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March 21, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION To the Honorable Jed S. Rakoff United States District Judge
Wayne Haywood, currently in the custody of Shawangunk Correctional Facility, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Haywood was convicted in New York State Supreme Court, Bronx County, of Murder in the Second Degree and Conspiracy in the Second Degree (New York Penal Law §§ 125.25(1) and 105.15, respectively). For the following reasons, the petition should be denied.


On January 6, 1994, Haywood was arrested in connection with the December 14, 1993 murder of Lillian DeJesus in the Bronx. (O'Toole: H. 59, 67-68; Marrero: H. 327, 335).*fn1

A. Pre-Trial Suppression Hearing

The trial court conducted a Huntley hearing, see People v. Huntley, 15 N.Y.2d 72 (1965), that began on October 20, 1995 and continued through October 30, 1995. At the hearing, the court received testimony from Sergeant William O'Toole, Detective James Finnegan, Detective Joseph Miraglia, Detective James Smith, Detective Joseph Marrero, Detective David Negron and Detective Benny Tirado. Except where otherwise noted, the following facts — as testified to at the hearing by these investigating officers — are taken from the trial court's ruling on Haywood's motion to suppress the statements he made to the law enforcement officers.

Lillian DeJesus was shot and killed on December 14, 1993, at around 5:30 in the evening. See Decision and Order of Justice Ira. R. Globerman, dated November 13, 1996 ("Decision") (annexed to Affidavit in Opposition to Petition for Writ of Habeas Corpus, dated June 11, 2002 ("Aff. in Opposition"), Ex. 7), at 1. The subsequent investigation led to Jesus Ortiz, a young teenager who was picked up for questioning early in the morning of January 6, 1994. Id. at 2. During questioning by the police, Ortiz implicated himself, Jeffrey Rivera, Carlos Ocasio and Haywood in the murder. Id. Haywood was arrested at approximately 10:30 a.m. that morning and taken to the 48th Precinct. Id. Detective Smith advised Haywood of his Miranda rights, after which Haywood agreed to answer questions but denied any involvement in the shooting and, in fact, denied being present at the scene of the murder. Id. at 2-3. The interrogation ceased shortly thereafter. Id. at 3. Haywood, however, was kept at the precinct.

In the early afternoon of the same day, Rivera was arrested and identified Haywood as the person who shot DeJesus. Id. at 3. As a consequence of this identification, Sergeant O'Toole questioned Haywood around 2:30 p.m. but did not re-administer the Miranda warnings. Id. Haywood no longer denied being present at the scene of the crime and said, "I'll talk to you, but, I didn't kill anybody. I know I didn't pull the trigger." Id. at 4; see also O'Toole: H. 31-32. Later, around 9:45 in the evening of January 6, two lineups were held — one with Haywood and one with Rivera. Decision at 4. The eyewitness to the shooting, Maritza Osario, identified Rivera but not Haywood. Id.; see also Smith: H. 242; Memorandum of Law in Support of Petition for Writ of Habeas Corpus, filed February 5, 2002 ("Pet. Mem."), at 37. After the lineups, Haywood was returned to his cell as the detectives continued the investigation. Decision at 4.

Sergeant O'Toole and Detective Smith resumed questioning Haywood in the early morning of January 7, at which time Detective Smith re-administered the Miranda warnings. Id. at 4-5. Haywood again denied killing DeJesus. Id. at 5. Sergeant O'Toole then told him that "we have people who say you did," to which Haywood replied, "I'd like to talk to you, but I can't." Id. Sergeant O'Toole then asked him if he was afraid of Borys Diaz, another suspect the police had arrested. Id. Because Haywood "appeared surprised" at the mention of Diaz's name, the investigating officers told Haywood that Diaz was under arrest and showed Haywood that Diaz was in custody. Id.; see also Smith: H. 224. Haywood thereafter wrote out and signed two statements in which he admitted to being at the scene of the murder but again denied participation. Decision at 5-6. The second of the two statements was given at approximately 3:15 in the morning on January 7. (See Tr. 745). He also agreed to make a videotaped statement and in fact did so once the district attorney assigned to the case arrived at the precinct at 6:00 a.m. that morning. Decision at 6. Prior to making the videotaped statement Haywood was read the Miranda rights for a third time. Id. After Haywood made the final statement, he signed a "speedy arraignment" waiver and was kept at the precinct for an additional twelve hours — but apparently was not questioned further — before being taken to the Criminal Court building for arraignment. See id. at 7-8, 11 n. 2; see also Smith: H. 173-75, 261-62, 267-68; Stipulation: H. 363. The challenged written and videotaped statements were ultimately used by the prosecution at trial to show that Haywood was present at the murder scene and that he went there with Diaz and Rivera. Tr. 738-39, 744-45, 747; see also Pet. Mem. at 38.

Following the hearing, the trial court found that the "videotaped statement demonstrate[d] that it was not procured through the use of any physical or emotional coercion." Decision at 6. Based on the "credible testimony" of the investigating officers, id. at 1, the court found the delay in arraignment to have been justified because the detectives "believed that other individuals involved in the crime might still be at large" and, given the "considerable publicity" surrounding the case, "the detectives feared that news of the arrests might prompt any unapprehended participants to flee." Id. at 7. The trial court also found that the delay was not "prolonged to prevent the entry of counsel into the case" but rather was necessary to conduct the "complex, rapidly unfolding" investigation, find "fillers" for the lineups, and locate the eyewitness and bring her to the precinct where the lineups were held. Id. at 8-11. Further, the investigation was complicated by the arrest of Diaz, who had been "at large" for twelve hours subsequent to Haywood's arrest. Id. at 10. As the officers believed there were other unknown people involved in the murder, the investigation was "continued and broadened." Id. And lastly, the three hour delay between the written and videotaped statements was deemed justified by the fact that the district attorney who was to conduct the interrogation did not arrive at the precinct until 6:00 a.m. on January 7. Id. at 10-11. In any event, the court found this delay did not postpone the appointment of counsel as arraignments are not held in Bronx County between 1:00 a.m. and 9:00 a.m. Id. The court noted that, during the twenty-hour period he had been interrogated, Haywood had been fed twice, allowed the opportunity to sleep, and permitted to use the telephone. Id. at 5. The court concluded that the 20 hour period between the time of the defendant's arrest and his final statement was not calculated to exhaust the defendant, overbear his will or circumvent his right to counsel. This time was taken to conduct an active, ongoing investigation into a highly publicized contract murder that involved many witnesses and suspects. Id. at 11 (citation omitted).

The court was also satisfied that Haywood's waiver of his Miranda rights was knowing, intelligent and voluntary. Id. It was noted that Haywood had been arrested on three prior occasions and thus was not "unfamiliar" with the criminal investigation process. Id. As there was "absolutely no evidence to suggest that [Haywood's] will was overborne," the court found that the challenged statements were freely and voluntarily made after a knowing and intelligent waiver of Miranda rights. Id. at 12-13.

B. Evidence at Trial

Haywood's trial began on September 26, 1996 before a jury in Bronx County. The evidence showed that on December 14, 1993, Lillian DeJesus was shot and killed as she and two others, Dilenia Abreu and Christopher Demma, were leaving work at Promesa, a Bronx-based substance abuse rehabilitation facility. (Abreu: Tr. 125-26; 142-49; Demma: Tr. 257-260). Abreu testified that she saw a young black male and a young Hispanic male, about age 16 or 17, standing across the street prior to the shooting; the black male gave a hand motion to the Hispanic male and they began moving away. (Abreu: Tr. 144-47, 166-68). Neither she nor Demma saw the person who shot DeJesus. (Abreu: Tr. 181-82; Demma: Tr. 260-61). Around this time, Maritza Osario, a young woman who lived in the area, noticed two teenagers run "in a crouched position" between cars toward the parking lot. (Osario: Tr. 600-01). When they neared DeJesus one of them — who she described as a male Hispanic and later identified in a lineup as Jeffrey Rivera — fired one shot at close range, killing DeJesus. Id. at 609, 612, 635-36, 653. Promesa employee Elizabeth Jimenez testified that "one to five minutes" after DeJesus was shot, she saw two youths wearing hooded sweatshirts "hopping running" westbound. (Jimenez: Tr. 212-14, 235-36, 245-47).

The prosecution provided evidence that the murder had been arranged by Diaz, a co-worker of DeJesus. DeJesus was the Chief Financial Officer at Promesa and had discovered a $57,000 discrepancy in the books of the Third Party Reimbursement Unit — the unit responsible for distributing "walk around money" to the recovering addicts who were clients at Promesa. Diaz worked in that unit, where his duties included handling cash. (Abreu: Tr. 125-27, 133-35; Jimenez: Tr. 206-08; Knowles: Tr. 279-82, 286).

To support this theory, the prosecution introduced evidence that on November 18, 1993 — one month before the murder — someone shot at and missed DeJesus as she was leaving work with two Promesa employees. (Abreu: Tr. 135-37, 139-42). Ortiz testified that after this first attempt Ocasio — Rivera's brother and a person with whom Ortiz had been friends for many years — told him that he (Ocasio) had shot at "some lady" at Promesa and that he had been "put [] up to it" by "some guy name Borys." (Ortiz: Tr. 457-58, 462-63, 496). Ortiz further testified that Ocasio told him that he (Ocasio) "was gonna go kill the lady from Promesa" because she owed Diaz $57,000 and that he was going to be paid $1,000 for the killing. Id. at 466. Ocasio offered Ortiz an undisclosed amount of money to serve as "look out" for the cops, id. at 467, 471, 540-41, 544, 549-50, an offer that Ortiz accepted without thinking. See id. at 467.

Ortiz further testified that at 4:00 in the afternoon on December 14, 1993, he, Rivera and Ocasio went "up the block" to meet with Diaz. Id. at 471-73. When they arrived at 138th Street and Cypress Avenue, Haywood was there by himself. Id. at 474. Haywood told them that he (Haywood) was going to "kill the lady," for which he was going to be paid five thousand dollars. Id. at 475-76. At this point, Diaz pulled up in a "black Pathfinder" jeep and called them over. Id. at 476. The four youths got into the jeep, with Ortiz, Ocasio and Rivera sitting in the back while Haywood sat next to Diaz in the front. Id. at 476-77. Diaz said "you got to kill the lady" and passed a black pistol to Haywood. Id. at 477. At this point, Ortiz said he was not going to go along and Diaz ordered him and Ocasio out of the jeep. Id. at 478, 550-51. Diaz then drove off with Rivera and Haywood. Id. at 479.

Ortiz testified that the jeep returned later that day and that Diaz was alone. Id. Later, Rivera and Haywood returned in a taxi, after which Rivera took out the gun and put it in the back of the jeep. Id. at 480-81. Ortiz saw Diaz give Haywood $100 and Rivera $50. Id. at 481. Ortiz testified that a day or two after the murder Haywood told him that he (Haywood) had shot DeJesus, id. at 482, 555 — an admission contrary to Osario's eyewitness identification and Rivera's subsequent confession. On cross-examination, Ortiz admitted that he initially had lied to the police and district attorney about various matters, including a statement made when he was first arrested that he saw Haywood shoot DeJesus. Id. at 543, 553-55.

Haywood testified in his own defense. He testified that on the afternoon of December 14, 1993, he was standing in front of his home when Diaz and Rivera pulled up in Diaz's car. (Haywood: Tr. 842-43). Diaz asked Haywood if he wanted to go buy some marijuana. Id. at 843. After buying the marijuana, the three drove around smoking the marijuana and talking about girls. Id. at 848-49. At 179th Street and Boston Road, Diaz handed Rivera a gun. Id. At this point Haywood said he would have "nothing to do with the situation" and got out of the jeep and began walking away from the scene. Id. at 849. As he was walking away, he heard a shot and started running. Id. Although Haywood had previously told the police that he saw Rivera shoot DeJesus, he claimed the detectives coerced him into making the statement. Id. at 853-54, 1039-40, 1044, 1051-58.

Rivera was called to testify by the defense. When questioned, however, he asserted his Fifth Amendment privilege and refused to testify. (Rivera: Tr. 831-37).

C. Verdict and Sentence

On October 11, 1996, the jury convicted Haywood of one count of Murder in the Second Degree, N.Y. Penal Law § 125.25(1), and one count of Conspiracy in the Second Degree, N.Y. Penal Law § 105.15. (Tr. 1334). On December 3, 1996, the court sentenced him to concurrent terms of 25 years to life for the murder conviction and 8-1/3 to 25 years for the conspiracy conviction. (S. 21).

D. Appeal

Haywood appealed his conviction to the Appellate Division, First Department raising the following claims: (1) the police intentionally and unnecessarily delayed his arraignment in order to question him without counsel present; (2) the trial court improperly ruled that Haywood's exercise of a peremptory challenge was unlawful under Batson v. Kentucky, 476 U.S. 79 (1986); (3) Haywood was denied his right to be present during the Batson hearing and when his counsel exercised peremptory challenges; (4) the prosecution's introduction of hearsay statements at trial violated the hearsay rule and deprived Haywood of the right to confront and cross examine witnesses; (5) the trial court erroneously altered its Sandoval ruling in the middle of Haywood's testimony at trial; and (6) Haywood's sentence was excessive. See generally Brief for Defendant-Appellant, dated March 8, 2000 (reproduced in Aff. in Opposition, Ex. 1).

On February 6, 2001, the Appellate Division affirmed Haywood's conviction and sentence, addressing the merits of all the claims. People v. Haywood, 280 A.D.2d 282 (1st Dep't 2001). As for the first claim, the Appellate Division found that the delay in arraignment was reasonable under the circumstances and did not render Haywood's statements involuntary or cause his right to counsel to attach:

The approximately 20-hour delay between the time of defendant's arrest and his final statement was not extraordinary and was explained by the fact that the police needed to continue the investigation in an effort to unravel the conflicting accounts of what had transpired. Moreover, a considerable period of time was devoted to arranging and conducting lineups. The investigation concerning defendant's participation in the crime was intertwined with that involving the codefendants. The additional delay in arraignment that occurred after defendant made his last statement had no bearing on its voluntariness, and was reasonable in any event.
Id. at 282 (citations omitted). In rejecting the claim that the trial court ruled incorrectly on the Batson challenge, the court noted that the trial court's finding of pretext was "supported by the record and is entitled to great deference on appeal because a trial court is in a unique position to determine the credibility of an attorney's assertion that a challenge is not race-based." Id. With respect to the presence-at-trial claim, the Appellate Division held that Haywood was not entitled to be present during the peremptory challenges and the Batson hearing because his attorney "was only performing the ministerial task of exercising the peremptory challenges to which defendant had agreed" and the proceedings did not involve "factual matters about which defendant might have peculiar knowledge." Id. at 282-83 (quotation and citation omitted). As for the hearsay challenge, the court agreed with the trial judge and concluded that the evidence "was admissible under the coconspirators and the declarations against penal interest exceptions." Id. at 283. As for the remaining two claims, the Appellate Division concluded that the trial court "properly modified" its Sandoval ruling as Haywood had "opened the door" on the issue and that there was "no basis" for reduction of the sentence imposed. Id.

By letter dated February 21, 2001, Haywood sought leave to appeal to the New York Court of Appeals. See Application for Leave to Appeal, dated February 21, 2001 ("Letter App.") (reproduced in Aff. in Opposition, Ex. 4). Haywood raised all of the issues raised in his appeal to the Appellate Division, except for the Sandoval and excessive sentence issues. See id. On October 2, 2001, the New York Court of Appeals denied Haywood's motion for leave to appeal. People v. Haywood, 97 N.Y.2d 641 (2001).

E. The Habeas Petition

On February 5, 2002, Haywood filed the instant petition for a writ of habeas corpus. See Petition for a Writ of Habeas Corpus by a Person in State Custody, dated January 29, 2002. In this petition he raises the same four claims raised in his letter application to the New York Court of Appeals.


A. Applicable Law

Habeas corpus relief is available if the petitioner is in custody in violation of the Constitution or laws or treaties of the United States, 28 U.S.C. § 2254(a), provided that the petitioner has exhausted the remedies available in the state courts or there is an absence of available state corrective process or circumstances exist rendering such process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b). To satisfy the exhaustion requirement, a petitioner must present the substance of any federal constitutional claim raised in the federal petition to the highest court of the relevant state. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001). The respondent concedes that Haywood has presented the substance of his federal claims to the highest state court in New York. See Aff. in Opposition at ¶¶ 7-8.

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, federal courts must defer to the state court determination of a habeas petitioner's federal claims on the merits. A state court ruling is "on the merits" even where the ruling does not discuss the federal claim or any federal law in its opinion adjudicating the state law conviction. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); see also id. at 311 ("Nothing in the phrase `adjudicated on the merits' requires the state court to have explained its reasoning process."). All that is required to trigger the statutory standard of review is the issuance of "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Id. at 311. The Appellate Division ruled on the merits of each claim Haywood raises in his habeas petition. See Haywood, 280 A.D.2d at 282-83.

Where there has been a ruling on the merits, habeas relief may not be granted unless the state court decision 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 proceeding." 28 U.S.C. § 2254(d). Moreover, a state court determination of a factual issue is "presumed" to be correct and that presumption may be rebutted only "by clear and convincing evidence." Id. at § 2254(e)(1).

A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The "unreasonable application" clause is implicated if the state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413. The federal habeas court must decide "whether the state court's application of clearly established federal law was objectively unreasonable" — not whether the application was simply incorrect. Id. at 409-10. Because "an unreasonable application of federal law is different from an incorrect or erroneous application of federal law," id. at 412 (emphasis in original), there must be "some additional increment of incorrectness such that it may be said to be unreasonable." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001) (citation omitted), cert. denied, 535 U.S. 1019 (2002).

Each of Haywood's four claims is discussed separately.

B. Batson Claim

1. The Trial Court's Batson Determination

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court set forth a "three-part test trial courts are to employ when evaluating whether a party exercised a peremptory challenge in a discriminatory manner." Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001). As summarized in Galarza, the process consists of three steps:

[Step 1:] First, a trial court must decide whether the party challenging the strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race. Such a prima facie case may be established, for example, by showing a pattern of strikes against minority prospective jurors. . . .
[Step 2:] If the party making the Batson challenge establishes a prima facie case, the trial court must require the non-moving party to proffer a race-neutral explanation for striking the potential juror. This second step does not require the party to give an explanation that is persuasive or even plausible.
[Step 3:] Finally, if the non-moving party proffers a race-neutral explanation, the trial court must determine whether the moving party has carried his or her burden of proving that the strike was motivated by purposeful discrimination.
Id. at 636 (citations omitted) (emphasis in original); accord Miller-El v. Cockrell, 123 S.Ct. 1029, 1035 (2003).

The Second Circuit has noted that at the third stage of the Batson challenge:

a court must "make an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances." Galarza v. Keane, 252 F.3d 630, 636 (2d Cir. 2001) (quoting Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000) (internal quotation marks omitted)). "We have repeatedly emphasized that a trial court may not deny a Batson motion without determining whether it credits the race-neutral explanations for the challenged peremptory strikes." Galarza, 252 F.3d at 636. "The credibility of an attorney offering a race-neutral explanation is at the very heart of [the Batson] analysis." Barnes[v. Anderson], 202 F.3d [150,] 157 [2d Cir. 1999].
United States v. Thomas, 303 F.3d 138, 144 (2d Cir. 2002) (some brackets added).

In Haywood's case, after the first two rounds of voir dire examination, the prosecution objected that Haywood's counsel peremptorily challenged the only three white jurors of the 31 jurors available during the first two rounds of selection: Jurors Schnepf, Stevens and Zambardi.*fn2 (V. 282-84). The trial court found that "a pattern of discriminatory striking has been demonstrated by the People" and then ordered defense counsel to explain why the three jurors had been challenged. Id. at 284. As for Juror Zambardi, defense counsel told the court that he was challenged because he "sat on the grand jury, he has close friends in the police department, he sat on a prior criminal case, went to verdict." Id. Defense counsel also told the court that "I conferred with my client as to Mr. Schnepf, and he didn't like his demeanor. It had nothing to do with his racial complexion, he was a veteran. That's all I can recall at this time as to the reasons that we exercised a perempt as to Mr. Schnepf." Id. at 285. The trial court then ruled

With respect to Mr. Schnepf, I will accept this once, the defendant's feeling that in looking at Mr. Schnepf or observing Mr. Schnepf, Mr. Schnepf made him uncomfortable. And I will accept that reason this once as a racially neutral explanation for a peremptory challenge. As the People pointed out Mr. Zambardi, a person who had been challenged, another person who also served on the grand jury. I will accept the ...

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