Opinion
05 Civ. 4181 (SAS).
October 26, 2006
Lester Watts, 02-R-0051, Beacon, N.Y., for Petitioner (Pro Se).
Michelle Maerov, Assistant Attorney General, New York, N.Y., Counsel for Respondent.
OPINION AND ORDER
I. INTRODUCTION
Lester Watts, proceeding pro se, seeks a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code ("section 2254"), to obtain his release from imprisonment pursuant to a January 2, 2002 final judgment of the Supreme Court of the State of New York. Watts asserts numerous claims in his petition. First, he asserts that his conviction was based upon illegally seized evidence. He also claims that he was denied a fair trial as a result of prosecutorial misconduct, that the trial judge improperly commented on the defendant's decision not to testify, that the drug evidence should have been excluded because it was not tested within forty-five days of seizure as required by law, and that there was insufficient evidence to support his conviction.
See 2/20/05 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus ("Petition").
See Petition ¶ 12B. See also Memorandum of Law in Support of 10/3/05 Traverse Motion, Point I ("Traverse IA") at 1-2. While this claim is somewhat obscure in Watts' petition, it is more fully presented and clarified in his Traverse Motion. Generally, notice pleading is not sufficient in the habeas context ( see Blackledge v. Allison, 431 U.S. 63, 76 n. 7 (1977)), but because Watts is acting pro se, this Court is permitted to "look beyond his inadequate petition to his accompanying detailed memorandum of fact and law." See Aubut v. Maine, 431 F.2d 688 (1st Cir. 1970). See also Pham v. U.S., 317 F.3d 178, 187-88 (2d Cir. 2003) (Sotomayor, J., concurring) ("[S]olicitude for pro se litigants in the Rule 56 context offers guidance for treating similarly-situated movants in the § 2255 context.").
See Petition ¶ 12A.
See id.
See Traverse 1A at 3-5 (citing N.Y. Crim. Proc. L. § 715.50, "Analysis of dangerous drugs").
See Petition ¶¶ 12C and 12D.
II. BACKGROUND
A. The Offense Conduct
Watts was convicted of the criminal sale of a controlled substance in the third degree, in violation of New York Penal Law ("N.Y.P.L.") section 220.39, and criminal possession of a controlled substance in the third degree, in violation of section 220.16 of the N.Y.P.L. The charges resulted from a "buy-and-bust operation" conducted in the vicinity of Amsterdam Avenue and 148th Street in Manhattan on November 26, 2000, in which Watts and a co-defendant, Michael Allen, offered to sell crack cocaine to an undercover police officer.
See id. ¶ 4.
See Respondents' Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus at 2-5.
B. The Transaction
While working undercover as a narcotics officer assigned to purchase drugs in a coordinated buy-and-bust operation, Detective Francisco Flores encountered Watts loitering on 148th Street in Manhattan at approximately 9:00 p.m. Flores approached Watts and told him that he wanted to purchase crack cocaine. Watts told him: "I know where you can hook up. But you have to smoke up." Watts then took Flores to meet Allen. At this encounter, Allen told Watts, regarding the proposed transaction, "You're good to go." Watts then accepted twenty dollars from Flores and left, promising to return with crack. Flores waited at the scene with Allen. When Watts returned, he and Allen took Flores on foot to find a place to smoke the crack. Throughout the transaction, Flores radioed his location, descriptions of the suspects, and details of the transaction to the field team of six officers who were stationed nearby waiting to make the arrests. Flores notified the field team that Watts accepted money for crack, and gave the pre-arranged "buy signal" to indicate that there had been a transaction. When Watts and Allen suggested they enter a building to smoke the crack, Flores alerted the field team to make the arrests, using a pre-arranged distress signal. Watts was arrested by Detective Francis Coppola, and two bags of crack were found on his person. A field test, and laboratory testing conducted several months later, confirmed that the substance contained in the bags was crack cocaine.
See Trial Transcript, Indictment No. 7942/00 ("Trial Tr.") at 30-31. Flores testified that a "buy-and-bust operation" consists of an undercover officer supported by a field team of several other officers. The undercover officer purchases drugs from street dealers, who are then arrested by members of the field team.
See id. at 36-38.
See id. at 38.
Id. at 41.
Id. at 47.
See id. at 48.
See id. at 48-49.
See id. at 48-52.
See id. at 53.
See Transcript of 10/10/01 Mapp/Wade Hearing, Indictment No. 7942/00 ("Mapp Tr.") at 33.
See Trial Tr. at 55-56, 119.
See id. at 54.
See id.
See Mapp Tr. at 15; Police Laboratory Controlled Substance Analysis Report, Attachment to Watts' May 11, 2005 Letter to this Court ("5/11/05 Letter").
C. Pre-Trial Proceedings
On October 10, 2001, Judge Ira F. Beal presided over a combined Mapp/Wade hearing prior to the joint trial of Watts and Allen. Watts' attorney, Robert Jones, sought to exclude the crack recovered from Watts on the ground that the arrest and search of Watts was made without probable cause. During the hearing, Coppola testified that at the time he arrested and searched Watts, he knew that Watts had just accepted money for drugs. Coppola stated that he was able to identify Watts from Flores' description as one of the two men standing with Flores when Coppola and the other officers responded to Flores' distress signal. Judge Beal denied Watts' motion to exclude the crack, ruling that the search was incident to a valid arrest.
See Mapp Tr. at 1-2.
See id. at 57.
See id. at 9, 34.
See id. at 12, 32-36.
See 11/1/01 Decision and Order, Exhibit 1 to 5/11/05 Letter ("Mapp Ruling") at 1-4.
During voir dire, Judge Beal addressed the panel of potential jurors concerning the defendants' right not to testify. Judge Beal said:
[T]he Defense in a criminal case need do nothing. . . . The defendants don't have to take the stand. . . . I think the latter part, the defendant not having to take the stand requires a little extra comment. All of us, since childhood have been conditioned to respond to an accusation. When you were in the fourth grade and if you had picked up a piece of chalk and bounced it off a kid's head in front of you, the teacher did not want to hear your right to remain silent; the teacher wanted to know if you hit Johnny with the chalk. . . . That's not the rule here. . . . In a criminal trial in every state, a defendant not only doesn't have to take the stand if he's charged with a crime, but a juror cannot hold that against the person if he or she chooses to do so.
Transcript of Voir Dire Proceedings, Indictment No. 7942/00 ("Voir Dire Tr."), at 25-26.
Neither defense attorney objected to this instruction.
See id.
D. The Trial
During the trial, Assistant District Attorney Margaret Mahoney questioned Flores about the buy-and-bust operation that led to Watts' arrest, and Flores gave a detailed account of his transaction with Watts. Flores testified that Watts accepted twenty dollars in exchange for crack, but there was no testimony as to whether this money was ever recovered.
See id. at 32-58.
See id. at 47-48, 50.
Mahoney then questioned Flores about his written report of the incident. Flores testified that he initially wrote the report using "John Doe" aliases for Watts and Allen because he did not yet know their real names. In his preliminary report, he identified Watts as "J.D. Gray," because Watts wore a gray doo-rag (a type of head scarf), and Allen as "J.D. Brown." He testified that when he later learned their real names, he replaced the John Doe names in his report, but mistakenly transposed the names of Watts and Allen. As a result, his final report recounted events accurately, but Watts was misidentified as Allen in the report, and vice-versa. Flores testified that no other information in the final report was affected by this error. Flores also testified that in preparation for trial, he refreshed his memory from the preliminary report instead of the final version. Other testimony at trial confirmed that Watts, rather than Allen, was wearing a gray doo-rag on the night in question. On redirect, Mahoney questioned Flores about a meeting she had with Flores in which they discussed this error. Mahoney asked: "[D]id I instruct you to make a new report?" Flores responded, "I don't recall at this time. But I was suppose [sic] to correct it while I was going to the grand jury."
See id. at 61-64.
See id. at 61.
See id. at 61-62.
See id. at 87.
See id.
See id. at 151 (testimony of undercover officer #5654).
Id. at 128.
Mahoney referred to her meeting with Flores in her summation: "I asked him whether or not I told him to redo the paperwork. He said, `No. The paperwork was not redone.' I decided not to have him redo it." Allen's counsel asked to approach the bench but Judge Beal denied his request. Mahoney also told the jury that the "buy money" Flores gave to Watts was not found in his possession. She speculated that Watts secreted the money somewhere when he left Flores to retrieve the crack because: "They know that if they are caught with the marked money on them, that's one more piece of evidence nailing them to the sale." Watts' counsel objected to these statements on the ground that they were unsupported by testimony in the record. Judge Beal overruled the objection.
See id. at 344.
Id.
See id.
See id.
Twice in her summation Mahoney described what constitutes a "sale" of a controlled substance in the third degree. On both occasions, she emphasized that the transfer of drugs from the seller to the buyer is not required. Mahoney first stated: "A sale can take place, as the Judge will instruct you, when there is an offer to sell or when there is an agreement to sell." Later she stated: "What happened there . . . is the sale. The offer and agreement to sell."
Id. at 332.
Id. at 340.
After Mahoney's summation, counsel for both defendants objected to Mahoney's statements as: improperly vouching for Flores; providing unsworn testimony as to both the error in Flores' reports and the fate of the buy money; and improperly instructing the jury on the law. Counsel asked for a curative instruction, and when Judge Beal denied that request, they moved for a mistrial, which was also denied. Watts was convicted on both charges and sentenced to five to ten years on each count, to run concurrently.
See id. at 353-355.
See id. at 356.
See Transcript of Sentencing Hearing, Indictment No. 7942/00, at 7.
E. Direct Appeals
In May 2003, Watts filed his direct appeal. Watts claimed four grounds for appeal: (1) he was arrested and searched without probable cause, (2) Judge Beal's comments on the defendants' right not to testify were improper, (3) Mahoney committed prosecutorial misconduct by vouching for witnesses, referring to facts not in evidence, and shifting the burden of proof, and (4) he was indicted on multiplicitous counts.
See 5/9/04 Brief for Defendant-Appellant, Ex. A to Declaration of Michelle Maerov, Counsel for Respondents, in Opposition to Petition for a Writ of Habeas Corpus ("Maerov Decl.").
See id. at 14.
See id. at 22.
See id. at 27.
See id. at 38.
The Appellate Division denied Watts' appeal in a decision entered on January 22, 2004. The court ruled that there was probable cause because the arresting officer knew, by means of the radio transmissions among the members of the buy-and-bust team, that Watts participated in a drug transaction. The court also ruled that Mahoney's questioning of Flores and her closing argument concerning his paperwork errors were improper but harmless because Watts failed to demonstrate prejudice. Mahoney's other statements were held to be "fair comment on the evidence." Watts' claim that the sale and possession charges against him were multiplicitous was also denied. Finally, the court ruled that Watts' "remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them." The New York Court of Appeals denied Watts leave to appeal.
See People v. Watts, 770 N.Y.S.2d 716 (1st Dep't 2004).
See id. at 717.
See id.
Id.
See id.
Id.
See People v. Watts, 2 N.Y.3d 766 (2004).
Watts, now acting pro se, moved to vacate his conviction pursuant to section 440.10 of the New York Criminal Procedure Law ("C.P.L."). Watts claimed, inter alia, that: (1) the drugs recovered at the time of his arrest were wrongly admitted because they were not tested by the New York City Police Department laboratory within the forty-five days, as mandated by section 715.50 of the C.P.L., (2) the drugs were the product of an illegal search, and (3) the prosecutor engaged in prosecutorial misconduct.
See 5/11/04 Notice of Motion to Vacate Judgment of Conviction Pursuant to C.P.L. § 440.10 ("C.P.L. 440 Motion"), Ex. G to Maerov Decl., at 1.
See id. at 3-5.
See id. at 10.
See id. at 3-5.
The trial court denied Watts' section 440.10 motion as to the first two claims based on lack of jurisdiction because the issues were, or could have been, raised on appeal. Watts' remaining claim of prosecutorial misconduct was denied as "unsupported by any evidence." The Appellate Division denied Watts leave to appeal the trial court's ruling.
See 12/1/04 Decision and Order, Indictment No. 7942/2000 (Cataldo, J.), Ex. I to Maerov Decl. at 2 (citing C.P.L. § 440.10(2)(a) (c)).
Id. at 5 (citing C.P.L. § 440.30(4)(d)).
See People v. Watts, 2005 N.Y. App. Div. LEXIS 3718 (1st Dep't Apr. 5, 2005).
III. APPLICABLE LAW
A. Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
The AEDPA provides that a federal court may entertain an application for a writ of habeas corpus from a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Furthermore, where a state court has adjudicated the prisoner's habeas claims "on the merits," the writ may be granted only if the state court decision:
(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.
Id. § 2254(d).
An adjudication on the merits is a "substantive, rather than a procedural, resolution of a federal claim." A state court decision is "contrary to . . . clearly established federal law" only if either: "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or . . . the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." A state court engages in an "unreasonable application" of federal law where the state court "identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case," or where the state court "unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." A state court's determination of factual issues "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001).
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring).
Id. at 413.
Ryan v. Miller, 303 F.3d 231, 248 (2d Cir. 2002).
B. Exhaustion and Procedural Default
A claim is exhausted whenever there is no longer an available remedy in state court, regardless of the reason for this unavailability. However, in order to qualify for federal habeas review, a petitioner's claim must be "properly exhausted" in compliance with ordinary appellate review procedure. Habeas review is generally not available for claims for which the petitioner's state remedies have been exhausted through a procedural default. This means that a petitioner must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." In New York, "a criminal defendant must first appeal his or her conviction to the Appellate Division, and then must seek further review of that conviction by applying to the Court of Appeals for a certificate granting leave to appeal." Each issue claimed as a ground for habeas relief must be presented in state court at each stage of the process. If a petitioner fails to do so, the issue is not "properly exhausted" and is not subject to habeas review.
Woodford v. Ngo, 126 S. Ct. 2378, 2387 (2006).
O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999).
Woodford, 126 S. Ct. at 2387. Accord Coleman v. Thompson, 501 U.S. 722, 732-33 (1991).
O'Sullivan, 526 U.S. at 845. Accord Woodford, 126 S. Ct. at 2386-87.
Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
See id. at 74-75.
O'Sullivan, 526 U.S. at 848.
Where the state court has rejected a petitioner's claim "pursuant to an independent and adequate state procedural rule," or where the "[state] court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred," the claim is procedurally defaulted. This is true "regardless of the decision of the last state court to which the petitioner actually presented his claims."
Coleman, 501 U.S. at 735, 750.
Id. at 735.
Habeas review of a procedurally defaulted claim is generally unavailable "unless the prisoner can demonstrate 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." Under this standard, cause "must be something external to the petitioner" and "`ordinarily turn[s] on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" To establish prejudice, a "habeas petitioner must show `not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" To show a fundamental miscarriage of justice, a petitioner must demonstrate that a "constitutional violation has probably resulted in the conviction of one who is actually innocent."
Id. at 750.
Id. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
Murray, 477 U.S. at 494.
Doe v. Menefee, 391 F.3d 147, 160-61 (2d Cir. 2004).
"If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative." In every case, the question is whether "the last state court rendering a judgment in the case . . . states that its judgment rests on a state procedural bar." Nevertheless, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust remedies available in the courts of the State."
Turner v. Sabourin, 217 F.R.D. 136, 141 (E.D.N.Y. 2003) (citing Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989)).
Glenn v. Bartlett, 98 F.3d 721, 724 (quoting Harris, 489 U.S. at 263).
C. Habeas Review of Fourth Amendment Claims
The Supreme Court has held that
where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.
Stone v. Powell, 428 U.S. 465, 482 (1976).
Thus, as long as the State provides an opportunity to litigate Fourth Amendment claims, federal habeas relief is not available. A petitioner is only eligible for habeas relief "if the state has provided no procedures at all to redress the alleged fourth amendment violations" or if such procedures were provided but the defendant was unable to use them due to "an unconscionable breakdown in the underlying process." Because "[t]he federal courts have approved New York's procedure for litigating Fourth Amendment claims," a petitioner in New York is not entitled to habeas review of such claims except under exceptional circumstances.
See McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983).
Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989) (citing Gates v. Henderson, 568 F.2d 830, 837 (2d Cir. 1977)). Accord Crawford v. Artuz, 165 F. Supp. 2d 627, 637 (S.D.N.Y. 2001) (citing McPhail, 707 F.2d at 69)).
D. Erroneous Jury Instructions
A court is forbidden to instruct a jury that it may draw an inference of guilt from the decision of the accused not to testify. The propriety of a jury instruction "must be considered in the context of the instructions as a whole and the trial record." A jury charge that erroneously suggests that such an inference may be drawn does not warrant habeas relief unless "`the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'. . . . If the charge as a whole is ambiguous, the question is whether there is a `reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution."
See United States v. Robinson, 485 U.S. 25, 32 (1988).
Estelle v. McGuire, 502 U.S. 62, 72 (1991)).
Middleton v. McNeil, 541 U.S. 433, 437 (2004) (quoting Estelle, 502 U.S. at 72 (1991)).
E. Prosecutorial Misconduct
The threshold at which improper remarks by a prosecutor take on a constitutional dimension is similar to that for erroneous jury instructions: "a prosecutor's comments upon summation must `so infect the trial with unfairness as to make the resulting conviction a denial of due process.'" In United States v. Young, the Supreme Court ruled: "Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding." The ruling in Young directs courts to consider improper prosecutorial remarks in context, and teaches that the existence of "substantial and virtually uncontradicted evidence" normally "eliminates any lingering doubt" that such comments resulted in constitutionally significant prejudice to the defendant. Interpreting Young, the Second Circuit finds constitutional error only where a petitioner can show: "(1) that the prosecutor's statements were improper and (2) that the remarks, taken in the context of the entire trial, resulted in substantial prejudice." In assessing whether the objectionable comments meet this test, courts must consider "the severity of the misconduct, the measures adopted to cure it, and the certainty of conviction in the absence of the misconduct."
United States v. Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
United States v. Young, 470 U.S. 1, 11-12 (1985). Accord United States v. Thomas, 377 F.3d 232, 244 (2d Cir. 2004).
Young, 470 U.S at 19.
Thomas, 377 F.3d at 244.
United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999).
F. Criminal Sale of a Controlled Substance in the Third Degree
"A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells . . . a narcotic drug." "`Sell' means to sell, exchange, give or dispose of to another, or to offer or agree to do the same." The crime is complete when there is an offer or agreement, and there is no requirement that drugs actually pass from the seller to the buyer. G. Section 715.50 of the New York Criminal Procedure Law
N.Y.P.L. § 220.39.
Id. § 220.00.
See, e.g., New York v. Logan, 695 N.Y.S.2d 4 (1st Dep't 1999).
Section 715.50 of the C.P.L. mandates that "in every felony case involving the possession or sale of a dangerous drug, the head of the agency charged with custody of such drugs . . . shall within forty-five days after receipt thereof perform or cause to be performed an analysis of such drugs." However, the statute also provides: "The failure to have an analysis made . . . within the time specified in subdivision one . . . shall not be . . . construed to bar . . . the prosecution of a case involving such drugs." New York courts have interpreted the latter provision to permit the receipt of drugs in evidence even where the State fails to comply with the mandatory forty-five day provision, unless the defendant demonstrates "bad faith or prejudice to defendant due to [the] delay."
IV. DISCUSSION
N.Y.C.P.L. § 715.50(1).
Id. § 715.50(3).
People v. Coleman, 306, 760 N.Y.S.2d 263 (3d Dep't 2003).
A. Watts' Procedurally Defaulted Claims
Watts section 715.50 claim and his claim of insufficient evidence must be denied because he failed to properly exhaust those claims in state court and they are therefore procedurally defaulted. Watts' counsel moved to exclude the drug evidence on the ground that the People failed to comply with section 715.50, but the motion was denied. That claim was not pursued on appeal. Watts has not shown cause "external to the petitioner" for the failure to pursue this issue. Indeed, Watts admits that he and his appellate counsel discussed whether to pursue this issue before the appeal was filed. Habeas review of this claim is therefore precluded.
See Trial Tr. at 268-70.
Coleman, 501 U.S. at 753.
See Traverse 1A at 6.
Nor did Watts pursue his claim that there was insufficient evidence to sustain his conviction. That claim, too, is procedurally barred from habeas review. Alternatively, the claim is devoid of merit. Flores testified that Watts agreed to sell him crack. This evidence alone is sufficient to sustain his conviction for the criminal sale of drugs. Flores' testimony, combined with the drugs found in Watts' possession, are sufficient to sustain a conviction on the possession charge. Therefore, this claim is also denied on the merits.
See Trial Tr. at 48.
See N.Y.P.L. §§ 220.00, 220.39.
See Trial Tr. at 283. See also N.Y.P.L. § 220.19 ("A person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses . . . a narcotic drug with intent to sell it.").
Watts' claim that Judge Beal's remarks during voir dire violated his due process rights is also both procedurally defaulted and without merit. Watts' counsel did not contemporaneously object to the instruction given by Judge Beal to the potential jurors during voir dire. On appeal, the Appellate Division denied the claim as unpreserved, thereby barring federal habeas review. Even if reviewable, this claim would be denied on the merits. Taken out of context, Judge Beal's remarks could be construed as equating a defendant who chose not to testify with the hypothetical fourth grader who was guilty of throwing chalk. Even so, Judge Beal's parable was obviously fanciful, and was far removed from the actual facts of the case. Moreover, the law directs that the remark not be taken out of context. Instead, a court must review the challenged instruction within the context of the entire trial. Judge Beal's remark was immediately preceded and followed by extremely clear and forceful exhortations to the panel not to draw negative inferences from a defendant's decision not to testify. Judge Beal's conduct of the trial was otherwise exemplary. Because the single sentence that Watts complains of was unlikely to influence the jury, it did not violate his due process rights. The Appellate Division correctly applied the law as announced by the Supreme Court in Middleton v. McNeil and Estelle v. McGuire. Watts' due process claim is therefore dismissed.
See Voir Dire Tr. at 25-26.
See Middleton, 541 U.S. at 437; Estelle, 502 U.S. at 72.
See id.
See Voir Dire Tr. at 24-26.
Middleton, 541 U.S. at 437; Estelle, 502 U.S. at 72.
B. Petitioner's Fourth Amendment Claims
Petitioner's claim that the drug evidence should have been excluded as the fruit of an illegal search is not subject to habeas review because Watts has not shown an "unconscionable breakdown" in the state's procedures for challenging the admissibility of this evidence. To the contrary, the trial court held a Mapp hearing to consider whether the evidence should be excluded. Two officers testified at length about the circumstances of Watts' arrest and search Watts' counsel presented legal arguments at the hearing. The trial court issued a written decision with detailed findings of fact explaining its reasons for admitting the recovered drugs into evidence. The Appellate Division considered (and denied) Watts' appeal on this issue. Because the state court provided an adequate opportunity to litigate Watts' Fourth Amendment claim, it is not subject to habeas review and must be dismissed.
See Capellan, 975 F.2d at 70.
See Mapp Tr. at 1-56.
See id. at 57-77.
See Mapp Ruling at 1-4.
See Watts, 770 N.Y.S.2d at 717.
C. Watts' Claims of Prosecutorial Misconduct
Watts claims that the prosecutor misstated the law during her summation when she said that Watts' offer and agreement to sell crack constituted a sale. However, the plain language of the governing statute supports her statement. The prosecutor did not misstate the law. As a result, this claim is without merit.
See 5/6/05 Letter from Watts to this Court, Ex. 4 to the 5/11/05 Letter from Watts to this Court, at 4.
See N.Y.P.L. § 220.00.
Watts also claims that the prosecutor improperly introduced facts not in evidence when she mentioned the buy money paid to Watts by Flores. Mahoney's statement, in her closing argument, that no buy money was ever recovered was indeed outside the record. However, Watts has failed to show how he was prejudiced by this statement. Indeed, he based his argument that the evidence against him was insufficient to support a guilty verdict, in part, on the fact that the buy money was never recovered. Because Watts has failed to demonstrate prejudice from this remark, this claim must be denied.
See Petition ¶ 12A.
See id. ¶ 12C.
Watts claims, correctly, that Mahoney acted improperly when she told the jury that she had instructed Flores not to correct his report. The remark arguably bolstered Flores' credibility because it offered a reason why Flores did not correct the report. However, this remark must be weighed against the other evidence adduced at trial concerning Flores' credibility. Flores' testimony covers 115 pages of the trial transcript. The jury had ample opportunity to assess Flores' reliability and truthfulness. Furthermore, Flores's testimony was corroborated by the testimony of other officers who testified at the trial. There was no testimony directly calling Flores' truthfulness into question. Furthermore, while there was no curative instruction directed specifically to the prosecutor's remark, Judge Beal instructed the jury that the attorneys' closing arguments were not evidence, and should not be considered as evidence during their deliberations. Given this context, it is highly unlikely that the prosecutor's remark had any impact on the jury's assessment of Flores' credibility. Under the rule announced in Young, the Appellate Division correctly denied this claim, which must now be dismissed.
See id. ¶ 12A.
See Trial Tr. at 27-142.
See generally Trial Tr. at 143-187 (testimony of Undercover Officer U.C. 5654); see id. at 233-267 (testimony of Sergeant Nappi).
See id. at 362.
Young, 470 U.S at 11-12, 20.
V. CONCLUSION
For the foregoing reasons, Watts' petition is denied. The remaining question is whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Reasonable jurists would not differ on any of the issues raised in this petition. Therefore, I decline to grant a certificate of appealability. Accordingly, Watts' habeas petition [docket No. 2] is hereby dismissed. The Clerk of the Court is directed to close this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted)).