Opinion
01-CV-0654 (IKW), 03-MISC-0066 (JBW)
October 28, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Pacts and Procedural History
Petitioner was convicted of second degree murder in the shooting death of an off-duty correction officer in Brooklyn, On five occasions during the three-week trial, the trial court permitted the jury to examine various exhibits which had been received in evidence. Each of these vie wings occurred in the jury room outside the presence of the court, the attorneys and defendant, but with defendant's awareness and without objection. The jury examined the exhibits only after they had been received in evidence. Before each viewing and at other times during the trial, the trial court admonished the jury not to discuss the evidence or the case itself.
Petitioner claimed on direct appeal, inter alia, that his right to be present at all material stages of his trial was abridged by this procedure. His conviction was affirmed by the Appellate Division. Leave to appeal to the New York Court of Appeals was granted. Over a dissent, the Court concluded that the viewing of the evidence by the jury was an "Ancillary" proceeding and that, under the circumstances of the instant case, his presence was not required. Citing Snyder v. Massachusetts, 291 U.S. 97 (1934), the dissenting judge wrote that reversal of the conviction was required.
No state collateral proceedings were initialed.
In his application for a writ of habeas corpus, petitioner claims that (1) his right to judicial supervision of the jury was abridged; and (2) he was denied his right to be present at a material stage of the proceeding.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(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),
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 R3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 R3d 1174, 1178 (10th Cir. 1999)), Under me "contrary to" clause, "a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and wilting for the majority in this part). Under die "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable," Id., at 411. In order to grant the writ 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).
"[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); see also Yung v. Walker, No. 01-2299, 2002 U.S. App, LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also 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. Tones v. Berbary, No. 02-24(53, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U-S.Q § 2254(e)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims, See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An 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 addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. g 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a stale prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following;
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state easelaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision),
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved, See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Sit v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No, 02-2320, 2003 U.S. App, LEXIS 14450, at *15 (2d Cir. July IS, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure.
VI. Analysts of Claims
A
Petitioner first claims that his right to judicial supervision of the jury was abridged by the trial court's allowing the jurors to view evidence during the trial outside of the presence of the judge or parties.
Under New York state law some delegations of the judicial function cannot be cured by the consent of the parties, See, e.g., People v. Ahmed, 487 N.E.2d 894 (N.Y. 1985) ("absence of the trial judge from the courtroom for a portion of the jury's deliberations, during which time they were supervised by the judge's law secretary with the defendant's consent, constitutes a denial of the right to jury trial"). In a case roughly analogous to the instant one, the Appellate Division held that errors of this sort contributed to the need for a new trial:
The defendant . . . contends that the Trial Judge improperly absented himself during a reading back of testimony to the jury. During its deliberations, the jury asked that the testimony of the complainant be read back, The Judge granted the request, but stated that he would not be present in the court room while the court reporter was reading back the testimony, but that ho would be at his desk, so if "a problem" arose, the proceedings should be stopped and he should be notified immediately. In the presence of the defendant, counsel for both sides expressed their consent to this procedure. On appeal, however, the defendant, citing People v. Aimed ( 66 N.Y.2d 307), characterizes it as an impermissible delegation of judicial authority that reaches to the level of per se reversible error, notwithstanding the expressed consent of the parties. . . .
Although we agree with the People that the Judge's action here related to a matter far more ministerial than the extreme, substantive delegation in Ahmed, a Judge's absence from the court room during the reading back of testimony, with or without consent, is improper, and we strongly disapprove of it. It does not comport with the Judge's supervisory role ( see, People v. Silver, 240 A.D. 259), or with the established expectations and conventions that underlie the judicial function.People v. Lumpkin, 570 N.Y.S.2d 620, 622 (App.Div. 1991).
Nonetheless, claims of this sort must be preserved under New York state law. In the instant case, the New York Court of Appeals rejected the claim on procedural grounds, stating, "Contrary to defendant's contention, the Judge's absence from these vie wings did not constitute an error affecting `the organization of the court or the mode of proceedings proscribed by law' which can be reviewed on appeal even absent a timely objection in the trial court." People v. Monroe, 688 N.E.2d 491, 492 (N.Y. 1997) (quoting People v. Patterson, 347 N.E.2d 898, 902 (N.Y. 1976)). The Court went on to explain,
In this case . . . the jury examined the exhibits only after they had been received in evidence. Before each viewing and at other times during the trial, the Judge admonished the jury not to discuss the evidence or the case itself, which was sufficient to dispel the possibility of premature deliberation during the viewings. As a result, the viewings did not require any rulings or instructions and did not implicate any of the Judge's substantive roles in conducting the trial. The alleged error therefore does not fall within that narrowly drawn class of fundamental defects immune from the preservation requirement. Defendant at no time voiced any objection to the viewings, and when he finally did lodge a protest to a prospective viewing, it was on different grounds than advanced here. Thus, defendant's claim is unpreserved for this Court's review.Monroe, 688 N.E.2d at 492.
Because petitioner has not shown cause for failing to comply with New York's contemporaneous objection rule, further review in this court is precluded. Petitioner was not, moreover, denied a fundamentally fair trial or due process of law by the trial court's manner of conducting the trial He has not demonstrated that his constitutional right to a jury trial consisting of twelve jurors and a judge, see Capital Traction C v. Hof, 174 U.S. 1, 13-14 (1899), was violated sufficient to warrant granting of the writ on this ground,
B
Petitioner also claims that he was denied his right to be present at the juror's review of the evidence during trial, a material stage of the proceeding. This claim is exhausted and was rejected on the merits by the New York Court of Appeals, which stated;
Defendant's alternative claim, that he was denied his right to be present at the viewings, must also be rejected. Criminal defendants have the right to be present at all material stages of trial, which include the introduction of evidence ( see, CPL 260, 20; People v. Williams, 85 N.Y.2d 945, 947). Moreover, a defendant has the right to be present at ancillary proceedings where he or she may have "something valuable to contribute" ( People v. Morales, 80 N.Y.2d 450, 456), or where defendant's exclusion could "substantially affect the ability to defend against the charge" ( People v. Mitchell, 80 N.Y.2d 519, 527).
Given that the exhibits had already been received in evidence, the viewings here were at best an ancillary proceeding. Since defendant's potential contribution to the viewings was minimal, and on this record defendant's absence did not compromise his ability (o advance his position or counter the People's theory, defendant's presence was not required.Monroe, 688 N.E.2d at 492, Review proceeds under the deferential standards of AEDPA.
A criminal defendant has the right "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 5 (1975). The right to be present "is not absolute: it is triggered only when the defendant's `presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge,'" Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-06 (1934)).
The Court's conclusion that petitioner was not deprived of his constitutional right to be present at a material stage of the proceeding is not beyond critique. The dissenting judge cogently argued that the Court's decision in the case was formalistic;
Given that the critical event for purposes of the fact-finding process is the jury's actual exposure to the exhibits rather than the time when they are technically deemed "admitted" by the court, it follows that the defendant's due process and statutory right to be present attaches at the former, as well as the latter, time. Indeed, it seems illogical and unreasonable to suggest that the defendant must be present during the formal tender and acceptance of exhibits for admission, but that his presence may be dispensed with when those exhibits are actually shown to the jury. Certainly, the jurors' examination of the exhibits presents an occasion for meaningful participation by the accused, since their reactions are observable events that may well affect the defense's trial strategy ( see, People v. Williams, supra, at 947 [defendant's presence required where he or she "may assist counsel in evaluating and acting upon events which unfold during the course of the proceeding"]). For example, a defendant may notice a particular juror lingering for an unusually long time over a particular exhibit and. as a consequence, may suggest to his trial counsel that further exploration of the exhibit's significance is required.Monroe, 688 N.E.2d at 493 (Titone, J., dissenting).
Whether a federal court would have ruled on this question in the first instance by agreeing with the majority or the dissent is immaterial, It is the role of a habeas court to determine whether the decision of the New York Court of Appeals was either contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court, Under the circumstances of the instant case, the New York Court of Appeals' decision was a reasonable application of federal law as set forth by Snyder v. Massachusetts and Faretta v. California. Habeas corpus relief on this ground is not warranted.
C
No other issue open to consideration by this court — such as petitioner's contention that his statutory right to be present was violated — warrants habeas corpus relief. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VII. Conclusion
The petition for a writ of habeas corpus is denied.
A certificate of appeal ability is granted with respect to petitioner's claim that he was denied his right to be present at all material stages of his trial.
No certificate of appealability is granted with respect to any of petitioner's remaining claims, petitioner having made no substantial showing of the denial of a constitutional right,
SO ORDERED.