United States District Court, E.D. New York
March 11, 2004.
JEFFREY MACK, Petitioner against THE PEOPLE OF THE STATE OF NEW YORK, Respondent
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
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.
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
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
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
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
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
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
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
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
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.
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
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
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.
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
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).
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
"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.