Opinion
01 Civ. 2910 (RWS)
October 15, 2001
ISRAEL OLIVIERI, JR., Petitioner Pro Se, Elmira Correctional Facility, Elmira, NY.
HONORABLE ROBERT T. JOHNSON, District Attorney, Bronx County, Attorney for Respondent, Bronx, NY, By: STUART P. LEVY, ESQ., ADAM L. GOLDMAN, ESQ. Assistant District Attorneys Of Counsel.
OPINION
Petitioner Israel Olivieri Jr. ("Petitioner" or "Olivieri") has petitioned for a writ of habeas corpus challenging his state court conviction and sentence for first- and second-degree robbery and second-degree assault, pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition will be denied.
Parties Olivieri is an inmate in the custody of the Elmira Correctional Facility in Elmira, New York. Respondent Floyd G. Bennett is the Superintendent of the Elmira Correctional Facility.
Background
On August 14, 1997, a Bronx County jury convicted Olivieri of Robbery in the First Degree, Robbery in the Second Degree, and Assault in the Second Degree. Olivieri was sentenced to concurrent terms of twenty years to life, twenty years to life, and twelve years to life, respectively.
On direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department, Olivieri, through assigned counsel, asserted that he was deprived of a fair trial because "[i]n a case that turned on witness credibility, the prosecutor repeatedly said in summation, over objection, that, in order to believe [Petitioner], the jury would have to conclude that the complainant, the police officer, and the eyewitness all lied, which violated [Petitioner's] due process right to a fair trial." (Petitioner's 1st Dep't Br. at i, 6). On May 23, 2000, the Appellate Division unanimously affirmed Petitioner's conviction and sentence on grounds that Olivieri's challenges were unpreserved. People v. Olivieri, 272 A.D.2d 223 (1st Dep't 2000).
On May 23, 2000, Olivieri sought review in the New York State Court of Appeals and his application for leave to that court was assigned to the Honorable Judith S. Kaye, Chief Judge of the New York State Court of Appeals. The Court of Appeals denied Petitioner's application for leave to appeal to the Court on August 25, 2000. People v. Olivieri, 95 N.Y.2d 869 (2000) (Kaye, J.). Acting pro se, Olivieri filed the instant petition for a writ of habeas corpus on March 20, 2001. The petition raises essentially five grounds for relief: (1) statements in the prosecutor's summation violated Petitioner's due process right to a fair trial; (2) Petitioner's conviction was obtained by the unconstitutional failure of the prosecution to disclose favorable information to him; (3) the evidence supporting Petitioner was never thoroughly investigated and authenticated by the police; (4) Petitioner was denied effective assistance of counsel; and (5) Petitioner's constitutional rights under the Fourteenth Amendment were violated by the prosecution when it withheld requested evidence that could have helped his case. The Respondent filed an answer on July 24, 2001 requesting summary dismissal of the petition, whereupon the motion was deemed fully submitted.
Discussion I.
Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254 Section § 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a federal remedy for state prisoners if their continued custody violates federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254(a).
Errors of state law are not subject to federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, petitioners must demonstrate that their convictions resulted from a state court decision that violated federal law. Id. at 68.
Before a federal court may grant habeas relief, however, the prisoner must "exhaust" his remedies by pursuing them in the state court system until no further relief is available there. See 28 U.S.C. § 2254(b), (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Daye v. Attorney General of New York, 696 F.2d 186, 190-91 (2d Cir. 1982). The rationale of this requirement is comity, or due respect for state courts, which Congress felt should have the first opportunity to pass upon convictions rendered in state courts. Duncan v. Henry, 513 U.S. 364, 365-66 (1995 (per curiam); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994).
Petitioners must also "fairly present" the constitutional nature of their claim to the state courts. Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995); Daye, 696 F.2d at 191. A petitioner may "fairly present" his federal constitutional claim by, for example, making explicit constitutional arguments, by relying on federal and state cases that employ a constitutional analysis, and by reasserting the claim in terms that call to mind a specific right protected by the Constitution or alleging facts that fall within the mainstream of constitutional litigation. Levine, 44 F.3d at 124; Daye, 696 F.2d at 194. But even "a minimal reference to the Fourteenth Amendment satisfies the exhaustion requirement." Reid v. Senkowski 961 F.2d 374, 376 (2d Cir. 1992).
Finally, federal habeas relief is barred where a state court rests its judgment on an independent and adequate state ground. See Lambrix v. Singletary, 520 U.S. 518, 522 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991); Harris v. Reed, 489 U.S. 255, 261-62; Jones v. Vasco, 126 F.3d 408, 414 (2d Cir. 1997).
A state procedural default qualifies as an adequate and independent state ground where "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Levine, 44 F.3d at 126. See also Jones, 126 F.3d at 414; Rollins v. Leonardo, 938 F.2d 380, 381 (2d Cir. 1991), cert. denied, 502 U.S. 1062 (1992). The procedural default will therefore bar federal habeas review "unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris, 489 U.S. at 262 (citations and internal quotations omitted). Where the last "reasoned" opinion on the claim explicitly imposes the procedural bar, it will be presumed that later unexplained orders upholding that opinion or rejecting that same claim did not silently disregard that bar and consider the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
II. Analysis of the Claims Raised
A. The Prosecutor's Summation
Petitioner's first claim is that he is entitled to habeas corpus relief because his due process right to a fair trial was violated by remarks made by the prosecutor in her summation. Petition at 5, attachment. More specifically, Olivieri asserts, as he did in his Appellate Division brief, that he was denied a fair trial because the prosecutor stated in her summation that, in order to believe Petitioner, the jury would have to conclude that the complainant, police officer, and eyewitness all lied. Petition at 5. Olivieri argues that such a statement was improper because "in actuality, petitioner simply wanted the jury to acknowledge that because of the initial false statement made by the complainant, the jury based their judgment [on his] . . . initial false testimony." Petition at 5, attachment.
This claim was submitted to both the Appellate Division and to the New York Court of Appeals. See Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir. 2000) (request by petitioner in motion for leave to appeal that the Court of Appeals "consider and review all issues outlined in defendant-appellant's brief" was specific enough to inform the Court of Appeals that petitioner sought review of all issues raised in his brief). Further, Petitioner presented the issue as a federal constitutional claim. Thus, the claim has properly met the exhaustion requirements.
Olivieri's claim fails, however, since the state court's decision relied on a procedural default that served as an independent and adequate state ground. Because the Court of Appeals denied Olivieri's leave application without explanation, the Appellate Division's decision of May 23, 2000 serves as the last "reasoned" opinion. In that decision, the Appellate Division held that Olivieri's challenges to the prosecution's summation were "unpreserved" as a matter of law and that the court declined to review them in the interest of justice. Olivieri, 272 A.D.2d at 223. The decision further stated that, hypothetically speaking, were the court to review Olivieri's claims, the court "would find that the challenged portions of the summation were responsive to credibility issues raised by defendant and did not deprive defendant of a fair trial, particularly in light of the overwhelming evidence of his guilt." Id. This serves as a clear indication that the Appellate Division relied solely on a procedural default in making its decision. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (holding that where a state courts 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).
With his claim being procedurally defaulted in state court, Olivieri could only have his first claim reviewed on federal habeas review if he "can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris, 489 U.S. at 262 (citations and internal quotations omitted). No such showing has been made here.
Finally, even if Olivieri had preserved the federal constitutional claim, the claim has no merit. When challenging a prosecutor's summation, a federal court may not overturn a conviction resulting from a state trial until it is established "not merely that the instruction is undesirable, erroneous or even `universally condemned,' but that it violated some right which was guaranteed to the petitioner by the Fourteenth Amendment." Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (quoting Cupp. v. Naughten, 414 U.S. 141, 146 (1973)). It is well established that "isolated passages of a prosecutor's argument, billed in advance to the jury as a matter of opinion, not evidence, do not reach [a Fourteenth Amendment violation]." Id. at 646. See also United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999) (finding no impropriety in prosecutor's use of the word "lie" to highlight evidence conflicting with petitioner's testimony or to characterize disputed testimony where credibility was an issue). Hence, the complained of comments in this case, which were responsive to credibility issues raised by Oliviero, see Olivieri, 272 A.D.2d at 223, do not constitute prosecutorial misconduct under federal constitutional standards.
B. The Remaining Claims
Olivieri further claims that he is entitled to habeas corpus relief because: (a) his conviction was allegedly obtained by the unconstitutional failure of the prosecution to disclose favorable information; (b) supporting evidence for Olivieri was allegedly never thoroughly investigated and authenticated by the police; (c) he was allegedly denied effective assistance of counsel; and (d) the prosecutor allegedly withheld requested evidence that could have helped Olivieri's case, thus violating his Fourteenth Amendment rights.
Unlike his first claim regarding the prosecution's remarks during summation, Olivieri never advanced these remaining claims on direct appeal to the Appellate Division or to the Court of Appeals in his leave application. Olivieri is procedurally barred from doing so now since the time to perfect an appeal to the Appellate Division from his criminal conviction has expired, see N.Y.Ct. Rules § 600.8(b), and he has made the one leave request to the Court of Appeals to which he was entitled, see N.Y.Ct. Rules § 500.10(a). New York has a mechanism for collaterally attacking a judgment that is in violation of a defendant's constitutional rights, see N.Y.Crim.Proc. Law § 440.10(1)(h), but any attempt to bring such a motion would be futile. Section 440.10(2)(c) precludes collateral review if the defendant unjustifiably failed to argue such a violation on direct appeal despite a sufficient record. See N.Y.Crim.Proc. Law § 440.10(2)(c). Because Olivieri has no further recourse in the state courts, they are deemed "exhausted" by virtue of Olivieri's procedural default and need not be presented to state court. See Harris v. Reed, 489 U.S. at 263 n. 9; Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994); Grey, 933 F.2d at 120.
Federal courts may address the merits of a claim that was procedurally defaulted in state court only upon a showing of cause for the default and prejudice to the petitioner. Bossett, 41 F.3d at 829; Grey, 933 F.2d at 121. Here, Olivieri has failed to show cause for the procedural defaults. Although Olivieri makes an ineffective assistance of counsel claim, that claim concerns only his trial counsel, and thus does not explain his failure to raise his remaining claims on appeal. Because neither cause nor prejudice has been shown with respect to Olivieri's procedurally defaulted claims, they are dismissed without reaching the merits.
Conclusion
For the reasons set forth above, the habeas corpus petition is denied. As Olivieri has not made a substantial showing of the denial of a Constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255 (2d Cir. 1997).
It is so ordered.