Opinion
02-CV-5891 (JBW) 03-MISC-0066 (JBW)
November 3, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary, This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was tried primarily for attempted second degree murder first degree assault, The prosecution alleged that petitioner choked and then stabbed his ex-girlfriend through the left breast, and that he drove her to the hospital in exchange for her promise not to bring charges against him. Evidence introduced against petitioner at trial included the testimony of the complainant, who described being choked and stabbed by petitioner in her home. She explained that she did not immediately tell police that petitioner had stabbed her because she feared him, She acknowledged that after the incident she attempted to get petitioner released from jail.
The complainant's daughter testified that three days after the incident she spoke with her mother at the hospital, asked her what really happened and then called 911. She also testified that she told the police during the call that petitioner was the assailant, The trial court sustained an objection to this testimony. Detectives testified that after interviewing the daughter at the hospital petitioner was identified as a suspect and later arrested.
Petitioner testified in his own defense. According to petitioner, the complainant told him that she had injured herself by falling on something and that she needed a ride to the hospital, He denied choking or stabbing her. He described an incident in March 1998 during which the complainant pushed her way into the apartment he shared with a girlfriend; after assaulting petitioner and his girlfriend, the complainant was arrested but, according to petitioner, he subsequently dropped charges against her.
Petitioner was convicted of assault in the first degree and criminal possession of a weapon in the fourth degree. He was sentenced primarily to 15-1/2 years in prison.
Petitioner appealed his conviction to the Appellate Division, arguing, inter alia, that he was denied a fair trial when, over objection, the prosecutor bolstered the complainant's credibility with inadmissible hearsay — in particular, the complainant's prior consistent statements through the testimony of her daughter, the detective who interviewed the daughter, and the investigating detective. The Appellate Division rejected this claim both on procedural grounds and on the merits;
The defendant's contention that the admission of testimony from the complainant's daughter, the detective who interviewed the daughter, and the investigating detective constituted improper bolstering is unpreserved for appellate review ( see CPL 470,05(2); People v Udzinski, 146 A.D.2d 245). In any event, the admission of the challenged testimony did not constitute reversible error ( see People v Holt, 67 N.Y.2d 819; People v Johnson, 57 N.Y.2d 969).People v. Wilson, 744 N.Y.S.2d 692, 692 (App. Div, 2002).
One justice dissented in part, acknowledging that the claim had not been preserved but concluding that the claim should have been reached in the interests of justice:
To preserve a claim of error on the ground of improper bolstering ( see People v Bute, 86 N.Y.2d 501, 510; People v McDaniel, 81 N.Y.2d 10, 16), the defendant must explicitly state that the basis of his objection is that the testimony constitutes improper bolstering ( see People v Love, 57 N.Y.2d 1023, 1025; People v. West, 56 N.Y.2d 662, 663), I agree with the majority that the defendant did not preserve for appellate review his contention that the admission of the complainant's prior consistent statements through the testimony of the complainant's daughter, the detective who interviewed the daughter, and the investigating detective, constituted improper bolstering. Defense counsel did not object to the testimony on this particular ground ( see CPL 470.05 [2]; People v. West, supra at 663; People v. Anderson, 260 A.D.2d 387, 388; People v. Foster, 143 A.D.2d 767, 768). Nevertheless, I would reach this issue in the interest of justice based upon the overwhelming amount of hearsay testimony permitted at this trial ( see CPL 470,15 [6] [a]).
While prior consistent statements are admissible as an exception to the hearsay rule to rehabilitate a witness whose testimony has been attacked as a recent fabrication ( see People v. Bute, supra at 510; People v. McDaniel, supra at 18; People v. Singh, 276 A.D.2d 503), the prior consistent statements were elicited in this case by the prosecutor on direct examination of these witnesses. This inadmissible hearsay evidence served to bolster the complainant's latest version of how she suffered her chest wound. The complainant's prior version of the events did not inculpate the defendant. There was no rehabilitative purpose for eliciting these statements and, as such, they should have been excluded ( see People v Singh, supra).Id. at 692-93 (Crane, J., dissenting in part).
Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.
In his application for a writ of habeas corpus, petitioner raises the same claim he raised on direct appeal, that he was denied a fair trial when, over objection, the prosecutor bolstered the complainant's credibility with inadmissible hearsay.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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 Slates; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d),
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)), Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S, 362, 412-13 (2000) (O'Connor, J, concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413, Under this standard, "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 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "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," Francis S, v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Torres v. Berbary, No, 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney-General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,"). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV, 1604, 2000 US. Dist. LEXIS 101, at *10 (S.D.N.Y, 2000) (state's failure to raise exhaustion requirement does not waive the issue),
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "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," Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest,Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
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. See Harris v. Reed, 489 U.S. 255, 264 n 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved, See Glenn, v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No, 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F,3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit, See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct, 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Summer v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VI. Analysis of Claim
Petitioner claims that he was denied a fair trial when, over objection, the prosecutor bolstered the complainant's credibility with inadmissible hearsay: that of the complainant's prior consistent statements through the testimony of her daughter, the detective who interviewed the daughter, and the investigating detective. This claim is exhausted but was deemed procedurally barred by the Appellate Division because petitioner failed to raise a specific, contemporaneous objection on the ground of improper bolstering. Under the circumstances of the instant case, that state procedural ground was independent and adequate. Petitioner has shown no cause for the default and makes no credible claim that he is actually innocent of the acts that led to his conviction. Further review of the claim in this federal court is precluded.
At any rate, habeas corpus relief would not be warranted even if this claim could be reviewed. For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial United States v. Agurs, 427 U.S. 97, 108 (1976), The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA, See Wade v. Mantello, No. 02-2359, slip op, at 13 (2d Cir. June 13, 2003),
It is irrelevant whether a federal court, if sitting on direct review of the instant conviction, would have been swayed by the dissenting justice's opinion and deemed a new trial necessary. When resolving a habeas application, great statutory deference is owed to the factual and legal conclusions of the state courts. Petitioner's claim was reviewed closely by the Appellate Division, which affirmed the conviction even over a strong dissent. The Appellate Division appears to have been unanimous in its conclusion that improper bolstering occurred; the justices seemed to differ only with respect to whether the evidentiary error was harmless or warranted a new trial. The majority's conclusion that the error did not warrant a new trial was reasonable. Contrary to petitioner's contention, it is neither fantastic nor incredible that a victim of domestic abuse should hesitate to inculpate her assailant or that she should later seek to bring about his release from prison. Even absent the bolstering testimony, it is reasonable to conclude that there is no strong likelihood that the jury would have acquitted petitioner of the assault charges or that the arguably improper hearsay testimony was crucial, critical and highly significant. Habeas corpus relief is not warranted.
VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to petitioner's claim, petitioner having made no substantial showing of the dental of a constitutional right.
SO ORDERED.