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RICHARDSON v. ARTUZ

United States District Court, E.D. New York


March 22, 2004.

LAVON RICHARDSON, Petitioner, -against- CHRISTOPHER ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent

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

MEMORANDUM AND ORDER

Petitioner Lavon Richardson, an inmate at the Five Points Correctional Facility,*fn1 seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. I held oral Page 2 argument by telephone conference on February 13, 2004. For the reasons set forth below, the petition is denied.

  BACKGROUND

  On June 13, 1987, Joseph Morris shot and killed Jeffrey Stevenson during a robbery on Malcolm X Boulevard in Brooklyn, New York. Richardson was an accomplice to the robbery and murder, as was a third codefendant at the state trial, Jacques Webb ("J. Webb"). The robbery was witnessed by Stevenson's friend Brandon Holloman, who was a key prosecution witness at trial. Richardson was charged with one count of murder in the second degree, one count of robbery in the first degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. On May 4, 1'988, Richardson was convicted by a jury of all counts. On June 3, 1988, Richardson was sentenced to concurrent prison terms of seventeen-and-one-half years to life on the murder count, five to fifteen years on the robbery count, five to fifteen years on the second-degree weapon-possession count, and two to six years on the third-degree weapon-possession count.

  Shortly before the three codefendants-Richardson, Morris, and J. Webb-were to be sentenced, the trial court received sworn statements by J. Webb's mother, Rose Webb ("R. Webb"), and her friend, Brenda Wisdom. (June 3, 1988 Sentencing Tr. at 5 ("S. Tr.").) The handwritten statements were sworn to on May 14 and 16, 1988, but not submitted to the court until May 25, 1988. (Id. at 5-6.) The statements set forth an incident on a bus involving the two women and a juror on Richardson's (and J. Webb's) trial. (See Id. at 7-10.) This incident occurred on May 2, 1988-two days before the jury returned its guilty verdict. (Id. at 6.) After asking, rhetorically, why R. Webb had Page 3 waited nearly two weeks before telling her son's lawyer about this incident (Id. at 7), the court decided not to have a hearing regarding the incident, stating:

When I saw the affidavits-I called them affidavits, I assume they are-precipitously I said I want to talk to these two witnesses and I want to talk to the juror. I then had an opportunity to reflect on it. There's nothing more that can be said by these individuals, if they were called as witnesses, other than what was said in the papers.
Now, this is the decision and the order of the Court in this matter. The alleged incident took place on the 25 number bus on May 2nd while the trial was going on. The Court delivered its charge on May 3rd to a full jury with alternates. Verdict was returned on May 4th and the jury found these defendants, each and every one of them guilty of all counts. . . .
If this incident occurred the affiant could have, should have, and undoubtedly would have called it to her son's lawyer's attention who in turn I am certain would have called it to the Court's attention at a time when the Court would have heard the allegation and the juror with all the alternate jurors available to fill in should it be determined the juror had either displayed prejudice or had been tampered with. For reasons best known only to the affiants it was almost two weeks after the jury verdict, the so-called affidavits were presented to the Court, practically on the day of sentence. It's one of the oldest axioms in the law that jurors may not impeach their own duly rendered verdict, statements averring their own misconduct within or without the jury room. There is one narrow exception to the rule against impeachment in cases and those are cases which involve an outside interference. The outside interference in this case, if any, was the conduct of the affiant, the mother of the defendant [i.e., R. Webb, mother of J. Webb] in attempting to or engaging a juror in conversation during the course of a trial.
At best, if credited, affiant's conversation with the juror would attempt to influence the jury and common sense would indicate that the affiant's motive was to prejudice the juror in favor of and not against her defendant son.
The law jeralously [sic] guards the sanctity of the jurors, their motives, their arguments and final determination by verdict during their duties as jury men and women. Few rules are more deeply rooted in the jurisprudence of this State than one designed to free jurors from harassment in performance of their duty so to protect the integrity of their verdict.
. . .
  A hearing is unnecessary since all the allegations are set forth in supporting affidavits. The Court therefore denies the defendant's motion to set aside the verdict. That is the decision and the order of the Court. Page 4

 (Id at 9-12.)

  After this ruling, J. Webb's attorney argued that the government itself had asked the court to conduct a fact-finding hearing. (Id. at 12-13.) Though noting that it was "refreshing" to see defense counsel and the prosecutor "at one" on the issue (Id. at 14), the court did not change its decision:

This is an issue for the Court to decide not for the district attorney, not for the defendant. I made my decision. Your application is denied. An appellate court can review if I'm wrong. We can't have a situation where these things are permitted to continue and then every trial becomes a trial without end.
(Id at 14.)

  In remanding the matter to the trial court "to hold a hearing on the issue of whether the purported juror misconduct did occur and, if so, whether it affected a substantial right of the defendant," the Appellate Division held that "[i]t was error for the Supreme Court to summarily deny the defendant's motion to set aside the verdict on the ground of juror misconduct without first holding a hearing to make findings of fact essential to the determination thereof." People v. Richardson, 571 N.Y.S.2d 755, 755 (2d Dep't 1991) (quotation marks omitted).

  At the hearing on October 17, 1991, R. Webb testified that on May 2, 1988, the day she remembers J. Webb and Richardson testifying (Oct. 17, 1991 Hr'g Tr. at 3-4), she and her friend Wisdom caught the B25 bus at Fulton Street after leaving the courthouse. (Id. at 4-5, 7.) Once on the bus, Wisdom sat down but R. Webb remained standing. (Id. at 5.) R. Webb thereupon noticed a juror in Richardson's (and J. Webb's) trial sitting nearby. (Id. at 5-6.) It was juror number three. (Id. Page 5 at 6.) R. Webb "whispered" to Wisdom, "Here's one of the jurors." (Id. at 8 (quotation marks omitted).) Shortly thereafter, a friend of the juror boarded the bus. (Id.) The juror told her friend that she was on jury duty and her friend inquired as to the nature of the case. (Id.) The juror told her friend that the case involved "three young black boys that killed another young black boy." (Id. at 8-9 (quotation marks omitted).) Later, as the juror's friend got off the bus, she said to the juror, "When you give in your vote, give him life." (Id. at 9 (quotation marks omitted).) The juror responded, "That's what I'm going to do." (Id. (quotation marks omitted).) This exchange upset R. Webb, who then went over to the juror and said, "Look at the evidence. . . . They're not all guilty of the crime." (Id. at 10 (quotation marks omitted).) The juror was "amazed" to see R. Webb, and the juror "shushed" her by placing a finger to her (the juror's own) mouth. (Id.) Before getting off the bus, the juror said to R Webb, "I'll pray for you." (Id. (quotation marks omitted).)*fn2

  R. Webb said nothing of this incident to J. Webb's lawyer until May 13, 1'988. (Id. at 12.) R. Webb testified that the delay was due to her ignorance of the law and her emotions at "losing" her son. (Id.) J. Webb's lawyer directed R. Webb and Wisdom to immediately write statements describing the incident (Id. at 14-15), which are the handwritten, sworn statements discussed by the trial court in the sentencing minutes quoted above.

  Wisdom testified to a substantially similar version of events, and I note only some of the more important differences. Wisdom testified that when R. Webb pointed out the juror on the bus, she did not whisper, but rather spoke in "a normal voice." (Id. at 46-47.) According to Wisdom, juror Page 6 number three did not tell her friend that she was "going to" vote to give the defendants life, but rather that "she was seriously thinking about doing that." (Id. at 48, 50.) R. Webb then told the juror, "You know, you really should listen to the evidence before you give him, you know, [b]efore you just say you're thinking about doing that . . . because . . .[t]hey all aren't guilty." (Id. at 48-49 (quotation marks omitted).) On cross-examination, the prosecutor elicited that the portion of her statement, "because they're all not guilty," did not appear in her written statement submitted to the court prior to sentencing. (Id. at 56.)

  Curley Foster, juror number three at the trial, (see Supplemental Br. for Def.-Appellant at 6-7 (Apr. 1992)),*fn3 testified that she "exchanged greetings with an acquaintance, Gwendolyn Morgan," and that the two "talked for no more than a couple of minutes about sundry things." (Id. at 7.) "Foster admitted that she `could have mentioned' that she was on jury duty and, then, that she did mention it." (Id.) She denied, however, that she or Morgan "made the comments attributed to them." (Id.) Before Foster left the bus, R. Webb "approached her and said, `My son is innocent,' but nothing else. Foster gestured,'Shh,'and replied, `I'll pray for you.' [Wisdom] said,'Thank you.' Morgan was still on the bus at the time of this exchange." (Id.)

  Though Foster recalled the judge's instruction not to discuss the case and to report any attempt made by anyone to talk to a juror about the case (Id.).

  Foster did not report anything to the court, explaining that she thought nothing of it, as she had ended the conversation. But, at the time, she admittedly knew it was improper for Webb to have spoken to her, believed she should tell the Page 7 judge ("my mind told me to tell the Judge"), and was bothered enough to tell her daughter about it.

 (Id. at 7-8 (citation omitted).) Foster testified that "[R.] Webb's comment did not influence her opinion, which she first formed during deliberations." (Id. at 8.)

  Morgan, Foster's church acquaintance, testified that she (Morgan) "did not say anything until Foster got ready to leave. They then exchanged `hellos' and Foster volunteered that her feet were tired because she was on jury duty all week, told Morgan she would see her on Sunday, and got off; they said nothing else in this `few seconds' interchange." (Id. (citation omitted).) Morgan "avowed that [R.] Webb had not approached Foster, nor had she seen either [R. Webb or Wisdom] on the bus or anyone approach Foster." (Id.) "Morgan recalled that the bus conversation had occurred during a warm summer month." (Id. at 9.)

  R. Webb and Wisdom were recalled by defense counsel on March 10, 1992 and testified that Morgan was not the woman whom they had seen with Foster on the bus. (Mar. 10, 1992 Hr'g Tr. at 3-6, 7-9.) After completion of the testimony, the hearing court held oral argument on March 12, 1992.

  On April 1, 1992, the hearing court denied Richardson's motion for a new trial. People v. Richardson Indictment No. 5351/87, slip op. (N.Y. Sup. Ct, Kings County Apr. 1, 1992). The court first held that, even assuming R. Webb's version of the events was true (Id. at 3), the motion would have to be denied:

  To assume this encounter, as described by [R. Webb], would influence the juror would lead to the conclusion that an encounter on a bus, lasting approximately twenty seconds, would wipe away all of the trial judge's voir dire instructions, all of the trial judge's instructions during the charge, and, all of Page 8 the trappings in the courtroom designed to impress citizens of the seriousness of the proceeding.

 

To assume this twenty second encounter had a significant impact on this juror would place form over substance. It would mean no verdict is secure since in large cities where jurors must come and go on public taransportation [sic], have lunch in local coffee shops, there will always be fleeting exchanges between jurors, their friends, and acquaintance and members of the defendant's family. To suggest that these informal fleeting comments would impact a juror can only be sustained by assuming that none of the parties take[s] the process, or the Court's instructions, seriously.
Id. at 4.

  The court went on to make a credibility determination:

Although, in my view, there are no grounds to set aside the verdict even if the version of events most favorable to the defendant is believed, I make a finding of fact since this matter was returned by the Appellate Division for that purpose.
I believe the mother and her friend now recall the conversation in a way helpful to her son.
The juror's version of the event in my mind, however, seems more reasonable and her demeanor convinces me that the mother approached the juror and the juror simply said "I will pray for you."
Finally, defendant offers the result of a polygraph examination showing that the mother's friend was not lying. Although in my view, the results of the lie detector tests in certain limited situations may be considered, I am also aware that they are not as reliable as other scientific evidence. Moreover, polygraph tests only have significance if both sides are given the opportunity to have an expert examine the witness.
Since it would clearly be contrary to public policy to require those citizens who serve on jury duty to now submit to polygraph examinations, I conclude that the fact that the People could not have the witnesses examined by a polygraph expert of their choosing, coupled with my general awareness of the unreliability of polygraph tests, that in the context of this case, the results of the polygraph have no significance whatever.
Id at 4-5.

  Richardson appealed this decision and his judgment of conviction to the Appellate Page 9 Division, claiming that (1) the trial court's ruling concerning the scope of permissible cross-examination of the government's rebuttal witness was unduly restrictive; (2) the trial court denied Richardson's right to a fair trial when it admonished defense counsel in front of the jury; (3) the trial court failed to properly instruct the jury on the factors it should consider when determining whether a pretrial statement made by Richardson was voluntary; (4) the trial court should not have admitted certain testimony by the victim's mother; (5) his sentence was excessive, and (6) the hearing court erred in ruling that Richardson had failed to establish his claim of juror misconduct affecting a substantial right.

  On August 31, 1992, the Appellate Division affirmed Richardson's judgment of conviction. After summarizing the evidence at the hearing, the court held, "We find on this record that the defendant failed to carry his burden of establishing that the alleged misconduct by Juror Number 3 may have affected a substantial right of the defendant." People v. Richardson, 587 N.Y.S.2d 947, 948 (2d Dep't 1992) (quotation marks omitted). The court then turned to the alleged trial errors:

[W]e note that although the trial court's ruling with respect to the scope of the defendant's cross-examination of the People's rebuttal witness was arguably somewhat restrictive, it did not constitute reversible error, particularly since curative instructions were given. The defendant's contention that the trial court's jury instruction regarding the voluntariness of the statement made by him to law enforcement officials was incomplete is unpreserved for appellate review, and, in any event, is without merit.
The defendant's sentence was not excessive. The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.
Id. (citations omitted). On August 31, 1'992, the Appellate Division denied Richardson's application for further oral argument. People v. Richardson. 587 N.Y.S.2d 997 (2d Dep't 1992). Leave to appeal to the New York Court of Appeals was denied on October 29, 1992. People v. Richardson Page 10 80 N.Y.2d 976 (1992) (Titone, J.).

  On April 24, 1997, Richardson filed the instant petition for a writ of habeas corpus, claiming that (1) the trial court's ruling concerning the scope of permissible cross-examination of the government's rebuttal witness was unduly restrictive; (2) the trial court denied Richardson's right to a fair trial when it admonished defense counsel in front of the jury; (3) the trial court failed to properly instruct the jury on the factors it should consider when determining whether a pretrial statement made by Richardson was voluntary; (4) the trial court should not have admitted certain testimony by the victim's mother; and (5) the hearing court erred in ruling that Richardson had failed to establish his claim of juror misconduct affecting a substantial right. Richardson's petition was originally assigned to then-District Judge Reena Raggi.

  By letter dated June 27, 1997, Richardson informed Judge Raggi of "some very recent information" that one Lashanda Edwards had provided him. (Letter from Richardson to the Hon. Reena Raggi, Judge, E.D.N.Y., dated June 27, 1997 ("June 27, 1997 Letter")). Appended to this letter was a portion of the testimony of Holloman (the victim's friend and an eyewitness to the murder) at the trial of Troy Moore, a fourth individual (along with Richardson, Morris, and J. Webb) involved in the robbery and murder of Stevenson. At Richardson's trial, Holloman had testified that one of the assailants-he did not know which-had "snatched" Stevenson's gold chain. (Tr. at 48; see also Id. at 49 ("I don't know which one took [the chain]. I just seen a hand grab the chain.").) According to the minutes provided by Richardson, however, Holloman testified differently when cross-examined at Moore's trial:

  Q. But you did not tell Detective Rosalli on the evening of June 13th that Page 11 you saw one of the young men snatching the chain from off the neck of Jeffrey [Stevenson]; did you?

 

A. At that time, I was in shock. I said he got shot, three guys reached down and went for his chain, and they left and went around the coiner.
Q. But you didn't tell Detective Rosalli that you saw somebody reaching for the chain?
A. At that time?
Q. At that time.
A. I said he got shot.
Q. You didn't tell him about the chain?
A. Not then.
Q. In fact, this whole incident about the snatching of the chain is something that you created out of your own imagination; wasn't it, Mr. Holloman?
A. Then why wasn't it found on the scene?
Q. That's not a question of what happened to the chain. The question is: Did you see any individual reaching for that chain?
A. The only thing that was left was his heart-shaped name plate with him and his girlfriend's name left on it.
Q. And how did you know that was the only thing left; did you see that there?
A. That's what was laying on the ground.
Q. So you presumed that somebody had taken the chain off his neck; is that correct?
A. The chain was gone. It wasn't there when they left.
Q. I understand. The fact that the chain was not there is different from saying you saw somebody taking the chain. The question is: Did you see someone taking the chain?
A. When the crowd left, the chain was gone, so I presumed they took it.
Q. You presumed that they took it?
A. If it was not there when I came upon the body when they left, that would be anyone's natural reaction.
(June 27, 1997 Letter (attachment).)

  Richardson asked Judge Raggi to hold the petition in abeyance or allow him to withdraw it while he exhausted any possible claims that might be based on this new information. (June 27, 1997 Letter at 2.) In a July 9, 1'997 order, Judge Raggi noted that while Richardson was always Page 12 free to withdraw his petition, the statute of limitations set forth in 28 U.S.C. § 2244(d) already appeared to warrant dismissal of his petition. After the timeliness issue was briefed, Judge Raggi dismissed the petition as time-barred on December 15, 1997. On September 25, 1998, the Second Circuit vacated the order of dismissal and remanded for further proceedings in light of its then-recent decision in Ross v. Artuz. 150 F.3d 97 (2d Cir. 1998).

  On January 30, 1998, Richardson, acting pro se, moved to vacate his judgment of conviction, pursuant to New York Criminal Procedure Law § 440.10, based on Holloman's testimony at Moore's trial, set forth in pertinent part above. Richardson also moved to vacate his sentence, pursuant to New York Criminal Procedure Law § 440.20, claiming that the sentencing court should not have considered a screwdriver Richardson was carrying at the time of the robbery and murder. The court denied the motions without a hearing:

On an application to vacate a judgement of conviction, the party challenging the conviction bears the burden of coming forth with allegations sufficient to create an issue of fact. In asserting the claim that his conviction was based upon perjured testimony, the defendant has not submitted the required sworn allegations of fact in support of such contention. Moreover, the court must deny a motion which is based upon claims which the defendant could have raised on direct appeal but unjustifiably failed to do so. Assuming arguendo. that the defendant's claim that the conviction was based upon perjured testimony was valid, sufficient facts appear on the record of the proceedings underlying the judgement to have permitted adequate review of such claim upon defendant's previous appeal from the conviction. Specifically, the defendant was aware of the testimony of Brandon Holloman, the person defendant alleges perjured himself at trial, at the time of defendant's direct appeal. Having failed to appropriately raise this claim, the defendant may not now assert it.
  Finally, the court must deny a motion to vacate a judgment when the ground or issue raised relates solely to the validity of the sentence and not to the validity of the conviction. Thus inasmuch as the defendant's remaining contention is that his sentence is excessive, the court may not entertain the motion on this basis. In any event, there is no merit to defendant's claim that his Page 13 sentence was excessive. . . . The top charge for which the defendant was convicted was murder in the second degree. By law, the defendant was subject to a minimum sentence of fifteen to twenty-five years incarceration, and a maximum sentence of twenty-five years to life. The defendant was sentenced to seventeen years to life. The defendant's sentence was well within the permissible range, and in light of the seriousness of the offense for which the defendant was convicted, it appears the trial court's decision was reasonable.

 

Moreover, in defendant's supplemental memorandum dated April 20, 1998, in reply to the prosecutor's answer, defendant contends that his sentence is excessive as he was sentenced to two to six more years than co-defendant Webb. This factor standing alone is an insufficient basis for modifying a sentence. There is no requirement that all participants in a crime be sentenced equally; such factors as extent of actual involvement and circumstances of individual's background can, and indeed should, be considered in a sentencing decision.
People v. Richardson Indictment No. 5251-87, slip op. at 4-6 (N.Y. Sup. Ct, Kings County May 7, 1998).

  By letter to Judge Raggi dated January 22, 1999, Richardson requested the opportunity to amend his petition to add the claims raised in his § 440.10 and § 440.20 motions. Judge Raggi directed Richardson to file his proposed amendments and gave the District Attorney an opportunity to file an opposition. Therefore, on March 24, 1999, Richardson filed a "Memorandum of Law in Support of Writ of Habeas Corpus and Appendix" ("Appendix") in which he reiterated the claims alleged in his petition, and added the two claims raised in the § 440 motions. As to the allegation that Holloman perjured himself at Richardson's trial, Richardson argued, "The lower Court erred in denying petitioner['s] post-conviction motion without first granting a hearing to make findings [of] fact whether the People's eye witness had perjured himself, and the allege[dly] stolen medallion was found on the scene, and whether the jury, counsel and Court would have known of this evidence at the time of trial Page 14 the verdict would have been more favorable to petitioner. . . ." (Appendix at 1-2.)*fn4 Judge Raggi did not rule on whether Richardson's new claims related back to the original filing date of his petition. The case was transferred to me on December 17, 2002.

  DISCUSSION

 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 Page 15 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. 1, 4 (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 S.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 Page 16 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.
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. Richardson's Claims

  1. The Court's Cross-Examination Ruling and Admonition of Defense Counsel

  In his first ground for relief, Richardson alleges that the trial court's ruling concerning the scope of permissible cross-examination of the government's rebuttal witness was unduly restrictive, and that the trial court denied Richardson's right to a fair trial when it admonished defense counsel in front of the jury. Page 17

  In its case-in-chief, the government introduced, through Detective Rosalli, the following statement made by Richardson after he waived his Miranda rights:

On Saturday, 6/13/87, at about 6 o'clock, I was with my friends, Troy, some girls and other people. We were hanging out at Hancock and Malcolm X Boulevard.
These two came by. One was very tall and one had a lot of gold on. The one with the gold had had words with one of the guys on the corner.
Then he and the taller guy started walking down Malcolm X towards Halsey. The tall guy kept looking at me, so I took out a tool, something like a screwdriver, and I said to the guy what the fuck are you looking at?
He didn't answer and they kept walking. So I put the tool back in my pocket.
At this time Troy and others came across the street. One followed the two guys, and me and the others followed them. I thought the guy who followed them-to fight the guy with the gold, so he could take the gold.
The guys turned the corner onto Halsey. We came around the corner. The guy who followed-excuse me. The guy who followed them had one hand in his pocket and with his other hand he was pushing the guy with the gold.
We surrounded them to make sure the guy's friend didn't jump in. At this time I didn't know anyone had had a gun. I saw the guy's gold chain pop and the medallion was sliding down his chest.
I grabbed the medallion and handed it to Troy, who dropped it on the ground. One guy said to the guy, give me the ring and the guy refused. The guy then started to reach down to pick up his medallion and that's when he was shot.
I went down Halsey then to my house.
(Tr. at 299-300.)

  Richardson later testified at trial and denied making this statement or having been informed of his rights. (See Id at 480, 487-88, 490-91, 501-02, 510-16, 522, 529-34: see also Id. at 527-28.) The government therefore recalled Rosalli in its rebuttal case. Rosalli testified that when he had interviewed Richardson, he had advised him of his Miranda rights beforehand, and Richardson had waived them. (See Id. at 653-54.) The government also offered into evidence the card Richardson Page 18 signed waiving his Miranda rights. (Id.) R. Webb, codefendant J. Webb's mother, also signed

  Richardson's waiver card. (Id. at 653.) Rosalli testified on cross-examination that R. Webb was present when Rosalli read Richardson his rights, and that Rosalli knew that Richardson was sixteen years old at the time and that R. Webb was not related to him. (Id. at 656-57.) The government objected when Richardson's lawyer asked who else was present when Rosalli read Richardson his rights:

Q. At the time you read [his rights] to him, he was in custody; isn't that correct? Isn't that right, sir?
A. Yes, he was.
Q. And at the time you read those rights to him, he was there by himself without anyone from his family with him; is that right, sir?
[PROSECUTOR]: Objection. This is beyond the scope of the rebuttal examination.
THE COURT: Yes, it is beyond the rebuttal, but I will permit it. Go ahead.
Q. Isn't that correct, sir?
A. To the best of my knowledge, yes.
Q. You say he signed the bottom of People's Exhibit 12 [i.e., the waiver card]; is that correct?
A. That's correct.
Q. And Mrs. Webb signed it also?
A. Yes, that's correct.
Q. After he signed People's Exhibit 12 and Mrs. Webb signed it, was she present when you questioned him?
[PROSECUTOR]: Objection.
Q. Going to People's Exhibit —
THE COURT: There is no legal requirement, counselor. Why are we going into all of this? You know better than that.
[DEFENSE]: There may not have been a legal requirement, but I am going into it for a purpose.
  THE COURT: You are giving the jury the impression there was something illegal about this procedure of questioning somebody who was a certain age. Page 19 The only time a parent has to be there is when a person is under a certain age.

 

[DEFENSE]: I understand that. Note my exception to that.
THE COURT: Let's not get carried away.
[DEFENSE]: May I just take my exception to that remark?
THE COURT: You have your exception. I have an exception to what you are doing. You are doing something that is not proper in the Court's opinion.
[DEFENSE]: My exception.
THE COURT: I have no view in this case, I have no opinion. I told you before my role is to see that this case proceeds according to the law. Period. That is all I am doing. Go ahead.
(Id at 657-59.)

  As noted above, the Appellate Division dismissed this claim on the merits, holding, "[W]e note that although the trial court's ruling with respect to the scope of the defendant's cross-examination of the People's rebuttal witness was arguably somewhat restrictive, it did not constitute reversible error, particularly since curative instructions were given." Richardson 587 N.Y.S.2d at 948.

  The Confrontation Clause does not prohibit a trial judge from imposing reasonable limits on a defense attorney's cross-examination of a government witness. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant") "`The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Id. (quoting Delaware v. Fensterer. 474 U.S. 15, 20 (1985) (per curiam)). Page 20

  Here, the trial court advised counsel not to pursue what it reasonably believed to be an inappropriate line of questioning, as New York law does not require that a parent or custodian be notified when a person sixteen years of age or older is taken into custody. See In re Jimmy T., 99 Misc.2d 623, 624-25 (N.Y. Fam. Ct. 1979). Furthermore, as set forth above, the trial court let defense counsel cross-examine Rosalli as to who else was present when Richardson made his statement:

Q. At the time you read those rights to him, he was there by himself without anyone from his family with him; is that right sir?
[PROSECUTOR]: Objection. This is beyond the scope of the rebuttal examination.
THE COURT: Yes, it is beyond the rebuttal, but I will permit it. Go ahead.
Q. Isn't that correct, sir?
A. To the best of my knowledge, yes.
(Tr. at 657-58.) It was only when defense counsel pressed this point further that the court stopped him. (Id. at 658-59.) Therefore, to the extent that the trial court sought to prevent Richardson's lawyer from misleading the jury, it acted within its discretion, and the Appellate Division's decision on this issue was not unreasonable.

  As to the court's admonition of Richardson's attorney, Richardson claims that the court improperly conveyed (1) its opinion of the case to the jurors, (2) that the presence of family members was not a factor to consider, and (3) that defense counsel was acting improperly. In these ways, the court denied Richardson's right to a fair trial. I disagree. Any impropriety in the judge's remarks was cured by the instructions given immediately after the comment, the judge's preliminary instructions to the jury, as well as the instructions given after all of the evidence had been submitted. As set forth above, Page 21 after a government objection to defense counsel's cross-examination, the court cut off the defense's line of questioning:

THE COURT: There is no legal requirement, counselor. Why are we going into all of this? You know better than that.
[DEFENSE]: There may not have been a legal requirement, but I am going into it for a purpose.
THE COURT: You are giving the jury the impression there was something illegal about this procedure of questioning somebody who was a certain age. The only time a parent has to be there is when a person is under a certain age.
[DEFENSE]: I understand that. Note my exception to that.
THE COURT: Let's not get carried away here.
[DEFENSE]: May I just take my exception to that remark?
THE COURT: You have your exception. I have an exception to what you are doing. You are doing something that is not proper in the Court's opinion.
[DEFENSE]: My exception.
THE COURT: I have no view in this case, I have no opinion. I told you before my role is to see that this case proceeds according to the law. Period. That is all I am doing. Go ahead.
(Id at 658-59.)

  While the better practice would have been to have this conversation at sidebar, I cannot say that the Appellate Division was unreasonable in dismissing this claim on the merits. Besides the curative instruction set forth above, the court instructed the jury to disregard any argument between the attorneys themselves or the attorneys and the court: "Should you hear any argument disregard it. What counsel say to each other and what they say to me and what I say to them, that has no place in the proceedings, it is not evidence in this case and you will completely disregard it." (Id. at 9.) The court also instructed the jury at the end of the trial on this point: Page 22

 

Your own recollection, understanding and evaluation of the facts presented by evidence at this trial is what controls, regardless of what counsel on either side of the case may say about the facts and regardless of what the Court may say about the facts.
I wish to advise you also at this time that you are not to consider anything I have said during the trial or any questions I may have asked, not anything I say to you in the course of this charge as indicative I have an opinion on this case one way or the other.
(Id. at 762.) In light of these three instructions-which I presume the jury followed, see, e.g., Richardson v. Marsh. 481 U.S. 200, 211 (1987)-the jury understood that the court's comments to Richardson's attorney did not indicate an opinion regarding the merits of the case. Therefore, as neither the trial court's curtailment of defense counsel's cross-examination, nor its admonition, denied Richardson a constitutional right, these claims do not justify issuance of the writ.

  2. The Jury Instruction

  Richardson claims that the trial court failed to properly instruct the jury on the factors it should consider when determining whether Richardson's pretrial statement was voluntary.

  The trial court instructed the jury as follows, in pertinent part:

I admitted into evidence in the course of this case statements allegedly made by the defendant Richardson to Detective Rosalli. That was part of the People's direct case.
I charge you that the voluntariness and the weight as well as the truth and reliability of each of those statements [i.e., the pretrial statements of Richardson and J. Webb, which was also admitted at trial] are questions of fact for you the jury to decide.
. . .
The law requires that when a person is interrogated while in police custody he is entitled to certain warnings before his statement can be taken and used against him.
  If you believe his statements were made while he was being interrogated and while he was in custody, then the warnings must have been given. Page 23

 

Whether the defendant received such warnings or whether he properly waived them are also questions of fact for you the jury to determine.
As to the manner or the weight, it is for you to evaluate them and to decide what weight or effect they will have upon your final verdict in this c[]ase.
The form of the statement is not material. It may be oral, it may be written, it may be in question and answer form, or it may be in statement form. It may be signed, it may be unsigned.
The law does not require any particular form of authentication. The burden of proving the voluntary making of the statement is upon the prosecution.
Before you may accept such a statement and give it the weight which you think it merits, you must first be convinced that the defendant made it, that he made it voluntarily, and in determining the voluntariness of the statement and in ascertaining the weight you should give to it, you should take into consideration all the facts and circumstances surrounding its making.
Consider all of the evidence in the record relating to the statements. A statement which is true in every detail cannot be used against the defendant if it was not voluntarily made.
A statement is not voluntarily made when it is obtained from a defendant by any person by the use or threatened use of physical force upon the defendant or another, or by means of improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice, whether or not to make a statement.
I come now to the matter of the warnings and the necessity of advising the defendant of his constitutional rights when being interrogated in police custody.
By police custody is meant not only custody after a formal arrest and booking, but when a person is first subjected to custody in the station house or is otherwise deprived of his freedom of action in any way.
Under such circumstances the defendant must be warned prior to any questions, first, that he has a right to remain silent;
Second, that anything he says can be used against him in a court of law;
Third, that he has a right to consult with an attorney and be questioned in the presence of an attorney;
Fourth, that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desired.
An opportunity to exercise these rights must be afforded to him throughout the entire interrogation.
  After such warnings have been given and such opportunity afforded to him, the defendant may knowingly and intelligently waive these rights and agree to answer questions or to make a statement. Page 24

 

But until and unless such warnings and waiver are demonstrated by the prosecution at the trial, no evidence obtained as a result of an interrogation can be used against him.
Therefore, to summarize, if you find that these warnings were fully, clearly and understandably given and understood by the defendant . . .[,] that he was willing to answer the questions put to him, that he made an intelligent, voluntar[]y and valid waiver of his rights, then and only then may you consider the answers he made to Detective Rosalli as evidence in this case.
If you do not so find, then you must completely disregard those answers and erase them from your minds, as if you had never heard them, because they would not then constitute admissible evidence. Then you will consider all the other evidence in the case.
(Tr. at 770-74.)

  Richardson contends that the trial court erred in not specifying what facts and circumstances the jury could properly take into account when determining if the statement was voluntary, such as Richardson's age and level of education. This error was compounded, Richardson claims, by the fact that the trial court did tell the jury it could consider physical force-a factor for which there was no evidence at trial. Richardson argues that this misled the jury. Richardson also contends that, since the court did not specifically instruct the jury that the government had to prove voluntariness beyond a reasonable doubt, the jury may have applied a lesser standard, thereby violating Richardson's due process rights. As noted above, the Appellate Division held that this claim was "unpreserved for appellate review, and, in any event, is without merit." Richardson 587 N.Y.S.2d at 948.

  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. Page 25 489 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)). Page 26

  After the judge finished instructing the jury, he asked the lawyers to state any objections they had to the instruction. (Tr. at 853.) Richardson's attorney objected only to the fact that the judge did not instruct the jury that the government had the burden to disprove the affirmative defense to felony murder beyond a reasonable doubt. (Id. at 857, 859.) In fact, none of the attorneys objected to the voluntariness charge.

  Richardson offers no explanation for this failure to object. Furthermore, even if he had been prevented in some manner from objecting, 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. Richardson offers no basis for drawing either conclusion. In any event, even if I could review his challenge to the instruction, it would have to be rejected, as discussed below.

  b. The Merits

  In order to obtain a writ of habeas corpus based on an error in the state court's instructions to the jury, Richardson must show that the error violated a right guaranteed by federal constitutional law. See Cupp v. Naughten 414 U.S. 141, 146 (1973); Casillas v Scully. 769 F.2d 60, 63 (2d Cir. 1985). The relevant issue is not whether the instruction was "undesirable" or "erroneous," but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp. 414 U.S. at 147. "In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context." Brooks v. Ricks. No. 00-CV-3746, 2003 U.S. Dist. LEXIS 13646, at *11 (E.D.N.Y. July 29, 2003) (citing Cupp. 414 U.S. at 146-47). Page 27

  Though the trial court did not specifically set out the factors the jury could appropriately consider in determining voluntariness, it instructed the jury that it "should take into consideration all the facts and circumstances surrounding its making." (Tr. at 771-72.) The court told the jury to "[c]onsider all of the evidence in the record relating to the statements." (Id. at 772.) It continued:

A statement is not voluntarily made when it is obtained from a defendant by any person by the use or threatened use of physical force upon the defendant, or by means of improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice, whether or not to make a statement.
(Id.) Through these instructions, the court did not limit the jury to considering physical force or pressure. Rather, the court instructed the jury to consider "all the facts and circumstances surrounding" the making of the statement, including "improper conduct or undue pressure which impaired the defendant's physical or mental condition." (Id.)

  Richardson also alleges that the trial court failed to instruct the jury that the government had to prove voluntariness beyond a reasonable doubt. That claim, however, is belied by the record. The court instructed the jury that "[t]he burden of proving the voluntary making of the statement is upon the prosecution." (Id. at 771.) The court also instructed the jury that "until and unless such [Miranda] warnings and waiver are demonstrated by the prosecution at the trial, no evidence obtained as a result of an interrogation can be used against him." (Id. at 773.) Later, the court told the jurors:

It is for you the jury to determine in the first instance whether the People have proven beyond a reasonable doubt that the statements alleged to have been made by the defendants were in fact made.
  It is also for you to decide what weight you would attach to the statements if you find beyond a reasonable doubt that they were made by the defendants, under the rules that I have outlined for you. Page 28

 (Id. at 775.) Furthermore, in its pretrial instructions to the jury, the court stated that the presumption of innocence "remains with the defense throughout the entire trial, until a jury during its deliberations is convinced beyond a reasonable doubt that the prosecution has met its burden of proof and has established the guilt of the defendant . . . beyond a reasonable doubt." (Id. at 16-17.) The court went on, "The burden of proof I repeat is on the prosecution throughout the entire trial. A defendant never has to prove or disprove anything." (Id. at 17.) The court then defined the government's burden of proof as "beyond a reasonable doubt." (Id.) In its final charge, the court instructed the jury that "[t]he law places upon the prosecution the burden that it must prove the defendant's guilt beyond a reasonable doubt." (Id. at 787.) The court elaborated on this burden at some length. (See Id. at 787-93.)

  Viewing the instruction in its total context, it was reasonable for the Appellate Division to deny this claim as meritless. The instruction as a whole emphasized that the government had the burden to prove that Richardson's pretrial statement was voluntary beyond a reasonable doubt. The instructions also allowed the jurors to consider all of the circumstances surrounding the making of the statement when determining whether it was voluntary. Therefore, this claim does not justify issuance of the writ.

 3. The Admission of the Victim's Mother's Testimony

  Richardson claims that the testimony of the victim's mother-in which she described viewing her son's body on the street for the first time, and the moments leading up to that viewing-was unduly prejudicial and should not have been admitted. Page 29

  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, Richardson 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).

  At trial, the victim's mother, Florence Stevenson ("F. Stevenson"), testified as follows, in pertinent part:

Q. I want to direct you back to June 13, 1'987, in the late afternoon, approximately 6 o'clock Could you tell us where you were?
A. I was in the house.
Q. Did anything happen?
A. The phone rang. My daughter answered the phone. I heard her talking on the phone, going um-um, hu-hu, um-um, hu-hu, and I walked towards her and I asked her —
[Objection to hearsay sustained.]
A. . . . I had a conversation with my daughter.
Q. Mrs. Stevenson, tell us what you did after you spoke with your daughter?
  A. I told my daughter to stay there. I picked up my keys and I left the house, headed towards Halsey Street and Malcolm X Boulevard. Page 30

 

I got in the car, drove to Halsey and Stuyvesant. I couldn't go down Halsey Street so I parked on Halsey and Stuyvesant.
Q. Why couldn't you go down Halsey Street?
A. There was fire trucks in the middle of the street halfway up the block There was a bus there, the fire trucks was there. The bus was there. There was no traffic going.
Q. So what did you do?
A. I parked the car on Stuyvesant and Halsey, got out and started up the block towards Reid Avenue. As I was walking up the block, I could hear people standing around saying that a fellow got shot. I continued walking. As I got towards the corner, I could see the crowds of people on the other side of the street. As I crossed over, I could see the police. As I got closer I could see-I could see a body on the ground.
Q. Take your time, Mrs. Stevenson.
A. When I went under the tag, the rope, that they had, sealing off the area, when I went under that yellow sealing off the area, I went under that and walked over —
Q. Mrs. Stevenson, should we take a break?
A. No.
Q. You tell me when you are ready.
THE COURT: Would you like some water?
THE WITNESS: No.
A. I seen the body on the ground. I could see the right side of the body, the left side was covered. I seen on the fingers was a ring with "Jeff' on i[t]. I seen his watch. I seen his red shorts. His T-shirt was ripped, it was ripped down to his waist.
Q. Was that your son, Mrs. Stevenson?
A. Yes, it was. One of the police officers, I guess it was a detective, he was going through his pockets —
Q. Mrs. Stevenson, let me ask you, did Jeffrey own a neck chain and medallion?
A. Yes, he dId.
Q. Had you seen Jeffrey earlier that day?
A. Yes.
Q. Was he wearing the pendant?
A. Yes, he was.
Q. When you saw his body on Halsey Street, did he have the pendant on?
A. I couldn't tell. . . .
  . . . Page 31

 

Q. Do you remember seeing the pendant when you saw the ripped shirt?
A. No.
(Tr. at 374-78.)

  After F. Stevenson testified and the jury had been excused, defense counsel requested that the court give "some instruction . . . to the jury with respect to that sympathetic type of testimony." (Id. at 380.) Counsel conceded that some of F. Stevenson's testimony was relevant (Id at 381), but objected to "the method by which" that testimony was elicited (Id.: see also Id. at 385), believing the relevant questions "could have been couched in a method not to affect my client the way it probably affected him with the jury being prejudiced" (Id. at 382). Counsel also noted that "some of the jurors had tears in their eyes." (Id. at 385.) The court responded, "In my charge I will tell the jury not to consider sympathy or vengeance. If I say anything, it may highlight it. I don't see how any fair-minded juror could take offense to the fact a mother is distraught over the fact her son was murdered." (Id. at 382: see also Id. at 387.)

 

In his closing, J. Webb's defense counsel reminded the jurors that they had
promised . . . when you were chosen and sworn as trial jurors that you would not let sympathy, either for the victim or the defendants, influence your judgment-because I noticed when Mrs. Stevenson took the stand and she identified the body of her son, as I said in my opening statement, this is a tragic, senseless murder, it made no sense whatsoever, I will agree with you to that.
However, I saw somebody crying, and it is a natural reaction, when Mrs. Stevenson gave her emotional testimony about identifying the body of her son on Halsey Street that day.
  But don't let that cloud your judgment as to the guilt or innocence of Mr. Webb. Judge him on the evidence that is admitted against him. Page 32

 (Id. at 700-01.) J. Webb's lawyer then emphasized Webb's age, drawing an objection from the government. The court told the jury that it "will decide this case on the evidence, not on the age." (Id. at 701.) The court elaborated,

The jury will decide this case on the evidence, not on the age of the victim or the age of the person with the victim or the age of the defendants.
You will have no sympathy or feelings of vengeance. Decide this case only on the evidence. We are not trying this case on the age of the victim or the age of the defendants.
(Id at 702.)

  In its final charge, the court instructed the jury that "[s]ympathy, or at the other extreme vengeance, or prejudice or bias of any kind are to be completely disregarded by you." (Id. at 765.) At the very end of the instruction, the court stated:

Who speaks the truth? This is the question for you to determine. To the best of your ability, I ask you to apply common sense and good judgment and to be fair and impartial in your judgment.
Do not let sympathy or prejudice sway your minds in any way in analyzing the testimony. Decide this case on the evidence and under the law as I have given it to you.
(Id at 844.)

  F. Stevenson's testimony was relevant to two elements of the crime: that her son was the victim and that his medallion had been taken. Though it may have been unnecessary for the government to take F. Stevenson through this drawn-out version of her approach to the crime scene, any prejudice was cured by the court's repeated instructions to the jurors not to let sympathy, bias, or vengeance sway their decision. Though Richardson claims that the instructions came too late in the trial to cure the prejudice, two such instructions came immediately after J. Webb's lawyer mentioned F. Page 33 Stevenson's testimony to the jury, including that he had seen one of them crying, in his closing argument As the testimony did not deny Richardson a constitutional right, this claim does not justify issuance of the writ

  4. The Juror Misconduct

  The relevant facts underlying Richardson's juror misconduct claim are set forth above, and I will not recount them here. The Appellate Division's conclusion, also discussed in detail above, that Richardson "Failed to carry his burden of establishing that the alleged misconduct by Juror Number 3 may have affected a substantial right," Richardson, 587 N.Y.S.2d at 948 (quotation marks omitted), was not unreasonable, especially in light of the credit given to the juror's testimony by the hearing court. As Richardson has failed to rebut, by clear and convincing evidence, the presumption of correctness given to the hearing court's factual determinations, I adhere to those findings. See 28 U.S.C. § 2254(e)(1).

  "The question presented is whether there is `fair support in the record for the state court's conclusion that the jurors here would be impartial.'" Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994) (quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984)). Here, as in Wheel, the incident giving rise to the claim of jury bias "was the subject of careful inquiry" by the hearing court-including the testimony of all four participants, R. Webb, Wisdom, Foster (the juror), and Morgan (Foster's friend)-"and resulted in a determination that the impartiality of the jur[or] had not been compromised," Id at 65.

   According to Foster (and as set forth in detail above), though she mentioned to Morgan that she was on jury duty, Morgan never said anything to the effect that Foster should give the Page 34 defendants life, nor did Foster express an inclination to do so. R. Webb approached Foster and said that her son was innocent, at which point Foster "gestured `Shh,'" and told R. Webb that she would pray for her. (Supplemental Br. for Def-Appellant at 6-7 (Apr. 1992).) Foster also testified that R Webb's comment "did not influence her opinion, which she first formed during deliberations." (Id. at 8.) In light of this testimony, which the hearing court credited, the Appellate Division's conclusion that Richardson had failed to carry his burden was not unreasonable. Therefore, this claim does not justify issuance of the writ.

   5. Newly Discovered Evidence

   a. The Perjury at Trial

   As described above, Richardson claims that the government's eyewitness, Holloman, committed perjury at Richardson's trial. Richardson asserts that at the later trial of Troy Moore, Holloman testified that he had not seen anyone grab the medallion off of the victim, as he had testified at Richardson's trial. Therefore, Richardson contends, it was error for the court to deny his § 440.10 motion without an evidentiary hearing.

   "A conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." Napue v. Illinois. 360 U.S. 264, 269 (1959). The same is true when the government, "although not soliciting false evidence, allows it to go uncorrected when it appears." Id Under this standard, I must set aside Richardson's conviction if "the prosecution knew, or should have known, of the perjury," and "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs. 427 U.S. 97, 103 (1976). The Second Circuit has declined to "draw the contours of Page 35 the phrase `should have known.'" Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003). Because the Supreme Court has not clearly established that habeas relief is available in the complete absence of prosecutorial knowledge of perjury, I may not, consistent with § 2254(d)(1), grant relief on this ground. See Id at 345 n.2 (AEDPA overrules Sanders v. Sullivan 863 F.2d 218 (2d Cir. 1988), which granted habeas relief in the absence of prosecutorial knowledge of perjury).

   Denying Richardson's § 440.10 motion, the state court held that this claim was procedurally barred, as Richardson could have raised it on direct appeal. See People v. Richardson, Indictment No. 5251-87, slip op. at 4-5 (N.Y. Sup. Ct., Kings County May 7, 1998). Again, Richardson fails to make the requisite showing of cause and prejudice to allow me to review the claim. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Teague v. Lane. 489 U.S. 288, 298-299 (1989). According to Richardson, Holloman's testimony at Moore's trial occurred approximately three years after Richardson's conviction. However, at Richardson's trial, J. Webb's counsel, on cross-examination, elicited from Detective Rosalli that Holloman had not mentioned seeing anyone snatch the victim's chain when he had made his initial statement to Rosalli. (Tr. at 347.) Therefore, this inconsistency on Holloman's part was not only available to Richardson at trial, but indeed used by a codefendant and elicited in front of the jury.

   In any event, even assuming that Holloman perjured himself on this point, the introduction of the perjury was harmless error.*fn5 At trial, the government introduced the pretrial Page 36 statement made by Richardson to Detective Rosalli. In it, Richardson told Rosalli that he had seen "the guy's gold chain pop and the medallion was sliding down his chest. I grabbed the medallion and handed it to Troy, who dropped it on the ground." (Tr. at 300.) In light of this admission by Richardson, Holloman's alleged perjury as to seeing someone grab the medallion was merely cumulative, and could not have affected the jury's decision. This claim therefore does not justify issuance of the writ.

   b. The Medallion

   In its "Affirmation in Opposition to Defendant's Motion to Vacate Judgment of Conviction" dated April 9, 1998 ("Opp'n § 440.10 Mot."), the government-responding primarily to Richardson's claim that Holloman committed perjury at trial, discussed above-noted that "[t]he medallion was later found near [the victim's] body. The gold chain was not recovered." (Opp'n § 440.10 Mot. at 2 n. 1.) Later, in its "Affidavit in Opposition to Amended Petition for a Writ of Habeas Corpus" dated April 20, 1'999 (Aff. Opp'n Am. Pet."), the government failed to address Richardson's claim regarding the medallion, mistakenly submitting that Richardson had "not added anything in [his] amended petition that requires further response." (Aff. Opp'n Am. Pet. ¶ 4.)

   Because, at trial, the government relied on the stolen medallion to prove an element of the robbery upon which the felony murder charge was predicated, I ordered the government, by Order dated February 13, 2004, to clarify the circumstances surrounding the discovery of the medallion-if it Page 37 in fact had been discovered-and show cause why Richardson's petition should not be granted on the ground that the government had violated Brady v. Maryland, 373 U.S. 83 (1963).

   By affidavit dated March 11, 2004 ("Mar. 11, 2004 Affi"), the government set forth the results of its investigation. In a representation I credit, the government states that its footnote in the "Affirmation in Opposition to Defendant's Motion to Vacate Judgment of Conviction" dated April 9, 1998-stating that the medallion had later been found near the victim's body (Opp'n § 440.10 Mot. at 2 n. 1.)-was error. The assistant district attorney who drafted that footnote did so on the basis of Holloman's testimony at Moore's trial that he (Holloman) saw the medallion lying on the ground. (Mar. 11, 2004 Aff. ¶ 7.) That assistant district attorney had no information at any time that the medallion had been found, recovered, or vouchered by the police or prosecutors. (Id.)

   After reading, in their entirety, the files relating to both the Richardson and Moore trials, the government reported that there was no indication that the medallion was found at the scene or ever recovered, at any place or time, by the police, prosecutors, or anyone else. (Id. ¶¶ 5, 8, 14.) The medallion was not listed on any of the police voucher forms. (Id.) Nor did Holloman ever testify at Moore's trial that the medallion had been found at the scene, despite Richardson's claim to the contrary. In fact, during cross-examination by Moore's lawyer, Holloman repeatedly asked why the medallion was not found at the scene. (Attachment to Richardson's June 27, 1997 Letter.) I find that the footnote in the "Affirmation in Opposition to Defendant's Motion to Vacate Judgment of Conviction" dated April 9, 1998, erred in stating that the medallion had later been found at the scene.

   In any event, even assuming for the sake of argument that the medallion had been found at the scene, Richardson's statement to Detective Rosalli was sufficient to satisfy the "taking" element of Page 38 the crime. See NY. Penal Law § 160.00. Richardson told Rosalli, "I saw the guy's gold chain pop and the medallion was sliding down his chest. I grabbed the medallion and handed it to Troy [Moore], who dropped it on the ground." (Tr. at 300.) Holloman also saw someone grab the victim's chain, though he could not be sure who. (Id. at 48-49.) Finally, Richardson does not dispute that the chain on which the medallion hung was never recovered. The theft of the chain would also satisfy the "taking" element.

   For these reasons, Richardson has failed to demonstrate that the government violated Brady. and therefore this claim does not justify issuance of the writ.

   6. Excessive Sentence

   Richardson's sentence of seventeen-and-one-half years to life in prison fell within the maximum sentence authorized by New York law for his crimes, and therefore does not qualify for consideration as excessive under the Eighth Amendment. See White v. Keane. 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law."). I also note that Richardson's sentence is not grossly disproportionate and is therefore not unconstitutional. See Ewing v. California, 538 U.S. 11 (2003).

   CONCLUSION

   For the foregoing reasons, the petition is denied. Because Richardson 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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