Opinion
99 Civ. 4473 (HB)(KNF).
July 25, 2001.
OPNION ORDER
Pro se petitioner Bruce Priester ("Priester") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his November 21, 1995 conviction for manslaughter in the first degree and criminal possession of a weapon in the second degree. Priester raises the following challenges to his conviction: (1) that the trial court erred in admitting the testimony of a witness concerning a conversation in which petitioner talked about killing the prosecutor, the petitioner's former attorney and the key witness for the prosecution; (2) that the trial court erred in not granting a mistrial after the prosecutor elicited potentially prejudicial testimony; and (3) that the New York State Supreme Court, Appellate Division, First Department, improperly denied the petitioner's motion to enlarge the record on appeal to include the minutes from his first trial. For the following reasons, the Report and Recommendation of Magistrate Judge Fox is modified but adopted in full, and the petition is dismissed.
Linda Kwak, an Intern in my Chambers during the summer of 2001, was of substantial assistance in the research and writing of this opinion.
BACKGROUND
The relevant facts are detailed in the Report and Recommendation and will only be summarized here. In April 1992, Ivonne Otero ("Otero") and Monserrate Torres ("Torres") were talking outside an apartment building in the Bronx. Priester and a friend approached and an argument over money ensued. Priester ordered his friend to shoot Torres, he did, and they fled. Otero had hidden behind a parked car and later testified that Priester had ordered the shooting.
The first trial ended in a mistrial after a juror fell ill. At the second trial, the petitioner's former cellmate, D'Amato, testified that petitioner had confessed his role in the 1992 shooting and discussed killing his former attorney, the prosecutor and Otero. Before D'Amato took the stand, petitioner sought to exclude his testimony, but his motion was denied.
The prosecution also elicited testimony from D'Amato that a trial spectator had directed a threatening gesture at him. The court denied petitioner's motion for a mistrial, but struck the objected to testimony from the record.
In 1995, defendant was convicted and in 1997, moved in the Appellate Division, First Department to enlarge the record on appeal to include the minutes from his first trial. This motion was denied in March 1998. He also appealed his conviction, claiming that the trial court had erred by: (1) admitting D'Amato's testimony regarding their jailhouse conversation; and (2) not declaring a mistrial after D'Amato's testimony regarding the threatening gesture by a trial spectator. The Appellate Division affirmed the conviction on November 19, 1998.
In December 1998, petitioner applied for leave to appeal to the New York Court of Appeals. In his application, petitioner requested that the court review "all issues raised" in his appellate brief and his motion to expand the judgment roll. In a subsequent letter, petitioner addressed the following two issues specifically: (1) the motion to expand the judgment roll; and (2) the trial court's admission of D'Amato's testimony regarding the jailhouse conversation. In February 1999, the Court of Appeals denied petitioner's application for leave to appeal and his motion to expand the judgment roll. The instant motion for habeas relief followed.
This Court referred the case to Magistrate Judge Buchwald for a Report and Recommendation on July 20, 1999. The habeas petition was subsequently reassigned to Magistrate Judge Fox on September 29, 1999, and he issued a Report and Recommendation on December 18, 2000. Petitioner requested an extension of time in which to file his Objection, and I granted the request (despite its untimeliness) allowing petitioner until February 12, 2001. Petitioner then filed his Objection within that time frame on February 6, 2001.
DISCUSSION
I. Standard of Review
Under 28 U.S.C. § 2254, federal courts have limited power to review criminal convictions in state court. § 2254(d)(1) and (2) provide in relevant part,
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus...a determination...made by a State court of competent jurisdiction...shall be deemed to be correct...unless the applicant shall establish ...(1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing. 28 U.S.C. § 2254 (1994).
Further, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Pursuant to the Federal Rules of Civil Procedure, a district court reviews a Report Recommendation de novo. Rule 72(b) provides in relevant part:
The district judge ... shall make a de novo determination upon the record ... of any portion of the magistrate judge's disposition to which specific written objection has been made ... The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b) (1991).
II. Trial Court Admitted Witness Testimony Improperly
Petitioner claims that the trial court erred by admitting the testimony of D'Amato, petitioner's former cellmate, in which he testified that petitioner confessed to the crime and said he wanted to kill his former attorney, the prosecutor and the key witness.
Habeas relief can only be granted if the alleged error was of constitutional dimensions, which is not so here. See Dunnigan v. Keane, 137 F.3d 117, 125 (2dCir. 1998) ("The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence 'is so extremely unfair that its admission violates fundamental conceptions of justice.'")
Petitioner alleges that D'Amato's testimony was related to an uncharged crime, was highly prejudicial and only marginally relevant to the crime for which he was tried. Specifically, in his Objection, petitioner cites In re Winship, 397 U.S. 358 (1970), and argues that because he did not testify about the conversation with D'Amato (as he chose not to testify on his own behalf) the Government was unable to meet its burden of "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In this way, he claims that he was denied a fair trial.
Review of the record shows that the trial court did not abuse its discretion in admitting this evidence. Rather, the court was within legal bounds when it concluded that the probative value of the evidence outweighed the potential prejudice to the defendant. Furthermore, D'Amato's testimony buttressed other relevant testimony and went to petitioner's consciousness of guilt. As the trial court correctly stated, it was up to the jury to establish the veracity and relevance of that evidence. Opp. Aff. Exh. 4, citing Tr. at 435.
"Tr." refers to the transcript of the second trial.
Finally, the court informed the parties that it would, upon request, instruct the jury on the issue of consciousness of guilt. Opp. Aff. Exh. 5, citing Tr. at 435-36. For these reasons, petitioner's claim fails.
III. Trial Court Erred in Refusing to Grant a Mistrial
Petitioner claims that the trial court erred in not granting a mistrial after the prosecution elicited testimony from D'Amato that a trial spectator had directed a threatening gesture at him.
The threshold question is exhaustion. The first prong of the two part test requires the federal claim to have been "fairly presented" to the state courts. The second prong requires the applicant to utilize all available state avenues for appeal before presenting his claims to a federal court. See Nelson v. Walker, 1996 WL 148321 at *5
28 U.S.C. § 2254 (b) provides in relevant part: "An application for a writ of habeas corpus ... pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has the exhausted the remedies in the courts of the State ..."
"The ways in which a state defendant can "fairly present" ...the constitutional nature of his claim include: (1) reliance on pertinent federal cases employing constitutional analysis; (2) reliance on state cases employing constitutional analysis in like fact situations; (3) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; and (4) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cu. 1982).
Respondent contends that petitioner's claim should be deemed exhausted, but forfeited for habeas review, because petitioner did not fairly present the claim to the New York Court of Appeals. Respondent relies on Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991), where the petitioner raised one claim in his letter seeking leave to appeal to the New York Court of Appeals and attached appellate briefs which raised two other issues. The Second Circuit found that the two issues not enumerated in the letter were unexhausted. Respondent also relies on Jordan v. Lefevre, 206 F.3d 196 (2d Cir. 2000), where the appellant argued one claim in the letter seeking leave but did not explicitly alert the state court to the other claims in the attached brief. There, the Second Circuit found that the remaining claims had not been fairly presented for review and were thus unexhausted.
Only last year, the Second Circuit decided Morgan v. Bennett, 204 F.3d 360 (2d Cir. 2000), a case similar to the one at bar. There, the appellant first requested the Court "to consider and review all issues raised in the enclosed papers ... "and in a supplemental letter addressed only two of his claims. See Opp. Aff. Exh. 6. Here, I find that the
supplemental letter, which addressed only the improper admission of evidence and the motion for the enlargement of the judgment roll, did not waive the third claim, that the trial court had erred in not granting a mistrial. Therefore, I find that this claim has been exhausted and now turn to the merits.
Petitioner claims that D'Amato's testimony regarding the trial spectator was prejudicial, especially in light of the fear that several jurors had previously expressed about alleged threats from the audience. Petitioner claims that this testimony warranted a mistrial.
The Supreme Court in Arizona v. Washington, 434 U.S. 497 (1978), held that a mistrial should be granted only if there exists a "manifest necessity" for such a declaration. Id at 501. Further, a trial judge has significant discretion in determining whether a mistrial should be declared because "he is far more conversant with the factors relevant to the determination than any reviewing court can possibly be." Id at 513-14.
Here, the trial court acted properly. Immediately after the remarks were made, the court excused the jury and questioned the spectator. Tr. 667-79. The court also permitted the attorneys to conduct legal research on the issue and to present it to the court before it reached its decision. Tr. 679, 685. Thereafter, the court denied the motion for a mistrial, but ordered that the testimony be stricken from the record and issued a curative instruction. Tr. 728-29. In this way, the court acted properly and the petitioner's claim must be dismissed.
IV. Appellate Division Improperly Denied Petitioner's Motion to Enlarge the Record on Appeal
Petitioner contends that the New York State Supreme Court, Appellate Division, First Department improperly denied his motion to enlarge the judgment roll to include the minutes from the first trial that ended in a mistrial. In essence, petitioner argues that if he had been given the opportunity to review and refer to those minutes on appeal, he would have been able to prove that he had been subjected to double jeopardy.
First, the decision to enlarge a judgment roll is discretionary and one that does not implicate Constitutional or federal rights. Therefore, the claim is not cognizable here. See Singhi v. Kuhlmann, 1996 WL 337283, at *4 (S.D.N.Y. June 19, 1996) (holding that the decision to enlarge a record did not create a due process right and denying habeas relief on this ground.)
Moreover, even if this was a proper claim for habeas relief, petitioner's claim would fail on the merits. Both the Supreme Court and the Second Circuit have held that when a criminal defendant consents to or moves for a mistrial, the double jeopardy provision does not apply. See United States v. Jorn, 400 U.S. 470, 485 (1971); United States v. Huang, 960 F.2d 1128, 1133 (2d Cir. 1992) (stating that, "where the original trial has not been completed and the defendant ... has moved for or consented to a mistrial, however, a retrial is normally not barred.") The exception to this rule is when "the mistrial was occasioned by conduct of the trial judge or the prosecutor that was "intended to provoke the defendant into moving for a mistrial.'" Id at 1133 ( citing Oregon v. Kennedy, 456 U.S. 667, 673 (1982)). There is no evidence of judicial or prosecutorial misconduct or error that would place the instant case within the exception established by Huang. The mistrial was declared after a juror fell ill and was unable to continue deliberations.
CONCLUSION
For the reasons stated above, the petition is denied. The clerk is instructed to close the case.