Opinion
Nos. 99-CV-1617 (JBW), 03-MISC-0066 (JBW)
July 3, 2003
MEMORANDUM, JUDGMENT ORDER
A hearing was held in this matter. Petitioner was present. The petition for a writ of habeas corpus is denied for the reasons stated orally at the hearing. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Police officers surveilling petitioner's apartment building observed petitioner and the occupants of his car walk in and out of his building. When petitioner started the engine of his car, officers blocked it from leaving the driveway. Petitioner's apartment was searched pursuant to a search warrant which was issued to search the apartment of a person known only as "Pro." Police were able to enter the apartment using the set of keys from petitioner's car. Inside the apartment police found, among other things, a loaded nine-millimeter handgun, two cellular phones with a recharger, an employment application, a photograph of petitioner, envelopes addressed to petitioner at that address, an envelope addressed to petitioner at another address, petitioner's social security card, and his birth certificate. Also found were eight plastic bags of crack cocaine weighing about eight ounces, a triple beam scale, an electronic scale, surgical masks, and empty vials. Officers noticed a safe in one of the bedrooms, and asked petitioner to open it. He did so, relying on his memory for the combination. Inside the safe was, among other things, a photograph of petitioner, nearly $5000 in cash, and an address book.
Petitioner was charged with first, third and fourth degree criminal possession of a controlled substance, fourth degree criminal possession of a weapon, and second degree criminal use of drug paraphernalia. He was found guilty after a jury trial of third degree criminal possession of a controlled substance and two counts of second degree criminal use of drug paraphernalia. Sentence was 8-1/3 to 25 years in prison.
Petitioner appealed. The Appellate Division affirmed his conviction and sentence. Leave to appeal to the New York Court of Appeals was denied. No collateral proceedings were initiated.
In the present application for a writ of habeas corpus, petitioner claims (1) that the trial court committed reversible error when it denied counsel's request for a missing witness charge with respect to the confidential informant whose testimony would be material to the charge and who was available and under the prosecution's control; (2) that petitioner was deprived of his right to trial by a jury of his choice when the trial court discharged a sworn juror on the ground that the juror was unavailable for continued service where the juror was reported as ill and the court denied defense counsel's request that it adjourn to the following day to allow the juror to attend; (3) that in this circumstantial case the evidence adduced was insufficient to establish to a moral certainty and to the exclusion of any other hypothesis petitioner's possession of the cocaine and paraphernalia that was found in the apartment, and that the verdict was against the weight of the evidence; (4) that the cumulative effect of multiple errors committed by the trial court in unreasonably limiting defense counsel's cross-examination of witnesses, failing to discharge the panel after the prosecutor made comments about the terrible problem drugs are in society, unfairly marshaling the evidence, and giving unfair and prejudicial hypotheticals, deprived petitioner of his right to confrontation and to present a full defense; (5) that petitioner was denied due process and the ability to defend by presenting witnesses of his own choosing when the trial court precluded defense counsel from calling an expert witness to refute the testimony of the prosecution's chemist with respect to the alleged drugs recovered in the apartment; and (6) that the hearing court erred in failing to preclude the prosecution from introducing evidence that petitioner opened the safe in the apartment on the instructions of the police officer based on the failure of the prosecution to give notice pursuant to section 710.30 of the New York Criminal Procedure Law and further failing to suppress the evidence as involuntarily and unlawfully obtained.
Petitioner is presently on parole and released from prison.
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 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lyrle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "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 writing for the majority in this part). Under the "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. "[Flederal 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). 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.C. § 2254 (e)(1).
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. No other issue open to consideration by this court has merit.
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 tights." 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. § 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 state 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.
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 "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). When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996).
V. Certificate of Appealability
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. No other issue open to consideration by this court has merit. 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").
VI. Analysis of Claims
Each of the claims raised in the instant petition was raised on direct appeal. Each was either rejected on the merits or denied as "either unpreserved for appellate review or without merit." People v. Morales, 670 N.Y.S.2d 591, 592 (App.Div. 1998). Each claim is deemed to have been decided on the merits by the Appellate Division. Leave to appeal each claim was sought and denied by the New York Court of Appeals. All claims have been exhausted and none are procedurally barred.
Petitioner first claims that the trial court committed reversible error when it denied counsel's request for a missing witness charge with respect to the confidential informant whose testimony would be material to the charge and who was available and under the prosecution's control. Petitioner states that the informant's testimony would be relevant because the informant possessed the only evidence that might have been adduced at trial that petitioner had any control or dominion over the apartment in which the drugs were found. The informant provided the information that led to the issuance of a search warrant for the apartment. Petitioner notes that the lease for the apartment was not in his name, that other people lived in the apartment, and that petitioner lived elsewhere.
Petitioner can point to no clearly established Supreme Court precedent requiring a trial court to instruct the jury with respect to a missing witness. At any rate, "[w]hether a missing witness charge should be given lies in the sound discretion of the trial court." Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992), quoting United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988) (citations omitted). The trial court did not abuse its discretion in the instant case when it determined that the informant's testimony would not be relevant. See Trial Tr. at 1079. The informant was not a witness to the events on the date of petitioner's arrest. To the extent that the informant would testify about seeing petitioner at the apartment on an earlier date, the informant's testimony would be cumulative to that of an officer who testified he saw petitioner emerge from the apartment several days earlier.
The trial court did not abuse its discretion in refusing to grant a missing witness charge. Habeas relief is not warranted on this ground. Nothing precluded defense counsel's argument on the point. Under these circumstances it would be rare for a federal trial judge to give such a charge.
The informant's relevance to the propriety of the issuance of the search warrant is not at issue in the present petition. Even if it were, because the court held a full and fair hearing on the matter, any claim based on the search warrant would be barred pursuant to Stone v. Powell, 428 U.S. 465 (1976).
Petitioner claims that he was deprived of his right to trial by a jury of his choice when the trial court discharged a sworn juror on the ground that the juror was unavailable for continued service where the juror reported ill and the court denied defense counsel's request that it adjourn to the following day to allow the juror to attend. The trial court suspected that the juror was malingering because he was intent on attending his son's kindergarten graduation. Nonetheless, the court discharged the juror in order to keep the trial moving, hoping to have it completed before the July 4 holidays. Respect for the other juror's desires to celebrate the holiday supported the soundness of the trial court's decision.
Petitioner can point to no clearly established precedent from the Supreme Court requiring a hearing into an ill juror's availability. Under section 270.35 of the New York Criminal Procedure Law, "If at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving by reason of illness or other incapacity, . . . the court must discharge such juror." The New York Court of Appeals has explained that dismissal of a juror should be done advisedly:
A trial court's decision dismissing a juror must safeguard the important right of a defendant to be tried by jurors in whose selection the defendant has had a voice. It thus necessitates a reasonably thorough inquiry and recitation on the record of the facts and reasons for invoking the statutory authorization of discharging and replacing a juror based on continued unavailability. This requires a reasonable attempt to ascertain where the absent juror is, why the juror is absent, and when the juror will be present. Several benefits flow from this rule: a defendant's rights are protected; the statute can be properly employed; and appellate courts, in the exercise of their respective powers, will be able to review the determination based on an adequate record.People v. Page, 526 N.E.2d 783, 785 (N.Y. 1988).
The trial court did not abuse its discretion by concluding, based on the information before it, that the juror was unavailable and that the orderly progress of the trial required the seating of an alternate. Sufficient inquiry was made. Habeas relief is not warranted on this ground,
Petitioner claims that in this circumstantial case the evidence adduced was insufficient to establish to a moral certainty and to the exclusion of any other hypothesis petitioner's possession of the cocaine and drug-related paraphernalia that was found in the apartment, and that the verdict was against the weight of the evidence. The relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). Petitioner's claim is without merit. Viewed in the light most favorable to the prosecution, evidence that petitioner possessed keys to the apartment, had memorized the combination of the safe, and kept personal papers and photographs in the apartment, is sufficient to have established that petitioner enjoyed constructive possession of the drugs and drug paraphernalia that were found in the apartment. As the trial court repeatedly held during the trial, it was not necessary for the prosecution to show that petitioner was the leaseholder of the apartment or that he lived in the apartment. No habeas relief is warranted on this claim.
Petitioner claims that the cumulative effect of multiple errors committed by the trial court in unreasonably limiting defense counsel's cross-examination of witnesses and failing to discharge the panel after the prosecutor made comments about the terrible problem drugs are in society deprived petitioner of his right to confrontation and to present a full defense to the charge. The gist of these claims appears to be that the trial court refused to allow petitioner to argue that the real possessor of the drugs and drug paraphernalia recovered at the apartment belonged to another police suspect, and that this suspect was the confidential informant the prosecution refused to call as a witness.
The right to cross examination "is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Pointer v. Texas, 380 U.S. 400, 405 (1965). A defendant, however, is not entitled to cross-examine in whatever way to whatever extent" he may wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985). There is considerable discretion to limit cross-examination.
Petitioner complains primarily about limitations on his cross examination of a police officer. The transcript reveals that the prosecutor's objections generally were sustained where defense counsel's questions were repetitive, irrelevant, speculative, argumentative, or misleading. Others were sustained to prevent the admission of hearsay statements. A number of objections were overruled. See Trial Tr. at 587-627.
Petitioner appears most concerned about objections that were sustained when petitioners s counsel sought to elicit testimony concerning the confidential informant. Generally speaking, these objections were sustained because the trial court appears to have determined that the identity of the confidential informant was a tangential issue that did not bear on the question of whether petitioner possessed the drugs that were found in the apartment. Although a federal court may well have provided a criminal defendant with more leeway in his cross-examination of prosecution witnesses, the evidentiary rulings were reasonable and within its discretion. See Wade v. Mantello, ___ F.3d ___, 2003 U.S. App. Lexis 11714 (2d Cir. June 13, 2003) (majority supports denial of habeas corpus writ where evidence was much more probative of lack of guilt than in the instant case, on ground of discretion). Petitioner was not deprived of an opportunity to cross-examine state witnesses or to otherwise rely upon the argument that another person was the guilty party. The trial court did not abuse its discretion. Petitioner was not denied a fair trial. Habeas relief is not warranted on this ground.
The trial court's charge to the jury that petitioner could be found guilty beyond a reasonable doubt even though the police did not employ certain investigative techniques (such as fingerprinting of evidence) was not improper and did not deny petitioner a fair trial. "In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147. The trial court's instruction was not erroneous. Habeas relief is not warranted on this ground.
Petitioner's complaint that the trial court erred by interrupting the summation of his defense counsel is likewise without merit. Counsel's strategy throughout the trial was to suggest that the unidentified confidential informant was in fact the person responsible for the drugs found in the apartment. In his summation, counsel sought to call the jury's attention to the confidential informant's absence from the trial, claiming that the prosecution did not produce the confidential informant because he would testify that petitioner was not the person he identified, in aiding the police to gain a search warrant, as "Pro." The trial court at that point told the jury that the legality of the search warrant had already been determined by the court and was not an issue for it to decide. That instruction was not an abuse of discretion.
Petitioner does not anywhere in his petition describe the nature of the prosecution's improper commentary on the general problem of drugs in society, nor does he explain in what way he was denied a fair trial as a result of these comments. Nor is this claim developed in his appellate brief. At any rate, given the strength of the evidence against petitioner, it is exceedingly unlikely that any comments by the prosecution prejudiced petitioner sufficient to warrant habeas relief. It can be assumed that every juror was fully aware of the drug problem in this city; the prosecutor was not telling the jurors anything they didn't know. Such comments would not affect the verdict. The claim is without merit
Petitioner next claims that he was denied due process and the right to "confront the accusation against him" by presenting witnesses of his own choosing when the trial court precluded defense counsel from calling an expert witness to refute the testimony of the prosecution's chemist with respect to the alleged drugs recovered in the apartment. There is no merit to this claim. The court allowed petitioner an opportunity to explain why he felt an expert, paid for at county expense, was justified to rebut something about the testimony offered by the prosecutions chemist. The trial court found that nothing about the chemist's testimony justified the calling of an expert and that the court would not authorize funds for an expert. Nonetheless, the trial court did rule that petitioner could call an expert, so long as the expert testified either that evening or the next morning. The trial court's decisions with respect to payment for an expert and scheduling matters in the courtroom were not an abuse of discretion. No habeas relief is warranted on this ground.
Petitioner also claims that he was precluded from calling an employee of Consolidated Edison to testify that petitioner's name was not on the account for utility service for the apartment. This claim is without merit. The prosecution and defense agreed to a stipulation that bills for electric service were made out to a person other than petitioner. The trial court refused to allow a Consolidated Edison employee to testify because the issue of whether other persons occupied the apartment was tangential to the question of whether petitioner was in control of the drugs found in the apartment on the day of the execution of the search warrant. This decision by the trial court was not an abuse of discretion. Petitioner was not denied any constitutional right. Habeas relief is not merited on this ground.
Petitioner finally claims that the hearing court erred in failing to preclude the prosecution from introducing evidence that petitioner opened the safe in the apartment on the instructions of the police officer based on the failure of the prosecution to give notice pursuant to section 710.30 of the New York Criminal Procedure Law and further failing to suppress the evidence as involuntarily and unlawfully obtained. A defendant who has made an inculpatory statement to a public servant has the statutory right in New York to be informed by the state, prior to trial, that it intends to use the defendant's statement at trial — if the statement would be suppressible at trial had it been made involuntarily. The relevant statute states in pertinent part:
1. Whenever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible . . ., they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.
2. Such notice must be served within fifteen days after arraignment and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial . . . to suppress the specified evidence. For good cause shown, however, the court may permit the people to serve such notice, thereafter and in such case it must accord the defendant reasonable opportunity thereafter to make a suppression motion.
3. In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible . . . .
N.Y. Crim. Pro. Law § 710.30. As the New York Court of Appeals has explained, section 710.30 has its origins in Jackson v. Denno, 378 U.S. 368 (1964), in which the Supreme Court held that such statements may not be considered by a jury until there has been a determination by a separate factfinder that the statements were made voluntarily. People v. O'Doherty, 517 N.E.2d 213, 216 (N.Y. 1987). Underlying the procedural scheme framed by the statute are "considerations of fairness to the defendant" and "concerns for the efficient conduct of criminal prosecutions." Id. at 218. A defendant's inculpatory statements will be precluded if the state fails to show good cause for its failure to timely inform the defendant that his statement will be introduced at trial — even if the defendant cannot show that the untimely notice resulted in any harm to his defense. Id.
As the Appellate Division explained in the instant case,
the hearing court did not err in denying the defendant's motion to suppress evidence that he opened a locked safe found in the apartment during the execution of the search warrant. Although the defendant asserts that this evidence should have been excluded because he was not notified of the People's intention to introduce it at trial pursuant to CPL 710.30, the statutory notice requirement applies only to "evidence of a statement made by a defendant." The defendant's conduct in opening the safe was not a statement intended to communicate any information, and therefore no CPL 710.30 notice was required.Morales, 670 N.Y.S.2d at 592. This conclusion is a reasonable application of state and federal evidentiary rules. Habeas relief is not warranted on the claim.
VII. Conclusion
The evidence against petitioner was overwhelming. The few fly specks of possible error did not affect the outcome.
The petition for a writ of habeas corpus is denied.
A certificate of appealability is granted with respect to petitioner's claims that he should have been permitted cross-examination and otherwise to show that another person — the informer — possessed the drugs and the apartment. The certificate is granted because of the split decision in the Wade case and its problematic nature on the issue of probative force of evidence of a perpetrator other than defendant. Petitioner made no substantial showing of the denial of a constitutional right in any other respect. Petitioner has a right to seek a further 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).
SO ORDERED.