United States District Court, S.D. New York
February 5, 2004.
JESUS PEREZ, Petitioner, -against- MELVIN HOLLINS, Respondent
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
Jesus Perez brings this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 challenging his convictions for robbery,
burglary, and criminal impersonation following a jury trial in New York
State Supreme Court, New York County. Mr. Perez argues that his
conviction should be overturned because: (1) a witness provided perjured
testimony before the grand jury; (2) the court issued erroneous jury
instructions; (3) the court improperly submitted lesser included offenses
to the jury; (4) the verdict was against the weight of the evidence; (5)
his sentence was excessive; and (6) there was judicial misconduct during
the trial. For the reasons set forth below, I recommend that the petition
On March 17, 1994, the petitioner and three others entered the Lucky 21
massage parlor and brothel at 5 West 21st Street in Manhattan. (Tr. at
864-65, 868, 873-75).*fn1 The men attacked and
robbed the occupants, including the madam, her boyfriend, and
several prostitutes and customers. (Tr. at 742-44, 883-85, 1097). The
petitioner and his accomplices threatened the occupants with a gun, a
knife, and lit torches. (Tr. at 392, 1093, 1200, 1218). One of the
robbers identified himself as "police" and displayed a badge. (Tr. at
387, 740, 1096). The perpetrators also stole large sums of cash and
jewelry. (Tr. at 410-11, 1090). The men severely beat one victim, injured
two others, and assaulted several other victims. (Tr. at 392, 742-44,
883-85, 1088-89). The petitioner and his accomplices then forced all of
the occupants into a small room and barricaded the door from the outside.
(Tr. at 781, 1089, 1222-23).
While attempting to leave the location, the men were arrested by police
officers. (Tr. at 11-12, 1884-86). Upon searching the perpetrators,
police found valuables belonging to the victims and substantial amounts
of cash in the possession of the petitioner and two other men. (Tr. at
180, 198-200, 413-14). Police also found a knife on the floor near one of
the suspects. (Tr. at 170). A few days later, a cook found a gun in the
brothel's freezer and turned it over to police. (Tr. at 26-27, 99-100,
Mr. Perez and his co-defendants proceeded to trial on February 16, 1995
before New York State Supreme Court Justice Bonnie Wittner. Nine
eyewitnesses recounted the conduct of the petitioner
and his accomplices. Witnesses testified that they saw Mr. Perez
drag one victim to a room, heard the sounds of a beating emanating from
the room, and eventually saw the victim emerge with a limp. (Tr. at
883-85, 889, 1207-08). Another witness testified that he was burned and
beaten unconscious. (Tr. at 742-44). The evidence also established that
the police caught the petitioner and his co-defendants fleeing the crime
scene. (Tr. at 14-15).
Mr. Perez and his co-defendants testified at trial that they acted in
self defense. (Tr. at 1625-28, 1763-65). They maintained that one of the
defendants had left his wallet at the brothel several weeks prior to the
incident, and that several attempts to retrieve the wallet had failed.
(Tr. at 1617-19). The defendants testified that on the night in question,
they again attempted to obtain the wallet but were attacked by the
occupants of the brothel. (Tr. at 1620, 1626-27, 1763-65).
At the conclusion of the trial, Mr. Perez was convicted of one count of
Attempted Robbery in the First Degree, in violation of New York Penal Law
("Penal Law") §§ 110.00 and 160.15(1), five counts of Robbery in the
Second Degree, in violation of Penal Law § 160.10(1), (2)(a), one
count of Burglary in the First Degree, in violation of Penal Law §
140.30(2), and one count of Criminal Impersonation in the First Degree,
in violation of Penal Law § 190.26. (Tr. at 2554-78, 2666-69). Mr.
Perez was acquitted on all robbery and burglary charges premised on the
theory that he carried
a weapon while committing the crime. (Tr. at 2666-69).
The petitioner was sentenced to an aggregate prison term of fourteen to
forty-two years. The sentences consisted of two to six years on the
attempted robbery count and three to nine years on each of four second
degree robbery counts, these sentences to run consecutively. The
petitioner also received three to nine years on the fifth second degree
robbery count, five to fifteen years on the burglary count, and one to
three years on the criminal impersonation count, these sentences to run
concurrently with each other and with the sentences imposed on the other
counts. (S. Tr. at 29-31).*fn2
B. Direct Appeal
Mr. Perez appealed his conviction to the Appellate Division, First
Department, arguing that: (1) he was deprived of his due process right to
a fair trial by the court's excessive interference in the proceedings;
and (2) that his aggregate sentence was harsh and excessive. (Appellate
Division Brief for Defendant-Appellant, attached as Exh. A to Declaration
of Michael P. King in Opposition to Petition for a Writ of Habeas Corpus
dated April 21, 2003 ("King Decl."), at 3). In a decision dated March 9,
2000, and amended on May 11, 2000, the Appellate Division unanimously
affirmed Mr. Perez's conviction. People v. Galloza, 270 A.D.2d 69,
705 N.Y.S.2d 35, 36 (1st Dep't 2000).*fn3 The court found that by
failing to object to the trial judge's conduct, Mr. Perez had not
preserved his claim, and also held that the sentence was not excessive.
Id., 705 N.Y.S.2d at 36.
In two letters dated March 23, 2000 and April 17, 2000, the petitioner
sought leave to appeal to the New York Court of Appeals, relying solely
on the brief submitted by a co-defendant, Garfield Ewan. Mr. Ewan argued
that the Appellate Division had applied an incorrect standard in holding
that the claim of judicial misconduct was not preserved for review.
(Ewan's Letter Application for Leave to Appeal dated April 14, 2000
("Ewan App."), attached as Exh. D to King Decl., at 1). On July 25, 2000,
leave to appeal was denied. People v. Perez, 95 N.Y.2d 856,
714 N.Y.S.2d 7 (2000) (table).
C. Collateral Proceedings
On March 5, 1996, the petitioner moved before the New York State
Supreme Court to vacate his conviction pursuant to New York Criminal
Procedure Law ("CPL") § 440.10, arguing that: (1) the indictment was
defective because a prosecution witness gave perjured testimony before
the grand jury; (2) attempted robbery in the first degree is not a crime
recognized by law; (3) the evidence of burglary was legally insufficient;
(4) the jury verdict was repugnant; and (5) the sentence imposed
constituted cruel and
unusual punishment. (Petitioner's Motion to Vacate Judgment,
attached as Exh. E to King Decl., at 6-24). On November 14, 1996, the
State Supreme Court denied this motion. (Order of the New York Supreme
Court dated Nov. 14, 1996 ("11/14/96 Order"), attached as Exh. H to King
Decl.). On December 26, 1996, pursuant to CPL § 460.15, the
petitioner applied for leave to appeal the denial of the CPL § 440
motion to the Appellate Division. Leave was denied on March 13, 1997.
(Order of New York Supreme Court, Appellate Division dated March 13, 1997
("3/13/97 Order"), attached as Exh. I to King Decl.).
On October 16, 2001, the petitioner moved before the Appellate Division
for a writ of error coram nobis alleging ineffective assistance
of appellate counsel. The petitioner based this claim on appellate
counsel's failure to argue: (1) that the verdict was legally insufficient
and against the weight of the evidence; (2) that the court should not
have submitted lesser included offenses to the jury; and (3) that the
court improperly imposed consecutive sentences. (Petitioner's Affidavit
in Support of Motion for Writ of Coram Nobis, attached as Exh. J to King
Decl., ¶ 7; Memorandum in Support of Motion for Writ of Coram Nobis,
attached as Exh. J to King Decl.). The Appellate Division denied the writ
on June 20, 2002. People v. Perez, 295 A.D.2d 1021, 746 N.Y.S.2d 272
(1st Dep't 2002) (table).
The petitioner filed the instant petition for a writ of habeas
corpus on October 11, 2001, raising the six claims discussed below.
A. Perjured Grand Jury Testimony
Mr. Perez first argues that the indictment was defective because a
prosecution witness gave perjured testimony to the grand jury. He
contends that the trial court lacked authority to conduct a trial, since
the indictment provides the predicate for the court's jurisdiction.
(Petition for Writ of Habeas Corpus ("Pet.") at 6). The respondent argues
that the petitioner's claim is not reviewable in a habeas corpus
proceeding because the state court's decision rejecting that claim rested
on an independent and adequate state procedural rule. (Memorandum of Law
in Opposition to Petitioner's Application for a Writ of Habeas Corpus
("Resp. Memo.") at 13).
Under the "independent and adequate state ground" doctrine, a habeas
corpus court may not review a state court decision that "rests on a state
law ground that is independent of the federal question and adequate to
support the judgment." Coleman v. Thompson, 501 U.S. 722, 729
(1991); see Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003);
Cox v. Miller, 296 F.3d 89, 100 (2d Cir. 2002). "This rule
applies whether the state law ground is substantive or procedural."
Coleman, 501 U.S. at 729; see Cotto, 331 F.3d at 238;
Cox, 296 F.3d at 100.
If the state law ground relied on is procedural, the last
state court rendering a judgment must clearly and expressly state
that its judgment rests on a procedural bar. Harris v. Reed,
489 U.S. 255, 263 (1989); Cox, 296 F.3d at 100. However, "a state court
need not fear reaching the merits of a federal claim in an
alternative holding," so long as it explicitly invokes a state
procedural bar as a separate basis for its decision. Harris,
489 U.S. at 264 n.10.
In the instant case, Mr. Perez's CPL § 440 motion was denied on the
basis of CPL § 440.10(2)(b), which provides that a CPL § 440
motion must be denied if the issue raised could have been adjudicated on
direct appeal. The New York State Supreme Court held that "[s]ufficient
facts appear in the record to permit adequate review [on direct appeal]
of each of the grounds raised on this motion and [the § 440 motion]
is summarily denied." (11/14/96 Order at 2). That holding is a clear and
plain statement relying on a state procedural rule. That the court also
looked to the merits of the claim does not undermine the procedural bar.
See Harris, 489 U.S. at 264 n.10. Nor does the subsequent order
of the Appellate Division denying leave to appeal without comment.
See Y1st v. Nunnemaker, 501 U.S. 797, 803 (1991)
("[w]here . . . the last reasoned opinion on the claim explicitly imposes
a procedural default, we will presume that a later decision rejecting the
claim did not silently disregard that bar and consider the merits.").
To overcome a procedural bar, Mr. Perez would need to show (1)
both "cause" for not raising the claim in state court and
"prejudice" resulting from the error, or (2) that a "fundamental
miscarriage of justice" would result if the claim were not addressed.
Coleman, 501 U.S. at 750; Dixon v. Miller,
293 F.3d 74, 80-81 (2d Cir. 2002).
Cause for failing to raise a claim is established when the petitioner
demonstrates that "some objective factor external to the defense"
prevented him from following the procedural rule. Murray v.
Carrier, 477 U.S. 478, 488 (1986). To show "prejudice", the
petitioner must demonstrate that the constitutional error worked to his
"actual and substantial disadvantage." United States v. Frady,
456 U.S. 152, 170 (1982) (emphasis in original). However, Mr. Perez has
not suggested any cause for failing to assert this claim on direct
appeal, nor has he demonstrated prejudice resulting therefrom.
To find a "fundamental miscarriage of justice", Mr. Perez must show
that "a constitutional violation has probably resulted in the conviction
of one who is actually innocent." Carrier, 477 U.S. at 496. Mr.
Perez has not shown that a fundamental miscarriage of justice will result
if this claim is not considered.
Even if this claim were not procedurally barred, it would fail on the
merits. It is well settled that claims of deficiencies in state grand
jury proceedings are not cognizable on federal habeas corpus review.
See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.
1989) (citing United States v. Mechanik, 475 U.S. 66 (1986)). In
Mechanik, the United States Supreme Court stated:
[T]he petit jury's subsequent guilty verdict means
not only that there was probable cause to believe
that the defendants were guilty as charged, but
also that they are in fact guilty as charged
beyond a reasonable doubt. Measured by the petit
jury's verdict, then, any error in the grand jury
proceeding connected with the charging decision
was harmless beyond a reasonable doubt.
Mechanik, 475 U.S. at 70. This reasoning applies with
even greater force where, as here, the petitioner is mounting a
collateral attack on his conviction. See Lopez, 865 F.2d at 32;
see also Barnes v. Giambruno, No. 01 Civ. 8965, 2002 WL 850020,
at *7 (S.D.N.Y May 2, 2002).
Thus, this claim is barred from review because the state court rejected
it on the basis of an independent and adequate state procedural rule,
and, in any event, it is without merit.
B. Jury instructions
Mr. Perez next argues that his burglary conviction was the result of an
erroneous jury charge. The trial judge instructed the jury in part:
A person is guilty of Burglary in the First
Degree . . . when he knowingly enters or remains
unlawfully in a dwelling. . . .
[T]he People must prove . . . [t]hat on or
about March 17, 1994, in the County of New York
the defendants, acting in concert, entered or
remained unlawfully in a dwelling.
(Tr. at 2572-73). The petitioner contends that the phrase
"unlawfully remaining" should not have been part of the jury charge
because it did not apply to the facts of this case. He maintains that the
court's inclusion of this phrase misled the jury into believing that it
could convict him even if it found that he formed the intent to commit a
crime only after entering the establishment lawfully. (Pet. at 7).
As with the prior ground, Mr. Perez is procedurally barred from habeas
relief on this claim. He raised this argument in his CPL § 440
motion, and the State Supreme Court rejected it on the ground that it
should have been advanced on direct appeal. Again, Mr. Perez has not
demonstrated cause and prejudice or a miscarriage of justice that would
warrant relieving him of the procedural default.
In any event, this claim would fail on the merits. When examining a
contention that a jury instruction is erroneous, this Court is required
to review the jury charge as a whole. Smalls v. Batista,
191 F.3d 272, 277 (2d Cir. 1999); Chalmers v. Mitchell,
73 F.3d 1262, 1267 (2d Cir. 1996) (reviewing court should not focus on a few
isolated words, but must look to the overall charge). The reviewing
court's task is not to determine "whether the challenged instructions,
standing alone, are erroneous or misleading, but rather whether it is
`reasonably likely' that the jury applied the wrong standard."
Beverly v. Walker, 118 F.3d 900, 902-03 (2d Cir. 1997). A state
conviction can only be overturned when the
petitioner demonstrates that the erroneous instruction deprived him
of a federal constitutional right and that he suffered actual prejudice.
See Matthews v. Artuz, No. 97 Civ. 3334, 1999 WL 349694, at *6
(S.D.N.Y. May 27, 1999). Mr. Perez argues that he was entitled to a
charge stating "that the jury must find that petitioner intended to
commit a crime at the time he entered the premises unlawfully." (Pet. at
8). Yet, New York Penal Law § 140.30 specifically states that a
person is guilty of burglary in the first degree when "he knowingly
enters or remains unlawfully in a dwelling with intent to commit a crime
therein. . . ." Mr. Perez has made no showing that the instruction was
incorrect, let alone so egregious as to violate his due process rights.
C. Lesser Included Offenses
Mr. Perez next argues that the trial court erred by submitting to the
jury the second degree robbery counts, which he characterizes as lesser
included offenses. According to the petitioner, this undermined his
defense by leading the jury to reach a compromise verdict. (Pet. at 3-4).
This claim is unexhausted. To be sure, Mr. Perez did argue in his
application for a writ of error coram nobis that his appellate
counsel was ineffective for failing to raise such a claim. While the
ineffective assistance claim was thus exhausted, the underlying
substantive claim was not. "A court considering ineffective
assistance might never reach the underlying constitutional claims,
and the rejection of the ineffective assistance claims without detailed
comment does not bespeak any necessary ruling on the underlying
constitutional claims." Turner v. Artuz, 262 F.3d 118, 123 (2d
Generally, a federal court cannot reach the merits of an unexhausted
claim. 28 U.S.C. § 2254 (b), (c); see Duckworth v. Serrano,
454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-24
(2d Cir. 2000). However, a claim will be deemed exhausted if it is clear
that the state court would find it procedurally barred. Gray v.
Netherlands 518 U.S. 152, 162 (1996); Spence v. Superintendent,
Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir.
2000); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994).
In this case, Mr. Perez is foreclosed from returning to state court to
argue his claim because New York law provides only a single application
for direct review. New York Rules of Court, Court of Appeals ("Rules of
Court"), § 500.10(a); Spence, 219 F.3d at 170. Moreover, a
defendant who fails to press an available claim on direct appeal is also
barred from raising it on collateral review. CPL § 440.10(2)(c);
Lurie, 228 F.3d at 124; Spence, 219 F.3d at 170.
As discussed above, if a claim is procedurally barred, the federal
court may not reach the merits of that claim unless the petitioner is
able to demonstrate cause and prejudice, or a
miscarriage of justice. Ineffective assistance of counsel may
constitute cause for the failure to preserve a claim in state court.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Carrier, 477 U.S. at 488. This includes ineffectiveness of
appellate counsel. See Aparicio v. Artuz, 269 F.3d 78, 91 (2d
Cir. 2001). "Not just any deficiency in counsel's performance will do,
however; the assistance must have been so ineffective as to violate the
Federal Constitution." Edwards, 529 U.S. at 451 (citing
Carrier, 477 U.S. at 488-89). Moreover, in order to qualify as
cause, the ineffective assistance issue must itself have been exhausted
in state court. Edwards, 529 U.S. at 451-52; Carrier,
477 U.S. at 489.
Here, Mr. Perez did exhaust his ineffective assistance of appellate
counsel claim through the coram nobis proceeding. It must
therefore be determined whether counsel's failure to raise the lesser
included offense claim on appeal did, in fact, constitute ineffective
To prove ineffective assistance of counsel, the petitioner must
demonstrate that (1) counsel's performance was deficient, and (2) the
deficient performance was prejudicial to the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). This standard also applies to
assistance of appellate counsel. See Jackson v. Leonardo,
162 F.3d 81, 84-85 (2d Cir. 1998); Mavo v. Henderson, 13 F.3d 528,
533 (2d Cir. 1994).
Appellate counsel is not obliged to identify every possible error in
the record or to "raise every nonfrivolous issue that the defendant
requests." Jones v. Barnes, 463 U.S. 745, 754 & n.7 (1983);
see also Jackson, 162 F.3d at 85. There is a "strong
presumption" of attorney competence, and the court's standard of review
of an appellate counsel's performance is "highly deferential."
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). For an
appellate attorney to be found ineffective for failing to raise certain
issues, the court must determine that "significant and obvious" issues
were abandoned, while "clearly and significantly weaker" issues were
pursued. Mayo, 13 F.3d at 533.
The petitioner's appellate attorney was not ineffective for failing to
raise the lesser included offense issue on direct appeal. First, this
claim was not preserved since the petitioner's trial counsel did not
object to the jury charge. "Under New York law, a defendant must object
to an alleged error in a jury instruction before the trial court in order
to preserve the issue for appeal." Reves v. Keane,
118 F.3d 136, 138 (2d Cir. 1997) (citing CPL § 470.05(2)); see also
People v. Walker, 265 A.D.2d 192, 192, 697 N.Y.S.2d 248, 249 (1st
Dep't 1999). Furthermore, the counts of second degree robbery were
specifically charged in the original indictment and were not submitted to
the jury merely as lesser included offenses. (Tr. at 2554-78). Neither
the prosecution nor the defense lawyer requested that second degree
robbery be submitted to the jury as lesser included offenses. (Tr.
at 2103-08). Indeed, the judge stated, "[a]s the record stands now, there
will be no lesser included charges charged." (Tr. at 2108). Thus, this
argument is meritless, and it was therefore appropriate for counsel to
forego it. As Mr. Perez has failed to demonstrate that counsel's
performance was deficient, his claim of ineffective assistance of counsel
D. Sufficiency of the Evidence
Mr. Perez next argues that the evidence supporting the convictions was
legally insufficient because his acquittal on the gun-related charges
illustrates the jury's determination that witness testimony about the
presence of a gun was incredible. Accordingly, testimony about the
robbery should also be discredited. (Pet. at 4).
Like his lesser included offense claim, this argument was advanced in
state court only as the predicate for Mr. Perez's ineffective assistance
of appellate counsel claim. Thus, it is unexhausted and procedurally
defaulted. But, again, the petitioner could demonstrate cause for the
default if his appellate counsel were constitutionally ineffective.
Yet, counsel's failure to raise this claim on appeal does not satisfy
the requirements of Strickland. A petitioner bears a "very
heavy burden" in "challenging the sufficiency of the evidence underlying
his conviction." Knapp v. Leonardo, 46 F.3d 170, 178
(2d Cir. 1995) (internal quotations and citation omitted). "To
succeed, [the petitioner] must demonstrate that viewing the evidence in
the light most favorable to the government, . . . no rational trier of
fact could have found the essential elements of the crime charged beyond
a reasonable doubt." Id. (internal quotations and citation
omitted); see also Jackson v. Virginia, 443 U.S. 307, 318-19
A federal judge reviewing a sufficiency of evidence claim does not make
an independent determination as to whether the evidence demonstrates
guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19.
Rather, the judge must construe the evidence in the light most favorable
to the prosecution and defer to the jury's assessment of witness
credibility. Id. at 319; see also Herrera v. Collins,
506 U.S. 390, 402 (1993) (Jackson inquiry asks only whether
decision to convict was rational, not whether it was correct).
Mr. Perez's arguments focus on the credibility of testimony, but the
jury is "exclusively responsible for determining a witness' credibility."
Bossett, 41 F.3d at 830 (quoting United States v.
Strauss, 999 F.2d 692, 696 (2d Cir. 1993). Cross-examination and
arguments to the jury are the proper places to challenge a witness's
credibility; an appellate brief is not. United States v.
Friedman, 854 F.2d 535, 558 (2d Cir. 1988).
Mr. Perez offers no reason why witness testimony was
incredible other than his acquittal on the gun related charges.
Upon reviewing the record it seems that the jury acquitted the defendants
on the charges for which there was no corroborating evidence found
immediately after the crime.*fn4 The jury did convict on charges where
the eyewitness testimony was corroborated by the police and by physical
evidence. That the jury did not convict on counts uncorroborated by
physical evidence does not indicate that the jury found the witness
testimony incredible. Accordingly, Mr. Perez cannot show that counsel was
deficient or that counsel's conduct provided cause for the procedural
default of the insufficiency-of-evidence claim.
E. Excessive Sentence
The petitioner next argues that the trial court erred in imposing five
consecutive sentences for one single criminal event and that this
constitutes cruel and unusual punishment. He alleges that a sentence of
fourteen to forty-two years is illegal because the court ignored or
discounted many mitigating factors. (Pet. at 5). The respondent contends
that this claim is unexhausted and procedurally defaulted because the
petitioner failed to specifically raise it in his letter application for
leave to appeal to the Court of Appeals. (Resp. Memo, at 11).
Determining if a claim was properly presented to the Court of
Appeals rests on the specific language in the letter application.
See Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000)
(letter application that only addressed one issue at end of application
and sought review "for all of these reasons and the reasons set forth in
my Appellate Division briefs" did not fairly present to Court of Appeals
the claims found only in the briefs; Morgan v. Bennett,
204 F.3d 360, 369-70 (2d Cir. 2000) (letter application that stated, "[w]e
request this Court to consider and review all issues outlined in [the
briefs]," fairly presented all claims to highest state court even though
there was a subsequent letter that only addressed some of the issues
raised in briefs); Richardson v. Greiner, No. 97 Civ. 5448,
2003 WL 76994, at *2 (S.D.N.Y. Jan. 7, 2003) ("[R]references to attached
briefs without more will preserve issues only if the Court of Appeals is
clearly informed that the reference is asserting issues in those briefs
as bases for granting leave to appeal.").
Mr. Perez's letter application to the Court of Appeals did not raise
any specific claims but relied solely upon the submission of his
co-defendant, Garfield Ewan. (Petitioner's Letter Application for Leave
to Appeal dated April 17, 2000 ("4/17/00 App.") attached as Exh. D to
King Decl.). Mr. Perez's letter stated that "the issues affecting
defendant-appellant Perez are identical [to Mr. Ewan's]. It would be
redundant to write the same submission." (4/17/00 App. at 1). Also, Mr.
Perez's letter application did not
refer to any appellate brief that contained his arguments. Mr.
Ewan's submission, however, addressed some arguments common to both the
defendants but did not assert an excessive sentence claim.
(Ewan App. at 1-6). Taken as a whole, the language in the petitioner's
letter fails to meet even the most basic requirements for properly
presenting claims to the Court of Appeals.*fn5
The petitioner is now foreclosed from returning to state court to
exhaust this claim because New York law permits only a single application
for leave to appeal to the Court of Appeals. Rules of Court § 500.10
(a). Moreover, neither the inclusion of the excessive sentence claim in
the petitioner's CPL § 440.10 motion (which was exhausted), nor the
challenge to his sentence mounted in his motion for a writ of error coram
nobis (alleging deficiency of appellate counsel), relieves the petitioner
of his procedural default. The CPL § 440.10 motion was denied on
procedural grounds and therefore was not considered on its merits by the
highest available state court. See Spence, 219 F.3d at 170.
And, while ineffective assistance of counsel can in some cases provide
cause for default, the petitioner in this case only challenged the
failure of his attorney to raise certain issues on direct appeal, not the
failure to exhaust his excessive sentence claim by omitting
it from his leave application to the Court of Appeals. Such
omissions do not, in any case, demonstrate the ineffectiveness of
appellate counsel because there is no constitutional right of counsel for
discretionary appeals. See Williams v. Goord, 277 F. Supp.2d 309,
317 (S.D.N.Y. 2003) (ineffective assistance not cause for default
where attorney failed to include claim in leave application to Court of
F. Judicial Misconduct
Finally, Mr. Perez argues that the trial court disparaged the defense,
made faces during cross examination, and inappropriately questioned
witnesses, thus violating his constitutional right to a fair trial. Mr.
Perez further alleges that "[b]oth verbally and physically, the trial
court in [the] case unrelentingly broadcast to the jury its hostility to
and contempt for the defense." (Pet. at 2).
The respondent maintains that Mr. Perez's claim is barred from habeas
review due to an independent and adequate state procedural ground. (Resp.
Memo, at 16). The respondent relies on the decision of the Appellate
Division holding that Mr. Perez forfeited this claim by failing to object
at trial to the court's conduct. Galloza, 270 A.D.2d at 70, 705
N.Y.S.2d at 36. New York Law requires some form of protest to the court
to preserve an issue for appeal, CPL § 470.05(2), and this
preservation rule has been applied to judicial misconduct cases. See
Martinez v. Greiner, No.
01 Civ. 2911, 2003 WL 1936191, *3 (S.D.N.Y. April 23, 2003) (claim
of excessive interference by trial judge must be preserved by specific
objection on that ground); People v. Charleston, 56 N.Y.2d 886,
887, 453 N.Y.S.2d 399, 400 (1982).
In reviewing the petitioner's claim on appeal, the Appellate Division
stated that "[b]y failing to object to the court's conduct as a whole or
seek any remedy, [the petitioner's] contention that the trial court was
biased and excessively interfered in the proceedings is not preserved,
and we decline to review it in the interest of justice."
Galloza, 270 A.D.2d at 70, 705 N.Y.S.2d at 36. The petitioner
sought leave to appeal this claim to the Court of Appeals, and his
application was denied. Perez, 95 N.Y.2d at 856, 714 N.Y.S.2d
The respondent also cites the habeas corpus proceeding of Mr. Perez's
co-defendant, Quoro Martinez, who sought review of the same judicial
misconduct claim. In the Martinez case, the Honorable Michael
B. Mukasey, Chief Judge, held that Mr. Martinez's claim was procedurally
barred for failure to object to the court's allegedly improper conduct.
Martinez, 2003 WL 1936191, at *3.
In fact, however, Mr. Perez's counsel properly preserved this issue for
appeal by requesting a mistrial due to the court's behavior. He argued:
Because of your actions and smiling and demeaning
counsel during their cross examination, I would
ask for a mistrial at this point. You poisoned the
minds of the jurors against
defense counsel and against the defendants.
You prejudiced them so that I don't think that
they can be rehabilitated in any manner whatsoever
even by a curative instruction if you intended to
make one. Therefore, under those circumstances I
would ask for a mistrial.
(Tr. at 224-25). Indeed, in Martinez Judge Mukasey noted
that Mr. Perez's attorney had properly objected while Mr. Martinez's
counsel had not. Id. Thus, after reviewing the trial record, it
is clear that there was no independent and adequate state law basis for
rejecting the judicial misconduct claim and it is necessary to proceed to
Judicial intervention in the course of a criminal trial "would have to
reach a significant extent and be adverse to the defendant to a
substantial degree before the risk of either impaired functioning of the
jury or lack of the appearance of a neutral judge conducting a fair trial
exceeded constitutional limits." Daye v.
Attorney General of New York, 712 F.2d 1566, 1572 (2d
Cir. 1983); see Gave v. Scullv, 779 F.2d 802, 806 (2d Cir.
1985). Not all undesirable judicial conduct is violative of due process.
See United States v. Pisani, 773 F.2d 397, 402 (2d Cir. 1985);
Mucci v. Quinlan, No. 83 Civ. 7263, 1986 WL 6776, at *2
(S.D.N.Y. June 10, 1986).
The specific examples of improper judicial intervention cited by Mr.
Perez were not so clearly adverse to him that he was denied a fair trial.
Mr. Perez discusses numerous instances of alleged judicial misconduct
with respect to the court's intervention in the examination of witnesses.
Yet, the trial judge "must be more than a mere moderator or umpire in a
contest between two parties in an arena before him. He should take part
where necessary to clarify testimony and assist the jury in understanding
the evidence." Williams v. Senkowski, No. 99 Civ. 0724, 2001
U.S. Dist. Lexis 10843, at *9 (S.D.N.Y. July 30, 2001) (quoting
United States v. DeSisto, 289 F.2d 833, 834 (2d Cir. 1961)).
An example of the judge's intervention in the case occurred during the
re-direct examination of Officer Thomas Rhindos by the prosecutor. The
court interrupted the prosecutor's re-direct and asked the officer, "Is
there a central communication department of the police department?" and
"When you say dispatcher, is that an operator who is listening to phone
calls?" (Tr. at 149-50). The petitioner objected to this practice and
maintains that this type
of interruption bolstered the prosecution's case. (Pet. at 2). Yet,
the court was well within its discretion posing questions to allow the
jury to better understand the 911 system.
Mr. Perez also argues that in several instances the court denigrated
the defense in front of the jury. The petitioner maintains that the court
communicated its contempt for the defense by categorizing counsel as
"tricksters". (Pet. at 2). During voir dire a prospective juror responded
to a question asking if he would convict if he was "pretty sure" about
guilt by saying, "[I]t was kind of a trick question." (V. Tr. at
47).*fn7 The court commented that the question was indeed a "trick
question," adding that the court had given the defense "too much leeway"
and that counsel had "gotten way far afield." (V. Tr. at 47-48). Mr.
Perez also cites an exchange between the defense and the judge at a
sidebar conference where the jury may have overhead the judge saying to
defense counsel, "I'm not as smart and quick as you are because I don't
understand what you're doing." (Tr. 333-34). While the court's statements
may have been unnecessary in both examples, the conduct does not violate
Finally, judicial intervention is prejudicial only to the extent "that
the jurors have been impressed with the trial judge's partiality to one
side to the point that this became a factor in the
determination of the jury." United States v. Messina,
131 F.3d 36, 39 (2d Cir. 1997) (quoting United States v.
Gucrlielmini, 384 F.2d 602, 605 (2d Cir. 1967)). In the instant
case, the trial judge minimized any such prejudice by providing the
following charge to the jury:
You must not infer from any rulings that I have
made, nor from anything that I have said to the
attorneys in the course of these rulings that I
hold any view as to the guilt or non-guilt of any
defendant. . . . Anything I have said to the
lawyers during the course of this trial is not
evidence and is, therefore, irrelevant to your
determination, which must be based strictly on the
evidence that you have heard and under the law as
I will instruct you.
(Tr. at 2528-29).
Although some of the judge's comments may have been unwarranted, her
conduct did not reach the point of denying the petitioner his
constitutional right to a fair trial. See Daye, 712 F.2d at
1569-70, 1572 (no misconduct where judge constantly referred to the
robber as the defendant, explicitly challenged the defendant's story, and
asked the defendant to get off the stand and demonstrate how his account
could possibly be true); Gave, 779 F.2d at 810-13 (no misconduct where
trial judge harshly and sarcastically questioned the defendant about his
For the reasons set forth above, I recommend that Mr. Perez's petition
for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636
(b)(1) and Rules 72, 6(a), and 6(e) of the Federal rules of Civil
Procedure, the parties shall have ten (10) days from this
date to file written objections to this Report and Recommendation.
Such objections shall be filed with the Clerk of the Court, with extra
copies to be delivered to the chambers of the Honorable George B.
Daniels, Room 410, 40 Foley Square, New York, New York 10007, and to the
chambers undersigned, Room 1960, 500 Pearl Street, New York, New York
10007. Failure to file timely objections will preclude appellate review.