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February 2, 2004.

ALFRED ROBERTS, Petitioner -against- WILLIAM PHILLIPS, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge


On December 15, 1998 petitioner Alfred Roberts was sentenced in Kings County Supreme Court to a sentence of twenty-five years to life in prison after his conviction by a jury on multiple charges, including second degree murder. Roberts' timely petition for habeas corpus under 28 U.S.C. § 2254 followed and is now before the court, together with the state's papers in opposition. For the reasons stated below, the petition is DISMISSED.

Factual Background

  Derrick McKnight was murdered at the Williamsburg Housing Projects in Brooklyn on the night of September 30, 1997, with two gunshots to the head, one to the chest, and five to the back. See Affidavit of Jane Meyers at ¶ 4. The jury found, based upon the testimony of five eyewitnesses who had known Roberts for at least seven years, that Roberts committed the crime with a gun passed to him moments before the victim was shot. The man who passed the gun to Roberts was Antoine Felton, a currently unapprehended accomplice. Id. After the murder Page 2 Roberts fled the area and was found by police in Schcncctady. Id. at ¶ 12. After Roberts' arrest, eyewitness Kevin Sands asked Roberts why he had shot McKnight, and Roberts responded that he was "sorry" and that he had just "blanked out." Id.

  Before testimony in Roberts' trial on murder and related weapons charges began, prosecutors notified the court that Roberts' former counsel had obtained a statement, typed under the letterhead of the defense's investigation firm, from fugitive Antoine Felton. In the statement Felton claimed that he and not Roberts had in fact committed McKnight's murder. Id. at ¶ 7. Felton had purportedly signed the statement about six months after the murder took place. Id. The trial court granted the prosecution's motion to exclude the statement from evidence, on the ground that the statement failed to meet the requirements under New York State law for an admission against penal interest that qualifies as an exception to the rule against hearsay. Id. at ¶ 8.

  During the trial, five eyewitnesses identified Roberts as the person who pulled the trigger on the first two shots, the ones that struck McKnight in the chest and head. One of these eyewitnesses left the scene at that point, but four of them remained to see Roberts shoot McKnight repeatedly in the back as McKnight tried to run away Id at ¶ 9 The circumstances of McKnight's death, as reported by the five eyewitnesses, were corroborated by the medical examiner's testimony. Id. at ¶ 11. One of these eyewitnesses, Jeffrey Jones, also identified the gun used in McKnight's shooting as the same gun, or a similar gun, to one that Roberts had shown to a group of people a year earlier. Id. at ¶ 10.

  Testifying in his own behalf at trial, Roberts asserted that he had gotten into a fistfight with McKnight, and that after the fight ended Felton had returned to the scene and shot Page 3 McKnight. Id. at ¶ 13. Defendant admitted on the stand that he knew all of the eyewitnesses who testified against him, and that he had no "beefs" with any of them. Id. Roberts did claim that two of the five eyewitnesses had never been at the scene of the crime that night, and the other three witnesses had left the scene before McKnight was murdered by Felton. Id. Roberts also denied telling Sands he was sorry for McKnight's death and threatening Sands. Id.

  After Roberts was convicted and sentenced, he appealed his conviction to the Appellate Division. Among the arguments he made there were that the state court was wrong to exclude the written statement allegedly signed by Felton and that the state court was wrong to permit Jones to testify about having previously seen the murder weapon, or one like it, in Roberts' possession. Id. at ¶ 16. The Appellate Division unanimously affirmed Roberts' conviction. See People v. Roberts. 288 A.D.2d 403. Specifically, it found that under New York law Roberts had the burden of establishing that the statement against penal interest exception to the hearsay rule properly applied. Roberts failed to meet that burden because he had submitted no evidence that Felton was unavailable, nor had he presented evidence extrinsic to the statement itself attesting to its "trustworthiness and reliability." The Court of Appeals denied Roberts' leave to appeal. See People v. Roberts, 97 N.Y.2d 760.

 Argument and Analysis

  In his habeas corpus petition, Roberts asserts two grounds for relief: (1) he was denied due process by the trial court's refusal to allow Felton's written statement into evidence, and more particularly by the court's refusal to hold a hearing to determine whether or not Felton was unavailable; and (2) he was denied due process by the admission of Jones' testimony that Roberts Page 4 had the same gun, or one like it, a year earlier. Roberts' claims, however, must be examined against a number of background legal principles he must overcome in order to obtain habeas relief. First and most importantly, under 28 U.S.C. § 2254(d), which governs this proceeding, the petition may not be granted if this court disagrees with the state court's ruling, rather, the court may grant the petition only if the state court's decision was "contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Second, a state court's rulings on evidence normally do not justify federal habeas relief. See Delaware v. Van Arsdall, 475 U.S. 673 (1986) (granting state judges "wide latitude" to rule on evidentiary issues).

  As Roberts and the government have identified, the leading Supreme Court case on the exclusion of statements against penal interest is Chambers v. Mississippi, 410 U.S. 284 (1973). In that case, one of the Court's reasons for overturning a guilty verdict was that the trial court refused to admit certain evidence concerning another person's out of court statements that he, not Chambers, had committed the crime. There are a number of significant differences between the circumstances in Chambers and in this case, however. Among those differences are; (1) rather than "mechanistically" applying Mississippi evidence law, which allowed no exception to hearsay for statements against penal interest, the New York trial court weighed all the circumstances of the hearsay statement and applied New York's reasonable legal standard concerning hearsay exceptions of this kind, as laid out in People v. Settles, 46 N.Y.2d 154 (1978) and People v. Brensic, 70 N.Y.2d 9 (1987); (2) unlike Chambers, where three different impartial witnesses said they heard the hearsay confession at different times, and other circumstantial evidence indicated that the declarant had in fact committed the crime, in this case the indicia of Page 5 reliability of the hearsay statement were much weaker, if not nonexistent — Felton's statement, if ever actually made by him, was made in the form of a written statement, probably typed by someone other than Felton, six months after the crime and to an investigator for Roberts; and (3) unlike Chambers, where only one eyewitness (a police officer colleague of the victim) at trial identified the defendant as the actual perpetrator, in this case five different eyewitnesses did so, one of whom was Roberts' cousin and another was Roberts' friend of fifteen years standing. With these differences between the facts of Chambers and the instant case, I cannot conclude that the stale courts' rulings were "contrary to" or an "unreasonable application of the Supreme Court's decision in Chambers v. Mississippi.

  Roberts' argument that the trial court erred by failing to hold a hearing on whether Felton was in fact unavailable is procedurally defaulted, because Roberts failed to make this argument during his appeal to the Appellate Division, Sec Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Roberts has not established that cause and prejudice for this procedural default, nor has he established a fundamental miscarriage of justice. Therefore, habeas relief is not available to Roberts on the ground that the trial court failed to hold a hearing on Felton's unavailability. In any event, Roberts would not have been harmed if Felton had been determined unavailable, because Felton's statement could still have been properly excluded by the trial court as lacking sufficient indicia of reliability.

  As to the question of whether the admission of Jeffrey Jones' testimony that he had in the past seen Roberts with the murder weapon or with a similar gun violated Roberts' due process right to a fair trial, it is clear that the admission of prior bad act evidence is perfectly appropriate, as long as the evidence is admitted for some proper purpose, other than to show criminal Page 6 propensity. Federal Rule of Evidence 404(b) explicitly endorses this principle, and Jones' testimony had the proper purpose of linking the defendant to the murder weapon. In any event, in Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) the Supreme Court specifically declined to reach the question of whether the use of "prior crimes or bad acts" to show criminal propensity actually violates Due Process. Thus, since the Supreme Court has taken no position on the issue, it ...

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