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September 3, 2002


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


I. Introduction

Petitioner Joseph Francolino seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking his release from custody arising from a November 18, 1997 judgment in the Supreme Court, New York County. Following an eight-month trial and twelve days of deliberations, a jury found Francolino guilty of a variety of charges stemming from his involvement in a private carting (i.e., waste disposal) cartel. He was sentenced to a term of imprisonment of ten to thirty years and ordered to pay a $900,000 fine.

Francolino argues that the manner in which his trial judge, Justice Leslie Crocker Snyder, was selected, was improper. Under a practice in place at the time, the District Attorney would bring wiretap and search warrant applications to a judge of his choosing. That judge would normally serve as the judge supervising the grand jury and presiding over the trial. In this way, Francolino argues, the District Attorney could in effect choose the judge who would hear any given case. Francolino asserts that the District Attorney submitted the wiretap and search warrant applications in this action to Justice Snyder, an allegedly pro-prosecution judge. Francolino alleges that Justice Snyder was biased against him and his co-defendants, and favored the prosecution throughout the criminal justice process, from the setting of bail through trial to the imposition of the sentence. According to Francolino, the alleged selection of a judge by the District Attorney deprived Francolino of his due process rights under the Constitution.

Separately, Francolino argues that he is entitled to habeas corpus relief because of a faulty jury instruction. In her charge to the jury, Justice Snyder included language that the jury should "determine the reasonable probabilities arising from the case [. . .]." Francolino claims that this charge diluted the "reasonable doubt" standard for guilt in a criminal case and thus deprived him of his constitutional rights.

For the reasons set forth below, Francolino's petition for habeas corpus relief under 28 U.S.C. § 2254 is denied.

II. Factual Background

A. Basis for Conviction

The prosecution of Francolino and his co-defendants stems from the city's efforts to eliminate the deleterious effects of organized crime on private carting (i.e., waste disposal). The mayor of the City of New York in a press release stated:

Since the industry was privatized in 1956, La Cosa Nostra controlled the carting industry through a cartel system victimizing over 250,000 businesses, dictating routes and rates. Because the cartel artificially inflated prices, its customers — the owners of small and large businesses throughout the city — were forced to pay the highest prices of anywhere in the nation.
This is the way it worked. Carting companies "owned" customers and bought or sold customers from one another. They didn't compete against each other for customers, because that was considered "stealing." The lack of competition robbed the cartel's customers, who were forced to pay the inflated prices, and the mob cartel intimidated any legitimate carting companies who sought to enter the market. If they tried to defy the cartel, they suffered the consequences.

Archives of Rudolph W: Giuliani, Freeing the Economy from Organized Crime and Restoring Open, Competitive Markets (Oct. 23, 1997), available at According to the government, members of the cartel operated through four trade associations, and maintained a rigid "property rights" allocation scheme that granted each carter permanent "ownership" of a given location. At the same time, the cartel maintained the illusion of competition by utilizing institutionalized bid-rigging and a practice of selling carting "stops" to each other for forty to fifty times the monthly sum paid by customers. At the top of these associations were individuals with ties to organized crime, who allegedly enforced the above system through a combination of intimidation, concerted economic retaliation, and the threat of violence.

The government developed its case in large part by pursuing an undercover investigation. In early 1992, Chambers Paper Fibres ("Chambers") decided to expand from its paper recycling work into the garbage hauling market.*fn1 After Chambers successfully competed against a carter, the carter arranged to destroy a new Chambers garbage truck and to assault Chambers' president, Sal Benedetto. Chambers eventually permitted the government to conduct a long-term undercover investigation. Pursuant to the investigation, an undercover officer, Detective Richard Cowan, posed as Benedetto's second cousin "Dan" and worked full-time as a manager at Chambers.

During the course of the investigation, Chambers walked a delicate line between competing for customers in the face of the cartel's rules, and accepting those rules by rigging bids and paying compensation to cartel members against whom they had successfully competed. "Dan Benedetto" acquiesced in demands that Chambers pay more than a million dollars in "compensation" to cartel members, as well as $48,000 paid to Francolino personally for a "stop" or site that Chambers "took" from Francolino's company, Duffy Waste and Recycling Corporation ("DWR").

As a consequence of the government's investigation, in June 1995, a New York County grand jury, empanelled on November 9, 1994, returned a 114-count indictment against Francolino, sixteen other individuals, twenty-three corporations, and four trade associations. See Indictment No. 5614/95 (Francolino Exhibit ("Ex.") 22).*fn2 Prior to trial, ten individual defendants, two companies, and one trade association pled guilty. In February, 1997, the remaining defendants proceeded to a jury trial before Justice Leslie Crocker Snyder of the New York State Supreme Court, New York County.*fn3 During the trial, after hearing the undercover detective's direct testimony and the numerous recordings he made, most of the defendants pled guilty.

The trial continued for Francolino, codefendant Alfonso Malangone, DWR, the Association of Trade Waste Removers of Greater New York, and two other companies.*fn4 After an eight-month trial capped by twelve days of jury deliberations, the jury found Francolino guilty of one count of enterprise corruption, one count of attempted grand larceny by extortion in the first degree, four counts of grand larceny by extortion in the second degree, eight counts of grand larceny by extortion in the fourth degree, six counts of coercion in the first degree, one count of attempted coercion in the first degree, and nine counts of combination in restraint of trade and competition. Francolino was sentenced to an aggregate prison term of ten to thirty years, and was fined $900,000. Francolino, his company, his association, and co-defendant Malangone filed a direct appeal to the Appellate Division, First Department.*fn5 On December 21, 1999, the Appellate Division unanimously affirmed all four convictions. See People v. Association of Trade Waste Removers of Greater New York, 267 A.D.2d 137, 701 N.Y.S.2d 12 (1st Dep't. 1999). Francolino, his company, his association, and co-defendant Malangone then sought leave to appeal to the New York Court of Appeals. On March 21, 2000, Judge Albert Rosenblatt denied leave to appeal. See People v. Association of Trade Waste Removers of Greater New York, 94 N.Y.2d 916, 708 N.Y.S.2d 355, 729 N.E.2d 1154 (2000). Francolino's subsequent petition for a writ of certiorari was denied on October 2, 2000. See Francolino v. New York, 531 U.S. 918, 121 S.Ct. 277, 148 L.Ed.2d 202 (2000).

B. Basis for Appeal

Francolino seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 directing his release from custody. Francolino's petition is based on two arguments: first, that he was denied his due process rights by the prosecutor's alleged selection of the judge who presided over his case; and second, that the judge gave an improper jury instruction which diluted the reasonable doubt standard.

1. Alleged Prosecutorial Judge-Shopping

The core allegation in Francolino's petition for habeas corpus is that the District Attorney ("D.A.") effectively selected the judge who would supervise the grand jury investigating Francolino and preside over his trial.*fn6 The practice of which Francolino complains, which allegedly occurred in certain high-profile cases, is outlined in a recent Southern District decision:

The alleged scheme is simplicity itself: the D.A. purportedly seeks out "strongly pro[-]prosecution judges to issue ex parte orders" such as search warrants or wire tap authorizations. After having thus initially involved a judge in a particular criminal matter, the D.A.'s office then allegedly requests [the Administrative Judge] to appoint that same judge to convene and preside over a special grand jury, a recommendation which has "almost always [been] accepted" by the Administrative Judge. Finally, the judge who has been selected to preside over that grand jury is frequently assigned to preside over the subsequent proceedings, including arraignments, pre-trial proceedings, trial, and sentencings. Thus, plaintiffs allege, the D.A. has effectively chosen the judge who presides over the entire criminal proceeding.

Respondents do not directly challenge Francolino's contention that such a practice existed.*fn7 Indeed, in 1997, Administrative Judge Juanita Bing Newton stated in an affidavit that it was the "long-time practice" to give the District Attorney the "latitude to decide when a Special Grand Jury was needed and to select the judge to supervise the body [. . .]." Newton Affidavit ("Aff."), at ¶ 12.*fn8 Moreover, respondents do not deny that it was the usual practice for the judge presiding over the special grand jury to subsequently preside over the trial. Instead, respondents argue that irrespective of the de facto practice, the Administrative Judge retained exclusive de jure authority to assign judges-the Administrative Judge always had the authority to transfer the case to a different judge "at any point." Id. at 6. However, respondents do not dispute Francolino's contention that ordinarily, the judge who presided over the grand jury would also preside over the trial. Indeed, respondents concede that the Administrative Judge had decided, four months before Francolino's trial began, that "all pending cases, including [Francolino's] should remain with the judge who had supervised the grand jury." See Opposition Brief, at 10. With regard to the instant action, respondents concede that prosecutors took the search warrant applications in the Francolino case to Justice Snyder, and later "sought Justice Snyder's permission to empanel a special grand jury to hear the evidence that had been gathered." Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("Opposition Brief"), at 6. As noted, Justice Snyder also presided over Francolino's trial and sentencing.

Francolino argues that prosecutors steered his case towards Justice Snyder because of her allegedly pro-prosecution bias. He argues, see infra, that Justice Snyder was in fact biased in favor of the prosecution, and made various rulings that unfairly gave prosecutors an advantage. Additionally, Francolino argues that even in the absence of actual bias, the perception thereof (in light of the government's alleged selection of the judge in question) warrants reversal. See Memorandum of Law in Support of Petition for a Writ of Habeas Corpus ("Motion Brief"), at 28. Francolino turns to several articles that have been written about Justice Snyder.*fn9 New York Magazine profiled Justice Snyder in a piece entitled, "The Enforcer," in which she stated she "happen[s] to be an admirer of law enforcement"; the article also notes that "[d]efense attorneys complain that [Justice] Snyder is unabashedly pro-prosecution" and that she is considered "the darling of prosecutors." Nina Burleigh, The Enforcer, N.Y. MAG., Mar. 30, 1998, at 35, 38. National Association of Criminal Defense Lawyers president Gerald B. Lefcourt has stated that Justice Snyder is a "lifelong prosecutor" and that "defense lawyers do not believe they get treated fairly in her courtroom." Burleigh, at 39. A New York Times article about Justice Snyder states that according to some defense lawyers, friends, and colleagues, "as a former prosecutor, she acts like one on the bench, undermining the defense in ways large and small." Katherine E. Finkelstein, Hard-Liner in Pearls and Basic Black Robe, N.Y. TIMES, Dec. 20, 2000, at B2. She was featured in the CBS program, 60 Minutes on March 11, 2001. Mike Wallace noted that Justice Snyder is "famous for her candor from the bench, plus the knockout maximum sentences she imposes." 60 Minutes (CBS television broadcast, Mar. 11, 2001). He added that "[s]ome people say prosecutors love to have [Justice Snyder] on a case because [she] help[s] the prosecutor make the case." Id. During the course of the broadcast, Wallace also noted that Justice Snyder has been mentioned as a successor to the current D.A., Robert Morgenthau. Justice Snyder stated, "It's something that I think would be exciting." Id. Burleigh also notes that Justice Snyder "admits" to having "her eye on the [D.A.'s] job." Burleigh, at 35. The government does not contradict Francolino's contention that Justice Snyder has a reputation for being pro-prosecution. In light of this fact, the Court will assume, arguendo, that Justice Snyder has such a reputation.

Francolino argues that in the instant case, the D.A. selected Justice Snyder in anticipation of favorable treatment. See Motion Brief, at 28. He adds that "Justice Snyder's well-cultivated public image as `the Enforcer' and as `famously-pro-prosecution,' [. . .] graphically supports the inference here." See id. at 28 n. 11. Francolino and other co-defendants made a pretrial motion to reassign the case to a judge "selected in accordance with the Due Process Clause of the state and federal constitutions." See Motion Brief, at 3 (citation omitted). The prosecutor would neither admit nor deny that it had selected Justice Snyder, stating only that Justice Snyder was selected "with the approval of" the Administrative Judge and in accordance with pertinent procedures. See Letter of Assistant District Attorney Patrick J. Dugan dated November 28, 1995, annexed as Exhibit ("Ex.") E of Notice of Motion and Affirmation submitted by The Association of Trade Waste Removers of Greater New York, Inc., dated February 16, 1996. The motion for reassignment was denied, without the hearing requested by movants, in a written decision by Justice Snyder dated May 13, 1996. In the decision, Justice Snyder states that she has "examined her conscience and is convinced that she can give both sides a fair trial." See Decision of Justice Snyder on Defendants' Motion for Re-Assignment ("Reassignment Motion"), appended to Francolino's 28 U.S.C. § 2254 Petition as Ex. A. The decision goes on to state that the assignment of this case was done in "accordance with the rules of the Administrative Judge" but does not address the constitutionality of those rules. Justice Snyder also stated that the defense's position that a judge's familiarity with a case should result in reassignment was an "absurdity," and denigrated the defense's sur-reply brief.

Francolino renewed the motion for reassignment during the course of his trial after the Administrative Judge submitted an affidavit in an unrelated proceeding stating that the "District Attorney had been advised in February, 1995 that the practice of the District Attorney selecting a judge to empanel and supervise a grand jury and to receive any indictments voted by such body was being discontinued." Newton Aff., at ¶ 4.*fn10 The renewed motion was denied in open court the day it was filed, without a response by the prosecutor or any comment by the court. See Trial Transcript ("Trial Tr."), at 5676.*fn11

Francolino contends that he is entitled to habeas corpus relief per se, without regard to whether he suffered prejudice, because any trial in which the prosecution selected the judge is inherently tainted by the appearance of partiality and is rife with the risk of prejudice. Francolino also argues that the above notwithstanding, he suffered actual prejudice at the hands of Justice Snyder so as to require habeas corpus relief.*fn12

2. Alleged Faulty Jury Instruction

Francolino's ancillary argument is that he is entitled to habeas corpus relief because of a faulty jury instruction.*fn13 Specifically, Justice Snyder instructed jurors to "determine the reasonable probabilities arising from the case after carefully analyzing and weighing the testimony of each witness and all the other evidence in the case." See Motion Brief, at 53. Francolino states that this part of the jury instruction improperly diluted the standard of proof beyond a reasonable doubt, effectively directing the jury to apply a preponderance of evidence standard. See id. at 55. Respondents argue that the challenged instruction must be analyzed in the context of the entire jury charge, and that such analysis reveals that the language in question did not improperly instruct the jury to apply a lower standard of proof. See Opposition Brief, at 81.

III. Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") narrowed the scope of habeas corpus relief available pursuant to 28 U.S.C. § 2254. The amended habeas corpus statute states in relevant part:

(d) An application for a write 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. [. . .]

Thus, habeas corpus review under AEDPA is presumptively deferential to a denial of relief in state courts, assuming the claim was adjudicated on the merits. The determination of whether a state court is to be accorded deference is simple when the state court cites Supreme Court precedent. A much more difficult question is whether a summary determination by a state court is to be analyzed under the deferential AEDPA standard or under the de novo standard that existed before AEDPA. In the instant case, Francolino argues that the state court (i.e., the Supreme Court, Appellate Division, First Department ("Appellate Division")), did not adjudicate the case on the merits. Alternatively, he argues that the state courts' rejection of Francolino's claim involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. See Motion Brief, at 13.

A. Alleged Prosecutorial Judge-Shopping

In denying Francolino's appeal with regard to the alleged prosecutorial judgeshopping, the Appellate Division held:

The process by which the Trial Justice was assigned to preside complied with the applicable rules and was in no way prejudicial to defendants (see, Matter of Coastal Oil New York, Inc. v. Newton, 231 A.D.2d 55, 660 N.Y.S.2d 428, lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130).

People v. Association of Trade Waste Removers of Greater New York, 267 A.D.2d 137, 701 N.Y.S.2d 12, 16 (1st Dep't 1999) (hereinafter "Trade Waste"). The cited case, Coastal, in turn only cites a single federal case for the proposition that "prosecutorial judge-shopping" is "not a cognizable injury," which Francolino argues, with some merit, is not directly on point.*fn14 Coastal, 660 N.Y.S.2d at 429.

Determining whether such a cursory decision amounts to adjudication on the merits is a thorny issue with which the Second Circuit has grappled with some difficulty.'*fn15 Recently, the Second Circuit has determined that a state court adjudicates a state prisoner's federal claim on the merits when it "(1) disposes of the claim `on the merits,' and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). The fact that a state court decision on the merits is cursory or summary does not vitiate the fact that the issue was adjudicated for purposes of AEDPA: "Nothing in the phrase `adjudicated on the merits' requires the state court to have explained its reasoning process. Nowhere does the statute make reference to the state court's process of reasoning." Id. at 311.

Notwithstanding the above, it is not entirely clear that the Appellate Division actually disposed of Francolino's claims on the (federal) merits. The Appellate Division determined that the process by which Justice Snyder was assigned "complied with the applicable rules [. . .]." Trade Waste, 701 N.Y.S.2d at 16. This argument does not squarely address the merits of the question raised by Francolino. The issue is not whether the applicable rules were complied with, but whether those rules in and of themselves violate the Constitution. See, e.g., Reply Memorandum of Law in Support of Petition for a Writ of Habeas Corpus ("Reply Brief"), at 13. Similarly, the Appellate Division held that the assignment of Justice Snyder was "in no way prejudicial to defendants." Id. at 16. This argument also does not address the merits, because Francolino's primary argument concerning the assignment of Justice Snyder is not predicated on prejudice; rather, it invokes prejudice as an alternative argument. Instead, the thrust of Francolino's argument is that the assignment system is a per se constitutional violation, regardless of prejudice. See Appellate Division Brief of Association of Trade Waste Removers of Greater New York (in which Francolino joined) ("it is clear that a due process violation can be made out without a showing of actual prejudice [. . .]"). Thus, determining that the process was abided by and that there was no prejudice does not address the merits of the constitutional questions raised by Francolino. Moreover, in Sellan, it was apparent that the Appellate Division had analyzed the Sixth Amendment issue in the case, because the court stated that Sellan's "ineffective assistance of counsel claim" was denied. Sellan, 261 F.3d at 314. The term "ineffective assistance of counsel" makes it clear that a constitutional issue is at stake. In contrast, in the instant case, the Appellate Division merely stated that internal administrative rules were followed and that no prejudice resulted. The Appellate Division did not frame the issue in a constitutional light, and thus the Court cannot say that Francolino's constitutional claim was adjudicated. In light of the fact that Francolino's prosecutorial judge-shopping claims were not adjudicated on the merits in state court, the Court will examine these claims de novo.

However, this de novo review extends only to the threshold questions directly related to whether prosecutorial judge-shopping mandates per se reversal. With regard to the related question of prejudice, the Appellate Division has already adjudicated Francolino's claims. As noted above, a state court need not explain fully its reasoning process in order to be entitled to deference. Thus, on the question of whether Justice Snyder's rulings and remarks in the courtroom were prejudicial, this Court uses the deferential AEDPA standard (i.e., the state decision must stand unless it was contrary to or involved an unreasonable application of clearly established federal law).

B. Allegedly Faulty Jury Instruction

With respect to the jury charge argument, the Appellate Division merely stated that the "court gave correct and balanced jury charges on the People's burden of proof [. . .]." Trade Waste, 701 N.Y.S.2d at 15. No case was cited in support of this statement. Francolino argues that the Appellate Division did not adjudicate the question of the allegedly faulty jury instruction because by its own admission, it examined the jury charge relating to burden of proof, not standard of proof. According to Francolino, burden of proof in a criminal case means that the government has the burden of proving the defendant guilty. Francolino states that the appeal concerned the standard of proof — in other words, the requisite level of proof (i.e., beyond a reasonable doubt) required to convict a defendant of a crime.

The Court is not persuaded by Francolino's argument. The term "burden of proof" "includes both the burden of persuasion and the burden of production." BLACK'S LAW DICTIONARY 190 (7th ed. 1999). The term "standard of proof" as used by Francolino is more commonly referred to as "burden of persuasion." Thus, the Appellate Division's conclusory statement that the "court gave correct and balanced jury charges on the People's burden of proof" is sufficient to be deemed an adjudication on the merits of the question of whether the jury charge violated the Constitution. This is true notwithstanding the fact that the Appellate Division did not refer to the Constitution and did not cite a single case for support (either federal or state). Under the Second Circuit's holding in Sellan, a state court's conclusory and unsupported decision suffices as an adjudication on the merits.*fn16 Therefore, with regard to the question of whether the jury charge was in error, the Court will review the Appellate Division's decision under the deferential AEDPA standard.

IV. Legal Analysis

A. Alleged Prosecutorial Judge-Shopping

For the reasons stated supra, the Court examines Francolino's claim of prosecutorial judge-shopping de novo. This is significant because, as Francolino notes, the constitutionality of the alleged prosecutorial judge-shopping in New York has not been squarely addressed by the courts. As noted, in Francolino's direct appeal, the Appellate Division stated that in Francolino's case, the process by which Justice Snyder was chosen "complied with applicable rules" but never analyzed whether those rules were in fact constitutional. Trade Waste, 701 N.Y.S.2d at 16. Moreover, Coastal held that prosecutorial judge-shopping is "not a cognizable injury" because petitioners' claims were "purely speculative," and because petitioners did not demonstrate that "the interest they assert in random assignment is within the zone of interest sought to be advanced by the court rules" (i.e., increased efficiency and judicial accountability). Coastal, 660 N.Y.S.2d at 429. Finally, in Newton, the court held that Coastal's claim concerning alleged prosecutorial judge-shopping was moot and that the other petitioners lacked standing. See Newton, 33 F. Supp.2d 289. As Francolino notes, this "fundamentally important issue [has] evaded review by either the New York Court of Appeals or federal court." Motion Brief, at 11.

Francolino argues that the mere fact of prosecutorial judge-shopping warrants habeas corpus relief, irrespective of whether he suffered actual prejudice. Similarly, he argues that any scenario in which the prosecutor effectively selects the judge is per se prejudicial. See Motion Brief, at 17. In the alternative, Francolino argues that even if the Court finds that a showing of prejudice is required, he has been so prejudiced by Justice Snyder's conduct while presiding over his arraignment, pre-trial motions, trial, and sentencing.

1. Judicial Findings of Fact

Generally speaking, the fact-finding function of a district court reviewing a habeas corpus petition is limited — the district court ordinarily defers to the factual findings made by the jury or the state court. In this case, however, the issue before the court concerns the facts not of Francolino's offense (where deference to the jury and state court would be warranted), but to the facts of how Justice Snyder was selected.*fn17 On this issue, the facts are not completely developed, though through no fault of Francolino. Indeed, as noted supra, his request for a hearing on the issue was denied by Justice Snyder. Notably, such a hearing was permitted in a similar judge-shopping case cited favorably by respondents, United States v. Pearson, 203 F.3d 1243, 1254 (10th Cir. 2000). Ninth Circuit precedent in a similar case indicates that such a hearing is preferred, if not required. See Cruz v. Abbate, 812 F.2d 571, 572 (9th Cir. 1987) (holding that charges that the judicial assignment system is being manipulated for purposes other than the efficient administration of justice "must not remain unexamined and unanswered").

Additionally, Francolino's attorney, Diarmuid White, sent a letter to Assistant District Attorney Patrick Dugan, requesting information on the judicial selection process:

This letter is to request that you advise me precisely how it was that Justice Snyder came to be the judge to whom the electronic surveillance application was made on or about September 24, 1992. For example, was she selected solely by the District Attorney's office; or solely by the Administrative Judge of the Supreme Court, Criminal Branch; or by the Administrative Judge in consultation with the District Attorney's office; or by some other means? Please also furnish me with the names of all persons involved in the selection process.

Letter from Diarmuid White to Patrick Dugan, dated November 8, 1995, annexed as Ex. D of Notice of Motion and Affirmation submitted by The Association of Trade Waste Removers of Greater New York, Inc., dated February 16, 1996. Assistant District Attorney Dugan refused to provide this information, stating only that "the review of eavesdropping applications in this case by Judge Snyder was done with the approval of the Administrative Judge of the Supreme Court and the procedures pertaining to such review." Letter of Assistant District Attorney Patrick J. Dugan dated November 28, 1995, annexed as Ex. E of Notice of Motion and Affirmation submitted by The Association of Trade Waste Removers of Greater New York, Inc., dated February 16, 1996. Dugan also stated that "[i]f you are in possession of facts to the contrary then bring whatever motion you deem appropriate and we will respond accordingly." Id. (emphasis added). While the Court would have appreciated a fuller record on the exact mechanism by which Justice Snyder was chosen and the Administrative Judge's role therein, respondents' own admissions provide a sufficient basis for the Court's factual findings on the question of whether the system in place at the time permitted prosecutors to indulge in judge-shopping.*fn18

Respondents have conceded that prosecutors took the search warrants and wiretap applications to Justice Snyder. See Opposition Brief, at 6. Respondents also concede that prosecutors sought Justice Snyder's permission to empanel a special grand jury to hear the evidence that had been gathered. See id. at 6. In both instances, respondents assure the Court that prosecutors acted in accordance with the procedures in place at the time. See id. at 6. Respondents state that "under the rules in place at the time, when the indictment was returned in June 1995, it was assigned to Justice Snyder for all purposes [. . .]." Id. at 6. Respondents note that Administrative Judge Newton retained the authority to transfer the case to a different judge at any time. See id. at 6.

Based on respondents' own statements, the Court concludes that the practice of judicial assignment at the time of Francolino's case permitted prosecutors to engage in judge-shopping in certain high-profile cases. Respondents' two arguments against such a finding lack merit. The first, that the selection of Justice Snyder was in accordance with the rules in place at the time, merely states that the prosecution's actions were permitted by the New York Supreme Court, but not that the system precluded judge-shopping. The second argument, that Administrative Judge Newton retained ultimate assignment authority, does not alter the fact that in the normal course of events, the judge selected by the prosecutor would preside over all aspects of the case, from search warrant and wiretap applications through sentencing. Respondents provide no instance of where the prosecution selected a judge and the Administrative Judge stepped in to transfer the case to another judge for any reason-administrative or otherwise. Thus, although Administrative Judge Newton may have retained de jure control over judge selection, de facto control over the selection of judges was in the hands of the prosecution.*fn19

2. Prosecutorial Judge-Shopping Gives the Appearance of Partiality

Any criminal justice system in which the prosecutor alone is able to select the judge of his choice, even in limited types of cases, raises serious concerns about the appearance of partiality, irrespective of the motives of the prosecutor in selecting a given judge.*fn20 The Supreme Court "`repeatedly has recognized [that] due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities.'" United States v. Pearson, 203 F.3d 1243, 1257 (10th Cir. 2000) (quoting Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982)). The importance of impartiality carries over to the criminal justice system as a whole, including the process of the selection of the judge. Leaving aside the question of the prosecutor's motives, the mere appearance of partiality, even if unfounded, greatly undermines the credibility of the criminal justice system. As the Supreme Court has noted, "to perform its high function in the best way `justice must satisfy the appearance of justice' [. . .]" Schweiker, 456 U.S. at 196, 102 S.Ct. 1665 (citations omitted). Cf. J.E.B. v. Alabama, 511 U.S. 127, 161 n. 3, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (Scalia, J., dissenting) ("Wise observers have long understood that the appearance of justice is as important as its reality").

Francolino argues that the system of judicial selection for complex and high-profile cases in place at the time gives the appearance of partiality. See, e.g., Motion Brief, at 21, 29. Respondents respond to this argument by noting that a prosecutor's choice of judges is necessarily limited to a group of judicial officers "who have undergone the process of selection and appointment, [and] who have sworn to uphold the law and defend the Constitution [. . .]." Opposition Brief, at 17 (quoting United States v. Pearson, 203 F.3d 1243, 1262 (10th Cir. 2000)). This may be true, but respondents' position ignores the Pearson court's earlier citation of the admonition given by the Supreme Court:

Judges are not fungible; they cover the constitutional spectrum; and a particular judge's emphasis may make a world of difference when it comes to rulings on evidence, the temper of the courtroom, the tolerance for a proffered defense, and the like. Lawyers recognize this when they talk about "shopping" for a judge; Senators recognize this when they are asked to give their "advice and consent" to judicial appointments; laymen recognize this when they appraise the quality and image of the judiciary in their own community.

Laird v. Tatum, 409 U.S. 824, 834-35, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (quoting Chandler v. Judicial Council of Tenth Circuit of the United States [sic], 398 U.S. 74, 137, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970) (Douglas, J., dissenting)). The fact that all judges on a given court have been vetted by a selection and appointment process and that each has taken an oath may mean that each is entitled to equal respect, but does not mean that all judges are identical.

Respondents also argue that Francolino's analysis is flawed because it supposedly "rests on the unwarranted presumption that any judge selected by the prosecutor must necessarily be partial to the prosecution." Opposition Brief, at 16. Instead, respondents contend that prosecutors might use a range of criteria in selecting a judge — such as intelligence, experience, or familiarity with a particular area of law. See id. at 18. This argument sidesteps the issue because it focuses on what rubric the prosecution uses, rather than the overlying fact that it is the prosecution that is making that choice. What is troubling is not the specific criterion which is used, but the very process of prosecutorial selection. The concept of judge-shopping by a prosecutor for a judge whom the prosecutor believes would be inclined or biased in his favor offends our basic notions of justice. The idea that the prosecutor should be permitted to select a presiding judge on an allegedly "neutral" basis such as intelligence or experience is also problematic, because of the obvious implication that the prosecutor may choose a judge based on a real or perceived advantage, and attempt to weight the scales of justice, if only slightly, in his favor.*fn21 See, e.g., McDonald v. Goldstein, 191 Misc. 863, 191 Misc. 863, 83 N.Y.S.2d 620, 625 (1948), aff'd 273 A.D. 649, 79 N.Y.S.2d 690 (2d Dep't 1948) ("It can never be the duty or prerogative of the District Attorney to weigh the experience and diligence of the judges before whom he appears as attorney for one of the parties").

Even if one assumes, arguendo, that the prosecutor's motives were not improper, "the suggestion that the case assignment process is being manipulated for motives other than the efficient administration of justice casts a very long shadow, touching the entire criminal justice system in the local courts [. . .]." Cruz, 812 F.2d at 572. Similarly, the Pearson court noted that "`public confidence in the integrity of the judicial process' [is] an important policy." Pearson, 203 F.3d at 1264 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). The court added that "the elimination, if possible, of even the appearance of impropriety is desirable." Pearson, 203 F.3d at 1264.

The former practice in the New York Supreme Court of permitting prosecutors to effectively select the judge is, as noted, problematic. Judge Posner has noted that the "practice of allowing the prosecutor to choose the grand jury and hence the trial judge is certainly unsightly [. . .]." Tyson v. Trigg, 50 F.3d 436, 442 (7th Cir. 1995). The Indiana Court of Appeals opined that the same system was "totally inappropriate." Tyson v. Indiana, 619 N.E.2d 276, 300 (Ind.Ct.App. 1993). In the Pearson decision, cited by respondents at great length, the Tenth Circuit "strongly urge[d]" the District of Kansas to adopt a judicial assignment system that does not allow the prosecutor to select the judge, Pearson 203 F.3d at 1265. In spite of the foregoing, however, the appearance of partiality itself is not grounds for habeas corpus relief absent a showing of prejudice. This is true for two reasons. First, it is the system of judicial selection, rather than the judge herself, that presents the appearance of partiality. Second, in any event, the "right to a judge who is free from the mere appearance of partiality is not part of due process at all, let alone a fundamental part." Tyson v. Trigg, 50 F.3d 436, 442 (7th Cir. 1995) (Posner, J.). Thus, the system formerly used in New York, while problematic, does not mandate overturning Francolino's conviction absent a showing of actual prejudice (see infra).

3. A Showing of Actual Prejudice is Required

The Tenth Circuit, in United States v. Pearson, 203 F.3d 1243 (10th Cir. 2000), noted that a system which permits de facto prosecutorial judge-shopping "raises substantial due process concerns." Id. at 1257. Francolino argues that the due process concerns are so great as to obviate the need to show prejudice; in other words, that the occurrence of prosecutorial judge-shopping alone mandates habeas corpus relief. See Motion Brief, at 17-30. Notwithstanding the due process concerns raised by prosecutorial judgeshopping, as noted supra, the Court, for the reasons detailed below, holds that the system of judicial assignment in question here is not grounds for habeas corpus relief absent a showing of actual prejudice.

Francolino argues that requiring him to show actual prejudice in addition to de facto prosecutorial judge-shopping is analogous to a situation in which "it is not enough to catch the butcher with his thumb on the scale; you must also show that the meat is tainted." Motion Brief, at 18. This colorful simile notwithstanding the proposition that a showing of actual prejudice is required enjoys both logical and precedential support. On the logical level, absent a showing of prejudice, Francolino has failed to set forth how his position was worsened by virtue of the fact that the prosecutor effectively selected the judge. While the Court agrees that the system of prosecutorial judge-shopping gives the appearance of partiality, this alone is not grounds for habeas corpus relief, as noted above. Francolino does not deny that he could have had a trial before the allegedly biased Justice Snyder even in the absence of any prosecutorial judge-shopping. Of course, it is true that the prosecutorial judge-shopping in this case increased the chances of Justice Snyder being assigned to Francolino's case. However, Francolino does not argue that Justice Snyder was biased against him because the prosecutor selected her (i.e., Francolino never contends that the faulty assignment system caused Justice Snyder's bias — indeed, his citation of articles highlighting her pro-prosecution reputation would suggest that in Francolino's opinion, Justice Snyder would have been biased against him even if she had been randomly assigned to the case). Thus, appearances of partiality notwithstanding, Francolino is in the same position now as he would have been had Justice Snyder been assigned to his case randomly. While the prosecutor ensured that Justice Snyder would preside over Francolino's trial, unless Francolino can show that the assignment of Justice Snyder adversely affected his case (i.e., prejudiced him), he is in the same position that he would have been absent any prosecutorial judge-shopping (if Justice Snyder had been randomly selected to preside over his case). If Francolino is able to demonstrate prejudice, he will have successfully established that the prosecutorial judge-shopping had a deleterious effect on his case, and therefore, that habeas corpus relief would be appropriate.

A substantial body of case law supports the respondents' contention that Francolino's conviction must stand absent a showing of actual prejudice. As a preliminary matter, it appears that there is neither Supreme Court nor Second Circuit precedent directly on point. However, numerous decisions of other circuit courts that have examined a judicial assignment scheme similar to the one in question here have held that a petitioner must show actual prejudice in order to warrant relief.

The question of prosecutorial judgeshopping was reviewed on habeas corpus appeal by the Seventh Circuit in Tyson v. Trigg, 50 F.3d 436 (7th Cir. 1995) (hereinafter Tyson II). The facts in Tyson II are similar to those in Francolino's case. In Tyson II, the prosecutor was permitted to take a request for an indictment to any of six judges, each of whom presided over a separate grand jury. As in the instant case, by taking a request for an indictment to a judge presiding over a grand jury, the prosecutor effectively selected the judge to preside at trial. See Tyson II, 50 F.3d at 438-39.*fn22 Writing for the court, Judge Posner noted that according to Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), relief can be granted in federal habeas corpus "only on the basis of a ground dictated by precedent." Tyson II, 50 F.3d at 440 (emphasis in original). He concluded that given the lack of precedent, any constitutional infirmity in the practice of judicial assignment was "subtle rather than obvious." Id. at 440. "But if it is subtle, habeas corpus is not the place to challenge it." Id. at 440. The Tyson II court concluded that no relief was available for the prosecutorial judgeshopping where no prejudice was shown.*fn23

The Court of Appeals of Indiana had previously considered the merits of Tyson's claim on direct appeal in Tyson v. Indiana, 619 N.E.2d 276 (Ind.App. 1993) (hereinafter Tyson I) (the Indiana Supreme Court denied Tyson's appeal). The court held that "`[b]efore an appellant is entitled to a reversal, he must affirmatively show that there was error prejudicial to his substantial rights.'" Id. at 300 (citation omitted). Tyson's appeal was denied because he "has failed to present any evidence to overcome that presumption [that the judge was unbiased and impartial] or show that he was prejudiced in any other manner." Id. at 300. The court stressed that actual prejudice is the touchstone of a due process violation in the context of prosecutorial judge-shopping: "Tyson has failed to show that the fairness of his trial was in any way affected by the method by which Judge Gifford was selected to preside; therefore, he has failed to demonstrate he was denied due process of law." Id. at 300.

The Tenth Circuit recently had occasion to analyze prosecutorial judge-shopping on direct appeal in United States v. Pearson, 203 F.3d 1243 (10th Cir. 2000). In that case, one of the defendants alleged that the prosecutor manipulated the order of the defendants on the superceding indictment in order to have the case assigned to a particular judge. The court found that "Mr. Pearson's allegations are sufficient to demonstrate that the District of Kansas employed an assignment system that, in these circumstances, could be manipulated to obtain a particular judge." Id. at 1253 n. 2. The ultimate decision, however, was in the hands of the Clerk of the Court, not the prosecutor. See id. at 1254. Thus, the system at issue in Pearson, was functionally equivalent to the one at issue in the instant case: in both instances, prosecutors could, if they wished, use the system to obtain a desired judicial assignment, notwithstanding the fact that the ultimate authority for assignment resided elsewhere.

Francolino concedes that the Pearson court engaged in a "rather extensive analysis" of the legal issues raised by the judicial assignment practice. Motion Brief, at 21. As noted supra, the Tenth Circuit articulated its concerns as to the assignment system, see id. at 1257, 1263; notwithstanding such concerns, the court held that an assignment system that permits prosecutorial judge-shopping does not present structural error and is therefore subject to harmless error analysis:

In summary, Mr. Pearson's allegations of an improper manipulation of the case assignment system raise substantial due process concerns. However, even if we accept Mr. Pearson's contentions as to the prosecution's motivation in reordering the defendants' names on the superceding indictment so that the case would be assigned to Judge Belot, the assumed due process violation arising out of that conduct is not structural error and is harmless beyond a reasonable doubt. As a result, Mr. Pearson's due process challenge does not warrant a new trial.

Pearson, 203 F.3d at 1263.*fn24 The court's decision was motivated in part by the fact that any prosecutorial judge-shopping was limited to a group of judges who had sworn to uphold the law and defend the Constitution. See id. at 1263.*fn25 The Pearson court's decision was also based on the fact that "most federal courts that have addressed the issue of prosecutorial involvement in judicial assignments have not found due process violations." Id. at 1258.

While Tyson II and Pearson provide the most thorough analysis of prosecutorial judge-shopping, other courts that have considered the issue, even briefly, have required a showing of actual prejudice. Thus, in Sinito v. United States, 750 F.2d 512 (6th Cir. 1984), the Sixth Circuit held that "[e]ven when there is an error in the process by which the trial judge is selected, or when the selection process is not operated in compliance with local rules, the defendant is not denied due process as a result of the error unless he can point to some resulting prejudice." Id. at 515.*fn26 Similarly, in United States v. Gallo, 763 F.2d 1504 (6th Cir. 1985), the Sixth Circuit denied a defendant's appeal where the defendant argued that "prosecutors had engaged in a pattern of `steering' significant criminal cases to a judge of their choice." Id. at 1532. Basing its decision in part on its holding in Sinito, the Sixth Circuit reaffirmed that a defendant "does not `have the right to have his judge selected by a random draw'" and that a defendant must show actual prejudice. Id. at 1532 (citing Sinito, 750 F.2d at 515).*fn27

The case which perhaps is most supportive of Francolino's position is Cruz v. Abbate, 812 F.2d 571 (9th Cir. 1987) (Kozinski, J.). In that case, the Ninth Circuit held that a defendant "is entitled to have [the judicial assignment decision] made in a manner free from bias or the desire to influence the outcome of the proceedings." Id. at 574. The court added that "[e]ven the broadest discretion is capable of abuse if exercised in a manner that impairs rights guaranteed by the constitution." Id. at 574.*fn28 However, Cruz is distinguishable from the other cases cited above. In the previously-cited cases, the defendants did not allege actual prejudice; instead, they argued that the appearance of partiality was enough to mandate reversal. In contrast, in Cruz, the defendant alleged that the judge "`displayed arbitrariness and unfairness and has failed to comply with the principles of objectivity and impartiality.'" Id. at 574 (quoting petition). Implicit in this statement is the allegation that the defendant had suffered actual prejudice. Of course, this allegation made by the defendant was "not very specific," which accounts for the Ninth Circuit's remand of the case in order that petitioners could "state their allegations in greater detail and present such evidence as they may have to support them." Id. at 574. While the Ninth Circuit went further than the Pearson or Tyson II courts in attacking the practice of result-oriented judicial selection, Cruz does not stand for the proposition that a showing of prejudice is not required to make out a due process violation.

The Supreme Court of Louisiana has held that "[t]o meet due process requirements, capital and other felony cases must be allotted for trial to the various divisions of the court, or to judges assigned criminal court duty, on a random or rotating basis or under some other procedure adopted by the court which does not vest the district attorney with power to choose the judge to whom a particular case is assigned." State v. Simpson, 551 So.2d 1303, 1304 (La. 1989). The court emphasized, however, that its holding was prospective only. See id. at 1305. In State v. Trahan, 576 So.2d 1 (La. 1990), the Louisiana Supreme Court refused to expand its Simpson ruling in part on the ground that the petitioner made "no showing of particularized prejudice arising out of the former system." See Trahan, at 5.

Additionally, the cases cited for support by Francolino are not directly on point. For example, Francolino cites Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) for the proposition that "[t]he right to an impartial adjudicator, be it judge or jury,' is a right `so basic to a fair trial that [its] infraction can never be treated as harmless error.'" Motion Brief, at 18 (quoting Gray, 481 U.S. at 668, 107 S.Ct. 2045). The problem with Francolino's argument is that it conflates the appearance of partiality with actual partiality. Francolino is correct when he argues that he has a fundamental right to an impartial adjudicator. If Francolino is able to prove that he did not have an impartial adjudicator, habeas corpus relief is appropriate. However, Francolino asks the Court to presume that Justice Snyder was partial because she was selected by the prosecution. As noted supra, however, Francolino never alleges any type of causality — i.e., that judge — shopping caused Justice Snyder's partiality. In the absence of causation, Francolino must show that Justice Snyder was nevertheless partial — in other words, he must show actual prejudice. While the Court agrees that the former system gave the appearance of partiality, maintaining that Justice Snyder was in fact partial is a separate matter. Moreover Gray cites Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which in turn cites Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) for the proposition that a violation of the right to an impartial judge is per se reversible error. However, the facts in Tumey are not analogous to those at issue here. Tumey involved a rather unusual statute providing that the mayor of a village would preside over the trial of one accused of violating the anti-alcohol Prohibition statutes. The problem with the system, according to the Supreme Court, was that there was "no way by which the mayor may be paid for his service as judge, if he does not convict those who are brought before him." Tumey, 273 U.S. at 520, 47 S.Ct. 437. Thus, the referenced Supreme Court language is predicated not on the mere appearance of partiality but on a system that structurally gave the mayor/judge an economic incentive to convict the accused (indeed, remuneration was conditioned on a conviction). Such a system, which gave the judge an economic stake in the outcome of the trial, was plainly unconstitutional. In contrast, here Francolino makes no allegation that Justice Snyder had any direct stake in the outcome of his trial.

Similarly, Francolino cites Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) for the proposition that the Due Process Clause "entitles a person to an impartial and disinterested tribunal in both civil and criminal cases." Motion Brief, at 19 (citing id. at 242, 100 S.Ct. 1610). However, Marshall itself rejected a finding of improper partiality in part because, as in the instant case, "[n]o governmental official stands to profit economically [. . .]." Id. at 250, 100 S.Ct. 1610. Moreover, the cases cited in Marshall that upheld reversal for partiality all involve instances where the actor in question had an extrinsic, often pecuniary interest, in the outcome of a case. See id. at 243 n. 2, 100 S.Ct. 1610 (citing Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977) (invalidating a system in which justices of the peace were paid for issuance but not for nonissuance of search warrants); Gibson v. Berryhill, 411 U.S. 564, 578-579, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) (prohibiting a state administrative board consisting of optometrists in private practice from hearing charges filed against licensed optometrists competing with board members); Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) (prohibiting the trial of a defendant before a judge who has previously held the defendant in contempt); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) (same); Morrissey v. Brewer, 408 U.S. 471, 485-486, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (prohibiting a parole officer from making the determination whether reasonable grounds exist for the revocation of parole)).

The apparent touchstone with regard to the Supreme Court's partiality analysis is whether the basis of partiality is extrinsic or intrinsic. An extrinsic basis of partiality means that an outside factor affects the basic architecture of the judicial system in such a way as to influence the results. Such an extrinsic basis of partiality exists, for example, as noted supra, where the judge has a vested economic interest in the outcome of a trial or hearing. An intrinsic basis of partiality implicates the judge herself, without regard to extrinsic factors. An intrinsic basis of partiality exists, for example, where the judge is biased in favor of one side or the other without reference to an external interest. The Supreme Court precedent cited by Francolino suggests that while a per se rule of reversal may apply in the case of an extrinsic basis of partiality, a showing of prejudice is required where the alleged basis of partiality is intrinsic.

In the instant case, Francolino argues that Justice Snyder's basis of partiality is intrinsic. Francolino does not suggest that Justice Snyder has an economic or other external motive that drives her to be pro-prosecution. He merely argues that she harbors a deep-seated, but internal, pro-prosecution bias.*fn29 Such an intrinsic basis of partiality may provide grounds for habeas corpus relief, but only if the accused suffers actual prejudice. In the absence of actual prejudice, habeas corpus relief is not appropriate-prejudice cannot be presumed in such a case.

Francolino's reliance on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955) is similarly misplaced; these cases each deal with per se prejudice in settings wholly different from the one at issue here (Strickland and Cronic concern the ineffective assistance of counsel, whereas Murchison concerns a contempt proceeding before a single judge sitting as a "one-man grand jury"). The Court is of the view that certain violations of a defendant's constitutional rights are grounds for relief even absent a showing of actual prejudice. This does not vitiate, however, the fact that a showing of actual prejudice is required in this particular instance. After having reviewed the parties' submissions and the relevant case law, the Court concludes that in the instant case, habeas corpus relief is not appropriate absent a showing by Francolino of actual prejudice.

4. Francolino Did Not Suffer Actual Prejudice

a. Standards

This Court, having determined that the state court had not adjudicated the issue as to whether a showing of actual prejudice is required, addressed this issue de novo. The issue as to whether Francolino did, in fact, suffer actual prejudice was clearly addressed by the Appellate Division. See People v. Association of Trade Waste Removers of Greater New York, 267 A.D.2d 137, 701 N.Y.S.2d 12 (1st Dep't 1999).*fn30 Because the state court addressed these claims, such adjudication may not be upset unless it "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." 28 U.S.C. § 2254(d)(1). Under Second Circuit precedent, the issue is "not whether the state court was incorrect or erroneous" in rejecting Francolino's claims, but whether it was "objectively unreasonable" in doing so. Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). In the instant case, however, this Court concurs with the decision of the Appellate Division as to the issue of prejudice. Parenthetically, under AEDPA, even incorrect decisions must stand unless they are "contrary to" or involve an "unreasonable application of, clearly established Federal law."

With regard to alleged judicial bias, the role of an appellate federal court reviewing a decision of another federal court may be distinguished from the role of a federal habeas corpus court reviewing a state court conviction. Both Francolino and respondents agree that the relevant standard-setting case is Daye v. Attorney General, 712 F.2d 1566 (2d Cir. 1983). See Opposition Brief, at 30; Reply Brief, at 32. The Daye court noted that there are two separate standards at issue: federal standards of judicial propriety and standards of fundamental fairness required by the Constitution. See Daye, at 1571. While federal appellate courts reviewing federal trials may apply the former standard, federal habeas corpus courts reviewing state convictions may not. Rather, the Second Circuit noted that "an important facet of federalism" is that "federal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts and lack such authority with respect to state courts." Id. at 1571. Thus, the fact that a state court judge's behavior might have exceeded federal standards of judicial propriety is irrelevant on a habeas corpus motion, so long as the behavior does not violate the Constitution. See id at 1571.

With regard to the instant case, the question is not whether Justice Snyder's actions violated federal standards of judicial propriety but whether they violated the Constitution. This Constitution-based threshold is relatively high, as the Daye court noted: "A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits." Daye, 712 F.2d at 1572. In the instant case, during the grueling eightmonth trial, Justice Snyder made some ill-advised remarks at various times. While such remarks may have violated federal standards of judicial propriety, for the reasons set forth below, none of her remarks, either singly or collectively, violated the Constitution or prejudiced Francolino so as to warrant habeas corpus relief.

b. Francolino Was Not "Stripped" of his Right to a Bench Trial

Francolino argues that he was prejudiced by Justice Snyder's alleged bias because he was "stripped of his statutory right to choose between a bench or jury trial." Motion Brief, at 30. While he never actually forfeited his right to a bench trial under N.Y.Crim. Proc. Law § 320.10 (McKinney 2002), Francolino reasons that "a defendant would be loath to exercise that right where, as here, the prosecutor brings about the selection of the judge."*fn31 Motion Brief, at 30. However, Francolino fails to explain how his position was materially worsened by virtue of the prosecutor's selection. Specifically, Francolino's fear of a bench trial would seemingly have been present even if he had randomly been assigned Justice Snyder, given her alleged pro-prosecution reputation. Moreover, Francolino's argument is circular. He postulates that Justice Snyder (by virtue of the fact that she was chosen by the prosecution) would be prejudiced against him. Based on that assumption, he states that he effectively lost ...

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