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finding that where habeas petitioner failed to appeal decision on a § 440 motion and the time to appeal has lapsed, the § 440 claim is procedurally barred
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99 Civ. 4476 (LTS)(FM)
June 13, 2002
REPORT AND RECOMMENDATION TO THE HONORABLE LAURA TAYLOR SWAIN
This Report and Recommendation was prepared with the assistance of Alan Feigenbaum, a student at Cardozo Law School, who sewed as a student law clerk in my Chambers.
I. Introduction
Petitioner Harry Ruiz ("Ruiz") brings this pro se habeas corpus proceeding pursuant to 28 U.S.C. § 2254, challenging his conviction in Supreme Court, New York County, following a trial before Justice Alfred H. Kleiman and a jury, on one count of Murder in the Second Degree and one count of Criminal Possession of a Weapon in the Second Degree, in violation of N.Y. Penal Law §§ 125.25(1) and 265.03. (See Pet. ¶ 4). On March 8, 1995, Ruiz was sentenced by Justice Harold J. Rothwax to concurrent indeterminate terms of twenty-five years to life on the murder count and six to twelve years on the weapons count. (Id. ¶ 3). Ruiz contends that he was deprived of due process because the prosecution failed to prove his guilt beyond a reasonable doubt and the state court improperly denied a motion to vacate his judgment of conviction, based upon newly-discovered evidence of his innocence, without a hearing. (See Pet. Addendum). As set forth in greater detail below, Ruiz has failed to show that his constitutional rights were violated. Accordingly, his petition should be denied and this proceeding dismissed.
II. Background
A. Trial
1. Prosecution's Case
The prosecution's evidence at trial, insofar as relevant, established the following: On August 29, 1993, at approximately 1:30 a.m., Felix Emmanuel, a/k/a "Emmanuel Felix," was shot once at close range on Amsterdam Avenue between West 135th and West 136th Streets. (Tr. 78, 172-73, 208-10). He died as a result of the wound. (Id. at 272). Three teenagers who were in the immediate vicinity heard the gun shot, and one of them also saw Ruiz fire the gun. (Id. at 80, 83, 132, 170-72). All three testified at trial. (Id. at 67 -223).
The first teenager, Christine Alcantara, testified that she and two friends, Millie and Amy, were returning from a party during the early morning hours of August 29th. (Id. at 73-77). As they were walking from Broadway to Amsterdam Avenue on West 136th street, Millie lingered to talk to a man named Danice. (Id. at 79). Alcantara and Amy continued south on Amsterdam Avenue. (Id.). When they neared 13 5th Street, Alcantara heard a single gun shot and turned north; at that moment, she saw Millie walking south, followed by a man wearing a black vest and cap. (Id. at 80-8 5). She did not see the man's face. (Id. at 90).
Millie Medina corroborated Alcantara's testimony concerning these events. (Id. at 122-39). She added that the man was Hispanic and not wearing a shirt. (Id. at 134-35).
Nilda Alomar, known to her friends as "Amy," testified that she knew Ruiz from the neighborhood surrounding 135th Street. (Id. at 161). Alomar testified that as she was proceeding down Amsterdam Avenue, she turned back and saw Ruiz shoot "Manny" at close range. (Id. at 170-73). She testified that Ruiz was wearing a black vest and pants, but was shirtless at the time of the shooting. (Id. at 170-7 1). Although Alomar hesitated momentarily when asked to identify Ruiz in court, at first pointing to someone who "looked like him," she then correctly identified him without any prompting. (Id. at 163-64).
The People further established through the testimony of a medical examiner that the victim died of a gunshot wound to the head. (Id. at 270-72). The bullet traveled downward as it passed from the front to the back of the victim's skull. (Id. at 273).
Finally Detective Louis Torellas testified that he arrested Ruiz on June 9, 1994. (Id. at 23 8-39). At the time of his arrest, Ruiz was wearing a black vest with no shirt underneath. (Id. at 250).
2. Defense Case
The defense case consisted of seven witnesses who were relatives or friends of Ruiz. (See id. at 312-16, 338-46, 363-68, 389-400, 417-24, 438-45, 464-74). Although their stories conflicted to a certain extent, five of the witnesses testified that Ruiz was inside an apartment at 504 West 135th Street when they heard gunfire. (Id. at 363-67, 396-99, 417-24, 441-42, 473-74).
Two other defense witnesses also claimed that Ruiz was not the shooter. The first, Janet Dominguez, stated that she was sitting outside her residence at 509 West 135th Street during the early morning hours of August 29th when a man approached her with a gun in his hand and said that he had killed a person. (Id. at 313-15). After the man with the gun demanded to enter the building, Dominguez let him in. (Id. at 315). Dominguez, who had known Ruiz for seven or eight years prior to the incident, stated that the man who approached her was not Harry Ruiz. (Id. at 3 14-15). Her testimony was corroborated by Alex Gonzalez, a friend of Ruiz's since childhood, who was standing in front of a building across the street. (Id. at 338-46).
Through cross-examination of Dominguez and others, the prosecutor attempted to show that the incident described by the alibi witnesses actually had occurred on August 27, 1993. (See, e.g., id. at 323 (Dominguez conceding that the incident she described must have occurred before midnight because a neighborhood bodega was open); 348 (Gonzalez conceding that "it was a cool out" when he observed the man across the street); 408 (Iris Soler testifying that she heard approximately two shots); 426 (Ruiz's mother testifying that she heard one shot and then, shortly thereafter, several more shots)).
3. Verdict
Following five days of trial and brief deliberations, Ruiz was convicted on November 15, 1994, on one count each of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree. (See id. at 750-51).
B. Subsequent Events
Prior to sentencing, Ruiz moved to set aside the verdict, pursuant to N.Y. Crim. Proc. Law ("CPL") § 330.30, on the grounds that the evidence was legally insufficient to support his conviction and that the prosecution had failed to comply with its Brady obligations. (See Decl. of Ass't Dist. Attorney Tami J. Aisenson, dated Dec. 27, 1999 ("Answer"), Ex. A (Affirm. of Thomas F. X. Dunn, Esq., dated Jan. 19, 1995)). On March 7, 1995, Justice Rothwax denied that motion, observing, insofar as relevant here, that "[t]he testimony of Amy [Alomar,] together with the evidence presented by the medical examiner, was legally sufficient to establish each element of the crimes charged." (Id. Ex. C at 2).
CPL § 330.30(1) authorizes a trial court to modify or set aside a verdict prior to sentencing on "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court."
On October 31, 1996, Ruiz moved to vacate the judgment of conviction, pursuant to CPL § 440.10(g), on the ground of newly-discovered evidence. (Id. Ex. D (Affirm. of Melvyn K. Roth, Esq., dated Oct. 31, 1996)). The newly-discovered evidence consisted of (1) statements from four witnesses who claimed that either the shooter or the person who entered 509 West 135th Street was not Ruiz (id. ¶¶ 8-11); and (2) an unsworn statement in which Alcantara claimed that Alomar had admitted to her, while in the witness room, that she had testified falsely that Ruiz was the shooter "even though she had not seen who had done the shooting" (id. ¶ 7).
As part of its opposition to this motion, the prosecution submitted the statements of Millie Medina and two police detectives who were in the witness room with Alcantara and Alomar at the time of Alomar's alleged statement. (See id. Ex. E (Affirm. of Ass't Dist. Attorney Helen C. Strum, dated Dec. 23, 1996) ¶¶ 7, 8). All three witnesses denied Alcantara' s statement that Alomar had recanted her testimony. (Id.).
On February 10, 1997, Justice Rothwax denied Ruiz's motion to vacate the judgment of conviction, reasoning that the statements of the four new alibi witnesses were "merely cumulative to the testimony of the seven alibi witnesses offered at trial and rejected by the jury." (Id. Ex. G at 3). Justice Rothwax further noted that Alomar' s alleged recantation was hearsay and unlikely to change the outcome of the trial since none of the other people who were in the witness room heard Alomar make the statement attributed to her by Alcantara. (Id. at 4).
The order mistakenly is dated February 10, 1996.
Although Ruiz subsequently appealed his conviction directly to the Appellate Division, First Department, claiming that the prosecution had failed to prove his guilt beyond a reasonable doubt, he never sought leave to appeal from the denial of his Section 440.10(g) motion. (Answer ¶ 12). On March 26, 1998, the Appellate Division unanimously affirmed Ruiz's conviction. People v. Ruiz, 248 A.D.2d 296, 670 N.Y.S.2d 93 (1st Dep't 1998). Ruiz then sought leave to appeal to the Court of Appeals which summarily denied his application on May 14, 1998. People v. Ruiz, 91 N.Y.2d 1012, 676 N.Y.S.2d 140 (1998). His conviction therefore became final on or about August 15, 1998. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (judgment is final following expiration of ninety-day period to seek writ of certiorari from Supreme Court).
Ruiz's pro se habeas petition was timely received by the Pro Se Office of this Court on May 17, 1999. (See Docket No. 1). In an Addendum to the petition, Ruiz raises two grounds for relief, alleging that he was denied due process because (1) the prosecution failed to establish his guilt beyond a reasonable doubt, and (2) the trial court improperly denied his motion to vacate the judgment of conviction based upon newlydiscovered evidence.
III. Discussion A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). Rather, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). Ruiz bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
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.28 U.S.C. § 2254(d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to "contrary [to]' and 'unreasonable.'" "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 [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable" Id., 529 U.S. at 409, 120 S.Ct. at 1521. This standard does not require that all reasonable jurists agree that the state court was wrong Id., 529 U.S. at 409-10, 120 S.Ct. 1495 at 1521-22. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'"Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)) (emphasis added). Section 2254(d)(1) only applies, however, "with respect to claims adjudicated on the merits in state court." Williams, 529 U.S. at 412, 120 S.Ct. at 1523.
Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Taylor, 529 U.S. at 409, 120 S.Ct. at 1510. As discussed below, however, Ruiz has failed to show that his conviction resulted from such constitutionally infirm proceedings in state court, and he therefore is not entitled to federal habeas relief.
B. The Prosecution Proved Ruiz's Guilt Beyond a Reasonable Doubt
Ruiz's first claim is that the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt. As he explains:
The discrepancies between the description of the government and the petitioner's appearance demonstrated that petitioner was mistakenly identified as the perpetrator. . . . Additionally, testimony from Alomar established that she saw the perpetrator point a gun at the deceased's temple in a horizontal line, and fire a shot. This evidence was in complete conflict with the medical examiner's testimony. . . . This testimony[,] coupled with Alomar's failure to identify petitioner at trial, suggests that petitioner was mistakenly identified as the perpetrator.
(Pet. Addendum).
A habeas petitioner challenging the sufficiency of the evidence bears a "very heavy burden," Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995), and must show that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt," Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 279 1-92, 61 L.Ed.2d 560 (1979). Accord Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994). Moreover, in considering such a sufficiency claim, a habeas court must weigh the evidence in the light most favorable to the prosecution and draw all permissible inferences in its favor. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793. A sufficiency claim therefore does not permit the reviewing court to redetermine the credibility or reliability of witnesses or substitute its view of the evidence for that of the trier of fact. See Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 857, 74 L.Ed.2d 646 (1983); Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Rather, insofar as there is evidence from which the jury could have drawn an inference favorable to the accused but chose not to, the court must "defer to... the jury's choice of the competing inferences." United States v. Kinney, 211 F.3d 13, 18 (2d Cir. 2000) (quoting United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998)). For this reason, "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979). See also Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) (following Danzey even though the testimony and character of the sole witness who directly implicated the petitioner were "less than inspiring"); Means v. Barklev, No. 98 Civ. 7603, 2000 WL 5020, at *4 (S.D.N.Y. Jan 4, 2000)(Cote, J.) (applyingDanzey and noting that habeas court may set aside conviction only if testimony is "incredible as a matter of law").
Here, as Justice Rothwax correctly observed, the testimony of the medical examiner and Alomar, if believed, was sufficient by itself to convict Ruiz on both charges. Moreover, Alomar's in-court identification of Ruiz as the shooter was corroborated in many important respects by the testimony of Alcantara and Medina, and the fact that Ruiz was wearing an outfit matching their description of the shooter on the date of his arrest. Although there certainly was other evidence from which the jury could have concluded that Ruiz was not guilty, the prosecution's case was unquestionably sufficient to sustain Ruiz's conviction. There consequently is no basis for Ruiz's first claim.
C. Ruiz's Newly-Discovered Evidence Claim is Unexhausted. Procedurally Forfeited. and Meritless1. Exhaustion of Remedies
Pursuant to 28 U.S.C. § 2254 (b)(1)(A) and (B), a habeas petition brought by a state prisoner ordinarily may not be granted unless the petitioner has exhausted all of the remedies available to him through the state courts or there is no state corrective process available to the petitioner, or circumstances render that process ineffective to protect the petitioner's rights. Here, although Ruiz first presented his newly-discovered evidence to the state court more than one and one-half years after his sentencing, CPL § 440.10(g) affords a criminal defendant the opportunity to vacate his judgment of conviction at such a late date in appropriate circumstances. Accordingly, because a state remedy was available, Ruiz must show that he fairly presented "the substance of the same constitutional claim that he now urges upon the federal courts to the highest court in the . . . state." Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (citations and internal quotations omitted).
There is no question that Ruiz fairly presented his newly-discovered evidence claim in state court at the trial level. (See Answer Ex. D). Thereafter, however, he failed to exhaust his available remedies by seeking leave to appeal the denial of his motion to vacate the judgment of conviction to the Appellate Division, pursuant to CPL § 460.15. Under the rules of the First Department, Ruiz was required to file such an application for leave to appeal "within 30 days after service of the order upon [him]." N.Y. Ct. Rules § 600.8(d)(1). See also CPL § 460.10(4)(a)("Within thirty days after service upon the defendant of a copy of the order sought to be appealed, the defendant must make application, pursuant to section 460.15, for a certificate granting leave to appeal to the intermediate appellate court."). Here, the State served notice of the entry of Justice Rothwax's order denying Ruiz's motion on December 22, 1999, but there is no indication that Ruiz sought leave to appeal within thirty days. Having failed to do so, Ruiz plainly has not exhausted his state remedies with respect to his newly-discovered evidence claim. See Whitted v. Coughlin, No. 90 Civ. 1665, 1990 WL 91623, at *4 (S.D.N.Y. June 29, 1990)(Sand, J.); Grant v. Hopkins, 681 F. Supp. 224 (S.D.N.Y. 1988)(Sprizzo, J.). See also Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999) (Section 440.10 motion remains pending for thirty days after movant is served with copy of order denying motion).
2. Procedural Forfeiture
A federal habeas court presented with an unexhausted constitutional claim may either stay the petition or dismiss it without prejudice so that the petitioner can return to state court to pursue exhaustion. See Duncan v. Walker, 533 U.S. 167, 182-83, 121 S.Ct. 2120, 2130, 150 L.Ed. 251 (2001)(Souter, J., concurring); cf. Zarvela v.Artuz, 254 F.3d 374, 380-81 (2d Cir. 2001) (discussing procedures applicable to "mixed" petitions containing both exhausted and unexhausted claims). In this case, however, this would be a futile exercise inasmuch as Ruiz's time to seek leave to appeal the denial of his Section 440.10 motion expired several years ago.
In these circumstances, because there has been a procedural default which bars further consideration of Ruiz's claim in state court, federal habeas review is precluded unless Ruiz can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law" or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). To make the latter showing, Ruiz must demonstrate that he is "actually innocent." Aparicio, 269 F.3d at 90.
In his petition, Ruiz has not made either of the required alternative showings, nor is there any reason to believe that such a showing could be made. Accordingly, the Court lacks jurisdiction to grant Ruiz any relief based upon his claim of newly-discovered evidence.
3. Merits
Moreover, even if this Court were able to reach Ruiz's newly-discovered evidence claim, it would have to be denied. First, it is clear that federal law does not require a state court to provide any means for collateral review of convictions in criminal cases. See Pennysvlvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987);Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987). Second, even when criminal defendants are afforded such a remedy, the denial of a hearing does not give rise to a due process claim. See Boyd v. Hawk, No. 94 Civ. 7121, 1996 WL 406680, at *4 (S.D.N.Y. May 31, 1996)(Batts, J., adopting Report and Recommendation of Peck, Mag. J.)(petitioner's claim that denial of a hearing on a CPL § 440.10 motion was error "neither call[s] to mind a specific claim protected by the Constitution nor does it [allege] a pattern of facts that is well within the mainstream of constitutional litigation") (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982)) (internal quotations omitted); Banks v. People, No. 94 Civ. 555, 1994 WL 661100, at *3 (S.D.N.Y. Nov. 22, 1 994)(Cote, J.)("possible infirmities in post-conviction proceedings do not raise constitutional issues that are cognizable in a petition for habeas relief').
Ruiz also has not shown that Justice Rothwax's decision denying his motion to vacate the judgment of conviction was "contrary to" or involved an "unreasonable application of' clearly established federal law. Indeed, in the federal system of criminal justice, motions for a new trial based upon newly-discovered evidence are disfavored and granted only in extraordinary circumstances. United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993); United States v. Imram, 964 F.2d 1313, 1318 (2d Cir. 1992). To prevail on a new trial motion, a federal defendant therefore must show that "the evidence is in fact new i.e., it could not have been discovered, exercising due diligence before or during trial, and that the evidence is so material and non-cumulative that its admission would probably lead to an acquittal." Spencer, 4 F.3d at 199 (quoting United States v. Sidiqi, 959 F.2d 1167, 1173 (2d Cir. 1992)) (internal quotations omitted). This is substantially the same standard embodied in CPL § 440.10, which requires that the evidence be discovered posttrial, that it "could not have been produced by the defendant at trial, even with due diligence on his part," and that it creates a probability that the verdict "would have been more favorable to the defendant" had the evidence been admitted.
Applying these standards to Ruiz's motion to vacate the judgment of conviction, it is clear that the evidence proffered by Ruiz was neither material nor new. As Justice Rothwax correctly observed, "[t]he statements of the four new "alibi' witnesses are merely cumulative to the testimony of the seven alibi witnesses offered at trial and rejected by the jury." (Answer Ex. H at 3). Additionally, Alcantara's unsworn statement that Alomar told her that she had falsely identified Ruiz is uncorroborated hearsay which "merely impeaches [Alomar's] credibility and does not, therefore, constitute newly discovered evidence." (Id).
IV. Conclusion
For the foregoing reasons, Ruiz's petition should be denied. Furthermore, because Ruiz has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Laura Taylor Swain, at the United States Courthouse, 40 Centre Street, New York, New York 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).