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holding that “photographs taken of items outside [defendant's] apartment that were in plain view of the officer” were properly admitted
Summary of this case from Selvaggio v. PattersonOpinion
9:00-CV-0767 (NAM/GLS)
November 24, 2003
MOSES WILSON, Pro Se, Elmira, NY, of Counsel FOR THE PETITIONER
HON. ELIOT SPITZER, Syracuse, NY, of Counsel FOR THE RESPONDENT
SENTA B. SIUDA, ESQ., Syracuse, NY, of Counsel FOR THE RESPONDENT
REPORT-RECOMMENDATION
I. Background A. State Court Proceedings
According to the testimony adduced at trial, on the evening of February 4, 1998, the victim was at home with some friends and her children.See Transcript of Trial of Moses Wilson (9/14/98) ("Tr.") at P. 350. At approximately 10:30 p.m., the victim invited petitioner, pro se Moses Wilson into her home and she, Wilson and some of the victim's friends began drinking beer (Tr. at PP. 351-54). After approximately three and one-half hours, Wilson asked the victim and another individual if they would accompany him to a store where he could purchase more beer (Tr. at PP. 355-56). The victim volunteered to go with Wilson, and the two left to purchase beer at a nearby establishment (Tr. at P. 356). When they discovered that the store was closed, the two ate at a restaurant, after which the victim agreed to accompany Wilson to his apartment, where he indicated he could obtain more beer (Tr. at PP. 357-59). Upon entering his apartment, Wilson went into his bedroom while the victim sat on a couch in the living room (Tr. at PP. 362-63). Wilson then entered the living room, sat on the couch and exposed his penis to the victim (Tr. at PP. 364-65). He then offered money to the victim in exchange for sex (Tr. at PP. 365-66), however, when she declined and began to leave, Wilson grabbed her by her side and the two fell to the floor (Tr. at P. 367). Wilson began fondling the victim's breasts, causing her to plead with him to stop (Id.). Wilson instead grabbed her vagina "really hard" and began undressing her (Tr. at PP. 367-69). The victim then began throwing items in the apartment, eventually breaking a mirror (Tr. at PP. 369-70). Although angered by her actions, Wilson released his hold on the victim after she indicated she needed to use the bathroom (Tr. at P. 370). The victim then ran out of the apartment, naked (Tr. at PP. 370-71). The victim then sought help from Wilson's neighbors and was eventually allowed into the home of Francis Sawyer, whose roommate called the police (Tr. at PP. 324-27, 371-72).
Under New York law, the identities of victims of sexual crimes are confidential. See New York's Civil Rights Law § 50-b. Therefore, this court will not refer to the victim by her name in this Report-Recommendation.
The victim hoped that the noise from objects breaking in the apartment would stop the assault (Tr. at P. 369).
On March 30, 1998, an Onondaga County grand jury charged Wilson with first degree attempted rape and first degree sexual abuse. See Indictment No. 98-0240-1. On September 14, 1998, Wilson was tried before a jury on these charges with Onondaga County Court Judge J. Kevin Mulroy presiding. The jury acquitted Wilson of the attempted rape charge (Tr. at P. 650), however, it found Wilson guilty of first degree sexual abuse (Tr. at P. 651). Wilson was thereafter sentenced by Judge Mulroy to an indeterminate term of imprisonment of three and one-half to seven years. See Sentencing Tr. (10/5/98) at P. 10.
Wilson appealed his conviction and sentence to the New York State Supreme Court, Appellate Division, Fourth Department. That court affirmed, People v. Wilson, 267 A.D.2d 1061 (4th Dept. 1999), and the Court of Appeals denied Wilson leave to appeal. People v. Wilson, 94 N.Y.2d 908 (2000). Wilson did not file any other state court challenges to his conviction (Pet. at ¶ 10).
B. This Proceeding
Wilson commenced this action on May 16, 2000 (Pet. at P. 1). Hon. Norman A. Mordue, United States District Judge, issued an order directing Wilson to pay the filing fee required in order to maintain this action (Dkt. No. 4). Wilson paid the fee and filed a memorandum of law in support of his petition (Dkt. No. 11). The Office of the Attorney General for the State of New York, acting on respondent's behalf, subsequently filed an answer and memorandum in opposition to the petition, and provided the court with the records associated with the relevant state court proceedings (Dkt. Nos. 13-14). On December 8, 2000, Wilson filed a reply memorandum (Dkt. No. 16).
II. Discussion A. Procedurally Barred Claims 1. Ground One
The first ground in Wilson's petition alleges that Assistant District Attorney Kenneth B. Rosso, Esq. ("ADA Rosso"), who prosecuted the criminal charges against Wilson, improperly utilized a peremptory challenge to exclude an African-American male from the jury (Pet. at Ground One). Specifically, Wilson claims that the prosecution struck the prospective juror solely because of his race in violation of the principles discussed in Batson v. Kentucky, 476 U.S. 79 (1986) (Pet. at Ground One).
In Batson, the Supreme Court established a three-step framework to be utilized in determining whether the use of a peremptory challenge to exclude a juror was race-based. Id. 476 U.S. at 96-98.
Respondent argues that Wilson failed to preserve this claim for review on appeal and therefore, he is procedurally barred from raising this ground in this proceeding (Dkt. No. 14 at PP. 3, 5).
A federal court is precluded from reviewing a habeas claim if the state court's rejection of the argument on appeal rests on "independent and adequate state grounds." Coleman v. Thompson, 501 U.S. 722, 736 (1991); Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000). This occurs when the last state court rendering a judgment in the case held that its judgment rested on a state procedural bar. Harris v. Reed, 489 U.S. 255, 262 (1989); Jones, 229 F.3d at 118. If the last state court issuing a ruling clearly and expressly stated that its judgment rested on a state procedural bar, a federal court may not review the claim unless the petitioner demonstrates both good cause for and actual prejudice resulting from his non-compliance with the state's procedural rule. Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999); Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995). A further exception exists where the petitioner establishes that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice . . . that is, where a person who is actually innocent has been convicted and incarcerated because of a constitutional violation." Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Thus, the court must initially determine whether Wilson is procedurally barred from obtaining the relief he seeks in the first ground of his petition.
In considering Wilson's Batson claim, the Fourth Department noted:
[d]efendant failed to challenge as pretextual the prosecutor's reason for peremptorily challenging an African-American prospective juror and thus failed to preserve his present contention for our review. We decline to exercise our power to review that contention as a matter of discretion in the interest of justice.See Wilson, 267 A.D.2d at 1061 (citations omitted).
A finding that a claim was unpreserved for appellate review is a finding of procedural default. N.Y. Crim. Proc. L. ("CPL") § 470.05; Duren v. Bennett, 275 F. Supp.2d 374, 380 (E.D.N.Y. 2003). The court's review of this ground is therefore conditioned upon proof of either legal cause for the default and resulting prejudice, or actual innocence. Fama, 235 F.3d at 809; Garcia, 188 F.3d at 76-77; Levine, 44 F.3d at 126.
To establish "cause," a petitioner must show that some objective external factor impeded his ability to comply with the relevant procedural rule. Coleman, 501 U.S. at 753; Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999). Examples of external factors 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; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citing Murray); 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 752-53 (quoting Murray, 477 U.S. at 488).
Wilson has not offered any cause for his failure to preserve his Batson claim for appellate review in either his petition or reply memorandum. Instead, he appears to argue that the Fourth Department erred when it found that he did not properly preserve that claim for appellate review. See Dkt. No. 11 at P. 10; Dkt. No. 16 at P. 7.
This court has reviewed the portion of the voir dire which relates to ADA Rosso's peremptory challenge concerning an African-American male (Tr. at PP. 91-94). That review reveals that Wilson's counsel never objected to Judge Mulroy's decision allowing the prosecution to exercise a peremptory challenge concerning that individual (Tr. at PP. 93-95). New York law requires that Batson objections be placed on the record before the jury is sworn. Caston v. Costello, 74 F. Supp.2d 262, 267 (E.D.N.Y. 1999) (citing People v. Harris, 151 A.D.2d 961, 961 (4th Dep't 1989)) (for a Batson claim to be timely, "an objection must be made before the jury, or the last juror including alternates, is sworn"). Since Wilson's counsel never objected to Judge Mulroy's decision allowing the peremptory challenge striking the prospective African-American juror before the last jurors were sworn (Tr. at PP. 91-95, 155), the Appellate Division correctly found Wilson's Batson challenge unpreserved for appellate review. See Wilson, 267 A.D.2d at 1061.
Wilson has never alleged, in either the state courts or this action, that he received ineffective assistance due to trial counsel's failure to object to Judge Mulroy's decision allowing the use of the peremptory challenge regarding the African-American juror.
Since Wilson has not established cause for his procedural default, this court need not decide whether he suffered prejudice because federal habeas relief is generally unavailable as to procedurally barred claims unless both cause and prejudice is demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); McLeod v. Moscicki, 02 CIV. 9335, 2003 WL 22427757, at *8 (S.D.N.Y. Oct. 22, 2003) (Francis, M.J.) (citing Murray, 477 U.S. at 494); You v. Bennett, 00-CV-7514, 2003 WL 21847008, at *7 (E.D.N.Y. July 29, 2003) (citing Coleman, 501 U.S. at 750); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).
After reviewing the trial transcript, this court finds no basis to conclude that the failure to consider the merits of this claim would result in a fundamental miscarriage of justice which has been interpreted as amounting to "an unjust incarceration." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). Therefore, the court recommends that Wilson's first ground for relief be denied. See e.g., Walker v. Senkowski, 769 F. Supp. 462 (E.D.N.Y. 1991) (finding Batson claim procedurally barred).
2. Ground Two
Wilson's second claim alleges that the trial court improperly allowed ADA Rosso to bolster the prosecution's case during its cross-examination of Wilson (Pet. at Ground Two). Wilson's supporting memorandum reveals that this ground is based upon two distinct arguments which this court considers seriatim.
i. Evidence Regarding Telephone Calls to 911
The first theory in support of Wilson's second ground arose out of his claim that he had placed a call to a 911 emergency operator after the victim left his home (Tr. at PP. 520-21). Wilson argues that while he was being cross-examined about that testimony, ADA Rosso engaged in misconduct by: a) claiming that the only call placed to 911 that night was from the home of Francis Sawyer; and, b) "waving a piece of paper around" in an apparent effort to convince the jury that the prosecution possessed written evidence refuting Wilson's claim that he called 911 on the day the victim was attacked (Dkt. No. 11 at PP. 10-13). Respondent argues that Wilson is procedurally barred from asserting this claim (Dkt. No. 14 at P. 6).
In rejecting this aspect of Wilson's appeal, the Fourth Department found that Wilson "effectively waived his objection to the prosecutor's reference to 911 call records not in evidence by objecting only on . . . discovery grounds." Wilson, 267 A.D.2d at 1061. A state court's finding that an appellant waived his right to assert a claim on appeal constitutes an independent and adequate state ground precluding federal review of a petitioner's constitutional claim. Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir. 1991) ("the Supreme Court has held that a procedural waiver under state law sufficient to prevent review of the defendant's substantive claim in the state courts also constitutes an independent and adequate state ground that bars federal consideration of the substantive claim on habeas corpus") (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977); see also, Carr v. Fischer, ___ F. Supp.2d ___, 01-CV-6878, 2003 WL 22175888, at *17 (E.D.N.Y. Sept. 9, 2003) (citing Wainwright); U.S. ex rel. Hogan v. Bara, 578 F. Supp. 1075, 1081 (E.D.N.Y. 1984) ("state procedural waiver constituted an independent and adequate state ground for the Appellate Division's affirmance of the conviction"). Thus, the last state court rendering a judgment in Wilson's case regarding this theory clearly and expressly stated that its judgment rested on a state procedural bar. Since Wilson has failed to demonstrate cause for his default, or provide evidence that he is innocent of the crime of which he was convicted, this court recommends that this aspect of Wilson's second ground for relief be denied on this procedural basis.
The fact that the Appellate Division alternatively addressed the merits of this claim ( Wilson, 267 A.D.2d at 1061) is of no moment: "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); Broome v. Coughlin, 871 F. Supp. 132, 134 (N.D.N.Y. 1994) (Kaplan, J., sitting by designation).
ii. Questioning of Wilson Regarding Testimony of Prosecution Witnesses
The second theory in support of this claim argues that the prosecution improperly asked Wilson during cross-examination whether "everyone who testified differently from [Wilson] was mistaken or lying" (Dkt. No. 11 at P. 13) (citing Jr. at P. 540). Respondent claims that Wilson is procedurally barred from raising this claim (Dkt. No. 14 at P. 6).
In considering this claim in Wilson's appeal, the Appellate Division noted that Wilson's counsel lodged an objection after ADA Rosso asked Wilson whether the prosecution witnesses were lying. Wilson, 267 A.D.2d at 1062. In addressing the merits of the claim, that court determined that the prosecution's conduct did not deprive Wilson of a fair trial. Id. Thus, Wilson does not appear to have procedurally defaulted on this aspect of his second ground for relief, and the court considers the substance of this aspect of his petition. B. Standard of Review For Remaining Claims
The Appellate Division noted that Wilson's counsel only lodged one objection during this portion of the cross-examination of Wilson, and therefore, aspects of his appeal were not preserved for appellate review. Wilson, 267 A.D.2d at 1062. However, it appears that the claim raised by Wilson in this action is based upon the portion of the cross-examination during which his counsel raised a timely objection (Pet. at Ground Two).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant habeas relief to a state prisoner on a 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; 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); see also, Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that in any federal habeas corpus proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see a/so, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted). In interpreting the AEDPA, the Second Circuit has noted:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). A state court's decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Moreover, a federal court is not to consider whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable." Williams, 529 U.S. at 409; see also, Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001); Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y. 2003). The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.
1. Ground Two
Wilson argues that ADA Rosso's conduct in asking him whether the prosecution witnesses lied during their testimony was "patently improper" and necessitates the granting of habeas relief (Pet. at Ground Two). I. Clearly Established Supreme Court Precedent
A criminal defendant's right to a fair trial is mandated by the United States Constitution. Albright v. Oliver, 510 U.S. 266, 273 n. 6 (1994) (citing United States v. Agurs, 427 U.S. 97, 107 (1976)). However, for habeas relief to be granted based on a claim of prosecutorial misconduct, the alleged misconduct must have "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In considering such a claim, courts are to focus on "the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). ii. Contrary to. or Unreasonable Application of. Supreme Court Precedent
The law applicable to claims alleging prosecutorial misconduct is clearly established. See Davis v. Keane, 97 CIV. 8328, 2000 WL 1041454, at *7-8 (S.D.N.Y. July 28, 2000) (citing United States v. Young, 470 U.S. 1, 11 (1985) and Donnelly, 416 U.S. at 642-43); see a/so, Flores v. Keane, 211 F. Supp.2d 426, 438 (S.D.N.Y. 2001).
In rejecting this aspect of Wilson's appeal, the Appellate Division found that ADA Rosso's conduct did not deprive Wilson of his right to a fair trial. Wilson, 267 A.D.2d at 1062. Thus, this court must determine whether that decision was contrary to, or represented an unreasonable application of, the Supreme Court precedent noted above.
In cross examining Wilson at his trial, the following colloquy occurred between ADA Rosso and Wilson:
ADA Rosso: Did you say to Detective Cordone — did you say to Detective Cordone the bitch wanted it?
Wilson: No sir.
ADA Rosso: So Detective Cordone is mistaken when he testified about that?
Wilson: Yes sir.
ADA Rosso: So pretty much everyone who testified other than you whose testimony was different than what you gave here today was mistaken on as you put it lying?
Wilson's counsel: Objection.
The Court: Sustained. Whoever is telling the truth on questions in controversy are for this jury and not for his opinion.
Tr. at PP. 539-40.
In determining whether the prosecution's conduct deprived a criminal defendant of his right to a fair trial, counts must look to the severity of the prosecuton's conduct; the measures, if any, the trial count took to remedy any prejudice; and the certainty of conviction absent the prosecuton's remarks. Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994); Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990); Palmer v. Senkowski, 99 CIV. 9634, 2002 WL 54608, at *4 (S.D.N.Y. Jan. 15, 2002) (citations omitted); see also, Darden, 477 U.S. at 181-83; Donnelly, 416 U.S. at 644-47.
It is generally improper for a prosecutor to refer to a defendant as a liar. Green v. Herbert, 01 CIV. 11881, 2002 WL 1587133, at *17 (S.D.N.Y. July 18, 2002) (collecting cases). Although ADA Rosso did not refer to Wilson as a liar in the above colloquy, he did intimate that either Wilson or all of the prosecution witnesses were lying regarding Wilson's complicity in the crime. However, even assuming, arguendo, that the prosecutor's question to Wilson was improper, Judge Mulroy sustained counsel's objection to that question and immediately noted that the jury was solely responsible for evaluating the credibility of testimony and resolving factual issues in dispute (Tr. at P. 540). Judge Mulroy reiterated this fact in his instructions to the jury. Specifically, the jury was advised:
You the jury are the s[ole] and exclusive judges of the facts. It is the duty of this jury to decide each and every issue of fact which has arisen during the course of the trial. No one, not counsel nor the Court may presume to tell you how those issues were decided. I repeat, it is you and you alone who are the s[ole] and exclusive judges of the facts. The credibility, that is, the believability of each witness is itself an issue of fact solely and exclusively within the province of the jury.Jr. at PP. 609-10. Additionally, the evidence establishes that Wilson's conviction for the crime was certain absent the prosecutor's comment. Specifically, the victim clearly identified Wilson as the individual who attacked her in the early morning hours of February 5, 1998, and subjected her to forced sexual contact (Jr. at PP. 350, 359-71). Wilson also admitted on cross-examination that on the night the victim claimed she was attacked, she left Wilson's apartment naked despite the fact that there was snow on the ground (Jr. at PP. 517-18).
Additionally, the victim left all of her clothes which Wilson conceded were ripped sometime after she entered his home, in his apartment (Tr. at PP. 517-18).
After reviewing the trial transcript relating to Wilson's conviction, this court finds that he has failed to establish that the Appellate Division's denial of this aspect of his appeal was either contrary to, or represented an unreasonable application of, the Supreme Court precedent referenced above. Therefore, this court recommends that this aspect of Wilson's second ground for relief be denied on the merits. See e.g., Miranda, 322 F.3d at 180 (claims alleging prosecutorial misconduct must be assessed "in the context of the entire trial"); Fletcher v. Mann, 956 F. Supp. 168, 173 (N.D.N.Y. 1997) (Scullin, J.) (denying habeas claim alleging prosecutorial misconduct), aff'd, 165 F.3d 13 (2d Cir. 1998).
2. Ground Three
In his third ground, Wilson argues that Judge Mulroy improperly ruled that photographs taken of his apartment soon after the victim was attacked could be used as evidence at his trial (Pet. at Ground Three). Specifically, Wilson argues that although Judge Mulroy suppressed from evidence the items seized from his apartment as a product of an illegal search, Judge Mulroy improperly ruled that photographs taken in his apartment at that time, as well as testimony regarding the condition of the apartment, was admissible (Dkt. No. 11 at P. 17).
i. Clearly Established Supreme Court Precedent
Traditionally, when evaluating convictions on habeas review which allege error on the part of the trial court, the court is to determine whether the trial court's error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation and citation omitted); Penry v. Johnson, 532 U.S. 782, 795 (2001) (citing Brecht).
However, several circuit courts have questioned the continuing validity of the Brecht test in light of the AEDPA because under that Act federal courts are only to determine whether the state court "unreasonably applied" clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Thus, in light of the AEDPA, the question arises whether federal courts are to review errors found to be harmless by the state courts under the Brecht standard or instead under the "harmless beyond a reasonable doubt" standard articulated by the Supreme Court in Chapman v. California, 386 U.S. 18, 24 (1967).
Although the Supreme Court has cited the Brecht standard on two different occasions since the enactment of the AEDPA, see Penry, 532 U.S. at 795; Early v. Packer, 537 U.S. 3, 10 (2002), it does not appear as though the issue of whether the Brecht standard survived the AEDPA was ever briefed, and that Court has never specifically indicated that the Brecht standard is controlling subsequent to the AEDPA. See Aleman v. Sternes, 320 F.3d 687, 690 (7th Cir.), cert denied, ___ U.S. ___, 123 S.Ct. 2653 (2003).
Some circuit courts have held that the Brecht standard must still be applied to claims alleging trial court error notwithstanding the AEDPA. See Hill v. Hofbauer, 337 F.3d 706, 718 (6th Cir. 2003) ("the Brecht standard has survived the enactment of the AEDPA"); Robertson v. Cain, 324 F.3d 297, 299 (5th Cir. 2003) (the "AEDPA's restrictions on federal review of state habeas decisions do not alter Brecht's mandate for harmless error analysis by federal courts"); Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir. 2002) ("in cases governed by AEDPA, the habeas court is to apply the harmless error standard set out in Brecht"). However, other circuits have opined that federal courts may now be required to consider whether the state court's ruling was contrary to, or represented an unreasonable application of, Chapman. See Anderson v. Cowan, 227 F.3d 893, 898 (7th Cir. 2000) (questioning the continued viability of Brecht in light of amended § 2254, but finding it unnecessary to resolve the question because "[e]ven if we assume that Brecht articulates a more generous standard than AEDPA, we must conclude that, under that more generous standard, the error was harmless"); Whitmore v. Kemna, 213 F.3d 431, 433-34 (8th Cir. 2000) (suggesting that after a state court has applied a Chapman harmless error analysis, the federal court must ask only whether the state court's application of the Chapman error standard was "unreasonable"). ii. Contrary to. or Unreasonable Application of. Supreme Court Precedent
The Second Circuit has noted on several occasions the existence of this unresolved issue, but to date has found it unnecessary to state which standard it believes to be controlling. See e.g., Dallio v. Spitzer, 343 F.3d 553, 569 (2d Cir. 2003) (Katzmann, J., concurring) (declining to resolve issue because error harmless under either standard); Cotto v. Herbert, 331 F.3d 217, 253-54 (2d Cir. 2003) (declining to resolve issue because error not harmless under either standard); Ryan v. Miller, 303 F.3d 231, 253 (2d Cir. 2002) (same); Sanchez v. Duncan, 282 F.3d 78, 82 n. 2 (2d Cir.) (error harmless under either standard), cert. denied, 537 U.S. 843 (2002).
At approximately 4:20 a.m. on the morning of February 5, 1998, Officer Frederick J. Baunee of the Syracuse Police Department took several photographs of the exterior of Wilson's apartment, including pictures of clothing near the back door of the apartment (Tr. at PP. 276-80, 294). Most of the photographs taken inside Wilson's apartment depicted pieces of a broken mirror throughout his home (Tr. at PP. 280-88).
Photocopies of those photographs were provided to the court by the respondent in his answer in opposition to the petition.
In considering Wilson's challenge to Judge Mulroy's ruling on appeal, the Appellate Division held:
The court erred in admitting in evidence photographs taken during an unlawful warrantless search of defendant's apartment. Those photographs, however, are merely cumulative of other evidence, and thus their admission is harmless error.Wilson, 267 A.D.2d at 1062.
In considering this aspect of the petition, the court has reviewed the trial testimony of Officer Baunee together with the testimony of the victim and Wilson. The photographs and testimony regarding the broken mirror in Wilson's apartment proved to be merely cumulative of the victim's testimony (Tr. at PP. 369-71), which was properly admitted into evidence. Additionally, it does not appear to have been improper for Judge Mulroy to allow the jury to view, and permit Officer Baunee to testify about, photographs taken of items outside Wilson's apartment that were in plain view of the officer. E.g., McCardle v. Haddad, 131 F.3d 43, 48 (2d Cir. 1997) (noting that exception to rule that evidence obtained from a warrantless search includes "evidence lying in plain view") (citing Arizona v. Hicks, 480 U.S. 321, 326 (1987)).
Wilson conceded that the victim broke a mirror on the night she claimed she was attacked (Tr. at P. 494).
After reviewing the relevant trial testimony and the copies of the photographs introduced into evidence relating to this aspect of Wilson's petition, including evidence which indicated that various objects were in disarray in Wilson's apartment, this court concludes that Judge Mulroy's error in allowing the photographs taken inside Wilson's apartment and related testimony into evidence did not have a substantial and injurious effect or influence in determining the jury's verdict. This court alternatively finds that the Fourth Department's finding that the error was harmless was neither contrary to, nor an unreasonable application of, Chapman. Therefore, this court recommends that the third ground in the petition be denied.
3. Ground Four
In his final ground, Wilson argues that his conviction was against the weight of the evidence (Pet. at Ground Four).
Weight of the evidence review is a product of New York state statute and therefore merely a state law issue. See CPL § 470.15; see a/so, People v. Bleakley, 69 N.Y.2d 490 (1987). It is well-established that habeas corpus review is not available for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-69 (1991). As such, no cognizable federal issue is presented by a habeas claim challenging the weight of the evidence adduced at trial. Glisson v. Mantello, 00 CIV. 4773, F. Supp.2d 2003 WL 22358798, at *9 (S.D.N.Y. Oct. 15, 2003) (citing Givens v. Burge, 02 Civ. 0842, 2003 WL 1563775, at *10 (S.D.N.Y. Mar. 4, 2003) (collecting cases); McBride v. Senkowski, 98CV8663, 2002 WL 523275, at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (citing Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996)).
However, Wilson is proceeding pro se in this proceeding and as such his habeas claim, should be construed liberally. Alexis v. Smith, 03 CIV. 391, 2003 WL 22434154, at *4 (S.D.N.Y. Oct. 24, 2003) (citing Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997)); Montalvo v. Newton, 98CIV8665, 2001 WL 1399527, at *4 (S.D.N.Y. Mar. 23, 2001) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, the court considers this ground as a challenge to the sufficiency of the evidence which is cognizable in this action. McBride, 2002 WL 523275, at *4 n. 2 (construing claim of pro se petitioner alleging verdict was against weight of evidence as challenge to sufficiency of evidence).
i. Clearly Established Supreme Court Precedent
Under the Due Process Clause of the Fourteenth Amendment, a criminal defendant may only be convicted of a crime where there is proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the defendant is charged. See Jackson v. Virginia, 443 U.S. 307 (1979); Fiore v. White, 531 U.S. 225 (2001). In considering a claim that there was insufficient evidence to support a conviction in the context of a federal habeas petition, the court must consider "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, 443 U.S. at 319. ii. Contrary to. or Unreasonable Application of. Supreme Court Precedent
The Appellate Division denied Wilson's claim challenging the weight of the evidence offered against him at trial ( Wilson, 267 A.D.2d at 1062).
The burden on a petitioner challenging the sufficiency of the evidence is "very heavy." Jamison v. Grier, 01CIV6678, 2002 WL 100642, at *2 (S.D.N.Y. Jan. 25, 2002); Clark v. Irvin, 844 F. Supp. 899, 904 (N.D.N.Y. 1994) (Hurd, M.J.). The appropriate inquiry on habeas review is whether:
the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, [the court] must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.Ferguson v. Walker, 00CIV1356, 2001 WL 869615, at *4 n. 4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.) (quoting United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983) (citations omitted)) adopted, Ferguson v. Walker, 00CIV1356, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002).
In New York, a person is guilty of first degree sexual abuse when he subjects another person to sexual contact by forcible compulsion. See N.Y.Penal L. § 130.65. The victim testified that during the assault, Wilson "grabbed [her vagina] so hard that . . . pain went right through me" (Tr. at P. 367). She further testified that she "pleaded for [Wilson] to stop," to no avail (Id.). That testimony was clearly sufficient to establish the elements of the crime of first degree sexual abuse. Therefore, the Appellate Division's denial of Wilson's claim ( Wilson, 267 A.D.2d at 1062) was neither contrary to, nor an unreasonable application of, Jackson and its progeny. Thus, this court recommends that the final ground in the petition be denied.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Wilson's petition be DENIED and DISMISSED; and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail.
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. Any 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.