for a Report and Recommendation. On December 29, 1997, Magistrate Judge Grubin submitted a Report recommending the dismissal of McCaskell's application for writ of habeas corpus for failure to comply with the one-year statute of limitations. See Report and Recommendation, dated December 29, 1997, at 5. District Judge Patterson accepted the Report and Recommendation on February 6, 1998. Judgment was entered dismissing the petition on February 9, 1998.
McCaskell included a "Reply Point" in his habeas petition addressing the issue raised in Claim 1. See Petition at 5b. The court will therefore consider the Reply Point and Claim 1 together.
On February 18, 1998, McCaskell appealed to the Court of Appeals for the Second Circuit. On December 16, 1998, the Court of Appeals reversed and remanded the judgment of the District Court holding that McCaskell's petition fell within the statute of limitations period permitted by 28 U.S.C. § 2244. McCaskell v. Keane, No. 98-2268 (2d Cir. Dec. 16, 1998). A second order referring the petition for a Report and Recommendation issued on January 28, 1999. The petition was designated to the undersigned on March 27, 2001.
Exhaustion Requirements and Procedural Bar
Habeas corpus relief under 28 U.S.C. § 2254 is available to a petitioner in State custody in violation of the Constitution or a federal law or treaty. See 28 U.S.C. § 2254(a). The statute requires that a petitioner must have exhausted all State remedies before seeking habeas relief from federal court. See 28 U.S.C. § 2254(b)(1). In order for a claim to be considered exhausted, it must have been presented fully and fairly in federal constitutional terms to the State courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 190-91 (2d Cir. 1982). Petitioners may "fairly present" their federal claims in State court by, inter alia, presenting explicit constitutional arguments, relying on federal and State cases that employ a constitutional analysis, asserting claims in such a way as to call to mind a specific right protected by the Constitution or alleging facts that fall within the mainstream of constitutional analysis. Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995); Daye, 696 F.2d at 194. If a petitioner is deemed to be procedurally barred from raising a claim in State court, but no further review is available, the claim will be deemed to be "technically exhausted" for purposes of federal habeas corpus review. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997).
Where a habeas petitioner has claims that are procedurally barred in State court but considered "technically exhausted," he will still be barred from raising the same issues in his writ for habeas corpus in federal court, unless he can establish cause and prejudice for the default or show a "fundamental miscarriage of justice." See, e.g., Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Coleman v. Thompson, 501 U.S. 722, 731-32, 735 n.* (1991); Murray v. Carrier, 477 U.S. 478, 488, 494 (1986); Strogov v. Attorney General of New York, 191 F.3d 188, 193 (2d Cir. 1999).
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, P.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), provides that a federal court can grant habeas corpus 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). Case law is unclear, however, as to the proper standard of review where a State court does not decide a properly presented claim on federal grounds, as is arguably the case with some of McCaskell's claims. See Washington v. Shriver, No. 00-2195 (2d Cir. June 15, 2001). In such a situation, the standard of review is either the statutory standard or the pre-AEDPA de novo standard of review. See id. Under the latter standard,
pure questions of law and mixed questions of law and fact were reviewed de novo. See Williams, 529 U.S. at 400 (opinion of O'Connor, J.) (citing Miller v. Fenton, 474 U.S. 104, 112 (1985)). . . . [T]he factual findings of the state courts were "presumed . . . correct" absent special circumstances listed in the statute. See 28 U.S.C. § 2254(d) (1994).
Washington v. Shriver, No. 00-2195, 2001 WL 674248 at *8. In this case, the Court need not reach the question of whether the AEDPA standard should apply to McCaskell's claims because, as described further below, his claims fail even under the de novo standard of review.
Analysis of McCaskell's Petition
I. Effect of Failure to Exhaust Claims on Whether the Petition Should Be Dismissed as a "Mixed Petition"
McCaskell exhausted Claims 1 through 6 in his petition because he presented these claims to both the Appellate Division and the New York State Court of Appeals. Accordingly, these claims are now ready for review. See Grey v. Hoke, 933 F.2d 117, 119-20 (2d Cir. 1991) ("[A] petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition.") As is described in more detail in Section VIII below, however, McCaskell did not exhaust Claims 7 and 8. These claims were never presented to the New York State Court of Appeals, only to the Appellate Division.
In his response to the petition, the Attorney General argues that "because [Claims 7 and 8] have not been exhausted in the state court, [McCaskell] has presented a mixed petition for habeas corpus and it should therefore be dismissed." Respondent's Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus, dated March 3, 1999 (hereinafter, "Respondent's Memorandum") at 8; accord id. at 8-10. The Attorney General's brief goes on to argue that the Court should not exercise its discretion to consider such claims as permitted by 28 U.S.C. § 2254(b)(2). See id. at 10-14. The Attorney General concludes that because the petition contains both exhausted and unexhausted claims, "this petition should be dismissed pending petitioner's proper presentation of his unexhausted claim to the appropriate state court." Respondent's Memorandum at 14.
28 U.S.C. § 2254(b)(2) provides that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."
In making this argument, the Attorney General's Office was apparently aware of the Second Circuit's decision in Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991), because its brief cites Grey for the proposition that "a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the petition." Respondent's Memorandum at 7 (quoting Grey, 933 F.2d at 119). Yet the Attorney General fails to address the remaining analysis contained in Grey v. Hoke, which holds that where, as here, a petitioner can no longer return to State court to exhaust a claim, "[n]o purpose would be served by requiring petitioner to return to state court for further proceedings before considering any of the claims raised in his habeas petition," 933 F.2d at 120, and that such a petitioner "has met the statutory exhaustion requirements for presenting a habeas petition to the federal courts." Id. at 121; accord Harrris v. Reed, 489 U.S. 255, 263 n. 9 (1989) ("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").
Indeed, Grey presented precisely the situation that exists here: a petitioner who presented all his claims in his appeal to the Appellate Division but failed to include some of them in his application for leave to appeal to the New York Court of Appeals. As Grey points out,
New York procedural rules plainly bar petitioner from attempting to raise his [unexhausted] claims before the New York Court of Appeals. Petitioner cannot again seek leave to appeal these claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y.Court Rules § 500.10(a). Collateral review of these claims is also barred because the issues were previously determined on the merits on direct appeal. See N.Y.Crim.Proc. Law § 440.10(2)(a); see also N.Y.Crim.Proc. Law § 440.10(2)(c) (barring review if a claim could have been raised on direct review). No purpose would be served by requiring petitioner to return to state court for further proceedings before considering any of the claims raised in his habeas petition. Cf. Petrucelli v. Coombe, 735 F.2d at 687 (requiring total exhaustion before consideration of any claim presented in federal habeas petition). Instead, following Harris and Engle, we hold that petitioner no longer has "remedies available" in the New York state courts under 28 U.S.C. § 2254(b), and that he has met the statutory exhaustion requirements for presenting a habeas petition to the federal courts.
Gray, 933 F.2d at 120-21 (emphasis added). Thus, contrary to the Attorney General's proposal, it would be improper to dismiss this petition "pending petitioner's proper presentation of his unexhausted claim to the appropriate state court." Respondent's Memorandum at 14. Accord Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) ("[I]f the petitioner no longer has "remedies available" in the state court under 28 U.S.C. § 2254(b), we deem the claims exhausted") (citing cases); Reyes v. Keane, 118 F.3d at 139 (citing Grey v. Hoke, 933 F.2d at 120).
For these reasons, the Court rejects the Attorney General's argument that this case should be dismissed because it is a "mixed petition."
II. Claim 1: That the People failed to prove an element of the crime charged
In his first claim, McCaskell argues that the People failed to prove that he knew the weight of the drugs at issue. See Petition at 5a, 5b. As expressed in his brief to the Appellate Division, this failure of proof meant that there was legally insufficient evidence to convict him. See Brief for Defendant-Appellant at 8.
Federal review is unavailable for a habeas corpus claim where there existed an adequate and independent state ground for denying the claim in State court, such as a procedural default, unless the petitioner can show cause and prejudice for that default or a fundamental miscarriage of justice. See, e.g., Strogov, 191 F.3d at 193-94. In order for there to be an adequate and independent basis for denying a claim by the State court, the last State court reviewing that claim must have "clearly and expressly" stated that its judgment rested on a State procedural bar. See Harris v. Reed, 489 U.S. 255, 263 (1989).
In this case, the First Department, in reviewing McCaskell's direct appeal, held that his claim regarding sufficiency of the evidence was procedurally barred and unavailable for review. People v. McCaskell, 217 A.D.2d at 527. Specifically, the Court stated that McCaskell's claim "is unpreserved for appellate review as a matter of law by appropriate objection to the court's charge or motion to dismiss specifically directed at the alleged insufficiency . . . and we decline to review the issue in the interest of justice." Id. (citations omitted). The court thus denied McCaskell relief because of his failure to preserve this claim for appeal. This is the kind of "adequate and independent" state ground that precludes this Court from reviewing the merits of the claim. See Hayes v. Coombe, 142 F.3d 517, 518 (2d Cir. 1998) (citing Coleman v. Thompson, 501 U.S. at 722, 735); Harris v. Reed, 489 U.S. at 261 (no habeas corpus review if State court already denied the claim on "adequate and independent state grounds").
Under New York law, a defendant must preserve an issue during trial by making an objection and alerting the trial court to the specific error in order to preserve the issue for appeal. See New York C.P.L. § 470.05(2).
Because McCaskell has not shown cause for the default, prejudice based on the default or a fundamental miscarriage of justice, this Court is precluded from reviewing the merits of his claim on the sufficiency of the evidence. See, e.g., Fama v. Comm'r of Corr. Serv., 235 F.3d 804, 809 (2d Cir. 2000); Strogov, 191 F.3d at 193-94.
III. Claim 2: That the out-of-court photo identification was unduly prejudicial.
McCaskell's second claim is that the testimony at trial that the police had identified him from a photograph previously in their possession and that he had been under "surveillance" improperly indicated to the jury that McCaskell had a criminal record or was otherwise guilty. See Petition at 5a. In presenting this claim to the Appellate Division, McCaskell relied exclusively on State court precedent. See Brief for Defendant-Appellant at 15-17. McCaskell did cite to the Fourteenth Amendment, however, as a passing reference in his brief. See id. at 17. Such a mention of a constitutional provision has been held sufficient to meet habeas exhaustion requirements. See Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (citation to the Fourteenth Amendment in point heading of petitioner's brief satisfied the exhaustion requirement for habeas review purposes); accord Daye, 696 F.2d 186 at 192.
McCaskell's specific claim on this issue is identified in his brief to the Appellate Division as follows:
[McCaskell] was denied a fair trial when . . . a police witness testified that in March 1990, months before [McCaskell's] arrest in this case, he recognized him from a photograph. . . . The witness also testified that [McCaskell] had been the subject of police surveillance, and that he had seen [McCaskell] on "several" occasions, when the officer "was in an unmarked auto sitting on a street," . . . or when the officer "was watching him in an auto." The only possible inference that the jury could draw from this prejudicial testimony was that [McCaskell] was being investigated by the police because he was a criminal suspect, and that he had also been arrested in the past as a result of previous criminal activity.
Brief for Defendant-Appellant at 15 (citations omitted).
As most liberally interpreted, this claim implicates the federal constitutional due process right that a criminal defendant must be presumed innocent until proven guilty and that evidence at trial implying that a criminal defendant had prior convictions or a criminal background might suggest to a jury that the defendant is guilty of the crime charged. See, e.g., United States v. Harmon, 349 F.2d 316, 320 (4th Cir. 1965).
In general, testimony by police officers indicating that they had possession of a defendant's photograph is not enough to be prejudicial, even though the potential inference exists that the defendant was under investigation at some point by the police. See United States v. Lanza, 790 F.2d 1015, 1019 (2d Cir. 1986). While Detective Kelly testified that he had seen a picture of McCaskell and had seen McCaskell walking in the street or passing by in an automobile (Kelly: Tr. 24-25), he never said that McCaskell was under "surveillance." The entire questioning on this point was as follows:
Q. When was the first time you saw the defendant, either in person or otherwise?
A. It was approximately in March of 1990, I believe.
Q. When you saw him at that time, was it in person or by some other means?
A. No. It was a photograph.
Q. Prior to August 23rd of 1990, had you ever seen the defendant in person?
A. Yes, I did.
Q. And about how many times had you seen him?
A. Several times.
Q. And describe the circumstances under which you saw him?
A. One time I was in an unmarked auto sitting on a street, and I saw the individual walking down the street with some other individuals. The other few times I did see him was usually he was usually [sic] passing by in an auto or I was watching him in an auto.
(Tr. 24-25) (objections and colloquy omitted).
With respect to testimony on photographs of a defendant, the Seventh Circuit has noted that
[t]here probably is an implication that photographs in the hands of enforcement officers of any description are not selected at random from the public and that some unfavorable history is present. But the possible reasons for its presence are varied, and the jury probably understands that, and pays heed to the instructions of the court that the defendant is presumed innocent.
United States v. Dichiarinte, 385 F.2d 333, 337 (7th Cir. 1967). Here, there was no suggestion during the officer's testimony that McCaskell had a criminal record. Nor was there any mention of terms such as "mug shot" that might have clearly indicated the existence of a criminal history. (Kelly: Tr. 24-25). See United States v. Hines, 470 F.2d 225, 229 (3d Cir. 1972) (no constitutional error where the term "mug shots" was not used to describe pre-trial photographic identifications); United States v. Reed, 376 F.2d 226, 227-28 (7th Cir. 1967) (conviction reversed where prosecution repeatedly mentioned that defendant had been identified from "mug shots" and witness testified that "mug shots" were photographs of former prison inmates); United States v. Robinson, 406 F.2d 64, 66 (7th Cir. 1969) (no error where prosecutor stated in opening statement that two witnesses had identified the defendant from "mug shots" at a police station and judge gave instruction that possession of photographs by a police station does not mean that the subject has committed a crime). Thus, there was nothing improper in the officer stating that he had seen the defendant's photograph.
The testimony that Officer Kelly had previously observed McCaskell was also not sufficient to suggest that McCaskell had a criminal history, as there could be explanations for such observations unrelated to prior criminal conduct. The jury was repeatedly instructed on the presumption of innocence in this case (Tr. 3, 378-79) and is presumed to have followed those instructions. See, e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987). The officer's testimony was germane to the issue of his ability to identify McCaskell at the time he arrested him. (Tr. 33). Because, as was true in Lanza, there was "no suggestion that [the defendant] had ever committed a crime," the testimony regarding the officer's observations of McCaskell did not result in "undue prejudice" to him. Lanza, 790 F.2d at 1019.
In sum, there was no violation of McCaskell's due process rights by virtue of the testimony that he had been identified from a photograph in the police's possession and that he previously had been observed by the police.
IV. Claim 3: The trial court gave an erroneous interested witness charge.
McCaskell claims that the trial judge erred in not specifically instructing the jury that the informant had entered into a cooperation witness agreement with the prosecuting authorities. See Petition at 5a. In his appeal to the Appellate Division, McCaskell argued that the confidential informant's "testimony was critical to establishing the People's case. . . . [I]t was [the confidential informant] who informed the police of the impending sale, and it was [the confidential informant] who testified as to [McCaskell's] role in the deal." Brief for Defendant-Appellant at 18. McCaskell also contended that the confidential informant had a "penal interest in the outcome of the case" and therefore "the court should have instructed the jury he was an interested witness as a matter of law, and that the jury should consider the benefit he received in determining his credibility." Id.
As with Claim 2, the argument McCaskell presented to the State courts was not explicitly based on federal law. Indeed, his brief relied on two State cases, only one of which made reference to federal law on a separate issue. See Brief for Defendant-Appellant at 19. He did argue, however, that he had been "deprived of a fair trial," and cited to the Fourteenth Amendment. Id. at 20. As with Claim 2, this is sufficient to meet habeas exhaustion requirements. See Reid v. Senkowski, 961 F.2d at 376.
Nonetheless, despite McCaskell's invocation of the Fourteenth Amendment and his attempt to present this claim as grounded in federal law, McCaskell has not shown a constitutional violation meriting habeas corpus relief. Errors in jury instructions normally implicate only State law. See Gilmore v. Taylor, 508 U.S. 333, 344 (1993); Estelle v. McGuire, 502 U.S. 62, 67 (1991); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (federal habeas relief unavailable for a State law claim). Only where the State law issue has risen to a constitutional violation can a federal court consider the merits of the claim. See Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990); United States ex. rel. Standbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975), cert. denied, 423 U.S. 872 (1975).
Here, no constitutional issue is presented. While a defendant is entitled to a jury charge that reflects his defense, United States v. Vasquez, 82 F.3d 574, 577 (2d Cir. 1996), "[a] conviction will not be overturned for refusal to give a requested charge . . . unless that instruction is legally correct, represents a theory of defense with basis in the record that would lead to acquittal, and the theory is not effectively presented elsewhere in the charge." Id. at 577 (citing United States v. Perez, 897 F.2d 751, 754 (5th Cir. 1990)). The habeas court must consider the whole jury charge in the context of all the charges given and the events at trial. See, e.g., Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir. 1996).
In McCaskell's case, the trial court gave an instruction to the jury that it should consider whether a witness might have an interest in the case in evaluating that witness's credibility:
Ask yourselves whether or not any witness is interested in the outcome of the case on one side or the other? Does the witness stand to gain or lose directly or indirectly as a result of the outcome of this case? Does the witness have a relationship with either party such that the witness may be biased or prejudices one way or the other? Has the witness received benefit or does he expect to receive a benefit in exchange for his testimony? If so you may take such interest into consideration when you determine the credibility of that witness.
(Tr. 383-84).
This jury charge permitted the defense to "effectively present" its argument as to the value of the informant's testimony, Vasquez, 82 F.3d at 577, by allowing the jury to consider the motives of the confidential informant and any benefits he might receive as a result of the cooperation agreement. In addition, defense counsel cross-examined the informant at length (Salone: Tr. 181-232) and argued during summation that the informant was "totally unworthy of belief" (Tr. 306) in part because of the cooperation agreement. (Tr. 297-306). These two factors also show that the failure to give a more specific instruction did not violate McCaskell's due process rights. See Smith v. Gibson, 197 F.3d 454, 460 (10th Cir. 1999) (court's failure to give specific charge as to treatment of informant's testimony will not permit habeas relief where defense counsel had opportunity to attack informant's credibility and was able to bring to the jury's attention the fact that the informant was an interested witness). In the end, the jury was free to scrutinize the informant's testimony and to make all appropriate inferences that the defense sought regarding the informant's interest in the case.
Because the lack of a more specific interested witness charge did not result in a federal constitutional violation, the Court denies habeas relief on this ground.
V. Claim 4: That McCaskell's sentence was excessive.
McCaskell argues that his sentence was excessive for two reasons: (1) that the trial judge improperly relied on evidence of other crimes in determining his prison sentence and (2) that the sentence he received was disproportionate to the offense with which he was charged. See Petition at 5a.
A. Exhaustion
With respect to this first ground for challenging his sentence, McCaskell's brief to the Appellate Division did not explicitly argue this issue in terms of federal law. He did rely, however, on at least one federal case and some of the State case law he cited rested on federal due process principles. See Brief for Defendant-Appellant at 23. In addition, this claim "call[s] to mind," Daye, 696 F.2d at 194, the federal due process right not to be sentenced on "materially untrue" assumptions or "misinformation." Townsend v. Burke, 334 U.S. 736, 740-1 (1948); see also United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970) ("[M]aterial false assumptions as to any facts relevant to sentencing . . . renders the entire procedure invalid as a violation of due process.") Accordingly, it will be deemed exhausted for purposes of habeas corpus review.
The same cannot be said of the second basis of his argument regarding his sentence: whether the sentence was disproportionate to the offense. McCaskell relied on no constitutional or other federal law in advancing his claim. Nor did the State cases cited in support of his argument, see Brief for Defendant-Appellant at 25-26, in turn rely on such law. Indeed, it is well settled that there is no federal constitutional issue present where a sentence is within the range prescribed by State law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992), citing Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff'd mem., 875 F.2d 857 (2d Cir. 1989); Jackson v. Moscicki, 2000 WL 511642 at *11 (S.D.N Y April 27, 2000) ("It is well established that when a sentence falls within the range prescribed by State law, the length of the sentence may not be raised as grounds for federal habeas relief"); McCalvin v. Senkowski, 2001 WL 336819 at *1 (S.D.N.Y. April 5, 2001) ("Sentencing decisions are not cognizable on habeas corpus review unless the sentence imposed falls outside the range prescribed by state law."). In this case, McCaskell was convicted of a First Degree A-1 felony (Criminal Possession of a Controlled Substance in the First Degree, Penal Law § 220.21[1]), carrying a maximum term of life and a minimum term between fifteen and twenty-five years. See New York Penal Law § 70.00(2), § 70.00(3). McCaskell was sentenced to a term of twenty-five years to life imprisonment (S. 52), within the statutory range. Therefore, there is no federal issue present under 28 U.S.C. § 2254(a) and this portion of his sentencing claim will not be reviewed further by this Court.
B. The Merits of the Claim
As to the claim regarding the evidence relied on by the sentencing judge, the due process clause is implicated where it is "quite probable" that a court improperly relied on misinformation in the sentencing procedure. King v. Hoke, 825 F.2d 720, 724 (2d Cir. 1987), citing McGee v. United States, 462 F.2d 243 (2d Cir. 1972); accord United States v Pugliese, 805 F.2d 1117, 1123-4 (2d Cir. 1986) (sentencing court has a due process obligation "to consider only reliable and accurate information"); Hili v. Sciarrotta, 140 F.3d 210, 213 (2d Cir. 1998) (defendant has due process right not to be punished on the basis of false information).
McCaskell's specific argument is that the trial judge improperly sentenced him on the assumption that McCaskell had murdered the cabdriver who drove the parties to the site of the drug deal — a murder for which McCaskell was never charged or convicted. See Petition at 5a; Brief for Defendant-Appellant at 21-24. During sentencing, the trial court made the following comment:
There is no direct evidence that Mr. McCaskell was responsible for the murder of the cab driver, but I watched Mr. McCaskell in open court as [the prosecutor] revealed in open court that the person who had been murdered was not in fact the informant and that the informant was in fact alive and available to testify against Mr. McCaskell. I watched as Mr. McCaskell physically reacted to that information. He was staggered by it, he was upset and shaken by it and it was obvious to me that the information that [the prosecutor] was revealing to him now for the first time in court before we began trial was shocking news to him. That, to me, is an indication separate and apart from anything [the prosecutor] may have said today in court, that Mr. McCaskell was involved in the murder of that cab driver.
(S. 49-50). The trial judge continued by stating:
Putting that aside, and even if I were not to consider the possible involvement of Mr. McCaskell in the murder of the cab driver, the law provides that Mr. McCaskell must be sentenced to life in prison for this conviction and that the minimum is 15 years and the maximum is 25 years. . . . The sentence that I impose upon Mr. McCaskell today is a sentence that I impose upon any conviction [for] this offense, for his prior criminal record as reflected in this Investigation and Sentence Report and as a deterrent to others who might think that they can become involved, as Mr. McCaskell did, in drug trafficking and escape with the minimum possible consequences. . . . The sentence of the Court is a sentence in state prison for a maximum of life and a minimum of 25 years.
(S. 50-52).
The defense counsel stated:
One thing I would like to respond to Your Honor, remarks to the cab driver. I was present in court when the allegations were made . . . I think Mr. McCaskell's reaction was not one of surprise that the informant was still alive. The reaction was surprise that such an allegation could have been made. . . . In addition, at the time the charge was made, the district attorney made an in camera presentation, it was an unsupported allegation. The support for that allegation was in camera, which we weren't made privy to so I would object to any consideration, anything concerning that cab driver in terms of sentence.
(S. 52-53). The trial judge then clarified its position with respect to its conclusions:
So the record is clear, I'm not basing my conclusion about what I believe to be Mr. McCaskell's involvement in that incident on [the prosecutor's] unsupported allegations about his involvement. What I am basing it on, in part, is Mr. McCaskell's reaction to that information when it was revealed to him in court. . . . I've interpreted it the way I see it, the way I saw it in court and the way I think it's appropriate to interpret it, but I say again, so the record is clear, that the involvement, if any by Mr. McCaskell with respect to that cab driver, is not the basis upon which I sentence Mr. McCaskell for, the sentence I've imposed today. It is rather because of his involvement in this narcotic trafficking and upon his prior criminal record and because I believe it appropriate to send a message out that I've indicated is appropriate to do so. That's the basis upon which I sentence Mr. McCaskell.
(S. 53-54) (emphasis added).
Thus, the trial judge did not use the murder of the cabdriver as a basis for sentence. Instead, he focused on factors unrelated to the cabdriver in reaching his sentencing decision. Specifically, the trial court considered McCaskell's role in dealing drugs (S. 50), the effect of drugs in general on the community (S. 50-51), and McCaskell's prior criminal history (S. 50). The trial court considered McCaskell's prior felony convictions because it appeared to the court that McCaskell "ha[d] not demonstrated any ability to change his way of life or any desire to do so." (S. 50). The trial court further noted that the conviction was based on drugs and that drugs have had a devastating effect on society in general. (S. 50-51). Thus, the trial court based the sentence on factors that were proper for the trial court to consider. The court was unequivocal in its statement that it did not rely on the murder of the cabdriver. (S. 54). Because we cannot say that it was "quite probable," King v. Hoke, 825 F.2d at 724, that the court relied on any improper factor, habeas relief will not be granted on this ground.
VI. Claim 5: The prosecution engaged in misconduct during summation.
A. Exhuastion
McCaskell makes two claims regarding the summation: (1) that the prosecution improperly stated during summation that to acquit him the jurors would have to find that the People's witnesses had lied, thereby improperly shifting the burden of proof to the defense and (2) that the prosecutor had personally vouched for the credibility of his witnesses. See Petition at 5a. In his brief to the Appellate Division in support of this argument, McCaskell relied exclusively on State court decisions, but did include a summary paragraph in which he asserted that the "cumulative effect" of the prosecutor's conduct had denied him a "fair trial" in violation of the Fourteenth Amendment. Brief for Defendant-Appellant at 32. As previously noted, such a reference is sufficient to meet habeas exhaustion requirements. See Reid v. Senkowski, 961 F.2d at 376.
B. Adequate and Independent State Ground
In the course of rejecting McCaskell's claim, the Appellate Division referred to the claim as "largely unpreserved." People v. McCaskell, 217 A.D.2d at 527. Normally, a State appellate court's rejection of a habeas petitioner's claim on the ground that it was "unpreserved" would result in its rejection in federal court on the ground that the petitioner's failure to preserve it constitutes an adequate and independent ground for the State court's decision. See, e.g., Hayes v. Coombe, 142 F.3d at 518. In this case, however, the Appellate Division's use of the equivocal term "largely unpreserved" bars reliance on the adequate and independent state ground because the Appellate Division did not "clearly and expressly," Harris v. Reed, 489 U.S. at 263, state that its judgment rested solely on a State procedural bar. See Galarza v. Keane, 2001 WL 636934 at *5 (2d Cir., June 8, 2001) ("We apply a presumption against finding a state procedural bar and 'ask not what we think the state court actually might have intended but whether the state court plainly stated its intention.'") (quoting Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000)); Reid v. Senkowski, 961 F.2d at 377. Thus, we assume that there is no adequate and independent state ground that addresses McCaskell's claims as to the summation.
C. The Merits
As a matter of federal constitutional law, prosecutorial misconduct violates a defendant's due process rights only when it is "of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765 (1987) (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). This Court must essentially consider whether, in the context of the trial as a whole, a prosecutor's summation was so improper as to deny the petitioner a fair trial. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (writ of habeas corpus will not issue on the basis of prosecutorial misconduct during summation unless such conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process"); Garofolo v. Coomb, 804 F.2d 201, 205 (2d Cir. 1986) ("constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair"). Furthermore, the "severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry." Blisste v. LeFevre, 924 F.2d 434, 440 (2d Cir. 1991). Of course, in certain situations, "the defense summation may open the door to an otherwise inadmissible prosecution rebuttal." United States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998) (citing United States v. Robinson, 485 U.S. 25, 32 (1988)); accord United States v. Praetorius, 622 F.2d 1054, 1060-61 (2d Cir. 1979) ("when the defense counsel [has] attacked the prosecutor's credibility or the credibility of the government agents, the prosecutor is entitled to reply with 'rebutting language suitable to the occasion.'") (quoting United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir.), cert. denied, 414 U.S. 855 (1973)), cert. denied, 449 U.S. 860 (1980).
1. Shifting of Burden.
In this case, defense counsel during his summation adverted to the police officers' testimony regarding their observations of the defendant and the exchange of the package containing cocaine on the street. He concluded:
. . . That's what they would have you believe.
That's what the People's case is. I ask you to ask yourselves, does that make sense? Is that convincing beyond a reasonable doubt? Does that make sense? Ask yourselves is that a coincidence? Is that an amazing coincidence? And ask yourselves, aren't those two police officers two of the luckiest police officers in the world? They come in from Queens. The people they say they are following walk right up to them, under their nose, passes [sic] cocaine, passes cocaine right under their nose
Ask yourselves does that make sense? Is that logical? Can you credit that testimony beyond a reasonable doubt?
(Tr. 325-26). Defense counsel then pointed to "several inconsistencies" in the police officers' testimony (Tr. 330) and expounded on them at length. (Tr. 331-33). He concluded by stating that the differences in the officers' testimony "are important because they go to the issue whether or not you can credit what the People would ask you to credit by proof beyond a reasonable doubt." (Tr. 333-34). He asked the jury whether in light of "all of those inconsistencies, together with all the other evidence in the case . . . does [sic] the People's witnesses — does the testimony have the ring of truth?" (Tr. 334).
In response to the defense's summation, the prosecution stated:
If [the police] were going to frame Mr. McCaskell, wouldn't they have worked out all these kinks? Why would there be any discrepancies?. . . Do you think if the police officers were going to lie, going to frame an innocent person and say Mr. McCaskell passed the bag, when they didn't see it, they would do it with the help of a civilian, and let alone a civilian with a criminal record, a civilian who is an informant to them? Are they going to make this great cover-up or risk their careers by taking this stand, commit perjury, and then let someone like [Salone] in on this great cover-up?
(Tr. 370-71). The defense argued to the Appellate Division that these comments shifted the burden of proof from the prosecutor to the defense and "present[ed] an insurmountable burden, one of establishing police perjury." Brief for Defendant-Appellant at 28 (quoting Tr. 376).
In fact, the prosecution's comments did not at all suggest to the jury that only a finding that all the witnesses had lied should result in the acquittal of McCaskell. The comments merely countered the defense's implicit suggestion that the inconsistencies in the officers' testimony showed they were lying. (Tr. 333-34). The prosecutor's comments here are similar to the summation approved by the Second Circuit in United States v. McDermott, 918 F.2d 319 (2d Cir. 1990). In McDermott, the defense had suggested that the witnesses were lying and that the Government had "woven" the evidence in the fashion it wanted and polished up the witnesses "like fine stones." In response the prosecutor argued that, "if we polished . . . up [our witnesses] and were so meticulous in the way that we weaved this web of lies . . . why didn't we do a better job of it? Why isn't [it] a seamless web? Why are there inconsistencies?" Id. at 328. The Second Circuit approved this response on the ground that the prosecutor's language was "simply 'rebutting language suitable to the occasion.'" Id. at 328 (quoting United States v. Praetorius, 622 F.2d at 1061) (in turn quoting United States v. La Sorsa, 480 F.2d at 526). In this case as well, the prosecutor's comments represent a measured response to the defense counsel's attacks on the officers' credibility during his summation.
2. Vouching.
McCaskell made a related argument in his direct appeal that the prosecution "personally assure[d] the jurors that her witnesses were credible and had no motive to lie." Brief for Defendant-Appellant at 29. Specifically, McCaskell cited to the following language used by the prosecution during closing arguments:
As for the police officers in this case, you know these are all experienced narcotic officers and you know they made hundreds of arrests, and you know making one more arrest isn't going to make or break a police officer's career and to suggest that a police officer such as Sanchez, Kelly or Bonari, that you saw in this case, would come into court, take an oath, look you in the eye and lie to you . . . to 28 convict an innocent person just doesn't make any sense. They have nothing to gain.
(Tr. 351). McCaskell also cited to similar comments made by the prosecutor with respect to Salone (Tr. 350) (Salone "had no motive to provide inaccurate [sic] or to lie to them").
Again, these comments by the prosecutor were not inappropriate in light of the arguments presented by the defense. The defense had specifically asked the jury to pay attention to the officers' testimony because "this is the heart of [the prosecution's] case" and continually asked the jury to decide whether any of the testimony made sense. (Tr. 317). Defense counsel questioned whether the jury could "credit" the officers given the improbability of their testimony. (Tr. 326, 334). Moreover, defense counsel had during the summation specifically adverted to an officer's motive to lie when he pointed out that Detective Kelly "stood to gain a promotion, stood to gain advancement, stood to gain a favorable commendation" through his work with the confidential informant. (Tr. 309).
In her response, the prosecutor was simply rebutting the arguments put forth by the defense. Case law makes clear that attorney statements vouching for a witness are improper only "because they 'impl[y] the existence of extraneous proof.'" United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) (citing United States v. Rivera, 22 F.3d 430, 438 (2d. Cir. 1994) (in turn quoting United States v. Bagaric, 706 F.2d 42, 61 (2d Cir. 1983)). Here, the prosecutor's statements did not use the first person pronoun and did not in any way suggest there was any extraneous proof of credibility in the hands of the prosecutor. Accord Gonzalez v. Sullivan, 934 F.2d 419, 423-24 (2d Cir. 1991) (prosecutor could properly argue that a witness whose testimony had been attacked by the defense had "no reason to lie").
Notably, Perez approved an even stronger statement regarding the prosecution witnesses's testimony than occurred here. See 144 F.2d at 210 (allowing prosecutor's statement that "I submit to you that [the law enforcement officers] are reliable, you can trust their testimony. You can count on them"). Perez approved these statements because "what might superficially appear to be improper vouching for witness credibility may turn out on closer examination to be permissible reference to the evidence in the case." Id. As was true in Perez, the prosecutor's statements here were made in the context of her responding to the defense's attacks on the police officers' credibility.
Because there was nothing improper about the prosecution's summation, McCaskell's claim must fail.
VII. Claim 6: That the Prosecution failed to give notice of intent to use statements made by McCaskell
McCaskell argues that the prosecution violated New York Criminal Procedure Law § 710.30 because it failed to give notice of its intent to offer into evidence statements he made to the confidential informant. See Petition at 5a. This claim was presented to the Appellate Division solely as one involving State law. See Defendant-Appellant's Brief at 33-35. The Appellate Division likewise relied only on State law in rejecting it. See People v. McCaskell, 217 A.D.2d at 527.
As previously noted, federal habeas review exists only where there is a federal constitutional violation and not where there is simply an error of State law. See 28 U.S.C. § 2254(a); Lewis v. Jeffers, 497 U.S. at 780; accord Estelle v. McGuire, 502 U.S. at 68 ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Criminal Procedure Law § 710.30 represents a State rule of practice. McCaskell has not articulated how this failure in any way resulted in a constitutional violation. Case law has consistently held that there is no cognizable federal issue in a claim of a violation of Criminal Procedure Law § 710.30. See, e.g., Espinal v. Duncan, 2000 WL 1774960 at *3 (S.D.N.Y. Dec. 4, 2000) (dismissing habeas claims based on CPL § 710.30); Roberts v. Scully, 875 F. Supp. 182, 191 (S.D.N.Y. 1995) (violation of CPL § 710.30 does not 'reflect a claim of constitutional magnitude," so that any error is not cognizable on a habeas review); Aziz v. Warden of Clinton Corr. Facility, 1992 WL 249888 at *10 (S.D.N.Y. Sept. 23, 1992) ("Violation of this state right to notification [CPL § 710.30] does not rise to the level of a constitutional violation"), aff'd mem., 993 F.2d 1533 (2d Cir. 1993), cert. denied, 510 U.S. 888 (1993). Thus, habeas corpus relief is unavailable for this claim.
VIII. Claims 7 and 8: Stipulation of chemist's testimony and ineffective assistance of counsel
For these claims, McCaskell asserts that his counsel should not have stipulated to the chemical content of the cocaine without his knowing and voluntary consent. He also alleges that this stipulation constituted ineffective assistance of counsel and denied him a fair trial. See Petition at 5a. These claims were presented to the Appellate Division in the Defendant-Appellant's Pro Se Supplemental Brief at 1-4. The Appellate Division rejected the claims on the merits. See People v. McCaskell, 217 A.D.2d at 527. However, a habeas petitioner is required to have presented any federal claims to the highest State court that permits review. See Grey v. Hoke, 933 F.2d at 119-20. In the case of a New York State appeal, the habeas petitioner must seek leave of the New York Court of Appeals in order to exhaust his claims. See id. McCaskell's attorney submitted two letters seeking leave to appeal to the New York Court of Appeals. See Letter to Chief Judge Kaye (dated August 21, 1995); Letter to Chief Judge Kaye (dated September 22, 1995). The letters raised only Claims 1 through 6.
As discussed in Section I above, McCaskell can no longer apply to the New York Court of Appeals for leave to appeal. See New York Court Rules § 500.10(a); Grey v. Hoke, 933 F.2d at 120-21. Although his claim is procedurally defaulted, see, e.g., Coleman v. Thompson, 501 U.S. at 735, it is also deemed to be "technically" exhausted. See, e.g., Bossett v. Walker, 41 F.3d at 828 ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted."). However, the very procedural default that results in a claim being technically exhausted also prevents the habeas court from addressing the merits of the claims. See id. McCaskell's failure to raise these claims on the merits before the State courts "bars him from litigating the merits of those claims in federal habeas proceedings, absent a showing of cause for the procedural default and prejudice resulting therefrom." Grey v. Hoke, 933 F.2d at 121; accord Gray v. Netherland, 518 U.S. at 161-62; see also Murray v. Carrier, 477 U.S. at 495-96 (permitting review where there has been a "fundamental miscarriage of justice").
"Cause" is demonstrated by "a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that 'some interference by state officials' . . . made compliance impracticable, . . . [or that] the procedural default [was] the result of ineffective assistance of counsel." Murray v. Carrier, 477 U.S. at 488 (citations omitted). In this case, McCaskell has made no showing of cause for his failure to raise these two claims to the New York Court of Appeals. While McCaskell has made an ineffective assistance of counsel claim regarding the stipulation his attorney made at trial, "that claim concerns only his trial counsel, not his appellate counsel, and thus does not explain his failure to raise the pertinent issues on appeal." Bossett, 41 F.3d at 829. Because he has not shown any valid cause for his failure to seek leave to appeal to the New York Court of Appeals, prejudice resulting therefrom, or that a "fundamental miscarriage of justice" would result from the failure to review the claims, claims 7 and 8 must be dismissed without reaching the merits.
In a filing dated July 13, 2001, McCaskell asked this court to hold his petition in abeyance so that he could return to the New York Court of Appeals to exhaust Claims 7 and 8. However, as discussed in Section I above, McCaskell is no longer permitted to present another appeal to the Court of Appeals. See New York Court Rules § 500.10(a).
CONCLUSION
For the foregoing reasons, McCaskell's petition for writ of habeas corpus should be denied.Notice of Procedure for Filing of Objections to this Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Robert P. Patterson, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Patterson. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).