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
OPINION AND ORDER
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
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.
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
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.
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.
(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
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
(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
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
(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
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
§ 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
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.
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
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
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.
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
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.
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
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
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.
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
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.
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.
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.
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.
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
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.