Opinion
No. 98-CV-5130 (JG).
July 5, 2000.
DARRYL WILLIAMS Inmate Number 94-A-5090 Otisville Correctional Facility Petitioner Pro Se.
CHARLES J. HYNES District Attorney, Kings County By: Roseann B. MacKechnie, Sholom J. Twersky, Linda Breen, Howard B. Goodman, Assistant District Attorneys, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Darryl Williams seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he suffered four constitutional violations at his state criminal trial. Finding three of his claims procedurally barred and the fourth meritless, I deny the petition.
BACKGROUND
As explained more fully below this case involved a series of incidents between June 25 and June 29, 1992, and then on July 6, 1992, although the conviction at issue in this petition arose from only the July 6 incident.
A. June 25-29 Incidents
Anthony Barrett, the president of Shrewsbury Construction, oversaw renovation of abandoned buildings, primarily in Brooklyn and in Harlem. (Tr. 46.) In June 1992, Barrett was overseeing two construction projects in Brooklyn, one on Tompkins Avenue and one on Willoughby Avenue. Just before work began on these sites, Barrett encountered petitioner Darryl Williams, a man known as "Moosa," and several other men at the offices of Northeast Brooklyn, a non-profit organization that owned the sites. (Id. at 57.) Williams, Moosa, and the others warned Barrett not to start construction work on the sites without their permission. (Id. at 59.) Barrett knew these men to be part of a group called "Enough is Enough" that often pressured construction contractors for jobs and cash payments (Id. at 56, 352, 362.)
"Tr." refers to the transcript of Williams's trial in the Supreme Court, Kings County, before Justice Lewis L. Douglass in May and June 1994.
On the morning of June 25, 1992, members of the group, including Williams, came to the construction site on Tompkins Avenue. (Id. at 60.) The men surrounded Barrett, and both Moosa and Williams warned him that if he did not pay them "big money" they would shoot him. (Id. at 62.) Barrett told them he would not pay. (Id. at 63.) At that point, Williams told Barrett that he was going to return to his car to get a gun to shoot Barrett. (Id. at 64.) He started walking away, but Moosa called him back. (Id. at 64.) The threats continued, until the men escorted Barrett out of the construction site and to a pay telephone, where they directed him to call Jeff Donason, the representative of the site owner. (Id. at 65.) At the men's direction, Barrett set up a meeting for the next day between Enough is Enough and Donason. (Id. at 67.) The men warned Barrett not to notify the police and again said that if he did not pay them, they would "shoot up the site." (Id. at 67, 69-70.)
Donason backed out of the planned meeting, and members of Enough is Enough telephoned Barrett and told him to go to another construction site on June 29, 1992. (Id. at 72.) Once there, Barrett saw Williams, two men, and a woman drive up. (Id., at 73.) Williams again advised Barrett that the group would "shoot up" Barrett's construction site and there would be a "bloodbath" if he did not pay them. (Id. at 74-75.) Barrett refused and left. (Id. at 75.)
Barrett returned to the Willoughby Avenue site and saw 30 to 40 people there, under the direction of Moosa, evicting his workers. (Id. at 78-79.) Moosa, later joined by Williams, reiterated their warning that they would shoot up the sites if Barrett did not pay them. (Id. at 80.) When Barrett fled to yet another construction site (with Williams chasing him), he again saw members of Enough is Enough disrupting work there. (Id. at 85.) The police subsequently arrived and placed Moosa under arrest, although Williams left before Barrett could identify him for the officers. (Id. at 86.)
B. July 6, 1992 Incident
During the morning of July 6, 1992, Michael Bookal, who worked as a supervisor for Shrewsbury, saw two cars arrive in front of the Willoughby Avenue construction site. (Id. at 181, 198.) He recognized one of the cars because he had seen Williams driving it previously. (Id. at 198.) He saw Williams driving the car on this occasion as well. (Id. at 199.) He saw Williams and three others exit the cars and enter the construction site. (Id. at 199.) They went into the building, and Bookal could not see them anymore. (Id. at 201.) He then heard a gun shot and saw the four men run back out of the building. (Id. at 201-02.) As they ran, all four men fired their guns back into the building. (Id. at 202.) They entered the cars, with Williams taking the wheel of one of the cars. (Id. at 204.) All four men continued firing at the building as they drove off. (Id. at 204-05.)
Raymond Watson, one of his construction workers, was shot in the leg during the attack (Id. at 88, 208, 310.) Watson testified that he was hit at the time that the men were firing from their cars. (Id. at 309-10.)
Both Barrett and Bookal subsequently picked Williams out of a line-up. (Id. at 95, 216.)
C. The Trial
The charges related to the June incidents were severed from those related to the July shooting. In the first trial, involving the June incidents, Williams was charged with one count of attempted grand larceny in the second degree under an extortion theory. (Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus at 3.) On January 25, 1994, Williams was convicted after a jury trial of the lesser included offense of harassment in the first degree. (Id.) He was sentenced to 90 days imprisonment and did not appeal. (Id.)
Before the second trial — the one that led to the conviction that is the subject of this habeas petition — Williams made a motion in limine to exclude evidence about the June incidents. He argued that the prosecution should not be allowed to proceed on the theory that the July shooting was the culmination of the extortionate threats made in June since the earlier jury had acquitted Williams of the extortion-related charge. (Id. at 23.) The trial judge ruled that testimony about the June incidents would be admitted in order to provide context to the shooting but said that neither side should discuss the outcome of the prior trial. (Id. at 24-27.)
The prosecution case consisted principally of the testimony of Barrett, Bookal, and Watson summarized above. On cross-examination, Barrett testified that he did not see Williams shoot Watson but that he knew Williams was one of the people who threatened to shoot him if he did not pay. (Id. at 98.) In apparent violation of the court's pretrial order, Williams's counsel then asked Barrett whether Williams was acquitted of charges arising out of that conduct. (Id. at 98.) After the prosecutor objected, the judge told the jury that Williams had been convicted of harassment in the prior trial, but that the prior verdict was irrelevant because the jury had to try the case before it. (Id. at 101.)
In testimony outside the presence of the jury, Michael Greene, a New York City detective, said that more than a year after the shooting he showed a photographic array, which included a photo of Williams, to Leo Nevers, another worker present during the shooting. (Id. at 424.) Greene asked Nevers if he recognized anyone in the array, and Nevers picked out someone other than Williams. (Id. at 423.) Williams's counsel wanted to elicit this fact from Greene, but the judge refused to allow it, concluding that "this kind of negative identification or negative non-hit is too speculative, too unreliable, too remote from the issue before us, a year and a half later." (Id. at 426.)
Williams put on an alibi defense. Gasper Zizzo, who owns a used car lot, testified that at 10:30 a.m. on July 6 Williams brought in a maroon 1988 Oldsmobile that Zizzo had previously sold Williams. (Id. at 507.) The car's water pump needed repair work, so Zizzo referred Williams to a mechanic located about five minutes away (Id. at 507.) Williams then drove off. (Id. at 508.)
David Girshman, the mechanic, testified that Williams arrived at his garage at about 10:40 that morning, having been referred by Zizzo with a faulty water pump. The work was completed by about 12:30; Williams waited in the garage's front office the entire time. (Id. at 552.) Through Girshman, the defense introduced a receipt for this work allegedly signed by Williams.
In rebuttal, Paul Osborne, a handwriting expert, testified that the alleged Williams signature on the receipt was not actually his signature. (Id. at 720.)
Williams was convicted of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree. (Id. at 867-68.) He was acquitted of assault in the second degree. (Id. at 868.)
At sentencing on June 29, 1994, Williams was deemed a persistent violent second felony offender under New York law. (Sentencing Transcript at 5.) He was sentenced to concurrent terms of imprisonment resulting in a total sentence 10 years to life. (Id. 9.)
D. Collateral and Appellate Litigation
In papers dated May 30, 1995, Williams made a pro se motion in the Supreme Court pursuant to Criminal Procedure Law § 440.10 to vacate his judgment of conviction because of ineffective assistance of counsel. He contended that his attorney had been in possession of police reports and 911 transcripts demonstrating that witnesses initially reported that the four shooters drove up in one white car (not two cars, one of them Williams's maroon vehicle, as was testified to at trial) but had failed to make use of the material for impeachment purposes.
In an order dated September 27, 1995, the Supreme Court denied Williams's motion. The court noted that defense counsel had put on a "strong alibi defense" and that "[t]he fact that this strategy failed in this case does not amount to ineffective assistance of counsel." After considering "the totality of the circumstances," the court concluded that the defendant "was more than adequately represented." On January 26, 1996, the Appellate Division, Second Department granted Williams leave to appeal that decision, and on April 24, 1996, it consolidated the appeal with Williams's direct appeal, which was pending but unperfected.
Williams, represented by counsel, raised four points in the brief for the consolidated appeal. First, he contended that it violated federal and state guarantees of due process for the court to admit testimony about the June incidents, thus allowing the prosecution to "relitigate" a question it had lost in the first trial. Second, he argued that the trial court had impermissibly limited Williams's ability to put on a defense by preventing him from calling Leo Nevers, who picked an individual other than Williams out of a photographic array. Third, he argued that the verdict was "against the weight of credible evidence" and therefore should be vacated "in the interests of justice." Fourth, he argued that the Supreme Court's denial of the motion to vacate the conviction for ineffective assistance of counsel should be reversed.
On February 2, 1998, the Appellate Division, Second Department, affirmed both Williams's conviction and the denial of his § 440.10 motion. See People v. Williams, 668 N.Y.S.2d 636 (2d Dep't 1998). The court concluded that Williams's sufficiency claim was unpreserved because "[h]is motion for a trial order of dismissal did not refer to any specific deficiency in the evidence presented by the People." Id. at 636. Notwithstanding the default, the court went on to address the merits as well, concluding that the evidence was legally sufficient to support the conviction. See id.
The court next concluded that the evidence of Williams's threats was properly admitted because it proved "motive in committing the offenses charged, and was inextricably interwoven with the crime." Id. The evidence was also admissible "to complete the narrative of events regarding the commission of the offense." Id. at 637.
The court rejected Williams's ineffective assistance of counsel claim, concluding that "the defendant enjoyed meaningful representation at all stages of the trial." Id. Finally, the court said that Williams's "remaining contentions" were "either unpreserved for appellate review or without merit." Id.
On March 13, 1998, Williams sought leave to appeal to the New York Court of Appeals. Williams contended that the Appellate Division had erred in holding that admission of the prior threats was proper, given that the prosecutor offered the evidence to show extortion when the defendant had already been acquitted of that charge. He also contended that the Appellate Division erred in concluding that he had failed to preserve his sufficiency claim. On May 7, 1998, the New York Court of Appeals denied leave to appeal.
Williams's petition for a writ of habeas corpus was dated July 10, 1998, and received by the Court on August 7, 1998. Williams raises four claims in the petition. First, he contends that the admission of the evidence of his threats violated his right to due process and "the doctrine of issue preclusion." Second, he contends that his due process rights were infringed because he was precluded from calling a favorable eyewitness witness. Third, he contends that there was insufficient evidence to support his conviction. Fourth, he contends that he was deprived of the effective assistance of counsel.
DISCUSSION
A. Admission of Threat Evidence
When a habeas court is considering a claim that was decided on the merits in a state court proceeding, it may grant relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The two clauses of this provision have "independent meaning." Williams v. Taylor, 120 S.Ct. 1495, 1518(2000).
This provision, added to the habeas statute by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), governs review of this petition since it was filed after AEDPA's enactment. See Williams v. Taylor, 120 S.Ct. 1495, 1518(2000).
Under the first clause, a state court decision will be considered "contrary to" federal law if it either "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "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." Id. at 1519-20.
Under the second clause, a habeas petitioner may win relief if the state court decision "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case."Id. at 1520. The habeas court's determination that the state court wrongly decided the case is a necessary, but not a sufficient, condition to relief under this provision. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522; see also id. ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."); id. at 1521 (holding that standard is one of "objective" reasonableness).
Williams does not contend that the Appellate Division, in rejecting this claim, followed a rule contrary to Supreme Court precedent or that his case presented facts indistinguishable from those in a relevant Supreme Court opinion that the Appellate Division disregarded. Id. at 1519-20. Accordingly, he is entitled to habeas relief only if the court's application of governing law to his case was unreasonable. See id. at 1520. Williams falls far short of making his required showing or unreasonableness.
The Supreme Court has held that "the Double Jeopardy Clause incorporates the doctrine of collateral estoppel." Dowling v. United States, 493 U.S. 342, 347 (1990) (citing Ashe v. Swenson, 397 U.S. 436 (1970)). According to this rule, "`when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.`" Id. (quoting Ashe, 397 U.S. at 443). The Dowling court explained why a violation of this rule was found in Ashe:
Ashe's acquittal in the first trial foreclosed the second trial because, in the circumstances of that case, the acquittal verdict could only have meant that the jury was unable to conclude beyond a reasonable doubt that the defendant was one of the bandits. A second prosecution was impermissible because, to have convicted the defendant in the second trial, the second jury had to have reached a directly contrary conclusion.Id. at 347-48 (citing Ashe, 397 U.S. at 445).
It was reasonable for the Appellate Division to conclude that the introduction of the threat evidence at Williams's second trial did not run afoul of this doctrine. First, "unlike the situation in Ashe v. Swenson, the prior acquittal did not determine an ultimate issue in the present case." Id. at 348. Although the jury in the first case declined to convict Williams of attempted larceny on an extortion theory, it considered only events prior to the shooting on July 6, the subject of the jury verdict at the second trial. There was no overlap in the elements of the offenses at the two trials and therefore no "directly contrary conclusion." Id. Additionally, in this case, unlike in Ashe, the first jury actually convicted Williams, albeit of a lesser included offense. The first jury concluded that Williams was guilty of "intentionally and repeatedly harass[ing] another person" by either "following such person" or "repeatedly committing acts which places such person in reasonable fear of physical injury." N.Y. Penal Law § 240.25. That finding was consistent with the use of this testimony at the second trial.
Williams also asserts that his due process rights were violated by the introduction of this evidence. To constitute a due process violation, "the introduction of this type of evidence [must have been] so extremely unfair that its admission violates `fundamental conceptions of justice.'"Dowling, 493 U.S. at 352 (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)). Williams has failed to show that there was any unfairness at all in the introduction of this evidence. As the Appellate Division reasonably concluded, the evidence was critical to demonstrate Williams's motive in shooting at the construction site and was factually intertwined with the charges before the jury.
B. Eyewitness Testimony and Ineffective Assistance of Counsel
Williams claims that his due process rights were infringed by the trial court's refusal to allow him to call Leo Nevers to testify on his behalf and that his trial counsel was constitutionally ineffective. Because Williams failed to exhaust these claims in state court and because his avenues for doing so under New York law are now closed, I conclude that Williams has procedurally defaulted both claims.
A habeas petition may not prevail unless he "has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To fulfill this requirement, a petitioner must raise the federal constitutional claim in the state's highest court. See Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). He must "fairly apprise" that court of the alleged federal constitutional violation and of the "factual and legal premises underlying the claim." Id.
Although Williams raised these claims in his brief to the Appellate Division, he did not do so in his letter seeking leave to appeal to the Court of Appeals. In that letter, he did not mention his ineffective assistance of counsel claim at all. He mentioned the issue regarding the witness only in arguing that he had properly preserved his sufficiency of the evidence claim. (Williams contended that the dispute regarding this witness fairly apprised the trial court of Williams's objection to the sufficiency of the evidence.) He did not suggest that the alleged preclusion of this witness was a federal due process violation; he therefore did not exhaust this claim in the Court of Appeals. See id. at 119-20; see also id. at 120 (attachment of Appellate Division brief to letter seeking leave to appeal to the Court of Appeals is insufficient to exhaust claims included in brief).
There is no need to dismiss these claims to allow Williams to exhaust them because "`it is clear that the state court would hold the claim[s] procedurally barred.'" Id. at 120 (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)). Under New York procedural rules, Williams cannot again seek leave to appeal to the Court of Appeals. See N.Y. Court Rules § 500.10(a) ("Only one application is available. . .")
Accordingly, these claims will be deemed exhausted but procedurally defaulted. See Grey, 933 F.2d at 121 ("[P]etitioner's forfeiture in state court of his . . . claim bars him from litigating the merits of [that] claim in federal habeas proceedings. . ."). Williams has not shown cause for the default or prejudice flowing from it; nor has he shown that denial of relief would constitute a miscarriage of justice. Accordingly, he is barred from habeas relief from these claims.
C. Sufficiency of the Evidence
Williams's contention that there was insufficient evidence to support his conviction, see Jackson v. Virginia, 443 U.S. 307 (1979), is procedurally barred. In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held that when "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred 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." However, "procedural default in the state court will only bar federal habeas review when `the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)).
Here, the Appellate Division held that the sufficiency claim was unpreserved because Williams's "motion for a trial order of dismissal did not refer to any specific deficiency in the evidence presented by the People." People v. Williams, 668 N.Y.S.2d 636, 636 (2d Dep't 1998). That the Appellate Division went on to find, in the alternative, that Williams's claim failed on the merits as well does not lift the procedural bar. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (citing Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989)).
Williams has not asserted cause for the default or prejudice flowing from it; nor has he shown that denial of relief would constitute a miscarriage of justice. He is therefore not entitled to consideration of the merits of this claim.
Even were this claim not procedurally barred, it would fail on the merits because, inter alia, an eyewitness saw Williams shooting into the building. See United States v. Hernandez, 85 F.3d 1023, 1030 (2d Cir. 1996) (noting the requirement that court reviewing sufficiency of the evidence take evidence in light most favorable to government and resolve all credibility questions in government's favor).
CONCLUSION
For these reasons, the petition for a writ of habeas corpus is denied. In addition, I refuse to issue a certificate of appealability, because petitioner has not presented a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).So Ordered.