The opinion of the court was delivered by: Larimer, Chief Judge.
I. JURISDICTIONAL ISSUES
A. Exhaustion of State Judicial Remedies
28 U.S.C. § 2254(b)(1)(A). A habeas petitioner "must give the
state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established
review process." O'Sullivan v. Boerckel,
, 845, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999). Typically, this means that
Federal habeas claims must have been included in both the
petitioner's appeal to the state's intermediate appellate court
and in an application for permission to appeal to the state's
highest court. Boerckel, at 848, 119 S.Ct. at 1734.
Respondent contends that Lyon only raised two claims before the
New York Court of Appeals, and that his other habeas claims were
not properly exhausted. (Item no 9 ¶ 4.) The application that
Lyon's appellate counsel submitted to the Court of Appeals only
included two claims. However, the Court of Appeals acknowledged
that it also received a copy of Lyon's pro se Brief to the
To properly exhaust a claim, "the petitioner must have informed
the state court of both the factual and legal premises of the
claim he asserts in federal court," and must have "alert[ed] the
[state] court to the claim's federal nature." Daye v. Attorney
General of New York, 696 F.2d 186, 192-93 (2d Cir. 1982)
(citing, inter alia, Picard v. Connor, 404 U.S. 270, 278, 92
S.Ct. 509, 30 L.Ed.2d 438 (1971)). Lyon's pro se brief sets
forth the factual and legal premises of his claims. Therefore,
the claims in Lyon's pro se brief, which was submitted to the
Court of Appeals, have been adequately exhausted. Morgan v.
Bennett, 204 F.3d 360, 369-71 (2d Cir. 2000).*fn4
Although a "complete round" of the state's review process
typically involves a defendant's direct appeal, state law can
provide an alternate avenue for relief. New York law permits
assertion of certain claims in a post-trial motion to vacate the
judgment rather than on direct appeal. CPL § 440. Lyon filed a
post-trial motion under CPL § 440, raising a number of claims.
Three of those claims were denied on the merits. Lyon
unsuccessfully sought permission to appeal the denial of those
three claims. By raising those claims in his post-trial motion
under CPL § 440 and then appealing the denial of the claims, Lyon
invoked a "complete round" of the "available" state procedure and
properly exhausted his judicial remedies with regard to those
This court therefore holds that Lyon properly exhausted his
First, Fifth, Sixth Seventh, Eighth, Ninth, Tenth, Eleventh and
Twelfth Claims on direct appeal, and his Fourteenth, Fifteenth
and Sixteenth claims in his § 440 Motion.
B. Juror Prejudice from Reginald Wills's "Outburst"
Lyon claims that he was denied a fair trial "due to jury
prejudice caused by the in-court outburst" of the victims' son,
Reginald Wills. (Pet. ¶ 12(A.)) In Lyon's direct appeal, the
Appellate Division held:
The impact of Reginald Wills's outburst on jurors' ability to
render an impartial verdict is a "question of historical fact"
which "must be determined, in the first instance, by state courts
and deferred to, in the absence of convincing evidence to the
contrary, by the federal courts." Rushen v. Spain,
, 120, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). (Internal
citation omitted.) After polling the jurors, the trial judge
determined that they were able to render an unbiased verdict. One
juror initially expressed reservations. However, after taking
time to consider whether he could decide the case impartially,
the juror informed the judge that he could do so. Thus, the
juror's initial expression of doubt, rather than suggesting bias,
reflects that he made a conscientious effort to assess the effect
of the outburst on his objectivity. The trial judge's finding
that each juror could render an unbiased verdict was upheld on
direct appeal and there is no compelling contrary evidence. This
Court must defer to that finding. Lyon's First Claim must
therefore be dismissed.
Lyon also claims that he was improperly excluded from the trial
judge's interviews of the jurors. (Pet. ¶ 12(I).) "The right to
personal presence at all critical stages of the trial" is a
"fundamental right of each criminal defendant." Rushen, 464
U.S. at 117, 104 S.Ct. 453. However, "no constitutional error
results if a defendant knowingly and voluntarily waives his right
to be present" at any stage of the trial. Cuoco v. United
States, 208 F.3d 27, 30 (2d Cir. 2000). Lyon's attorney waived
his right to be present at the interviews. Lyon does not assert
that the waiver was involuntary. Further, Lyon has made no
showing that he was prejudiced because of his absence from the
jury interviews. Therefore, even if Lyon had been improperly
excluded from the interviews, that exclusion would be deemed a
harmless error. Rushen, 464 U.S. at 119-20, 104 S.Ct. 453.
Lyon's Ninth Claim must be dismissed.
C. Prosecution's Failure to Disclose Exculpatory Information
Lyon's Sixth Claim asserts that he was prejudiced by the
prosecutor's untimely disclosure of exculpatory information in
violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963). (Pet. ¶ 12(F).) He does not elaborate in the
Petition as to the nature of the exculpatory material. However,
in the pro se brief that Lyon filed in his direct appeal, he
cited non-disclosure of Wright's plea bargain and initial
statement to police as the basis for his Brady claim. (Ex. D,
Brady, 373 U.S. at 87, 83 S.Ct. 1194. Evidence is material when
"there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different." United States v. Bagley,
105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). When a habeas claim is
based on belated disclosure of Brady information, rather than
non-disclosure of such information, a petitioner is not entitled
to reversal, even if the information is deemed material, "unless
he can show that the delayed disclosure caused him prejudice."
United States v. Diaz,
, 114 L.Ed.2d 119 (1991). In
Diaz, information that impeached the credibility of a key
prosecution witness was disclosed during the trial, after the
witness had completed his testimony. The Second Circuit held that
the defendant had not been prejudiced since defense counsel was
able to introduce the information through the testimony of
another witness and used it effectively in summation, and since
offered to permit the defendant to recall the witness to the
stand, in order to cross-examine him regarding the conflicting
testimony. Id. at 1007.
Although Lyon's counsel complained about belated disclosure of
Wright's prior statement and the terms of the plea agreement, the
statement and agreement were disclosed prior to the trial.
Counsel effectively used the information in his opening
statement, during cross-examination of Wright and Marro and in
summation. Also, Wright's credibility was already subject to
question, given his prior criminal record, his admitted
involvement in the plan to burglarize the Willses' and the timing
of his contact with police. Evidence is not material under
Brady if it "`merely furnishes an additional basis on which to
impeach a witness whose credibility has already been shown to be
questionable.'" United States v. Amiel, 95 F.3d 135, 145 (2d
Cir. 1996) (quoting United States v. Wong, 78 F.3d 73, 79 (2d
The prosecutor's belated disclosure of information did not so
prejudice Lyon as to deprive him of due process. Lyon's Sixth
Claim must therefore be dismissed.
Lyon's Seventh Claim asserts that Marro "knowingly destroyed
material that would have been useful to the defense," namely
notes from the initial interview with Wright. (Pet. ¶ 12(G).) Lyon
does not offer a basis for his contention that Marro kept notes
of his initial interview of Wright, much less that Marro
destroyed such notes. Further, Lyon does not allege that Marro's
notes, if they existed, included any new exculpatory information.
Hence, their only usefulness would have been to impeach Marro's
testimony. Impeachment evidence is material if "the witness in
question supplied the only evidence linking the defendant to the
crime . . . [or] the only evidence of an essential element of the
offense." United States v. Avellino, 136 F.3d 249, 256 (2d Cir.
1998). Since Marro's testimony did not directly link Lyon to the
crime or provide an essential element of the offense, evidence
impeaching him would not have been material under Brady. Lyon
has not shown that Marrow destroyed interview notes or that such
notes, if they existed, would have been Brady material. His
Seventh Claim must be dismissed.
Lyon's Fourteenth Claim reiterates the above Brady claims,
with the added assertion that information withheld by the
prosecutor was "Rosario . . . material." (Pet. ¶ 14(N).) People
v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881
(1961), anticipated Brady in holding that suppression of
evidence favorable to the accused violates due process. However,
Rosario went beyond requirements later defined in Brady and
its progeny, holding that a prosecutor must disclose any prior
statement of its witness, regardless of whether it is favorable
to the accused. To the extent that it exceeded Constitutional
requirements, Rosario defines state law and is not a basis for
a federal habeas claim. See Practice Commentary to CPL § 240.25
(McKinney's) on the difference between state disclosure
requirements under Rosario and Federal requirements under
Brady. To the extent that it enunciated Due Process
requirements subsequently defined in Brady, citation of
Rosario adds nothing to the Sixth and Seventh Claims. Lyon's
Fourteenth Claim must be dismissed.
D. Perjured Testimony
Lyon's Eighth and Twelfth Claims assert that he was denied a
fair trial by the prosecutor's use of perjured testimony. A
prosecutor's "deliberate deception of a court and jurors by the
presentation of known false testimony is incompatible with
`rudimentary demands of justice,'" and violates a defendant's
right to a fair trial. Giglio v. United States, 405 U.S. 150,
153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (quoting Mooney v.
Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935)).
In support of his Eighth Claim, Lyon refers to Wright's
testimony that Robert Wills called his wife's name and tried to
stand after Lyon hit him with the hatchet. (H38-39.) He cites the
opinion of the coroner, Dr. Benedek, that the blow described by
Wright "probably would cause unconsciousness," (C727-28), and
reasons that an unconscious person would not be able to speak or
attempt to stand.*fn6 While the contrast between the coroner's
testimony and Wright's may arguably have cast doubt on the
latter's description of the crime, it falls short of
demonstrating that Wright perjured himself, much less that the
prosecution knowingly adduced perjured testimony from Wright.
In support of his Twelfth Claim, Lyon refers to Wright's
testimony that he was not promised a specific sentence; and
purports to quote District Attorney Bates that he did not speak
"with either Mr. Hemingway or Sharon Ratley concerning the nature
of the immunity that you were prepared to grant Mr. Wright[.]"
(Pet. ¶ 12(L).)*fn7
Ratley was the prosecutor and Hemingway was Wright's defense
attorney in the Georgia case. Thus, the gist of the claim is that
the prosecutor elicited false testimony from Wright and perjured
himself regarding terms of the plea agreement. However, it is
clear from the trial record that the jury was not misled as to
the terms of the agreement with Wright. Indeed, when Wright
initially misspoke regarding his sentence under the agreement,
the prosecutor, through further questions, brought out accurate
information from Wright. (H8-9.) There is no basis for inferring
that the prosecutor perjured himself or encouraged Wright to lie
regarding the agreement. Lyon's Eighth and Twelfth Claims must be
E. Summation and Jury Charge
Lyon's Eleventh Claim asserts that he was denied a fair trial
by the "cumulative effect" of comments made by the prosecutor in
his summation, and the trial court's charge to the jury. In
Lyon's direct appeal, the Appellate Division held that,
[al]though the prosecutor impermissibly bolstered his
own witnesses' testimony and impugned the defense, we
cannot say that defendant was deprived of a fair
trial. This misconduct also was of defendant's own
making as the result of defense counsel's summation
attacking the veracity of the prosecution's
Lyon, 134 A.D.2d at 910, 521 N.Y.S.2d 930.
A prosecutor's comments violate due process when they are so
prejudicial as to deprive the defendant of a fair trial. Darden
v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144
(1986). Here, the prosecutor countered defense counsel's
accusation that Marro destroyed exculpatory evidence by asserting
that Marro conducted an honest investigation. Although the
comments amount to vouching for a prosecution witness, they were
a response to defense counsel's attack on the witness' veracity.
United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981).
The state court found that the prosecutor's comments did not deny
Lyon a fair trial, and there is no compelling evidence to the
The judge instructed the jury that it "may" infer intent "from
the natural and ordinary consequences of a person's actions" but
was "not required to do so."
The judge stressed that such an inference "does not shift any
burden of proof whatsoever. The burden of proof as to each
element of the crime submitted to you remains upon the People."
(C960-61.) In Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct.
2450, 61 L.Ed.2d 39 (1979), the Supreme Court held that a jury
instruction that suggested that the burden of proof on the issue
of intent shifted to the defendant violated due process. Assuming
that the above-quoted instruction implicated Sandstrom, it is
clear that the jury charge, taken as a whole, did not prejudice
the jury's deliberations. United States v. Allah, 130 F.3d 33,
42 (2d Cir. 1997) (citing, inter alia, Francis v. Franklin,
471 U.S. 307, 314-15, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985)). The
trial court's charge to the jury made clear that the prosecution
sustained the burden of proof on intent and that it was up to the
jury to decide whether to infer intent from the defendant's
actions; even if there were any error in the wording of that
charge, it was "in the midst of a balanced statement" as to the
burden of proof on intent. Allah, at 42-43 (quoting Rock v.
Coombe, 694 F.2d 908, 915-17 (2d Cir. 1982), cert. denied,
460 U.S. 1083, 460 U.S. 1083, 76 L.Ed.2d 345 (1983)). Since neither
the summation nor the jury charge violated due process, Lyon
cannot claim prejudice from the "cumulative" effect of those
alleged violations. His Eleventh Claim must therefore be
F. Consecutive Sentence
Lyon claims that imposition of consecutive sentences for the
felony murder convictions violated his Constitutional rights.
(Pet. ¶ 12(E).)*fn8 The Fifth Amendment provides that no person
shall "be subject for the same offense to be twice put in
jeopardy of life or limb." U.S. Const. amend. V, cl. 2.
Although the Double Jeopardy Clause "protects against multiple
punishments for the same offense," North Carolina v. Pearce,
395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), it does
not prohibit a court from imposing separate punishments based on
two criminal offenses, even when the offenses are premised on the
same course of conduct. Missouri v. Hunter, 459 U.S. 359, 366,
103 S.Ct. 673, 74 L.Ed.2d 535 (1983). "With respect to cumulative
sentences imposed in a single trial, the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended." Id.
It is clear that New York Penal Law contemplates the imposition
of consecutive sentences for two felony murder convictions
arising out of the same felonious conduct. People v.
Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29
(1984). The fact that Lyon's conviction was premised on
participation in the underlying felony, and not on a finding that
he was the participant who killed Mr. and Mrs. Wills is
irrelevant to double jeopardy analysis. Lyon's sentences were
imposed for two separate felony-murder convictions. The state
legislature is entitled to impose consecutive punishments for
those convictions, and it is clear that such was the intent of
the legislature. Lyon's Fifth Claim must therefore be dismissed.
G. DNA Evidence
Lyon's Sixteenth Claim asserts that he was denied due process
because of "the court[']s decision denying forensic
deoxyribonucleic acid (`DNA') testing." (Pet. ¶ 12(P).)
Respondent notes that Lyon never requested DNA testing prior to
or during his trial and first sought such testing in his CPL §
440 motion. (Item no. 10, at 8.) Lyon does not contest this,
stating that a request could not have been made at trial "for the
simple reason that
there was no DNA testing in 1982." (Item no. 13, at 9.)
The state court denied Lyon's request, holding that DNA test
results would be
immaterial to the defendant's conviction. The absence
of any DNA result connecting the defendant to the
homicide would not materially affect the conviction
for a felony murder and would not establish innocence
or otherwise undermine the verdict.
People v. Lyon, Decision, November 25, 1997, at 4.
Lyon's DNA claim is not premised on the alleged denial of any
Constitutional right during his trial. As the Supreme Court noted
in Herrera v. Collins, 506 U.S. 390, 399, 113 S.Ct. 853, 122
L.Ed.2d 203 (1993), "[c]laims of actual innocence based on newly
discovered evidence have never been held to state a ground for
federal habeas relief absent an independent constitutional
violation occurring in the underlying criminal proceeding."
Herrera did not rule on whether a "freestanding" claim of
innocence could ever be a basis for habeas relief. However, it
noted that "the threshold showing for such an assumed right would
necessarily be extraordinarily high." Id. at 417, 113 S.Ct.
853. Lyon does not come close to meeting the "extraordinarily
high" threshold for obtaining habeas relief based on his DNA
Lyon has not shown that there is any "new evidence" to support
his request. He claims that blood found under Mrs. Wills'
fingernails should have been subjected to DNA testing and
speculates that the results of such tests would show that he was
not the person who had direct contact with her. However, Lyon's
felony-murder conviction is premised on his participation in a
felony during which the victims were murdered. The state was not
required to prove that Lyon had physical contact with either
victim and DNA analysis could not establish Lyon's innocence
regardless of the test results. Lyon's Sixteenth Claim must
therefore be denied.
For the above stated reasons, Petitioner's Petition for habeas
corpus under 28 U.S.C. § 2254 is DENIED, and this proceeding is
DISMISSED. Further, because Lyon has failed to make a substantial
showing of a denial of a constitutional right, I deny a
certificate of appealability. 28 U.S.C. § 2253.
It is hereby ORDERED that Petitioner's petition for habeas
corpus under 28 U.S.C. § 2254 is DENIED, and the action is
IT IS SO ORDERED.