United States District Court, S.D. New York
June 25, 2004.
CLIFF JONES, Petitioner,
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.
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
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
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
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).
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
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
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
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
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
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
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
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
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).
For the foregoing reasons, Jones's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
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