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AL JONES A/K/A CHARLES ORR v. ALBAUGH

United States District Court, S.D. New York


March 17, 2004.

AL JONES A/K/A CHARLES ORR, Petitioner, -against- H. ALBAUGH, SUPERINTENDENT OF CAPE VINCENT CORR. FACILITY, Respondent

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

Al Jones ("Jones") pro se, has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Jones contends that he is entitled to habeas corpus relief from a 1993 conviction for attempted grand larceny in the third degree because: (1) the trial court deprived him of his constitutional rights to confront witnesses and to due process, as well as statutory rights, by permitting a videotape of the complaining witness` conditional examination to be used at Jones` trial, without preliminarily requiring the prosecution to explain why the witness could not testify in person and, furthermore, by denying the jurors` request to view the videotape while they were deliberating; 2) the trial court deprived him of his due process right to a fair trial by determining, after a Sandoval *fn1 hearing, to permit the prosecutor to inquire into (a) seven of Page 2 petitioner`s prior convictions, and (b) his use of 43 aliases on different occasions should Jones elect to testify at his trial; and 3) the trial court deprived him of his due process and statutory rights by shifting the burden of proof at the trial when it directed Jones` trial counsel, during the presentation of his opening statement, to limit his comments to "any proof that you intend to produce here in the courtroom, any evidence that you intend to produce."

  Respondent opposes petitioner`s application. He contends that petitioner`s claims lack merit and provide no basis for the court to grant him habeas corpus relief.

  II. BACKGROUND

  Petitioner is a grifter. On the evening of April 3, 1999, in midtown Manhattan, petitioner and another attempted to execute a swindle through a confidence game commonly called the "handkerchief switch." Through this scam, a confidence man, either acting alone or with an accomplice(s), induces the mark, through false representations and the display of a "Mich" or "Michigan Roll," *fn2 to commingle his money with the grifter`s. The combined funds are then placed in a handkerchief, paper bag or other receptacle by the grifter and given to the mark for safekeeping. Unbeknownst to the mark, the grifter carries an identical receptacle, oftentimes containing strips of newspaper that have been cut to the size of dollar bills. At a convenient time, the grifter switches the receptacles, gives the mark the one that does not contain any money and absconds with the mark`s money.

  In the instant case, while affecting a foreign accent, Jones approached Jorge Monteil ("Monteil") and engaged him in a conversation. After ascertaining that Monteil was an alien Page 3 who spoke and read English, Jones displayed a card to him that contained the name of a hotel. Jones told Monteil that he had come to New York City, at the request of an attorney, to retrieve a substantial inheritance. He explained that he had $10,000 of the inheritance with him, but had left the lion`s share of it in a locker at the Port Authority bus terminal. To establish the bona fides of this tale, petitioner showed Monteil what appeared to be a wad of money. In reality, it was a Michigan Roll.

  Jones offered to pay Monteil if he would assist petitioner by taking him to the hotel listed on the card petitioner carried. Monteil advised Jones to put his money away. He explained that to display it openly on the streets of New York City was not safe.

  While Monteil and Jones were engaged in conversation, Jones' accomplice approached. He was stopped by Jones, but neither man gave any indication that he was acquainted with the other. Jones asked his accomplice if he could assist him in locating the hotel identified on the card he had previously shown to Monteil. Jones also showed his accomplice the Michigan Roll. The accomplice advised Jones not to display his wad of "money" openly on the street. He directed petitioner to return it to the bag from which it had been retrieved. Monteil recalled that Jones offered the accomplice $400 to assist in finding the hotel noted on the card that petitioner had shown him. Monteil also recalled Jones recounted the story of having been summoned to New York City to retrieve an inheritance. In support of this claim, Jones produced a letter, purportedly from an attorney, directing him to travel to New York City to receive his inheritance.

  The three men began to walk in the vicinity of West 54th Street and Sixth Avenue. As they did so, petitioner`s accomplice suggested that Jones deposit his money in a bank and obtain an automatic teller machine card so that he might have ready access to his funds. The Page 4 accomplice told petitioner that by obtaining this card, he would eliminate the need to carry the large sum of money on his person as he ambulated through the city streets. Jones rejected this suggestion. He claimed that, in his country, withdrawing money from an automatic teller machine was considered magic.

  Monteil suggested that petitioner place his money in a hotel safe. However, Jones stated that he did not have adequate identification documents with him in order to secure a hotel room. He maintained that his passport and other belongings remained in a bus terminal locker. Jones then asked Monteil if he could be trusted to hold Jones` money while he returned to the bus terminal to gather his belongings. Monteil responded affirmatively, and indicated that he kept his own money and traveler`s checks at the hotel where he was staying on West 57th Street.

  The trio agreed that Monteil would hold Jones` money while he returned to the bus terminal and they set off for Monteil`s hotel. On the way to that hotel, petitioner`s accomplice produced a paper bag. He told Jones to place his money inside the bag. Petitioner removed the Michigan Roll from a black leather bag he was carrying and placed it inside the paper bag that his accomplice supplied. Jones then placed the paper bag inside his black leather bag. When the three men reached Monteil`s hotel, petitioner`s accomplice remained downstairs while Jones and Monteil went to Monteil`s hotel room. Once they reached the hotel room, petitioner asked where Monteil kept his money. Monteil opened a night table drawer and showed Jones two checkbooks containing traveler`s checks and $300 in cash. Jones announced that he was going to combine Monteil`s money with his own and removed the travelers checks and the cash from the night table. He placed those items in the paper bag With the Michigan Roll. He then sealed the bag with a rubber band. Jones advised Monteil that if anyone tried to steal the paper bag he should Page 5 secrete it inside his shirt. Petitioner then demonstrated for Monteil how he should accomplish this. At this point, Jones switched the paper bag with Monteil`s money with another paper bag that was hidden in his shirt. Petitioner then removed the substitute paper bag from the inside of his shirt and placed it in the night table drawer.

  Monteil was suspicious. He tried to open the night table drawer to confirm that his money, as well as petitioner`s, was actually inside the paper bag. As Monteil went to open the night table drawer, petitioner blocked his way, and retrieved the paper bag himself. Petitioner then demonstrated again how the paper bag should be placed within Monteil`s shirt if anyone should try to steal it. Thereafter, Jones switched the paper bags again. He removed the original paper bag from the inside of his shirt, opened it and showed Monteil that the traveler`s checks and his money were still inside the bag along with the Michigan Roll.

  Next, Jones approached the hotel room window, which was near a radiator. He took the paper bag that did not contain Monteil`s money, crouched down and placed it underneath the radiator in a hole in the floorboard. He advised Monteil that if someone should attempt to rob him, Monteil should place the bag under the radiator, as petitioner had done, and run from the hotel room. Monteil was again concerned that petitioner had switched paper bags and had not placed his traveler`s checks and all of the money underneath the radiator.

  The two men exited the hotel room and returned to the hotel lobby. At that point, Jones asked Monteil to obtain for him a card that showed the hotel`s address. Monteil did as petitioner asked. When the two men reached the hotel`s door, Jones` accomplice was waiting. Monteil believed that this would be his last opportunity to determine whether petitioner was engaged in some chicanery. Monteil touched petitioner near his underarm and felt a bulge; he inquired of Page 6 petitioner what it was. Petitioner denied any bulge existed. At that point, Monteil grabbed petitioner by the shirt and demanded the return of his money. A struggle ensued on the sidewalk in front of the hotel. Jones reached inside his shirt during the struggle, removed a paper bag and tossed it to the sidewalk. Monteil dragged petitioner toward the paper bag, retrieved it from the sidewalk and discovered that his traveler`s checks were inside along with the Michigan Roll.

  While the two men struggled, a porter of an adjacent building summoned two police officers who were in the vicinity. The officers separated Monteil and Jones. While Monteil spoke with one officer, petitioner began to flee. He was pursued by the other officer. During the chase, petitioner discarded the black leather bag he had been carrying. It was later recovered by the police. A bystander, who observed Jones being chased by a police officer, blocked his path; this enabled the police officer to apprehend him. Thereafter, Monteil retrieved the paper bag that Jones had placed under the radiator in the hotel room and provided that to the police.

  Following his arrest, petitioner was indicted by a New York County grand jury. He was charged with grand larceny in the third degree and criminal possession of stolen property in the third degree. Jones demanded that a jury trial be held in the New York State Supreme Court, New York County. To accommodate the vacation schedule of petitioner`s trial counsel, it was agreed that Monteil would be examined conditionally, pretrial, on videotape, because it appeared likely that he would be returning to his native Argentina before the date on which that trial would commence. The trial court also held a pretrial Sandoval hearing. At the conclusion of that proceeding, the trial court determined that if Jones decided to testify at the trial, the prosecution would be allowed to elicit evidence establishing that petitioner had been convicted for seven crimes and that he had, on 43 different occasions, used aliases. Page 7

  When the trial commenced, defense counsel used his opportunity to make an opening statement to attack the evidence that the prosecutor, in his opening statement, had explained to the jurors, would be presented to them by the State as the trial unfolded. The prosecutor objected to defense counsel`s opening statement, and the trial judge sustained the objection. She directed petitioner`s counsel to limit his opening statement to "any proof that you intend to produce here in the courtroom, any evidence that you intend to produce." As the trial progressed, and the prosecution sought to use the videotape of Monteil`s conditional examination, petitioner`s counsel objected. He alleged that the use of the videotape was improper, since the prosecution had not established, as required by applicable New York procedural law, that Monteil was not available to appear in person and to testify before the jurors. The objection was overruled by the trial judge; she explained, in part, that petitioner`s counsel had consented to the conditional examination so that his vacation plans would not be upset. Moreover, to accommodate those vacation plans, the court had to delay the commencement of the trial to a point in time after Monteil had left the country to return to his native land. The court explained, further, that defense counsel`s consent to the taking of the conditional examination, under the circumstances described above, was an implicit acknowledgment that the videotape could be used by the prosecution at the time of the trial.

  After the jurors had received all of the trial evidence, and had retired to deliberate upon a verdict, they requested that the videotape of Monteil`s conditional examination be played for them. The jurors advised the court that they wished to see the videotape so that they might determine Monteil`s height and weight. The trial court informed the jurors that they could not see the videotape again, but they could have the testimony recorded on the videotape read to Page 8 them. The court told the jurors that "I can`t treat a videotape any differently [than] I would treat a live witness here on the stand. So I could not call back a live witness if you were to ask for that witness to come back at this juncture, neither can I show you the videotape at this juncture because we are treating it the same way." The jury later returned a verdict acquitting petitioner of grand larceny in the third degree, but convicting him for attempted grand larceny in the third degree.

  On November 4, 1993, petitioner was sentenced, as a second felony offender, to a term of imprisonment of two to four years. Petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. In that court, petitioner urged that his conviction be upset because the trial court deprived him of his constitutional right to confront adverse witnesses and his due process and statutory rights by admitting the videotape of the complainant`s conditional examination into evidence without requiring the prosecution to explain why the witness could not appear in person. Petitioner alleged that the refusal to permit the jurors to see the conditional examination videotape, while they were deliberating, was also violative of his constitutional and statutory rights. Petitioner also urged the Appellate Division to upset his conviction because the trial court`s ruling, following the Sandoval hearing, deprived him of his due process right to a fair trial because the ruling permitted the prosecutor to inquire into seven prior convictions that Jones had acquired and to elicit evidence concerning petitioner`s use of 43 aliases on different occasions. In addition, petitioner argued that his conviction was infirm because he was deprived of his due process and statutory rights when the trial court restricted defense counsel`s opening statement, as described above, and thereby allegedly shifted the burden of proof from the prosecution to the defense. The Appellate Division affirmed Page 9 petitioner's conviction unanimously. See People v. Orr, 267 A.D.2d 177, 700 N.Y.S.2d 444 (App. Div. 1st Dept 1999). Thereafter, petitioner sought leave to appeal to the New York Court of Appeals. That application was denied. See People v. Orr, 95 N.Y.2d 856. 714 N.Y.S.2d 7 (2000).

  After Jones completed the sentence imposed upon him for his 1993 conviction, he was convicted for another felony offense. He is in the custody of New York State pursuant to that conviction. At the time that the instant petition for a writ of habeas corpus was filed in 2000, petitioner had already completed the sentence imposed upon him following his 1993 conviction.

  III. ISCUSSION

 Right to Confront Witnesses

  "The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution `to be confronted with the witnesses against him.`" Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110 (1974). See also Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065 (1965) (explaining that this right extends to state and federal criminal proceedings). "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis, 415 U.S. at 315-316, 94 S.Ct. at 1110 (citation omitted). "The Confrontation Clause requires that, where prior testimony is admitted at a later proceeding, the party against whom the testimony is admitted must have had an opportunity to cross-examine the witness at the earlier proceeding sufficient to endow the testimony as a whole with some `indicia of reliability'; `the trier of fact [must have] a satisfactory basis for evaluating the truth of the prior statement.`" United States v. Ciak, 102 F.3d 38, 43 (2d Cir. 1996) (quoting Mancusi v. Stubbs, 408 U.S. 204, 216, 92 S.Ct. 2308, 2315 [1972]). Page 10

  "The defendant`s Sixth Amendment right to confrontation is protected where the defendant has the opportunity to cross-examine the material witnesses under oath." United States v. Huang, 827 F. Supp. 945, 949 (S.D.N.Y. 1993). In order for a criminal defendant to state a violation of the Confrontation Clause he must demonstrate that "he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the [trier of fact] the facts from which [the trier of fact] could . . . appropriately draw inferences relating to the reliability of the witness." Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436 (1986) (quoting Davis, 415 U.S. at 318, 94 S.Ct. at 1111).

  In a case such as this, where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court`s adjudication resulted in a decision that: 1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See U.S.C. § 2254(e)(1).

  Petitioner contends that the trial court deprived him of his constitutional rights to confront witnesses and to due process, as well as state statutory rights, by: (1) permitting a videotape of Page 11 the complaining witness` conditional examination to be used at his trial, without preliminarily requiring the prosecution to explain why the witness could not testify in person; and (2) denying the jurors` request to view the videotape while they were deliberating.

  The threshold question under the federal habeas corpus statute, when a claim has been adjudicated on the merits in state court, is whether the petitioner seeks to apply a rule of law that was clearly established at the time his state court conviction became final. See Williams, 529 U.S. at 390, 120 S.Ct. at 1511. By the time the petitioner`s conviction became final, the Supreme Court had established that the Confrontation Clause is not violated by the use at trial of an absent witness` testimony if that testimony was: (i) given under oath; and (ii) subjected to cross-examination by a criminal defendant. In addition, the testimony must bear sufficient indicia of reliability such that the trier of fact can be said to have had a satisfactory basis for evaluating the truth of the witness` pretrial testimony. See Ohio v. Roberts, 448 U.S. 56, 73, 100 S.Ct. 2531, 2543 (1980). *fn3 Here, petitioner`s counsel had an opportunity to cross-examine Monteil at a proceeding held pretrial for the express purpose of preserving his testimony on videotape for use at the trial. This videotaped examination of Monteil afforded the jury an opportunity to view his demeanor and to make a judgment about his credibility. Moreover, the petitioner consented to the preservation of the witness` testimony on videotape, for future use at his trial, in order to accommodate his trial counsel`s vacation schedule. The record establishes that when the trial was originally scheduled to begin, Monteil was in New York and was Page 12 prepared to appear in person at the trial. When the petitioner sought to postpone the commencement of the trial, so that his trial counsel`s vacation plans would not be upset, it was made clear to all that if the trial was postponed, by the time it was held, Monteil would be in his native land, Argentina. It was based on these circumstances that the petitioner consented to preserving Monteil`s testimony on videotape so that it could be used at his trial. Based on the facts of this case, the petitioner`s claim, that an explanation concerning Monteil`s unavailability to appear at the trial should have been extracted from the prosecutor by the trial court, is curious; such an exercise was not necessary. Furthermore, during voir dire, the trial judge advised the jury that they would have to consider testimony from a prior judicial proceeding. The trial judge stated:

You will in addition to hearing from people in person seated on this witness stand hear from one witness whose testimony has been reduced to videotape. Now, the reasons for that are not of any concern to you. You, however, must weigh the testimony of that witness whose testimony comes to you through the form of a videotape in exactly the same way that you weigh the testimony of one who is here seated in this chair being crossed, to somebody subject to cross-examination, that person did sit in this chair and was indeed subjected to cross-examination and it was put onto tape for you to consider in this case. Does that cause a problem with anyone seated in the jury box? Anybody in the audience that has a problem with that?
  Based on the record evidence, it appears that not only was the petitioner given the

  opportunity to confront Monteil through cross-examination during the conditional examination that was videotaped, but also that the trial judge was careful to ensure that no prejudice would be

  harboured by any potential juror simply because a witness` testimony would come to the jurors via a videotaped recordation.

  In light of the above, the Court finds that the trial court did not violate the petitioner`s Page 13 right to confront adverse witnesses or his right to due process by allowing the videotaped testimony of a witness to be used at the petitioner`s trial.

  In the instant case, the Appellate Division`s ruling on the confrontation issue does not refer to Roberts. However, Roberts and other relevant Supreme Court cases were cited in petitioner`s Appellate Division brief. Therefore, it is reasonable to assume that these cases were considered by that court. In any event, the determination made by the Appellate Division is not in tension with federal law as expressed by the Supreme Court in Roberts. Therefore, the Court finds that the petitioner has not met the burden he is required to meet under 28 U.S.C. § 2254(d). That is, he has not shown that the Appellate Division`s decision on this branch of his claim: (a) was contrary to or unreasonably applied the governing legal standard established by the Supreme Court; or (b) was based on an unreasonable determination of the facts in light of the evidence that was adduced in the state court.

  The petitioner also alleges that the trial court violated the Confrontation Clause by denying the jurors` request to view the videotape while they were deliberating. Consistent with her prior instruction to the jurors, that Monteil`s testimony was to receive the same consideration as live testimony, the trial judge told the jury in response to its request to have the videotaped conditional examination replayed for them as they deliberated:

What you can have is testimony read back. I can`t treat a videotape any differently than I would treat a live witness here on the stand. So I could not call back a live witness if you were to ask for that witness to come back at this juncture, neither can I show you the videotape at this juncture because we are treating it the same way.
  New York employs a contemporaneous objection rule that requires an objection to a ruling "at the time of such ruling or instruction or at any subsequent time when the court had an Page 14 opportunity of effectively changing the same." New York Criminal Procedure Law § 470.05(2).

  Under this rule, a party must have brought a matter to the attention of the trial court "at a time and in a way that gave the [trial court] the opportunity to remedy the problem and thereby avert reversible error." Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999) (citation omitted). The petitioner failed to object when the trial court declined to show Monteil`s videotaped testimony to the jurors as they deliberated. Therefore, the error he claims was committed was not an issue preserved for state-court appellate review.

  A question of federal law that has been decided by a state court on a state law ground that is independent of the federal question and adequate to support the judgment may not be reviewed by a court that is considering a federal habeas petition. See Coleman v. Thompson, 501 U.S. 722, 729, 111S. Ct. 2546, 2553 (1991).

  New York has consistently applied its contemporaneous objection rule. Therefore, it is an independent and adequate basis upon which to deny federal habeas corpus review unless the petitioner can show cause for his procedural default in the state court and prejudice attributable to his failure to make a contemporaneous objection in the trial court to the court`s determination to allow the jury to have the videotaped testimony read to them but not allow the jury to see that tape while they were deliberating. See Wainwright v. Sykes, 433 U.S. 72, 87, 90-91, 97 S.Ct. 2497, 2506, 2508-09 (1977). Here, the petitioner has not shown cause for his procedural default. Accordingly, he is not entitled to habeas corpus relief on this branch of his claim. Sandoval Ruling

  In Luce v. United States, 469 U.S. 38, 105 S.Ct. 460 (1984), the Supreme Court held that a trial court ruling which permits evidence of prior convictions to be elicited for the purpose of Page 15 impeachment generally does not reach "constitutional dimensions." Id. at 42-43, 464. State court evidentiary rulings, such as the Sandoval ruling at issue here, do not violate a petitioner`s right to due process under the Fourteenth Amendment unless the petitioner can demonstrate that the evidentiary ruling was erroneous and so pervasive that it denied the petitioner a fundamentally fair trial. See United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399 (1976); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985).

  The petitioner`s claim, that the trial court`s Sandoval ruling violated his right to a fair trial, was addressed on the merits by the Appellate Division. Therefore, the petitioner cannot obtain habeas corpus relief on this claim unless he shows that the Appellate Division`s decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

  In the case at bar, the petitioner has not identified how, if at all, the Appellate Division`s determination was contrary to or an unreasonable application of any pertinent Supreme Court decision. Furthermore, the petitioner has not explained how, if at all, the Appellate Division`s decision on his Sandoval claim was an unreasonable factual determination in light of the evidence in the record. These are the requirements that the petitioner must satisfy in order to obtain the relief he seeks. See 28 U.S.C. § 2254(d). When a habeas corpus petitioner fails to satisfy these requirements, his application for a writ of habeas corpus cannot be granted. That is the case with respect to the petitioner`s due process claim premised on the trial court`s evidentiary ruling on his Sandoval motion: Accordingly, habeas corpus relief on the petitioner`s Sandoval claim is not warranted. Page 16

 Opening Statement

  Due process requires that in a criminal prosecution, the state prove each element of the charged crime(s) beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73 (1970). In the case at bar, the petitioner contends that, when the trial court prevented his counsel from using his opening statement to attack points made in the prosecution`s opening statement, and restricted his counsel to telling the jury about "any proof that [petitioner`s counsel intended] to produce here in the courtroom, any evidence that [petitioner`s counsel intended] to produce," the trial court shifted the burden of proof from the prosecution on to the petitioner and, thereby, denied him a fair trial. Petitioner is wrong.

  In its preliminary instructions to the venire members, the trial judge explained certain principles of law that they would have to know and accept if they were selected to serve as jurors at petitioner`s trial. Among the principles explained by the trial judge was that the petitioner was presumed to be innocent of the charged crimes and that this presumption continues throughout the trial. The trial judge also stated that the petitioner "doesn`t have to prove to you anything. . . . No person charged with a crime has to tell you anything, testify to anything, say anything. Once he has said I am not guilty of these charges, then the People must prove them, that is the law. So it is the prosecution that has the burden of proof." Later, during the final instructions to the jury, the trial judge revisited these principles.

  A trial judge "has considerable discretion in the conduct of a trial." Boyle v. Revici, 961 F.2d 1060, 1064 (2d Cir. 1992). Petitioner was entitled to a fair trial as opposed to a perfect one. See United States v. Pisani, 773 F.2d 397, 402 (2d Cir. 1985). In light of the instructions the trial judge gave the jurors prior to the opening statements and following the closing Page 17 arguments of counsel that emphasized that the burden of proof was upon the prosecution and, furthermore, that the defendant need not prove anything or even say anything at the trial, the direction given to petitioner`s counsel, to limit his comments to the proof he intended to produce, was improvident but cannot reasonably be said to have shifted the burden of proof from the prosecution to the petitioner and, thereby, denied the petitioner due process.

  In any event, the Appellate Division declined to entertain this due process claim because the petitioner failed to preserve the issue for appellate review by making a timely objection. As discussed earlier in this writing, a question of federal law that is decided on a state law ground that is independent of the federal question and adequate to support the judgment may not be reviewed by a court that is considering a federal habeas corpus petition, see Coleman. supra, unless the petitioner can show cause for his procedural default and prejudice. Inasmuch as the petitioner has not shown cause for his procedural default with respect to this due process claim, he is not entitled to the habeas corpus relief he seeks.

  IV. RECOMMENDATION

  For the reasons set forth above, the instant application for a writ of habeas corpus should be denied.

 

V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, United States District Judge, 500 Pearl Street, Room 1010, New York, New York 10007, and to the Page 18 chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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