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August 7, 1985

MIGUEL LOPEZ, Petitioner,
CHARLES SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent

The opinion of the court was delivered by: SPRIZZO



 Petitioner Miguel Lopez was convicted in New York state cour ton three counts of murder in the second degree, of robbery in the first degree, and of burglary in the second degree. The Appellate Division, First Department affirmed the convictions without opinion, see, People v. Lopez, 78 A.D.2d 780, 432 N.Y.S.2d 975 (1st Dept. 1980), and leave to appeal to the Court of Appeals was denied. See People v. Lopez, 52 N.Y.2d 1078, 438 N.Y.S.2d 1036, 420 N.E.2d 408 (1981).

 Lopez filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that under the criteria of Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), he was denied his Sixth Amendment right of confrontation at trial because of the trial court's failure to give proper limiting instructions to the jury regarding the admission into evidence of an extra-judicial statement made by his non-testifying co-defendant, which allegedly implicated Lopez in the crimes.

 The Court referred the instant petition to Magistrate Joel J. Tyler for his report and recommendation pursuant to 28 U.S.C. § 636(b). Magistrate Tyler found that petitioner had exhausted his state court remedies with respect to this claim as required by 28 U.S.C. § 2254(b), but recommended that the petition be dismissed on the merits because the co-defendant's statement was neither clearly inculpatory of Lopez, standing alone, nor vitally important to the prosecution's case.

 Both parties have filed objections to the Magistrate's Report and Recommendation. Petitioner objects to the finding that his co-defendant's statement was not clearly inculpatory or vitally important, and also argues that it was erroneous to apply the clearly inculpatory/vitally important test given the facts of this case. He contends that the Magistrate failed to address the actual issue raised by the petition, which is the absence of proper limiting instructions. Respondent argues that petitioner failed to exhaust his state court remedies, and, alternatively, that this petition is barred by the procedural default rule of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Pursuant to 28 U.S.C. § 636(b) (1) (B) and Rule 8(b) (4) of the Rules Governing Section 2254 Cases in the United States District Courts, this opinion and order constitutes the Court's de novo determinations with respect to the matters objected to.

 The facts of the case are set forth at length in the Magistrate's Report and Recommendation, and only a brief summary is necessary herein.

 Petitioner was convicted of the murder of 11 year old Juan Antonio Rodriguez, and the robbery and burglary of the Rodriguez home. He was tried along with his co-defendant and step-brother, Jose Osorio. Osorio, a friend of the victim, had been seen on the day of the crimes running down the fire escape of the apartment building where the victim had resided. Osorio's fingerprints were found in the Rodriguez apartment.

 Osorio told the police that on the day in question he had gone home from school to have lunch and was then on his way to the home of Juan Antonio Rodriguez, when he met a friend he knew as "Indio" whom he hadn't seen in about three months, and whom he had known for about a year and a half. Indio accompanied Osorio to the Rodriguez apartment, where Juan Antonio let them in. Upon entering, Indio pulled a knife, grabbed Juan Antonio, handcuffed him and tied his legs, and stabbed him. Osorio said he became frightened and ran to the roof and down the fire escape. The police were never able to identify or locate the "Indio" referred to in Osorio's statement. Osorio never testified at trial and was therefore never subject to cross-examination.

 Petitioner claims that the admission into evidence of Osorio's statement regarding "Indio," without proper limiting instructions, violated his Sixth Amendment right to confront the witnesses against him because the prosecutor "carefully choreographed the presentation of the evidence and argument" to convince the jury that the "Indio" referred to in Osorio's statement was actually Lopez. *fn1"

 In order to raise his Sixth Amendment claim before this Court, petitioner must have exhausted the remedies available to him in state court. See, e.g., 28 U.S.C. § 2254(b) & (c); Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S. Ct. 723, 79 L. Ed. 2d 184 (1984). To satisfy the exhaustion requirement, the same federal claim must have been fairly presented to the state court, see, e.g., Picard, supra, 404 U.S. at 275; Daye, supra, 696 F.2d at 191, by informing the state court of both the factual and legal premises of the claim asserted in the federal habeas action. See, e.g., Daye, supra, 696 F.2d at 191; Twitty v. Smith, 614 F.2d 325, 331 (2d Cir. 1979). AS the Second Circuit noted in Daye, this means that petitioner "must have set forth in state court all of the essential factual allegations asserted in his federal petition," see 696 F.2d at 191, and must have argued on the basis of a legal doctrine which is the "substantial equivalent" of that argued before the federal court. See id. at 192; see also Picard, supra, 404 U.S. at 278.

 In light of the argument made by petitioner on appeal from his conviction, the Court cannot say he has exhausted his state remedies with respect to the claim that the lack of proper limiting instructions violated his right of confrontation. In his brief to the Appellate Division petitioner argued that the trial court violated its obligation to sua sponte sever the trials of petitioner and his co-defendant Osorio, despite the facts that no party had moved to sever and neither defendant had objected to consolidation, because the two defendants had "at some point in the proceeding made statements which while not directly implicating each other in the crime did serve to place each one as acting directly contrary to the interest of each other." See Appellant's Brief at 12-13. Petitioner cited Bruton and People v. Owens, 22 N.Y.2d 93, 238 N.E.2d 715, 291 N.Y.S.2d 313 (1968), which relate to severance. Petitioner also noted that a motion for severance had been made after trial but before sentencing, but was denied, and that this, too, was erroneous because, despite the fact that the motion was made so late, the court should have granted the severance since Osorio had implicated Lopez and "in all probability had caused his being found guilty by the jury." Id. at 13. *fn2" Petitioner did not argue that the lack of proper limiting instructions had violated his Sixth Amendment rights.

 In the instant petition, Lopez alleges that the trial court erred in failing to give appropriate instructions to the jury cautioning them that Osorio's statement could not be considered against Lopez. No argument is raised regarding the failure to grant a severance. The court cannot agree with the Magistrate's conclusion that the factual and legal basis underlying the habeas claim is "clearly the same as that of the severance claim in the state appeal,"see Report & Recommendation at 12, especially since a Bruton claim presupposes that no limiting instructions can cure the prejudice flowing from the statement of a co-defendant. Thus the state court was not fairly presented with the issue now raised, that failure to give limiting instructions required a reversal of petitioner's conviction.

 In Bruton, the Supreme Court held that the introduction of an extrajudicial confession of a co-defendant which incriminated Bruton violated his right of confrontation and held that a severance was required because it assumed that limiting instructions would not be adequate to protect the defendant's confrontation rights. This Court has found no case where the alleged Bruton violation arose from the failure to give proper limiting instructions, rather than the failure to grant a severance or to exclude the challenged statement. The Court concludes that since the state court was never given a fair opportunity to decide whether the failure of the trial court to give limiting instructions required a reversal of petitioner's conviction, petitioner had not exhausted this claim. Cf. Twitty, supra, 614 F.2d at 332; Callahan v. LeFevre, 605 F.2d 70, 72-73 (2d Cir. 1979).

 Even assuming, arguendo, that the citation to Bruton was sufficient to satisfy the exhaustion requirement, the habeas petition would still have to be denied. In Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), the Supreme Court held that failure of a state court defendant to comply with a state's procedural requirements constitutes a procedural default barring consideration of that claim on federal habeas review, unless both cause for the default and actual prejudice are shown. Id. at 86-87. See also Engle v. Isaac , 456 U.S. 107, 129, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982).

 The State contested petitioner's Bruton claim before the Appellate Division on the ground that he was procedurally barred from raising that claim on appeal because he had failed to object to the consolidation of the cases, or to move for a severance before trial, and that any objection to the consolidated trial was therefore waived. The State cited People v. Minor, 49 A.D.2d 828, 373 N.Y.S.2d 354 (1st Dept. 1975), where the court had held that the failure to object to consolidation constitutes a waiver. The Appellate Division affirmed petitioner's conviction without opinion.

 Where the prosecution argues procedural default on appeal and the appellate court affirms the conviction without opinion, the federal habeas court must assume that the state court ruled on the basis of the procedural bar. See, e.g., Johnson v. Harris, 682 F.2d 49, 51 (2d Cir.), cert. denied, 459 U.S. 1041, 74 L. Ed. 2d 609, 103 S. Ct. 457 (1982); Martinez v. Harris, 675 F.2d 51, 54-55 (2d Cir.), cert. denied, 459 U.S. 849, 74 L. Ed. 2d 97, 103 S. Ct. 109 (1982). Therefore, this Court must assume pursuant to Johnson and Martinez that the Appellate Division accepted the State's procedural default argument.3

 It follows that the Court can only consider petitioner's claim if he has demonstrated both cause for his failure to comply with New York's procedural rule, and actual prejudice resulting from the allegedly inadequate instructions. Where petitioner objects to jury instructions, the allegedly improper charge must have worked to his actual and substantial disadvantage, see, e.g., United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982), such that "'the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" See Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 97 S. Ct. 1730 (1977) quoting Cupp v. Naughten , 414 U.S. 141, 147, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973)). *fn4"

 Petitioner has not even attempted to demonstrate cause for his failure to comply with New York's procedural requirements. Indeed, the record reflects that counsel did not avail himself of a court offered opportunity to request an amplification of the charge given and to renew an earlier request for a generic limiting instruction. See note 3, supra. Moreover, as Lopez himself recognizes in his petition, and as Magistrate Tyler noted in his Report and Recommendation, there was more than sufficient evidence against Lopez, in addition to Osorio's statement, upon which the jury could rely to convict him. *fn5" Thus, considering the nature of the statement, which was not in itself inculpatory of Lopez, and the overall strength of the prosecution's case, there is no basis to conclude that the failure to give a limiting instruction deprived Lopez of due process. *fn6" Cf. Frady, supra, 456 U.S. at 174; Wainwright, supra, 433 U.S. at 91; Sales v. Harris, 675 F.2d 532, 541 (2d Cir.), cert. denied, 459 U.S. 876, 74 L. Ed. 2d 140, 103 S. Ct. 170 (1982); Forman v. Smith, 633 F.2d 634, 642-43 (2d Cir. 1980), cert. denied, 450 U.S. 1001, 68 L. Ed. 2d 204, 101 S. Ct. 1710 (1981). Therefore, Lopez is procedurally barred from raising his claim in this petition.

 It follows that the petition for a writ of habeas corpus must be denied.


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