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HINCAPIE v. GREINER

August 15, 2001

JOHNNY HINCAPIE, PETITIONER,
v.
CHARLES GREINER, SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Miriam Goldman Cedarbaum, United States District Judge.

MEMORANDUM OPINION AND ORDER

Petitioner asserts three grounds for relief. *fn1 First, petitioner contends that he was denied his right under the Sixth and Fourteenth Amendments to present a complete defense when the trial judge excluded the videotaped confession of a co-defendant, Ricardo Lopez, in which Lopez allegedly exculpated petitioner. Second, petitioner contends that he was denied his right under the Sixth and Fourteenth Amendments to be confronted with the witnesses against him when Detective James Christie testified that at the time he questioned petitioner, he informed petitioner that a co-defendant, Emilio Fernandez, had already inculpated petitioner in the robbery. Fernandez did not testify at the trial. Third, petitioner contends that he was denied his right under the Sixth and Fourteenth Amendments to be present during all material stages of his trial when Justice Torres went alone into the jury room to modify his instruction to the jury regarding the manner in which the jury should communicate with the court.

Title 28 U.S.C. § 2254 (b)(1) provides that a petition for a writ of habeas corpus in federal court requires that the petitioner first exhaust all remedies available in state courts. In order to satisfy the exhaustion requirement, petitioner must have "fairly presented" the federal claim to the state courts. See Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984). In order to fairly present a federal claim to a state court, "the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982). Petitioner must then show that he has utilized all available appellate procedures at the state level.

In petitioner's application for leave to appeal to the New York Court of Appeals, petitioner raised only the issues of whether the trial court erred in refusing to admit the Lopez videotaped statement and whether his arrest violated the Fourth Amendment. Petitioner attached his Appellate Division brief to the application for leave to appeal. The Appellate Division brief raised six issues, including the right of confrontation and right to be present. Petitioner argues that by attaching his Appellate Division brief to his application letter to the Court of Appeals, he fairly presented that court with an opportunity to rule on all claims not mentioned in the application letter.

In Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991), a habeas petitioner had raised three issues in a brief to the Appellate Division but mentioned only one of them in a letter application to the Court of Appeals. The Second Circuit held that the "fair import" of petitioner's submission to the Court of Appeals was that the unmentioned claims had been abandoned and the attached brief "did not fairly apprise the court of the . . . claims." Grey, 933 F.2d at 120. Moreover, the Court stated, "We decline to presume that the New York Court of Appeals has a duty to look for a needle in a paper haystack." Id.; Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000).

Petitioner specifically raised two issues in his letter application to the New York Court of Appeals and did not use his Appellate Division brief as a means of encompassing all additional issues that he sought to raise. Rather, petitioner only refers to his Appellate Division brief to buttress the two claims that he raised in his application letter. Accordingly, petitioner failed to fairly present the right of confrontation and right to be present claims to the New York Court of Appeals. See Jordan, 206 F.3d at 199 ("Had appellant more clearly stated that he was pressing all of the claims raised in the attached brief, or had his letter made no argument in detail but rather only request lied that the Court of Appeals] consider and review all issues outlined in defendant-appellant's brief, the result here would be different and the remaining claims would have been fairly presented to the Court of Appeals.") (internal citations omitted)

Petitioner's failure to raise issues before the Court of Appeals precludes further consideration in the New York courts. See N.Y. Court Rules § 500.10(a). Moreover, collateral review of the claims is barred because they were addressed on the merits on direct appeal. See N.Y. Crim. Proc. §§ 440.10(2)(a),(c). It would thus be fruitless to require petitioner to pursue these claims in state court, and thus the claims are deemed exhausted. See Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994); Grey, 933 F.2d at 120-21.

"Federal courts may address the merits of a claim that was procedurally defaulted in state court only upon a showing of cause for the default and prejudice to the petitioner." Bossett, 41 F.3d at 829. See Murray v. Carrier, 477 U.S. 478, 492 (1986); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). "Cause may be demonstrated with a showing that the factual or legal basis for a claim was not reasonably available to counsel...or that some interference by state officials made compliance impracticable...or that the procedural default is the result of ineffective assistance of counsel." Bossett, 41 F.3d at 829. (internal citations omitted). Petitioner has failed to make any showing of cause for failing to raise these issues before the New York Court of Appeals. Moreover, petitioner cannot show that he has suffered any prejudice as a result of Justice Torres' solitary visit to the jury room to modify his instruction about the manner in which the jury should communicate with the court or as a result of Detective Christie's inclusion of Fernandez's statement in his testimony.

Accordingly, only petitioner's first claim, that the trial court violated his right under the Sixth and Fourteenth amendment by excluding the videotaped statement of Lopez, may be addressed. For the reasons discussed below, that claim does not support the issuance of a writ of habeas corpus, and the petition is denied.

BACKGROUND

On the evening of September 2, 1990, petitioner and a group of his friends, on their way to a dance club, arrived at a subway station in Manhattan at 53rd Street and Seventh Avenue. Petitioner and several others in the group did not have enough money for admission into the club, so they separated from the larger group and sought to commit a robbery in the subway to obtain money. Brian Watkins, Sherwin Watkins (Brian's father), Karen Watkins (Brian's mother), Todd Watkins (Brian's brother), and Michelle Watkins (Todd's wife) were visiting from Utah and were targeted by petitioner and his friends as they stood on the subway platform. Petitioner and his friends accosted members of the Watkins family and a struggle ensued. Brian was fatally stabbed in the chest and approximately $150 was taken from his father.

When detectives later questioned petitioner, petitioner waived his Miranda rights, and made and signed a confession that detailed his participation in the robbery. His confession was also videotaped. At petitioner's trial, he sought to introduce the videotaped confession of his co-defendant Ricardo Lopez. In that tape, Lopez stated, "Johnny and Kevin left [the group that was planning to commit the robbery]." Lopez later repeated that "the two of them ...


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