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United States District Court, S.D. New York

January 5, 2004.

CHRISTOPHER GARCIA, Petitioner, — against —, BRIAN FISCHER, Superintendent, Respondent

The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge


I. Introduction

In this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, pro se petitioner Christopher Garcia ("Garcia") challenges his conviction, following a jury trial in Supreme Court, New York County, on one count each of Robbery in the First and Second Degrees, in violation of sections 160.10(1) and 160.15(4) of the New York Penal Law. (Pet. ¶¶ 1, 5, 7). On January 28, 1999, Justice Richard Carruthers, before whom the case was tried, sentenced Garcia, as a persistent violent offender, to consecutive indeterminate terms of twenty years to life. (See id. ¶¶ 3-4).

  Garcia's petition raises two claims. First, he contends that he was arrested without probable cause. (Id. ¶ 3). Second, he alleges that he was denied a fair trial because the trial judge failed to instruct the jurors, before their dismissal at the end of a Page 2 trial day, that they were not to resume their deliberations until they had reassembled the following day. (Id.).

  In July 2002, the parties consented to my exercise of jurisdiction over this proceeding for all purposes pursuant to 28 U.S.C. § 636(c). (Docket No. 12).

  For the reasons set forth below, Garcia's habeas petition is denied.

 II. Background

  A. Relevant Facts

  1. People's Case

  The People's proof at trial would have permitted a reasonable juror to find as follows: At approximately 11:45 p.m. on November 29, 1997, Jose Martinez ("Jose"), was drinking a beer in front of a candy store located at 600 West 161st Street, between Broadway and Fort Washington Avenue, in Upper Manhattan. (Tr. 28-30, 154).*fn1 Garcia and another man named Anthony Garcia ("Anthony"), approached Jose, and asked whether Jose knew "Pete." (Id. at 30-31, 36, 41-42). Suspicious of the men, Jose responded that he did not know Pete and began to walk away from them toward Broadway. (Id. at 31, 43). Garcia and Anthony followed Jose into the lobby of an empty building, where Garcia grabbed Jose, threw him face-forward against a wall, and Page 3 attempted to remove his bracelet. (Id. at 50-55, 125-26). When Jose turned away from the wall, he saw Anthony aiming a revolver at his face. (Id. at 55-57, 126). After Anthony threatened to kill Jose if he moved, Jose pleaded, "don't do it . . . I have a family." (Id. at 58).

  While Anthony continued to aim the gun at Jose's face, Garcia removed a brown "Guess" wallet, several keys on a key ring, and about $800 (mostly in $20 dollar bills) from Jose's pocket. (Id. at 58-59, 123, 153). In addition, Garcia put his hand in Jose's shirt and broke the chain around his neck to remove it. (Id. at 60, 128). Garcia then told Jose to face the wall again, warning that if he said anything about the robbery, Garcia knew where to find him. (Id. at 60-62). Garcia and Anthony then left after telling Jose to remain facing the wall. (Id. at 62, 128-29).

  After leaving the building, Jose saw the two robbers unsuccessfully attempting to open a door that led to an alley. (Id. at 63-64). Jose shouted, "I ha[ve] been robbed," and then began to pursue Garcia and Anthony, who were running in the direction of Fort Washington Avenue. (Id. at 64-65). As they were running, Anthony turned and fired a shot at Jose, who lost sight of his two assailants when he stepped behind a van. (Id. 66-67).

  Police Officer Robert Savage ("Savage") heard a gunshot coming from 161st Street between Broadway and Fort Washington Avenue. (Id. at 225-26, 228-29, 233). He reported the gunfire over his police radio and ran toward the sound of the shot. Page 4 (Id. at 226). A crowd of people directed another officer and him to 160th Street and Broadway, where they encountered Jose and joined Sergeant Robert Pagliaro ("Pagliaro") and Officer Antony Demonte ("Demonte"). (Id. at 73, 101, 227-28, 230-31, 235-37, 248, 272-73, 299-300).

  Jose informed the officers that he had been robbed, and that two bystanders had told him that the men who were running had entered a white car which was being driven toward Broadway on 160th Street. (Id. at 68, 72-74, 156-57). The officers radioed that they were looking for a white two-door Honda with tinted windows and a sticker on the back with the letter "H." (Id. at 241). Although the officers' efforts to locate this vehicle were unsuccessful, Jose gave the police his beeper number so that they could contact him. (Id. at 75-77, 241-42, 300).

  Less than two hours later, Demonte and Pagliaro stopped a white Honda at 163rd Street and Broadway. (Id. at 244-45, 256, 273-74, 304-05). Garcia was in the passenger seat, alongside the driver, Hector Corniel ("Corniel"); Anthony was in the back with a man named Jose Fong ("Fong"). (Id. at 245, 256, 274-76, 305). Demonte asked the four men to step out of the vehicle after learning that Corniel did not have a driver's license. (Id. at 305-06). The men were then taken to the stationhouse, where they were searched, (Id. at 287, 307). In Garcia's jacket pocket, Demonte found a brown "Guess" wallet and a beeper. (Id. at 289-90, 293-95). Additionally, $889 in cash, consisting mostly of ten- and twenty-dollar bills, was recovered from the four men. (Id. at 291-93, Page 5 307-08). After Demonte tried to page Jose, the beeper recovered from Garcia began to ring. (Id. at 295, 309).

  Jose returned to the stationhouse later that day. (Id. at 77, 296, 309-10). He identified the wallet and the beeper recovered from Garcia as his property. (Id. at 78-80, 1 12, 296). Jose also identified Garcia and Anthony in separate lineups. (Id. at 202-04, 310-11, 340-41, 353, 355).

  2. Defense Case

  Garcia did not call any witnesses to testify on his behalf.

  B. Pretrial Suppression Hearing

  Prior to trial, Justice Carruthers conducted a combined Mapp, Dunaway and Wade hearing*fn2, on September 29, October 2 and 8, 1998. At the hearing, Demonte, Detective Reynaldo Paulino, and Jose testified. Their testimony established that Demonte and Pagliaro had stopped the white Honda because it matched the description of the getaway car that a bystander had given to Jose. (H1. 13-14, 43-44, 80). After the vehicle was stopped, Corniel was arrested for driving with a suspended license, (Id. at 20, 58, 93), and Fong, who was one of the passengers, was placed under arrest when he admitted to the officers that he possessed a bag of marijuana. (Id. at 19, 57-58, 93). Although Garcia and Anthony were not placed under arrest at the time of the traffic stop, the officers advised them that they were being brought to the police station to investigate a crime. Page 6 (Id. at 20-21,93).

  At the police station, Corniel told the officers that the car belonged to his mother. (Id. at 59). Concerned that the car might be stolen, the officers checked under the hood of the car to determine whether the vehicle identification number ("VIN") located there matched the VIN on the registration on the car's windshield. (Id. at 23-24, 68-69, 94). When the officers opened the hood to look for the VIN, Pagliaro found a gun lodged between the headlight and the battery. (Id. at 24-25, 69-71, 94-95). Garcia and Anthony then were arrested, along with Corniel and Fong, for criminal possession of a weapon. (Id. at 25, 71).*fn3

  At the conclusion of the suppression hearing, Anthony's counsel contended that Anthony and Garcia were arrested without probable cause when the officers required them to come to the stationhouse and that the search of the Honda was unlawful because the police were searching for evidence related to the earlier robbery, not a VIN number. (H3. 36-52). He further argued that the property seized from the two men and from the car should have been suppressed as fruits of an improper arrest. (Id. at 52). Garcia's counsel joined in these arguments. (Id. at 55-58).

  On December 10, 1998, Justice Carruthers denied the motions to suppress. (Aff. of Beth J. Thomas, Esq., sworn to on July 9, 2002 ("Thomas Aff."), Exs. A (Pet'r's Page 7 Br. on Appeal) at 10-11, B (People's Br. on Appeal) at 8-9). The Justice found that there was reasonable suspicion to stop the car in which the two men were passengers, and that the officers acted properly in detaining Garcia and Anthony while they investigated the possibility that the car had been used in connection with the robbery of Martinez. (Id. Ex. B at 8). Justice Carruthers further concluded that the search under the hood of the car to locate the VIN number was proper because the driver had been operating it without a license. (Id. at 9). Finally, the Justice held that the discovery of the gun provided probable cause to arrest Garcia and Anthony for possession of a weapon, and to search their persons incident to those arrests. (Id.). For these reasons, the suppression motions were denied.*fn4 (Id.).

  C. Jury Deliberations

  On December 16, 1998, the jury heard closing argument, was instructed as to the applicable law, and began its deliberations. (Tr. at 400-471, 472-517). That afternoon, the jury sent the court two notes requesting certain testimony and further clarification regarding a portion of the charge. (Id. at 518-19). After these requests were addressed, the jurors were directed to continue deliberations. (Id. at 521-27). The trial transcript records this point in the trial as follows:

  [THE COURT:] Members of the jury, I will ask that you return to the jury room and continue your deliberations. Page 8 (Jurors exit courtroom.)

  (Continued on next page.)

 (Id. at 527).

  Although the transcript suggests that the proceedings continued on the next page, pages 528 through 535 are missing from the trial record for reasons which are unknown. The transcript then continues with page 536, which reflects proceedings the following day. On the basis of this gap in the transcript, Garcia argued on his direct appeal that he was denied a fair trial due to the Justice's failure to admonish the non-sequestered jurors to cease deliberations until they had reassembled the following day. (See Thomas Aff Ex. A, at 21-27).

  Upon the People's motion, a hearing to reconstruct the gap in the trial record was held before Justice Carruthers on June 7 and 8, 2000. (Id. Ex. B at 23-24). At the hearing, Justice Carruthers described his usual practice when a non-sequestered jury is given a recess during its deliberations, stating that he "always give[s] the required charge." (RH1. 8). Indeed, he noted that he utilizes a written script for this purpose. (Id. at 9). Although he could not specifically recall giving the Garcia jury a cautionary instruction, he found his actual handwritten instructions preserved in his folder regarding the trial. (Id. at 8-12). Those instructions state:

  One, suspend deliberations; two do not talk about the case among yourselves or with anyone else during this recess on any subject connected with the trial; three you must not read or listen to any news accounts pertaining to this case in the Page 9 unlikely event that there should be media coverage; four, you must not visit the scene of the alleged incident; five, you must report to the Court any attempt by anyone to influence your . . . determination; six, you must not do any research during this recess concerning any matters connected to the trial . . . seven, you must not resume deliberation[s] until all twelve jurors are present tomorrow inside the jury room.

 (Id. at 10).

  At the hearing, the court also received a stipulation that neither the prosecution nor Garcia's counsel had "any specific recollection" of whether Justice Carruthers gave the jury any instructions when it ceased its deliberations for the day on December 16, 1998. (RH2. 2-3). The stipulation further provided that the reporters had no other minutes available for that date. (Id.). Justice Carruthers observed, however, that he had known counsel for Garcia and Anthony for many years, that they and the prosecutor were "highly talented and conscientious attorneys," and that "it would be inconceivable . . . that three highly capable attorneys would have permitted [him] to discharge a jury without first giving them the requisite admonition." (Id. at 5-6).

  For these reasons, Justice Carruthers found that he had admonished the jurors to suspend deliberations until they reassembled the following day. (Id. at 6-7).

  D. Subsequent Procedural History

  Garcia appealed his conviction to the Appellate Division, First Department. His brief on appeal raised two grounds. First, he argued that the statutory presumption of common dominion and control when a firearm is found in a vehicle, see N.Y. Penal Law Page 10 § 265.15(3), was inapplicable to him because the area under the hood of the car, where the weapon was found, was accessible only to the driver. (Thomas Aff. Ex. A at 14-15). Accordingly, he urged the Appellate Division to find that the officers did not have probable cause to believe that he was guilty of a weapons offense. (Id. at 15-19).

  Garcia's second ground for appellate relief was that he was denied a fair trial because the trial court failed to admonish the jurors to cease deliberations until they reassembled the following day. (Pet. ¶ 13). This claim was based primarily on the gap in the trial transcript, which led to the later reconstruction hearing. (See Thomas Aff. Ex. B at 23-24).

  On November 21, 2000, the Appellate Division unanimously affirmed Garcia's conviction. People v. Garcia, 716 N.Y.S.2d 298 (1st Dep't 2000). With respect to the first ground, the Appellate Division held that Garcia's claim was not preserved, and it declined to review that claim in the interest of justice. Garcia, 716 N.Y.S.2d at 298 ("Since this claim was neither argued by defendant at the [suppression] hearing, nor ruled upon by the [trial] court, defendant's argument . . . has not been preserved for appellate review. . . .") (internal citations omitted). The Appellate Division noted further had it reviewed the merits of Garcia's suppression claim, it would have found that his arrest for possession of a weapon "was justified by the statutory presumption of possession . . . which contains no exception for a weapon found under a hood, and was further justified by other evidence tending to connect [him] to a robbery in which a gun was used." Id. Page 11 (citation omitted).

  The Appellate Division similarly determined that Garcia's jury instruction claim was not preserved, and declined to review it in the interest of justice. Garcia. 716 N.Y.S.2d at 298. The court added that, "in any event," Garcia's contention that the trial court failed to instruct the non-sequestered jurors to cease deliberations during the overnight recess was "refuted by the testimony at the reconstruction hearing." Id.

  On January 8, 2001, Garcia's application for leave to appeal to the New York Court of Appeals was summarily denied. People v. Garcia, 96 N.Y.2d 734 (2001).

  Garcia's habeas petition was received by the Pro Se Office of this Court on December 28, 2001, within the one-year statute of limitations, and is therefore timely.

 III. Discussion

  A. Standard of Review

  A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins. 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).

  Section 2254, as amended by the Antiterrorism and Effective Death Penalty Page 12 Act of 1996 (AEDPA), provides, in part, that:

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 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.
28 U.S.C. § 2254(d)(1) (emphasis added).

  As the Second Circuit noted in Jones v. Stinson. 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to `contrary [to]' and `unreasonable.'" "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 [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that reasonable jurists would all agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between `merely erroneous and unreasonable to all reasonable jurists.'" Stinson. 229 F.3d. at 119(quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)). Page 13

  Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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."

  Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."

  "If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. at 389. As discussed below, because Garcia has failed to show that his conviction resulted from such constitutionally infirm proceedings in state court, he is not entitled to federal habeas relief.

  B. Garcia's Fourth Amendment Claim Cannot be Considered

  Garcia's claim that he was arrested without probable cause, and that the fruits of that unlawful arrest should therefore have been suppressed, cannot be considered on habeas review in light of the Supreme Court's decision in Stone v. Powell, 428 U.S. 455 (1976). Pursuant to that decision, "federal habeas corpus relief is not available on the ground that evidence produced at trial was the result of an unconstitutional search and Page 14 seizure, unless the state denied the prisoner an opportunity for full and fair litigation of the claim." Grey v. Hoke. 933 F.2d 117, 121 (2d Cir. 1991). Thus, a Fourth Amendment claim can be addressed on habeas review only when (i) the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations, or (ii) there is a corrective mechanism, but the defendant was unable to use it because of an "unconscionable breakdown in the underlying process." Capellan v. Riley. 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson. 568 F.2d 830, 840 (2d Cir. 1977)).

  The State of New York clearly has provided defendants such as Garcia with the necessary corrective procedures through Section 710 of the New York Criminal Procedure Law ("CPL"). See Capellan. 975 F.2d at 70 n.1 ("federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in [CPL] § 710.10 et seq. (McKinney 1984 & Supp. 1988), as being facially adequate") (quoting Holmes v. Scully. 706 F. Supp. 195, 201 (E.D.N.Y. 1989)); Vega v. Artuz. 97 Civ. 3775 (LTS), 2002 WL 252764, at *12 (S.D.N.Y. Feb. 20, 2002). Therefore, in order to secure habeas relief, Garcia must demonstrate that there was a breakdown in the state process — which typically consists of some sort of "disruption or obstruction of a state proceeding." Capellan, 975 F.2d at 70 (quoting Shaw v. Scully. 654 F. Supp. 859, 864 (S.D.N.Y. 1987)). Garcia has made no such showing here. Accordingly, because Garcia was given a full and fair opportunity to litigate his Fourth Amendment claim prior to trial, it cannot be entertained by this Court. Page 15

  C. Garcia's Fair Trial Claim is Procedurally Defaulted and Meritless

  1. Procedural Default

  Garcia's claim that he was denied a fair trial also cannot be considered by this Court on habeas review. It is well-settled that a federal court may not consider an issue of federal law raised in a state prisoner's petition for a writ of habeas corpus if the state court's prior denial of that claim rested on an adequate and independent state ground. E.g., Harris v. Reed, 489 U.S. 255, 262, (1989); Wainright v. Sykes. 433 U.S. 72, 81, (1977). A procedural default qualifies as such an adequate and independent state ground, Harris. 489 U.S. at 262, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).

  Here, the Appellate Division declined to consider Garcia's claim that he was denied a fair trial based on the trial court's failure to direct the non-sequestered jurors to cease deliberations during the overnight recess because it was not preserved for appellate review. Garcia. 716 N.Y.S.2d at 298. Pursuant to New York's contemporaneous objection rule, an objection must be raised at trial in order to preserve it for appellate review. CPL § 470.05(2) (McKinney 2001). The Appellate Division's finding that Garcia failed to comply with this rule therefore constitutes an adequate and Page 16 independent state ground for rejecting his claim. See Washington v. James, 996 F.2d 1442, 1447-48 (2d Cir. 1993) (federal courts are "reluctant to hear claims procedurally defaulted in state court . . . out of respect for the dual court system and deference to the integrity of state courts"); Philips v. Smith, 717 F.2d 44, 48 (2d Cir. 1983) ("explicit state court reliance on a procedural default bars federal habeas review of the forfeited claim absent a showing of cause and prejudice regardless of whether the state court ruled alternatively on the merits of the forfeited claim").*fn5

  Accordingly, this Court may not consider Garcia's fair trial claim unless he can show both cause for the default and actual prejudice or that the failure to consider his federal claims will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. To demonstrate cause, a petitioner must adduce "some objective factor external to the defense" which explains why he did not raise the claim previously. Murray v. Carrier. 477 U.S. 478, 488 (1986); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray). The circumstances which may constitute cause include: (a) interference by government officials making compliance impracticable; (b) situations in which the factual or legal basis for a claim was not reasonably available to counsel; and (c) ineffective assistance of counsel. See Murray. 477 U.S. at 488; Bossett v. Walker. Page 17 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray). A showing of prejudice requires a petitioner to demonstrate that the failure to raise the claim previously had a substantial injurious effect on his case such that he was denied fundamental fairness. Reyes v. New York, No. 99 Civ. 3628 (SAS), 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999). Finally, to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is "actually innocent." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).

  Garcia has not made any of the showings necessary to overcome his procedural default. Accordingly, this Court cannot consider whether Garcia was prejudiced by Justice Carruthers' alleged failure to give the deliberating jurors a cautionary instruction at the end of the day. See Levine. 44 F.3d at 127 (2d Cir. 1995).

  2. Garcia's Fair Trial Claim Lacks Merit

  Significantly, Garcia would fare no better even if this Court were to address the merits of his fair trial claim. On habeas review, the state court's factual determinations must be presumed to be correct, unless a petitioner demonstrates otherwise by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). In this case, Justice Carruthers found at the reconstruction hearing, based on his trial notes and his usual practice, that he did instruct the jurors to cease deliberations during the overnight recess. (RH2. 6-7). Apart from the gap in the trial transcript, which itself suggests that something must have occurred on the missing pages, Garcia has not presented any evidence which suggests that Justice Carruthers' determination was wrong. Page 18

  More importantly, even if Justice Carruthers failed to deliver an appropriate cautionary instruction to the jury, this would not create a federal constitutional issue. Indeed, even if this case had been tried in federal court, the claimed omission would not constitute reversible error without a showing of actual prejudice. See United States v. Abrams, 137 F.3d 704, 708 (2d Cir. 1998) ("`[i]t has never been the law of this circuit that the trial judge must admonish the jurors not to discuss the case among themselves, although it has been the practice of most of the judges to suggest that it is advisable to refrain from such discussion until the case is concluded.'") (quoting United States v. Viale. 312 F.2d 595, 602 (2d Cir. 1963)). Garcia has not shown that he suffered any such prejudice.

 IV. Conclusion

  For the foregoing reasons, Garcia's petition for a writ of habeas corpus is denied. Additionally, because Garcia has not made a substantial showing of the denial of Page 19 a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability shall not be issued. The Clerk of the Court is respectfully requested to close this case.


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