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SMITH v. ARTUS

United States District Court, S.D. New York


April 14, 2004.

BRUNCE N. SMITH, Petitioner, -v.- D. ARTUS, Superintendent, Clinton Correctional Facility, Respondent

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Brunce N. Smith, proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Bronx County Supreme Court, Smith was convicted of Attempted Murder in the Second Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. He was sentenced to determinate terms of imprisonment totaling 32 years. Smith is currently incarcerated pursuant to that judgment in Southport Correctional Facility in Pine City, New York. For the reasons below, Smith's petition should be denied.

I. BACKGROUND

  A. The Crime

  The following evidence was presented at trial concerning the circumstances of the crime with which Smith was charged:

  At approximately 1:00 a.m. on August 21, 1997, James "Mookie" Roberson and his girlfriend, Antoinette Macklin, were in the lobby of 370 East 153rd Street in the Bronx. (Macklin: Tr. III 46-48).*fn1 Macklin was sitting on the steps in the lobby and Roberson was selling drugs behind an exit door. (Macklin: Tr. IK 48, 50, 53, 64-65, 86). The lobby was well-lit. (Macklin: Tr. III 65-66). Macklin saw "Nat" and a man whom she believed to be Nat's cousin walk past her and then she heard two gunshots. (Macklin: Tr. III. 48-50). As they passed Macklin again, Macklin saw the handle of a gun in Nat's hand, which he put in the back of his pants. (Macklin: Tr. IK 49-50, 66-67, 111-13). Then Macklin saw Roberson lying on the floor. (Macklin: Tr. III 49).

  At trial, Macklin identified "Nat" as Smith, whom she had known since she was young. (Macklin: Tr. III. 51-53). She described the gun as silver and black and stated on cross-examination that the gun displayed by the prosecution at trial as the murder weapon was not the gun she had seen in Smith's hand. (Macklin: Tr. III. 66-67, 111-13).

  Police Officers Timothy Anderson and William Clark responded to the scene. (Anderson: Tr. II. 225-26; Clark: Tr. II. 246). They observed Roberson lying face down on the stairs in a pool of blood. (Anderson: Tr. II. 227; Clark: Tr. II. 247). The officers recovered spent shell casings, pieces of lead and copper jacketing, and bloody clothing at the scene. (Anderson: Tr. II. 228). Detective Hal Sherman also responded to begin an investigation into the crime. (Sherman: Tr. II. 236-38). Detective Sherman testified that two discharged .45 automatic shells and one intact 9mm cartridge were recovered from the scene. (Sherman: Tr. II. 237-38, 244). He stated that he was certain that a .45 automatic was discharged that night but that there was no evidence that a 9mm gun had been fired. (Sherman: Tr. II. 240-44). William Cuevas, an Emergency Medical Technician, also responded to the scene and observed that Roberson had been shot in the throat and groin. (Cuevas: Tr. III. 120-22). He testified that Roberson was in shock and had injuries that usually result in death within minutes. (Cuevas: Tr. III. 123-25). Doctor John Vecchione, who treated Roberson until a week prior to the trial, testified that as a result of his gunshot wounds, Roberson is paralyzed below the neck and is unable to talk or swallow. (Vecchione: Tr. III. 137-38, 141-44). A few weeks before the trial Roberson gained the ability to nod. (Vecchione: Tr. III. 141).

  At about 1:40 a.m. on August 29, 1997, eight days after the shooting, Police Officer Arthur Schroder and other officers in the Taxi Livery Task Force pulled over a livery cab that sped past them, wove in and out of traffic without signaling, and made an illegal entry into a service road. (Schroder: Tr. II. 257-59, 267-70). As Officer Schroder approached the car, he saw Smith, who was in the rear passenger seat of the car, lean forward and slump down. (Schroder: Tr. II. 260). Officer Schroder shined a light through the window and saw that Smith had his right hand inside of his pants. (Schroder: Tr. II. 260, 273-74). He saw a large bulge which he believed to be a gun so he asked Smith to show his hands and exit the vehicle. (Schroder: Tr. II. 260, 274-76). Officer Schroder searched Smith and recovered a loaded .45 caliber Gloch pistol from his groin area. (Schroder: Tr. II. 260-62, 264-65). Two small bags of marijuana were also recovered from the pocket of Smith's pants. (Schroder: Tr. II. 262-63). Smith was placed under arrest. (Schroder: Tr. II. 262). Detective Luis Fontanez tested the weapon recovered and concluded that it was operable. (Fontanez: Tr. II. 295-98).

  Detective Raymond Bryne was assigned to investigate Roberson's shooting before any perpetrator had been identified. (Bryne: Tr. II. 279-80). He interviewed Macklin on August 22, a day after the shooting, and she gave him Smith's name and description. (Bryne: Tr. II. 280-87 referring to Macklin as "Annette McChin")). A wanted card was issued and wanted posters were sent throughout the city. (Bryne: Tr. II. 282). Detective Bryne later learned that Smith had been arrested. (Bryne: Tr. II. 282-83).

  Detective Joseph Ramirez performed a ballistics examination comparing the spent shell casings recovered from the scene with test samples from the .45 caliber Gloch recovered from Smith in the livery cab. (Ramirez: Tr. II. 303-08). Based on these tests, he concluded that the shell casings were fired from that .45 caliber Gloch and not from any other gun. (Ramirez: Tr. II. 308).

  The defense presented no evidence at trial.

  B. Evidence as to Motive

  Prior to trial, the court considered whether Macklin should be allowed to testify regarding the relationship between Roberson and Smith. (Tr. I. 7-15, 24-29). The People's theory was that Roberson had previously worked for Smith as a drug dealer and that Roberson had recently switched suppliers, thus providing a motive for the shooting. (Tr. I. 7-8, 10). The prosecutor argued that such testimony could come in as evidence of Smith's motive and intent under People v. Molineux, 168 N.Y. 264, 293 (1901) ("evidence of other crimes is competent to prove the specific crime charged when it tends to establish . . . intent"). (Tr. I. 11, 13, 25-26).

  When the prosecution first raised the issue, the trial court indicated that it needed more specifics before making a ruling. (Tr. I. 15). The court stated that it was "concerned about the circumstances under which [these facts would] com[e] out, the basis of [Macklin's] knowledge, for example. . . . The witness cannot testify, you know, from having heard it in the neighborhood, things like that." (Tr. I. 27). The prosecutor then asked, "[I]f I could provide the Court with information regarding [Macklin] having direct and personal knowledge of any prior transaction, would that be enough, Your Honor?" (Tr. I. 28). The court responded, "I think that would unquestionably go towards making such evidence admissible. At this point I don't know that that exists [and] . . . I want to make sure that that's what is going to happen." (Tr. I. 29).

  Later, the prosecutor asserted that Macklin had actually seen Roberson and Smith exchange drugs and money but that she did not have personal knowledge of a dispute between them. (Tr. I. 117-22). The court stated it was "uncomfortable" with allowing such testimony in the absence of knowing what Macklin would say. (Tr. I. 122). A few days later, the prosecutor expressed her own discomfort, "I'm really concerned about [Macklin's] testimony because she's just the kind of witness that it may come out any way no matter how hard I try to prepare her. I'm very concerned." (Tr. II. 254).

  On the morning Macklin was to testify, the prosecutor told the court:

[Macklin] can say that this Defendant used to give bundles of drugs to Mr. Roberson and Mr. Roberson used to give him for the sale of that [sic] drugs, the money that he received for the sale of that [sic] drugs and that she can definitively say that Mr. Roberson stopped selling drugs for this man and sold for another person by the name of E or Eric is what I've been told and this was shortly before his shooting, Your Honor, and I think that goes directly towards motive, intent, . . . it goes towards all the issue[s] under the uncharged crime.
(Tr. III. 2-3). Based on this offer of proof, defense counsel stated that she did not have any objections to the court allowing the testimony. (Tr. III. 3).

  On direct examination, Macklin was asked about the relationship between Roberson and Smith. Macklin testified that at about 1:00 or 2:00 p.m. on the day of the shooting, she had seen Roberson and Smith talking outside. (Macklin: Tr. III. 54-55). She stated that Roberson used to sell drugs for Smith for about two or three years. (Macklin: Tr. III. 53). She said that she had seen Smith give drugs to Roberson and Roberson give money back to Smith. (Macklin: Tr. III. 53-54). She testified as follows with regard to Roberson's switching suppliers:

Q: On the day that Mookie was shot, was he still selling for the Defendant who you know as Nat?
A: No.
Q: Who was he selling for on that day?
A: Nat.
Q: No, on the day he was shot, was he selling for Nat?
A: No.
Q: Who was he selling for?
A: Nobody.
Q: He wasn't selling for anybody?
A: No.
Q: That you know of?
A: No.
(Macklin: Tr. III. 54).

  On cross-examination, Macklin's testimony became confused and internally inconsistent. To begin, Macklin was unable to articulate clearly when her relationship with Roberson began. (Macklin: Tr. III. 69-70). Macklin testified that when she first started hanging out with Roberson, he was selling drugs for a guy named "Ed" or "E" (Macklin: Tr. III. 71), though Macklin was equivocal as to whether "Ed" and "E" referred to one person or two. (Macklin: Tr. III. 71, 90, 92-96). Macklin testified that when she started dating Roberson, he was selling for both Ed and Smith. (Macklin: Tr. III. 71). With regard to her knowledge of Roberson and Smith's drug activities, Macklin testified as follows:

Q: In all the time that you were with Mookie, were you around when Mookie would get his drugs to sell from either Nat or from Ed?
A: No.
Q: You never saw that happen?
A: No. I wasn't around most of the time. Q: Well, were you ever with Mookie when he had brought drugs over to either his
apartment or wherever they would do their business?
A: No.
Q: And were you ever around when Nat brought drugs over to give to Mookie to sell?
A: No.
. . . .
Q: How did you know that your boyfriend was drug dealing?
A: He used to be up in my house.
Q: He was what?
A: He would be up in my house.
Q: He was in your house?
A: Yes.
Q: When I asked you the question, "would you ever be in his house when he got his drugs?," was it just I asked you the wrong question?
A: Yes.
Q: Were the drugs brought to your house to be distributed?
A: No.
Q: Where were the drugs distributed?
A: On him.
Q: Let's start from a smaller place. Did you ever see your boyfriend Mookie receive drugs to sell from anyone?
A: No.
Q: How do you know that he was a drug dealer?
A: Cause he used to be outside everyday and I used to be with him.
Q: Outside on the street?
A: Yes.
Q: And behind that exit door, right?
A: Yes.
Q: Now, did you see him selling?
A: I used to be outside, see him doing it.
Q: And where did he get the drugs from that he sold?
A: Nat.
Q: And how do you know that?
A: I just know.
Q: I don't think that's the right answer, Ms. Macklin. Did you see, did he tell you?
A: No.
Q: Okay, how do you know?
A: Cause he used to take it out of his pocket.
Q: Mookie used to take it out of his pocket? A: Yes.
Q: Did you see who gave him the drugs to sell?
A: No.
Q: So, then how do you know he got them from Nat?
A: Cause he never told me, but I just probably think he did.
Q: You just made that up in your own head?
A: No.
Q: Okay, how do you know? You're under oath here, Ms. Macklin, okay. That means you have got to tell the truth.
A: I am telling the truth.
Q: How do you know that Nat gave Mookie the drugs to sell?
A: I think so. I'm just telling you, I think so he did.
Q: When you say you think so, are you telling this jury that you never saw Nat give Mookie any drugs?
A: That's what I'm saying.
Q: Okay, now did I just hear you wrong or did you tell Ms. Bethel this morning, that means also told the jury this morning that you saw Nat give the drugs to Mookie and you saw Mookie give money back to Nat?
A: Yes.
Q: Did you testify to that this morning?
A: Yes.
Q: You recall that?
A: Yes, I do.
Q: Is that true?
A: Yes.
Q: Well, then why don't you tell us about that? Did you see Nat give drugs to Mookie?
A: Yes.
Q: When?
A: I been out there, I seen a couple of times.
Q: On the street he would give it to him?
A: No. In the lobby.
Q: I'm sorry.
A: In the lobby.
Q: Did he ever give it to him in an apartment?
A: No.
(Macklin: Tr. III. 73-77).

  Contrary to her testimony on direct examination, Macklin also testified on cross-examination that Roberson was selling for both E and Smith on the night of the shooting (Macklin: Tr. III. 87). However, she was unable to articulate anything but second-hand knowledge of this arrangement:

Q: You told Detective Brown that the reason Nat came in and shot Mookie was because Nat was so angry that he was selling for E, right?
A: Yes.
Q: But in fact what you're telling us now is that Mookie was selling for both E and Nat, right?
A: Yes.
Q: And this is something Mookie told you?
A: He ain't tell me nothing.
Q: How do you know that?
A: Just heard from the ears.
Q: You heard what?
A: From the ear — from a horse's mouth.
Q: From whose mouth?
A: A horse's mouth.
Q: Well, who's the horse?
A: Person is not here.
Q: Who's it?
A: It was somebody live in my building.
Q: Who?
A: It was a girl.
Q: And what is her name?
A: Cathy.
Q: And what did Cathy tell you?
A: What she told me, she ain't tell me that much.
Q: What little bit did she tell you?
. . . .
A: I really don't remember what she had told me that day.
(Macklin: Tr. III. 88-90). Macklin then apparently changed her testimony again and said that

  Roberson did not start selling for E until after he stopped selling for Smith. (Macklin: Tr. III. 91-92). She stated that Roberson stopped selling drugs for Smith two or three years before the shooting. (Macklin: Tr. III. 92-96). However, when the police arrived after the shooting, Macklin had told them that the reason Smith shot Roberson was because he was angry because Roberson had switched suppliers to E. (Macklin: Tr. III. 88, 107-08). On cross-examination she stated that this was no longer her testimony. (Macklin: Tr. III. 108-09).

  Macklin also admitted that when she saw Smith and Roberson talking on the day of the shooting, E was also with them. (Macklin: Tr. III. 83-85, 87). She said that she had forgotten that E was there when the prosecutor had asked this question on direct examination. (Macklin: Tr. III. 85). When Macklin saw them talking, everything seemed fine and the three seemed friendly with each other. (Macklin: Tr. III. 87, 96-97, 99).

  C. The Jury

  On the fourth day of the trial, the court learned that the previous week a woman had approached two members of the jury-Juror 8 and Juror 12 — on the street as they left the courthouse. (Tr. III. 4-7, 14-15). The woman asked the two jurors what they thought of the case and whether they thought Smith was guilty or not guilty. (Tr. III. 4-6, 15). They responded, "I don't know," and walked away. (Tr. IK 6-7, 15). Juror 12 recognized the woman as someone who sat in the audience every day. (Tr. III. 5). Juror 8 said that Juror 12 told her that he thought the woman was Smith's girlfriend. (Tr. III. 15, 17-18).

  The court spoke to the two jurors individually about this experience. Juror 12 stated, "I just feel a little weird, a little uncomfortable, like the day we have to make the decision and I have to go outside, I'm just going to feel uncomfortable going outside knowing that she knows who I am." (Tr. III. 7-8). Nonetheless Juror 12 said that this would not affect his verdict. (Tr. III. 8, 11-14). Juror 8 said, "I think it's incidental. I could feel intimidated, but I'm not going to allow myself to be intimidated." (Tr. III. 15). He stated that he could still be objective. (Tr. III. 15-20). Juror 12 had described the experience to the rest of the jurors and asked all of them whether they had been approached. (Tr. III. 9-10). One other juror had been approached. (Tr. III. 9-10, 13, 16). Otherwise, some of the jurors said it gave them an "eery feeling" but otherwise reacted to the discussion only with surprise. (Tr. III. 11-12, 16, 18-19).

  The trial court also questioned the third juror who had been approached. (Tr. III. 20-26). This juror said that the woman did not ask her anything but told her only that she was a paralegal and that she went to courtrooms to listen to cases. (Tr. III. 21). This juror just walked away. (Tr. III. 21). She told the court that she had "shrugged it off" because in her work at a hospital she had grown accustomed to people talking to her. (Tr. III. 21-22, 24-25). She maintained that this encounter would not interfere with her ability to serve as a juror. (Tr. III. 22-24, 26).

  The judge then called each member of the jury into the robing room individually to gauge their reactions to hearing about these incidents from their fellow jurors. (Tr. III. 27-28). The jurors all stated that the matter did not affect them and that they would be able to be fair, impartial, and objective going forward. (Tr. III 28-41). Defense counsel then moved for a mistrial, which the court denied. (Tr. III. 42-43).

  D. Verdict and Sentencing

  The jury found Smith guilty of Attempted Murder in the Second Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. (Tr. III. 256-58). Thereafter, the court sentenced Smith to concurrent prison terms of 25 years, 25 years, and 15 years on the first three counts respectively and to a consecutive term of seven years' imprisonment on the third-degree weapons charge, for a total term of 32 years. See Brief for Defendant-Appellant Brunce Smith, dated September 4, 2001 ("Pet. App. Div. Brief") (reproduced as Ex. 1 to Affidavit in Opposition by Lynetta M. St. Clair, filed December 23, 2003 (Docket #4) ("Opp. Aff.")), at 15.

  E. Smith's Direct Appeal

  Represented by new counsel, Smith appealed his conviction to the Appellate Division, First Department, presenting the following questions for review:

1. Whether Brunce Smith was denied his rights to an impartial jury, to confront evidence against him, and to due process of law where the trial court denied his motion for a mistrial based upon a third party's improper and prejudicial communication with jurors?
2. Whether the admission of Molineux evidence of allegations of "uncharged crimes" was improperly inflammatory and prejudicial, led to jury confusion and additionally, violated Brunce Smith's rights to due process of law and a fundamentally fair trial?
3. Whether the trial court's instructions to the jury concerning the definition of "reasonable doubt" erroneously increased the degree of doubt necessary for acquittal?
Pet. App. Div. Brief at 1. On January 31, 2002, the Appellate Division unanimously affirmed Smith's conviction. People v. Smith, 290 A.D.2d 391 (2002). The court held that (1) the trial court properly determined that "no significant communication [with jurors] had taken place and that the incident would not affect the ability of any jurors to reach an impartial verdict," id at 391; (2) the court properly exercised its discretion in admitting Molineux evidence suggesting a drug-related motive because the probative value outweighed the prejudicial effect, id.; and (3) Smith's reasonable doubt claim was "unpreserved," id.

  By letter dated February 19, 2002, Smith sought leave to appeal from the New York Court of Appeals. Letter from Joseph M. Nursey to the Hon. Judith S. Kaye, dated February 19, 2002 (reproduced as Ex. 5 to Opp. Aff). The Court of Appeals denied his request on April 10, 2002. People v. Smith, 98 N.Y.2d 641 (2002).

  F. Smith's Motion to Vacate the Judgment

  On December 12, 2002, Smith brought a pro se motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10. Affidavit in Support to Vacate Judgment Pursuant to CPL § 440.10, dated December 12, 2002 ("440.10 Aff") (reproduced as Ex. 8 to Opp. Aff). He argued that (1) he was subjected to double jeopardy by his convictions for attempted murder, assault, and weapons possession, id. at 3-7; (2) he was denied effective assistance of counsel based on his attorney's failure to make a motion to set aside the verdict on double jeopardy grounds, id. at 7-8; and (3) he was denied due process of law by the trial court's failure to intervene to prevent unspecified errors from occurring, Id. at 9-10.

  On January 27, 2003, the Bronx County Supreme Court denied Smith's CPL § 440.10 motion in its entirety stating simply: "All issues raised herein could or should have been raised on appeal." Decision, dated January 27, 2003 ("440.10 Decision") (reproduced as Ex. 9 to Opp. Aff). Thereafter, the court received a reply brief from Smith, which it treated as a motion to reconsider the January 27, 2003 decision and denied. Decision, dated February 6, 2003 (reproduced as Ex. 11 to Opp. Aff). Smith then moved for leave to appeal to the Appellate Division pursuant to CPL § 460.15, which was denied on June 27, 2003. Certificate Denying Leave, dated June 27, 2003 (reproduced as Ex. 14 to Opp. Aff).

  G. The Instant Petition

  Smith timely filed the instant habeas petition by submitting it to the Court's Pro Se Office on August 11, 2003. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed September 10, 2003 (Docket #1) ("Petition"), at 1. The petition raises the three claims raised in Smith's direct appeal as well as the three claims raised in Smith's CPL § 440.10 motion to vacate the judgment. See id at 4. Smith has properly exhausted his state law remedies with respect to each of these claims by fairly presenting the federal constitutional nature of these claims to each available level of the state courts. See generally Dave v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en bane), cert. denied. 464 U.S. 1048 (1984).

 II. APPLICABLE LEGAL PRINCIPLES

  A. Law Governing Petitions for Habeas Corpus Under 28 U.S.C. § 2254

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the U.S.; or (2) 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." 28 U.S.C. § 2254(d). The term "adjudicated on the merits" requires only that the state court base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not necessary for the state court to refer to any federal claim or to any federal law for AEDPA's deferential standard to apply. Id. at 312. Moreover, a state court determination of a factual issue is "presumed to be correct" and that presumption may be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.

  B. Law Governing Procedural Default

  When a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991). Although procedurally defaulted claims are deemed exhausted for habeas purposes, a procedural default will "bar federal habeas review of the federal claim, unless the habeas petitioner can show `cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied. 514 U.S. 1054 (1995); See also Harris, 489 U.S. at 264 n.10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas.").

 III. DISCUSSION

  A. Third-Party Communication with Jurors

  As detailed above, on the fourth day of Smith's trial, it was brought to the court's attention that a spectator had approached three jurors outside the courthouse. (Tr. III. 4-43). Smith maintains that unauthorized ex parte communications with jurors are presumptively prejudicial and the People failed to meet their "heavy burden" of rebutting such a presumption. See Petition at 5-8; see also Pet. App. Div. Brief at 16-19; Petitioner's Traverse to Respondent's Opposition, filed February 3, 2004 (Docket #7) ("Traverse"), at 25-28. The respondent contends that the trial court "acted precisely as Supreme Court precedent required" in questioning all of the jurors and determining that the third-party contact did not affect any juror's ability to be fair, objective, and impartial. Respondent's Memorandum of Law, undated ("Resp. Mem.") (annexed to Second Affidavit in Opposition by Lynetta M. St. Clair, filed January 26, 2004 (Docket #6)), at 7-8.

  The Supreme Court has held that "[i]n a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial. . . . [T]he burden rests heavily upon the Government to establish . . . that such contact with the juror was harmless to the defendant." Remmer v. U.S., 347 U.S. 227, 229 (1954): accord Sher v. Stoughton. 666 F.2d 791, 793 (2d Cir. 1981). However, "due process does not require a new trial every time a Juror has been placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217 (1982). Rather, the Supreme Court "has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." Id. at 215; accord Remmer, 347 U.S. at 229-30 ("The trial court . . . should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.").

  In this case, as soon as the trial court learned that jurors had been approached by a woman outside of the courtroom, each juror was questioned individually in chambers. The attorneys for both sides were present and were able to question each juror — although Smith himself was not present because his attorney had advised him that the jurors may be more forthcoming without him present (Tr. III. 41-42). Smith was subsequently informed as to the conversations which transpired. (Tr. III. 42). During the examination, Juror 12 was the only juror who expressed any level of discomfort and even he stated that the contact would not affect his verdict. (Tr. III. 7-8, 11-14). None of the other jurors expressed any reservations about their ability to serve as impartial jurors. (See Tr. III. 15-41).

  In denying defense counsel's motion for a mistrial based on the alleged prejudicial contact, the trial court stated:

The Court did listen to the statements of [Juror 12] and believe[s] that the responses do not reveal the basis for the Court believing that he was in any way [a]ffected to the point that he could not perform his functions as a juror. The Court does not believe that the record, the totality of the record, polling of all the jurors support the application for mistrial.
(Tr. III. 43). The Appellate Division affirmed this ruling, holding as follows: The court properly exercised its discretion in denying defendant's mistrial motion made after two jurors reported that a spectator had accosted them and unsuccessfully sought their opinion of the case, and that this communication had caused them some discomfort. After a thorough inquiry of these two jurors as well as of the remaining jurors, who had learned of this incident, the court properly determined that no significant communication had taken place and that the incident would not affect the ability of any jurors to reach an impartial verdict.

 Smith, 290 A.D.2d at 391 (citations omitted).

  Findings as to juror impartiality are findings of fact entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). See Rushen v. Spain, 464 U.S. 114, 120 (1983) (per curiam) ("The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to [a] presumption [of correctness]."); Fama, 235 F.3d at 813 ("On § 2254 review, the state trial court is entitled to a presumption of correctness with respect to its conclusion that the jury was impartial."): see also Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984) ("[W]hether a juror can in fact [be impartial] is a determination to which habeas courts owe special deference." (citations omitted)). Smith has failed to provide any evidence to rebut this presumption. Under such circumstances, the Appellate Division's decision cannot possibly constitute an "unreasonable determination of the facts" under 28 U.S.C. § 2254(d). This result accords with other federal habeas decisions in which the trial court's factual findings of juror impartiality have been upheld under circumstances indicating far greater potential for juror bias. See, e.g., James v. Walker, 2003 WL 22952861, at *6-*8 (E.D.N.Y. Aug. 28, 2003) (spectator threatened to remember the faces of jurors; jurors who heard comment informed other jurors and then lied to the court about whether they had discussed the incident); Walker v. Keane, 1999 WL 552798, at *4-*6 (S.D.N.Y. July 27, 1999) (jurors observed audience members making threatening gestures towards witnesses and overheard individual in a telephone conversation discussing evidence offered at trial).

  Thus, habeas relief should be denied on this ground.

  B. Admission of Molineux Evidence

  Smith's second contention is that the trial court's decision to allow Macklin to testify regarding Smith's involvement in prior uncharged crimes and bad acts violated his rights to due process and to a fundamentally fair trial. See Petition at 8-13; see also Pet. App. Div. Brief at 20-25; Traverse at 19-24. As discussed, immediately prior to Macklin's testimony the prosecutor told the court that Macklin could testify that she had seen Smith and Roberson exchange drugs and money and that Roberson had stopped selling drugs for Smith shortly before the shooting. (Tr. III. 2-3). On the stand, Macklin changed her testimony several times, contradicted herself, and oftentimes made no sense whatsoever. In short, the prosecutor's offer of proof was not borne out in Macklin's testimony.

  Smith raised this issue to the Appellate Division, which found:

The court properly exercised its discretion in admitting evidence suggesting a drug-related motive for the shooting, since its probative value outweighed its prejudicial effect ([See People v. Mena, 269 A.D.2d 147 (1st Dep't 2000)]). The alleged remoteness of the motive and the witness's contradictory testimony as to whether or not she was testifying on the basis of her personal observation were factors affecting the weight, rather than the admissibility, of this evidence. ([See People v. Lovacco, 234 A.D.2d 55 (1st Dep't 1996)]).
Smith, 290 A.D.2d at 391. Because this constitutes an "adjudication on the merits," this Court can grant habeas relief under 28 U.S.C. § 2254(d) only if this determination is either "contrary to" or "an unreasonable application of" Supreme Court precedent. Federal habeas review of state court convictions is limited to determining whether there was a violation of federal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rulings by state trial courts on evidentiary matters are generally a matter of state law and pose no federal constitutional issue, Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y.), aff'd, 71 F.3d 406 (2d Cir. 1995), "unless the evidence `is so extremely unfair that its admission violates fundamental conceptions of justice,'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)), cert denied, 525 U.S. 840 (1998). In addition, to establish a constitutional violation based on the erroneous admission of evidence, a petitioner must demonstrate that such evidence, "viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985): accord Dunnigan. 137 F.3d at 125.

  A decision to admit evidence of a criminal defendant's uncharged crimes or bad acts under Molineux constitutes an evidentiary ruling based in state law. E.g., Roldan v. Artuz, 78 F. Supp.2d 260, 276-77 (S.D.N.Y. 2000) ("A habeas claim asserting a right to relief on Molineux grounds must rise to the level of constitutional violation . . . because Molineux is a state law issue." (citations omitted)). In general, evidence of uncharged crimes is inadmissible in a criminal trial due to the danger that the jury will convict based upon a perception that the defendant is predisposed to commit crime rather than based upon a determination of guilt of the charged offense. Id. at 277 (citing Molineux, 168 N.Y. at 291). However, in Molineux the New York Court of Appeals held that evidence of other crimes or bad acts may be admitted to the extent that it is relevant to an issue other than the defendant's criminal tendency, such as motive, intent, or identity. Molineuxm, 168 N.Y. at 293. Accordingly, evidence of narcotics dealing is commonly introduced as a motive for murder or attempted murder and does not violate the rights of the accused or provide a basis for habeas relief. E.g., Bossett, 41 F.3d at 829-30 (evidence of drug activity probative of hosfile relationship and thus directly relevant to murder charge; no federal constitutional question would have arisen had such evidence been admitted); Marrero v. Senkowski, 2003 WL 21750137, at *11 (S.D.N.Y. July 28, 2003) (habeas claim denied where evidence of defendant's involvement in drug enterprise was used to establish motive for killing); Edmonds v. McGinnis, 11 F. Supp.2d 427, 433 (S.D.N.Y. 1998) (same).

  In this case, the Appellate Division's determination that Macklin's testimony was properly admitted to establish Smith's motive for shooting Roberson was a straightforward and correct application of state evidentiary law. Where a state court ruling was not erroneous under state law, a petitioner cannot establish a federal constitutional violation unless he challenges the constitutionality of the state law itself. See, e.g., Hernandez v. Filion, 2004 WL 286107, at *10 (S.D.N.Y. Feb. 13, 2004) ("the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional" (citations omitted)) (Report and Recommendation adopted by 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004)); Davis v. Senkowski, 1998 WL 812653, at *7 (E.D.N.Y. Aug. 6, 1998) (admission of evidence of defendant's prior bad acts to prove identity appropriate under state law and thus, admission did not violate the Constitution). Smith articulates no challenge to the constitutionality of the underlying state evidentiary rule and thus has not established any error of constitutional magnitude.

  That Macklin's testimony did not conform to the prosecutor's offer of proof does not alter this conclusion. Undoubtedly, the fact that Macklin's testimony was contradictory and confused placed her credibility and reliability in question. The jury was instructed as to measuring the credibility and reliability of witnesses. (Tr. III. 201-06). It is well-settled that "assessments of the weight of the evidence or the credibility of witnesses are for the jury" and thus a habeas court will "defer to the jury's assessments of both of these issues." Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (citations omitted); accord Rosa v. Herbert, 277 F. Supp.2d 342, 347 (S.D.N.Y. 2003) ("the court must defer to the jury's assessments of the weight of evidence and the credibility of witnesses"): Fagon v. Bara. 717 F. Supp. 976, 979-80 (E.D.N.Y. 1989) ("this court is not free to make credibility judgments about the testimony . . . or to weigh conflicting testimony" (citations omitted)). Here, there was no indication that the prosecutor's offer of proof was made in bad faith. If anything, the inconsistent nature of Macklin's testimony assisted the defense by making it more likely the jury would not accept her testimony regarding an important element of the prosecution's case: Macklin's identification of Smith as the person who entered the lobby immediately prior to the shooting.

  In any event, Smith could not show prejudice from the admission of the testimony regarding his drug dealing. Macklin's testimony regarding motive was only a minor part of the prosecution's case inasmuch as Smith's possession of the very gun used to fire the spent shell casings found at the scene following the shooting constituted overwhelming evidence of his guilt. Thus, Macklin's testimony as to Smith's drug activities was not "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it," Collins, 755 F.2d at 19. In sum, the decision of the Appellate Division was not "contrary to" or "an unreasonable application of" any federal law and habeas relief should be denied on this claim.*fn2

  C. Reasonable Doubt Instruction

  Smith claims that the trial court's instructions to the jury concerning "reasonable doubt" erroneously increased the degree of doubt necessary for acquittal, in violation of his due process rights. See Petition at 13-16; see also Pet. App. Div. Brief at 26-29; Traverse at 29-32. Respondent argues that this claim is barred from federal habeas consideration because it was procedurally defaulted in the state courts. See Resp. Mem. at 13-16. As noted, "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam); accord Harris, 489 U.S. at 262.

  1. "Independent" State Ground

  In the trial court, Smith never objected to the court's instruction on reasonable doubt. After the jury was charged, the trial judge asked counsel whether they had "any suggestions, recommendations, or objections" regarding the charge. (Tr. III. 234). Smith's counsel responded only that the judge had misstated the relevant dates several times, which the trial judge immediately corrected. (Tr. III. 234-35). Thus, on appeal the People argued that this claim was not preserved for appellate review as defense counsel had failed to comply with the contemporaneous objection requirement contained in CPL § 470.05(2). Respondent's Brief, dated December 2001 (reproduced as Ex. 2 to Opp. Aff.), at 25 (citing People v. Jackson, 76 N.Y.2d 908, 909 (1990); People v. Maldonado, 279 A.D.2d 406, 407 (1st Dep't 2001)). The Appellate Division agreed that the issue was "unpreserved." Smith, 290 A.D.2d at 391.

  While the Appellate Division did not specifically state the basis for its holding that the issue was not preserved, its terse statement that the issue was "unpreserved" is sufficient to show that it was relying on a procedural bar. See, e.g., Harris, 489 U.S. at 265 n.12. That the Court of Appeals issued a summary denial of leave to appeal is of no moment because where "the last reasoned opinion on the claim explicitly imposes a procedural default" — as is true of the Appellate Division's decision in this case — a federal habeas court "will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991): accord Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (federal habeas court looks to Appellate Division's reliance on procedural bar where Court of Appeals issues summary denial of leave to appeal). Thus, the procedural default relied on by the Appellate Division constituted an "independent" state law ground for the decision. The remaining question is "whether the state ground relied upon is `adequate' to preclude federal habeas review," Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).

  2. "Adequate" State Ground

  A procedural bar is "adequate" if it is "based on a rule that is `firmly established and regularly followed' by the state in question." Id. (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether application of the procedural rule is "firmly established and regularly followed" must be judged in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citing Lee v. Kemna, 534 U.S. 362, 386-87 (2002)). The Second Circuit has set forth the following "guideposts" for making this determination:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.
Id. (citing Lee, 534 U.S. at 381-85).

  Application of these considerations to Smith's case shows that the procedural bar relied on by the Appellate Division is one that is "firmly established and regularly followed" and thus "adequate." With respect to the first guidepost, Smith's failure to object to the trial court's instruction on reasonable doubt was "actually relied on" by the trial court in the sense that the trial court never was given occasion to consider — and conceivably cure through supplemental instructions — the allegedly improper instruction. Cf. Cotto, 331 F.3d at 243 (while "the likely impact of a timely objection involves a certain degree of speculation," it is possible that "the trial court may well have come to a different conclusion" had the reasons for the objection been given).

  As for the second guidepost, it is well-settled under New York law that the failure to timely object to a jury charge precludes appellate review of that instruction. See, e.g., People v. Nuccie, 57 N.Y.2d 818, 819-20 (1982); People v. Edwards, 292 A.D.2d 393, 393 (2d Dep't 2002); Maldonado, 279 A.D.2d at 407; People v. Woodberry, 239 A.D.2d 448, 449 (2d Dep't 1997); People v. Haskins, 201 A.D.2d 322, 322 (1st Dep't 1994). Thus, state case law indicates that "compliance with the rule was demanded in the specific circumstances presented," Cotto, 331 F.3d at 240.

  The third guidepost likewise fails to help Smith for there is no argument that he "substantially complied" with the state procedural rule since his counsel did not in any way alert the trial court that Smith was objecting to the instructions given to the jury. Accordingly, the state procedural rule is "adequate" to preclude federal habeas review of this claim. In sum, the Appellate Division's reliance on the state procedural rule in this situation constitutes both an "independent" and an "adequate" state ground for its decision. Smith's claim is thus procedurally defaulted. Consistent with this conclusion, the Second Circuit has squarely held that the failure to object to a jury instruction at trial constitutes a procedural default under New York law barring habeas review. See Reyes v. Keane, 118 F.3d 136, 138 (2d Cir. 1997) ("A state prisoner who fails to object to a jury instruction in accordance with state procedural rules procedurally forfeits that argument on federal habeas review."); accord Cummings v. Artuz, 237 F. Supp.2d 475, 485 (S.D.N.Y. 2002).

  As noted above, a procedural default "bar[s] federal habeas review of the federal claim, unless the habeas petitioner can show `cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Harris, 489 U.S. at 262 (citations omitted): accord Coleman. 501 U.S. at 749-50; Fama, 235 F.3d at 809; Bossett, 41 F.3d at 829. To show a fundamental miscarriage of justice, a petitioner must demonstrate "actual innocence." See, e.g., Calderon v. Thompson, 523 U.S. 538, 559 (1998); accord Murray v. Carrier, 477 U.S. 478, 496 (1986); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). Even construing his pro se petition liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), Smith makes no showing that he is "actually innocent" nor does he claim circumstances that would constitute cause for the default. Accordingly, the procedural default bars federal habeas review of Smith's claim challenging the jury instruction on reasonable doubt.

  D. Smith's Remaining Contentions

  Smith has three remaining contentions: (1) that his convictions for attempted murder, assault, and weapons possession subjected him to double jeopardy; (2) that trial counsel's failure to raise a double jeopardy objection amounted to ineffective assistance of counsel; and (3) that the trial court's failure to intervene in certain unspecified circumstances resulted in a fundamentally unfair trial. See Petition at 16; see also 440.10 Aff. at 3-10; Traverse at 33-43. All of these claims were raised in Smith's motion to vacate the judgment under CPL § 440.10. See 440.10 Aff at 3-10.

  Smith did not raise any of these three claims in his direct appeal. See Pet. App. Div. Brief. In denying Smith's motion, the Bronx County Supreme Court summarily stated: "All issues raised herein could or should have been raised on appeal." 440.10 Decision. This statement was an obvious reference to CPL § 440.10(2)(c), which provides that a "court must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him."

  The respondent now argues that the procedural default bars federal habeas review of these claims. Resp. Mem. at 14-16. Again, "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground." Velasquez, 898 F.2d at 9; accord Harris, 489 U.S. at 262. It is clear from the face of the Bronx County Supreme Court's decision that the court was relying on an "independent" state procedural rule in denying the motion to vacate. See 440.10 Decision; see also CPL § 440.10(2)(c). Thus, it only remains to be determined whether the rule relied upon is "firmly established and regularly followed" such that it is "adequate" to support the decision.

  Applying the Cotto guideposts demonstrates that the procedural bar relied on by the state court is one that is "firmly established and regularly followed." With respect to the first guidepost, Smith's failure to raise any of these three issues in his appellate brief was "actually relied on" by the state court, as is evidenced by the terse decision issued on Smith's pro se motion to vacate.

  As for the second guidepost, it is well-settled under New York law that where the record is sufficient to allow appellate review of a claim, the failure to raise that claim on direct appeal precludes subsequent collateral review of the claim. See, e.g., People v. Jossiah, 2 A.D.3d 877, 2003 N.Y. Slip. Op. 20034, at *1 (2d Dep't Dec. 29, 2003); People v. Smith, 269 A.D.2d 769, 770 (4th Dep't 2000); People v. Skinner, 154 A.D.2d 216, 221 (1st Dep't 1990). None of the claims raised in the CPL § 440.10 application relied upon evidence outside of the record. Smith's double jeopardy claim is based solely on the court's charge to the jury. See 440.10 Aff. at 3-7. His ineffective assistance claim is based solely on counsel's failure to raise a double jeopardy objection and counsel's failure to object to the jury charge is evident from the record. See id. at 7-8. Finally, Smith presents no factual basis for his claim that the trial court committed unspecified errors and any such errors would presumably be reflected in the record. See id. at 9-10. Because the claims were record based, state case law indicates that "compliance with the rule was demanded in the specific circumstances presented," Cotto, 331 F.3d at 240.

  The third guidepost likewise fails to assist Smith for there is no argument that he "substantially complied" with the state procedural rule since his appellate brief in no way suggested that any of these three issues were being raised. Accordingly, the state procedural rule is "adequate" to preclude federal habeas review of this claim.

  In sum, the Appellate Division's reliance on the state procedural rule in this situation constitutes both an "independent" and an "adequate" state ground for its decision. Smith's claim is thus procedurally defaulted. Consistent with this conclusion, federal habeas courts have routinely held that the failure to comply with CPL § 440.10(2)(c) creates a procedural bar to federal habeas review. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001); Reyes, 118 F.3d at 140; Douglas v. Hollins, 2004 WL 187130, at *7 (S.D.N.Y. Jan. 29, 2004); see also Sweet v. Bennett, 353 F.3d 135, 139-41 (2d Cir. 2003) (applying the bar to ineffective assistance of counsel claims that are record based).

  Smith has not demonstrated either "cause" or "actual innocence" which might excuse his failure to raise these three issues on his direct appeal. Accordingly, the procedural default bars federal habeas review of his claims that he was subjected to double jeopardy, denied effective assistance of counsel through trial counsel's failure to raise the double jeopardy claim, and deprived of a fair trial by the trial court.

 Conclusion

  For the foregoing reasons, Smith's petition should be denied.

 

PROCEDURE FOR 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 this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with extra copies sent to the Hon. Jed S. Rakoff, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Rakoff. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am. 474 U.S. 140 (1985).


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