Opinion
02-CV-3430 (JBW) and 03-MISC-0066 (JBW)
August 12, 2003
JUDGMENT AND ORDER
The petition for a writ of habeas corpus is denied for the reasons stated orally on the record at a hearing before this court at which petitioner was present by telephone. This memorandum briefly addresses petitioner's claims.
Complainant accused petitioner of rape, sexual abuse, and lesser charges. She claimed that he punched her, held a knife to her neck and raped her. Petitioner was arrested and charged with first degree rape, first degree sexual abuse, and several counts of assault, weapons and menacing. At his jury trial he testified that the sexual contact was with her consent; she denied that she consented. He was convicted on the first degree sexual abuse and third degree assault charges, and acquitted of all other counts, including first degree rape.
Petitioner was sentenced to 3-1/2 to 7 years in prison. His convictions were affirmed on appeal. No state collateral proceedings were initiated.
Petitioner claims (1) that various problems with the grand jury proceedings deprived petitioner of due process of law; (2) that the first degree sexual abuse count in the indictment was "duplicative" of the rape count; (3) that the jury's verdict was repugnant; (4) that the trial court's instructions to the jury on the elements of the crimes were erroneous and confusing; (5) that the trial court's instructions improperly referred to testimony; (6) that the trial court's Allen charge was "questionable"; and (7) that no rational trier of fact could have found him guilty beyond a reasonable doubt.
I. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhiman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). 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 this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(l).
II. Exhaustion
A state prisoner's federal habeas petition must be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
A district court may, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
III. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule. "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
IV. Certificate of Appealability
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). Any claims for which a certificate of appealability is granted will be reviewed de novo by the Court of Appeals.
V. Claims
In his brief on appeal, petitioner raised the following three claims: (1) that the trial court improperly denied a motion to dismiss the indictment on speedy trial grounds; (2) that he was deprived of due process because he was not given adequate notice of the charges against him; (3) that he was denied due process because he was not convicted by proof beyond a reasonable doubt;(4) that he was improperly denied a missing witness charge; and (5) that his right to a fair trial was infringed by the prosecutor's misconduct during trial. No collateral proceedings were initiated by petitioner.
The following claims in the present petition are therefore unexhausted: (1) that various problems with the grand jury proceedings deprived petitioner of due process of law; (2) that the jury's verdict was repugnant; (3) that the trial court's instructions to the jury on the elements of the crimes were erroneous and confusing; (4) that the trial court's instructions improperly referred to testimony; and (5) that the trial court's Allen charge was "questionable." Petitioner would be barred from raising any of these claims in collateral proceedings if he were now to return to state court, since each of these claims could have been raised on direct appeal and there is no justifiable reason that they were not. See N.Y. Crim. Pro. L. § 440.10(c). No reason having been suggested for the default of these claims, this court is barred from considering them. Nevertheless they could be dismissed if they were substantively meritless — as they are.
The grand jury proceedings were not significant after the trial and strong evidence of guilt.
There was no inconsistency in the verdict.
The charge was accurate in the law and properly referred to the evidence. Tr. at 585-621. It generally was, as the court put it, "word for word out of a book." Tr. 621. Defense counsel agreed, stating that "I understand it's right of the book." Id.
The Allen charge was not coercive and was appropriate. Tr. 619-20.
Petitioner claim that the first degree sexual abuse count in the indictment was "duplicative" of the rape count is, contrary to respondent's contention, exhausted. See Brief for Defendant-Appellant at 33; Apr. 23, 2001 Letter to New York Court of Appeals, at 2. As counsel pointed out in his letter seeking leave to appeal to the New York Court of Appeals, the nomenclature deployed by petitioner (and his counsel at trial and on appeal) is inexact. Under New York law, "a count is duplicitous when more than one offense is contained in a single count. . . . An indictment or information is multiplicitous when a single offense is charged in more than one count." People v. Kaszovitz, 640 N.Y.S.2d 721, 722 (N.Y. City Crim. Ct. 1996) (citing cases; emphasis added). "In determining whether two counts are multiplicitous, the traditional inquiry is whether each offense charged requires proof of a fact which the other does not. . . . If any doubt exists, it must be resolved against turning a single transaction into a multiple offense." Rodriguez v. Hynes, No. CV-24-2010, 1995 U.S. Dist. LEXIS 21492, at *14 (E.D.N.Y. Mar. 2, 1995) (citations omitted). The harm to be avoided is the potential for defendant to be subjected to double jeopardy. See United States v. Morales, 460 F. Supp. 666, 667 (E.D.N.Y. 1978).
Even if the counts at issue were multiplicitous, petitioner has suffered no harm. He was provided notice of the charges against him and the factual bases underlying the charges — the claim that he advanced in state court in an attempt to prove that the multiplicity prejudiced him, Because he was acquitted of one of the two putatively multiplicitous charges, he is not being punished twice for the same crime. Cf. People v. Cassidy, 519 N.Y.S.2d 275, 277 (N.Y. A.D. 1987) ("because the defendant was sentenced to concurrent terms as to all of the counts of which he was convicted, reversal is not warranted on th[e] ground [of multiplicity]"). To the degree that first degree sexual abuse is a lesser included offense of first degree rape, there was no multiplicity.
Petitioner did not argue in state court, and does not argue here, that the failure of the statute to adequately distinguish between the two crimes makes either of the statutory crimes facially unconstitutional by allowing prosecutors and juries to arbitrarily and erratically determine which crime to prosecute or to apply. Cf Jones v. Keane, No. 02-2382, slip op. at 5 (2d Cir. May 14, 2003) (district court's grant of writ — based on the conclusion that depraved indifference murder is unconstitutionally vague because indistinguishable from reckless manslaughter — reversed because of failure to exhaust claim in state court). At any rate, petitioner was convicted of the less serious crime, and therefore cannot complain of any injury from the prosecutor's or jury's exercise of any unwarranted discretion.
Finally, petitioner claims that no rational trier of fact could have found him guilty beyond a reasonable doubt. The relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). Petitioner has not met that burden.
Evidence of his guilt was sufficient. It included testimony from the victim that she was punched in the face and that petitioner touched his penis to her vagina without her consent. There was testimony from a gynecologist and from a neighbor about the victim's "prompt outcry" about the assault. There was also testimony that petitioner's t-shirt was ripped, consistent with the victim's description of the event. The petitioner's claim that the sex was voluntary and that a fight ensued after the sex when he refused to leave money could have been accepted by the jury, but was rejected. The verdict was within acceptable standards. Granting of the writ is not warranted on the ground of lack of evidence.
VI. Conclusion
The petition for a writ of habeas corpus is denied. A certificate of appealability is not granted with respect to the claim that the first degree sexual abuse count in the indictment was "duplicative," or multiplicative, of the rape count — the only interesting, but nondispositive, claim raised. A certificate of appealability is also not granted with respect to any of petitioner's remaining claims, petitioner having made no substantial showing of the denial of a constitutional right.
Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
SO ORDERED.