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DALEY v. ARTUS

United States District Court, E.D. New York


December 31, 2003.

GLEN DALEY, Petitioner, -against- DALE ARTUS, Superintendent, Clinton Correctional Facility; and ELIOT SPITZER, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER

Petitioner Glen Daley seeks habeas relief from a judgment of conviction entered after a jury trial in stale court. I held oral argument on November 21, 2003. For the reasons set forth below, the petition is dented. BACKGROUND

  On May 27, 1997, Daley, a retired New York City police officer, shot Charles Durham in the lobby of the building they both lived in. Daley shot Durham four times with a 38-caliber revolver, injuring, inter alia, Durham's lung. Daley called 911 and surrendered his firearm and pistol license to police at the scene. After the shooting, Daley told an acquaintance that Durham had been a "pain" and had deserved to be shot, and that Daley's friends on the police force would cover up the shooting. Daley was charged with attempted murder in the second degree, two counts of assault in the first degree, and assault in the second degree. On August 3, 1998, a jury found Daley guilty on all counts. On October 8, 1998, the court sentenced Daley to an indeterminate prison term of 12 ½ to 25 years.

  Lombard, through counsel, appealed from his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department. Daley raised five claims in his brief to the Appellate Division: (1) that the government improperly elicited at trial that Daley was a paranoid and violent person; (2) that the prosecutor improperly forced Daley in his trial testimony to characterize the state's witnesses as liars and improperly told the jurors on summation that they could acquit only if they found that the state's witnesses lied; (3) that the trial court improperly admitted evidence of a prior uncharged crime and bad acts; (4) that the cumulative effect of the above errors denied Daley a fair trial; and (5) that his sentence was harsh and excessive.

  On March 25, 2002, the Appellate Division unanimously affirmed Daley's conviction. People v. Daley, 292 A.D.2d 630 (2d Dep't 2002). Specifically, the Appellate Division held that the trial court properly admitted evidence of Daley's conduct in the building prior to the shooting to explain his state of mind. Id. at 631, The court also held that Daley's claims of prosecutorial misconduct, both during the cross-examination of Daley and during summation, were not preserved for appellate review, Id. The court further held that the claims of prosecutorial misconduct were in any event harmless "in light of the overwhelming evidence of [Daley]'s guilt. Id. The Appellate Division also held that Daley's sentence was not harsh or excessive, and that his remaining contentions were meritless. Id. On August 29, 2002, the New York Court of Appeals denied Daley's leave to appeal People v. Daley, 98 N.Y.2d 709 (2002) (Kaye, C.J.).

  By petition dated August 20, 2003, Daley seeks a writ of habeas corpus based on the following two grounds: (1) that the prosecutor's improper comments both on cross-examination of Daley and in summation were so numerous and, in combination with improper character evidence described in ground two, so prejudicial that Daley was denied the right to a fair trial, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; and (2) that the erroneous admission of prejudicial evidence against Daley in the form of testimony on the state's direct case characterizing Daley as a violent, paranoid, and antisocial individual, which was admitted solely to show Daley's propensity for violence, constituted a denial of fundamental fairness and denied Daley due process of law, in violation of the Fifth and Fourteenth Amendments.

  DISCUSSION

 A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed alter AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision `"was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 [the Supreme Court] has on a set of materially indistinguishable facts." Williams. 529 U.S. at 413, A decision is an "unreasonable application" of clearly established Supreme Court Jaw if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable," Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough y. Gentry, 124 S.Ct. 1, 157 L.Ed.2d 1, 7 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."): Wiggins. 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim en the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim-even if the state court does not explicitly refer to either the federal claim or to relevant federal case law
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1),

However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review, . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041 (2003)).

 B. Daley's Claims

  1. Procedural Default

  Daley claims that the prosecutor improperly (1) forced him to characterize the state's witnesses as liars, and (2) told the jurors in summation that they could acquit only if they discredited all of the state's witnesses. The Appellate Division held that these two claims "were not preserved for appellate review," Daley, 739 N.Y.S.2d at 614. For the reasons set forth below, I find that the Appellate Division's implicit conclusion that Daley failed to comply with the contemporaneous objection rule does not constitute an adequate state ground barring Daley's prosecutorial misconduct claims.

  Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed. 489 U.S. 255, 261 (1992); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review, Coleman v. Thompson. 501 U.S. 722, 744, 750 (1991) (noting the state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [their] own errors"); see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rules renders the state ground inadequate to stop consideration of a federal question").

  Here, the Appellate Division concluded that Daley's contentions regarding prosecutorial misconduct — during both cross-examination of Daley and summation — "were not preserved for appellate review." Daley, 739 N.Y.S.2d at 614. Though the Appellate Division did not provide explicit reasons for its holding, it cited New York Criminal Procedure Law section 470,05(2), which states, in pertinent part:

For purposes of appeal, a question of law with respect to a ruling . . . of a criminal court during a trial . . . is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling . . . known to the court, or if in reponse [sic: response] to a protest by a party, the court expressly decided the question on appeal. In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling . . . is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule . . . accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.
  Section 470.05(2) must be read in conjunction with the New York Court of Appeals' decision in People v. Balls, 69 N.Y.2d 641, 642 (1986), also cited by the Appellate Division. Balls contended on appeal that the prosecutor made prejudicial remarks during summation; specifically, he challenged improper comments on Balls's silence prior to arrest, improper bolstering of the credibility of two government witnesses, and misrepresentations of one of the government's expert's testimony. Id. At trial, Balls's counsel made only one general objection during the prosecutor's summation and after that summation moved for a mistrial based on ""the conduct of the prosecutor during the summation, on constantly referring to speculative facts not in evidence from this witness chair, the raising of his voice and the screaming. . . . The entire summation was so prejudicial and so speculative, not based on fact, that a mistrial should be granted,'" Id. The Balls court held that "the unelaborated general objection to `speculative fads' did not alert the court to any of the comments now in issue and therefore was not sufficient to preserve the alleged prejudicial statements for appellate review." Id.

  "Ordinarily, violation of `firmly established and regularly followed' state rules" — such as New York's contemporaneous objection rule-"will be adequate to foreclose review of a federal claim," Lee, 534 U.S. at 376, The question therefore becomes "whether this case falls within `the small category of cases in which [the] asserted state grounds are inadequate to block adjudication of the federal claim' or `in which the exorbitant application of a generally sound rule renders the state ground inadequate' to bar consideration of the federal constitutional claim," Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003) (alteration in original) (quoting Lee, 534 U.S. at 376, 381).

  a. The Standard for Adequacy*fn1

  "`The question of when and how defaults in compliance with state procedural rules can preclude, . . . consideration of a federal question is itself a federal question,'" Id.. (ellipsis in original) (quoting Garcia v. Lewis. 188 F.3d 71, 77 (2d Cir. 1999)); see also Lee. 534 U.S. at 375 ("The adequacy of state procedural bars to the assertion of federal questions . . . is not within the State's prerogative finally to decide; rather, adequacy is itself a federal question," (quotation marks omitted)). "Before accepting a procedural bar defense, a federal court must examine the adequacy of the alleged procedural default," as "`state courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.'" Cotto, 331 F.3d at 239 (quoting Garcia, 188 F.3d at 77), As the Second Circuit explained in Garcia:

[A] procedural bar will be deeded "adequate" only if it is based on a rule that is "firmly established and regularly followed" by the state in question. When a federal court finds that the rule is inadequate under this test the rule should not operate to bar federal review. Nonetheless, the principles of comity that drive the doctrine counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion lightly or without clear support in state law.
Garcia. 188 F.3d at 77 (quotation marks and citations omitted).

  After Garcia, the Supreme Court clarified the nature and scope of the adequacy inquiry. In Lee, the Court "made clear that although `ordinarily, a violation of firmly established and regularly followed state rules . . . will be adequate to foreclose review of a federal claim/ there are `exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate" to bar federal habeas review, Cotto, 331 F.3d at 239-40 (ellipsis in original) (quoting Lee, 534 U.S. at 376). In Cotto, the Second Circuit discussed the three considerations the Lee Court used in determining that Lee's case fell into that "limited category," Lee, 534 U.S. at 376:

  (1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state ease law indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial.," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest. Cotto, 331 F.3d at 240. I use these three factors as "guideposts in `evaluat[ing] the state interest in a procedural rule against the circumstances of a particular case.'" Id. at 240-41 (quoting Lee, 534 U.S. at 386-87), "[T]he adequacy of a state procedural bar is determined with reference to the `particular application' of the rule; it is not enough that the rule "generally serves a legitimate state interest.'" Id. at 241 (quoting Lee. 534 U.S. at 387). Therefore, the relevant question is "whether application of the procedural rule is `firmly established and regularly followed' in the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Id.*fn2

  b. The Circumstances of the Procedural Bar in This Case

  In order to analyze Daley's objections appropriately, it is necessary to place them in the context of the trial. For that reason, a brief summary of the testimony is appropriate. Durham, the victim, testified that Daley was not friendly like the other tenants (Tr. at 89), would smirk at Durham (Id.), that he had received noise complaints about Daley from other tenants (Id. at 94), and that the tenants' association was trying to remove Daley from the building (Id. at 96), Durham was allowed to demonstrate the "strange" look Daley would give Durham when Durham was with Sandra Lane, another resident of the building (Id. at 97-98).

  Lane testified that she and Daley, who had known one another for 10 or 11 years, had been friends until about live years prior to the trial, when he had developed a colder attitude with her. (Id. at 380-82,) She testified to seeing Durham and Daley in confrontations, where Daley would talk loudly and Durham would simply walk away, (Id. at 382-83.) She went on to say that she had observed Daley acting aggressively towards Durham, but never saw Durham do the same towards Daley, (Id. at 383.) She testified on redirect that Daley was "agitated about life and . . . would argue with everybody." (Id. at 402.)

  Cheryl Howard, a resident who had known Daley for five or six years (Id. at 273), testified that Daley complained about the tenants living directly above him. According to Howard, Daley claimed "that they would be following him in his apartment," (Id. at 274.) He complained about this approximately 10 times over a three-or four-year period about two different sets of tenants who lived in that apartment. (Id. at 274-76,)

  Finally, Nicoleau testified that Daley and he had become friends playing chess in a park, and had eventually started visiting each other's homes. (Id. at 419-20.) Daley told Nicoleau that he was having difficulty with the other tenants, who, with Durham, were "trying to get him out of the building," (Id. at 422.) Daley also told Nicoleau that he had thrown trash near Durham's door, and "spilled garbage all over the place." (Id. at 427-28,) Finally, Nicoleau testified that after the shooting, Daley told him that Durham had deserved to be shot because he was a "pain," and that the police would help cover up the shooting, because Daley was a former cop. (Id. at 428-29,)

  At the close of this evidence, Daley's counsel objected repeatedly during the relevant portions of the prosecutor's summation:

[PROSECUTOR]: Because think about it ladies and gentlemen, if you believe [Daley] that means you can't believe every single other witness that testified.
[DEFENSE]: Objection.
THE COURT: Overruled. [PROSECUTOR]: That means Sandra Lane is not telling you the truth about the dirty looks. That means Sandra Lane is not telling you the truth That means Cheryl Howard.
[DEFENSE]: Objection.
THE COURT: Overruled.
(Tr. at 51-52.) Defense counsel also objected repeatedly during the relevant portions of the government's cross-examination of Daley:
Q. You never spoke to anyone and told them you were shot and that's why you were off duty?
A. No.
Q. You never told them that?
A. No.
Q. You never told Sandra Lane that?
A. No.
Q. Lester Nicoleau?
A. No.
Q. So they're making that up?
A. I didn't hear them say that
[DEFENSE]: Objection, [Prosecution moves on to different line of questioning with no ruling by the court,]
Q. And do you remember your brother telling you on that date-well, he checked the computers to find out criminal records, do you remember that?
A. No.
Q. You don't remember that? I was there, [Defense counsel] was there.
[DEFENSE]; Objection
THE COURT: Overruled.
Q. Did you feel[] they were following you around?
A. Absolutely not.
Q. Did you think they were out to get you?
A. No.
Q. So Cheryl is lying also, correct?
[DEFENSE]: Objection to the characterization.
THE COURT; Overruled.
Q. Cheryl is not telling the truth either, right? [DEFENSE]; Objection,
THE COURT: Overruled.
A. I guess so,
Q. She's not telling the truth, correct?
A. I guess not.
Q. You never went to Lester's home and he came to your home?
A. No absolutely not. Absolutely not.
Q. So Lester is making that up?
[DEFENSE]: Objection.
THE COURT: Overruled,
A. I guess so. He never came to my apartment.
(Id. at 461-62, 464-65, 471.)

  c. Application of the Lee Factors

  The question is whether the requirement that Daley expressly state the basis for his objection was "firmly established and regularly followed" in circumstances such as those in this case. See Cotto v. Herbert, 331 F.3d 217, 242 (2d Cir. 2003).

 

The Supreme Court has noted that the contemporaneous objection rule rests on "the general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review."
Id. (quoting Osborne v. Ohio, 495 U.S. 103, 125 (1990)), That principle and the three Lee factors guide my judgment: here. See Id.

 

i. Whether the Procedural Violation Actually Affected the Trial Court Ruling
  This rationale-whether the alleged procedural violation was actually relied on in the trial court-is less applicable here than in Lee "because the lack: of a contemporaneous objection would not, almost by definition, be mentioned by the trial court," Id. However, as in Cotto, it is extremely unlikely that perfect compliance with New York's contemporaneous objection rule would have changed the trial court's decision. New York law is clear that it is improper for the prosecutor to ask the defendant whether government witnesses., including complainants, are lying. See People v. Davis. 492 N.Y.S.2d 212, 214 (4th Dep't 1985) ("We have consistently condemned prosecutorial cross-examination . . . which compels the defendant to state that other witnesses lied in their testimony,"); see also, e.g., People v. Leuthner, 627 N.Y.S.2d 327, 328 (2d Dep't 1995); People v. Santiago, 432 N.Y.S.2d 216", 217 (2d Dep't 1980).

  Even if New York law were less clear, however, it would still be hard to imagine what the trial court could have thought defense counsel was objecting to, other than the prosecutor's improper attempt to compel Daley to testify that the other witnesses were lying, Because the prosecutorial error was so clear, and because it was therefore so likely that the trial court knew exactly what Daley was objecting to both during cross-examination and summation, there is little reason to believe that the trial court would have ruled differently had Daley objected and specifically stated the grounds.

  It is also important not to lose sight of the fact that one of Daley's objections was more specific:

Q. Did you feel[] they were following you around?
A. Absolutely not.
Q. Did you think they were out to get you?
A. No.
Q. So Cheryl is lying also, correct?
[DEFENSE]: Objection to the characterization.
THE COURT: Overruled.
Q. Cheryl is not telling the truth either, right?
[DEFENSE]: Objection.
  THE COURT: Overruled. (Tr. at 465.) What is clear is what defense counsel wag objecting to; what is unclear is what else defense counsel was supposed to say or do to further put the trial court on notice that he was objecting to the government's improper questions, specifically the way in which those questions forced Daley to "characteriz[e]" other witnesses as liars,

  "[T]he purpose of the contemporaneous objection rule is to give the trial court a clear opportunity to correct any error." Cotto, 331 F.3d at 243. While I believe that the trial court was sufficiently apprised by the context of Daley's objections of the basis for them, the trial court may have come to a different conclusion after argument, perhaps at sidebar. Therefore, although I find that this is not a case where a party failed to apprise the trial court of the basis for the objections, this factor does not weigh as heavily in Daley's favor as it did for the petitioner in Lee. See Id.

  ii. New York Case Law

  In analyzing the adequacy of the claimed procedural bar, I look to the statute, N.Y. Crim. Proc. Law § 470.05(2), set forth in pertinent part above, and case law interpreting that statute in criminal proceedings. See Cotto, 331 F.3d at 243. This factor weighs against Daley, though not heavily. New York courts consistently require that objections be made with specificity. See, e.g., People v. Robinson, 88 N.Y.2d 1001, 1002 (1996) ("[T]o frame and preserve a question of law re viewable by this Court, an objection or exception must be made with sufficient specificity at the trial, when the nisi prius court has an opportunity to consider and deal with the asserted error."); People v. Knowles, 88 N.Y.2d 763, 768 n. (1996) ("[O]ur law is clear that, in a criminal case, arguments that were not raised or considered in the court of first instance are not `questions of law' within our constitutional review powers."); People v. Balls, 69 N.Y.2d 641, 642 (1986) ("[T]he unelaborated general objection . . . did not alert the court to any of the comments now in issue and therefore was not sufficient to preserve the alleged prejudicial statements for appellate review.") In People v. Santiago, 432 N.Y.S.2d 216 (2d Dep't 1980), however, the Appellate Division ordered a new trial in the interest of justice where the prosecutor (1) had repeatedly tried to have Santiago state on cross-examination that a police witness was a liar, and (2) during summation, commented that if Santiago stuck to his story, "`he would be calling [the detective] a liar,'" and thereafter vouched for the detective's credibility. Id. at 216-17, Noting that it had "repeatedly condemned such questions and comments by the prosecution as prejudicial," the Appellate Division held that the fact that defense counsel had failed to object to some of the prosecutor's questions or comments did not preclude it from ordering a new trial "as a matter of discretion in the interest of justice." Id. at 217; cf People v. Turriago, 90 N.Y.2d 77, 84 (1997) ("[T]he Appellate Division, if it deems it appropriate, may exercise its discretionary power to review alleged errors even in the absence of that timely objection which is necessary to create a question of law," (quotation marks omitted)).

  Further, though Daley specified the grounds for his objections only once (Tr. at 465), the objections themselves were specifically raised after similar or identical questions by the prosecutor:

Q. So they're making that up?
A. I didn't hear them say that.
[DEFENSE]: Objection.
Q. So Cheryl is lying also, correct?
[DEFENSE]: Objection to the characterization.
THE COURT: Overruled,
Q. Cheryl is not telling the tram either, right?
[DEFENSE]: Objection. THE COURT: Overruled.
Q. So Lester is making that up?
[DEFENSE]: Objection, THE COURT: Overruled.
(Id. at 461-62, 465, 471.) In sum, while New York case law generally requires that objections be specific enough to allow the trial court the first pass at deciding the issues later raised on appeal, the Appellate Division has reviewed claims similar to Daley's despite the lack of any objection in the trial court. See Santiago. 432 N.Y.S.2d at 216-17, Here, Daley objected strenuously in the trial court. Overall however, I recognize that this factor weighs against Daley, if only slightly.

 

iii. Substantial Compliance with the Rule Given the "Realities of Trial"
  In considering whether Daley "substantially complied" with New York Criminal Procedure Law section 470.05(2), I "return to the asserted state interest behind the contemporaneous objection rule-to ensure that the parties draw the trial court's attention to any potential error while there is still an opportunity to address it," Cotto v. Herbert, 331 F.3d 217, 245 (2d Cir. 2003), I do not question the importance of the rule's interest in ensuring that judges are promptly alerted to errors at trial. Nor need I in order to conclude that Daley's conduct at trial served the purpose underlying the rule, and that section 470.0 5(2)'s "essential requirements . . ., were substantially met in this case," Lee v. Kemna, 534 U.S. 362, 385 (2002).

  Again, Daley objected repeatedly at trial to specific questions-often similar or identical in nature or substance-by the prosecutor, and at specific points in the prosecutor's summation. This was not a situation where defense counsel made a general objection after cross-examination was complete or at the end of the entire summation, see People v. Balls, 69 N.Y.2d 641, 642 (1986). As detailed above, the basis of defense counsel's objections was clear both from the explicit nature of the prosecutor's error and from the specific timing of the objections themselves. Indeed, as to the latter issue, the objections could not have been more "contemporaneous." In short, Daley's timely objections could not have failed to catch "the attention of the trial court," Osborne v. Ohio, 495 U.S. 103, 125 (1990). My "inquiry is guided by the `realities of trial.'" Cotto. 331 F.3d at 246, Daley's counsel specified the already clear grounds for his objections once, his other objections were of a similar nature and based on similar or identical questions by the prosecutor, the impropriety of the conduct he was objecting to was clear, and the trial court never asked him for clarification or a conference at sidebar, Given these realities. I question what else Daley could have done to make his position clear to the trial court, and whether it would have served any perceivable state interest to force him to do so. See Lee, 534 U.S, at 381.

  As respondent points out, however, the Appellate Division has already decided that Daley did not comply with section 470.05(2) as a matter of Jaw, This Court's task "is not to determine whether that ruling was correct, but to determine its adequacy to preclude federal habeas review." Cotto, 331 F.3d at 247. As that is a federal question, I must "independently consider the degree to which § 470.05 was complied with to determine whether federal habeas review should be precluded," Id. For the foregoing reasons, I conclude that the Appellate Division's application of the contemporaneous objection rule to this situation is inadequate to preclude federal habeas review of this claim. 2. Prosecutorial Misconduct

  Habeas relief based on a claim of prosecutorial misconduct is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also Pimentel v. Walsh, No, 02 Civ. 570, 2003 U.S. Dist. LEXIS 19677, at * 19-20 (S.D.N.Y. Nov. 4, 2003) ("To obtain relief on a prosecutorial misconduct claim, a habeas petitioner must show that `the prosecutor engaged in egregious misconduct . . . amounting to a denial of constitutional due process.'" (ellipsis in original) (quoting Floyd v. Mcachum, 907 F.2d 347, 353 (2d Cir. 1991))), Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceeding. DeChristoforo, 416 U.S. at 643. In making this determination, I consider the severity of the prosecutor's conduct, the measures, if any, that the trial court took to remedy any prejudice, and the certainty of conviction absent the prosecutor's remarks. See Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994).

  a. The Summation

  Daley alleges that the prosecutor, during her summation, told the jury that they "would have to find all the People's witnesses were liars in order to acquit." (Pet. at 7.) The record, however, does not support Daley's argument. The prosecutor's summation was as follows, in pertinent part:

[PROSECUTOR]: Every single piece of evidence that you heard in this courtroom corroborates what Charles Dunham [i.e., the victim] said. Every single thing. . . .
When you think about [Daley's] testimony compare and contrast his testimony to the other witnesses that you heard. They're very different, Because think about it ladies and gentlemen, if you believe him that means you can't believe every single other witness that testified,
[DEFENSE]: Objection
THE COURT: Overruled.
[PROSECUTOR]: That means Sandra Lane is not telling you the truth about the dirty looks. That means Sandra Lane is not telling you the truth. . . . That means Cheryl Howard.
[DEFENSE]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: That means Cheryl Howard is not telling you the truth about what she heard him say about what was going on upstairs. That means the police weren't telling you the truth about the ballistics being around the body, That means Lester is not telling the truth. So if you believe him every single person that testified other than this defendant is lying. Does that make sense? The most motive to not tell you the truth is this defendant.
(Tr. at 47, 51-52.) New York courts have held that comments by the prosecutor in summation indicating to the jury that in order to acquit a defendant they must find that a witness lied are "improper and prejudicial." People v. Langford, 545 N.Y.S.2d 610, 611 (2d. Dep't 1989) ("We have often held, especially in close cases revolving around the identification testimony of the complainant, . . . that comments which indicate to the jury that in order to acquit the defendant they must find that the complainant lied, are improper and prejudicial."); People v. Bull, 630 N.Y.S.2d 354, 356 (2d Dep't 1995) (citing Langford), The prosecutor here did not make that contention, however. Rather, she argued that in order to believe Daley's testimony, the jury would have to disbelieve the rest of the testimony presented in the case. This argument does not shift the burden of proof to the defendant, which is the concern of New York cases such as Langford and Bull, See Langford, 545 N.Y.S.2d at 611; Bull, 630 N.Y.S.2d at 356. In any event, any error in the prosecutor's summation was harmless, as discussed below. b. The Cross-Examination of Daley

  In support of his claim that the prosecutorial misconduct at his trial was so pervasive as to deprive him of a fair trial, Daley cites numerous instances where the prosecutor forced Daley, during cross-examination, to testify that other witnesses were lying:

Q. Did you feel[] they were following you around?
A. Absolutely not.
Q. Did you think they were out to get you?
A. No,
Q. So Cheryl is lying also, correct?
[DEFENSE]: Objection to the characterization,
THE COURT; Overruled.
Q. Cheryl is not telling the truth either, right?
[DEFENSE]: Objection.
THE COURT: Overruled.
A. I guess so.
Q. She's not telling the truth, correct?
A. I guess not.
Q. You never went to Lester's home and he came to your home?
A. No, absolutely not. Absolutely not.
So Lester is making that up?
[DEFENSE]; Objection.
THE COURT: Overruled.
A. I guess so. He never came to my apartment,
(Tr. at 465, 471,) In one particularly egregious exchange, the prosecutor tried to contradict Daley's testimony with statements from other witnesses that had not been elicited in those witnesses' testimony:
Q. You never spoke to anyone and told them you were shot and that's why you were off duty?
A. No.
Q. You never told them that?
A. No.
Q. You never told Sandra Lane that?
A. No. Q. Lester Nicoleau?
A. No.
Q. So they're making that up?
A. I didn't hear them say that.
[DEFENSE]: Objection.
[Prosecution moves on to different line of questioning with no ruling by the court,]
(Id. at 461-62,) In fact, none of the witnesses at trial, including Lane and Nicoleau, testified that Daley had told him or her that he was on disability because he had been shot on the job. Later, the prosecutor made herself a credibility witness:
Q. And do you remember your brother telling you on that date-well, he checked the computers to find out criminal records, do you remember that?
A. No.
Q. You don't remember that? I was there. (Defense counsel) was there.
[DEFENSE]: Objection.
THE COURT: Overruled.
Id. at 464.)

  The prosecutor's cross-examination of Daley was certainly improper under New York law. See, e.g., People v. Leuthner, 627 N.Y.S.2d 776, 777 (2d Dep't 1995) (granting new trial due to prosecutorial misconduct, including, inter alia, asking the defendant if the complainant was lying) — People v. Davis, 492 N.Y.S.2d 212, 214 (4th Dep't 1985) ("We have consistently condemned prosecutorial cross-examination, such as took place here, which compels the defendant to state that other witnesses lied in their testimony,"); cf People v. Santiago. 432 N.Y.S.2d 216, 217 (2d Dep't 1980) ("[T]he prosecutor's vouching for the police officer's testimony constituted improper bolstering."). However, for the reasons stated below, the error was harmless. 3. Improper Character Evidence

  Daley contends that the trial court erroneously admitted unduly prejudicial character evidence that portrayed him as violent, antisocial, and paranoid.*fn3 This evidence, Daley continues, was admitted solely to show Daley's propensity for violence, and constituted a denial of due process of law. Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York. 557 F.2d 289, 292 (2d Cir 1977)), Erroneously admitted evidence must be "crucial, critical, [and] highly significant." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). In this regard, petitioner bears a "heavy burden." Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993), aff'd, 71 F.3d 406 (2d. Cir. 1995) (unpublished table decision). However, the Due Process Clause of the Fourteenth Amendment is violated where "the evidence in question `was sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins, 755 F.2d at 19).

  Here, the Appellate Division held, "Contrary to the defendant's contentions, testimony elicited by the People regarding the defendant's conduct in the apartment building prior to the shooting did not constitute improper character evidence, but rather, was properly admitted to explain the defendant's state of mind." Daley, 739 N.Y.S.2d at 613-14. This decision was not unreasonable, and therefore does not justify issuance of the writ. First, Nicoleau's testimony that, after the shooting, Daley said that Durham had "deserved" to be shot because he "was a pain in the . . ., neck to him or ass" (Tr. at 429), was certainly relevant to show that the shooting was not in self-defense (in which case Daley would have said something more along the lines of, "he deserved to be shot because he attacked me"). So was Daley's statement to Nicoleau that the police department would help Daley "cover [the shooting] up," because "[h]e was an ex-policeman, and . . . had a lot of friends on the police force and they would help him, they wouldn't let that happen to one of their own," (Id) The testimony relating to Daley and Durham's relationship was also relevant as evidence tending to prove which was the initial aggressor.

  The admissibility of testimony regarding Daley's demeanor around tenants other than Durham is less obvious, This testimony seems to me to have served little purpose other than casting Daley as paranoid or antisocial. However, it is not enough that I disagree with the state court's decision, or find it to be error; rather, that decision must also be unreasonable. Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 411 (2000)). Here, where the central issue was whether Daley acted out of aggression or self-defense. I cannot say that the Appellate Division's decisions were unreasonable. In any event, any error was harmless, as discussed below.*fn4

  4. Harmless Error

  Prior to the passage of AEDPA in 1996, federal habeas courts applied the harmless error standard established in Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), under which a petitioner was required to show that the constitutional error "had a substantial and injurious effect or influence in determining the jury's verdict"; in other words, "actual prejudice." Id. at 637. It is ail open question in this circuit, however, whether Brecht survives AEDPA, or whether now a federal habeas court should determine instead whether the state court's decision was contrary to, or involved an unreasonable application of the Chapman v. California harmless error standard. 386 U.S. 18, 24 (1967) ("[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."). See Loliscio v. Goord, 263 F.3d 178; 185 n.1 (2d Cir. 2001); Noble v. Kelly, 246 F.3d 93, 101 n.5 (2d Cir. 2001). Because I conclude that Daley has failed to establish harm wider either standard, I need not decide this question.

  Even viewing all the alleged errors "in combination," as Daley urges me to do (Pet. at 5), I cannot conclude that the Appellate Division's conclusion that "any error was harmless in light of the overwhelming evidence of the defendant's guilt," Daley, 739 N.Y.S.2d at 614, was unreasonable, or that the errors "had a substantial and injurious effect or influence in determining the jury's verdict," Brecht, 507 U.S. at 637. Besides Durham, who testified to the shooting in detail, the government offered the testimony of Nicoleau, who testified to damaging statements made by Daley after the shooting:

Q. And did the defendant, Mr. Daley, ever tell you anything about the police handling of the incident?
A. Yes.
Q. What did he tell you?
A. I was told that, uhmm, they would help him, they would cover it up.
Q. He said they would cover it up?
A. Yes.
Q. Did he tell you why they would cover it up?
A. He was an ex-policeman, and that he had a lot of friends on the police force and they would help him, they wouldn't let that happen to one of their own, Q Did he ever tell you about-did he ever slate his reaction to the shooting?
A. (No response).
Q. (Continuing) How he felt about the shooting?
A. He felt the man deserved it,
Q. Why did he deserve it?
A. Because the man was a pain-the man was a pain in the-in the neck to him or ass. And the man was also a problem to him.
Q. And because of that, he deserved it, he said?
A. Yes. Something to that ex lent, very much to that extent.
(Tr. at 428-30.) The Appellate Division was not unreasonable, in light of this evidence and the testimony of Durham, in concluding that any alleged error was harmless; nor has Daley demonstrated actual prejudice under Brecht. CONCLUSION

  For the foregoing reasons, the petition is denied. Because Daley has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.

  So Ordered.


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