Opinion
00-CV-3438 (JBW), 03-MISC-0066 (JBW)
June 10, 2003
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. Facts and Procedural History
Petitioner was charged primarily with second degree attempted murder and first degree assault for a shooting that left the victim, William Cruz, a paraplegic. Cruz testified at trial that a friend and petitioner had been in an argument. Cruz had tried to visit petitioner to try to patch things up between the two men, but petitioner was not at home. Cruz then went across the street to speak with a friend of his, Margarita Gonzalez, who was standing in front of an apartment building. About an hour later, petitioner rode by on his bike and Cruz asked him what had happened between him and Cruz's friend. Petitioner responded, "I will show you," took out a gun and shot Cruz three times in the back as he tried to run away.
Cruz reported to the police at the scene that "Mafia" — a nickname for petitioner — had shot him, and described his assailant as a short, light-skinned, hispanic man riding a bicycle. Petitioner was arrested several months later.
At trial, Gonzalez also testified, but she stated that she could not see the shooter. After she testified, the prosecution sought to introduce as direct evidence Gonzalez's prior, sworn taped statement in which she identified petitioner as the shooter. In doing so, the prosecution claimed that petitioner had made direct threats against Gonzalez. The court held a Sirois hearing to determine the admissibility of the prior sworn statement. At the hearing, a police detective testified that he interviewed Gonzalez and her sister. The sister told the detective that petitioner, while incarcerated and during jury selection, had phoned her and stated, "I hope everything turns out all right because I don't want my family having problems with your family." Trial Tr. at 415. The detective also stated that petitioner had spoken with Gonzalez and said "if everything don't go all right, you are not going to live long." Id. Defense counsel, in contrast, stated that Gonzalez had on more than one occasion denied seeing the shooter.
The trial court found by clear and convincing evidence that Gonzalez was "unavailable" to testify as a witness due to petitioner's threats, specifically finding that Gonzalez "was clearly lying to the jury and lying because she was absolutely terrified of this defendant." Id. at 433. The taped statement was allowed into evidence in the prosecution's case in chief.
Petitioner was found guilty of second degree attempted murder, first degree assault, and second degree criminal possession of a weapon. He was sentenced to 12-1/2 to 25 years in prison.
His conviction and sentence were affirmed by the Appellate Division on direct appeal. That court stated that the "cumulative evidence and the inferences that logically flow therefrom were sufficient to support [the trial court's] determination . . . under the clear and convincing evidence standard, that defendant either was responsible for or had acquiesced in the conduct that rendered [the witness] unavailable for trial." People v. Nunez, 259 A.D.2d 502, 502 (N.Y. A.D. 1999) (quotation omitted). Leave to appeal to the New York Court of appeals was denied.
In the instant application, petitioner claims only that the admission of Gonzalez's taped statement as evidence in chief denied him due process of law. The claim is exhausted and was not procedurally defaulted in state court.
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. Lytle, 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. "[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). 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. 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").
III. Instant Claim
The claim is that the admission of Gonzalez's taped statement as evidence in chief denied him due process of law. For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976).
Petitioner has not demonstrated that he was denied a fundamentally fair trial. The trial court's factual determination that the witness was threatened by petitioner is presumed correct and is. at any rate, perfectly reasonable. Cf. Fed.R.Evid. 804(a) (absence of witness "due to the procurement or wrongdoing . . . for its purpose of preventing the witness from . . . testifying"). The trial court's decision to allow the statement into evidence as part of the prosecution's case in chief was not improper under New York law, see People v. Cotto, 699 N.E.2d 394, 398 (N.Y. 1998), and does not offend the Constitution. Even if the evidentiary ruling was error, in light of the victim's identification and testimony, it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted). No habeas relief is warranted on this ground.
IV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no 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). Any decision of the federal district court for which a certificate of appealability is granted will be reviewed de novo by the Court of Appeals.
SO ORDERED.