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KING v. GREINER

July 16, 2002

THOMAS KING, PETITIONER,
V.
CHARLES GREINER, SUPERINTENDENT GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Gershon, District Judge.

ORDER

Pro se petitioner was convicted after a jury trial on February 18, 1997 in the New York Supreme Court, Kings County (Vaughan, J.), of Assault in the First Degree in violation of N.Y. Penal Law § 120.10[1], Robbery in the First Degree in violation of N.Y. Penal Law § 160.15[2], Attempted Robbery in the First Degree in violation of N.Y. Penal Law §§ 110.00/160.15[2], and Attempted Assault in the First Degree in violation of N.Y. Penal Law §§ 110.00/120.10[1]. Petitioner was sentenced to concurrent prison terms of twenty-five years to life on the attempted robbery count and six years to life on the attempted assault count stemming from the robbery of Khayyam Jackson, to run consecutively to concurrent prison terms of twenty-five years to life on the robbery count and eight years to life on the assault count stemming from the robbery of Emmanuel Ansah.

Petitioner appealed the judgment of conviction to the Appellate Division, Second Department, arguing that the prosecutor engaged in misconduct on summation, that the trial court erroneously admitted evidence of a pretrial lineup in violation of petitioner's right to have counsel present at the lineup, and that the trial court improperly ordered an independent-source hearing prior to ruling on the admissibility of the lineup identification procedure. On March 29, 1999, the Appellate Division affirmed the conviction. People v. King, 259 A.D.2d 763, 688 N.Y.S.2d 173 (2d Dept. 1999). Petitioner sought leave to appeal to the Court of Appeals, which was denied on May 26, 1999. People v. King, 93 N.Y.2d 926, 693 N.Y.S.2d 509, 715 N.E.2d 512 (1999). On August 19, 1999, the Court of Appeals denied petitioner's motion for reconsideration. People v. King, 93 N.Y.2d 1021, 697 N.Y.S.2d 580, 719 N.E.2d 941 (1999).

On July 20, 1999, petitioner sought a writ of error coram nobis, claiming that he was denied effective assistance of appellate counsel. Specifically, petitioner claimed that appellate counsel was ineffective for failing to raise claims that the trial court erroneously denied his pretrial severance motion, that there were erroneous evidentiary rulings, that the People violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961), that the evidence was insufficient to support his conviction, that the trial court violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that his sentence was excessive. Petitioner also claimed that his counsel was ineffective for failing to marshal all the facts in support of his claim that the admission of lineup evidence at trial was not harmless. On November 8, 1999, the Appellate Division denied petitioner's motion for a writ of error coram nobis. People v. King, 266 A.D.2d 315, 698 N.Y.S.2d 526 (2d Dept. 1999).

Petitioner now seeks a writ of habeas corpus. He alleges that the prosecutor engaged in misconduct on summation, that the admission of a pretrial lineup violated his right to counsel, that the trial court erroneously held an independent source hearing prior to ruling on the admissibility of a pretrial lineup, that the trial court erred in denying petitioner's pretrial severance motion, that there were erroneous evidentiary rulings, that the People violated Brady and Rosario, and that his appellate counsel was ineffective. For the following reasons, the petition is denied.

FACTS

The evidence at trial established that, in the early morning of August 29, 1995, petitioner approached the automobile of Khayyam Jackson, which was stopped at a traffic light, drew a gun, and attempted to steal the automobile. As Jackson sped away, petitioner fired a bullet into the automobile, which grazed Jackson's head. The evidence also established that, in the early morning of September 20, 1995, several blocks away, petitioner entered the automobile of Emmanuel Ansah and attempted to steal the automobile. In the course of the robbery, he shot Ansah, injuring his thigh and finger.

ANALYSIS

1. Prosecutor's Summation:

Federal habeas corpus relief is available based on a claim of prosecutorial misconduct if the improper conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). For a writ of habeas corpus to issue, a petitioner must show that the prosecutor's misconduct "had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994), cert. denied, 516 U.S. 1152, 116 S.Ct. 1029, 134 L.Ed.2d 107 (1996).

At the end of summation, the prosecutor stated that "[t]here is no coincidence, ladies and gentlemen, that both of these victims who were attacked within blocks of each other, blocks from the defendant's residence, picked out the same man." Generally, evidence that a defendant engaged in other criminal activity is not admissible to prove that the defendant committed the charged offense. However, in this case, the prosecutor properly commented on the evidence of other criminal activity because the evidence was probative of the perpetrator's identity. The crimes were committed several weeks apart, within several blocks of each other, and under similar conditions. The perpetrator attempted to rob males early in the morning as each sat alone in his automobile, and he shot at both men as they attempted to flee. Further, the prosecutor's comments were a fair response to defense counsel's challenge to the accuracy of the witnesses' identifications.

Moreover, even if this comment was improper, it did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. Three times during jury selection, the trial judge instructed the jury that they were to consider each charged crime separately and that the fact petitioner was charged with one crime is not proof that he committed another crime charged in the indictment. Further, during the final jury charge, the trial judge instructed the jury that:

The fact that a defendant is charged with one crime constitutes no proof that he committed another crime also charged in a single indictment. Therefore, you are required to separate in your mind the evidence applicable solely to each crime and return a verdict on each crime based solely on the evidence applicable to that crime.

Therefore, the trial judge's instructions cured any prejudice suffered by petitioner.

The claims regarding the remaining comments are unexhausted. However, having reviewed each challenged comment, the claims are denied on the merits, notwithstanding petitioner's failure to exhaust the claims, because the comments were fair comment on the evidence or fair response to defense counsel's arguments. See 28 U.S.C. § 2254(b)(2).

2. Pretrial Identification and Independent Source Hearing:

Petitioner's claim that the trial court erroneously admitted evidence of two pretrial lineups by Jackson and Ansah, that occurred in the absence of counsel, is not a ground for federal habeas corpus relief. There is no federal right to have counsel present at a pretrial identification proceeding, even where, as in this case, the defendant already is represented by counsel in an unrelated matter at the time of the lineup proceeding, so long as there has not been a formal charge, preliminary hearing, indictment, or information. Boyd v. Henderson, 555 F.2d 56, 60-61 (2d Cir.), cert. denied, 434 U.S. 927, 98 S.Ct. 410, 54 L.Ed.2d 286 (1977). In this case, it is undisputed that the pretrial identifications occurred prior to any of these events. Petitioner argues that the Appellate Division's determination that the admission of the lineup evidence was harmless, despite the fact that counsel was not present, was unconstitutional. However, since the determination that the lineup should have been excluded because petitioner was not represented by counsel was a matter of state law, whether or not this violation of state law was harmless does not implicate a federal right.

Noting that state law was unsettled as to whether a defendant who already was represented by an attorney in an unrelated matter had a right to have counsel present at a pretrial identification proceeding, the trial court held an independent source hearing before ruling on the admissibility of the pretrial identification. The trial court stated:

at least at this point from reading the cases, that whatever decision I make, I could be wrong, and if I were to decide in the District Attorney's favor and we didn't have an independent source hearing, there would be a problem later on appeal, and I just want to do that so that — to eliminate that problem.

Petitioner argues that holding an independent source hearing under these circumstances deprived him of a fair trial. However, petitioner has failed to show how this hearing deprived him of a fair trial. On the contrary, holding an independent source hearing when the admissibility of the pretrial identification proceeding was uncertain was a wise use of judicial resources and violated no federal right.

Likewise, petitioner's claim that the trial court unfairly tainted the independent source hearing lacks merit. At the independent source hearing, in an attempt to produce a misidentification, defense counsel waived petitioner's presence at the hearing and had co-counsel, Leighton Jackson, sit in his place. Defense counsel requested that the court not inform eyewitness Ansah of petitioner's absence because he wished to test Ansah's ability to make an identification. However, since cocounsel covered his face for most of the hearing, when defense counsel asked Ansah whether he observed the perpetrator in the courtroom, the trial judge said, "Mr. Jackson you have had your hands in front of, totally in front of your face almost during the entire hearing. Do you mind putting your hands down. Thank you."

Petitioner argues that this tainted the independent source hearing because the eyewitness knew that the perpetrator's name was not Jackson. However, this statement did not lead to a very substantial likelihood of irreparable misidentification, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Kennaugh v. Miller, 289 F.3d 36, 43 (2d Cir. 2002), because Ansah already had identified petitioner in a lineup that was not tainted under the federal constitution; the Judge's statement did not suggest that petitioner was the perpetrator; at most it suggested that the man sitting at the table was not the perpetrator; and Ansah testified that the Judge's comment did not influence his testimony. Further, any prejudice suffered was the result of defense counsel's attempt to conceal his face. The court properly instructed Leighton Jackson to lower his hands so that Ansah could make an accurate identification, and it was reasonable for the Judge to identify to whom he was speaking.

3. Pretrial Severance Motion, Erroneous Evidentiary Rulings, and Brady Claims:

Petitioner's claims as to severance, erroneous evidentiary rulings, and a Brady violation are unexhausted and now procedurally barred. An application for habeas corpus relief shall not be granted if a petitioner has failed to exhaust his state court remedies, unless there is an absence of state corrective procedures or circumstances exist that render such process ineffective. 28 U.S.C. § 2254(b)(1). In this case, petitioner failed to present his severance motion, erroneous evidentiary rulings, and Brady claims to the Appellate Division or the Court of Appeals on direct appeal. Therefore, the claims are unexhausted and are now procedurally barred. Petitioner cannot exhaust these claims by seeking leave to appeal these claims to the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. Grey, 933 F.2d at 120. Further, he cannot obtain collateral review because these claims could have been raised on direct appeal. See id. Therefore, petitioner's severance motion, erroneous evidentiary rulings, and Batson claims are procedurally barred, unless petitioner can establish cause to excuse the default and prejudice, or actual innocence. Aparicio v. Artuz, 269 F.3d 78, 90-93 (2d Cir. 2001); Jones v. Stinson, 229 F.3d 112, 118-19 (2d Cir. 2000).

Petitioner argues that ineffective assistance of counsel constitutes cause and prejudice for his default of these claims. Ineffective assistance of appellate counsel, if established, can constitute "cause" excusing the procedural default, see Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000), but "[a]ttorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial." Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). As discussed below, petitioner has failed ...


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