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In Thomas v. Kuhlman, trial counsel failed to investigate the crime scene where a key witness testified that she saw the petitioner standing on a fire escape of the murder victim's building shortly before the victim was killed.
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01 Civ. 6657 (RMB) (AJP).
January 9, 2002
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, U.S. District Judge:
Pro se petitioner Larry Thomas seeks a writ of habeas corpus from his March 24, 1999 conviction, after a jury trial in Supreme Court, New York County, of criminal sale of a controlled substance in the third degree, for which he was sentenced as a predicate felon to four and a half to nine years imprisonment. (See Dkt. No. 1: Pet. ¶¶ 1-6.) Thomas alleges that he was denied due process by the trial court's admission of police testimony regarding "various roles played by participants in street level drug operations, where there was no evidence that more than one person was involved in the alleged sale to an undercover officer." (Pet. ¶ 12.)
For the reasons set forth below, Thomas' petition should be denied.
FACTS
TRIAL EVIDENCE
The Prosecution Case
On May 4, 1998, at approximately 9:30 p.m., Thomas sold two zip-lock baggies of crack cocaine to an undercover police officer who was part of a "buy and bust" operation on 8th Avenue between West 35th and 45th Streets in Manhattan. (UC: Trial Transcript ["Tr."] 233, 236, 246-47.)
As part of the operation, the undercover walked uptown from West 35th Street along 8th Avenue (UC: Tr. 245-46) accompanied by the "ghost," undercover Detective Kevin Arias, whose job was to ensure the undercover's safety and inform the field team of the undercover's location and the seller's identification. (Arias: Tr. 427, 432-36; UC: Tr. 231-32.) Detective Arias was equipped with a communication set and walked opposite the undercover on 8th Avenue. (UC: Tr. 243-46, 325; Arias: Tr. 467-68.)
Reference to "UC" is to the testimony of the undercover officer, who testifi ed in open court but was identified at trial only by shield number, 25880. (Tr. 227-28.)
At the corner of 8th Avenue and 37th Street, a person who was later identified as Thomas approached the undercover and asked what she was doing. (UC: Tr. 246, 250.) The undercover said she was looking for crack and Thomas agreed to take her to someone who had $10 bags of crack cocaine. (UC: Tr. 246-48, 311-14.) Thomas led her into 550 8th Avenue, which, according to the undercover, is a known "crack spot." (UC: Tr. 247, 251-52, 316.) The undercover gave Thomas twenty dollars of pre-recorded buy money for two bags. (UC: Tr. 247, 249.) Thomas walked upstairs to the second floor, where a pool hall is located. (UC: Tr. 247, 251-53, 310.) The undercover heard voices coming from the second floor, but not the exact words said. (UC: Tr. 253.) A few minutes later, Thomas returned and gave the undercover two small blue zip-lock baggies containing crack cocaine. (UC: Tr. 247, 253-54, 320-21, 343; Girgis: Tr. 362-63.) After the exchange, the undercover signalled her back-up, Detective Arias (UC: Tr. 251, 259, 277, 322; Arias: Tr. 432-33), who radioed Thomas' description to the field team, as well as how much buy money the undercover had given Thomas. (UC: Tr. 259-61, 267-70, 277; Hoban: Tr. 380-81.) Detective Stephen Hoban and the field team arrested Thomas on the corner of West 37th Street and 8th Avenue, recovering five of the twenty dollars of pre-recorded buy money from Thomas' pants pocket. (Hoban: Tr. 382-83, 386, 388-89, 396.) After Thomas' arrest, within ten to fifteen minutes of the buy, the undercover drove past and identified Thomas as the seller. (UC: Tr. 280-83, 300-05, 342, 345-46; Hoban Tr. 384-85.)
"Pre-recorded buy money" is money given to an undercover after being photocopied and recorded by an investigator. (UC: Tr. 233; Hoban: Tr. 370-71.) The undercover testifi ed that she was given approximately $77 of pre-recorded buy money. (UC: Tr. 240-41.) She was unsure of the exact bills she used to buy the crack cocaine, but was certain she paid twenty doll ars and gave Thomas at least one five dollar bill. (UC: Tr. 299-301.)
At the time of the arrest, Detective Hoban did not observe anyone else in the area (Hoban: Tr. 383), nor did the undercover observe anyone else inside or outside the building during the exchange (UC: Tr. 257-58, 314-16). Further, the undercover described the area, part of the "garment district", as commercial during the day, but with very little pedestrian traffic at night because everything was closed. (UC: Tr. 239, 309-11.) The undercover described Thomas' appearance at the time of the sale as having long "Jheri curls," round glasses, a tan jacket, some facial hair, and he was 5'9" and 160 pounds. (UC: Tr. 255-56.) The undercover identified Thomas, in the courtroom, as the seller of the crack cocaine she bought. (UC: Tr. 249.)
Detective Hoban's Testimony About "Steerers"
Detective Hoban testifi ed to the roles of participants in street-level drug operations. Detective Hoban stated that in prior buy and bust operations in which he was involved at 550 Eighth Avenue, a "steerer" usually attracted customers off the street. (Hoban: Tr. 372.) Defense counsel objected to the testimony, arguing that such testimony would be prejudicial because it would lead the jury to speculate that Thomas was part of a "larger ongoing drug operation." (Tr. 375; see also Tr. 372, 376-77.) The prosecutor responded that the purpose of the testimony was to offer one possible theory, that Thomas was a steerer, to explain why all the buy money was not recovered (Tr. 373-74), and the trial court allowed the testimony for that purpose (Tr. 377).
Detective Hoban testified that in addition to attracting customers off the street, a steerer usually brought them into a location where drugs were sold and was paid a portion of the sale price. (Hoban: Tr. 378.) Detective Hoban stated that a steerer might also execute hand-to-hand transactions himself and that the steerer was sometimes apprehended with either a portion, or none, of the "buy money." (Hoban: Tr. 378-79.)
Because this portion of Detective Hoban's testimony is the key issue on this habeas petition, it is set out in full :
Q. Now, are you familiar, generally speaking, wi th the street sale of narcotics?
A. Yes.
Q. And are you familiar with the block Eighth Avenue between 37th and 38th Street?
A. Yes.
Q. And had you conducted other operations at that location?
A. Yes.
. . . .
Q. Could you generally describe how drugs were being sold at that location?
A. There was usually one person on the street, a steerer, who then would go down to get their clientele off the street.
[Objection and side bar colloquy omitted.]
Q. Could you describe for the jury, if you're familiar with that location, the function of a steerer who might be operating at a location like that?
A. A steerer is somebody — a person used by a drug dealer to bring clients into a location or to a set on the street where the drug transactions are (continued. . .) Q. And typically how would a steerer be paid?
A. A steerer is paid by the amount of customers he brings in.
Q. And would a steerer get a portion of a particular sale?
A. Yes.
Q. Could the steerer also do the hand-to-hand or the actual transaction of a sale?
A. Yes.
Q. Are you familiar with the term "stash"?
A. Yes.
Q. What is a stash?
A. A stash is an amount of drugs put either in a location or on a person by the drug dealer.
Q. Have there been times where you've engaged in buy and bust operations and made apprehensions where you've recovered no buy money?
A. Yes.
Q. Have there been times when you've recovered portions of the buy money on a person?
A. Yes.
Q. Have there been times that you've made buy and bust operations and recovered no stash?
A. Yes.
Q. Have there been times when you've recovered stash either on a person or in a place?
A. Yes.
(Hoban: Tr. 372, 378-79.)
After Detective Hoban's testimony, the People rested. (Tr. 421.)
The Defense Case
The defense called Detective Kevin Arias, the back-up "ghost" officer. (Tr. 423-24.) Detective Arias testified that he had no independent recollection of the events on May 4, 1998, including the undercover's drug purchase, nor did he recall seeing Thomas that day or any day. (Arias: Tr. 427, 430-31, 441.) On cross examination by the prosecution, Detective Arias was permitted, over defense objection, to read under the business record hearsay exception from his daily activity log, whi ch indicated, among other things, an undercover drug buy at 9:20 p.m. at 8th Avenue and 35th Street, but had no description of the seller. (Arias: Tr. 440-450, 461.) In addition, Detective Arias testified that the area of the operation was a highly commercial area, consisting of fast food restaurants, adul t entertainment venues, and located not far from Madison Square Garden. (Arias Tr. 428-429), contrary to the undercover's description of the area.
Thomas' Testimony
Thomas testified in his own behalf, stating that his name was actually Lloyd Lamar Taylor (Thomas: Tr. 491), although he conceded that when he was arrested for a felony in September 1985 he told officers his name was Larry Dickerson. (Thomas: Tr. 520-21.) Thomas explained that during his May 4th arrest, he did not tell the officers his name was Larry Thomas (when his name is actually Lloyd Lamar Taylor), but instead, because his handcuffs were so tight and he was afraid he was going to have a seizure, when the officers called him Larry Thomas, he simply agreed to be whoever they wanted him to be. (Thomas: Tr. 509-10, 515.)
Thomas stated that he was in the pool room at 550 8th Avenue all day and into the night on May 4th, leaving only once, sometime between 4:00 p.m. and 5:00 p.m. (Thomas: Tr. 494-96.) Thomas insisted that he was not selling crack (Thomas: Tr. 506) but rather was smoking crack with a guy named Tommy and Tommy's girlfri end (Thomas: Tr. 495-96) when the cops "bum-rushed" the pool hall (Thomas: Tr. 499-504). Thomas testified that he had a mild seizure, because he failed to take medication following a head injury, and the police kicked him from behind and put handcuffs on him. (Thomas: Tr. 500, 503, 536-37, 541.) Thomas stated that the officers only arrested the crack smokers that day and none of the dealers. (Thomas: Tr. 502.) Thomas asserted that he had seen Detective Hoban multiple times before May 4th and that Detective Arias was one of the arresting officers who rode in the van with him and the other crack smokers who were arrested that day (Thomas Tr. 501-02.)
Thomas denied selling crack to the undercover officer. (Thomas: Tr. 510.) Thomas insisted that he had no money on him at the time of his arrest. (Thomas: Tr. 507, 534-35.)
Lastly, Thomas admitted to a prior criminal record including two felony convictions, one in September 1985 and one in June 1987, as well as a misdemeanor conviction for unauthorized use of a motor vehicle in August 1986. (Thomas: Tr. 508-09.)
After Thomas' testimony, the defense rested. (Tr. 542.)
The Prosecution Rebuttal Case
Detective Hoban was re-called by the prosecution as a rebuttal witness. (Tr. 542.) He testified that he never saw Thomas before the arrest (Hoban: Tr. 544) and that he first saw Thomas at the corner of 37th Street and 8th Avenue, outside the pool hall (Hoban: Tr. 546). Detective Hoban stated that no one on the arresting field team kicked Thomas (Hoban: Tr. 547-48), that Thomas did not appear to be trembling or seizing (Hoban: Tr. 548-49), and that when asked his name, Thomas told the arresting officers his name was "Larry Thomas" (Hoban: Tr. 550-551). Lastly, Detective Hoban testified that there is a very strong, distinct odor and usually a yellowish color on the lips and tongue after a person smokes crack, and while standing face to face with Thomas during the arrest, he noticed a yellowish color on Thomas' lips but not the distinctive odor. (Hoban: Tr. 555-56.)
The Prosecution's Summation
In summation, the prosecution reviewed the undercover's version of the events that led to the arrest and asserted that one possible explanation of why Thomas only had five of the twenty dollars of the pre-recorded money from the sale on him at the time of the arrest was that he was a "steerer" for a drug operation. (People's Summation: Tr. 575-77, 579-80.)
Verdict and Sentence
The jury found Thomas guilty of criminal sale of a controlled substance in the third degree. (Tr. 620-22.) On March 24, 1999, Thomas was sentenced as a predicate felon to four and a half to nine years imprisonment. (Sentence: Tr. 626-27, 629.) Thomas' Direct State Court Appeal. Thomas appealed his conviction to the First Department, arguing that his right to due process was violated because the trial court erroneously permitted the arresting officer to testify to various roles played by participants in street level drug operations. (Jha Aff. Ex. A: Thomas 1st Dep't Br. at 13-18.) Thomas argued that the testimony was unnecessary because there were many "common sense" explanations for the absence of the full amount of the pre-recorded buy money. (Thomas Br. at 14.) Thomas also argued that the testimony had the effect of suggesting to the jury that Thomas was a member of an organized drug operation when in fact there was no other evidence of the involvement of more than one person in the drug sale. (Thomas Br. at 14-17.)
On December 14, 2000, the First Department unanimously affirmed Thomas' conviction. People v. Thomas, 278 A.D.2d 76, 718 N.Y.S.2d 169 (1st Dep't 2000). The First Department's opinion, in full, reads: "Brief and limited testimony from the arresting officer concerning the roles of participants in street-level drug sales was warranted by the evidence, was relevant to the issues presented in the case and was not unduly prejudicial". Id. (citations omitted).
The New York Court of Appeals denied leave to appeal on April 16, 2001.People v. Thomas, 96 N.Y.2d 807, 726 N.Y.S.2d 386 (2001).
Habeas Corpus Petition
Thomas' timely single-issue pro se habeas corpus petition alleges that his right to due process was violated by the trial court's admission of the arresting officer's testimony regarding the "various roles played by participants in street level drug operations, where there was no evidence that more than one person was involved in the alleged sale to an undercover officer." (Dkt. No. 1: Pet. ¶ 12.)
ANALYSIS
I. APPLICABLE LEGAL PRINCIPLES
A. The AEDPA Review Standard
Before the Court can determine whether Thomas is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
For additional cases authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of the Report Recommendation, see Thomas v. Duncan, 01 Civ. 6791, 2001 WL 1636974 at * 7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.);Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at * 6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at * 16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (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.);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at * 10 (S.D.N.Y. May 25, 2000) (Peck, M.J.).
(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) . . . 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)(1)-(2).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence."Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.
Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000);Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000),cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).
Accord, e.g., Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001);Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent 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 result different from [Supreme Court] precedent.Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.
Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.
In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ 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." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1521.
Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.
The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); see also, e.g., Loliscio v. Goord, 263 F.3d at 184.
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.Sellan v. Kuhlman, 261 F.3d at 312; accord Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
B. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:
We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court' s opinion suggests reli ance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).Sellan v. Kuhlman, 261 F.3d at 314; accord Aparicio v. Artuz, 269 F.3d at 93.
"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, 68, 112 S.Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'"). Thus, a habeas petitioner must demonstrate that the allegedly-erroneous state court evidentiary rulings violated an 1988) ("The [habeas] court must determine whether the exclusion [of testimony] was an error of constitutional dimension. . . . "); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial.") (emphasis in original), cert. denied, 464 U.S. 1000, 104 S.Ct. 503 (1983). That is a "heavy burden, for 'generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.'" Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).
See also, e.g., Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *12 nn. 19-20 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (citing cases);Roldan v. Artuz, 78 F. Supp.2d 260, 276 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Grant v. Demskie, 75 F. Supp.2d 201, 209 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.), aff'd, 234 F.3d 1262 (2d Cir. 2000);Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at * 4-5 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at * 5-6 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.).
See also, e.g., Roldan v. Artuz, 78 F. supp.2d at 276 (citing cases); Grant v. Demskie, 75 F. Supp.2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *5; James v. Senkowski, 1998 WL 217903 at *5.
The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional. See, e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constituti onal magnitude); Jones v. Stinson, 94 F. Supp.2d at 391-92 (once the habeas court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis).
This assumes that the petitioner has not attacked the constitutionality of the state evidentiary rule itself. See Jones v. Stinson, 94 F. Supp.2d 370, 387 n. 19 (E.D.N.Y.) (distinguishing between cases "where an evidentiary rule was correctly applied as a matter of state law, but is either unconstituti onal on its face or violates a constitutional right as applied," and cases where the petitioner took no exception to the constitutionality of the state evidentiary rule, but asserted that the state court decision misapplied the state rule, resulting in a constitutional violation), rev'd on other grounds, 229 F.3d 112 (2d Cir. 2000).
See also, e.g., Williams v. Walker, No. 00-CV-5912, 2001 WL 1352105 at * 3 (E.D.N.Y. Oct. 31, 2001) (habeas court must first determine if ruling was erroneous under state law, and then whether ruling was of a constitutional magnitude); Coleman v. Greiner, No. 97-CV-2409, 1999 WL 320812 at * 5 (E.D.N.Y. May 19, 1999); Till v. Miller, 96 Civ. 4387, 1998 WL 397848 at * 4 (S.D.N.Y. July 16, 1998);Mitchell v. Herbert, 97 Civ. 5128, 1998 WL 186766 at * 5-6 (S.D.N.Y. Apr. 20, 1998); Copes v. Schriver, 97 Civ. 2284, 1997 WL 659096 at * 3 (S.D.N.Y. Oct. 22, 1997); Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N.Y. 1997); Dey v. Scully, 952 F. Supp. 957, 969 (E.D.N.Y. 1997) ("[T]he Court engages in a two part analysis, examining 1) whether the exclusion [of evidence] was error under state law, and 2) whether the error amounted to the denial of the constitutional right to a fundamentally fair trial."); see generally Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001) (in determining whether failure to give state jury charge violated federal constitution, first question for habeas court is whether the charge was required under New York law, and only if so, was the failure to give the charge of constitutional dimension).
Second, the petitioner must allege that the state evidentiary error violated an identifiable constitutional right. This necessarily eliminates consideration of purely state evidentiary errors not cognizable in the federal system. Here, Thomas alleged that the evidentiary error at issue here violated his due process right to a fair trial (Jha Aff. Exh A. Thomas 1st Dep't Br. at 13-18.)
See, e.g., Landy v. Costello, No. 97-2433, 141 F.3d 1151 (table), 1998 WL 105768 at * 1 (2d Cir. Mar. 9, 1998) ("To the extent that this claim is based on a Rosario violation, it must fail, because a habeas peti tion can only be granted to remedy some violation of federal law; the obligation to turn over Rosario material arises under state law. Thus, the only question is whether the prosecution violated Brady."); Arocho v. Walker, 01 Civ. 1367, 2001 WL 856608 at *3 (S.D.N.Y. July 27, 2001) ("Violation of the notice requirement of [N.Y.C.P.L.] § 710.30 is purely a matter of state law and raises no constitutional issues for a habeas court to review."); Ventura v. Artuz, 2000 WL 995497 at * 12 (same); Roldan v. Artuz, 78 F. Supp.2d at 276 (Molineux claim not cognizable as such on habeas); Benitez v. Senkowski, 1998 WL 668079 at * 5 (bolstering claim does not state federal claim, citing cases); Ayala v. Hernandez, 712 F. Supp. 1069, 1074 (E.D.N.Y. 1989) (police "bolstering" of eyewitness identification testimony held to be, at most, violation of state rule, and thus not could not form basis for constitutional claim).
Indeed, courts have rejected habeas relief where the error violated state rules but comported with the presumptively constitutional Federal Rules of Evidence. See, e.g., Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir. 1996) ("even if admission of [out of court declarant's] statement violated New York law — which unlike federal law requires independent indicia of reliability for a co-conspirator's statement — the statement does not offend the federal Confrontation Clause if it fall s within Rule 801(d)(2)'s co-conspirator exception"), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Ford v. Crinder, 97 Civ. 303, 2001 WL 640807 at *5 (S.D.N.Y. June 8, 2001) ("Admission of evidence that satisfies [the Federal Rules of Evidence] will not violate a [state] criminal defendant' s due process rights or provide the basis for habeas corpus relief.").
Third, an erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only "'where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman, 839 F.2d at 925 (emphasis in original). The test for "fundamental fairness" is whether the excluded evidence,'" evaluated in the context of the entire record,'" "'creates a reasonable doubt that did not otherwise exist.'" Taylor v. Curry, 708 F.2d at 891 (quoting the materiality standard defined in United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02 (1976)).
See also, e.g., Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000); Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.) ("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.'"), cert. denied, 525 U.S. 840, 119 S.Ct. 101 (1998); Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) ("In order to prevail on a [habeas] claim that an evidentiary error deprived the defendant of due process under the Fourteenth Amendment he must show that the error was so pervasive as to have denied him a fundamentally fair trial. . . .").
"If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justifi cation for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." United States v. Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2402.
Accord, e.g., Jones v. Stinson, 229 F.3d at 120; Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996); Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992); Blissett v. Lefevre, 924 F.2d 434, 439 (2d Cir.), cert. denied, 502 U.S. 852, 112 S.Ct. 158 (1991); Collins v. Scully, 755 F.2d at 19; Rosario v. Kuhlman, 839 F.2d at 925; Roldan v. Artuz, 78 F. Supp.2d at 276; Grant v. Demskie, 75 F. Supp.2d at 209; Benitez v. Senkowski, 1998 WL 668079 at * 5; James v. Senkowski, 1998 WL 217903 at * 6; Dey v. Scully, 952 F. Supp. 957, 971 (E.D.N.Y. 1997).
The "fundamental fairness" standard applies to both the erroneous exclusion or admission of evidence. See, e.g., Dunnigan v. Keane, 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been 'sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'") (quoting Johnson v. Ross, 955 F.2d at 181); Rodriguez v. O'Keefe, 122 F.3d 1057 (table), 1997 WL 557622 at * 2 (2d Cir. Sept. 9, 1997),cert. denied, 522 U.S. 1123, 118 S.Ct. 1068 (1998); Collins v. Scully, 755 F.2d at 18-19; Roldan v. Artuz, 78 F. Supp.2d at 276.
For the reasons stated by Judge Block in Dey v. Scully, "[h]armless error analysis is simply inapplicable to [trial] error that only attains constitutional signifi cance when considered in the context of the entire trial because such analysis inheres in the initial finding that the error was constitutionally significant. A determination that such error was not harmless, after havi ng already concluded that it denied the defendant a fundamentally fair trial, would be tautological."Dey v. Scully, 952 F. Supp. at 974; see also Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 1567 (1995) ("Agurs. . . opted for its formulation of materiality . . . only after expressly noting that this standard would recognize reversible constitutional error only when the harm to the defendant was greater than the harm sufficient for reversal under Kotteakos."); Washington v. Schriver, 255 F.3d 45, 56-57 (2d Cir. 2001) ("The creation of otherwise non-existent reasonable doubt [underAgurs] satisfies the 'substantial and injurious' standard" under Brecht) (quoting Jones v. Stinson, 229 F.3d at 120); Coleman v. Greiner, 1999 WL 320812 at *4-5.
The final question is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue recently addressed by the Second Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial. Id. at 116. The Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings "create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the excluded testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard. Id. at 120-21.
In sum, for Thomas to succeed with his federal habeas corpus petition asserting a state law evidentiary error, he must establish (1) that the state court's evidentiary ruling was erroneous, (2) under Agurs, that admission of the brief testimony about the roles played in street level drug operations deprived him of a fair trial by removing a reasonable doubt that would have existed on the record without it, and (3) under the AEDPA, that the First Department's affirmation of the trial court's ruling constituted an objectively unreasonable application of the Agurs standard.
II. APPLICATION OF THE APPLICABLE LEGAL STANDARDS TO THOMAS' CLAIM OF ALLEGED STATE EVIDENTIARY ERROR
The trial court permitted Officer Hoban's brief testimony about the roles of participants in street-level drug operations for the limited purpose of offering one possible theory, that Thomas was a "steerer," to explain why he had only five of the twenty dollars of pre-recorded buy money when he was arrested. (See pages 4-7 above.) The First Department affirmed the trial court's decision allowing the testimony, holding that "[b]rief and limited testimony from the arresting officer concerning the roles of participants in street-level drug sales was warranted by the evidence, was relevant to issues presented in the case and was not unduly prejudicial." People v. Thomas, 278 A.D.2d 76, 76, 718 N.Y.S.2d 169, 169 (1st Dep't 2000) (citations omitted). Thomas claims his due process rights were violated because the admission of the testimony was erroneous "where there was no evidence that more than one person was involved in the alleged sale to an undercover officer." (Dkt. No. 1: Pet. ¶ 12.)
Thomas asserts that the police testimony was unnecessary because there were many common-sense explanations for the absence of the full amount of the pre-recorded buy money and that admission of the police testimony had the effect of suggesting to the jury that Thomas was a member of an organized drug operation. (Jha Aff. Ex. A: Thomas 1st Dep't Br. at 14-17.) Thomas' habeas claim lacks merit.
It is well established under New York law that background testimony by the arresting officer regarding the mechanics of street level drug sales is admissible to explain "the absence of drugs or buy money on defendant at the time of the arrest." People v. Kelsey, 194 A.D.2d 248, 252-53, 606 N.Y.S.2d 621, 624 (1st Dep't 1994) (leading First Department case);accord, e.g., People v. Graves, 85 N.Y.2d 1024, 1026-27, 630 N.Y.S.2d 972, 973 (1995); People v. Smalls, 266 A.D.2d 570, 570, 699 N.Y.S.2d 114, 114 (2d Dep't 1999), appeal denied, 94 N.Y.2d 884, 705 N.Y.S.2d 17 (2000);People v. McAllister, 255 A.D.2d 241, 242, 682 N.Y.S.2d 129, 130 (1st Dep't 1998), appeal denied, 93 N.Y.2d 876, 689 N.Y.S.2d 438 (1999);People v. Taylor, 247 A.D.2d 277, 278, 667 N.Y.S.2d 909, 910 (1st Dep't) ("The limited testimony regarding typical roles played by participants in street-level drug sales was admissible to explain the absence of prerecorded buy money on defendant and his brother at the time of their arrests."), appeal denied, 91 N.Y.2d 978, 672 N.Y.S.2d 857 (1998); People v. Parks, 237 A.D.2d 105, 105, 654 N.Y.S.2d 365, 366 (1st Dep't) (police testimony "regarding the general practices of the drug trade . . . was appropriate to explain why drugs and money were not found on defendant when he was arrested."), appeal denied, 90 N.Y.2d 862, 661 N.Y.S.2d 189 (1997); People v. Simmons, 232 A.D.2d 152, 648 N.Y.S.2d 10 (1st Dep't) (testimony about street drug sales properly admitted "to explain why defendant was not in possession of prerecorded buy money or drugs when arrested"), appeal denied, 89 N.Y.2d 929, 654 N.Y.S.2d 732 (1996); People v. Reed, 215 A.D.2d 209, 210, 626 N.Y.S.2d 765, 766 (1st Dep't) ("Contrary to the contention by defendant that New York jurors are so familiar with the mechanics of drug dealing that they do not need an expert [police officer] to enlighten them as to such a matter as a drug sale, courts have consistently allowed expert testimony as to the intricacies of drug transactions. When defendant was arrested he was not in possession of any drugs, and this Court has previously held that testimony concerning the various roles in a typical street-level drug operation is relevant and admissible to explain why a dealer is not carrying drug 'stash' when he is arrested.") (citations omitted), appeal denied, 86 N.Y.2d 801, 632 N.Y.S.2d 514 (1995); People v. Gonzalez, 180 A.D.2d 553, 554, 580 N.Y.S.2d 281, 281 (1st Dep't) ("The brief and limited testimony concerning street sales in general was admissible to explain why the 'buy' money was not recovered."), appeal denied, 79 N.Y.2d 1001, 584 N.Y.S.2d 455 (1992); People v. Ellsworth, 176 A.D.2d 127, 128, 574 N.Y.S.2d 14, 14-15 (1st Dep't 1991) ("We reject defendant's argument that the [trial] court erred in admitting explanatory testimony by the undercover police officer respecting general street drug sale practices inasmuch as this testimony was admissible to explain the absence of prerecorded buy money and contraband from the items seized from the defendant upon his arrest."), appeal denied, 79 N.Y.2d 856, 580 N.Y.S.2d 728 (1992).
Here, as in those cases, the police briefly (in less than two pages of the trial transcript) testifi ed to the roles of different participants in street drug sales to explain why Thomas had only $5 of the $20 of prerecorded buy money when he was arrested. (See pages 4-7 n. 4 above, quoting testimony.) The evidence was properly admitted under State law for trial purposes.
Before the First Department, Thomas relied on People v. Colon, 238 A.D.2d 18, 667 N.Y.S.2d 692 (1st Dep't 1997), appeal dismissed, 92 N.Y.2d 909, 680 N.Y.S.2d 50 (1998), for the proposition that such police testimony was unnecessary and prejudicial. (See Jha Aff. Ex. A: Thomas 1st Dep't Br. at 14-16.) In Colon, an undercover asked Colon for drugs, Colon gave him a glassine envelope for a marked ten dollar bill, and Colon was arrested "minutes later," but did not have drugs or the prerecorded buy money on him. 238 A.D.2d at 19, 667 N.Y.S.2d at 693. The prosecution offered "lengthy testimony spread out over some 17 pages of the record, [that] went into considerable detail about how street-level conspiracies to sell drugs were typically structured." Id. The First Department reversed on the facts of that case, holding that there had to be a factual basis for such expert testimony, that is, "there must be some evidence that there was in fact a conspiracy." Id. at 20, 667 N.Y.S.2d at 693; see also People v. Bethea, 261 A.D.2d 629, 629-30, 691 N.Y.S.2d 79, 80-81 (2d Dep't), appeal denied, 93 N.Y.2d 1014, 697 N.Y.S.2d 572 (1999). In Thomas' case, unlike Colon's, there was some evidence of such a conspiracy — Thomas took the money from the undercover, went to the second floor from which the undercover heard voices, and returned with drugs. (See pages 2-3 above.) Thomas' case is similar to the Kelsey line of cases, not to Colon. The brief police testimony, therefore, was not inappropriate.
The First Department's decision affirming the trial court' s decision to admit the brief police testimony for the limited purpose of explaining why Thomas had some but not all of the prerecorded buy money when arrested was not erroneous under New York law. Because Thomas has "failed to make the threshold showing that the First Department erred as a matter of state law in upholding the trial court's decision" to admit the police testimony, "this Court need not reach the question of whether Thomas' due process rights were violated". Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at * 17 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.).
CONCLUSION
For the reasons set forth above, the Court should deny Thomas' habeas corpus petition and should not issue a certificate of appealability
FILING OF 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 shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).