Opinion
08 Civ. 5287 (PKC) (KNF).
October 15, 2009
REPORT AND RECOMMENDATION
INTRODUCTION
John Rizzi ("Rizzi"), proceeding pro se, has made an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Rizzi contends his confinement by the state of New York is unlawful because: (1) his Sixth and Fourteenth Amendment rights to a jury trial and to due process were violated, when the trial court enhanced his sentence, based on facts, beyond his recidivism, determined by the court and not the jury; (2) the cumulative effect of numerous acts of misconduct, committed during the prosecution's summation, deprived him of the constitutional right to a fair trial; and (3) the sentence imposed on him is harsh and excessive, owing to his physical disability, and, as a consequence, is violative of the Fourteenth Amendment's Equal Protection Clause. The respondent opposes the petitioner's application for the writ, which is analyzed below.
BACKGROUND
On January 3, 2004, a passenger in a livery car operated by Miguel Vargas ("Vargas") placed Vargas in a choke hold and instructed him not to move. A struggle ensued, during which the passenger tore Vargas' shirt and cut him twice on the forearm with a sharp metallic object. Thereafter, the passenger removed approximately $60 to $75 from the visor above the vehicle's driver's seat, where Vargas kept his earnings. The passenger exited the vehicle and ran toward the building at 2360 First Avenue, New York County. Vargas pursued him briefly, then abandoned the chase and returned to his livery car, whereupon he contacted the livery company that employed him. An English-speaking livery driver was dispatched to assist Vargas and that driver summoned police personnel to the scene of the robbery.
Once he had abandoned his pursuit of the robber and returned to his vehicle, Vargas observed a wallet on the back seat of the livery car. The wallet was open, and a driver's license, and photo identification, in the wallet, were visible to Vargas. The driver's license contained the name "John Rizzi" and displayed a New York County address: 2360 First Avenue, Apartment 12A. The wallet also contained a Citibank credit card bearing the name "John A. Rizzi," a social security card, photographs, receipts and business cards. Vargas surrendered the wallet to police officers who responded to the scene and advised the officers that the man who robbed him was wearing a red sweater or jacket.
Police officials obtained a security camera's videotape depicting the lobby area and the exterior of 2360 First Avenue. They displayed it to Roxanne Rohlsen ("Rohlsen"), the occupant of apartment 12A, at 2360 First Avenue. Rohlsen, the officers learned, was Rizzi's common law spouse; however, on the date of the robbery, she and Rizzi were not cohabitants. The videotape showed a man wearing a red jacket with a black stripe running to the front door of the building and attempting, unsuccessfully, to enter it. Thereafter, the man is shown attempting, unsuccessfully, to enter the building via an emergency-exit door. Another man is observed on the videotape opening the emergency-exit door, thus allowing the man wearing the red jacket to enter the building. A short time later, the man in the red jacket exits the building through the emergency-exit door. Rohlsen identified Rizzi as the man wearing the red jacket, who is seen on the videotape. She recalled that Rizzi had been wearing the red jacket earlier during the day, when the two of them met, performed errands and ate lunch together. Rohlsen advised the police officers that Rizzi resided at his mother's apartment and provided that address to them. Police officers traveled to Rizzi's mother's home, where they apprehended him.
On January 4, 2004, Rizzi was placed in a police-conducted lineup. Vargas viewed the lineup and identified Rizzi as the person who had robbed him the previous evening.
Rizzi was indicted by a New York County grand jury for first-degree robbery. He elected to proceed to trial with a jury. Rizzi maintains that, during his trial summation, the prosecutor argued facts to the jury that were not in evidence, vouched for the credibility of the victim-witness, improperly, made misstatements concerning the applicable law, sought to inflame the jurors and encouraged them to speculate. In addition, Rizzi contends the prosecutor denigrated his trial counsel by telling the jurors they should not let her confuse them with misguided arguments. Throughout the prosecutor's summation, Rizzi's counsel lodged objections; some of which were sustained. The prosecutor's summation prompted Rizzi's counsel to move for a mistrial. The motion was denied. According to Rizzi, the cumulative effect of the prosecutor's improper summation utterances prejudiced him and deprived him of a fair trial, in violation of his constitutional rights. On December 18, 2004, the jury convicted Rizzi for third-degree robbery, a lesser included offense of first-degree robbery.
Following the trial, the court conducted a predicate-felony hearing. At that proceeding, Rizzi admitted he had been convicted previously for five felony offenses. However, Rizzi's trial counsel made a motion challenging New York's discretionary persistent-felony-offender statutory sentencing scheme, as violative of the Sixth and Fourteenth Amendments to the United States Constitution. She also requested that the court not classify Rizzi a persistent-felony offender, because he had suffered a traumatic brain injury and, by the time of the trial, his medical condition necessitated that Rizzi use a wheelchair. Therefore, according to defense counsel, Rizzi's ability to engage in future criminal activity was compromised.
The trial court denied the motion. It concluded the New York Court of Appeals had considered the constitutionality of the persistent-felony-offender sentencing system, in light ofApprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), when it rendered its decision in People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407 (2001), and had determined the statutory sentencing scheme passed constitutional muster. The trial court explained that the New York Court of Appeals' interpretation of New York law is binding on the trial court. Therefore, it was constrained to deny the petitioner's motion. The court also noted that, although Rizzi was "now disabled" and needed "assistance" in moving around, he was "capable of engaging in further dangerous conduct." On March 18, 2005, Rizzi was sentenced, as a persistent-felony-offender, to an indeterminate term of 15 years to life imprisonment.
Rizzi appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. The petitioner urged the court to upset his conviction because: (1) the prosecution engaged in multiple instances of misconduct, while delivering its summation, and thereby deprived him of due process and the right to a fair trial. Moreover, according to Rizzi, the trial court erred, when it failed to grant the mistrial motion that was based on the prosecution's summation; (2) the trial court sentenced Rizzi improperly to an increased maximum sentence, as a discretionary persistent-felony offender, based on facts, beyond recidivism, determined by the court rather than the jury, and thereby denied him due process and the constitutional right to a jury trial; and (3) the sentence imposed by the trial court was harsh and excessive, and should be reduced to a second-felony offender sentence, in the interest of justice.
The Appellate Division affirmed the judgment of conviction unanimously. It found that the trial court acted properly in denying Rizzi's mistrial motion, in which he alleged the prosecution made summation arguments that were unsupported by the trial evidence, vouched for a witness and misstated the applicable law, concluding that the prosecution "drew reasonable inferences from the record and made appropriate arguments" and did not mislead the jury on the applicable law. The Appellate Division found, further, that all other challenges to the prosecution's summation raised by Rizzi were unpreserved for appellate review. Therefore, the court declined to review them in the interest of justice. Notwithstanding the unpreserved nature of Rizzi's additional challenges to the prosecution's summation, the Appellate Division indicated that, were it "to review these claims, [it] would find no basis for reversal." People v. Rizzi, 41 A.D.3d 345-46, 838 N.Y.S.2d 561, 562 (App. Div. 1st Dep't 2007).
In addition, the Appellate Division determined the trial court exercised properly its discretion in sentencing Rizzi as a persistent-felony offender and, in doing so, "did not make any factual findings that were constitutionally impermissible underApprendi." Rizzi, 41 A.D.3d at 346, 838 N.Y.S.2d at 562. The Appellate Division observed that, in People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51 (2005), cert. denied 546 U.S. 984, 126 S. Ct. 564 (2005) — where New York's Court of Appeals was asked to overrule Rosen, in light of various Supreme Court cases derived from Apprendi — the New York Court of Appeals upheld Rosen, finding that persistent-felony-offender status can be conferred upon a criminal defendant at the time of sentencing based solely upon the fact that the defendant has garnered previously two felony convictions. Therefore, inasmuch as a sentencing court in New York need not make any additional fact-finding, beyond the fact that a criminal defendant has two prior felony convictions, New York's persistent-felony-offender statutory sentencing scheme is not violative of the Constitution.
Rizzi applied for leave to appeal to the New York Court of Appeals, from the determination of the Appellate Division. His application was denied. See People v. Rizzi, 9 N.Y.3d 925, 844 N.Y.S.2d 180 (2007). The instant application for a writ of habeas corpus followed.
DISCUSSION
Standard of Review
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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).
A state-court decision is "contrary to" the Supreme Court's precedent: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law;" or (2) "the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000). A state-court decision involves an "unreasonable application" of clearly established federal law, as determined by the Supreme Court, if: (1) "the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;" or (2) "the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."Id., at 407, 120 S. Ct. at 1520. To prevail under the "unreasonable application" clause, it is not sufficient to show that the state-court decision is "more than incorrect or erroneous," it must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166, 1174 (2003).
On a federal habeas corpus petition, the petitioner bears the burden of proving, by a preponderance of the evidence, that a violation of his constitutional rights occurred. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). If a state prisoner's federal claim was adjudicated on the merits, a federal court must presume any determination of a factual issue made by a state court to be correct and a habeas corpus petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). A state court adjudicates a constitutional claim on the merits when it: (a) disposes of the claim on substantive grounds; and (b) reduces its disposition to judgment. See Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (citing Sellan v. Kuhlman, 261 F.3d 303, 312 [2d Cir. 2001]). No articulation of the state court's reasoning for disposing of the claim is required, as long as a substantive ground is a basis for the disposition. See id. The Appellate Division considered and rejected, on the merits, all Rizzi's claims, except some of those related to his challenge to the prosecutor's summation, which the Appellate Division determined were unpreserved for appellate review.
Enhanced Sentence
In New York, the sentence-enhancement statute for persistent-felony-offenders is New York Penal Law (" PL") § 70.10. "The statute is designed to provide enhanced punishment for recidivists and characterizes as a 'persistent felony offender' any defendant 'who stands convicted of a felony after having previously been convicted of two or more felonies.'" Brown v. Miller, 451 F.3d 54, 57 (2d Cir. 2006) (quoting PL § 70.10[1][a]). The relevant provision of New York's Penal Law advises that, in lieu of imposing the sentence that would ordinarily be authorized by law, the sentencing court "may impose" the sentence which would attend upon a conviction for a class A-1 felony. PL § 70.10(2). At the time Rizzi was sentenced, a class A-1 felony was punishable by a minimum sentence of not less than 15 years imprisonment and a maximum sentence of life imprisonment. See PL § 70.00(1); (2); and (3)(i).
New York Criminal Procedure Law ("CPL") § 400.20 explains that an enhanced sentence
may not be imposed unless, based upon evidence in the record of a hearing held pursuant to this section, the court (a) has found that the defendant is a persistent felony offender as defined in subdivision one of section 70.10 of the penal law, and (b) is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest.
At the hearing described above, the prosecution bears the burden of proof, and "[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct" must be established by "a preponderance of the evidence." CPL § 400.20(5). In the circumstance where a New York court determines to impose a persistent-felony-offender sentence, "the reasons for the court's opinion shall be set forth in the record." PL § 70.10(2).
As is clear from the statutory language quoted above, a sentencing court in New York has the discretion to enhance a criminal defendant's sentence when the defendant has been convicted previously of two or more felony offenses and the court "is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest." PL § 70.10(2). New York's highest court, the New York Court of Appeals, as discussed above, has analyzed New York's persistent-felony-offender statute twice: in Rosen, and Rivera, and has found that the statute does not run afoul of Apprendi and its progeny, because sentence-enhancement eligibility is based solely upon a defendant's felony conviction history. Here, the petitioner was found eligible for a sentence-enhancement because he admitted, at his predicate-felony proceeding, having five previous felony convictions. This eligibility determination was not based upon the petitioner's character, history, background or the nature and circumstances of his criminal conduct; however, consideration of these factors is permissible only to inform how the sentencing court should exercise its discretion, in sentencing an eligible defendant as a persistent-felony-offender.
The Second Circuit Court of Appeals has been called upon, on two occasions, in Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005) and in Brown v. Miller, 451 F.3d 54 (2d Cir. 2006), to determine, in the context of habeas corpus petitions, whether the New York State courts have applied Apprendi and its progeny unreasonably, in analyzing the constitutionality of New York's persistent-felony-offender statutory sentencing scheme. On each occasion, the Second Circuit has accepted the analyses performed by the New York Court of Appeals, in Rosen and Rivera, and has determined that New York's courts do not apply Apprendi and its progeny unreasonably, when they employ New York's persistent-felony-offender statutory sentencing scheme. This court is bound by Second Circuit jurisprudence. Consequently, Rizzi is not entitled to habeas corpus relief based upon his claim that New York's persistent-felony-offender statutory sentencing scheme runs afoul of Apprendi and its progeny.
Prosecutorial Misconduct During Summation
The standard of review for a claim of prosecutorial misconduct, on a writ of habeas corpus, is whether the prosecutor's conduct was so egregious as to deny the accused his right to due process.See Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990). To justify a reversal for the use of improper comments during summation, a prosecutor's conduct must be "so egregious that, when viewed in the context of the entire trial, it substantially prejudiced [the defendant]." United States v. Newton, 369 F.3d 659, 680 (2d Cir. 2004). In determining whether an aggrieved party suffered substantial prejudice, where a prosecutor's summation is challenged, courts consider: (a) the severity of misconduct; (b) measures adopted to cure the misconduct; and (c) the likelihood of conviction absent the improper statements. See id.
The Appellate Division adjudicated, on the merits, so much of Rizzi's challenge to the propriety of the prosecution's summation as was addressed through his application for a mistrial. That is to say, the Appellate Division considered Rizzi's allegations that the prosecution urged arguments on the jury that were not supported by the record evidence, vouched for the credibility of the victim-witness and misstated the applicable law. It is clear that the Appellate Division adjudicated the merits of these allegations because it disposed of these claims on substantive grounds and reduced its disposition to a judgment. See Norde, 294 F.3d at 410.
In such a circumstance, a federal court must presume any determination of a factual issue made by a state court to be correct and a habeas corpus petitioner, such as Rizzi, has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The Appellate Division found that the prosecutor, at Rizzi's trial, "drew reasonable inferences from the record and made appropriate arguments" and did not mislead the jury on the applicable law. Neither in the application for the writ nor in the reply to the respondent's opposition to the application has Rizzi rebutted these factual findings by clear and convincing evidence. Accordingly, the presumption of correctness that attached to the Appellate Division's factual findings, perforce of the above-noted statute, remains in effect. Therefore, since Rizzi has not met the burden placed upon him by 28 U.S.C. § 2254(e)(1), granting the petitioner habeas corpus relief, based upon prosecutorial misconduct during summation, as outlined in his mistrial motion, is not warranted.
The remaining challenges to the prosecutor's summation raised by Rizzi to the Appellate Division were not adjudicated on the merits by that court. It found that those claims were not preserved for appellate review, apparently because no timely specific objections were made; only general objections were asserted by the petitioner's trial counsel. In any event, the Appellate Division indicated that, were the remaining challenges to the prosecution's summation reviewed by it, no basis for reversing Rizzi's conviction would exist.
Generally, Federal courts will not consider "a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553 (1991). New York's contemporaneous objection rule, codified at CPL § 470.05, has been found to be a procedural bar to federal habeas corpus review of a federal claim, because it is an independent and adequate state-law ground that is "firmly established" and "regularly followed" by New York courts. Richardson v. Greene, 497 F.3d 212, 219-220 (2d Cir. 2007); see also Garvey v. Duncan, 485 F.3d 709, 714 (2d Cir. 2007) ("A general objection is not sufficient to preserve an issue. . . . Instead, New York's highest courts uniformly instruct that to preserve a particular issue for appeal, defendant must specifically focus on the alleged error."). To overcome this procedural bar, the petitioner must show cause for the default and prejudice flowing therefrom, or that failure to review a claim will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 749-50, 111 S. Ct. at 2564-65 (internal quotations and citations omitted).
In his habeas corpus petition, Rizzi has not attempted to show cause and prejudice for his default, nor has he alleged that a fundamental miscarriage of justice would result, if his claims, found to be unpreserved by the Appellate Division, were not considered. Therefore, Rizzi's remaining claims, based upon the prosecutor's summation, are procedurally barred, and he has failed to overcome that bar. See, e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) ("Habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.").
Excessive Sentence Equal Protection
"[A] petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). Although Rizzi raised a claim to the Appellate Division based upon his assessment that the sentence imposed upon him was harsh and excessive, he did not present his challenge to the severity of his sentence as one grounded in the Fourteenth Amendment's Equal Protection Clause, as he does in his application for the writ. Rizzi has used the one direct appeal to which he is entitled, and it would be futile for him to raise his equal protection sentence-severity claim collaterally, in state court, through a motion to vacate, pursuant to CPL § 440.10. This is so because such a motion would be denied, pursuant to CPL § 440.10(2)(c) — because this claim could have been raised on direct appeal — therefore, the claim is "deemed exhausted." See Grey, 933 F.2d at 120; Home v. Perlman, 433 F. Supp. 2d 292, 295 (W.D.N.Y. 2006). However, the merits of the instant claim cannot be reviewed in a federal habeas corpus proceeding, unless Rizzi demonstrates cause for his default and prejudice flowing therefrom, or that a fundamental miscarriage of justice will result if this federal habeas claim is not reviewed. See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989). Inasmuch as Rizzi has shown neither cause and prejudice, nor that a fundamental miscarriage of justice will result, his equal protection sentence-severity claim is procedurally barred from federal habeas corpus review.
RECOMMENDATION
For the reasons set forth above, I recommend that Rizzi's petition for a writ of habeas corpus, Docket Entry No. 2, be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, 500 Pearl Street, Room 2260, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Castel. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).