Summary
recommending denying habeas corpus petition challenging 1996 Bronx County conviction on the merits
Summary of this case from Simpson v. KeyserOpinion
01 Civ. 1379 (BSJ) (AJP)
July 12, 2001
REPORT AND RECOMMENDATION
To the Honorable Barbara S. Jones, United States District Judge:
Pro se petitioner Theodore Simpson seeks a writ of habeas corpus from his second-degree murder conviction, after a jury trial in Supreme Court, Bronx County, for the 1993 shooting of Arthur Massey in the Bronx. Simpson alleges two grounds for habeas relief: insufficient evidence (Pet. ¶ 12(B) p. 5B) and prosecutorial misconduct during summation (Pet. ¶ 12(A) p. 5A).
For the reasons set forth below, Simpson's petition should be DENIED.
FACTS
Trial Evidence
On September 12, 1993 at around 2:00 a.m., Arthur Massey and three teenagers, his sister Tene Massey, his girlfri end Priscilla McCloud and his cousin Marquis Kendle, attended a party in apartment 5C on the third floor of 2147 Honeywell Avenue in the Bronx. (T. Massey: 122-28, 208-09, 281-82; Kendle: 337-39, 413; McCloud: 512-17.) Leaving the party with McCloud and Tene Massey at 4:00 a.m., Arthur Massey tapped Juan Carlos Franco (who was in the doorway blocking their way) on his shoulder and said "Yo, you're my man. Watch it. The ladies are coming through." (McCloud: 529-32, 537, 597; T. Massey: 143, 150-53; Kendle: 357, 364-65.) Simpson, who was standing with Franco, looked at Arthur Massey and said, "Yo, what you saying man, what you saying?" and told Kendle, who was already in the stairway when his friends left the party, "You better check your man because he know what the word is. The word is excuse me." (McCloud: 539; T. Massey: 154-56; Kendle: 357-66.) Although Arthur Massey said "there's no problem" and "no beef," nevertheless Simpson punched Arthur Massey and a fight broke out on the brightly lit second floor landing of the building, involving Arthur Massey, Simpson and Franco. (T. Massey: 156-65, 221, 227; McCloud: 540-46, 585; Kendle: 366-73, 431; Camacho: 802-04, 835, 863-64.) Hearing the commotion and "loud arguing," Nelson Camacho, who had come to the party with Franco, came downstairs from apartment 5C. (Camacho: 782-86, 800-02, 866-70, 938.) The "fight was getting out of hand," so Kendle left the building, to get help from the police. (Kendle: 372-73, 378.)
Arthur Massey was "getting the best" of Simpson, i.e., "winning the fight," when Franco got Arthur Massey in a headlock. (T. Massey: 166-67; McCloud: 545-48; Camacho: 805-06.) Franco's lip was bleeding and he said, referring to Arthur Massey, "This [n-word] bust my lip. You think I'm some kind of punk. You think I'm a punk." (McCloud: 549.) McCloud and Tene Massey begged Franco to let Arthur Massey go. (T. Massey: 168-70; McCloud: 549.) Franco responded, "I can't" and "No. This [n-word] bust my lip. He think I' m a punk." (T. Massey: 168-70; McCloud: 549, 684.) Franco told Simpson, "Go get the gun. Go get the gun." (T. Massey: 170-71, 263; McCloud: 549; Camacho: 805, 807.)
Simpson ran upstairs to apartment 5C and asked his friend Nick Quinones if he had his "joint," meaning gun. (Quinones: 1113.) Quinones said "yeah" and asked Simpson "for what?," and Simpson said he wanted it in case individuals with whom he and Quinones had a dispute the previous day came to the building, and Quinones gave his .22 caliber handgun to Simpson. (Quinones: 1103, 1113-15.) Simpson ran back downstairs, holding Quinones' gun in his hand. (T. Massey: 171-72, 248, 282, 304-07; McCloud: 551; Camacho: 806, 808, 875, 946.) Tene Massey screamed for help and ran downstairs, out of the building. (T. Massey: 174, 187-88, 286; McCloud: 558, 636-37.) McCloud remained on the second floor landing. (Massey: 174; McCloud: 556, 558, 604, 637.) Quinones heard the scream,
Simpson pointed the gun at Arthur Massey's head, pulled back the slide of the gun and a bullet fell out; Franco told Simpson to hurry up and again Simpson pulled back the slide and another bullet fell to the floor. (McCloud: 552-55; Camacho: 809; Quinones: 1116-21.) Franco said, "Shoot him, shoot him. Show this [n-word] you ain't no punk." (McCloud: 552-53, 684.) Simpson cocked the gun a third time, told Franco to "muevete loco" (meaning get out of the way), and as soon as Franco moved, Simpson shot Arthur Massey in the back of the head. (McCloud: 554-57, 657-61, 673, 683, 685-86; Camacho: 809-11, 818-20, 943-46; Quinones: 1117, 1120-22.)
After the fatal shot was fired, Franco let go of Arthur Massey and kicked him in the face. (Quinones: 1122-23.) Simpson gave the gun to Quinones, told him to put it away and continued to run upstairs. (Quinones: 1122-24, 1220-23.) McCloud ran outside. (McCloud: 558.) Camacho left the building because he was carrying a gun and the police were arriving. (Camacho: 820-21, 875, 877-78.) Qui nones also left the building but ran back upstairs when he saw the police arriving. (Camacho: 819-21, 823, 943; Quinones: 1124, 1161-62, 1221-23.) As Camacho was walking away from the building, he saw Simpson run out of the building and cross the street. (Camacho: 821-23.)
When the police arrived, Tene Massey told them that there was a fight upstairs involving her brother, Arthur Massey. (T. Massey: 189, 239-40, 287-88.) McCloud, who had exited the building, told the officers, "They shot him. They have guns." (T. Massey: 239-40, 287-88; McCloud: 558-59, 665, 673.)
Back inside the building, Quinones was about to throw the .22 caliber gun out of a window between the first and second floors, when a police officer tried to grab him and pushed him so hard that he fell against the window, the gun fell out of Quinones' waistband, out the window and into the back alley. (Quinones: 1125-27, 1223-27, 1231-32.) An officer frisked Quinones and told him to get out of the building. (Quinones: 1127-28.) Officer Contino recovered a .22 automatic and another gun from behind the building. (Contino: 714, 717-20, 729, 732, 754.)
When Sergeant Malkin and Officer Contino arrived on the second floor, they observed Arthur Massey's dead body, two .22 caliber bullets and a .22 caliber shell casing. (Contino: 713, 723-24; Malkin: 1049-53.) When Detective Katen arrived at the crime scene, he observed that Massey's corpse was slumped against the wall in a seated position, with a bullet hole in the top rear of the head. (Katen: 987, 990; see also Contino: 723.) Detective Katen recovered the ballistic evidence. (Katen: 982-87, 989 — 90, 993-95; Contino: 756.)
On March 7, 1994, after a police investigation, Simpson was arrested and placed in three lineups. (Moroney: 1614-15.) For the first lineup, Simpson chose to sit in 468-70; Moroney: 1615.) Prior to Tene Massey viewing the lineup, Simpson changed his position to seat number five; Tene Massey viewed the six-man lineup and identified Simpson, stating that he looked like the person who had the gun and was fighting with her brother Arthur. (T. Massey: 197-99, 300-02; Moroney: 1616.) Although the lineup participants wore ski caps, Simpson's hair appeared "puffy" under the hat. (T. Massey: 274-75.) Immediately after viewing the lineup, Tene Massey told the detective in charge of the lineup that Simpson looked like the person who had the gun, but that the perpetrator's hair had been a lot shorter on the crime date. (T. Massey: 199-200, 271-73, 316-17.) McCloud was the next to view the lineup, with Simpson remaining in position number five; McCloud told the detective that Simpson looked "very familiar." (McCloud: 580-81, 669, 688-89.) At trial, she explained that she said this because Simpson had only a mustache at the time of the shooting but at the lineup he also had hair on his chin and because, although the participants wore hats, Simpson's head was "real puffy like he had a lot of hair" which would have been more hair than he had at the time of the crime. (McCloud: 582, 689, 694-98.)
Immediately following the shooting, McCloud told a detective that she did not see anyone get shot. (McCloud: 634-35.) She testified that she lied to the detective because she "didn't want to get involved in the case." (McCloud: 645-48.)
At Simpson's and Franco's joint trial, which commenced on March 13, 1996 and concluded on April 18, 1996, McCloud, Camacho and Quinones described the shooting and McCloud, Camacho, Tene Massey and Kendle described the fight leading up to it; Quinones also detailed how Simpson asked for his .22 caliber semi-automatic gun and returned it after using it to shoot Massey. Camacho had known Simpson for approximately ten years prior to the shooting and was friends with his family (Camacho: 776-80, 948), and Quinones had been friends with Simpson for approximately two years prior to the shooting (Quinones: 1092-97, 1136). Kendle had seen Simpson approximately eight times prior to the shooting, (E.g., McCloud: 537, 585-86, 667, 688-89; Quinones: 1095; Kendle: 344; Camacho: 778; T. Massey: 148-49.)
Camacho was in jail and had been promised a sentence of three and a half to seven years imprisonment for selling heroin; in exchange for his testimony, he was promised probation. (See, e.g., Camacho: 829-30, 832-33, 885-90, 896, 900-02.) Two weeks before trial commenced, Quinones was in jail awaiting sentencing on drug charges for which he could have received eight and a half to twenty-five years, when he decided to cooperate with the prosecution; after his testimony, he was promised probation. (Quinones: 1089-90, 1185-90, 1198-99, 1248-51, 1254-57.)
Camacho testified that he had seen Simpson hundreds of times at parties thrown by "[t]he 9D crew," which he described as "a little crew that they got from the neighborhood because you know they all grew up together and Nine Dungeon is the name that they gave the building because you know it's like dark and cold so they named it Nine Dungeon and it's located at 900 Bronx Park South." (Camacho: 780-81.) When the prosecutor specifically asked if Simpson was a member of 9D, the defense's objection was sustained before Camacho could answer. (Camacho: 781.) Camacho testified, without objection from defense counsel, that Simpson had a 9D tattoo (Camacho: 781) and Quinones also testified, without objection, that Simpson and Franco were members of 9D and that Quinones and Simpson had 9D tattoos. (Quinones: 1093-98, 1102, 1215-16). Indeed, Simpson's counsel on cross-examination asked Quinones about Simpson's membership in 9D. (Quinones: 1215-16.) Ferdinand also testified that Simpson was a member of the 9D crew. (Ferdinand: 1326.)
Simpson was displayed to the jury and the prosecutor commented on "the tattoo that the witness was testifying to." (Tr. 1618-20.)
In addition to the eyewitnesses to the events at 2147 Honeywell Avenue, the prosecution presented two witnesses who testified that Simpson had confessed to the shooting: Leon Russell, a lifelong friend of Simpson's (Russell: 1448-40), testified that two to three months after the shooting, Simpson telephoned him and described how he was fighting with and shot Massey with a gun he got from Quinones and which he gave back to Quinones. (Russell: 1462-65.) Similarly, Joseph Ferdinand testified that he knew Simpson for fourteen years (Ferdinand: 1306), and approximately a year and a half after the shooting, when Simpson and he were in holding cells together, Simpson told him that he shot Massey while "drunk" because of a "bump." (Ferdinand: 1342-43, 1378, 1409-10.)
In exchange for their testimony, Ferdinand, who had pleaded guilty to robbery and was originally promised a sentence of three to six years imprisonment, would now receive probation (Ferdinand: 1300-01, 1310-19, 1356-57, 1374-75, 1379-81, 1392-93) and Russell was promised probation in a pending assault case (Russell: 1448, 1509-11, 1526-27, 1528-31, 1539-41).
Quinones identified the weapon as the gun he gave Simpson, and McCloud, Camacho and Tene Massey identified it as the murder weapon. (Quinones: 1105; McCloud: 568; T. Massey: 186-87, 307-13; Camacho: 834, 914-15.) Moreover, a detective testified that
Summations
In summation, defense counsel "urged the jury to disregard the witnesses who were given deals to testify against" Simpson, asserting that "Quinones, Camacho, Ferdinand, and Russell were nothing more than paid witnesses, who had not been sentenced yet, allowing the prosecution to control their testimony." (ADA Swiger Aff. Ex. 1: Simpson 1st Dep't Br. at 20, citing Tr. 1840-41, 1845-46). In addition, defense counsel attacked McCloud's credibility, emphasizing that she had previously told the police that she did not witness the shooting, as well as Kendle's credibility, pointing out that he had an open robbery case at the time of trial. (Simpson 1st Dep't Br. at 21, citing Tr. 1895.)
The Bronx District Attorney's Office has been unable to obtain pages 1677 to the end of the trial minutes which contains the transcript of the summations. (See 5/07/01 Affirmation of ADA Karen Swiger ("Swiger Aff.") ¶ 4, describing her efforts to obtain the missing minutes.) The Court therefore relies on the description of the summation in Simpson's Counseled brief on appeal to the First Department.
"Counsel further argued that no physical evidence linked [Simpson] to the shooting and that [Arthur Massey's] wounds were inconsistent with the testimony of how the shooting occurred," arguing that while "[a]ll of the witnesses described the shooter facing the victim, . . . the blood splattering on the wall and the location of the entrance wound at the back of the head indicated that [Arthur Massey] was shot from behind." (Simpson 1st Dep't Br. at 21, citing Tr. 1905-06.)
During summation, the prosecutor referred to Simpson and co-defendant Franco as "cowards" and "punks" and made references to the fact that they were in "9D" and had tattoos, while pointing out that the victim did not have a tattoo and had been tired because he was working two jobs. (Simpson 1st Dep't Br. at 21, 34-36, citing Tr. 1919-26; see also State 1st Dep't Br. at 44, quoting Tr. 1926.) In addition, the prosecutor referred to testimony by Ferdinand that Simpson had told him that someone was snitching on Simpson and that Simpson was going to "get" the snitch. (Simpson 1st Dep't Br. at 36, citing Tr. 1949.) The prosecutor also asserted that it was difficult for Tene Massey and McCloud to testify and that they had no motive to lie. (Simpson 1st Dep't Br. at 36-37, citing Tr. 1949.) It is undisputed that defense counsel did not object to any of these comments or lines of argument. (See State 1st Dep't Br. at 35-49; see generally Simpson 1st Dep't Br. at 33-38.)
Simpson's First Department brief quotes from the transcript as follows:
• I submit to you [defendant and co-defendant] were punks. They were cowards. They were getting beat by Arthur Massey ([Tr.] 1919).
• After all, they were from 9D. They were from the crew (id. at 1923).
• Now, take a look at it in the whole context of 9D, of what they're about, of what they do. They have their tattoos. Nick showed you [co-defendant] had the tattoo. It's a code of silence (id. at 1925).
(Simpson 1st Dep't Br. at 34-35.)
McCloud had testified that Arthur Massey was tired the night of the party because he worked two jobs. (McCloud: 528.) The court sustained an objection from defense counsel and told the jury to disregard the answer. (Tr. 528.) Defense counsel did not seek any further relief. (Id.)
Ferdinand had testified Simpson told him that he knew "Alfred" was "snitching" on him, saying, "Alfred is snitching on me. That motherfucker. I know he's snitching on me. I'm going to get him. (Ferdinand: 1343.) (The record does not reflect who "Alfred" is.) Defense counsel made an objection which the trial court overruled. Later, at a sidebar, the judge referred to this testimony and told the prosecutor that he did not like it. (Tr. 1428-29.)
Finally, referring to McCloud's initial statement to the police that she did not witness the shooting, the prosecutor said, "I submit to you . . . she was in denial." (Simpson 1st Dep't Br. at 37, citing Tr. 1950.) Over objection, the prosecutor added: "'I submit to you [McCloud] was suffering from post-traumatic stress syndrome.'" (Simpson 1st Dep't Br. at 37, quoting Tr. 1952.) The court told the jury to disregard the comment. (Id.) It is undisputed that defense counsel sought no further relief. (See State 1st Dep't Br. at 48-49; Simpson 1st Dep't Br. at 37-38.)
Verdict and Sentence
The jury found Simpson guilty of second-degree murder, and on May 20, 1996, Simpson was sentenced to twenty-five years to life imprisonment. (Swiger Aff. ¶ 6; see Pet. ¶¶ 1-4.)
Simpson's Direct State Appeal
Simpson appealed to the First Department, arguing that (1) "the evidence at trial was insufficient to prove [his] guilt of murder in the second degree" (Simpson 1st Dep't Br. at 23-32), and (2) "the prosecutor's remarks on summation were improper and denied [him] a fair trial" (id. at 33-38). In support of hi s sufficiency of the evidence claim, Simpson cited only state cases — he did not cite the federal Constitution or any federal caselaw. (See id. at 23-32)
Specifically, Simpson attacked the credibility of the prosecution's witnesses on the basis that: McCloud initially told the police that she did not witness the murder and did not make a positive identification of Simpson in the lineup but identified him two years later at trial (id at 24-26); Tene Massey did not make a positive lineup identification of but stated that he "looked familiar" (id. at 27); attempted robbery charges were pending against Kendle (id. at 27-28); and Camacho, Quinones, Ferdinand and Russell had criminal records and were given deals by the prosecution in exchange for their testimony (id. at 28-29). In addition, Simpson argued that there was a lack of physical evidence in the case and that there were inconsistencies between what physical evidence there was and the witnesses' testimony. (Id. at 31-32.)
Specifically, Simpson contended that the prosecutor during her summation improperly: (1) "demoniz[ed]" Simpson by pointing out his "9D" tattoo to the jury and referring to him being part of the "9D crew" (id. at 34-35); (2) invoked sympathy for Arthur Massey by referring to the fact that he did not have the tattoo and by referring to McCloud's testimony that Massey was tired because he worked two jobs (id. at 35-36); (3) suggested that Simpson was threatening witnesses by referring to testimony regarding Simpson's comment that he was going to get someone who he thought was "snitching" on him (id. at 36); (4) argued that it had been difficult for Tene Massey, McCloud and Kendle to testify and that they had no motive to lie (id. at 36-37); and (5) submitted to the jury that McCloud was "in denial" and suffering from "post-traumatic stress syndrome" when she told the police she had not witnessed the shooting (id. at 37-38).
The First Department affirmed Simpson's conviction. People v. Simpson, 262 A.D.2d 177, 693 N.Y.S.2d 525 (1st Dep't 1999). As to Simpson's sufficiency of the evidence claim, the First Department held:
The evidence was legally sufficient to establish defendant's guilt of the crime charged and was not against the weight of the evidence. Three individuals testified to witnessing the actual shooting, two others witnessed the altercation leading up to the incident and defendant confessed to two others after the murder. Although defendant challenges the credibility of these witnesses, issues of credibility were properly presented to the finders of fact, who saw and heard the witnesses. And we see no reason to disturb their determination to accept the testimony of the prosecution witnesses.
Id. at 177, 693 N.Y.S.2d at 525-26 (citation omitted).
With respect to Simpson's claim regarding the prosecutor's summation, the First Department held that:
By failing to object, or to request any further relief after an objection was sustained, defendant has failed to preserve his contentions with respect to the prosecutor's summation and we decline to review them in the interest of justice. Were we to review such claims, we would find that although the prosecutor should not have made some of the comments about defendant's tattoo or commented on testimony previously stricken from the record, there was no pattern of inflammatory, prejudicial remarks warranting reversal.
Id. at 178, 693 N.Y.S.2d at 526 (citations omitted).
On November 30, 1999, the New York Court of Appeals denied leave to appeal. People v. Simpson, 94 N.Y.2d 829, 702 N.Y.S.2d 600 (1999).
Simpson's Federal Habeas Petition
Simpson's present federal habeas petition is dated January 23 2001 and was received by the Court's pro se office on January 31, 2001. (Pet. at 2, 7.) The State does not challenge it on AEDPA limitations grounds. (See generally State Br.). His petition alleges that: (1) "the evidence at trial was insufficient to prove [his] guilt of murder in the second degree" (Pet. ¶ 12(B) p. 5B), and (2) "the prosecution's remarks on summation were improper and denied [him] a fair trial" (Pet. ¶ 12(A) p. 5A).
The AEDPA one year limitation period began to run on February 28, 2000, i.e., ninety days after the Court of Appeals' denial of leave to appeal, when the time for Simpson to file a petition for certiorari expired. See Williams v. Artuz, 237 F.3d 147, 150-51 n. 1 (2d Cir. 2001); Fernandez v. Artuz, 00 Civ. 7601, 2001 WL 506889 at *2 (S.D.N Y May 15, 2001) (Peck, M.J.); Bonilla v. Ricks, 00 Civ. 79225, 2001 WL 253605 at *2 (S.D.N.Y. Mar. 14, 2001) (Peck, M.J.); Shaw v. Mazzuca, 00 Civ. 6941, 2001 WL 66404 at *2 (S.D.N.Y. Jan. 26, 2001) (Peck, M.J.); 28 U.S.C. § 2244(d)(1)(A). Thus, Simpson had until February 28, 2001 to file his petition, and so his end of January filing was timely.
ANALYSIS
I. SIMPSON'S SUFFICIENCY OF THE EVIDENCE CLAIM HAS BEEN EXHAUSTED, BUT IS WITHOUT MERIT
A. Simpson Exhausted His Sufficiency of the Evidence Claim
The State contends that Simpson failed to exhaust his state court remedies with respect to his sufficiency of the evidence claim, since his First Department brief and N.Y. Court of Appeals' leave application failed to cite any federal cases or the U.S. Constitution. (State Br. at 5-7.)
Section 2254 codifies the exhaustion requirement, providing that "[a]n 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 — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Zarvela v. Artuz, No. 99-2757, 2001 WL 671762 at *4 (2d Cir. June 14, 2001); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc). As the Supreme Court Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203.
Accord, e.g., Bailey v. People of the State of New York, 01 Civ. 1179, 2001 WL 640803 at *3 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *7 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Brock v. Artuz, 99 Civ. 1903, 2000 WL1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N Y May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.) ( cases cited therein); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).
Accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732; Bailey v. People, 2001 WL 640803 at *3; Bryant v. Bennett, 2001 WL 286776 at *7; Gumbs v. Kelly, 2000 WL 1172350 at *5; Ventura v. Artuz, 2000 WL 995497 at *9; Cruz v. Greiner, 1999 WL 1043961 at *19; Lugo v. Kuhlmann, 68 F. Supp.2d at 360.
For a general discussion of whether a district court should dismiss or stay a mixed petition without prejudice under the AEDPA or decide it on the merits, see, e.g., Zarvela v. Artuz, 2001 WL 671762 at *4-7; Orraca v. Walker, 53 F. Supp.2d at 609-12; Otero v. Stinson, 51 F. Supp.2d at 419-421.
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732-34; Bailey v. People, 2001 WL 640803 at *4; Bryant v. Bennett, 2001 WL 286776 at *8; Brock v. Artuz, 2000 WL 1611010 at *12; Gumbs v. Kelly, 2000 WL 1172350 at *5 n. 9; Ventura v. Artuz, 2000 WL 995497 at *10; Mendez v. Artuz, 2000 WL 722613 at *24; Perez v. Greiner, 2000 WL 915114 at *3; Mendez v. Artuz, 2000 WL 722613 at *24; Foreman v. Garvin, 2000 WL 631397 at *7 n. 9; Thomas v. Greiner, 111 F. Supp.2d at 275; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 360-61; Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996) (Batts, D.J. Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.).
"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General of New York, 696 F.2d at 191. The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:
Accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Bryant v. Bennett, 2001 WL 286776 at *8; Gumbs v. Kelly, 2000 WL 1172350 at *5 n. 10; Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *5 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.); Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
See also, e.g., Bryant v. Bennett, 2001 WL 286776 at *8; Brock v. Artuz, 2000 WL 1611010 at *12 n. 19; Gumbs v. Kelly, 2000 WL 1172350 at *5 n. 11; Holden v. Miller, 2000 WL 1121551 at *5; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (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.
Daye v. Attorney General, 696 F.2d at 194.
Accord, e.g., Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688; Bryant v. Bennett, 2001 WL 286776 at *8; Brock v. Artuz, 2000 WL 1611010 at *12 n. 20; Gumbs v. Kelly, 2000 WL 1172350 at *5 n. 12; Holden v. Miller, 2000 WL 1121551 at *6; Mendez v. Artuz, 2000 WL 722613 at *24 n. 15; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Jordan v. LeFevre, 22 F. Supp.2d at 266, aff'd in relevant part, 206 F.3d 196 (2d Cir. 2000); Diaz v. Coombe, 1997 WL 529608 at *3.
Simpson argued in his First Department brief that "the evidence at trial was insufficient to prove [his] guilt of murder in the second degree" (Simpson 1st Dep't Br. at 23) and that "the credibility of the People's witnesses was such that no rational trier of fact could have found the defendant's identity as the shooter beyond a reasonable doubt" (id. at 32). The State argues that Simpson did not exhaust his sufficiency of the evidence claim for purposes of habeas review because he did not cite to the federal Constitution or federal cases, or to state cases citing to or relying on the federal Constitution. (See State Br. at 4-6.)
The Second Circuit considered this very argument in Hawkins v. West, 706 F.2d 437, 438-39 (2d Cir. 1983). There, the State argued that the petitioner had not exhausted his sufficiency of the evidence claim because, like Simpson, he had failed to refer expressly to the federal due process clause or cite cases applying a federal constitutional analysis. The Second Circuit rejected the State's argument, noting that petitioner's appellate brief stated that "'[t]he prosecution's case fell quite short of that required to prove appellant's guilt beyond a reasonable doubt.'" Id. at 439. The Second Circuit held that "this qualifie[d] as 'an assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution.'" Id. (quoting Daye).
Simpson used language in his First Department brief substantially similar to the language used by the petitioner in Hawkins. (See Simpson 1st Dep't Br. at 32, arguing that the evidence "was such that no rational trier of fact could have found the defendant's identity as the shooter beyond a reasonable doubt"). Accordingly, this Court rejects the State's assertion that "[p]etitioner's brief and leave application contained no phrase uniquely associated with a particular federal constitutional right" (State Br. at 5-6) and finds that Simpson exhausted his sufficiency of the exidence claim. Accordingly, the Court now turns to the merits of that claim.
See also, e.g., Cowan v. Artuz, 96 F. Supp.2d 298, 307 (S.D.N.Y. 2000) (sufficiency of evidence claim exhausted even though "in his appellate brief, petitioner did not frame this claim as a violation of his due process rights, but focused instead on whether the evidence adduced at trial was sufficient to prove the elements of [the crime], citing only state cases"); Burke v. Mann, No. 93-CV-5017, 1995 WL 860755 at *6 (E.D.N Y Dec. 4, 1995) (The petitioner's "challenge to the sufficiency of the evidence placed his claim within the ambit of a long line of cases establishing a defendant's constitutional due process right to protection against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged."); Brooks v. Kelly, No. 88-CV-0631, 1993 WL 350188 at *2 (W.D.N.Y. Sept. 10, 1993); Skinner v. Keane, No. CV-92-1287, 1992 WL 394183 at *2 (E.D.N.Y. Dec. 14, 1992) ("Although petitioner did not cite the Constitution or any federal or state cases employing a constitutional analysis, he adequately presented [his sufficiency of the evidence] claim. Ever since the Supreme Court decided In re Winship and Jackson v. Virginia, the requirement that a defendant be convicted only on evidence that supports the conviction beyond a reasonable doubt has been perceived to be one of constitutional dimensions. This right is as much a part of the constitutional mainstream as the right to effective assistance of counsel, the mere mention of which will satisfy the exhaustion requirement.") (citations omitted); Fagon v. Bara, 717 F. Supp. 976, 979 n. 2 (E.D.N.Y. 1989) ("even if petitioner had not cited the Fourteenth Amendment to the United States Constitution, the court finds that the constitutional nature of petitioner's insufficient evidence claim was fairly presented to the state court by his 'assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution'"); Saddlemire v. Kuhlmann, No. 87-CV-1360, 1988 WL 110447 at *1 (N.D.N.Y. Oct. 18, 1988) ("Petitioner's fourth claim . . . deals with the question of failure to prove guilt beyond a reasonable doubt. This Court concurs . . . that such a claim is 'well within the mainstream of constitutional litigation' regardless of the cases cited."); Murphy v. Snow, No. 86 C 2350, 1987 WL 9060 at *1 (E.D.N.Y. Mar. 26, 1987), aff'd mem., 854 F.2d 1314 (2d Cir. 1988); Brown v. Smith, 84 Civ. 1652, 1986 WL 2767 at *2-3 (S.D.N.Y. 1986).
B. Simpson's Sufficiency of The Evidence Claim is Meritless
"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction' except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.
Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at *7 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1997) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N Y 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).
Petitioner Simpson bears a very heavy burden:
[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).
Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 121 S.Ct. 778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. . . . In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor."), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.) (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor); Simmons v. Mazzuca, 2001 WL 537086 at *7; Jones v. Duncan, 2001 WL 322190 at *7; Cassells v. Ricks, 2000 WL 1010977 at *6; Ventura v. Artuz, 2000 WL 995497 at *8; Roldan v. Artuz, 78 F. Supp.2d at 267; Estrada v. Senkowski, 1999 WL 1051107 at *15; Cruz v. Greiner, 1999 WL 1043961 at *25; Jones v. Strack, 1999 WL 983871 at *13 n. 9; Franza v. Stinson, 58 F. Supp.2d at 138; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
The habeas court's review of the jury's findings is limited:
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).
Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d 1383, 1395 (quoting United States v. Martinez, 54 F.3d 1040, 1042-43); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984); Simmons v. Mazzuca, 2001 WL 537086 at *7; Jones v. Duncan, 2001 WL 322190 at *7; Cassells v. Ricks, 2000 WL 1010977 at *6; Ventura v. Artuz, 2000 WL 995497 at *8; Roldan v. Artuz, 78 F. Supp.2d at 267; Estrada v. Senkowski, 1999 WL 1051107 at *15; Cruz v. Greiner, 1999 WL 1043961 at *25; Jones v. Strack, 1999 WL 983871 at *13; Franza v. Stinson, 58 F. Supp.2d at 138; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
Acknowledging that the jury's verdict "rests on issues [of] credibility," Simpson complains that there was no physical evidence linking him to the crime and that the evidence was insufficient to establish his identity as the shooter. (Pet. at p. 5B.)
Simpson's argument is without merit as the evidence linking him to the crime was sufficient to establish his identity as the shooter. In total, seven witnesses — three eyewitnesses to the shooting (McCloud, Camacho and Quinones), two additional witnesses to the struggle immediately preceding the shooting (Tene Massey and Kendle), and two witnesses to whom Simpson confessed his guilt (Ferdinand and Russell) — provided evidence of Simpson's guilt. (See pages 2-4 above.) In addition, the .22 caliber murder weapon was recovered outside the building and Quinones identified it as the gun he gave Simpson and McCloud and Tene Massey identified it as the murder weapon. (See pages 5, 8 above.) Furthermore, a bullet fragment that the Medical Examiner removed from Massey's brain was ballistically matched to the gun. (See pages 8-9 above.)
The jury chose to credit the prosecution witnesses' testimony and convict Simpson of Arthur Massey's murder despite both the inconsistencies and the beneficial plea bargains that the prosecution gave certain witnesses, pointed out by defense counsel at trial and now complained of by Simpson in his habeas petition (see Pet. at 5B).
The "jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164 (1989)).
Accord, e.g., United States v. Rosa, 11 F.3d at 337; Simmons v. Mazzuca, 2001 WL 537086 at *8; Ventura v. Artuz, 2000 WL 995497 at *8; Roldan v. Artuz, 78 F. Supp.2d at 269; Estrada v. Senkowski, 1999 WL 1051107 at *16; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
This Court may not reassess the jury's finding of credibility: "'[f]ederal habeas courts are not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.'" Vera v. Hanslmaier, 928 F. Supp. at 284 (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993)).
Accord, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *8; Ventura v. Artuz, 2000 WL 995497 at *8; Roldan v. Artuz, 78 F. Supp.2d at 269; Estrada v. Artuz, 1999 WL 1051107 at *16; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416-17; Williams v. Bennet, 1998 WL 236222 at *5; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; see also, e.g., Huber v. Schriver, 140 F. Supp.2d 265, 277 (E.D.N.Y. 2001) ("[M]ost of petitioner's argument rests on the suggestion that the eyewitness testimony was not credible and should not have been given enough weight to result in his conviction. . . . However, under both the state law and . . . federal law, issues of credibility, as well as the weight to be given to evidence, are questions to be determined by the jury. . . ."); Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony").
Here, as in prior cases, "the jury's decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981). The fact that there were inconsistencies in the prosecution witnesses' testimony does not change the result, see, e.g., Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony), nor does the fact that some of the prosecution witnesses were convicted criminals testifying pursuant to cooperation agreements, see, w.g., United States v. Taylor, 92 F.3d 1313 (2d Cir. 1996) ("Although [the defendant] complains that the bulk of this testimony came from cooperating witnesses, we must defer to the jury's resolution of any questions as to the credibility of witnesses."), cert. denied, 519 U.S. 1093, 117 S.Ct. 771 (1997); Simmons v. Mazzuca, 2001 WL 537086 at *8 (jury entitled to credit main government witness who testified pursuant to cooperation agreement); United States v. Mason, 96 Cr. 126, 2001 WL 69442 at *2 (S.D.N Y Jan. 29, 2001) (jury's action in crediting testimony of cooperating witnesses not to be disturbed).
Accord, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *8; Roldan v. Artuz, 78 F. Supp.2d at 269; Estrada v. Senkowski, 1999 WL 1051107 at *17; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Williams v. Bennet, 1998 WL 236222 at *6; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
See also, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *7-8 (evidence sufficient despite alleged inconsistencies in prosecution's case); Carromero v. Strack, 1998 WL 849321 at *5 (evidence sufficient where jury credited prosecution witnesses' testimony "despite some inconsistencies between their trial testimony and prior statements to the police and to the grand jury"); Davis v. Senkowski, No. 97-CV-2328, 1998 WL 812653 at *5 (E.D.N.Y. Aug. 6, 1998) ("The jury here chose to believe [the prosecution witness]'s testimony despite any inconsistencies in the evidence, and I will not reassess that decision."); Williams v. Bennet, 1998 WL 236222 at *5 ("Williams relies on inconsistencies in his victim's trial testimony as compared to her statements to the police, the District Attorney's office and before the grand jury. These inconsistencies were placed before the jury by the defense, which made them a central focus of its case. The jury's decision to credit [the victim]'s testimony, despite its inconsistencies, over Williams' testimony, is fully supported by the record."); Taxiarhopolous v. Spence, No. CV 92-0790, 1992 WL 403112 at *4 (E.D.N.Y. Dec. 28, 1992) (The petitioner "cannot show that the evidence was insufficient to support conviction. For example, he challenges the credibility of the main prosecution witness . . ., pointing to alleged inconsistencies in his testimony. This, however, was an argument made to, and properly resolved by, the trial jury.").
See also, e.g., United States v. Henderson, 58 F.3d 1145, 1149 (7th Cir. 1995) (convictions were supported by sufficient evidence even though government witnesses had prior convictions and received favorable plea agreements based on cooperation with the government); United States v. Grandinetti, 891 F.2d 1302, 1307 (7th Cir. 1989) ("reversal is not required because the government's case includes testimony by an array of scoundrels, liars and brigands") (internal quotations omitted), cert. denied, 494 U.S. 1060, 110 S.Ct. 1534 (1990); United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir. 1989) (jury may credit testimony that is "totally uncorroborated and comes from an admitted liar, convicted felon, large scale drug-dealing paid government informant").
As for the alleged lack of physical evidence directly linking Simpson to the shooting, there is no requirement that eyewitness testimony be corroborated by physical evidence. See, e.g., United States v. Gonzalez, 110 F.3d 936, 940-41 (2d Cir. 1997) ("It is well settled that where, as here, the government's case is based primarily on eyewitness testimony describing criminal activity, 'any lack of corroboration [with physical evidence] goes only to the weight of the evidence, not to its sufficiency. The weight is a matter for argument to the jury, not a ground for reversal on appeal.' ") (quoting United States v. Roman, 870 F.2d at 71); see also, e.g., United States v. Danzey, 594 F.2d 905, 916 (2d Cir.) ("the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction"), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979); Johnson v. Bartlett, 96 Civ. 6941, 1998 WL 717608 at *5 (S.D.N.Y. Oct. 14, 1998) (same, quoting Danzey). Here, however, there was physical evidence recovered (the murder weapon, a bullet fragment, the discharged shell and the two other live cartridges) — evidence which was consistent with the prosecution witnesses' version of events. (See pages 5, 8-9 above.) Accordingly, Simpson's insufficiency claim based on an alleged lack of physical evidence is wholly without merit. See, e.g., Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) ("Although appellants emphasize the lack of physical evidence connecting them to the murder and contend that the testifying witnesses were not credible,'a conviction may be based on circumstantial evidence and inferences based upon the evidence and the jury is exclusively responsible for determining a witness' credibility.'").
See also, e.g., Natal v. Bennett, 98 Civ. 1872 1998 WL 841480 at *6 (S.D.N.Y. Dec. 3, 1998) (Petitioner "emphasizes the lack of physical evidence connecting him to [the victim's] death and contends that [the prosecution's key witness's] testimony was 'fraught with inconsistencies and motivated by the obvious desire to curry favor with the prosecutor for her boyfriend in hi s then pending case.'. . . It is well-settled that 'a conviction may be based upon circumstantial evidence and inferences based upon the evidence, and the jury is exclusively responsible for determining a witness's credibility.'. . . Ultimately, the jury heard the testimony at issue and resolved any issues of witness credibility in the prosecution's favor. It is not the province of a federal court on habeas review to reassess the credibility of a witness it has not observed."); Norwood v. Hanslmaier, No. 93 CV 3748, 1998 WL 178857 at *3-4 (E.D.N.Y. 1998) ("Petitioner argues that the evidence against him was insufficient to establish his guilt because the police failed to recover a weapon or any other physical evidence, they were unable to lift any identifiable fingerprints from [the crime scene] and . . . the sole eyewitness made a variety of inconsistent statements. Although petitioner's observations are correct, they do not establish that the evidence was constitutionally deficient.")
Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act ("AEDPA") has further limited this Court's role in determining sufficiency of the evidence habeas petitions. The AEDPA amended 28 U.S.C. § 2254(d) to provide that:
(d) 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; 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). See, e.g., Williams v. Taylor, 529 U.S. 362, 402-09, 120 S.Ct. 1495, 1518-21 (2000) (explaining scope of "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1)). For the reasons stated above, this Court cannot say that the First Department's decision that the evidence was sufficient to convict Simpson of murder was contrary to established federal law or was based on an unreasonable determination of the facts.
See also, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (same; "[s]ome increment of incorrectness beyond error is required" for there to be "unreasonable application") (quoting Francis S. v. Stone, 221 F.3d 100, 107-11 (2d Cir. 2000)); Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000), cert. denied, 121 S.Ct. 865 (2001); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *21 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Collins v. Travis, 00 Civ. 3746, 2000 WL 1476664 at *5-6 (S.D.N.Y. Oct. 5, 2000) (Peck, M.J.); Ventura v. Artuz, 2000 WL 995497 at *5-6; Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *13-23 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report recommendation adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Roldan v. Artuz,78 F. Supp.2d at 269-70.
See, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *7-9 (applying AEDPA review standard to insufficiency of evidence claim); Huber v. Schriver, 140 F. Supp.2d at 276-78 (same); Manning v. Walker, No. 99-CV-5747, 2001 WL 25637 at *5-6 (E.D.N Y Jan. 3, 2001) (same); Davis v. Keane, 97 Civ. 8328, 2000 WL 1041454 at *2-3 (S.D.N.Y. July 28, 2000) (same); Garvey v. Kelly, 104 F. Supp.2d 169, 170-73 (W.D.N.Y. 2000) (same); Roldan v. Artuz, 78 F. Supp.2d at 269-70 (same); Estrada v. Senkowski, 1999 WL 1051107 at *17-18 (same); see also, e.g., Hurtado v. Tucker, 245 F.3d 7, 14-20 (1st Cir. 2001) (suggesting "guidelines as to some . . . of the principles in an insufficiency-of-the-evidence case to be used in making the evaluation of 'objective unreasonableness' under § 2254(d)(1)"); Romano v. Gibson, 239 F.3d 1156, 1164-65 n. 2(10th Cir. 2001) (recognizing split in Tenth Circuit "as to whether under AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1)").
Accordingly, Simpson's insufficient evidence habeas claim should be denied.
II. SIMPSON'S PROSECUTORIAL MISCONDUCT CLAIM IS BARRED FROM HABEAS REVIEW BECAUSE THE FIRST DEPARTMENT'S DECISION WAS BASED ON AN ADEQUATE AND INDEPENDENT STATE LAW GROUND
Simpson contends that "[t]he prosecution's remarks on summation were improper and denied [him] a fair trial." (Pet. at p. 5A.) The State argues that this claim is barred from federal habeas review because the First Department's decision rejecting the claim was based on an adequate and independent state law ground. (State Br. at 7-10.)
The State also contends that Simpson's prosecutorial misconduct claim is unexhausted because he did not present it in federal constitutional terms in state court. (See State Br. at 5-6.) The Court rejects this argument. Although Simpson did not cite any federal authority to the state courts in support of his prosecutorial misconduct claim, that claim is nonetheless exhausted. In Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986), the Second Circuit held that a "claim of prosecutorial misconduct [including a claim of improper comments in summation], had sufficiently familiar federal constitutional implications to be within the mainstream of constitutional litigation" as required by Daye v. Attorney General. See also, e.g., Lugo v. Kuhlmann, 68 F. Supp.2d 347, 367 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.) ( cases cited therein).
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996, cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
See also, e.g., Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *9 (S.D.N Y May 21, 2001) (Peck, M.J.); Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at *4 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (April 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N Y Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N Y 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).
"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Garcia v. Lewis, 188 F.3d 71, 77-82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d at 724-25. Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas" Harris v. Reed, 489 U.S. at 264 n. 10 109 S. Ct. at 1044 n. 10.
Accord, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *9; Jones v. Duncan, 2001 WL 322190 at *4; Riles v. Breslin, 00 Civ. 3283, 2001 WL 175250 at *4 (S.D.N Y Feb. 23, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *5 (S.D.N.Y. May 25, 2000) (Peck, M.J.); Estrada v. Senkowski, 1999 WL 1051107 at *9; Cruz v. Greiner, 1999 WL 1043961 at *13; Avincola v. Stinson, 60 F. Supp.2d at 153 n. 7.
See also, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *9; Jones v. Duncan, 2001 WL 322190 at *4; Cruz v. Greiner, 1999 WL 1043961 at *13; Chisolm v. Headley, 58 F. Supp.2d at 286-87; Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."); Torres v. Irvin, 33 F. Supp.2d at 274; Campbell v. Brunnelle, 925 F. Supp. 150, 157 (S.D.N.Y. 1996) (Leisure D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N Y Apr. 20, 1996) (Baer, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. at 285.
Accord, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *9; Jones v. Duncan, 2001 WL 322190 at *4; Cruz v. Greiner, 1999 WL 1043961 at *13; Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irwin, 33 F. Supp.2d at 274; Williams v. Bennet, 1998 WL 236222 at *6; Vera v. Hanslmaier, 928 F. Supp. at 275.
With respect to Simpson's challenges to the prosecution's alleged improprieties in summation, the First Department stated:
By failing to object, or to request any further relief after an objection was sustained, defendant has failed to preserve his contentions with respect to the prosecutor's summation and we decline to review them in the interest of justice. Were we to review such claims, we would find that although the prosecutor should not have made some of the comments about defendant's tattoo or commented on testimony previously stricken from the record, there was no pattern of inflammatory, prejudicial remarks warranting reversal.
People v. Simpson, 262 A.D.2d 177, 178, 693 N.Y.S.2d 525, 526 (1st Dep't), appeal denied, 94 N.Y.2d 829, 702 N.Y.S.2d 600 (1999).
State courts are not required to use any particular language:
We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.
Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559. Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found to be too ambiguous to preclude habeas review, see, e.g., Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1991), the First Department here explicitly stated that it found Simpson's prosecutorial misconduct claim to be unpreserved, People v. Simpson, 262 A.D.2d at 178, 693 N.Y.S.2d at 526, and the fact that the First Department also stated the conclusion it would reach "[w]ere we to review such claims" does not change the result. See, e.g., Glenn v. Bartlett, 98 F.3d at 724-25 (state decision which denied prosecutorial misconduct claim as "not preserved for appellate review" represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds). Thus, the First Department's decision rested on a state procedural ground, but the Court next must consider whether that state procedural basis was "adequate."
Accord, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *10; Jones v. Duncan, 2001 WL 322190 at *4-5; Cruz v. Greiner, 1999 WL 1043961 at *13; Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274; Williams v. Bennet, 1998 WL 236222 at *6; Vera v. Hanslmaier, 928 F. Supp. at 286.
See also, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *10 (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them); Jones v. Duncan, 2001 WL 322190 at *5 (same); Yeung v. Artuz, 2000 WL 145103 at *10 (same); Cruz v. Greiner, 1999 WL 1043961 at *12-13 (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274; Owens v. Portuondo, 1999 WL 378343 at *5-6; Stanley v. Kuhlman, 10 F. Supp.2d 250, 254 (E.D.N.Y. 1998) (challenge to prosecutor's summation that Appellate Division held to be unpreserved for appellate review not cognizable on habeas even though Appellate Division found, in an alternative holding, that the prosecutor's challenged remarks constituted a fair response to defense counsel's summation); Williams v. Bennet, 1998 WL 236222 at *6; Vera v. Hanslmaier, 928 F. Supp. at 285; Liner v. Keane, 1996 WL 33990 at *7.
The New York Court of Appeals denied Simpson's application for leave to appeal without opinion. People v. Simpson, 94 N.Y.2d 829, 702 N.Y.S.2d 599 (1999). The Supreme Court held in Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803, 111 S.Ct. at 2594; accord, e.g., Simmons v. Mazzuca, 2001 WL 537086 at 10 n. 6; Jones v. Duncan, 2001 WL 322190 at *5 n. 9; Aramas v. Donnelly, 2000 WL 559548 at *4; Yeung v. Artuz, 2000 WL 145103 at *10; Cruz v. Greiner, 1999 WL 1043961 at *13 n. 3; Chisolm v. Headley, 58 F. Supp.2d at 287; Owens v. Portuondo, 1999 WL 378343 at *5 n. 3; Torres v. Irvin, 33 F. Supp.2d at 274 n. 2; Williams v. Bennet, 1998 WL 236222 at *7 n. 2; Vera v. Hanslmaier, 928 F. Supp. at 286 n. 3. Jones has presented no facts to rebut that presumption here.
Under New York law, in order to preserve his claims for appellate review, Simpson was required to raise his challenges to the prosecutor's alleged errors in summation by way of specific objections before the trial court, and, if his objections were sustained, seek (1988) ("The remarks made by the prosecutor on summation do not require reversal. In some instances where the defendant objected, the objection was sustained and adequate curative instructions were given and in other instances no objection was taken. Therefore, no issue has been preserved for review by this court."); People v. Dordal, 55 N.Y.2d 954, 956, 449 N.Y.S.2d 179, 180 (1982) (failure to timely object to prosecutor's summation comments rendered challenge to those comments unpreserved for appellate review); People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 442-43 (1981) ("Defendant's . . . contention that the convictions should be reversed because of certain of the prosecutor's summation remarks is . . . without merit. The Trial Judge ultimately sustained defense counsel's objection to the District Attorney's comments and directed the District Attorney to refrain from making further statements on the same subject. Defense counsel did not request any curative instruction or move for a mistrial on the basis of the remarks that were made before the Trial Judge's ruling. Hence, no error of law was preserved for appellate review."). It is undisputed, however, that Simpson did not object to any of the prosecutor's comments he now challenges except for one for which an objection was sustained after which no further relief was requested. (See pages 10-11 above.)
See also, e.g., People v. Dawson, 50 N.Y.2d 311, 324, 428 N.Y.S.2d 914, 923 (1980) (challenges to prosecution's summation unpreserved where defendant failed to object); People v. Williams, 46 N.Y.2d 1070, 1071, 416 N.Y.S.2d 792, 793 (1979) ("The . . . prosecutorial summation statements to which defendant has drawn our attention went without objection at all. Consequently, they are not preserved for our review."); People v. Rogers, 721 N.Y.S.2d 533, 533 (1st Dep't 2001) ("By failing to object, by making general objections, or by failing to request any further relief after objections were sustained, defendant failed to . . . preserve her contentions regarding the prosecutor's . . . comments on summation."); People v. Peguero, 249 A.D.2d 134, 135, 671 N.Y.S.2d 243, 243 (1st Dep't) (same), appeal denied, 92 N.Y.2d 858, 677 N.Y.S.2d 89 (1998); People v. D' Allesandro, 184 A.D.2d 114, 118, 591 N.Y.S.2d 1001, 1004 (1st Dep't 1992) ("[T]he major portion of defendant's objections was unpreserved for appellate review. Most of the prosecutor's remarks complained of by the defense were followed by sustained objections or sustained objections accompanied by curative instructions. In that connection, defendant never protested the adequacy of the relief by the judge and neither objected to the curative instructions nor requested additional instructions."), appeal denied, 81 N.Y.2d 884, 597 N.Y.S.2d 945 (1993); People v. Liverpool, 160 A.D.2d 894, 896, 554 N.Y.S.2d 326, 328 (2d Dep't) ("Turning to the defendant's numerous claims of error in the prosecutor's summation, many of the remarks were not objected to and, therefore, the defendant's claims of error with respect thereto are not preserved for appellate review. . . . In those instances in which objections were interposed and sustained, no further relief or curative instructions were requested, nor was a motion for a mistrial made, so that the court must be deemed to have corrected the errors to the defendant's satisfaction and any further claims of error are unpreserved.") appeal denied, 76 N.Y.2d 791, 559 N.Y.S.2d 996 (1990); People v. Merchant, 150 A.D.2d 730, 731 (2d Dep't) ("Most of the allegedly improper remarks uttered by the prosecutor during her summation were not objected to, and the defendant's claims of error with respect thereto therefore are not preserved for appellate review. . . . When defense counsel's intermittent objections were sustained, no further relief or curative instructions were requested, nor was a motion for a mistrial ever made, so that the court 'must be deemed to have corrected the error[s] to the court's satisfaction.'") (quoting People v. Williams, 46 N.Y.2d at 1071, 416 N.Y.S.2d at 793), appeal denied, 74 N.Y.2d 815, 546 N.Y.S.2d 573 (1989).
The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, CPL § 470.50 , is an adequate and 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. 478, 485-92, 497, 106 S.Ct. 2639, 2644-48, 2650 (1986) (same); Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object to prosecutor's statements in opening and on cross-examination constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground).
N.Y.Crim. Proc. Law § 470.05(2) provides, in relevant part: For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.
See also, e.g., Simmons v. Mazzuca, 2001 WL 537086 at *11; Jones v. Duncan, 2001 WL 322190 at 6; Gumbs v. Kelly, 2000 WL 1172350 at 9; Yeung v. Artuz, 2000 WL 145103; Davis v. Miller, 99 Civ. 2423, 1999 WL 1125055 at *4-5 (S.D.N.Y. Dec. 8, 1999) (failure to make specific objections to prosecutor's summation remarks constituted adequate and independent state ground); Cruz v. Greiner, 1999 WL 1043961 at *14; Owens v. Portuondo, 1999 WL 378343 at *6; Torres v. Irvin, 33 F. Supp.2d at 263-64, 273-74; Stanley v. Kuhlman, 10 F. Supp.2d at 253-54 (failure to object to prosecutor's statements in summation constituted adequate and independent state ground); Vera v. Hanslmaier, 928 F. Supp. at 285 ("Failure to object at trial is an independent and adequate state procedural bar."); Liner v. Keane, 1996 WL 33990 at *7; Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously to a state prosecutor's alleged improper summation constitutes an adequate and independent basis for barring habeas review.") (collecting cases); Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *4 (E.D.N.Y. Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993); Bigelow v. Charles, No. 86 CV 1487, 1986 WL 15363 at *1 (E.D.N.Y. Dec. 12, 1986) (failure to object to prosecutorial errors at trial, including allegedly improper attempt to impeach petitioner on cross-examination, constituted adequate and independent state ground).
Because there is an adequate and independent finding by the First Department that Simpson procedurally defaulted on his prosecutorial summation misconduct claims, Simpson would have to show in his habeas petition "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565. Simpson has failed to allege cause and prejudice or that a fundamental miscarriage of justice would result if these claims are not addressed. Therefore, Simpson's prosecutorial misconduct claim is barred from habeas review.
See also, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995) (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence"); Simmons v. Mazzuca, 2001 WL 537086 at *11; Jones v. Duncan, 2001 WL 322190 at *6; Lugo v. Kuhlmann, 68 F. Supp.2d 347, 363 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Owens v. Portuondo, 1999 WL 378343 at *6; Torres v. Irvin, 33 F. Supp.2d at 264, 274; Williams v. Bennet, 1998 WL 236222 at *6; Farrington v. Senkowski, 19 F. Supp.2d at 180 ("The miscarriage of justice exception applies where a petitioner is 'actually innocent' of the crime of which he was convicted or the penalty which was imposed.").
CONCLUSION
For the reasons set forth above, Simpson's petition for a writ of habeas corpus should be denied. Furthermore, because Simpson has not made a "substantial showing of the denial of a constitutional right," the Court should deny a certificate of appealability. 28 U.S.C. § 2253(b).
Simpson also asserts in his habeas petition that "the prosecution . . . had the defendant expose his body parts for inspection by the jury causing the defendant to incriminate himself." (Pet. at p. 5A.) In addition to being unexhausted, this claim is clearly without merit, as Simpson's state appellate counsel recognized. (Simpson 1st Dep't Br. at 34, stating, "An accused can be required, without violating his privilege against self-incrimination, to submit his bodily or other identifying features for inspection" (citing United States v. McCarthy, 473 F.2d 300, 304 n. 3 (2d Cir. 1972)).)