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rejecting habeas petitioner's claim that appellate counsel was ineffective in failing to follow People v. Vasquez regarding claims which appellate counsel declined to raise in his brief on direct appeal
Summary of this case from Reid v. GiambrunoOpinion
99 Civ. 3094 (GBD)(FM)
June 13, 2002
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS
I. Introduction
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, petitioner Salvatore LoVacco challenges his conviction on one count each of Murder in the Second Degree and Robbery in the First Degree, in violation of N.Y. Penal Law §§ 125.25(3) and 160.15(2), following a trial in Supreme Court, New York County, before the Honorable Budd Goodman and a jury. The charges against LoVacco and two co-defendants arose out of their involvement in the theft of artwork from the apartment of fashion designer Bill Blass and the subsequent murder of William Giordano, the fence whom they had asked to dispose of the artwork. On January 15, 1993, LoVacco was sentenced to concurrent, indeterminate prison terms of twenty-one years to life on the murder count and five to fifteen years on the robbery count. LoVacco claims that the attorney who presented his appeal as of right to the Appellate Division, First Department, was ineffective. He also contends that his Sixth Amendment right to trial by jury and his Fourteenth Amendment due process rights were violated. For the reasons set forth below, I recommend that LoVacco's petition be denied.
Although LoVacco filed this proceeding pro se, the Court's official docket indicates that Barry M. Fallick, Esq. filed a notice of appearance on September 20, 2000. (See Docket No. 15). Thereafter, counsel never submitted any papers on LoVacco's behalf.
"Tr." refers to the trial transcript; "V." refers to the transcript of the jury voir dire.
A. Relevant Facts
The proof at trial established that during the early morning hours of April 1, 1991, LoVacco and three accomplices went to Blass's apartment building, where they held the doorman hostage and stole thirteen works of art from Blass's penthouse apartment. (Tr. 521-34). LoVacco's role was to hold the doorman at gunpoint and tape his eyes shut while two of the other men burglarized the apartment. (Id. at 246-48, 523). LoVacco and the others also stole some of the doorman's property before releasing him. (Id. at 249, 526).
The murder charges arose out of events a few weeks after the robbery. On April 21, 1991, LoVacco and his accomplices traveled to Giordano's store. While they were there, LoVacco removed all of Giordano's money and jewelry and, after securing the combination for a store safe, took a bag of coins. (Id. at 5 82-83, 592-95). LoVacco then handcuffed Giordano and turned up the volume on a radio before leaving the store with accomplice John Androvett following behind. (Id. at 594-95). After LoVacco and Androvett exited the store, they heard two gunshots. (Id. 595-96). Later that day, a witness discovered Giordano in the back of the store, "lying on the floor and bleeding through the mouth." (Id. at 108). Giordano was pronounced dead several hours later. (Id. at 127).
The proof at trial included the testimony of Androvett as a cooperating witness. Androvett's testimony with respect to the events of April 1 st was corroborated by an eyewitness identification. (Id. at 272-75). His testimony with respect to the events of April 22nd was corroborated by Giordano's cousin, who had entered the store on the day of the shooting and was introduced to LoVacco by Giordano. (Id. at 443, 449). Giordano identified LoVacco as a member of "the crew." (Id. at 453). LoVacco also was identified by William Monagle, a customer who entered the store while LoVacco and the others were inside. (Id. at 776-77).
B. Indictment
The indictment named LoVacco in all seven counts. (See Answer Ex. A). In connection with the events of April 1st, he was charged with Burglary in the First Degree and Robbery in the First and Second Degrees, in violation of N.Y. Penal Law §§ 140.30(4), 160.15(4), and 160.10 (1). In connection with the events of April 22nd, he was charged with two counts of Murder in the Second Degree (intentional murder and felony murder), and Robbery in the First and Second Degrees, in violation of N.Y. Penal Law §§ 125.25(1), 160.15(2), and 160.10(1).
C. Alleged Errors at Trial
1. VoirDire
Justice Goodman conducted an extensive voir dire, during which both he and counsel questioned potential jurors. (See V. 34-401). At one point, a prospective juror responded to a question by the Assistant District Attorney by remarking, "Somewhere I lost you when the Judge walked in." (Id. at 352). There is no other indication in the trial record that Justice Goodman actually was absent from the courtroom at this time. Moreover, LoVacco's counsel did not interpose any objection. Assuming that the Justice was in fact unavailable when the comment was made, he was absent for, at most, ten transcript pages during which only inconsequential questioning by counsel occurred. (See id. at 342-52).
Arthur P. Hopkirk, Esq., LoVacco's appellate counsel, did note in a letter to LoVacco that he had conferred with LoVacco's trial counsel, who indicated that Justice Goodman "had a habit of stepping into the hall during the case," although counsel recalled no "specific incidents" and "did not remember anything "prejudicial' happening." (Answer Ex. F (letter from Mr. Hopkirk to LoVacco, dated Nov. 22, 1995) at 2).
In a decision addressing LoVacco's claim that he had absented himself from the trial, Justice Goodman held that the record made "clear that the defendant's claims in this regard are without any basis in fact." (Answer Ex. I). He further observed that LoVacco "had failed to demonstrate any harm or prejudice" even if he could show that the Justice was outside the courtroom briefly during the voir dire. (Id.).
2. Ventimiglia Hearing
During the trial, the court held a hearing pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261 (1981), to determine whether the testimony of an accomplice witness regarding uncharged crimes would be allowed into evidence as part of the prosecution's direct case. Immediately prior to that discussion, defense counsel had requested and was granted permission for counsel to approach the bench. (Tr. 456). Because the next witness was unavailable, however, the jury was excused from the courtroom. (Id.). After the jury left the courtroom, Justice Goodman held the hearing. Although the transcript reflects the absence of the jury, there is no indication that the hearing actually took place at the bench and that LoVacco therefore was unable to participate, nor did counsel raise any such objection. (See id. at 457-67).
In the course of the colloquy concerning the evidence of uncharged crimes, Justice Goodman ruled that the prosecution could introduce evidence that LoVacco had participated in conversations regarding a bank robbery in Rochester, New York, and that LoVacco and one of his accomplices had unsuccessfully attempted to break into a night deposit vault on the night of the Blass burglary. (Id. at 457-59, 461-63). In addition, later in the trial, Justice Goodman determined that the prosecution could establish that LoVacco was present at the apartment of one of his accomplices on a date when proceeds of the Rochester bank robbery were displayed to a third party. (Id. at 648-49).
3. In-Court Identification
At trial, Michael Olivo, the son of the superintendent of Blass's apartment building, testified that on the night of the robbery he went into the lobby of the building after he heard the sound of glass breaking. (See id. at 272-73). There, he encountered LoVacco and two others who were removing the works of art. He identified LoVacco as one of the culprits, and testified that LoVacco had warned him, "Don't move or I'll shoot you." (Id. at 275, 277-7 8).
Outside the presence of the jury, LoVacco's counsel subsequently objected that this in-court identification was unduly suggestive because LoVacco was the only white person at the defense table and because Olivo's testimony had not been corroborated by any out-of-court procedure (such as line-up) before he was asked to point out the alleged perpetrator in court. (Id. at 280). The court overruled these objections. (Id.).
4. Evidence of Incarceration
During the cross-examination of Robert Rallo, an accomplice who had been called as a defense witness, the following exchange took place:
Q . . . Have you talked to [LoVacco] since his trial started?
A Uh-yes.
Q Over the phone?
A Yes.
Q In person?
A Yes.
Q Today?
A Yes.
Q So you weren't kept separated when you were in custody in the back, is that right?
A Yes we were. We were kept separate. I was walking by with two officers and [LoVacco] said, hey, how you doing. I said, what's up . . . [?]
(Id. at 1030-31). Although his counsel voiced no objection to this questioning at the time, LoVacco now contends that it improperly informed the jury that he was being detained during the trial. (Pet'r's Mem. at 77-78).
5. Rereading of Testimony
During its deliberations, the jury requested that certain testimony be reread. (Tr. 1372). Before this request was addressed, the court took a "short recess" during which LoVacco was removed from the courtroom. (Id. at 1371-72). The transcript does not indicate that LoVacco was brought back into the courtroom when the proceedings resumed. (Id.). On this basis, although there is no indication that LoVacco was actually outside the courtroom and LoVacco's counsel voiced no objection with respect to his alleged absence, LoVacco contends that he was not present during a material aspect of his trial. (Pet'r's Mem. at 58-59).
D. Verdict
On November 24, 1992, the jury returned a partial verdict acquitting LoVacco on the first degree robbery count arising out of the theft of the doorman's property on April 1st. (Tr. 1381). The following day, the jury reached a further partial verdict acquitting LoVacco on the intentional murder count, but adjudging him guilty on the felony murder count and the first degree robbery count arising out of his visit to Giordano's store on April 22nd. (Id. at 1401-02). The remaining burglary count, as to which the jury had not reached a verdict, was dismissed. (Id. at 1402).
E. Sentencing
LoVacco was sentenced on January 15, 1993, to concurrent indeterminate prison terms of twenty-one years to life on the felony murder count and five to fifteen years on the first degree robbery count. (Pet'r's Mem. at 21-22).
F. Subsequent Procedural History
1. Direct Appeal
Following his conviction, LoVacco was granted leave to appeal in, forma pauperis to the Appellate Division, First Department, and a new attorney, Arthur H. Hopkirk, Esq. of the Legal Aid Society, was assigned to represent him. (Pet'r's Mem. at 22). While LoVacco's appellate brief was being prepared, both LoVacco and his father (who is also incarcerated) sent letters to Mr. Hopkirk requesting that he raise on appeal the trial judge's alleged absence during voir dire. (See Answer Ex. C (letter from Mr. Hopkirk to LoVacco, dated July 28, 1995) at 2).
Due to space limitations, Mr. Hopkirk chose to include in his brief only two claims: that the evidence of uncharged crimes deprived LoVacco of a fair trial, and that LoVacco was entitled to a hearing to determine whether he was present at the Ventimiglia hearing. (Id. Ex. B (Pet'r's App. Br.) at 2). After filing his brief, Mr. Hopkirk sent LoVacco a letter, dated July 28, 1995, which indicated that he had omitted the absence claim because "any violation of the requirement that the judge be present was 'de minimis'" and "no complaint was ever made about the judge's absence." (Id. Ex. C at 2). Mr. Hopkirk nevertheless advised LoVacco that the absence claim was not frivolous and could be raised in a pro se supplemental brief. (Id.) After preparing and sending that letter, Mr. Hopkirk learned that a recent decision, People v. Toliver, 212 A.D.2d 346, 629 N.Y.S.2d 746 (1st Dep't 1995), had effectively overruled an earlier case on which LoVacco intended to rely with respect to the absence claim. Accordingly, in a second letter, also dated July 28th, Mr. Hopkirk advised LoVacco that "it would be a waste of time to raise [this issue] in a pro se brief" (Answer Ex. D).
LoVacco subsequently received permission from the Appellate Division to file a pro se supplemental brief (Pet'r's Mem. at 23). In that brief, LoVacco took issue with the sufficiency of the evidence of felony murder. (See Answer Ex. H). LoVacco also filed an "addendum" to this brief after the prosecution filed its opposition brief. (Id. Ex. K). In the addendum, he challenged the in-court identification of him by Olivo and the admission of the testimony by Rallo allegedly showing that he was in custody during the trial. Neither of LoVacco's pro se briefs raised the absence claim. (Id.).
The Appellate Division heard oral argument on the appeal on November 13, 1996. (Answer ¶ 22). Two weeks later, on November 27, 1996, Mr. Hopkirk requested permission to submit a post-argument claim based on a November 19, 1996, decision by the Court of Appeals which reversed the Appellate Division's decision in Toliver. (See id. Answer Ex. M (letter from Mr. Hopkirk to Hon. Betty Weinberg Ellern, dated Nov. 27, 1996)) (citing People v. Toliver, 89 N.Y.2d 843, 652 N.Y.S.2d 728 (1996)). After the prosecution opposed this request, (see id. Ex. N (Affirm. in Opp. to Mot. for Reargument)), the Appellate Division unammously affirmed LoVacco's conviction on December 5, 1996. People v. LoVacco, 234 A.D.2d 55, 650 N.Y.S.2d 672 (1st Dep't 1996). The court did not specifically address the issue of the trial judge's alleged absence during voir dire, but did state that LoVacco's remaining contentions were "without merit." Id., 234 A.D.2d at 56, 650 N.Y.S.2d at 672. A motion to reargue the appeal, (Answer Ex. P), was denied by the Appellate Division on February 4, 1997. (Id. Ex. T).
On December 24, 1996, while the motion to reargue was pending, Mr. Hopkirk petitioned the New York Court of Appeals for leave to appeal from the affirmance of LoVacco's conviction. (See letter from Mr. Hopkirk to Hon. Judith S. Kaye, dated Dec. 24, 1996 ("Dec. 24, 1996 Letter"); Answer Ex. R (letter from Mr. Hopkirk to Hon. Howard A. Levine, dated Jan. 16, 1997)). The Court of Appeals summarily denied that application on May 12, 1997. People v. LoVacco, 89 N.Y.2d 1096, 660 N.Y.S.2d 390 (1997).
The December 24, 1996, letter is not attached as an exhibit to the Answer, but was furnished to the Court by letter dated October 20, 2001. (See Docket No. 17).
2. Motion to Vacate Judgment
On October 10, 1995, while his appeal was pending before the Appellate Division, LoVacco filed a pro se motion, pursuant to N.Y. Crim. Proc. Law § 440.10, to vacate the judgment of conviction. (Answer ¶ 13 Ex. E (Aff. in Supp. of Mot. to Vacate J.)). LoVacco's motion was based on claims that the trial judge was absent at various points during the trial (including the voir dire) and that LoVacco had been excluded from the Ventimiglia hearing. (Id. ¶ 13 Ex. E ¶¶ 4, 5). On February 26, 1996, Justice Goodman denied the motion, in accordance with N.Y. Crim. Proc. Law § 440.10(2)(c), because both claims could have been raised as part of LoVacco's direct appeal and "from the record" appeared not to have "any basis in fact." (Id. Ex. I). In his decision, the Justice also mistakenly suggested that the Ventimiglia claim, which was part of LoVacco's pro se submissions, had been rejected by the Appellate Division. (Id.). In fact, the Appellate Division did not affirm LoVacco's conviction until December 5, 1996. LoVacco, 234 A.D.2d at 55, 650 N.Y.S.2d at 672.
3. Petition for Writ of Error Coram Nobis
On December 11, 1997, LoVacco applied pro se to the Appellate Division for a writ of error coram nob is, asking that court to vacate the affirmance of his conviction, assign new counsel, and rehear his direct appeal. (Id. Ex. V at 33). LoVacco contended that his assigned appellate counsel, Mr. Hopkirk, had violated his constitutional right to effective assistance of counsel by failing to (a) assert as part of LoVacco's direct appeal a claim based on the trial judge's alleged absence, (b) provide LoVacco with proper notice regarding his right to raise that claim pro se in accordance with the procedures set forth in People v. Vasquez, 70 N.Y.2d 1, 516 N.Y.S.2d 921 (1987), and (c) raise the issue of LoVacco's alleged absence during readbacks of trial testimony. (Answer Ex. V at 1). The Appellate Division summarily denied this petition on May 14, 1998. People v. LoVacco, 250 A.D.2d 1032, 675 N.Y.S.2d 480 (1st Dep't 1998).
4. Habeas Petition
Subsequent to the denial of his coram nobis petition, LoVacco commenced this proceeding. His petition was received by the Court's Pro Se Office on December 21, 1998. (See Docket No. 1). Although the petition references each of the claims that he advanced before the Appellate Division, the memorandum of law in support of LoVacco's petition makes clear that he is pressing only three claims: (a) the ineffective assistance of counsel claim that he previously raised in his petition for a writ of error coram nobis; (b) violation of his Sixth Amendment right to a jury trial and Fourteenth Amendment due process rights as a result of the trial judge's alleged absence during some of the voir dire; and (c) violation of his Fourteenth Amendment due process right to a fair trial as a result of (i) the admission of evidence of uncharged crimes and bad acts in the prosecution's direct case; (ii) an improper in-court identification; (iii) the prosecutor's error in revealing to the jury that LoVacco was incarcerated during trial; and (iv) the "cumulative effect of the errors." (Pet. ¶ 12; Pet'r's Mem. at 39, 68, 70).
On September 11, 1999, the Office of the District Attorney of New York County filed an answer to the petition on behalf of the Respondent. (Docket No. 11). In that answer, the Respondent contends that LoVacco's claims are procedurally defaulted and meritless. (Answer ¶¶ 43-55, 56-80).
In his Answer, the Respondent also contends that LoVacco's petition should be summarily denied because he failed to provide the Court with a copy of the record, as required by 28 U.S.C. § 2254 (f). (Answer ¶ 40). That provision, insofar as relevant, states that a petitioner who "challenges the sufficiency of the evidence adduced in [a] State court proceeding to support the State court's determination of a factual issue" must, "if able," provide the record. The Respondent's reliance on this provision is misplaced for two reasons. First, LoVacco does not appear to be challenging the sufficiency of the evidence in the State court proceedings. Second, because he is incarcerated and has limited access to the equipment and funds necessary to reproduce such a voluminous record, it is unlikely that he would have been "able" to comply. In any event, following a request from my Chambers, the Respondent has supplied the full record to the Court.
Thereafter, on November 29, 1999, LoVacco filed reply papers which are denominated as a "Traverse." (Docket No. 12).
Exhibit A to LoVacco's Traverse is a letter from LoVacco to Honorable Judith S. Kaye, dated Jan. 2, 1996. Although this letter is directed to the attention of the Honorable Stuart M. Cohen, a Justice of the Supreme Court, New York County, the mailing address confirms that it was sent to the Court of Appeals.
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). Rather, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). LoVacco bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
An 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.28 U.S.C. § 2254 (d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" 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 [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id., 529 U.S. at 409, 120 S.Ct. at 1521. This standard does not require that all reasonable jurists would agree that the state court was wrong. Id. 529 U.S. at 40 9-10, 120 S.Ct. 1495 at 1521-22. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)). Section 2254(d)(1) only applies, however, with respect to claims adjudicated on the merits in state court." Williams, 529 U.S. at 412, 120 S. Chat 1523.
Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "the [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Taylor, 529 U.S. at 409, 120 S.Ct. at 1510. As discussed below, however, LoVacco has failed to show that his conviction resulted from such constitutionally infirm proceedings in state court, and he therefore is not entitled to federal habeas relief.
B. Exhaustion of Claims
Under Section 2254, a person in state custody may not be granted a writ of habeas corpus unless it appears that the applicant has exhausted all available state court remedies or there is an absence of state corrective process, or circumstances render that process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254 (b)(1)(A), (B). Here, an effective state process plainly was available to LoVacco. See N.Y. Crim. Proc. Law § 450.10. Accordingly, to satisfy the statutory exhaustion requirement, LoVacco must show that he presented "the substance of the same constitutional claim that he now urges upon the federal courts to the highest court in the . . . state." Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (citations and internal quotations omitted). To meet this requirement, it is not necessary that the federal constitutional claim be presented to the state courts in haec verba rather, there are a number of ways in which the claim may be presented, including:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Dave v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982).
1. Ineffective Assistance of Appellate Counsel Claim
LoVacco raised his ineffective assistance of appellate counsel claim for the first and only time when he petitioned the Appellate Division for a writ of error coram nob is. His pro se brief focused on state case law, but it did allege violations of his Sixth and Fourteenth Amendment rights and rely on the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (See Answer Ex. V (Coram Nobis Pet. at 1, 16; Mem. of Law in Supp. of Coram Nobis Pet. at 1-2)). Accordingly, because LoVacco could not appeal the denial of the writ to the New York Court of Appeals, his presentation of this issue in state court was sufficient to exhaust his ineffective assistance of counsel claims. See People v. Adams, 90 N.Y.2d 927, 665 N.Y.S.2d 260, 261 (1997)("no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis"). See also Bragg v. Kuhlman, No. 97 Civ. 3025, 1998 WL 867245, at *2 n. 2 (S.D.N.Y. Dec. 14, 1998)(Stein, J.) (reviewing habeas petitioner's ineffective assistance of counsel claim after Appellate Division denied petition for writ of error coram nobis).
2. Jury Trial Claim
LoVacco's constitutional claims based on the alleged absence of the trial judge during jury voir dire were not fairly presented in state court because Mr. Hopkirk's letter seeking leave to appeal to the Court of Appeals on the basis of its reversal in Toliver relied solely on state cases and did not implicate any principles of federal law. (See Answer Ex. R). As a consequence, LoVacco's claims that he was deprived of his rights under the Sixth and Fourteenth Amendments to the United States Constitution are unexhausted.
A federal habeas court that is presented with such unexhausted constitutional claims may either stay the petition or dismiss it without prejudice so that the petitioner can return to state court to pursue exhaustion. See Duncan v. Walker, 536 U.S. 167, 182-83, 121 S.Ct. 2120, 2130, 150 L.Ed. 251 (2001)(Souter, J.)(concurrence); cf Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001) (discussing procedures applicable to "mixed" petitions containing both exhausted and unexhausted claims). In this case, however, this would be a futile exercise because LoVacco limited his jury trial claim on direct appeal to state law grounds and did not assert any federal constitutional claim. Pursuant to N.Y. Crim. Proc. Law § 440.10(2)(c), a defendant who has prosecuted a direct appeal may not subsequently seek collateral review of an issue that could have been raised on appeal but was not. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Accordingly, if LoVacco were to return to state court, his application for further consideration of his constitutional claim regarding the trial judge's alleged absence would be subject to dismissal on procedural grounds.
3. Fair Trial Claims
LoVacco advanced three principal fair trial claims on his direct appeal: that the prosecutor improperly revealed the fact that he was in custody during the trial; that evidence of uncharged crimes and prior bad acts was improperly admitted; and that Olivo's in-court identification of him was unduly suggestive.
Under New York law, a defendant must make a timely objection to an erroneous ruling or instruction by the trial court in order to preserve it for appeal. See N.Y. Crim. Proc. Law § 470.05(2). Accordingly, even if this Court were to find that they are exhausted, LoVacco's fair trial claims are, in part, procedurally defaulted.
In his Appellate Division brief, LoVacco's counsel specifically referenced the Fourteenth Amendment to the United States Constitution in his discussion of the alleged denial of LoVacco's due process right to a fair trial, thereby asserting those claims "in terms so particular as to call to mind a specific right protected by the Constitution." Daye, 696 F.2d at 194. Although LoVacco's appellate counsel subsequently sent letters to the Court of Appeals which failed to highlight the fair trial claims, (see Dec. 24, 1996 Letter; Answer Ex. R), LoVacco supplemented those submissions with his own letter to the Court of Appeals, which raised them and specifically referred to the Fourteenth Amendment. (See Traverse Ex. A. (letter from LoVacco to the Hon. Judith S. Kaye, dated Jan. 2, 1996, at 3). The fair trial claims consequently are exhausted.
Turning first to the prosecutor's alleged disclosure of LoVacco's incarceration during the cross-examination of a defense witness, the record plainly establishes that trial counsel failed to object. (See Tr. 1030-31). This claim therefore was unpreserved and is procedurally defaulted.
The fair trial claim arising out of the alleged improper introduction of uncharged crimes evidence requires a slightly more detailed analysis. In his habeas petition, LoVacco objected to the introduction of evidence concerning the Rochester bank robbery, in which one of his accomplices participated, as well as the attempt to break into the night deposit vault. (See Pet'r's Mem. at 70-75). As the Appellate Division noted, the claim based on the bank robbery was preserved through timely objections at trial and during the Ventimiglia hearing. LoVacco, 234 A.D.2d at 55, 650 N.Y.S.2d at 672. On the other hand, "[LoVacco's] arguments concerning other alleged uncharged crimes evidence [were] largely unpreserved, since the defendant either failed to object or objected on different grounds." Id. (citations omitted). This second aspect of LoVacco's fair trial claim is therefore procedurally barred in part.
The Respondent's Answer does not raise any issue of procedural default with respect to LoVacco's fair trial claims. Nevertheless, a federal court may raise the procedural default issue sue sponte except in the following circumstances:
(1) where comity and federalism are not implicated or where they are better served by reaching the merits;
(2) where the state is itself at fault for the procedural default; (3) where the alleged federal violation challenges the validity of the state trial itself, or (4) where the alleged federal violation was motivated by malice.
Washington v. James, 996 F.2d 1442, 1451 (2d Cir. 1993).
None of these circumstances exists here. First, comity and federalism obviously are not advanced by reviewing unpreserved claims. Second, the State clearly is not at fault for LoVacco's failure to preserve those claims, nor do they call into question the validity of the trial itself Third, there has been no showing of prosecutorial malice.
Finally, because defense counsel objected to Olivo's in-court identification of LoVacco, (Tr. 280), this aspect of his fair trial claim is properly preserved.
C. Further Review of LoVacco's Defaulted Claims is Procedurally Barred
To the extent that LoVacco's jury and fair trial claims are procedurally barred, federal habeas review is precluded unless he can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law" or "that failure to consider the claims will result in a fundamental miscarriage ofjustice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). Moreover, to make the latter showing, LoVacco must demonstrate that he is "actually innocent." Aparicio, 269 F.3d at 90.
In his petition, LoVacco has not made either of the required alternative showings, nor is there any reason to believe that such a showing could be made. Accordingly, this Court lacks jurisdiction to entertain his procedurally-barred claims. See id.
D. Merits of LoVacco's Claims
Although the Court need only address claims which are exhausted and not procedurally barred, it is understandable that an inmate such as LoVacco, who is serving a lengthy prison sentence, would want the merits of each of his claims to be reached. Moreover, there is always the possibility (however remote) that another court could reach a different conclusion as to the preliminary issues of procedural forfeiture and exhaustion. For these reasons, notwithstanding the jurisdictional problems previously identified, I have considered each of LoVacco's claims on the merits. As shown below, none of those claims warrants the issuance of a writ of habeas corpus.
1. Ineffective Assistance of Counsel Claim
In order to prevail on an ineffective assistance of counsel claim, LoVacco must demonstrate that his counsel's performance (a) "fell below an objective standard of reasonableness" and (b) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2064, 2068. The Strickland standard applies not only to trial counsel but also to an attorney handling a defendant's appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836, 38 L.Ed.2d 821 (1985); Aparicio, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
In preparing a brief, appellate counsel is not required to raise every claim arising out of a trial and has the discretion to eliminate weaker ones. Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983); Mayo, 13 F.3d at 533 ("counsel does not have a duty to advance every nonfrivolous argument that could be made"). Furthermore, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). In order to satisfy the first prong of the Strickland standard, LoVacco therefore must show that his appellate counsel did something more than omit from his brief a nonfrivolous argument that LoVacco wished to pursue. Evitts, 469 U.S. at 394; Aparicio, 269 F.3d at 95. He must establish that counsel opted not to raise "significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533; Bragg, 1998 WL 867245, at *3; Benn v. Stinson, 917 F. Supp. 202, 206 (S.D.N.Y. 1995)(Stein, J. adopting Report and Recommendation of Peck, Mag. J.).
a. Failure to Raise Trial Judge's Alleged Absence
LoVacco argues that counsel was wrong, given existing New York law, not to raise on appeal the alleged absence of Justice Goodman during jury voir dire. (Pet'r's Mem. at 40-52). At the time that Mr. Hopkirk made this determination, however, the law of the First Department was that a judge's absence from the courtroom did not constitute a ground for reversal "unless injury or prejudice was shown to have resulted therefrom." Toliver, 212 A.D.2d at 349, 629 N.Y.S.2d at 748. The questioning during the relatively few transcript pages at issue clearly does not reflect any such harm. (See V. 342-52). Moreover, because trial counsel failed to interpose any objection to the judge's alleged absence, this issue, even if meritorious, was unpreserved and would likely have been summarily rejected by the Appellate Division had it been raised. People v. Maria, 232 A.D.2d 280, 648 N.Y.S.2d 302 (1st Dep't 1996) (failure to object when charge not given rendered claim unpreserved); People v. Freire, 232 A.D.2d 254, 649 N.Y.S.2d 407 (1st Dep't 1996)(appellant's claim unpreserved due to failure to object to instruction).
Furthermore, the failure to brief Justice Goodman's alleged absence would not have constituted ineffective assistance of counsel even after the New York Court of Appeals issued its decision in Toliver because the attorney in that case, unlike LoVacco's trial counsel, had preserved the record by seeking a mistrial. Toliver, 212 A.D.2d at 348, 629 N.Y.S.2d at 747. LoVacco's trial counsel, however, failed to make any objection. In these circumstances, Mr. Hopkirk's failure to incorporate this claim into his brief cannot possibly be considered ineffective assistance of counsel. See Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986)("This process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.") (quoting Barnes, 463 U.S. at 751-52, 103 S.Ct. 3312-13) (internal quotations omitted).
b. Failure to Follow Vasquez
LoVacco also contends that his appellate counsel was ineffective because he did not follow the procedure set forth in Vasquez, which requires counsel to (i) make no adverse comment about frivolous claims before the appellate court and (ii) inform his client that he can raise such issues pro se. 70 N.Y.2d at 4, 516 N.Y.S.2d at 922. Vasquez further requires that if the client wishes to file a pro se brief, "counsel should protect his client's opportunity to submit written argument on the points by notifying the court of his intentions." Id. This procedure, however, is, at best, a guide to determining what is reasonable; it is not a dispositive rule, the violation of which automatically results in ineffective assistance of counsel. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (holding that a "set of rules [for counsel's conduct] would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions").
Here, Mr. Hopkirk correctly informed LoVacco that his jury trial claim was not frivolous, but also opined that it was unlikely to lead to a reversal of his conviction since it was unpreserved. (Answer Ex. C at 2). He also advised LoVacco that he could raise the issue pro se in a supplemental brief (Id. Although Mr. Hopkirk may have departed from the strict letter of Vasquez by indicating that the Appellate Division's decision in Toliver would make a pro se appeal on this ground a "waste of time," his comment demonstrates that he was a knowledgeable professional who was fully aware of the potential issue and provided intelligent advice regarding its prospects. Accordingly, LoVacco has not shown, as he must, that Mr. Hopkirk's discussions with him concerning this issue fell below an objective standard of reasonableness.
Moreover, because his trial counsel failed to object when Justice Goodman allegedly was absent, LoVacco cannot establish a reasonable probability that the result would have been different had Mr. Hopkirk included this issue in his appellate brief See People v. Hernandez, 94 N.Y.2d 552, 555-56, 708 N.Y.S.2d 34, 36 (2000) (grant of coram nobis petition reversed because judge's absence with the consent of both sides during readbacks of testimony did not prevent "performance of an essential, nondelegable judicial function"); People v. Monroe, 90 N.Y.2d 982, 984, 665 N.Y.S.2d 617, 618 (1997) (judge "5 absence while jury viewed trial exhibits "did not constitute an error affecting "the organization of the court or the mode of proceedings proscribed by law' which can be reviewed on appeal even absent a timely objection in the trial court"). There consequently is no basis to set aside LoVacco's conviction on this ground.
c. Failure to Raise the Issue of LoVacco's Alleged Absence During Readbacks of Testimony to the Jury
Under New York law, LoVacco had the right to be present when the testimony of several witnesses was reread in response to a note from the jury. See N.Y. Crim Proc. Law § 310.30; People v. Mullen, 44 N.Y.2d 1, 4, 403 N.Y.S.2d 470, 472 (1978). Additionally, LoVacco's claim that he was absent when testimony was read back to the jury could not have been dismissed by the Appellate Division as harmless error simply because his counsel failed to object. See People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 101 (1987). Thus, if LoVacco were able to demonstrate that he was in fact absent during the readbacks, he might be able to show that Mr. Hopkirk was ineffective for failing to raise this issue on appeal. The transcript in this case, however, does not demonstrate that LoVacco was absent from the courtroom. (See Tr. 1372-73). It consequently was reasonable for Mr. Hopkirk to forego including this claim in his appellate brief See Hernandez v. Edwards, No. 98 Civ. 6704, 2001 WL 575594, at *5 (S.D.N.Y. May 29, 2001)(Mukasey, J.) (rejecting ineffective assistance of counsel claim because the ambiguity of the record and presumption of regularity that attaches to criminal proceedings under New York law made it reasonable for counsel not to advance an absence-of defendant claim on appeal).
LoVacco apparently is not pursuing as part of his habeas petition any claim that he was unable to participate in the Ventimiglia hearing because it was held at the bench. In any event, even if that claim were part of his petition, the record clearly would not support the suggestion that the trial court's determination of this issue was based on an unreasonable determination of the facts in light of the evidence presented. See People v. Archibald, 211 A.D.2d 451, 621 N.Y.S.2d 51, 52-53 (1st Dep't 1995) (quoting People v. Gonzalez, 203 A.D.2d 192, 611 N.Y.S.2d 155)("Since the jury was not in the courtroom, it would be entirely speculative to conclude that the sidebar was conducted in a hushed dialogue out of defendant's hearing."); People v. Walker, 202 A.D.2d 312, 609 N.Y.S.2d 201 (1st Dep't 1994) (rejecting claim that peremptories were exercised outside the defendant's presence, "there being no indication that defendant's position at the defense table prevented him from hearing the proceeding or conferring with his counsel throughout").
2. Jury Trial Claim
LoVacco argues that Justice Goodman's alleged absence during voir dire, in addition to giving rise to an ineffective assistance of counsel claim, constitutes a violation of his constitutional rights. To be sure, the Sixth Amendment guarantees a criminal defendant the right to have his guilt determined by a jury of his peers supervised by a judge. United States v. Grant, 52 F.3d 448, 450 (2d Cir. 1995) (citing Capital Traction Co. v. Hof, 174 U.S. 1, 13, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899)). It does not follow, however, that the absence of a judge during a portion of the trial necessarily requires that a defendant's conviction be set aside. See United States v. Love, 134 F.3d 595, 604-05 (4th Cir. 1998)(judge's absence during closing arguments does not constitute "structural" error requiring reversal given the lack of prejudice and failure to object); Grant, 52 F.3d at 451 (disagreeing with two decisions of the Appellate Division, Second Department, which concluded that a judge's absence during the readback of testimony constitutes error despite the consent of counsel); United States v. Pfingst, 477 F.2d 177, 196-97 (2d Cir. 1973) (trial judge's delivery of speech in another state during the jury's deliberations does not constitute per se error); Haith v. United States, 342 F.2d 158, 159 (3d Cir. 1965) (absence of judge during voir dire and selection of jury with acquiescence of counsel is not reversible error); Stirone v. United States, 341 F.2d 253, 256 n. 3 (3d Cir. 1965)("the mere absence of the judge [from the bench during the exercise of peremptory challenges] for a short time, without a showing or allegation of prejudice[,] is not reversible on direct appeal"); Heflin v. United States, 125 F.2d 700, 700-0 1 (5th Cir. 1942) (not reversible error, in absence of showing of prejudice, for judge to leave bench for two to three minutes during defense counsel's summation to use the lavatory).
In this case, it is by no means clear that Justice Goodman was actually outside the courtroom during voir dire. Indeed, in denying LoVacco's motion to vacate the judgment of conviction, Justice Goodman observed that it appeared "from the record" that his purported absence was "without any basis in fact." (Answer Ex. I). More importantly, even if one were to assume that the Justice was absent for all ten pages of questioning, LoVacco has not shown that he suffered any prejudice as a result. He therefore has not demonstrated any error which would warrant the grant of a writ of habeas corpus.
3. Fair Trial Claims
a. Uncharged Crimes Evidence
LoVacco asserts that he was denied his due process right to a fair trial when the prosecution was allowed to present evidence of uncharged crimes as part of its direct case. (Pet'r's Mem. at 70). Evidentiary rulings, however, are generally a matter of state law. Sutton v. Herbert, 39 F. Supp.2d 335, 338 (S.D.N.Y. 1999) (Conner J.). Accordingly, even if such rulings are erroneous, they cannot lead to the issuance of a writ of habeas corpus unless they deprive the petitioner of a "fundamentally fair trial." Id. See also Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988); Brooks v. Artuz, No. 97 Civ. 3300, 2000 WL 1532918, at *5-*6 (S.D.N.Y. Oct. 17, 2000)(Koeltl, J.).
In his appellate brief, LoVacco complained about several categories of uncharged crime or prior bad acts evidence. First, he argued that one alleged accomplice — Androvett — and the girlfriend of a second alleged accomplice were permitted to testify about events related to the Rochester bank robbery. (Answer Ex. B at 45-53). Included among this evidence was testimony that LoVacco had indicated on the way to the Blass burglary that he knew someone who might be able to help rob the Rochester bank. (Tr. 516). In addition, the second accomplice's girlfriend testified that she saw a handgun in LoVacco's bedroom on one occasion. (Id. at 701). Second, LoVacco complained that, despite any showing that he was involved, Androvett was permitted to testify about a request by yet another accomplice that Androvett monitor certain armored car movements. (Answer Ex. B at 53-55). Third, LoVacco cited the admission of testimony about a conversation in which Androvett and the other accomplice discussed "lobs" — presumably heists of some sort — including one at the telephone company. (Id. at 55). Finally, LoVacco argued that evidence concerning the attempt to break into a night deposit vault on the evening of the B lass burglary should have been excluded. (Id. at 56-58).
Under both New York and federal law, evidence of uncharged crimes may not be admitted to show that the defendant has a propensity for criminal activity. See Fed.R.Evid. 404(b); People v. Vargas, 88 N.Y.2d 856, 858, 644 N.Y.S.2d 484, 485 (1996) (quoting People v. McKinney, 24 N.Y.2d 180, 184, 299 N.Y.S.2d 401, 404 (1969)). Here, the Appellate Division concluded that the trial judge had properly admitted the evidence concerning the Rochester bank robbery "[u]nder the unique circumstances of this case" to corroborate the accomplice wituess called by the prosecution. LoVacco, 234 A.D.2d at 55, 650 N.Y.S.2d at 672. This determination was consistent with prior First Department cases approving the admission of uncharged crimes evidence when it is inextricably interwoven with the narrative of events or necessary to explain the unique relationship between the defendant and witnesses who were privy to his criminal activities. See People v. Bernard, 224 A.D.2d 192, 193, 637 N.Y.S.2d 692, 693 (1st Dep't 1996). The Appellate Division further observed that LoVacco's arguments concerning much of the other uncharged crime evidence was unpreserved because trial counsel either failed to object or objected on different grounds. LoVacco, 234 A.D.2d at 55, 650 N.Y.S.2d at 673. The court further held that these unpreserved claims were "without merit." Id. Finally, with respect to the gun observed in the defendant's bedroom, the court determined that the testimony corroborated the allegation that LoVacco had used a gun during the Blass burglary and that "any inconsistencies in the description of the weapon . . . went to the weight of the evidence, and not its admissibility." Id.
LoVacco has not shown, as he must, that the admission of any of this evidence infringed rights that he had under clearly established federal law. Moreover, it is clear that the trial jury was not unduly swayed by this evidence since it acquitted him on the first degree robbery count arising out of the events of April 1st despite having heard it. If this evidence rendered LoVacco's trial as fundamentally unfair as he now suggests, the jury presumably would have convicted him on all of the counts in the indictment, rather than just a few of those counts.
b. Improper In-Court Identification
LoVacco contends that a trial witness' improper identification of him during the trial also violated his due process rights. (Pet'r's Mem. at 75-79). Shortly after that identification was made, defense counsel moved to expunge it from the record as "highly suggestive" because there were only two people at the defendant's counsel's table, and, of them, only LoVacco was white. (Tr. 2 79-80).
The Second Circuit indicated in United States v. Archibald, 734 F.2d 938, 942 (2d Cir. 1984), modified, 756 F.3d 223 (2d Cir. 1984), that an in-court identification is "impermissibly suggestive" when the defendant is the only black man in the courtroom and he is seated at the defense table. However, Archibald involved the direct review of a federal conviction. Id. at 939. As such, it appears to have been based "not on any constitutional requirement but on the Second Circuit's supervisory authority over federal criminal trials." Bond v. Walker, 68 F. Supp.2d 287, 301 (S.D.N.Y. 1999)(McKenna, J. and Peck, Mag. J.), adhered to on reconsideration, 2000 WL 460592 (S.D.N.Y. Apr. 19, 2000), aff'd, 242 F.3d 364 (2d Cir. 2000).
In Bond, Judge Peck noted, on the basis of a "Westcheck," that "Archibald has not been applied by the Second Circuit, any district court in this Circuit, or any other federal court, on a habeas corpus review of a state trial identification by a witness who had not made a pretrial identification." 68 F. Supp.2d at 301. This statement remains true today.
The United States Supreme Court has provided guidance concerning the circumstances in which a state prisoner may be entitled to habeas relief as a consequence of in-court identifications that have been tainted by suggestive pretrial identification procedures. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Court observed that the central question is whether there was a substantial likelihood of misidentification, and it identified five factors relevant to this determination:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.409 U.S. at 199-200, 93 S.Ct. at 382. Nevertheless, the Supreme Court has yet to consider the issue of in-court identification procedures which are alleged to be unduly suggestive despite the absence of any pretrial identifications. See United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986) (noting that the Eleventh Circuit has indicated that the Biggers standards should be applied to in-court identifications made without a pretrial identification, but that "no holding of the Supreme Court nor of this circuit has mandated such a requirement"); Kennaugh v. Miller, 150 F. Supp.2d 421, 432 (E.D.N.Y. 2001), aff'd, 289 F.3d 36 (2d Cir. 2002) (concluding in the context of a state habeas petition that there is no Supreme Court precedent barring a witness who failed to identify the defendant at a pretrial lineup from making an in-court identification under suggestive circumstances in state court). Cf United States v. Matthews, 20 F.3d 538, 547-48 (2d Cir. 1994) (employing at least some of the Biggers factors in a case where the witnesses were shown photo arrays prior to trial but the only identifications of the defendant occurred in court).
In recent weeks, the Second Circuit has affirmed the district court's denial of a writ of habeas corpus in Kennaugh. 289 F.3d 36 (2d Cir. 2002). On appeal, the court observed that Biggers and many of the Supreme Court's other cases concerning eyewitness identification applied a general due process principle, espoused in Manson v. Brathwaite, 432 U.S. 98, 116-17, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977), which requires "that identification testimony must not lead to the likelihood of irreparable misidentification as a result of impermissibly suggestive procedures." Kennaugh, 289 F.3d at 44. The Kennaugh court therefore went on to consider "whether what the state court did in the case at hand was (a) contrary to federal law as stated in either Biggers or Manson or (b) constituted an unreasonable application of the law established in either of these two cases." Id.
As to the first of these questions, the Court of Appeals concluded that the state court's decision to permit the in-court identification, despite the lack of a prior out-of-court identification, cannot be deemed contrary to the holdings of Biggers and Manson because those cases "did not involve facts that are materially indistinguishable from those in the instant case." Id. at 44. This observation, of course, applies equally here because there was no pretrial identification of LoVacco by Olivo.
With respect to the second question, the Court of Appeals held that a state court need not necessarily apply the Biggers factors in order to comply with the due process requirements of Manson, but must take some steps to ensure the reliability of an in-court identification. Id. at 47. Here, however, Justice Goodman gave short shrift to LoVacco's application to "expunge" Olivo's identification, commenting that while it may be "highly prejudicial to the defendant . . . for somebody to come in and identify him as being involved in a crime[, t]hat doesn't make it illegal." (Tr. 280).
As in Kennaugh "it is dubious whether the state court did anything at all to safeguard the due process protections stated in Manson. But we need not examine that question further, for . . . any error the state court may have made . . . was harmless." Kennaugh, 289 F.3d at 48. First, Olivo's testimony and eyewitness identification were relevant only to the burglary of Blass's apartment and the robbery of his doorman's property. LoVacco was not convicted, however, of any charges arising out of those crimes. Moreover, the evidence with respect to LoVacco's involvement in the later events at Giordano's store included the detailed testimony of an accomplice witness, whose statements placing LoVacco there were corroborated by two witnesses who had no motive to accuse him falsely. Finally, LoVacco conceded in his brief on appeal that his counsel's cross examination of Olivo led to an admission that Olivo could not be sure that LoVacco was the man he saw in the building lobby. (See Answer Ex. B at 8 (citing Tr. 286-87). For these reasons, even if the trial court's consideration of the admissibility of Olivo's in-court identification failed to pass muster, the error was harmless.
Unfortunately, the page where Olivo allegedly made this statement is missing from the copy of the trial transcript furnished to the Court by the Respondent.
Alleged Disclosure of LoVacco's Detention
Vacco also contends that he was denied his due process right to a fair trial when the prosecutor allegedly revealed to the jury during his cross examination of defense witness Rallo that LoVacco was being detained during the trial. (Pet'r's Mem. at 77-79). Similar due process concerns often arise when jurors see a defendant wearing prison garb see Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), or in handcuffs see DeLeon v. Strack, 234 F.3d 84 (2d Cir. 2000), during a trial. Nevertheless, a defendant is not automatically entitled to a new trial when such mishaps occur. See United States v. Taylor, 562 F.2d 1345, 1359 (2d Cir. 1977).
In this case, the exchange between Rallo and the prosecutor was brief and hardly mandated the conclusion that LoVacco was in custody. Indeed, it appears that the prejudice allegedly flowing from this questioning also escaped the watchful eyes of LoVacco's trial counsel since he failed to voice any objection, thereby depriving the trial court of the opportunity to give a curative instruction. In addition, as noted above, any prejudice that LoVacco may have suffered if the jury drew the inference that he suggests could not have deprived LoVacco of a fundamentally fair trial since the jury acquitted him of one of the charges in the indictment even after it heard this evidence.
d. Cumulative Error
Since all of LoVacco's individual due process claims lack merit, they also cannot amount to cumulative error. See United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir. 1999)("the accumulation of non-errors does not warrant a new trial").
IV. Conclusion
LoVacco has failed to show that he is "in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 22 54(a). Accordingly, his petition for a writ of habeas corpus should be denied. Furthermore, because LoVacco has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253 (c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report
and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable George B. Daniels, at the United States Courthouse, 40 Foley Square, New York, New York 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Daniels. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72 (b).