Opinion
9:97-CV-0583 (HGM)(GLS).
October 17, 2000
GARY STEWART, Petitioner, pro se, Green Haven Correctional Facility, Drawer B, Stormville, NY, FOR THE PETITIONER.
HON. ELIOT SPITZER, Office of the Attorney General, State of New York, KEITH E. KAMMERER, Esq., Ass't Attorney General, The Capitol, Albany, NY, FOR THE RESPONDENT.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner Gary Stewart ("petitioner" or "Stewart") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on April 23, 1997. Magistrate Judge Ralph W. Smith, Jr., then issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response to the petition upon Stewart's payment of the filing fee. Docket No. 3. The Attorney General thereafter filed his response. See Docket Nos. 7-8.
On June 30, 1998, Magistrate Judge Smith recommended that Stewart's petition be denied and dismissed as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Docket No. 19. Petitioner filed objections to the Report-Recommendation. Docket No. 21. Senior Judge Howard G. Munson declined to adopt the Report-Recommendation because after it was issued, the Second Circuit decided Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), which established new guidelines controlling the timeliness of habeas petitions in light of the AEDPA. Docket No. 25.
On August 13, 1998, this action was re-assigned to this court for the purpose of preparing a Report and Recommendation.
II. Discussion
A. State-Court Proceedings Below
On November 8, 1990, an Onondaga County grand jury returned an indictment charging Stewart and two co-defendants, Robert Lawrence and Juan Morales, with multiple crimes, including murder in the second degree, attempted robbery in the first degree, criminal possession of a weapon in the second degree, and assault in the second degree. Stewart was tried and convicted on certain of these charges, however, his conviction was reversed by the Appellate Division, Fourth Department ("Appellate Division"). People v. Stewart, 185 A.D.2d 677 (4th Dep't 1992).
Stewart was re-tried before a jury at a trial over which the Hon. Patrick J. Cunningham presided. The evidence established that Juan Morales was being investigated by a drug task force comprised of various law enforcement officers. Transcript of criminal trial of Gary Stewart (10/26-29/92) ("Tr.") at 396-98. Police Officer Wallie Howard contacted Morales through a cooperating individual, Luther Gregory. Id. at 398. Officer Howard was to purchase two kilograms of cocaine from Morales after which the drug task force would arrest any participating individuals. Id. at 398-99. On the night of the "buy-bust" operation, Morales met with Officer Howard and Gregory at Gregory's apartment. Morales then went to the site where the drugs were to be purchased in his station wagon; Gregory drove Officer Howard to the same location in a separate automobile. Id. at 405. Morales stated that he wished to view the cocaine; Officer Howard informed Morales that Gregory was to accompany him. Gregory then entered the station wagon and the two departed the area. Id. at 409.
Officer Howard was wearing a transmitting device that enabled the task force members to hear the conversations in which Officer Howard participated. Id. at 402.
Unbeknownst to the task force, Morales, Stewart and another man, Robert "Bam Bam" Lawrence, had planned to rob Officer Howard and Gregory so that Stewart could pay off a debt he owed Morales. Stewart and Lawrence were to steal the money while Morales was to park in front of Officer Howard's car to prevent him from leaving. Id. at 543-44.
Lawrence was also known as "Bam Bam" and "Fat Boy." Tr. at 464.
Morales was also known as Pedro. Tr. at 441-42.
The station wagon returned to the area where the drug purchase was to occur approximately 20 to 30 minutes after it had left. The car pulled up next to Officer Howard's vehicle, and Stewart and Lawrence walked over to Officer Howard's vehicle. Stewart entered the vehicle, sat in the driver's seat and asked Officer Howard where the money was. Id. at 544-45. Officer Howard responded "What money?" Id. at 545. Officer Howard apparently motioned to his right side, and as Stewart exited the car, gunshots were fired. Id. at 545. The task force immediately approached the vehicles. Id. at 410-11. Police Officer Joseph Ruggiero noticed Stewart laying on the pavement by the wall behind Officer Howard's vehicle. Id. at 412-13. After facilitating the arrest of the driver of the station wagon (Morales), Officer Ruggiero approached Officer Howard's car and noticed that his head was slumped forward and his arms were hanging by his side, and blood was coming from the back of his head. Id. at 415-16. Officer Howard died soon thereafter from a gunshot wound. Id. at 660.
The jury found Stewart guilty of murder in the second degree, attempted robbery in the first degree (two counts) and criminal possession of a weapon in the second degree (two counts). Id. at 805-06. Judge Cunningham sentenced Stewart to twenty-five years to life imprisonment on the murder conviction, with sentences on the other convictions to run concurrently. Sentence Tr. of Gary A. Stewart (11/6/92) at 5-6.
Stewart appealed the conviction, arguing four grounds in support of his appeal. He contended that the admission, over objection, of the audio tape of Officer Howard and others during the events leading up to and surrounding the fatal shooting constituted reversible error. Next, he alleged that the trial judge's conduct deprived him of a fair trial. He also claimed that the trial court's jury instruction on reasonable doubt was unconstitutionally defective. His final claim asserted that these cumulative errors deprived him of a fair trial. See Brief for Appellant by Benjamin Coffin, Esq. (5/31/94) ("Appellate Brief"). The Appellate Division affirmed the conviction. People v. Stewart, 210 A.D.2d 938 (4th Dep't 1994), and the Court of Appeals denied Stewart leave to appeal by order dated April 11, 1995.
B. Merits of Stewart's Petition in Light of Applicable Law
The four grounds asserted in this petition are identical to those raised by Stewart in his direct appeal.
Respondent claims that petitioner has procedurally defaulted on Grounds One and Three, and that Grounds Two and Four are without merit. Consequently, he urges the court to deny and dismiss the petition.
(i) Grounds One and Three
A. Procedural Default
The court first considers respondent's argument that Stewart procedurally defaulted on Grounds One and Three.
Federal habeas review of a state-court conviction is prohibited if a state court rests its judgment on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261-62 (1989); Jones v. Stinson, ___ F.3d ___, 2000 WL 1476084, at *4 (2nd Cir. Oct. 5, 2000); Senor v. Senkowski, 1999 WL 689477, at *4 (E.D.N Y Aug. 31, 1999). If the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar, then the federal court may not review the claim unless the petitioner demonstrates both cause for and actual prejudice resulting from his noncompliance with the state's procedural rule. Garcia v. Lewis, 188 F.3d 71, 76-77 (2nd Cir. 1999) (citations omitted); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995); Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir. 1991). A further exception exists where the petitioner can show that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice;" namely, a person who is actually innocent has been convicted and incarcerated because of a constitutional violation. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Thus, the court's initial inquiry must focus on whether petitioner has procedurally defaulted on Grounds One and Three.
(1) Ground One
As noted, this Ground claims that admission of the audio tape of Officer Howard and others during the events leading up to and surrounding Officer Howard's murder constituted reversible error. Pet. at 5.
In his state court appeal, Stewart argued that the admission of this tape violated state law concerning evidentiary rules. Appellate Br. at 6-8 (arguing inadequate foundation was laid concerning tape, and that, in any event, inaudible gaps contained on tape warranted its exclusion from evidence). Stewart failed to raise any argument, or otherwise alert the New York State Courts, as to any alleged federal constitutional claim. Consequently, Stewart was procedurally barred from returning to state court to argue this issue. CPL § 440.10(2)(c) (prohibiting court from granting motion to vacate sentence where appellant could have raised the claim on direct review but did not). Because Stewart failed to raise this claim in state court and no longer may do so, he has procedurally defaulted on his claim. See Gumbs v. Kelly, 2000 WL 1172350, at *8 (S.D.N.Y. Aug. 18, 2000) (footnote omitted) (citing Washington v. James, 996 F.2d 1442, 1447-47 (2nd Cir.), cert. denied, 510 U.S. 1078 (1984)).
Stewart argues in his traverse that his appeal claimed that the trial court's decision did constitute a violation of Stewart's federal rights. Docket No. 14 at 5. However, the only citation relied upon by petitioner in support of this contention is to a case cited in the Appellate Brief where the Supreme Court denied an application for certiorari concerning a decision issued by New York State's Court of Appeals. Appellate Br. at 6.
(2) Ground Three
The third ground asserted in Stewart's petition argues that the trial court's jury instruction as to reasonable doubt was unconstitutionally defective. Pet. at 6. In affirming Stewart's conviction, the Appellate Division held that this issue was "not preserved for review," and accordingly, declined to do so. Stewart, 210 A.D.2d at 938 (citing CPL § 470.05).
This section provides, in part, that "[f]or purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of this ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." CPL § 470.05(2).
In light of the Appellate Division's opinion, it is clear that Stewart has procedurally defaulted on this Ground.
B. Cause/Prejudice Analysis
Since Stewart has procedurally defaulted on Grounds One and Three of his petition, these grounds must be denied unless Stewart can demonstrate both cause for and actual prejudice resulting from his noncompliance with the state's procedural rule. Garcia, 188 F.3d at 76-77 (citations omitted).
To establish "cause," petitioner must show that some objective external factor impeded his ability to comply with New York's procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); Restrepo v. Kelly, 178 F.3d 634, 638 (2nd Cir. 1999). Examples of external causes include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray, 477 U.S. at 488; United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1992). However, "[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488).
Stewart has not demonstrated any cause for his procedural default on these grounds. No objective external factor has been alleged by petitioner to have impeded the ability of Stewart or his counsel from (1) alleging in his appellate brief that admission of the audio tape violated his federal constitutional rights; or, (2) objecting to the trial court's jury instruction concerning the definition of reasonable doubt. Nor does any cause for petitioner's procedural default appear anywhere in the record before the court.
Because petitioner cannot establish cause for his procedural default, the court need not decide whether petitioner suffered actual prejudice because federal habeas relief is unavailable unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).
However, the court notes that Stewart has also failed to establish prejudice. In order to demonstrate "prejudice," he must establish a reasonable probability that, but for the alleged violation of federal law, the outcome of his case would have been different. Restrepo, 178 F.3d at 638. No such showing has been made. He has not demonstrated that even if the admission into evidence of the audio tape was erroneous, the error was anything other than harmless. See People v. Utenyshev, 264 A.D.2d 402, 403 (2nd Dep't 1999). Additionally, Stewart has failed to establish that the jury instruction failed to convey the appropriate standard, People v. Schilling, 198 A.D.2d 454 (2nd Dep't 1993), i.e., whether the credible proof established his guilt beyond a reasonable doubt. People v. Perez, 194 A.D.2d 455 (1st Dep't), lv. to appeal denied 82 N.Y.2d 758 (1993).
Finally, the court cannot find that failure to consider the merits of these grounds would result in a fundamental miscarriage of justice which this Circuit has interpreted as amounting to "an unjust incarceration." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2nd Cir. 2000). Therefore, the court must recommend that Grounds One and Three of Stewart's petition be denied and dismissed.
(ii) Ground Two
This ground claims that the trial judge's conduct deprived Stewart of a fair trial. Pet. at 5, Docket No. 14 at 21.
The Court notes that in discussing this and other grounds in his traverse, Stewart appears to have simply photocopied portions of the Appellate Brief and attached this to his traverse. See Docket No. 14 at 14-26.
In support of this claim, Stewart contends that the trial judge (1) improperly left the bench during jury selection; (2) had "truble [sic] staying awake during the jury selection process;" and, (3) "made depracating [sic] remarks to the jury and counsel regarding the appellate process." Id. The Appellate Division considered this claim and found it to be without merit. Stewart, 210 A.D.2d at 938.
Respondent contends that this Ground should be dismissed because the alleged misconduct does not amount to a constitutional violation. Docket No. 8 at 23.
A habeas petition may not be granted "unless a petitioner has established a constitutional violation affecting the validity of the verdict." Brown v. Doe, 2 F.3d 1236, 1249 (2nd Cir.) cert. denied, 510 U.S. 1125 (1994). The power of a federal court to review the conduct of a state trial court is "the narrow one of due process and not the broad exercise of supervisory power that we would possess in regard to our own trial court." Garcia v. Warden, Dannemora Correctional Facility, 795 F.2d 5, 7 (2nd Cir. 1986) (quotation omitted). The Garcia court continued: "[a] state trial judge's conduct would have to be significantly adverse to the defendant before it violated the constitutional requirement of due process and warranted federal intervention." Id. at 8 (citation omitted).
After reviewing the claims asserted in support of this Ground in conjunction with the underlying record, this court concludes that the conduct of the trial judge, while not a "model for fledgling judges," Garcia, 795 F.2d at 8, did not violate Stewart's due process rights. Therefore, the court recommends that this Ground be dismissed.
(iii) Ground Four
The final ground asserted by Stewart alleges that the cumulative errors committed by the trial court deprived him of a fair trial. Pet. at 6. However, as discussed above, two of the four grounds are not subject to federal habeas review due to Stewart's procedural default. As to the remaining grounds, the court has considered these claims and found them to be without merit. After due consideration, the court finds that the record as a whole demonstrates that the claimed error "did not have substantial and injurious effect or influence in determining the jury's verdict." Flanders v. Meachum, 13 F.3d 600, 605 (2nd Cir. 1994). Therefore, the court recommends the denial of Ground Four of Stewart's petition. E.g., Styles v. Zandt, 1995 WL 326445 (S.D.N.Y.), at *11 (finding petitioner failed to establish cumulative effect of claimed errors, some of which were not subject to federal habeas review due to petitioner's procedural default, deprived petitioner of fair trial), aff'd without op., 101 F.3d 684 (2d Cir.), cert. denied, 519 U.S. 936 (1996).
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that petitioner's habeas petition be denied and dismissed, and it is further
ORDERED, that the Clerk serve a copy of this Order upon the parties by regular mail, and it is further
ORDERED, that the state court records be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.
IT IS SO ORDERED.