United States District Court, S.D. New York
January 14, 2005.
DELROY KEMP, Petitioner,
JAMES CONWAY, Superintendent, Respondent.
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
Delroy Kemp brings this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging his February 17, 1999 conviction for
three counts of Robbery in the First Degree.*fn1 He argues that: (1) the
indictment voted by the grand jury was "fatally defective"; (2) New York
state courts lacked jurisdiction to prosecute him because he was
extradited from New Jersey to New York involuntarily and without a
warrant; (3) identification testimony admitted at trial was inaccurate
and derived from impermissibly suggestive procedures; (4) identification
testimony was improperly admitted during grand jury proceedings; (5) the trial court's failure to order a hearing regarding his competency to
stand trial violated his due process rights; (6) he received ineffective
assistance of counsel; (7) the verdict sheet was defective in that it
contained the names of the robbery victims, the items stolen, and the
choices guilty and not guilty, and did not contain a charge of "larceny
155"; (8) the jury selection process violated state law; and (9) the
prosecution's exercise of a peremptory challenge after the defense had
exercised its challenges violated his Fourteenth Amendment due process
rights. The respondent argues that the petitioner's claims fail on the
merits, and that, in any event, habeas review is unavailable because the
claims are unexhausted and procedurally barred, are not cognizable
federal claims, or are not based on "clearly established Federal law."*fn2
For the reasons discussed below, I recommend that the petition be
On November 10, 1997, Delroy Kemp robbed a small card and gift shop in
Manhattan at gun point. (Tr. at 34-35, 42, 55-60, 72).*fn3 The victims
of the robbery were the store's co-owners, Lois Marsilio and Susan
Zappone, and two of the store's customers, Carol Jacobanis and Kelly Gitter. Five days later, as Mr. Kemp was attempting
to use Ms. Gitter's credit cards at a New Jersey mall, he was arrested.
(Tr. at 213-16). He was subsequently extradited to New York and arraigned
on charges arising from the robbery. (Pet. Memo.; Respondent's Memorandum
of Law in Opposition to Petition for a Writ of Habeas Corpus ("Resp.
Memo.") at 25).
Following his arraignment, the petitioner participated in a lineup
conducted by Detective Joseph Scalogna. (Tr. at 276, 286). According to
Detective Scalogna, he assembled the lineup by recruiting individuals
physically similar to the petitioner from a nearby men's shelter. (Tr. at
276-77). The witnesses to the lineup were Ms. Marsilio, Ms. Zappone, and
Ms. Jabobanis; Ms. Gitter was unable to attend because she was working.
(Tr. 285-87). Only Ms. Marsilio and Ms. Zappone identified the
petitioner. (Tr. at 69-71, 302). Notably, Ms. Zappone had selected the
petitioner's picture prior to the lineup from an array of photographs (the
"photo array"). (Tr. at 343-47).
The petitioner was indicted by a grand jury on September 11, 1998.
(Indictment No. 7057-98; Resp. Memo. at 2). Several months after the
indictment, defense counsel, Kenneth Salaway, requested a competency
examination pursuant to New York Criminal Procedure Law ("CPL") §
730.30. (Affirmation of Michael Mays dated July 23, 1998 ("Mays Aff."),
attached as Exh. S to the Declaration of Danielle Attias dated March 31,
2004 ("Attias Decl."), ¶¶ 3, 6). The basis for the request was that Mr. Kemp was mentally ill and unable
to communicate with his attorney regarding the nature of the criminal
proceedings. (Mays Aff., ¶ 6). Justice Charles Solomon granted the
request on July 13, 1998. (Attias Decl., Exh. T). Before the examination
was conducted, however, Mr. Kemp obtained a new attorney, Michael Mays,
who withdrew the request for a competency examination. In his affidavit
in support of the motion to withdraw the application, Mr. Mays explained
that he had met with the petitioner on or about July 17, 1998 for over
two hours, and that during that meeting the petitioner was "able to
understand the nature of the charges pending against him" and "able to
supply information . . . crucial to the defense of his case." (Mays
Aff., ¶¶ 7-9). Justice Solomon thereafter vacated his prior order. (Attias
Decl., Exh. T).
The petitioner's trial was held before Justice Bonnie Wittner in New
York State Supreme Court, New York County, beginning on November 5,
1998. During the second phase of the first round of jury selection, the
following irregularity occurred: after the defense had exercised its
peremptory challenges during that round, the prosecution was permitted to
exercise one of its challenges. In an attempt to remedy any unfairness,
Judge Wittner offered to allow the defense to redo its challenges.
However, defense counsel declined the judge's offer. (V. at 148-50).*fn4 At the conclusion of the trial, Mr. Kemp was found guilty on all three
counts of Robbery in the First Degree in violation of New York Penal Law
§ 160.15(4). He was subsequently sentenced, as a second violent felony
offender, to three terms of 20 years, to be served concurrently. (S. at
533).*fn5 Mr. Kemp appealed his conviction and sentence to the Appellate
Division, First Department, arguing that: (1) the prosecutor's exercise
of a peremptory challenge after the defense had exercised its challenges
violated his rights under CPL § 270.15,*fn6 as well as under the state
and federal constitutions; (2) the trial judge improperly admitted
evidence regarding the petitioner's arrest in New Jersey in violation of
his constitutional rights; and (3) the petitioners' sentence was
excessive and should be reduced in light of his mental illness. (Brief
for Defendant-Appellant on Direct Appeal ("Def. App. Br."), attached as
Exh. A to Attias Decl.). On February 7, 2002, the Appellate Division
affirmed the petitioner's conviction and sentence. People v. Kemp,
291 A.D.2d 236, 738 N.Y.S.2d 25 (1st Dep't 2002). Specifically, it ruled
that the petitioner waived his jury selection claim when he declined to accept the
court's offer of a "suitable remedy" and that "[i]n any event, defendant
was not prejudiced by the technical irregularity that occurred." Id. at
236. The Court of Appeals denied leave to appeal on May 29, 2002. People
v. Kemp, 98 N.Y.2d 652, 745 N.Y.S.2d 511 (2002).
In the meantime, Mr. Kemp filed a motion on July 26, 2000, seeking to
vacate the judgment of conviction pursuant to CPL § 440.10 (the "440
motion"). (Notion of Motion to Vacate Judgment Pursuant to CPL § 440.10
& Affidavit in Support of CPL § 440.10, attached as Exh. F to Attias
Decl.). In that motion, he stated numerous reasons why his conviction
should be vacated, arguing that: (1) the indictment was defective because
it had been amended improperly and contained errors and omissions; (2)
the prosecution acted improperly in its initial presentation of evidence
to the grand jury; (3) the admission of identification testimony derived
from the lineups and photo array was improper; (4) the court should have
ordered a competency hearing; (5) the trial court lacked jurisdiction to
prosecute him because his extradition from New Jersey to New York was
improper; and (6) he had been provided with ineffective assistance of
counsel. The New York County District Attorney's office opposed the
motion on the grounds that none of the arguments was properly the subject
of a 440 motion, and that in any event the arguments failed on the
merits. (Affirmation in Response to the Defendant's Motion to Vacate, attached as Exh. G to
Attias Decl.). Justice Wittner denied the motion, "based on the People's
response," on February 9, 2001. (Attias Decl., Exh H). The petitioner
sought leave to appeal that decision to the Appellate Division and then
to the Court of Appeals. The Appellate Division denied both requests on
May 8, 2001 and June 28, 2001, respectively. (Attias Decl., Exhs. K,
Mr. Kemp then filed a petition for a writ of habeas corpus to this
Court. In an order dated July 23, 2003, the Honorable Michael B.
Mukasey, Chief Judge, instructed the petitioner to amend the petition to
include information regarding the exhaustion of his claims. As directed
by Chief Judge Mukasey, Mr. Kemp then submitted the instant petition.
Discussion*fn8 A. Defective Indictment
The petitioner alleges that his indictment was "fatally defective," in
that it was amended improperly and contained errors and omissions, and
because two members of the grand jury were absent for part of the proceedings. (440 motion at 9-11). This claim must
fail because it does not allege a federal constitutional violation and,
as a result, habeas review is unavailable.
"[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). The defects in the indictment alleged in this case
do not violate federal law or the federal constitution. There is no
federal constitutional right to a grand jury indictment in state court
proceedings; although the Fifth Amendment guarantees criminal defendants
the right to a grand jury indictment, that guarantee does not apply to
the states through the Fourteenth Amendment. See LanFranco v. Murray,
313 F.3d 112, 118 (2d Cir. 2002).
The petitioner next alleges that the trial court violated his due
process rights by failing to order a competency examination. Mr. Kemp
maintains that the judge should have ordered a psychological evaluation
sua sponte pursuant to CPL § 730.30 based on his irrational behavior
during trial and his well-documented history of mental illness. The
respondent did not address this claim. Nevertheless, it fails because the
record does not indicate that the trial court had "reasonable grounds" to
order a competency evaluation.
It is well established that "the criminal trial of an incompetent
defendant violates due process." Cooper v. Oklahoma, 517 U.S. 348, 354
(1996). The standard for incompetency is whether a defendant has the
"`sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding . . . [and] a rational as well as a
factual understanding of the proceedings against him.'" Id. (quoting
Dusky v. United States, 362 U.S. 402, 402 (1960)). Where there is
"reasonable ground" for believing that a defendant fails to meet this
standard, the trial court must hold a competency hearing. Silverstein v.
Henderson, 706 F.2d 361, 369 (2d Cir. 1983). The failure to hold such a
hearing where warranted, even if the defendant has not requested it, is
grounds for reversing a conviction in a federal habeas corpus
proceeding. Id. Factors relevant to whether a court had a basis to inquire
as to a criminal defendant's competence to stand trial include the
"defendant's demeanor at trial, medical opinions, and the opinion of
defense counsel." Johnson v. Keane, 974 F. Supp. 225, 231 (S.D.N.Y.
1997) (citing Drope v. Missouri, 420 U.S. 162, 180 (1975)). The trial
judge's determination that the defendant was competent is also relevant
and entitled to deference. 28 U.S.C. § 2254(e)(1); see also Demosthenes
v. Baal, 495 U.S. 731, 735 (1990) (citing Maggio v. Fulford, 462 U.S. 111,
117 (1983)). In this case, the record does not reveal "reasonable grounds" for the
trial court to have ordered a competency examination. Although there is
no doubt that Mr. Kemp suffers some psychological impairment, "some
degree of mental illness cannot be equated with incompetence to stand
trial." United States v. Vamos, 797 F.2d 1146, 1150-51 (2d Cir. 1986)
(citation omitted); see also Rollins v. Leonardo, 733 F. Supp. 763, 768
(S.D.N.Y. 1990). And there is no indication that the petitioner's
demeanor, however odd,*fn9 resulted in an inability to communicate with
his attorney or participate meaningfully in his defense. In fact, both
Mr. Kemp's trial counsel, Mr. Mays, and Justice Wittner determined at the
trial's outset that the petitioner was competent to proceed, and neither
revised that evaluation during the trial. (Tr. at 532; Mays Aff.).
Justice Wittner's determination is entitled to deference pursuant to
28 U.S.C. § 2254(e), and Mr. Mays' opinion is bolstered by the fact that
it is based on precisely the criteria by which competency is measured:
the criminal defendant's ability to understand the nature of the
proceedings against him and to assist in his defense. (Mays Aff.).*fn10
C. Jury Selection
The petitioner alleges that he was denied his rights under the due
process clause of the Fourteenth Amendment by the prosecutor's exercise of
a peremptory challenge after defense counsel had exercised his peremptory
challenges in the same round. (Def. App. Br. at 15; Pet. Memo.). The
respondent argues that "clearly established Federal law, as determined by
the Supreme Court of the United States" does not recognize a claim
regarding the order in which peremptory challenges are exercised, and
that, in any event, any deviation did not prejudice the petitioner.
(Resp. Memo. at 45-46).
Although it has long been recognized that peremptory challenges are not
constitutionally required, Ross v. Oklahoma, 487 U.S. 81, 88 (1988);
accord United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000),
"clearly established Federal law" would almost certainly support a due
process claim regarding the improper exercise of peremptory challenges
where the violation was so egregious that it compromised the defendant's right to a fair trial. See
United States v. Harbin, 250 F.3d 532 (7th Cir. 2001) (recognizing a due
process violation where the prosecution alone was allowed to exercise a
peremptory challenge to eliminate a juror mid-trial). Nevertheless, it is
unnecessary to resolve that issue here, because Mr. Kemp's claim clearly
fails on the merits, as he has offered no evidence of prejudice.
The petitioner also argues that the jury selection process violated
state law because between 18 and 23 potential jurors were seated in the
jury box while nearly 60 others remained in the courtroom. However, a
federal court in a habeas corpus action may not review alleged violations
of state law. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); Dunnigan v. Keane, 137 F.3d 117, 125 (1998).
D. Identification Evidence
The petitioner asserts that identification testimony admitted at trial
was derived from impermissibly suggestive procedures and should have been
suppressed. He maintains specifically that he was dressed differently
from others in the lineup, that Officer Scalogna instructed him during
the lineup to expose his gold rimmed teeth, and that witnesses were shown
single photographs of the petitioner prior to viewing him in the lineup.
(Pet. Memo.; Resp. Memo. at 26-32). These claims fail because all but one
are unexhausted and they are all procedurally barred. Prior to seeking federal habeas corpus relief a state inmate must first
exhaust all available state remedies. Picard v. Connor, 404 U.S. 270
(1971); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir.
1982). This means that before filing a habeas petition, the inmate must
have allowed the state courts a fair opportunity to consider his federal
claims. Picard, 404 U.S. at 275; Daye, 696 F.2d at 190. A claim has been
fairly presented to a state court when that court has been apprised of
both the factual and legal premises of the claim. "Specifically, [the
petitioner] must have set forth in state court all of the essential
factual allegations asserted in his federal petition; if material factual
allegations were omitted, the state court has not had a fair opportunity
to rule on the claim." Daye, 696 F.2d at 191 (citations omitted).
Similarly, "the petitioner must have placed before the state court
essentially the same legal doctrine he asserts in his federal petition."
Id. at 192.
In the state courts Mr. Kemp raised only one of the arguments regarding
identification evidence now asserted in his petition. He stated in his
440 motion that Officer Scalogna had shown Ms. Zappone his photograph
before she viewed him in the lineup, and that the lineup therefore
violated his constitutional rights. That claim is exhausted,
notwithstanding the petitioner's failure to refer specifically to the
United States Constitution or to cite to any case whatsoever. A
petitioner need not cite "book and verse on the federal constitution" to alert a state court to the federal nature
of a legal claim; it is sufficient that the legal claims are
substantially equivalent. Picard, 404 U.S. at 277-78 (citations
omitted); Daye, 696 F.2d at 192 (citations omitted). Without explicitly
citing the Constitution, the federal nature of a state defendant's claim
may be demonstrated by:
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact
situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of
a pattern of facts that is well within the mainstream
of constitutional litigation.
Daye, 696 F.2d at 194.
The suggestive identification claim raised by Mr. Kemp in his 440
motion should have alerted the state courts to a potential violation of
his due process rights as guaranteed by the Fourteenth Amendment to the
United States Constitution. See Neil v. Biggers, 409 U.S. 188, 198 (1972)
(possibility of misidentification implicates due process rights); Wray v.
Johnson, 202 F.3d 515, 524 (2d Cir. 2000) (same). Thus, Mr. Kemp
exhausted this claim even if he failed to articulate it in specifically
Yet, habeas review is nevertheless unavailable because the New York
State Supreme Court denial of the claim "based on the People's response,"
i.e., that it was not the proper subject of a 440 motion, constituted an
independent and adequate state grounds for denying the claim, therefore barring review. See Hayes v. Coombe,
142 F.3d 517, 518 (2d Cir. 1998) (per curiam) (citing Coleman v.
Thompson, 501 U.S. 722, 735 (1991)) (holding that an independent and
adequate basis for rejecting a federal claim will bar a federal court
from reviewing the claim in a habeas corpus proceeding).
As for the claims that Mr. Kemp failed to raise either on direct appeal
or in his 440 motion, they are clearly unexhausted, and he is barred from
returning to state court to exhaust them. This is because New York law
provides only one opportunity for direct review. N.Y. Rules of Court,
Court of Appeals § 500.10(a); see Spence v. Superintendent, Great Meadow
Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). A federal habeas
court is precluded from reviewing a defaulted claim on the merits, unless
the petitioner can show cause for the default and resulting prejudice, or
"demonstrate that failure to consider the federal claim will result in a
`fundamental miscarriage of justice,' or, in other words, an unjust
incarceration." Spence, 219 F.3d at 170 (quoting Coleman v. Thompson,
501 U.S. 722, 750 (1991)); see also Gray v. Netherland, 518 U.S. 152, 162
(1996); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). The
petitioner has not suggested any cause for the failure to present these
arguments on direct appeal, nor has he demonstrated prejudice resulting
therefrom. In addition, he has not shown that manifest injustice will
result if these grounds are not considered. Accordingly, all of Mr.
Kemp's arguments regarding suggestive identification procedures are barred and
may not be reviewed on the merits.*fn11
E. Warrantless Extradition
The petitioner alleges that he was extradited from New Jersey to New
York involuntarily and without a warrant, and that the New York court
therefore lacked jurisdiction to hear his case. (Pet. Memo.). He does not
argue that his federal constitutional rights were violated, nor do the
facts he presents, even assuming that they were true, support such a
Under the Supreme Court's Ker-Frisbee doctrine, a court's authority to
prosecute an individual for a crime is generally not impaired by the
manner in which the defendant comes before the court, even where that
individual has been brought within the court's jurisdiction by force. Gil
v. Mazzuca, No. 03 Civ. 3316, 2004 WL 389103, at *6 (S.D.N.Y. March 3,
2003) (quoting Frisbie v. Collins, 342 U.S. 519, 522 (1952)). Although an
exception to the Ker-Frisbee doctrine has been recognized where a defendant asserts
"conduct of the most outrageous and reprehensible kind by government
agents," Id. at 6, that is not the case here where the defendant has not
alleged any abuse at all. Accordingly, because only federal claims may be
reviewed in habeas corpus, and the petitioner has not presented a viable
federal claim, this claim must be denied.
F. Ineffective Assistance of Counsel
The petitioner alleges a range of ways in which he was deprived of
effective assistance of counsel. (Pet. Memo.; Resp. Memo. at 32). The
respondent argues that these claims are unexhausted because the
petitioner failed to raise them "in any state court." (Resp. Memo. at
The petitioner did in fact state in his 440 motion that his conviction
should be vacated because of ineffective assistance of counsel. (Notice
of Motion to Vacate Judgment, Attias Decl., Exh. F). Nevertheless,
because he failed to offer any facts in support of his ineffective
assistance of counsel claims, the state court did not have a fair
opportunity to rule on them and they are unexhausted. See Daye,
696 F.2d at 192. And under the doctrine of procedural default discussed
above, Mr. Kemp may not return to state court to exhaust his ineffective
assistance of counsel claims. New York law provides a means to
collaterally challenge a judgment that is in violation of a defendant's
constitutional rights. CPL § 440.10(1)(h). But the petitioner has already brought a 440
motion, and is barred from bringing another pursuant to CPL §
440.10(c)(3). The petitioner is also precluded from bringing the claim on
direct appeal. N.Y. Rules of Court, Court of Appeals § 500.10.
Accordingly, the claims can only be reviewed if Mr. Kemp demonstrates
cause and prejudice. Because he has shown neither and has also failed to
show that manifest injustice will result if these grounds are not
assessed, the petitioner's ineffective assistance of counsel claims may
not be reviewed.
G. Verdict Sheet
Finally the petitioner argues that the verdict sheet was defective
because it contained the choices guilty or not guilty as well as the
names of the crime victims, listed the items stolen, and did not contain
a charge of "larceny 155." (Pet. Memo.; Resp. Memo. 41-43).
As an initial matter, Mr. Kemp's claim regarding the failure to charge
him with "larceny 155" is incoherent. The respondent states that the
petitioner's argument may be that the trial court failed to charge him
with a lesser included offense, but the petitioner himself makes no
mention of a lesser included offense and the cases that he cites do not
address the issue.*fn12 The other claims raised by the petitioner regarding the verdict sheet are not
cognizable federal claims. Even assuming that all of the petitioner's
allegations were true, the petitioner would still not have alleged a
constitutional violation. See Anderson v. Keane, 283 F. Supp. 2d 936,
942 (S.D.N.Y. 2003) (noting that "no one has a Federal right to an
unannotated verdict sheet" and that in fact, "[federal courts] give
annotated verdict sheets to juries all the time").
For the reasons set forth above, I recommend that Mr. Kemp's petition
for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the
parties shall have ten (10) days from this date to file written objections
to this Report and Recommendation. Such objections shall be filed with
the Clerk of the Court, with extra copies delivered to the chambers of
the Honorable Jed S. Rakoff, U.S.D.J., Room 1340, and to the chambers of
the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
Failure to file timely objections will preclude appellate review.