Following a jury trial in New York State Supreme Court, Bronx County,
the petitioner was found guilty of murder in the second degree, New York
Penal Law § 125.25(1), in connection with the death of Angel Colon.
(Affidavit of Nancy Killian dated July 19, 2000 ("Killian Aff."), ¶
5). The judgment of conviction was entered on May 14, 1992, and the
petitioner was sentenced to an indefinite term of imprisonment of
twenty-five years to life. (Killian Aff. ¶ 5).
Mr. Colon appealed to the Appellate Division, First Department, raising
the same three grounds he raises in the instant petition, as well as a
fourth claim that his sentence was excessive. (Brief for
Defendant-Appellant dated Sept. 1994 ("App. Brief"), attached as Exh. 1
to Killian Aff.)). On January 26, 1995, the Appellate Division affirmed
the judgment of conviction, People v. Colon, 211 A.D.2d 575,
621 N.Y.S.2d 606 (1st Dep't 1995), and on May 12, 1995, the New York
Court of Appeals denied leave to appeal. People v. Colon, 85 N.Y.2d 971,
629 N.Y.S.2d 731 (1995).
On April 4, 1994, Mr. Colon submitted a motion to the Appellate
Division, seeking a writ of error coram nobis, contending that he had
been deprived of effective assistance of counsel. (Motion for Writ of
Error Coram Nobis dated April 4, 1996, attached as Exh. 3 to Killian
Aff.). The Appellate Division denied the motion on July 2, 1996, People
v. Colon, 229 A.D.2d 1039, 644 N.Y.S.2d 964 (1st Dep't 1996), and the
Court of Appeals dismissed Mr. Colon's application for leave to appeal on
August 20, 1996. People v. Colon, 88 N.Y.2d 982, 649 N.Y.S.2d 389
Mr. Colon then filed the instant petition for a writ of habeas corpus,
which was received by the Pro Se Office of this Court on July 7, 1997.
(Petition for Writ of Habeas Corpus dated May 21, 1997 ("Petition")). On
June 2, 1998, the petition was dismissed as time-barred pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The
dismissal, however, was vacated by the Second Circuit Court of Appeals in
light of its decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), and
the matter was remanded for a decision on the petition.*fn2
The respondent moves to dismiss the petition on both procedural and
substantive grounds. First, he argues that the second claim was not
exhausted because Mr. Colon failed to raise it in federal constitutional
terms on direct appeal. Next, the respondent contends that the second and
third claims are barred because they were rejected in state court on
adequate and independent state procedural grounds. Finally, he argues
that none of the petitioner's claims establish any entitlement to relief
under the standards set forth in the AEDPA.
A. Right to be Present
The petitioner's first claim is that his right to be present at all
material stages of his trial was violated. He contends that he should
have been present when the judge questioned a court interpreter and a
Spanish speaking juror who disagreed with the interpreter's translation of
a statement made by a prosecution witness. After closing statements and
before the jury was charged, the juror, Felix Rodriguez, was questioned
by the judge in chambers and in counsel's presence. (Tr. 692-98). He
informed the court that he believed a statement translated by the
interpreter as "stay still, that I'm going to shoot you" should have been
translated as "stay still or I'll shoot you." (Tr. 694-95). Mr. Rodriguez
told the court that he could not abide by the interpreter's version.
(Tr. 697). The juror then left the chambers and the judge and defense
counsel questioned the interpreter who maintained that his translation
was accurate. (Tr. 701-16). When the interpreter left, the prosecutor
requested that the court excuse Mr. Rodriguez, while defense counsel
recommended that he remain on the jury with instructions that he accept
the interpreter's translation. (Tr. 716-17). When Mr. Rodriguez returned
to chambers, he again stated that he could not accept the interpreter's
translation. (Tr. 720-22). He was then excused from the jury. (Tr. 722).
Defense counsel did not object, stating that he did not believe "in good
faith an objection lies." (Tr. 723).
A defendant has a constitutional right to be present at trial. See
Kentucky v. Stincer, 482 U.S. 730, 745 (1987); United States v.
Crutcher, 405 F.2d 239, 242 (2d Cir. 1968). However, this right is not
absolute. See Stincer, 482 U.S. at 745. In United States v. Gagnon,
470 U.S. 522, 526-27 (1985), the Supreme Court found that the defendants'
rights were not violated by an in camera discussion with a juror where
the defendants "could have done nothing had they been at the conference,
nor would they have gained anything by attending." See also
Fed.R.Crim.P. 43(c) ("A defendant need not be present . . . when the
proceeding involves only a conference or hearing upon a question of
law."). Similarly, New York law does not carve out any absolute right to
be present during such discussions. See People v. Velasco, 77 N.Y.2d 469,
472, 568 N.Y.S.2d 721, 722 (1991) (defendant's presence not required for
charging conference in robing room attended by attorneys for both sides
involving only questions of law and procedure).
Mr. Colon contends that "[t]he questioning of both the juror and
interpreter involved a purely factual matter: whether the interpreter had
accurately translated the phrase [in question]." (Petition, Appendix B at
1-2). He further argues that his presence was critical because, as a
Spanish speaker, he "could have assisted in the discussion."
Neither of these arguments has merit. The discussions described above
presented the court with questions of both fact and law. With respect to
the factual issue regarding the accuracy of the translation, the court
interviewed the interpreter, Jaime Ramirez, at length. (Tr. 701-16). The
court queried Mr. Ramirez about his background, his knowledge of Spanish
dialects and New York slang, and his rationale for translating the
statement the way he did. There is nothing that the petitioner could have
gained by attending these discussions.
Furthermore, Mr. Colon had no constitutional right to assist the court
in resolving the issue of fact. In Miller v. Stagner, 757 F.2d 988, 995
(9th Cir. 1985), the trial court had dismissed a juror for sleeping and
being intoxicated during the trial. The decision was made after a hearing
was held in chambers at which defendants' counsel but not the defendants
were present. Id. The Ninth Circuit held that the defendants had no due
process right to testify about their own observations of the excused
juror. Id. at 996. The same is true here. Although Mr. Colon speaks
Spanish, there is no indication that he is an expert in translation. Even
if he were, his dual role as the declarant and as the
have justified the trial court in refusing to hear his opinion. See id.
After resolving the factual dispute, the court was then faced with a
purely legal question: whether a juror who stated that he could not abide
by the court interpreter's translation could remain on the jury. The
trial court decided this question correctly. After being told that the
law requires that he abide by the interpreter's translation and not his
own, the juror reiterated that he would be unable to do so. Mr. Colon
would not have gained anything by being present during this discussion.
Finally, his legal interests were adequately represented by his counsel
who was present throughout the proceedings. See id. at 995. Accordingly,
the petitioner was not denied his right to be present during all material
stages of his trial.
B. Confidentiality of Jury Deliberations
The petitioner next argues that the confidentiality of jury
deliberations was breached when the court sent a nervous juror to the
hospital and then allowed him to resume deliberating without ascertaining
whether he had discussed the case with the doctor at the hospital.
(Petition, Appendix B at 2). The respondent argues that: (1) Mr. Colon
failed to exhaust his state court remedies because he never voiced this
claim in federal constitutional terms; (2) the claim is procedurally
barred by New York law; and (3) the petitioner has failed to demonstrate
cause for his failure to properly raise his claim and any prejudice
The doctrine of exhaustion generally requires a petitioner in a habeas
corpus proceeding to exhaust all available state court remedies for each
claim prior to federal review. 28 U.S.C. § 2254(b), (c); Duckworth
v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-124
(2d Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1404 (2001).
Nevertheless, a claim will be deemed exhausted if it is clear that the
state court would find it procedurally barred. Gray v. Netherland,
518 U.S. 152, 162 (1996); Spence v. Superintendent, Great Meadow
Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Bossett v.
Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). That same procedural bar,
however, precludes the habeas corpus court in most instances from
reviewing the defaulted claim on the merits. Id. Substantive review will
only be available if the petitioner is able to show cause for the default
and resulting prejudice, or "demonstrate that failure to consider the
federal claim will result in a fundamental miscarriage of justice, or, in
other words, an unjust incarceration." Spence, 219 F.3d at 170 (internal
quotations and citations omitted). See also Gray, 518 U.S. at 162;
Bossett, 41 F.3d at 829.
To satisfy the exhaustion requirement, a petitioner must have "fairly
presented" his federal constitutional claims in state court. Picard v.
Connor, 404 U.S. 270, 275 (1971); see also Gonzalez v. Sullivan,
934 F.2d 419, 422 (2d Cir. 1991). Although the petitioner need not have
cited "book and verse on the federal constitution," he must have
articulated "the substantial equivalent" of the federal habeas claim.
Picard, 404 U.S. at 278. He can accomplish this by:
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact
situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right
protected by the Constitution, [or] (d) allegation of
a pattern of facts that is
well within the mainstream
of constitutional litigation.
Daye v. Attorney General of the State of New York, 696 F.2d 186,
194 (2d Cir. 1982) (en banc).
Mr. Colon did none of these things. In his appellate brief he cited
only to sections 310.10 and 270.35 of the New York Criminal Procedure Law
as well as state court decisions construing these provisions. (App. Brief
at 21-25). The majority of the cases he cited make no reference at all to
federal case law or constitutional provisions. Two cases briefly mention
federal court rulings, People v. Ciaccio, 47 N.Y.2d 431, 437,
418 N.Y.S.2d 371, 373-74 (1979), and People v. Webb, 78 N.Y.2d 335,
340, 575 N.Y.S.2d 656, 658 (1991), while a third case cites the Sixth
Amendment right to an impartial jury. People v. Rodriguez, 71 N.Y.2d 214,
218, 524 N.Y.S.2d 422, 424-25 (1988). None of these cases, however,
employs constitutional analysis in a like fact situation. These cases are
all factually distinct from the instant case and the references to
federal law are buried within broader discussions of state statutes and
Finally, the claim raised by the petitioner does not call to mind a
specific right protected by the Constitution, nor does it allege a pattern
of facts that is well within the mainstream of constitutional
litigation. Indeed, there are countless federal cases construing the
Sixth Amendment right to an impartial jury where there was some prima
facie evidence of unauthorized communication between a juror and a third
party. See e.g. Remmer v. United States, 347 U.S. 227, 229-30 (1954);
United States v. Brasco, 516 F.2d 816, 819 (2d Cir. 1975); United States
v. Armendariz, 922 F.2d 602, 604 (10th Cir. 1990). In the instant case,
however, the petitioner is merely speculating about the possibility of
improper communication during a visit with a doctor that was both
authorized and supervised by the court. The juror was accompanied by a
court officer at all times during his trip to the hospital, including his
examination with the doctor. (Tr. 788). Thus, the petitioner did not
"fairly present" this claim in federal constitutional terms to the state
courts on direct appeal. Accordingly, Mr. Colon failed to exhaust his
state court remedies.
Furthermore, Mr. Colon is now procedurally barred from returning to
state court to argue this claim on federal constitutional grounds. This
is because New York law provides for only a single application for direct
review. N.Y. Rules of Court § 500.10(a); see also Spence, 219 F.3d at
170. A defendant who fails to press an available claim on direct appeal
is barred from raising it on collateral review. N.Y. Crim. Proc. Law
§ 440.10(2)(c); see also Lurie, 228 F.3d at 124; Spence, 219 F.3d at
170. Mr. Colon has not suggested any cause for failing to assert a Sixth
Amendment claim on appeal, nor has demonstrated prejudice resulting
therefrom. Finally, he has not shown that manifest injustice will result
if this ground is not considered. Accordingly, this claim is procedurally
barred and may not be reviewed on the merits.
C. Jury Instructions
The petitioner also alleges that the trial judge gave improper jury
instructions on the definition of reasonable doubt, thereby improperly
shifting the burden of proof. The respondent, however, correctly argues
that this claim is barred from federal habeas review because it was
rejected in state court on adequate and independent state procedural
grounds. "[I]f it fairly appears that the state court rested
primarily on federal law, this Court may reach the federal question on
review unless the state court's opinion contains a plain statement that
[its] decision rests upon adequate and independent state grounds." Harris
v. Reed, 489 U.S. 255, 261 (1989) (citations and quotations omitted).
The Appellate Division addressed Mr. Colon's jury charge claim in one
sentence. It stated that "[d]efendant's claim of error in the court's
charge with respect to reasonable doubt was not preserved by objection
(CPL 470.05), and, in any event, is without merit." Colon, 211 A.D.2d
at 575, 621 N.Y.S.2d at 607. This holding satisfies the plain statement
rule set forth in Harris. First, the brevity of the court's statement is
of no relevance. "[A] state court that wishes to rely on a procedural bar
in a one-line pro forma order easily can write that `relief is denied for
reasons of procedural default.'" Harris, 489 U.S. at 265 n. 12. Here, the
Appellate Division went further, specifically stating that the petitioner
failed to preserve his objection as required by New York Criminal
Procedure Law § 470.05(2).
Moreover, it is of no import that the Appellate Division stated that
"in any event," the jury charge claim was without merit. The Second
Circuit has consistently held that "habeas review is foreclosed when a
state court has expressly relied on a procedural default as an
independent and adequate state ground, even where the state court has
also ruled in the alternative on the merits of the federal claim."
Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); see also Harris, 489
U.S. at 264 n. 10 ("a state court need not fear reaching the merits of a
federal claim in an alternative holding"); Wedra v. LeFevre, 988 F.2d 334,
338-39 (2d Cir. 1993). Accordingly, the petitioner's jury charge claim is
An adequate and independent finding of procedural default will bar
habeas review of the federal claim, "unless the habeas petitioner can
show cause for the default and prejudice attributable thereto, or
demonstrate that failure to consider the federal claim will result in a
fundamental miscarriage of justice." Harris, 489 U.S. at 262 (quotations
and citations omitted). Here, again, Mr. Colon has failed to make such
showings. Accordingly, his jury instruction claim cannot receive federal
habeas review and must be dismissed.
For the reasons set forth above, I recommend that Mr. Colon's petition
for a writ of habeas corpus be denied. Pursuant to
28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days from this
date to file written objections to this Report and Recommendation. Such
objection shall be filed with the Clerk of the Court, with extra copies
delivered to the chambers of the Honorable Laura T. Swain, Room 426, 40
Foley Square, New York, New York 10007 and to the chambers of the
undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
Failure to file timely objections will preclude appellate review.