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TORRES v. FISCHER

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.

I. BACKGROUND

  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, Page 2 513-14). 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). Page 3

  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 Page 4 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 sentence. Id.

  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 (2002).

  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). Page 5

 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" testifying regarding Page 6 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. Page 7

 III. DISCUSSION

  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). Page 8

  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 313.

  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. Page 9 717 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 conflicting testimony").

  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 Page 10 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 Page 11 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 Page 12 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, 785-86.

  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

  1. Background

  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 discriminatorily:

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 discrimination.
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 Page 13 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 Page 14 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 Page 15 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. Page 16 188 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 determination:

(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 interest.
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 Page 17 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 Page 18 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.

  Conclusion

  For the foregoing reasons, Torres's petition should be denied.

  PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  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 objections) Page 19 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).


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