United States District Court, S.D. New York
June 16, 2004.
MARVIN PEAKES, Petitioner,
ELIOT SPITZER, New York State Attorney General, & J. ALLARD, Superintendent, Franklin Correctional Facility, Respondents.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, United States District
Pro se petitioner Marvin Peakes*fn1 seeks a writ of habeas
corpus from his June 5, 2000 conviction of second degree robbery
and sentence of fifteen years imprisonment (Dkt. No. 1: Pet. ¶¶
1-4), which was reduced by the First Department to ten years
imprisonment, People v. Peaks, 297 A.D.2d 578, 578-79,
747 N.Y.S.2d 170, 170 (1st Dep't 2002).
Peakes' habeas petition raises three grounds: (a) the trial
court's refusal to instruct the jury on the lesser included
offense of third degree robbery denied Peakes his due process
right to a fair trial (Pet. ¶ 12(A)); (b) the fifteen-year
sentence was harsh and excessive given Peakes' non-violent criminal history and the fact that the complainants suffered no
injuries (Pet. ¶ 12(B)); and (c) the prosecutor's cumulative
misconduct during summation deprived Peakes of a fair trial (Pet.
For the reasons set forth below, Peakes' habeas petition should
The Prosecution Case at Trial
On the morning of December 20, 1998, complainants Francisco and
Jean Tabone, a middle-aged married couple from Long Island, were
walking south on Seventh Avenue in Manhattan toward Penn Station,
when petitioner Peakes approached Mrs. Tabone, who was walking
several paces ahead of her husband (J. Tabone: Trial Transcript
["Tr."] 168-69, 179-80; F. Tabone: Tr. 197, 198-99, 209.) Peakes
said to Mrs. Tabone, "`I have a gun. Give me your money. I'm
going to shoot.'" (J. Tabone: Tr. 169-70, 183-85.) Peakes had his
hand in his pocket, which led Mrs. Tabone to believe that he
actually did have a gun, although she never saw it. (J. Tabone:
Tr. 169-70, 187-88.) Terrified, Mrs. Tabone turned to her husband
and screamed: "`He's got a gun. He's going to shoot. Give him
your money.'" (J. Tabone: Tr. 171, 185-86.) At that point, Peakes
approached Mr. Tabone, pushed him up against the side of a
building, and said, "`I have a gun in my pocket. If you don't
hand over your money, I'm going to kill you.'" (F. Tabone: Tr.
200-01; J. Tabone: Tr. 171-72, 189, 193-94.) Peakes jabbed Mr.
Tabone in the stomach with what Mr. Tabone assumed was a gun in
Peakes' pocket. (F. Tabone: Tr. 201-03, 208, 211, 214-15.) Mr.
Tabone gave Peakes the money from his wallet, about $80 to $100.
(F. Tabone: Tr. 203-04, 213.) Peakes took the money with the other hand than the one in which he was pretending to
hold the gun. (F. Tabone: Tr. 208.) After taking the money,
Peakes walked uptown. (F. Tabone: Tr. 213.)
The Tabones located Police Officer Michael Pfeffer outside of
Macy's and informed him of what had happened. (J. Tabone: Tr.
173-74; F. Tabone: Tr. 204; Pfeffer: Tr. 253-54.) Officer Pfeffer
relayed the Tabones' description of Peakes by radio to police in
the area. (F. Tabone: Tr. 205; Pfeffer: Tr. 254.) Officers James
Wojcik and Ronald Weintraub apprehended Peakes. (Wojcik: Tr.
218-23, 228.) Officer Thomas Davis drove to Officer Pfeffer's
post, picked up the Tabones, and brought them to where Peakes was
being held. (J. Tabone: Tr. 174-75; F. Tabone: Tr. 206; Davis:
Tr. 238-39, 244; Pfeffer: Tr. 255; Stelmok: Tr. 265-67.) The
Tabones positively identified Peakes from the police car. (J.
Tabone: Tr. 175-76; F. Tabone: Tr. 206-07; Davis: Tr. 241.) The
officers took Peakes into custody, and at the precinct searched
him and recovered $118 from his jacket pockets, but no gun.
(Wojcik: Tr. 227; Stelmok: Tr. 265, 268-70.) The parties
stipulated that "the person who approached the Tabones and the
person who was stopped by the police are both the defendant in
this case, Mr. Marvin Peakes." (Tr. 246.)
Both Mr. and Mrs. Tabone identified Peakes at trial as the
robber. (J. Tabone: Tr. 172-73; F. Tabone: Tr. 205-07.)
The Defense Case at Trial
Marvin Peakes' testimony in his own defense was markedly
different from the Tabones' in four respects. First, Peakes
testified that he did not rob the Tabones but merely asked them
for change for a twenty-dollar bill, since he had been
propositioned by a prostitute who offered to charge him $10 or
$15. (Peakes: Tr. 286-88, 298, 306-07, 325.) Second, Peakes
testified that he never had his hands in his pockets, except to retrieve the
twenty-dollar bill to give to Mr. Tabone, and never expressly
said or intimated that he had a gun. (Peakes: Tr. 291, 305, 309,
311-12, 314, 325-28.) Third, Peakes testified that he possessed
forty dollars before even approaching the Tabones and assumed
that Mr. Tabone had mistakenly given him seventy-eight dollars
out of sympathy, believing Peakes to be a "bum or derelict."
(Peakes: Tr. 288-89, 297-98, 309-10.) Finally, Peakes testified
that he did not push Mr. Tabone up against a wall or touch him in
any way. (Peakes: Tr. 311-12, 330-31.) He also testified that
while Mr. Tabone might have thought he was going to rob him
because he (Peakes) is black, he had no reason to rob Mr. Tabone,
since he had $16,000 in the bank, owned a house, and earned over
$500 per week at his job. (Peakes: Tr. 331-32.)
The Charge Conference
At the charge conference outside the jury's presence, defense
counsel requested instruction of the lesser included offense of
third degree robbery. (Tr. 336.) The prosecutor argued that
"[a]ccording to the defendant's own testimony, it would be [the
prosecution's] position that it's really robbery in the second
degree or nothing." (Tr. 336.) The judge initially agreed with
the prosecutor but then asked for defense counsel's rationale.
(Tr. 336.) Defense counsel argued that the jury could accept the
Tabones' testimony that they felt "threatened [and] coerced" but
reject the Tabones' testimony about the "simulated weapon." (Tr.
336.) The judge asked what evidence there was to show "use or
threat of an immediate use of physical force," if the jury
disbelieved the Tabones' testimony "about the gun." (Tr. 337.)
Defense counsel cited Mr. Tabone's testimony of being "pushed up
against the wall and touched at some point" and feeling "scared
and . . . threatened." (Tr. 337) The prosecutor countered that
any threat or coercion was due to Peakes' use of a simulated weapon, arguing that "it was the gun that actually
put [Mr. Tabone] up against the wall." (Tr. 337.) Defense counsel
responded that Mr. Tabone's testimony was unclear and
inconsistent with his grand jury testimony regarding whether he
could tell "if there was anything in the pocket or he thought
there was a gun." (Tr. 337-38.) Defense counsel offered to look
for case law supporting the defense's position. (Tr. 338.) The
judge allowed defense counsel to conduct her research, and told
both attorneys his "standard instruction" for robbery in the
[W]hat I plan on saying is, the Penal Law speaks
about what appears to be a pistol. This means to
display anything that appears to be such, though held
inside a coat or otherwise obscured. Covered by this
section of the Penal Law the defendant does
consciously display something which could reasonably
be conceived as a firearm, or for the purpose of
defending or overcoming resistance. This must be
witnessed in some manner by the victim. For example,
it must appear to the victim that he is threatened by
the firearm by sight, threat or sound.
(Tr. 339.) The following day, immediately prior to closing
arguments, the judge asked defense counsel if she had found any
case law on the lesser included offense charge; defense counsel
answered "[n]o," and "rest[ed] on the record." (Tr. 341.) The
judge ruled that he would give the jury only "the top count . . .
[t]he only count," second degree robbery. (Tr. 341.)
The Defense Summation
Defense counsel's closing argument addressed the Tabones'
credibility. (Def. Summation: Tr. 356-66) Defense counsel
described Mrs. Tabone as an "out-of-towner" on an "excursion"
who, because she was not accustomed to being solicited for money,
ultimately became "hysterical," "overreacted," and "jumped to the
wrong conclusion." (Def. Summation: Tr. 356-60.) Defense counsel
argued that "maybe [Mr. Tabone was] a little embarrassed he gave
his money over right away," and perhaps he did feel threatened
and as if he were being robbed, but, in fact, it was merely an incident that "got blown out of proportion" and "was
something it never was." (Def. Summation: Tr. 362-63, 366.)
Defense counsel described the incident:
. . . [T]he Tabones, let's be fair, they're here on a
nice weekend. They just saw a nice show and went to a
nice dinner. They're having a good time. They don't
want this. They don't need this. They were approached
by a guy[,] they felt threatened and frightened and
they wanted him to go away. Maybe they thought they
were being robbed and they gave the money and they
looked at each other, what happened? We were robbed
and we better talk to the police. [The Tabones] knew
they never voluntarily would turn over seventy,
eighty dollars, so they spoke with the police and the
police said, "Was there a weapon"? Well, maybe, there
might have been and this snowball starts rolling down
the hill out of control.
(Def. Summation: Tr. 363-64.)
The Prosecution Summation
In his closing argument, the prosecutor argued that the jury
needed to decide whether Peakes was telling the truth:
[A.D.A.] O'ROURKE: [W]hat does this trial come down
to? Well, we always have to prove our case beyond a
reasonable doubt. That is the People['s] burden. But
when the defendant takes the stand and testifies and
says, no, it didn't happen that way, the job of the
jury becomes very crystal clear as fact finders, who
is being truthful, and whose story fits and makes
[DEFENSE COUNSEL]: Judge, that's not the standard.
THE COURT: Overruled.
(State Summation: Tr. 369.)
The prosecutor attacked Peakes' credibility by pointing out the
lack of corroborating evidence to support Peakes' testimony that
he owned a house, possessed a bank account, and that he had a
relative that he claimed was the reason he had come into New York
from New Jersey: [A.D.A.] O'ROURKE: . . . There's no evidence besides
the defendant's words about owning a house. They have
no burden, but there's no evidence to support
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: there's no evidence to support
these things he said to you. . . .
(State Summation: Tr. 369-70.)
[A.D.A.] O'ROURKE: [Peakes] needs to explain a lot of
different things to you to try to come across as
credible. That's what he needs to do. So he has to
explain first why he's in Manhattan, okay? It's
Christmas season. I was bringing Christmas presents
up to my cousin early in the morning. A cousin, I
believe, he's still in touch with. A cousin who could
easily have been here.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
. . .
[A.D.A.] O'ROURKE: [Peakes] gives you all of these
explanations. That he's trying to explain all this
stuff. Why would I want to do a robbery? I got money.
There's no evidence of that.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: He has no burden. But wouldn't it
be important, couldn't you bring in a bank statement?
There's no evidence of that. It's nonsense.
(State Summation: Tr. 377-79.) The prosecutor attempted to undermine the significance of
Peakes' sworn testimony:
[A.D.A.] O'ROURKE: [T]he defendant is a convicted
felon. What can you do with that? Well, no one is
asking anybody to say because somebody is convicted
of a crime that they would ever commit another crime.
Nobody is asking that. But what does it mean? It
means that this person when it's good for him Marvin
Peak[e]s is willing to put all of his interests above
the rest of a community, above the rest of society.
An oath, an affirmation, swearing to tell the truth
is not something that's going to put Mr. Peak[e]s on
that stand and say well, you know I did target Mrs.
Tabone. I saw her alone. I saw her probably going
towards Macy's. I figured she had a pocketful of
money and that's why I went to take her off. I went
to rob her. I never expected the husband to come on,
but when he did I had to react to that and you know
what? I'm sorry. That's not what happens in every day
life. That's what happens on TV. That's what happens
in scripts. In movies. I have been doing this for
nearly five years
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: Never once have I ever seen in any
courtroom somebody come and breakdown during
cross-examination, during the cross-examination
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: and say, okay, you got me. I
actually did rob him. I had the gun. They don't do
that and don't expect that.
(State Summation: Tr. 385-87.)
The prosecutor continued by arguing for the Tabones'
credibility: I submit to you, [the Tabones are] honest, careful
and they're thoughtful about their testimony and it
(State Summation: Tr. 375.)
[A.D.A.] O'ROURKE: [Defendant's case] means that the
Tabones are liars. . . . They didn't misunderstand . . .
Mr. Tabone worked for the Sanitation Department
for 35 years. There's not some clash of cultures. Mr.
Tabone is just a hard working regular guy.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: And this clash of cultures [the
defense goes] into is turning into a gun-point
robbery? . . . You just don't get there from the
(State Summation: Tr. 380-81.) The prosecutor also commented on
the disinterestedness of the Tabones. (State Summation: Tr. 383:
"[T]here is no motive for these people [the Tabones] to come into
this courtroom and to mislead you. To be untruthful to you.")
Defense counsel did not object to this remark.
The prosecutor characterized Peakes' version of the events as
"garbage" and described the defense's theory that Mrs. Tabone was
incapable of comprehending her situation as "ridiculous." (State
Summation: Tr. 370-71.) Defense counsel failed to object to
either of those comments. Also, the prosecutor later commented
You have no reason, I submit to you, not to believe
what the Tabones have come here and told you happened
on that day. Everything fits. Everything fits and you
have every reason to look at the  defendant's
testimony and say he just has all these explanations
to try to wiggle his way out of this. He doesn't want
to be held accountable for what he's done.
[DEFENSE COUNSEL]: Objection. THE COURT: Overruled.
[A.D.A.] O'ROURKE: I tell you don't let him do that.
Don't let him do that. Use your common sense and hold
that man [Peakes] accountable for robbing Mr. Frank
Tabone on December 20, 1998, by displaying what Mr.
Tabone thought was a gun. . . . I ask you in the name
of the People of the State of New York, it's your
duty and it's your obligation to hold him accountable
for what he did on that day.
(State Summation: Tr. 389-90.)
After the conclusion of the prosecutor's summation and the
court's charge of the jury (Tr. 390-416), the judge heard the
grounds for defense counsel's objections during the prosecutor's
summation. (Tr. 418-22.)
With regard to the defense's objection to the prosecutor's
comment that "the jury should weigh one story against the other,"
defense counsel argued that the prosecutor introduced an improper
legal standard and more specifically was "shifting the burden of
proof" from prosecution to defense. (Tr. 418.)*fn2
The defense also argued that the prosecution's comment about
Peakes' "having no bank book to prove that he had a house," was
also based on an improper "shifting [of] the burden of proof."
(Tr. 418.) Defense counsel further argued that the prosecutor had
no "good faith basis to make that comment and he certainly didn't
cross-examine on that point." (Tr. 419.) Defense counsel averred that Peakes did, in fact, possess "such
documentation" but that her specific objection was to the
"shifting [of] the burden of proof." (Tr. 419.)
Defense counsel objected to the prosecutor's characterizing
defense counsel's argument as "ridiculous" because "demeaning
counsel's arguments" is "inappropriate." (Tr. 419.)
Defense counsel based her next objection (i.e., the
prosecutor's mention of a cousin "who could have easily been
here" (State Summation: Tr. 377-78)) on the interpretation that
"here" meant "in the audience." (Tr. 419.) Based on that
interpretation that "no one showed up for" Peakes defense
counsel argued that such a comment was an improper means to
discredit the defendant. (Tr. 419.) The prosecutor interjected:
"I don't think I actually said that he had no family in the
audience." (Tr. 419.) The judge also "didn't get the impression
about sitting in the audience." (Tr. 420.)
Defense counsel's next objection that the prosecutor's
comment regarding Peakes' lack of any evidence besides his own
testimony to corroborate the existence of a bank account was
again based on defense counsel's belief that the prosecutor
improperly was "shifting the burden of proof." (Tr. 420.)
Defense counsel argued that the prosecutor's mention of Mr.
Tabone's employment history was improper "vouch[ing] for the
witness." (Tr. 421.)
Defense counsel's next objection, with regard to the
prosecutor's mention of his own personal experience of never
seeing a witness "breakdown" (State Summation: Tr. 386), was
based on defense counsel's belief that "the ADA was testifying
and injecting himself inappropriately into the proceedings." (Tr.
421.) Defense counsel asserted that the prosecutor's mention of the
defendant trying to "wiggle his way out of this," was an
"improper comment on Mr. Peak[e]s' testimony." (Tr. 421.)
Defense counsel's final objection was to the prosecutor's final
remark about the jury's "duty" and "obligation" to hold Peakes
"accountable for what he did on that day" (State Summation: Tr.
My last objection and I didn't make it
contemporaneous because it was the very last thing
the prosecutor said, but he said something to the
effect that it's the duty of the people . . . of the
State of New York it's your duty to come back with a
guilty verdict and hold [Peakes] accountable, and I
believe that's improper because I believe that
implies that [the jurors] have a state sanction[ed]
approval to and indeed in some way they should, come
back with a guilty verdict. So for those reasons I'm
objecting to the People's final comment as improper.
Defense counsel moved for a mistrial based on "the many errors
in the summation as to prosecutorial misconduct." (Tr. 422.) The
prosecutor relied on the record. (Tr. 422.) The judge denied the
motion, stating that "the prosecutor's comments were appropriate
in the context." (Tr. 422.)
Deliberations, Verdict and Sentence
During deliberations, the jury submitted a note asking: "Can
the defendant be charged with a lesser crime/charge? . . ." (Tr.
423.) The judge told counsel that "I think the answer to th[at] . . .
question is quite simply no, in view of the fact that I
refused to charge it." (Tr. 423.) Defense counsel attempted to
argue that the request was evidence to support her motion during
the charge conference; however, the judge disagreed: "Frankly, I
think it's evidence that they [the jurors] want to reach a
compromised verdict." (Tr. 423-24.) The judge told the jurors in
answer to their note, "[t]he answer to that is no. You must decide whether or not
the People have proved beyond a reasonable doubt the crime which
I presented to you earlier." (Tr. 424-25.)
On August 12, 1999, the jury found Peakes guilty of the sole
count of second degree robbery. (Verdict: Tr. 446-48.)
On June 5, 2000, Peakes was sentenced as a predicate felon to
the maximum allowed, fifteen years imprisonment. (6/5/00
Sentencing Tr. 5-6, 16.)
On appeal to the First Department, Peakes' appellate counsel's
brief raised two grounds: (1) the trial court's refusal to charge
third degree robbery as a lesser included offense of second
degree robbery constituted a violation of Peakes' due process
right to a fair trial (Dkt. No. 5: Gill Aff. Ex. A: Peakes 1st
Dep't Br. at 8-12); and (2) the sentence of fifteen years was
harsh and excessive (Peakes 1st Dep't Br. at 12-14). In a
supplemental pro se brief, Peakes added a prosecutorial
misconduct claim, alleging that several of the prosecutor's
comments in summation improperly bolstered the prosecution
witnesses' testimony, shifted the burden to Peakes, interfered
with the jury, and mischaracterized Peakes' case, depriving him
of a fair trial and due process. (Gill Aff. Ex. B: Peakes Pro Se
Supp. 1st Dep't Br. at 3-17.)
On September 24, 2002, the First Department affirmed Peakes'
The court properly declined to submit robbery in the
third degree as a lesser included offense of robbery
in the second degree since there was no reasonable
view of the evidence, viewed most favorably to
defendant, that he committed the lesser offense but
not the greater. Each victim's testimony that
defendant held his hand inside his pocket in a manner
making it appear that he was holding a gun, and that
defendant also threatened to shoot the victims,
constituted an integrated whole. Such testimony
clearly established that defendant displayed what
appeared to be a firearm within the meaning of Penal
Law § 160.10(2)(b). There was no evidence suggesting that the robbery was committed in some other manner,
particularly since defendant testified that there was
no robbery at all.
. . . .
The contentions contained in defendant's pro se
supplemental brief are unpreserved and we decline to
review them in the interest of justice. Were we to
review these claims, we would reject them.
People v. Peaks, 297 A.D.2d 578
, 579, 747 N.Y.S.2d 170
170-71 (1st Dep't 2002) (citations omitted). The First
Department, however, "in the interest of justice . . . reduc[ed]
the sentence to a term of 10 years." Id. at 578-79, 747
N.Y.S.2d at 170.
The New York Court of Appeals denied leave to appeal on
December 19, 2002. People v. Peaks, 99 N.Y.2d 562,
754 N.Y.S.2d 215 (2002).
Peakes' Federal Habeas Corpus Petition
Peakes' timely-filed federal habeas corpus petition raises
three grounds: (a) the trial court's refusal to instruct the jury
on the lesser included offense of third degree robbery denied
Peakes his due process right to a fair trial (Dkt. No. 1: Pet. ¶
12(A)); (b) the fifteen-year sentence was harsh and excessive
given Peakes' non-violent criminal history and the fact that the
complainants suffered no injuries (Pet. ¶ 12(B)); and (c) the
prosecutor's cumulative misconduct during summation deprived
Peakes of a fair trial (Pet. ¶ 12(C)).
I. THE AEDPA REVIEW STANDARD*fn3 [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] Before the Court can determine whether Peakes is entitled to
federal habeas relief, the Court must address the proper habeas
corpus review standard under the Antiterrorism and Effective
Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the
role of federal habeas courts in reviewing petitions filed by
state prisoners." Williams v. Taylor, 529 U.S. 362, 403,
120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent
review standard, as follows:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim
(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 United States; or
(2) . . . 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)(1)-(2).*fn4
The "contrary to" and "unreasonable application" clauses of §
2254(d)(1) have "independent meaning." Williams v. Taylor,
529 U.S. at 404-05, 120 S.Ct. at 1519.*fn5
"restrict the source of clearly established law to [the
Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S.
at 412, 120 S.Ct. at 1523.*fn6
"That federal law, as
defined by the Supreme Court, may either be a generalized
standard enunciated in the [Supreme] Court's case law or a
bright-line rule designed to effectuate such a standard in a
particular context." Kennaugh v. Miller, 289 F.3d at 42. "A
petitioner cannot win habeas relief solely by demonstrating that
the state court unreasonably applied Second Circuit precedent." Yung v.
Walker, 296 F.3d at 135; accord, e.g., DelValle v.
Armstrong, 306 F.3d at 1200.
As to the "contrary to" clause:
A state-court decision will certainly be contrary to
[Supreme Court] clearly established precedent if the
state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases. . . .
A state-court decision will also be contrary to
[the Supreme] Court's clearly established precedent
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 result
different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at
In Williams, the Supreme Court explained that "[u]nder the
`unreasonable application' clause, a federal habeas court may
grant the writ 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." Williams v. Taylor, 529 U.S. at 413, 120 So.
Ct. at 1523.*fn8 However, "[t]he term `unreasonable' is . . .
difficult to define." Williams v. Taylor, 529 U.S. at 410,
120 S.Ct. at 1522. The Supreme Court made clear that "an
unreasonable application of federal law is different from an
incorrect application of federal law." Id.*fn9 Rather,
the issue is "whether the state court's application of clearly established federal law was objectively
unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 So.
Ct. at 1521.*fn10 "Objectively unreasonable" is different
from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123
S.Ct. at 1175 ("The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear error)
with unreasonableness."). However, the Second Circuit has
explained "that while `[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.'" Jones v. Stinson, 229 F.3d at 119 (quoting
Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
2000)).*fn11 "[T]he range of reasonable judgment can depend
in part on the nature of the relevant rule." Yarborough v.
Alvarado, 124 S.Ct. at 2149.*fn12 Moreover, the Second Circuit has held "that a state court
determination is reviewable under AEDPA if the state decision
unreasonably failed to extend a clearly established, Supreme
Court defined, legal principle to situations which that principle
should have, in reason, governed." Kennaugh v. Miller, 289
F.3d at 45.*fn13
Under the AEDPA, in short, the federal courts "must give the
state court's adjudication a high degree of deference." Yung v.
Walker, 296 F.3d at 134.
Even where the state court decision does not specifically refer
to either the federal claim or to relevant federal case law, the
deferential AEDPA review standard applies:
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.
Sellan v. Kuhlman, 261 F.3d at 312; accord Early v.
Packer, 537 U.S. 3
, 8, 123 S.Ct. 362
, 365 (2002) (State court
not required to cite Supreme Court cases, or even be aware of
them, to be entitled to AEDPA deference, "so long as neither the
reasoning nor the result of the state-court decision contradicts
them."); Francolino v. Kuhlman, 365 F.3d 137
, 141 (2d Cir.
Apr. 20, 2004) (Where "the Appellate Division concluded its
opinion by stating that it had `considered and rejected
defendants' remaining claims,'" AEDPA deference applies.);
Jenkins v. Artuz, 294 F.3d 284
, 291 (2d Cir. 2002) ("In
Sellan, we found that an even more concise Appellate Division
disposition the word `denied' triggered AEDPA
"By its terms, § 2254(d) requires such
deference only with respect to a state-court `adjudication on the merits,' not to a
disposition `on a procedural, or other, ground.' Where it is
`impossible to discern the Appellate Division's conclusion on
[the relevant] issue,' a federal court should not give AEDPA
deference to the state appellate court's ruling." Miranda v.
Bennett, 322 F.3d 171
, 177-78 (2d Cir. 2003) (citations
Of course, "[i]f there is no [state court]
adjudication on the merits, then the pre-AEDPA, de novo
standard of review applies." Cotto v. Herbert, 331 F.3d at
In addition to the standard of review of legal issues, the
AEDPA provides a deferential review standard for state court
factual determinations: "a determination of a factual issue made
by a State court shall be presumed to be correct."
28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of `rebutting the
presumption of correctness by clear and convincing evidence.'"
Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).
Peakes' lesser included offense and excessive sentence claims
were decided on the merits by the First Department (see pages
13-14 above), and thus AEDPA deference applies. Peakes'
prosecutorial misconduct claim is partly barred by an adequate
and independent state ground and the rest is entitled to AEDPA
deference. (See page 30 below.) II. PEAKES' LESSER INCLUDED OFFENSE JURY CHARGE CLAIM SHOULD
Peakes claims that the trial court's "refusal to charge the
lesser included offense of Robbery 3° [in the third degree]
denied [him] his Due Process right to [a] fair trial." (Dkt. No.
1: Pet. ¶ 12(A).) The First Department denied this claim on the
merits (see pages 13-14 above), and thus under the AEDPA the
issue is whether the First Department's decision involved an
unreasonable application of Supreme Court precedent. (See pages
The Supreme Court has not directly addressed whether the Due
Process Clause requires a jury instruction of a lesser included
offense in a non-capital case. In Beck v. Alabama,
447 U.S. 625, 100 S.Ct. 2382 (1980), the Supreme Court held that "if the
unavailability of a lesser included offense instruction enhances
the risk of an unwarranted conviction, [the state] is
constitutionally prohibited from withdrawing that option from the
jury in a capital case." Beck v. Alabama, 447 U.S. at 638,
100 S.Ct. at 2390.*fn16 The Supreme Court in Beck
expressly reserved the question of whether this principle also
should apply to non-capital cases. Beck v. Alabama, 447 U.S.
at 638 n. 14, 100 S.Ct. at 2390 n. 14 ("We need not and do not
decide whether the Due Process Clause would require the giving of
such instructions in a noncapital case.").
In Rice v. Hoke, 846 F.2d 160 (2d Cir. 1988), the Second
Circuit addressed the issue of instruction of lesser included
offenses in non-capital cases: [Petitioner] argues that the trial court's refusal to
instruct on the lesser included offenses deprived him
of due process. The State, on the other hand, argues
that [petitioner's] petition is not subject to habeas
review because it states neither a federal claim nor
a perceived error of state law amounting to a denial
of equal protection or of due process of law
guaranteed by the Fourteenth Amendment. . . .
Although the Supreme Court has determined that in
capital cases a judge must charge the jury on lesser
included noncapital offenses where the evidence
warrants such a charge, see Beck v. Alabama,
447 U.S. 625, 627, 100 S.Ct. 2382, 2384 (1980), it
has expressly reserved the question whether due
process requires a lesser included offense
instruction in a noncapital case. Id. at 638, n.
14, 100 S.Ct. at 2390 n. 14. This circuit has not
yet ruled on this issue. See, e.g., Harris v.
Scully, 779 F.2d 875, 880 (2d Cir. 1985) (evidence
did not warrant instruction on lesser included
offense); Casillas v. Scully, 769 F.2d 60, 63 (2d
Cir. 1985) (defendant requested instruction on crime
that was not lesser included offense of crime
charged); cf. United States ex rel. Smith v.
Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974) (jury
charge in state trial not normally reviewable on
federal habeas corpus absent showing that alleged
errors deprived defendant of constitutional right),
cert. denied, 423 U.S. 856, 96 S.Ct. 106 (1975).
The circuit courts that have considered the issue
are divided. The Fifth, Eighth, and Ninth Circuits
hold that failure to instruct on a lesser offense
does not present a federal constitutional question
and therefore will not be considered in a federal
habeas proceeding. Cooper v. Campbell,
597 F.2d 628, 631 (8th Cir.), cert. denied, 444 U.S. 852,
100 S.Ct. 106 (1979); James v. Reese,
546 F.2d 325, 327 (9th Cir. 1976); Bonner v. Henderson,
517 F.2d 135, 136 (5th Cir. 1975) (per curiam). On
the other hand, the Third, Sixth, and Seventh
Circuits hold that federal courts have jurisdiction
to review the refusal to instruct on lesser included
offenses if the refusal deprived the defendant of due
process. Bishop v. Mazurkiewicz, 634 F.2d 724,
725 (3d Cir. 1980), cert. denied, 452 U.S. 917,
101 S.Ct. 3053 (1981); Brewer v. Overberg,
624 F.2d 51, 52 (6th Cir. 1980) (per curiam), cert. denied,
449 U.S. 1085, 101 S.Ct. 873 (1981); Davis v.
Greer, 675 F.2d 141, 143-44 (7th Cir.), cert.
denied, 459 U.S. 975, 103 S.Ct. 310 (1982).
Rice v. Hoke, 846 F.2d at 164-65 (emphasis added).*fn17
The Second Circuit in Rice in dicta stated that there was "some
merit" in petitioner's argument, but found that the trial judge
correctly ruled that the evidence did not warrant the instruction
and thus it "need not decide whether the failure to give an instruction on lesser included offenses in a non-capital case
presents a constitutional claim." Rice v. Hoke, 846 F.2d at
More recently, the Second Circuit has reiterated its lack of
position on the matter. In Knapp v. Leonardo, 46 F.3d 170 (2d
Cir.), cert. denied, 515 U.S. 1136, 115 S.Ct. 2566 (1995), the
Second Circuit held that "[n]either the Supreme Court nor this
circuit has decided whether the failure to instruct a jury on
lesser included offenses in noncapital cases is a constitutional
issue that may be considered on a habeas petition." 46 F.3d at
179 (citing Rice v. Hoke).*fn19 In Jones v. Hoffman,
86 F.3d 46, 48 (2d Cir. 1996) (per curiam), another pre-AEDPA
decision, the Second Circuit expanded on its rationale for
declining to rule on the issue, holding that "a decision
interpreting the Constitution to require the submission of
instructions on lesser-included offenses in non-capital cases
would involve the announcement of a new rule," which would be
barred by the Supreme Court's ruling in Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060 (1989).
After passage of the AEDPA, District Courts within the Second
Circuit have recognized that both the Supreme Court and the
Second Circuit have not decided whether a lesser included offense
charge is required in non-capital cases, and thus have denied
habeas relief under the AEDPA standard. See, e.g., Smith v.
Barkley, No. 99-CV-0257, 2004 WL 437470 at *5-6 (N.D.N.Y. Feb. 18, 2004); Lindsey v. Fischer, 02 Civ. 1668,
2004 WL 112884 at *7 (S.D.N.Y. Jan. 23, 2004) (Because the
Supreme Court has left the issue open and the Second Circuit
refrained from deciding the issue in Jones v. Hoffman based
on Teague, therefore "Petitioner's claim is not cognizable
under current habeas corpus law," i.e., was not an unreasonable
application of Beck v. Alabama.); Fleurant v. Duncan, No.
00-CV-7647, 2003 WL 22670920 at *9 (E.D.N.Y. Nov. 7, 2003);
Smith v. Walsh, 02 Civ. 5755, 2003 WL 21649485 at *8
(S.D.N.Y. July 14, 2003); House v. Miller, No. 02-CV-5379,
2003 WL 23198788 at *15-16 (E.D.N.Y. Oct. 27, 2003) (Weinstein,
D.J.) (decision not to charge lesser included offense was not "an
unreasonable application of Supreme Court precedent, or even
erroneous under New York state law"); Davis v. Herbert, No.
02-CV-04908, 2003 WL 23185747 at *14 (E.D.N.Y. Oct. 24, 2003)
(Weinstein, D.J.) ("There is no Supreme Court authority requiring
state courts to charge lesser included offenses in anything other
than a death penalty case."); Greene v. Fisher, No.
02-CV-3854, 2003 WL 22956997 at *11 (E.D.N.Y. Oct. 16, 2003)
(Weinstein, D.J.) ("The defendant's claim regarding the refusal
of the court to charge the [lesser included offense] cannot
furnish the basis for habeas relief because the Supreme Court
of the United States has never held in a non-capital case, an
accused is constitutionally entitled to the submission of any
lesser included offenses."); Collins v. Greiner, No.
02-CV-4727, 2003 WL 22953067 at *12 (E.D.N.Y. Oct. 15, 2003)
(Weinstein, D.J.); Willis v. Duncan, No. 00-CV-4171, 2003 WL
21845664 at *6 (E.D.N.Y. Aug. 4, 2003) (Weinstein, D.J.);
Rattray v. Brown, 261 F. Supp.2d 149, 155 (E.D.N.Y. 2003);
Barnes v. Giambruno, 01 Civ. 8965, 2002 WL 850020 at *7-8
(S.D.N.Y. May 2, 2002); Long v. Andrews, No. 99-CV-7553, 2000
WL 1716443 at *3 (E.D.N.Y. Nov. 13, 2000) ("Because there is no
Supreme Court precedent on the issue, the Appellate Division's rejection of petitioner's [lesser included offense] claim cannot
have been contrary to, or an unreasonable interpretation of,
clearly established federal law," citing Beck v. Alabama and
Jones v. Hoffman. In any event, state courts correctly held
that evidence did not support the charge.); Stephens v. Ross,
No. 97-CV-719, 1997 WL 1068711 at *7-8 (E.D.N.Y. Dec. 10, 1997)
(same reasoning as Long); Allah v. Kelley, 32 F. Supp.2d 592,
597 (W.D.N.Y. 1998); Garcia v. Keane, 973 F. Supp. 364,
367-69 (S.D.N.Y. 1997).*fn20
Here, as in these prior cases, this Court cannot hold that the
First Department unreasonably applied Supreme Court precedent,
because the only Supreme Court case on the issue of lesser
included offenses, Beck v. Alabama, specifically ruled only
as to capital cases and specifically reserved decision as to
non-capital cases. (See page 23 above.) The Supreme Court has
recognized, in Beck and other cases, that "death is different."
See, e.g., Ring v. Arizona, 536 U.S. 584, 605-06, 122 So.
Ct. 2428, 2441 (2002) ("There is no doubt that `death is
[d]ifferent'"); Lankford v. Idaho, 500 U.S. 110, 125, 111 So.
Ct. 1723, 1732 (1991); Solem v. Helm, 463 U.S. 277, 289, 294,
103 S.Ct. 3001, 3009, 3011 (1983); Gardner v. Florida,
430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204 (1977) ("death is a
different kind of punishment from any other which may be imposed
in this country"); Beck v. Alabama, 447 U.S. at 637-38 & n.
13, 100 S.Ct. at 2389-90 & n. 13. Neither the Second Circuit nor
any district court case in this Circuit has extended Beck to
non-capital cases. This Court cannot say that the First
Department's decision was an unreasonable application of or an unreasonable failure to extend Beck v. Alabama. See
Yarborough v. Alvarado, 124 S.Ct. 2140, 2149 (2004) (quoted
at pages 19-20 n. 12 above). Accordingly, Peakes' lesser included
offense habeas claim should be denied pursuant to the
AEDPA.*fn21 III. PEAKES' EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A
BASIS FOR FEDERAL HABEAS RELIEF
Peakes' habeas petition asserts that his sentence of fifteen
years is unconstitutional because it is "harsh and excessive
given [Peakes'] otherwise non-violent [c]riminal past and the
fact that complainants suffered no injuries." (Dkt. No. 1: Pet. ¶
12(B).) As an initial matter, the Court notes that while Peakes'
habeas petition continues to challenge a fifteen-year sentence,
Peakes' sentence was reduced to ten years on direct appeal.
People v. Peaks, 297 A.D.2d 578, 578-79, 747 N.Y.S.2d 170,
170 (1st Dep't 2002).
Peakes' excessive sentence claim is quickly disposed of. An
excessive sentence claim does not provide a basis for habeas
relief, because "[n]o federal constitutional issue is presented
where, as here, the sentence is within the range prescribed by
state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir.
1992).*fn22 In this case, it is undisputed that Peakes'
sentence was within the range prescribed by state law. Peakes was found guilty of second degree
robbery, and sentenced as a second felony offender to a
determinate prison term of fifteen years, reduced on appeal to
ten years. Second degree robbery is a Class C violent felony,
Penal Law § 70.02(1)(b), § 160.10, and for a second felony
offender the court must impose a determinate sentence with a
maximum term of fifteen years. Penal Law § 70.06(6)(b).
Because Peakes' sentence is within the statutory range, it is
not reviewable by this Court for "excessiveness." (See cases
cited at page 29 n. 22 above.)
IV. PEAKES' PROSECUTORIAL MISCONDUCT CLAIM IS MERITLESS
Peakes claims that the "cumulative misconduct of the prosecutor
se[v]erely prejudiced [him] depriving him of a fair trial and Due
process of Law." (Dkt. No. 1: Pet. ¶ 12(C).) The "cumulative
misconduct" to which Peakes refers occurred solely during the
prosecutor's summation. (Dkt. No. 5: Gill Aff. Ex. B: Peakes Pro
Se Supp. 1st Dep't Br.) Peakes alleges that his right to a fair trial was compromised by the prosecutor's misconduct during
summation when he, inter alia, "repeatedly asked about
defendant's failure to show evidence of ownership of property and
finance statements which had already been presented in
testimony." (Pet. ¶ 12(C).) Peakes claims that the prosecutor
improperly bolstered and vouched for his witnesses' credibility,
interjected himself as an unsworn witness, shifted the burden of
proof, and denigrated the defense's argument. (Dkt. No. 5: Gill
Aff. Ex. B: Peakes Pro Se Supp. 1st Dep't Br. at 4-18.)
Every objection that Peakes' counsel made during the
prosecutor's summation was overruled. (See pages 6-10 above.)
After summation and the judge's charge to the jury, Peakes'
counsel explained her objections in more detail for the record
and moved for a mistrial. (see pages 10-12 above.) The trial
court denied the motion, deeming the prosecutor's comments
"appropriate in the context." (See page 12 above.)
On direct appeal, Peakes submitted a pro se supplemental brief,
raising prosecutorial misconduct claims based on his counsel's
objections. (See Gill Aff. Ex. B: Peakes Pro Se Supp. 1st Dep't
Br.) The First Department held: "The contentions contained in
defendant's pro se supplemental brief are unpreserved and we
decline to review them in the interest of justice. Were we to
review these claims, we would reject them." People v. Peaks,
297 A.D.2d 578, 579, 747 N.Y.S.2d 170, 171 (1st Dep't 2002).
To the extent Peakes' habeas petition is intended to
incorporate his Pro Se Supplemental First Department Brief's
claims as to several comments by the prosecutor that were not
objected to at trial, such claims are barred:*fn23 The
Second Circuit (and district courts within the Circuit) have held that failure to object to the prosecutor's
summation is an adequate and independent state ground sufficient
to bar habeas relief. See, e.g., Vargas v. Keane,
86 F.3d 1273, 1280 (2d Cir.) (petitioner's claim barred from habeas
review for failure to object to prosecutor's summation
statements), cert. denied, 519 U.S. 895, 117 S.Ct. 240 (1996);
Reardon v. Richardson, 956 F.2d 391, 391-92 (2d Cir. 1992);
Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *10
(S.D.N.Y. Apr. 16, 2003) (Peck, M.J.).*fn24 Accordingly,
Peakes' claim is barred from habeas review as to those prosecutorial comments to which Peakes' counsel did not object at
To the extent Peakes' counsel objected to the other alleged
comments, the First Department's alternative holding that were it
to review the claims it "would reject them" (see page 14 above)
is a sufficient decision on the merits to be entitled to the
deferential AEDPA review standard. See, e.g., Rodriguez v.
Goord, 02 Civ. 6318, 2004 WL 540531 at *13 (S.D.N.Y. Mar. 19,
2004) (Peck, M.J.) (Claims that First Department held
"unpreserved" but also without merit "either will be found barred
from habeas review by an independent and adequate state law
ground or, were the Court to reach the merits, the deferential
AEDPA review standard would apply."); Green v. Herbert, 01
Civ. 11881, 2002 WL 1587133 at *11 (S.D.N.Y. July 18, 2002)
(Peck, M.J.) ("[T]he First Department's holding is an adequate
and independent state procedural ground that bars federal habeas
review . . ., but because of the First Department's alternative
holding on the merits, to the extent the federal courts reach the
merits of the sentencing claim, the deferential AEDPA review
"Prosecutorial misconduct violates a defendant's due process
rights only when it is of `sufficient significance to result in
the denial of the defendant's right to a fair trial.'" Cromwell
v. Keane, 98 Civ. 0013, 2002 WL 929536 at *25 (S.D.N.Y. May 8,
2002) (Peck, M.J.) (quoting Greer v. Miller, 483 U.S. 756,
765, 107 S.Ct. 3102, 3109 (1987)); accord, e.g., United
States v. McCarthy, 54 F.3d 51, 55 (2d Cir.), cert. denied,
516 U.S. 880, 116 S.Ct. 214 (1995); Blissett v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852,
112 S.Ct. 158 (1991).*fn25 Stated another way, "the law is settled
that `federal habeas relief is not available on the basis of
improper prosecutorial statements at trial unless the errors, in
context of the summation as a whole, were so fundamentally unfair
as to deny petitioner a fair trial.'" Tejada v. Senkowski, 92
Civ. 3012, 1993 WL 213036 at *3 (S.D.N.Y. June 16, 1993), aff'd
mem., 23 F.3d 397 (2d Cir.), cert. denied, 513 U.S. 887,
115 S.Ct. 230 (1994).*fn26
To properly evaluate the prosecution's actions, the alleged
misdeeds must be placed in context, and "[t]he severity of the
misconduct, curative measures, and the certainty of conviction
absent the misconduct are all relevant to the inquiry."
Blissett v. LeFevre, 924 F.2d at 440; accord, e.g.,
Greer v. Miller, 483 U.S. at 766, 107 S.Ct. at 3109 ("it is
important `as an initial matter to place th[e] remar[k] in context'"); United States v. McCarthy, 54
F.3d at 55; United States v. Friedman, 909 F.2d 705, 709 (2d
Cir. 1990); United States v. Biasucci, 786 F.2d 504, 514 (2d
Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104
First, Peakes claims that the prosecutor vouched for and
bolstered his witnesses' credibility. (Dkt. No. 5: Gill Aff. Ex.
B: Peakes Pro Se Supp. 1st Dep't Br. at 4-5.) The only properly
preserved example in this category is: "`Mr. Tabone worked for
the Sanitation Department for 35 years. There's not some clash of
cultures. Mr. Tabone is just a hard working regular guy.'"
(Peakes Pro Se Supp. 1st Dep't Br. at 5, quoting State Summation:
Tr. 380.) This claim is not cognizable on habeas review, since
"bolstering" is a state law issue, and does not state a federal
constitutional issue cognizable on federal habeas corpus. See,
e.g., Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at
*12 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.), report & rec.
adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.);
Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *49 n.
77 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Bailey v. New York,
01 Civ. 1179, 2001 WL 640803 at *8 (S.D.N.Y. June 8, 2001) (Peck,
M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *32
n. 23 (S.D.N.Y. June 6, 2000) (Peck, M.J.); Benitez v.
Senkowski, 97 Civ. 7819, 1998 WL 668079 at *5 (S.D.N.Y. Sept.
17, 1998) (Cote, D.J. & Peck, M.J.) (& cases cited therein);
Orr v. Schaeffer, 460 F. Supp. 964, 967 (S.D.N.Y. 1978)
(Weinfeld, D.J.) ("[T]his Circuit has never regarded the practice
[of bolstering] as inimical to trial fairness.").
Moreover, even assuming arguendo that a bolstering claim were
constitutionally cognizable (which it is not), any error in admitting the
prosecutor's remark about Mr. Tabone's employment history was
harmless error. See, e.g., Brecht v. Abrahamson,
507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993) (pre-AEDPA, the
appropriate harmless error standard to apply on habeas corpus
review of trial errors is whether the error "`had substantial and
injurious effect or influence in determining the jury's
verdict.'") (quoting Kotteakos v. United States,
328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)). This Court cannot
conclude that the prosecutor's comment about Mr. Tabone's
employment history had a substantial and injurious effect or
influence in determining the jury's verdict against Peakes. The
comment provided background to Mr. Tabone and is not the sort of
emotionally charged evidence as could prejudice a
defendant.*fn28 Nor did the comment make Peakes' conviction
substantially more likely. In Vargas v. Hoke, then-District
Judge Leval denied a habeas petition because, although the trial
court allowed impermissible bolstering testimony, the statement
added little to an already compelling case. Vargas v. Hoke,
664 F. Supp. 808, 812 (S.D.N.Y. 1987). Here, the testimony of the
Tabones that they saw and felt what they believed to be a gun in
Peakes' pocket creates a compelling case such that the
prosecutor's comment about Mr. Tabone's 35-year employment with
the Sanitation Department, if error, clearly was harmless error.
See also, e.g., Collins v. Scully, 755 F.2d 16, 19 (2d
Cir. 1985) (properly admitted evidence was sufficiently strong to outweigh the impact that the
erroneously admitted evidence had, viewed objectively in light of
the entire record before the jury); Bentley v. Scully,
41 F.3d 818, 824-25 (2d. Cir. 1994) (where evidence of guilt was
"overwhelming," prosecutor's brief summation comments were
harmless error), cert. denied, 516 U.S. 1152, 116 S.Ct. 1029
(1996). Indeed, the prosecutor was responding to defense
counsel's summation argument that the Tabones believed that they
were being robbed because they were from Long Island,
"out-of-towners," and that as such there was a culture gap that
prevented the Tabones from realizing they were being panhandled
not robbed. (Defense Summation: Tr. 356-60.) See, e.g.,
United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998)
("Prosecutors have greater leeway in commenting on the
credibility of their witnesses when the defense has attacked that
credibility."); United States v. Perry, 643 F.2d 38, 51 (2d
Cir.) ("[I]n light of the fact that the defense lawyers attacked
the credibility and honesty of the Government's case in their
closings, the Government's statements vouching for witnesses were
understandable if not laudable"), cert. denied, 454 U.S. 835,
102 S.Ct. 138 (1981).
Second, Peakes claims that the prosecutor "became an unsworn
witness by improperly . . . support[ing] his case by his own
veracity and position" (Peakes Pro Se Supp. 1st Dep't Br. at 6)
[A.D.A.] O'ROURKE: I have been doing this for nearly
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[A.D.A.] O'ROURKE: Never once have I ever seen in any
courtroom somebody come and breakdown during
cross-examination, during the cross-examination. [DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
(State Summation: Tr. 386.)
Peakes' claim that the prosecutor violated the "unsworn
witness" rule lacks merit. "An attorney acts as an unsworn
witness when" he has "first-hand knowledge of the events
presented at trial. . . . Moreover, his role as advocate may give
his client an unfair advantage, because the attorney can subtly
impart to the jury his first-hand knowledge of the events without
having to swear an oath or be subject to cross examination."
United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993),
cert. denied, 511 U.S. 1070, 114 S.Ct. 1645, 1646 (1994);
accord, e.g., Dickens v. Filion, 02 Civ. 3450, 2002 WL
31477701 at *12 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.). The unsworn
witness rule "generally stands for the proposition that the
prosecutor may not inject his own credibility into the trial. . . .
[T]he rule is founded upon the possible danger that the jury,
impressed by the prestige of the office of the District Attorney,
will accord great weight to the beliefs and opinions of the
prosecutor." People v. Paperno, 54 N.Y.2d 294, 300-01,
445 N.Y.S.2d 119, 123 (1981); accord, e.g., Dickens v.
Filion, 2002 WL 31477701 at *12.
Here, in context, the prosecutor was merely stating that in his
experience, unlike television, defendants do not confess during
cross-examination and that the jury should not expect such an
admission in real life, as opposed to what they see on
television. The comment was harmless. Cf. Parson v.
Portuondo, 259 F. Supp.2d 309, 313 & n. 3 (S.D.N.Y. 2003)
(Counsel not ineffective for failing to object where "[t]he trial
court remarked to the panel of prospective jurors: `Two things
will not happen in this case. No people will rush up here at the
appropriate time, stand here and say, "Judge, stop the proceedings. We are the people who
robbed the cab drivers." That happens on Perry Mason. Do not
expect it.' . . . Placing the remark in proper perspective makes
clear that the trial court was cautioning the prospective jurors
to pay close attention to the evidence, particularly
cross-examination. The statement followed the court's having
amply and properly reminded the panel of defendant's presumption
of innocence and the government's burden to prove guilt beyond a
Third, Peakes claims that he was deprived of a fair trial
because the prosecutor improperly shifted the burden of proof to
the defense. (Peakes Pro Se Supp. 1st Dep't Br. at 7-14.) The
specific prosecutorial comments at issue are: (1) "`There's no
evidence besides the defendant's own words about owning a house.
They have no burden, but there's no evidence to support . . .
these things he said to you.'" (Peakes Pro Se Supp. 1st Dep't Br.
at 7, quoting State Summation: Tr. 369-70); (2) "`He gives you
all of these explanations. . . . Why would I want to do a
robbery? I got money. There's no evidence of that. . . . He has
no burden. But wouldn't it be important, couldn't you bring in a
bank statement? There's no evidence of that. It's nonsense.'"
(Peakes Pro Se Supp. 1st Dep't Br. at 7-8, quoting State
Summation: Tr. 379); and (3) Peakes testified that he "`was
bringing [C]hristmas presents up to [his] cousin early in the
morning. A cousin, I believe, he's still in touch with. A cousin
who could easily have been here'" (Peakes Pro Se Supp. 1st Dep't
Br. at 8, quoting State Summation: Tr. 378).
None of these comments were improper because they constituted a
fair response to Peakes' testimony and defense counsel's
summation. See, e.g., People v. Tankleff, 84 N.Y.2d 992, 994,
622 N.Y.S.2d 503, 504 (1994) (Where "defense had elected to come
forward with evidence, the [prosecutor's summation] comments [about defendant's failure
to call witnesses to support his claim] did not constitute an
impermissible effort to shift the burden of proof."); People v.
Youmans, 292 A.D.2d 647, 648, 738 N.Y.S.2d 756, 757 (3d Dep't)
("[W]here the defendant presents evidence with regard to a
material witness, the prosecution does not impermissibly shift
the burden of proof by commenting in summation on the defendant's
failure to call that witness. . . . Moreover, the prosecution may
comment upon the failure to present a certain witness where it is
a fair response to defense counsel's summation."), appeal
denied, 98 N.Y.2d 704, 747 N.Y.S.2d 423 (2002); People v.
Diaz, 254 A.D.2d 94, 94, 682 N.Y.S.2d 123, 123 (1st Dep't 1998)
("The prosecutor did not shift the burden of proof by commenting
in summation on defendant's failure to call a material witness
since defendant presented evidence with regard to said witness at
trial."), appeal denied, 93 N.Y.2d 852, 688 N.Y.S.2d 499
(1999); People v. Overlee, 236 A.D.2d 133, 142-143,
666 N.Y.S.2d 572, 579 (1st Dep't 1997) ("[T]he prosecutor's inquiry
as to whether [the defendant] had any documentation . . . to
corroborate his testimony" held not improper, because "[w]hen a
defendant chooses to present affirmative proof, his failure to
produce supportive evidence, especially where such proof would
ordinarily be available, may be brought to the jury's
attention.") (citing People v. Liang, 208 A.D.2d 401, 402,
617 N.Y.S.2d 163, 163 (1st Dep't 1994), appeal denied,
84 N.Y.2d 869, 618 N.Y.S.2d 15 (1994)), appeal denied, 91 N.Y.2d 976,
672 N.Y.S.2d 855 (1998); People v. Gathers, 207 A.D.2d 751,
752, 616 N.Y.S.2d 732, 733 (1st Dep't 1994) ("[A]
prosecutor's reminder to the jury that an asserted defense is not
supported by any evidence does not shift the burden of proof"),
appeal denied 84 N.Y.2d 1031, 623 N.Y.S.2d 187 (1995). Moreover, in context, none of the three objected-to comments
put the burden of proof on the defense or denied Peakes a fair
trial. The prosecutor's comments were brief and isolated, and the
prosecutor also repeatedly told the jury that the prosecution,
not the defense, had the burden of proof. (See page 7 above.)
More importantly, immediately following the prosecutor's
summation, the judge's charge informed the jury that the "burden
[of proof] remains upon the prosecution throughout the trial and
never shifts to the defendant" and that "[n]o defendant is
required to prove his innocence." (Tr. 403).*fn29 Finally,
there was strong evidence of Peakes' guilt: The Tabones testified
that Peakes threatened them with what they believed was a gun and
robbed Mr. Tabone. (See page 2 above.) Peakes was arrested
within minutes of the robbery. (See page 3 above.) The Tabones
positively identified Peakes at the time of his arrest and again
at trial as the man who had robbed them. (See page 3 above.)
There was no mistaken identity claim the parties stipulated
that the person who approached the Tabones and the person who was
arrested was, in fact, Peakes. (See page 3 above.) In contrast, Peakes' testimony that he had merely
asked the Tabones for change of a twenty dollar bill so he could
pay a prostitute ten or fifteen dollars, and that Mr. Tabone
mistook Peakes' solicitation for a mugging (see pages 3-4
above), was far fetched and obviously was not believed by the
This Court finds that even if there was error in the People's
summation concerning a shifting of the burden of proof, it was
harmless in view of the trial court's instruction, the brief and
isolated nature of the action, and the overwhelming evidence of
guilt. See, e.g., Rao v. Artuz, No. 97-2703,
199 F.3d 1323 (table), 1999 WL 980947 at *2-3 (2d Cir. Oct. 22, 1999)
("strength of the evidence against the petitioner" was enough to
"bar the conclusion that he suffered actual prejudice as a
result of the prosecutor's remarks"); Tankleff v. Senkowski,
135 F.3d 235, 253 (2d Cir. 1998) ("[S]everity of the prosecutor's
misconduct . . . was mitigated by the brevity and fleeting nature
of the improper comments" and "the evidence was [not] so closely
balanced that the prosecutor's comments were likely to have had a
substantial effect on the jury"); Herrera v. Lacy, No.
95-2800, 112 F.3d 504 (table), 1996 WL 560760 at *2 (2d Cir. Oct.
3, 1996) ("While some improper statements were made . . ., the
misconduct was not so severe that it was not rendered harmless by
the court's curative instruction and the substantial evidence of
[petitioner's] guilt."); Bentley v. Scully, 41 F.3d 818,
824-25 (2d Cir. 1994) (denying prosecutorial misconduct claim
where prosecution presented "compelling evidence" against
petitioner and alleged misconduct was both brief and isolated),
cert. denied, 516 U.S. 1152, 116 S.Ct. 1024 (1996); United
States v. Rivera, 971 F.2d 876, 885 (2d Cir. 1992) (court's
instructions to jury obviated any prosecutorial error);
Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991)
(although prosecutor made improper statements during summation, no prejudice to defendant where trial court instructed
jury that the summations were not evidence and case against
defendant was strong); Strouse v. Leonardo, 928 F.2d 548, 557
(2d Cir. 1991) (no violation where "cumulative effect of the
prosecutor's alleged misconduct was not so severe as to amount to
the denial of a fair trial [and] absent the alleged misconduct, . . .
overwhelming evidence" existed against petitioner); Bradley
v. Meachum, 918 F.2d 338, 343 (2d Cir. 1990) ("clear evidence
of guilt demonstrates that [petitioner] was not prejudiced by the
prosecutor's" misconduct), cert. denied, 501 U.S. 1221, 111 So.
Ct. 2835 (1991); United States v. Parker, 903 F.2d 91, 98-99
(2d Cir. 1990) (even where prosecutor acted improperly, no claim
for misconduct where "transgression was isolated, the trial court
took swift and clear steps to correct [improper conduct], and the
evidence against the defendant was strong"); United States v.
Coffey, 823 F.2d 25, 28 (2d Cir. 1987) (no constitutional
violation where alleged misconduct was isolated and not
intentional, the trial court provided curative instructions and
trial evidence demonstrated defendant's guilt); United States
v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) (per curiam)
("the existence of substantial prejudice turns upon the strength
of the government's case: if proof of guilt is strong, then the
prejudicial effect of the [misconduct] tends to be deemed
insubstantial . . ."), cert. denied, 456 U.S. 989,
102 S.Ct. 2269 (1982); Cruz v. Greiner, 1999 WL 1043961 at
*31.*fn30 Accordingly, the First Department's decision was not an
unreasonable application of Supreme Court law. Peakes'
prosecutorial summation misconduct claims should be denied.
For the reasons set forth above, Peakes' habeas petition should
be denied. Since Peakes' petition has failed to make a
substantial showing of the denial of a constitutional right, a
certificate of appealability should not issue.
28 U.S.C. § 2253(c)(2).
FILING OF 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 shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable
Richard M. Berman, 40 Centre Street, Room 201, and to my
chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be
directed to Judge Berman. Failure to file objections will result
in a waiver of those objections for purposes of appeal. Thomas
v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993),
cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038,
113 S.Ct. 825 (1992); Small v. Secretary of Health & Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair
Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72, 6(a), 6(e).