United States District Court, S.D. New York
January 12, 2004.
JOSE TORRES, Petitioner, -v.- BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Jose Torres brings this petition for writ of habeas corpus pro
se pursuant to 28 U.S.C. § 2254. Following a jury trial in Bronx
County Supreme Court, Torres was convicted of one count of Burglary in
the Second Degree. He was sentenced as a second felony offender to ten
years in state prison. Torres is currently incarcerated pursuant to that
judgment in Sing Sing Correctional Facility in Ossining, New York. For
the reasons below, the petition should be denied.
A. Torres's Trial
On September 9, 1996, Carmen Madera came home from work to find her
bedroom in disarray and some jewelry, compact discs, and clothing missing
from her apartment. (Madera: Tr. 555, 557-64). Madera's three children
were in the apartment watching television but they had not noticed the
missing items. (Madera: Tr. 570-71). Madera called the police and Officer
Richard Rogich from the Latent Print Unit responded. (Madera: Tr. 564-65;
Rogich: Tr. 498,
513-14). Upon investigation, Officer Rogich determined that someone
had picked the front door lock and entered the apartment. (Rogich: Tr.
514-15). Officer Rogich dusted for fingerprints and was able to lift
eight sets of prints from items in the apartment. (Rogich: Tr. 516-26).
He also took the fingerprints of Madera and her children so they could be
eliminated as perpetrators. (Rogich: Tr. 526-27).
Detective William Collins of the Latent Print Unit received the prints
taken by Officer Rogich the following day. (Collins: Tr. II. 3, 15).*fn1
First, he examined them using a magnifying glass and determined that five
of the prints were of no value, meaning they could not be identified
under any circumstances. (Collins: Tr. II. 15, 19-21). Detective Collins
entered the three remaining prints one-by-one into a computer system
called SAFIS (State Automated Fingerprint Identification System), which
produces a list of possible matches. (Collins: Tr. II. 22-24). Comparing
the latent prints lifted from Madera's apartment to the inked
fingerprints on file of the possible matches, Detective Collins
identified two of the fingerprints as belonging to Jose Torres.
(Collins: Tr. II. 24-26). The third latent print from the apartment did
not match any prints on file. Detective Collins also later compared the
latent prints from the crime scene to inked prints of Torres taken after
his arrest in this case. (Collins: Tr. II. 25-27; Lang: Tr. 487-94). One
print, lifted from the side of a jewelry box in Madera's bedroom, matched
Torres's left thumb and another, lifted from a different jewelry box also
in Madera's bedroom, matched Torres's left ring finger. (Collins: Tr.
II. 26-27; Rogich: Tr. 524-26).
Madera testified that she did not know Torres or give him permission to
enter her home. (Madera: Tr. 568-69). Torres did not call any witnesses.
The jury found Torres guilty of Burglary in the Second Degree. (Tr.
635). Torres was sentenced to a determinate sentence often years to run
consecutively with a previously imposed sentence on another case.
(Sentencing Tr. 15-16).
B. Torres's Direct Appeal
On appeal to the Appellate Division, First Department, Torres raised
the following three issues:
1. Was appellant's conviction against the weight
of the evidence when he was only connected to the
burglary by a stray fingerprint that was never
conclusively tied to him or otherwise adequately
explained? (U.S. Const., amends. VI, XIV; N.Y.
Const., art. I, § 6).
2. Did the prosecutor violate Batson[v. Kentucky.
476 U.S. 79 (1986)], when she used 90% of her
peremptory challenges to strike nine of the 11 black
women from the jury panel? (U.S. Const., amend. XIV;
N.Y. Const., art. 1, § 11; C.P.L. § 270.25).
3. Was the sentence of 10 years' incarceration
consecutive to a previously imposed sentence of 7 !/2
to 15 years' incarceration excessive given defendant's
background and the nature of the offense?
Brief of Defendant-Appellant, dated July 2001 ("Pet. App. Div. Brief)
(reproduced as Ex. 1 to Affidavit in Opposition to Petition for Writ of
Habeas Corpus, filed August 1, 2003 ("Opp. Aff.")), at 2, 11, 19. With
respect to the first issue, Torres's brief on appeal also challenged the
legal sufficiency of the evidence against him inasmuch as it cited to
Jackson v. Virginia. 443 U.S. 307
(1979). See id. at 11. 18.
On February 14, 2002, the Appellate Division unanimously affirmed
Torres's conviction. People v. Torres. 291 A.D.2d 267 (1st Dep't 2002).
In holding that "[t]he verdict was not against
the weight of the evidence," the court stated that "[t]he fingerprint
expert sufficiently stated the facts underlying his opinion that two
latent fingerprints recovered from the burglarized premises matched those
of defendant." Id. at 267. The court declined to review Torres's Batson
claim because Torres's arguments that the race-neutral explanations
offered by the prosecutor were pretextual were "unpreserved." Id. The
court went on to state, "[w]ere we to review these claims, we would find
that the court properly found the explanations to be nonpretextual." Id.
As for his third claim, the court found no basis for reducing Torres's
By letters dated February 26, 2002 and March 4, 2002, Torres sought
leave to appeal from the New York Court of Appeals with respect to all of
the issues raised in his brief to the Appellate Division. See Opp. Aff.
¶ 8. On May 10, 2002, leave was denied. People v. Torres. 98 N.Y.2d 656
C. The Instant Habeas Petition
Torres timely filed this petition for writ of habeas corpus on May 12,
2003. He argues that his conviction was against the weight of the
evidence, that the evidence adduced at trial was legally insufficient to
support his conviction beyond a reasonable doubt, and that the
prosecutor's use of peremptory challenges violated Batson. See Petition
for Writ of Habeas Corpus, filed May 12, 2003 ("Petition"), at 5-6.
Torres has properly exhausted his state law remedies as he has fairly
presented the constitutional nature of these claims to each of the state
courts. See Dave v. Attorney Gen., 696 F.2d 186, 190-92 (2d Cir. 1982)
(en bane), cert. denied, 464 U.S. 1048 (1984).
II. STANDARD OF REVIEW
Under the Antiterrrorism and Effective Death Penalty Act of 1996
("AEDPA"), a petition for writ of habeas corpus may not be granted with
respect to any claim that has been "adjudicated on the merits" in the
state courts unless the state court's adjudication: "(1) resulted in a
decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d). The
Second Circuit has held that for a state court decision to constitute an
"adjudication on the merits," the state court need only base its decision
on "the substance of the claim advanced, rather than on a procedural, or
other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It
is not necessary for the state court to refer to any federal claim or to
any federal law for AEDPA's deferential standard to apply. Id. at 312.
In this case, although the state urged on appeal that Torres's
sufficiency claim was unpreserved for appellate review, see Respondent's
Brief, dated December 2001 (reproduced as Ex. 2 to Opp. Aff), at 8, the
Appellate Division declined to find a procedural bar, see Torres. 291
A.D.2d at 267. Accordingly, this claim was apparently denied "on the
merits." The only point of uncertainty is that the Appellate Division's
decision made reference only to the "weight of the evidence" claim
without making specific reference to the "sufficiency of the evidence"
argument that had been alluded to in Torres's brief. There can be no
doubt, however, that the Appellate Division denied this claim on
substantive rather than procedural grounds. First, the Appellate Division
made specific reference to the fingerprint expert as "sufficiently"
the match. Id; cf Norde v. Keane. 294 F.3d 401, 410 (2d Cir. 2002) ("an
issue raised maybe considered adjudicated `on the merits' for AEDPA
purposes even when the state court does not specifically mention the claim
but uses general language referable to the merits"). Second, the
Appellate Division's explanation that the conviction was not against the
"weight" of the evidence meant a fortiori that the sufficiency standard
had been met. See Torres v. Greene. F. Supp.2d , 2003 WL
22510366, at *3 n.4 (S.D.N.Y. Nov. 4, 2003). As the Second Circuit has
noted, where the state court does not set forth an explicit holding as to
the federal constitutional claim, a federal court must necessarily apply
the deferential 28 U.S.C. § 2254(d) standard to the state court's
"implicit holding." Tueros v. Greiner. 343 F.3d 587, 591 (2d Cir. 2003).
Because the Appellate Division's determination was "on the merits," the
deferential AEDPA standard of review applies.
In Williams v. Taylor. the Supreme Court held that a state court
decision is "contrary to" clearly established federal law only "if the
state court applies a rule that contradicts the governing law set forth"
in Supreme Court precedent or "if the state court confronts a set of
facts that are materially indistinguishable from a decision [of the
Supreme Court] and nevertheless arrives" at a different result.
529 U.S. 362, 405-06 (2000). The Williams Court also held that habeas
relief is only available under the "unreasonable application" clause "if
the state court identifies the correct governing legal principle from
[the Supreme Court's] decisions but unreasonably applies that principle
to the facts of the prisoner's case." Id. at 413. A federal court may not
grant relief "simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly." Id. at 411. Rather,
the state court's application must have been "objectively unreasonable."
Id. at 409.
A. Weight and Sufficiency of the Evidence
1. Weight of the Evidence
Torres first claims that his conviction was against the weight of the
evidence because the only evidence against him was testimony that his
fingerprints had been found on jewelry boxes in the victim's bedroom.
See Petition at 5-5B; see also Memorandum of Law, filed May 12, 2003
("Pet. Mem."), at 8-15. He claims that the fingerprint expert laid no
foundation for this testimony. Petition at 5. He also argues that the
evidence against him was "legally insufficient" for the same reason. Id.
at 5 A.
Under 28 U.S.C. § 2254(a), federal habeas review is available for a
state prisoner "only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States." Errors of
state law are not subject to federal habeas review. See, e.g., Estelle
v. McGuire. 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief a
petitioner must demonstrate that the conviction resulted from a state
court decision that violated federal law. See, e.g., id. at 68. Torres's
argument concerning the weight of the evidence is not cognizable on
federal habeas review because it does not present a federal
constitutional issue. See, e.g., Wilson v. Senkowski. 2003 WL 21031975,
at *8 (S.D.N.Y. May 7, 2003) (citing cases); Glisson v. Mantello.
287 F. Supp.2d 414, 425 (S.D.N.Y. 2003) (citing cases); Correa v.
Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001); Kearse v. Artuz. 2000 WL
1253205, at *1 (S.D.N.Y. Sept. 5, 2000); accord Young v. Kemp.
760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no
power to grant habeas corpus relief because it finds that the state
conviction is against the `weight' of the evidence . . . "), cert.
denied, 476 U.S. 1123 (1986).
2. Sufficiency of the Evidence
Torres's claim that the evidence was insufficient to support his
conviction beyond a reasonable doubt, however, is a cognizable claim
under the Due Process Clause of the Fourteenth Amendment, which prohibits
a criminal conviction "except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime," In re Winship. 397 U.S. 358,
364 (1970). In light of Winship, the Supreme Court has held that when
reviewing a state court conviction, a federal habeas court must consider
whether there was "sufficient evidence to justify a rational trier of the
facts to find guilt beyond a reasonable doubt." Jackson. 443 U.S. at
Nonetheless, it is settled that a habeas petitioner challenging the
sufficiency of the evidence underlying his conviction bears a "very heavy
burden." Knapp v. Leonardo. 46 F.3d 170, 178 (2d Cir.) (internal
quotation marks and citation omitted), cert. denied. 515 U.S. 1136
(1995). To prevail, the petitioner must show that "upon the record
evidence adduced at the trial, no rational trier of fact could have found
proof of guilt beyond a reasonable doubt." Jackson. 443 U.S. at 324;
accord Ponnapula v. Spitzer. 297 F.3d 172, 179 (2d Cir. 2002). In
conducting this inquiry, all of the evidence and all possible inferences
that maybe drawn from the evidence are to be considered in the light most
favorable to the prosecution. Jackson. 443 U.S. at 319; accord Maldonado
v. Scully. 86 F.3d 32, 35 (2d Cir. 1996). Furthermore, "assessments of
the weight of the evidence or the credibility of witnesses are for the
jury" and thus a habeas court will "defer to the jury's assessments of
both of these issues." Maldonado. 86 F.3d at 35; accord Rosa v. Herbert.
277 F. Supp.2d 342, 347 (S.D.N.Y. 2003) ("the court must defer to the
jury's assessments of the weight of the evidence and the credibility of
witnesses"); Fagon v. Bara.
717 F. Supp. 976, 979-80 (E.D.N.Y. 1989) ("this court is not free to
make credibility judgments about the testimony . . . or to weigh
Under New York law, "[a] person is guilty of burglary in the second
degree when he knowingly enters or remains unlawfully in a building with
intent to commit a crime therein, and when . . .[t]he building is a
dwelling." N.Y. Penal Law § 140.25(2). Viewed in the light most
favorable to the prosecution, all of the elements of Burglary in the
Second Degree were sufficiently proven at trial. Carmen Madera's
testimony established that the apartment was a dwelling in which five
people resided. (Madera: Tr. 554-55). She testified to coming home and
finding her bedroom ransacked and personal property missing. (Madera:
Tr. 557-64). Officer Rogich described how he determined that the
apartment door had been tampered with and how he dusted the apartment for
fingerprints. (Rogich: Tr. 514-26). Detective Collins, who was certified
as an expert, testified as to the process by which the fingerprints
lifted from jewelry boxes in Madera's bedroom were matched with
fingerprints on file of Jose Torres as well as with the fingerprints
taken of Torres after his arrest in this case. (Collins: Tr. II. 14-28).
Carmen Madera testified that she did not know Jose Torres and had never
given him permission to enter or remain in her home. (Madera: Tr.
568-69). She also testified that she had cleaned the jewelry boxes with
Windex and a cloth two days before the robbery. (Madera: Tr. 561-62).
Torres's only contention is that the evidence against him was legally
insufficient because Detective Collins "provided no explanation for his
conclusion that the prints matched" and thus his "bald conclusion" "does
not deserve conclusive effect." Petition at 5-5A; see also Pet. Mem. at
9, 11, 13-14 (arguing that Detective Collins's testimony was insufficient
because he did not state the number of characteristics which matched, he
did not indicate how certain he was of his
conclusion, and his conclusion was never independently verified).
In fact, Detective Collins did testify regarding the basis for his
conclusion that the prints matched. He testified that he first used a
magnifying glass to determine which prints, if any, were "of value."
(Collins: Tr. n. 19). He explained the definition of this term and that
three of the eight prints had value. (Collins: Tr. II. 19-22). He then
explained what the SAFIS computer system was, how the prints on file were
obtained, and that the system generated a list of possible matches.
(Collins: Tr. II. 22-24). Next,
Detective Collins testified that he compared each of the possible
matches to the prints recovered from the scene in this case. (Collins:
Tr. II. 24-25). Collins also later compared the prints from the scene
with a new set of Torres's fingerprints taken after his arrest. (Collins:
Tr. II. 25-27).
Detective Collins also explained at length the process by which prints
are compared. In particular, he detailed the various characteristics he
looks for in the prints and that the characteristics must appear in the
same relative position for prints to match. (Collins: Tr. II. 11-13).
Collins explained that there are five characteristics, or "points of
identity," that he looks for: (1) ending ridges, where a ridge of raised
skin simply ends; (2) bifurcations, where a single ridge divides or forks
into two ridges; (3) dots; (4) short ridges, where a ridge has two
visible ends; and (5) enclosures or islands, where a ridge branches into
two lines, forms a circular enclosure, and then closes again. (Collins:
Tr. II. 11-12).
Based on his examinations, Detective Collins concluded that one print,
lifted from the side of a jewelry box in Madera's bedroom, matched
Torres's left thumb and another, lifted from a different jewelry box,
matched Torres's left ring finger. (Collins: Tr. II. 26-27; Rogich: Tr.
524-26). He testified that he reached this conclusion by looking at "the
ending ridges, dots, island enclosures, bifurcations, forking ridges that
are contained in both [sets of prints] and
seeing if they're in the same relative position to one another in
both." (Collins: Tr. II. 26). Contrary to Torres's contention, there is
no requirement that a fingerprint expert specify a particular number of
matching characteristics or "how certain he was of the match," Pet. Mem.
at 14. Detective Collins's testimony was subject to cross-examination and
rebuttal by Torres and the jury was free to accept or reject his
testimony that the fingerprints matched. It cannot be said that "no
rational trier of fact could have found proof of [the fingerprint match]
beyond a reasonable doubt," Jackson. 443 U.S. at 324.
In cases where fingerprints found at the scene of the crime are the
only evidence of a defendant's guilt, courts in other circuits have held
that a reasonable juror may find guilt beyond a reasonable doubt as long
as "the evidence indicates that the imprinted object was generally
inaccessible to the defendant except during the commission of the crime."
Gibson v. Collins. 947 F.2d 780, 785 (5th Cir. 1991). cert. denied.
506 U.S. 833 (1992); accord Mikes v. Borg, 947 F.2d 353, 361 (9th Cir.
1991), cert. denied. 505 U.S. 1229 (1992); United States v. Bush.
749 F.2d 1227, 1229-30 (7th Cir. 1984). cert. denied, 470 U.S. 1058
(1985); Borum v. United States. 380 F.2d 595 (D.C. Cir. 1967). In Borum,
the defendant's fingerprints were found on jars in the victim's home that
had contained valuable coins. 380 F.2d at 596. The court overturned the
conviction because there was no evidence that the defendant touched the
jars during the course of a robbery. Id. One of the government's
witnesses testified that the prints could have been on the jars
"indefinitely" and there was no evidence as to when the victim had
acquired the jars or whether he had ever removed them from his home. Id.
at 596-97. Gibson, by contrast, upheld a conviction where the
petitioner's fingerprints were found on two silver trays that were moved
during the course of a burglary and the homeowner testified that
petitioner had never been permitted inside the home. 947 F.2d at 780-81,
In this case, Torres's fingerprints were found on the very objects from
which Madera's jewelry was stolen and she testified that Torres had never
been permitted in her home and that she had cleaned the jewelry boxes
just two days prior to the robbery. The circumstances surrounding the
discovery of Torres's fingerprints are sufficient to support a reasonable
juror's finding of guilt beyond a reasonable doubt.
B. Batson Violation
Torres's second claim for habeas relief is that the prosecutor's use of
peremptory challenges to strike "female African-American[s]" from the jury
violated Batson v. Kentucky, 476 U.S. 79 (1986). See Petition at 6-6B;
see also Pet. Mem. at 16-22. Under Batson, there is a three-step process
for determining whether peremptory challenges have been exercised
First, the defendant must make a prima facie showing
that the prosecutor has exercised peremptory
challenges on the basis of race. Second, if the
requisite showing has been made, the burden shifts to
the prosecutor to articulate a race-neutral
explanation for striking the jurors in question.
Finally, the trial court must determine whether the
defendant has carried his burden of proving purposeful
Hernandez v. New York, 500 U.S. 352
, 358-59 (1991) (citing Batson, 476
U.S. at 96-98). During jury selection in this case, defense counsel
raised a Batson objection based on the fact that the prosecutor had
exercised peremptory challenges against nine black females. (Tr.
376-81). The court then called upon the prosecutor to give reasons for
her strikes. (Tr. 381-82). In
response, the prosecutor gave a lengthy description of her reasons
for striking each of these prospective jurors, which included lack of eye
contact, lack of assertiveness, lack of open-mindedness, and personal
experience with burglary. (Tr. 382-87).
Following this recitation, the prosecutor offered the court and defense
counsel her notes on the jurors, which the court declined. (Tr. 387-88).
Defense counsel then stated, "Your Honor, I just have one brief comment."
The court replied, "You can make any comment you'd like." Defense counsel
then addressed whether one of the jurors at issue was in fact black but
made no challenge whatsoever to the reasons given by the prosecutor for
her challenges. (Tr. 388-89). Following some colloquy on the race of the
juror, the court asked, "[A]nything further[?]" Defense counsel
responded, "No, Your Honor."
The trial court then ruled that there was "no basis on which to
question the grounds set forth by the People," (Tr. 391), and held that"
[t]here's no reason based upon my review of my notes to find that any of
the stated reasons are [pretextual] that is made in any way to [conceal]
a race or gender based ground for challenge so I'm denying the Batson
challenge," (Tr. 391-92). Defense counsel did not make any further
objections and, after two alternate jurors were agreed upon, indicated
that the jurors seated were satisfactory. (Tr. 393) ("Court: Are the
jurors satisfactory to the People[?] People: Yes, Your Honor, they are.
Court: To defense[?] Defense: Yes, Your Honor."). The jury was then sworn
in. (Tr. 393).
On appeal, Torres argued that the race-neutral explanations the
prosecutor offered for the strikes during step two of the Batson colloquy
were pretextual. See Pet. App. Div. Brief at 19-26. The Appellate
Division, however, held that these arguments were unpreserved for
appellate review, Torres. 291 A.D.2d at 267, relying on the New York Court
of Appeals decision in People
v. Alien. 86 N.Y.2d 101 (1995). Alien held that if trial counsel has
reason to believe that the race-neutral reasons offered by the proponent
of a peremptory strike are pretextual for example, because the
articulated neutral factors have been applied unevenly "we
require that those concerns be fully articulated to the trial court
during its factual inquiry." Id. at 110-11. Thus, the state procedural
rule relied upon in this case requires a party making a Batson challenge
to fully articulate any reason the party believes the race-neutral
reasons given by their opponent are pretextual. Because defense counsel
did not articulate any arguments regarding pretext to the trial court,
the threshold question is whether these claims can now be reviewed.
2. Law Governing Procedural Default
Federal habeas review of a claim is prohibited if a state court rests
its judgment "`on a state law ground that is independent of the federal
question and adequate to support the judgment.'" Lambrix v. Singletary,
520 U.S. 518, 522-23 (1997) (quoting Coleman v. Thompson. 501 U.S. 722,
729 (1991)). Where a state court rejects a petitioner's claim because the
petitioner failed to comply with a state procedural rule, the procedural
default constitutes an adequate and independent ground for the state
court decision. See, e.g., Coleman. 501 U.S. at 729-30, 749-50. A
procedural default will "bar federal habeas review of the federal claim,
unless the habeas petitioner can show `cause' for the default and
`prejudice attributable thereto,' or demonstrate that failure to consider
the federal claim will result in a `fundamental miscarriage of justice.'"
Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted): accord
Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804,
809 (2d Cir. 2000); Bossett v. Walker. 41 F.3d 825, 829 (2d Cir. 1994),
cert. denied, 514 U.S. 1054 (1995); see also Harris. 489 U.S. at 264 n.10
("[A]s long as the state court explicitly invokes a state procedural bar
rule as a
separate basis for decision," the adequate and independent state ground
doctrine "curtails reconsideration of the federal issue on federal
habeas."). To show a "fundamental miscarriage of justice," a petitioner
must make a demonstration of "actual innocence." See, e.g., Calderon v.
Thompson. 523 U.S. 538, 558-59 (1998): accord Dunham v. Travis,
313 F.3d 724, 730 (2d Cir. 2002).
a. The "Independent" Requirement
As noted, a procedural bar applies only where it constitutes both an
"independent" and "adequate" state law ground. With respect to the
"independent" requirement, there can be no question that the state
court's unambiguous and explicit invocation of Allen was "independent"
inasmuch as the court "clearly and expressly" stated that its decision
rested on a state procedural bar and not on any rule of federal law.
Harris. 489 U.S. at 263; accord Harris v. Artuz. 2001 WL 435636, at *5
(S.D.N.Y. Apr. 30, 2001) (reliance on Allen represents an "independent"
state ground). In addition, it makes no difference that the Appellate
Division's ruling in Torres's case also stated that "[w]ere we to review
these claims, we would find that the court properly found the
explanations to be nonpretextual," Torres. 291 A.D.2d at 267. The
doctrine of procedural default applies even where the state court issues
an alternative holding addressing the procedurally defaulted claim on the
merits. See, e.g., Harris. 489 U.S. at 264 n.10; Velasquez v. Leonardo.
898 F.2d 7, 9 (2d Cir. 1990) (per curiam). Thus, the Appellate Division's
reliance on the procedural default constitutes an "independent" state
ground for the decision.
b. The "Adequate" Requirement
To be an "adequate" state ground, the procedural rule relied on by the
state court must be "`firmly established and regularly followed' by the
state in question." Garcia v. Lewis.
188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia 498 U.S. 411,
423-24 (1991)). Whether application of the procedural rule is "firmly
established and regularly followed" must be judged in the context of "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." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir.
2003) (citing Lee v. Kemna, 534 U.S. 362, 386-87 (2002)). The Second
Circuit has set forth the following "guideposts" for making this
(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
caselaw 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
Id. (citing Lee. 534 U.S. at 381-85).
With respect to the first Cotto "guidepost," Torres's failure to
explain why the prosecutor's reasons were pretextual was "actually
relied" on by the trial court in the sense that the trial court was not
given the opportunity to consider any arguments from Torres that the
prosecutor's reasons were in fact pretextual. Instead, the trial court was
presented only with the prosecutor's explanations of why she had exercised
her peremptory challenges against particular jurors. Torres now makes
much of the fact that the trial court went on to explicitly rule against
him on the issue of pretext, thus suggesting that any compliance with the
preservation requirement on his part was unnecessary. See Pet. Mem. at
20-21 (citing N.Y. Crim. Proc. Law ("CPL") § 470.05(2) for the
proposition that an issue is preserved for appeal if the trial court
"expressly decided the question"). But while it cannot be said
unequivocally that compliance
with the state rule "would have changed the trial court's decision," it
was certainly reasonable for the trial court to have expected that were
there any defects in the prosecutor's explanations, defense counsel would
have brought those defects to its attention. Cf. Cotto. 331 F.3d at 243
(while "the likely impact of a timely objection involves a certain degree
of speculation," it is possible that "the trial court may well have come
to a different conclusion" had an objection been raised).
Turning to the second inquiry, New York courts have consistently
applied the rule that a party must register "a protest" to any legal
ruling "at the time of such ruling . . . or at any subsequent time when
the court had an opportunity of effectively changing the same," CPL
§ 470.05(2). As Torres recognizes, see Pet. Mem. at 21, the holding
in Alien is merely an application of this rule. As of the time of
Torres's trial, numerous courts in New York had specifically barred
review of claims where a defendant had failed to challenge as pretextual
the race-neutral reasons offered by the prosecution for its peremptory
strikes relying either on CPL § 470.05(2), case law
(including Allen), or both. See, e.g., People v. Wall. 248 A.D.2d 650,
650 (2d Dep't 1998); People v. Guzman. 227 A.D.2d 642, 643 (2d Dep't
1996); People v. Ward. 227 A.D.2d 508, 509 (2d Dep't 1996); People v.
McCargo. 226 A.D.2d 480, 481 (2d Dep't 1996); People v. Garcia,
202 A.D.2d 189, 190 (1st Dep't 1994); People v. Manigo, 165 A.D.2d 660,
661-62 (1st Dep't 1990). Thus, New York law is clear that "compliance
with the rule was demanded in the specific circumstances presented,"
Cotto, 331 F.3d at 240.
As for the final factor delineated in Cotto, the record indicates that
Torres did not "substantially comply" with the procedural rule. Indeed,
he did not comply in any form as there is no statement anywhere in the
record that defense counsel contended that the race-neutral
explanations offered by the prosecutor were pretextual. Moreover,
demanding perfect compliance with the procedural rule in this case serves
the legitimate governmental interest of ensuring that a trial judge is
alerted to potential errors when they still may be avoided or addressed.
In sum, a review of the Cotto guideposts makes clear that the
procedural rule relied upon by the state court is "firmly established and
regularly followed," such that it is "adequate" to preclude federal
review of Torres's Batson claim. See Cotto. 331 F.3d at 240; see also
Garcia, 188 F.3d at 79-82 (finding that CPL § 470.05 constitutes an
"adequate" state ground precluding habeas review).
Torres makes no claim of any circumstances that would constitute
"cause" for the procedural default. See Harris. 489 U.S. at 262. He has
also failed to put forward any evidence of "actual innocence," which
could demonstrate a "fundamental miscarriage of justice" sufficient to
excuse the procedural default. See Calderon. 523 U.S. at 558-59. Thus,
the procedural default constitutes an adequate and independent ground for
the state court decision in this case and federal habeas review of
Torres's Batson claim is precluded.
For the foregoing reasons, Torres's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from service of
this Report and Recommendation to file any objections. See also
Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to
shall be filed with the Clerk of the Court, with copies sent to the
Honorable Deborah A. Batts, 500 Pearl Street, New York, New York 10007,
and to the undersigned at 40 Centre Street, New York, New York 10007. Any
request for an extension of time to file objections must be directed to
Judge Batts. If a party fails to file timely objections, that party will
not be permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Am. 474 U.S. 140 (1985).