In Brecht v. Abrahamson, 507 U.S. 619, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993), the United States Supreme Court articulated the standard of review a federal court should apply to habeas corpus petitions from state prisoners in determining whether a constitutional error was "harmless." Id. at 630-31.
The Supreme Court identified two categories of constitutional error. "Structural errors," which are "structural defects in the constitution of the trial mechanism, defy analysis by 'harmless-error' standards." Id. at 629 (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991)). An example of such an error is the deprivation of the right to counsel; such a structural error "requires automatic reversal of the conviction because they infect the entire trial process." 507 U.S. at 629-30.
The other category of error is "trial error," which "'occurs during the presentation of the case to the jury,' and is amenable to harmless-error analysis because it 'may . . . be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].'" Id. at 629 (quoting Fulminante, 499 U.S. at 307-08). In the case of "trial errors" before a federal habeas court, the Brecht Court held that the Kotteakos standard, rather than the Chapman harmless error standard,
is applicable. 507 U.S. at 637. Under the Kotteakos standard, the test is whether the error "'had substantial and injurious effect or influence in determining the jury's verdict.'" Id. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)). "Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice.'" 507 U.S. at 637 (citing United States v. Lane, 474 U.S. 438, 449, 88 L. Ed. 2d 814, 106 S. Ct. 725 (1986)).
Under the Brecht taxonomy, the error in the instant case is trial error, to which the Kotteakos standard applies.
Here, it cannot be said that the exclusion of Blount's prior statements had a "substantial and injurious effect or influence in determining the jury's verdict." As previously stated, Blount's credibility was already impeached substantially. While it is arguable that the cross-examination prohibited by the trial judge might have contributed marginally to discrediting Blount, it is unlikely to have swayed a jury that was already aware of significant omissions in her testimony and other reasons to question her credibility.
Some evidence suggests that the jury may have found Blount's testimony suspect even without the impeachment Laboy now contends was central to his case. For example, the jury requested that Blount's testimony be reread to them three times. After having the testimony reread, the jurors sent a note to the trial judge indicating that they were at an impasse. Only after the trial judge urged the jurors to continue deliberations did the jury reach a verdict, rejecting the more serious charge of murder in the second degree and convicting Laboy of the lesser crime of manslaughter in the first degree.
For the reasons set forth above, Laboy's confrontation clause claim will be rejected.
III. Laboy's Due Process Claim
Laboy also contends that the exclusion of Blount's prior inconsistent statements deprived him of his ability to present his defense. Depriving a criminal defendant of his ability to present a defense violates the Due Process clause and warrants issuance of a writ of habeas corpus. See Roberts v. Scully, 875 F. Supp. 182, 188 (S.D.N.Y. 1995) (citing Crane v. Kentucky, 476 U.S. 683, 690, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986); Chambers v. Mississippi, 410 U.S. 284, 294-95, 35 L. Ed. 2d 297, 93 S. Ct. 1038(1973)).
Laboy contends that his sole defense was that Blount's version of events was false, and that his only way to establish this defense was to impeach Blount with her first version of events.
Laboy's due process claim is without merit. As stated above, Laboy was permitted to cross examine Blount and to impeach her by omission and on several other matters. He was also permitted to argue to the jury that Blount lied out of fear of retaliation. While the prior inconsistent statements may have marginally strengthened Laboy's defense, its exclusion did not deprive him of the defense. The erroneous evidentiary ruling did not rise to a constitutional level, because it did not eliminate evidence that would have created a reasonable doubt that did not otherwise exist. Taylor v. Curry, 708 F.2d at 891. Laboy effectively called Blount's credibility into question even without the prior statements.
IV. A Certificate of Appealability Will Be Issued on Laboy's Sixth Amendment Claim
Demskie contends that the appeal provisions of the Antiterrorism and Effective Death Penalty Act of 1994 (AEDPA) apply to this case. Sections 102 and 103 of the AEDPA modify the appellate provisions in habeas corpus cases. In Reyes v. Keane, the Second Circuit held that § 102 of the AEDPA applies retroactively to a petition filed before the effective date of the Act. 90 F.3d at 680.
The AEDPA provides that an appeal may not be taken "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. 2253(c)(1). Demskie contends that under 28 U.S.C. 2253(c), only a circuit judge may issue a certificate of appealability. See Parker v. Norris, 929 F. Supp. 1190, 1191-92 (E.D. Ark. 1996).
However, Rule 22 of the Federal Rules of Appellate Procedure, as amended by AEDPA § 103, suggests that a district court still has power to issue certificates of appealability. Rule 22 provides that an appeal "may not proceed unless a district court or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue."
There appears to be some disagreement among the courts to have considered whether a district court may issue a certificate of appealability. Compare Houchin v. Zavaras, 924 F. Supp. 115, 117 (D.Colo. 1996) (since statute does not expressly prohibit district court from issuing certificate of appealability, district court may issue certificate pursuant to Fed. R. App. P. 22); Adanandus v. Johnson, 947 F. Supp. 1098, 1996 U.S. Dist. LEXIS 16016, 1996 WL 622555 (W.D. Tex. 1996) (district court issuing certificate of appealability); with Parker v. Norris, 929 F. Supp. at 1191-92 (AEDPA section 2253(c), "by its express terms, has divested district judges(as opposed to circuit judges) of the authority to rule on" certificates of appealability). However, this Court determines it has the authority to issue a certificate of appealability pursuant to Fed. R. App. P. 22.
Title I, § 102 of the AEDPA provides that a "certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). Demskie contends that this standard requires a petitioner to make a more substantial showing of a constitutional violation to receive a certificate of appealability ("COA") than was required to obtain a certificate of probable cause ("CPC") under prior law.
However, the Second Circuit in Reyes held that "the substantive standard for a COA is the same as the standard for the prior CPC." 90 F.3d at 680. Therefore, in order to obtain a COA, a petitioner need not show he should prevail on the merits; instead, he need only "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 77 L. Ed. 2d 1090, 103 S. Ct. 3383 (1983) (internal quotation marks and citations omitted).
Demskie contends that even under the previous standard, a certificate should not issue because the petition presents no question deserving of appellate review, Alexander v. Harris, 595 F.2d 87, 91 (2d Cir. 1979), poses no issue of first impression upon which the Second Circuit should rule, United States ex rel. Pihakis v. Thomas, 488 F. Supp. 462, 467 (S.D.N.Y. 1980), and raises no issue of substance. Stephens v. LeFevre, 467 F. Supp. 1026, 1031 (S.D.N.Y. 1979).
As discussed above, Laboy's due process claim is without merit and no certificate of appealability will be issued as to this claim. However, the petition does raise a significant question about the extent to which impeachment may be restricted without violating the Sixth Amendment right to confront witnesses. The petitioner has thus made the requisite "substantial showing of the denial of a constitutional right." Reasonable jurists could disagree with this Court's resolution of the petitioner's claim. Moreover, the question presented "deserves encouragement to proceed further," since appellate review could provide important guidance to federal habeas courts in this circuit. Therefore, a certificate of appealability will be issued.
For the foregoing reasons, Laboy's petition for a writ of habeas corpus is hereby denied. A certificate of appealability is hereby granted on the issue of whether Laboy's constitutional right to confront witnesses was abridged.
It is so ordered.
New York, N.Y.
November 29, 1996
ROBERT W. SWEET