If the petitioner can establish cause, he must still show "actual
prejudice" resulting from the errors of which he complains. McCleskey, 499
U.S. at 494. This means that he must show that the alleged errors worked
to his actual and substantial disadvantage. See Frady, 456 U.S. at 168.
However, if the petitioner cannot show valid "cause," the federal habeas
court need not consider "prejudice". Saahir v. Collins, 956 F.2d 115, 118
(5th Cir. 1992).
If the alleged errors have cause a "fundamental miscarriage of
justice," this Court may excuse a procedural default "even without a
showing of cause and prejudice." Washington v. James, 996 F.2d 1442, 1447
(2d Cir. 1993), cert. denied, 510 U.S. 1078 (1994) (citing Murray, 477
U.S. at 495-96). Such an "extraordinary case" occurs only "where a
constitutional violation has probably resulted in the conviction of one
who is actually innocent." Id. at 1447. Petitioner has the burden of
demonstrating that he is "actually innocent" by showing there is "a fair
probability that . . . the trier of the facts would have entertained a
reasonable doubt of his guilt." Lebron v. Mann, 40 F.3d 561, 564 (2d
Cir. 1994) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 455 n.17 (1986)).
Because entertaining claims of actual innocence is very disruptive to
the finality of criminal cases and places an enormous burden on the
states to retry cases based on stale evidence, "the threshold showing for
such an assumed right would necessarily be extraordinarily high." Herrera
v. Collins, 506 U.S. 390, 417 (1993). Absent new, exculpatory evidence,
"even the existence of a concededly meritorious constitutional violation
is not itself sufficient to establish a miscarriage of justice that would
allow a habeas court to reach the merits of a barred claim." Schlup v.
Delo, 513 U.S. 298, 316 (1995).
Here, the record contains no indication of either cause or prejudice
associated with Tirado's failure to specify his credibility claim in his
application for leave to appeal. Nor, given the substantial direct and
circumstantial evidence supporting a reasonable jury's verdict finding
Tirado guilty, is there anything in the record indicating that a
fundamental miscarriage of justice would result if Tirado's claims were
not entertained on the merits. Accordingly, this Court dismisses Tirado's
credibility claim in the instant petition without reaching the merits.
See Grey, 933 F.2d at 121.
B. Preclusion Pursuant to stone v. Powell
When Tirado raised his claims to the Appellate Division on direct
appeal, he specifically relied, as one of the principal grounds for
appeal, on the alleged unconstitutional search and seizure associated with
his arrest in violation of the Fourth Amendment of the federal
Constitution. This Court, however, may not grant habeas corpus relief
regarding a Fourth Amendment claim where the petitioner was afforded an
opportunity for a full and fair litigation of the issue before the state
courts. See Stone, 428 U.S. 465; Kuhlmann, 477 U.S. at 446-47; State Memo
Here, the record clearly demonstrates that not only did Tirado have a
full pretrial suppression hearing on this issue, but the Appellate
Division reviewed the trial court's decision on direct appeal. Moreover,
although the New York Court of Appeals declined to address Tirado's
Fourth Amendment claims, Tirado was also given an opportunity to present
them to the highest state court. Thus, Tirado cannot claim that he was
denied this opportunity. See Grey, 933 F.2d at 121; Gates v. Henderson,
568 F.2d 830, 840 (2d Cir. 1977), cert. denied, 434 U.S. 1038 (1978).
Moreover, even if Stone did not preclude habeas review of Tirado's
claim, there is further reason why this Court still could not review it.
At bottom, Tirado takes issue with the trial court's assessment of
Moreno's credibility and its decision to admit and credit Moreno's
testimony at the suppression hearing. See Tirado Memo at 14-23. Tirado's
claim consequently raises fundamental issues fraught with farreaching
implications. It is not within the purview of a federal court on habeas
review to reassess and pass judgment upon the credibility of a witness
whose testimony and demeanor it has not observed. See Marshall v.
Lonberger, 459 U.S. 422, 434 (1983). On this additional basis, this Court
declines to entertain Tirado's credibility claim and concludes that the
claim must be dismissed.
C. HEARING REOPENING
The second ground Tirado' s petition asserts in support of habeas
relief is that the state court improperly reopened the suppression
hearing, allegedly allowing Moreno to contradict his earlier testimony.
The State contends that this claim does not entitle Tirado to habeas
relief because it does not present a federal question. See State Memo at
14-19. This Court agrees.
Federal courts may "entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that [the petitioner] is in custody in
violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). "[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of the United
States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
As a general matter, a ruling by a state trial court on an evidentiary
question is a matter of state law that poses no constitutional issue. See
Benitez v. Senkowski, No. 97 Civ. 7819, 1998 WL 668079, at *4 (S.D.N.Y.
Sept. 17, 1998) (quoting Roberts v. Scully, 875 F. Supp. 182, 189
(S.D.N.Y.), aff'd, 71 F.3d 406 (2d Cir. 1995). A writ may issue,
however, in the event that an evidentiary ruling has rendered a trial
fundamentally unfair. See Dunnigan v. Keane, 137 F.3d 117, 125 (2d
Cir.), cert. denied, 525 U.S. 840 (1998).
Here, Tirado's assertion that the State court improperly reopened the
suppression hearing thereby allegedly allowing the prosecution witness to
contradict his earlier testimony, was clearly a matter of state law. See
Tirado Memo at 23-26. It is thus not a claim cognizable on federal habeas
review. See United States ex rel. Sadowy v. Fay, 284 F.2d 426, 427 (2d
Cir. 1960), cert. denied, 365 U.S. 850 (1961).
Tirado characterizes his second ground for relief as a "due process"
claim purportedly based on Fourth and Fourteenth Amendments of the
federal Constitution. See Tirado Memo at 25. The objection, however,
essentially relates to a trial court decision grounded on state law.
Tirado relies on New York Criminal Procedure Law § 710.40(4), to
argue that, a request to reopen a suppression hearing is usually made by
a defendant and that "[t]here
[was] no statutory authority for reopening
a hearing on the People's motion" where the prosecution has had a full
opportunity to present evidence at a suppression hearing. Morgan Aff.,
Ex. 1 at 14-15.
Under New York law, however, it is within the trial court's discretion
to reopen a suppression hearing, and there is no prohibition to a
reopening on request of the prosecution. See People v. Mercado,
466 N.E.2d 845 (N Y 1984); People v. Harrington, 597 N.Y.S.2d 723 (N.Y.
App. Div. 2 d Dept.), leave to appeal denied, 624 N.E.2d 182 (N.Y. 1993).
In exercising this discretion, the trial court should consider factors
such as the timing of and the basis for the motion. See People v.
Hernandez, 508 N.Y.S.2d 311 (N.Y. App. Div. 3d Dept. 1986).
In this case, Tirado claimed that the prosecution had no justification
to reopen the suppression hearing because the evidence presented at the
initial hearing failed to establish a lawful basis for Moreno to pursue
Tirado into the apartment and arrest and search him. As the Appellate
Division noted, the trial court's decision to reopen the hearing was made
prior to any ruling on the merits of Tirado's suppression motion, and
because "the court and the parties expressed some confusion regarding one
aspect of the witness's testimony, " the trial court appropriately
exercised its discretion in reopening the suppression hearing. Tirado 698
N.Y.S.2d at 485. Thus, this Court concludes that the decision of the
state appellate court was correct under state law and that Tirado's claim
is not cognizable on habeas review. See Estelle, 502 U.S. 62.
On this precise point, the parties have not cited, nor has this Court
found, any specific precedent or determination of the United States
Supreme Court regarding federal law which the state courts may have
contradicted or unreasonably misapplied in this case in affirming the
reopening of the suppression hearing. See Williams v. Taylor, 529 U.S.
362 (2000); Mask v. McGinnis, 252 F.3d 85 (2d Cir. 2001);
28 U.S.C. § 2254(d)(1). Accordingly, this Court concludes that AEDPA
precludes the habeas relief Tirado requests.
For the reasons stated above, it is hereby
ORDERED that the writ is denied; and it is further
ORDERED that the petition is dismissed with prejudice.
The Clerk of Court is directed to close this case.
As Tirado has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. See
28 U.S.C. § 2253(c). See also United States v. Perez, 129 F.3d 255,
259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1014-16
(2d Cir. 1997). The Court certifies that, pursuant to
28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken
in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
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