The opinion of the court was delivered by: Miriam Goldman Cedarbaum, United States District Judge.
MEMORANDUM OPINION AND ORDER
Johnny Hincapie petitions for a writ of habeas corpus to vacate the
judgment of conviction and sentence entered by Justice Edwin Torres on
January 3, 1992 in New
York State Supreme Court, New York County. On
December 10, 1991, after a seven week trial, a jury convicted petitioner
of murder in the second degree, two counts of robbery in the first
degree, and two counts of robbery in the second degree. On January 3,
1992, petitioner was sentenced to concurrent terms of twenty-five years
to live imprisonment for murder, eight and one-third to twenty-five years
for each count of first degree robbery, and five to fifteen years for
each count of second degree robbery. On July 6, 1995, the Appellate
Division, First Department, affirmed petitioner's conviction. People v.
Hincapie, 620 N.Y.S.2d 416 (1st Dep't 1995). On September 20, 1995, the
New York Court of Appeals denied petitioner's application for leave to
appeal. People v. Hincapie, 86 N.Y.2d 843 (1995). Petitioner is currently
incarcerated at Sing Sing Correctional Facility.
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
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.
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 ...