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United States District Court, Eastern District of New York

July 17, 2003


The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge.


Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth in this Memorandum Order & Judgment, the petition is denied. No hearing is necessary.

I. Facts

On the evening of May 14, 1995, petitioner and two unapprehended accomplices entered Chao Keyvan's apartment where a dinner party was being held. Petitioner, who was holding a gun, said in Mandarin, "I am going to rob you." The victims emptied their pockets. Petitioner taped their hands with duct tape. One of the guests, Hong Zhang, was taken out of the apartment and ordered to take the robbers to rooms in the basement. That guest later identified petitioner as the assailant brandishing the gun. See Trial Transcript ("Tr."), at 464-65.

Several days after the robbery, Zhang saw one of the accomplices in the grocery store where he worked. Zhang followed him back to a nearby building. Days later, he saw the two accomplices playing basketball in a neighborhood park. He again followed them home to the same building. Zhang then informed police that he knew where the robbers lived. The police conducted surveillance of the building. When petitioner left the building, Zhang recognized him and he was arrested. At the police station, petitioner was advised of his Miranda rights in Mandarin. Petitioner confessed to the robbery. Detective Ng wrote petitioner's statement down and petitioner signed the statement.

The trial court held a combined Wade/Huntley/Dunaway hearing. It found that there was no basis to suppress the confession or the identification. It declared that the confession was given voluntarily after the administration of Miranda warnings in Mandarin. The court concluded that "defendant's motion to suppress identification testimony and statements is denied in all respects." Hearing Tr., at 56.

Petitioner was convicted after a jury trial of two counts of robbery in the first degree, one count of robbery in the second degree, two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree, and two counts of unlawful imprisonment in the first degree. He was acquitted of a number of related charges.

Petitioner was later sentenced to twelve and one-half years to twenty-five years for the first degree robbery charges, seven and one-half to fifteen years on the second degree robbery charge and the attempted robbery in the first degree charges, three and one-half to seven years on the attempted second degree robbery charge, and two to four years on the unlawful imprisonment charges. All sentences were ordered to run concurrently.

Approximately two and one-half months after the jury rendered its verdict, petitioner filed a motion pursuant to section 330. 30(2) of the New York Criminal Procedure Law to set aside the verdict. The motion alleged that information discovered after the conclusion of the trial indicated that the jurors had engaged in misconduct. In particular, a juror wrote the following letter to the trial judge the day after the verdict was rendered:

I was a member of a recent jury in a trial that took place in your courtroom. I have served on jury duty before and have experienced a similar situation to the one I found myself in this time.
This latest was the State vs. Bab Lin You. We as a jury sat thru [sic] difficult and tedious testimony which I realize as part of our job and our duty as jurors. However, the process by which the actual jury is selected is in great need of improvement.
We had one juror, Helen Williams, who during the course of the trial exhibited no signs of prejudice. However, on the day we were to get the case she came to court with a book entitled "Black Justice in a White World" by Justice Bruce Wright. I realize that reading this book by this author does not necessarily constitute prejudice, however, once we began to deliberate she in no way had an open mind. Nor did she exhibit reasonable behavior. We as a jury 3 hours into deliberation were at an 11-1 vote and were deadlocked. She would not verbally nor could she verbalize her "reasonable doubt." She just had it. She claimed to have [illegible] agreed that she could make a decision on one credible testimony and she said she simply does not believe the police.
The fact that the verdict actually came in so quickly after we requested refreshments is because our foreperson (a saint) began to write a note to the court that we were hopelessly deadlocked and needed guidance. It was our assumption that she felt, when she questioned him about this note, that she might be singled out by the court to answer questions. She knew if that was the case that the court would not tolerate her lack of cooperation. I am aware that this would not have happened however, she quickly was ready to vote and [illegible] a verdict. I have been a victim of this prejudice before on jury duty. It is both frustrating and stressful. There has to be a better way of screening potential jurors. Thank you for listening to my concerns.

Dorothy Currao

See Petitioner's Appellate Division Brief, Exhibit 3. Petitioner argued that the note proved that the holdout juror changed her mind based on factors other than the evidence presented at trial. The trial court summarily denied the motion without a hearing.

Petitioner appealed his conviction to the Appellate Division, Second Department. He raised three claims: 1) the trial court should have granted the motion to set aside the verdict or at least have held a hearing; 2) the trial court's identification charge was erroneous; and 3) the police detective bolstered the victims' identifications by telling the jury that there was not doubt that petitioner committed the crimes and that petitioner knew why he was being arrested.

The Appellate Division affirmed. See People v. Bab Lin You, 694 N.Y.S.2d 760 (N.Y. App. Div.2d Dep't 1999). It held that the trial court did not err in summarily denying the motion to set aside the verdict because the "motion was supported only by hearsay allegations contained in an affidavit of defense counsel." Id. at 760. It found the remaining contentions unpreserved for appellate review and declined to review them in the exercise of its interest of justice jurisdiction. See id. Petitioner sought and was denied leave to appeal by the New York Court of Appeals. See People v. Bab Lin You, 94 N.Y.2d 876 (N.Y. 2000).

II. Habeas Petition

Petitioner filed a timely petition for writ of habeas corpus in late 2000. In it, he raises the same three claims made on direct appeal.

III. Law


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d). See Price v. Vincent, 155 L.Ed.2d 877, 885-86 (2003).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).

B. Procedural Bar

A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "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 v. Thompson, 501 U.S. 722, 750 (1991).

If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n.l0 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

IV. Analysis

A. Juror Misconduct

Petitioner's first claim is that the trial court erred by summarily denying his motion to set aside the verdict where evidence of juror misconduct came to light after the jury rendered its verdict. He alleges that the letter quoted above reveals that the holdout juror voted to convict petitioner not because of the evidence presented at trial but because she was afraid of being singled out by the court.

Judicial inquiry into the state of mind of jurors during their deliberations is to be avoided in all but the most extraordinary circumstances. See King v. United States, 576 F.2d 432, 438 (2d Cir. 1978). The Court of Appeals for the Second Circuit explained:

There is a judicial reluctance, for sound and easily understood reasons, "to inquire into the state of mind of any juror and into the conduct of the jurors during their deliberations." This is to avoid harassment of jurors, inhibition of deliberation in the jury room, a deluge of post-verdict applications mostly without real merit, and an increase in opportunities for jury tampering; it is also to prevent jury verdicts from being made more uncertain.
Id. at 438 (internal citations omitted); see also Tanner v. United States, 483 U.S. 107, 120-21 (1987) (post-verdict scrutiny would inhibit jurors' discussions and their willingness to return unpopular verdicts; it would also undermine the public's trust in the jury system generally). The threshold for authorizing a post-verdict inquiry is high: "To overcome this reluctance and to authorize a post-verdict inquiry, there must be `clear evidence', `strong evidence', `clear and incontrovertible evidence', `substantial if not wholly conclusive evidence."' King, 576 F.2d at 438 (citation omitted).

Only rarely is this burden met. In Jacobson v. Henderson, 765 F.2d 12, 14, 15 (2d Cir. 1985). the Second Circuit Court of Appeals affirmed the denial of habeas corpus relief where the petitioner submitted juror affidavits alleging "screaming, hysterical crying, fist banging, name calling, [...] the use of obscene language" and chair throwing during deliberations. Cf United States v. Grieco, 261 F.2d 414, 415 (2d Cir. 1958). The fact that some jurors have weaker wills than others, "or that one individual may bow to the pressure of eleven — cannot be a cause for reopening a case." United States v. Stoppelman, 406 F.2d 127, 133 (1st Cir. 1969).

As the Appellate Division noted, the letter itself is hearsay. The letter is not written by the holdout but by another juror. This other juror speculates as to why the holdout changed her mind. This vague letter is far from the "clear and incontrovertible" evidence required to authorize a post-verdict inquiry as to the juror's frame of mind. The Appellate Division's decision to affirm the trial court's summary denial of petitioner's motion to set aside the verdict was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. Petitioner's claim is therefore denied,

B. Identification Instruction and Improper Bolstering

Petitioner's second claim is that in a two-witness identification case, where one witness first identified petitioner only at trial, a fair trial was denied when the trial court's charge failed to instruct the jury that it should consider the testimony of that witness in deciding the case, His third claim is that he was denied a fair trial when the police detective bolstered the victims' identifications by telling the jury that there was no doubt that petitioner had committed the crimes and that petitioner knew why he was being arrested.

Both claims are procedurally barred because petitioner's trial counsel failed to make timely objections and preserve the arguments for appellate review. See People v. Bab Lin You, 694 N.Y.S.2d 760 (N.Y. App. Div.2d Dep't 1999). Petitioner may avoid the bar by demonstrating both cause and prejudice for the default. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Petitioner is unable to show cause. After delivering the charge, the trial court asked counsel if they had any exceptions. Petitioner's counsel indicated no exceptions. See Trial Tr., at 845-46. With regard to the alleged bolstering, petitioner's counsel either failed to object or failed to object with the requisite level of specificity.

Petitioner is also unable to show prejudice. Petitioner's counsel did object to the following instance of alleged bolstering:

Ms. Long (Prosecutor): And did you tell him [petitioner] why he was being arrested?
Detective Ng: He know [sic] why he was arrested.

Ms. Povman (Defense Counsel): Objection.

The Court: Sustained.

Trial Tr., at 555. Petitioner was not prejudiced by this statement in light of the court's ruling in his favor. In addition, there was overwhelming evidence against him, including a confession and unsuspicious eyewitness identifications.

Because petitioner is able to show neither cause for the procedural defaults nor prejudice resulting from them, the second and third claims are procedurally barred. Under Coleman v. Thompson, 501 U.S. 722, 750 (1991), the court may not review them. Were a review possible, they would be found meritless.

Petitioner received a fair trial. His counsel met minimum standards for representation.

V. Conclusion

The petition for a writ of habeas corpus is dismissed.

This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").

A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. A certificate of appealability is denied with respect to petitioner's argument concerning juror misconduct since no nonfrivolous issue is raised. No other issue warrants appellate review.

Petitioner has a right to seek a certificate of appealability on any other issue from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).



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