Opinion
00 Civ. 6164 (DLC) (GWG).
July 27, 2001.
REPORT AND RECOMMENDATION
To the Honorable Denise L. Cote, United States District Judge:
In this pro se petition brought pursuant to 28 U.S.C. § 2254, petitioner Robert Williams seeks a writ of habeas corpus to set aside a judgment of conviction issued on May 9, 1997, by the Supreme Court, New York County. Williams was convicted of Criminal Sale of a Controlled Substance in the Third Degree under New York Penal Law § 220.39. He was sentenced as a second felony offender to an indeterminate prison term of six to twelve years.
I. WILLIAMS' TRIAL A. The Prosecution's Case
On October 28, 1996, Detectives Douglas Goroway and Daniel Rogan were working as members of a "buy and bust" operation of the Manhattan South Narcotics District (Goroway: Tr. 273-79). As part of this operation, Detective Goroway was to make a buy of narcotics and Detective Rogan was to be the arresting officer for any drug sellers identified as part of the buy operation. (Goroway: Tr. 279, 348-350).
"Tr." refers to the trial transcript of People v. Williams, Indictment No. 9295/96, Supreme Court, New York County. "S." refers to the transcript of the sentencing, the pages of which are numbered separately.
At approximately 6:30 a.m., Detective Goroway and another undercover officer arrived in an unmarked police car at 35th Street and Ninth Avenue. (Goroway: Tr. 281-82, 318). Detective Goroway, who was dressed in plainclothes, walked to Eighth Avenue and 39th Street after receiving permission to do so from his supervisor. (Goroway: Tr. 283-86, 319). He saw Robert Huey standing on the northwest corner of that intersection. (Goroway: Tr. 286, 319). He approached Huey and asked him if anyone was "working." (Goroway: Tr. 286-87). By "working," he meant selling drugs. (Goroway: Tr. 286-87). Huey told Detective Goroway to come with him and together they approached Williams, who was standing a few feet away and holding in his hand a black jacket with an orange lining. (Goroway: Tr. 286-87, 291, 297-99).
Williams and Huey had a brief conversation. (Goroway: Tr. 287). Detective Goroway heard Huey tell Williams that "he was with me," referring to Detective Goroway, and then Williams turned to Detective Goroway and asked him "how many?" (Goroway: Tr. 287, 299-300). Detective Goroway replied that he wanted "two." (Goroway: Tr. 287, 299-300). Williams proceeded to give him two bags of crack cocaine. (Goroway: Tr. 289, 300-302, 340). In exchange for the bags, Detective Goroway gave Williams one ten-dollar bill and two five-dollar bills of pre-recorded "buy money," which was money that had been photocopied previously in order to record the bills' serial numbers. (Goroway: Tr. 277-281, 285-89, 300-304, 339-341).
After placing the two bags of cocaine in his pants pocket, Detective Goroway walked twenty to thirty feet west on 39th Street. (Goroway: Tr. 289, 301-304, 308-309, 341-42). He turned around and saw Williams and Huey engaged in what appeared to be an exchange. (Goroway: Tr. 289, 301-304). After witnessing this exchange, he turned back and walked west, giving descriptions of Huey and Williams over his radio. (Goroway: Tr. 289-290, 303-306).
Detective Goroway received a radio response from his field team and then continued to walk toward his vehicle. (Goroway: Tr. 306-307). About a minute later he entered his vehicle at 35th Street and Ninth Avenue. (Goroway: Tr. 307-308). He called his field team once again to verify that they had received his previous transmissions and gave another description of Williams and Huey, this time with more detail. (Goroway: Tr. 307-308).
Detective Rogan received the first transmission from Detective Goroway as he was parked on 36th Street between Dyer Avenue and Ninth Avenue. (Rogan: Tr. 354-56, 379-380). He drove east on 36th Street to Eighth Avenue. (Rogan: Tr. 356-57, 379-382). At that location, he received the second transmission from Detective Goroway. (Rogan: Tr. 356-58, 382-85). He then drove to 39th Street and Eighth Avenue, where he saw Williams and Huey standing on the northwest corner. (Rogan: Tr. 357-58, 382-83).
Detective Rogan stopped Williams, who was holding a black jacket in his left hand. (Rogan: Tr. 358-59). In Williams' right pocket, Detective Rogan found seven dollar bills and one five-dollar bill. (Rogan: Tr. 364-66, 373-74). Williams was placed under arrest. (Rogan: Tr. 363-64). Detective Rogan later compared the five-dollar bill recovered from Williams with the photocopies of the five-dollar bills used by Detective Goroway to purchase the two bags of cocaine, finding that the recovered bill matched one of the photocopied bills. (Rogan: Tr. 373-79). The police also apprehended Huey, but nothing was recovered from him. (Rogan: Tr. 365-66, 389).
At 6:45 a.m., approximately ten minutes after the sale of the cocaine, Detective Goroway was driven to the scene of the sale and identified Williams and Huey as the men who had sold him the two bags of cocaine. (Goroway: Tr. 309-311). The two bags were eventually tested and found by a Police Department chemist to contain cocaine. (Osuela: Tr. 428-444).
B. The Defense Case
Williams testified on his own behalf at trial. (Williams: Tr. 445-476). Williams testified that on October 28, 1996, he went to 39th Street and Eighth Avenue at approximately 6:45 a.m. to meet his cousin Abdul about the possibility of getting some work. (Williams: Tr. 446-47). He planned to meet his cousin at a store on that block. (Williams: Tr. 447). When he arrived there, no one had seen his cousin so he decided to go home. (Williams: Tr. 447). He never saw Huey, but recalled that a white man said hello to him as he left the store. (Williams: Tr. 461-62) He did not respond to the man and "kept on walking." (Williams: Tr. 462). He denied selling crack to anyone and denied having a five dollar bill on him when he was arrested. (Williams: Tr. 448, 459). Williams testified that when he was arrested he only had eleven one-dollar bills in his back pocket. (Williams: Tr. 447-48).
C. The Rosario Material
One of the documents produced to defense counsel by the District Attorney prior to trial was a copy of property clerk invoice voucher 625882 ("the Voucher") relating to property taken from Williams at the time of his arrest and which had been completed by Detective Rogan. (See Rogan: Tr. 395-96). On direct examination, Detective Rogan testified that he had retrieved a 4 pre-recorded five-dollar bill and seven one-dollar bills from Williams' right jacket pocket. (Rogan: Tr. 364-66, 373-74). According to the copy of the Voucher provided to the defense, however, the total value of the non-pre-recorded money recovered was listed as ten dollars — as opposed to the seven dollars to which Detective Rogan had previously testified. (Rogan: Tr. 395-98). During the cross-examination of Detective Rogan, defense counsel moved the copy of the Voucher into evidence and published it to the jury (Tr. 398), although she did not question Detective Rogan on the reason for the discrepancy.
On re-direct examination, the prosecutor asked Detective Rogan to explain the discrepancy. (Rogan: Tr. 402). Detective Rogan testified that when he initially prepared the Voucher, he had mistakenly typed in "ten" for the total amount of unmarked dollars in the box on the Voucher designated for such a purpose; then, realizing his mistake, he erased the "ten" and replaced it with a "seven." (Rogan: Tr. 402-403). Although this correction registered on the top copy of the Voucher, it did not register on the three carbon copies located beneath the top copy of the Voucher. (Rogan: Tr. 403). After both sides had rested (Tr. 463), Williams argued for the first time that the failure to turn over a copy of the corrected Voucher was a Rosario violation and moved for a mistrial. (Tr. 464). The prosecutor stated that she had been unaware of the error in the Voucher until Detective Rogan testified about it on re-direct and that she would attempt to locate the original Voucher. (Tr. 464-66).
In People v. Rosario, 9 N.Y.2d 286, cert. denied, 368 U.S. 866 (1961), the New York Court of Appeals held that a criminal defendant is entitled to review, upon request, any statement given before trial by a witness for the prosecution relating to the subject matter of the witness' testimony.
The trial judge allowed the prosecutor an opportunity to locate the corrected Voucher. (Tr. 466-67). The judge noted that if the prosecutor could not locate the corrected Voucher, the judge would have to decide upon an appropriate sanction for the Rosario violation, which could include granting Williams' motion for a mistrial or giving an adverse inference instruction to the jury. (Tr. 467). After the judge asked defense counsel "what sanctions are you asking for?" (Tr. 467), the eventual reply from defense counsel was "I'm asking to see the original if we can. That's my application." (Tr. 468).
The next day, the prosecutor informed the trial judge that she had obtained a certified copy of the corrected Voucher. (Tr. 472-73). She then asked to recall Detective Rogan and introduce the corrected Voucher into evidence. (Tr. 472-73). Defense counsel objected to this request and once again moved for a mistrial. (Tr. 473-74). In seeking a mistrial and opposing the admission of the corrected Voucher, defense counsel argued: (a) that the post-trial disclosure of the corrected Voucher constituted a late disclosure of Rosario material and was therefore sanctionable; (b) that counsel had relied on the inaccurate copy of the Voucher in her cross-examination of Detective Rogan and, if admitted, the document would undermine her credibility and that of her client; and (c) that the corrected Voucher was inadmissible because it was a prior consistent statement. (Tr. 474-75, 477-79).
In response to these arguments, the trial judge denied Williams' motion for a mistrial and instead ruled that "in the interest of justice" the jury should be allowed to "know what the [corrected Voucher] showed." (Tr. 476-78). Defense counsel then requested that the prosecution stipulate to the fact that defense counsel never saw the original document until it was produced after both sides had rested. (Tr. 479-480). The prosecution refused to provide such a stipulation 6 and the court stated that "the best way" to elicit information concerning the production of the Voucher from Detective Rogan would be during cross-examination of the Detective. (Tr. 479-480).
The People recalled Detective Rogan as a witness and the court admitted the corrected Voucher into evidence. (Tr. 485-86). Detective Rogan testified that prior to his trial testimony he had not told the prosecutor that he had corrected the dollar amount; that he had given the prosecutor one of the carbon copies of the Voucher, knowing that the prosecutor had a duty to turn it over to the defense attorney; and that no other police officer had witnessed him correct the Voucher. (Rogan: Tr. 487-89).
During the charging conference, Williams did not request that any jury instruction be given regarding the Voucher. (Tr. 480-85). After Detective Rogan had completed his testimony and before summations, the court asked whether there was anything "either side would wish to add to the pre-charge conference that they can put on the record," to which defense counsel responded "No." (Tr. 490). During her summation, defense counsel used the correction of the Voucher to challenge Detective Rogan's credibility. (Tr. 500-501).
D. Conviction and Sentence
On May 8, 1997, the jury convicted Williams of Criminal Sale of a Controlled Substance in the Third Degree under New York Penal Law § 220.39. (Tr. 573). On May 29, 1997, he was sentenced as a second felony offender to an indeterminate prison term of six to twelve years. (S. 9).
II. STATE COURT REVIEW AND THE INSTANT PETITION
Williams appealed his conviction to the Appellate Division, First Department. Williams argued four issues on his appeal, all of which related to the delayed production of the corrected Voucher: (1) that the trial court should have granted his request for a mistrial as the appropriate sanction for the delayed Rosario production; (2) that the People should not have been permitted to re-open their case to introduce the untimely-produced Voucher into evidence; (3) that the trial court should have given a curative jury instruction regarding the Voucher; and (4) that defense counsel should have been allowed to comment to the jury on the Voucher when it was presented. Brief for Defendant-Appellant, dated March 1999 (annexed as Exhibit A to Affidavit in Opposition of Bruno V. Gioffre, Jr. dated December 18, 2000) (hereinafter "Williams Appellate Br."), at 11-28.
The Appellate Division affirmed Williams' judgment of conviction on September 28, 1999, addressing only the claims identified as 1, 3 and 4 above. People v. Williams, 264 A.D.2d 672 (1999). It held that the People's delay in producing the Rosario material did not cause substantial prejudice to Williams and therefore he was not entitled to a mistrial. It also held that Williams had failed to preserve his claim that the trial court should have given him a curative jury instruction because his defense counsel had not requested it. Finally, the court held that the trial record did not support Williams' claim that his defense counsel was not allowed to comment on the inconsistencies in the copies of the property invoice. Id.
Williams made an application for leave to appeal to the New York Court of Appeals, requesting that the Court consider the issues raised in his brief to the Appellate Division. Letter dated October 18, 1999, from Sangeeta Prasad to the Court of Appeals, docketed July 25, 2001 (hereinafter, "October 18, 1999 Letter to the Court of Appeals"). On November 30, 1999, the Court of Appeals denied Williams' application.People v. Williams, 94 N.Y.2d 831 (1999).
On August 17, 2000, Williams filed the instant petition for a writ of habeas corpus asserting grounds for relief identical to the first three grounds for relief raised in his State court appeal. See Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, dated July 25, 2000 (hereinafter, "Petition"), at 5-6. The petition was referred for Report and Recommendation on September 5, 2000. On March 19, 2001, the matter was redesignated to the undersigned for decision.
III. THE LEGAL STANDARDS FOR HABEAS CORPUS PETITIONS UNDER 28 U.S.C. § 2254 28 U.S.C. § 2254 provides a federal remedy for State prisoners if their continued custody violates federal law. Errors of State law are not subject to federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions"). Rather, petitioners must demonstrate that their convictions resulted from a State court decision that violated federal law. See Estelle, 502 U.S. at 68.
"Before a federal court may grant habeas relief to a state prisoner," however, "the prisoner must exhaust his remedies in state court."O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional issues before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one full opportunity to 9 resolve any constitutional claims by invoking one complete round of the State's established appellate review process." Id. at 845; accord Daye v. Attorney General of New York, 696 F.2d 186, 190-91 (2d Cir. 1982).
Petitioners must also have fairly presented the constitutional nature of their claim to the State courts. Daye, 696 F.2d at 191. Petitioners may "fairly present" their federal claims in State court by, inter alia, presenting explicit constitutional arguments, relying on federal and State cases that employ a constitutional analysis, asserting claims in such a way as to call to mind a specific right protected by the Constitution or alleging facts that fall within the mainstream of constitutional analysis. Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995); Daye, 696 F.2d at 194. The Second Circuit has held that even "a minimal reference to the Fourteenth Amendment satisfies the exhaustion requirement." Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (citation to the Fourteenth Amendment in the heading to point one of petitioner's brief satisfied the exhaustion requirement for habeas review purposes) (citations omitted); see also Daye, 696 F.2d at 192-93 ("the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature").
Where a State court rejects a petitioner's claim because the petitioner failed to comply with a State procedural rule, the procedural default constitutes an adequate and independent ground for the State court decision that will "bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations and internal quotations omitted); accord Coleman v. Thompson, 501 U.S. at 735; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d at 829. A procedural default in State court constitutes an independent and adequate ground for the State court judgment of conviction and, although such claims are considered technically "exhausted" for habeas corpus purposes, they are not reviewable by the federal court. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731-32, 735 n. 1 (1991); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Bossett v. Walker, 41 F.3d 825, 829 (2d. Cir 1994). Much like the exhaustion doctrine, the rule barring federal court review of procedurally defaulted claims rests on the principle of comity and respect for State court judgments. See, e.g., Murray v. Carrier, 477 U.S. 478, 488, 494 (1986);Wainwright v. Sykes, 433 U.S. 72, 81 (1977); Epps v. Comm'r of Corr. Servs., 13 F.3d 615, 617 (2d. Cir. 1994).
IV. ANALYSIS OF PETITIONER'S CLAIMS A. Ground One
In Ground One of his petition, Williams asserts that "the denial of defense counsels's [sic] request for mistrial caused prejudice to the petitioner where counsel made a timely request for Rosario material and could not prepare a proper defense without it." Petition at 5. He argues that the delay in production of this material caused his defense counsel to pursue a line of questioning that otherwise would not have been pursued. Id.
Williams presented this argument both to the Appellate Division and to the New York Court of Appeals. Williams Appellate Br. at 13-19; October 18, 1999 Letter to Court of Appeals at 1. See Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir. 2000) (request by petitioner in his motion for leave to appeal that the Court of Appeals "consider and review all issues outlined in 11 defendant-appellant's brief" was "sufficiently specific" to alert the Court of Appeals that petitioner sought review of all issues raised in his brief). He did not present it as a federal constitutional claim, however. Petitioner's argument to the Appellate Division relied exclusively on New York legal authorities and was devoid of any citations to federal law. Williams Appellate Br. at 13-19. Nothing in his argument "call[ed] to mind" any federal legal principles or other principles within the "mainstream of constitutional litigation." Daye, 696 F.2d at 194.
For these reasons, Williams did not "fairly present" a constitutional claim to the State Courts. Picard v. O'Connor, 404 U.S. 270, 275 (1971). Because he failed to fairly present a cognizable constitutional claim to the State courts in regard to Ground One, it is procedurally barred.See, e.g., Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993). Williams no longer has the right to raise any constitutional arguments in regard to the re-opening of the prosecution's case either on direct appeal or collateral review. See New York Court Rules § 500.10(a) (only one application available for leave to appeal to Court of Appeals); New York Criminal Procedure Law § 440.10(2)(c) (collateral procedures are unavailable where defendant could have raised the claim on direct review but did not). Accordingly, Williams's State court procedural default on this claim constitutes an independent and adequate ground for the State court judgment of conviction and therefore this claim is not reviewable by a federal court. See, e.g., Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Bossett v. Walker, 41 F.3d at 828. As Williams has not demonstrated either cause for the default, actual prejudice or a fundamental miscarriage of justice, this Court is barred from reviewing Ground One of his habeas petition. Bossett v. Walker, 41 F.3d at 829; Washington v. James, 996 F.2d at 1447.
In any event, the claim would have to be denied on the merits. It is well established that a claim of a Rosario violation brought before New York State courts, without more, does not present a constitutional issue. See, e.g., Padro v. Strack, 2001 WL 394852 at *2 (S.D.N.Y. April 18, 2001) (error under Rosario at trial was not subject to habeas review because "[t]he Rosario rule is a creation of New York common law"); Green v. Artuz, 990 F. Supp. 267, 274 (S.D.N.Y. 1998) (prosecutorial failure to turn over Rosario material is "purely one of state law" and "is not a basis for habeas relief"); Morrison v. McClellan, 903 F. Supp. 428, 429 (E.D.N.Y. 1995) ("Any error under Rosario at trial would be a violation of State law, and, thus, not subject to review under a petition for a writ of habeas corpus."); United States ex rel. Butler v. Schubin, 376 F. Supp. 1241, 1247 (S.D.N.Y. 1974) (even if "the State courts were in fact in error in interpreting the scope of the Rosario rule, it was one of state law that is not subject to review under a petition for a federal writ of habeas corpus charging infringement of federal constitutional rights."). This is not a case where the allegedly missing material was arguably exculpatory under Brady. See generally Gumbs v. Kelly, 2000 WL 1172350 at * 6-7 (S.D.N.Y. April 18, 2000) (petitioner's Brady claim was not exhausted because "its analogue in the First Department was argued only in terms of New York's Rosario rule" and petitioner's attorney for his State appeals "made no federal constitutional arguments" in regard to the Rosario claim petitioner raised in State court). Indeed, the missing document was inculpatory. Because Williams has made out no "violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2254(a), this ground for relief fails.
B. Ground Two
In Ground Two of his petition, Williams claims that "the trial court's consent to allow the People to [r]e-open their case and admit the certified copy of the 'Voucher' which had been requested by defense counsel since the beginning of the case prejudiced petitioner and denied his right to a fair trial." Petition at 5. In his brief to the Appellate Division, Williams similarly argued that the trial court's decision to allow the case to be re-opened and the corrected Voucher to be admitted into evidence "rewarded the People for their [Rosario] violation and further prejudiced the defense." Williams Appellate Br. at 19; see also October 18, 1999 Letter to Court of Appeals at 1 (incorporating arguments in the Appellate Division brief). Petitioner's argument to the Appellate Division, however, was again devoid of any citations to federal law and relied exclusively on New York case law and New York statutes. Williams Appellate Br. at 19-22. While Williams' habeas petition states that he was "denied his right to a fair trial," Petition at 5, this phrase was never used by Williams in his arguments to the State courts. See Williams Appellate Br. at 19-22.
Even if he had used the term "right to a fair trial" before the State courts, it would not necessarily have been clear to the State courts that he was presenting a federal claim. See, e.g., Daye, 696 F.2d at 193 (where petitioner has described his claim in broad terms, such as denial of a "fair trial," such claims will only be subject to habeas review if they present a "patently constitutional dimension"); McCoy v. Walker, 1999 WL 1191988 at * 8 (S.D.N Y December 14, 1999) (although a specific reference to the Fourteenth Amendment or Fifth Amendment would satisfy the exhaustion requirement, "[t]he mere incantation of the words 'fair trial' and 'due process of law' before the state courts does not always alert them to the federal nature of the claim.")
Thus, Williams also failed to "fairly present" his Ground Two claim as a constitutional violation to the State Courts. Picard v. O'Connor, 404 U.S. at 275. Nothing in his brief on this point to the Appellate Division "call[ed] to mind" any federal legal principles or brings them within the "mainstream of constitutional litigation." Daye, 696 F.2d at 194. Because he failed to present a federal claim to the State courts regarding Ground Two, it is procedurally barred even if he could now re-cast it in federal terms because, as discussed with regard to Ground One, he can no longer present the claim to the State courts. See, e.g., Washington v. James, 996 F.2d at 1447. As Williams has not demonstrated either cause for the default, actual prejudice or a fundamental miscarriage of justice, this Court is also barred from reviewing Ground Two of his habeas petition. Bossett v. Walker, 41 F.3d at 829; Washington v. James, 996 F.2d at 1447.
In any event, Williams' Ground Two claim would have to be denied on the merits. Evidentiary rulings by a State trial court are generally matters of State law and thus do not rise to the level of a constitutional error absent grievous infringements on fundamental fairness. See, e.g., Estelle, 502 U.S. at 67-68; Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983) ("Erroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus."). Consistent with this principle, one Circuit has found no constitutional violation where a trial court allowed the prosecution to re-open its case to call as a witness a co-defendant who had been dismissed from the case. See Hafley v. Sowders, 902 F.2d 480, 482-83 (6th Cir. 1990). Here, the reopening of the prosecution's case was for a limited purpose; the defendant had an opportunity to cross-examine the witness; and the petitioner was not prejudiced by any delay in the presentation of the additional evidence. As already noted, the petitioner's defense counsel used the correction of the Voucher in her summation to attack the officer's credibility. (Tr. 500-01). For these reasons, the ruling did not "so infuse the trial with unfairness as to deny due process of law." Estelle, 502 U.S. at 75 (citation omitted).
C. Ground Three
In Ground Three of his petition, Williams asserts that the trial court erred by failing to provide a "curative instruction to the jury in reference to the delayed Rosario violation." Petition at 6. Williams presented this argument to the State courts. See Williams Appellate Br. at 22-24; October 18, 1999 Letter to Court of Appeals at 1. In its decision affirming Williams' conviction, the Appellate Division relied on a State procedural bar in rejecting this claim. It stated:
By requesting a stipulation by the People rather than an instruction by the court, defendant failed to preserve his present claim that the court should have given a curative instruction on his lack of knowledge of the late-disclosed document and we decline to review the claim in the interests of justice.People v. Williams, 264 A.D.2d 672, 673 (1st Dep't 1999). Such a procedural default is an independent and adequate State ground for the State court's decision and accordingly bars federal habeas review of the decision. See, e.g., Wainwright v. Sykes, 433 U.S. at 86-87. While the Appellate Division also stated that "were [it] to review defendant's claim," it "would" find no substantial prejudice to the defendant from the failure to include the curative instruction, the fact that it explicitly invoked the procedural default is sufficient to foreclose consideration of any federal habeas claim. See, e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) ("federal habeas review is foreclosed when a State court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim").
Under New York law, defendants procedurally default on claims concerning the failure of the trial court to issue proper jury instructions where defense counsel never actually requested the charge at trial. See, e.g., People v. Buckley, 75 N.Y.2d 843, 846 (1990) (claim that court erred in failing to give proper jury instruction is unpreserved where defense counsel failed to request such a charge). Here, when the trial court allowed the prosecution to admit the corrected Voucher into evidence (Tr. 476-78), defense counsel did not ask the trial court for a curative instruction. Nor did she request one at the charge conference. (Tr. 480-85).
His claim having been procedurally defaulted in State court, Williams could only have his claim reviewed on federal habeas review if he "can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. at 262 (internal quotations and citations omitted); accord Coleman v. Thompson, 501 U.S. 722, 735 (1991). No such showing has been made in this case.
In any event, even if the jury charge claim had been properly preserved by Williams, it is settled that errors in State jury charges are questions of State law and thus are not subject to federal habeas review unless the jury charge demonstrably violated a federal constitutional right. See, e.g., Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985) ("In order to obtain a writ of habeas corpus in federal court on the ground of error in state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law."); United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d. Cir.) ("[a] jury charge in a state trial is normally a matter of state law" and is not subject to federal habeas corpus review "absent a showing that alleged errors were such as to deprive defendant of a federal constitutional right"), cert. denied, 423 U.S. 872 (1975).
Where the claimed error is not an erroneous jury instruction but the failure to give a requested instruction, the petitioner bears an especially heavy burden in showing that the trial court's failure to give the instruction to the jury was an error of constitutional magnitude.See, e.g., Henderson v. Kibbe, 431 U.S. 145, 155 (1977) ("An omission, or an incomplete instruction, is less likely to be prejudicial than is an actual misstatement of the law."). Defense counsel never requested an instruction. She brought out the discrepancy in the vouchers during the cross-examination of Detective Rogan (Rogan: Tr. 476-78), however, and used the fact of the late disclosure to attack Detective Rogan's credibility during her closing argument. (Tr. 500-501). It cannot be said that the lack of a curative instruction by the trial court as to theRosario violation "so infect[ed] the entire trial that the resulting conviction violated due process." Henderson v. Kibbe, 431 U.S. at 156-57.
CONCLUSION
For the reasons set forth above, I recommend that Williams' petition for writ of habeas corpus be denied.
Notice of Procedure for 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 have ten (10) days from service of this Report to file any 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 Denise L. Cote, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Cote. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).