Opinion
02 Civ. 10244 (RJH) (GWG), 03 Civ. 1477 (RJH) (GWG).
November 3, 2004
REPORT AND RECOMMENDATION
Roderick Pearson brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the New York Supreme Court, New York County, Pearson was convicted of Criminal Possession of a Weapon in the Second Degree and was sentenced as a predicate felony offender to a term of 15 years in state prison. Pearson is currently incarcerated pursuant to that judgment at the Clinton Correctional Facility in Dannemora, New York. For the reasons below, the petition should be denied.
I. BACKGROUND
Pearson's conviction arises out of a fight that broke out in the early morning of July 27, 1996 near 28th Street and Tenth Avenue in Manhattan. Only the evidence presented at trial that is of relevance to Pearson's claims is discussed herein.
A. The Trial
1. Evidence Regarding the Shooting
The participants in the fight were Pearson, Brian Marshall, Andrew Mackey, and Bernice Byrd on one side and William Booker, Lorenzo Adderly, Vernon Adderly, Kenneth Manley, and Robert Manley on the other side. During the fight, Vernon Adderly, Lorenzo Adderly, and Kenneth Manley were shot. The evidence presented at trial was contradictory as to who fired the gun. Prosecution witnesses Robert Manley, Terry Ewell, Angela De Marcoe, William Booker, and Kenneth Manley identified Pearson, who was bald, as the shooter. (R. Manley: Tr. 35-42; Ewell: Tr. 135-39; De Marcoe: Tr. 254-60; Booker: Tr. 393-97; K. Manley: Tr. 567-73). Mackey, Pearson's co-defendant, identified a Jamaican man as the shooter. (Mackey: Tr. 836-37, 894-95). In addition, Latricia Bryant, an eyewitness who did not know any of the participants, saw a man with a gun whom she described as dark-skinned, chubby, about 5'5", and with his hair in dreadlocks. (Bryant: Tr. 717, 746-50, 754-56).
2. Cross-Examination of Detective Rice
Detective James Rice was called the morning of July 27, 1996 to investigate the shootings. (Rice: Tr. 321). Detective Rice coordinated the search for potential subjects and he interviewed Terry Ewell and Robert Manley with respect to the incident. (Rice: Tr. 322-25). At about 1:00 a.m. on July 28, he received a call that the vehicles supposedly used by the perpetrators to flee the scene had been located outside of 370 Barnard Avenue in Cedarhurst, Long Island. (Rice: Tr. 326). At about 10 a.m. on July 28, he arrived at that location, which the Nassau County police had sealed off. (Rice: Tr. 326-28). Eventually, Pearson and Byrd came out of the house and were arrested. (Rice: Tr. 328-29). At later dates, Marshall and Mackey voluntarily surrendered to the police. (Rice: Tr. 330-31).
On cross-examination by Mackey's attorney, Detective Rice explained that he had learned that Bryant had been interviewed by another detective regarding what she had witnessed, but that he did not make any attempts to locate her. (Rice: Tr. 347-50). On re-direct, he testified that by the time he learned about Bryant, he already had the name of the possible suspects in the shooting. (Rice: Tr. 358). On re-cross, again by Mackey's counsel, Detective Rice admitted that the names of the initial suspects could have been wrong but that he was not sure whether Bryant could have identified anyone. (Rice: Tr. 363-64). Mackey's counsel then asked if he had read the other detective's account of the interview with Bryant. (Rice: Tr. 364). The prosecutor objected to the question and the court sustained the objection and denied a sidebar requested by Pearson's counsel. (Rice: Tr. 364). Mackey's counsel then asked if Detective Rice knew if Bryant gave a description of the shooter, and again an objection was raised and sustained. (Rice: Tr. 364-65).
A sidebar conference was then held and Mackey's counsel argued that he should be allowed to elicit information regarding the detailed description that Bryant had given to show that Detective Rice should have followed up with her, even though he already had the names of suspects. (Rice: Tr. 365-66). The trial judge stated that he could not ask about anything Bryant had said to any police officer because she was not going to be called as a witness in the case. (Rice: Tr. 366). Pearson's counsel then indicated that he may have located Bryant and that she may be called as a witness. (Rice: Tr. 366). The court stated that if she testified, Detective Rice could always be recalled. Id. While Mackey's counsel continued to argue that the questions were proper as impeachment, the trial judge denied his request to question the Detective on the substance of Bryant's statements. (Rice: Tr. 367-68).
Pearson's counsel later called Bryant as a witness and she testified that she spoke to the police after she heard shots fired and she saw a man holding a gun. (Bryant: Tr. 719-22). In response to a question from Mackey's counsel, Bryant gave testimony regarding the description of the man she gave to the police. (Bryant: Tr. 723-24).
Pearson's counsel did not recall Detective Rice to testify but did call Detective Harvey Cane. (See Cane: Tr. 779-80). Detective Cane interviewed Bryant at the precinct around 10 a.m. on July 27, 1996. (Cane: Tr. 780-81). He testified that Bryant had told him that the shooter was a black male with a dark complexion, short twists in his hair, and was about six feet tall, medium weight, and in his mid-to-late twenties. (Cane: Tr. 782). Bryant also reported that the man was wearing heavy new boots and a black short-sleeve shirt. (Cane: Tr. 782). Detective Cane never spoke to Bryant after this interview. (Cane: Tr. 784). Detective Cane indicated that he had put all of the information that Bryant had given him in a complaint report that was passed along to Detective Rice. (Cane: Tr. 786-88).
3. Pearson's Outburst and the Court's Comment
During the testimony of Kenneth Manley, who had been shot in the incident, Pearson apparently made a remark out loud in response to Manley's testimony regarding how he got to the hospital on the back of a bicycle. (Tr. 642). The following colloquy then ensued:
The Court: I'm going to ask you, Mr. Pearson, to control yourself in this courtroom. Do you understand? Keep your thoughts to yourself.
The Court: Mr. Pearson, if you want to take the stand and testify, you take the stand and testify. Otherwise —
The transcript identifies "the witness" as the speaker of this statement. (See Tr. 642). However, the court reporter later submitted an affidavit explaining that this was an error and attaching a corrected copy of the transcript. See Affidavit of Kimberly Brantley, dated August 2, 1999 (reproduced as Ex. J to Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed June 27, 2003 (Docket #11) ("Opp. Decl.")), at 1.
[Pearson]: I think I will. I think I will.
The Court: Okay, just remain silent for the time being.
[Pearson]: Yes, sir.
(Tr. 642-43). Manley's testimony then resumed. (Tr. 643). Pearson never took the stand.
B. Verdict and Sentencing
The jury found Pearson not guilty of one count of Attempted Murder in the Second Degree but guilty of Criminal Possession of a Weapon in the Second Degree. (Tr. 1270-71). The jury was deadlocked as to two additional counts of Attempted Murder in the Second Degree and a mistrial was declared as to those charges. (Tr. 1270-73). Pearson's co-defendant, Marshall, was convicted of Criminal Possession of a Weapon in the Third Degree. (Tr. 1258-59). Co-defendants Mackey and Byrd were acquitted of all charges. (Tr. 1259-61).
On March 12, 1997, Pearson was sentenced, as a predicate felony offender, to 15 years in state prison. (Sentencing: Tr. 4-5, 10).
C. Direct Appeal
Represented by new counsel, Pearson appealed his conviction to the Appellate Division, First Department, presenting the following questions for review:
1. Whether the trial court's goading of [Pearson] to take the stand, in front of the jury, resulted in Constitutional error and deprived [Pearson] of a fair trial. There was no objection to the trial court's remarks.
2. Whether the trial court deprived [Pearson] of a fair trial by denying the defense request for a missing witness charge where the People did not establish that the witnesses were unavailable.
The trial court denied the defense request for a missing witness charge.
3. Whether the trial court deprived [Pearson] of a fair trial by its failure to allow full cross-examination and impeachment of all of the People's witnesses.
The trial court denied the defense request to fully cross-examine the People's witnesses.
Brief of Defendant-Appellant, dated August 9, 1999 ("Pet. App. Brief") (reproduced as Ex. A to Opp. Decl.), at 2.
On April 4, 2002, the Appellate Division unanimously affirmed Pearson's conviction. People v. Pearson, 271 A.D.2d 203 (1st Dep't 2000). The Appellate Division held:
[Pearson's] claim that he was deprived of his right against self-incrimination by a comment by the court concerning his right to testify is not exempt from the requirement of preservation, since there was no unambiguous comment on [Pearson's] failure to testify (see, People v. Burke, 72 NY2d 833, 836; People v Simmons, 258 AD2d 297, lv denied 93 NY2d 902), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find that the court's comments following [Pearson's] outburst served as an appropriate reminder that [Pearson] would not be permitted to give, in effect, unsworn testimony from the defense table (see, United States v. Robinson, 485 US 25, 32).
[Pearson's] remaining contentions are unpreserved (People v. Buckley, 75 NY2d 843), and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.Id.
By letter dated May 11, 2000, Pearson, through assigned appellate counsel, sought leave to appeal to the New York Court of Appeals, raising the three issues argued in the Appellate Division. Letter to the Hon. Judith Kaye from Vida M. Alvy, dated May 11, 2000 (reproduced as Ex. D to Opp. Decl.), at 1-2. On June 21, 2000, leave to appeal was denied. See People v. Pearson, 95 N.Y.2d 837 (2000).
Before leave to appeal was denied, however, Pearson retained a new attorney, who wrote to the Court of Appeals on June 2, 2000 seeking additional time to obtain the trial minutes and submit further arguments as to why leave to appeal should be granted.See Letter to the Hon. George Bundy Smith from Jonathan C. Scott, dated June 2, 2000 (reproduced as Ex. F to Opp. Decl.), at 1. Apparently, this letter was lost or mislaid and never reached the Court of Appeals. See Letter to the Hon. George Bundy Smith from Jonathan C. Scott, dated June 30, 2000 (reproduced as Ex. F to Opp. Decl.), at 1. Thus, Pearson's counsel requested that the order denying leave be vacated. Id. The Court of Appeals allowed Pearson to submit a motion for reconsideration. See Letter to the Hon. George Bundy Smith from Jonathan C. Scott, dated July 28, 2000 (reproduced as Ex. F to Opp. Decl.), at 1; Reconsideration Certificate Denying Leave, dated Sept. 14, 2000 (reproduced as Ex. H. to Opp. Decl.").
Retained counsel then submitted a supplemental application for leave to appeal raising the following issues:
• Whether [the Court of Appeals] should grant leave to appeal to resolve a conflict between the First and Second Department on whether a trial court violates a defendant's Fifth Amendment Rights by stating in the presence of the jury that a disruptive defendant could testify if he or she has something to say? ([T]rial counsel did not object to the court's comments)[.]
• Whether [the Court of Appeals] should grant leave to appeal because preservation of the defendant's Fifth Amendment rights is an issue of state-wide importance?
• Whether [the Court of Appeals] should grant leave to appeal to determine whether [sic] Pearson was deprived of his Sixth Amendment right to effective assistance of counsel and to clarify the proper standard of review under the New York Constitution[?]
• Whether the trial court's admonishment to Pearson in the presence of the jury was a direct comment on Pearson's decision not to testify, which constitutes a fundamental error dispensing with the requirement of a timely objection?
• Whether the trial court's admonishment shifted the burden of proof to Pearson, thereby violating the proper mode of proceedings and, thus, dispensing with the requirement of a timely objection?
• Whether the trial court violated Pearson's Fifth Amendment rights by admonishing him in front of the jury with the statement "Mr. Pearson, if you want to take the stand and testify, you take the stand and testify"?
• Whether Pearson was deprived of his Sixth Amendment right to effective assistance of counsel due to defense counsel's failure to timely object to a series of errors, which the appellate division would not consider on appeal due to lack of preservation?
Letter to the Hon. George Bundy Smith from Jonathan C. Scott, dated August 18, 2000 ("Supp. Leave App.") (reproduced as Ex. F to Opp. Decl.), at 1-2. On September 14, 2000, upon reconsideration, the Court of Appeals again summarily denied leave to appeal. People v. Pearson, 95 N.Y.2d 892 (2000).
The United States Supreme Court denied certiorari on April 23, 2001. Pearson v. New York, 532 U.S. 998 (2001).
D. The Instant Petition
The instant petition for writ of habeas corpus is dated April 21, 2002. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed December 26, 2002 (Docket #2) ("Petition"), at 7. It was received by this Court's Pro Se Office on April 25, 2002. See id. at 1. Pearson also submitted a memorandum of law in support of his petition. See Petition for Writ of Habeas Corpus, filed March 4, 2003 (in 03 Civ. 1477 as Docket #1) ("Pet. Mem."), at 1, 19. The respondent assumes that Pearson mailed his petition on or about April 21, 2002 and therefore treats it as timely under 28 U.S.C. § 2244(d)(1). See Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed June 27, 2003 (Docket #12), at 10-11; see also Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.) (under the "prison mailbox" rule, a petition is deemed filed on the day a pro se prisoner gives it to prison officials for mailing to the court clerk), cert. denied, 534 U.S. 886 (2001). Based on the "prison mailbox rule" and the fact that the petition is postmarked April 23, 2003, this Court will also assume that the petition is timely under 28 U.S.C. § 2244(d)(1).
The petition was filed in Docket 02 Civ. 10244. Pearson's memorandum of law, however, was mistakenly assigned a new docket number, 03 Civ. 1477, and some additional filings have occurred in this later docket number. The two cases have been consolidated. See Order, filed June 6, 2003 (Docket #6).
Together, the petition and accompanying memorandum of law raise the following six grounds for relief: (1) the trial court's admonishment of Pearson violated his Fifth and Fourteenth Amendment rights against self-incrimination, see Petition ¶ 12(A); Pet. Mem. at 2, 12-16; (2) the trial court impermissibly shifted the burden of proof to Pearson, see Petition ¶ 12(B); (3) trial counsel was ineffective for failing to make timely objections, see Petition ¶ 12(C); Pet. Mem. at 2, 16-18; (4) the trial court denied Pearson his right to cross-examine a police detective, see Petition ¶ 12(D); Pet. Mem. at 2; and (5) appellate counsel was ineffective for failing to raise the ineffectiveness of trial counsel in the brief to the Appellate Division, Pet. Mem. at 2.
Because Pearson's arguments regarding the ineffective assistance of trial and appellate counsel were unexhausted, this Court stayed the petition to give Pearson the opportunity exhaust these two claims. Order, filed August 12, 2003 (in 03 Civ. 1477 as Docket #3) ("Stay Order"), at 1-2; see generally Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied, 534 U.S. 1015 (2001). On September 22, 2003, Pearson submitted an affidavit informing the Court that he had filed a motion pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10 in order to exhaust his claim that his trial counsel was ineffective. See Affidavit, dated September 22, 2003, ¶ 3 ("Pet. Aff."). He also stated that he would not seek to exhaust his claim of ineffective assistance of appellate counsel through a writ of error coram nobis in state court. Id. ¶ 4.
After receiving notice that Pearson's CPL § 440.10 motion had been presented and decided in the state court and leave to appeal to the Appellate Division had been denied, the Court vacated the stay and directed the respondent to file a supplemental memorandum addressing the now-exhausted claim and allowed Pearson the opportunity to submit a response or traverse. Order, filed May 17, 2004 (Docket #16), at 1. The respondent responded by letter. See Letter to the Hon. Gabriel Gorenstein from Luke Martland, filed June 7, 2004 (Docket #17) ("Supp. Opp."), at 1-2. To date, no further submissions from Pearson have been received.
II. APPLICABLE LEGAL PRINCIPLES
A. Standard of Review
A petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(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). For a state court decision to constitute an "adjudication on the merits," the state court need only base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground."Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not necessary for the state court to refer to the federal aspect of a claim or any federal law for the deferential statutory standard to apply. Id. at 312.
In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 406 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Thus, a federal court may not grant habeas relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable."Id. at 409.
B. Exhaustion
Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . .");accord Daye v. Attorney Gen., 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). To exhaust a habeas claim, a petitioner is required to have presented the federal claim to all levels of the state appellate courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); Daye, 696 F.2d at 191.
In addition, under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); DiGuglielmo v. Smith, 366 F.3d 130, 136-37 (2d Cir. 2004) (per curiam). To be entitled to habeas relief, a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law.See, e.g., Estelle, 502 U.S. at 68. Thus, "[t]he exhaustion requirement is not satisfied unless the federal claim has been fairly presented to the state courts." Daye, 696 F.2d at 191 (internal quotation marks and citations omitted). Without explicitly citing the Constitution, a habeas petitioner can alert the state court to a claim's federal nature by doing one of the following: 1) relying on federal cases employing constitutional analysis; 2) relying on state cases employing constitutional analysis; 3) asserting a claim in terms so particular as to call to mind a specific right protected by the Constitution; or 4) alleging a pattern of facts that is well within the mainstream of constitutional litigation. Id. at 194; accord St. Helen v. Senkowski, 374 F.3d 181, 182-83 (2d Cir. 2004) (per curiam).
C. Procedural Default
Where a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991). Although procedurally defaulted claims are deemed exhausted for habeas purposes, a 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 v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord Dretke v. Haley, 124 S. Ct. 1847, 1852 (2004); Coleman, 501 U.S. at 749-50;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); see also Harris, 489 U.S. at 264 n. 10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas."). The bar on habeas review resulting from a procedural default applies even where the state court issues an alternative holding addressing the procedurally defaulted claim on the merits. See, e.g., Harris, 489 U.S. at 264 n. 10;Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam).
III. DISCUSSION
Each of Pearson's five claims is discussed below.
A. Ineffective Assistance of Appellate Counsel
As noted above, this Court previously found this ground for relief to be unexhausted and stayed the petition to allow Pearson the opportunity to exhaust it through bringing a writ of error coram nobis in state court. See Stay Order at 1-2. Pearson then notified the Court that "after reviewing the lack of merits to a claim of ineffective assistance of appellate counsel, petitioner has decided that he will not seek WRIT OF ERROR CORAM NOBIS relief." Pet. Aff. ¶ 4 (capitalization in original). Thus, the claim has been abandoned and will not be considered further.
B. Ineffective Assistance of Trial Counsel
The previously-granted stay also permitted Pearson to return to state court to exhaust his claim that his trial counsel was ineffective for failing to object to certain matters that were complained about on direct appeal, see Petition ¶ 12(C); Pet. Mem. at 2, 16-18; see also Pet. App. Brief at 20-36, and found to be unpreserved for appellate review by the Appellate Division, Pearson, 271 A.D.2d 203, 203 (2000). Stay Order at 1-2. Prior to the stay, these issues had been raised in state court only in Pearson's second application for discretionary review to the Court of Appeals. See Supp. Leave App. at 2, 17-18. That second application was inadequate to exhaust the available state remedies. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); St. Helen, 374 F.3d at 183.
On September 22, 2003, Pearson submitted a motion to vacate the judgment pursuant to CPL § 440.10, raising his ineffective assistance of counsel claim. See Affidavit in Support of Motion to Vacate Judgment Pursuant to C.P.L. § 440.10(h), dated September 22, 2003 ("440.10 Aff.") (reproduced as Ex. A to Supp. Opp.), at 5-10. On January 15, 2004, a judge of the New York Supreme Court denied Pearson's motion, holding that the motion was procedurally defective as Pearson had relied exclusively on facts contained in the trial record and thus should have brought his ineffective assistance of counsel claim on direct review as required by CPL § 440.10(2)(c). See Decision on Motion to Vacate Judgment, dated January 15, 2004 ("440.10 Decision") (reproduced as Ex. D to Supp. Opp.), at 2-3, 5-6. The court acknowledged that non-record-based ineffective assistance claims are appropriately brought through a motion to vacate, but found that Pearson relied on no facts outside the record in his motion.Id. at 3. The court also went on to hold that, in any event, Pearson was unable to establish prejudice caused by his counsel's conduct with respect to Pearson's outburst given the Appellate Division's conclusion that the underlying substantive claim (for which Pearson faults his counsel for not objecting), was without merit. Id. at 4-6. Thereafter, Pearson sought leave to appeal to the Appellate Division which was denied on March 18, 2004. See Ex. E to Supp. Opp.
Although Pearson's ineffective assistance of counsel claim is now properly exhausted, the state court's reliance on CPL § 440.10(2)(c) in denying his motion to vacate constitutes a procedural bar that precludes federal habeas review. See CPL § 440.10(2)(c) (prohibiting collateral review of a claim if sufficient facts appear on the record to have permitted adequate appellate review of the issue and there was an unjustifiable failure to raise the claim on direct appeal).
As noted, a procedural bar applies only where it constitutes both an "independent" and "adequate" state law ground. It is clear from the State Supreme Court's decision that the court was relying on an "independent" state procedural rule and not on any rule of federal law in denying the motion to vacate with respect to these claims. See 440.10 Decision at 2-3, 5-6. That the Appellate Division issued a summary denial of leave to appeal is of no moment because where "the last reasoned opinion on the claim explicitly imposes a procedural default" — as is true of the State Supreme Court's decision in this case — a federal habeas court "will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); cf. Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (federal habeas court looks to Appellate Division's reliance on procedural bar where Court of Appeals issues summary denial of leave to appeal). Thus, it only remains to be determined whether the rule relied upon is "adequate" to support the decision.
A procedural bar is "adequate" if it is based on a rule that is "'firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether application of the procedural rule is "firmly established and regularly followed" must be judged in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citing Lee v. Kemna, 534 U.S. 362, 386-87 (2002)). The Second Circuit has set forth the following "guideposts" for making this determination:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. (citing Lee, 534 U.S. at 381-85).
Applying the Cotto guideposts in this case leads to the conclusion that the procedural bar relied on by the state court is one that is "firmly established and regularly followed." With respect to the first guidepost, Pearson's failure to raise any of these issues in his direct appeal was "actually relied on" by the state court, as is evidenced by the decision issued on his motion to vacate. See 440.10 Decision at 2-3. Had the issues been raised on the direct appeal, the Appellate Division could have addressed them on the merits.
As for the second guidepost, it is well-settled under New York law that where the record is sufficient to allow appellate review of a claim, the failure to raise that claim on appeal precludes subsequent collateral review of the claim. See, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04 (1986); People v. Jossiah, 2 A.D.3d 877, 877 (2d Dep't 2003); People v. Skinner, 154 A.D.2d 216, 221 (1st Dep't 1990). The same rule applies to bar collateral review where the facts underlying an ineffective assistance claim appear on the record.See, e.g., Jossiah, 2 A.D.3d at 877; People v. Smith, 269 A.D.2d 769, 770 (4th Dep't 2000); People v. Orr, 240 A.D.2d 213, 214 (1st Dep't 1997).
Here, Pearson's entire claim with respect to the ineffective assistance of counsel consisted of complaints that his attorney failed to "timely object to a series of errors, which the Appellate Division would not consider on appeal due to lack of preservation." 440.10 Aff. at 5. Pearson's submission emphasized his attorney's failure to object to the court's comment regarding Pearson's right to testify. See id. at 5-8. The state court properly concluded that these claims were record-based, as is evidenced by the fact that Pearson raised the underlying "errors" to which counsel failed to object on direct appeal based on the record. See Pet. App. Brief at 20-36. In fact, Pearson's first counsel on appeal specifically noted trial counsel's failure to object to the trial court's comment on Pearson's right to testify yet did not raise an ineffective assistance claim with regard to this failure. See id. at 2, 20-22. And the state, in opposing Pearson's direct appeal, specifically noted that only counsel for Pearson's co-defendant — and not Pearson's counsel — had raised any objection to the court's rulings on the scope of certain cross-examinations and the missing witness charge. Brief for Respondent, dated March 2000 (reproduced as Ex. B to Opp. Aff.), at 30-31, 36-37. Accordingly, the state court properly concluded that Pearson's ineffective assistance claim was record-based and should have been raised on direct appeal.
The third guidepost likewise fails to help Pearson for there is no argument that he "substantially complied" with the state procedural rule. Pearson had new counsel on appeal who did not in any way alert the appellate court that there was any appealable issue as to the effectiveness of Pearson's trial counsel. Accordingly, the state procedural rule is "adequate" to preclude federal habeas review of Pearson's ineffective assistance claims.
In sum, the state court's reliance on the state procedural rule in this situation constitutes both an "independent" and an "adequate" ground for its decision. This conclusion is consistent with rulings in many federal habeas cases which have held that, where an ineffective assistance of counsel claim is record-based, section 440.10(2)(c) constitutes a procedural rule that is "firmly established and regularly followed" and thus "adequate."See, e.g., Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir. 2003); Lee v. Senkowski, 2003 WL 22890405, at *9 (S.D.N.Y. Dec. 2, 2003) (Report and Recommendation, adopted April 30, 2004);Ryan v. Mann, 73 F. Supp. 2d 241, 248 (E.D.N.Y. 1998), aff'd, 201 F.3d 432 (2d Cir. 1999). Pearson's ineffective assistance claims are thus procedurally defaulted.
By contrast, where the ineffective assistance claim is not record-based, federal habeas courts have held that the rule of CPL § 440.10(2)(c) is not "adequate." See, e.g., Bonilla v. Portuondo, 2004 WL 350694, at *10 (S.D.N.Y. Feb. 26, 2004) (Report and Recommendation) (citing New York cases holding that claims challenging an attorney's failure to call witnesses do not sufficiently appear on the record so as to require dismissal of that claim if raised for the first time on a CPL § 440.10 motion) (adopted by 2004 WL 1782174 (S.D.N.Y. Aug. 9, 2004)).
Pearson has made no effort to demonstrate "cause" that would excuse his failure to raise this issue in his direct appeal. In addition, he has not shown that, absent review, there would be a "fundamental miscarriage of justice," which requires a demonstration of "actual innocence." See, e.g., Calderon v. Thompson, 523 U.S. 538, 559 (1998); accord Murray v. Carrier, 477 U.S. 478, 496 (1986); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). Accordingly, the procedural default bars federal habeas review of his claim that he was denied effective assistance of counsel at trial.
C. Fifth Amendment Claim
The main ground upon which Pearson seeks habeas relief is based on the trial court's statement to Pearson in front of the jury suggesting that he testify if he had something to say. (Tr. 642-43). Pearson asserts that the judge's comment violated his Fifth Amendment right to remain silent. See Petition ¶ 12(A); Pet. Mem. at 12-16. Pearson raised this claim on direct appeal in federal constitutional terms, see Pet. App. Brief at 20-27, and the Appellate Division held that it was unpreserved for appellate review because defense counsel had made no objection to the court's comment, Pearson, 271 A.D.2d at 203. Thus, while the issue is properly exhausted, it may be procedurally defaulted.
1. Procedural Default
The comment Pearson complains about occurred after Pearson made some remark out loud during Kenneth Manley's testimony:
The Court: I'm going to ask you, Mr. Pearson, to control yourself in this courtroom. Do you understand? Keep your thoughts to yourself.
[Pearson]: He's lying.
The Court: Mr. Pearson, if you want to take the stand and testify, you take the stand and testify. Otherwise —
[Pearson]: I think I will. I think I will.
The Court: Okay, just remain silent for the time being.
[Pearson]: Yes, sir.
(Tr. 642-43). Defense counsel made no objection to the court's comments. (See Tr. 643).
As noted above, a procedural bar is "adequate" to preclude federal habeas review only if it is based on a rule that is "'firmly established and regularly followed' by the state in question." Garcia, 188 F.3d at 77. One of the criteria evaluated in making this determination is "whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented." Cotto, 331 F.3d at 240 (citing Lee, 534 U.S. at 381-85).
Although New York has a "firmly established and regularly followed" contemporaneous objection rule, see N.Y. Crim. Proc. Law ("CPL") § 470.05, New York courts have created an exception to this rule permitting review of a deprivation of a fundamental constitutional right notwithstanding the defendant's failure to object. In People v. McLucas, the New York Court of Appeals held that no objection is necessary for preservation when a court's remarks violate a defendant's federal and state constitutional rights against self-incrimination. 15 N.Y.2d 167, 171-72 (1965) (jury instructions in which judge stated that "the mere fact that [the defendant] said to the detective, 'I did not do it,' does not take the place of sworn testimony from this witness chair" were improper). Because of this exception, the Second Circuit has concluded that a defendant's failure to object to a trial court's comments in violation of his Fifth Amendment rights does not constitute a procedural bar precluding federal habeas review of the constitutional claim. See Hawkins v. LeFevre, 758 F.2d 866, 871 (2d Cir. 1985) ("Because New York courts refuse to enforce the contemporaneous-objection requirement where a criminal defendant seeks to exercise his privilege against self-incrimination, we conclude that [petitioner] is not procedurally barred from raising his constitutional claim.") (citation to McLucas omitted).
For the exception carved out by McLucas to apply (and hence, for appellate review to be available despite the absence of a contemporaneous objection), the appellate court must first interpret the comments made and determine that the defendant's fundamental constitutional rights were violated. See People v. Autry, 75 N.Y.2d 836, 839 (1990) ("In the case of a charge error implicating defendant's right against self-incrimination, the exception to the preservation requirement may be invoked only where the language of the charge expressly or at least unambiguously conveys to the jury that the defendant should have testified."); People v. Burke, 72 N.Y.2d 833, 836 (1988) (prosecutor's "ambiguous" comments "were not of such character as would naturally and reasonably be interpreted by the jury as adverse comment on defendant's failure to take the stand" and thus preservation is required). In Pearson's case, the Appellate Division concluded that the judge's comment was not an "unambiguous comment on [Pearson's] failure to testify" and thus held that the McLucas exception did not apply and that preservation was required. Pearson, 271 A.D.2d at 203.
In a few cases, New York courts have interpreted comments similar to the one made in this case — "if you want to take the stand and testify, you take the stand and testify" (Tr. 642) — as grounds for reversible error without noting whether an objection was made or was necessary. See People v. Mercado, 120 A.D.2d 619, 620-21 (2d Dep't 1986) (court's comment in response to defendant's outburst that defendant "had an opportunity to make a statement under oath if he so desired" is reversible error);People v. Cora, 47 A.D.2d 739, 739-40 (1st Dep't 1975) (judge's statement, "Let [the defendant] take the stand," was reversible error despite later instruction that no inference could be drawn from his failure to testify). Based on such cases, in his second leave letter to the Court of Appeals, Pearson argued that there were conflicting lower-court decisions as to whether an objection was demanded in the circumstances presented in this case to preserve the issue for appellate review. See Supp. Leave App. at 6-8.
Thus, determining whether the procedural bar of CPL § 470.05 precludes federal habeas review in this case necessarily requires the Court to consider the adequacy of the Appellate Division's determination on the merits that Pearson's fundamental constitutional rights were not violated. But because there seems to be some ambiguity as to whether a contemporaneous objection was necessary under New York law in the context of the comment made, this Court concludes that it will be far simpler to instead reach the merits of Pearson's claim rather than resolving the issue of the adequacy of the state procedural bar. See Dunham v. Travis, 313 F.3d 724, 729-30 (2d Cir. 2002) (a federal habeas court may "hurdl[e] the procedural questions to reach the merits of a habeas petition" where the underlying issue is "easily resolvable against the habeas petitioner, whereas the procedural-bar issue involve[s] complicated issues of state law" (internal quotation marks and citation omitted)).
2. The Merits
The Supreme Court has held that "the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615 (1965). InGriffin, the prosecutor emphasized to the jury that the defendant was the only person who could provide certain information related to the victim's murder yet he had "not seen fit to take the stand and deny or explain." Id. at 610-11. Then, the trial judge instructed the jury that they could draw an unfavorable inference as to facts within the defendant's knowledge about which he chose not to testify. Id. at 610. The Supreme Court reversed, holding that the improper comments violated the defendant's Fifth Amendment right not to incriminate himself. Id. at 613-14.
In a later case, however, the Supreme Court made clear that not all comments regarding a criminal defendant's failure to testify rise to the level of a constitutional violation and thus the context in which the comment was made must be examined. InUnited States v. Robinson, 485 U.S. 25 (1988), defense counsel argued to the jury that the defendant had not been able to "explain" his side of the story. Id. at 27-28. In response, the prosecutor was permitted to note in summation that the defendant could have taken the stand to give his explanation. Id. at 28. The Court held that "where prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege." Id. at 32. The Second Circuit has noted that, even in the case of an improper remark by a trial judge, a court must consider whether the remark was "so prejudicial that it denied the defendant a fair, as opposed to a perfect, trial."United States v. Rosa, 11 F.3d 315, 343 (2d Cir. 1993) (internal quotation marks and citation omitted) (cert. denied, 511 U.S. 1042 (1994) and 511 U.S. 1096 (1994)); see also Fox v. Mann, 71 F.3d 66, 72 (2d Cir. 1995) (court must inquire whether prosecutor's comment on defendant's failure to testify was "'so prejudicial that [it] rendered the trial in question fundamentally unfair'") (quoting Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990)).
Here, the Appellate Division held, in an alternative holding on the merits, that "the court's comments following [Pearson's] outburst served as an appropriate reminder that [Pearson] would not be permitted to give, in effect, unsworn testimony from the defense table." Pearson, 271 A.D.2d at 203 (citing Robinson, 485 U.S. at 32). Because the Appellate Division reached the merits of this claim, habeas review is available only if the Appellate Division's adjudication of this claim was "contrary to" or "an unreasonable application of" clearly established federal law. See 28 U.S.C. § 2254(d).
The comment here to Pearson that "if you want to take the stand and testify, you take the stand and testify" must be viewed in context — specifically, as a response to Pearson's own improper outburst from the defense table that the witness was lying. (Tr. 642). Moreover, the comment was made only after the trial judge had first reprimanded Pearson both to control himself and keep his thoughts to himself. (Tr. 642). The court's comment was not directed towards the jury in its instructions but rather was directed towards Pearson in an effort to prevent him from making any further unsworn statements in the presence of the jury. Moreover, the trial court subsequently instructed the jury that the fact that Pearson did not testify was not a fact from which any unfavorable inference could be drawn. (Tr. 1167). The court's comment in no way suggested to the jury that Pearson's failure to testify was evidence of his guilt. Cf. Griffin, 380 U.S. at 611, 615.
Pearson argues that the Appellate Division here "significantly expanded the meaning of what constitutes a 'fair response,' beyond that recognized in Robinson." Pet. Mem. at 15-16. He argues that in Robinson, the prosecutor's comments were "a direct, appropriate and necessary response" to defense counsel's argument that the government had unfairly denied the defendant the opportunity to explain his side of the story. Id. at 15;see Robinson, 485 U.S. at 26-28. He argues that the trial court's response here — unlike the prosecutor's in Robinson — was unfair and unnecessary because "[t]he only response required in fairness was to instruct the jury to disregard [Pearson's] statement, and to instruct Pearson to be silent." Pet. Mem. at 15. While the response Pearson suggests would have been a permissible — and undoubtedly preferable — one, it does not mean that the remark the judge actually made was necessarily an "unfair" one. What Griffin specifically bars are "instructions by the court that [a defendant's] silence is evidence of guilt." 380 U.S. at 615. What occurred here did not begin to come close to the conduct condemned in Griffin. Certainly, it cannot be said that the Appellate Division's determination that the comment was not unfair to Pearson represents an "unreasonable" determination of applicable Supreme Court law on this point. See Williams v. Taylor, 529 U.S. 362, 407 (2000) (a state court decision involves an "unreasonable application" of Supreme Court precedent only if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply").
Thus, habeas relief on this claim should be denied.
D. Burden of Proof
In his petition, Pearson also argues that the court's comment on his right to testify "impermissibly shifted the burden of proof from the D.A. to [Pearson] in [the] presence of [the] jury." Petition ¶ 12(B). In state court, this argument was only presented in Pearson's supplemental leave application to the Court of Appeals. See Supp. Leave App. at 13-14. And there, it was presented only as another way to avoid the contemporaneous objection requirement and not as an independent ground for relief. See id. Again, raising a claim for the first time in an application for discretionary review to the New York Court of Appeals is insufficient for exhaustion purposes. See, e.g., Castille, 489 U.S. at 351; St. Helen, 374 F.3d at 183.
Even if a federal claim has not been properly exhausted in state courts, it will be deemed exhausted if it would now be procedurally barred under state law. See, e.g., Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). A claim is deemed procedurally defaulted where New York's procedural rules would now bar the claim from being raised in state courts. Id. In this case, Pearson would be foreclosed under CPL § 440.10(2)(c) from bringing his burden-shifting claim in the state courts as a collateral attack on his conviction because the claim is record-based and could have been raised in federal terms on his direct appeal to the Appellate Division. See, e.g., St. Helen, 374 F.3d at 183-84. Therefore, the claim is procedurally defaulted and habeas review is unavailable unless Pearson can establish cause for the default and resulting prejudice or can demonstrate that he is "actually innocent." See, e.g., id. Even construing hispro se petition liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), Pearson has made no such showing. Therefore, his burden-shifting claim may not be considered on federal habeas review.
E. Limitation on Cross-Examination
Pearson's final ground for relief is that the trial court denied him the right to cross-examine Detective Rice. Petition ¶ 12(D); Pet. Mem. at 2. As detailed above, the trial court sustained an objection to a question from counsel for Pearson's co-defendant Mackey that sought testimony from Detective Rice about what Bryant had told the police after the incident. (Rice: Tr. 364-68). Pearson's counsel did not object to the judge's ruling. (See Rice: Tr. 368). Pearson's counsel also did not attempt to ask these questions of Detective Rice, nor did he recall Detective Rice after presenting Bryant, as the judge had specifically stated he was free to do, (Rice: Tr. 366-67). Pearson raised this claim on direct appeal, see Pet. App. Brief at 34-36, and the Appellate Division held that it was unpreserved and declined to review it in the interest of justice, Pearson, 271 A.D.2d at 203. Thus, the threshold question is whether this federal habeas court should accept the procedural bar as foreclosing review of Pearson's claim under the standards articulated in Cotto.
The procedural rule relied upon by the Appellate Division in Pearson's case was articulated by the New York Court of Appeals in People v. Buckley, 75 N.Y.2d 843, 846 (1990):
Defendant cannot rely on the request of a codefendant to preserve the claimed charge error notwithstanding the recent amendment to C.P.L. 470.05(2) or the agreement of counsel made early at trial that "exceptions" by counsel of one defendant would apply to all codefendants. For tactical reasons codefendants might take different positions on the desirability of various instructions to the jury and each must specify his or her objection to preserve legal error with respect to the lesser included offenses.
The guideposts laid out by the Second Circuit in Cotto, 331 F.3d at 240, make clear that the procedural rule relied on by the state court is one that is "firmly established and regularly followed." New York courts have routinely held that a co-defendant's objection does not preserve another defendant's claim of error. See, e.g., People v. Cabassa, 79 N.Y.2d 722, 730 (1992), cert. denied, 506 U.S. 1011 (1992); People v. Cordero, 306 A.D.2d 9, 10 (1st Dep't 2003). The rule has been specifically applied in the context of objections made during cross-examination by another defendant. People v. Thompson, 300 A.D.2d 1032, 1033 (4th Dep't 2002); see also People v. Ho, 228 A.D.2d 317, 317 (1st Dep't 1996) (defendant must bring the purposes of the precluded questions to the court's attention to preserve a claim that the court unduly restricted his cross-examination); see generally CPL § 470.05(2) (under the New York contemporaneous objection rule, objections must be made "by the party claiming error"). Federal habeas courts have found New York's contemporaneous objection rule to be an adequate and independent state rule precluding habeas review. See e.g., Garcia, 188 F.3d at 79-82. More specifically, habeas courts have found the New York rule mandating a contemporaneous objection by the actual party claiming error to constitute a valid procedural bar. See, e.g., Martinez v. Greiner, 2003 WL 1936191, at *3-*4 (S.D.N.Y. Apr. 23, 2003); Simpson v. Portuondo, 2002 WL 31045862, at *4 (S.D.N.Y. June 4, 2002) (Report and Recommendation adopted by Order, filed March 31, 2003 in 01 Civ. 8744 (WHP)(JCF)). As Pearson has not shown cause for the procedural default or actual innocence, habeas review is precluded.
Conclusion
For the foregoing reasons, Pearson's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Richard J. Holwell, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Holwell. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).