United States District Court, Southern District of New York
July 26, 2002
ANTHONY COOK, PETITIONER,
PEARLMAN, SUPT., RESPONDENT.
The opinion of the court was delivered by: VICTOR Marrero, United States District Judge
DECISION AND ORDER
Pro se petitioner Anthony Cook ("Cook") filed a Petition for a Writ of
Habeas Corpus, under 28 U.S.C. § 2254, on August 2, 2001 (the
"Petition"), attacking his June 30, 1998 state court conviction of second
degree burglary and petit larceny, violating New York Penal Laws §
140.55 and § 155.25, respectively. Cook claims that the conviction
violated his right to due process of law, guaranteed by the Fourteenth
Amendment of the United States Constitution, because the trial court
erroneously permitted the State to admit a particular videotape into
evidence. Further, Cook claims that his constitutional right to a "fair
trial" has been infringed because the trial court improperly refused to
give an interested witness charge to the jury with respect to certain of
the State's witnesses and also curtailed the defense's cross-examination
of these same witnesses regarding their personal and professional
interests in the disposition of the case. For the reasons set forth
herein the Petition is denied.
Cook was convicted, after a jury trial, in New York State Supreme
Court, New York County, for burglary and petit larceny. He was sentenced
to concurrent prison terms of seven years on the burglary count and one
year on the petit larceny count.*fn2 Cook's conviction stemmed from a
June 29, 1996 incident involving the burglary of the Manhattan apartment
(the "Apartment") of a young woman, Pardis Sabba ("Sabba"), in the early
morning hours as Sabba and her boyfriend, Jonathon Brenner ("Brenner"),
slept in the bedroom.
At trial, the State presented, among other evidence, eyewitness
testimony, a videotape (the "Complex Videotape") depicting the physical
layout of the apartment building complex (the "Complex"), and the
testimony of Complex employees. Sabba testified that she encountered Cook
in her Apartment during the early morning hours of June 29, 1996. Sabba
identified Cook as the person who burglarized her Apartment. Keith Galley
("Galley"), the Complex concierge, testified that, after responding to
Sabba's telephone call reporting the burglary, he found a copy of the
Complex's master key (the "Copied Master Key") in the Apartment's key
hole. Moreover, Galley testified that sometime after the burglary he
viewed the Complex's surveillance videotape (the "Surveillance
Videotape") and identified Cook, who matched Sabba's description of the
intruder, as the only person leaving the Complex shortly after the
Manu Agyei ("Agyei"), a security guard at the Complex, testified that
he saw Cook enter and leave the Complex on several occasions during the
night of June 28, 1996 and in the early morning hours of June 29, 1996.
Moreover, Agyei testified that he witnessed Cook leave the Complex
shortly after Sabba reported the burglary to Galley. Kenneth Centeno
("Centeno"), assistant superintendent of the Complex, testified that he
also viewed the Surveillance Videotape and identified Cook leaving the
Complex shortly after the burglary. Finally, John Tenety ("Tenety"), the
building manager of the Complex, testified that he examined the Copied
Master Key recovered at the crime scene and determined that it had been
copied from the Complex's original master key (the "Original Master
Key"), but not with the Complex's legitimate key copying equipment.
In addition to the trial testimony, the State presented the Complex
The Complex Videotape was prepared by Tenety to help capture
and convey to the jury the unique physical layout of the Complex.*fn4
The State's theory of the case was that Cook, a former Complex security
guard with knowledge of the Complex's physical layout and prior access to
the Original Master Key, had entered Sabba's Apartment with the Copied
Master Key, and upon being confronted by Sabba, exited the Apartment and
went up to the rooftop, where he crossed to a different building and then
descended and left the Complex through the plaza. The Complex Videotape,
the Surveillance Videotape, and the trial testimony of Sabba, Galley,
Centeno, Tenety, and Agyei all support the State's theory.
In his defense, Cook presented only one witness, Brenner. Cook's
defense also relied heavily on cross-examination of the Complex employees
to discredit their testimony. Cook tried to persuade the jury that the
Complex employees each had a personal interest in seeing Cook convicted
for this crime, and therefore had a motive to frame Cook. Cook alleged
that the Complex employees were trying to cover up their failure to
prevent the burglary by asserting that this was an "inside job," carried
out by a former employee with extraordinary access to resources that
"outsiders" lacked. Cook alleged that the employees were lying to avoid
any personal liability for the crime and perhaps to shield the Complex
from any further litigation.
The jury found Cook guilty. Cook appealed the conviction to the New
York Supreme Court, Appellate Division (the "Appellate Division"),
arguing that: (1) "[t]he conviction was against the clear weight of the
evidence;" (2) "[t]he [Complex] [V]ideotape was entirely speculative and
unfounded, and its admission was a violation of appellant's due process
rights;" and (3) "[t]he [trial] Court's refusal to give an interested
witness charge relating to the apartment management deprived appellant of
a fair trial, and the court's abridgment of defense counsel's
cross-examination on the building employees' interest in the
investigation was a denial of appellant's constitutional right to
confront the witnesses against him."
The Appellate Division summarily rejected all of Cook's claims and
affirmed the conviction. See People v. Cook, 716 N.Y.S.2d 283 (App. Div.
1st Dep't 2000). Thereafter, Cook submitted the Application Letter to the
New York Court of Appeals. Cook's Application Letter addressed only the
trial court's failure to give an interested witness charge to the jury.
However, Cook attached the Appellate Brief, which contained all of his
original grounds for appeal, to the Application Letter. The Court of
Appeals denied Cook's petition for leave to appeal. This Petition
followed, asserting only the second and third grounds for relief raised
in the Appellate Brief.
A. STANDARD OF REVIEW
As an initial matter, where a party appears pro se, the courts are
obliged to broadly construe the party's pleadings and interpret them "to
raise the strongest arguments that they suggest." Graham v. Henderson,
89 F.3d 75, 79 (2d Cir. 1996).
Cook's Petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. The Act provides in
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State Court proceeding.
28 U.S.C. § 2254(d). Clearly established federal law refers to the
holdings only, not the dicta, of the United States Supreme Court. See
Morris v. Reynolds, 264 F.3d 38, 46 (2d Cir. 2001). The state court's
application of clearly established federal law must be objectively
unreasonable, not merely erroneous. See Williams v. Taylor, 529 U.S. 362,
387 n. 14 (2000); accord Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir.
Cook's two claims, the trial court's allegedly erroneous admission of
the Complex Videotape into evidence and the failure to give an interested
witness charge to the jury and the curtailment of the defense's
cross-examination, were adjudicated "on the merits" by the Appellate
Division. See Cook, 716 N.Y.S.2d at 283; see also Sellan v. Kuhlman,
261 F.3d 303, 314 (2d Cir. 2001) (holding the Appellate Division's use of
the word "denied" sufficient to satisfy the "on the merits" requirement,
notwithstanding failure to cite any federal case law or appellant's
federal claims). Accordingly, Cook's claims here will be analyzed under
the AEDPA's deferential standard of review. See Washington v. Schriver,
255 F.3d 45, 55 (2d Cir. 2001).
B. COMPLEX VIDEOTAPE/DUE PROCESS CLAIM
A prisoner seeking a writ of habeas corpus "must `exhaust the
remedies available in the courts of the State'" before pursuing his claim
in a federal court. Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)
(quoting 28 U.S.C. § 2254(b)). A petitioner "must present his federal
constitutional claims to the highest court of the state before a federal
court may consider the merits of the petition." Id. (citing Pesina v.
Johnson, 913 F.2d 53, 54 (2d Cir. 1990)).
The post-trial events surrounding this case are indistinguishable from
those presented to the Second Circuit in Grey. There, the petitioner had
been convicted, by a New York state jury, of manslaughter and criminal
weapons possession. The petitioner appealed his conviction to the
Appellate Division. The petitioner's appellate brief raised three separate
grounds for reversing his conviction. The Appellate Division denied the
petitioner's appeal. Thereafter, the petitioner filed an application
letter with the New York Court of Appeals for leave to appeal, seeking
reversal of his conviction. The petitioner attached to his application
letter his appellate brief as originally submitted to the Appellate
Division. However, within the text of the application letter, the
petitioner only argued one of the original three grounds for reversal. The
Court of Appeals denied the petitioner's appeal, and thereafter the
petitioner filed a writ of habeas corpus in federal court. The
petitioner's habeas petition included the three grounds for reversal that
were originally included in his Appellate Division brief, two of which
were not argued in the application letter to the Court of Appeals.
Given this procedural posture, the Second Circuit found that the
constructively met § 2254's exhaustion requirement
because all of the petitioner's claims were, at that time, procedurally
barred from presentation to the New York Court of Appeals.*fn5 See
Grey, 933 F.2d at 120-21. However, the court also held that "petitioner's
forfeiture in state court of his [two claims omitted from the text of his
application letter for leave to appeal] bars him from litigating the
merits of those claims in federal habeas proceedings, absent a showing of
cause for the procedural default and prejudice resulting therefrom." Id.
Here, Cook's post-trial actions are practically identical to those
taken by the petitioner in Grey. Cook's Appellate Brief sought reversal
of his conviction on three grounds, one of which was the trial court's
admission of the Complex Videotape. However, Cook's Application Letter
argued only one ground for reversal, the trial court's failure to give an
interested witness charge to the jury with respect to the Complex
employees. Like the petitioner in Grey, Cook attached his Appellate Brief
to his Application Letter but did not specifically alert the Court of
Appeals to his discussion of the Complex Videotape issue in the Appellate
Brief. See Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000)
("[A]rguing one claim in his letter [to the Court of Appeals] while
attaching an appellate brief without explicitly alerting the state court
to each claim raised does not fairly present such claims for the purposes
of the exhaustion requirement"). The Court notes that a petitioner's
burden in adequately presenting an issue previously argued in an
appellate brief to the Court of Appeals is not onerous. See Morgan v.
Bennett, 204 F.3d 360, 369-70 (2d Cir. 2000) (Petitioner's written
request that "th[e] [New York] Court [of Appeals] consider and review all
issues outlined in defendant-appellant's [Appellate Division] brief" was
enough to adequately present all issues discussed in the Appellate
Division brief to the New York Court of Appeals) (emphasis supplied).
Nevertheless, Cook is still entitled to federal habeas review of this
issue if he can demonstrate cause for the procedural default and
prejudice resulting therefrom, or if he can demonstrate that a failure to
review his claim will result in a miscarraige of justice. Murray v.
Carrier, 477 U.S. 478, 492 (1986); Wainwright v. Sykes, 433 U.S. 72,
87-91 (1977). To satisfy the cause standard, "a petitioner must show that
`some objective factor external to the defense impeded counsel's efforts'
to raise the claim in state court." Levine v. Comm'r of Corr. Servs.,
44 F.3d 121, 127 (2d Cir. 1995) (quoting Carrier, 433 U.S. at 488). Cook
is unable to meet the cause standard because he provides no explanation
at all for not including the Complex Videotape argument in the
Because Cook is unable to establish "cause and prejudice" sufficient to
warrant federal review of his claim, he may obtain review of his
constitutional claim only if he falls "within the `narrow class of cases
. . . implicating a fundamental miscarraige of justice.'" Schlup v.
Delo, 513 U.S. 298, 315 (1995) (quoting McCleskey v. Zant, 499 U.S. 467,
493-94 (1991)). However, "[w]ithout any new evidence of innocence, even
the existence of a concededly meritorious constitutional violation is not
in itself sufficient to establish a miscarraige of justice that would
allow a habeas court to reach the merits of a barred claim." Id. at 316.
Cook has not presented any new evidence in the Petition to warrant a
miscarraige of justice exception. Accordingly, this claim is procedurally
C. INTERESTED WITNESS CHARGE AND OPPORTUNITY FOR CROSS-EXAMINATION
Cook's remaining ground for habeas corpus relief is his allegation that
the trial court's failure to give an interested witness charge to the
jury with respect to the Complex employees and the curtailment of the
defense's cross-examination of the same witnesses deprived him of his
constitutional right to a "fair trial." Although Cook generally cites
state law in his Appellate Brief and in his Appellate Letter, he did
argue that he was deprived of his "constitutional right to a fair trial."
This is sufficient to meet habeas exhaustion requirements.*fn7
Notwithstanding Cook's attempt to present his claim grounded in federal
law, he has not shown a constitutional violation meriting habeas corpus
relief. It is well-settled that "[e]rrors in jury instructions normally
implicate only State law." McCaskell v. Keane, No. 97 Civ. 2999, 2001 WL
840331, at *10 (S.D.N.Y. July 26, 2001) (citing Gilmore v. Taylor,
508 U.S. 333, 344 (1993)); Estelle v. McGuire, 502 U.S. 62, 67 (1991).
The Supreme Court has held that "the fact that [an] instruction was
allegedly incorrect under state law is not a basis for habeas relief."
Estelle, 502 U.S. at 71-72. Instead, only where "the State law issue has
risen to a constitutional violation can a federal court consider the
merits of the claim." McCaskell, 2001 WL 840331, at *10 (citing Blazic
v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990); U.S. ex. rel. Stanbridge
v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975), cert. denied, 423 U.S. 872
Here, no constitutional issue is presented. Although Cook is entitled
to a jury charge that reflects his defense, U.S.
v. Vasquez, 82 F.3d 574,
577 (2d Cir. 1996), "[a] conviction will not be overturned for refusal to
give a requested charge . . . unless that instruction is legally
correct, represents a theory of defense with basis in the record that
would lead to acquittal, and the theory is not effectively presented
elsewhere in the charge." Id. at 577. (citing U.S. v. Perez, 897 F.2d 751,
754 (5th Cir. 1990)). Additionally, "the habeas court must consider the
whole jury charge in the context of all the charges given and the events
at trial." McCaskell, 2001 WL 840331, at *10 (citing Vargas v. Keane,
86 F.3d 1273, 1277 (2d Cir. 1996)).
Here, the trial court gave the following instruction to the jury:
Since you are the exclusive judges of the facts you
have the duty to evaluate the testimony. It is your
duty to sort out the credible testimony and disregard
any testimony which is not credible. One of your
chief functions as judges of the facts is to determine
the credibility of the witnesses because the facts
depend upon the testimony of the witnesses . . . [y]ou
should consider . . . the witness' interest or motive
for testifying . . . [y]ou should ask yourselves . . .
was the witness demonstrably biased or prejudiced or
did the witness have a demonstrable reason to falsify.
[In determining credibility, you should consider] the
witness' interest or lack of interest in the outcome
of the case. The witness' motive to tell the truth or
not to tell the truth . . . [y]ou have a right to
consider whether any witness is actuated by bias or
prejudice or has an interest in the outcome of the
case which would permit the witness to testify to
something other than the truth.
The trial court's jury charge permitted Cook to "`effectively present'
[his] argument as to the value of the [witnesses'] testimony." Id.
(quoting Vasquez, 82 F.3d at 577). The jury was instructed to consider
the reasons or motives that would inspire or cause the Complex
employees, or any other witness for that matter, to lie and implicate
Cook in the burglary.
Moreover, the trial court permitted Cook ample latitude on
cross-examination and in summation to call into question each witness'
motive for testifying. For example, in summation defense counsel argued,
"Normandie Court which as you heard from Mr. Tenety has liability
insurance. Mr. Centeno is a person who did not want to be held
responsible for something on his watch." Additionally, on
cross-examination defense counsel was permitted to question the Complex
employees on their knowledge of the Complex's liability insurance and on
their possible motives for falsifying their testimony.*fn8
The trial court's permitting this line of cross-examination "show[s]
that the failure to give a more specific instruction did not violate
[Cook's] due process rights." See id. (citing Smith v. Gibson,
197 F.3d 454, 460 (10th Cir. 1999) ("court's failure to give specific
charge as to treatment of
[witness'] testimony will not permit habeas
relief where defense counsel had opportunity to attack [witness']
credibility and was able to bring to the jury's attention the fact that
the [witness] was an interested witness")).
Accordingly, because the lack of a more specific interested witness
charge to the jury did not result in a federal constitutional violation,
Cook's claim on this ground is denied. Also, given the specified
instances of defense counsel's opportunity to confront the Complex
employees on cross-examination, the Court finds that Cook's due process
rights were not infringed by the trial court's rulings regarding the
latitude afforded Cook's counsel in presenting the defense's theory of
For the foregoing reasons, it is hereby
ORDERED that petitioner Anthony Cook's petition for a writ of habeas
corpus is denied.
The Clerk of Court is directed to close this case.