Opinion
02-CV-1351 (JBW); 03-MISC-0066(JBW)
October 21, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
The following statement of facts is suggested by the evidence:
On May 16, 1997, at approximately 1:50 a.m., petitioner and his co-defendant girlfriend. Kitt Jeter, got into a lively cab driven by Felix McLean, Upon arriving at the requested destination, petitioner jumped through the front bucket seats, put McLean's head into a lock, and pushed it against the driver's window. McLean then activated a device on the dashboard to notify the police of an emergency. Petitioner told McLean to "give him the money." McLean replied that he had just started working so he did not have any money. Petitioner responded by telling Jeter: "Take out the knife but don't cut him because he don't want to give me the money." (Trial Transcript 294) ("Tr."). Mclean felt something cold and hard on the back of his neck and believed it to be a knife. McLean still did not turn over any money. Petitioner turned to Jeter and said, "[t]ake out the gun because he don't want to give me the money," but instructed her not to shoot. (Tr. 297), McLean felt something pressed into his right side and believed it to be a gun, McLean then reached under his leg and handed petitioner a few one dollar bills and insisted that was all he had, Petitioner threatened to have Jeter shoot McLean if he did not hand over the rest of the money. McLean testified at trial that he continued to refuse, and petitioner reached over and took the rest of the money out of his back pocket. (Tr. 298-99). Petitioner and Jeter exited the cab.
McLean flagged down Police Officer Collora and pointed out petitioner and Jeter saying they had just robbed him. They were arrested moments later walking approximately twenty-five to thirty feet away from McLean's car, Collora found sixty-three dollars in petitioner's pocket. Neither petitioner nor Jeter were found to have any weapons. The officer did find two glass pipes on Jeter's person.
Petitioner and Jeter were charged with robbery in the first degree and other related charges. Jeter pled guilty to attempted robbery in the second degree and petitioner pled not — guilty. McLean was the only eye witness to testify at petitioner's trial.
Jeter was scheduled to be sentenced on September 2, 1997. A presentence report for Jeter, including a victim impact statement, was prepared by Probation Officer Kathleen McKenna prior to the sentencing. At Jeter's sentencing, Assistant District Attorney Rendelman who was unable to appear, sent Assistant District Attorney Babb in her place.
On November 25, 1997, Babb was assigned to petitioner's case.
On December 4, 1997, petitioner was convicted of robbery in the second degree, robbery in the third degree, grand larceny in the Fourth degree and petit larceny (which was later dismissed at sentencing).
On December 15, 1997, at petitioner's sentencing hearing, defense counsel was given a copy of petitioner's presentence report. Petitioner's presentence report included a summary of McLean's statements, which were included in the victim impact statement in Jeter's presentence report. The summary stated that, petitioner jumped into the front seat and McLean handed him $3,00, after which Jeter went through McLean's pocket and took an additional sum of money. See Exhibit A, Petitioner's Pro Se Traverse. Defense counsel had no prior knowledge of these statements. They conflicted with McLean's testimony at petitioner's trial, that it was petitioner, not Jeter, who reached into complainant's pocket during the course of the robbery.
On December 23, 1997, defense counsel moved to set aside the verdict pursuant to Section 330.30 of the New York Criminal Procedure Law claiming: (1) McLean's statement in Jeter's presentence report constituted Brady material that should have been turned over to defense by the prosecutor; and (2) McLean's statement was newly discovered evidence.
McLean and McKenna, the probation officer who interviewed McLean for the presentence report, testified at the hearing on the motion to set aside the verdict. Petitioner's motion was denied.
Petitioner was sentenced as a persistent violent felony offender and given concurrent prison terms of twenty years to life on the second degree robbery count, three and one-half to seven years on the third degree robbery count and one and one-half to three years on the grand larceny count.
The Appellate Division affirmed petitioner's conviction and held that the statements made in the co-defendant's presentenee report did not constitute Brady material. People v. Jamison, 276 A.D.2d 565 (2d Dept. 2000). The newly discovered evidence claim was found to be meritless. Petitioner's application for leave to appeal to the New York State Court of Appeals based on the Brady claim and the newly discovered evidence claim was denied. People v. Jamison, 95 N.Y.2d 965 (2001).
Petitioner filed a timely petition for a writ of habeas corpus. He raises two claims: (1) petitioner was denied his rights to due process and a fair trial where the prosecution failed to disclose Brady material until after petitioner's trial; and (2) the trial court abused its discretion in denying petitioner's motion to set aside the verdict on the grounds of newly discovered evidence.
II. Law
A. 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 tins 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 in any 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. 01-2290, 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(e)(1).
B. 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).
C. 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.
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 ruled `in any event* on the merits, such a claim is not preserved." 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.
III. Analysis of Claims
A. Brady Material Claim
Petitioner claims that the statements made by McLean in his co-defendant's presentence report constitute material evidence that the defense could have used at trial to impeach the State's sole witness. He contends that the report should have been turned over to defense pursuant to the prosecution's Brady obligation.
Three statements in the presentence report differ from McLean's testimony at trial: (1) difference in the number of hours McLean had been working the evening of the crime; (2) difference in which defendant, petitioner or Jeter, reached into McLean's pocket to grab the money; and (3) small differences between McLean's description of the event in the presentence report and the testifying police officer's recounting of McLean's description of the event. Petitioner claims that these statements would have supported his defense theory and provided useful material to impeach the credibility of the sole witness linking petitioner to the crime.
Constitutional error results from the suppression of material evidence "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different" United States v. Bagley, 473 U.S. 667, 682 (1985), The "reasonable probability" standard is not a question of "whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial." Kyles v. Whitley, 514 U.S. 419, 434 (1995). Thus, "a reasonable probability of a different result is shown when the government's evidentiary suppression `undermines confidence in the outcome of the trial,'" Id. (quoting Bagley, 473 U.S. at 678).
Petitioner states that the prosecution's obligation under Brady extends to material evidence that may be used for impeachment purposes. Under Brady, the prosecution in a criminal matter has a constitutional obligation to disclose exculpatory evidence to the defendant. 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, 405 U.S. at 154. "Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001) (citing Giglio 405 U.S. at 154); see also, United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995) (holding that impeachment evidence is material "where the witness at issue supplied the only evidence linking defendant(s) to the crime") (quotations omitted).
The nature of the inconsistencies between McLean's testimony during petitioner's trial and the statements he made to Jeter's probation officer do not undermine confidence in the outcome of petitioner's trial. This is true despite the fact that defense might have used the statements in cross-examining the government's sole witness' credibility. Cf. Payne, 63 F.3d at 1210 (holding that impeachment evidence is material "where the witness at issue supplied the only evidence linking defendant(s) to the crime") (quotations omitted).
The conflicting statements demonstrate that McLean's memory of that night was less than accurate, but not so inaccurate as to create a "reasonable probability that, had the evidence been disclosed . . . the result of the proceeding would have been different. Bagley, 473 U.S. at 682. To show constitutional error, petitioner must do more than show that the evidence was material. Petitioner must demonstrate that the uncovered suppressed statements suggest that in their absence he did not receive a fair trial.
Respondent claims that the prosecution was not required to turn over McLean's statement in the presentence report because defense could have obtained the report with due diligence. Respondent also notes that defense did not make a specific request for the production of the presentence report. Regardless of a defendant's request, "the government violates its duties under Brady if it suppresses evidence that, if disclosed, would have a reasonable probability of changing the outcome of the proceedings." Coppa 267 F.3d at 144 (citing Bagley, 437 U.S. at 681-82); see also, Payne, 63 F.3d at 1208 (holding that government's duty to disclose exists even if no specific disclosure request is made by the defense).
Respondent denies knowledge of McLean's statement in the presentence report, stating that the prosecution had only momentary possession of the report, and petitioner failed to prove that prosecution read this portion of the report. This is not an excuse for failure to disclose under Brady. The Supreme Court has held that given the fact that only the prosecution can know what is undisclosed, they have "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police," Kyles, 514 U.S. at 437. However, "the exact point at which government agents can fairly be categorized as acting on behalf of the prosecution, is uncertain," Chandras v. McGinnis, No. 01-Civ-2519, 2002 WL 31946711 *L, *7 (E.D.N.Y. Nov. 13, 2002).
There appears to be a conflict in the Second Circuit about whether exculpatory material in a presentence report must be disclosed under Brady. In Pina v. Henderson, the defendant had not specifically requested the report and later claimed a Brady violation based on the exculpatory statements of his co-defendant in the report. 752 F.2d 47 (2d Cir. 1985). The court held as a general rule that the report did not have to be disclosed because the reporting parole officer's knowledge of the exculpatory statement was not "imputed to the prosecutor," Id. at 49.
In United States v. Pena, the court recognized that the confidential nature of presentence reports must be balanced against a defendant's right to obtain exculpatory information. 227 F.3d 23 (2d Cir. 2000). The defendant in Pena had made a specific request for the report. Id. at 28. The court held that a presentence report should be reviewed in camera for exculpatory and impeachment information, and only those statements found needed to be disclosed. Id.
In the case at hand, Mclean's conflicting statements contained in the presentence report should have been disclosed by the prosecutor. None of the inconsistent statements were entitled to protection against disclosure.
Nevertheless, the failure to disclose them did not prejudice the petitioner in any way in his trial.
McLean's conflicting statements are not critical with respect to guilt. The failure to disclose the statements did not deny petitioner a fair trial nor constitute constitutional error under Brady and its progeny. The nature of the conflicting statements is not so striking as to "undermine confidence in the outcome of the trial." Kyles, 514 U.S. at 434; Bagley, 473 U.S. at 678, Habeas relief on this ground is not warranted. The quick apprehension of petitioner by the police and other circumstances provide such strong evidence of guilt as to minimize any possible prejudice.
B. Newly Discovered Evidence Claim
Petitioner claims that McLean's statements in Jeter's presentence report constitute newly discovered evidence that constituted grounds for setting aside the verdict under New York state law. Federal habeas corpus relief does not lic for mere errors of state law, Estelle v. McGuire, 502 U.S. 62, 68 (1951). 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 Ch. 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) (quotation omitted).
For essentially the reasons stated in subsection A, supra, petitioner's claim that the appellate court erred in failing to set aside the verdict based on the discovery of McLean's statements as newly discovered evidence does not rise to the level of a constitutional violation requiring this court's relief. Petitioner's due process rights were not violated. The claim is meritless.
IV. 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; Millter-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 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit. See Swatter 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").
V. Conclusion
The petition for a writ of habeas corpus is denied.
A certificate of appealability is granted with respect to petitioner's Brady claim. The certificate is denied with respect to petitioner's remaining claim having made no substantial showing of the denial of a constitutional right.
SO ORDERED.