Opinion
00 Civ. 2491 (DAB) (RLE)
November 13, 2002
Pro se Petitioner: Julio Clark #92-T-0175, Shawangunk Correctional Facility, Wallkill, N.Y.
Attorney for Respondent: Cheryl D. Harris, Bronx, N.Y.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se petitioner Julio Clark ("Clark") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on December 1, 1992, in New York State Supreme Court, Bronx County. Clark was convicted of murder in the second degree, and sentenced to a prison term of twenty-five years to life. He is currently serving his sentence at Shawangunk Correctional Facility in Wallkill, New York.
Clark challenges his conviction and asserts that: (1) he was denied the right to be present at all material stages of his trial in violation of the Confrontation Clause of the Sixth Amendment and his Fifth Amendment right to due process; and (2) material evidence was withheld from him in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Respondent argues that (1) Clark's right to be present at sidebar during voir dire involves issues of state law and not federal law; (2) claims of violations of People v. Rosario, 9 N.Y.2d 286 (1961), cannot be reviewed by this Court; (3) Brady is not violated when impeachment evidence of a witness is not turned over if that witness's credibility has already been called into question; and (4) the state court's decision regarding Clark's claims were neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. Respondent's Memorandum of Law ("Resp. Mem.") at 4, 9, 10, 13. For the reasons set forth below, I recommend that Clark's petition be DISMISSED.
II. BACKGROUND
A. Factual HistoryChristopher Johnson ("Johnson") was shot and killed in front of the Motthaven Project in the Bronx on March 12, 1991. Transcript of Second Trial (hereinafter "Tr2.") at 26, 27. Earlier, Johnson had been walking with a friend, Marcus Calvary ("Calvary"), when the two were approached by Clark. Id. at 28. Clark noticed the coat Johnson was wearing and offered to buy or trade for it. Id. Johnson declined to give his coat to Clark, and Clark left. Id. Moments later, Clark returned and began to chase Johnson with a gun. Id. at 29. Clark caught Johnson, spun him around, and shot him four times in the chest. Clark then grabbed Johnson's coat, covered the gun with the coat, and ran towards the project. Id. at 30. Clark, a familiar figure in the neighborhood, was seen both by Calvary and by a tenant in the project, Eva Munoz ("Munoz"), while chasing Johnson and during the shooting. 14 at 30, 33. Clark was arrested six weeks later. Id. at 35.
B. Procedural History
1. Trial Proceedings
Clark's first trial began on August 26, 1992, but ended in a hung jury. Transcript of First Trial (hereinafter "Tr") at 503 a. Voir dire for the second trial took place on October 15 and October 21, 1992. Jury Selection Transcript (hereinafter "J."). During voir dire, the judge called a number of jurors to the bench for a sidebar involving counsel for both Clark and the district attorney's office. J. at 31, 33, 37-41, 43, 69-70, 111, 113, 115. Clark was not present at any of the sidebar discussions. Id. The second trial began on October 21, 1992, and on November 4, 1992, Clark was found guilty on the charge of murder in the second degree. Tr2. at 334. He was sentenced on December 1, 1992. Respondent's Affidavit in Opposition ("Resp. Aff.") at 1.
2. Post-Trial Proceedings
On October 3, 1995, Clark filed a direct appeal to the Appellate Division, First Department, seeking to have the judgment vacated and a new trial ordered. Resp. Aff. at 2. Relying on People v. Antommarchi, 80 N.Y.2d 247 (1992), Clark alleged a violation of his right to be present at all material stages of the trial Id., Exh. 1 at 26. He also asserted that Munoz's prior conviction for disorderly conduct was evidence covered by Brady and New York Criminal Procedure Law ("C.P.L.") § 240.45, and should have been turned over to him prior to trial. Id., Exh. 1 at 34. On June 20, 1996, the Appellate Division, First Department, denied Clark's motion to vacate, noting that Antommarchi had only prospective application. People v. Clark, 644 N.Y.S.2d 236, 237 (1st Dept., 1996). The court also found Clark's claims relating to Munoz's conviction "without merit" because her conviction was sealed and the prosecutor's search revealed no prior convictions. Id. On July 18, 1996, Clark filed an application to the Court of Appeals for leave to appeal the denial of the motion to vacate, Resp. Aff., Exh. 6 at 1, which was denied on November 19, 1996. Id., Exh 11 at 1. On January 17, 1997, Clark filed a motion in the First Department to reargue his appeal Id., Exh. 12 at 1. The motion was denied on April 24, 1997. Id., Exh 15 at 1.
On August 12, 1996, Clark filed a motion in New York State Supreme Court, Bronx County, pursuant to C.P.L. § 440.10(1)(f), requesting an in camera review of the New York City Police Department and Bronx District Attorney files on his case, and seeking a vacatur of the judgment against him on the grounds that the files contained Rosario material not disclosed. Id., Exh. 7 at 1. Following an in camera inspection of both the district attorney's files and police department records, the court issued a supplemental order on December 4, 1998, finding that the inspection revealed neither Brady nor Rosario material Id., Exh. 17 at 1. Further, the court found that Munoz was not offered or given leniency, or a reduction of criminal charges, in exchange for her testimony. Id. On March 2, 1999, the First Department denied Clark leave to appeal. On April 3, 2000, he filed the instant petition. On July 7, 2000, this Court held that Clark's petition for a writ of habeas corpus was timely filed pursuant to 28 U.S.C. § 2254.
III. ANALYSIS
A. Subject Matter Jurisdiction
"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citations omitted). Questions of state law do not constitute grounds for habeas review. Clark's contention that he had a right to be present at sidebar during voir dire is derived from state law. See McKnight v. Superintendent Albauch, 2000 WL 1072351 *6 (S.D.N.Y. 2000); Zaire v. Mitchell, 1996 WL 82391 *3 (S.D.N.Y. 1996). "[T]here is not now and never has been a right guaranteed in the federal Constitution that a defendant be present at sidebar." Zaire, 1996 WE 82391 at *3; Siri-Fernandez v. Keane, 1999 WL 890777 *6 (S.D.N.Y. 1999); Wigfall v. Senkowski, 1999 WL 185271 *1 (S.D.N.Y. 1999). Accordingly, this Court does not have subject matter jurisdiction over Clark's voir dire claims.
Further, the Court lacks jurisdiction over any claims Clark may have made regarding Rosario violations. It is well established that " Rosario is grounded in the State's common law, and if petitioner was wrongly denied [material] he was entitled to receive under that doctrine, no violation of federal constitutional rights is presented." United States ex rel. Butler v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y. 1974). Therefore, "assuming the State courts were in fact in error in interpreting the scope of the Rosario rule, it was one of state law that is not subject to review under a petition for a federal writ of habeas corpus." Id.
While the Court does not have jurisdiction to review Clark's Rosario claims, the Court does have an obligation to construe the arguments of pro se litigants liberally. Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998). Therefore, although Clark's habeas petition does not explicitly mention a Brady violation, the Court construes his Rosario claim as a Brady claim. Further, Clark raised arguments alleging Brady violations in the state court proceedings. Accordingly, the Court does have subject matter jurisdiction to review those claims.
B. Exhaustion of Claims and Procedural Default
Pursuant to 28 U.S.C. § 2254(b), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). This requirement of exhaustion is "based on considerations of comity between federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their prisoners' federal constitutional rights." Warren v. McClellan, 942 F. Supp. 168, 170 (S.D.N.Y. 1996) ( citing Picard, 404 U.S. at 275).
To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state court, thereby affording the state court the "'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Picard, 404 U.S. at 275 ( quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). The Supreme Court has clarified this principle by holding that petitioners are required to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The standards for presenting federal constitutional claims to the state courts are not so stringent as to require the recitation of "book and verse on the federal constitution." Picard, 404 U.S. at 278 ( quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)). However, the state courts must be apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) ( quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) ( in banc ), cert. denied, 464 U.S. 1048 (1984)). The exhaustion requirement is fulfilled when the federal claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) ( quoting Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)). Petitioners can ensure that state courts are "alerted to the fact that [they] are asserting claims under the United States Constitution," Duncan v. Henry, 513 U.S. 365, 365-66, (1995), by presenting their claims in a fashion demonstrating:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) [an] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) [an] allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye, 696 F.2d at 194; Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984).
In addition to the constraints that the exhaustion requirement places on a petitioner's claim, procedural default and procedural bar may thwart his ability to pursue a claim on its merits. "[A] petitioner who procedurally defaults on his state court remedies is barred from obtaining federal habeas relief[.]" Jones, 126 F.3d at 414 ( citing Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994)); Coleman v. Thompson, 501 U.S. 722, 750 (1991). By failing to meet the state's procedural requirements, he "has deprived the state courts of an opportunity to address those claims in the first instance." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) ( quoting Coleman, 501 U.S. at 732). Federal habeas review is thus precluded where the petitioner fails to properly raise objections or fails to appeal to the state courts, unless the petitioner "can demonstrate cause for the default and actual prejudice . . . or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Harris v. Reed, 489 U.S. 255, 258 (1989). The Supreme Court has defined "cause" as a showing that "`some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) ( citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). The "fundamental miscarriage of justice" exception "is only available where the petitioner can supplement his constitutional violation with a 'colorable showing of factual innocence'" in the form of newly adduced evidence of innocence. Washington v. Superintendent, Otisville Correctional Facility, 1997 WL 178616, at * 7 (S.D.N.Y. Apr. 11, 1997) ( quoting McCleskey, 499 U.S. at 494); see also Schlup v. Delo 513 U.S. 298, 332 (1995).
Examples include: "(1) outside interference that makes compliance with state procedural rules impracticable; (2) 'a showing that the factual or legal basis for a claim was not reasonably available to counsel'; and (3) [i]neffective assistance of counsel.'" Washington v. Superintendent. Otisville Correctional Facility, 1997 WL 178616, at *6 (S.D.N.Y. Apr. 11, 1997) ( quoting McCleskey, 499 U.S. at 494 ( citing Murray, 477 U.S. at 488)).
Similarly, federal courts are generally procedurally barred from habeas review of federal claims when those claims have been defaulted "in state court pursuant to an independent and adequate state procedural rule[.]" Coleman, 501 U.S. at 750; Jones, 126 F.3d at 415. In other words, federal courts must not consider a federal law issue on direct review from a state court judgment "if that judgment rests on a state-law ground that is both 'independent' of the merits of the federal claims and an 'adequate' basis for the court's decision." Harris, 489 U.S. at 260. Such review is foreclosed "even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Therefore, a state court decision premised on an independent and adequate state ground, such as a procedural default, will bar federal habeas review of the federal claim. See Harris, 489 U.S. at 262; see also Jones, 126 F.3d at 414.
Clark claims that evidence of Munoz's disorderly conduct conviction was withheld in violation of Brady. These claims were presented to the Appellate Division and the Court of Appeals. Resp. Aff. at Exh. 1, 3, 6, 8. Because Clark has exhausted all of his state remedies as to this claim, it is reviewable by this Court. Picard, 404 U.S. at 275; Bossett, 41 F.3d at 828.
C. The Merits of the Brady Claim
1. Standard of Review
The Supreme Court has recently ruled that pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a writ of habeas corpus may only issue if one of two conditions is satisfied: "the state-court adjudication resulted in a decision that (1) was contrary to clearly established Federal law, as determined by the Supreme Court of the United States, or (2) involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362, 412 (2000) (citations omitted). A state court decision is contrary to" federal law "if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law" or if it "decides a case differently than [the] Court has on a set of materially indistinguishable facts." Id. at 413. It involves an "unreasonable application" of Supreme Court precedent "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case" Id. Finally, "clearly established Federal law, as determined by the Supreme Court of the United States" refers only to Supreme Court "holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision." Id. at 412.
State judicial determinations are afforded even more deference than before the passage of the AEDPA. Rodriguez v. Bennett, 1998 WL 765180 *3 (S.D.N.Y. 1998). In reviewing state court factual determinations, the Court "must apply a presumption of correctness . . . unless rebutted by clear and convincing evidence." Id. Further, "[w]hen reviewing a mixed question of law and fact, the federal court must defer to the judgment of the state court provided the state court determination does not constitute an "unreasonable application' of clearly established federal law as determined by the Supreme Court." Id. 2. Brady Violations
There are three components to a Brady violation. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). First, the evidence must be material and favorable to the accused, "either because it is exculpatory, or because it is impeaching." Id. Second, the evidence must have been suppressed by the State, either willfully or inadvertently. Id. Finally, the petitioner must demonstrate prejudice ensued because of the suppression. Id.
As to the second component, the First Department found that the prosecution did not suppress the evidence of Munoz's conviction because her conviction was sealed, and therefore was not discovered during a diligent search of the National Criminal Information Center and the New York State Identification Division. See Clark, 644 N.Y.S.2d at 237. The court's decision is not contrary to any "clearly established" federal law as determined by the Supreme Court. Indeed, the Supreme Court has yet to resolve a circuit split regarding the degree of knowledge imputed to the prosecutor in determining suppression of evidence in Brady cases. See Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d 801, 825 n. 36 (10th Cir. 1995) (noting, "[i]n the absence of actual knowledgethe circuits are somewhat split as to the precise contours of when knowledge by an arm of the State will be imputed to the prosecution."). Therefore, the state court's determination of Clark's Brady claim is not "contrary to" or an "unreasonable application" of "clearly established" federal law as determined by the Supreme Court.
Furthermore, Clark's Brady claim fails the first component of this Court's analysis. Clark claims that her conviction for disorderly conduct would have helped impeach her. While impeachment evidence in general falls under the umbrella of Brady, see United States v. Bagley, 473 U.S. 667, 676 (1985), "when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable," it will not be deemed material under Brady. See United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995); United States v. Vebeliunas, 164 F.3d 620 (2d Cir. 1998) (parallel citations omitted). In the instant case, Clark had already impeached Munoz on her drug dealing and drug use, Tr2. at 217, her conflicting reports to the police, Tr2. at 238, conflicts in her testimony in the two trials, Tr2. at 281, and her alleged deal to testify in exchange for help in moving out of her project and into a better neighborhood. Tr2. at 243. Her credibility had sufficiently been called into question to render the sealed conviction immaterial. Finally, although Clark alleges in his petition that Munoz agreed to testify at his trial to reduce her criminal conviction to disorderly conduct, the state courts found that there was no deal. Resp. Aff., Exh. 17 at 1. Therefore, the state courts did not engage in an unreasonable application of, or rule contrary to, clearly established federal law, and this claim should be DENIED.
IV. CONCLUSION
For the foregoing reasons, I recommend that the petition be DISMISSED.Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).