Opinion
02-CV-2043 (JBW) 03-MISC-0066 (JBW)
October 2, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary, This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was tried for a string of robberies and attempted, robberies that occurred between July 1993 and February 1994:
• On July 8, 1993, Henry Jackson was robbed of $65 by two men. No gun was shown but one of the men reached under his jacket as if he had a firearm. Jackson later identified petitioner at trial as one of the robbers.
• On July 29, 1993, Jeffrey Britt was robbed of $240 and his wedding band while sitting in his van. The assailant displayed a gun. Britt, who had seen petitioner before that day, later identified him in a lineup and at trial as the robber.
• On November 15, 1993, Jamel Carrington was robbed of her neck chains. She knew petitioner from having dated his brother. She later identified petitioner as the robber at trial.
• On December 21, 1993, Phyllis Todd was robbed of her rings and a gold chain. The assailant bad his hand inside his jacket as if he were carrying a gun, Todd identified petitioner as the robber at trial.
• On January 26, 1994, Melvin Walker and Wayne Roper were robbed of chains, money and a watch. The assailant placed a gun to each of them. Walker identified petitioner at a lineup as the robber, Both men identified petitioner as the robber at trial.
• On February 13, 1994, Josiah Davoren was robbed of $120 by a man who placed a gun to his side while he was sitting in his oil truck, Davoren gave police officers a description of his assailant, and several minutes after the incident police arrested petitioner nearby. Davoren identified petitioner as his assailant at trial.
Petitioner was charged in three separate indictments with numerous counts of robbery, attempted robbery and grand larceny, The indictments were consolidated and he was ivied in a single proceeding for crimes arising from the six incidents involving the seven complainants.
Petitioner was found guilty of four counts of first degree robbery, one count of firs t degree attempted robbery, and two counts of third degree robbery. He was adjudicated a persistent felony offender and sentenced to concurrent terms of 15 years to life in prison for each of the counts for which he was convicted.
Petitioner's convictions were affirmed on direct appeal by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied. A motion to vacate judgment was denied by the trial court, and leave to appeal from that decision was denied by the Appellate Division, No further state collateral proceedings were initiated.
In his timely application for a writ of habeas corpus, petitioner raises a host of claims: (1) that he was denied a fair trial because the trial court's marshaling of the evidence amounted to a second summation on behalf of the prosecution; (2) that his right deprived of his right to a public trial when the court closed the courtroom for the testimony of an undercover officer; (3) that Rosario and Brady material was submitted late, constituting reversible error; (4) that prosecutorial misconduct deprived him of a fundamentally fair trial; (5) that the hearing court failed to suppress lineup identifications of witnesses where the photograph memorializing the lineup was indecipherable; (6) (bat he was deprived of his right to be present at all stages of the trial when the jury was impaneled outside of his presence; (7) that juror misconduct deprived him of a fair trial; (8) the court's Allen charge was premature; and (9) that his sentence was illegally imposed. II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly, Rather, that application must also be unreasonable." Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003), Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(c)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions." See 28 U.S.C § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following;
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved, See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App, LEXIS 13949 at * 15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id. V. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)," See also Shabazz v. Artuz, No. 02-2320, 2003 US. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bent ten, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure.
VI. Analysis of Claims
All of petitioner's claims were exhausted in the state courts. Some were denied as meritless. Others were denied because they were "either unpreserved for appellate review, without merit, or do not warrant reversal." People v. Brown, 704 N.Y.S.2d 486 (App.Div. 2000), None of petitioner's claims are foreclosed from review on the merits in federal court. Under Su v. Filion, it may be that some of these preserved claims are entitled to a de nova standard of review rather than the standard set forth in AEDPA, Because none of petitioner's claims merit granting of the writ even under a de novo standard of review, this court will not waste effort attempting to determine whether the slate courts did or did not in fact rule on the merits of petitioner's federal claims. Unless otherwise indicated, all of petitioner's claims will be reviewed de novo.
A
Petitioner claims that he was denied a fair trial because the trial court's marshaling of the evidence amounted to a second summation on behalf of the prosecution and because the charge erroneously stated the presumption of innocence, "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," Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context, Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.
The trial court marshaled the evidence in the following manner:
Now in this case, part of the evidence which was offered to establish that the defendant is the right man, that is the actual perpetrator of these crimes was the testimony of each of the eye witnesses, Henry Jackson, with respect to crimes of July eighth `93, Jeffrey Britt, with respect to crimes of July 29th, `93, Janel Carrington with respect to the crime of November fifteen `93, Phyllis Todd with respect to the crime of December twenty-first `93, Melvin Walker and Wayne Roper with respect to the crime of January twenty-six, `94, And Josiah Davoren with respect to the crime of February thirteen, `94.
Now, in addition, to each of these victim's testimony, the People have offered other evidence which they contend also serves to establish that the defendant is the actual perpetrator of these crimes. Janel Carrington testified that she knew the defendant from the neighborhood because she dated his brother Robert Boyle, She was a sophomore while she was in junior year high school.
Phyllis Todd testified she saw the defendant on the street after the robbery in the months following the robbery. Josiah Davoren testified that ten or fifteen minutes after he was robbed he saw the defendant being brought out of a Bodega in the custody of the police.
Henry Jackson testified that after the robbery he pointed out the defendant while he was in the police car. And that the police then chased the defendant and that fifteen to twenty minutes later, he saw the defendant sitting in a police car in the custody of police.
Jeffrey Britt, testified that shortly after the robbery, he saw the defendant climb out of a window and also that he saw the defendant in a line-up on February fourteen of *94.
Melvin Walker testified that he saw the defendant in a line-up on February fourteen after being robbed on January twenty-fifth, three weeks later. And Wayne Roper his only testimony was that he saw the defendant during a robbery. However, that testimony is corroborated by the testimony of Melvin Walker who was present at the same time and place and also identified the defendant as the perpetrator.
Now, in deciding whether the defendant is the right man, that is the actual person of these crimes, you must consider all the evidence in the case with special emphasis on the circumstances surrounding these crimes. For example, you must consider the time lapse during the commission of the crimes, lighting at the scene of the crime, the distance between the witnesses and the perp. You must also consider whether or not the witnesses had an obstructed view of the person. And in the later regard you should examine with care the witnesses' opportunity, both before, during and after the commission of the crimes to observe and remember the person. You must ask yourself, did the witness have an adequate opportunity to observe and therefore to remember the person?
You must also evaluate the credibility of each of the witnesses as you observe them when they testified here in court, And you must evaluate their general intelligence, their capacity for observation, reasoning and memory and determine whether you are satisfied that they are reliable eye witnesses who had the ability to observe and the capacity to remember the person.
You must also take into consideration all of the other evidence which has been offered to establish that the defendant is or is not the perpetrator, From you evaluation of the witness' opportunity during the commission of the crimes to observe and remember the perpetrator's facial features, body features and clothing and upon your assessment of their mental and emotional state and their ability to observe, to reason and remember and taking into consideration all of the other evidence which has been offered to establish that the defendant is or is not the perp, you must determine whether the total evidence in the case convinces you beyond a reasonable doubt, that the defendant Todd Brown is the right man; that is, the man who in fact committed the crimes.
If you then have a reasonable doubt that the defendant is the man who committed the crimes charged in the indictment, you must find him not guilty of those crimes. On the other hand, if you are satisfied beyond a reasonable doubt that the defendant was the perpetrator of any of these crimes then you must find the defendant guilty as charged. The witnesses, Jeffrey Britt and Melvin Walker testified that after the crimes, they saw and identified the defendant at lineups on February fourteen of `94.
The evidence is that the crimes charged involving Jeffrey Britt was committed on July 29th of `93. And that the line-up was done on February fourteen, `94, approximately six and a half months later.
The testimony with respect to Melvin Walker was that the robbery was committed on January twenty-fifth of `94 and that the line-up was conducted February fourteen of `94 approximately three weeks later.
The evidence is that these crimes were charged in `93 and `94 and that it's now June of 1995 and it's therefore relevant to establish that shortly after the commission of some of these crimes Jeffrey Britt, Melvin Walker picked out and identified this defendant as the perpetrator of those crimes at a line-up.
Trial Tr. at 711-16.
Under New York's procedural law, in its charge to the jury the trial court "must . . . state the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts, but it need not marshal or refer to the evidence to any greater extent than is necessary for such explanation," N.Y. Crim. Pro. Law § 300.10(2), The trial court exercised its discretion to marshal for the jury those facts it deemed necessary to explain the application of the law to the facts. There is no requirement that the court give "equal time" to both parties. The jury was informed that the role of determining the facts solely and exclusively belonged to it, and that it should take into consideration defense counsel's cross examination of prosecution witnesses. The jury was told it could consider prior inconsistent statements of witnesses. The trial court did not opine, either directly or implicitly, about its view of the evidence. Petitioner was not denied a fundamentally fair trial by the court's charge.
In addition, nothing in the court's charge undermined petitioner's presumption of innocence, apparently because some of the court's remarks suggest that the presumption is destroyed with respect to all charges lodged against a defendant if the jury concludes that he is guilty of any one charge. When not excerpted and placed out of context (as was done by petitioner's counsel in his brief on direct appeal) the court's charge is neither remarkable nor misleading:
You have also heard reference made to the fact that under our law, a defendant is presumed to be innocent. That presumption rests with him throughout this trial. And he is cloaked with the protection of this presumption even when you go into the juryroom to begin your deliberation and remains with him until that time arrives when you as jurors are convinced from the proof submitted that the defendant is guilty of any of the crimes with which [he] is charged beyond a reasonable doubt. If that point is reached the presumption of innocence is destroyed. It no longer exists. Now this necessarily places the burden of producing such evidence upon the People. It also means that the People must establish each and every element of each crime that the defendant is charged with for your satisfaction and beyond a reasonable doubt.
Trial Tr. at 716-17 (emphasis added). The charge was not improper.
Granting of the writ is not warranted on these grounds.
B
Petitioner claims that he was deprived of his right to a public trial when the court closed the courtroom for the testimony of an undercover officer. The Sixth and Fourteenth Amendments guarantee an accused criminal a right to a public trial. "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. . . . In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury," Waller v. Georgia, 467 U.S. 39 (quotation and footnotes omitted).
The right to a public trial is not absolute, however, and it may be limited under appropriate circumstances, Before a courtroom may be closed, (1)the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closing the proceeding, and(4) it must make findings adequate to support the closure. Waller, 467 U.S. at 48 (1984), Where the courtroom is to be only partially closed a movant need only demonstrate a "substantial reason" to justify the closure, Woods v. Kuhlman, 977 F.2d 74, 76 (2d Cir. 1992) ("a less stringent standard [is] justified because a partial closure does not implicate the same secrecy and fairness concerns that a total closure docs").
The trial court held a Hinton, hearing to determine the propriety of closing the courtroom during the testimony of the undercover officer. The officer testified that she was still working in an undercover capacity at the time of trial and that she would continue to do so in the future in the vicinity of one of the crimes; that she had been threatened in four of her cases; that she had lost subjects in some of her cases; that her safety would be threatened if she testified in open court; and that she took precautions in entering the courthouse to appear at petitioner's trial. The granted the prosecutor's motion to close the courtroom, informing petitioner that it would entertain applications by the defense to admit particular individuals if petitioner chose. Petitioner did not make any such application.
Petitioner's right to a public trial was not violated. It was not improper to deem the officer's safety an overriding interest under these circumstances, the closure was no broader than necessary, no other' alternatives were proposed by the defense although it was given an opportunity to do so, and the trial court made sufficient findings on the record. Habeas corpus relief is not wan anted on this claim.
C
Petitioner claims that Rosario and Brady material was submitted late, constituting reversible error. In particular, he complains that the " Rosario material with regard to virtually every alleged incident was not provided to defendant, audiotapes with respect to several of the events were not turned over until months after the hearings involving the related incidents (and the tapes so provided late to defendant were of significantly inferior quality than the originals retained by the People), and the materials allegedly seized from defendant with regard to the Jackson incident were destroyed by the People prior to trial and prior to any presentation of such material to the defendant for inspection," Petitioner is no more specific in his claim than the above-quoted sentence.
Pursuant to People v. Rosario, the state must provide a criminal defendant with the pretrial statements of any witness who will be called to testify on behalf of the prosecution. 173 N.E.2d at 883-84. This rule has been codified in the New York criminal procedure law; the prosecutor is obliged to "make available to the defendant, . . . any written or recorded statement . . . made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony." N.Y. Grim. Pro. Law § 240.45(1)(a). Rosario material "is valuable not just as a source of contradictions with which to confront [a witness] and discredit his trial testimony," but also because the material "may reflect a witness' bias . . . or otherwise supply the defendant with knowledge essential to the neutralization of the damaging testimony of the witness which might, perhaps, turn the scales in his favor," Rosario, 173 N.E.2d at 883. "When the People delay in producing Rosario material, the reviewing court must ascertain whether the defense was substantially prejudiced by the delay, When, however, the prosecution fails completely in its obligation to deliver such material to defense counsel, the courts will not attempt to determine whether any prejudice accrued to the defense. The failure constitutes per se error requiring that the conviction be reversed and a new trial ordered. People v. Ranghelle, 503 N.E.2d 1011, 1016 (N.Y. 1986).
The prosecution in a criminal matter has a constitutional obligation to disclose exculpatory evidence to the defendant. See Brady v. Maryland, 373 U.S. 83 (1967), Giglio v. United States, 405 U.S. 150 (1972). "A finding of materiality of the evidence is required under Brady" Giglio v. United States, 405 U.S. 150, 154 (1972). Exculpatory evidence is considered material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler v. Greene, 521 U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)), Nondisclosure merits relief only if the prosecution's failure "`under mines confidence in the outcome of the trial" Kyles v. Whitly, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678) — The Supreme Court has rejected any distinction between impeachment evidence and exculpatory evidence. See Bagley, 473 U.S. at 676. Impeachment evidence "Is `evidence favorable to an accused,' Brady, 373 U.S. at 87, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal," Id. The "individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police," Kyles, 514 U.S. at 437; see also Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (assuming that state child protective agency files could be Brady material).
To the extent petitioner presses a Rosario claim in this court, habeas review is precluded. Because a Rosario claim is purely a state right, embodying `"policy considerations grounded in state common law, not constitutional principles,'" (the prosecutorial failure to turn over Rosario matzerial is not subject to habeas review by a federal court. Whitman v. Sabourin, 2001 U.S. Dist. LEXIS 8049, at *12 (S.D.N.Y. June 12, 2001) (quoting Southerland v. Walker, 1999 U.S. Dist. LEXIS 19327, at *9 (S.D.N.Y. Dec. 10, 1999)); Estelle v. McGuire, 502 U.S. 62, 68 (1991) (federal habeas corpus relief does not lie for mere errors of state law).
To the extent petitioner presses a Brady claim, he has failed to demonstrate that the prosecution failed to turn over to the defense any evidence that would have been material and exculpatory for the defense, either as direct evidence countering petitioner's guilt or as impeachment evidence of prosecution witnesses. Conclusory assertions of undefined prejudice are insufficient. To the extent the prosecution was unable to turn over evidence because it had been destroyed — in particular, papers that had been taken from one of the complainants and recovered on petitioner, as well as the bicycle used by petitioner to escape from the robbery of that complainant — an adverse inference charge was given to the jury, Habeas corpus relief on these grounds is not warranted,
D
Petitioner claims that prosecutorial misconduct deprived him of a fundamentally fair trial. In particular, petitioner complains that the prosecutor (1) impeached a defense witness "in over 20 pages of transcript" with his criminal record; (2) "smeared" that witness, petitioner and petitioner's family by suggesting that they were all drug dealers; (3) repeatedly urged the jury to convict petitioner "based on the numerous counts alone"; and (4) referred to papers recovered from petitioner that belonged to a complainant after the prosecutor assured the court prior to the start of trial that she would not do so.
Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). Nonetheless, "when the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair," Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S. at 643), Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceedings. DeChristoforo, 416 U.S. at 643, In order to view any prosecutorial misconduct in context, "we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. . . . Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted).
None of the prosecutor's remarks, either singly or cumulatively, was sufficient to have denied petitioner a fundamentally fair trial. Sound objections from defense counsel were sustained. Curative instructions were delivered by the court where appropriate. Some of petitioner's complaints — such as his assertion that the prosecutor improperly referred to papers found on petitioner — are belied by the record. The prosecutor did not engage in "egregious" and "foul" conduct, as petitioner contends. Habeas corpus relief on this ground is not warranted.
E
Petitioner claims that the hearing court failed to suppress lineup identifications of witnesses where the photograph memorializing the lineup was indecipherable and too dark to distinguish amongst the participants. The Appellate Division rejected petitioner's claim on the merits, stating, "Despite the poor quality of the photograph of the lineup at which two of the complainants identified the defendant, there was sufficient evidence to support the hearing court's determination that the lineup was not unduly suggestive." Brown, 704 N.Y.S.2d at 486. Review proceeds under the deferential standards of AEDPA.
In United States v. Wade, the Supreme Court recognized that there is a "grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstructi — on at trial." 3 8 8 U.S. 218, 236 (19666). "[R]eliabi1ity is the linchpin in determining the admissibility of identification testimony," and that the factors to be considered in determining reliability include "[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of his prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
There is no constitutional requirement that a photograph of a lineup be available for a court to review in a Wade hearing. Even without the photograph of the lineup, there were sufficient indicia of the reliability of the two witness's identification to have allowed their identification testimony at trial. Complainant Britt had seen petitioner on occasions prior to the robbery and he had observed petitioner in a well-lit area, for a substantial period at the time of the incident. Complainant Walker viewed petitioner for several minutes in a well-lit parking lot and identified him less than three weeks after the incident. The witnesses were confident in their identifications of petitioner.
Aside from petitioner's protestation that the photograph of the lineup was indecipherable, he has suggested no way in which the lineup itself was unfair or suggestive. Testimony from a police detective at the Hinton hearing was that the lineup was that he had made efforts to select persons from a homeless shelter to serve as "fillers" who looked similar to petitioner in hair, skin complexion, height and weight.
The state courts' conclusion that petitioner's due process rights were not violated by the lineup procedures or by the introduction of identification evidence at trial was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. Habeas corpus relief on this claim is not warranted.
F
Petitioner claims that he was deprived of his right to be present at all stages of the trial when the jury was impaneled outside of his presence. The trial court described to defense counsel and the prosecutor its ordinary procedures in selecting a jury. The court explained to petitioner that he had a right to be present at sidebars, but that it might be in his best interest to rely on his attorney's presence alone, both to avoid the prejudice attendant to potential jurors witnessing his approach accompanied by a guard and to avoid juror hesitancy in answering questions that might result from intimidation at petitioner's proximity. Petitioner waived his right to be present at the sidebars. Defense counsel stated, however, "Only thing we would not want to waive, Judge, is that during any challenge for cause or for peremptory challenges my client — of course some judges don't do that, We're not waiving that right," May 16, 1995
Proceedings at 137, The court responded,
I do not believe that the defendant has a right to be present at the Lime when the challenges are made, and the way I do it is we go to chambers for that purpose, and it would create a substantial problem if the defendant were present, and the jurors would sec him being accompanied out of the courtroom by Court officers, and I have read the cases and as far as I'm concerned there is nothing wrong with not allowing the defendant to be present at that particular point, It's only after all the questions are complete and the only time he's not present is when the actual challenges are made in chambers and the legal argument is made. That I am rather certain does not entitle the defendant to be present. If you have any case that you wish to submit, I'll hold this mater in abeyance until tomorrow morning to give you an opportunity to research it, but I have done it, and I'm not aware of any case that says that he has a right to be present.
Id. at 137-38. Defense counsel did not bring to the attention of the trial court any case law and failed to raise the issue again.
The Appellate Division rejected petitioner's claims, stating, "Contrary to the defendant's contention, his right to be present during material stages of the trial was not violated when challenges to the prospective jurors were exercised outside his presence. The defendant was present during the voir dire and when the challenges were given effect in open court." Brown, 704 N.Y.S.2d at 486, Review proceeds under the deferential standards of AEDPA.
A criminal defendant has the right "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 5 (1975), However, "the right to be present is not absolute: it is triggered only when the defendant's `presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.'" Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Snyder v. Massachusetts, 291 U.S. 97, 10(5-0(5 (1934)). "[A]bsen[ce] from sidebar conferences during trial does not rise to the level of a constitutional violation because the Federal Constitution does not require a defendant's presence at sidebar conferences." Gaiter v. Lord, 917 F. Supp. 145, 152 (E.D.N.Y. 1996).
Under the circumstances of the instant case, petitioner's claim that he was denied his right to be present at a material stage of his trial is meritless. He explicitly waived his right to be present at the sidebars and he failed to accept the trial court's offer to demonstrate that he had a right to be present when challenges were actually lodges by defense counsel and the prosecutor. Having failed to press his putative right at trial when given the opportunity to do so, he cannot now complain that he was deprived of that right. He was present in court for the voir dire, was not restricted from speaking with his attorney at any time, and was present when the challenges were effectuated. Habeas corpus relief is not warranted on this ground.
G
Petitioner claims that juror misconduct deprived him of a fair trial. In his motion to set aside the verdict after the trial, petitioner included an affidavit from juror number 11 stating that juror number 12 had said to his fellow jurors, "I know I shouldn't be saying this, but he is guilty, guilty, guilty," The trial court, speaking of the "single isolated comment allegedly made by juror number 12," stated that "I do not believe[it] is so inherently prejudicial so as to impair — so that it impaired the defendant's right to a fair trial, and I don't think a hearing is necessary because that's my ruling," June 26, 1995 Proceedings at 4. The Appellate Division concluded that the trial court did not err in making this decision. Brown, 704 N.Y.S.2d at 486, Review proceeds
under the deferential standards of AEDPA.
The Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI. "Premature deliberations present a number of dangers, all in some manner affecting or touching upon the criminal defendant's Sixth Amendment right to a fait and impartial jury trial," United States v. Bertoli, 40 F.3d 1384, 1393 (3d Cir. 1994). Premature deliberation by jurors do not, however, necessarily deprive a defendant of a fair trial. "The important thing is not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury, . . . The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial" United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974); see also Dams v. Wood-ford, 333 F.3d 982, 1005-06 (9th Cir. 2003) ("Were we to assume that premature deliberations occurred, such an exchange, though not necessarily proper, is not as serious as private communication, contact, or tampering . . . with a juror during a trial [or] . . . influence of the press upon the jury, nor does every incident of juror misconduct require[ ] a new trial." (quotation omitted)).
The decisions of the trial court and the Appellate Division are not unreasonable. Our criminal justice system does not contemplate that jurors will avoid forming tentative conclusions about the guilt or innocence of a defendant before all the evidence has been presented and the judge releases them to the jury room for deliberations. All that is required of a juror is that he or she keep an "open mind" and remain receptive to the parties arguments and evidence. It is thoroughly unsurprising that at some point near the end of a trial one or more jurors will believe a defendant's guilt or innocence to have been established. Even so, those jurors vowed they would be receptive to opposing arguments. This is, after all, the goal of requiring juror deliberation in an effort to reach unanimity. There is no indication that juror number 12 failed to participate in deliberations in good faith.
In the present case, it was obviously improper for the juror to have made his comments — assuming he did so — prior to the start of deliberations. It was reasonable to conclude, however, that the isolated remark was not sufficiently serious to have denied petitioner a fair trial. The Appellate Division's conclusion was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court, Habeas corpus relief on this ground is not warranted.
H
Petitioner claims that the court's supplemental charge, given pursuant to Allen v. United States, 164 U.S. 492, 501-02 (1896), denied him a fair trial. Petitioner docs not articulate any complaint with respect to the substance of the charge, but rather with it's liming — just one hour after the jury began its deliberations, In support of this claim, he notes that juror number 11 contended in her affidavit that she was the lone holdout for petitioner's innocence and that she switched her vote only because she felt coerced by the trial court's Allen charge,
"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," Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context, Cupp v. Naughten, 414 U.S. 141, 146-47 (1973), The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, In determining whether a trial court's actions have improperly coerced a jury, the Supreme Court has held that a reviewing court must look at the supplemental charge given by the judge "in its context and under all the circumstances." Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (quotation omitted).
After the jury had been deliberating for about an hour, a note was received, stating, "We have a juror who cannot keep their personal prejudices from conflicting with the facts in this case." As the court contemplated re-presenting a portion of his initial charge to the jury in response to this note, another was forthcoming requesting a readback of some testimony. The trial court considered ignoring the first note, but then concluded that "just to ignore [the first note] I don't think is a good idea. I think I'll just give them a few words such as, you must be cool, calm, impartial. You must not allow sympathy and prejudice to sway you in analyzing the testimony in order to arrive at the truth. You should decide the case on the evidence and under the law as it has been given to you." Trial Tr. at 753-54.
Defense counsel objected but the trial court opted to give the following instruction, which repeats almost verbatim the initial charge;
I have received two notes from you both of which have been marked court exhibit one and two. Court Exhibit one reads: We have a juror who cannot keep their personal prejudices from conflicting with the facts in this case.
And the second note which has been marked court Exhibit two, we need the testimony of Mr. Davis the uncle of the defendant to listen to and location of the robbery of Jeffrey Britt.
I am going to answer the first note by repeating what I said during the course of my charge. When you deliberate on this case you will undoubtedly find various opinions and conclusions amongst yourselves.
You have been selected as jurors in the case because of your fair-mindedness, your intelligence and your experience. When you enter the jury room you should make every effort to harmonize the various views expressed by the different jurors and make every effort to come to an agreement which would speak the truth as far as the facts in this particular case are concerned.
I would like to suggest that your discussion under the circumstances, should be dignified and unemotional based upon the evidence as you understand it, and the law as I have given it to you.
No juror has a right to go into the jury room with a closed mind and refuse to listen to the opinions of other jurors and decline to discuss the evidence with his fellow jurors. You should always be open to reason and listen to the opinion of others in the jury room.
However, you have a right if you believe you're right, to stick to your argument and the conclusion. In other words, you have a perfect right to stand up for your own strong opinions. What I am saying is, that you should not close your mind so as to prejudice the conclusions to be arrived at without at least listening to the arguments if any by your fellow jurors who are just as much interested in coming to an honest decision in this case as you are. What is the truth? This is the question for you to determine, A jury is not required to abandon couldn't common sense and good judgment when he or she enters the jury box, The jury box and the courtroom is the forum where common sense and good judgment should be displayed. You must be cool, calm, impartial, and discriminating.
You must not allow sympathy or prejudice to sway your mind in analyzing the testimony in order to arrive at the truth. Decide this case on the evidence and under the law as I have given it to you.
Trial Tr. at 755-57.
The content of the charge is unobjectionable, It was unfortunate that the jurors indicated in their note that, in essence, there was one holdout — or at least that there was only one person with whom the rest of jurors disagreed. Even though the supplemental charge merely reiterated the initial charge, the lone juror might well have presumed that it was directed at him or her. (In this case, based upon the affidavit of juror number 11, that is indeed how the charge seems to have been received.) Nonetheless, there was no indication from the jurors' note whether the apparent eleven-to-one split lilted toward petitioner's innocence or guilt, The jurors could not have been left with the impression that the court was encouraging one verdict over another.
Under all the circumstances, the charge was not coercive, regardless of the post-trial affidavit of regret submitted by juror number 11. Habeas corpus relief on this ground is not warranted.
I
Petitioner claims that his sentence was illegally imposed because he did not receive a copy of the trial court's persistent felony offender statement as required by section 440,20 of the New York Criminal Procedure Law. This claim was rejected by the trial court in its decision denying petitioner's motion to set aside his sentence. Review proceeds under the deferential standards of AEDPA.
Federal habeas corpus relief does not lie for mere errors of state law, Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)), Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
In denying the instant claim, the trial court noted that the court files contained the court's persistent felony offender statement and that the minutes of the persistent felony offender status hearing reflect that defense counsel acknowledged receiving notice of the hearing and the factors the court was to consider at the hearing. The court found petitioner's claims to be meritless as a factual matter. That conclusion is presumed correct; it has not be rebutted by clear and convincing evidence. Petitioner does not contend that he was improperly adjudicated a persistent felony offender. His claim is frivolous. Habeas corpus relief on this state-law procedural ground is not warranted.
J.
No other issue open to consideration by this court — such as petitioner's passing references to perjury by police officers — has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.