United States District Court, Southern District of New York
March 19, 1990
JOSE MERCADO, PETITIONER,
ROBERT J. HENDERSON, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Mukasey, District Judge.
The above-captioned case having been referred to Magistrate Sharon E.
Grubin on July 15, 1986 to issue a report and recommendation as to
petitioner Jose Mercado's petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, the Magistrate having filed and sent to the parties
on February 6, 1990, her Report and Recommendation and petitioner having
failed to submit any objections to that report, the Court affirms and
adopts the Magistrate's Report and Recommendation dated February 6,
1990. The application for a writ of habeas corpus is denied and the
petition is dismissed without prejudice because it contains both exhausted
and unexhausted claims.
REPORT AND RECOMMENDATION TO THE HONORABLE MICHAEL B. MUKASEY
Petitioner seeks a writ of habeas corpus pursuant to 23 U.S.C. § 2254
challenging his convictions after a jury trial in the New York State
Supreme Court, Bronx County, of murder in the second degree (felony
murder) (N.Y. Penal Law § 125.25(3)) and attempted robbery in the
first degree (N Y Penal Law §§ 110.00 and 160.15(2)). He
was sentenced to indeterminate concurrent terms of imprisonment of
fifteen-years to life on the felony murder count and five to
fifteen-years on the attempted robbery count. The Appellate Division,
First Department, affirmed the convictions without opinion. People v.
Mercado, 110 A.D.2d 1092, 488 N.Y.S, 2d 941 (1st Dep't 1985), and the New
York Court of Appeals denied leave to appeal, 65 N.Y.2d 818, 493 N Y
So.2d 1038, 482 N.E.2d 934 (1985). The petition asserts four grounds by
which petitioner's convictions were allegedly unconstitutional: (1) the
evidence was legally insufficient to support either conviction; (2) the
trial court erred in denying petitioner's motion for a severance; (3) the
misconduct of the prosecutor during summation denied petitioner a fair
trial; and (4) the trial court's instructions to the jury were inadequate
in two respects.*fn1
In response to the petition, respondent submitted an opposing
affidavit, a memorandum of law and the briefs that had been submitted to
the Appellate Division on petitioner's appeal which consist of briefs of
counsel and a supplemental brief submitted by petitioner pro se. Relying
on these documents, respondent's counsel asserts that this is a mixed
petition, i.e., one which presents both exhausted and unexhausted claims,
subject to dismissal pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct.
1198, 71 L.Ed.2d 379 (1982), because petitioner did not fairly present
the federal constitutional nature of his fourth claim to the state
courts. I agree and recommend dismissal without prejudice to refiling
after state court remedies have been exhausted.
As the fourth ground of the petition petitioner makes two claims with
respect to asserted deficiencies in the charge to the jury. The first is
that the state trial court failed to instruct the jury adequately to
consider the guilt or innocence of each co-defendant separately. The
second is that the state trial court failed to instruct the jury that the
evidence against petitioner
was entirely circumstantial. In opposition to the instant petition,
respondent contends correctly herein that these claims have not been
exhausted because petitioner presented them only in terms of state law in
his Appellate Division briefs and thus failed to alert the Appellate
Division that it was being asked to determine a federal constitutional
The federal habeas corpus statute, 28 U.S.C. § 2254, requires a
person in state custody to exhaust his state remedies before seeking
federal habeas corpus review. This rule is based on considerations of
comity between the federal and state courts, ensuring that the state
courts have an opportunity to consider and correct any violations of
their prisoners' federal constitutional rights. Picard v. Connor,
404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Daye v.
Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir,
1982) (en bane), cert. denied, 464 U.s. 1048, 104 S.Ct. 723, 79 L.Ed.2d
184 (1984). Thus, exhaustion requires a petitioner to have presented to
the state courts the same federal constitutional claims, legally and
factually, he raises in his petition to the federal court so that the
state courts will have had the initial opportunity to pass on them.
Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512-13; Daye v.
Attorney General, etc., 696 F.2d at 191. See also Anderson v. Harless,
459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam);
McGann v. State of New York, 870 F.2d 908, 910 (2d Cir. 1989); Morgan v.
Jackson, 869 F.2d 682, 684 (2d Cir. 1989). In Petrucelli v. Coombe,
735 F.2d 684, 687-88 (2d Cir. 1984), the Second Circuit explained:
Because non-constitutional claims are not cognizable
in federal habeas corpus proceedings, Smith v.
Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71
L.Ed.2d 78 (1982), a habeas petition[er] must put
state courts on notice that they are to
decide federal constitutional claims. See, e.g.,
Daye, 696 F.2d at 192. It is not necessary for a
habeas petitioner to cite "book and verse" of the
Constitution, id. (quoting Picard v. Connor, 404 U.S. 270,
278, 92 S.Ct. 509, 513, 30 L.Ed, 2d 438 (1971)), but
adequate notice to the state courts that they are to
decide federal constitutional claims at least
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact
situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of
a pattern of facts that is well within the
mainstream of constitutional litigation.
See also Waterhouse v. Rodriguez, 848 F.2d 375, 381 (2d Cir. 1988); Grady
v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Holland v. Scully,
797 F.2d 57, 64-65 (2d Cir.), cert. denied, 479 U.S. 870, 107 S.Ct. 237,
93 L.Ed.2d 162 (1986). The briefs submitted to the Appellate Division for
petitioner on this point do not contain material falling into any of the
Daye categories. Because petitioner had not objected at trial to the jury
instructions, the brief submitted by counsel asked the Appellate Division
to exercise discretion to order a new trial in the interest of justice as
permitted by N Y Crim.Proc.Law § 470.15(6)(a).*fn2 Thus, the claims
presented did not raise federal constitutional law. See Gordon v. Kelly,
Civ. No. 89-1907 (E.D.N.Y. Aug. 7, 1989) (1989 WL 92043); Castillo v.
Abrams, No. 88 Civ. 1165 (S.D.N.Y. Aug. 24, 1988) (1988 WL 96026) (1988
U.S. Dist. LEXIS 9448); Kennedy v. Fogg, 468 F. Supp. 671, 673 (S.D.N.Y.
1979). Cf. Gayle v. LeFevre, 613 F.2d 21, 22 n. 3 (2d Cir. 1980)
(determinations pursuant to N.Y.Crim.Proc.Law § 470.15(3), which
permits an intermediate New York state appellate court to reverse or
modify a judgment as a matter of discretion
in the interest of justice, constitute exercises of the appellate court's
supervisory powers and are not dictated by constitutional
considerations). Interestingly, in arguing his claim herein petitioner
urges constitutional analysis and uses language that is notably absent
from his Appellate Division papers. It seems reasonable to infer that the
difference in argument is the result of petitioner's awareness that to
present a claim herein, it must be one of constitutional dimension, and
the comparison between his papers here and his papers at the Appellate
Division serves to underscore the fact that his argument to the state
court was not presented in such terms. Thus, petitioner argues herein
that the trial court's instructions relieved the prosecution of its
burden of proving guilt beyond a reasonable doubt; that they "so infected
petitioner's trial that the resulting conviction violates due process of
law;" that they violated "the Due Process Clause of the United States
Constitution . . .;" and he cites such cases as United States v. Frady,
456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) and Cupp v.
Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). See
Petitioner's "Supplemental Memorandum in Support of Petition for a Writ
of Habeas Corpus Pursuant to 28 U.S.C.A. 2254" at 29-32. In stark
contrast, his Appellate Division arguments did not cite the United States
Constitution and contained citations only to state law authority.
In response to respondent's having raised petitioner's failure to
exhaust this claim, petitioner in a reply submission has argued that the
state courts were alerted to a constitutional claim because: (1) he
argued that these errors in the jury instructions deprived him of a "fair
trial;" (2) the state, after arguing that the errors had not been
preserved under New York law and were, in any event, meritless, cited to
People v. Crimmins, 36 N.Y.2d 230, 367 N.Y, So.2d 213, 326 N.E.2d 787
(1975); and (3) his brief to the Appellate Division included a partial
quotation from People v. Benzinger, 36 N.Y.2d 29, 364 N.Y.S.2d 855,
324 N.E.2d 334 (1974). Disposing of these arguments in reverse order,
they are all meritless for the following reasons. As noted above,
petitioner's notice to the state court that it is to decide a federal
constitutional claim must he on the same facts and the same claim raised
in the petition and not some other claim. While Benzinger contained
certain constitutional analysis, it was with respect to a different issue
than that for which petitioner cited the case, and his quotation from it
had no concern with federal constitutional law. There was no discussion
in Benzinger of errors with respect to jury instructions, much less the
type of jury instructions of which petitioner complains here. In
Crimmins, the New York Court of Appeals discussed harmless error under
the federal Constitution and the decisional law of New York in a case
where a federal constitutional claim was clearly presented. Its citation
in petitioner's case by the state cannot be deemed to have alerted the
Appellate Division that petitioner here was raising a federal
constitutional claim about allegedly defective jury instructions.
Lastly, with respect to petitioner's invocation of a "fair trial," he
used the phrase twice in his brief. But as the court in Daye observed:
The general principle governing assessment of
whether a fair trial claim is of constitutional
dimension is that where the claim rests on a factual
matrix that is "well within the mainstream of due
process adjudication," Johnson v. Met; supra, 609 F.2d
 at 1057 [(2nd Cir. 1979)] (Newman, J.,
concurring); see also id. at 1056 a. 5 (opinion of the
Court), the state courts must be considered to have
been fairly alerted to its constitutional nature. If,
on the other hand, the claim is based on a fact
pattern not theretofore commonly thought to involve
constitutional constraints, there is usually little
reason to believe the courts were alerted to its
supposed constitutional nature.
696 F.2d at 193. In the instant case, it is clear from the context of the
argument that the invocation of denial of a fair trial was intended to
bring the claim within N Y Crim.Proc.Law § 470.15(6)(a). After
apprising the court that trial counsel had not taken any exceptions to the
counsel stated in his brief at 12 that, "However, in this close case the
court's errors served to deprive appellant of a fair trial so that the
judgment of conviction should be reversed and a new trial ordered in the
interest of justice. CPLR § 470.15(6)(a)." At page 16 of the brief
he simply stated, "The two charge errors committed by the Court operated
to deprive appellant of a fair trial." As the court said in Petrucelli
"Alleging lack of a fair trial does not convert every
complaint . . . into a federal due process claim."
Daye v. Attorney General, 696 F.2d at 193 (quoting
Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir. 1982)). .
. . "Due process," like "fair trial," can be a
catchphrase used by habeas petitioners as part of an
allegation about any type of trial court error,
including errors in rulings based on state law.
735 F.2d at 688. See also Fox v. Hoke, No. 87 Civ. 2540 (S.D.N.Y. May
15, 1989) (1989 WL 54135) (1989 U.S.Dist. LEXIS 5292); Rivera v. Berry,
No. 87 Civ. 261 (E.D.N Y May 1, 1989) (1989 WL 50830); LeGrand v. Smith,
No. 85 Civ. 511 (S.D.N.Y. Feb. 25, 1987) (1987 WL 7402).
The presence of the unexhausted claim renders this petition "mixed,"
and it must be dismissed. Rose v. Lundy, 455 U.S. at 510, 522, 102 S.Ct.
at 1199, 1205. Petitioner may file a new petition omitting the
unexhausted claim, or he may bring a motion in state court to present it
pursuant to section 440.10 of the New York Criminal Procedure Law.
Petitioner is cautioned that if he chooses the first option, he runs the
risk that any subsequent petition he may seek to file thereafter may be
dismissed as an abuse of the writ absent circumstances justifying such
successive application. See Rose v. Lundy, 455 U.S. at 520-21, 102 S.Ct.
at 1204-05; Gulliver v. Dalsheim, 687 F.2d 655, 657-58 (2d Cir. 1982). If
petitioner chooses the second option and his § 440.10 motion is
denied, he must seek leave to appeal to the Appellate Division to fully
exhaust the claim. N Y Crim.Proc.Law § 460.15 (McKinney 1983).
Whether petitioner is barred from relief pursuant to New York Criminal
Procedure Law section 440.10(2)(c) is for the state court to determine
in the first instance. Wilson v. Fogg, 571 F.2d 91, 95 (2d Cir. 1978);
Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964); see also Twitty v.
Smith, 614 F.2d 325, 332-33 n. 9 (2d Cir. 1979); Vidal v. Harris,
477 F. Supp. 526, 528 n. 4 (S.D.N.Y. 1979).
The parties are hereby directed that if you have any objections to this
Report and Recommendation you must, within ten (10) days from today, make
them in writing, file them with the Clerk of the Court and send copies to
the Honorable Michael B. Mukasey, to the opposing party and to the
undersigned. Failure to file objections within ten (10) days will
preclude later appellate review of any order that will be entered by Judge
Mukasey. See 28 U.S.C. § 636 (b)(1); Rules 6(a), 6(e) and 72(b) of
the Federal Rules of Civil Procedure; Thomas v. Arn, 474 U.S. 140, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55,
58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)