Opinion
9:98-CV-0668 (NAM)(GLS)
June 27, 2001
FOR THE PETITIONER: DONALD R. BARRIGAR, Petitioner, Pro Se, Gouverneur Correctional Facility, Gouverneur, NY.
FOR THE RESPONDENT: HON. ELIOT SPITZER, Office of Attorney General, OF COUNSEL: LEE ALAN ADLERSTEIN, ESQ., Asst. Attorney General, New York, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Donald R. Barrigar ("Barrigar") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on April 14, 1998, in the Western District of New York. On April 21, 1998, the Hon. Richard J. Arcara, U.S. District Judge for the Western District, transferred Barrigar's petition to this District (Dkt. No. 3). This court 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 (Dkt. No. 6).
The Attorney General filed an affidavit and memorandum of law requesting dismissal of the petition (Dkt. Nos. 11 and 12), to which Barrigar filed a traverse (Dkt. No. 16). Barrigar also filed a document entitled "Expansion" in which he appears to seek a court order directing that testing be performed by the Laboratory Alliance of Central New York on "processed tissue" that had been taken from Barrigar (Dkt. No. 20).
On October 15, 1998, this court signed an order that sealed the trial transcript of the state court proceedings below due to the nature of the crime (Dkt. No. 15), and on December 9, 1998, this matter was re-assigned to the Hon. Norman A. Mordue as presiding U.S. District Judge due to the elevation of the Hon. Rosemary S. Pooler to the position of Circuit Judge (Dkt. No. 17).
By Order filed April 16, 2001, this court granted a request by Barrigar to file an amended petition (Dkt. No. 28). Thereafter, Barrigar filed a "supplemental" petition (Dkt. No. 29) to which the respondent has filed a letter-response in opposition (Dkt. No. 30).
II. Discussion
A. State Court Proceedings
An Onondaga County Grand Jury charged Barrigar with committing first degree sodomy, first degree sexual abuse and incest in two sets of six charges; the first set related to allegations of abuse during Easter weekend of 1994 ("April charges"), and the second set alleged abuse during Christmas week, 1993 ("December charges"). See Indictment No. 94-818-1; Trial Tr. of Donald R. Barrigar (3/27/95) ("Tr.") at PP. 641-42.
The copy of the indictment provided by the respondent only contains the first nine counts.
A charge of endangering the welfare of a child which was also contained in this indictment, was not submitted to the jury. Id. at PP. 670-71.
The testimony at trial revealed that D.B., Barrigar's then-nine year old daughter, was at Barrigar's home during Easter weekend of 1994 (Id. at PP. 297-305, 312-13). At approximately one o'clock in the morning, Barrigar woke up D.B., told her to pull down her underwear and "put his penis in my butt" while she was on her hands and knees. Id. at PP. 315-16. After this assault, Barrigar directed D.B. to lay on the floor, and he anally sodomized her again. Id. at PP. 316-17. The two went into the kitchen where Barrigar forced D.B. to perform oral sex on him. Id. at PP. 317-18. He then told D.B. to brush her teeth, and warned her that he would hurt her if she told anyone about what he had done. Id. at PP. 318-19. D.B. also testified that on Christmas Eve of 1993, she went to her father's residence in Syracuse and spent "some nights" there. Id. at P. 320. D.B. stated that on Friday night, after everybody went to bed, Barrigar sexually assaulted her. Id. at PP. 321-22.
New York's Civil Rights Law § 50-b ("§ 50-b") reads, in part: "[t]he identity of any victim of a sex offense . . . shall be confidential. No . . . court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection." The court will therefore refer to the victim in this case as D.B.
It is unclear whether this occurred early Saturday or early Sunday morning.
D.B. also testified that her father took her to the door of his bedroom in order to have her watch Barrigar have sex with his girlfriend, Wanda. Id. at 322-23.
Christmas day fell on a Saturday in 1993.
In May of 1994, D.B. told her mother, Sharlene J. ("Sharlene") about the foregoing with the help of a drawing in which D.B. depicted her father molesting her. Id. at PP. 389-92. Gwendolyn Anne Dowdell, who worked as an investigator in the state's Child Abuse Unit at the time ("Investigator Dowdell"), testified that on May 13, 1994, she received a report from Child Protective Services ("CPS"), Id. at PP. 261-64, which indicated that a call had been received by the CPS hotline placed by Sharlene which indicated that Barrigar had sexually abused D.B. Id. at PP. 263-65.
Investigator Dowdell testified that during her investigation, she discovered that in 1988 Lyle Walker, the step-son of Sharlene's boyfriend, pled guilty to sexually abusing D.B. when she was three years old (Tr. at P. 275). D.B. was also sexually abused by Sharlene's boyfriend, Morris Stafford, when she was approximately eight years old. Id. at P. 335.
Barrigar called several witnesses in his defense. With respect to the April charges, Ross S. Peterson ("Peterson"), Barrigar's half-brother, testified that he spent the Saturday before Easter in 1994 with several people, including Barrigar, at Peterson's parents' house, and that D.B. was not with Barrigar at this time. Id. at PP. 503-04. As to the December charges, Carolyn J. Schell testified that D.B. was in Watertown throughout the week between Christmas and New Years Day in 1993, and played with Schell's children during this time, including Christmas day. Id. at PP. 525-26. Barrigar also offered evidence in support of his claim that Sharlene fabricated all of these charges in order to obtain custody of D.B. from Barrigar, who had been awarded custody of D.B. when she was four years old. Id. at P. 406. Cindy Clafin ("Clafin"), who was a baby-sitter for D.B. on various occasions between 1987 through 1989 (Id. at PP. 485-86), testified that on August 25, 1994, D.B. approached her and stated that "daddy didn't touch me," and that she loved him and wanted to live with him. Id. at PP. 488-89. Clafin also stated that D.B. was told by her mother to say "stuff" about her father. Id. at P. 489.
On cross-examination, however, Peterson conceded that the gathering at his parents' house lasted no more than three to four hours, and that he did not know the whereabouts of D.B. before or after the time of that event. He also conceded that he had no independent knowledge of where she was on April 2, 1994. Id. at PP. 512-13. Additionally, Chantal C. Baxter, a foster care worker for the Jefferson County Department of Social Services, testified in rebuttal that her records relating to D.B. indicated that D.B. and Sharlene advised Baxter that D.B. was with her father during the Easter weekend of 1994 on a court-ordered visitation. Id. at PP. 556-57, 560-62.
Clafin testified that, as of the day of her testimony, she did not know to what D.B. was referring when she stated this. Id. at P. 497.
Clafin also testified that D.B. had warts on her index finger and thumbs. Id. at P. 487. However, on cross-examination, Mary A. Felasco, Esq., the Assistant District Attorney who prosecuted the case ("ADA Felasco"), brought out testimony which indicated that this aspect of Clafin's testimony was inconsistent with a statement she provided to the DA. Id. at P. 499.
Barrigar was to testify in his defense, and was called by his attorney, James N. Romeo, Esq. ("Attorney Romeo") to the stand. However, when called, he threw a deck of cards on the defense table and declined to testify. Id. at P. 545. After a brief recess, Judge J. Kevin Mulroy ("Judge Mulroy") reminded the jury that the burden of proof remained at all times with the prosecution, and that it was not permitted to draw any adverse inferences from Barrigar's decision not to testify. Id. at P. 548.
The jury found Barrigar guilty of the April charges, and not guilty of the December charges. Judge Mulroy sentenced Barrigar to an indeterminate term of eight to twenty-four years imprisonment for the conviction of first degree sodomy, with lesser, concurrent sentences on the other convictions. The Appellate Division, Fourth Department ("Appellate Division") found all but one of Barrigar's claims on appeal to be without merit. People v. Barrigar, 233 A.D.2d 845 (4th Dep't 1996). That court held that Judge Mulroy committed error when he summarily denied Barrigar's demand for documents he claimed were Rosario material, finding that an in camera examination of the prosecutor's notes was required to determine whether they constituted attorney work product (and were therefore not discoverable) or Rosario material. Id. at 846.
Barrigar was found guilty of sodomy and sexual abuse in the first degree and incest. Id. at PP. 680-81.
People v. Rosario, 9 N.Y.2d 286 (1961).
Therefore, the court remitted the matter to the trial court. Id. After an in camera inspection of the notes of the prosecutor, together with documents submitted by the parties relating to the Rosario issue, Judge Mulroy concluded that the notes did not contain summaries of witness statements but rather potential questions for the witnesses prepared by the prosecutor. As a result, Judge Mulroy concluded that these notes were privileged attorney work product. See Decision/Order of Judge Mulroy dated February 6, 1997 ("Rosario Decision"). The Appellate Division affirmed (see People v. Barrigar, 238 A.D.2d 932 (4th Dep't 1997)), and the Court of Appeals denied Barrigar leave to appeal (People v. Barrigar, 90 N.Y.2d 855 (1997)).
B. Merits of Barrigar's Claims
1. Applications for Mistrial and Adjournment
(a) Motion for Mistrial
Dr. Ann Sutara Botash ("Dr. Botash"), the Director of the Child Abuse Referral and Evaluation Program in Onondaga County, testified that venereal warts, which are caused by a virus, are most commonly transmitted through sexual contact with an infected person (Tr. at PP. 417-18, 434). Dr. Botash examined D.B. on several occasions in 1994, and on one such examination discovered that D.B. had several venereal warts in the rectal area, and a "notch" in her vaginal area that was consistent with being a venereal wart. Id. at PP. 421-22, 446-47, 452-53. Dr. Botash testified that D.B.'s medical records indicated that she did not have venereal warts in the past, Id. at PP. 422-23, 443-44, and in her medical opinion, D.B.'s warts were caused by sexual abuse. Id. at PP. 423, 438-39, 447.
The incubation period for these types of warts after contact with an infected person ranges between six weeks to three years. Id. at P. 423.
Barrigar had previously been treated for venereal warts.
In response to a question from defense counsel, Dr. Botash testified that she had reviewed a laboratory report that indicated that these warts were medically "typed" and that D.B. was infected with Types 6 and 11 of the over sixty different types of known human papilloma viruses ("HPV"). Id. at P. 438. Barrigar argues that Judge Mulroy was required to declare a mistrial because his counsel was not provided with a copy of the laboratory report about which Dr. Botash testified which indicated that typing had been performed on D.B.'s warts.
Venereal warts are transmitted by sexual contact and are caused by the HPV. Id. at P. 247.
"[P]rior to declaring a mistrial, the court must properly explore the appropriate alternatives to a mistrial and there must be a sufficient basis in the record for a mistrial". Maynard v. Wait, 246 A.D.2d 853, 854-55 (3rd Dep't 1998) (citing Hall v. Potoker, 49 N.Y.2d 501 (1980); Cooper v. Costello, 1996 WL 1088929, at *4 (E.D.N.Y. July 23, 1996) ("[a] mistrial is appropriate only in cases where the ends of justice might otherwise be defeated"). Moreover, a trial court's determination of whether to declare a mistrial is accorded "the highest degree of respect." Arizona v. Washington, 434 U.S. 497, 51-11 (1978). The refusal to grant a mistrial will not be considered error, much less constitutional error, unless such refusal amounts to an abuse of discretion. See United States v. Coven, 662 F.2d 162, 175 (2d Cir. 1981); McShall v. Henderson, 526 F. Supp. 158, 162 (S.D.N.Y. 1981).
Barrigar has not demonstrated that Judge Mulroy abused his discretion in failing to grant a mistrial. When questioned by Judge Mulroy about Dr. Botash's testimony, ADA Felasco stated that she "did not have any idea that [Dr. Botash] was going to testify" about the typing of D.B.'s warts at trial, and was unaware that those tests had been performed (Tr. at P. 476). Barrigar has not presented any evidence that refutes ADA Felasco's statement, or which indicates that the prosecution was aware that this test was performed. Moreover, Judge Mulroy offered to strike Dr. Botash's testimony relating to the type of D.B.'s warts because no one had anticipated the testimony, however, Attorney Romeo declined. Id. at P. 483. Since the trial court did not abuse its discretion in declining to grant a mistrial, this theory does not offer Barrigar a basis for relief.
(b) Request for Adjournment
Due to Dr. Botash's testimony concerning typing, Attorney Romeo requested "a lengthy adjournment in order to have some possible typing do[ne] of my client" (Tr. at P. 480). Attorney Romeo noted that the adjournment would probably take more than a "couple of weeks". Id. at P. 481. In denying the request, the trial court noted that counsel "was aware that typing could . . . have been done on your client prior, some weeks ago prior to this trial commencing, and you didn't do that then." Id. at P. 482.
"Under New York law, the granting of an adjournment for any purpose is a matter of discretion for the trial court." Perez v. Keane, 1996 WL 599695, at *3 (S.D.N.Y. Oct. 17, 1996) (citing People v. Singleton, 41 N.Y.2d 402 (1977)). To show abuse of that discretion, the defendant must demonstrate both that the court's denial of a continuance was arbitrary and that the denial substantially impaired his defense. Wood v. Artuz, 39 F. Supp.2d 211, 214 (E.D.N.Y. 1999) (citing United States v. Edwards, 101 F.3d 17, 18 (2d Cir. 1996) (other citation omitted).
Judge Mulroy did not abuse his discretion in denying Attorney Romeo's request for an adjournment of several weeks toward the end of trial. See Spodek v. Lasser Stables, 89 A.D.2d 892, 893 (2nd Dep't 1982) (denial of requested adjournment of approximately two weeks "cannot be deemed an abuse of discretion"). The trial court offered to grant Attorney Romeo a "reasonable adjournment" in light of the unanticipated testimony (Id. at P. 477), however, counsel sought an adjournment of several weeks. Id. at PP. 480-81. Moreover, as noted by Judge Mulroy, Barrigar had had the opportunity to perform the typing prior to trial, however, he refrained from having the typing performed. Furthermore, the trial court sua sponte offered to strike the testimony relating to the typing, however, this request was declined by Attorney Romeo. In light of the foregoing, the court concludes that the trial court did not abuse its discretion in denying the adjournment requested by Attorney Romeo. Therefore, the court recommends that this Ground for relief should be denied.
2. Rosario Claims
In Ground One, Barrigar asserts that ADA Felasco improperly refused to provide his counsel with the summaries of witnesses she had interviewed for trial, and as a result, he is entitled to a new trial (Pet. at P. 5; Dkt. No. 16 at PP. 1-2). Ground Seven of the petition alleges that the laboratory report which discussed the typing of D.B.'s warts was Rosario material wrongfully withheld from Barrigar by ADA Felasco (Pet. at P. 7).
Rosario requires disclosure of recorded pretrial statements relating to the testimony of prosecution witnesses at trial. Where a party establishes that the prosecution failed to disclose prior statements of its own witnesses, the conviction must generally be reversed. Flores v. Demskie, 215 F.3d 293 (2nd Cir.) (citation omitted), cert. denied sub nom., Keane v. Flores, ___ U.S. ___, 121 S.Ct. 606 (2000).
(a) Prosecution Notes
Summaries of witness statements may constitute Rosario materials. Giraldi v. Bartlett, 108 F. Supp.2d 321, 325-26 (S.D.N.Y. 2000). However, an attorney's notes are usually privileged, confidential documents, see Fabelo v. Greiner, 1999 WL 637233, at *7 (S.D.N.Y. Aug. 19, 1999), and would not be subject to disclosure under Rosario if they do not contain such summaries. People v. Shaw, 212 A.D.2d 745 (2nd Dep't 1995) (list of questions complied by District Attorney in preparation of witness's testimony constitutes attorney work product, not Rosario material).
As noted above, pursuant to the remittal order of the Appellate Division, Judge Mulroy reviewed the notes made by ADA Felasco in preparing for trial, and determined that "no notes taken by the prosecutor constituted Rosario material". See Rosario Decision.
This court has reviewed these submissions and concludes that they are properly characterized as attorney work product. See S.E.C. v. Kimmes, 1996 WL 734892, at *4 (S.D.N.Y. Dec. 24, 1996) (an attorney's work product are those documents prepared by an attorney or his agents in the course of or in anticipation of trial) (internal quotation and citations omitted). Since these notes were not Rosario material to which Barrigar was entitled, the court recommends that Ground One be denied.
(b) Laboratory Report
Barrigar argues that the prosecution was required to provide him with a copy of the laboratory report which Dr. Botash testified concerning the typing of D.B.'s warts (Pet. at P. 7). He also seems to claim that, at the very least, the prosecution should have been sanctioned because of its failure to provide him with this report.
"To qualify as Rosario material, the recorded statement must be under the control of the prosecution." Lopez v. Warden, Sullivan Correctional Facility, 1998 WL 642725, at *3 (S.D.N.Y.), aff'd, 210 F.3d 354 (2nd Cir.), cert. denied ___ U.S. ___, 121 S.Ct. 248 (2000); Bernard v. Stinson, 1998 WL 40201, at *4 (S.D.N.Y. Jan. 30, 1998).
In response to Barrigar's omnibus motion dated October 15, 1994, ADA Felasco provided Attorney Romeo with all medical records in the District Attorney's possession. See Answering Affidavit of Mary A. Felasco (10/27/94) at ¶ II(13). During the colloquy before Judge Mulroy regarding this laboratory report, ADA Felasco stated "as an officer of the court" that she "was unaware that there was any documentation regarding the typing of these warts" (Tr. at P. 475). Barrigar has not provided any evidence which demonstrates that ADA Felasco's statements regarding her lack of knowledge about the laboratory report was anything other than truthful, and has failed to establish that this record was in either the possession or control of the prosecution. Rather, the evidence indicates that Dr. Botash possessed and controlled this report. Since this report cannot be considered Rosario material, the court recommends that Ground Seven of the petition be denied.
To the extent Barrigar also claims that the prosecution should be "sanctioned" as a result of the foregoing, this aspect of the petition should be denied because: (i) Barrigar has failed to show any wrongdoing on the part of the District Attorney; and, (ii) such relief is not appropriate in the context of a habeas petition.
3. Jury Charges
Grounds Three and Eight of the petition contend that the Allen charge which Judge Mulroy provided to the jury was "coercive" and "overwhelmingly predjudicial [sic] in all respects", and consequently deprived Barrigar of a fair trial (Pet. at PP. 6, 8; Dkt. No. 16 at PP. 3-5). Ground Four claims that the trial court committed error in its supplemental charge to the jury in response to a question regarding Barrigar (Pet. at P. 6, Dkt. No. 16 at PP. 2-3, 5-6).
Allen v. U.S., 164 U.S. 492 (1896).
A. Procedural Default
The respondent initially argues that Barrigar "has failed to establish a record for review and has failed to preserve his claims for review" concerning these Grounds, and that the petition must therefore be denied due to Barrigar's procedural default (Dkt. No. 12 at PP. 10-11).
However, Judge Mulroy reached the merits of Barrigar's Allen claim, and did not deny the request on procedural grounds. Sentencing Tr. at PP. 9-10. Moreover, Attorney Romeo clearly objected to the supplemental charge given to the jury (see Tr. at PP. 672-73), and Barrigar's appellate counsel argued on appeal that the charge constituted reversible error. Appellant's Brief on Appeal ("App. Br.") at PP. 33-37. Although the Appellate Division found this claim to be without merit, it did not find that Barrigar had procedurally defaulted on this claim. Barrigar, 233 A.D.2d at 846. Thus, the court considers the merits of these Grounds.
Barrigar also argued this matter on appeal, and the Appellate Division did not find the claim to be procedurally barred. Barrigar, 233 A.D.2d at 846.
B. Allen Charge
During deliberations, Judge Mulroy received a note from the jury which indicated:
A decision was made on the six counts of December 25th, '93 to January 3rd, '94. We are split on the other six counts. How long are we to talk it out as we are unsure of procedure?
Tr. at P. 674.
In support of his claim that the court's Allen charge constituted reversible error, Attorney Romeo notes that after receiving the note, Judge Mulroy advised the jury that those in the minority "should listen with deference to the arguments of the greater number of people with a distrust towards your own judgment," and that the County had "gone to great expense to have this case heard" (Pet. at P. 6; Tr. at P. 678).
"[H]abeas corpus relief may only be granted based on instructions given to the jury, if it is 'established not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some right which was guaranteed by the Fourteenth Amendment.'" Clark v. Irvin, 844 F. Supp. 899, 906 (N.D.N.Y. 1994) (Hurd, M.J.) (quoting Cupp v. Naughten, 414 U.S. 141 (1973)); Smalls v. Batista, 6 F. Supp.2d 211, 219-20 (S.D.N.Y. 1998). "Whether an Allen charge was appropriate in a given case hinges on whether it tends to coerce undecided jurors into reaching a verdict. Coercion may be found when jurors are encouraged to abandon, without any principled reason, doubts that any juror conscientiously holds as to a defendant's guilt." United States v. Melendez, 60 F.3d 41, 51 (2d Cir. 1995); see also, United States v. Robinson, 560 F.2d 507, 517 (2d Cir. 1977) (en banc) ("[t]he propriety of an Allen-type charge depends on whether it tends to coerce undecided jurors into reaching a verdict by abandoning without reason conscientiously held doubts").
Barrigar has cited isolated portions of the charge claiming that it constituted error. However, during this charge, Judge Mulroy also noted that "undoubtedly the verdict of the jury should represent the opinion of each individual juror," and that opinions of jurors may change during deliberations (Tr. at P. 677). The charge advised the jurors to examine the opinion of the majority and minority (if a minority existed) (Id. at P. 678), and noted, inter alia, that if the majority was for acquittal, the minority "ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority." Id. at PP. 676-77.
In determining whether a jury instruction was so coercive as to violate the federal constitution, "the instruction must be viewed as a whole." Clark, 844 F. Supp. at 906 (citing Boyd v. United States, 271 U.S. 104 (1926)); Smalls, 6 F. Supp.2d at 220. "[A] challenged portion of the jury instructions 'may not be judged in artificial isolation,' but rather must be judged as the jury understood it, as part of the whole instruction, and indeed, as part of all the proceedings that were observed by the jury." Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir. 1996) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Since the Allen charge, viewed in its entirety, was neither coercive nor otherwise improper, the court recommends that Grounds Three and Eight be denied.
C. Supplemental Charge
During deliberations, the trial court received a note from the jury which provided:
[W]ould Donald Barrigar need to be a sworn witness in order for Ms. Felasco to question Mr. Barrigar's past record pertaining to or similar to those charges that have been brought against him?
Tr. at P. 667. In response to this question, Judge Mulroy advised the jury that it was:
[T]o decide the case solely and exclusively on the evidence presented over the last several days. You are not to speculate as to why those matters are not before you. You are not to speculate whose responsibility it is to put those matters before you. You are to judge this case solely and exclusively on the evidence you have before you and do not speculate on matters that are not evidence, or that are outside of this case.
Id. at P. 671.
Barrigar contends that this supplemental charge was error because Judge Mulroy's reference to "those matters" might have been misconstrued by the jury to imply that previous accusations of sexual abuse existed. (Pet. at P. 6; App. Br. at PP. 33-35).
Judge Mulroy stated that he believed "when I said 'those matters,' the [jury] understood meaning the requests they have made in their notes, 'those matters'" (Tr. at P. 672).
In responding to a juror's question, the court "must give such requested information or instruction as the court deems proper." McShall v. Henderson, 526 F. Supp. 158, 161 (S.D.N.Y. 1981) (quoting New York's Criminal Procedure Law § 310.30). The trial judge is afforded a "broad range of discretion . . . in responding to the request." Moore v. Scully, 956 F. Supp. 1139, 1146 (S.D.N Y 1997) (citations omitted). As the Second Circuit has held:
Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion. . . . How far any charge on technical questions of law is really understood by those of lay background would be difficult to ascertain, but it is certainly more evident in the living scene than in a cold record.
United States v. Sacco, 436 F.2d 780, 783 (2d Cir. 1971).
Judge Mulroy's supplemental jury charge, viewed in the context of the entire charge, was not, as a matter of law, erroneous. See Bramble v. Smith, 1998 WL 395265, at *17 (S.D.N.Y. July 15, 1998). Additionally, Barrigar has not established that the charge was an abuse of the trial court's discretion, or that "the instruction so infected the entire proceeding as to result in a denial of due process." Lugo v. Kuhlmann, 68 F. Supp.2d 347, 374 (S.D.N.Y. 1999) (rejecting claim that defective supplemental jury charge warranted habeas relief). Therefore, the court recommends that Ground four of the petition be denied.
4. Weight of the Evidence
Barrigar next argues that the guilty verdict relating to the April charges was against the weight of the evidence, particularly in light of the fact that he was acquitted of the six remaining charges in the indictment (Pet. at P. 6).
"[A] habeas petitioner challenging the sufficiency of the evidence has a heavy burden." United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993), cert. denied, 511 U.S. 1042 (1994); Thomas v. Scully, 854 F. Supp. 944, 954 (E.D.N.Y. 1994). The petitioner is entitled to habeas corpus relief on such a claim only if it is found that, upon the evidence adduced at the trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Clark v. Garvin, 2000 WL 890272 (S.D.N.Y. June 30, 2000) (citing Jackson v. Virginia, 443 U.S. 307, 324 (1979)).
The jury's verdict was supported by the record, including the testimony of D.B., who testified that Barrigar committed the acts of which he was convicted. See Tr. at PP. 315-19. The fact that the jury found Barrigar not guilty of the December charges but guilty of the April charges indicates that it carefully considered all of the evidence before it regarding these allegations. Since Barrigar has not established that no rational trier of fact could have found him guilty beyond a reasonable doubt, the court recommends that this Ground in the petition be denied. See Wilcox v. People of State of New York, 1998 WL 59465, at *6 (N.D.N.Y. Feb. 11, 1998) (Pooler, J.) (rejecting habeas petitioner's challenge to sufficiency of evidence concerning sodomy conviction based on testimony of child witness).
5. Ineffective Assistance of Counsel
In support of his claim that he received ineffective assistance, Barrigar argues that Attorney Romeo improperly waived his right to a Huntley hearing and failed to call witnesses to testify on his behalf. Pet. at 8.
People v. Huntley, 15 N.Y.2d 72 (1965). A "Huntley hearing" is a hearing to determine the admissibility of a statement made by a criminal defendant. Id; Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2nd Cir. 1998).
The Supreme Court has articulated a two-pronged test to determine whether a criminal defendant received ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984). To establish this claim, Barrigar must show: (1) that Attorney Romeo's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and, (2) prejudice, i.e., that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. See United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998) (per curiam) (citing Strickland, 466 U.S. at 688-90); Brown v. Artuz, 124 F.3d 73, 79-80 (2nd Cir. 1997), cert. denied, 522 U.S. 1128 (1998); Mask v. McGinnis, 233 F.3d 132, 140 (2d Cir. 2000).
(a) Failure to Request Huntley Hearing
Barrigar states that Attorney Romeo "waived the defendant's Huntley hearing, to suppress evidence. Defense counsel had everything to gain and nothing to lose by having a suppression hearing" on the admissibility of the evidence. Pet. at P. 8. Although Barrigar has not pointed to any portion of the proceedings below where his attorney failed to move to suppress evidence, the court's review of the pretrial proceedings reveal that Attorney Romeo withdrew a request to suppress a statement Barrigar made to Investigator Dowdell which stated, in substance, that Barrigar had had genital warts in the past. See proceeding before Judge Mulroy (1/4/95) at PP. 2-3 ("January 1995 Proceeding").
In order to demonstrate that his counsel's performance was objectively unreasonable under prevailing professional standards, Barrigar is required to prove that his attorney's performance was "so deficient and riddled with errors so serious that counsel was not functioning as the 'counsel' guaranteed the [petitioner] by the Sixth Amendment." Anwar v. U.S., 648 F. Supp. 820, 826 (N.D.N.Y. 1986) (Munson, C.J.) (citing Strickland, 466 U.S. at P. 687, 694; Cuevas v. Henderson, 801 F.2d 586, 589-90 (2d Cir. 1986)), aff'd, 823 F.2d 544 (2nd Cir. 1987). Petitioner has failed to establish this element of Strickland. Attorney Romeo advised Judge Mulroy that medical evidence would confirm that Barrigar was infected with the virus, and that the statements were not made in a custodial setting. See January 1995 Proceeding at P. 3. He also noted that he had spoken with Barrigar about the decision to waive a Huntley hearing concerning the statement to Investigator Dowdell, and Barrigar (who was present at the time) did not inform Judge Mulroy that he wished to challenge the admissibility of the statement, or otherwise indicate that he disagreed with Attorney Romeo's decision in this regard. Id. at PP. 2-3.
"Strategic choices of trial counsel 'are virtually unchallengeable' in habeas corpus proceedings." Bonneau v. Scully, 1991 WL 90739, at *1 (S.D.N.Y. 1991) (citation omitted), aff'd, 956 F.2d 1160 (2nd Cir. 1992). Since Attorney Romeo's failure to seek suppression of Barrigar's statement to Investigator Dowdell appears to have been a reasonable trial strategy on his part, the court recommends denying Barrigar's petition as to this Ground.
Barrigar has also failed to provide any evidence that, but for Attorney Romeo's failure to challenge the admissibility of this statement, the outcome of the proceeding would likely have been different.
(b) Failure to Call Witnesses
Barrigar also argues that his counsel's performance was deficient because he failed to "bring forth witnesses, that were available and wanted to testified [sic] at trial". Pet. at P. 8.
Barrigar has not identified the "witnesses" his attorney is alleged to have improperly failed to call. However, at sentencing, Attorney Romeo noted:
[W]e could have brought in four or five more witnesses that would have testified to the fact that this little girl was not even present during Easter. . . That was a strategic decision I made. In retrospect, perhaps it wasn't a proper decision.
Sentencing Tr. at P. 14. At his sentencing, Barrigar also noted that he had wanted his girlfriend to testify on his behalf, but Attorney Romeo believed, because of her medical condition, that her testimony would be "bad" for Barrigar. Id. at P. 21.
"The decision to call or bypass particular witnesses is peculiarly a question of trial strategy . . . which courts will practically never second-guess." United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974) (citations omitted); see also, United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997). Such a strategy "is a tactical decision of the sort engaged in by defense attorneys in almost every trial." Collier v. U.S., 92 F. Supp.2d 99, 103 (N.D.N Y 2000) (McAvoy, J.) (quoting United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (internal quotation omitted). Since the evidence indicates that Attorney Romeo's decision not to call additional witnesses was a reasonable, strategic choice made by him, the court recommends the denial of Barrigar's ineffectiveness claim as to this theory. Eisen, 974 F.2d at 265 (conduct that falls "within the ambit of trial strategy . . . if reasonably made, cannot support an ineffective assistance claim").
At the sentencing, Judge Mulroy stated that Attorney Romeo was "too hard on [him]self. I thought you tried a very good case. I thought you gave this gentleman the best representation that was available." Sentencing Tr. at 27.
6. Cumulative Error
Barrigar also argues that the errors alleged in his petition, when viewed as a whole, demonstrate that he was deprived of a fair trial.
In light of the fact that all of the theories advanced by Barrigar in support of his petition are without merit, his claim that the cumulative effect of such errors deprived him of a fair trial must also fail. White v. U.S., 2000 WL 546426, at *6 (S.D.N.Y. May 4, 2000) ("[p]etitioner further maintains that the cumulative effect of the errors asserted above deprived him of a fair trial. Because all of [petitioner's] earlier points have been rejected, this point must be rejected as well"); see also, U.S. v. Wiggins, 971 F. Supp. 660, 667-68 (N.D.N.Y. 1997) (McAvoy, C.J.). Moreover, consideration of the record as a whole demonstrates that Barrigar received a fundamentally fair trial. See Styles v. Zandt, 1995 WL 326445 (S.D.N.Y.), at *11 (finding petitioner failed to establish cumulative effect of claimed errors deprived petitioner of fair trial), aff'd without op., 101 F.3d 684 (2d Cir.), cert. denied, 519 U.S. 936 (1996). Therefore, the court recommends that this Ground be denied.
7. Supplement to Petition
In the supplement Barrigar filed on May 14, 2001, Barrigar claims: (i) he was denied the assistance of counsel during his arraignment; (ii) he was improperly held beyond the time permitted by New York's Criminal Procedure Law § 180.80 before he was charged with a crime; (iii) Attorney Romeo improperly failed to call an alibi witness ("Alibi Witness Claim"); (iv) the trial court failed to provide the jury with an "alibi defense" charge; (v) the indictment "on its face is defective and unconstitutional"; and, (vi) the "statute defining the offense charged is unconstitutional" (Dkt. No. 29).
This section provides, in part, that a defendant against whom a felony complaint has been filed must be released on his own recognizance unless "either a disposition of the felony complaint or commencement of a hearing thereon" has occurred within one hundred and twenty hours of the defendant's incarceration.
In requesting that these supplemental claims be dismissed, the respondent argues that "[p]etitioner pointedly has not demonstrated exhaustion of his state remedies with respect to this supplemental filing" (Dkt. No. 30) (citations omitted).
The federal habeas corpus statute "embodies the long-established principle that a state prisoner seeking federal habeas review of his conviction ordinarily must first exhaust available state remedies." Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc). The exhaustion doctrine provides that "a habeas petitioner seeking to upset his state conviction on federal grounds must first have given the state courts a fair opportunity to pass upon his federal claim." Id. at 191 (citations omitted). This requirement that federal courts not exercise habeas review of a state-court conviction unless the state courts have first had an opportunity to consider and correct any violation of federal law "expresses respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Id. The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the state courts. Id. "Specifically, he must have set forth in state court all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the state court has not had a fair opportunity to rule on the claim." Id. (citations omitted). The petitioner must have "placed before the state court essentially the same legal doctrine he asserts in his federal petition." Id. at 192 (citations omitted). "The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court." Id. (footnote omitted).
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act which amended various aspects of the statutory regimen governing habeas petitions. As was noted by the court in Morris v. Reynolds, 48 F. Supp.2d 379 (S.D.N.Y. 1999), pursuant to those amendments, "the court may exercise discretion to hear and deny petitioner's non-exhausted claim; the total exhaustion rule is no longer binding." Id. at 383 (quoting Duarte v. Hershberger, 947 F. Supp. 146, 150 (D.N.J. 1996)).
With the exception of the Alibi Witness Claim, none of the claims raised in the supplemental petition were asserted by Barrigar in his appeal. Therefore, all of those claims are unexhausted, and it is recommended that Judge Mordue decline to exercise his discretion under § 2254(b) and consider them. "[E]nforcing the 'total exhaustion rule' in this context will 'encourage habeas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition.'" Morris, 48 F. Supp.2d at 384 (quoting Duarte, 947 F. Supp. at 150) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). Therefore, the court recommends that, with the exception of the Alibi Witness Claim, the Grounds asserted in the supplemental petition be dismissed due to Barrigar's failure to fairly present these claims to state court. See Hernandez v. Lord, 2000 WL 1010975, *4-5 (S.D.N.Y. July 21, 2000) (dismissing unexhausted claims in petition); Reed v. Strack, 1999 WL 187422, at *3 (E.D.N.Y. Mar. 25, 1999) (dismissing petition for failure to exhaust state remedies); Goode v. Herbert, 1997 WL 41964, at *2 (E.D.N.Y. July 18, 1997) (same).
As was also noted by these courts, applying the "total exhaustion rule" discourages piecemeal litigation, thereby resulting in a decreased burden on thenfederal courts.
As noted above (PP. 23-25), the court finds Barrigar's ineffectiveness claim concerning Attorney Romeo's failure to call witnesses to be without merit. Therefore, the Alibi Witness Claim asserted in the supplemental petition should also be denied as meritless.
C. Request to Expand the Record
Barrigar has requested that this court order "further scientific typing" relating to a specimen that he claims was taken from him in January of 1994 which he speculates might demonstrate that the virus with which he is infected is unrelated to the virus that caused D.B.'s venereal warts (Dkt. No. 20).
A portion of the claim raised in this application relates to Barrigar's second Ground for relief. See Pet. at 5, App. Br. at PP. 22-28. Since the court has found that this aspect of the petition is without merit, this application is denied to the extent it relates to that Ground.
Viewing the application as an attempt by Barrigar to have additional tests conducted on the tissue sample taken from him, the request is also denied. Barrigar has not established why a court order would be necessary to perform the requested test of the sample, or why he has not had the typing performed during the six years he has been incarcerated since his sentencing. Therefore, the court denies this request because Barrigar has not established good cause for this discovery. See Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts ("[a] party shall be entitled to invoke the processes of discovery [where there is] good cause shown . . . but not otherwise").
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that the claims in Barrigar's original petition (Dkt. No. 1), and his claim relating to Attorney Romeo's failure to call an alibi witness (Dkt. No. 29) be DENIED and DISMISSED for the reasons stated above; and it is further
RECOMMENDED, that the remaining claims in the "supplemental petition" (Dkt. No. 29) be DISMISSED due to Barrigar's failure to exhaust those claims in the state courts; and it is further
ORDERED, that Barrigar's request for "expansion" (Dkt. No. 20) is DENIED; and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the 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. 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.