Opinion
No. 99 Civ 9634 (JGK)
January 9, 2002
This is a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 in which the petitioner challenges his July 6, 1994 state court conviction for Murder in the Second Degree (one count), Attempted Murder in the Second Degree (two counts), First Degree Criminal Use of a Firearm (two counts), Second Degree Criminal Possession of a Weapon (three counts), and Third Degree Criminal Possession of a Weapon (two counts). The petitioner contends that he was denied his right to a fair trial and due process by the allegedly improper comments of the prosecutor during the prosecutor's summation. He also contends that the prosecutor withheld favorable information from the defense and allowed a witness to testify falsely.
I.
The evidence at trial was sufficient to establish the following facts. on April 20, 1992, Rudolph Edwards and Richard Bramwell went to visit a friend, Glenmore Foster, at Foster's apartment in the Bronx. (Tr. at 847-48, 1029-1030, 1212-13.) When they arrived, the petitioner, Alexis Irizarry, and Delroy Lewin were already in Mr. Foster's apartment with Mr. Foster. (Tr. at 1213-15.) Shortly thereafter, first Irizarry (Tr. at 1038, 1268-70, 1455, 1653) and then the petitioner (Tr. at 1268, 1458, 1493-94, 1496, 1654-55) opened fire on Foster and Bramwell. Foster was shot and later died as a result of the shooting. (Tr. at 1039, 1811.) During the shooting, Lewin remained unflinching on a telephone call (Tr. at 945, 1003, 1492), but Edwards tried to stop the petitioner from shooting. (Tr. at 696-7, 1005-06.) Irizarry, however, hit Edwards on the head and the petitioner and Irizarry proceeded to "pistol whip" Edwards. (Tr. at 697-99, 1006, 1081-82, 1270-71.)
The petitioner and Irizarry demanded to know where the "weed" and "money" were. (Tr. at 699, 701-02, 704, 1086-87, 1273-275, 1307, 1505.) Bramwell insisted that he did not know. (Tr. at 1275.) The petitioner proceeded to shoot, but not kill, both Bramwell and Edwards. (Tr. at 712, 713-14, 718, 796, 951, 1084, 1093-95, 1128-30.) Edwards then escaped by running out the back door. (Tr. at 715-16, 795, 951-53, 1021-22, 1100.) Lewin quickly took some money out of a drawer (Tr. at 1280, 1525) and then the petitioner, Irizarry, and Lewin pursued Edwards out the back door. (Tr. at 1284, 1531.) While they were gone, Bramwell also managed to escape. (Tr. at 1285, 1304.)
The evidence at trial included the eyewitness testimony of Edwards and Bramwell together with their testimony that the petitioner offered them money to drop the charges against him. The testimony of Julia Colon, who saw three black men leaving the scene, corroborated the eyewitness testimony. Medical evidence also served to corroborate the testimony of Edwards and Bramwell.
On July 6, 1994, following a jury trial a judgment was rendered by the New York State Supreme Court, Bronx County convicting the petitioner of Second Degree Murder (one count), Attempted Murder in the Second Degree (two counts), First Degree Criminal Use of a Firearm (two counts), Second Degree Criminal Possession of a Weapon (three counts), and Third Degree Criminal Possession of a Weapon (two counts). The petitioner appealed the conviction to the New York State Supreme Court, Appellate Division, First Department. In the appeal, the petitioner alleged prosecutorial misconduct in the prosecutor's summation. Specifically, the petitioner alleged that the prosecutor announced a personal belief in the defendant's guilt, accused the defense counsel of unethical behavior, asserted that a key prosecution witness was telling the truth, and indicated that another prosecution witness was afraid to testify. On November 19, 1996, the Appellate Division affirmed the petitioner's conviction along with the convictions of co-defendants Irizarry and Lewin. People v. Irizarry, 650 N.Y.S.2d 105, 106 (App.Div. 199 6). On February 4, 1997, the Court of Appeals denied the petitioner's application for leave to appeal. People v. Palmer, 678 N.E.2d 1362 (1997).
The petitioner then filed a motion to vacate the judgment of conviction, pursuant to N.Y. Crim. Proc. Law § 440.10, alleging that the prosecution knowingly and willfully withheld favorable information from the defense and allowed a witness to testify falsely. On November 2, 1998, the New York State Supreme Court denied the petitioner's motion. People v. Palmer, No. 3664/92, slip op. at 1 (N.Y. Crim. Term Nov. 2, 1998). The Appellate Division denied the petitioner's application for leave to appeal. People v. Palmer, No. 3664/92, slip op. at 1 (N.Y.App.Div. Mar. 18, 1999)
The petitioner now seeks habeas relief, under 28 U.S.C. § 2254, on the same grounds he alleged in his direct appeal to the Appellate Division and in his motion pursuant to N.Y. Crim. Proc. Law § 440.10.
Because of the presence of disputed facts as to when the petition was filed, this court previously denied without prejudice the respondent's motion to dismiss the petition based on alleged untimeliness. See Palmer v. Senkowski, No. 99 Civ. 9634, slip op. at S (S.D.N.Y. Sep. 1, 2000). The respondent has not presented any facts on the present motion to resolve the factual dispute. The issue is moot, however, because the petition fails on the merits.
II.
The respondent first argues that the petitioner failed to present his claim of prosecutorial misconduct in the summation adequately to the state's highest court, because he did not state clearly the federal constitutional issues on which his claim was based. The respondent argues that the petitioner has therefore failed to exhaust his state remedies. However, state law procedurally bars the petitioner's claim, because he has already made his one available request for leave to appeal to the Court of Appeals. Therefore, the respondent contends, the petitioner's claim should be deemed exhausted but forfeited, unless the petitioner can show some external cause for his failure to present adequately his claim to the state's highest court and that he was prejudiced as a result, or if he can establish a miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 492-96 (1986)Before obtaining relief under 28 U.S.C. § 2254, a petitioner must exhaust his available state remedies. See 28 U.S.C. § 2254 (b)(1);see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Blisset v. Lefevre, 924 F.2d 434, 438 (2d Cir. 1991). To satisfy the exhaustion requirement, a petitioner must have fairly presented the substance of a federal claim to the state courts. See 28 U.S.C. § 2254(c); see also Picard, 404 U.S. at 275; Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Daye v. Attorney General of the State of New York, 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc). InDaye, the Court of Appeals for the Second Circuit stated that "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id. at 192. The Court of Appeals found that a state petitioner may "fairly present the substance of a federal constitutional claim to the state court, without citing book and verse of the federal Constitution." Id. at 192 (internal quotation omitted). The Court of Appeals explained that a petitioner can fairly present his constitutional claim to the state courts by any one of a number of means, including assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Id. at 194; see also Abdurrahman v. Henderson, 897 F.2d 71, 73 (2d Cir. 1990) (holding that a petitioner can alert state court of the federal nature of his claims by relying on federal and state cases employing constitutional analysis, asserting particulars that highlight a constitutional right, or alleging facts within the mainstream of constitutional litigation).
In the petitioner's direct appeal to the Appellate Division, the petitioner alleged prosecutorial misconduct in violation of his right to a fair trial. Consistent with Daye, the courts in this Circuit have often found that state appellate claims based on allegations of prosecutorial misconduct in violation of fair trial guarantees, but asserted exclusively under state law, mirror claims based on constitutional due process violations closely enough to excuse the absence of any reference to federal law in the state court proceedings. In Garofolo v. Coomb, for example, the Court of Appeals for the Second Circuit found that the petitioner had exhausted all available state court remedies by asserting claims of prosecutorial misconduct in his state appeals "because the claim of prosecutorial misconduct had sufficiently familiar federal constitutional implications to be within the mainstream of constitutional litigation." Garofolo v. Coornb, 804 F.2d 201, 206 (2d Cir. 1986); see also Saunders v. Riley, No. 90 Civ. 4738, 1991 WL 95352, at *5 (S.D.N.Y. May 30, 1991) ("petitioner's claim of misconduct on the part of the state trial prosecutor was sufficiently in the mainstream of constitutional litigation to 'fairly present' a federal issue to the state court.") As in Garofolo, by raising a prosecutorial misconduct claim at every stage of the state appellate process, the petitioner has fairly presented the substance of his federal constitutional claim to the state courts so that he has sufficiently exhausted available state remedies for the purpose of habeas review.
III.
Federal habeas corpus review of a state court decision concerning a prosecutor's comments is governed by 28 U.S.C. § 2254 (d)(1), whereby a petitioner's application may only be granted if the adjudication of the claim "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 . . ." 28 U.S.C. § 2254 (d)(1); see Williams v. Taylor, 529 U.S. 362, 402-03 (2001) (O'Connor, J. writing for the Court in part II of her opinion); Penry v. Johnson, 532 U.S. 782, 785 (2001); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001)
A state court decision is "contrary to" clearly established law within the meaning of § 2254(d)(1) if: (1) "the state court applies a rule that contradicts the governing law set forth" in the relevant Supreme Court precedents, or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court] precedent." Williams, 529 U.S. at 405-06. A state court decision involves an unreasonable application of" clearly established federal law if the state court's application of Supreme Court precedent to the facts of the case is "objectively unreasonable." Id. at 409. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410 (emphasis in original). Thus, "a federal habeas court may not issue the writ simply because the 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. Some increment of incorrectness beyond error is required, but "the increment need not be great . . ." Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). The increment need not be so great as to limit habeas relief to those state court decisions "so far off the mark as to suggest judicial incompetence." Id. (citation omitted); see Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Cotto v. Lord, No. 99 Civ. 4874, 2001 WL 21246 at *8 (S.D.N Y Jan. 9, 2001), aff'd, No. 01-2056, 2001 WL 1412350 (2d Cir. Nov. 8, 2001)
The Supreme Court has held that the test for whether a prosecutor's comments are a basis for habeas relief is whether the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974));see Millan v. Keane, 97 Civ. 3874, 1999 WL 178790 at *10 (S.D.N.Y. Mar. 31, 1999) Federal courts must distinguish between "ordinary trial error" and "that sort of egregious misconduct . . . amount[ing] to a denial of constitutional due process." Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (citing Donnelly, 416 U.S. at 647-48) The Court of Appeals for the Second Circuit has held that to obtain habeas relief for claims of improper prosecutorial remarks, the petitioner bears the burden to "demonstrate that he suffered actual prejudice because the prosecutor's comments had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994); see also Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) ("[p]rosecutorial misconduct . . . is grounds for reversal only when the remarks caused substantial prejudice to the defendant") (internal punctuation omitted); Floyd, 907 F.2d at 353 ("the question before a federal appellate court is whether the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair") (internal punctuation omitted). In evaluating whether the petitioner suffered actual prejudice, the following factors are relevant: (1) the severity of the prosecutor's conduct; (2) what steps, if any, the trial court took to remedy any prejudice; and (3) whether the conviction was certain absent the prejudicial conduct. See Bentley, 41 F.3d at 824 (citing Gonzalez, 934 F.2d at 424); see also Concepcion v. Portondo, No. 97 Civ. 3183, 1999 WL 604951 at *4 (S.D.N.Y. Aug. 10, 1999); Millan, 1999 WL 178790 at *10.
The petitioner accuses the prosecutor of misconduct in the summation based on four comments. First, the petitioner claims that the prosecutor announced a personal belief in the defendant's guilt. Specifically, the prosecutor stated in his closing remarks:
Mr. Greenfield [prosecutor]: I honestly believe in my own mind, it doesn't mean it has anything to do with you, that the evidence in terms of the material facts as to who was — Mr. Dudley [defense]: Objection. The Court: Overruled. Mr. Greenfield [prosecutor]: — in that house, as to who fired the guns, as to who fired the guns at whom, and as to who suffered the injuries and as to who intended to inflect [sic] those injuries was never in doubt. (Tr. at 2852.)
While the court did not sustain defense counsel's objection to the prosecutor's comments, the court subsequently issued the following curative instructions to the jury:
Now, the lawyers have told you how they would view the evidence and what they believe it means. They are not witnesses. What they've told you is their opinion, what they believe the evidence means and what you should, from their prospective [sic], believe the evidence to mean. All four lawyers have told you what they think the evidence means. That's not the evidence, and no matter how strongly they tell you now and they tell you I believe it, I believe it. It's not evidence, it's their view of the evidence. It's not binding on you. You can throw it all out because it's your view of the evidence that's important. The lawyers have vigorously expressed their views to you, and you can see as I told you you would at the beginning of the summations, that they disagree about lots of information in that record. It's your job to decide what you think the evidence says and what it means. (Tr. at 3079-80.)
These instructions reinforced a similar warning by the court just before the parties' closing statements. (Tr. at 2685.)
In addition, the prosecutor's comments were a fair response to defense counsel's summation. United States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998) (holding that, under the invited or fair response doctrine, the defense summation may open the door to an otherwise inadmissible prosecution rebuttal.) The defense summation included vituperative characterizations of the prosecution's case (Tr. at 2690, 2758), and the credibility of the prosecution witnesses (Tr. at 2701, 2788).
Furthermore, as the Appellate Division correctly determined, "The People presented overwhelming evidence that each of the defendants committed the crimes charged." People v. Irizarry, 650 N.Y.S.2d at 106.
The comments made by the prosecution in this case were not so egregious as to rise to the level of a due process violation. Here, the prosecutor was simply submitting what the evidence showed. Particularly in light of the clear evidence of the petitioner's guilt, and the court's curative instruction, the remark is not a basis for habeas relief. See Bradley v. Meachum, 918 F.2d 338 (2d Cir. 1990) (rejecting a due process challenge to a conviction based on the prosecutor's assertion of a personal opinion).
The petitioner's second claim of prosecutorial misconduct is based on the petitioner's January 2, 2002 allegation that the prosecution suggested to the jury that the defense counsel employed unethical legal tactics. The petitioner suggests that the prosecution portrayed the defense counsel as attempting to hide from the jury issues that were discussed with the judge outside the presence of the jury, calling the defense counsel's tactics "subtle tricks." (Tr. at 2857.) When the prosecutor made these remarks in summation, the defense counsel failed to object and the court did not issue any curative instructions. However, the prosecutor's comments were an explanation for why defense counsel had been able to predict what would be said in the prosecution summation, and plainly were not so egregious as to warrant habeas relief. Further, this comment could not have had any effect on the jury verdict in view of the overwhelming evidence of the petitioner's guilt.
The petitioner's third claim of prosecutorial misconduct is that the prosecution insisted that a key prosecution witness was telling the truth. In particular, the prosecution posed the following question to the jury: "Do you think [Mr. Bramwell] would lie while he's in jail, understanding that if you believe his lies, these guys go to jail, he is lying to put these guys next to him?" (Tr. at 2942.) At the time the prosecutor made the comment, defense counsel objected and the court promptly sustained the objection, and the defense requested no further curative relief. Id.
The prosecutor's brief rhetorical question to the jury was invited by the defense counsel's extended attack on the credibility of the prosecution witnesses, particularly Bramwell. For example, one defense counsel described testimony of the prosecution witnesses as "lie, after lie, after lie, after lie. . . . [A] stream of crap coming out of their mouths. . . ." (Tr. 2782.) Defense counsel further claimed that Bramwell decided to lie after going into the prosecutor's "magic room." (Tr. at 2720.) Defense counsel alleged that Bramwell was lying to "help his friend Detective Aiello to make his case better to get his deal." (Tr. at 2728.) Among other vitriolic denunciations of Bramwell were the following: "And if we are talking about chicken manure, that was a mountain of it . . . [T]his man was wacked out, weed addicted, whirly-derbin, a man who has been an admitted liar, a convicted felon at the age of 18 years old . . . A drug user . . . A drug dealer, a person who lives off his parents, a gun toting parasite." (Tr. 2700-01.) In light of the brevity of the prosecutor's comment, the prompt sustaining of an objection to it, the responsive nature of the remark, and the overwhelming evidence of defendant's guilt, the prosecutor's comments on the prosecution witness' credibility cannot serve as a basis for habeas relief in this case. See, e.g., United States v. Wilner, 523 F.2d 68, 73 (2d Cir. 1975) (holding that a prosecutor's otherwise inappropriate comments are not prejudicially erroneous where a "substantial portion of the defense summations was devoted to an attack upon Government witnesses."); Gonzalez, 934 F.2d at 424 (denying habeas relief where a prosecutor told the jurors that one witness did not lie because the prosecutor's comments were found to be responsive to the defense's attack on the witness' credibility); Bradley, 918 F.2d at 343; Lemus v. Artuz, 131 F. Supp.2d 532, 536 (S.D.N.Y. 2001); Donaldson v. Dalsheim, 508 F. Supp. 294, 297 (S.D.N.Y. 1981).
The petitioner's fourth claim of prosecutorial misconduct rests on the prosecutor's suggestion that a key prosecution witness was afraid to testify. Specifically, the prosecutor described one prosecution witness as follows: "Julia Colon testified with fear. It was palpable. You could feel it. You could cut it with a knife. You could cut it with a spoon. That is how thick it was." (Tr. at 2916-2917.) No defense objection was entered at the time of the comment. (Tr. at 2917.)
This remark was responsive to the possibly sarcastic comments by the defense counsel about Ms. Colon's testimony: "She has to be commended. Granted, she wasn't too thrilled about it, but we have to really give her our applause." (Tr. at 2779.) The prosecutor's comment was brief and, in light of its responsive nature, the lack of contemporary objection, and the overwhelming evidence of defendant's guilt, it is insufficient to rise to the level of a due process violation for purposes of habeas relief.
After considering the allegations of prosecutorial misconduct, the Appellate Division concluded: "The trial court appropriately exercised its discretion in denying defendants' belated motion for a mistrial based upon various comments made by the prosecutor in summation, and the court's curative actions assured that no undue prejudice would accrue to [defendant] ." People v. Irizarry, 650 N.Y.S.2d at 106. This conclusion was not contrary to or an unreasonable application of clearly established Federal law. Indeed, it was correct.
IV.
The petitioner also asserts that the claims he asserted in state court in support of his motion pursuant to N.Y. Crim. Proc. Law § 440.10 warrant federal habeas corpus relief. He contends that the prosecutor withheld favorable information from the defense and allowed a prosecution witness to testify falsely.
In particular, the petitioner claims that the prosecutor failed to disclose to the defense the details of a cooperation agreement between the prosecutor and Bramwell, a key prosecution witness, and allowed Bramwell to testify falsely by denying the existence of a deal. The petitioner claims that, in exchange for testifying against him, Bramwell received assurances of leniency in connection with a charge of criminal possession of a weapon that was pending against Bramwell in the New York State Supreme Court, Bronx County. The petitioner insists that there must have been a deal between Bramwell and the prosecutor because Bramwell had a prior conviction in Massachusetts and then pleaded guilty to a D felony gun charge, but only received a one year sentence — a sentence so minimal that it must have been the result of a bargain with the prosecutor.
The state trial court found that there was no evidence of any undisclosed "special deal" brokered between the prosecutor and the prosecution witness. Rather, the state trial court found that if Bramwell testified, the Bronx prosecutor would write a letter to the Massachusetts Parole Board asking that it lift the parole violation warrant for Bramwell that was issued for his failing to report as required. If the Massachusetts authorities were unwilling to vacate the warrant, the prosecutor would request that Bramwell be allowed to serve any parole violation sentence in New York State. There was no promise made with respect to the pending weapons case. People v. Palmer, No. 3664/92, slip op. at 3, 5-6 (N.Y. Crim. Term Nov. 2, 1998). This arrangement was fully disclosed to the defense and explored at trial. (Tr. 1221-24, 1449-51.) The state trial court noted that its finding was supported by its previous denial of a similar motion brought by the petitioner's co-defendant Irizarry in which the court also found that there was no evidence to support an undisclosed deal. People v. Irizarry, No. 3664/92, slip op. at 6 (N.Y. Crim. Term Nov. 13, 1996). In Irizarry's case, Assistant District Attorney Victor Brown, the prosecutor in charge of Bramwell's weapons case, had stated that no promises were made to Bramwell in exchange for testifying in the case against Irizarry which was, of course, also the case against the petitioner. Rather the plea and sentence recommendation in the weapons offense "was based solely upon [Bramwell's] criminal record and the merits of the case." (Affirmation at 1-2 (sworn on Nov. 1, 1996), in People v. Irizarry, No. 3664/92.) The factual finding by the state court that there was no undisclosed agreement is presumed to be correct, 28 U.S.C. § 2254 (e)(1), and there is no evidence in the record that there was such an undisclosed agreement. Since there is no evidence of an alleged "special deal," failure to disclose the alleged agreement cannot serve as a ground for habeas relief.
The petitioner also claims that the prosecutor allowed Bramwell to testify falsely by failing to require Bramwell to disclose the alleged cooperation agreement. Because there is no evidence that there was an undisclosed agreement, there is also no evidence of any false testimony.
Because there is no merit to the petitioner's arguments that he originally raised in his motion pursuant to N.Y. Crim. Proc. Law § 440.10, it is unnecessary to reach the respondent's argument that the state court denied these arguments in part on an independent and adequate state law ground that precludes federal habeas corpus relief without a showing of cause and prejudice or a miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 729 (1999). The trial court rejected the N.Y. Crim. Proc. Law § 440.10 motion on the ground that N.Y. Crim. Proc. Law § 440.30(4)(b) requires that a § 440.10 motion contain sworn allegations of fact "substantiating or tending to substantiate all the essential facts" of the motion. It is unnecessary to determine if this is an independent and adequate state procedural ground. Compare Muhammad v. Kirk, No. 90 Civ. 1667, 1993 WL 37502 at *4 (S.D.N.Y. Feb. 8, 1993) (holding that § 440.30(4)(d) is not an independent and adequate state law ground) with Pachay v. Strack, 1995 WL 479708 at *4 (E.D.N.Y. Aug. 4, 1995) (holding that § 440.30(4)(d) is an independent and adequate state law ground).
CONCLUSION
For the reasons explained above, the petition for habeas corpus is denied. The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 (c)(2) because the petitioner has failed to make a substantial showing of the denial of a constitutional right. The Clerk of the Court is directed to enter Judgment dismissing the petition and closing this case.SO ORDERED