Opinion
Case No. 99-CV-801 (FB)
December 5, 2000
Javier Reyes, Pro Se, Coxsackie Correctional Facility, Coxsackie, NY
Elliot Spitzer, Esq., Attorney General of the State of New York, By: Stacy Sabatini, Esq., Assistant Attorney General, New York, NY for Respondent
MEMORANDUM AND ORDER
Pro se petitioner, Javier Reyes ("Reyes"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
BACKGROUND
The relevant facts are as follows: Reyes, his brother, and three other men (the "defendants"), armed and disguised, forced their way into the house of Ibraham Housseini. The defendants stole money, clothing and electronic equipment from the house and its occupants; they also severely beat the three men that were in the house, and shot one of them in the head and leg. Reyes and his brother were tried jointly. Reyes was convicted, on July 25, 1995, of Assault in the First Degree, Burglary in the First Degree, three counts of Robbery in the First Degree, and Criminal Possession of a Weapon in the Second Degree.
Reyes appealed the conviction on the grounds that: (1) harmful hearsay testimony prejudiced the jury, depriving him of a fair trial; (2) the trial court abused its discretion by allowing the prosecution's medical expert to testify beyond the scope of his expertise; (3) the trial court erred in not granting his repeated motions for severance and he was denied effective assistance of counsel due to the ineffectiveness of his co-defendant's counsel; (4) the trial court abused its discretion by denying counsel's repeated motions for a mistrial based on the cumulative effect and prejudice of the complainant's non-responsive answers; and (5) the verdict was against the weight of the evidence.
The Appellate Division affirmed the conviction. It held that "the verdict was not against the weight of the evidence." People v. Reyes, 670 N.Y.S.2d 192, 193 (2d Dep't 1998). With respect to hearsay testimony, the court held that any prejudice that might have resulted was alleviated when the trial judge struck the testimony and "issued prompt curative instructions." Id. Moreover, the court noted, Reyes could not assert the inadequacy of instructions on appeal when he did not immediately make an application for additional instructions at trial. Id. The court also found that because it determined that Reyes' brother received meaningful representation, there was no merit to his contention that "because his brother's attorney was blatantly ineffective, the defendant's attorney, in effect, represented both him and his brother, depriving the defendant of the effective assistance of counsel." Id. at 193-94. Lastly, with respect to the remaining contentions, the court found them "unpreserved for appellate review and in any event, without merit." Id.
Raising the same issues, Reyes sought leave to appeal to the New York State Court of Appeals. His application was denied. People v. Reyes, 677 N.Y.S.2d 90 (1998). In his present petition, Reyes raises the first three issues that he raised on direct appeal.
DISCUSSION
I. Standard of Review
Although Reyes was convicted on July 25, 1995, because his petition, filed in September 1999, postdates the enactment of the Antiterrorism and effective Death Penalty Act of 1996 ("AEDPA"), AEDPA's revisions of 28 U.S.C. § 2254 govern this proceeding. See Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1518 (2000); see also Lurie v. Witniner, 228 F.3d at 120-21 (2d Cir. 2000). AEDPA provides the guidelines under which a federal habeas court may grant a writ based on a constitutional violation to a state prisoner whose claims have been adjudicated on the merits by a state court. See 28 U.S.C. § 2254; see also Williams, 120 S.Ct. at 1518-22. Pursuant to § 2254, habeas relief may not be granted unless the state court decision: (1) 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) 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).
A state court decision is "contrary to" clearly established Federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams, 120 S.Ct. at 1519. A state court decision involves an "unreasonable application" of Supreme Court precedent if it unreasonably applies a governing legal rule to the particular facts of a case. See id. at 1521. This requires a habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was erroneous or incorrect. Id. at 1521-22; see also Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000).
A state court determination of a factual issue is presumed to be correct. 28 U.S.C. § 2254 (e)(1). The determination is unreasonable only where the petitioner meets his or her burden of "rebutting the presumption of correctness by clear and convincing evidence." Id.; see also Francis S. v. Stone, 221 F.3d 100, 114 (2d Cir. 2000).
The court in Francis S. cautioned that
this negative constraint on the authority of a federal habeas corpus court does not necessarily carry the affirmative implication that whenever a state court adjudication is based on "an unreasonable determination of the facts in light of the evidence' the writ should issue. For example, the Supreme Court has instructed that a state court jury's finding of guilt is not to be rejected as a deprivation of liberty without due process of law unless it can be said that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 307, 324 (1979). The conclusion of a federal habeas corpus court that the jury's verdict was not "reasonably supported' by the evidence would not meet Jackson's high standard.Francis S., 221 F.3d at 115.
II. Hearsay Testimony
Erroneous evidentiary rulings by state courts do not automatically rise to the level of constitutional error. A habeas petitioner will succeed only if he meets his heavy burden of establishing that the evidentiary error constituted a deprivation of his right to a fair trial or due process. See Dowling v. United States, 493 U.S. 342, 352-53 (1990); see also Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983) ("Erroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived [him] of a fundamentally fair trial"). Specifically, "[t]he erroneous admission of evidence rises to a deprivation of due process under the Fourteenth Amendment only if the evidence in question "was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting United States v. Agurs, 427 U.S. 97, 112 (1984)).
Reyes has failed to show that the alleged admission of hearsay testimony so infected the trial as to render it fundamentally unfair. The trial jury struck the testimony from the record and gave a curative instruction to the jury. The Court agrees with the Appellate Division that any prejudice that may have resulted was counteracted by the actions of the trial court. Reyes, 670 N.Y.S.2d at 193. Reyes was not deprived of a fair trial and the decision of the state court, therefore, was not contrary to, or an unreasonable application of, clearly established Supreme Court law.
III. Medical Expert
Reyes contends that Dr. Dorscher, a qualified expert in the field of vascular surgery, testified to areas outside his expertise; specifically, the trajectory of a bullet and the internal damage it caused. As noted above, in order to succeed on a petition for habeas corpus, Reyes must allege that the erroneous evidentiary ruling of the state court rendered the trial fundamentally unfair. See Dowling, 493 U.S. at 352-53. Pursuant to New York law, expert testimony is admissible, if, in the exercise of its discretion, the trial court concludes that "it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror." People v. Hill, 85 N.Y.2d 256, 261 (1995) (internal citation omitted).
As correctly noted by the government, and reflected by the record, defense counsel interrogated Dr. Dorscher regarding his qualifications, actively objected during direct examination, and participated in cross-examination. Pursuant to clearly established Supreme Court law, testimony of an expert witness does not deprive a defendant of his right to confrontation or due process where the defendant can cross-examine the witness and call to the attention of the factfinder the reasons for giving scant weight to the witness' testimony. See Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985); see also United States v. Young, 745 F.2d 733, 761 (2d Cir. 1984) (noting that defendants are free to expose weakness of expert through cross-examination and argument). Porter's trial counsel had ample opportunity to inquire into the factual basis for the experts testimony, and effectively call attention to, and highlight for the jury, any issues of reliability and credibility. Therefore, the Court finds that permitting the testimony of Dr. Dorscher was not contrary to, or an unreasonable application of, the clearly established Supreme Court law regarding expert witnesses. See 28 U.S.C. § 2254.
IV. Ineffective Assistance of Counsel
The clearly established Supreme Court rule for reviewing an ineffective assistance of trial counsel claim is set forth in the two-pronged standard advanced in Strickland v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 120 S.Ct. 1495, 1512 (2000). Under the first prong of the Strickland test, Reyes must show not simply that counsel erred, but that the error was not within the realm of reasonableness under the professional norms prevailing at the time of trial. Id. at 687-88. Although the Supreme Court has not established specific guidelines for evaluating the reasonableness of counsel's actions, courts should apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional judgment." Id. at 690. A petitioner "must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Under the second prong of the Strickland test, Reyes must establish that there is "a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome" of the proceeding. Id. The court must consider the totality of the evidence before the jury. Id. at 695-96. The focus of the inquiry should be on the fundamental fairness of the trial, and whether, despite the strong presumption of reliability the result is unreliable because of a breakdown of the adversarial process. Id.
The two wrongs of the Strickland test may be revised by the Court in either order because the failure to satisfy either prong obviates the need to consider the other and independently defeats the ineffective assistance of counsel claim. Id. at 697 ("There is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one").
Reyes makes the unique argument that because his co-defendant allegedly received ineffective assistance of counsel at trial, thereby causing Reyes' trial counsel to represent both defendants, he was denied effective representation. In noting the alleged errors committed by his co-defendant's counsel, Reyes merely highlights the effectiveness of his own attorney by acknowledging that he actively participated in voir dire of prospective jurors, objected during cross-examination of all witnesses, submitted motions to the court, and made requests to charge the jury. Regardless of whether trial counsel's advocacy was on behalf of the co-defendant or Reyes, petitioner has failed to show that counsel's actions were not within the realm of reasonableness. In addition, Reyes has not shown that there is a reasonable probability that, but for the alleged errors of counsel, the outcome at trial would have been different. See Williams, 120 S.Ct. at 1516 (holding that "the entire postconviction record, viewed as a whole and cumulative of mitigation evidence presented originally, raised "a reasonable probability that the result of the sentencing proceeding would have been different' if competent counsel had presented and explained the significance of all the available evidence"). Therefore, the determination of the state court was not contrary to, or an unreasonable application of, clearly established Supreme Court law regarding the ineffective assistance of trial counsel.
The severance claim is equally without merit. New York law requires severance only where "the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt." People v. Mahboan, 74 N.Y.2d 174, 184 (1989). Similarly, pursuant to clearly established Supreme Court law, severance is required "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." See Zafiro v. United States, 506 U.S. 534, 535 (1993) (declining to adopt a bright-line rule that severance is required where codefendants have conflicting defenses). In the present case, Reyes and his co-defendant were charged with acting in concert, the evidence against each was almost identical and they presented the same defense — misidentification. The Court finds that severance was not required and the determination of the state court was not contrary to, or an unreasonable application of, the clearly established Supreme Court law regarding severance. See 28 U.S.C. § 2254 (d)(1).
CONCLUSION
The petition is denied. The Court determines that a certificate of appealability will not be issued since Reyes has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.