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JONES v. MILLER

United States District Court, S.D. New York


June 25, 2004.

CLIFF JONES, Petitioner,
v.
DAVID L. MILLER, Superintendent, Eastern Correctional Facility, Respondent.

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

REPORT AND RECOMMENDATION

Cliff Jones brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in the New York State Supreme Court, Bronx County, Jones was convicted of one count of Criminal Possession of a Weapon in the Third Degree under N.Y. Penal Law § 265.02(3). He was sentenced as a persistent violent felony offender to an indeterminate prison term of 15 years to life. Jones is currently incarcerated pursuant to that judgment at the Eastern Correctional Facility in Napanoch, New York. For the reasons stated below, Jones's petition should be denied.

I. BACKGROUND

  A. Evidence at Trial

  The evidence presented at trial for the most part is not relevant to the disposition of this petition. Nonetheless, a brief summary is presented here to provide some context for Jones's claims.

  On March 27, 1991, Detective Michael O'Brien and Sergeant George Griffo were driving in an unmarked police vehicle on Boston Road toward the East Tremont Avenue intersection. (O'Brien: Tr. 59-60, 123; Griffo: Tr. 232-33). A tan, two-door, 1980 Chevrolet sedan was traveling in the same direction, directly in front of the officers' vehicle. (O'Brien: Tr. 60, 62, 150). When the traffic light at the intersection changed from yellow to red, the Chevrolet accelerated and then suddenly stopped inside the intersection. (O'Brien: Tr. 60; Griffo: Tr. 233). The officers noticed that either a tail light, a brake light, or a blinker of the Chevrolet was not functioning. (O'Brien: Tr. 60, 63, 141-43; Griffo: Tr. 233). After the light turned green, the officers pulled over the Chevrolet because of its broken light and the driver's failure to stop before the intersection. (O'Brien: Tr. 60-61, 64, 141; Griffo: Tr. 233-34).

  The officers exited their vehicle and approached the Chevrolet on foot. (O'Brien: Tr. 65; Griffo: Tr. 234-35). There were three people in the Chevrolet: a male driver, a female in the passenger's seat, and a male in the back seat behind the driver. (O'Brien: Tr. 66; Griffo: Tr. 234). Jones was the individual seated in the back seat. (O'Brien: Tr. 66; Griffo: Tr. 234). Detective O'Brien noticed that Jones had a jacket on his lap, over his waist, and that Jones's hands were moving underneath the jacket. (O'Brien: Tr. 67-68). Detective O'Brien asked Jones to move to the right, behind the passenger's seat. (O'Brien: Tr. 68-69). As Jones was moving, his jacket fell to the floor of the car. (O'Brien: Tr. 70, 164). Detective O'Brien looked down and saw a gun protruding from underneath the jacket. (O'Brien: Tr. 70-71, 111-13, 164).

  Upon seeing the gun, Detective O'Brien grabbed Jones and alerted Sergeant Griffo that there was a gun in the car. (O'Brien: Tr. 71, 73; Griffo: Tr. 235-36). Sergeant Griffo reached into the back of the car, took the gun, and handed it to Detective O'Brien. (O'Brien: Tr. 71-72, 74, 78, 100-01; Griffo: Tr. 236, 241). Detective O'Brien unloaded one bullet from the chamber and three from the clip of the gun and noticed that the serial number had been scratched off. (O'Brien: Tr. 74, 78-79, 99-100). The officers handcuffed the three occupants of the car and transported them to the police precinct, where the police identified Mark Brown as the driver of the vehicle, Bonita Lee as the female in the passenger's seat, and Jones as the individual in the back seat. (O'Brien: Tr. 61, 66, 79-80, 149, 153).

  Jones presented no evidence at trial.

  B. Procedural History Prior to Trial

  Jones was originally indicted along with Brown and Lee under Indictment No. 2933/91, which charged them with acting in concert on March 27, 1991 to commit the crime of Criminal Possession of a Weapon in the Third Degree. See Affidavit of William K. Clark in Opposition, filed February 17, 2004 (Docket #10) ("Clark Aff."), ¶ 7; Order, dated September 17, 1998 ("CPL § 330.30 Order") (reproduced as Ex. 1 to Clark Aff.), at 1. This indictment was superseded by Indictment No. 6491/91, which charged Jones and Brown alone with the same offense as in the earlier indictment. See Clark Aff. ¶ 7; CPL § 330.30 Order at 1.

  On September 30, 1992, following various pre-trial proceedings, Jones failed to appear for a scheduled court appearance and the New York State Supreme Court, Bronx County issued a bench warrant for his arrest. See Clark Aff. ¶ 8; CPL § 330.30 Order at 1-2. After remaining a fugitive for over four years, Jones was arrested on unrelated charges on January 11, 1997 in Ulster County, New York, under the alias Cliff Morris. See Clark Aff. ¶ 9. He was returned involuntarily to Bronx County on the bench warrant on July 21, 1997. See id.; CPL § 330.30 Order at 2.

  On August 6, 1997, Jones moved to dismiss the indictment on the ground that he was denied his right to a speedy trial pursuant to N.Y. Crim. Proc. Law ("CPL") § 30.30. See Clark Aff. ¶ 10; Notice of Motion, dated August 6, 1997 ("CPL § 30.30 Motion") (reproduced as Ex. 3 to Clark Aff.), at 1. In the alternative, Jones requested a hearing in order for the People to demonstrate due diligence in locating him or that he was attempting to avoid prosecution. See Clark Aff. ¶ 10; CPL § 30.30 Motion at 5. On February 5, 1998, the trial court denied Jones's motion without a hearing, holding:

Where the People have announced their readiness for trial before a fugitive defendant becomes absent or unavailable, the People need not demonstrate their due diligence in searching for such defendant to avail themselves of speedy trial exclusion relating to fugitive defendants. . . .
In light of the People's announced readiness, and [Jones's] subsequent failure to return to Court, the People are not chargeable with any time between [Jones's] decision to become a fugitive, and his ultimate return on the warrant. As such, [Jones's] motion is denied.
Decision and Order, dated February 5, 1998 (reproduced as Ex. 6 to Clark Aff.), at 1.

  On March 11, 1998, a third grand jury indicted Jones for two counts of Criminal Possession of a Weapon in the Third Degree and one count of Criminal Possession of a Weapon in the Fourth Degree, all of which stemmed from the March 27, 1991 incident. See Clark Aff. ¶ 14; CPL § 330.30 Order at 2; see also Indictment No. 1753/98, dated March 11, 1998 (reproduced as Ex. 7 to Clark Aff.). The People had been granted leave to re-present the case to cure a defect in the second indictment caused by a change in New York law resulting from the decision of the Court of Appeals of New York in In re Rodney J., 83 N.Y.2d 503 (1994). See Clark Aff. ¶ 14; CPL § 330.30 Order at 2.

  C. Verdict and Sentence

  On June 2, 1998, a jury convicted Jones of one count of Criminal Possession of a Weapon in the Third Degree under N.Y. Penal Law § 265.02(3) for his possession of a firearm that had been defaced for the purpose of concealment. (Tr. 446). He was acquitted of the other third-degree possession count, which related to his possession of a loaded firearm. (Tr. 446).*fn1 On October 8, 1998, Jones was sentenced as a persistent violent felony offender to an indeterminate prison term of 15 years to life. See Clark Aff. ¶ 15; The Petition, filed September 10, 2003 (Docket #2) ("Petition"), ¶¶ 2-3.

  D. Direct Appeal

  Represented by new counsel, Jones appealed his conviction to the Appellate Division, First Department. In his brief, he raised three issues for review. The only issue raised that is relevant to the disposition of the instant petition was the following:

This appeal must be held in abeyance and the case remanded for a [CPL § 30.30] hearing where the motion papers established that chargeable time potentially exceeded six months: [Jones] was incarcerated upstate for more than 152 days, and the prosecution papers did not establish that [Jones's] upstate arrest was less than 32 days prior to the issuance of the warrant. Moreover, there was other, includable pre-readiness delay, and the trial court ruled on the motion without a hearing. [CPL § 30.30; People v. Santos, 68 N.Y.2d 859, 861 (1986); People v. Berkowitz, 50 N.Y.2d 333 (1980).]
Brief for Defendant-Appellant, dated June 2001 ("Pet. App. Div. Brief") (reproduced as Ex. 8 to Clark Aff.), at 14. Jones argued that the trial court "should have summarily granted the [CPL § 30.30] motion, or else ordered a hearing." Id. at 15. Jones cited no federal law on this claim. See id. at 14-22.

  On January 3, 2002, the Appellate Division unanimously affirmed Jones's conviction. People v. Jones, 290 A.D.2d 217 (1st Dep't 2002). The court held: [Jones's] speedy trial motion was properly denied. [Jones] did not assert, and the submissions before the motion court did not establish, that the period of [Jones's] incarceration in Ulster County exceeded the time in which the People were required to be ready. Accordingly, his present claim regarding this period is unpreserved (see, People v. Ladson, 85 N.Y.2d 926; People v. Luperon, 85 N.Y.2d 71, 78), and we decline to review it in the interest of justice. [Jones's] claim that the People were responsible for other periods of delay is unpreserved because [Jones] did not raise these issues before the motion court, and unreviewable because [Jones] did not include the relevant minutes in the record on appeal.

 Id. at 217. The court went on to indicate that, "[w]ere we to review [Jones's] various contentions in the interest of justice, we would find that there was no violation of his right to a speedy trial." Id.

  By letter application from counsel dated January 9, 2002, Jones sought leave to appeal to the Court of Appeals based on all of the issues raised in his brief to the Appellate Division. See Letter from Michelle Fox to the Hon. Judith Kaye, dated January 9, 2002 (reproduced as Ex. 11 to Clark Aff. and as Ex. E to Petition), at 1. On February 13, 2002, the Court of Appeals denied leave to appeal. People v. Jones, 97 N.Y.2d 730 (2002).

  E. The CPL § 440.10 Motion

  On July 2, 2002, Jones moved pro se in the Supreme Court, Bronx County under CPL § 440.10 to vacate his conviction. See Notice of Motion to Vacate Judgment, dated July 2, 2002 ("CPL § 440.10 Motion") (reproduced as Ex. A to Petition). In support of this motion, Jones claimed that the trial court's denial, without an evidentiary hearing, of his CPL § 30.30 motion was a violation of his due process and speedy-trial rights because the People did not establish that due diligence was exercised in returning him to court on the 1992 bench warrant. See Affidavit of Cliff Jones, dated July 2, 2002 ("CPL § 440.10 Aff.") (reproduced in CPL § 440.10 Motion), at 4-5, 7, 11-22. In addition, Jones claimed that he was deprived of due process of law because he was not allowed to testify at the first presentation of his case to the grand jury. See id. at 5, 7, 23-31. In reply papers submitted in response to the People's opposition to his CPL § 440.10 motion, Jones made the additional argument that his due process rights were violated because the prosecutor had committed "perjury" by stating in the People's papers on direct appeal and in response to Jones's CPL § 30.30 motion that a warrant had been lodged by Bronx County at Ulster County Correctional Facility on February 18, 1997. See Memorandum of Law, dated October 1, 2002 ("CPL § 440.10 Reply") (reproduced as Ex. D to Petition), at M-2 to M-4.

  On October 22, 2002, the Supreme Court, Bronx County denied Jones's CPL § 440.10 motion in its entirety. Decision and Order, dated October 22, 2002 ("CPL § 440.10 Decision") (reproduced as Ex. 14 to Clark Aff.), at 2. With respect to Jones's arguments concerning the trial court's denial of his CPL § 30.30 motion, the court held that they were "the same claims raised on his direct appeal" and that "[b]ecause the Appellate Division has already resolved these claims, this court is foreclosed from further review of the same issues." Id. at 1-2 (citing, inter alia, CPL § 440.10(2)(a)). On his grand jury claim, the court held that it was moot because the original indictment had been superseded. Id. at 2. The court also stated that, in the alternative, it would deny the claim because it was a matter of record and should have been (but was not) raised on his direct appeal. Id. (citing, inter alia, CPL § 440.10(2)(c)). The court did not address Jones's "prosecutorial perjury" argument, see id. at 1-2, which had been raised for the first time in Jones's reply brief.

  Jones sought leave from the Appellate Division, First Department to appeal the denial of his CPL § 440.10 motion. See Application for Certificate Granting Leavee [sic] to Appeal 440.10, dated September 17, 1998 [sic] (reproduced as Ex. B to Petition). The Appellate Division denied his application. See Certificate Denying Leave, dated January 16, 2003 ("CPL § 440.10 Leave Denial") (reproduced as Ex. 15 to Clark Aff.).

  F. The Instant Habeas Corpus Petition

  Jones filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 10, 2003. In it, he raises essentially the same three grounds for relief that he claimed in his CPL § 440.10 moving and reply papers, namely: (1) that the trial court's denial, without a hearing, of his CPL § 30.30 motion was a violation of his constitutional rights to due process and equal protection of the law because the People did not establish in the trial court that any delay in excess of six months in returning Jones to court on the bench warrant was excludable (Ground One); (2) that his due process rights were violated because the prosecutor committed "perjury" by erroneously stating, in response to Jones's CPL § 30.30 motion and on direct appeal, that a warrant had been lodged by Bronx County at Ulster County Correctional Facility on February 18, 1997 (Ground Two); and (3) that he was deprived of due process of law when he was denied the right to testify at the first presentation of his case to the grand jury (Ground Three). See Petition ¶ 12.

  II. APPLICABLE LEGAL PRINCIPLES

  A. The Legal Standard for Habeas Petitions Brought Pursuant to 28 U.S.C. § 2254

  The federal habeas corpus statute provides:

[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Errors of state law are thus not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Rather, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.
B. The Exhaustion Requirement
  Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ."); accord Daye v. Attorney Gen., 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). To exhaust a habeas claim, a petitioner is required to have presented that claim to each level of the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). The petitioner must also have fairly presented the federal nature of his claim to the state courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76, 278 (1971); Daye, 696 F.2d at 191-92.

  C. Procedural Default

  Where 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 to be 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), which requires a petitioner to demonstrate "actual innocence," Calderon v. Thompson, 523 U.S. 538, 559 (1998). Accord Dretke v. Haley, 124 S.Ct. 1847, 1849, 1852 (2004); Coleman, 501 U.S. at 749-50; Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); 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."). This doctrine applies even where the state court issues an alternative holding addressing the procedurally defaulted claim on the merits. See, e.g., Harris, 489 U.S. at 264 n. 10; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam).

  III. DISCUSSION

  A. Ground One — Denial of CPL § 30.30 Motion

  Jones argues that the trial court's denial, without an evidentiary hearing, of his motion pursuant to CPL § 30.30 was a violation of his constitutional rights to due process and equal protection of the law because the People did not establish that any delay in excess of six months in returning Jones to court was excludable. See Petition ¶ 12 (Ground One). Respondent argues that this claim either is unexhausted or was procedurally defaulted in the state courts. See Memorandum of Law, dated February 2004 ("Resp. Mem.") (reproduced in Clark Aff.), at 3-12. The exhaustion argument may have merit inasmuch as Jones cited no federal law on this point in his brief to the Appellate Division on direct appeal, though he did cite federal law on this point in his CPL § 440.10 moving papers, see CPL § 440.10 Aff. at 4 (citing U.S. Const. amends. VI, XIV). In any event, because it is clear that this claim may be disposed of on the basis of procedural default, there is no need to consider the issue of exhaustion.

  1. Default on Direct Appeal

  The first question is whether the Appellate Division, on direct appeal, rejected Jones's CPL § 30.30 claim on an "independent" and "adequate" state law basis. On direct appeal, the People argued that Jones's CPL § 30.30 claim was unreviewable because Jones failed to provide the Appellate Division in the record on appeal with the minutes for any of the alleged adjourn dates and, "[w]ithout these minutes, this Court can only speculate as to why the adjournments were made." See Respondent's Brief, undated ("Resp. App. Div. Brief") (reproduced as Ex. 9 to Clark Aff.), at 15. In addition, the People argued that the claim was unpreserved because Jones "failed to make mention of any of the contested pre-readiness dates below and, as such, should not be allowed to `change course' and raise those claims for the first time on appeal." Id. at 16. The Appellate Division agreed with the People's contentions, holding that the issue was "unreviewable" and "unpreserved." Jones, 290 A.D.2d at 217.

  As noted, the procedural bar is preserved even where, as here, the state court proceeds to rule on the merits in an alternative holding. See, e.g., Harris, 489 U.S. at 264 n. 10; Velasquez, 898 F.2d at 9. In addition, 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), cert. denied, 520 U.S. 1106 (1997). Thus, the procedural default relied upon 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). 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 Jones's case leads to the conclusion that the procedural bar relied upon by the Appellate Division is one that is "firmly established and regularly followed" and thus "adequate." With respect to the first guidepost, Jones's failure to argue that his CPL § 30.30 motion should be granted specifically because the period of his incarceration at Ulster County Correctional Facility exceeded the time in which the People were required to be ready or because the People were responsible for other periods of delay was "actually relied on" by the trial court in the sense that the court was never given an opportunity to consider — and conceivably cure by granting the motion — the specific problem. Cf. id. 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 consideration, it is well-settled under New York law — as reflected in New York's contemporaneous objection rule, CPL § 470.05(2) — that the failure to alert the trial court to a specific ground in support of a motion to dismiss an indictment precludes consideration of that issue on appeal. See, e.g., People v. Goode, 87 N.Y.2d 1045, 1047 (1996); People v. Ladson, 85 N.Y.2d 926, 928 (1995); People v. Luperon, 85 N.Y.2d 71, 77-78 (1995); People v. Forbes, 2004 WL 1171679, at *1 (N.Y. App. Div. 1st Dep't May 27, 2004); People v. Johnson, 232 A.D.2d 173, 173 (1st Dep't 1996). Thus, state case law indicates that "compliance with the rule was demanded in the specific circumstances presented," Cotto, 331 F.3d at 240.

  The final guidepost likewise fails to help Jones for there is no argument that he "substantially complied" with CPL § 470.05(2) through his motion to dismiss the indictment. Jones argued in his motion papers only that there was a failure to exercise due diligence in returning him to court during the period from 1992 (when he had failed to appear in court and the bench warrant was issued) until the filing of his CPL § 30.30 motion in 1997 and that this entire period was excludable for speedy-trial purposes. See CPL § 30.30 Motion at 3-5. Such an argument obviously is insufficient to make "known to the court," CPL § 470.05(2), that he was contending that there was a specific problem with the 152-day period during which he was kept in the Ulster County Correctional Facility.

  In sum, analysis of the Cotto "guideposts" demonstrates that the Appellate Division's reliance on the state procedural rule in this situation constitutes both an "independent" and an "adequate" ground for its decision. Consistent with this conclusion, federal habeas courts have routinely refused to consider claims rejected as unpreserved by the New York State courts on the ground that the defendant failed to alert the trial court to the specific issue being raised for review. See, e.g., Wilson v. Tracy, 2003 WL 22952836, at *5 (E.D.N.Y. Nov. 3, 2003); Ocean v. Cunningham, 2003 WL 23185750, at *12 (E.D.N.Y. Oct. 28, 2003); Besser v. Walsh, 2003 WL 22093477, at *21 (S.D.N.Y. Sept. 10, 2003), adopted by 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003); Carr v. Fischer, 283 F. Supp.2d 816, 833-34 (E.D.N.Y. 2003); Farrington v. McLaughlin, 2003 WL 21812903, at *5 (E.D.N.Y. July 23, 2003); Giles v. Kuhlmann, 2002 WL 1751401, at *2 (E.D.N.Y. July 11, 2002); Jones v. Duncan, 162 F. Supp.2d 204, 211-14 (S.D.N.Y. 2001); Guzman v. Lacy, 1998 WL 512954, at *6 (S.D.N.Y. Aug. 17, 1998); see also Garcia, 188 F.3d at 79-82 (CPL § 470.05(2) constitutes an "adequate" state ground precluding federal habeas review). 2. Default in CPL § 440.10 Court

  The next question is whether the state court denied Jones's CPL § 440.10 motion on an "independent" and "adequate" state law basis. In denying Jones's CPL § 440.10 motion, the state court held that his speedy-trial claims were "the same claims raised on his direct appeal" and that "[b]ecause the Appellate Division has already resolved these claims, this court is foreclosed from further review of the same issues." CPL § 440.10 Decision at 1-2 (citing, inter alia, CPL § 440.10(2)(a)). Because the Appellate Division did not grant Jones leave to appeal, see CPL § 440.10 Leave Denial, this decision represents the "last court" rendering judgment on this claim. See, e.g., Ylst, 501 U.S. at 803; Levine, 44 F.3d at 126.

  In deciding Jones's CPL § 440.10 motion, the state court relied on New York law, which provides that collateral review of a conviction is not available if "[t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment," CPL § 440.10(2)(a). Accordingly, where a CPL § 440.10 motion is "based on a claim previously advanced on direct appeal," the state court "must deny" the motion without reaching the claim on the merits. People v. Hernandez, 191 A.D.2d 511, 512 (2d Dep't 1993); accord People v. Rossney, 186 A.D.2d 926, 926 (3d Dep't 1992) (because the "issue was raised and decided on defendant's direct appeal," the issue could "not form the basis for a posttrial motion" pursuant to CPL § 440.10). See generally People v. Donovon, 107 A.D.2d 433, 443 (2d Dep't 1985) ("The purpose of [a CPL § 440.10 motion] is to inform a court of facts not reflected in the record and unknown at the time of the judgment. . . . By its very nature, [it] cannot be used as a vehicle for an additional appeal or as a substitute for a direct appeal." (citations omitted)). As noted above, "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 Dretke, 124 S.Ct. at 1851-52; Harris, 489 U.S. at 262. There can be no question that the state court's unambiguous and explicit invocation of CPL § 440.10(2)(a) was "independent" inasmuch as it did not implicate or depend on any rule of federal law. See, e.g., Williams v. Goord, 277 F. Supp.2d 309, 318 (S.D.N.Y. 2003) (state court's decision denying CPL § 440.10 was "independent" because its reliance on state law was "apparent from the face of the opinion"). The remaining question is therefore "whether the state ground relied upon is `adequate' to preclude federal habeas review," Garcia, 188 F.3d at 77.

  Applying the Cotto "guideposts," it is clear that CPL § 440.10(2)(a) was an "adequate" ground for the state court's decision. First, the state court "actually relied" on the procedural bar in denying Jones's CPL § 440.10 motion. See CPL § 440.10 Decision at 1-2 (citing CPL § 440.10(2)(a)). Second, case law demonstrates that compliance was required. New York State courts have held repeatedly that claims raised and determined on the merits on direct appeal may not subsequently be raised in a collateral proceeding under CPL § 440.10. See, e.g., People v. Saunders, 301 A.D.2d 869, 870 (3d Dep't 2003); People v. Baxter, 262 A.D.2d 1068, 1068 (4th Dep't 1999); People v. Marvin, 258 A.D.2d 964, 965 (4th Dep't 1999); People v. Skinner, 154 A.D.2d 216, 220-21 (1st Dep't 1990); People v. Kelly, 110 A.D.2d 856, 856 (2d Dep't 1985). Although Jones's CPL § 30.30 claim was decided on the merits on direct appeal only in an alternative holding, see Jones, 290 A.D.2d at 217, there is no requirement in CPL § 440.10(2)(a) that the "on the merits" determination on direct appeal be in a decision in which no alternative holding is provided. In addition, Jones makes no claim — nor could he — that between the time of his direct appeal and the adjudication of his CPL § 440.10 motion there was "a retroactively effective change in the law" regarding his speedy-trial claim, CPL § 440.10(2)(a). Finally, there is no argument that Jones "substantially complied" with the procedural requirements of CPL § 440.10(2)(a) as it cannot be argued — nor does Jones argue — that this was a claim that had not been raised on direct appeal.

  Accordingly, Jones's claim is procedurally defaulted. Consistent with this conclusion, federal habeas courts have recognized that a New York State court's reliance on CPL § 440.10(2)(a) constitutes an "adequate" state ground precluding federal habeas review. See, e.g., Williams v. Senkowski, 2003 WL 21673623, at *2 (S.D.N.Y. July 16, 2003); Katowski v. Greiner, 212 F. Supp.2d 78, 88 (E.D.N.Y. 2002); Veras v. Strack, 58 F. Supp.2d 201, 211 (S.D.N.Y. 1999); Perez v. Greiner, 2003 WL 22427759, at *5 (S.D.N.Y. Oct. 23, 2003) (Report and Recommendation).

  Because of the default on direct appeal and on collateral review, federal habeas review of this claim is barred unless Jones can show either "cause" for the default and "prejudice" or make a demonstration of "actual innocence." See, e.g., Dretke, 124 S.Ct. at 1849, 1852. Even under a liberal construction of his pro se petition and reply papers, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), Jones makes no showing of "actual innocence." At best, Jones's papers may be construed as alleging that the prosecutor's alleged perjury in responding to his CPL § 30.30 motion constitutes "cause" for his procedural default. See Affirmation in Support of Petition, filed September 10, 2003 (Docket #4), at 6. The argument could only be that, but for the prosecutor's "perjury," Jones would have asserted in the state court that the failure to lodge the warrant in Ulster County caused the period of his incarceration to exceed the time in which the People were required to be ready under CPL § 30.30. However, as reflected in his petition and in his CPL § 440.10 papers, the alleged perjury committed by the prosecutor was in the People's written response to Jones's CPL § 30.30 motion. See Petition ¶ 12 (Ground Two); CPL § 440.10 Reply at M-2 to M-3. Thus, because the alleged perjury occurred only in response to Jones's CPL § 30.30 motion, it could not have caused Jones's failure to raise the argument in his moving papers. In other words, any alleged perjury would not have "made compliance [with the procedural rule] impracticable," Bossett, 41 F.3d at 829 (internal quotation marks and citation omitted). Accordingly, Jones has not demonstrated "cause" for the procedural default. Thus, the default cannot be excused and federal habeas review of the claim is barred.

  B. Ground Two — Prosecutorial Misconduct

  Jones argues as a separate claim that his due process rights were violated because the prosecutor committed perjury. See Petition ¶ 12 (Ground Two). Respondent argues that this claim is unexhausted and fails on the merits. See Resp. Mem. at 13-15. Respondent presents a compelling argument that this claim is unexhausted inasmuch as the first time it was presented to the state courts was in Jones's CPL § 440.10 reply papers, see CPL § 440.10 Reply at M-2 to M-4, and the state court never addressed this claim in ruling on Jones's motion, see CPL § 440.10 Decision at 1-2. Nonetheless, the Court will exercise its discretion to consider the claim inasmuch as it may be denied on the merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").

  The alleged "perjury" consisted of statements made by the prosecutor in response to Jones's CPL § 30.30 motion and on direct appeal to the effect that Jones's Bronx County warrant had been lodged at the Ulster County Correctional Facility on February 18, 1997. See Petition ¶ 12 (Ground Two); CPL § 440.10 Reply at M-2 to M-4; see also Answering Affirmation, Indictment No. 6491/91, dated September 3, 1997 (reproduced as Ex. 4 to Clark Aff.), at 5; Resp. App. Div. Brief at 22. Jones has submitted with his petition documents he obtained in a Freedom of Information Act ("FOIA") request which he contends show that Bronx County did not in fact lodge a warrant on February 18, 1997 — although the papers show that New York County apparently lodged a warrant on that date — and that the Bronx County warrant was not lodged until July 21, 1997, when Jones was housed at Rikers Island Correctional Facility. See Documents Annexed as Ex. C to Petition. Jones concludes that "[a]bsent the sworn perjured statements by the prosecutor, [his] speedy trial motion contained sufficient factual averments to obtain the relief sought." Petition ¶ 12 (Ground Two).

  The scope of review for allegations of prosecutorial misconduct in the habeas context is "quite limited." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). To prevail on such a claim, a petitioner must show that the prosecutor engaged in "egregious misconduct . . . amount[ing] to a denial of constitutional due process." Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974); accord Tankleff, 135 F.3d at 252; Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990). In the context of summations made to a jury at trial, it has been held that "[e]ven where a prosecutor's remarks are improper, `constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair.'" Washington v. Walker, 1994 WL 391947, at *3 (S.D.N.Y. July 28, 1994) (quoting Floyd, 907 F.2d at 355); accord Darden v. Wainwright, 477 U.S. 168, 181 (1986) (misconduct must "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process" (internal quotation marks and citation omitted)).

  Jones's entire claim rests on the belief that his due process rights were violated because a false statement was made by the prosecutor that could have affected the outcome of his CPL § 30.30 motion. However, "fundamental fairness" is the hallmark of due process, e.g., Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 24-25 (1981) — not mere error — and it cannot be said that Jones was not afforded a fully effective procedure by which he could have challenged the statements when they were made. Even assuming that the prosecutor was incorrect in stating that Bronx County had lodged a warrant on February 18, 1997, the lodging vel non of this warrant constituted public information that was readily available to Jones or his counsel at the time of his CPL § 30.30 motion. Although Jones states that he learned of the alleged "perjury" only on April 16, 2001, when he received a response to his FOIA request, see Petition ¶ 12 (Ground Two), he or his counsel could have made an identical request for this information from the prosecutor in advance of his CPL § 30.30 motion and could have sought court intervention in the event the information was not forthcoming. Jones thus had every opportunity to contest the validity of the prosecutor's statement before the CPL § 30.30 court. Therefore, even if the statement was erroneous, it is clear that the constitutionally-required procedures were available to Jones at the time of his CPL § 30.30 motion. Significantly, Jones has not provided any reason to believe that the prosecutor knew that the statement was false when made — particularly given that he concedes that a warrant was in fact lodged against him on February 18, 1997, apparently based on a separate criminal charge that arose in New York County. See Reply to Opposition, undated ("Habeas Reply"), ¶¶ 21, 24-25. In these circumstances, it cannot be said that Jones was the victim of any "fundamental unfairness." Thus, habeas relief is not warranted on this claim.

  C. Ground Three — Denial of Right to Testify Before Grand Jury

  Jones's third claim for habeas relief is that he was deprived of due process of law when he was denied the right to testify at the first presentation of his case to the grand jury. See Petition ¶ 12 (Ground Three). Respondent argues that this claim is unexhausted, was procedurally defaulted in the state courts, and fails on the merits. See Resp. Mem. at 16-19. Because this claim is plainly unexhausted, there is no need to consider respondent's alternative arguments.

  As indicated, in order to exhaust a claim a habeas petitioner must have fairly presented the federal nature of his claim to the state courts. See, e.g., Duncan, 513 U.S. at 365-66; Picard, 404 U.S. at 275-76, 278; Daye, 696 F.2d at 191-92. However, there is no federal constitutional right to appear before a grand jury, see, e.g., United States v. Williams, 504 U.S. 36, 52 (1992); accord Lemons v. Parrott, 2002 WL 850028, at *5 (S.D.N.Y. May 2, 2002) ("[T]here is no dispute that `there is no constitutional right to appear before a grand jury.'" (quoting Steed v. N.Y. Executive Dep't Div. of Parole, 2000 WL 1593342, at *8 (S.D.N.Y. Oct. 25, 2000))) — a principle that Jones appears to recognize, see Habeas Reply at 9 ("[T]here is no Federal standard declaring the absolute right to be present before the Grand Jury. . . ."). Rather, the right to testify before a grand jury in New York derives exclusively from state law. See CPL § 190.50(5)(a). Because errors of state law are not subject to federal habeas review, see, e.g., Estelle, 502 U.S. at 67-68, a petitioner's claim that he was denied the right to testify before the grand jury is not cognizable on federal habeas review. See, e.g., Hutchings v. Herbert, 260 F. Supp.2d 571, 577-78 (W.D.N.Y. 2003); Gibbs v. New York, 2002 WL 31812682, at *4 (S.D.N.Y. Dec. 12, 2002); Green v. Artuz, 990 F. Supp. 267, 273 & n. 8 (S.D.N.Y. 1998); Velez v. New York, 941 F. Supp. 300, 315 (E.D.N.Y. 1996); Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y.), aff'd, 876 F.2d 890 (2d Cir.), cert. denied, 493 U.S. 850 (1989).

  Conclusion

  For the foregoing reasons, Jones'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 copies sent to the Hon. Sidney H. Stein, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Stein. 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. Arn, 474 U.S. 140 (1985).


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