United States District Court, Southern District of New York
July 2, 1999
BRETT K. LURIE, PETITIONER,
BONNIE G. WITTNER, ACTING JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK; DENNIS C. VACCO, ATTORNEY GENERAL OF THE STATE OF NEW YORK; GLENN S. GOORD, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENTS.
The opinion of the court was delivered by: Scheindlin, District Judge.
OPINION AND ORDER
Brett K. Lurie ("Lurie" or "petitioner") has moved for
reconsideration of that portion of the Opinion and Order dated
April 26, 1999 ("Opinion and Order") denying habeas relief as
to Count 28. Respondents have cross-moved for reconsideration of
the entire Opinion and Order. On April 30, 1999, I withdrew the
Opinion and Order pending the outcome of these motions. For the
following reasons, I deny both motions and now re-instate the
April 26, 1999 Opinion and Order.
Petitioner was convicted, in Count 28, of violating section
175.35 of the New York Penal Law by filing a false instrument on
November 1 to 3, 1989, to wit, the fourth amendment to the
offering plan for the premises at 488 Ocean Parkway (the
"Edgewood"). Section 175.35 reads as follows:
A person is guilty of offering a false instrument for
filing in the first degree when, knowing that a
written instrument contains a false statement or
false information, and with intent to defraud the
state or any political subdivision, public authority
or public benefit corporation of the state, he offers
or presents it to a public office, public servant,
public authority or public benefit corporation with
the knowledge or belief that it will be filed with,
registered or recorded in or otherwise become a part
of the records of such public office, public servant,
public authority or public corporation.
N Y Penal Law § 175.35. Petitioner's false statement, in part,
is found at the end of the fourth amendment to the Offering Plan,
which states: "Except as set forth in this Fourth Amendment and
the first three amendments to the plan, there have been no
material changes in this plan." See pp. 119-120, infra, for a
discussion of materiality. In fact, at the time this amendment
was filed, petitioner was in substantial arrears on both the
mortgage and maintenance payments.*fn2 See Letter dated May
19, 1999 from Mark M. Baker, Esq., counsel for petitioner ("May
19th letter"), Exh. F, pp. 2285 & 2287. See also id., Exh. D,
p. 5 (for comparable language used in the fifth amendment to the
Petitioner's Motion for Reconsideration
Petitioner argues that Count 28 should be overturned on the
ground that the precluded testimony of Richard Koral, his real
estate attorney, would have negated a finding of fraudulent
intent. He supports this conclusion by citing to certain changes
made to the applicable New York City Regulations which were not
disclosed and did not take effect until after November 3,
1989.*fn3 As a result of these changes, amendments must now
(vi) A statement as to whether the sponsor or
holder(s) of unsold shares is current on all
financial obligations to the cooperative, including,
but not limited to, payment of maintenance, . . . In
addition, state whether the sponsor or holder(s) of
unsold shares is current on payments of underlying
mortgages and all obligations under financing
arrangements for which unsold shares have been
pledged as collateral. . . .
13 N.Y.C.R.R. § 18.5(c)(3)(vi). According to petitioner, once it
was announced on December 12, 1989 that these new requirements
would soon be implemented, he was advised by Mr. Koral to include
the above information in new amendments, which he did in a later
filed fifth amendment to the Edgewood plan. See May 19th letter,
p. 10 & Exh. D, p. 4.
Petitioner's argument is unavailing for a number of reasons.
First and foremost, the requirement to disclose arrears in
mortgage and maintenance payments was not newly enacted with the
1990 changes. In fact, 13 N.Y.C.R.R. § 18.5(a)(2), which was part
of original Part 18 adopted on June 2, 1982, states that:
(2) An amendment must include a representation that
all material changes of facts or circumstances
affecting the property or the offering are included,
unless the changes were described in prior
amendment(s) submitted to but not yet filed with the
Department of Law.
It is beyond dispute that the failure to make mortgage and
maintenance payments is a material change of facts and
circumstances. See State v. Rachmani Corp., 71 N.Y.2d 718,
530 N.Y.S.2d 58, 62, 525 N.E.2d 704 (1988) (an omitted fact is
material if it would have "significantly altered the `total mix'
of information made
available" to a reasonable investor) (quoting TSC Indus., Inc.
v. Northway, Inc., 426 U.S. 438
, 449, 96 S.Ct. 2126, 48 L.Ed.2d
757 (1976)). In addition, Mary DiStephan, an expert witness at
trial, made the following statement in her affidavit in
Opposition to the Motion to Dismiss:
Finally, in August, 1990, the Attorney General
promulgated regulations expanding the disclosures
which would be required even if there were no
default, on at least an annual basis, of the
sponsor's total financial condition even in other
projects where the sponsor or a principal of the
sponsor owned in excess of ten percent of the shares
or units. . . . This requirement to file an updating
financial disclosure amendment at least annually
expanded and supplemented the already existing
requirement (existing almost 30 years) to immediately
amend the offering plan whenever there is a material
change of fact or circumstance affecting the
May 19th letter, Exh. A, pp. 5-6 (emphasis added). Therefore,
although the 1990 changes delineated the precise financial
information to be included in amendments, the duty to disclose
sponsor defaults was already well-established.*fn4
clearly delineated duty, it is inconceivable how any testimony
from Richard Koral would impact on petitioner's fraudulent
intent. Moreover, the evidence that would have been presented by
Richard Koral is ambiguous. During the state court proceeding,
petitioner's trial attorney told the judge:
Mr. Koral will come in and testify that, in fact it
was his interpretation and his advice among other
attorneys and there will be documents that we will
submit which will show that it was his belief and Mr.
Lurie compiled and that when the law changed on
October 15[sic], Mr. Lurie had to file those
A 951. Arguably, Koral's testimony would only explain why Lurie
filed an accurate fifth amendment to the Edgewood Plan. The
proffer of Koral's testimony does not include any representation
by Koral that the fourth amendment to the Edgewood property was
done in accordance with then-existing law based on his advice.
Koral's proposed testimony is therefore irrelevant to Count 28.
The exclusion of irrelevant evidence cannot support a violation
of petitioner's Sixth Amendment right to present a defense. See
U.S. ex rel. Ashford v. Director, Illinois Dep't of Corrections,
871 F.2d 680
, 686 (7th Cir. 1989), overruled on other grounds
by, Tague v. Richards, 3 F.3d 1133
, 1140 (7th Cir. 1993) (such a
violation occurs when the "testimonial evidence to be presented
by the witness `was relevant, material, and vital to the defense,
and . . . the exclusion of that evidence was arbitrary'") (quoting
Lange v. Young, 869 F.2d 1008
, 1011 (7th Cir. 1989)).
Even assuming, arguendo, that Koral addressed the content of
the fourth amendment, it is nonetheless irrelevant to Count 28
for other reasons — namely the representations made by Lurie
himself. The fourth amendment to the Edgewood property, much like
the fifth amendment, contains a "No Material Changes" provision
wherein Lurie stated that there have been no material changes in
the plan despite the fact he was in default on the
mortgage and maintenance payments. Lurie made a similar
representation in the certifications filed with respect to the
original offering plans, including the offering plan for the
Edgewood property. See A 784 (where Mary DiStephan testified
that "all of the Lurie plans have this identical certification").
With regard to each property, Lurie certified, in part:
I am the sponsor and/or the principle [sic] of
sponsor of the offering to convert the subject
property to cooperative ownership. I understand that
I have primary responsibility for compliance with the
provisions of Article 23-A of the general business
law, the regulation permigated (ph) by the Attorney
General in Part 18, and such are [sic] the laws and
regulations as may be applicable.
I certify that the offering plan does and that all
documents submitted hereafter by me which amend or
supplement the offering plan will one, set forth the
detailed terms of the transaction and be complete,
current, and accurate. . . .
Three, not omit any material fact. . . . Five, not
contain any fraud, deception, concealment,
suppression, false pretense, or fictitious or
pretended purchase or sale. . . .
I understand that violations are subject to the civil
and criminal penalties of the general business and
A 785-86 (emphasis added). When Ms. DiStephan was asked when the
certification expires, she responded: "It never expires, it
indicates that anything that is filed with this certification, or
anything that's filed thereafter, is subject to the
certification." A 786.
In short, Lurie twice represented that documents filed in
relation to the Edgewood property would contain complete and
accurate information, in the original certification and in the
amendment itself, when in fact they did not. Consequently, he
cannot legitimately argue that he did not know of the falsity of
the fourth amendment to the Edgewood property at the time of
filing. Any testimony that could be presented by Richard Koral is
therefore irrelevant to the issue of Lurie's fraudulent intent.
Accordingly, habeas relief is again denied as to Count 28.
Respondent's Motion for Reconsideration
A. Rule of Lenity
Respondents make several arguments in support of their motion
for reconsideration. Their first argument addresses the Court's
application of the rule of lenity. According to respondents,
petitioner had adequate notice that sales must cease during the
period in which amendments have not yet been accepted for filing.
Such notice is derived from a cross-referencing of New York's
General Business Law with its Codes, Rules and Regulations. In
particular, New York General Business Law § 352-e(1)(a) states
that "[i]t shall be illegal and prohibited for any person . . .
to make or take part in a public offering or sale . . . until
there shall have been filed with the department of law, prior to
such offering, a written statement or statements, to be known as
an `offering statement' or `prospectus' . . ." (emphasis added).
"Filing," as defined in 13 N.Y.C.R.R. § 18.1(c)(6), means "the
issuance of a letter from the Attorney General stating that an
offering plan or amendment has been accepted for filing."
(emphasis added). Respondents also cite various cases for the
proposition that an amendment does not merely supplement the
original offering plan but constitutes a new submission of the
plan as amended.
This argument, however, misses the mark given the express
statutory prohibition found in § 352-e(2). That section states as
follows: "No offer, advertisement or sale of such securities
shall be made in or from the state of New York until the attorney
general has issued to the issuer or other offerer a letter
stating that the offering has been filed." The fact that this
section does not include the filing of amendments within its
purview is significant. This is the section where one would
expect a prohibition pertaining to sales
pending the filing of amendments to be found, if one existed, Yet
§ 352-e(2) contains no such prohibition. Respondents would,
however, impute notice from a not-too-obvious cross-referencing
of statutory provisions even though an explicit statutory
provision governing the matter fails to mention amendments. It is
unreasonable to expect a reasonable sponsor to comply with this
convoluted notice requirement. This conclusion is supported by
the contemporaneous opinion of Judge Patricia Williams in People
v. Dansker [New York County Indict. No. 11454/92], wherein she
This court finds that, while it may be the Department
of Law's policy that a sponsor cease cooperative
sales pending acceptance for filing of amendments, it
is not a requirement of the Martin Act nor of any
of the regulations promulgated pursuant thereto. The
Martin Act requires only that written disclosure be
made with the Department of Law given any adverse
change in the sponsor's position.
People v. Dansker, at pp. 10-11 (emphasis in original).
Respondents have not cited evidentiary matter or a controlling
decision which, if considered, would have required this Court to
change its earlier conclusion. See Eisert v. Town of Hempstead,
918 F. Supp. 601, 606 (E.D.N.Y. 1996).
B. Failure to Exhaust State Remedies
The next argument raised by respondents involves the failure to
exhaust state remedies and can be summarily dismissed.
Respondents contend that petitioner's rule of lenity claim is
barred due to his failure to raise the fair notice requirement as
a concept distinct from the rule of lenity until oral argument
before this Court. This argument has been fully considered and
rejected. See Opinion and Order, footnote 7 (the principles of
fair notice and the rule of lenity are sufficiently interrelated
to bar a finding of waiver on the part of petitioner).
Respondents have not raised any new matter or controlling
decision for the Court's consideration. See Eisert, 918 F. Supp.
at 606 ("standard for granting a motion for reargument is strict
`in order to dissuade repetitive arguments on issues that have
already been considered fully by the Court'") (quoting Ruiz v.
Commissioner of D.O.T. of City of New York, 687 F. Supp. 888, 890
(S.D.N.Y.), aff'd, 858 F.2d 898 (2d Cir. 1988)).
C. Sixth Amendment Claim — Ability to Present a Defense
Respondents final argument pertains to the attorney as witness
portion of the Opinion. Respondents correctly point out that this
court did not specifically apply the standard for habeas review
as amended by the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA") in granting the petition on Sixth Amendment
grounds. The new standard states:
(d) An application for writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless 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 States; or (2) resulted in a decision that
was made 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) (emphasis added).
This standard, particularly § 2254(d)(1), has not yet been
interpreted by the Second Circuit. However, several other
appellate courts have developed various analytical frameworks in
applying the standard. See, e.g., O'Brien v. Dubois,
145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865, 870 (4th
Cir. 1998) (reasonable jurist approach taken); Drinkard v.
Johnson, 97 F.3d 751, 767 (5th Cir. 1996) (same). The best
approach to date can be found in Matteo v.
Superintendent, 171 F.3d 877 (3rd Cir. 1999), wherein the Third
Circuit adopted a modified version of the O'Brien framework.
With regard to the first step of the analysis, the court stated:
[W]e hold that the "contrary to" provision of AEDPA
requires a federal habeas court first to identify the
applicable Supreme Court precedent and determine
whether it resolves the petitioner's claim. Like the
First Circuit, we believe this analysis requires
"something more than a recognition that the Supreme
Court has articulated a general standard that covers
the claim." Instead, the inquiry must be whether the
Supreme Court has established a rule that determines
the outcome of the petition. Accordingly, we adopt
O'Brien's holding that "[t]o obtain relief at this
stage, a habeas petitioner must show that Supreme
Court precedent requires an outcome contrary to that
reached by the relevant state court."
Id. at 888 (citations omitted).
Once the federal habeas court determines that the state court
decision was not "contrary to" a rule espoused by the Supreme
Court, the next step is to determine whether the state court
decision was based on an "unreasonable application of" Supreme
Court precedent. Id. at 889. With regard to this inquiry, the
Third Circuit has held:
[T]he appropriate question is whether the state
court's application of Supreme Court precedent was
objectively unreasonable. The federal habeas court
should not grant the petition unless the state court
decision, evaluated objectively and on the merits,
resulted in an outcome that cannot reasonably be
justified under existing Supreme Court precedent.
Id. at 889-90.
Here, Supreme Court precedent has established that: (1) a
defendant has the right to present a defense; and (2) that right
is subject only to reasonable restrictions. The right to present
a defense was established in Washington v. State of Texas,
388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and its progeny.
In Washington, the Supreme Court stated:
The right to offer the testimony of witnesses and to
compel their attendance, if necessary, is in plain
terms the right to present a defense, the right to
present the defendant's version of the facts as well
as the prosecution's to the jury so it may decide
where the truth lies. Just as an accused has the
right to confront the prosecution's witnesses for the
purpose of challenging their testimony, he has the
right to present his own witnesses to establish a
defense. This right is a fundamental element of due
process of law.
388 U.S. at 19, 87 S.Ct. 1920. This sentiment was reiterated
several years later in Chambers v. Mississippi, 410 U.S. 284
302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), wherein the Court
stated that "[f]ew rights are more fundamental than that of an
accused to present witnesses in his own defense." Id. at 302,
93 S.Ct. 1038. "The right of an accused in a criminal trial to
due process is, in essence, the right to a fair opportunity to
defend against the State's accusations." Id. at 294, 93 S.Ct.
1038. Although this right is not absolute and may "bow to
accommodate other legitimate interests in the criminal trial
process," "its denial or significant diminution calls into
question the ultimate `integrity of the fact-finding process' and
requires that the competing interest be closely examined." Id.
at 295, 93 S.Ct. 1038 (quoting Berger v. California,
393 U.S. 314
, 315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969)). Furthermore, this
right is an "essential attribute of the adversary system itself."
Taylor, 484 U.S. at 408, 108 S.Ct. 646.
We have elected to employ an adversary system of
criminal justice in which the parties contest all
issues before a court of law. The need to develop all
relevant facts in the adversary system is both
fundamental and comprehensive. The ends of criminal
justice would be defeated if judgments were to be
founded on a
partial or speculative presentation of the facts. The
very integrity of the judicial system and public
confidence in the system depend on full disclosure of
all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is
imperative to the function of the courts that
compulsory process be available for the production of
evidence needed wither by the prosecution or the
United States v. Nixon, 418 U.S. 683
, 709, 94 S.Ct. 3090, 41
L.Ed.2d 1039 (1974). More recently, the Supreme Court has stated
that "criminal defendants have the right to the government's
assistance in compelling the attendance of favorable witnesses at
trial and the right to put before a jury evidence that might
influence the determination of guilt." Pennsylvania v. Ritchie,
480 U.S. 39
, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (emphasis
The right to present a defense, however, is not absolute.
According to the Supreme Court:
A defendant's right to present relevant evidence is
not unlimited, but rather is subject to reasonable
restrictions. A defendant's interest in presenting
such evidence may thus "`bow to accommodate other
legitimate interests in the criminal trial process.'"
As a result, state and federal rulemakers have broad
latitude under the Constitution to establish rules
excluding evidence from criminal trials. Such rules
do not abridge an accused's right to present a
defense so long as they are not "arbitrary" or
"disproportionate to the purposes they are designed
to serve." Moreover, we have found the exclusion of
evidence to be unconstitutionally arbitrary or
disproportionate, only where it has infringed upon
a weighty interest of the accused.
United States v. Scheffer, 523 U.S. 303
, 118 S.Ct. 1261
140 L.Ed.2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44
56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)) (other citations
omitted) (emphasis added).
Because there is no Supreme Court rule that mandates the
admission of the type of evidence in dispute here, it cannot be
said that the state court decision is "contrary to" clearly
established Federal law as determined by the Supreme Court. The
next inquiry, therefore, is whether the state court decision was
based on an "unreasonable application of" Supreme Court
precedent. This entails identifying the applicable Supreme Court
precedent.*fn5 The applicable precedent, as stated above,
firmly establishes a defendant's right to present a complete and
full defense subject only to reasonable restrictions. It is
against this precedent that the state court decision must be
Respondents posit two explanations for the preclusion of
Koral's testimony. First, they argue that if Koral had been
permitted to testify, petitioner would have gained an unfair
tactical advantage in that the jury would be able to conclude
that petitioner relied on Koral's testimony without any evidence
of petitioner's state of mind. This so-called tactical advantage
could easily be prevented by a proper jury instruction. In Bisno
v. United States, 299 F.2d 711, 720 (9th Cir. 1961),*fn6 the
Ninth Circuit found that when defendant's attorney testified but
defendant did not, the record was silent as to whether he sought
and followed, in good faith, the advice of counsel. Accordingly,
although the attorney testified, a specific instruction on advice
of counsel was denied. "Under the general instruction given by
the district court on specific intent, the jury was entitled to
consider the testimony of [defendant's] counsel for what it was
worth and no more." Id. (emphasis added). Respondents also
justify the preclusion of Koral's testimony on the ground that it
prevented confusion of the issues. However, respondents fail to
identify either the issues that could be confused or the way in
which such confusion could be prevented. This justification is,
None of the cases cited by the respondents bear any resemblance
to this petition. Here, the state court judge excluded the
testimony of a defense witness who sought to offer evidence on
the issue of fraudulent intent. In Rock, the Court enunciated
the key concern: the exclusion of evidence is arbitrary or
disproportionate only where it infringes on a weighty interest
of the accused. In Scheffer, for example, the Court found that
it was perfectly acceptable to exclude polygraph evidence which
it found to be inherently unreliable. In both Taylor and
Nobles, the preclusion of witness testimony as a sanction for
discovery abuse was not disproportionate or arbitrary.
The case here is quite different. Koral's testimony was not
precluded because it was unreliable or as a sanction. Rather, it
was precluded because the trial judge decided that the defendant
was the only witness who was competent to offer testimony
regarding his state of mind. In applying the standard set forth
in Rock and Scheffer, this preclusion was both arbitrary and
disproportionate in its impact on Lurie's very weighty interest
in presenting a defense.
In short, the applicable Supreme Court precedent establishes a
defendant's right to present a defense. See Washington v. Texas;
Chambers v. Mississippi. This right is not absolute, but is
subject to reasonable restrictions. See Rock v. Arkansas, United
States v. Scheffer. Here, the state has offered no reasons for
the restriction it imposed. Indeed, the preclusion must be viewed
as arbitrary and disproportionate because it unreasonably
infringed on defendant's weighty interest in presenting a
defense. Thus, the state court's preclusion of Koral's testimony
was an unreasonable restriction of a right clearly established by
Supreme Court precedent (the right to present a defense subject
only to legitimate, non-arbitrary interests). Because the state
court's preclusion of the testimony in issue was an unreasonable
application of federal law as determined by the Supreme Court,
the requirements of section 2254(d)(1) are satisfied. The April
26 Opinion and Order is hereby reinstated in full.
Given the history of this case, I am also issuing a certificate
of appealability as to all of the issues raised in the instant
petition as they are all debatable among jurists of reason and
could be resolved in a different manner. See United States v.
Youngblood, 116 F.3d 1113, 1113-14 (5th Cir. 1997) ("district
court did not sua sponte grant or deny a COA"); United States ex
rel. Ayala v. Washington, 97 Civ. 2864, 1997 WL 627648, at *6
(N.D.Ill. Sept.30, 1997) ("this court sua sponte issues a
certificate of appealability"). The Clerk of the Court is
directed to close this case.
*fn2 The falsity also results from the representations made in
the certification filed with the original plan for the Edgewood
property, discussed infra.
*fn3 According to petitioner, the disclosure requirements
resulting from the changes in the law, which became effective
August 15, 1990, were disclosed to the real estate bar
approximately six weeks later, on December 12, 1989. See May
19th Letter, p. 9.
*fn4 The trial judge also reached this conclusion. During
DiStephan's cross-examination, Judge Wittner stated:
This is a question of law addressed to me in a motion
to dismiss by the prior counts. If this amendment,
the effective amendment, August 15, 1990, had changed
the requirements under the law, I would have had to
dismiss the indictment. But in that opinion, [sic]
which I addressed all the issues, I found this,
indeed, just reiterated what was already his
obligations under the law.
Appellant's Appendix ("A") 877. As this is a valid interpretation
of state law by a state judge, it is entitled to the presumption
of correctness and will not be overturned by a federal court
sitting in a habeas proceeding. Cf. Fagan v. Washington,
942 F.2d 1155, 1159-60 (7th Cir. 1991) ("When in doubt, we think it
both impetuous and impolitic to impute to a state trial judge a
misunderstanding of state law.").
*fn5 Respondents cite the following three cases as applicable
precedent: United States v. Scheffer, 523 U.S. 303, 118 S.Ct.
1261, 140 L.Ed.2d 413 (1998); Taylor v. Illinois, 484 U.S. 400,
108 S.Ct. 646, 98 L.Ed.2d 798 (1988), and United States v.
Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). For
the following reasons, these cases are factually inapposite to
the case sub judice. In Scheffer, the Supreme Court held that
Military Rule of Evidence 707, which makes polygraph evidence
inadmissible in court-martial proceedings, does not
unconstitutionally abridge the right of an accused to present a
defense. 118 S.Ct. at 1263. This holding, however, was rooted in
a desire to exclude unreliable evidence. Rule 707 was found to be
a "rational and proportional means of advancing the legitimate
interest in barring unreliable evidence," id. at 1266, because
it did not implicate any significant interest of the accused —
the accused was not prohibited from testifying in his own behalf,
he was only precluded from offering opinion testimony from a
polygraph expert to bolster his own credibility. Id. at
1268-69. The cases of Taylor and Noble are equally
inapplicable. In Taylor, an Illinois trial judge refused to
allow an undisclosed defense witness to testify as a sanction for
failing to identify the witness in response to a pretrial
discovery request. 484 U.S. at 401-02, 108 S.Ct. 646. The Supreme
Court held that such a sanction is not absolutely prohibited by
the Sixth Amendment's Compulsory Process Clause and found no
constitutional error on the specific facts before it. Id. at
402, 108 S.Ct. 646. In Nobles, a state court judge precluded an
investigator from offering impeachment testimony where the
defense counsel refused to produce a written report prepared by
that investigator. 422 U.S. at 229, 95 S.Ct. 2160. The Court held
that the preclusion sanction was an "entirely proper method of
assuring compliance with [the state court] order" that did not
violate the defendant's Sixth Amendment right to compulsory
process. Id. at 241, 95 S.Ct. 2160.
*fn6 Federal habeas courts are not precluded from "considering
the decisions of inferior federal courts when evaluating whether
the state court's application of the law was reasonable."
Matteo, 171 F.3d at 890 ("in certain cases it may be
appropriate to consider the decisions of inferior federal courts
as helpful amplifications of Supreme Court precedent").
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