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United States District Court, E.D. New York

March 11, 2004.


The opinion of the court was delivered by: JOHN GLEESON, District Judge


Petitioner Jeffrey Mack seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument on February 27, 2004. For the reasons set forth below, the petition is denied. Page 2


  On February 4, 1996, Mack shot Anthony Davenport twice, seriously injuring him. Davenport had known Mack for many years and provided the police with his name and the area where he lived. Police officers were unable to locate Mack, and so issued a "wanted card." Mack was later arrested on April 21, 1998, when officers, who were aware that Mack was wanted, went to his home to investigate a domestic violence report filed by Mack's father. At the time of the arrest, officers recovered from Mack's bedroom a gun case, a holster, a gun catalog, and three wallets containing various forms of identification. While at the precinct, Mack asked the officers why they had taken only the gun case and not the ammunition. Also, when told that he had been arrested for the Davenport shooting, Mack asked the officer why it had taken the police two years to catch him.

  Mack was charged with one count each of attempted murder and criminal possession of a weapon in the second degree, and two counts each of assault in the first degree and criminal possession of a weapon in the third degree. Mack moved to suppress the property recovered by police officers at his home, as well as his statements to officers at the precinct on the grounds that the officers lacked probable cause to arrest him and that the statements were made without the benefit of Miranda warnings. After a hearing, the court denied Mack's motion, holding that the property was recovered incident to a lawful arrest, and that Mack's statements were spontaneously made. (See Dec. 4, 1998 Hr'g at 189-91.)

  On July 29, 1999, a jury convicted Mack of all charges.*fn1 The court sentenced him, as a second felony offender, to concurrent prison terms of fifteen years for the attempted Page 3 murder, ten years for each count of assault and for second-degree weapon possession, two to four years for the first count of third-degree weapon possession, and five years for the second count of third-degree weapon possession.

  In June 2000, Mack perfected his direct appeal to the Appellate Division, Second Department. In his brief, Mack argued that (1) the items seized from his bedroom were not contraband or the instrumentalities of a crime and were seized in violation of his constitutional rights; (2) he was denied his constitutional right to a fair trial by the erroneous admission into evidence of the gun box, holster, and gun catalog; and (3) he was denied his due process right to a fair trial by the prosecutor's summation. The Appellate Division affirmed the judgment of conviction on August 20, 2001, stating:

We agree with the determination of the hearing court that the items seized from the defendant's bedroom should not have been suppressed. The items were properly seized pursuant to the "plain view" doctrine, and properly recovered in a search incident to a lawful arrest. The defendant's contention that the trial court erred in admitting the items into evidence on the ground of relevancy is unpreserved for appellate review since he failed to raise the issue before the trial court.
The defendant's remaining contentions are either unpreserved for appellate review or without merit
People v. Mack, 730 N.Y.S.2d 437, 437-38 (2d Dep't 2001) (citations omitted). Mack's application for leave to appeal to the New York Court of Appeals was denied on December 19, 2001. People v. Mack, 97 N.Y.2d 684 (2001) (Ciparick, J.).

  In the instant petition for a writ of habeas corpus, Mack claims that (1) his conviction was obtained through the use of evidence seized pursuant to an unlawful arrest; (2) the evidence recovered from his bedroom should have been suppressed because it was unlawfully seized and should not have been admitted at trial because it was irrelevant to the Page 4 crimes with which he was charged and was admitted only to establish his propensity for violence; and (3) the prosecutor's summation deprived him of a fair trial.


 A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief 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." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000): see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a Page 5 federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S, Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. l, 157 L.Ed.2d 1, 7 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 So. Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

  For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law. Page 6

 261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).


However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041 (2003)).

 B. Mack's Claims

  1. The Fourth Amendment Claims

  Mack claims that evidence found in his home should not have been admitted into evidence at trial, as it was unlawfully seized. However, Fourth Amendment claims cannot be raised on habeas review. Federal habeas review of such claims is governed by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (19761 As the Court stated: "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 482. The Second Circuit has held that Fourth Amendment claims in habeas petitions are reviewable only if (1) the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violation, or (2) the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an Page 7 unconscionable breakdown in the underlying process. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977). New York has a well-established procedure for the resolution of claims of illegal arrest. See N.Y. Crim. Proc. Law § 710.20. Here, Mack made these claims at a suppression hearing prior to trial, and the hearing court rejected them. (See Dec. l, 1998 Hr'g Tr. at 2-105 (testimony); Dec. 2, 1998 Hr'g Tr. at 108-76 (testimony); Dec. 4, 1998 Hr'g Tr. at 179-91 (argument and decision).) Accordingly, he may not obtain habeas relief on his Fourth Amendment claims.

  2. The Evidence Recovered from Mack's Bedroom

  Mack contends that the items found in his bedroom should not have been admitted into evidence as they were irrelevant and established only his propensity for violence. As set forth above, the Appellate Division held that this claim was unpreserved, as Mack had "failed to raise the issue before the trial court." Mack, 730 N.Y.S.2d at 438.

  a. Procedural Default

  Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261 (1992); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review. Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [its] own errors"): see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant Page 8 application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").

  A defaulted claim will be considered by the court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750; Teague v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing `"that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).

  Mack offers no explanation for his failure to raise this issue before the trial court. Furthermore, even if he had been prevented in some manner from doing so, it would still be necessary to demonstrate that he suffered an "actual and substantial disadvantage" to his case or that a fundamental miscarriage of justice resulted. Mack offers no basis for drawing either conclusion. In any event, even if I could review his challenge to the evidence, it would fail, as discussed below. Page 9

  b. The Merits

  Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously admitted evidence must be "crucial, critical, [and] highly significant." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). In this regard, a petitioner bears a "heavy burden." Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993), aff'd, 71 F.3d 406 (2d Cir. 1995) (unpublished table decision). However, the Due Process Clause of the Fourteenth Amendment is violated where "the evidence in question `was sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins, 755 F.2d at 19). This test applies post-AEDPA. See Wade v. Mantello, 333 F.3d 51 (2d Cir. 2003).

  Here, Davenport testified at trial that Mack had shot him. (Tr. at 417-18.) Davenport and Mack had known each other for at least ten years. (See id. at 412 (Davenport testifying that he had known Mack for at least fifteen or twenty years), 680 (Mack testifying that he and Davenport were arrested together in "a case that happened in `88" and that after that he saw Davenport, who lived in the same neighborhood as Mack, on "a regular basis).) Detective Dawn Spivey testified that, at the hospital just after the shooting, Davenport told her that Mack had shot him. (Id. at 506.) Detective James McAleavey, the arresting officer, testified that when Mack was eventually arrested for the shooting, he asked McAleavey why it had taken the police two years to catch him. (Id. at 607.) I conclude that the admission of the holster, gun box, and Page 10 gun magazines did not remove any reasonable doubt that would have existed had those items not been admitted into evidence. Accordingly, this claim does not justify issuance of the writ.

  3. Prosecutorial Misconduct

  Mack contends that the prosecutor committed misconduct during his summation. Specifically, Mack alleges that the prosecutor repeatedly called Mack a liar, vouched for the credibility of the government's witnesses, evoked sympathy for Davenport (the victim), "lionized" the police, "concocted stories that were without evidentiary support," and characterized Mack as being conscious of his guilt. (Pet. at 6.)*fn2

  Habeas relief based on a claim of Prosecutorial misconduct is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (19741; see also Pimentel v. Walsh, No. 02 Civ. 570, 2003 U.S. Dist. LEXIS 19677, at * 19-20 (S.D.N.Y. Nov. 4, 2003) ("To obtain relief on a Prosecutorial misconduct claim, a habeas petitioner must show that `the prosecutor engaged in egregious misconduct . . . amounting to a denial of constitutional due process.'" (ellipsis in original) (quoting Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1991))). Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceeding. DeChristoforo, 416 U.S. at 643. In making this determination, I consider the severity of the prosecutor's conduct, the measures, if Page 11 any, that the trial court took to remedy any prejudice, and the certainty of conviction absent the Prosecutor's remarks. See Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994).

  Many of the comments that Mack now attacks were a fair response to Mack's own summation.*fn3 In his summation, Mack argued that Davenport, the government, the judge, and Mack's own attorney were trying to "railroad" him (Tr. at 748), that Davenport was a drug dealer who owed money to people who had shot him on a previous occasion (id. at 747), and that the reason Davenport accused Mack of shooting him was because Mack knew who had really shot Davenport, and would not name names (id. at 746). Mack also insinuated that Davenport had not been seriously injured: "If he is so seriously injured, if I seriously wounded this man, why would he be out there selling drugs?" (Id. at 748.) Mack also told the jurors that the identification card recovered from his bedroom in the name of "Jeffrey Jackson" had been "just for the car." (Id. at 749.)

  In response to Mack's arguments, the government reminded the jury of the extent of Davenport's injuries. (Id. at 759-65). The government also pointed out that Davenport and Mack had previously been arrested together for selling drugs and that Mack had accused Davenport of being a "snitch," thus establishing Mack's motive to shoot Davenport. (Id. at 751-55.) The prosecutor also presented an alternative scenario for how Mack had used the "Jeffrey Jackson" identification card to evade the authorities, in response to Mack's (unsworn) contention that it was used only for his car. (Id. at 769-70.) These arguments by the prosecutor were invited by Mack's own summation. Page 12

  The prosecutor's argument that Mack's move to Connecticut after the shooting was evidence of flight and consciousness of guilt (id. at 767-68, 779) was fair comment on the evidence presented. The evidence at trial established that on the day after the shooting, Mack identified himself to Detective Spivey as his brother. (Id. at 509.) Spivey left her card and said that she was looking for Mack. (Id.) Mack never contacted her. (See id. at 510 (Spivey testifying that she watched Mack's house on several occasions but was unable to apprehend him).) That same month, Mack moved to Connecticut and lived there for about three years, although he allegedly returned to New York to visit his father. (Id. at 683, 701-02, 705.) Based upon this evidence, the government properly argued that Mack fled the jurisdiction to avoid apprehension.

  Mack also contends here that the government improperly commented on his postarrest silence when it argued to the jury in summation, "He knew what he was wanted for. Did he stand his ground, come in and deny it, do anything, did he s[p]eak to the police; no." (Id. at 767.) However, the government was not commenting on Mack's postarrest silence, but was instead rebutting Mack's claim that he had called Detective Spivey after she left her card at his house. Mack put this fact in issue when he testified that, after Spivey visited his house, he called the precinct and spoke to Spivey. (Id. at 703-04.) In contrast, Spivey testified that after dropping off her card, she watched Mack's house on several occasions but was unable to apprehend him. (Id. at 509-10.) This testimony implied that Mack had not contacted Spivey. Therefore, this Page 13 summation argument was not improper comment on Mack's silence, but rather fair comment on a disputed piece of evidence.*fn4

  Mack also claims that the prosecutor was appealing to the jury's sympathy when he graphically described Davenport's injuries. Besides responding to Mack's summation comments that Davenport had not been seriously injured, the prosecutor was also shoring up Davenport's credibility by likening his identification of Mack as the shooter (to Detective Spivey while in the hospital just after the shooting) to a dying declaration. (See id. at 763 ("[Davenport] is in this situation [about to go into surgery for the bullet wounds], and ask yourselves, do you think somebody is getting ready to go in for life saving surgery, who is going to lie within 25 minutes after the shooting, and try to finger somebody else?").) The prosecutor properly argued that because of Davenport's condition at the time he spoke to Spivey, it was unlikely that Davenport would falsely accuse Mack.

  As for "lionizing" the police, the prosecutor's comments casting Detective James McAleavey as a capable professional (see id. at 770-73, 776) were a fair response to defense counsel's allegations in his cross-examination of McAleavey that Mack's father's domestic violence complaint was a "pretense" used to arrest Mack (id. at 624) and that McAleavey had unlawfully searched Mack's room (see id. at 619-30). The prosecutor's remarks were also fair comment on evidence at trial that McAleavey had prevented Mack's younger sister from entering Mack's room for her own safety (id. at 617-18). Page 14

  Furthermore, defense counsel objected to only three of the comments Mack now claims were improper. (Id. at 768, 779, 781.) After two of these objections were sustained by the trial court, Mack did not request further curative action. (See id. at 768, 781.) In determining "whether the prosecutor's remarks were so prejudicial as to deprive the defendant of a fair trial," "[t]he absence of contemporaneous objections or requests for cautionary instructions are factors to be taken into consideration." Malley v. Manson, 547 F.2d 25, 28 (2d Cir. 1976); see also United States v. Melendez, 57 F.3d 238, 243 (2d Cir. 1995) ("[T]he absence of [a mistrial] motion provides some indication that the improper remark was not perceived as rendering the trial unfair. . . .").

  In any event, even assuming arguendo that the prosecutor's comments were improper, any error was harmless.*fn5 As described above, at trial Davenport testified at trial that Mack had shot him. (Tr. at 417-18.) Detective Spivey testified that, at the hospital just after the shooting, Davenport told her that Mack had shot him. (Id. at 506.) Davenport and Mack had known each other for at least ten years. (See id., at 412, 680.) When Mack was eventually arrested for the shooting, he asked Detective McAleavey why it had taken the police two years to catch him. (Id. at 607.) In light of the overwhelming evidence of Mack's guilt presented at trial, I find that any alleged misconduct by the prosecutor during summation did not have a Page 15 "substantial and injurious effect or influence in determining the jury's verdict," Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), and indeed was harmless beyond a reasonable doubt. Therefore, this claim does not justify issuance of the writ.


  For the foregoing reasons, the petition is denied. Because Mack has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.

  So Ordered.

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