Opinion
No. 99 Civ. 11234 (MBM).
August 28, 2001.
JAVIER MERCADO (Petitioner pro se), Shawangunk Correctional Facility, Wallkill, NY.
ROBERT JOHNSON, ESQ., District Attorney, Bronx County.
EDWARD L. SCHMITZER, ESQ., Assistant District Attorney, Bronx, NY.
OPINION AND ORDER
Javier Mercado petitions pro se, pursuant to 28 U.S.C. § 2254 (West 1994 Supp. 2000), challenging his state court conviction for second degree murder and second degree assault. Magistrate Judge Andrew J. Peck recommended in a Report and Recommendation dated November 3, 2000 (the "Report") that Mercado's petition be denied. Mercado objected to the Report with respect to several of his claims. For the reasons stated below, Magistrate Judge Peck's Report is accepted, and Mercado's petition is denied.
I.
The relevant facts are set forth in the Report, and are summarized here as follows. Mercado was indicted for, inter alia second degree murder and second degree assault in connection with the death of Daniel Serrano on July 16, 1994. (Report at 5) At the close of the trial, the jury foreperson declared that the jury had reached a unanimous verdict finding Mercado guilty of second degree murder and second degree assault, but not guilty on the remaining counts of the indictment. (Id.) At defense counsel's request, the trial judge directed the clerk to poll the jury. (Id.) The clerk read the verdict aloud and then asked jurors numbers one through five, in turn, "Is that your verdict?," to which each of them responded "yes" without incident. (Id.) When the clerk questioned juror number six, the following colloquy took place:
COURT CLERK: Juror number six, is that your verdict?
(No response)
THE COURT: Juror number six?
COURT CLERK: Is that your verdict, ma'am?
(No response)
[DEFENSE COUNSEL]: Judge —
THE COURT: Juror number six, is that your verdict?
(No response)
THE COURT: Is that your verdict?
(No response)
[DEFENSE COUNSEL]: Judge, I have an application.
THE COURT: Give the juror an opportunity to respond. Juror number six, please answer yes or no. Is that your verdict?
(No response)
THE COURT: Please answer yes or no.
(No response)
THE COURT: What's the juror's name?
COURT CLERK: Betty Hallums
THE COURT: Miss Hallums, do you hear me?
JUROR NUMBER SIX: Yes.
THE COURT: Yes? Do you hear me?
JUROR NUMBER SIX: Yeah.
THE COURT: Do you understand my question?
JUROR NUMBER SIX: Yes.
THE COURT: Do you understand that you're being asked whether you agree with the verdict that's been announced. Do you understand that?
You understand that?
Do you agree with that verdict? Is that your verdict as it was announced? Please tell us yes or no?
(No response)
[DEFENSE COUNSEL]: Judge, I request a sidebar.
THE COURT: No. I want a response. Either yes or no?
(No response)
THE COURT: What is that you want to say? Are you able to speak?
JUROR NUMBER SIX: Yes.
THE COURT: Tell us, either yes or no? Do you agree with that verdict or do you not agree with that verdict?
(No response)
THE COURT: Miss Hallums, it is necessary for you to respond to that question. You must tell us either yes or no?
(No response)
THE COURT: Please respond.
(No response)
THE COURT: Please respond, Miss Hallums.
(No response)
THE COURT: Miss Hallums, we cannot continue until we get a response from you.
(No response)
THE COURT: Respond either yes or no?
(No response)
THE COURT: What is your response please?
(No response)
THE COURT: Is that your verdict yes or no?
(No response)
THE COURT: Now, Miss Hallums, it's obvious that you're very emotional about this and that you are taking your job as a juror seriously. We understand that. But you have indicated your verdict in the jury room and it is necessary for us to confirm it here if, in fact, that was your verdict. And therefore you are being asked whether that, in fact, is your verdict, yes or no?
Please make a response to my question?
JUROR NUMBER SIX: Yes.
THE COURT: What was the response?
COURT REPORTER: Yes.
[DEFENSE COUNSEL]: Judge, I didn't hear it and earlier I saw her indicating her head no.
THE COURT: Is your response yes? The juror — the Reporter says that the juror responded yes.
[DEFENSE COUNSEL]: Judge, just prior to that I saw her shaking her head no so I'd like to hear it.
THE COURT: Continue polling the jury.
(Id. at 5-8)
The polling continued with jurors seven through twelve each replying "yes" when asked by the court clerk "Is that your verdict?" (Id. at 8) After all the jurors had been polled, the following took place:
[DEFENSE COUNSEL]: Judge, let the record reflect the juror is leaning down. She appears to be sick. She is throwing up now. Judge —
THE COURT: I'll let you make a record at the appropriate time. The court officers will assist the juror who obviously is emotionally upset.
[DEFENSE COUNSEL]: Judge, let the record reflect the juror had to be carried out by one or two court officers. She was throwing up profusely.
THE COURT: She was not throwing up profusely. She didn't throw up at all.
[DEFENSE COUNSEL]: The Court personnel put something to her mouth to prevent you from seeing that. She had something under her mouth in case she was about to throw up.
THE COURT: She was emotionally upset. It's obvious it was very difficult for her to arrive at a verdict but I am convinced that is her verdict. She so indicated in the jury room which is why the jury announced a unanimous verdict. While it was difficult for her to say it and confirm it here in the courtroom, she did.
[DEFENSE COUNSEL]: Let the record reflect it took her over seven minutes to say that. I'll let the record speak for itself.
[PROSECUTOR]: I heard her say yes.
THE COURT: It's irrelevant. I heard her say yes and the Reporter heard her. Are you reserving all motions until the day of sentence?
[DEFENSE COUNSEL]: Yes.
THE COURT: The defendant is remanded. The date for sentence will be November 13, 1995.
[DEFENSE COUNSEL]: I didn't hear the date.
THE COURT: November 13 for sentence.
[DEFENSE COUNSEL]: Judge, let the record reflect I hear the juror yelling from the back in a very loud voice.
THE COURT: I have no idea who that is, Mr. Silveri.
[DEFENSE COUNSEL]: Judge, let the record reflect I believe it's the voice of the female juror.
(Report at 8-9). Court was then adjourned. (Id.)
On November 13, 1995, the date set for sentencing, Mercado's attorney orally requested an adjournment, stating that he needed additional time to prepare a motion concerning "the very unusual event during the polling of the jury." (Id. at 10) The judge denied defense counsel's request, stating "there's no reason why motion practice can't be conducted after sentence is imposed." (Id.) The judge sentenced Mercado to concurrent terms of 25 years to life on the second degree murder count and two to six years on the assault count. (Id.)
On June 26, 1997, the Appellate Division, First Department, affirmed Mercado's conviction. As to Mercado's claim concerning the unanimity of the verdict, the First Department held as follows:
When juror number 6 repeatedly did not respond to the court's query whether the verdict announced by the foreperson was her verdict, defense counsel only requested a sidebar; the application was denied so that the court could repeat its question to the juror. Counsel did not request further relief, rendering unpreserved the appellate claim that the court erred in accepting the verdict without conducting a hearing as to juror number 6.
(Id. at 11)
On April 30, 1998, The New York Court of Appeals unanimously affirmed Mercado's conviction. (Id.) As to Mercado's jury verdict claim, the New York Court of Appeals held. that "a request for a specific procedure to correct or clarify irregularities in a verdict must be preserved for appellate review," and that defendant failed to "request such procedures when the juror was being polled." See People v. Mercado, 91 N.Y.2d 960, 962-63, 672 N.Y.S.2d 842, 843 (1998).
On February 9, 1999, Mercado moved to have his conviction vacated pursuant to New York Criminal Procedure Law § 440.10, claiming, inter alia, that "[t]he record plainly proves that the [trial judge] grossly intimidated all the Jurors in the instant matter by brutally oppressing one helpless Juror to the point that extreme mental anguish was induced and the victimized Citizen-Juror had to be physically assisted from the courtroom." (Report at 13) On April 1, 1999, Mercado submitted papers to the trial court in connection with his § 440.10 motion, including an unsworn handwritten statement allegedly made by juror number six stating, inter alia that the jury had been exposed to extra record information in the newspaper regarding Mercado's codefendant. (Id. at 14) On May 25, 1999, the trial court denied Mercado's § 440.10 motion, holding that "[a]ll of the material issues raised by the defendant were either raised and determined on the merits on appeal or could have, with due diligence, been so raised." (Id.)
On July 8, 1999, Mercado sought leave to appeal the denial of his § 440.10 motion. In his application, Mercado argued that "current procedural law, article 440, is constitutionally deficient pursuant to due process or equal protection mandates when, upon evidence of officials' fraud or use of duress, same officials are allowed to sit in judgment of the cause." (Id. at 15) On August 26, 1999, the First Department denied Mercado's application. (Id. at 16)
II.
Mercado filed the instant petition on October 13, 1999, alleging that (1) the trial court's polling of the jury unduly coerced one juror; (2) the jurors at his trial were "fatally tampered with or unduly coerced during deliberations"; and (3) New York's post-conviction procedures are unconstitutional because "officials sit in judgment of their own causes" and the procedures "allow officials to negate the Power of Trial by Jury." (Id.)
A. Polling of the Jury
Mercado seeks habeas review of his claim that the trial court's polling of the jury was unconstitutional. However, federal habeas review of a claim generally is prohibited if a state court rests its judgment on an independent and adequate state ground. See Lambrix v. Singletary, 117 S.Ct. 1517, 1522 (1997); Jones v. Vacco, 126 F.3d 408, 414 (2d Cir. 1997). A state procedural default qualifies as an independent and adequate state ground where "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995)
Here, the New York Court of Appeals affirmed the First Department's finding of a state procedural bar with respect to Mercado's jury polling claim. As noted, the New York Court of Appeals held that Mercado's challenge to the "manner and conduct of jury polling" was unpreserved for appellate review because of defense counsel's failure to lodge a specific objection and application for relief. See People v. Mercado, 91 N.Y.2d at 962-63, 672 N.Y.S.2d at 843; See also Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996) (holding that the failure to object at trial is an independent and adequate state ground).
Mercado'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, Mercado has failed even to allege cause or prejudice for his counsel's failure to object or seek relief. Accordingly, Mercado's jury polling claim is barred from habeas review.
B. Jury Tampering and Coercion
Mercado also seeks habeas relief on the ground that the jurors at his trial "were fatally tampered with or unduly coerced during deliberations." (Report at 21) Specifically, Mercado alleges that the unsworn statement purportedly made by the juror number six "gives evidence of corruption of deliberation process by newspaper article's information, and that at least one juror was unduly coerced into giving a guilty verdict during deliberations." (Id.)
As noted, on May 25, 1999, the trial court denied Mercado's § 440.10 motion, holding that Mercado had defaulted on his jury tampering and coercion claims by failing to raise them on his direct appeal. (Report at 13) Mercado's jury coercion claim therefore is procedurally barred. Moreover, this procedural bar constitutes an independent and adequate state ground. See Levine v. Commissioner of Correctional Servs., 44 F.3d at 126. Once again, because Mercado has failed even to allege cause for and prejudice from failure to raise these claims, they are ineligible for federal habeas review. See Coleman v. Thompson, 501 U.S. at 750.
Mercado argues also in his petition that the New York State post-conviction procedures contained in N.Y. C.P.L. § 440.10 are constitutionally deficient because "officials sit in judgment of their own causes" and the procedures "allow officials to negate the Power of Trial by Jury." (Report at 33) Magistrate Judge Peck found this claim to be without merit, and Mercado did not object to this finding.
A district court may adopt these parts of a magistrate Judge's report and recommendation to which no specific objection is raised unless they are clearly erroneous. See 28 U.S.C. § 636 (b)(1) (1994); Fed.R.Civ.P. 72(b). Here, Magistrate Judge Peck's findings with respect to Mercado's § 440.10 claim were not clearly erroneous. A state rule that assigns post-conviction review matters to original trial judge is permissible. See Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997); See also Liteky v. United States, 510 U.S. 540, 541 (1994) ("[I]t has long been regarded as normal and proper fora judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant."). Mercado's challenge to New York State's post-conviction procedures therefore is denied.
III.
The Supreme Court recently established the standard for determining whether a certificate of appealability should issue where the district court denies a habeas petition on procedural grounds. The Court held that "[w]here 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 whether Mercado's petition should be denied. With respect to Mercado's jury polling claim, the New York Court of Appeals held that Mercado's challenge to the "manner and conduct of jury polling" was unpreserved for appellate review because of defense counsel's failure to lodge a specific objection or request specific relief. See People v. Mercado, 91 N.Y.2d at 962-63, 672 N.Y.S.2d at 843. There is no dispute that such failure on the part of Mercado's attorney constitutes an adequate and independent state ground and a valid procedural bar to Mercado's claim. Similarly, it is clear that state law procedurally bars Mercado's jury tampering and coercion claims, which Mercado was in a position adequately to raise in his first § 440.10 motion. See N.Y. C.P.L. § 440.10(3)(c). Finally, jurists of reasons would not find it debatable that Mercado's challenge to N Y C.P.L. § 440.10 is without merit. See Gerlaugh v. Stewart, 129 F.3d at 1036 (holding that state rule assigning post-conviction review matters to original trial judge was permissible). Accordingly, a certificate of appealability will not issue.
* * *
For the reasons set forth above, Magistrate Judge Peck's Report is accepted; Mercado's petition is dismissed.