Opinion
9:97-CV-0167 (DNH)(GLS).
October 12, 2000
OFFICE OF MICHAEL J. HUTTER, MICHAEL J. HUTTER, ESQ., OF COUNSEL, Albany, NY, FOR THE PETITIONER.
HON. ELIOT SPITZER, Office of the Attorney General, State of New York, The Capitol, OF COUNSEL, DARREN O'CONNOR, ESQ., Ass't Attorney General Albany, NY, FOR THE RESPONDENT.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner Guy Montgomery ("petitioner" or "Montgomery") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on February 7, 1997. On February 26, 1997, then-Magistrate Judge David N. Hurd issued an order pursuant to the Rules Governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing the Office of the Attorney General for the State of New York ("Attorney General") to file a response. Docket No. 3. The Attorney General thereafter filed his response. See Docket Nos. 6-7.
Then-Magistrate Judge Hurd issued a Report recommending that the petition be denied and dismissed as untimely in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Docket No. 8. That Recommendation was adopted, and this case dismissed by order of now-Chief Judge Frederick J. Scullin, Jr., filed July 27, 1998. Docket No. 10. By Order filed June 15, 1999, now-Chief Judge Scullin vacated his prior Order and re-opened this matter due to the Second Circuit's decision in Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998), which established new guidelines controlling the timeliness of habeas petitions in light of the AEDPA. Docket No. 15. The respondent thereafter filed a supplemental response in opposition to the petition (Docket No. 17), to which the petitioner filed a letter-reply. Docket No. 18.
On October 15, 1999, this action was re-assigned to Judge Hurd (Docket No. 20), who had been appointed as a United States District Judge for the Northern District, and referred to the undersigned as Magistrate Judge for the purpose of preparing a Report and Recommendation.
II. Discussion
A. State-Court Proceedings Below
Montgomery was indicted by an Albany County Grand Jury for the crime of criminal sale of a controlled substance in the third degree. Transcript of criminal trial of Guy Montgomery (5/17-22/90) ("Tr.") at 2. Petitioner was indicted for having sold cocaine to a confidential informant of the Albany Police Department ("informant") on April 7, 1989. At Montgomery's jury trial, the prosecution presented testimony from a variety of individuals, including the detectives that observed the transaction, the informant and the officers who apprehended petitioner in August of 1989. The jury found Montgomery guilty, Id. at 449, and petitioner was thereafter sentenced to a term of imprisonment of 12 1/2 to 25 years as a repeat felony offender. Sentencing Tr. (6/19/90) at 16-17.
Petitioner appealed his conviction to the Third Department, Appellate Division ("Appellate Division"). However, before his appeal was decided, Montgomery filed his first pro se motion to vacate his sentence pursuant to Section 440.10 of New York's Criminal Procedure Law ("CPL"). The Hon. Thomas W. Keegan denied Montgomery's motion by decision dated August 24, 1990. On April 25, 1991, Montgomery filed another CPL motion to vacate the judgment of conviction; Judge Keegan denied this application by Order dated July 1, 1991. By Order dated August 19, 1991, the Appellate Division granted Montgomery leave to appeal the denial of this second CPL motion to the Appellate Division, and ordered that the appeal be heard together with petitioner's direct appeal of his conviction, which was still pending at the time.
On December 3, 1992, the Appellate Division affirmed Montgomery's conviction. People v. Montgomery, 188 A.D.2d 677 (3rd Dep't 1992), and the Court of Appeals denied petitioner leave to appeal. People v. Montgomery, 81 N.Y.2d 792 (1993).
On October 26, 1993, petitioner filed a third CPL motion ("October CPL Motion") in which he claimed that newly discovered evidence — the trial transcript Montgomery obtained relating to the case of People v. Marshall ("Marshall") — warranted a reversal of his conviction. Specifically, petitioner contended that a key witness for the prosecution, Ovise Sprigs, testified at Montgomery's criminal trial that he had never used cocaine (Tr. at 270) or been convicted of possessing cocaine (Id. at 284). Sprigs also testified at petitioner's trial that he had filed a notice of claim against the City of Albany merely to "follow up" on payments due to him as a result of his being out of town; and expressly denied that there was a dispute between Sprigs and the City of Albany as to how much money the City owed Sprigs. Id. at 264-65. Petitioner contends that at the Marshall trial (at which the criminal defendant was found not guilty), this same witness, who was again testifying on behalf of the prosecution, admitted that he had pleaded guilty to criminal possession of a controlled substance in the seventh degree, and that he had personally used controlled substances. Marshall Tr. at 19, 24 (Ex. C to October CPL motion). As to Sprigs' dispute with the City of Albany, Sprigs testified at the Marshall trial that he was not entitled to payment from the City unless the defendant was convicted of the crime, and that he had filed a notice of claim with the City alleging breach of contract and failure of performance of such contract in the amount of $16,000. Marshall Tr. at 36-38 (Ex. G to October CPL motion).
Due to the above discrepancies in Sprigs' testimony, Montgomery contended in his October CPL motion, inter alia, that during his trial the prosecution failed to turn over impeachment evidence relating to Sprigs, including his prior criminal conviction, and failed to correct perjured testimony. By Order dated July 31, 1994, the Hon. Thomas A. Breslin denied petitioner's October CPL motion. Judge Breslin noted:
Although defendant may have only recently obtained [the Marshall] transcript, this information would have been available after that trial and defendant cites no reason for any unavailability. These issues could have been raised on the appeal of his judgment of conviction . . . and could have been raised in his prior CPL article 440 motion and the appeal of the denial of his motion. . . . Accordingly, the motion is now denied.
The Marshall trial was held in February of 1990, prior to Montgomery's trial.
Decision and Order of Judge Breslin in People v. Montgomery (7/31/94) at 2 ("Judge Breslin Order"). The Appellate Division denied petitioner's application for permission to appeal Judge Breslin's Order to the Appellate Division.
Judge Breslin's Order also denied the application on the merits. Id. at 3-4.
B. Claims Raised in the Petition and Response in Opposition
Petitioner essentially asserts two grounds in support of the present petition. Montgomery claims that the prosecution (i) knowingly used false testimony of Sprigs during the trial, contrary to Montgomery's constitutional rights (Grounds One and Two); and, (ii) failed to disclose evidence that could have been used to impeach the credibility of Sprigs (Grounds Three and Four).
Respondent argues that the petition should be denied and dismissed. He contends that the present claims were raised in petitioner's October CPL motion, and that the County Court clearly and expressly denied them on the basis of a state procedural bar. Respondent further contends that petitioner cannot establish (i) cause for this procedural default, and actual prejudice as a result of the claimed violation; or (ii) that the failure to consider Montgomery's claims would result in a fundamental miscarriage of justice. Respondent alternatively argues that the petition should be denied on the merits.
C. Applicable Law
Because respondent argues that Montgomery is procedurally barred from seeking habeas relief in this Court, a review of the law relating to this theory is required.
Federal habeas review of a state-court conviction is prohibited if a state court rests its judgment on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261-62 (1989); Jones v. Stinson, ___ F.3d ___, 2000 WL 1476084, at *4 (2nd Cir. Oct. 5, 2000); Senor v. Senkowski, 1999 WL 689477, at *4 (E.D.N Y Aug. 31, 1999). If the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar, then the federal court may not review the claim unless the petitioner demonstrates both good cause for and actual prejudice, resulting from his noncompliance with the state's procedural rule. Garcia v. Lewis, 188 F.3d 71, 76-77 (2nd Cir. 1999) (citations omitted); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995); Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir. 1991). A further exception exists where the petitioner can show that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice;" namely, a person who is actually innocent has been convicted and incarcerated because of a constitutional violation. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Thus, the Court's initial inquiry must focus on whether petitioner has, in fact, procedurally defaulted on the claims he asserts herein.
The grounds raised in the present petition were first asserted by Montgomery in his October CPL motion. Judge Breslin's Order considered petitioner's arguments and denied the motion because the issues petitioner raised "could have been raised on the appeal of his judgment of conviction . . . and could have been raised in his prior CPL Article 440 motion and the appeal of the denial of his motion." Judge Breslin Order at 2.
Compare October CPL motion, affidavit of Guy Montgomery (10/26/93) at ¶¶ 3-5 with Grounds One through Four of the present petition.
The fact that Judge Breslin ultimately addressed the merits of petitioner's claim is of no moment; "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2nd Cir. 1990); Broome v. Coughlin, 871 F. Supp. 132, 134 (N.D.N.Y. 1994) (Kaplan, J., sitting by designation).
In claiming that this finding of Judge Breslin was erroneous, Montgomery argues that:
petitioner only found out about Sprigs' testimony at the Marshall trial in August of 1993, well after his appeal was decided, and his prior CPL § 440 motion was decided (and its denial affirmed). Thus, he was in no position to raise these claimed violations on those two prior occasions.
Docket No. 2 at 7 (emphasis in original); Docket No. 18.
At petitioner's criminal trial, his defense counsel specifically referred to the transcript in the Marshall case while cross-examining Detective Kenneth Kennedy of the Albany Police Department. Tr. at 123-125. Montgomery himself was present in the courtroom during this exchange. Id. at 118 (Judge Keegan noting presence of, inter alia, Montgomery in the courtroom). Thus, it is clear that, contrary to petitioner's assertions, he was not only aware, but in actual possession of, the Marshall transcript during his trial. In light of the above, petitioner's claim that Judge Breslin erred in finding that Montgomery could have raised those issues in his earlier challenges to the conviction is without merit. Thus, because Judge Breslin clearly and expressly denied the October CPL motion on state procedural grounds, the undersigned must consider whether petitioner has established "cause for the default and prejudice resulting therefrom." Senor, 1999 WL 689477, at *4, or alternatively, that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice."
To establish "cause," petitioner must show that some objective external factor impeded his ability to comply with New York's procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); Restrepo v. Kelly, 178 F.3d 634, 638 (2nd Cir. 1999). Examples of "external" causes include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray, 477 U.S. at 488; United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1992). However, "[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488).
Montgomery has not demonstrated any cause for his procedural default. No objective external factor has been alleged by petitioner to have impeded his or his attorney's ability to raise the claims relating to Sprigs' testimony in his direct appeal or prior CPL motions, nor does any cause for petitioner's procedural default appear anywhere in the record. As noted, Montgomery's contention that he was unaware of the Marshall transcript and Sprigs' testimony until after his appeals and prior 440 motions were decided is belied by the trial transcript of his own trial.
Because petitioner cannot establish cause for his procedural default, the court need not decide whether the petitioner suffered actual prejudice because federal habeas relief is unavailable unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).
However, the undersigned notes that Montgomery has also failed to establish prejudice. In order to demonstrate "prejudice," the petitioner must establish a reasonable probability that, but for the alleged violation of federal law, the outcome of his case would have been different. Restrepo, 178 F.3d at 638. No such showing has been made.
Finally, the Court cannot find that failure to consider the merits of Montgomery's claims would result in a fundamental miscarriage of justice, which this Circuit has interpreted as amounting to "an unjust incarceration." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2nd Cir. 2000). Therefore, Montgomery is not entitled to habeas relief on this theory. In light of the above, the undersigned must recommend that the petition be denied and dismissed.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that petitioner's habeas petition be denied and dismissed, and it is further
ORDERED, that the Clerk serve a copy of this Order upon the parties by regular mail, and it is further
ORDERED, that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.
IT IS SO ORDERED.