under § 101 of the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), Pub.L. No. 104-132, § 101, 110 Stat. 1214,
1217 (codified at 28 U.S.C. § 2244(d)). See Morales v. Portuondo,
No. 97 Civ. 2559 (DC), 1997 U.S. Dist. LEXIS 11094, at *1 (S.D.N.Y. June
16, 1997). In doing so, I relied on the Second Circuit's decision in
Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), in which the Court
observed that there was "no need to accord a full year after the
effective date of the AEDPA" for the filing of a habeas petition. Id. at
93. Morales's petition had been filed 335 days after the effective date
of the AEDPA and five years after his conviction had become final.
Thereafter, however, the Second Circuit decided Ross v. Artuz,
150 F.3d 97, 101 (2d Cir. 1998), in which it concluded that its
observation in Peterson was only dicta and held that a habeas petition
was timely as long as it was filed within one year after the effective
date of the AEDPA. As a consequence, on August 21, 1998, the Second
Circuit vacated the judgment in this case, ruling that the petition was
not time-barred and remanding the matter for further proceedings. See
Morales v. Portuondo, No. 97-2728, 1998 U.S. App. LEXIS 22151 (2d Cir.
Aug. 21, 1998).
On remand, Morales obtained counsel, who briefed only one of the four
claims raised in the petition — the claim that Ramirez's statements
should have been admitted into evidence at trial. By memorandum decision
dated August 11, 1999, I denied the petition, holding that the trial
court did not violate Morales's constitutional rights by excluding
evidence of Ramirez's statements. See Morales v. Portuondo, No. 97 Civ.
2559 (DC), 1999 U.S. Dist. LEXIS 12319, at *12 (S.D.N.Y. Aug. 11, 1999).
I did not address the issue of the admissibility of Fornes's statements
because Morales's attorney did not raise the issue.
Morales appealed, pro se. The Second Circuit granted a certificate of
appealability, but only on the issue of the admissibility of Fornes's
statements.*fn5 New counsel — Randa D. Maher, Esq., one of
Morales's current attorneys — was appointed to represent Morales on
the appeal. Maher pressed the issue of the admissibility of Fornes's
statements. Significantly, she obtained and appended to her appellate
brief the affidavit from Father Towle.
After the parties argued the appeal, the Second Circuit remanded the
case to this Court for supplementation of the record. Specifically, the
Second Circuit directed this Court, within 120 days of its order, to make
any findings of fact and conclusions of law necessary to enter judgment
on the following claim: "did the state trial court violate Morales' due
process rights under Estelle v. McGuire, 502 U.S. 62 (1991) and Chambers
v. Mississippi, 410 U.S. 284 (1973) by ruling that the post-trial
statements of witness Jesus Fornes were inadmissible hearsay and
insufficient to justify a new trial?" Morales v. Portuondo, 243 F.3d 703,
703 (2d Cir. 2001).
C. Pending Proceedings
1. State Court
On April 17, 2001, after this case was remanded by the Second Circuit,
acting pro se, filed a CPL § 440.10 motion in the Supreme
Court of New York, Bronx County, to vacate the conviction on the grounds
that Fornes's confession to Father Towle constituted newly-discovered
evidence that would have exonerated him had it been admitted at trial.
The District Attorney's Office has opposed the motion, arguing that it
should be "summarily denied in its entirety, as [the] claims are
procedurally barred and totally without merit." First, the District
Attorney argues that Morales waited "over a year" to bring the evidence
to the Supreme Court's attention. Second, the District Attorney argues
that Father Towle's information is not "truly new," and that, in any
event, "it would not change the result if a new trial was held" because
Fornes's statements to the priest were not against his penal interest as
he believed his confession would never be revealed.
The motion has not yet been heard.
2. This Court
I conducted an evidentiary hearing on July 16, 2001. Morales called
five witnesses: Father Towle, Servino, Cohen, Maria Montalvo, and Maria
Morales-Fowler. The District Attorney's Office called one witness,
Assistant District Attorney Michael H. Cooper, who participated in an
interview of Father Towle on June 18, 2001. After hearing oral argument,
I reserved decision.
The writ of habeas corpus "holds an honored place in our
jurisprudence." Engle v. Isaac, 456 U.S. 107, 126 (1982). The "Great
Writ" has long been "a bulwark against convictions that violate
`fundamental fairness.'" Id. (quoting Wainwright v. Sykes, 433 U.S. 72,
97 (1977) (Stevens, J., concurring)). Its function has been to:
provide a prompt and efficacious remedy for whatever
society deems to be intolerable restraints. Its root
principle is that in a civilized society, government
must always be accountable to the judiciary for a
man's imprisonment: if the imprisonment cannot be
shown to conform with the fundamental requirements of
law, the individual is entitled to his immediate
release. . . . [H]abeas corpus in the federal courts
provides a mode for the redress of denials of due
process of law. Vindication of due process is
precisely its historic office.
Fay, 372 U.S. at 401-02.
Here, Morales contends that he is entitled to be released because his
conviction was obtained in violation of law — he was denied due
process because he was not permitted to present evidence of Fornes's
statements in his defense, evidence that he maintains constitutes proof
of actual innocence.
Morales's petition raises several issues. First, as a threshold
matter, respondent argues that Morales has not exhausted his state
remedies. Second, an issue is presented as to the standard of review to
be applied by a federal court reviewing a habeas petition challenging a
state conviction. Third, as to the merits, Morales's contention that his
due process rights were violated requires a discussion of a defendant's
due process right to present evidence, the law on hearsay and
privileges, and the reliability of Fornes's statements. Fourth, assuming
Morales has demonstrated a violation of his constitutional rights, there
remains the issue of the scope of relief.
A state prisoner who petitions for a writ of habeas corpus must exhaust
available state court remedies by first presenting the substance of
his habeas claims to the state courts. See 28 U.S.C. § 2254(b)(1)(A);
see also Picard v. Connor, 404 U.S. 270, 275 (1971); Strogov v. Attorney
Gen., 191 F.3d 188, 191 (2d Cir. 1999), cert. denied, 120 S.Ct. 2723
(2000). The petitioner must present to the state courts "the same federal
constitutional claim that he now urges upon the federal courts," and, if
the claim is denied, he must utilize "all available mechanisms" to obtain
state appellate review. See Padilla v. Keane, No. 00 Civ. 1235
(VM)(AJP), 2000 U.S. Dist. LEXIS 17340, at *6 (S.D.N.Y. Dec. 4, 2000)
(citation omitted); see also Klein v. Harris, 667 F.2d 274, 282 (2d Cir.
Here, respondent argues that the issue of the admissibility of Fornes's
statements is not properly before this Court because Morales has failed
to exhaust his state court remedies. First, respondent argued on appeal
to the Second Circuit that Morales never framed his claim as a federal
constitutional claim in the state court proceedings and that he therefore
forfeited the claim. (See Brief for Respondent-Appellee at 25-26).
Second, respondent argues that the issue of Fornes's statements to Father
Towle is not properly before this Court because Morales's motion to
vacate his conviction on the basis of the statements to Father Towle is
still pending in the Bronx Supreme Court. Third, respondent notes that
Fornes's statements to Cohen have not been presented to the state court
The exhaustion argument is rejected, for Morales has demonstrated the
likelihood of a "fundamental miscarriage of justice." Washington v.
James, 996 F.2d 1442, 1447 (2d Cir. 1993) (quoting Murray v. Carrier,
477 U.S. 478, 495-96 (1986)); see also 28 U.S.C. § 2254(b)(1)(B)(ii)
(exhaustion not required where "circumstances exist that render [the
state corrective] process ineffective to protect the rights of the
applicant"). In the extraordinary circumstances of this case, the
interests of justice require that this Court reach the issues presented
without further delay.
First, the issue of the admissibility of Fornes's statements was
presented to the state courts, in the context of Fornes's conversations
with Maria Montalvo and Servino. The record is unclear whether Morales
couched the issue as a federal constitutional claim; neither the trial
judge nor the Appellate Division addressed any federal constitutional
issues. Nonetheless, the due process implications were apparent, as
Morales was offering Fornes's statements as proof of actual innocence.
See Washington, 996 F.2d at 1447 (court may excuse procedural default in
failing to exhaust claim "where a constitutional violation has probably
resulted in the conviction of one who is actually innocent") (quoting
Murray, 477 U.S. at 496). Even though they did not put a federal
constitutional label on the claim, the state courts fully considered the
Second, the issue of the admissibility of Fornes's statements is
squarely before this Court, as it was raised as one of the four grounds
asserted in Morales's original pro se habeas petition filed in this
Court. Morales's petition was filed more than four years ago. The Second
Circuit specifically directed that this Court address the issue of
Fornes's statements on remand, and thus the statements — at least
the statements made by Fornes to Servino and Maria Montalvo — are
clearly before this Court.
Third, Fornes's statements to Father Towle and Cohen are inextricably
tied to the issue of the admissibility of Fornes's
statements to Servino and Maria Montalvo. At a minimum, Fornes's statements
to Father Towle and Cohen are relevant as corroboration of Fornes's
statements to Servino and Maria Montalvo. Moreover, the District Attorney
has argued in the state court on the pending motion that Father Towle's
information is not "truly new," and that, in any event, "it would not
change the result if a new trial was held." Under these circumstances, the
admissibility of Fornes's statements to Father Towle and Maria Montalvo
should be considered together with the issue of the admissibility of the
statements to Servino and Maria Montalvo.
Finally, Morales has been in prison for almost thirteen years. He has
presented substantial evidence of actual innocence. If he was wrongly
convicted, any further delay — no matter how brief — would
only compound the fundamental unfairness of the situation.
B. The Standard of Review
Prior to the enactment of AEDPA, federal courts adjudicating a habeas
petition reviewed pure questions of law and mixed questions of law and
fact de novo. See Washington v. Schriver, No. 00-2195, 2001 U.S. App.
LEXIS 13480, at *25 (2d Cir. June 15, 2001). Factual findings of the
state courts were "presumed . . . correct absent special circumstances
listed in the [then-existing] statute." Id. (quoting
28 U.S.C. § 2254(d) (1994)) (internal quotation marks omitted).
AEDPA, enacted by Congress in 1996, vastly altered the landscape of
habeas jurisprudence and "placed a new restriction on the power of
federal courts to grant writs of habeas corpus to state prisoners."
Williams v. Taylor, 529 U.S. 362, 399 (2000). The statute set forth
several new standards of review, which make it more difficult for a
habeas petitioner to obtain relief from a state conviction. The standard
most applicable to this case provides that a habeas petition:
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 . .
. resulted in a decision that was contrary to . . .
clearly established Federal law, as determined by the
Supreme Court of the United States.
28 U.S.C. § 2254(d). As the Second Circuit recently explained, "[a]
state court decision is `contrary to' Supreme Court precedent only if it
either `arrives at a conclusion opposite to that reached by [the Supreme
Court] on a question of law' or `confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at
[the opposite result]." Lainfiesta v. Artuz, No. 00-2643, 2001 U.S. App.
LEXIS 11984, at *9-10 (2d Cir. June 8, 2001) (quoting Williams, 529 U.S.
at 405) (alterations in original). The standards set forth by AEDPA apply
to all habeas petitions filed after the statute's effective date of April
24, 1996. See Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001) (citing
Williams, 529 U.S. at 402).
Section 2254's requirement that petitioner's claim be "adjudicated on
the merits" has caused great debate among the Courts of Appeals as to the
applicability of AEDPA. See Washington, 2001 U.S. App. LEXIS 13480, at
*18-24 (describing circuit split as to meaning of "adjudicated on the
merits"). In Washington, the Second Circuit was presented with the
question of whether a state court's summary dismissal of petitioner's
constitutional claim qualified as "an adjudication on the merits" within
the meaning of § 2254(d) and was thus subject to "AEDPA's deferent
standard of review of state court determinations." Id. at
*18. The Court acknowledged the differing views adopted by other Circuits
with respect to the phrase's definition, but ultimately declined to resolve
the issue because, under either the pre — or post-AEDPA standard of
review, petitioner's application for habeas relief was properly denied. Id.
I likewise decline to reach the issue, as Morales is entitled to habeas
relief under either standard of review. For the reasons set forth below,
applying the pre-AEDPA standards, I conclude that the state court erred in
holding that Fornes's statements to Servino and Maria Montalvo were
inadmissible. In addition, for the reasons set forth below, applying the
standards set forth in AEDPA, I conclude that the state court's decision
to exclude Fornes's statements was contrary to clearly established
federal law as interpreted by the Supreme Court in Chambers v.
Mississippi, 410 U.S. 284 (1973).
C. The Merits
1. Applicable Law
a. The Requirements of Due Process
In Chambers v. Mississippi, the Supreme Court recognized that a
defendant's right to present evidence at trial is a matter of due process:
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. The rights to confront and cross-examine
witnesses and to call witnesses in one's own behalf
have long been recognized as essential to due
410 U.S. at 294; see also Washington, 2001 U.S. App. LEXIS 13480, at *25
(the "right to call witnesses in order to present a meaningful defense at
a criminal trial is a fundamental constitutional right secured by both
the Compulsory Process Clause of the Sixth Amendment and the Due Process
Clause of the Fourteenth Amendment") (citations omitted).
The right to present a defense, of course, is not absolute, as
defendants in criminal cases "must comply with established rules of
procedure and evidence designed to assure both fairness and reliability."
Washington, 2001 U.S. App. LEXIS 13480, at *28 (quoting Chambers, 410
U.S. at 302). On the other hand, state rules of evidence may not be
"inflexibly applied" so that they deprive a defendant of a fundamentally
fair trial. See id. Indeed, the Supreme Court held in Chambers that
"where constitutional rights directly affecting the ascertainment of
guilt are implicated, the hearsay rule may not be applied mechanistically
to defeat the ends of justice." 410 U.S. at 302.
Because the right to present a defense necessarily implicates state
evidentiary rulings, federal courts considering evidentiary claims on
habeas review must be careful to differentiate between mere errors of
state law and those of constitutional dimension. Habeas relief under
§ 2254 is unavailable for mere errors of state law, see Jones v.
Stinson, 229 F.3d 112, 120 (2d Cir. 2000) (quoting Estelle v. McGuire,
502 U.S. 62, 67 (1991)), and "[e]rroneous evidentiary rulings rarely rise
to the level" of a constitutional violation. Washington, 2001 U.S. App.
LEXIS 13480, at *28 (quoting Agard v. Portuondo, 117 F.3d 696, 705 (2d
Cir. 1997), rev'd on other grounds, 529 U.S. 61 (2000)). Nonetheless,
habeas courts confronting a Due Process claim must examine state
evidentiary rulings to determine whether those rulings deprived
petitioner of a fundamentally fair trial.
See Jones, 229 F.3d at 120; Rosario v. Kuhlman, 839 F.2d 918, 924
(2d Cir. 1988) (while "erroneous evidentiary rulings do not automatically
rise to the level of constitutional error, . . . [t]he court's duty on a
petition for habeas corpus is to determine whether the excluded testimony
was material to the presentation of the defense so as to deprive the
defendant of fundamental fairness").
To obtain habeas relief on these grounds, a petitioner "must
demonstrate first that the [trial court's evidentiary] ruling was
erroneous and, second, that the erroneous ruling `so infected the
proceedings as to have rendered the trial fundamentally unfair.'" Montalvo
v. Newton, No. 98 Civ. 8665 (RPP)(KNF), 2001 U.S. Dist. LEXIS 3172, at
*6-7 (S.D.N.Y. Mar. 22, 2001) (quoting Alvarez v. Scully,
833 F. Supp. 1000, 1005 (S.D.N.Y. 1993)). Even if the state court's
evidentiary ruling is technically correct, and the evidence would
otherwise be inadmissible under the state's rules of evidence, a
petitioner may nonetheless be entitled to introduce such evidence if
exclusion of the evidence would render his trial fundamentally unfair.
See Chambers, 410 U.S. at 302-03.
In determining whether the exclusion of a petitioner's proffered
evidence rose to the level of a constitutional violation, a habeas court
must ascertain the materiality of the excluded evidence to the
petitioner's defense. See Rosario, 839 F.2d at 925. Specifically, the
Second Circuit has instructed as follows:
Whether the exclusion of [witnesses'] testimony
violated [defendant's] right to present a defense
depends upon whether "the omitted evidence [evaluated
in the context of the entire record] creates a
reasonable doubt that did not otherwise exist." In a
close case, "additional evidence of relatively minor
importance might be sufficient to create a reasonable
doubt." On habeas review, trial errors are subject to
lenient harmless error review. The creation of
otherwise non-existent reasonable doubt satisfies the
"substantial and injurious" standard [of Brecht v.
Abrahamson, 507 U.S. 619 (1993)].
Jones, 229 F.3d at 120 (citations omitted) (alterations in original).
Applying these principles, I must consider whether Fornes's statements
were admissible and, if so, whether their inclusion in the record would
have created a reasonable doubt as to Morales's guilt.