Opinion
No. 04 Civ. 6157 (GEL).
April 28, 2005
OPINION AND ORDER
Felix Castillo, a New York State prisoner, petitions for habeas corpus to challenge his conviction on October 17, 2000 for narcotics violations and his resulting sentence to an indeterminate prison term of 15 years to life. Castillo argues that the trial court improperly curtailed cross-examination of a prosecution witness, erroneously denied his motion to unseal a search warrant, and imposed a sentence that constitutes cruel and unusual punishment. For the reasons that follow, the petition will be denied.
BACKGROUND
The evidence at Castillo's trial would have permitted a reasonable jury to find the following facts. On November 30, 1999, a team of police officers was engaged in the surveillance of a street outside a basement apartment on West 193rd Street in Manhattan, in preparation for executing a search warrant for the apartment. For approximately two hours, officers observed Castillo standing in front of the apartment, most of the time with another man, Julius Recio. As the officers watched, Castillo repeatedly approached cars that double-parked in front of the building. He would then return to an alley leading to the basement apartment, use a key to enter the apartment, emerge after a few minutes, and then exchange something with the occupants of the car. During the two hours of surveillance, Castillo did this ten times. On several occasions, officers could observe Castillo receiving money from the occupants of a car. At one point, Castillo was observed giving money to Recio.
The police proceeded to arrest Castillo as he emerged from the alley. They recovered a key to the apartment from Castillo's pocket, and a plastic bag containing cocaine from the ground near his feet. When the officers executed the search warrant for the basement apartment, which lacked a kitchen or bathroom and appeared uninhabitable, they recovered nearly 20 ounces of cocaine and assorted drug paraphernalia.
Castillo testified on his own behalf, denying he ever entered the apartment or gave anyone cocaine. The jury, however, rejected his account, and found him guilty on all counts. His conviction was unanimously affirmed by the Appellate Division. People v. Castillo, 765 N.Y.S.2d 322 (App.Div. 2003). Leave to appeal was denied, and Castillo timely filed the instant petition.
DISCUSSION
I. Cross-Examination
One of the police witnesses, Officer Robert Sormani, testified at trial that he observed Castillo approach cars ten times, and that on three of these occasions, he could see one of the car's occupants give Castillo money. In an earlier sworn complaint, however, Sormani stated that he had seen people give money to Recio, and made no mention of seeing Castillo receive money from anyone.
Castillo's attorney attempted to impeach Sormani using the complaint. The trial judge, however, refused to permit the impeachment, basing his ruling on the authority of People v. Bornholdt, 33 N.Y.2d 75, 88-89 (1973). (See Tr. 91.) Specifically, the court found that the officer's failure to mention people giving money to Castillo could not be used for impeachment absent a showing that "at the prior time the witness' attention was called to the matter and . . . he was specifically asked about the facts embraced in the question propounded at trial." Id. at 88. Castillo argues that the refusal to permit him to impeach the witness was an unconstitutional error, violating his rights under the Confrontation Clause of the Sixth Amendment.
Respondent argues that the Appellate Division's "denial of petitioner's claim" must be respected unless it was "contrary to" or "an unreasonable application of" Supreme Court precedent. (Resp. Mem. 15, citing 28 U.S.C. § 2254(d)(1).) If true, the claim could be quickly rejected. No Supreme Court precedent compels the conclusion that a single ruling precluding a particular line of cross-examination, even if erroneous, constitutes a denial of the right of confrontation. The Supreme Court has never held that a trial court denies a defendant his confrontation rights whenever it erroneously sustains an objection to a defendant's impeachment efforts, even though denying a defendant the opportunity to physically confront and cross-examine witnesses against him does violate the Confrontation Clause. See, e.g., Crawford v. Washington, 541 U.S. 36, 50-51 (2004); Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Regardless, respondent is incorrect in his basic premise. The Appellate Division did not, in fact, deny petitioner's Confrontation Clause claim on the merits. Rather, the Appellate Division agreed with petitioner that the trial court "improperly precluded defendant's cross-examination of a police witness about a statement in a felony complaint . . ., since his in-court testimony flatly contradicted the description given in the complaint." Castillo, 765 N.Y.S.2d at 323. The Court did not specify whether it found the trial court's ruling "improper" under the Confrontation Clause or under state law. The latter interpretation is more likely, since the reference to the "flat contradict[ion]" between Sormani's trial testimony and the complaint suggests that the Court was rejecting the trial judge's ruling that what was at stake was a mere "omission" not subject to cross-examination under Bornholdt. In any case, the Appellate Division made no explicit reference to the Confrontation Clause. Therefore, it appears that the court either did not reach, or agreed with, Castillo's argument that the trial judge's evidentiary ruling violated his rights under the Constitution.
Whatever the source of the error detected by the Appellate Division, however, that Court went on to affirm the conviction, finding the error to have been harmless. Id. It is unclear what standard the Court applied. If the Court perceived a constitutional error, it should have applied the Supreme Court'sChapman standard, which requires the error be harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). The proper issue before this Court would then be whether the Appellate Division's application of Chapman constituted an unreasonable interpretation of that Supreme Court precedent.Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir. 2004). Once again, however, it is hardly certain that the Appellate Division applied Chapman. It did not cite Chapman, and as noted above, the Court may not have believed that it was confronted with constitutional error at all. Rather, it seems that the Appellate Division simply found the trial judge's ruling erroneous, and harmless, as a matter of state law.
Accordingly, it appears that the Appellate Division did not adjudicate Castillo's Confrontation Clause claim on the merits, which respondent concedes was properly presented to it (Resp. Mem. 12), nor did it rule that any constitutional error was harmless beyond a reasonable doubt. Both the merits of the constitutional claim, and the degree of harm of any error, thus remain to be adjudicated de novo by this Court.
As is often the case when navigating the procedural complexities of habeas corpus, determining the proper standard of review turns out to be more difficult and more uncertain than resolving the issues presented on the merits. Even assuming that the trial court should have permitted the effort to impeach Sormani with the complaint, such an error does not necessarily amount to a denial of Castillo's constitutional right to confrontation. Routine evidentiary rulings by a state trial court generally do not give rise to violations of the United States Constitution cognizable on habeas corpus, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), unless they are "so pervasive as to have denied [petitioner] a fundamentally fair trial." Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985).
The same rule applies with specific reference to the Confrontation Clause. "All erroneous rulings that improperly restrict cross-examination under state or federal rules of evidence do not necessarily implicate the Confrontation Clause."Harper v. Kelly, 916 F.2d 54, 57 (2d Cir. 1990). See also Henry v. Speckard, 22 F.3d 1209, 1218 (2d Cir. 1994) (Leval, J., concurring) (explaining that cases finding Confrontation Clause violations typically involved gross foreclosures of the opportunity to show bias or disability, not simply a partial curtailment). The Second Circuit's decision in United States v. Roldan-Zapata, 916 F.2d 795 (2d Cir. 1990) is particularly instructive. There, as here, the trial court precluded the defense from impeaching a police witness with inaccuracies in reports based on information the witness had provided and with allegations in the complaint sworn to by the witness. Id. at 806. The Court of Appeals, like the Appellate Division here, found the rulings "problematic."Id. at 806, 806 n. 1. However, it found that the arguably erroneous limitations on cross-examination did not even reach the level of reversible error on direct appeal, much less a violation of constitutional confrontation rights warranting habeas relief from a state conviction:
As long as a defendant's right to confront the witnesses against him is not violated, limitations on cross-examination are not grounds for reversal. Cross-examination is not improperly curtailed if the jury is in possession of facts sufficient to make a "discriminating appraisal" of the particular witness's credibility.Id. at 806 (internal citations omitted). Here, Castillo's lawyer was afforded ample opportunity to cross-examine Sormani, and utilized the cross-examination to specifically raise doubts about the credibility of Sormani's testimony regarding seeing people in cars giving money to Castillo. (Tr. 68-101, 105-06.) While accepting the Appellate Division's conclusion that sustaining the objection to counsel's proposed line of questioning was error as a matter of state law, there is no basis for concluding that the ruling denied Castillo his constitutional right to confront the witnesses against him.
Some restrictions on cross-examination may be so critically important that they deny a defendant's constitutional right of confrontation. For example, in Henry v. Speckard, 22 F.3d 1209, 1214-15 (2d Cir. 1994), the Court of Appeals held that the refusal to permit cross-examination that would have demonstrated a witness's bias was a denial of a defendant's right to confront his accuser because "[a] complete bar on examination into bias would impermissibly deny the jury information `central to assessing [the witness's] reliability." Id. at 1215, quotingVan Arsdall, 475 U.S. at 677 (Kearse, J.) (Judge Pollack joined this point in his dissent. See id. at 1218-19. Judge Leval found no constitutional error even on the facts of Henry. See id. at 1217-18.) However, no such complete denial of inquiry into a fundamental subject occurred here.
Even if there were such an error, it was harmless. InGutierrez, the Court of Appeals held that where a state court decision rests on an application of Chapman's constitutional harmless error standard, habeas is only available if the state court's decision applied that standard unreasonably. 389 F.3d at 306.See 28 U.S.C. § 2254(d)(1) ("An application . . . shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law."). As noted above, it is not clear that the Appellate Division considered the error to be of constitutional magnitude, raising the possibility that it did not applyChapman at all. In that event, the question for this Court on habeas would be whether any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abramson, 507 U.S. 619, 637 (1993), quotingKotteakos v. United States, 328 U.S. 750, 776 (1946).
Under both standards, the Appellate Division correctly found that the failure to permit cross-examination regarding the complaint was harmless. First, as noted above, Sormani's testimony was effectively cross-examined, and the jury was given adequate opportunity to assess his credibility, even without the attempted impeachment regarding the complaint. Second, unlike a case such as Henry, which relied on the testimony of a single accuser, the evidence here included the testimony of two other officers who saw essentially the same incriminating conduct of Castillo to which Sormani testified. Moreover, the fact that Castillo had a key to the apartment to which he had no legitimate connection, containing the stash of cocaine and packaging materials, and that Castillo was observed by an officer other than Sormani using that key repeatedly to enter the apartment during his encounters with double-parkers further support the verdict. The impeachment evidence was not critical to evaluating Sormani's credibility, and Sormani was not critical to the case against Castillo. The Second Circuit has frequently denied habeas in cases with similar facts, based on findings that the potential Confrontation Clause violations were harmless. See Henry, 22 F.3d at 1216 (finding harmless error in light of the cross-examination that was permitted at trial); Victory v. Bombard, 470 F.2d 66, 70 (2d Cir. 1978) (finding exclusion of a transcript was harmless error due to the testimony of other witnesses at trial). Any error of the trial court in this regard therefore did not have a substantial influence on the outcome of the trial, and was harmless beyond a reasonable doubt.
II. Unsealing the Search Warrant
Castillo argues that the state courts denied his rights to due process, effective assistance of counsel, and his right of appeal by denying his motions to unseal the search warrant and underlying affidavit that provided the basis for the apartment search. Respondent contends that Castillo's argument amounts to an attack on the state courts' resolution of his motion to suppress evidence for violation of the Fourth Amendment, and therefore is not cognizable on habeas corpus under Stone v. Powell, 428 U.S. 465 (1976) and Capellan v. Riley, 975 F.2d 67 (2d Cir. 1992).
Castillo's claims arise out of a motion to suppress evidence obtained during a search of the basement apartment, on the ground that the search was constitutionally unreasonable. The search was conducted pursuant to a warrant, and therefore suppression of the evidence would only be constitutionally required if "the magistrate [issuing the warrant] abandoned his detached and neutral role . . . [or] the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." United States v. Leon, 468 U.S. 897, 926 (1984). Castillo's motion questioned the existence of probable cause, and thus faced an uphill battle. The state court ultimately found that the search warrant application established probable cause to search the apartment. Under Stone v. Powell, that determination may not be challenged on the merits on habeas corpus, provided that the State "has provided an opportunity for full and fair litigation of [petitioner's] Fourth Amendment claim." 428 U.S. at 481.
In arguing against the state courts' refusal to unseal the warrant affidavit, and in characterizing his objection as a due process claim, Castillo does not appear to be arguing that "evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. Instead, he appears to assert that New York denied him precisely the "full and fair opportunity to litigate" his Fourth Amendment claim that Stone v. Powell presupposes. Thus, Castillo's petition, viewed liberally as a pro se claim must be, can be taken as claiming that he was denied a reasonable opportunity to bring a Fourth Amendment claim.
But Castillo's effort to plead around Stone v. Powell cannot succeed. The Second Circuit has rejected efforts to evade Stone v. Powell's mandate by attacking the specific application of state procedures to individual suppression motions:
In the wake of Powell, this Circuit has developed a litmus test to discern when a state prisoner has been denied an opportunity for full and fair litigation of his [F]ourth [A]mendment claims. See Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038 (1978). Gates noted that "all that the [Supreme] Court required was that the state . . . provide the opportunity to the state prisoner for a full and fair litigation of the Fourth Amendment claim. . . ." Id. at 839 (emphasis in original). We concluded that review of [F]ourth [A]mendment claims in habeas petitions would be undertaken in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process. Id. at 840; see McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 70 (2d Cir. 1983).Capellan, 975 F.2d at 70. Castillo does not, and cannot, contend that New York has not provided corrective procedures.Id. at 70 n. 1 (noting that the federal courts have approved New York's procedure for litigating Fourth Amendment claims). Accordingly, he must argue that the refusal to unseal the affidavit to facilitate his attack on the warrant constituted an "unconscionable breakdown" of fair procedure. Id. at 70.
The Second Circuit has made clear, however, that this category is reserved for rather extraordinary situations, such as where "the process furnished was `claimed to be meaningless [because] the totality of state procedures allegedly did not provide rational conditions for inquiry into federal-law . . . questions.'" Id. at 70, quoting Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.Rev. 441, 457 (1963). The procedure followed here amounted to an in camera review of the warrant for facial sufficiency, plus an ex parte examination by the court of the officer who signed the affidavit, in order to determine the integrity of the officer's contention that he received certain information from a reliable confidential informant. While these procedures may have hampered Castillo's ability to present argument to the court, that "does not mean that the [state courts] failed to conduct `a reasoned method of inquiry into relevant questions of fact and law.'" Id. at 71, quoting Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987). Indeed, the Appellate Division here found that the sealing of the affidavit "did not impair [Castillo's] ability to litigate the suppression issue." Castillo, 765 N.Y.S.2d at 323. The state court's finding must be respected. See 28 U.S.C. §§ 2254(d)(2), 2254(e)(1) ("[A] determination of a factual issue shall be presumed to be correct.").
New York's procedures for sealing a search warrant to protect the identity of a confidential informant and conducting in camera inquiries into probable cause are long-established parts of the New York procedure for adjudicating Fourth Amendment claims. They are not aberrations, but an integral part of the New York procedure for litigating such claims, and were found to be adequate in Gates and Capellan. See People v. Juan Castillo, 80 N.Y.2d 578, 584-85 (1992) (approving ex parte, in camera review of a search warrant application, where the judge personally examined the informer at a suppression hearing);People v. Darden, 34 N.Y.2d 177, 181 (1974) (explaining that conducting in camera inquiry is a prudent procedure where the informer's identity is not revealed). Courts in this Circuit have specifically rejected habeas petitions arguing that theDarden-Castillo procedure fails to provide a full and fair opportunity to litigate suppression issues. See Angeles v. Greiner, 267 F. Supp. 2d 410, 417 (E.D.N.Y. 2003); Hunte v. Keane, No. CV 97-1879 (RR), 1999 WL 754273, at *9-11 (E.D.N.Y. Aug. 24, 1999). See also United States v. Johns, 948 F.2d 599, 606 (9th Cir. 1991) (approving similar procedure).
Since the Appellate Division rejected Castillo's claim regarding the unsealing of the warrant on the merits, that claim may only succeed if it is contrary to, or is an unreasonable application of, Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Castillo cites no Supreme Court case, and this Court is aware of none, which condemned the practice of evaluating the showing of probable cause without providing a copy of the search warrant to the defendant. The state courts denied Castillo access to the affidavit on the ground that its disclosure would compromise the safety of the informant. The Supreme Court has recognized a privilege to withhold the identify of a confidential informant, unless "the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro v. United States, 353 U.S. 53, 60-61 (1957). Determining whether such a privilege can be overcome is a matter of "balancing" that "must depend on the particular circumstances of each case." Id. at 62. This Court cannot say that the state courts here arrived at an unreasonable application of this balancing test. Consequently, Castillo's claim cannot succeed, whether viewed as a matter of due process or of unreasonable search and seizure.
III. Cruel and Unusual Punishment
Finally, Castillo claims that his sentence of 15 years to life in prison violates the Cruel and Unusual Punishment Clause of the Eighth Amendment because it is disproportionate to the offense of which he was convicted. The Appellate Division rejected this argument on the merits. Castillo, 765 N.Y.S.2d at 323. Its conclusion therefore may not be disturbed unless its ruling is contrary to, or an unreasonable application of, Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Far from being an unreasonable application of Supreme Court precedent, the Appellate Division's conclusion is in fact compelled by Harmelin v. Michigan, 501 U.S. 957 (1991). In Harmelin, the Supreme Court upheld a mandatory sentence of life in prison without parole for the possession of 672 grams of cocaine. Castillo was sentenced to a life term, parolable after 15 years, for the possession of 19 1/4 ounces (nearly 550 grams) of cocaine. There is no plausible argument, in light of current Supreme Court precedent, that Castillo's sentence violates the Eighth Amendment.
CONCLUSION
For the reasons set forth above, Castillo's petition for a writ of habeas corpus is denied. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000) (upholding issue of a certificate of appealability upon finding of a substantial showing that a constitutional right had been denied).