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BRIDGEWATER v. WALKER

United States District Court, Southern District of New York


January 13, 2003

PEDRO BRIDGEWATER, PETITIONER, AGAINST HANS WALKER, RESPONDENT.

The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magristrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

Pedro Bridgewater ("Bridgewater") has petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that his confinement by New York State is unlawful because: (1) he was denied a fair trial by the trial court's decision to consolidate four rape charges that had been lodged against him, and by its subsequent refusal to sever the charges; (2) he was denied due process and a fair trial by the court's comment during its instruction to the jury that petitioner was an interested witness and "you may find that an interested witness has tailored their testimony in favor of their interest;" (3) he was denied due process and a fair trial by the prosecutor's inaccurate statement of the evidence and denigrating comments about defense counsel during summation; (4) he was denied due process at sentencing because the sentence was imposed based on "materially untrue assumptions;" and (5) he was deprived of his right to the effective assistance of trial counsel. Respondent opposes Bridgewater's petition for a writ of habeas corpus.

II. BACKGROUND

Petitioner was charged with four incidents of rape, occurring over a four-month period, from January to April 1993. The first incident occurred on January 2, 1993. Early in the morning, petitioner, who was driving a white, four-door cab, picked up two passengers, R. R.*fn1 and LaToya Cooper ("Cooper"). R. R. claimed that when they reached her home at 195th Street and Sedgwick Avenue in the Bronx, she stayed in the cab while Cooper went to get money for the fare. R. R. claimed that as soon as Cooper left the cab, petitioner drove off, sped to a highway, and then took her to a deserted area near the Henry Hudson Parkway where he sexually assaulted her. According to R. R., petitioner took her home after she promised to spend the night with him; when they arrived at her building, she went to the apartment of a friend and reported that she had been raped. The friend called the police. According to R. R., when police officers arrived, she identified petitioner as the rapist.

Petitioner claimed that R. R. left the cab shortly after Cooper, and that he waited, alone, for the two passengers to return. According to petitioner, while he was waiting, police officers arrived and arrested him.

R. R. testified at trial that she went to a hospital on the day of the alleged attack, and that she was examined by a doctor. At trial, the parties stipulated that a DNA analysis of the physical evidence taken from R. R. matched the genetic profile of her boyfriend and did not match the genetic profile of petitioner. Petitioner was acquitted of the charge of first-degree rape which was submitted to the jury with respect to R. R.

The second incident occurred on March 20, 1993. E. J. and her fiancee, Robert Blount ("Blount"), left their friend's home at 141st Street and Willis Avenue in the Bronx and hailed a white, four-door cab with tinted windows and a crack on the passenger side of its windshield. The driver of the cab was petitioner. E. J. and Blount told petitioner to take them to Harlem; petitioner then demanded that they pay the six-dollar cab fare in advance. When it became apparent to petitioner that Blount would not give him the cab fare in advance, petitioner stopped the cab and told them to get out. Blount left the cab. However, before E. J. was able to get out of the car, petitioner drove off. E. J. gave petitioner the six-dollar fare and tried to leave the car, but petitioner showed her a gun or some other weapon through the cab's partition and told her to shut the door. Petitioner then drove to a deserted railroad yard below the Major Deegan Expressway and stopped the car. E. J. tried to open the rear door of the cab but it was locked. Petitioner, who possessed a knife, then moved to the back seat of the cab where he sexually assaulted E. J. Petitioner later asked E. J. to come home with him. When she refused, he forced her to remove her gold name chain and bracelet; both were engraved with the name "Butter" and had been given to her by Blount. Petitioner took the jewelry and another six dollars, then drove away, leaving E. J. in the deserted railroad yard. She walked up the ramp to the highway where a cab driver saw her, stopped, and took her to her mother's house. E. J. told her family that she had been raped. Her mother called 911, and an ambulance came and took B. J. to Harlem Hospital.

The third incident took place on March 28, 1993. At two o'clock in the morning, K. O. entered a white, four-door cab with tinted windows and a cracked windshield. The driver of the cab was petitioner. K. O. believed that the cab was taking her to her home at 182nd Street and Walton Avenue in the Bronx. However, after a drive of about fifteen minutes, petitioner pulled off the highway into a deserted grassy area, moved to the back seat of the cab, threatened K. O. with a screwdriver, and sexually assaulted her. K. O. testified that, after the assault, petitioner offered to give her the chain that he wore on his neck, but she refused to take it. According to K. O., the chain was made of gold and was engraved with a name that began with the letter "B." K. O. testified that petitioner took her to the front of the car and assaulted her again. After relieving K. O. of five dollars and her two school identification cards, petitioner drove her to an area near Yankee Stadium, told her to get out of the cab, and then drove away. K. O. walked to her boyfriend's house and told him that she had been raped. He escorted her to the 48th police precinct and waited while she spoke to the police. Then he accompanied her in an ambulance to Jacobi Hospital where she was examined by a doctor.

The fourth incident took place on April 17, 1993. M. R. and her cousin, Maria Garcia ("Garcia") had gone to a party on Clay Avenue in the Bronx with their friends Wanda, Marcus and Kathy. The group left the party at six o'clock in the morning and hailed petitioner's cab. Petitioner drove first to Wanda's house, then to Marcus' house. He then drove in the direction of Prospect Avenue, where M. R., Garcia and Kathy lived. On the way, he offered to take the women to his apartment for drinks, but the women declined his offer. At Prospect Avenue and 156th Street, Kathy and Garcia left the cab. M. R. also began to get out of the cab and had placed one foot on the ground when petitioner drove off. Petitioner told M. R. that he would kill her if she did not close the car door. She did as he told her because she thought he was armed with a gun. Petitioner sped through several red lights; eventually he drove under a highway and stopped in a deserted industrial area. As soon as the cab stopped, M. R. tried to open the door and escape but petitioner got in the back seat, restrained her, and sexually assaulted her.

Police Officer Scott Cunningham was on routine patrol at 6:15 in the morning on April 17, 1993, when he noticed petitioner's white, four-door cab parked at 140th Street and Walnut Avenue. He did not approach the car, since it was legally parked; however, he made a mental note of its presence in the area. He then continued on his patrol. A short time later, he saw Garcia and Kathy; they flagged him down and reported what had happened to M. R. Officer Cunningham immediately returned to the location where had seen the parked car. He arrived at that location three and one half minutes after he had first seen the car.

As soon as he stopped his police van on Walnut Avenue, Officer Cunningham heard a woman screaming. He ran to the car, opened the door and found petitioner sexually assaulting M. R. He pulled petitioner away from M. R. and asked her if she was being raped. She responded in the affirmative. Petitioner said that M R. was his girlfriend, but she denied it. After petitioner was handcuffed and taken to the precinct by another officer, Officer Cunningham took M. R. to the location where he had seen Garcia and Kathy. He then took the women to Lincoln Hospital where M. R. was examined by a doctor. Thereafter, Officer Cunningham returned to the police precinct to process the arrest. When asked, petitioner stated that his name was Anthony Nunez. Later, Officer Cunningham searched the white cab but found no gun or other weapon.

On April 30, 1993, a grand jury charged petitioner with, inter alia, rape in the first degree and rape in the third degree. Thereafter, on May 6, 1993, petitioner was charged in an additional indictment with, inter alia, six counts of rape in the first degree, three counts of sodomy in the first degree, two counts of robbery in the first degree and two counts of robbery in the second degree.

On July 15, 1993, the prosecution moved, pursuant to New York's Criminal Procedure Law ("CPL") § 200.20, to consolidate the charges in the indictments for a single trial since all of the crimes had occurred within a four-month time period, were defined by similar statutory provisions, and involved common elements, such that proof of one offense would be material and admissible as evidence in the trial of a second offense.*fn2 Petitioner opposed the motion to consolidate on the ground that the allegations were not properly joinable under CPL § 200.20 because proof of one offense would not be material and admissible as evidence upon a trial of a second offense, and because the offenses were not defined by similar statutory provisions. Petitioner argued further that he would be "extremely prejudiced" in a joint trial because "the jury would be inevitably led to the conclusion that [he] has a propensity to commit sexual offenses."

On December 13, 1993, the trial court ordered consolidation; as discussed, infra, the trial court judge did not issue a written decision in the matter. On September 7, 1994, petitioner moved for severance of the charges. Petitioner argued that severance was appropriate because he had a strong need to testify in one case, that is, the case in which he allegedly had been discovered in the act of rape and so needed to explain what really happened, but a strong need to refrain from testifying in the other cases. The motion to sever was denied on September 24, 1994.

On November 23, 1994, following a trial by jury in New York State Supreme Court, Bronx County, petitioner was convicted of four counts of rape in the first degree, see N.Y. Penal Law 130.35(1), three counts of sodomy in the first degree, see N.Y. Penal Law 130.50(1), and two counts of robbery in the first degree, see N.Y. Penal Law 160.15(3).*fn3 Petitioner was sentenced to nine consecutive indeterminate terms of imprisonment of from eight and one-third to twenty-five years.

Petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. Petitioner urged that court to upset his conviction because: (1) he was denied a fair trial by the trial court's decision to consolidate the four rape charges brought against him, and by its subsequent refusal to sever those charges; (2) he was denied a fair trial by the trial court's instruction to the jury that petitioner was an interested witness and "you may find that an interested witness has tailored their testimony in favor of their interest;" (3) on summation, the prosecution misstated the evidence and denigrated defense counsel, thereby depriving petitioner of his right to a fair trial; and (4) his sentence was excessive in light of his lack of a prior criminal history, his employment record and his family circumstances.

The Appellate Division affirmed petitioner's conviction unammously. See People v. Bridgewater, 242 A.D.2d 491, 662 N.Y.S.2d 120 (App. Div. 1st Dep't 1997). After the Appellate Division rendered its decision, petitioner applied for leave to appeal to the New York Court of Appeals. His application was denied. See People v. Bridgewater, 91 N.Y.2d 924, 670 N.Y.S.2d 405 (1998).

Petitioner returned to the trial court with a CPL § 440.10 motion seeking to vacate the judgment of conviction because, he alleged, he had received ineffective assistance from trial counsel. On April 8, 1999, that motion was denied. Petitioner applied for leave to appeal from that determination to the Appellate Division. On July 1, 1999, the Appellate Division denied that application.

Bridgewater also applied to the Appellate Division for a writ of error coram nobis. The basis for that application was petitioner's claim that his appellate counsel had failed to render effective assistance to him by failing to argue that trial counsel was ineffective in certain respects. On September 7, 2000, the Appellate Division denied petitioner's application for a writ of error coram nobis. See People v. Bridgewater, 275 A.D.2d 1044, 715 N.Y.S.2d 205 (App. Div. 1st Dep't 2000).

On July 24, 2001, after filing his petition for a writ of habeas corpus, Bridgewater moved, pursuant to Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts, for discovery of information pertinent to a challenge he made in the state trial court concerning the consolidation of the charges for adjudication at trial. The Court denied petitioner's motion on August 8, 2001. However, on October 9, 2001, the Court rescinded its previous order and directed that respondent disclose to petitioner, expeditiously, information relevant to the consolidation issue.*fn4

In November 2001, petitioner moved for an order compelling the respondent to comply fully with the Court's discovery order. Thereafter, following a telephonic conference held with petitioner and counsel for the respondent, the Court directed the respondent to provide petitioner with a stenographic record, if such a record were determined to exist, pertinent to the consolidation motion that was made in the trial court, as well as all exhibits submitted in connection with the consolidation motion, on or before December 20, 2001. In addition, the respondent was directed to serve and file a supplemental affidavit in opposition to petitioner's habeas corpus application; petitioner was directed to reply to the supplemental affidavit by January 18, 2002.

In his affidavit regarding the consolidation motion made in the state trial court, respondent's counsel avers that: (i) the trial court ordered consolidation of the relevant indictments on December 13, 1993, but did not issue a written decision; (ii) during the December 13, 1993 proceeding, the trial court judge, Justice Gerald Sheindlin, stated that "[a] written decision will follow setting forth the Court's reasoning for consolidating each of these three separate indictments;" and (iii) Justice Sheindlin is now retired from the Supreme Court of the State of New York. Attached as an exhibit to counsel's affidavit is a copy of the transcript of the pretrial proceeding in which Justice Sheindlin granted the prosecution's motion to consolidate.

Respondent's counsel also avers that, on December 6, 2001, he spoke to Justice Sheindlin's former law secretary, Julia Davis ("Davis"). From his conversation with Davis, counsel learned that: (a) typically, when Justice Sheindlin rendered a decision from the bench, either no notes would be made or, if notes were made, they would not be retained; (b) every motion had a cover sheet indicating the disposition of the motion, whether there was an opinion, and what papers of the moving and answering parties were attached; (c) the cover sheet indicated how the motion was decided: if the endorsement on the cover sheet stated anything other than "Denied — see minutes," there would be a further record of how the motion had been decided; and (d) the cover sheet might contain notations that would be read into the record of the proceedings.

According to respondent's counsel, on December 12, 2001, he reviewed the files maintained by the state trial court in connection with the indictments relevant to the instant action, and was able to confirm that they contained no written decision or cover sheet pertaining to petitioner's consolidation motion.*fn5 In addition, counsel spoke to the former assistant district attorney who prosecuted the case. According to counsel, the assistant district attorney did not remember whether there had been oral argument regarding the consolidation issue or whether a written decision had been issued. Further, on December 17, 2001, counsel spoke to petitioner's trial counsel. Counsel avers that petitioner's trial counsel did not remember any oral argument on the consolidation issue; he believed it was possible that some remarks were made regarding the issue, but did not recall a formal argument session and also did not remember whether the trial judge had issued a written decision regarding the consolidation issue.

According to counsel, he also wrote directly to Justice Sheindlin in an effort to determine whether a written decision in this matter had been issued. In addition, counsel attempted to contact Justice Sheindlin through one of the Justice's relatives who was employed as an attorney for The Legal Aid Society in the Bronx. Counsel states that these inquires revealed that Justice Sheindlin did not have any files pertaining to the instant case, but that Davis might have access to such files. Finally, counsel avers that he reviewed the file maintained in connection with the instant action by the Office of the District Attorney of Bronx County, in an effort to discover whether it contained a written decision regarding the consolidation motion; no such document was found.

By memorandum endorsement dated February 1, 2002, the Court determined that the supplemental submission made by the respondent satisfied the obligations imposed on the respondent in the Court's November 20, 2001 order. Petitioner's reply affirmation was submitted on June 24, 2002.*fn6

III. DISCUSSION

Consolidation of the Charges

"Joinder of offenses rises to the level of a constitutional violation only if it `actually render[s] petitioner's state trial fundamentally unfair and hence, violative of due process.'" Herring v. Meachum, 11 F.3d 374, 377 (2d Cir. 1993) (quoting Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir. 1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1184 [1977]); see also United States v. Lane, 474 U.S. 438, 446 n. 8, 106 S.Ct. 725, 730 n. 8 (1986) (noting, in an action involving joinder of defendants, that "[i]mproper joinder . . . rise[s] to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial"). When several crimes are tried together, there is always a danger that "the jury may use evidence cumulatively" so that, "although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all." Herring, 11 F.3d at 377. However, since joinder of offenses "has long been recognized as a constitutionally acceptable accommodation of the defendant's right to a fair trial," a defendant claiming a due process violation on this ground must "go beyond the potential for prejudice and prove that actual prejudice resulted from the events as they unfolded during the joint trial." Id. at 377-78. See also Matthews v. Artuz, No. 97 Civ. 3334, 1999 WL 349694, at *3 (S.D.N.Y. May 27, 1999); Reed v. Great Meadow Correctional Facility, 981 F. Supp. 184, 188-89 (W.D.N.Y. 1997).

Furthermore, in a case such as this, where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

Respondent contends that the Appellate Division's ruling on the issues of consolidation and severance, specifically, its conclusion that "the denial of severance did not result in any prejudice to the defendant," Bridgewater, 242 A.D.2d at 491, 662 N.Y.S.2d at 121, does not involve clearly established Supreme Court precedent. Consequently, respondent argues, on this ground alone, petitioner's claim must be denied.

The threshold question under the federal habeas corpus statute, when a claim has been adjudicated on the merits in state court, is whether the petitioner seeks to apply a rule of law that was clearly established at the time his state court conviction became final. See Williams, 529 U.S. at 390, 120 S.Ct. at 1511. In a petition for habeas corpus relief alleging improper joinder of offenses, this question can be answered in the affirmative because the merits of such claims are governed by the Supreme Court's ruling in United States v. Lane, 474 U.S. at 446 n. 8, 106 S.Ct. at 730 n. 8 ("Improper joinder . . . rise[s] to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.").

In the instant case, the Appellate Division's ruling on the issue of consolidation does not refer to Lane. Nevertheless, the standard applied by the Appellate Division "is not diametrically different, opposite in character or nature, or mutually opposed to the federal standard," as articulated in Lane. Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001) (quoting Williams, 529 U.S. at 405, 120 S.Ct. at 1519 [internal quotation marks omitted]); see also Loliscio v. Goord, 263 F.3d 178, 192-93 (2d Cir. 2001). Therefore, petitioner may be afforded habeas corpus relief only if the Appellate Division's decision was contrary to or unreasonably applied the governing legal standard for proper joinder of offenses.

Petitioner claims that he was denied his constitutional right to a fair trial by the trial court's decision to consolidate the rape charges made against him and by its refusal to sever these charges where "the people conceded the decision was discretionary [and where] petitioner had a compelling reason to testify in one case but to refrain from testifying in the others." Petitioner's claim must fail on the merits because he cannot make the required showing of actual prejudice.

In this case, the evidence presented at trial showed that the circumstances surrounding each of the incidents of sexual assault were substantially similar. Thus, the evidence established that a distinctive modus operandi was used. For example, each incident occurred in a white, four-door livery cab; in each case, the assailant waited until the victim was alone with him in the cab before driving to a deserted location in the Bronx; each of the attacks occurred late at night or in the early morning hours on a weekend; and in each case the assailant invited the victim to come home with him or in some other way attempted to make amends for having subjected her to sexual assault. As a consequence, evidence of each of the crimes was properly admissible as evidence of all the other crimes because, taken together, the evidence tended to show the identity of the perpetrator. See Matthews, 1999 WL 349694, at *4 (citing Fed.R.Evid. 404[b]); Alejandro v. Scully, 529 F. Supp. 650, 652 (S.D.N.Y. 1982) (finding that, since evidence of petitioner's commission of any of three rapes would have been admissible to prove petitioner was the perpetrator of the other rapes, petitioner was not prejudiced by adjudication of all three rapes at a single trial).

Moreover, it does not appear in this case that the jury was confused by the consolidation of the offenses or that it was improperly motivated by "spillover corroboration." See Herring, 11 F.3d at 378; Reed, 981 F. Supp. at 189. A review of the record reveals that the jury at petitioner's trial was instructed, on at least two separate occasions, to evaluate separately the evidence presented in connection with each of the offenses with which petitioner was charged. Thus, the trial judge stated:

Further, in [a] case such as this one, where we have four separate incidents, you must consider the question of whether the defendant's identity has been proven beyond a reasonable doubt, in each matter individually. You may not regard evidence of identity as cumulative. That is, you may not regard identification evidence on one case, as in any way proving identity on any other case, on the theory that because he is charged in several cases, he is more likely to have been correctly identified. That of course would be illogical, erroneous and unfair. . . . Further, because you must evaluate the identification evidence in each case individually, you are free to reach different conclusions on identity in the different matters.
Trial transcript ("Tr") 1142-1143. A few moments later, the trial judge instructed the jurors:

I remind you that you are actually presiding over four trials simultaneously, corresponding to the four complaining witnesses; that these four trials were conducted at a single proceeding, because of the obvious efficiencies. But you are still to regard these as four trials, requiring you to deliberate as to each complainant's case separately, and to render your verdict as to each case separately.
Tr. 1148. The jury appears to have followed these instructions and evaluated each count of the indictment separately. During deliberations, it requested the rereading of portions of the witnesses' testimony and asked to see certain exhibits which had been entered into evidence at trial. In addition, the jury acquitted petitioner of one count of rape but convicted him of the other three See e.g., Herring, 11 F.3d at 378 (finding that the jury's acquittal on one charge served to answer any claim that corroboration on that count improperly motivated the jury's verdict as to other charges).

Therefore, under the circumstances, it does not appear that a single trial of all the charges contained in the indictments resulted in actual prejudice to petitioner. Hence, the trial court's decision to consolidate the counts contained in the indictments and its denial of petitioner's pretrial motion to sever was not violative of petitioner's right to due process.

Petitioner has not presented clear and convincing evidence to this Court that rebuts the presumption of correctness accorded the trial court's finding of facts. Furthermore, the Court finds that the Appellate Division, in reviewing petitioner's conviction, applied the standard set forth in Lane in finding that petitioner was not prejudiced by the denial of his pretrial motion to sever.

Since the Appellate Division's determination was neither contrary to nor involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court, there is no basis upon which to grant petitioner habeas corpus relief on this claim. In like manner, because the Court finds that the Appellate Division's adjudication did not result in a decision that was premised on an unreasonable determination of the facts in light of the evidence presented in the trial court, petitioner's claim that he is entitled to habeas corpus relief because the trial court improperly consolidated the charges against him is without merit.

The Trial Court's Jury Instruction

A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553-54 (1991). This doctrine applies not only to direct review of state court judgments, but also to federal habeas corpus petitions See id.; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503-04 (1977). Recognizing that a reviewing court is often faced with ambiguities in ascertaining the bases for state court decisions, the Supreme Court established a conclusive presumption of federal jurisdiction unless the state court clearly and expressly states that its decision rests on independent state grounds.

[W]hen, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.
Coleman, 501 U.S. at 733, 111 S.Ct. at 2556 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476 [1983]). Although the Long presumption arose in the context of direct review, it was extended to federal habeas cases in Harris, 489 U.S. at 263, 109 S.Ct. at 1043. Therefore, in the habeas context, where a petitioner first presented his federal claims in state court, and the decision of the last state court to hear those claims "fairly appeared to rest primarily on resolution of those [federal] claims, or to be interwoven with those [federal] claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition." Coleman, 501 U.S. at 735, 111 S.Ct. at 2557. However, as emphasized by the Supreme Court, the Harris presumption does not apply unless the state court decision "fairly appear[s] to rest primarily on federal law or to be interwoven with federal law." Id. Accordingly, if a federal court has no "good reason to question whether there is an independent and adequate state ground for the decision, . . . [t]here is little need for a conclusive presumption." Id. at 739, 2559.

The Harris presumption does not apply in this case. It does not "fairly appear" that the New York courts relied primarily on federal law in disposing of Bridgewater's claim that he was deprived of due process and a fair trial by the trial court's jury charge concerning the evaluation of interested witness testimony. As stated earlier, Bridgewater challenged the adequacy of the trial court's jury instruction at the time of his appeal to the Appellate Division. The Appellate Division ruled that Bridgewater's claim was not preserved for appellate review because he had failed to raise a proper objection at trial. See Bridgewater, 242 A.D.2d at 492, 662 N.Y.S.2d 120, 121. The court stated further that "[w]ere we to review it, we would find that the instruction, when viewed as a whole, was appropriately neutral and conveyed the applicable legal principles." Id.

Under New York's Criminal Procedure Law, review of the merits of a claim is procedurally barred unless "a protest . . . was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." CPL § 470.05(2); see also Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999). Moreover, the Second Circuit has held that a state appellate court's refusal to review the merits of a claim because of a defendant's failure to comply with the state's contemporaneous objection rule constitutes an adequate and independent state ground that precludes federal habeas corpus review. See Garcia, 188 F.3d at 79; Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002). This is so even where, as here, the appellate court speaks to the merits of the claim in an alternative holding. See Garcia, 188 F.3d at 76, 77. Therefore, the appellate court's decision rested on a state law ground that was independent of the federal question raised by petitioner's trial court jury instruction claim and adequate to support the judgment.

The New York Court of Appeals denied petitioner leave to appeal the appellate court's decision without issuing an opinion, thereby creating the presumption that it adopted the judgment on the same grounds. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594 (1991). Accordingly, petitioner's claim that he was denied his right to due process and a fair trial by the trial court's jury instruction is barred from federal habeas corpus review.

The Supreme Court has stated that "[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. A fundamental miscarriage of justice occurs "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993). Petitioner has the burden of demonstrating that he is actually innocent by showing there is "a fair probability that . . . the trier of facts would have entertained a reasonable doubt of his guilt." Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 455 n. 17, 106 S.Ct. 2616, 2627 n. 17 [1986]).

Petitioner has not attempted to show cause for the default or prejudice resulting therefrom. Moreover, nothing in the record before the Court establishes that a fundamental miscarriage of justice would occur if petitioner's claim were not entertained by a federal court. Petitioner has not overcome the procedural default that has occurred with respect to this claim in his petition. Accordingly, the claim should be dismissed.

The Prosecutor's Remarks on Summation

As noted above, a federal court may not review a question of law decided by a state court if the state court's decision rested on an adequate and independent state law ground, whether substantive or procedural. See Coleman, 501 U.S. at 729, 111 S.Ct. at 2553-54. As with petitioner's challenge to the trial court's jury instruction, it does not "fairly appear" that the Appellate Division relied primarily on federal law in disposing of petitioner's claim that the prosecutor committed reversible error in his remarks on summation. The Appellate Division found that Bridgewater's claims "regarding various comments made by the prosecutor in summation," were not preserved for appellate review because he had failed to raise a proper objection at trial. Bridgewater, 242 A.D.2d at 491-492, 662 N.Y.S.2d 121. The court stated further that "[w]ere we to review [these claims], we would find that there was no pattern of inflammatory remarks or egregious conduct on the part of the prosecutor, and no basis for reversal." Id. at 492, 121. For the reasons outlined above, the appellate court's decision rested on a state law ground that was independent of the federal question raised by petitioner's claims regarding the prosecutor's remarks on summation and adequate to support the judgment.

The New York Court of Appeals denied petitioner leave to appeal from the Appellate Division's determination without issuing an opinion, thereby creating the presumption that it adopted the judgment on the same grounds. See Ylst, 501 U.S. at 803, 111 S.Ct. at 2594. Accordingly, petitioner's claim that he was denied his right to due process and a fair trial by the prosecutor's remarks on summation is barred from federal habeas corpus review.

Petitioner has not attempted to show cause for the default or prejudice to him, or that a fundamental miscarriage of justice would attend if this claim were not reviewed. Consequently, for the reasons outlined earlier, petitioner has not overcome the procedural default that has occurred with respect to this claim in his petition. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. Accordingly, the claim should be dismissed.

Excessive Sentence

Petitioner claims that he was denied due process during sentencing because he was "sentenced on the basis of materially untrue assumptions." Although petitioner does not elaborate on this claim in his application for habeas corpus relief, the brief submitted by him to the Appellate Division on direct appeal from the judgment of conviction contains the following statement: "[T]he court's imposition of nine, consecutive 8 1/3 to 25 year sentences . . . was unduly harsh in light of the circumstances of this case." Consequently, the Court understands petitioner's claim that he was denied due process during sentencing to assert that the sentence imposed on his conviction by the trial court was excessive.

"No federal constitutional issue is presented where . . . the sentence [imposed] is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir 1995); Alvarez v. Scully, 833 F. Supp. 1000, 1009 (S.D.N.Y. 1993). The maximum term of an indeterminate sentence for an individual who has committed a class B violent felony*fn7 must be at least five years and must not exceed twenty-five years. See N.Y. Penal Law §§ 70.02(1), (2)(a) and (3)(a). In the case at bar, although petitioner was sentenced to nine consecutive terms of imprisonment of eight and one-half to twenty-five years, the sentence imposed by the trial court was reduced to a term of imprisonment of twenty-five to fifty years, pursuant to N.Y. Penal Law § 70.30(c)(iii).*fn8 Petitioner's sentence of twenty-five to fifty years' imprisonment is thus within New York's sentencing limits for his offenses.

Since the sentence imposed is within the range prescribed by state law, the Court finds that no federal constitutional issue is presented by this claim for which petitioner is entitled to habeas corpus relief. Therefore, the claim should be dismissed.

In effective Assistance of Trial Counsel

Bridgewater's claim that he was deprived of the effective assistance of trial counsel was presented in his CPL § 440.10 motion. Under New York law, collateral review of a claim that could have been raised on direct appeal, but was not, despite a sufficient record, is procedurally barred. See CPL § 440.10(2)(c);*fn9 see also Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). At the time petitioner made his CPL § 440.10 motion, his conviction had been unanimously affirmed by the Appellate Division. Consequently, the trial court, pursuant to CPL § 440.10(2)(c), denied petitioner's motion to vacate the judgment of conviction, on the ground that the claim of ineffective assistance of counsel was "both meritless in substance and procedurally barred." The Second Circuit has held CPL § 440.10(2)(c) to be an adequate and independent state law procedural ground that bars an issue from federal habeas corpus review, absent a showing of cause and prejudice or a fundamental miscarriage of justice. See Reyes v. Keane, 118 F.3d 136, 138-139 (2d Cir. 1997); Levine v. Comm'r of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995); see also Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999). Therefore, the trial court's decision rested on a state law ground that was independent of the federal question raised by petitioner's ineffective assistance of counsel claim and adequate to support the judgment.

On July 1, 1999, the Appellate Division denied petitioner leave to appeal from the trial court's decision without issuing an opinion, thereby creating the presumption that it adopted the judgment on the same grounds. See Ylst, 501 U.S. at 803, 111 S.Ct. at 2594. Accordingly, petitioner's claim that he was deprived of the effective assistance of trial counsel is barred from federal habeas corpus review.

Petitioner has not attempted to show cause for the default or prejudice to him, or that a fundamental miscarriage of justice would attend if this claim were not reviewed. Consequently, for the reasons outlined earlier in this writing, petitioner has not overcome the procedural default that has occurred with respect to this claim in his petition. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. Accordingly, the claim should be dismissed.*fn10

IV. RECOMMENDATION

For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.

V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M Berman, 40 Centre Street, Room 210, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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