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AGOSTO v. SENKOWSKI

United States District Court, S.D. New York


August 16, 2004.

RAFAEL AGOSTO, Petitioner
v.
DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent.

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

On December 17, 2003, Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation ("Report") recommending that the petition of Rafael Agosto ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed on August 18, 1999, be denied. Respondent filed an objection to the Report on December 26, 2003. The Court granted Petitioner, now pro se, an extension until March 19, 2004, to file objections (in response to a request from his former attorney who subsequently withdrew from the case). Petitioner has not filed objections to the December 17, 2003 Report and Recommendation. Respondent submitted a timely objection to the Report.

In reviewing the Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West Supp. 2004). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court "need only satisfy itself that there is no clear error on the face of the record." Johnson v. Reno, 143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation omitted); see also Bryant v. New York State Dep't of Corr. Serv., 146 F. Supp.2d 422, 424-425 (S.D.N.Y. 2001) (court may accept portions of the report to which no objections have been made if it is "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If the party makes only conclusory or general objections, or simply reiterates the original arguments, however, the Court will review the Report strictly for clear error. See United States ex rel. Casa Redimix Concrete Corp. v. Luvin Construction Corp., 00 Civ. 7552 (HB), 2002 WL 31886040, at *1 (S.D.N.Y. Dec. 27, 2002); Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992); Chabrier v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838, at *1 (S.D.N.Y. Mar. 26, 1991); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691 (JL), 1994 WL 119740, at * 2 (S.D.N.Y. Apr. 6, 1994). Objections to a Report and Recommendation "are to be specific and are to address only those portions of the proposed findings to which the party objects." Camardo, 806 F. Supp. at 381-382.

  The Court has considered thoroughly the Respondent's objections to Judge Fox's Report. Although Judge Fox ultimately denied Petitioner's application for habeas corpus relief finding Petitioner's arguments meritless, Respondent contends that a state procedural bar should have precluded any federal habeas corpus review. In light of Respondent's objections, the Court reviews the Report and Recommendation de novo.

  This Court finds that the Report by Judge Fox, who determined that the habeas petition was not procedurally barred yet was meritless, was an appropriate determination. The trial court's denial of the Petitioner's motion to set aside the verdict without holding an evidentiary hearing was not sufficient to clearly impose a procedural bar. According to the Second Circuit, a state court judgment is procedurally barred from federal review only if it is based on a rule "firmly established and regularly followed" in that state. Cotto v. Herbert, 331 F.3d 217, 239-241 (2d Cir. 2003) (internal citation omitted). Judge Fox concluded that the trial court's denial of an evidentiary hearing following a motion to set aside a verdict based on jury bias is not the uniform practice in the state of New York when conflicting factual allegations exist. See People v. Tokarski, 578 N.Y.S.2d 751 (App. Div. 4th Dep't 1991) (holding that the trial court must conduct a hearing on a motion to set aside a verdict for juror misconduct when conflicting factual allegations exist); People v. Paulick, 615 N.Y.S.2d 159 (App. Div. 4th Dep't 1994) (finding that conflicting factual allegations warrant a hearing rather than sole reliance on counsel's affidavits).

  Respondent asserts that NYCPL § 330.40(2) provides an independent and adequate state ground for precluding federal habeas corpus review. Relying on the Second Circuit's recent decision in Cotto, Respondent focuses primarily on the three criteria outlined in the opinion to assist the court in determining the adequacy of a procedural bar in precluding federal habeas review. Cotto, 331 F.3d at 240. Though the court in Cotto does partly rely on three considerations to determine whether a procedural bar exists, it does not exclusively decide the case based on these factors and instead holds that the state court judgment must be based on a "firmly established and regularly followed" rule. Id. It is this prerequisite that Judge Fox finds lacking to preclude federal habeas review. Respondent's analysis of Smart v. Scully, 787 F.2d 816 (2d Cir. 1986), is also misguided. In a case similar to the instant matter, the court in Smart indicates that a petitioner may not be precluded from federal habeas corpus review solely based on insufficient sworn allegations. The Second Circuit held that, although the Petitioner failed to comply completely with the requisite procedure, the pleading was sufficient to notify the Court of his constitutional claim. Id. at 820. Since the state court had knowledge of the alleged violation, the state court's denial of the motion was found not to be an adequate and independent state ground for preclusion of federal habeas review. Id. Respondent here claims that Petitioner's allegations were not sufficient to notify the state trial court of the alleged violations. (Resp. Mem. of Law, at 2-3) (citing Taus v. Senkowski, 02 civ. 4492 (JBW), 2003 WL 22838764 (E.D.N.Y. Nov. 26, 2003) (holding that a procedural bar precluded federal habeas review of the trial court's decision to set aside the jury verdict without a hearing because the motion did not contain sufficient affidavits from someone with personal knowledge of the facts alleged); People v. Bradley, 685 N.Y.S.2d 357 (App. Div. 4th Dep't 1999) (finding that federal habeas review was precluded because Petitioner's motion was only supported by hearsay)). However, as noted by Judge Fox below, Petitioner's sworn allegations were sufficient to comply with NYCPL § 330.40 requirements and put the state court on notice of Petitioner's constitutional claims. Furthermore, it is within this Court's discretion to grant habeas review in situations where the procedural default is not sufficient to automatically preclude federal review. Accordingly, this Court finds that trial court's denial of the Petitioner's motion was not procedurally barred from federal habeas corpus review.

  Because the state court did not apply a rule that was firmly established and regularly followed, there was no independent and adequate state ground for denying federal habeas review. Therefore, it was not improper for Judge Fox to review the merits of the petition. In any event, Judge Fox found the petition to be meritless, and Respondent does not object to such finding.

  The Court finds no clear error in Judge Fox's review of the merits. Based on the Court's de novo review as to Respondent's objections, as well as review for clear error as to the merits of the petition, the Court adopts the Report and Recommendation in its entirety. Accordingly, the petition for writ of habeas corpus is denied.*fn1

  Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 2002). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealabilty). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962). Magistrate Judge Fox's Report follows.

  SO ORDERED.

  TO: THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE

  I. INTRODUCTION

  Before the Court is Rafael Agosto's ("Agosto") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Petitioner alleges that his confinement by New York state is unlawful because: (1) the trial court's failure to hold an evidentiary hearing before ruling on his motion to set aside the verdict on the ground of juror bias violated his Fourteenth Amendment right to due process and his Sixth Amendment right to a fair trial; and (2) the New York state statute governing a motion to set aside a verdict prior to sentencing is unconstitutional because it provides no remedy for an allegation of juror bias and, thus, deprives criminal defendants like the petitioner of their right to due process in violation of the Fourteenth Amendment.

  The respondent opposes the petitioner's application for habeas corpus relief on the ground that the petitioner's claim concerning the denial of his motion to set aside the verdict is barred from habeas corpus review because the trial court's decision in this matter rested on an adequate and independent state law ground. Alternatively, respondent contends, the petitioner's claims are meritless.

  For the reasons set forth below, I recommend that the petition be denied.

  II. BACKGROUND

  On the evening of June 4, 1993, a shooting incident occurred involving Agosto and Abraham Smith ("Smith"). The incident took place in the courtyard of the Castle Hill housing project in the Bronx and resulted in the death of Smith and a seven-year-old child, Joseph Washington ("Washington"), who was playing in the courtyard at the time, and who was struck by a passing bullet. A second child, Edwin Stuart, Jr. ("Edwin"), who also was playing in the courtyard, sustained a bullet wound to his spine and was permanently paralyzed as a result.

  At the time of the shooting, Edwin resided with his father, Edwin Stuart, Sr., and his mother, Donna Goodall ("Goodall"), at 2225 Lacombe Avenue, Bronx, New York, and petitioner resided at 535 Havermeyer Avenue, Bronx, New York. The courtyard in which the shooting incident took place is between the building located at 2225 Lacombe Avenue and the building located at 535 Havermeyer Avenue.

  The evidence adduced at trial established that on June 4, 1993, shortly before seven o'clock in the evening, Agosto emerged from behind the building at 535 Havermeyer Avenue, displayed a gun and opened fire at Smith. In addition, the evidence showed that Smith, although he returned gunshots, fell to the ground mortally wounded. Furthermore, the evidence established that petitioner, in firing at Smith, killed Washington and seriously wounded Edwin.

  By an indictment filed on June 24, 1993, a Bronx County grand jury charged petitioner with four counts of murder in the second degree (N.Y. Penal Law § 125.25[1], [2]), attempted murder in the second degree (N.Y. Penal Law § 110.00 & 125.25[2]), two counts of assault in the first degree (N.Y. Penal Law § 120.10[1], [3]), criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02[4]), and reckless endangerment in the first degree (N.Y. Penal Law § 120.25). The case proceeded to a trial by jury in New York State Supreme Court, Bronx County. The jury found Agosto guilty of two counts of murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree.

  After his conviction and prior to sentencing, petitioner learned from Gerais Wright ("Wright"), a witness who had testified for the defense, that one of the jurors, Jesse Wilson ("Wilson"), was familiar to him. Wright is a former resident of 535 Havermeyer Avenue in the Castle Hill housing project. After he testified at petitioner's trial, Wright realized that he recognized Wilson because Wilson was the uncle of a young woman, Josephine Wilson ("Josephine"), whom Wright had dated several years earlier. At the time that Wright knew her, Josephine resided with her mother, Antoinette Wilson ("Antoinette"), at 2225 Lacombe Avenue in the Castle Hill housing project. Wright also recalled that Josephine had told him that Goodall, the mother of Edwin, was her godmother.

  On December 13, 1994, petitioner moved, pursuant to New York Criminal Procedure Law ("CPL") § 330.30, to set aside the verdict on the ground of improper conduct by a juror. In his affidavit in support of the motion, the defense attorney averred that Wilson was knowledgeable about the shooting incident in which petitioner participated and the place where it occurred, as well as certain potential witnesses at trial, but that he failed to disclose his knowledge of these matters during voir dire.

  The trial court initially denied petitioner's motion, but subsequently recalled its decision. Thereafter, petitioner submitted an amended motion and an affidavit from Wright in which he described his relationship with the Wilson family, averred that Edwin and the Stuart family were neighbors of the Wilsons, and stated that, after testifying at petitioner's trial, he recognized one of the jurors to be Wilson. Petitioner also submitted a second affidavit from Wright in support of his motion to set aside the verdict. Wright's second affidavit provided additional information concerning the circumstances under which he met Wilson, and also corrected certain statements contained in the first affidavit.*fn2

  In opposition to the motion, the prosecution submitted affidavits from Wilson and Antoinette. Wilson, in his affidavit, stated that his sister, Antoinette, had lived in the Castle Hill housing project until 1991, but that he was not certain which building she had lived in, only that she had lived on one of the lower floors. However, Wilson denied ever having seen Edwin or his father, either before or after petitioner's trial. He stated further that he had seen Edwin and his father only when they were testifying at trial, that he had never discussed petitioner's case with anyone, including his sister, Antoinette, and that he had seen Wright only during the trial. He averred, moreover, that his "verdict in this case was based solely upon the evidence and the testimony presented in the courtroom and on nothing else." Antoinette, in her affidavit, stated that she was Wilson's sister and that she knew Edwin and his parents, but that her relationship was mainly with Edwin's mother, Goodall. She stated further that Wright had dated her daughter, Josephine, that on December 14, 1994, she learned that Wilson had been on jury duty, and that she had not discussed petitioner's shooting incident with her brother until that date. Antoinette stated, moreover, that "[i]n no way did [she] influence or attempt to influence, [her] brother . . . Wilson's verdict."

  Petitioner alleges that, based on the information contained in the affidavits of Wright, Wilson and Antoinette, important facts remained in dispute at the time petitioner made his CPL § 330.30 motion. However, according to petitioner, the trial court "refused to hold an evidentiary hearing to resolve these factual disputes and determine whether . . . Wilson has been able to render an impartial verdict."

  After petitioner made his CPL § 330.30 motion, the trial court ordered that the minutes of the jury voir dire be transcribed and made available to counsel for both parties. Thereafter, on March 15, 1995, a bench conference was held for the purpose of giving counsel for petitioner an opportunity to inform the trial court whether he intended to submit additional documents in support of petitioner's motion. At that conference, the defense attorney stated: "I have reviewed the minutes in total and there is nothing new that I can add to it." The trial judge then asked: "In other words, you find nothing in the minutes to suggest that Mr. Wilson has asked any question to which he even arguably misrepresented some circumstance, correct." The defense attorney replied: "That is correct. I had not found that."

  The defense attorney then went on to say that there was a "potential additional situation concerning a witness . . . [who] had something to do with the incident who may be able to give information indicating first hand that . . . Wilson did in fact socialize with the student to some extent."

  In his memorandum of law in support of his petition for a writ of habeas corpus, petitioner states that "[p]resumably the student referred to [during the bench conference] is . . . Wright, the defense witness who apprised defense of the relationship between the Wilson and Stuart families." Thus, according to petitioner, "the trial court was apprised of additional information regarding . . . Wilson that suggested partiality, but ignored the necessity for a full hearing."

  On March 20, 1995, the trial court denied petitioner's motion to set aside the verdict, finding that "defendant's moving papers do not contain sworn allegations of fact demonstrating improper conduct by a juror, a ground necessary for relief."

  A judgment of conviction was rendered on March 24, 1995, and petitioner was sentenced to concurrent indeterminate terms of 20 years to life imprisonment for the first murder count, 25 years to life imprisonment for the second murder count, 5 to 15 years imprisonment for the assault count, and 5 to 15 years imprisonment for the weapons possession count.

  Agosto appealed from his conviction to the New York State Supreme Court, Appellate Division, First Department, claiming, inter alia, that his rights to due process and an impartial jury were violated by the trial court's failure to conduct an evidentiary hearing at which the issue of juror bias could be fully explored. Petitioner also argued, in the alternative, that sufficient evidence existed on the record to impute bias to Wilson and order a new trial. Petitioner's conviction was unanimously affirmed. See People v. Agosto, 248 A.D.2d 301, 670 N.Y.S.2d 463, 464 (App. Div. 1st Dep't 1998). In affirming the trial court's denial, without a hearing, of petitioner's motion to set aside the verdict on the ground of unreported juror bias, the Appellate Division stated that the "[d]efendant's claimed `web' of family relationships was remote and speculative." Id. at 301, 464. On August, 19, 1998, the New York Court of Appeals denied petitioner's application for leave to appeal. See People v. Agosto, 92 N.Y.2d 892, 680 N.Y.S.2d 56 (1998). The instant application for a writ of habeas corpus followed.

  III. DISCUSSION

  Juror Bias

  The respondent contends that the trial court's dismissal of petitioner's motion to set aside the verdict was based on an adequate and independent state law ground and, therefore, absent a showing of cause and prejudice, which the petitioner has not demonstrated, the claim is barred from federal habeas corpus review. Petitioner maintains that he effectively and substantially complied with the relevant provisions of New York's criminal procedure law and, furthermore, even if he failed to comply with those provisions, the trial court's ruling denying his motion to set aside the verdict did not rest on an adequate and independent state law ground because the state had no legitimate interest in applying the procedural rule at issue under the circumstances.

  A. Adequacy of State Procedural Dismissal

  A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 So. Ct. 2546, 2553-54 (1991). This doctrine applies not only to direct review of state court judgments, but also to federal habeas corpus petitions. See id.; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503-04 (1977). An exception obtains only if the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. In addition, no bar to federal habeas corpus review exists "unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, 109 S.Ct. at 1043.

  In denying petitioner's motion to set aside the verdict on the basis of juror misconduct, the trial court found that petitioner's moving papers failed to meet the requirements of CPL §§ 330.30 and 330.40, because they did not contain sworn allegations of fact demonstrating improper juror conduct. Specifically, the trial court relied upon CPL §§ 330.30(2), 330.40(2)(a) and 330.40(2)(e).

  CPL § 330.30(2) provides as follows:

At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds . . . [t]hat during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict.
  CPL § 330.40 describes the procedure to be followed in making a motion to set aside a verdict based upon, inter alia, juror misconduct:

 

The motion must be in writing and upon reasonable notice to the people. The moving papers must contain sworn allegations, whether by the defendant or by another person or persons, of the occurrence or existence of all facts essential to support the motion. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. CPL § 330.40(2)(a).
  CPL § 330.40 also identifies the circumstances under which a trial court may deny a motion to set aside a verdict without holding an evidentiary hearing. They are: "(i) The moving papers do not allege any ground constituting a legal basis for the motion; or (ii) The moving papers do not contain sworn allegations of all facts essential to support the motion." CPL § 330.40(2)(e).

  The Appellate Division, citing CPL § 330.40(2)(e)(ii), affirmed the trial court's ruling. See Agosto, 248 A.D.2d at 301, 670 N.Y.S.2d at 464. The New York Court of Appeals then denied petitioner leave to appeal the Appellate Division's decision without issuing an opinion, thereby creating the presumption that it adopted the judgment on the same grounds. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594 (1991). The respondent contends that in light of the state trial court's reliance on a procedural state law ground, and the subsequent findings of the state appellate courts, Agosto's claim concerning the denial of his CPL § 330.30 motion is procedurally barred.

  In most cases, a state procedural bar constitutes an adequate and independent state law ground that is sufficient to preclude federal habeas corpus review. See Rosa v. Herbert, 277 F. Supp.2d 342, 351 (S.D.N.Y. 2003). "In exceptional cases, however, an `exorbitant application of a generally sound rule' may affect the adequacy and independence of the state procedural ground, and allow the United States district court to consider the merits of a constitutional claim." Id. (quoting Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 885 [2002]); see also Bell v. Poole, No. 00 Civ. 5214, 2003 WL 21244625, at *9 (E.D.N.Y. Apr. 10, 2003) ("The mere invocation of a procedural bar does not . . . automatically preclude review in this court.").

  The Second Circuit Court of Appeals has stated that a procedural bar is adequate to support a state court judgment only if it is based on a rule that is "firmly established and regularly followed" by the state in question. Cotto v. Herbert, 331 F.3d 217, 239-41 (2d Cir. 2003); see also Garcia v. Portuondo, No. 03 Civ. 2458, 2003 WL 22510390, at *4-5 (S.D.N.Y. Nov. 4, 2003). Thus, the parties to an action must have notice of the state procedural rule and the rule must be applied consistently in similar circumstances. See Bell, 2003 WL 21244625, at *9. Furthermore, a state procedural rule must serve a legitimate state interest. See Rosa, 277 F. Supp.2d at 351; Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986). However, "the adequacy of a state procedural bar is determined with reference to the particular application of the rule; it is not enough that the rule generally serves a legitimate state interest." Cotto, 331 F.3d at 240 (quoting Lee, 534 U.S. at 387, 122 S.Ct. at 891) (internal quotation marks omitted). Therefore, an inquiry into whether the application of a procedural rule is "firmly established and regularly followed" in the specific circumstances presented in a case includes "an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Id.

  In this case, it does not appear that the state trial court's decision to deny petitioner's CPL § 330.30 motion without holding a hearing is either firmly established or regularly followed by the New York courts. Rather, where, as here, the parties have presented conflicting factual allegations, it is customary to hold an evidentiary hearing prior to making a determination on a motion to set aside a verdict. Thus, in People v. Tokarski, 178 A.D.2d 961, 578 N.Y.S.2d 751 (App. Div. 4th Dep't 1991), the Appellate Division found that the trial court had erred by denying summarily defendant's motion to set aside the verdict on the ground of juror misconduct where, among other things, the defendant submitted an affidavit from his sister in which she averred that she was acquainted with one of the jurors and the prosecution presented the sworn statement of the juror denying that he knew the defendant's sister. The court stated: "[w]hen confronted with conflicting factual averments, the court must hold a hearing to resolve the issue." Id. at 961, 751. Similarly, in People v. Paulick, 206 A.D.2d 895, 896, 615 N.Y.S.2d 159 (App. Div. 4th Dep't 1994), the court found that it was error to deny the defendant's motion to set aside the verdict without a hearing, explaining that "[w]hen confronted with evidence suggesting possible juror misconduct, it is the better practice for the trial court to hold a hearing rather than to determine the issue on affidavits of counsel."

  In People v. Rodriguez, 100 N.Y.2d 30, 760 N.Y.S.2d 74 (2003), the New York Court of Appeals affirmed the trial court's denial of the defendant's motion to set aside the verdict based on juror misconduct, but noted that the trial court had determined to deny the motion only after holding a hearing. In that case, a juror had intentionally concealed, during voir dire, his friendship with a county prosecutor who was not involved in the prosecution of the defendant's case. The trial court held a hearing at which testimony was taken from the juror and the county prosecutor. The court stated: "Based on this testimony, the trial court determined that although [the juror's] failure to disclose the friendship constituted misconduct, it was harmless and did not result in substantial prejudice to defendant." Id. at 36, 78. See also People v. Mercado, 290 A.D.2d 237, 735 N.Y.S.2d 125, 126 (App. Div.1st Dep't 2002) ("[D]efendant is entitled to an evidentiary hearing at which he may attempt to establish that the juror's failure to disclose his conviction resulted in actual bias."); People v. Surdis, 275 A.D.2d 553, 556, 711 N.Y.S.2d 875, 878-879 (App. Div. 3rd Dep't 2000) (affirming the trial court's denial of defendant's motion to set aside the verdict where, after holding a hearing in the matter, the trial court found that defendant failed to meet his burden of proving juror misconduct by a preponderance of the evidence).

  In the case at bar, the petitioner submitted an affidavit from Wright, a defense witness, in which Wright averred that, on several occasions, he had met the juror, Wilson, at the home of Wilson's sister, Antoinette. In the affidavit, Wright also averred that the Wilson family, especially Antoinette, were neighbors and close friends of the Stuart family, including Edwin, a victim of the shooting in which petitioner was involved, and Edwin's mother and father. In addition, Wright alleged that Josephine, Wilson's niece and Wright's girlfriend at the time, used to refer to Edwin's mother as her godmother and to Edwin and his brothers as "her little godbrothers." In opposition to petitioner's motion, the prosecution presented, inter alia, the affidavit of Wilson in which he denied that he knew Edwin or his family and also denied having seen Wright either before or after petitioner's trial. In light of the parties' contradictory factual allegations, the state court's decision to resolve the disputed issues without a hearing does not appear to comport with the practice of New York courts in similar cases.

  Moreover, the application of the state procedural rule in this case does not appear to have served a substantial or legitimate state interest. In Smart, the Second Circuit Court of Appeals, in circumstances similar to those presented here, found that a habeas corpus petitioner's failure to comply with a provision of New York's criminal procedure law, CPL § 440.30, did not constitute a procedural default such that, in the absence of a showing of cause or prejudice, the petitioner's claim was barred from federal habeas corpus review. In that case, the petitioner's motion, made pursuant to CPL § 440.10, to withdraw a plea of guilty, was denied by the trial court, without an evidentiary hearing, because the motion papers did not contain sworn allegations concerning all the essential facts necessary to support the petitioner's legal claim, as required by CPL § 440.30.*fn3 See Smart, 787 F.2d at 816. Petitioner then raised his claim in a petition for a writ of habeas corpus filed in the United States district court. The district court ruled that it could not review the claim on the merits because it was procedurally barred and the petitioner had not made the requisite showing of cause and prejudice.

  The Second Circuit reversed the district court's ruling, finding that the petitioner's failure to submit the affidavit required by CPL § 440.30 was not, in itself, an independent and adequate state ground sufficient to foreclose federal review of an alleged constitutional violation. The court stated: "Smart's pleading, while not in compliance with state procedure, notified the court as to his constitutional claim and gave the state court a clear opportunity to address his claim or allow him to replead." Smart, 787 F.2d at 820. The court found that, under the circumstances, the state had no substantial or legitimate interest in denying the petitioner an opportunity to replead his motion. See id.

  The requirements set forth in CPL § 330.40, the provision at issue here, are nearly identical to those set forth in CPL § 440.30, the provision at issue in Smart. Both provisions require that the relevant motion be in writing and upon reasonable notice to the people, and that the moving papers contain sworn allegations of the existence or occurrence of facts needed to support the motion, whether by the defendant or by another person or persons. In this case, as in Smart, the allegations presented in support of the motion, including Wright's and those of defense counsel, "notified the court as to [petitioner's] constitutional claim and gave the state court a clear opportunity to address his claim or allow him to replead." Smart, 787 F.2d at 820. Thus, it does not appear that the state in this instance had a legitimate or substantial interest in denying petitioner's motion to set aside the verdict without a hearing on the grounds of unreported juror bias. As in Smart, the legitimate interest in this regard, that is, the interest in generating truthful allegations in such motions, was not served by denying petitioner an opportunity to demonstrate actual bias through an evidentiary hearing. See id.; see also Rosa, 277 F. Supp.2d at 351-54 (applying Smart in comparable circumstances and finding that the state court's dismissal of petitioner's § 440.10 motion did not represent an adequate and independent state ground foreclosing federal habeas corpus review).

  Furthermore, in this case, petitioner's motion papers substantially and effectively complied with the requirements set forth in CPL § 330.40 in that, among other things, they included as an attachment sworn allegations by Wright of the "existence or occurrence" of facts supporting the motion. Under New York law, a defendant's motion made pursuant to CPL § 330.30 is deemed to contain "sworn allegations of all facts essential to support the motion" where the affiant swears as to the juror misconduct he or she allegedly has observed or heard. See People v. Smith, 187 A.D.2d 365, 368-369, 590 N.Y.S.2d 191, 193-194 (App. Div. 1st Dep't 1992). Such allegations are neither hearsay allegations nor speculation. See id. Moreover, while an affidavit or affirmation of counsel containing such allegations might not be sufficient to establish that a juror or jurors actually had engaged in misconduct, or that any juror had been impermissibly biased by any alleged misconduct, nevertheless, the motion papers in such a case are sufficient to comply with CPL § 330.40(2)(e)(ii). See id.

  In this case, the defendant presented the sworn allegations of a defense witness about what he had observed concerning the purported relationship of a juror to a victim of the crime for which the petitioner was convicted. The allegations, while not sufficient to establish misconduct or impermissible bias on the juror's part, were neither hearsay nor, as the Appellate Division concluded, "remote and speculative." The petitioner, therefore, substantially and effectively complied with the requirements set forth in CPL § 330.40.

  Under the circumstances, the Court finds that the trial court's denial, without an evidentiary hearing, of petitioner's motion to set aside the verdict on the ground of juror bias is inadequate to preclude federal habeas corpus review of this claim. See Cotto, 331 F.3d at 247; Garcia, 2003 WL 22510390, at *5; Rosa, 277 F. Supp.2d at 354. Accordingly, the Court must address the merits of petitioner's claim that the denial of his motion to set aside the verdict violated his constitutional rights to due process and a fair trial.

  B. The Merits of Petitioner's Claim

  The Supreme Court has held that a defendant has a right to "a fair trial by a panel of impartial, `indifferent' jurors." See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642 (1961). Where there is private communication, contact or tampering with a juror during a trial, the district court should hold a hearing to determine whether such contact with a juror was harmful to the defendant. See Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451-52 (1954); see also Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940 (1982). However, courts are reluctant to "haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences." United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (quoting United States v. Sun Myung Moon, 718 F.2d 1210, 1234 [2d Cir. 1983]). Hence, the need for a post-verdict evidentiary hearing regarding a juror's impartiality "arises only when the party alleging misconduct makes an adequate showing of extrinsic influence to overcome the presumption of jury impartiality." Id.; see also Perez v. Manhattan Jeep Eagle, No. 92 Civ. 9521, 1997 WL 403458, at *5 (S.D.N.Y. July 17, 1997) ("The standard for granting a post-trial jury hearing is when reasonable grounds for investigation exist."). Moreover, the trial court has broad discretion to determine whether an evidentiary hearing is necessary, and that determination is reviewable only for abuse of discretion. See Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994).

  In addition, in McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845 (1984), the Supreme Court established a standard for determining when a new trial should be granted based on a juror's dishonest answer to a question on voir dire. The Court held that a petitioner "must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556, 850.

  Furthermore, in a case such as this, where a state court has adjudicated the merits of the claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) 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 proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). In particular, a state trial court's conclusion that a juror is capable of rendering an impartial verdict is a factual determination that may "be overturned only for manifest error." Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2889 (1984) (citation omitted) (internal quotation marks omitted).

  In this case, the petitioner has not made an adequate showing of extrinsic influence to overcome the presumption of juror impartiality. In his affidavit submitted in opposition to petitioner's motion to set aside the verdict, Wilson denied ever having seen Edwin, the shooting victim, or his father, except when they appeared at the trial. Wilson also averred that he had never discussed petitioner's case with anyone, including his sister, and that he had seen Wright only during the trial. Wright's statements to the contrary, for example, that Wilson had close ties to the Stuart family and that he had previously met Wilson at his sister's home, do not constitute evidence sufficient to demonstrate juror bias, misconduct or extraneous influences, such that an evidentiary hearing in the district court is warranted in this case. Even if Wilson did come into contact with the Stuart family, as Wright alleged, his connection with that family was not intimate, but existed only through his sister, and according to Antoinette, "[her] relationship with her brother is not one of daily or weekly telephone contact." Furthermore, Antoinette moved away from the Castle Hill housing project, where she had known the Stuart family, in 1991, and in her affidavit she stated that she had not seen Edwin's mother for three years. Thus, petitioner has not shown that reasonable grounds exist for granting his request for a hearing in the district court to probe for potential juror bias.

  In addition, as noted above, an investigation into juror bias is within the broad discretion of the trial court. Here, there is no evidence of abuse of that discretion. Although the state trial court did not hold an evidentiary hearing in connection with petitioner's motion to set aside the verdict, it conducted a bench conference at which the transcript of the voir dire proceeding was reviewed. At that time, defense counsel was asked whether he discerned any impropriety in Wilson's conduct during voir dire; in response, defense counsel stated that he did not find any such impropriety. The trial court then made its determination to deny petitioner's motion to set aside the verdict on the basis of that inquiry and the affidavits submitted in support of, and opposition to, the motion. While it is true that, as discussed infra, the trial court's decision not to hold an evidentiary hearing prior to making that determination appeared not to comport with New York state practice in such cases, nevertheless, the trial court's determination that there was an insufficient showing to warrant setting aside the verdict on the ground of juror bias is supported by the record. In any event, even assuming that the trial court erred in failing to hold a hearing concerning the allegations made by petitioner in his motion, petitioner has failed to demonstrate that such action caused him to suffer prejudice, and without proof of actual prejudice, any possible error on the part of the trial court was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1721-22 (1993).

  Moreover, petitioner has not demonstrated that he was deprived of his right to an impartial jury by Wilson's failure to disclose information during voir dire. In United States v. Shaoul, 41 F.3d 811, 815-16 (2d Cir. 1994), the Second Circuit Court of Appeals, applying the McDonough test, explained that juror dishonesty was the main focus of the first prong of that test. Hence, the court stated, a good faith failure to respond to a question, even if it were mistaken or resulted in a false answer, would not form a basis for a new trial. Rather, in order to satisfy this part of the McDonough test, a petitioner must establish that a juror deliberately gave a false answer. Id.

  Petitioner claims that the prospective jurors' familiarity with the Castle Hill housing project was a critical issue at trial and that Wilson's failure, during voir dire, to reveal the fact that his sister and niece had formerly lived at that location and were friendly with the family of one of the victims, raised a serious question regarding Wilson's impartiality as a juror. Moreover, petitioner maintains, because Wilson failed to disclose his relationship to the Stuart family, defense counsel was deprived of an opportunity to strike Wilson from the jury for cause.

  The relevant portions of the voir dire proceeding involving Wilson are as follows:

[ASSISTANT DISTRICT ATTORNEY ("ADA")]: Miss Washington, Mr. Nieves, and Mr. Wilson, do you know anybody that resides at 535 Havemeyer?
(Whereupon the prospective jurors respond no.)
ADA: Is there anyone on this jury that knows anybody, doesn't have to be a close friend, but knows anyone that lives at 535 Havemeyer[?]
(All the jurors shook their head[s] no.)
V. Tr. 469-70.*fn4 [ATTORNEY FOR THE DEFENDANT]: Anyone here familiar with the Castle Hill projects, that area, that location?
  (No verbal response.)

  . . . .

  [ATTORNEY FOR THE DEFENDANT]: Mr. Wilson?

 

PROSPECTIVE JUROR: I went to Stevenson High School. Graduated there.
V. Tr. 482-83.

  As these excerpts from the transcript of the voir dire proceeding make clear, although Wilson, in responding to the questions posed to him, made no mention of his sister's previous residence at the Castle Hill housing project or her relationship to the Stuart family, he does not appear to have failed to answer honestly. Wilson's response indicating that he did not know anyone who lived at 535 Havermeyer was truthful: Wilson's sister and niece had lived at 2225 Lacombe Avenue. Moreover, they had moved from that location in 1991, approximately two years before the shooting incident in question and approximately three years before petitioner's trial. Additionally, Wilson's answer to the question whether he was familiar with the Castle Hill housing project area, namely, that he had attended and graduated from a high school located in that area, has not been alleged to be a false answer. Furthermore, the record in this case does not support the conclusion that Wilson's failure to disclose such connections as he may have had with the location of the shooting or the family of one of the victims amounted to an attempt deliberately to mislead the court or that Wilson spoke falsely in his affidavit when he averred that his verdict "was based solely upon the evidence and testimony presented in the courtroom and on nothing else." Since petitioner has not sustained his burden under the first prong of the McDonough test, the Court need not consider whether there is evidence showing that a "correct" answer on Wilson's part to the questions posed to him during voir dire would have provided a valid basis for a challenge for cause. The Court finds that the McDonough standard has not been satisfied in this case.

  Furthermore, the petitioner has not made any showing to establish that the decision by the trial court, and by extension the Appellate Division, that petitioner's right to a fair trial by an impartial jury was not violated was: (i) contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court, or (ii) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. As discussed above, the trial court, after a bench conference in which the minutes of the voir dire proceeding were reviewed and upon consideration of affidavits submitted by the parties, determined that petitioner had failed to establish improper conduct by a juror. In this case, petitioner has not presented anything more to the Court from which it might find that petitioner's constitutional rights to due process and a fair trial by a panel of impartial jurors were violated. Moreover, petitioner has failed to present to the Court clear and convincing evidence to rebut the presumption of correctness that attached to the state courts' determination to deny petitioner's motion to set aside the verdict on the ground of juror bias or to show that the trial court's conclusion was "manifest error." Therefore, under the circumstances, Agosto's claim that the trial court's determination to deny his motion to set aside the verdict was a violation of his constitutional rights should be denied.

  Constitutionality of State Statute Petitioner also claims that the New York state statute governing a motion to set aside a verdict prior to sentencing is unconstitutional because it provides no remedy for an allegation of juror bias and, thus, deprives criminal defendants of their right to due process in violation of the Fourteenth Amendment. Having determined that petitioner is not entitled to the relief he seeks by way of his application for a writ of habeas corpus, the Court finds that an analysis of the constitutionality of the state statute at issue here is not warranted and would not be appropriate under the circumstances.

  IV. RECOMMENDATION

  For the reasons set forth above, the instant application for a writ of habeas corpus should be denied.

  V. 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 Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 426, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 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).


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