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United States District Court, Eastern District of New York

July 24, 2003


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

The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

This petition for a writ of habeas corpus was timely filed on July 12, 2000. It is based on claims that petitioner:

a) was denied his Sixth Amendments right to be confronted with witnesses against him (hearsay was used from Martin Zavala, Jose Chicas and Jose Jiminez);

b) he was deprived of the right to be tried solely on evidence presented (insinuations by the prosecutor in questioning petitioner put information not in evidence to the jury); and

c) the conviction for unlawful imprisonment should be dismissed.

A summary of the evidence showed the following:

In July 1993, in Bayville, Nassau County, New York, petitioner, along with this stepbrother Frank Sanchez and some other men, approached Nicholas Giordano and Cynthia Hendricks, who were sitting on the beach. Petitioner Sanchez, Giordano and Hendricks worked at the Crescent Beach Club in Bayville. After exchanging greetings with Mr. Giordano, who immediately recognized petitioner, petitioner and Sanchez pushed Giordano to the ground. Sanchez held Giordano in a choak hold, and petitioner then attacked Miss Hendricks. While one of petitioner's companions held down Miss Hendricks's feet, petitioner stuck his fingers inside the young woman's vagina. Miss Hendricks screamed for help, and petitioner covered her mouth with his hand. Petitioner raped her. He then walked away. Miss Hendricks, whose clothes and shoe were bloodied from the attack, left the scene, found a friend nearby, and told the friend that she had been attacked and raped by three men with whom she worked.

The police arrested petitioner and Sanchez that same day. Miss Hendricks and Mr. Giordano separately identified petitioner and Sanchez in lineups conducted that day.

Petitioner was charged with rape in the first degree, sexual abuse in the first degree and two counts of unlawful imprisonment in the second degree. Found guilty by a jury, he was sentenced to concurrent terms of imprisonment of eight and one-third to twenty-five years, six years, and one year.

This conviction was reversed by the Appellate Division because of misconduct by a court official in speaking to the jury. People v. Galdamez, 234 A.D.2d 608 (2d Dept 1996).

On retrial he was again convicted. His sentence was concurrent terms of eight and one-third to twenty-five years, two to six years, and one year.

On appeal he made essentially the claims he now makes. The Appellate Division affirmed finding the evidence was sufficient, and that defendant's remaining claims were either unpreserved or without merit. People v. Galdamez 261 A.D. d 635 (2d Dept. 1999).

No reasons for review were given for review by the Court of Appeals. It denied leave to appeal. People v. Galdamez, 93 N.Y.2d 1018 (1999).

In this court petitioner applied for appointment of counsel. This was denied for lack of a then showing of some merit.

Upon reassignment of the case to the undersigned, the claims and record were reviewed.The case raises serious questions warranting review by the federal courts.


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).

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)(l).

III. Limitations Period

Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244 (d)(l). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.

Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).

"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.

In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted . . . ." 28 U.S.C. § 2244 (d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).

The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post.. conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is "pending from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).

The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).

A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").

The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244 (d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).

Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,

If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.
Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).

IV. Exhaustion

In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court" Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254 (b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue),

V. 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, 501 U.S. at 750.

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. 10 (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).

When 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 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.

VI. Actual Innocence

"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).

Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful," Id. at 324.

A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved. '" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).

VII. Ineffective Assistance of Counsel

The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 024468, 2003 U.S. App. LEXIS 2053. at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).

As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").

There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).

Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).

VIII. Errors of State Law

Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with "that fundamental fairness' which is `essential to the very concept of justice'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).

IX. Evidentiary Error

For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).

IX. Verdict Against the Weight of the Evidence

To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.

X. Legal Claims Frequently Raised in Habeas Corpus Applications

For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) (Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) (Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) (Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) (Fourth Amendment claims); Plunket v. Keane, 97-CV-1992, 03-MISC-0066 (313W), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) (Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);

XI. Harmless Error

In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).

When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).

XII. Certificate of Appealability

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. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz,__ F.3d __, No. 02-2320, slip op. at 10 (2d Cir. July 18, 2003).

XIII. Analysis of Claims

A. Unlawful Imprisonment.

The evidence of the victim and her companion was sufficient to establish false imprisonment as a crime distinct from the rape since she was held by petitioner and another person against her will to facilitate the rape. The Appellate Division properly wrote:

Viewing the evidence in the light of most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt with respect to his conviction of unlawful imprisonment in the second degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5]).
People v. Galdamez, 261 A.D.2d 635 (2d Dept. 1999). This conclusion was warranted as an interpretation of state law; this court will not reinterpret that state law.

B. Use of Implied Hearsay

The contentions of petitioner are that the prosecutor in effect

a) indirectly used hearsay of persons petitioner had made admissions to through his questioning of petitioner on cross examination as to inconsistent prior statements to them; and

b) testimony of a police officer that he had questioned some people and then taken action (presumably on the basis of what they said) against petitioner. They can be combined under the phrase"use of implied hearsay."

The point made by the petitioner, who testified in his own behalf, with respect to this use of hearsay is clearly posed in respondent's supplemental memorandum of law set out below in revised form in pertinent part, without quotation marks or indentation.

Petitioner contends that his Sixth Amendment confrontation rights were violated when the prosecutor cross-examined defendant concerning whether he made incriminating statements to three individuals — Jose Jiminez, Martin Zavala, and Jose Chicas — who did not testify at defendant's trial, even though defendant denied having made the statements and the trial court instructed the jury to disregard the prosecutor's questions (habeas petition, ground one).

Under both New York and Federal rules of evidence, a party may cross-examine an adversary as to a prior statement inconsistent with the witness's present testimony. See Prince, Richardson on Evidence § 6-411 at 405 (11th ed. Farrell). Petitioner was charged with raping the victim on a Bayville beach. The victim testified that petitioner had committed the rape while someone held her feet down. Petitioner testified at trial and denied involvement in the rape; he also denied that he had touched the victim. Trial Transcript ("T"). 970-91. The prosecutor attempted to impeach this testimony with prior inconsistent statements.

The prosecutor possessed a signed written statement given by petitioner's roommate, Jose Chicas, to Detective Shiller; Chicas stated that defendant admitted to him that he had sex on the beach with a girl whose feet someone held down. T. 853, 847, 849. This statement was inconsistent with petitioner's position of innocence. The trial court acknowledged that the prosecutor was "legally correct" when the prosecutor argued that Chicas's statement provided a good-faith basis for the cross-examination of petitioner. T. 858. It ruled that the prosecutor could question defendant, based on Chicas's statement. T. 858, 860. In compliance with the court's ruling, the prosecutor questioned petitioner about inculpatory remarks attributed to him. T. 873. Petitioner denied making any such remarks. T. 873.

Relying on information contained in a written statement provided by Martin Zavala, who also lived with petitioner, the prosecutor asked, "Isn't it a fact, sir, that while Martin Zavala was in his room you were laughing with Jose Jiminez and saying that the blonde girl wasn't going to be able to sleep that night?" T. 874. This question contradicted petitioner's prior testimony about non-involvement in the crime; the prosecutor had a good faith basis to ask it. Petitioner did not answer because the court sustained defense counsel's objection to the question. T. 874-75.

The questions based on Chicas's statement, that were permitted by the court, and the question based on Zavala's statement, that was ruled inadmissible were, the prosecution argues, properly posed. There having been arguably a good faith basis for the prosecutor's cross-examination, he was entitled, he argues, to attempt to impeach petitioner by demonstrating that, on other occasions, petitioner made statements inconsistent with a material part of his testimony. Even if those statements were made to an individual who would not be called to testify at trial the argument for their use was substantial. See, e.g., People v. Harris, 401 U.S. 22, 224 (1971); People v. Dixon, 228 A.D.2d 175 (1St Dept. 1976).

Having ruled that the prosecutor could question petitioner based on the statement he made to Chicas, the trial court nevertheless sustained an objection to an additional question based on the statement defendant made to Zavala, and then, subsequently, struck all the testimony concerning statements made to both Chicas and Zavala. Without objection, the court instructed the jurors:

There was an incident that occurred Friday involving questions concerning a Mr. Chicas and a Mr. Zavala, and certain remarks which were made and certain other events which occurred. I direct you to totally disregard that which occurred. That has been stricken from the record. It is not testimony, it is not competent evidence. That event should not affect you or influence you in any way.
T. 1047.

Assuming, for argument's sake, that there was any error in the cross-examination of defendant, the trial court attempted to correct that error when it told the juror to "disregard that which occurred." T, 1047. It can be assumed that the jury followed the court's instruction. See, e.g., Richardson v. Marsh, 481 U.S. 200, 206, 211 (1987); People v. Berg, 59 N.Y.2d 294, 299-300 (1983). It is noteworthy in the instant case that the jury requested a great deal of information during deliberations, but never asked about the prosecutor's attempt to impeach defendant with his statements made to Chicas and Zavala. T. 1082-1148. The jury did not have before it any "evidence" that petitioner made admissions to Chicas and Zavala since defendant denied at trial that he had made such statements. T. 890-81. The state court's rulings pertaining to the statements were neither contrary to, nor involved unreasonable applications of, clearly established Federal law, as determined by the Supreme Court. Accordingly, petitioner's claim that his confrontation rights were violated does not entitle him to habeas corpus relief.

Nor does petitioner's contention that, as a result of conduct by the prosecutor, he was convicted on the basis of material not in evidence. Petitioner refers to an incident in which the prosecutor, during an exchange concerning the basis of the prosecutor's questions regarding whether petitioner made a specific remark to Jiminez, asked petitioner whether he made a specific remark about "the Blonde girl" to Jiminez. Before the jury, defense counsel demanded, "If he's got a witness for this, let him produce the witness." T. 874. The prosecutor responded, "I can show him the basis." T. 874. This was, respondent argues, not an attempt to put matters not properly in evidence before the jury; it was, rather, a warranted response to petitioner's suggestion to the jury that the prosecutor had no real basis for his cross-examination. After the prosecutor made the statement, the court sustained petitioner's objection, issued an immediate curative instruction, and instructed the jury to disregard the remark, thereby arguably ameliorating any prejudice.

Petitioner complains that, during the exchange concerning the basis of the prosecutor's questions, the prosecutor picked up a piece of paper in order to suggest to the jurors that he possessed evidence that they had not seen. The prosecutor explained to the court that he picked up the paper simply to show the court that he did, indeed, have a good faith basis for asking petitioner about the statement. T. 849. This incident, respondent argues, was trivial. As already noted, the court instructed the jury to "totally disregard" this exchange. T. 1074.

In compliance with the court's direction, the prosecutor did not refer to the matter of prior inconsistent statements in his summation. T. 993-1044.

Here, the State's case was weighty. The victim worked with petitioner and knew him. T. 416-19. She was face-to-face with petitioner during the five to ten minutes that he raped her, and she recognized petitioner "immediately." T. 434. There was no doubt in her mind that petitioner raped her. T.463. Nicholas Giordano's testimony placed petitioner at the isolated crime scene moments before the rape occurred, thus corroborating the victim's identification testimony. Giordano saw petitioner — whom he knew from work and knew by name — approach the victim and himself as they sat alone on the beach. T. 107-09, 124.

The probability of verdict being different had the prosecutor not attempted to impeach petitioner is quite low. Petitioner is not entitled to a writ of habeas corpus on this ground.

The reference by the police witness to those he interviewed was of slight weight and would not itself, or in connection with the cross-examination of petitioner, warrant granting the writ.

This habeas corpus application is an important matter to petitioner. The court has considered all of his claims. Those possible claims not discussed in this memorandum are frivolous.

XIV. Conclusion

The petition for a writ of habeas corpus is denied.

A certificate of appealability is granted with respect to the indirect use of hearsay on cross-examination of petitioner, petitioner having made a substantial showing of the possible denial of a constitutional right. He may, as already indicated, seek a further certificate of appealability from the Court of Appeals for the Second Circuit.


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