Opinion
01 Civ. 9865 (LAK)(GWG)
July 30, 2002
REPORT AND RECOMMENDATION To the Hon. Lewis A. Kaplan
I. BACKGROUND
A. Procedural History
This case is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The pro se petitioner, Juan Garbez, is currently an inmate at the Green Haven Correctional Facility. On May 31, 1995, Garbez was convicted, after a jury trial, of Murder in the Second Degree (New York Penal Law § 125.25[1]), Criminal Possession of a Weapon in the Second Degree (New York Penal Law § 265.03[2]), and Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02[4]). Garbez was sentenced to concurrent prison terms of 25 years to life for the murder count, 5 to 15 years for the second-degree weapon possession count and 2-1/3 to 7 years for the third-degree weapon possession count.
B. Summary of Evidence at Trial
1. The Prosecution's Case
Garbez's conviction stems from the killing of Eric Pena on June 29, 1991. At that time, Basilio Santos ("Junior"), Anthony Acevedo and Eric Pena were long-time friends who worked as drug-dealers on West 162nd Street, between Broadway and St. Nicholas Avenue in Manhattan. (Junior: Tr. 95, 97, 167-68; Acevedo: Tr. 188-91, 220, 228-30). Another long-time friend of the three was Dino Rambharose ("Dino"), who spent time with them on West 162nd Street. (Dino: Tr. 422-23, 439-40). Garbez at that time was also a drug-dealer on West 162nd Street. (Junior: Tr. 102-04; Acevedo: Tr. 152-54, 192-93, 237; Dino: Tr. 445-46). Garbez received the nickname "Flaco" (Spanish for "thin") because he had a very thin build. (Garbez: Tr. 579). Garbez worked for "Repollo" and "El Primo," transacting drug deals from Apartment 3 at 518 West 162nd Street. (Acevedo: Tr. 154, 232).
"Tr." refers to the transcript of the trial in People v. Garbez, No. 3058/94, Supreme Court, New York County.
At 1:00 a.m. on June 29, 1991, Garbez was selling cocaine in Apartment 3 and Pena was bringing in a customer. (Acevedo: Tr. 195, 197). Acevedo was also in the apartment buying drugs. (Acevedo: Tr. 195). Garbez and Pena began arguing over money that was due to Pena for escorting customers to Garbez. (Acevedo: Tr. 195). During this argument, Pena punched Garbez in the face, cutting him near his left eye. (Acevedo: Tr. 196). The argument between Pena and Garbez started inside Apartment 3, but had moved outside by the time Pena punched Garbez. (Dino: Tr. 426). Dino was in front of the apartment at the time and witnessed the fight between Garbez and Pena. (Dino: Tr. 426, 448). After the fight ended, Garbez and Pena shook hands. However, Dino became suspicious when he overheard Repollo tell Garbez, "Don't worry about it. [We] can take care of it." (Dino: Tr. 426-29). Dino also overheard Repollo tell Garbez that there was a gun in the closet. (Dino: Tr. 426-29).
Later that same day, Junior was gathered with some friends in front of 520 West 162nd Street. (Junior: Tr. 111). The weather was hot and sunny. (Junior: Tr. 112). Between 5:30 p.m. and 6:00 p.m., Junior informed his friends that he was leaving to buy beer. (Junior: Tr. 111). As Junior went to the store, crossing over West 162nd Street, he heard gunshots coming from 512 West 162nd. (Junior: Tr. 112-13). 512 was directly across the street from where Junior was standing at the time he heard the shots. (Junior: Tr. 113). Immediately after the shots were fired, Junior looked over his shoulder and saw Garbez standing over Pena holding a gun. (Junior: Tr. 113). Garbez was approximately three or four feet away from Pena. (Junior: Tr. 114). Junior saw Pena lying on the stoop of 512 and Garbez standing on the sidewalk. (Junior: Tr. 114). As Junior moved towards Pena, in an attempt to render aid to his friend, Garbez pointed a nickel-plated pistol at him and told him to "back up." (Junior: Tr. 114-16). After Garbez fled the scene, Junior placed Pena in a cab and took him to Columbia Presbyterian Medical Center. (Junior: Tr. 117).
Immediately prior to the shooting, at approximately 6:00 p.m., Acevedo was sitting in front of 518 West 162nd Street, when he noticed Pena leaving building number 523. (Acevedo: Tr. 201). During this same period of time, Acevedo also noticed Garbez sitting on the stoop of number 518. The next thing Acevedo remembered was multiple gunshots coming from the front of building 512. (Acevedo: Tr. 202). Immediately after Acevedo heard the shots, he observed Garbez standing in the middle of the street waving a nickel-plated revolver. (Acevedo: Tr. 202-06). Acevedo then heard Garbez say "I don't want to shoot you," but because Acevedo was ducking behind a car he could not determine to whom Garbez was talking. (Acevedo: Tr. 202-06). Acevedo saw that the gun that Garbez was holding was the nickel-plated revolver that he had previously seen in Apartment 3 at 518 West 162nd Street. (Acevedo: Tr. 202-06).
Rosetta and Richard Doss, residents of 518 West 162nd Street, testified that from inside their fifth floor apartment they heard gunshots and screams. (Rosetta: Tr. 277-78; Richard: Tr. 313). Rosetta and Richard looked outside the window and saw a man standing in the middle of the street holding a silver-colored handgun. (Rosetta: Tr. 278-80; Richard: Tr. 310-12). Neither Richard nor Rosetta could see the man's face. (Rosetta: Tr. 278-80; Richard: Tr. 310-15). Richard, however, recognized the man as Garbez by his walk and his hairstyle. (Richard: Tr. 312). Rosetta was unsure if Garbez was the man she saw holding the gun, but she did notice that the man was thin. (Rosetta: Tr. 294-96).
Teo Ortiz was also on the block at the time of the shooting and saw a man firing a large nickel-plated pistol. (Ortiz: Tr. 380-81). Ortiz could not see the man's intended victim, but he saw that the first shot struck a column in front of 512 West 162nd Street, and that the second and third shot hit someone. (Ortiz: Tr. 383-87). While Ortiz did not recognize the shooter, he noticed that the man was about 5'8" tall, "Spanish" and thin, with short hair and a bandage on his face. (Ortiz: Tr. 382). Ortiz, Junior, Acevedo, Rosetta and Richard all witnessed the shooter (whom some knew to be Garbez) flee the scene towards St. Nicholas Avenue while holding the nickel-plated gun. (Junior: Tr. 116; Acevedo: Tr. 207; Ortiz: Tr. 384; Rosetta: Tr. 285; Richard: 314).
Subsequently, Police Officer Patrick Callahan arrived at the scene to investigate the shooting. (Callahan: Tr. 24-25). At the crime scene, Callahan learned that Pena had been taken to Columbia Presbyterian Medical Center. (Callahan: Tr. 42-44). When Callahan arrived at the hospital, he spoke to Junior who identified Garbez as the shooter. (Callahan: Tr. 50-52). Junior described Garbez as a Hispanic man, 5'7" tall, with a mustache and a bandage under his eye, who was wearing a black cut-off shirt and black jeans. (Callahan: Tr. 50). Detective Anthony Imperato was also assigned to the shooting. (Imperato: Tr. 353-54). Imperato first spoke to Junior at the hospital and then spoke to seven or eight witnesses at the 34th Precinct. (Imperato: Tr. 356). All of the witnesses at the precinct identified Garbez as the shooter. (Imperato: Tr. 356-57). A few weeks later, with the assistance of Detective Gennaro Giorgio, Imperato prepared a "wanted" flyer bearing Garbez's name and photograph. (Giorgio: Tr. 337-38; Imperato: 358-59). While prior to the shooting Garbez had been seen on West 162nd Street on a daily basis (Gilmore: Tr. 75), afterwards Garbez was not seen on the street by Junior, Acevedo, Dino or Richard. (Junior: Tr. 130-31; Acevedo: Tr. 212; Dino: Tr. 432; Richard: Tr. 315-16).
A few years later, on March 31, 1994, Detective Joel Potter, received information from a confidential informant that Garbez would be in a park at West 190th Street and Amsterdam Avenue that evening. (Giorgio: Tr. 338-40; Potter: Tr. 413-14). A team of detectives arrested Garbez at 6:20 p.m. (Giorgio: Tr. 340). Approximately six hours later, Junior and Acevedo each identified Garbez in a lineup as the shooter. (Junior: Tr. 127; Acevedo: Tr. 210-11; Imperato: Tr. 362-68; Giorgio: Tr. 341-42).
2. The Defense's Case and Verdict
Following the presentation of the prosecution's case, Garbez testified in his own defense. Garbez testified that he could not sell drugs because of his health and his inability to speak English and that he had not argued with Pena in the early morning preceding the shooting. (Garbez: Tr. 520-21). Garbez testified that on the day of the shooting he was on West 162nd Street to purchase an automobile. (Garbez: Tr. 523). While Garbez was speaking to the man about purchasing the car, El Primo and Repollo came out of 512 West 162nd Street and told Garbez to leave the area because the police were around. (Garbez: Tr. 525-26). Several minutes later, Junior and Pena left the building with a customer. Junior and Repollo then had an argument about the customer. (Garbez: Tr. 526-28). During the argument, Junior asked Garbez to tell Repollo that the customer belonged to him. Garbez replied that he "[does not] sell drugs" and he "[does not] get involved in that problem." (Garbez: Tr. 529). After Garbez and Junior exchanged some insults, Junior punched Garbez in the face. (Garbez: Tr. 529). Garbez then saw Repollo pass a gun to El Primo. (Garbez: Tr. 531-32). Next, Garbez heard shots and he ran because he became frightened. (Garbez: Tr. 532-33). Subsequently, Garbez learned that he had been identified as the shooter. (Garbez: Tr. 534).
Following attorney summations and the jury charge, Garbez was convicted of Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. (Tr. 728-29). He was sentenced to concurrent prison terms of 25 years to life for the murder count, 5 to 15 years for the second-degree weapon possession count and 2-1/3 to 7 years for the third-degree weapon possession count. Transcript of Sentencing, June 21, 1995, at 8.
C. State Court Appeal
Represented by counsel, Garbez appealed to the Appellate Division, First Department. See Appellant's Brief, dated August 1999 ("App. Br."), reproduced as Exhibit B to Appendix in Support of Declaration Opposing Petition For A Writ of Habeas Corpus ("Appendix"). Garbez's brief alleged two grounds for relief. The first was that his guilt was not proved beyond a reasonable doubt by legally sufficient evidence and that the verdict was against the weight of the evidence. See App. Br. at 10-12. The second ground for relief was that the prosecutor's improper conduct deprived him of a fair trial. See id. at 13-16. Garbez argued that the prosecutor's summation comments attempted to divert the jury's attention by using phrases such as "drug dealing cesspools," "cocaine dealing in Washington Heights," "drug dealing punks having tantrums with their guns," "cocaine business" and "cocaine dealing." Garbez also argued that the prosecutor improperly referred to his demeanor as evidence of guilt and described him as a "punk" and still "wet." See id. at 13-16. Garbez further argued that he was deprived of a fair trial when the prosecutor quoted the Bible, saying "we have to remember the First Commandment is: Thou shalt not kill." See id. at 13-16.
The Appellate Division affirmed the judgment of conviction on April 13, 2000. See People v. Garbez, 271 A.D.2d 277 (1st Dep't 2000). With respect to Garbez's first claim, the Appellate Division ruled that "[t]he verdict was based on legally sufficient evidence and was not against the weight of the evidence," and that "[t]here was ample evidence from which defendant's guilt could be reasonably inferred." Id. With regard to Garbez's second claim, the Appellate Division held that "[t]he prosecutor's summation comments on the defendant's demeanor were relevant to defendant's credibility as a witness and did not deprive him of a fair trial." Id. The Appellate Division also ruled that the "[d]efendant's remaining claims of prosecutorial misconduct are unpreserved" and that it would "decline to review them in the interest of justice." Id. The Appellate Division went on to state that "[w]ere we to review these claims, we would find no basis for reversal." Id.
Appellate counsel, on Garbez's behalf, sought leave to appeal to the New York Court of Appeals. In the leave application, appellate counsel presented only the issue of prosecutorial misconduct. See Appendix, Exhibit E. After the People opposed that application see Appendix, Exhibit F, Garbez sought to supplement the leave application pro se. While Garbez's actual pro se application is not contained in the record, a later letter from Garbez to the Court of Appeals makes clear that his application had raised the claims regarding the sufficiency and weight of the evidence. See Appendix, Exhibit G. On July 21, 2000, the New York Court of Appeals denied Garbez's leave to appeal. See People v. Garbez, 95 N.Y.2d 852 (2000). Garbez did not file a petition for writ of certiorari to the United States Supreme Court.
D. The Present Petition
Garbez's pro se petition for writ of habeas corpus, dated October 1, 2001, was received by the Pro Se Office of this Court on October 10, 2001, and was filed on November 7, 2001. The grounds for relief asserted in his petition mirror those raised before the Appellate Division. Thus, Ground One asserts that the People failed to prove Garbez's guilt beyond a reasonable doubt and that the verdict was otherwise against the weight of the evidence. Petition for Writ of Habeas Corpus by a Person In State Custody, filed November 7, 2001 ("Petition"), at 3. Ground Two asserts that the prosecutor's improper comments deprived Garbez of a fair trial. Id.
II. APPLICABLE LEGAL PRINCIPLES
To obtain habeas corpus relief from a federal court under 28 U.S.C. § 2254, the petitioner must demonstrate that he or she is in state custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a). In addition, the petitioner must have exhausted all State remedies before seeking federal habeas relief. See 28 U.S.C. § 2254(b)(1); Dave v. Attorney General, 696 F.2d 186, 190 (2d Cir. 1982), cert. denied, 464 U.S. 1048 (1984). In order for a claim to be considered exhausted, it must have been presented fully and fairly in federal constitutional terms to the State courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Dave, 696 F.2d at 191.
If a petitioner fails to comply with a state procedural rule for presentation of an issue, that procedural default constitutes an adequate and independent ground for the state court decision that will "bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations and internal quotations omitted); accord Coleman v. Thompson, 501 U.S. 722, 735 (1991); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied 514 U.S. 1054 (1995). To show a "fundamental miscarriage of justice" requires a demonstration of "actual innocence." See, e.g., Calderon v. Thompson, 523 U.S. 538, 559 (1998). Although claims that are procedurally defaulted are deemed "exhausted" for habeas corpus purposes, they are not available for federal habeas review. See, e.g., Bossett, 41 F.3d at 829.
III. DISCUSSION OF CLAIM ONE: INSUFFICIENCY OF THE EVIDENCE AND VERDICT AGAINST THE WEIGHT OF THE EVIDENCE
A. Exhaustion and Procedural Default
Garbez properly presented his insufficiency of the evidence and weight of the evidence claims to the Appellate Division. See App. Br. at 10-12. In his appellate brief, Garbez presented his claim in constitutional terms by relying both on federal case law and the federal constitution in presenting his claim to the Appellate Division. See App. Br. at 10-12. Garbez also presented these claims to the New York Court of Appeals in his pro se "supplemental" leave application, with an explicit reference to federal constitutional law. See Appendix, Exhibit G. Because Garbez "fairly presented" the federal constitutional nature of his insufficiency of the evidence and weight of the evidence claims to the state courts, they are deemed exhausted.
B. The Merits of Claim One
1. Standard of Review
Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides:
Any application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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 (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 . . .
Under the AEDPA, federal courts must defer to the state court's determination of a habeas petitioner's federal claims on the merits. A state court ruling is "on the merits" even where the ruling does not discuss the federal claim or any federal law in its opinion adjudicating the state law conviction. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); see also id. at 311 ("Nothing in the phrase `adjudicated on the merits' requires the state court to have explained its reasoning process."). "A decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other ground," is considered adjudicated on the merits. Id. Here, the Appellate Division disposed of Garbez's claim on the merits and entered a judgment to that effect.
Where there has been a ruling on the merits, the AEDPA precludes federal habeas relief unless the state court's decision on that claim "was contrary to, or involved an unreasonable application of, clearly established federal law." 28 U.S.C. § 2254(d)(1). A decision is "contrary to" established federal law if it either (a) fails to apply the correct Supreme Court rule for deciding the particular claim, or (b) arrives at a result different from that reached in a "materially indistinguishable" Supreme Court case. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it unreasonably applies a governing legal rule to the particular facts of a case. Id. at 409. Thus, the federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was simply incorrect. Id. at 410. Even if a federal court exercising independent judgment would reach a different conclusion, federal habeas relief is available only if the state court's application of established Supreme Court law is unreasonable.
In this case, Garbez's insufficiency of the evidence claim is grounded in the Supreme Court's decision of Jackson v. Virginia, 443 U.S. 307 (1979). Although Garbez's claim differs from the precise claim raised in Jackson, Jackson represents a "generalized standard enunciated in the [Supreme] Court's case law" and thus the habeas court must examine whether the Appellate Division's decision "was an unreasonable application of this more general precedent." Kennaugh v. Miller, 289 F.3d 36, 42-43 (2d Cir. 2002) (applying the "unreasonable application" standard to Supreme Court precedent on suggestive identification procedures).
2. Legal Sufficiency of Evidence at Trial
The Due Process Clause of the Fourteenth Amendment prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 316. In a habeas corpus proceeding involving a claim that a petitioner has been convicted upon insufficient evidence, a challenge to the sufficiency of the evidence presents the question of "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319.
The Second Circuit has noted that "[a] defendant challenging the sufficiency of the evidence supporting his conviction bears a `heavy burden,' United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995) (quoting United States v. Sureff, 15 F.3d 225, 228 (2d Cir. 1994)), because the government receives the benefit of having all permissible inferences drawn in its favor, id. (citing United States v. Nersesian, 824 F.2d 1294, 1302 (2d Cir. 1987))." Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002). Moreover, a federal court on habeas review may not reassess the credibility of a trial witness' testimony. See, e.g., Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) ("Federal habeas courts are not free to reassess the facts specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution."); Soto v. Lefevre, 651 F. Supp. 588, 592 (S.D.N.Y. 1986), aff'd 812 F.2d 713 (2d Cir.), cert. denied, 482 U.S. 907 (1987).
Garbez argues that there was insufficient evidence to warrant a conviction because the prosecution "failed to produce any eyewitness who actually saw petitioner shoot the decedent." See Memorandum of Law In Support of Writ of Habeas Corpus Petition, filed November 7, 2001 ("Pet. Mem."), at 6. However, there is no requirement that a criminal conviction be based on direct evidence such as eyewitness testimony. Rather, the jury's verdict "may be based entirely on circumstantial evidence." United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.), cert. denied 516 U.S. 1001 (1995) (citing United States v. Libera, 989 F.2d 596, 601 (2d Cir. 1993)); accord Bossett, 41 F.3d at 830 (it is well settled that "a conviction may be based upon circumstantial evidence and inferences based upon the evidence, and the jury is exclusively responsible for determining a witness' credibility"); see Ricco v. Coughlin, 1987 WL 18663, at *5 (S.D.N.Y. Oct. 14, 1987) (circumstantial evidence sufficient to allow a rational trier of fact to find guilt beyond a reasonable doubt even where there was no eyewitness to the crime).
At Garbez's trial, the prosecution presented overwhelming evidence to support Garbez's conviction for the shooting of Pena, including eyewitnesses to the immediate aftermath of the shooting, even if there was no witness to the moment of shooting itself. As already described, Junior testified that after he heard gunshots he saw Garbez standing on the sidewalk over Pena holding a nickel-plated pistol. (Junior: Tr. 114). Junior also testified that as he approached Garbez and Pena, Garbez pointed the gun at him and ordered him to "back up." (Junior: Tr. 115-16). Acevedo, who had witnessed the argument between Garbez and Pena before the shooting, during which Pena punched Garbez in the face (Acevedo: Tr. 195-97), also testified that he witnessed Garbez waiving a nickel-plated revolver after the shooting. (Acevedo: Tr. 202-06). Acevedo also heard Garbez say "I don't want to shoot you" and testified that he recognized the revolver from the apartment that Garbez and Pena used for drug transactions. (Acevedo: Tr. 202-06). Dino not only witnessed the fight between Garbez and Pena prior to the shooting but also overheard Repollo tell Garbez, "Don't worry about it. [We] can take care of it." Dino further testified that he overheard Repollo tell Garbez that there was a gun in the closet. (Dino: Tr. 426-29).
Ortiz saw a thin "Spanish" man fire a large nickel-plated gun. (Ortiz: Tr. 380-83). Rosetta and Richard, after hearing the shots, saw a man in the street holding a silver-colored handgun. (Rosetta: Tr. 278-80; Richard: Tr. 310-15). Richard was able to identify the shooter as Garbez by his walk and hairstyle. (Richard: Tr. 312). Multiple witnesses observed Garbez flee the scene with a gun towards St. Nicholas Avenue. (Richard: Tr. 314; Acevedo: Tr. 207; Junior: Tr. 116).
Garbez argues that the People relied on the testimony of "two drug dealers, intoxicated at the time, who claimed that petitioner had walked away with a gun from the scene." See Pet. Mem. at 6. Garbez further contends that the testimony of the drug dealers "contradicted the People's other witnesses in the same location who did not see any gun in petitioner's hands." See id. However, it is the "responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 318-19 (quotations and citations omitted). The jury is "exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109 (1989)). Here, "the jury's decision was largely a matter of choosing whether to believe [the defense witnesses's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses, despite the inconsistencies in the evidence. . . ." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981). As was true in Gruttola, "[w]e cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence." Id. Thus, the Appellate Division's conclusion that Garbez's conviction was based on legally sufficient evidence was not contrary to, nor did it involve an unreasonable application of, clearly established Federal law.
For these reasons, the petition should be denied with respect to the insufficiency of the evidence claim.
3. Weight of the Evidence
Garbez's argument that the guilty verdict was "against the weight of the evidence," Pet. Mem. at 7, must be rejected for a different reason. In People v. Bleakley, 69 N.Y.2d 490 (1987), the New York Court of Appeals noted that a challenge to a verdict based on the weight of the evidence is different from one based on the sufficiency of the evidence. Specifically, the "weight of the evidence" argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. See Bleakly, 69 N.Y.2d at 495.
As a result, by raising a "weight of the evidence" argument, Garbez does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, Garbez raises an error of state law, which is not available for habeas corpus review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.") (citations omitted); Lewis v. Jeffers, 497 U.S. 764, 780 (1990). For these reasons, Garbez's claim with respect to the weight of the evidence must be dismissed. See, e.g., Kearse v. Artuz, 2000 WL 1253205, at *1 (S.D.N.Y. Sept. 5, 2000) (dismissing challenge to verdict against the weight of the evidence on the ground that `[d]isagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief'); Rodriguez v. O'Keefe, 1996 WL 428164, at *4 (S.D.N.Y. July 31, 1996) ("[a] claim that the verdict was against the weight of the evidence is not cognizable on habeas review"); accord Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("[a] federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the `weight' of the evidence. . . ."), cert. denied, 476 U.S. 1123 (1986).
IV. DISCUSSION OF CLAIM TWO: DENIAL OF FAIR TRIAL BY THE PROSECUTOR'S COMMENTS AND QUESTIONING
A. Exhaustion
The respondent argues that Garbez's prosecutorial misconduct claims are unexhausted. Respondent Memorandum of Law In Support of Declaration Opposing Petition For A Writ of Habeas Corpus ("Respondent Memorandum") at 25. The respondent concedes that Garbez presented to the Appellate Division and the Court of Appeals the same prosecutorial misconduct claims that he presented to this court in his habeas corpus petition. He asserts, however, that the "crux" of the arguments to the Court of Appeals were "based on state, not federal law." Id. Garbez's Appellate Division brief, however, explicitly referred to Garbez's right to a "fair trial" and cited to federal constitutional provisions. App. Br. 13. In addition, as was true in Garofolo v. Coomb, 804 F.2d 201 (2d Cir. 1986), the "claim of prosecutorial misconduct had sufficiently familiar federal constitutional implications to be within the mainstream of constitutional litigation." Id. at 206. Thus, Garbez "fairly presented" the constitutional nature of his prosecutorial misconduct claim because it was asserted in such a way as to call to mind a specific right protected by the Constitution and because he alleged facts that fall within the mainstream of constitutional analysis. Dave, 696 F.2d at 194.
B. Procedural Default
Some of Garbez's prosecutorial misconduct claims are not subject to federal habeas review, however, because they were disposed of by the New York State courts on an adequate and independent state ground. After ruling on the merits as to "[t]he prosecutor's summation comments on the defendant's demeanor," the Appellate Division explicitly held that Garbez's "remaining claims of prosecutorial misconduct are unpreserved" and that it would "decline to review them in the interest of justice." People v. Garbez, 271 A.D.2d 277 (1st Dep't 2000).
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris, 489 U.S. at 262 (citations and internal quotations omitted). It is of no moment that the Appellate Division also considered Garbez's arguments on the merits because "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, 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). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris, 489 U.S. at 264 n. 10.
Under New York law, in order to preserve his prosecutorial misconduct claims, Garbez was required to object at trial. New York's contemporaneous objection rule, Criminal Procedure Law § 470.05(2), has been held by the Second Circuit to be an adequate and independent state ground for procedural default. See Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999). Because New York law requires objection, and Garbez failed to comply with the state procedural law, Garbez's procedural default constitutes an adequate and independent ground for the state court decision that will bar federal habeas review. As Garbez has not demonstrated any cause for his procedural default, has not shown prejudice, and has not demonstrated a fundamental miscarriage of justice (that is, actual innocence), Garbez's prosecutorial misconduct claims — excluding the prosecutor's comments on Garbez's demeanor — are procedurally defaulted and thus cannot be reviewed by this Court.
C. The Comment on Garbez's Demeanor
During his summation, the prosecutor made the following comments:
Look at the defendant himself.
First, defense counsel asked you to bear in mind the demeanor of witnesses who came to court.
I ask you to do the same.
Did you watch [t]he defendant both when he was off the stand and on the stand? He smirked and made faces at witnesses. He smiled and waved at Detective Gilmore, like this is a big joke.
He has shown he has a very low opinion of these proceedings. He has a [l]ow opinion for the witnesses against him. He has a very [low] regard for the dignity of this Court and for his oath to testify truthfully before you. During his direct testimony, perhaps you noticed he hung his head. He wouldn't look his own law[y]er in the eye, drooped his head down.
Even the [i]nterpreter next [to] him had difficulty hearing him and understanding him.
When it came time to cross examine him, [t]he defendant, who was very evasive, volunteered gratuitous information which had nothing to do with the questions being asked.
He refused to give straight answers to very simple questions.
Think about his body language, his demeanor, his posture, manner in which he gave answers to you signaled punk.
(Tr. 672-73). Garbez argues that the prosecutor's comments about his demeanor during trial "struck an emotional and prejudicial chord in the jurors, leading to his conviction, not on the evidence but on his character." Pet. Mem. at 11. Garbez's challenge is reviewed according to the standard in 28 U.S.C. § 2254(d)(1).
To prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor engaged in "egregious misconduct . . . amount[ing] to a denial of constitutional due process." Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974)). "The prosecutor's comments upon summation must `so infect the trial with unfairness as to make the resulting conviction a denial of due process.'" United States v. Coriaty, 2002 WL 1358183, at *9 (2d Cir. June 21, 2002) (quoting Donnelly, 416 U.S. at 643). Even if a prosecutor's remarks are improper, "constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair." Id. at 355 (quoting Garofolo, 804 F.2d at 206). When considering whether the prosecutor's comments deprived the petitioner of a fair trial, it is of course necessary to "place th[e] remarks in context." Darden v. Wainwright, 477 U.S. 168, 179 (1986).
Here, the prosecutor's comments during summation did not rise to the level of misconduct at all. "The prosecutor's comments must be evaluated in light of the defense argument that preceded it." Darden, 477 U.S. at 179. In defense counsel's summation, he repeatedly attacked the credibility of the People's witnesses. For example, defense counsel made numerous references to the People's witnesses as "drug dealers" and "drug users." (E.g., Tr. 615, 620, 627). In addition, defense counsel informed the jury that they "were going to have to look at th[e] demeanor" of the witnesses to evaluate their credibility. (Tr. 613). In response to defense counsel's summation, the prosecutor offered the jury reasons, including Garbez's demeanor, why Garbez was not a credible witness. Just as defense counsel told the jury to look to the demeanor of the People's witnesses to assess credibility, the prosecution urged the jury to look to Garbez's demeanor to establish whether Garbez's testimony was credible. The prosecutor's remarks were invited by and in response to the defense counsel's summation and thus were not improper. See, e.g., United States v. Young, 470 U.S. 1, 12-13 (1985).
The Court is aware that some cases have held that a comment on the demeanor of the defendant may be improper on the theory that it unfairly draws attention to the defendant's right not to incriminate himself through testimony. See, e.g., United States v. Schuler, 813 F.2d 978, 980-81 (9th Cir. 1987) (citing cases); but see Maiello v. Edwards, 1998 WL 230956, at *5 (S.D.N.Y. May 7, 1998) (prosecutor's comments regarding the defendant's demeanor may be permissible) (citing cases). The cases finding such comments improper, however, uniformly involved defendants who had exercised their right not to testify at trial. Here, of course, Garbez chose to take the stand. By doing so, Garbez unquestionably put his own credibility — and thus his demeanor — at issue.
In any event, even when there has been prosecutorial misconduct, the claim must be evaluated in light of (1) the severity of the alleged misconduct; (2) the curative measures taken, and (3) the likelihood of conviction absent any misconduct. Blissett v. Lefevre, 924 F.2d 434, 440 (2d. Cir.) cert. denied, 502 U.S. 852 (1991). Here, if there could be said to be misconduct, it certainly was not severe. Second, the trial judge's instructions to the jury regarding summations were sufficient to safeguard the defendant's rights and ensure a fair trial. (Tr. 11-12, Tr. 687-88). The judge explained that the jury was free to accept or reject the lawyers' arguments during summation (Tr. 687-88), and also explained to the jury what constituted the evidence in the case. (Tr. 694). Finally, given the overwhelming evidence of guilt, it is a virtual certainty that Garbez would have been convicted even without the prosecutor's comment on his demeanor.
For these reasons, the prosecutor's comments did not deny Garbez a fair trial and thus the Appellate Division did not "unreasonably appl[y]" governing Supreme Court precedent in so concluding.
CONCLUSION
The Court should deny Garbez's petition for writ of habeas corpus.