Opinion
99 Civ. 1903 (AJP)
October 27, 2000
OPINION AND ORDER
Pro se petitioner Michael Brock seeks a writ of habeas corpus from his 1995 robbery conviction, alleging that he was denied a fair trial by: (1) the destruction of a videotape of the robbery (Pet. ¶ 12(A)); (2) the prosecutor's reference at trial to Brock's prior incarceration (Pet. ¶ 12(B)); and (3) the trial court's refusal to instruct the jury to presume that the police received photographs, printed from the robbery videotape, which a bank investigator had mailed. (Pet. ¶ 12(C)).
The parties consented to decision of Brock's petition by a Magistrate judge pursuant to 28 U.S.C. § 636 (c). (Dkt. Nos. 14, 15.)
For the reasons set forth below, the petition is denied.
FACTS
The Robbery
According to the evidence at trial, at approximately 9:00 p.m. on January 8, 1994, Shakira Sheard was making a withdrawal from an automated teller machine ("ATM") in a Chase Manhattan Bank vestibule in upper Manhattan, when Michael Brock approached with a steak knife and ordered her to withdraw $500 from her account. (Sheard: Trial Transcript ["Tr."] 26-32, 59-61.) Because Sheard had only $29 in her account, she and Brock unsuccessfully attempted to withdraw money, and after about ten minutes, Brock succeeded in withdrawing $20 from Sheard's account. (Sheard: Tr. 32, 37, 76.) Brock took Sheard outside, hailed a gypsy cab and ordered Sheard inside. (Sheard: Tr. 33, 66.) Sheard "begged" Brock to let her go, and Brock left in the cab, without Sheard. (Sheard: Tr. 33.)
The trial transcript is reproduced in the Appendix submitted to the First Department, at A 183-870.
During the ten minutes of the robbery, Sheard and Brock were standing within eighteen inches of each other. (Sheard: Tr. 36-37, 72-73.) While Brock was using the ATM machine, Brock and Sheard were standing face-to-face (id.), and during the last five minutes, Sheard was looking at Brock's face (Sheard: Tr. 76). There was nothing blocking Sheard's view of Brock's face (Sheard: Tr. 37), and the ATM vestibule area was well lit (Sheard: Tr. 34; Myles: Tr. 231, 241; Slane: Tr. 250). Sheard described her assailant to the police as a "slim" (perhaps 150 to 175 pounds) 5'11" black man, wearing a gray jacket, sweatshirt, gray hood and dark pants, with a "pointy" nose with curved nostrils, a gap between his two front teeth and facial hair from his chin to his sideburns. (Sheard: Tr. 34-35, 41-42, 45, 50-56, 72-77; Grice: Tr. 94, 112, 129-30, 180-81.)
On January 27, 1994, Brock was arrested and Sheard identified Brock in a lineup. (Myles: Tr. 217; Sheard: Tr. 43-45.) Sheard testified at trial that in viewing the lineup, she had "[n]o doubt" that Brock was her assailant and she continued to be "positive" with respect to her identification. (Sheard: Tr. 38, 45.)
The Missing Videotape and Photographs
At a bail hearing on March 16, 1994, in increasing Brock's bail to $10,000, Justice Harold Rothwax noted that "The D.A. has represented that this robbery, which took place in the ATM area of the Chase Bank, shows photos of the defendant committing the robbery." (A 31-34: Calendar Call at 3.) Justice Rothwax also assured Brock that "you will be getting a copy of the photographs." (Id. at 4.)
Subsequently, however, defense counsel learned that the photographs were missing and that a videotape of the robbery from which the photographs had been produced had been destroyed. (See A 38-48: Brock Br. to Dismiss at A 39-41, A 43-48.) On May 11, 1994, Brock moved to dismiss the indictment on the basis that the police had "failed to exercise due care in securing and preserving" the videotape and photos. (Id. at A 43;see also A 36-37: Notice of Motion.)
On September 29, 1994, Justice Rothwax held a hearing to, inter alia determine the circumstances surrounding the missing photographs. (Hearing ("H.") 1-139.) Detective Haldane Grice of the 32nd Precinct and Chase Manhattan Bank investigator Ralph Slane testified concerning the missing photos. (Grice: H. 40-44, 51-61; Slane: H. 90-114.)
The first 118 pages of the transcript of that hearing are reproduced at A65-182. Pages 119-39 of the hearing transcript, which contain, inter alia, the court's decision, were not included in the Appendix, but were supplied to the Court by the State.
On January 12, 1994, Detective Grice called Slane to find out if there were any surveillance photographs taken at the date and time of the robbery. (Grice: H. 40-41; Slane: H. 90-92.) Detective Grice requested that Slane send any such photographs to him at the 32d Precinct, 250 West 135th Street, Room 217, zip code 10030. (Slane: H. 90-92, 96; Grice: H. 41, 52-53.)
Chase has surveillance cameras at all of its ATMs in New York City. (Slane: H. 92.) Slane contacted the branch at 135th Street and Fifth Avenue and had the relevant videotape sent to his office in Brooklyn. (Slane: H. 92.) Slane viewed the tape, which showed a black man and a woman at the ATM, but the man's features were not clear enough to identify. (Slane: H. 94.)
Slane produced four still-frame, black-and-white photographs from the surveillance videotape. (Slane: H. 95, 97.) The photographs were "clear" (as opposed to "grainy") but they did not show the features of either of the two people at the ATM. (Slane: H. 110-12.) Slane could not recall whether the man in the pictures was facing the camera. (Slane: H. 111.)
Slane placed one photograph in his file as a backup copy, and he returned the videotape to the branch. (Slane: H. 95, 104.) Slane placed the other three photographs in an envelope and addressed it to Detective Grice at the 32d Precinct, 250 West 135th Street, Second Floor, zip code 10030. (Slane: H. 95-100.) Slane did not personally place the envelope in a mailbox, nor did he have any specific recollection of placing this particular letter in the office outbox. (Slane: H. 98-99.) He testified, however, that "every time if I have a photo request I always take it in the white envelope and put it in the mail room on our floor." (Slane: H. 99.) Detective Grice, however, testified that he never received these photographs. (Grice: H. 41, 53.)
In mid-February 1994, Slane learned that Detective Grice had not received the photographs. (Grice: H. 41-42, 53-56; Slane: H. 101.) Slane sent the remaining backup photograph to Detective Grice at the same address to which he had sent the previous photographs. (Slane: H. 101, 107.) Detective Grice testified that he never received this photograph either. (Grice: H. 42.)
While Detective Grice recalled that he personally spoke to Slane in February 1994 (Grice: H. 41-42), Slane recalled speaking with someone from the District Attorney's Office rather than Detective Grice. (Slane: H. 101, 107, 109-10.)
On March 8, 1994, an Assistant District Attorney asked Slane for the surveillance videotape. (Slane: H. 102.) Slane contacted the branch and discovered that the videotape had been re-used, thus erasing the images of the January 8, 1994 incident. (Slane: H. 103-04.)
The State explained in Opposing Brock's motion to dismiss (A 51-59) that Justice Rothwax's bail hearing reference to the photographs did not arise from a claim by the People that they had the photographs, but rather the prosecution's "expectation of receiving photographs on a subsequent date which would presumably show the defendant." (A 57 n.*.)
Justice Rothwax denied Brock's motion to dismiss, finding that there was insufficient evidence to determine whether the photographs had been lost by Chase Manhattan Bank or by the police. (H. 136-38.) Justice Rothwax held that the photos were not Rosario or Brady material "because the photos [were] unclear." (H. 138.) In addition, he noted that Detective Grice and the District Attorney's Office had made good faith efforts to obtain the photographs. (H. 137-38.) Accordingly, Justice Rothwax held that under the circumstances, dismissal was not warranted. (H. 138.) He then advised the defense:
I can't think of an appropriate sanction at this time. If counsel wants to submit a proposed instruction to me during the course of the trial, he may feel free to do so. If he wants to call Mr. Slane to inquire into this at trial, he may do that, so that the issue may be fully aired before the jury and they may determine what weight they wish to give this particular fact.
(H. 139.)
At trial, Slane and Detective Grice gave substantially the same testimony as at the pretrial hearing. (Grice: Tr. 95-96, 107, 132-43, 152-53; Slane: Tr. 248-86.) Additionally, Slane testified that the videotape had been rerecorded pursuant to standard bank practice "because there was not enough on that tape that warranted preserving it." (Slane: Tr. 264-65, 272.) Defense counsel extensively cross-examined both Slane and Detective Grice about the loss of the photographs. (Grice: Tr. 132-43, 152-53; Slane: Tr. 265-85.)
At the precharge conference, defense counsel requested the court to instruct the jury that, because the photographs had been mailed to Detective Grice, they should be presumed to have been delivered. (Tr. 461-63, 466-70.) The court refused the request, finding that there was insufficient evidence of mailing because Slane had merely testified that he had placed the envelopes in the company mailroom. (Tr. 471-72, 474.) The trial judge told defense counsel that he was free to argue the evidence in summation. (Tr. 471, 473, 475.)
In his summation, defense counsel stressed the lost photographs and argued that if the videotape and photographs had been preserved, "the case would have been dismissed long ago." (Tr. 528-33.)
Cross-Examination of Alibi Witness Linda Cuiman
At trial, Brock presented two alibi witnesses — his ex-girlfriend Patrice and her mother Linda Cuiman ("Cuiman") — who testified that Brock was at home with them the evening of the robbery. (Tr. 301-511.)
On cross-examination, when the prosecutor asked Cuiman whether she knew that Brock had been charged with robbery immediately after his arrest (at which she was present), Cuiman volunteered that she believed that the officers who had arrested Brock were "from probation." (Tr. 317-18.) Defense counsel did not object. The prosecutor later asked, "when did [Brock] start residing at your residence at 142nd Street?" (Tr. 325.) Defense counsel objected but before the court could rule, Cuiman stated: "When he was released." (Id.)
A sidebar conference was held. At the sidebar, defense counsel stated that although he had instructed Cuiman to "stay away from certain issues" including Brock's prior imprisonment, she had twice mentioned Brock's "parole." (Tr. 325-27.) Defense counsel stated that "[o]bviously, [Cuiman] was being so frank in her testimony that she encaptured everything the [prosecutor] asked about . . . that should have been avoided and stricken." (Tr. 326.) The court responded, "This is your witness. This is something you could have instructed your witness. What do you want me to do?" (Id.) The prosecutor stated that he had simply asked Cuiman when Brock had begun living with her, and that he was "not going to ask her anything about whether he was in jail." (Tr. 326-27.) Defense counsel did not ask for a curative instruction or any other type of relief, but stated that "I don't want anything to continue. . . . She has said it once. I don't want to aggravate it." (Id.)
The cross-examination continued, and the prosecutor asked Cuiman what year and month Brock had started to live in her apartment. (Tr. 329) Cuiman responded, "It was almost two years. He was released in -". (Id.) The prosecutor interrupted Cuiman and instructed her to give a date, "[w]ithout talking about his release." (Id.) Cuiman responded that Brock had lived with her and her daughter Patrice Cuiman for two years, from 1992 until January 1994. (Tr. 329-30.) The prosecutor then asked:
Isn't it a fact, Miss Cuiman, the defendant was in State prison during that period of time?
(Tr. 330, emphasis added.) Defense counsel objected, but before the court could rule, Cuiman responded that Brock was on work release during that time. (Id.)
At sidebar, defense counsel asked for a mistrial. (Tr. 330-31.) The prosecutor responded that Cuiman had lied to the jury, because Brock had been in state prison until his release in September 1993. (Tr. 331.) Defense counsel admitted that Brock's rap sheet indicated that, but said that Brock had informed him that he had been released in 1992. (Id.) Defense counsel repeated his request for a mistrial, arguing that although the prosecutor's question may have been asked in good faith reliance on the rap sheet, the question had "made this case so prejudicial to the jury that [Brock] cannot now get a fair trial." (Tr. 333.)
The court confirmed that the rap sheet indicated that Brock had been released on September 27, 1993. (Tr. 334.) The prosecutor asked the court to deny the motion for a mistrial, arguing that the question was relevant to Cuiman's credibility and suggested that the court could instruct the jury that the question was relevant only to the witness's credibility. (Tr. 335-36.) Finally, the prosecutor argued that the question was not prejudicial in light of Cuiman's previously volunteered statements concerning Brock's "probation" and "release." (Tr. 336-39.)
The court denied Brock's motion for a mistrial, but stated that the defense's objection to the question would be sustained and that a curative instruction would be issued. (Tr. 343-44.) Defense counsel objected to the issuance of a curative instruction, arguing that it would only "have the effect of adding fuel to the fire." (Tr. 344.)
During the discussion about whether a curative instruction would be issued, the prosecutor stated that although he had asked Cuiman the question "for impeachment purposes only," he felt that "probably in retrospect I shouldn't have said State prison." (Tr. 345.)
When the jurors returned, the judge instructed them as follows:
I just want to remind the jurors about something I mentioned when we first started the trial. There may be objections made by the lawyer. Each lawyer has a right to make objections. One of my functions here is to sustain the objection or overrule the objection. When an objection is made and I sustained the objection, that question is not part of the evidence. Even if you heard an answer, if I sustained the objection, it's not part of the evidence. If it's not part of the evidence, it's like it never existed before and you are to discount it completely. It's not to be within your thinking, your analysis of the case.
Such an instance just occurred before you when there was a question and there was an objection by defense counsel. I'm sustaining the objection. If you heard any answer, that answer is to be stricken from the record because the question is objected to so it's not part of the record. You are to eliminate that from your thinking and . . . you are not to speculate why I make certain rulings and you are not to speculate now nor are you to speculate about that in the jury room when you deliberate. In this particular instance that answer is stricken from the record.
(Tr. 347-48, emphasis added.)
The cross-examination of Cuiman continued with no further reference to Brock's previous incarceration. (Tr. 348-79.)
In the final jury charge, the court instructed the jurors to "eliminat[e] from your mind" any testimony to which an objection has been sustained. (Tr. 596.)
Verdict. CPL § 330.30 Motion and Sentence
On October 7, 1994, the jury found Brock guilty of first degree robbery. (Tr. 671.)
On December 14, 1994, Brock filed a motion to set aside the verdict pursuant to CPL § 330.30(1), arguing that he was "irreparably damaged by the failure of the police and the District Attorney to secure and protect the video tape and the pictures therefrom . . . [and] by the misconduct of the Assistant District Attorney in questioning a witness about [Brock]'s past incarceration" and that "the Court erred in refusing to charge that when a person testifies to having mailed letters in the usual course of business, [there is] a presumption that the item mailed was received by the person to whom it was addressed." (A 871-908: Brock CPL § 330.30 Motion, at A 871.)
CPL § 330.30 provides:
At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds:
1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.
. . . .
On March 8, 1995, the court denied Brock's motion (A 930-73: Sentencing Tr. at A 957), and sentenced Brock, as a second violent felony offender, to nine to eighteen years imprisonment (A 972-73). See also People v. Brock, 246 A.D.2d 406, 406, 667 N.Y.S.2d 730, 730 (1st Dep't), appeal denied, 91 N.Y.2d 940, 671 N.Y.S.2d 720 (1998).
Brock's Direct Appeal
Brock appealed to the First Department, arguing that: (1) "the destruction of the video tape of the incident was so harmful that the only appropriate remedy is dismissal of the indictment" (Brock 1st Dep't Br. at 12-18); (2) the assistant district attorney committed prosecutorial misconduct when on cross-examination of a defense witness he referred to Brock's prior incarceration (id. at 19-22); (3) the trial court erred in refusing to instruct the jury that there was a presumption that the surveillance photographs mailed to the police were received (id. at 23-28); and (4) the trial court erred in denying Brock's CPL § 330.30 motion to set aside the verdict (id. at 28-32).
The First Department affirmed Brock's conviction on January 15, 1998.People v. Brock, 246 A.D.2d 406, 667 N.Y.S.2d 730 (1st Dep't 1998). The First Department found, inter alia, that: "[t]he lost or destroyed bank surveillance videotape and photographs did not constitute Brady material because there was no showing that they were exculpatory and because they never came into the possession of the prosecution or police" and that in any event their non-production would not warrant dismissal of the indictment "since there was no showing of bad faith or that the videotape or still photographs would have been beneficial to defendant"; Brock "was not deprived of a fair trial by a fleeting reference to his prior incarceration during the People's cross-examination of a defense witness in view of the court's appropriate curative action"; and "defendant's remaining contentions [are] without merit." Id.
Represented by counsel, Brock sought leave to appeal to the New York Court of Appeals, raising the first three grounds that were advanced in his First Department brief (i.e. all issues except the CPL § 330.30 denial). (2/3/98 2/17/98 Leave to Appeal Letters.) The Court of Appeals denied leave on March 9, 1998. People v. Brock, 91 N.Y.2d 940, 671 N.Y.S.2d 720 (1998).
Brock's Current Federal Habeas Petition
Brock's timely current federal habeas petition is dated January 15, 1999 and was received by the Court's Pro Se Office on January 21, 1999. Brock's petition alleges that he was denied a fair trial by: (1) the destruction of the videotape (Pet. ¶ 12(A)); (2) the prosecutor's reference to Brock's previous incarceration (Pet. ¶ 12(B)); and (3) the trial court's refusal to instruct the jury that there was a presumption that the photographs that were mailed to the police were received (Pet. ¶ 12(C)).
Brock also asserts as a ground for habeas relief that the trial court's denial of his CPL § 330.30 motion "-was erroneous and violated petitioner's constitutional rights." (Pet. ¶ 12(D).) Because this claim essentially is duplicative of Brock's three other habeas grounds, it will not be addressed separately. Douglas v. County of Tomkins, No. 90-CV-841, 1995 WL 105993 at *2 (N.D.N.Y. March 2, 1995) (declining to address separately two claims which were subsumed in third). Moreover, because the claim was not raised in Brock's letters seeking leave to appeal to the New York Court of Appeals, the claim is unexhausted but procedurally barred from habeas review. See, e.g., Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *3-6 (S.D.N.Y. July 5, 2000) (Peck, M.J.) ( cases cited therein); see also Point III of this Opinion.
By letter dated April 7, 2000, Brock moved to amend his petition. (Dkt. No. 16.) Brock's letter does not raise any new claims, but rather asks interrogatory-like questions to respondent, dealing with the missing photos and also with identification testimony and alleged inconsistencies in the victim's trial testimony. Because the proposed amendment does not raise new claims, merely seeks discovery and, in any event, any additional claims that might be implicit in the discovery requests were not exhausted in state court, the application to amend is DENIED . See, e.g., Douglas v. Walker, 99 Civ. 3626, 2000 WL 943509 at *2 (S.D.N Y July 7, 2000) (denying motion to amend habeas petition where "amendment of the petition would be futile because the claim sought to be added to the petition is unexhausted"); Morgan v. Fillion, 98 Civ. 986, 2000 WL 235986 at *10 (S.D.N.Y. Jan. 31, 2000) ("because none of the claims in the amended [habeas] petition has any colorable merit, amendment of the petition would be futile and should be denied"); Fama v. Commissioner of Correctional Servs., 69 F. Supp.2d 388, 394 (E.D.N.Y. 1999) (petitioner not entitled to amend habeas petition where claim "does not even colorably support reversal of his conviction"); Petito v. Artuz, 97 Civ. 8758, 1998 WL 883306 at * 1 (S.D.N.Y. Dec. 17, 1998) (denying motion to amend habeas petition where "a review of the petitioner's proposed claim . . . indicates that the claim is without merit"); Beverly v. Walker, 899 F. Sup p. 900, 907-08 (N.D.N.Y. Aug. 29, 1995) (denying leave to amend habeas petition where amendment was futile because petitioner had procedurally defaulted on claim), aff'd, 118 F.3d 900 (2d Cir.), cert. denied, 522 U.S. 883, 118 S.Ct. 211 (1997).
ANALYSIS
I. BROCK'S CLAIM THAT THE DESTRUCTION OF THE VIDEOTAPE VIOLATED HIS RIGHT TO A FAIR TRIAL IS WITHOUT MERITBrock argues that "[t]he destruction of the Videotape deprived [him] of an opportunity to establish his innocence, thus violating [his] constitutional rights to a fair trial" and that "had the video-tape been presented at his trial, [it] would have clearly established that he was not the perpetrator of the crime." (Pet. ¶ 12(A); see also Brock Br. at 11-16.)
Brock's claim is not clearly articulated in federal terms, except as aBrady violation. However, since the government did not produce to the defense the videotape or photographs because it claimed never to have received them, the case is properly analyzed under the right to present a defense doctrine, of which Brady is only a part.
In California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984), the Supreme Court explained:
Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed "what might loosely be called the area of constitutionally guaranteed access to evidence." . . . Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.
The Second Circuit has set forth the standard for establishing a violation of the right to present a defense, as follows:
To establish a violation of the right [to present a defense], a criminal defendant must generally show that he was deprived of material and exculpatory evidence that could not be reasonably obtained by other means. In addition, we have held that a defendant pressing such a claim must show bad faith on the part of the government. Finally, in order to elevate this misconduct to a due process violation, the defendant "must demonstrate that the absence of fundamental fairness infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."United States v. Williams, 205 F.3d 23, 29-30 (2d Cir. 2000) (citations omitted), cert. denied, No. 00-5093, 2000 WL 979056 (Oct. 2, 2000);accord, e.g., United States v. Esquilin, No. 98-1333, 205 F.3d 1325 (table), 2000 WL 232162 at *3 (2d Cir. Feb. 18, 2000); Buie v. Sullivan, 923 F.2d 10, 11-12 (2d Cir. 1990); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *5 (S.D.N.Y. Oct. 29, 1999) (Peck, M.J.) (citing cases); Moe v. Walker, 97 Civ. 4702, 1999 WL 58691 at *4 (S.D.N.Y. Feb. 5, 1999); see also. e.g., Arizona v. Youngblood, 488 U.S. 51, 54-59, 109 S.Ct. 333, 336-38 (1989); California v. Trombetta, 467 U.S. at 485-89, 104 S.Ct. at 2532-34.
To paraphrase the Second Circuit: "Against these requirements — materiality, bad faith, and lack of fundamental fairness — [Brock's] petition fails." Buie v. Sullivan, 923 F.2d at 12.
First, Brock has presented no evidence that the missing videotape (or photographs) of the incident were exculpatory. Chase investigator Slane, the only person who viewed the videotape, testified both at the pretrial hearing and at trial that it was not possible to discern the features of the people at the ATM. (Slane: H. 110-12; Slane: Tr. 254-55, 264-65, 272, 273, 281.) Indeed, Slane explained that the videotape was not preserved because "[t]here was not enough on. [it] that warranted preserving it." (Slane: Tr. 272.) The videotape and photographs, therefore, were not material. See, e.g., United States v. Jobson, 102 F.3d 214, 218 (6th Cir. 1996) (erasure of radio dispatch tape not violative of due process where "[t]here is no evidence that anyone in the Detroit Police Department or the U.S. Attorney's Office suspected that the tape was exculpatory"); United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (no violation of due process where "[t]he evidence before the district court showed that any missing evidence . . . did not possess exculpatory value apparent before law enforcement destroyed the tapes");United States v. Rastelli, 870 F.2d 822, 833 (2d Cir.) (no due process violation where "neither the missing tapes nor the bid documents contained exculpatory evidence that was apparent before they were lost"), cert. denied, 493 U.S. 982, 110 S.Ct. 515 (1989); Little v. Armontrout, 835 F.2d 1240, 1245 n. 8 (8th Cir. 1987) ("We reject [petitioner]'s argument that destruction of the tapes . . ., violated due process. It has not been shown that the tapes had an exculpatory value that was apparent before they were destroyed."), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857 (1988). While Brock argued in his First Department brief that the videotape might have revealed the robber's height and build, and might have established that the crime did not last as long as testified to by Sheard (Brock 1st Dep't Br. at 14-15), those arguments are purely speculative See, e.g., United States v. Tugwell, No. 98-10479, 187 F.3d 650 (table), 1999 WL 510769 at * 1 (9th Cir. July 12, 1999) (affirming trial court's denial of motion to dismiss indictment based on destruction of evidence; "[a]ny exculpatory value in fingerprint evidence on the gun is entirely speculative — in fact such evidence might equally well have been prejudicial to" defendant), cert. denied, 120 S.Ct. 1219 (2000); United States v. Vargas, No. 97-3105, 172 F.3d 922 (table), 1998 WL 886992 at *3 (D.C. Cir. Dec. 1, 1998) (The defendant "claims the government denied him due process . . . by failing to preserve and to produce the videotape from the security camera at McDonald's. Unless, however, a `defendant is able to raise at least a colorable claim that the [disputed material] contained evidence favorable to [him] and material to his claim of innocence . . ., no Brady violation will be established.'"), cert. denied, 526 U.S. 1151, 119 S.Ct. 2032 (1999); Levine v. Scully, 92 Civ. 8337, 1994 WL 455473 at *5 (S.D.N Y Aug. 22, 1994) (no due process violation where missing evidence's exculpatory value was speculative and "one can speculate equally that the absence of this evidence at trial may have been to petitioner's benefit").
Second, and most important, Brock has not alleged, and the record does not show, bad faith on the part of the police or prosecution or that the destruction of the videotape or loss of the photographs was attributable to the police or prosecution. Rather, Slane's undisputed testimony established that the videotape was destroyed by Chase Manhattan Bank in the regular course of its business after Slane had determined it was not worth preserving. (Slane: Tr. 264-65, 272.) Similarly, the hearing court found, and this Court agrees, that there was insufficient evidence to establish whether the photographs were lost by Chase or the police. (H. 137-38.) See, e.g., United States v. Rahman, 189 F.3d 88, 139 (2d Cir.) ("Whether that loss [of evidence] warrants sanctions depends on the Government's culpability for the loss and its prejudicial effect. . . . Before these factors become relevant, however, the record must first show that evidence has been lost and that this loss is "chargeable to the State.'") (quoting Colon v. Kuhlmann, 865 F.2d 29, 30 (2d Cir. 1988) (State did not violate due process in failing to preserve enough of rapist's semen for determination of rapist's blood type where doctor's failure to preserve underwear "was not chargeable to the State")), cert. denied, 120 S.Ct. 439 (1999).
Even assuming, however, that the photographs were mailed to and received by the 32nd Precinct, this Court agrees with the State that "the only reasonable inference from the evidence, which included [Detective] Grice's uncontradicted testimony that he never received the photographs, was that the police department inadvertently misplaced them." (State 1st Dep't Br. at 35-36.) Certainly, there was no evidence of bad faith and thus Brock's claim must fail. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337 (1988) ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process."); United States v. Lemon, No. 94-1339, 100 F.3d 942 (table), 1996 WL 20520 at *3 (2d Cir. Jan. 16, 1996) (no violation of due process where "[t]here was no indication that the inventory sheet had been destroyed by the Government or that the Government had acted in bad faith in failing to assure its availability"), cert. denied, 519 U.S. 853, 117 S.Ct. 146 (1996); United States v. Rastelli, 870 F.2d at 833 ("[T]he record is barren of proof that the government lost the evidence in bad faith. On this ground alone, the missing evidence claim must fail.");Jones v. Strack, 1999 WL 983871 at *6 (habeas denied where late production of evidence by the government "appears to be prosecutorial sloppiness [and petitioner] has failed to show bad faith on the prosecution's part") (citing cases); United States v. Wiggins, 971 F. Supp. 660, 665 (N.D.N.Y. 1997) ("Without any further evidence, petitioner's claim that the unintended loss of evidence constitutes "bad faith" on the part of the government is unavailing."); United States v. Baron, 92 Cr. 898, 1996 WL 551625 at *5-6 (S.D.N.Y. Sept. 27, 1996) ("Given indications of good faith — and the absence of evidence to the contrary — defendants cannot claim a violation of due process based on the missing tapes."); Kelley v. Penny, No. 94-CV-830, 1996 WL 1015418 at *2 (W.D.N.Y. Sept. 11, 1996) (no violation of due process where "[t]he record does not reflect, and the petitioner does not allege, that the police acted in bad faith in any way with respect to the destruction of the tapes").
Finally, the videotape's (and photographs') unavailability did not result in fundamental unfairness. Brock's conviction was based on the testimony of an eyewitness who viewed him at close range for several minutes in good lighting and testified that she had "no doubt" that Brock was her assailant. (See pages 2-3 above.) Moreover, Brock had the opportunity at trial to question Slane and Detective Grice as to the circumstances under which the videotape was destroyed and the photos were lost. (See pages 6-7 above.) Additionally, defense counsel stressed the missing videotape in summation. (Tr. 528-33.) Under these circumstances, the trial was not unfair to Brock. See, e.g., United States v. Wilson, Nos. 97-1298, 97-1302, 159 F.3d 1349 (table), 1998 WL 538119 at *3 (2d Cir. March 13, 1998) (dismissal of indictment inappropriate where defendants "were able to exploit [the government agent]'s destruction of documents very effectively and in several ways before the jury, including through vigorous cross-examination"), cert. denied, 525 U.S. 856, 119 S.Ct. 137 (1998); United States v. Miranda, 526 F.2d 1319, 1384 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69 (1976); Bolling v. Stinson, No. 97-CV-6721, 1999 WL 287733 at *7 (E.D.N.Y. May 5, 1999).
In short, the State, which need only prevail on one of the three factors — materiality, bad faith, and fundamental unfairness — prevailed on all three factors. Accordingly, Brock's habeas claim, that he was deprived of a fair trial by the destruction of the videotape, is without merit.
II. BROCK'S PROSECUTORIAL MISCONDUCT CLAIM IS WITHOUT MERIT
Brock argues that "the Assistant District Attorney committed prosecutorial misconduct when in questioning an alibi witness . . . he inserted the fact that appellant had been incarcerated." (Pet. at p. 6A Pt. II; Pet. ¶ 12(B); Brock Br. at 17-20.)
Although Brock did not cite any federal authority to the state courts in support of his prosecutorial misconduct claim, that claim is nonetheless exhausted. In Garofolo v. Coombe, 804 F.2d 201 (2d Cir. 1986), the Second Circuit held that claims of prosecutorial misconduct, including a claim of improper cross-examination, have "sufficiently familiar federal constitutional implications to be within the mainstream of constitutional litigation" as required by Daye v. Attorney General, Garofolo v. Coombe, 804 F.2d at 206; see also, e.g., Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *30 n. 24 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.) ( cases cited therein). The State has not alleged a failure to exhaust with respect to this claim, or any of Brock's other claims.
Prosecutorial misconduct violates a defendant's due process rights only when it is of "sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3109 (1987); accord, e.g., United States v. McCarthy, 54 F.3d 51, 55 (2d Cir.), cert. denied, 516 U.S. 880, 116 S.Ct. 214 (1995); Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158 (1991); Cruz v. Greiner, 1999 WL 1043961 at *30. Stated another way, "the law is settled that `federal habeas relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the [trial] as a whole, were so fundamentally unfair as to deny petitioner a fair trial.'" Tejada v. Senkowski, 92 Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993),aff'd mem., 23 F.3d 397 (2d Cir.), cert. denied, 513 U.S. 887, 115 S.Ct. 230 (1994).
See also, e.g., Lugo v. Kuhlmann, 68 F. Supp.2d 347, 367 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Readdon v. Senkowski, 96 Civ. 4722, 1998 WL 720682 at *4 (S.D.N.Y. Oct. 13, 1998); Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *4 (S.D.N Y Sept. 19, 1997); Beverly v. Walker, 899 F. Supp. 900, 911 (N.D.N Y 1995), aff'd, 118 F.3d 900 (2d Cir. 1997); Washington v. Walker, 89 Civ. 7841, 1994 WL 391947 at *3 (S.D.N.Y. July 28, 1994) ("Even where a prosecutor's remarks are improper, `constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair.'") (quoting Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990) (quoting Garofolo v. Coombe, 804 F.2d at 206)).
Accord, e.g., Cruz v. Greiner, 1999 WL 1043961 at *30; Lugo v. Kuhlmann, 68 F. Supp.2d at 367; Franza v. Stinson, 58 F. Supp.2d 124, 149 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); see also e.g., Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873 (1974); Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990) (quoting Garofolo v. Coombe, 804 F.2d 201, 205 (2d Cir. 1986)); Edmonds v. McGinnis, 11 F. Supp.2d 427, 437 (S.D.N Y 1998); Gaiter v. Lord, 917 F. Supp. 145, 153 (E.D.N.Y. 1996); Jones v. Kuhlmann, 93 Civ. 5963, 1995 WL 733649 at *4 (S.D.N.Y. Dec. 12, 1995).
To properly evaluate the prosecution's actions, the alleged misdeeds must be placed in context, and "[t]he severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry." Blissett v. LeFevre, 924 F.2d at 440;accord, e.g., Greer v. Miller, 483 U.S. at 766, 107 S.Ct. at 3109 ("it is important `as an initial matter to place th[e] remar[k] in context'");United States v. McCarthy, 54 F.3d at 55; United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990); United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104 (1986); Cruz v. Greiner, 1999 WL 1043961 at *30; Lugo v. Kuhlmann, 68 F. Supp.2d at 367; Hurd v. Keane, 1997 WL 582825 at *4; Beverly v. Walker, 899 F. Supp. at 911.
The Court assumes, as did the First Department, that the prosecutor's reference to Brock's prior incarceration was improper. People v. Brock, 246 A.D.2d 406, 406, 667 N.Y.S.2d 730, 730 (1st Dep't 1998); see also, e.g., Cruz v. Greiner, 1999 WL 1043961 at *31. Nonetheless, this Court agrees with the First Department that Brock "was not deprived of a fair trial by a fleeting reference to his prior incarceration during the People's cross-examination." People v. Brock, 246 A.D.2d at 406, 667 N.Y.S.2d at 730.
First, as to the severity of the misconduct, the potential for prejudice created by a jury's exposure to evidence of a defendant's criminal history is well-recognized. Here, however, the potential for prejudice from the prosecutor's reference to Brock's time in state prison was minimal, given defense witness Cuiman's previous spontaneous references to Brock's "probation" and "release" — references which defense counsel conceded were volunteered and to which he did not object. (Tr. 318, 325, 326.) See, e.g., Blair v. United States, 958 F.2d 26, 29 (2d Cir. 1992) (disclosure of defendant's previous imprisonment did not deprive him of fair trial given, inter alia, that record already contained testimony about defendant's arrest and that he had been bailed out of jail); United States v. O'Connell, 841 F.2d 1408, 1423 (8th Cir. 1988) (prejudice from evidence of defendant's murder conviction was slight in light of repeated references already in record to defendant's incarceration and violent propensities), cert. denied, 487 U.S. 1210, 108 S.Ct. 799 (1989); cf., e.g., 3A Charles Alan Wright,Federal Practice Procedure: Criminal 2d § 854, at 311 (2d ed. 1982) ("Error in the admission of evidence is harmless if the facts shown by that evidence are already before the jury through other properly admitted evidence.").
See e.g., Marshall v. United States, 360 U.S. 310, 310-13, 79 S.Ct. 1171, 1172-73 (1959); United States v. Pagan, 721 F.2d 24, 30-31 (2d Cir. 1983); United States v. Figueroa, 618 F.2d 934, 944 (2d Cir. 1980); United States v. Rinaldi, 301 F.2d 576, 577-78 (2d Cir. 1962);United States v. Tomaiolo, 249 F.2d 683, 695-96 (2d Cir. 1957).
Second, any prejudice was minimized by the trial court's curative measures. Immediately after the prosecutor's question, defense counsel objected and after a bench conference, the court gave an extensive curative instruction. Specifically, the court told the jury they were "to eliminate [the prosecutor's question and Cuiman's response] from your thinking" and treat the statements as if they "never existed before." (Tr. 347-48.) This instruction was reinforced when, in its final jury charge at the conclusion of the trial, the court told the jury to "eliminat[e] from your mind" any testimony to which an objection had been sustained. (Tr. 596.) The curative instruction here was sufficient to eliminate any prejudice or unfairness to Brock. See, e.g., Greer v. Miller, 483 U.S. at 766, 107 S.Ct. at 3109 ("The sequence of events — a single question, an immediate objection, and two curative instructions — clearly indicates that the prosecutor's improper question did not violate [defendant's] due process rights."); United States v. Fermin, 32 F.3d 674, 677 (2d Cir. 1994) (DEA agent's reference to defendants' "criminal histories" did not require new trial where,inter alia, statement was isolated and curative instructions were immediately given), cert. denied. 513 U.S. 1170, 115 S.Ct. 1145 (1995);United States v. Aichele, 941 F.2d 761, 765 (9th Cir. 1991) (trial "judge's admonition to the jury to disregard the prior incarceration testimony was sufficient to avert prejudice to" defendant); United States v. Coffey, 823 F.2d 25, 28 (2d Cir. 1987) ("prompt curative instructions sufficed to eliminate any unfair prejudice that might have resulted from a fact being placed unfairly before the jury").
See also, e.g., United States v. Nixon, 779 F.2d 126, 132-33 (2d Cir. 1985) (instruction to disregard improper testimony regarding defendant's prior incarceration was sufficient to obviate any prejudice to defendant); United States v. Stromberg, 268 F.2d 256, 269 (2d Cir.),cert. denied, 361 U.S. 863, 80 S.Ct. 119 (1959); United States v. Angelet, 231 F.2d 190, 192 (2d Cir.), cert. denied, 351 U.S. 952, 76 S.Ct. 849 (1956); Cruz v. Greiner, 1999 WL 1043961 at *31 n. 26 ("The jury is presumed to obey a court's curative instruction.") ( cases cited therein); Hernandez v. Bartlett, 796 F. Supp. 77, 81 (E.D.N.Y. 1992) (curative instructions after prosecutor's remarks regarding petitioner's prior criminal history "militate strongly" against a finding of prejudice).
Third, the case against Brock was strong, given the victim's detailed testimony regarding the robbery and her unequivocal identification of Brock as her assailant. (See, e.g., Sheard: Tr. 34, 36-37, 45, 73, 76.)See, e.g., Blissett v. LeFevre, 924 F.3d at 441 (arresting officer's testimony that he was investigating unrelated robbery when he arrested defendant did not deny defendant fair trial in murder prosecution where misconduct was not part of trial strategy, trial judge promptly instructed jury to disregard, and defendant was convicted on basis of eyewitness testimony); United States v. Coffey, 823 F.2d at 28 (no constitutional violation where alleged misconduct was isolated and not intentional, the trial court provided curative instructions and trial evidence demonstrated defendant's guilt).
See also, e.g., Cruz v. Greiner, 1999 WL 1043961 at *31 (brief remark, prompt curative instruction and "strong evidence" of defendant's guilt, so any error was harmless) ( cases cited therein); Lugo v. Kuhlmann, 68 F. Supp.2d at 368 ("based on the lack of severity of the alleged [prosecutorial] misconduct and the strong evidence of [defendant's] guilt, those remarks did not prejudice" defendant); Malik v. Kelly, No. 97-CV-4543, 1999 WL 390604 at *9 (E.D.N.Y. April 6, 1999) (eyewitness who viewed robber at close range for several minutes in good lighting conditions testified she had "no doubt" defendant was the robber; "When viewed in light of the strong prosecution case, the alleged misconduct is not particularly egregious."); United States v. Thomas, 894 F. Supp. 58, 64 (N.D.N.Y. 1995) ("This court is satisfied that in light of the evidence presented against [the defendant] and the context and brief nature of [the government witnesses' references to defendant's prior incarceration], the curative instructions were sufficient to avoid a miscarriage of justice.").
Brock's second habeas claim, alleging prosecutorial misconduct, is denied as without merit.
III. BROCK'S CLAIM THAT THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON THE MAILBOX RULE DENIED HIM A FAIR TRIAL IS UNEXHAUSTED AND PROCEDURALLY BARRED
Brock claims that "[t]he Court's refusal to instruct the jury that there was a presumption the pictures mailed to the Detective at the precinct were received, was extremely prejudicial, and deprived Petitioner of his constitutional rights to a fair trial." (Pet. ¶ 12(C); see also Brock Br. at 21-24.)
Although the State has not argued that this claim is unexhausted, the Court is free to raise the issue sua sponte and does so here, in the interest of comity.
In light of the Second Circuit's recent opinion in Acosta v. Artuz, 221 F.3d 117 (2d Cir. 2000), which may be read to require that Brock be provided with notice and an opportunity to be heard before sua sponte dismissal of this claim on procedural grounds, this Court gave Brock notice of its intention and an opportunity to address exhaustion with respect to the jury charge issue. (See 10/11/00 Order.) In response, Brock argued that he put the state courts on notice that he was bringing a federal constitutional claim by citing to and quoting fromPeople v. Willis, 114 Misc.2d 731, 451 N.Y.S.2d 584 (Sup.Ct., Queens Cty. 1982), in his First Department Brief. (See 10/24/00 Brock Supp. Br. at 1-2, citing Brock 1st Dep't Br. at 26.) In Willis, the defendant had moved to dismiss the indictment on the ground that he was not given an opportunity to testify before the grand jury. See People v. Willis, 114 Misc.2d at 372, 451 N.Y.S.2d at 585. The court granted the motion but gave the government leave to reinstate the indictment in the event defendant did not intend to appear and testify before the grand jury. See id. The district attorney then sent notice of another grand jury session to defendant, the defendant failed to appear and the indictment was reinstated. See id. at 372-73, 451 N.Y.S.2d at 586. Defendant moved to dismiss the indictment again, this time on the grounds that (1) the court did not have the authority to condition its order of dismissal with leave to resubmit premised upon the defendant appearing and testifying before another grand jury and (2) even if the conditional dismissal was valid, he was never notified of the second grand jury session. See id. at 373, 380, 451 N.Y.S.2d at 586, 590. The court held that (1) the defendant was not denied due process by the court's conditional order of dismissal and (2) the defendant failed to rebut the presumption that he received the grand jury notice which had been mailed to him. See id. at 380, 381, 451 N.Y.S.2d at 590, 591.
Brock's counsel argued to the First Department, "I can guarantee that the ADA who addressed the notice of the Grand Jury appearance in the Willis case did not personally walk it to the mailbox. In the thousands of cases where a defendant is presumed to have received notice by mail, the prosecutors did not personally walk those notices to the mailbox." (Brock 1st Dep't Br. at 26.) Brock contends that because he cited and discussed the Willis case, which decided a due process issue, he fairly presented his jury charge claim as a federal due process claim to the state courts. (10/24/00 Brock Supp. Br. at 1-2.) The Willis court, however, only discussed due process in the context of the defendant's conditional dismissal claim — a claim which did not implicate the mailbox presumption discussed later in the decision. Insofar as Brock finds significance in the Willis court's quotation about the mailbox presumption from a federal case, Creasy v. United States, 4 F. Supp. 175 (W.D. Va. 1933), (see 10/24/00 Brock Suppl. Br. at 2), that case discussed the basis for the mailbox presumption in the civil context and made no mention of due process. Brock did not exhaust this claim.
Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless is appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254 (b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948 . . . in 28 U.S.C. § 2254."); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990);Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc),cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732; Gumbs v. Kelly, 2000 WL 1172350 at *5; Cruz v. Greiner, 1999 WL 1043961 at *19; Lugo v. Kuhlmann, 68 F. Supp.2d at 360)
Accord, e.g., Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.),report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp. 271 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.) ( cases cited therein); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.);Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds 206 F.3d 196, 198-99 (2d Cir. 2000).
For a general discussion of whether a district court should dismiss a mixed petition without prejudice under the AEDPA, see, e.g., Orraca v. Walker, 53 F. Supp.2d at 609-12; Otero v. Stinson, 51 F. Supp.2d at 419-421.
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732-34; Gumbs v. Kelly, 2000 WL 1172350 at *5; Ventura v. Artuz, 2000 WL 995497 at *10; Mendez v. Artuz, 2000 WL 722613 at *24; Foreman v. Garvin, 2000 WL 631397 at *7 n. 9; Thomas v. Greiner, 2000 WL 194677 at *3; Curz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 360-61; Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996) (Batts, D.J. Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.).
"The exhaustion requirement is not satisfied unless the federal claim has been `fairly presented' to the state courts." Daye v. Attorney General of New York, 696 F.2d at 191. The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. e.g., Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:
Accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Gumbs v. Kelly, 2000 WL 1172350 at *5;Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *5 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.); Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
See also, e.g., Gumbs v. Kelly, 2000 WL 1172350 at *5; Holden v. Millet, 2000 WL 1121551 at *5; Cruz v. Greiner, 1999 WL 1043961 at *20;Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye v. Attorney General, 696 F.2d at 194.
Accord, e.g., Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995); Grady v. LeFevre, 846 F.2d at 864;Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688; Gumbs v. Kelly, 2000 WL 1172350 at *6; Holden v. Miller, 2000 WL 1121551 at *6; Mendez v. Artuz, 2000 WL 722613 at *24 n. 15; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Jordan v. LeFevre, 22 F. Supp.2d at 266; Diaz v. Coombe, 1997 WL 529608 at *3; Washington v. Superintendent, Otisville Correctional Facility, 96 Civ. 2729, 1997 WL 178616 at *3.4 (S.D.N Y April 11, 1997); Boyd v. Hawk, 1996 WL 406680 at *3.
In the present petition, Brock argues that he was denied his "constitutional rights to a fair trial" by the trial court's refusal to instruct the jury to presume that the photographs mailed to Detective Grice were received. (Pet. ¶ 12(C).) While Brock made a similar argument in his appeal to the First Department (Brock 1st Dept Br. at 23-28), a review of his appellate brief reveals that, under the Daye standard, this ground was not fairly presented to the state court as a federal constitutional claim. Brock's argument on his state appeal was based solely on state court decisions that did not employ federal constitutional analysis (see fn. 15 above); he did not cite the Constitution, state his claim in such a way as to call to mind a specific constitutional right or present a fact pattern within the mainstream of constitutional litigation. (See Brock 1st Dep't Br. at 23-28.) Therefore, this claim was not "fairly presented" to the state court as a constitutional claim under Daye and its progeny. See, e.g., Brown v. People, 97 Civ. 4416, 2000 WL 235977 at *6 (S.D.N.Y. Feb. 11, 2000) (claim challenging adverse inference instruction regarding prosecution's failure to produce police chemist's log book was not fairly presented where petitioner's "argument was framed exclusively in terms of state law [and petitioner] did not cite the Constitution or federal cases or any state cases that used constitutional analysis [or] state his claim in such a way as to call to mind a specific constitutional right or present a pattern of facts within the mainstream of constitutional litigation");Cephas v. Gavin, No. CV 96 911, 1997 WL 21385 at *2 (E.D.N.Y. Jan. 13, 1997) (petitioner failed to fairly present constitutional claim that trial court erred in its adverse inference charge regarding destroyed notes); DeJesus v. Miller, 92 Civ. 3007, 1993 WL 464765 at *1-2 (S.D.N.Y. Nov. 12, 1993) (Leval, D.J.) (petitioner's claim that court erred in not giving an adverse inference instruction with respect to prosecution's failure to produce arrest photograph of co-defendant was "not presented as [a] constitutional claim in the New York state courts and may not be presented to a federal court now"); Reid v. Senkowski, No. CV-90-0665, 1991 WL 22852 at * 1-2 (E.D.N.Y. Feb. 8, 1991) (petitioner failed to fairly present constitutional claims concerning various aspects of jury charge), aff'd, 961 F.2d 374 (2d Cir. 1992).
See also, e.g., Cruz v. Greiner, 1999 WL 1043961 at *20-21; Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *4 (S.D.N.Y. May 31, 1996) (Batts, D.J. Peck, M.J.) (claims not fairly presented where, "[o]n its face, it is obvious that [petitioner's] brief neither relies on pertinent federal cases employing constitutional analysis nor relies on state cases employing constitutional analysis in like fact situations"); Mendez v. Superintendent, Adirondack, Correctional Facility, 94 Civ. 6500, 1996 WL 66117 at *2 (S.D.N.Y. Feb. 14, 1996), aff'd mem., 104 F.3d 356 (2d Cir. 1996); Jones v. Hood, 826 F. Supp. 82, 85 (W.D.N.Y. 1993) (claim not fairly presented where "[p]etitioner relied solely on state law in asserting his claims. . . . He cited o federal caselaw whatsoever, and the state cases and authorities cited did not involve similar fact situations or employ any relevant constitutional analysis."); Marti v. Riley, No. CV. 88-3044, 1989 WL 117075 at *1 (E.D.N.Y. Sept. 25, 1989) (claim not fairly presented where petitioner "relied solely on state cases, and neither they nor petitioner's factual arguments employed, or caused the state court to consider, the applicable constitutional test" for petitioner's claim).
"`For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989))).
Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); Bossett v. Walker, 41 F.3d at 828 ("[i]f the petitioner no longer has `remedies available' in the state courts under 28 U.S.C. § 2254 (b), we deem the claims exhausted."); Gumbs v. Kelly, 2000 WL 1172350 at *7; Holden v. Miller, 2000 WL 1121551 at *8;Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *9 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 2000 WL 194677 at *4; Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 362; Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at * 3 (S.D.N Y Oct. 7, 1998); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 n. 7 (S.D.N Y Sept. 17, 1998) (Cote, D.J. Peck, M.J.).
"In such a case, a petitioner no longer has `remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254 (b)."Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.
Accord, e.g., Gumbs v. Kelly, 2000 WL 1172350 at *7; Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 362; Camarano v. Irvin, 902 F. Supp. at 364.
See also, e.g., Gumbs v. Kelly, 2000 WL 1172350 at *7; Holden v. Miller, 2000 WL 1121551 at *8; Cruz v. Greiner, 1999 WL 1043961 at *22;Lugo v. Kuhlmann, 68 F. Supp.2d at 362; Redd v. Quinones, 1998 WL 702334 at *3
In this case, it is clear that Brock is now barred from raising his claim concerning the "mailbox presumption" in State court because it could have been raised in federal terms on appeal, but was not. As the Second Circuit explained in Washington v. James:
New York Crim. Proc. Law § 440.10(2)(c) states, in pertinent part:
2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:
(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . . raise such ground or issue upon an appeal actually perfected by him. . . .
Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.
. . . .
As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10 (a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore, [Petitioner] has no further recourse in state court. See 28 U.S.C. § 2254 (c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.996 F.2d at 1446-47.
See also, e.g., Reyes v. Keane, 118 F.3d at 139 ("Section 440.10 (2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added); Bossett v. Walker, 41 F.3d at 829; Gumbs v. Kelly, 2000 WL 1172350 at *8; Holden v. Miller, 2000 WL 1121551 at *8;Foreman v. Garvin, 2000 WL 631397 at *9; Thomas v. Greiner, 2000 WL 194677 at *4; Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 363; Redd v. Quinones, 1998 WL 702334 at *3.
"[T]o avoid [such] a procedural default, a habeas petitioner must "`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'"i e., a showing of "actual innocence.'" Cruz v. Greiner, 1999 WL 1043961 at *23. Since Brock has not shown cause and prejudice or that a fundamental miscarriage of justice would result, the procedural default is a complete bar to federal habeas relief.
Accord, e.g., Gumbs v. Kelly, 2000 WL 1172350 at *8; Holden v. Miller, 2000 WL 1121551 at *8; Perez v. Greiner, 2000 WL 915114 at *7;Mendez v. Artuz, 2000 WL 722613 at *26; Foreman v. Garvin, 2000 WL 631397 at * 10; Thomas v. Greiner, 2000 WL 194677 at *5; Lugo v. Kuhlmann, 68 F. Supp.2d at 363; Gibriano v. Attorney General, 965 F. Supp. at 493 n. 5.
In any event, even if it had been preserved, Brock's claim regarding the "mailbox presumption" would fail. As the Second Circuit has stated: "`In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.'" Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); see also Holden v. Miller, 2000 WL 1121551 at *13 ( cases cited therein). Here, Brock has not, as a threshold matter, established that he was entitled to the presumption as a matter of state law as Slane had merely testified that he had placed the photographs in the Chase Manhattan Bank internal mail system. (See Slane: Tr. 256-60.) See e.g., People v. Johnson, 190 A.D.2d 910, 910-11, 593 N.Y.S.2d 589, 589-90 (3d Dep't 1993) (deposit of letter in interoffice mail does not give rise to presumption of delivery); People v. Fulton, 162 Misc.2d 360, 363-64, 616 N.Y.S.2d 881, 884 (Sup.Ct. Monroe Co. 1994) ("the deposit of a letter in an interoffice mail system does not give rise to a presumption of delivery, as would have been the case had the letter been deposited in the United States mail"); see also, e.g., News Syndicate Co. v. Gatti Paper Stock Corp., 256 N.Y. 211, 213 (1931) ("The [mailbox] presumption is founded upon the probability that the officers of the government will do their duty. . . ."); Prince, Richardson on Evidence § 3-128 (11th ed. Farrell),
CONCLUSION
For the reasons set forth above, Brock's petition for a writ of habeas corpus is denied. Because Brock has not made "a substantial showing of the denial of a constitutional right," the Court denies a certificate of appealability. 28 U.S.C. § 2253 (c)(2).SO ORDERED.