Opinion
00 Civ. 2867 (SAS)
June 18, 2001
James Whittman Petitioner pro se.
Dian Kerr McCullough, Assistant Attorney General For Respondent.
OPINION AND ORDER
Pro se petitioner James Whittman seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his March 26, 1996 state conviction for Robbery in the Second Degree. Petitioner is presently incarcerated in the Sing Sing Correctional Facility in Ossining, New York, serving a four and a half to nine year sentence.
In his petition, Whittman asserts two grounds for habeas relief: (1) the People engaged in "prosecutorial misconduct" by failing to discloseRosario and Brady material, thereby depriving petitioner of a fair trial; and (2) the trial court's Sandoval ruling, permitting the prosecution to cross examine petitioner about his prior convictions if he testified, was "judicial error" in that it prevented petitioner from testifying. For the reasons set forth below, Whittman's petition is denied.
People v. Rosario, 9 N.Y.2d 286(1961) (defendant entitled to pre-trial statements of prosecution witnesses).
Brady v. Maryland, 373 U.S. 83(1963) (defendant entitled to pre-trial production of exculpatory material or material favorable to the defense).
People v. Sandoval, 34 N.Y.2d 371(1974) (pre-trial hearing regarding prosecution's right to use defendant's prior convictions during cross-examination should defendant testify).
I. BACKGROUND
A. Factual Background
On the evening of June 27, 1995, Gregg Bennett was drinking and talking outside with her friend when petitioner approached and offered to buy them a beer. See Trial Transcript ("Tr.") at 229-34. Bennett had never seen petitioner before. Tr. at 234. Petitioner bought Bennett a beer and continued to talk with the two friends until Bennett announced that she was going home. Tr. at 235-36. Bennett permitted petitioner to accompany her home. Tr. at 239. At Bennett's apartment, Bennett and petitioner drank beer and talked. Tr. at 241, 246. After about half an hour, petitioner left to get more beer and returned promptly. Tr. at 246-47.
Half an hour later, petitioner again left to buy more beer. Tr. at 251. This time, petitioner returned two and a half hours later, at approximately 4:30 a.m. Tr. at 253. Bennett let petitioner into her apartment building, but waited for him in the doorway of her apartment. Tr. at 254-55. When petitioner appeared, Bennett noticed a man standing on the stairwell whom petitioner identified as his "cousin." Tr. at 255. Bennett told petitioner that she did not want to invite petitioner and his cousin into her apartment. Tr. at 255.
Petitioner then "nicely push[ed] his way" into the apartment and his cousin followed. Tr. at 256. When Bennett told petitioner and his cousin to leave, petitioner knocked Bennett onto the couch, put his knee on her chest and choked her with his hands. Tr. at 256, 259. At the same time, he prodded his cousin to remove Bennett's television. Tr. at 257. Using a shopping cart, petitioner and his cousin left with Bennett's television and a black watch which had a broken pin and the words "no struggle, no progress" on its face. Tr. at 261. As he was leaving, petitioner told Bennett not to call the police, or he would "come back and kill [her] kids". Tr. at 261.
Bennett left her apartment and called the police. Tr. at 263. The responding police officers and Bennett canvassed the neighborhood where Bennett identified the petitioner a few blocks from her apartment. Tr. at 266-67. The officers arrested petitioner and found a watch in his possession. Tr. at 270. The watch had a broken pin and on the face of the watch were the words "no struggle, no progress". Tr. at 270-74. The officers did not recover the television set or apprehend petitioner's cousin. Tr. at 388. Petitioner was charged with Burglary in the First Degree and Robbery in the Second Degree. See Appellate Brief for Respondent ("Resp. Brief"), Ex. B to 1/19/01 Affidavit of Assistant Attorney General Dian Kerr McCullough in Opposition to Petitioner's Writ of Habeas Corpus ("McCullough Aff."), at 2.
B. Procedural Background
1. Pre-trial Sandoval Hearing
Before trial, the state court held a Sandoval hearing. See Resp. Brief at 28. During the hearing, the prosecution expressed its desire to cross-examine the petitioner about his two prior felony convictions for second and third degree robbery and a petit larceny charge. See id. Urging the importance of his testimony, petitioner argued that allowing the prosecution to question him about his two prior felony convictions would inevitably prejudice the jury against him. See id. at 29.
The trial court ruled that the prosecution could ask petitioner whether he had been convicted of the specific crime of robbery. See id. The court, however, prohibited the prosecution from asking about the underlying facts of those convictions unless petitioner denied the convictions. See id. Petitioner then urged the court to adopt a "Sandoval compromise" whereby the court would only allow the prosecution to ask petitioner whether he had been previously convicted of felonies, without eliciting any information regarding the nature of the crimes or their underlying facts. See id. This request was denied. See id. at 30. Petitioner chose not to testify at trial. See id. at 10.
2. The Conviction
On March 26, 1996, after a jury trial, petitioner was convicted of Robbery in the Second Degree in violation of section 1610.10 [1] of the New York Penal Law. See McCullough Aff. ¶ 2. The court sentenced petitioner, as a second felony offender, to an indeterminate prison term of four and a half to nine years. See id.
3. State Court Appeals
Petitioner appealed his conviction to the Appellate Division, First Department. See id. ¶ 3. In his brief, petitioner raised two claims: (1) the People's failure to provide the defense with the reports of an investigating detective violated their obligations under Rosario and Brady and deprived appellant of a fair trial, and (2) the trial court's Sandoval ruling deprived petitioner of his due process rights to a fair trial. See id.
On October 1, 1988, the Appellate Division, First Department, unanimously affirmed petitioner's conviction. See id. ¶ 4. By letter to the New York State Court of Appeals, dated October 22, 1998, petitioner sought leave to appeal his Rosario, Brady and Sandoval claims.See id. ¶ 5. On March 11, 1999, the Court of Appeals issued a certificate denying leave to appeal on the grounds that his letter presented no question of law. See id.; see also 3/11/99 Certificate Denying Leave, Ex. E to McCullough Aff.
The Appellate Division made the following findings: (1) the withheld investigative reports of a non-testifying detective were notRosario material because they did not relate to the subject matter of the complainant's direct testimony, and the suppression of the reports did not constitute prejudice; (2) defendant's Brady claim is meritless because these reports could not have affected the verdict; and (3) the trial court's Sandoval ruling was a proper exercise of discretion in that defendant's prior robbery convictions were highly relevant to his credibility, and defendant was not entitled to protection from questioning about those crimes. See 10/1/98 Judgment Order by Appellate Division, First Department, Ex. C to McCullough Aff.
On March 8, 2000, petitioner filed the instant petition for a writ of habeas corpus reasserting the two claims set forth in his state appeal.See McCullough Aff. ¶ 6; see also Petition for Writ of Habeas Corpus, ("Pet."), dated March 8, 2000, at 5.
II. LEGAL STANDARD
Whittman's petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA, which modified 28 U.S.C. § 2254, set forth new standards of review for federal courts to apply when reviewing habeas corpus petitions. See 28 U.S.C. § 2254; see also Williams v. Taylor, 529 U.S. 362, 404-14(2000). Section 2254(d) now prohibits a federal court from granting habeas relief on any claim adjudicated on the merits by a state court unless that decision was: (1) "contrary to, or involved an unreasonable application of clearly established Federal law as determined by the Supreme Court"; or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State proceeding." 28 U.S.C. § 2254(d).
A state court decision is "contrary to" an established federal law under section 2254(d)(1) if: (1) the state court reaches a different result than the Supreme Court would have when presented with facts that are "materially indistinguishable from a relevant Supreme Court precedent"; or (2) the state court "applies a rule that contradicts the governing law set forth in Supreme Court cases." Williams, 529 U.S. at 404-05. A state court's decision is an "unreasonable application" of federal law under section 2254(d)(1) if the state court's application of the federal rule was "objectively unreasonable" and not merely an incorrect or erroneous application of federal law. See id. at 405-06; see also Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (holding that an "unreasonable application" standard requires more than an incorrect application, although the "increment of incorrectness" need not be great).
III. DISCUSSION
A. Exhaustion of State Remedies
A state petitioner seeking federal habeas corpus review of his conviction must first exhaust his available state remedies by "present[ing] his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Meatley v. Artuz, 886 F. Supp. 1009, 1013 (E.D.N.Y. 1995). A petitioner exhausts his state remedies if he "fairly present[s]" the constitutional claims to the state courts. Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).
Petitioner has exhausted all available state remedies concerning hisRosario, Brady and Sandoval claims. Petitioner directly appealed his conviction to the Appellate Division, First Department, raising each of these claims. When his conviction was affirmed, petitioner sought leave to appeal to the New York Court of Appeals by sending a letter enclosing copies of the Appellate Division briefs. Petitioner fairly presented the constitutional claims to the Court of Appeals. See Morgan v. Bennett, 204 F.3d 360, 370-71 (2d Cir. 2000) (holding that a leave application which did not refer to any specific claim, but requested review of all issues in attached appellate briefs, "fairly presented" all of the claims to the New York Court of Appeals).
B. Petitioner's Claims
1. Rosario and Brady Claims a. Rosario Claim
Petitioner alleges that the prosecution violated the Rosario rule by failing to produce the investigative reports of a non-testifying detective, thereby depriving petitioner of his constitutional right to a fair trial. See McCullough Aff. ¶ 3. Respondent argues that petitioner's Rosario claim does not present a federal constitutional question. See id. ¶ 7.
These reports contained prior statements of Bennett, the prosecution's principal witness and complainant. The petitioner points to the following relevant portions of the reports: (1) the reports reveal that Bennett told the detective that petitioner was arrested at 3:30 a.m., which is different than the time she testified to at trial; (2) the reports describe Bennett's fears that petitioner would return and harm her and her family; (3) the reports reflect Bennett's failure to keep five appointments with the detective and her arrival at the sixth appointment intoxicated. See Appellate Brief for Defendant-Appellant, Ex. A to McCullough Aff. at 13.
Federal courts have consistently held that Rosario claims are not subject to federal habeas corpus review because they "arise exclusively under state law." See Benito v. Fisher, No. 00 Civ. 8461, 2001 WL 506180, at *2 (S.D.N.Y. May 14, 2001) (quoting Moe v. Walker, No. 97 Civ. 4702, 1999 WL 58691, at *4 (S.D.N.Y. Feb. 5, 1999)); see also Green v. Artuz, 990 F. Supp. 267, 274 (S.D.N.Y. 1998). Federal habeas review is "limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Sutherland v. Walker, No. 97 Civ. 4432, 1999 WL 1140870, at *9 (S.D.N.Y. Dec. 10, 1999) (quotingEstelle v. McGuire, 502 U.S. 62, 68(1991)). A Rosario claim, however, is purely a state right, which "embodies policy considerations grounded in state common law, not constitutional principles." Sutherland, 1999 WL 1140870, at *9 (quoting Guzman v. Scully, No. 92 Civ. 5175, 1995 WL 135590, at *3 (S.D.N.Y. Mar. 29, 1995), rev'd on other grounds, 80 F.3d 772 (2d Cir. 1996)). Therefore, prosecutorial failure to turn over Rosario material is not subject to habeas review by a federal court. See Green, 990 F. Supp. at 274 (citing United States ex rel. Butler v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y. 1974)). Accordingly, petitioner'sRosario claim must fail because it does not present a federal constitutional question. b. Brady claim
Because petitioner's Rosario claim is not reviewable by this Court, it is unnecessary to discuss the merits of this claim.
Petitioner claims that the investigating detective's reports constituted Brady material, and that the prosecution's suppression of the reports violated his right to a fair trial. See McCullough Aff. ¶ 6; see also Pet. at 5. Specifically, petitioner claims that Bennett's lack of cooperation with the investigating detective in missing five scheduled meetings and her intoxicated arrival at the sixth interview rendered her testimony unreliable. See Pet. at 5. Petitioner also claims that the discrepancies between Bennett's statements to the detective and her testimony at trial were enough to impeach her testimony. See id. Respondent argues that petitioner's Brady claim is meritless because the production of the reports would not have affected the outcome of the trial. See McCullough Aff. ¶ 7.
Under Brady, state and federal prosecutors must disclose material evidence favorable to the defendant, whether or not requested. See United States v. Bagley, 473 U.S. 667, 675 (1985). Failure to disclose such evidence is a violation of due process, "irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. The Brady rule does not require a prosecutor to "deliver his entire file to defense counsel," but only to produce information that is material to the defendant's guilt or punishment. Bagley, 473 U.S. at 675; see also Kyles v. Whitley, 514 U.S. 419, 437(1995). Material evidence includes exculpatory, as well as impeaching evidence. See Bagley, 473 U.S. at 676. Evidence is material and its suppression is constitutional error if a "reasonable probability" exists that the disclosure of the evidence would have changed the verdict. See Strickler v. Green, 527 U.S. 263, 280(1999); Kyles, 514 U.S. at 433-34; Bagley, 473 U.S. at 682.
Petitioner has failed to demonstrate that the suppression of the reports "undermines confidence in the outcome of the trial." Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678). It is difficult to imagine how the production of the reports would have altered the trial's outcome. First, the minor discrepancy between Bennett's statement to the detective and her trial testimony concerning the time of defendant's arrest is irrelevant to whether defendant committed the crime of robbery. Second, Bennett's statements describing her fear that defendant would harm her and her family, while probative of her state of mind during the events of that evening, do not affect her testimony regarding the robbery. Finally, Bennett's behavior regarding her missed appointments with the detective and her intoxication during the last appointment have little or no bearing on petitioner's guilt and fail to impeach Bennett's trial testimony. The issue at trial was whether petitioner forcibly entered Bennett's apartment and stole her television and watch. Nothing contained in the reports would substantially impeach Bennett's testimony, much less exculpate petitioner.
Under these circumstances, petitioner cannot show that the state court's decision was "contrary to" or involved an "unreasonable application" of the Brady standard. Accordingly, habeas relief must be denied on the Brady claim.
2. Sandoval Claim
Petitioner argues that the trial court's Sandoval ruling was "judicial error" and deprived him of a fair trial. See McCullough Aff. ¶ 6. Respondent argues that petitioner's Sandoval claim is without merit. See id. ¶ 7.
This Circuit has specifically held that the admission of a prior conviction to impeach a defendant is an evidentiary ruling and is only redressable in a federal habeas corpus petition if petitioner can show that the particular errors were of constitutional magnitude. See Benitez v. Senkowski, No. 97 Civ. 7819, 1998 WL 668079, at *7 (S.D.N.Y. Sept. 17, 1998). Evidentiary errors must be "so pervasive as to have denied [petitioner] a fundamentally fair trial." Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985). The trial court must balance a prior conviction's probative value against any prejudicial effect, and use its discretion to decide which prior convictions to admit, if any. See Sandoval, 34 N.Y.2d at 376-77.
Courts have also consistently held that if a defendant does not testify at trial, a federal court need not review the trial court's allegedly erroneous Sandoval ruling for purposes of habeas relief. See Shannon v. Senkowski, No. 00 Civ. 2865, 2000 WL 1683448, at *6 (S.D.N.Y. Nov. 9, 2000); McEachin v. Ross, 951 F. Supp. 478, 481 (S.D.N.Y. 1997); Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y.), aff'd mem., 940 F.2d 649 (2d Cir. 1991); see also Luce v. United States, 469 U.S. 38, 41(1984). A habeas petitioner's failure to testify at trial is "fatal to any claims arising out of a Sandoval type ruling." Shannon, 2000 WL 1683448, at *6 (quoting McEachin, 951 F. Supp. at 481). Without such testimony, a court has no "adequate non-speculative basis upon which to assess the merits of that claim." Shannon, 2000 WL 1683448, at *6; see also Carrasquillo v. Kirk, 677 F. Supp. 193, 195 (S.D.N.Y. 1988).
The trial court's Sandoval decision did not abridge petitioner's constitutional right to a fair trial. Permitting the prosecution to cross-examine petitioner about his prior convictions did not deprive petitioner of the right to testify. Petitioner retained that right and chose not to take the stand. Moreover, petitioner's failure to testify bars this Court from reviewing the trial court's Sandoval ruling. Without petitioner's testimony, an assessment of the harm the petitioner suffered as a result of the Sandoval ruling would be speculative. Therefore, petitioner's Sandoval claim must also fail.
IV. CONCLUSION
For the reasons set forth above, petitioner's motion for habeas corpus relief is denied. Because petitioner has not made a "substantial showing of the denial of a constitutional right," this Court is denying a certificate of appealability. See Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Clerk of the Court is directed to close this case.
SO ORDERED: