For the reasons set forth below, Correa's remaining three
claims are also denied.
The Court accepts the factual and procedural history set forth
in respondent's affidavit in opposition to the petition, and the
government's brief on direct appeal. See Aff. in Opp. to Pet.
for Habeas Corpus, at 2-6; Br. for Resp't, at 3-29.
I. Weight of Evidence
Correa argues that the guilty verdict was against the weight of
the evidence. This claim is distinct from an attack on a verdict
based on the legal sufficiency of the evidence. A "weight of the
evidence" argument is a pure state law claim grounded in New York
Criminal Procedure Law § 470.15(5), whereas a legal sufficiency
claim is based on federal due process principles. See Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) (Fourteenth Amendment requires record evidence to
reasonably support a finding of guilt beyond a reasonable doubt);
See People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761,
508 N.E.2d 672 (1987) (weight of the evidence is based on court's
factual review power; sufficiency of evidence claim based on the
law). Accordingly, the Court is precluded from considering the
claim. See 28 U.S.C. § 2254(a) (permitting federal habeas
corpus review only where the petitioner has alleged that he is in
state custody in violation of "the Constitution or a federal law
or treaty"); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct.
3092, 111 L.Ed.2d 606 (1990) (habeas corpus review is not
available where there is simply an alleged error of state law).
II. Missing Witness Charge
In its opening statement, the government promised to call four
witnesses who would identify Correa as one of the killers. Three
of the four were never called. Correa requested a jury charge
that would allow the jury to draw an unfavorable inference from
the government's failure to keep its promise. The trial court
denied the request on the ground that the witnesses' testimony
To prevail on an erroneous jury charge claim, "the [habeas]
petitioner must show not only that the instruction misstated
state law but also that the error violated a right guaranteed to
him by federal law." Blazic v. Henderson, 900 F.2d 534, 540 (2d
Cir. 1990); see Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct.
396, 38 L.Ed.2d 368 (1973); Davis v. Strack, 270 F.3d 111,
122-23 (2nd Cir. 2001). In this regard, a petitioner must show
that it was not "merely . . . undesirable, erroneous, or even
universally condemned, but that it violated some right which was
guaranteed to the defendant by the Fourteenth Amendment."
Davis, 270 F.3d at 122-23 (quoting Cupp, 414 U.S. at 146, 94
S.Ct. 396). The question, therefore, is "whether the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process." Id. "Due process
does not require the giving of a jury instruction when such
charge is not supported by the evidence." Blazic, 900 F.2d at
541. Furthermore, where the alleged error is one of omission, it
"is less likely to be prejudicial than a misstatement of the
law," and thus, the petitioner's "burden is especially heavy."
Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52
L.Ed.2d 203 (1977).
Determining that a petitioner was entitled to a particular
instruction "under state law is the first step in determin[ing]
whether that error violated the
petitioner's federal due process rights." Id. at 123-24. In
order to obtain a missing witness charge under New York state
law, the party seeking the charge must make a prima facie
showing that "the uncalled witness is knowledgeable about a
material issue upon which the evidence is already in the case;
that the witness would naturally be expected to provide
noncumulative testimony favorable to the party who has not called
him, and that the witness is available to such party." People v.
Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 799, 502 N.E.2d 583
(1986); see People v. Kitching, 78 N.Y.2d 532, 577 N.Y.S.2d 231,
233, 583 N.E.2d 944 (1991). Furthermore, "[w]hether a
missing witness charge should be given lies in the sound
discretion of the trial court." Reid v. Senkowski,
961 F.2d 374, 377 (2d Cir. 1992) (internal quotation marks and citation
The trial court made the factual determination that the
testimony of the witnesses allegedly missing from Correa's trial
was cumulative; therefore, the charge was not warranted. For the
purposes of federal habeas review, "a determination of a
factual issue made by a state court shall be presumed to be
correct," unless rebutted by clear and convincing evidence.
Morris v. Reynolds, 264 F.3d 38, 47 (2d Cir. 2001) (quoting
28 U.S.C. § 2254(e)(1)). Since Correa has not rebutted this
presumption, his claim must fail. See 28 U.S.C. § 2254(e)(1)
(burden is on applicant to rebut presumption).
III. Suggestive Lineup Claim
An applicant seeking leave to appeal to the Court of Appeals
from an order of an intermediate appellate court should, in
addition to including a copy of the briefs submitted in the lower
appellate court, "identify the issues on which the [leave]
application is based." 22 N.Y.C.R.R. § 500.10(a). Where an
applicant submits a letter to the Court of Appeals that specifies
only certain issues for review, any remaining claims in the
original appellate brief are deemed abandoned. See Grey v.
Hoke, 933 F.2d 117, 120 (2d Cir. 1991) ("The fair import of
petitioner's submission to the Court of Appeals, consisting of
his brief to the Appellate Division that raised three claims and
a letter to the Court of Appeals arguing only one of them, was
that the other two had been abandoned."). Such claims are
unexhausted because of the petitioner's failure to present them
to the Court of Appeals. Id; see also Aparicio v. Artuz,
269 F.3d 78, 89 (2d Cir. 2001). Correa's lineup claim has not been
exhausted because he did not raise it with the state's highest
court. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999) ("[A] state prisoner must
present his claims to a state['s highest] court in a petition for
discretionary review in order to satisfy the exhaustion
However, "for exhaustion purposes, `a federal habeas court
need not require that a federal claim be presented to a state
court if it is clear that the state court would hold the claim
procedurally barred.'" Id. at 120 (quoting Harris v. Reed,
489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989));
see Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991). New York procedural rules bar Ruiz from
raising this claim before the Court of Appeals at this late date
because "he has already made the one request for leave to appeal
to which he is entitled." Grey, 933 F.2d at 120 (citing N.Y.
Court Rules § 500.10(a)). Furthermore, collateral review would be
barred because this issue was previously addressed on direct
appeal. Id. (citing N.Y.C.P.L. § 440.10(2)(a)); see Bossett v.
Walker, 41 F.3d 825, 829 (2d Cir. 1994). Therefore, habeas
review of this unexhausted but procedurally defaulted claim is
barred "unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991); see also Aparicio, 269 F.3d at
90. Correa has made no such showing.
In any event, the claim is meritless. Correa contends that the
line-up in which he was identified was unduly suggestive because
none of the eyewitnesses had given specific detailed descriptions
of his physical characteristics prior to the lineup, and he was
the only participant with facial bruises. "A lineup is unduly
suggestive as to a given defendant if he meets the description of
the perpetrator previously given by the witness and the other
lineup participants obviously do not." Raheem v. Kelly,
257 F.3d 122, 134 (2d Cir. 2001). The trial court found that the
line-up was not conducted in a suggestive manner, and the
Appellate Division agreed. Seventeen people attempted to identify
Correa from the lineup — seven were able to and ten were not;
clearly, the process was not unduly suggestive. Furthermore, any
variances in height were found to be diminished by the fact that
the line-up participants were seated. Once again, unless Correa
proves otherwise by clear and convincing evidence, a federal
habeas court must presume a state courts finding of fact to be
correct. See 28 U.S.C. § 2254(e)(1). Having made no such
showing, Correa's claim must fail.
Correa's habeas corpus petition is denied. A certificate of
appealability will not be issued because Correa has failed to
make a substantial showing of the denial of a federal right.
See 28 U.S.C. § 2253(c)(2).
© 1992-2003 VersusLaw Inc.