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United States District Court, Southern District of New York

August 27, 2003


The opinion of the court was delivered by: Denise Cote, District Judge


On January 11, 2001, Oliver Morgan's ("Morgan") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was received by the Pro Se Office of this Court. On March 6, the case was referred to Magistrate Judge Theodore H. Katz for a Report and Recommendation ("Report"), which was issued on November 27, 2002. The Report recommends that the petition be denied, but also recommends that a Certificate of Appealability ("COA") issue with [ Page 2]

regard to one claim. Both parties have filed objections. For the reasons that follow, the petition is dismissed and no COA shall be issued.


On April 23, 1996, Morgan was convicted of two counts of murder in the second degree, kidnapping in the first degree, and criminal possession of a weapon in the third degree for the shooting deaths of his former sister-in-law Natalie Boyd and her mother Shirley Boyd, and the kidnapping of his former common-law wife and her children. Plaintiff was sentenced to three consecutive indeterminate terms of imprisonment of twenty-five years to life for the murder and kidnapping counts, consecutive to a term of five to fifteen years on the other counts. On October 21, 1999, the Appellate Division for the Second Department affirmed his conviction. The New York State Court of Appeals denied leave to appeal on February 29, 2000.

In his timely habeas petition, Morgan seeks relief on the basis of three alleged constitutional errors that occurred during the course of his trial. First, Morgan alleges the trial court improperly denied his challenge to strike a prospective juror for cause, which he claims violated his right to an impartial jury. Second, Morgan claims the trial court deprived him of his right to a fair trial by failing to show him a note that was passed [ Page 3]

between a witness and a court officer. Third, Morgan claims that the trial court erred when it found that he waived his right to be present for the delivery of the verdict. Morgan is a practicing Muslim and had objected to trial proceedings occurring on Fridays.

In his Report, Judge Katz recommends that the petition be denied, but that a COA be issued with regard to Morgan's right to be present for the verdict. The parties briefed their objections to the Report between December 2002 and May 2003.


A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636 (b)(1)(C). The court shall make a de novo determination of those portions of the Report to which objection is made. United State v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), changed the landscape of federal habeas corpus review by "significantly curtail[ing] the power of federal courts to grant habeas petitions of state prisoners." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001). Under the AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that [ Page 4]
was adjudicated on the merits in State court proceedings unless 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 decisions that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
28 U.S.C. § 2254 (2003).

A principle of law is "clearly established" when it is a holding as opposed to dicta in a Supreme Court decision "as of the time of the relevant state-court decision." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citation omitted). "A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases [. . . or] if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-406 (2000).

The "unreasonable application" prong of Section 2254(d)(1) applies where a state court decision correctly identifies the controlling legal authority but applies it unreasonably to the facts of a particular case, or extends a legal principle from Supreme Court precedent "to a new context where it should not apply or unreasonably refuses to extend that principle to a new [ Page 5]

context where it should apply." Id. at 407. The analysis of this part of the test is achieved by deciding whether the state court's application of controlling federal law was "objectively unreasonable." Id. at 409. To show that such an application was "objectively unreasonable," a petitioner must identify "some increment of incorrectness beyond error." Cotto v. Herbert, 331 F.3d 217, 235 (2d Cir. 2003) (citation omitted). This standard falls "somewhere between `merely erroneous and unreasonable to all reasonable jurists.'" Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000). In analyzing the "unreasonableness" of a state court's application of clearly established Supreme Court law, the Second Circuit has employed its own interpretations of Supreme Court precedent. See, e.g., Leslie v. Artuz, 230 F.3d 25, 32-33 (2d Cir. 2000).

Under 28 U.S.C. § 2254 (e)(1), trial court fact-finding is entitled to a "presumption of correctness". Cotto, 331 F.3d at 233 (citation omitted). On habeas review, the petitioner has the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1); see also Cotto, 331 F.3d at 233.

Petitioner's Right to a Trial by a Fair and Impartial Jury

Petitioner alleges that the trial court improperly denied his challenge for cause of a prospective juror. Petitioner later [ Page 6]

used a peremptory challenge to eliminate the challenged juror from the pool, and subsequently exhausted all of his peremptory challenges. Petitioner does not argue that the jury which heard his case was less than impartial. The Appellate Division held that the trial court's denial of the challenge for cause was a proper exercise of its discretion and did not violate the Sixth Amendment. See People v. Morgan, 697 N.Y.S.2d 259 (1st Dep't 1999).

"It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant . . . an impartial jury." Ross v. Oklahoma, 487 U.S. 81, 85 (1988). The Supreme Court has rejected the notion that "the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury." Id. at 88. Therefore, so long as the jury which was ultimately selected was fair and impartial, the Sixth Amendment has not been violated. See, e.g., id.; United States v. Morales, 185 F.3d 74, 84 (2d Cir. 1999); United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994); United States v. Towne, 870 F.2d 880, 885 (2d Cir. 1989).

The Report by Magistrate Judge Katz correctly dismissed petitioner's claim that his right to a fair trial by an impartial jury was violated. Petitioner's objection that the trial judge's action violated New York state law is unavailing. Claims which are based on state law do not provide a basis for federal habeas relief. Knapp v. Lenoardo, 46 F.3d 170, 181 (2d Cir. 1995). [ Page 7]

Witness Note

Petitioner claims the trial court violated his right to a fair trial by not showing him a note made by a witness and given to a court officer. The contents of the note were read into the record on the day the note was written. The next day, petitioner's counsel asked to see the note and asked for a mistrial because petitioner believed the exchange between Harris and the officer (taken together with another incident not raised here), were likely to deprive him of a fair trial. The judge then denied the motion for the mistrial. The petitioner did not object during the trial to the court's failure to show him the note.

The Appellate Division rejected the claim that the trial court had committed reversible error in failing to show petitioner the note. The Appellate Division held the claim was unpreserved, since Morgan had not objected to the failure at trial. The Report concludes correctly that federal review is precluded when the last state court to render judgment "`clearly and expressly' state[d] that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (citation omitted); see also Rudenko v. Costello, 286 F.3d 51, 74 (2d Cir. 2002). The Report also correctly found that petitioner had not shown cause for failing to raise the issue during the trial, and prejudice resulting therefrom, or his actual [ Page 8]

innocence. See United States v. Rosario, 164 F.3d 729, 732 (2d Cir. 1998).

Petitioner objects to the Report by arguing that the prosecutor was required under state law to show him any written or recorded statement made by a witness. As stated previously, claims which are based on state law do not provide a basis for federal habeas relief. Knapp, 46 F.3d 170 at 181.

Petitioner's Right to be Present at the Reading of the Verdict

Petitioner claims that his constitutional right to be present at the reading of his verdict, pursuant to the Sixth Amendment's Confrontation Clause and the Fourteenth Amendment's Due Process Clause were violated when the trial court took the jury verdict in his absence. He claims that he "was compelled by the trial court to waive one constitutional right (presence at trial) to exercise another (Free Exercise)."

Petitioner is a Muslim and observes the Sabbath on Fridays. During his seven week trial, the court did not sit on Fridays in order to accommodate petitioner's religious beliefs. The case was submitted to the jury on Wednesday, and they were sequestered that night after failing to reach a verdict. When the jury failed to reach a verdict by Thursday evening, the court informed the petitioner of its intention to proceed with deliberations the following day. The trial judge told the defendant "we will be [ Page 9]

deliberating until tomorrow," followed by "it is the Court's intention to continue with this case tomorrow." After defense counsel objected, and asked that the jury be unsequestered and resume deliberations on Monday, the judge replied that the case would proceed on Friday and "the defendant, if he wishes to be here, can be. This case is going to go on. . . ." The court expressed the concern, given the sensitive nature of the case, and the publicity it had received, that releasing the jury for the weekend could jeopardize their ability to remain unbiased. The judge then offered, as an accommodation, a few hours for Morgan to pray in private on Friday. The judge stated, "barring that, if you refuse to appear in Court, you will be deemed to have waived your right to be present for that portion of the trial." Morgan was not present in court the following day. The Department of Corrections listed the petitioner's "Muslim faith" as the reason for his absence.

The Appellate Division held that the trial court had properly denied the defendant's request to cease deliberations for three days and that the defendant had waived his presence for the verdict. The Appellate Division held:

The court properly denied the request of defendant, a Muslim, to release the sequestered jury and cease deliberations for three days to allow him to perform religious observances on Friday, and defendant thus validly waived his presence when the verdict was rendered. . . . [T]he incidental burden on defendant's religious practice was justified by the State's paramount and compelling interest in guaranteeing a fair trial. [ Page 10]
Morgan, 265 A.D.2d at 230.

As the Report discusses, the right of a criminal defendant to be present at all stages of his trial, including the reception of the verdict, is well established in Supreme Court precedent. See, e.g., Rogers v. United States, 422 U.S. 35, 38-39 (1975); Diaz v. United States, 223 U.S. 442, 455 (1912); United States v. Canady, 126 F.3d 32, 360 (2d Cir. 1997). The right to be present at all stages of a criminal trial is guaranteed by the Sixth Amendment's Confrontation Clause. See, e.g., Illinois v. Allen, 397 U.S. 337, 338 (1970).

The right to be present may, however, be waived so long as the waiver is knowing and voluntary. See United States v. Gagnon, 470 U.S. 522, 529 (1985) (per curiam); Canady, 126 F.3d at 359 (absent at announcement of verdict). There is no contention that the waiver here was not knowing; the question is one of voluntariness. Under Supreme Court law, a voluntary waiver can be implied from conduct. See Gagnon, 470 U.S. at 528-29.

The state court's finding on the question of voluntariness, is entitled to deference under AEDPA, as it decided Morgan's constitutional challenge "on the merits." See Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir. 2003). A claim has been decided "on the merits" when the state court "dispose[s] of the petitioner's federal claim on substantive grounds, and reduce[s] that [ Page 11]

disposition to judgment." Id; see also Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002); Sellan v. Kuhlman, 261 F.3d 303, 310 (2d Cir. 2001).

As discussed above, under this deferential standard, a claim succeeds only if the state court's decision on the merits was contrary to or an unreasonable application of clearly established law. Judge Katz correctly found that there is "no caselaw that speaks directly to the facts of this case"; more importantly, it was not objectively unreasonable for the state court to find that Morgan's waiver was voluntary within the bounds defined by Supreme Court holdings. Morgan has pressed the importance of the First Amendment right to the free exercise of his religion that he chose to enjoy rather than be present for his verdict. This tension creates an interesting legal question; it was not unreasonable, however, for the trial judge and the Appellate Division to find that Morgan's choice was a voluntary waiver. As a result, it is impossible to say that the state court's ruling on this claim was contrary to, or an unreasonable application of clearly established law, and the claim must fail.

Judge Katz recommends that the Court issue a COA solely on this claim regarding the right to be present at his trial on the day the jury delivered its verdict. "[A] prisoner seeking a COA need only demonstrate a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 123 S.Ct. 1029, 1034 (2003) (citation omitted). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree [ Page 12]

with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Id.

The Report thoroughly and helpfully lays out the complicated legal landscape surrounding the question of a voluntary waiver in the circumstances presented here. Morgan has not shown, however, that reasonable jurists could differ on the issue of whether the Appellate Division's ruling was an unreasonable application of, or contrary to, law clearly established by the Supreme Court. See id. at 1046 (Scalia, J., concurring). Without demonstrating that, Morgan cannot make a substantial showing of a denial of a federal right, and a certificate cannot issue.


The recommendation of Magistrate Judge Katz is adopted and the petition is dismissed. In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). I also find pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. [ Page 13]

Coppedge v. U.S., 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.

SO ORDERED: [ Page 1]


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