Opinion
98-CV-0661C.
May 22, 2004
Petitioner Douglas T. Miller, an inmate in the custody of the New York State Department of Correctional Services, seeks to vacate his state court conviction for murder in the second degree "on the ground that he is in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a). For the reasons set forth below, the petition is denied.
BACKGROUND
Petitioner was charged by the Erie County grand jury in indictment No. 93-2266-001, filed on October 28, 1993, with murder in the second degree (N.Y. Penal Law § 125.25(1)), criminal possession of a weapon in the fourth degree (N.Y. Penal Law § 265.01(2)), and criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(1)), in connection with the October 17, 1993 shooting death of Susan Charbonneau at "Antique World" in Clarence, New York. He was arraigned on November 3, 1993 before Erie County Judge Michael L. D'Amico, and entered a plea of not guilty to each of the charges.
Petitoner was represented at arraignment by Mark D. Hosken, Esq., who was eventually retained as defense counsel. Mr. Hosken filed a series of pretrial motions on petitioner's behalf, including an omnibus motion containing notice pursuant to New York Criminal Procedure Law ("CPL") Section 250.10 that petitioner intended to present psychiatric evidence at trial with respect to the affirmative defense of lack of criminal responsibility by reason of mental disease or defect and/or extreme emotional disturbance (SCR, Notice of Motion 2/28/94). This motion was initially denied as untimely by Erie County Court Judge Rose D. LaMendola (SCR, Order 4/14/94). However, upon the substitution of assigned defense counsel Robert M. Goldstein, Esq., the People agreed to accept a late CPL § 250.10 notice in exchange for defendant's acceptance of a late notice of intent to offer evidence at trial pursuant to CPL § 710.30 (SCR, Transcript of Motion 9/26/94).
References preceded by "SCR" are to documents submitted by respondent as part of petitioner's State Court Records, attached to the Answer (Item 4) as Exhibit A.
In February 1995 Dr. Brian Joseph, a psychiatrist, examined petitioner for the purpose of preparing an affirmative defense of extreme emotional disturbance, but Dr. Joseph declined to testify for the defense. At a status meeting with the court on March 31, 1995, Mr. Goldstein informed Judge LaMendola that "after some exhaustive efforts," he had been unable to obtain the services of a psychiatrist to render an opinion favorable to the defense, but intended to continue to seek an expert psychiatric opinion "as I see that to be [petitioner's] best defense" (SCR, Transcript of Motion 3/31/95, p. 2). The following colloquy then took place:
THE COURT: But you do understand —
MR. GOLDSTEIN: I understand the time lengths, I understand, and as I explained previously to the Court, I have relied on two psychiatrists, who, one renegged [sic] on his acceptance of the case, and one who did not give me the opinion that I expected from him.
THE COURT: But you have an opinion from a psychiatrist.
MR. GOLDSTEIN: That's correct.
THE COURT: But at the same time the People haven't had an opportunity to prepare, and we have a trial date. It's a firm date.
MR. MORDINO: Your honor, at this time the People would move to preclude any psychiatric defense. It appears that what is happening is the defendant is not able to get a report that is beneficial to him. There are many, many psychiatrists out there who are available to do an examination and render a report. Whether or not there are many out there or any out there who can and will render a report which is favorable to the defendant seems to be at issue here. And I don't think that the law is such that the defense can adjourn the matter and keep putting off presenting anything or obtaining a psychiatrist until they find one that is favorable to their position.
It's my position that since this matter is scheduled for a trial, and the matter is coming up very shortly, it's been scheduled for a substantial period of time, that the People will require a substantial period of time to prepare for a psychiatric defense to have the defendant examined by a psychiatrist on our behalf, that would only delay the trial, and I think this is all a delaying tactic on the part of the defendant to avoid going to trial on this matter as the Court has ordered.
THE COURT: I agree. It will go forward, and I grant Mr. Mordino's request as to the insanity defense. Good morning.
( Id. at pp. 2-4).
On April 27, 1995, defense counsel moved for reconsideration of the trial court's order, requesting the opportunity to present psychiatric testimony if counsel was able to find an expert during the course of the trial, but the court declined to reconsider its order (SCR, Transcript of Sandoval motion, 4/27/95, pp. 2-4).
People v. Sandoval, 34 N.Y.2d 371 (1974) (admissibility of prior convictions or proof of prior commission of specific criminal, vicious, or immoral acts to impeach defendant's credibility).
Petitioner's trial commenced on May 4, 1995, before Judge LaMendola. Petitioner testified in his own defense, and Dr. Joseph testified in rebuttal. On May 15, 1995, the jury found petitioner guilty on all counts of the indictment (Tr. 716-17). On June 8, 1995, petitioner filed a motion pro se pursuant to CPL §§ 330.30, 330.40 and 330.50 to set aside the verdict, raising the following grounds:
References preceded by "Tr." are to pages of the trial transcript, submitted by respondent as part of petitioner's State Court Records.
1. Imposition of Preclusion Sanction on the Defense on the 31st day of March, 1995, is a violation of Sixth Amendment Compulsory Process Constitutional Rights.
2. Court's Compulsion of psychiatrist's examination of [petitioner] on the 10th day of May, 1995, which is Fifth Amendment protected and doctor's trial testimony on the 12th day of May, 1995, is in violation of [petitioner]'s Fifth, Sixth and Fourteenth Constitutional Amendment rights.
3. Third Indictment Count (Possession of a Weapon, 3rd Degree) verdict of guilty should be set aside.
4. Prosecutor's malicious use of Legal Process and inflammatory, dramatic style which denied [petitioner] a fair trial and had a predispositional effect on the jurors' rendering of verdict.
5. Judges' [sic] Abuse of Discretion denying [petitioner] a fair trial and presentation of all mitigating circumstances to the jury, both during and pre-trial.
6. Failure of the Prosecution to turn over to defense Rosario Materials, pursuant to C.P.L. § 240.45.
7. Legal Insufficiency, where a lessor [sic] included offense calls for a need for conviction modification.
( Pro Se Motion to Set Aside Verdict 6/8/95, attached as "Addendum" to Item 8).
At sentencing proceedings on June 26, 1995, Judge LaMendola denied this pro se motion after argument, finding that "[s]ome of the matters . . . referred to . . . are more suitable for an appellate court, and others have been waived" (S. 10). Judge LaMendola then sentenced petitioner to concurrent prison terms of twenty-five years to life on the murder conviction, two and two-thirds to seven years on the third-degree weapon possession conviction, and one year on the fourth-degree weapon possession conviction (S. 28-29).
References preceded by "S." are to pages of the transcript of petitioner's sentencing proceedings, submitted by respondent as part of petitioner's State Court Records.
Petitioner appealed, and the Legal Aid Bureau of Buffalo was assigned to represent petitioner. In its brief filed on petitioner's behalf, Legal Aid raised the following grounds:
1. The trial court's preclusion of psychiatric evidence violated petitioner's right to present a defense, his right against self-incrimination, and his rights to due process and a fair trial.
2. The trial court erred in refusing to charge the jury that "humiliation" was an emotion to be included in its consideration of the affirmative defense of extreme emotional disturbance, and in refusing to charge manslaughter as a lesser included offense.
3. The prosecutor wrongly obtained an oral agreement from a juror during summation that the People had proven their case.
4. The trial court should have dismissed the charge of criminal possession of a weapon in the third degree since petitioner's Certificate of Relief from Disabilities in connection with his 1975 burglary conviction legalized his possession of a weapon.
5. Excessive sentence. (Petitioner's Appellate Brief, Item 4, Ex. B). In addition, petitioner submitted a supplemental appellate brief pro se, raising the following grounds:
1. Prosecutorial misconduct.
2. The weapons charges should have been presented as alternative counts of the indictment, rather than as inclusory concurrent counts.
3. The prosecutor failed to turn over Rosario material in a timely manner.
4. The accumulation of errors denied petitioner a fair trial.
(Petitioner's Supplemental Pro Se Brief, Item 4, Ex. B).
Meanwhile, in August 1996, while his appeal was pending, petitioner moved pro se pursuant to CPL §§ 440.10 and 440.20 to vacate the judgment of conviction and sentence on the following grounds:
1. The jury was improperly influenced by the presence of the victim's family and friends in the courtroom.
2. Denial of the right to confront persons who had accused him of the crime.
3. Ineffective assistance of trial counsel.
4. The trial court erred in failing to order a second psychiatric evaluation.
5. Improper oral impact statement given by the victims's family at sentencing.
6. The presentence report contained false information.
7. The court considered inappropriate factors when imposing sentence.
(SCR, Pro Se Notice of 440.10 and 440.20 Motion, 8/9/96). In a memorandum and order dated March 19, 1997, Erie County Judge Joseph P. McCarthy denied petitioner's motion in all respects, without a hearing (SCR, Memorandum and Order 3/19/97). Judge McCarthy found no evidentiary facts to support petitioner's claims that the jury was improperly influenced, that he was denied the right to confront his accusers, or that counsel provided constitutionally ineffective assistance. Further, upon review of the trial record, Judge McCarthy found that trial counsel provided adequate representation. With respect to petitioner's claim that the trial court should have ordered a second psychiatric evaluation, Judge McCarthy noted that petitioner testified on his own behalf, "appear[ed] quite normal in affect, responded appropriately to questions and appeared to understand the nature of the proceeding." (SCR, Memorandum and Order 3/19/97, p. 7). Finally, Judge McCarthy declined to review any claims pertaining to petitioner's sentence because the record contained sufficient facts to permit adequate appellate review of those issues ( id.).
On March 24, 1997, petitioner brought a successive CPL § 440.10 motion, in which he claimed he had obtained newly discovered evidence that, if available at the time of trial, would have changed the outcome (SCR, Pro Se Notice of 440.10 Motion, 3/24/97). In a memorandum and order dated May 23, 1997, Judge McCarthy denied this motion as well, finding that the "newly discovered" evidence — a report of an emergency visit from the Erie County Medical Center Psychiatric Outreach Program on May 9, 1993 — was known to petitioner at the time of trial. The court also found that the proffered evidence was not material to petitioner's guilt or innocence in any event, since it was being offered to impeach the testimony of a prosecution witness (SCR, Memorandum and Order 5/27/97).
On May 30, 1997, the Appellate Division, Fourth Department affirmed the judgment of conviction. People v. Miller, 659 N.Y.S.2d 650, 239 A.D.2d 888 (4th Dep't 1997). The court found that the trial judge's refusal to delay the trial to allow petitioner more time to locate a psychiatrist to testify on his behalf in support of the affirmative defense of extreme emotional disturbance did not violate petitioner's Sixth Amendment right to present witnesses. According to the Fourth Department:
[T]he case was ready for trial and defense counsel had advised the court that he was unsuccessful in his efforts to locate an expert. Because this case had been pending for almost 18 months, the court's refusal to delay trial to allow defendant "to endlessly pursue an elusive witness" was not an abuse of discretion.Id., 659 N.Y.S.2d at 651, 239 A.D.2d 889 (quoting People v. Foy, 32 N.Y.2d 473, 478 (1973)). The Fourth Department also found petitioner's claim (raised in his pro se supplemental brief) that the weapons charges should have been presented as alternative counts of the indictment rather than as inclusory concurrent counts was not preserved for appellate review (citing CPL § 470.05(2)), and the court declined to review that claim as a matter of discretion in the interest of justice (citing CPL § 470.15(6)(a)). Finally, the court stated that it had considered petitioner's remaining contentions, including those raised in his pro se supplemental brief, and concluded that they were without merit. Id.
In dissent, two Justices opined that the trial court violated petitioner's Sixth Amendment right to present witnesses by precluding him from attempting to present psychiatric evidence. The dissenters "conclud[ed] that the court's speculation that the trial would be delayed if [petitioner] secured favorable psychiatric testimony on his behalf [was] far outweighed by the prejudice to [petitioner] in precluding him from obtaining testimony that could have been crucial to his defense." Id., 659 N.Y.S.2d at 652, 239 A.D.2d 891 (Callahan and Boehm, JJ., dissenting).
On June 27, 1997, Legal Aid filed an application on petitioner's behalf for leave to appeal to the New York Court of Appeals on essentially the same grounds that were raised at the Appellate Division (except "excessive sentence") (Item 4, Ex. C). This application was denied by the Appellate Division on July 31, 1997 ( id.). Petitioner then filed a pro se application for reconsideration, which was denied by letter from the Clerk of the Court of Appeals dated October 1, 1997 ( id.).
On October 14, 1998, petitioner filed this action seeking federal habeas corpus relief on the following grounds:
The pro se petition was dated September 28, 1998, received by the court on October 5, 1998, and deemed timely filed by order of the court dated October 21, 1998 (Item 3).
1. The trial court's orders precluding the presentation of psychiatric evidence to support an "extreme emotional disturbance" defense, but allowing Dr. Joseph to testify in rebuttal, denied petitioner his right to present a defense and his right against self-incrimination.
2. Prosecutorial misconduct.
3. The trial court erred in refusing to charge the jury that "humiliation" was an emotion to be included in its consideration of the affirmative defense of extreme emotional disturbance, and in refusing to charge manslaughter as a lesser included offense.
4. Denial of the right to have a verdict rendered by twelve jurors.
(Item 1, ¶ 12). Respondent has answered the petition, asserting the following defenses:
1. The trial court's preclusion of psychiatric evidence did not violate petitioner's right to present a defense, and petitioner has procedurally defaulted his claim that the preclusion order violated his right against self-incrimination.
2. Petitioner has procedurally defaulted his claim of prosecutorial misconduct, and has failed to show how he was prejudiced thereby in light of the overwhelming evidence of guilt.
3. The jury charge was proper.
4. The jury verdict was properly rendered.
(Item 5). For the following reasons, the petition is denied.
DISCUSSION
A. Standards of Review for Habeas Corpus PetitionsUnder the federal habeas corpus statute, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), where a state court has adjudicated the merits of a petitioner's claim, relief from a state court judgment of conviction may not be granted unless the state court's adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). The AEDPA also requires that state court findings of fact "shall be presumed to be correct," rebuttable only upon a showing of "clear and convincing evidence." Id. at § 2254(e)(1). In short, a federal habeas court applying the AEDPA standard "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d 129, 134 (2d Cir. 2002).
These standards apply to petitions filed on or after the AEDPA's April 24, 1996 effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997), cert. denied, 525 U.S. 859 (1998).
However, if the state courts did not adjudicate a federal habeas petitioner's claim "on the merits," this standard does not apply. Instead, the court must apply the pre-AEDPA standard of review, considering de novo both questions of law and mixed questions of law and fact. Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002); Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001). An "adjudication on the merits" in this regard is a "substantive, rather than a procedural, resolution of a federal claim. . . ." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). As stated by the Second Circuit in Sellan:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.Sellan v. Kuhlman, 261 F.3d at 312; see also Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001) ("A state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required.").
Here, the only claim raised in the habeas corpus petition that was directly addressed on substantive grounds by the Appellate Division is the claim that the trial court's preclusion of psychiatric evidence denied petitioner the constitutional right to present a defense. See People v. Miller, 659 N.Y.S.2d at 651, 239 A.D.2d at 889. However, the Appellate Division stated that it "considered [petitioner]'s remaining contentions, including those raised in the pro se supplemental brief, and conclude that they are without merit." Id. This kind of pronouncement by the Appellate Division has been found by the Second Circuit to qualify as an "adjudication on the merits" for the purposes of deferential AEDPA review, where there is no basis either in the history of the case or in the appellate court's opinion for believing that the petitioner's claims were denied on procedural or any other nonsubstantive grounds. See Brown v. Artuz, 283 F.3d at 498.
Upon review of the materials submitted to the state courts, including petitioner's primary and supplemental appellate briefs (Item 4, Ex. B) as well as his several applications for collateral relief from the conviction and sentence, I find that the claims raised in the present petition were "adjudicated on the merits" by the Appellate Division for the purpose of applying the deferential standards of federal habeas review mandated by the AEDPA. Under these standards, a federal court may grant habeas corpus relief only "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts . . .," or "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413 (2000) (O'Connor, J., concurring and writing for the majority in Part II). The federal court may not grant habeas relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant relief from the state court judgment, there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
In addition, the Second Circuit has indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, 340 F.3d 63, 72 (2d Cir. 2003). "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002).
As demonstrated by the following discussion, because petitioner cannot show that the adjudication of the merits of his claims in state court proceedings resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts, his application for a writ of habeas corpus is denied.
B. Petitioner's Claims
1. Preclusion of Psychiatric Evidence
Petitioner claims, as he did on his direct appeal, that the trial court's denial of his request for more time to secure a psychiatric expert resulted in the denial of his fundamental right to present a defense. The appellate court rejected this claim, noting that the Sixth Amendment right to present witnesses "is not unlimited, and the court must balance `the prosecution's interests in an orderly trial and adherence to procedural rules with defendant's right to present witnesses at trial.'" People v. Miller, 659 N.Y.S.2d at 651, 239 A.D.2d at 889 (quoting People v. Oakes, 168 A.D.2d 893, 894, 565 N.Y.S.2d 648, 649 (4th Dep't 1990), appeal denied, 78 N.Y.2d 957 (1991)).
In turn, the Oakes decision cited Taylor v. Illinois, 484 U.S. 400 (1988), in which the Supreme Court upheld an order excluding the testimony of a defense witness as a sanction for defense counsel's noncompliance with a discovery rule that required notice of intention to call the witness, and for misleading the court concerning his knowledge of the witness's whereabouts. While confirming that "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense," id. at 408, the Court held that this right must be balanced against the state's interest in an orderly trial. As stated by the Supreme Court in Taylor:
The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent's case. The trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses' testimony.Id. at 410-11. The Court declined to issue "a comprehensive set of standards to guide the exercise of discretion in every case," but articulated a list of some appropriate factors for trial courts to consider, including "the fundamental character of the defendant's right to offer the testimony of witnesses in his favor," balanced against the countervailing public interest in "[t]he integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process. . . ." Id. at 414-15; cf. Noble v. Kelly, 246 F.3d 93 (2d Cir.). cert. denied, 534 U.S. 886 (2001); Wade v. Herbert, 2003 WL 22956960 (E.D.N.Y. October 21, 2003).
Considered in light of these standards, the Fourth Department's determination in this case that Judge LaMendola's refusal to delay the trial any further to allow petitioner to continue to pursue an expert witness willing to testify in support of his extreme emotional disturbance defense was an appropriate exercise of the court's discretion in balancing petitioner's right to present witnesses in his own defense against the state's interest in an orderly trial. The court found that the case had been pending for almost 18 months and was trial ready, and defense counsel had advised the court that he was unsuccessful in his efforts to locate an expert. Indeed, defense counsel advised the court that he had contacted "several" psychiatrists with regard to petitioner's extreme emotional disturbance defense (SCR, Transcript of Motion 10/24/94, p. 2), but despite these "exhaustive efforts" was unable to obtain the services of an expert willing to testify on petitioner's behalf (SCR, Transcript of Motion 3/31/95, p. 2).
Petitioner's citation to United States v. Van Dyke, 14 F.3d 415 (8th Cir. 1994), and United States v. Austin, 933 F.2d 833 (10th Cir. 1991), is to no avail. In Van Dyke, the circuit court found on direct appellate review that the trial court abused its discretion by refusing to allow a clearly qualified witness to provide an opinion or explanation of a complex regulatory provision at issue in the trial. In Austin, the circuit court found error in the trial court's preclusion of an insanity defense by virtue of its rejection — primarily on the ground of remoteness — the reports of several psychologists and psychiatrists who had examined the defendant. In both of these cases, the courts were presented with tangible evidence which was ultimately determined by the appellate courts to be of assistance to the jury in understanding the issues. To the contrary, in this case the defense was provided ample opportunity during the period of nearly 18 months following indictment to develop psychiatric evidence in support of an extreme emotional disturbance defense, but was unable to do so. Petitioner has failed to come forward with any further information to show or suggest a reasonable likelihood that granting the defense additional time would have made a difference.
Accordingly, based on this court's review of the record under the deferential standards of the AEDPA, it cannot be said that the state courts' determination of petitioner's Sixth Amendment claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law.
Petitioner also claims that the trial court's decision allowing the prosecution to present Dr. Joseph as a rebuttal witness resulted in a denial of petitioner's right against self-incrimination. Respondent contends that this claim was not raised in the application seeking leave to appeal to the state Court of Appeals, and is therefore barred from federal habeas corpus review under the doctrine of procedural default. Upon review of the record in light of the requirements for habeas review, I agree with respondent.
As the Second Circuit has observed, if any aspect of habeas corpus jurisprudence is settled law, it is that a federal court may not grant a state prisoner's habeas petition "unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State; or . . . there is either an absence of available State corrective process; or . . . circumstances exist that render such process ineffective to protect the rights of the [prisoner]." 28 U.S.C. § 2254(b)(1); see Aparicio v. Artuz, 269 F.3d at 89. To satisfy this requirement, a petitioner must have presented "to the highest court of the pertinent state . . ." the substance of the same federal constitutional claims now urged in his federal habeas petition. Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990), quoted in Aparicio, 269 F.3d at 89-90.
When a claim has not been presented to the state's highest court, the federal habeas court may nonetheless deem it exhausted where there is an "absence of available State corrective process" under § 2254(b)(1)(B)(i), if it is clear that the presentation of the unexhausted claim in the state forum would be futile because it is barred from review by the state's procedural law and rules. Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). However, as noted by the Second Circuit:
This apparent salve . . . proves to be cold comfort to most petitioners because it has been held that when "the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred," federal habeas courts also must deem the claims procedurally defaulted.Aparicio v. Artuz, 269 F.3d at 90 (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). "[T]he procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim. . . ." Gray v. Netherland, 518 U.S. 152, 162 (1996); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001).
This distinction is important for another reason — dismissal of a habeas claim on the ground that it was procedurally defaulted is regarded as a disposition of the habeas claim on the merits, rendering a subsequent petition raising the same claim "successive" within the meaning of AEDPA. Turner v. Artuz, 262 F.3d 118, 122-23 (2d Cir.) (citing Carter v. United States, 150 F.3d 202, 205-06 (2d Cir. 1998)), cert. denied, 534 U.S. 1031 (2001); see also 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.").
In order to obtain federal habeas review of a procedurally defaulted claim, the petitioner must show cause for the default and prejudice, or demonstrate that failure to consider the claim will result in a miscarriage of justice ( i.e., the petitioner is actually innocent). Coleman, 501 U.S. at 748-50.
This procedural default doctrine and its attendant "cause and prejudice" standard are grounded in our concerns for federalism and comity between the state and federal sovereigns. It ensures that federal courts respect the "States' interest in correcting their own mistakes." The doctrine applies whether the default occurred at trial, on appeal or on state collateral review.Aparicio, 269 F.3d at 90 (quoting Coleman, 501 U.S. at 730, 732; also citing Murray v. Carrier, 477 U.S. 478, 490-92 (1986)).
Upon examination of petitioner's claim that the trial court violated his right against self-incrimination, I find that although this claim is exhausted, it was also procedurally defaulted by petitioner's failure to raise the issue in his application for leave to appeal to the state's highest court ( see Item 4, Ex. C). Because petitioner cannot present sufficient cause to excuse this procedural default, this claim is barred from federal habeas review.
"Cause" for a procedural default is established where a petitioner can show that (1) the factual or legal basis for a claim was not reasonably available to counsel, (2) some interference by state officials made compliance with the procedural rule impracticable, or (3) the procedural default is the result of ineffective assistance of counsel. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). Here, petitioner cannot show that the factual or legal bases for his defaulted claim were not reasonably available at the time of his application seeking leave to appeal to the New York Court of Appeals. Nor has petitioner alleged, and there is nothing in the record to suggest, that his failure to raise the claim in that application resulted from either interference by state officials or ineffective assistance of appellate counsel. Since petitioner cannot show cause for his procedural default, this court need not reach the question of whether he can show prejudice. See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) ("Since a petitioner who has procedurally defaulted in state court must show both cause and prejudice in order to obtain federal habeas review, we need not, in light of our conclusion that there was no showing of cause, reach the question of whether or not [petitioner] showed prejudice.").
As mentioned, procedural default may be excused where the petitioner can demonstrate "a sufficient probability" that the federal court's failure to review his claim "will result in a fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Coleman, 501 U.S. at 750). This narrow exception is "concerned with actual as compared to legal innocence. . . ." Sawyer v. Whitley, 505 U.S. 333, 339 (1992). To meet this standard, a petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496. "To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner has made no such showing here. He has offered no evidence, scientific or otherwise, to demonstrate the likelihood of his actual innocence, and therefor cannot satisfy the "fundamental miscarriage of justice" exception to the procedural default bar.
Accordingly, petitioner is not entitled to federal habeas corpus relief on the ground that the state trial court's preclusion of psychiatric evidence-in-chief, while allowing an examining psychiatrist to testify in rebuttal, denied petitioner his right to present a defense and his right against self-incrimination.
2. Prosecutorial Misconduct
Petitioner also seeks habeas corpus relief on the ground that the prosecutor's conduct at trial so infected the proceedings as to deny petitioner due process. As discussed above, this claim was raised by petitioner in his pro se supplemental brief at the intermediate appellate level, but was not addressed in his application for a certificate of leave to appeal to the state Court of Appeals. Petitioner raised the issue of "prosecutor misconduct" as one of the bases for appeal asserted in the pro se application for reconsideration which he submitted to the state Court of Appeals, but this application was rejected on the ground that "only one application for leave to appeal to the Court of Appeals is permitted in a criminal case" (Item 4, Ex. C) (citing N.Y. Court Rules § 500.10).
Section 500.10 provides, in pertinent part:
(a) Criminal Leave — Applications Pursuant to Criminal Procedure Law, § 460.20. Applications to the Chief Judge may be in letter form and should be sent to the attention of the clerk of the court, with one copy served on the adverse party. Only one application is available and the letter should indicate that an application has not been made to a justice of the Appellate Division.
Accordingly, petitioner has procedurally defaulted his prosecutorial misconduct claim, and has failed to show cause for the default, or fundamental miscarriage of justice, under the standards set forth above. This claim is barred from federal habeas corpus review. See Bossett, 41 F.3d at 829 (failure to raise issues in application for leave to appeal to state Court of Appeals precludes further consideration because appellant has already made the one request for leave to appeal to which he is entitled under N.Y.Court Rules § 500.10(a)); see also Howard v. Lacy, 58 F.Supp.2d 157, 162-63 n. 4 (S.D.N.Y. 1999) (claims procedurally barred where raised before Appellate Division, but not in application for leave to appeal).
3. Jury Charge
Petitioner also claims that the trial court erred in refusing to charge the jury that "humiliation" was an emotion to be included in its consideration of the affirmative defense of extreme emotional disturbance, and in refusing to charge manslaughter as a lesser included offense. This claim has been exhausted, and there has been no procedural default barring federal habeas review.
Generally, for an error in the jury charge to give rise to federal habeas corpus relief, a petitioner must carry a heavy burden. "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). According to the Supreme Court:
Before a federal court may overturn a conviction resulting from a state trial in which [an allegedly erroneous] instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.
. . .
. . . [T]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction itself so infected the entire trial that the resulting conviction violates due process.Cupp v. Naughten, 414 U.S. 141, 146-47 (1973); see also Estelle v. McGuire, 502 U.S. 62, 72 (1991). In making this determination, a court "must consider the challenged portion of the charge not `in artificial isolation,' but rather `in the context of the overall charge.'" Justice v. Hoke, 45 F.3d 33, 34 (2d Cir. 1995) (quoting Cupp, 414 U.S. at 146-47).
Upon review of the record on this case, it cannot be said that the state court's rejection of petitioner's claims with respect to the jury charge resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. First of all, read as a whole, the court's charge properly and fairly informed the jury of the essential elements of the affirmative defense of extreme emotional disturbance, as set forth in N.Y. Penal Law § 125.25(1)(a). Cf. People v. Moye, 66 N.Y.2d 887, 890 (1985); People v. Casassa, 49 N.Y.2d 668, 678-80 (1980). Indeed, the court charged nearly the entire text of the extended charge requested by petitioner ( compare Item 4, Ex. B, App. Brief, Appendix A, with T. 694-99). No authority has been cited, and none has been found, for the proposition that the federal due process clause requires the trial court to charge the jury that "humiliation," "repeated humiliation," or any other particular emotion may be included in its consideration of whether a defendant has established the extreme emotional disturbance defense.
N.Y. Penal Law § 125.25(1)(a) provides, in pertinent part:
[I]n any prosecution under this subdivision, it is an affirmative defense that . . . [t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be.
Secondly, petitioner cannot establish a due process violation by virtue of the trial court's denial of his request to charge manslaughter in the first degree as a lesser included offense to the charge of murder in the second degree. The Supreme Court has expressly declined to consider whether the federal due process clause requires a trial court to submit jury instructions regarding lesser included offenses in noncapital cases, see Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980), as has the Second Circuit. See Rice v. Hoke, 846 F.2d 160, 164 (2d Cir. 1988); accord Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir.) ("Neither the Supreme Court nor this circuit has decided whether the failure to instruct the jury on lesser included offenses in noncapital cases is a constitutional issue that may be considered on a habeas petition."), cert. denied, 515 U.S. 1136 (1995). Therefore, "a decision interpreting the Constitution to require the submission of instructions on lesser-included offenses in non-capital cases would involve the announcement of a new rule," Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996), i.e., a rule that "breaks new ground or imposes a new obligation on the States or the Federal Government." Teague v. Lane, 489 U.S. 288, 301 (1989). Accordingly, even if petitioner were correct that, based on the trial evidence, a jury could have found that he committed first-degree manslaughter, but not second-degree murder, the trial court's determination that the lesser-included offense did not have to be charged to the jury cannot be said to have been contrary to, or to have involved an unreasonable application of, clearly established federal law.
For these reasons, petitioner is not entitled to habeas corpus relief on the ground that the trial court erred in refusing his requests to charge.
4. Twelve Jurors
Finally, petitioner claims that his Sixth Amendment right to trial by a jury of twelve was denied by virtue of the prosecutor's oral agreement with a juror, obtained during summation, that the People had proven their case. This claim is denied. There is no federal constitutional right to have a verdict rendered by a jury of twelve. Williams v. Florida, 399 U.S. 78, 101-03 (1970); see also United States v. Stratton, 779 F.2d 820, 831 (2d Cir. 1985) (citing Fed.R.Crim.P. 23(b)), cert. denied, 476 U.S. 1162 (1986); cf. Cabberiza v. Moore, 217 F.3d 1329, 1333-34 (11th Cir. 2000) (rejecting federal habeas petitioner's claim that he was denied right to fair trial by state trial court's failure to follow state law requiring waiver of twelve-person jury on the record, since jury of twelve is not constitutionally required in first instance), cert. denied, 531 U.S. 1170 (2001). Accordingly, the state court's rejection of this claim cannot be said to have been contrary to, or to have involved an unreasonable application of, clearly established federal law.
(b) Jury Size.
Stratton23
Juries shall be of 12 but . . . if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.
(1) In General. A jury consists of 12 persons unless this rule provides otherwise.
(2) Stipulation for a Smaller Jury. At any time before the verdict, the parties may, with the court's approval, stipulate in writing that:
(A) the jury may consist of fewer than 12 persons; or
(B) a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins.
(3) Court Order for a Jury of 11. After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror.
23
CONCLUSION
For the reasons set forth above, the petition for habeas corpus relief under 28 U.S.C. § 2254 is denied, and the case is dismissed. The Clerk of the Court is directed to enter judgment in favor of respondent.Pursuant to 28 U.S.C. § 1915(a)(3), the court certifies that an appeal from this decision and order may not be taken in forma pauperis because such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The court also finds that the petition presents no question of substance for appellate review, and that petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
So ordered.