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United States District Court, Southern District of New York

April 16, 2003


The opinion of the court was delivered by: Andrew J. Peck, Magistrate Judge.


Pro se petitioner Harvey Roberts seeks a writ of habeas corpus from his 1998 convictions in Supreme Court, New York County, of third degree criminal possession of a controlled substance and third degree criminal sale of a controlled substance, for which he was sentenced to concurrent terms of six to twelve years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.) Roberts' petition alleges that the trial court violated his Fourteenth Amendment right to a fair trial by allowing the prosecutor to make comments in summation that "shifted the burden of proof" and "mis-characterized the defense evidence, and arguments." (Pet. ¶ 13.) Roberts further alleges that there was no probable cause for his arrest. (Pet. ¶ 13.)

For the reasons set forth below, Roberts' petition should be DENIED.


On November 25, 1997, Harvey Roberts and Hawkins Freeman were arrested by Officer Aubrey Pegram, an undercover officer in the Thirty-Second Precinct Street Narcotics Enforcement Unit ("SNEU"). (Dkt. No. 10:3/23/98 Suppression Hearing Transcript ["H."] 6, 7, 10.) Officer Pegram had observed Roberts and Freeman engaging in what he determined to be "street level narcotics sales" on West 127th Street between Lenox and Fifth Avenues in Manhattan. (Pegram: H. 10-11, 16-17, 26-29, 57-60, 63.)

Suppression Hearing

A Wade/Mapp*fn1 suppression hearing was held on March 23, 1998. Roberts moved to suppress identification testimony by Officer Pegram and physical evidence recovered at the time of Roberts' and Freeman's arrest, arguing that "[t]here was no probable cause to believe that Mr. Roberts had engaged in any criminal activity at the time the observations were made by the officer or at the time that Mr. Roberts was apprehended." (H. 84.)

Officer Pegram testified at the hearing that on November 25, 1993 he was assigned to watch for narcotics activity from an observation post on the roof of a seven-story building on West 127th Street. (Pegram: H. 8-10, 25-26.) Officer Pegram used binoculars to survey the area (Pegram: H. 15-16), and at approximately 4:30 pm, he began observing Roberts and Freeman standing on the stairs of 51 West 127th Street, 350 feet from his observation post (Pegram: H. 11, 16, 26-27, 29, 52). At 4:50 pm, Officer Pegram saw a woman approach Freeman, speak briefly with him, and hand money to him. (Pegram: H. 11-12, 57-58, 61-64.) Freeman walked to the far eastern corner of an adjacent vacant lot. (Pegram: H. 12-13, 55, 64-67.) Freeman "lift[ed] up something that [Officer Pegram] later found out was a rug" (Pegram: H. 13, 33), picked up an object from underneath it, and returned to the street where he handed the object to the woman (Pegram: H. 13, 67-68). Approximately four minutes later, Officer Pegram observed virtually identical transactions between Roberts and two successive buyers. (Pegram: H. 13-15, 27, 30-38, 70-72.)

Based on the three transactions, Officer Pegram, who had participated in "[h]undreds" of similar surveillance activities and had received significant training in street level drug transactions (Pegram: H. 9-10), determined that Roberts and Freeman "were transacting drugs to individuals that were coming up to them" (Pegram: H. 17). After each transaction, Officer Pegram made a radio transmission to his "apprehension" team with a description of Roberts, Freeman and the "buyers," but none of the buyers were apprehended. (Pegram: H. 17-18, 35-36, 38-40, 45-48, 68-69, 73-76.)

A few minutes after the conclusion of the third transaction, Officer Pegram observed Roberts and Freeman enter a blue Honda and drive away. (Pegram: H. 18, 76-77.) Officer Pegram immediately radioed the apprehension team with the car's description and license plate number, and team members pulled over the car. (Pegram: H. 18-20, 76-78.) Roberts and Freeman were detained until Officer Pegram could arrive from his observation post and identify them, which he did. (Pegram: H. 20, 39-41, 43-48, 78-79.)

Based on his positive identification of Roberts and Freeman as the men he had observed selling drugs on 127th Street, Officer Pegram arrested and frisked them for weapons. (Pegram: H. 20-21, 40-48, 72, 78-80.) Officers recovered $13 and a beeper from Roberts and $1412 in small denominations from Freeman. (Pegram: H. 21, 48-49, 80-81.)

Neither Roberts nor Freeman presented any evidence at the suppression hearing. (H. 83.) At the close of the hearing, Roberts and Freeman moved to have Officer Pegram's identification testimony and the physical evidence suppressed as fruit of an arrest that lacked probable cause. (H. 83-84.) The court found that Officer Pegram was a "credible officer" (H. 85) and concluded that "the activity of the officer was lawful in all respects. [The officers] had the right to stop the defendants and after the identification to search the defendants and retrieve the money" (H. 89). Based on these findings, the court denied Roberts' motions to suppress the physical evidence and the identification. (Id.)

Roberts' Trial and Sentencing

Roberts and Freeman were tried before Justice John Stackhouse and a jury in Supreme Court, New York County. Roberts did not present any evidence in his defense, while two witnesses testified on behalf Freeman, as did Freeman himself. (Dkt. No. 11: Trial Transcript ["Tr."] 847-54, 859, 878-79, 918.)

During the prosecutor's closing arguments, the Court permitted certain comments by the prosecutor over the objection of Freeman's counsel; Roberts' counsel did not object. The prosecutor said, "[n]ow, [Freeman's counsel] . . . said to you in her opening that if this were a simple open and shut case we wouldn't be here today. Well, one of the defendant's [sic] most basic rights under the Constitution is the right to a fair trial no matter how guilty they are." (Prosecutor's Summation: Tr. 1000.) Freeman's objection was overruled. (Tr. 1000.) The prosecutor also stated that "[t]his case all boils down to one thing. Either you believe Officer Pegram and his testimony or you believe the Defense witnesses" (Tr. 1001), and again Freeman's objection was overruled (id.). The prosecutor further explained to the jury that "if you believe Officer Pegram's testimony, then that is proof beyond a reasonable doubt; and you have a duty to follow the law and to find these defendants guilty," but conversely if the jury believed Freeman's story about where he got the money, with all its inconsistencies, then the jury should find the defendants not guilty. (Tr. 1001-02.) Neither defense counsel objected. (Id.)

The prosecutor argued, "[n]ow, [Roberts' counsel] suggested to you that the police concocted a scenario. They came up with a whole scenario. The police didn't come up with any scenario. They didn't create anything. . . . It's not a big scenario created by anyone except the defendants." (Tr. 1003.) Neither defense counsel objected. (Id.) Later, the prosecutor added: "I submit that what you heard from the Defense was absurd in all aspects. In fact, I would call it an insult to your intelligence." (Tr. 1004.) Again, there were no objections. (Id.)

The prosecutor pointed out that Freeman's counsel in her opening promised an explanation for why Freeman had $1412 in his pocket when arrested, and added that "this is the most important thing for the Defense to explain because people don't walk around" (Tr. 1006), Freeman's counsel's objection was sustained:

[Freeman's Counsel]: Objection. That's burden shifting, your honor. The defense doesn't have to explain anything.
THE COURT: Correct. The Defense does not have to explain anything.

(Tr. 1006.) A few minutes later, the prosecutor admitted that Freeman's counsel was right:

[Freeman's Counsel] is right. They have no burden in this case. [Freeman] didn't have to take that stand.
But once he got on that stand, he puts his credibility on the line and you have to evaluate it. That's your job.
(Tr. 1011.)

The prosecutor further told the jurors that the evidence presented by the defense had limited the issues they were required to determine: "[w]ell, the most important thing the defendant did was eliminate the defense of mistake. Eliminated the defense that Officer Pegram simply made a mistake. He narrowed the issues for you. It is about which side you believe." (Tr. 1015.) Freeman's counsel objected that this was "burden shifting," but the trial judge found it referred to credibility and so overruled the objection. (Tr. 1015.) The prosecutor explained, "[i]t's all about which side you believe because you can't reconcile the two sides. . . . It's one or the other. You either believe one or you believe the other." (Tr. 1016-17.)

The prosecutor told the jury that not apprehending the buyers did not change the prosecution's case.*fn2 (Tr. 1023.) In fact, she explained, "[t]he Legislature has created a law for exactly this type of case. It's called possession with intent to sell." (Tr. 1024.) The trial judge sustained Freeman's counsel's objection, stating that "[t]he Legislature didn't have this particular case in mind. The jury will disregard that." (Tr. 1024-25.) However, the prosecutor continued: "[t]he law of possession with intent to sell addresses exactly this kind of case." (Tr. 1025.) Defense counsel did not object. (Id.) Finally, the prosecution appealed to the jurors to convict the defendants by saying, "Officer Pegram did the right thing. And so should you." (Tr. 1025.) Again, neither defense counsel objected. (Id.)

In sum, Roberts' counsel did not object at all during the prosecution's summation. (See generally Tr. 999-1026.)

Following the prosecution's summation, Freeman's counsel moved for a mistrial based upon the prosecutor's statements during summation, which she characterized as "pure burden shifting." (Tr. 1026-27.) The trial judge denied the motion, finding the prosecution's summation to have been "fair comment based on the nature of the evidence. This case is entirely an issue of credibility. They either believe your client, your client's witnesses, or they believe the police officer." (Tr. 1027-29.) Roberts' counsel did not object to any comments made during summation or move for mistrial based on those statements. (See generally Tr. 1026-30.)

On June 17, 1998, the jury found Roberts and Freeman guilty of the only count charged, criminal possession of a controlled substance in the third degree. (Tr. 1109-12.)

At sentencing, on July 21, 1998, the judge denied Roberts' pro se motion to set aside the verdict. (Dkt. No. 11: Sentencing Transcript ["S."] 3-4.) Roberts pleaded guilty to third degree criminal sale of a controlled substance in an unrelated case pursuant to a plea agreement that he would receive concurrent sentences. (S. 5-11.) Roberts was adjudicated a predicate felon (S. 12-13), and sentenced to concurrent terms of six to twelve years imprisonment. (S. 14-16).

Roberts' Direct State Appeal

On or about December 20, 1999, represented by new, appointed counsel, Roberts appealed his convictions to the First Department. (Ex. A: Roberts 1st Dep't Br.)*fn3 The sole argument advanced in counsel's brief was that Roberts was denied his right to a fair trial by the prosecutor's "court-approved comments" during summation, which Roberts alleged "shifted the burden of proof" and "mischaracterized the defense evidence":

[A]lthough [Roberts] did not present witnesses or rely on co-defendant's witnesses during summation, and mistaken identification or mistaken conclusion were defenses in the case, the prosecutor, shifted the burden to [Roberts] to win the credibility contest, and mischaracterized the defense evidence and arguments. These comments, legitimized by the court, and combined with other improper comments by the prosecutor, denied [Roberts] a fair trial.
(Roberts 1st Dep't Br. at 11-12.)

In a pro se supplemental brief, Roberts argued that the police lacked probable cause to arrest and detain him. (Ex. B: Roberts Pro Se 1st Dep't Supp. Br. at 3-6.) Roberts claimed that the court's ruling in the pre-trial suppression hearing was erroneous because "there were no narcotics observed and no testimony offered that the objects exchanged by [Roberts] were recognized as drugs or a known type of drug packaging which can be deemed a hallmark of an illicit drug exchange." (Id. at 5.) He further argued that if the three transactions observed by Officer Pegram created a reasonable suspicion of criminality, that suspicion was not elevated to probable cause sufficient for arrest because "no flight from the police had happened, nor was the location that [Roberts] allegedly made the transactions classified as a drug-prone location." (Id. at 5-6.)

On October 10, 2000, the First Department unanimously affirmed Roberts' conviction:

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks, when viewed in context, were proper responses to defense arguments and that they did not deprive defendant of a fair trial.
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.
People v. Roberts, 276 A.D.2d 291, 292, 714 N.Y.S.2d 208, 209 (1st Dep't 2000) (citations omitted).

On December 29, 2000, the New York Court of Appeals denied leave to appeal. People v. Roberts, 95 N.Y.2d 968, 722 N.Y.S.2d 486 (2000).

Roberts' Federal Habeas Petition

Roberts' timely-filed pro se habeas corpus petition asserts that "[t]he Prosecutor's Court-approved comments during the summation, shifted the burden of proof, mis-characterized the defense evidence, and arguments, [and] thus denied [Roberts] a fair trial," in violation of the Fourteenth Amendment. (Dkt. No. 1: Pet. ¶ 13.) Roberts' habeas petition further alleges that the "Court erred in allowing detention and subsequent arrest of [petitioner], where the evidence was insufficient to establish probable cause to arrest or detain [him]." (Pet. ¶ 13.)


Roberts argues that the police lacked adequate probable cause to arrest and detain him (Dkt. No. 1: Pet. ¶ 13), in violation of his Fourth Amendment rights.

Roberts' Fourth Amendment claim must be assessed by reference to the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), which precludes habeas review of Fourth Amendment claims that have been litigated in state court:

[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.
Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53 (1976) (fns. omitted).*fn4

The Second Circuit, sitting en banc, has concluded that Stone v. Powell permits federal habeas review of exclusionary rule contentions only in limited circumstances:

If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted.
Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (citations omitted), cert. denied, 434 U.S. 1038, 98 S.Ct. 775 (1978).*fn5

Here, Roberts litigated his Fourth Amendment claim at the pretrial suppression hearing and on direct appeal to the First Department. (See pages 2-4, 8-9 above.) Thus, state corrective process was not only available but was employed for Roberts' Fourth Amendment claims, which therefore cannot support a petition for a writ of habeas corpus. See, e.g., Gandarilla v. Artuz, 322 F.3d 182, 185 (2d Cir. 2003) ("[T]he merits of a Fourth Amendment challenge are not reviewable in a federal habeas proceeding if a defendant has had a fair opportunity to litigate that question in State court . . ."); Graham v. Costello, 299 F.3d at 134 ("[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the [state] court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief."); Blagrove v. Mantello, No. 95-2821, 104 F.3d 350 (table), 1996 WL 537921 at *2 (2d Cir. Sept. 24, 1996) (where defendant's "Fourth Amendment issues were raised before the trial court in the suppression hearing and before the Appellate Division in [his] pro se brief" defendant's "Fourth Amendment argument is barred [from federal habeas review] because the issue was fully and fairly litigated in the state courts."); Capellan v. Riley, 975 F.2d at 70 & n. 1 (noting that "the `federal courts have approved New York's procedure for litigating Fourth Amendment claims. . . .'"); McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983) (New York's procedure for litigating a Fourth Amendment claim in a criminal trial complied with requirement that state provide an opportunity to litigate such claims); Fayton v. Goord, 01 Civ. 2912, 2001 WL 694573 at *1 (S.D.N.Y. June 18, 2001) ("Since this petition is based on a fully and fairly litigated Fourth Amendment claim . . . such relief cannot be granted.") (Knapp, D.J.).*fn6

Roberts' claim that the police lacked probable cause to arrest him is a Fourth Amendment claim that is not cognizable on habeas review. E.g., Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986) (Even where state conceded that petitioner's arrest lacked probable cause, petitioner's claim that his post-arrest questioning was fruit of the illegal arrest was barred because New York "clearly provided" petitioner with "an opportunity fully and fairly to litigate" the Fourth Amendment claim.); Chavis v. Henderson, 638 F.2d 534, 538 (2d Cir. 1980) (Petitioner's claim "that his arrest was without probable cause and that therefore the identification evidence should have been excluded, was properly rejected by the district court. [Petitioner] made no showing . . . that he had been precluded from a full and fair opportunity to litigate this issue in the state courts. Under Stone v. Powell . . ., he may not urge the same grounds for federal habeas corpus relief."); Roberson v. McGinnis, 2000 WL 378029 at *5 (Under Stone v. Powell, the Court was precluded from reviewing petitioner's claim that his conviction was based on his confession and the identification testimony obtained as a result of his unlawful arrest. Petitioner had the opportunity to fully and fairly litigate this Fourth Amendment claim during his pretrial suppressing hearing and First Department appeal.); see, e.g., Pina v. Kuhlmann, 239 F. Supp.2d 285, 289 (E.D.N.Y. 2003) (Habeas review unavailable for petitioner's claim that since the police lacked probable cause to arrest him, his post-arrest statements should have been suppressed. "It is well settled that such claims are not cognizable for habeas corpus review where the State has provided a full and fair opportunity to litigate this issue."); Manning v. Strack, No. CV 99-3874, 2002 WL 31780175 at *4 (E.D.N.Y. Oct. 11, 2002) (Raggi, D.J.) ("Stone v. Powell prohibits habeas review of [petitioner's] Fourth Amendment claim" that "he was arrested without probable cause" and that his "identifications and . . . statements should have been suppressed as the fruits of this unlawful arrest." Petitioner "was afforded a full evidentiary hearing on his arrest challenge, as well as one appeal of right and one opportunity to move for leave to appeal."); Senor v. Greiner, No. 00-CV-5673, 2002 WL 31102612 at *10-11 (E.D.N.Y. Sept. 18, 2002) (Habeas claim barred where petitioner argued that he was arrested without probable cause and lineup identifications therefore should have been suppressed. Petitioner "cannot claim that the state lacked sufficient procedures for redress of his Fourth Amendment claims because the courts in this circuit have expressly approved New York's procedure for litigating such claims . . ." nor has petitioner "alleged that an unconscionable breakdown in the process occurred."); Bilbrew v. Garvin, No. 97-CV-1422, 2001 WL 91620 at *4-5 (E.D.N.Y. Jan. 10, 2001) (Where petitioner "was not denied the opportunity to litigate his Fourth Amendment claims in the state courts, [the habeas court] will not consider" petitioner's claims "that his statements to the police and the station house identifications of him should have been suppressed as `fruits' of an unlawful arrest. . . . made without probable cause."); Ortiz v. Artuz, 113 F. Supp.2d 327, 335-36 (E.D.N.Y. Sept. 8, 2000) ("Petitioner argue[d] that he was arrested without probable cause in violation of the Fourth Amendment and that his pretrial statement and the identification procedure should have been suppressed as the fruit of the illegal arrest." Because "[t]he hearing court conducted a reasoned inquiry into petitioner's claim and determined that there was probable cause for his arrest, and the Appellate Division affirmed on the merits. . . . petitioner's Fourth Amendment claim is unreviewable by this Court.").*fn7

Moreover, in any event, the police clearly had probable cause to arrest Roberts. Officer Pegram, using binoculars, observed Roberts and Freeman engage in what based on his experience he determined were three drug transactions, radioed a description and license plate number of their car to the apprehension team, and then identified Roberts and Freeman once they had been detained. (See pages 2-4 above.) This sequence of events clearly gave the police probable cause to arrest Roberts. See, e.g., People v. Martinez, 289 A.D.2d 125, 125, 735 N.Y.S.2d 502, 502-03 (1st Dep't 2001) ("In this observation sale case, probable cause was established by the arresting officer's testimony that he acted in response to information received from the observing officer, who radioed that he had seen a drug transaction and provided defendant's location and a detailed, specific description."), appeal denied, 98 N.Y.2d 653, 745 N.Y.S.2d 512 (2002); People v. Lennon, 223 A.D.2d 403, 403, 636 N.Y.S.2d 334, 335 (1st Dep't) ("Testimony at the suppression hearing that an officer using high-powered binoculars saw defendant exchanging a glassine envelope for currency established probable cause."), appeal denied, 87 N.Y.2d 1021, 644 N.Y.S.2d 155 (1996); People v. Little, 204 A.D.2d 351, 352, 611 N.Y.S.2d 600, 601 (2d Dep't) ("The testimony of an experienced narcotics police officer concerning his observation [with binoculars] of the multiple exchanges . . ., which he reasonably believed to be drug transactions, was sufficient to provide probable cause for the defendant's arrest."), appeal denied, 83 N.Y.2d 1005, 616 N.Y.S.2d 486 (1994).

Accordingly, because Roberts was given a full and fair opportunity to litigate the Fourth Amendment claim, Roberts' claim (which, in any event, lacks merit) is not cognizable on habeas review.

Roberts failed to object to the prosecutor's statements during summation or move for a mistrial. (See pages 6-7 above.) The First Department held that Roberts' claim challenging the prosecutor's summation was unpreserved. (See page 9 above.) Since the First Department decision was based on adequate and independent state law grounds, Roberts' prosecutorial misconduct claim is barred from federal habeas review.

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations & internal quotations omitted); see also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S.Ct. 851, 860-61 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Murray v. Carrier, 477 U.S. 478, 485-88, 496, 106 S.Ct. 2639, 2644-45, 2649-50 (1986); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999); Reyes v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must `clearly and expressly state [] that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Garcia v. Lewis, 188 F.3d at 77-82; Glenn v. Bartlett, 98 F.3d at 724-25; see also, e.g., Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.

With respect to Roberts' summation claim, the First Department held:

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks, when viewed in context, were proper responses to defense arguments and that they did not deprive defendant of a fair trial.
People v. Roberts, 276 A.D.2d 291, 292, 714 N.Y.S.2d 208, 209 (1st Dep't 2000) (citations omitted).

State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.
Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559.

Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review, see, e.g., Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) ("We have found a state court's reliance on a state procedural bar to be ambiguous, and thus refused to invoke a procedural bar, where . . . the state court rejected defendant's claims on appeal as `either meritless or unpreserved.'"); Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992), here the First Department explicitly stated that it found Roberts' claim to be unpreserved, People v. Roberts, 276 A.D.2d at 292, 714 N.Y.S.2d at 209, and the fact that the First Department also stated the conclusion it would reach "[w]ere [it] to review" the claim does not change the result. See, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 810-11 & n. 4 (2d Cir. 2000) ("where a state court says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d at 724-25 & n. 3 (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds); Campos v. Portuondo, 193 F. Supp.2d 735, 744 n. 4 (S.D.N.Y. 2002) ("The language used by the Appellate Division in Campos' case is in contrast with the language used in those cases where the state court found a claim to be `either meritless or unpreserved.' Unlike the conjunctive `and,' the use of the disjunctive `or' in such cases obviously does not clarify whether the court's ruling rests on a procedural bar."), aff'd, 320 F.3d 185 (2d Cir. 2003); Jones v. Duncan, 162 F. Supp.2d at 211 ("The First Department's use of the conjunctive `and' rather than the disjunctive `or' clearly shows that the First Department found these claims to be unpreserved.").*fn9

Thus, the First Department's decision unambiguously rested on a state procedural ground.*fn10

Under New York Law, "[a]s a general rule points which were not raised at trial may not be considered for the first time on appeal." People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584 (1980) (citing C.P.L. § 470.05(2)).*fn11 In order to preserve his prosecutorial misconduct claim for appellate review, Roberts was required to object at trial to the prosecutor's statements during summation. E.g., C.P.L. § 470.05(2); People v. Harris, 98 N.Y.2d 452, 492 n. 18, 749 N.Y.S.2d 766, 786 n. 18 (2002) ("Defendant did not object to many of the specific comments during the summation and the few objections defendant did raise were all of a general nature; his complaints are thus unpreserved."); People v. Tonge, 93 N.Y.2d 838, 839-40, 688 N.Y.S.2d 88, 88 (1999) ("Defense counsel made only a general objection to the prosecutor's remark at summation; a party's failure to specify the basis for a general objection renders the argument unpreserved for this Court's review."); People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 816 (1994); People v. Dien, 77 N.Y.2d 885, 885-86, 568 N.Y.S.2d 899, 899-900 (1991); People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 442-43 (1981); People v. Williams, 46 N.Y.2d 1070, 1071, 416 N.Y.S.2d 792, 793 (1979) ("The other prosecutorial summation statements to which defendant has drawn our attention went without objection at all. Consequently, they are not preserved for our review.") (citations omitted); see, e.g., Simpson v. Portuondo, 2001 WL 830946 at *11 & n. 38 ("Under New York law, in order to preserve his claims for appellate review, [petitioner] was required to raise his challenges to the prosecutor's alleged errors in summation by way of specific objections before the trial court, and, if his objections were sustained, seek further relief.") (extensively citing New York cases); Simmons v. Mazzuca, 2001 WL 537086 at *10 & n. 27 (citing New York cases); Chisolm v. Headley, 58 F. Supp.2d at 286-87 & n. 2; Vera v. Hanslmaier, 928 F. Supp. at 285.*fn12 Roberts' counsel, however, did not make a single objection to the prosecution's summation. (See pages 4-7 above.)

Although co-defendant Freeman's counsel did challenge the prosecutor's statements, Roberts cannot rely on Freeman's challenges because his counsel did not join in those objections. (See pages 4-7 above.) Under New York's contemporaneous objection rule, objections must be made "by the party claiming error." C.P.L. § 470.05(2), quoted at page 22 n. 11 above. Therefore, a codefendant's counsel's objection is not sufficient. See, e.g., People v. Buckley, 75 N.Y.2d 843, 846, 552 N.Y.S.2d 912, 914 (1990) ("Defendant cannot rely on the request of a codefendant to preserve the claimed . . . error. . . ."); People v. Thompson, 300 A.D.2d 1032, 1033, 751 N.Y.S.2d 921, 921 (4th Dep't 2002) ("`[D]efendant may not rely on . . . objection[s] by codefendant's attorney[s] during a joint trial to preserve [those] issue[s].'") (brackets & ellipsis in original); People v. Cherry, 286 A.D.2d 913, 913, 730 N.Y.S.2d 753, 753 (4th Dep't 2001) ("`Defendant cannot rely upon the objection of the attorney for the codefendant to preserve an issue for [our] review.'"); People v. Peralta, 261 A.D.2d 101, 102, 689 N.Y.S.2d 89, 90 (1st Dep't) ("defendant may not rely upon objections . . . made by the codefendant but not specifically adopted in any manner by defendant"), appeal denied, 93 N.Y.2d 1024, 697 N.Y.S.2d 583 (1999); People v. Green, 235 A.D.2d 309, 309, 652 N.Y.S.2d 955, 955 (1st Dep't) ("Defendant cannot rely on co-defendant's objections. . . ."), appeal denied, 90 N.Y.2d 858, 661 N.Y.S.2d 185 (1997); People v. Foster, 100 A.D.2d 200, 207, 473 N.Y.S.2d 978, 984 (2d Dep't 1984) ("The codefendants, who made no objection . . .[,] waived the issue . . . and cannot avail themselves of their colleague's objection. . . . A reviewable question of law is presented when a protest to a court ruling is registered `by the party claiming error' but an erroneous ruling warranting reversal of the convictions of defendants who registered protests does not require reversal as a matter of law of the convictions of those who failed to object to the ruling.") (citations omitted), aff'd as modified on other grounds, 64 N.Y.2d 1144, 490 N.Y.S.2d 726, cert. denied, 474 U.S. 857, 106 S.Ct. 166 (1985).

Both the Supreme Court and the Second Circuit have held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. at 485-92, 497, 106 S.Ct. at 2644-48, 2650 (same); Garcia v. Lewis, 188 F.3d at 79 ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citing Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995), & Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)), cert. denied, 502 U.S. 883, 112 S.Ct. 236 (1991)); Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground); Figueroa v. Greiner, 2002 WL 31356512 at *11-12 ("The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground."); Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously . . . constitutes an adequate and independent basis for barring habeas review.").

Specifically, the Second Circuit (and district courts within the Circuit) have held that failure to object to the prosecutor's summation is an adequate and independent state ground sufficient to bar habeas relief. See, e.g., Vargas v. Keane, 86 F.3d 1273, 1280 (2d Cir.) (petitioner's claim barred from habeas review for failure to object to prosecutor's summation statements), cert. denied, 519 U.S. 895, 117 S.Ct. 240 (1996); Reardon v. Richardson, 956 F.2d 391, 391-92 (2d Cir. 1992); Velazquez v. Murray, 2002 WL 1788022 at *10; Oliver v. Beaver, 01 Civ. 2566, 2002 WL 1285355 at *1 (S.D.N.Y. June 10, 2002) (In habeas review, "[f]ailure to object at the time of the summation is an adequate state ground for affirming the conviction."); Thomas v. Garvin, 97 Civ. 1136, 2001 WL 1131992 at *4 (S.D.N.Y. Sept. 21, 2001); Gonzalez v. Portuondo, 00 Civ. 1357, 2001 WL 856600 at *6 (S.D.N.Y. July 30, 2001); Simpson v. Portuondo, 2001 WL 830946 at *11 & n. 38; Simmons v. Mazzuca, 2001 WL 537086 at *10 & n. 27; Bodine v. Brunelle, No. 97-CV-57, 2000 WL 362027 at *15 (W.D.N.Y. Mar. 29, 2000); Nieves v. Artuz, 97 Civ. 7792, 1999 WL 1489145 at *6 (S.D.N.Y. Oct. 22, 1999) ("It is undisputed that no objection was made to the prosecutor's summation at trial. Therefore, the claim can no longer be raised in state court, so it is exhausted for habeas corpus purposes."); Chisolm v. Headley, 58 F. Supp.2d at 286-87 & n. 2; Vera v. Hanslmaier, 928 F. Supp. at 285.

Because there is an adequate and independent finding by the First Department that Roberts procedurally defaulted on his prosecutorial summation misconduct claim, Roberts would have to show in his habeas petition "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 v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565.*fn13 Roberts has not done so.

Accordingly, because Roberts failed to object to the prosecutor's summation at trial, a procedural requirement under New York law, Roberts' claim is barred from habeas review.


For the reasons discussed above, Roberts' habeas petition should be denied and a certificate of appealability should not issue.


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 the Court, with courtesy copies delivered to the chambers of the Honorable Lawrence M. McKenna, 500 Pearl Street, Room 1640, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge McKenna. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 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); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

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