Opinion
00 Civ. 4791 (RMB) (RLE)
December 30, 2002
Attorney for Petitioner: Pro Se, Brian Wilson, East Elmhurst, N.Y.
Attorney for Respondent: Susan H. Odessky, Assistant Attorney General, New York, N.Y.
REPORT AND RECOMMENDATION
To the HONORABLE RICHARD M. BERMAN, U.S.D.J.:
I. INTRODUCTION
Pro se petitioner Brian Wilson ("Wilson") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on April 22, 1996, in New York State Supreme Court, New York County. After a jury trial, Wilson was convicted of criminal possession of a controlled substance in the third degree. He was sentenced as a predicate felony offender to a term of six to twelve years.In his petition filed May 30, 2000, Wilson raises two claims. First, he alleges that the trial court improperly closed the courtroom during the undercover officer's testimony, violating his Sixth and Fourteenth Amendment rights to a public trial. Petition at 5; Traverse at 7. Second, Wilson alleges that the evidence used to convict him was obtained in violation of his Fourth Amendment protection against unlawful search and seizure. Petition at 6; Traverse at 18.
Respondent argues that Wilson's Sixth Amendment right to a public trial was not violated by the courtroom closure because his claim is unpreserved and unsupported by the record. Defendant's Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus ("Def. Mem.") at 17. Respondent also argues that Wilson's Fourth Amendment claim is not reviewable by this Court because he was already afforded an adequate state court procedure to analyze his claim. Id. at 12. For the reasons set forth below, this Court recommends that Wilson's petition be DISMISSED.
II. BACKGROUND
A. Factual HistoryOn the night of July 21, 1995, the arresting officer, Detective James Ngai ("Ngai"), was working on a "buy and bust" operation in the vicinity of West 39th Street between Eighth and Ninth Avenues. Trial Transcript ("Tr.") at 26-31. He served as a backup or "ghost" to undercover police officer Gerard Donoughue ("Donoughue"), whose role it was to attempt to purchase narcotics. Id. at 28, 213.
A "buy and bust" operation is a method of street-level drug enforcement wherein undercover officers make buys at certain locations, while members of the field team move in and arrest those involved. Id. at 197.
Donoughue's name is also spelled "Donoughe" and "Donahue" in the trial transcript.
Ngai testified that he observed Donoughue meet with a man, later identified as Quentin Langhom ("Langhom"), on the northeast corner of 39th Street and Ninth Avenue. Id. at 30. Donoughue and Langhom walked to mid-block, then crossed to the south side of the street. Id. at 31. Donoughue stayed alone by the curb while Langhom approached two men, whom Ngai identified in court as Wilson and Josh Wiggins ("Wiggins"). Id. While the three men talked, Ngai walked past them. Id. at 32. He came within three or four feet of the men, but did not hear any of their conversation nor observe any exchange of objects or currency take place. Id. at 66-67. Ngai testified that Donoughue, who was standing further from the men, then gave him a "positive buy sign" indicating that a purchase of narcotics had been made. Id. at 33, 57-58. Based upon the buy sign, Ngai radioed his field team and arrested Langhom, Wiggins, and Wilson. Id. at 33, 36, 38-39. Donoughue then radioed Ngai, identifying the three individuals who had been arrested, and confirmed that they had participated in the purchase of narcotics. Id. at 217-19.
B. Procedural History
1. Mapp/Wade Hearing
On March 5, 1996, the court held a Mapp/Wade hearing [ Mapp v. Ohio, 367 U.S. 643 (1961)/ United States v. Wade, 388 U.S. 218 (1967)] to determine whether the police had probable cause to arrest the defendants, and therefore, whether the evidence uncovered from defendants should be suppressed. Transcript of Mapp/Wade Hearing ("Hrg.") at 10. Ngai was the sole witness. At the conclusion of the hearing, the court held that there was probable cause for the police to arrest the defendants based upon the positive buy signal given by the undercover officer and the undercover officer's confirmatory identification. Id. at 79-80.
2. Hinton Hearing
On March 11, 1996, the court held a Hinton hearing. Hinton v. People, 31 N.Y.2d 713, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), cert. denied, 410 U.S. 911 (1973). Tr. at 187. However, the minutes of that hearing have been lost. Based upon the hearing, the court held that, during the testimony of the undercover officer, the courtroom would be closed to everyone except for lawyers and members of the defendants' families. Tr. at 187-88. Other people would have to identify themselves to the officer posted outside the courtroom, and the court would determine whether the individual could enter. Id. at 188.
3. Trial
The trial commenced on March 27, 1996, and the judge explained his rulings from the Hinton hearing. Tr. at 187. Wilson made no objection after the judge's explanation. Id. at 187-88. During the trial, the prosecution presented the testimony of Donoughue, tr. at 190, who identified Wilson as a participant in the narcotics purchase. Id. at 208. Donoughue testified that as he observed Langhorn giving ten dollars of pre-recorded buy money to Wilson, id. at 200, 208-9, he gave a positive buy signal to Ngai. Id. at 214. Donoughue also testified that ten minutes after the sale, he drove by Wilson and the other suspects, and confirmed that they had all participated. Id. at 217-19. The jury returned a guilty verdict against Wilson, and on April 22, 1996, he was sentenced as a predicate felony offender to a term of six to twelve years imprisonment. Id. at 381-82.
4. Appeal
Wilson appealed his conviction to the Appellate Division, First Department, arguing that: (1) the officers violated his constitutional right against unlawful search and seizure when they arrested him based "solely on speculation and a vague sign from an undercover officer," and (2) his fundamental right to a public trial was violated by the absence of a factual record to support courtroom closure. Exh. A of Affidavit in Opposition to the Petition at 8, 21. The Appellate Division affirmed Wilson's conviction on April 29, 1999, holding that the testimony of Ngai at the suppression hearing was "sufficient to establish probable cause" and that the trial court had properly denied his motion to suppress evidence of the pre-recorded buy money recovered from him following the arrest. People v. Wilson, 692 N.Y.S.2d 2, 3 (App.Div. 1999). The court found that although the minutes of the Hinton hearing had been lost, neither reconstruction of the proceedings nor reversal of the conviction was warranted because Wilson failed to make timely objections to the trial court's rulings, and furthermore, the record revealed that no one had actually been excluded during the undercover officer's testimony. Id.
The Court of Appeals denied Wilson leave to appeal on July 30, 1999, holding that he had presented no reviewable question of law. People v. Wilson, 717 N.E.2d 1090, 93 N.Y.2d 1007 (1999).
III. DISCUSSION
A. Applicable Law
Under 28 U.S.C. § 2254(b), amended in 1996 by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Title I, § 106(b), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A). The exhaustion doctrine requires a habeas petitioner to "first have given the state courts a fair opportunity to pass upon his federal claim" in the interests of comity and federalism. Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982), cert. denied, 464 U.S. 1048 (1984). As a procedural matter, the claim must have been presented to "the highest state court from which a decision can be had," in order to be considered exhausted. Dave, 696 F.2d at 190, n. 3; Smalls v. Batista, 6 F. Supp.2d 211, 213 (S.D.N.Y. 1998).
"[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) ( quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991)). Federal habeas review is thus precluded where the petitioner fails to properly raise objections or appeals to the state courts, unless the petitioner "can demonstrate cause for the default and actual prejudice [. . .] or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Harris v. Reed, 489 U.S. 255, 258 (1989). The Supreme Court has defined "cause" as a showing that "some objective factor external to the defense impeded counsel's efforts to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) ( citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).
Examples include: "(1) outside interference that makes compliance with state procedural rules impracticable; (2) 'a showing that the factual or legal basis for a claim was not reasonably available to counsel'; and (3) '[i]neffective assistance of counsel.'" Washinaton v. Superintendent, Otisville Correctional Facility, 1997 WL 178616, at *6 (S.D.N.Y. April 11, 1997) ( quoting McCleskey, 499 U.S. at 494 (citing Murray, 477 U.S. at 488)).
Similarly, in the interests of comity and federalism, federal courts are procedurally barred from habeas review when the federal claims have been defaulted "in state court pursuant to an independent and adequate state procedural rule[.]" Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) ( citing Coleman v. Thompson, 501 U.S. at 750); Harris v. Reed, 489 U.S. at 260 (no federal review if state decision "rests on a state-law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision.") Such review is foreclosed "even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9. Federal courts are thus barred from reviewing such claims regardless of "whether the state law ground is substantive or procedural" in nature. Coleman v. Thompson, 501 U.S. at 729. The general rule adopted in the Second Circuit is that the state court must "clearly and expressly" declare that its ruling rests on state law, or the federal court will presume jurisdiction to review. Harris v. Reed, 489 U.S. at 263; see also Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1991). To qualify as a bar, the reasoning behind the state court decision must be "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 411, 423-24 (1991).
B. Wilson's Claims
1. Sixth Amendment Claim
According to Wilson's first claim, his Sixth Amendment right to a public trial was violated when the trial court closed the courtroom during the testimony of undercover officer Donoughue. Petition at 5. Wilson challenges the decision of the Appellate Division to affirm his conviction, arguing that because the court did not have an opportunity to review the transcript of the Hinton hearing, there was no record of him not objecting during the closure. Id.
This Court, however, finds it is barred from reviewing Wilson's Sixth Amendment claim because the state court denied his claim based on adequate state procedural law. In affirming the trial court's decision, the Appellate Division found that Wilson defaulted his claim because during trial, he "never objected to the court's ruling that family members and certain others would be permitted to be present while additional persons seeking entrance would be admitted with the court's approval . . . ." Wilson, 692 N.Y.S.2d at 3; see People v. Perez, 245 A.D.2d 71 (App.Div. 1997) (court declined to review defendant's claim that his right to public trial was violated because he failed to preserve it). Contrary to Wilson's allegations the Appellate Division would not have had to review the Hinton hearing transcript in order to decide his claim, since Wilson did not object during the trial when the court explained its ruling. In order to overcome a procedural default, Wilson would have to "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. He has failed to meet this burden.
The trial transcript indicates that prior to the calling of the first witness, the trial court indicated that it would rely on its ruling from the Hinton hearing regarding the courtroom closure. Tr. at 187. No objections were raised by Wilson. See id.
In addition to its finding that Wilson failed to object, the Appellate Division referred to the closure as a "screening procedure" and found that it did not in fact result in the exclusion of anyone during the testimony. Wilson, 692 N.Y.S.2d at 3; Perez 245 A.D.2d at 71; see also U.S. v. Brazel, 102 F.3d 1120, 1155-56 (11th Cir. 1997) (courtroom was closed in manner similar to that in Wilson's case, and this "partial" closing was not unconstitutional given that only one person did not enter). On this basis, the court did not find it necessary to upset the trial court verdict. Therefore, even if Wilson is assumed to have objected during the hearing and such objection would be adequate to preserve the claim, the Court is procedurally barred from reviewing the claim.
Accordingly, this Court recommends that Wilson's Sixth Amendment claim be DISMISSED.
2. Fourth Amendment Claim
In his second claim, Wilson asserts that police violated his Fourth Amendment right against unlawful search and seizure when he was arrested without probable cause. Petition at 6; Traverse at 18. He argues that Ngai "never had the requisite probable cause to arrest [him because] Detective Ngai never saw [him] engage in any criminal conduct." Traverse at 21. Respondent argues that pursuant to Stone v. Powell, 428 U.S. 465 (1976), Wilson's Fourth Amendment claim is not reviewable by this Court because he was already afforded an adequate state court procedure to analyze his claim. Def. Mem. at 12. This Court agrees.
In Stone, the Supreme Court held that "where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone, 428 U.S. at 494 ( internal citations omitted ). The Second Circuit has developed a "litmus test" to determine if a state prisoner has had a "full and fair" opportunity to litigate Fourth Amendment claims in state court. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). These claims can only be reviewed by federal courts "(a) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Id. ( citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) ( in banc), cert. denied, 434 U.S. 1038 (1978)).
Wilson's Fourth Amendment claim is precluded from federal review as it meets none of the exceptions outlined in Gates. See Gates, 568 F.2d at 836. First, federal courts in this circuit have approved New York's methods to redress Fourth Amendment violations by procedures codified in New York Criminal Procedural Law § 710.10 et seq. Gates, 568 F.2d at 836, n. 2; Taylor v. Kuhlmann, 36 F. Supp.2d 534, 549 (E.D.N.Y. 1999). Second, there was no unconscionable breakdown of the process. Wilson's trial court held a Mapp/Wade hearing to determine the constitutionality of his arrest and the subsequent search and seizure. Hrg. at 10. In denying his suppression motion, the trial court compared Wilson's case to that of People v. Amoateng, 529 N.Y.S.2d 489, 141 A.D.2d 398 (App.Div. 1988), in which a signal from the undercover officer was sufficient to give probable cause, despite that the arresting officer did not directly witness the acts of the defendants. Hrg. at 78-79. The court found that the police had probable cause to arrest Wilson based upon the undercover police officer's positive buy signal. Id. at 79. Wilson cannot show that the state court failed to conduct "a 'reasoned method of inquiry into relevant questions of fact and law,' or any inquiry at all into the Fourth Amendment claim." Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987) ( quoting Cruz v. Alexander, 477 F. Supp. 516, 523 (S.D.N.Y. 1979)).
Furthermore, the Appellate Division affirmed the trial court's decision. Citing Amoateng and People v. Washington, 663 N.E.2d 1253, 87 N.Y.2d 945 (1996), the court held that the undercover officer's testimony "was sufficient to establish probable cause for [Wilson's] arrest." Wilson, 692 N.Y.S.2d at 3. Finally, the Court of Appeals found that there was no question of law that merited review. People v. Wilson, 717 N.E.2d 1090, 93 N.Y.2d 1007 (1999). Thus, Wilson's Fourth Amendment claim was adjudicated by the trial court and the probable cause determination was reviewed through the appellate process.
Accordingly, Wilson's Fourth Amendment claim is procedurally barred from habeas review and should be DISMISSED WITH PREJUDICE.
IV. CONCLUSION
For the reasons stated herein, this Court is procedurally barred from reviewing the claims presented in Wilson's petition. Therefore, I respectfully recommend that his petition for a writ of habeas corpus be DISMISSED.Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).