The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
Pro se petitioner Joseph James seeks a writ of habeas corpus
from his November 4, 1999 conviction for first degree attempted
robbery, and sentence as a persistent felony offender to eighteen
years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) James'
habeas petition, as amended, alleges that his constitutional
rights were violated by: (1) the loss of a surveillance
videotape, and the destruction of a bag of clothing and 911 tape
(Pet. ¶ 13, Point I); (2) the prosecutor's closing argument that
the issue of James' guilt was an "easy issue" that the jury need
not "get caught up in," and also that the jury could know they
"did the right thing" by returning a guilty verdict (Pet. ¶ 13,
Point II); and (3) his appellate counsel's failure to raise the
issue of James' enhanced sentence as violating federal law under
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
(Dkt. No. 11: Am. Pet.)
The parties consented to decision of James' petition by a
Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10.) For the reasons set forth below, James' petition is DENIED and
a certificate of appealability is not issued.
The Prosecution's Case at Trial
On the evening of June 7, 1998, Clayton Dixon, a store
detective at the HMV music store at 1280 Lexington Avenue, was
observing surveillance monitors in the store's security office.
(Dkt. No. 9: Dixon: Trial Transcript ["Tr."] 115-16, 118, 149.)
Through the monitors, Dixon observed a man in a blue suit who
Dixon recognized as former HMV security employee, co-defendant
Christopher Dowtin. (Dixon: Tr. 118-21, 173.) Dixon also observed
through the monitors two men, identified at trial as Charles
Harriet and defendant Joseph James, dressed in overalls, hats and
sunglasses. (Dixon: Tr. 120-21, 123-24, 150.) Dixon observed
James and Harriet take up positions near the store's
employees-only area, where they were joined by a man in a blue
suit like the one worn by Dowtin, but the man's face was not
visible on the monitor. (Dixon: Tr. 123-25, 176-77.) When Dixon,
through the monitors, saw the three men enter the locked
employees-only area he called 911 and described what he was
witnessing. (Dixon: Tr. 126-27, 152-53, 165-67, 182.)
In a hallway in the employees-only area, HMV employee Edwin
Velez encountered a man wearing a tan carpenter suit, goggles, a
hat, and a bandanna covering the lower part of his face. (Velez:
Tr. 203, 206-08.) Velez identified the man at trial as James.
(Velez: Tr. at 220-21.) James pointed a gun at Velez and ordered
him into the manager/supervisor's office with HMV employees
Annette Suarez and Anita Kolenovic. (Velez: Tr. 210-11, 219;
Kolenovic: Tr. 252-53; Suarez: Tr. 287-88.) Kolenovic recognized
the man with the gun (James) as someone she had seen in the store about five minutes earlier. (Kolenovic: Tr. 233-35.)
Harriet also entered the office. (Suarez: Tr. 288; Kolenovic: Tr.
254-55, 269.) The men ordered Velez, Suarez and Kolenovic to lie
on the floor, and they tied them up. (Velez: Tr. 211-17; Suarez:
Tr. 288-91, 296-97; Kolenovic: Tr. 255-57, 271-72.) James and
Harriet made an unsuccessful attempt to enter the adjacent locked
cash office (Velez: Tr. 217-18; Kolenovic: Tr. 258; Suarez: Tr.
291-92, 297) before triggering the alarm when they exited through
a side door onto 87th Street (Dixon: Tr. 128-29; Velez: Tr. 218;
Kolenovic: Tr. 261; Suarez: Tr. 292; Britt: Tr. 573; Hydell: Tr.
338-39; Robinson: Tr. 647.)*fn1 James Hydell, a doorman
standing on 87th Street, saw three men two of whom were wearing
beige overalls exit HMV and enter a white vehicle waiting
outside the store. (Hydell: Tr. 338-41, 345.) The driver of the
car, Jermaine Britt, and a passenger in the car, Robinson,
testified that Dowtin and James, wearing a jumpsuit, got in the
car at 87th Street. (Britt: Tr. 567-68, 571-74; Robinson: Tr.
James, Dowtin, Harriett, Britt and Robinson drove west across
the Central Park transverse (Britt: Tr. 575; Robinson: Tr.
648-49), to 86th Street and Broadway, where they were stopped and
arrested by police. (Ricci: Tr. 470-72, 481-83; Donnellan: Tr.
499-502, 508, 514.) Dixon and Velez were brought to the scene and
identified Dowtin and James. (Dixon: Tr. 130-32, 151, 152; Velez:
Tr. 220-21, 232; Donnellan: Tr. 507-08.) Following the arrest,
police officers recovered from the sidewalk along the transverse
a pair of goggles, a bandanna, a hat, a black "durag," and
gloves. (Costa: Tr. 366-68.) In addition, police recovered a
loaded pistol, tan overalls, goggles, and other articles of clothing from the car. (Ricci: Tr.
473-75; Costa: Tr. 368-70.) The police also vouchered the tan
overalls that James was wearing when he was arrested. (Costa: Tr.
376-80.) All of the recovered items were vouchered with a police
property clerk according to standard police procedure. (Costa:
Tr. 370-72.) Dixon, Velez, Kolenovic and Suarez identified the
overalls at trial as having been worn by James and another of the
robbers. (Dixon: Tr. 144-45, 163-64; Velez: Tr. 242-43;
Kolenovic: Tr. 264, 266; Suarez: Tr. 293-94.) Dixon and Kolenovic
also identified the cap as having been worn by James. (Dixon: Tr.
146-47, 152; Kolenovic: Tr. 266-67.)
Neither James nor Dowtin presented any defense case after the
close of the prosecution's case. (Tr. 699-700, 702-07, 759.)
Prior to the start of the trial, the prosecutor lost the
surveillance videotape taken in the HMV store on the evening of
the robbery. (Tr. 5-6, 757-58.) Before it was lost, James
himself, witnesses Dixon, Suarez, Velez and Kolenovic,
co-defendant Dowtin and his counsel, and the prosecutor had
viewed the tape; James' counsel had not. (Tr. 5-9, 199, 320, 637,
721; Dixon: Tr. 155; Kolenovic: Tr. 273-74; Suarez: Tr. 306,
309-10; Velez: Tr. 234-35, 241, 248.) However, a photograph of
James and Harriet was created from a single frame of the video
prior to its loss (Tr. 15, 17, 24, 27, 435-37; Tineo: Tr. 459,
462; Dixon: Tr. 136), was admitted into evidence (Tr. 133, 139)
and published to the jury by James' counsel (Dixon: Tr. 153-54).
Velez, Kolenovic and Dixon identified James in this photograph at trial. (Velez: Tr. 222,
236; Kolenovic: Tr. 262-63, 277; Dixon: Tr. 137.)*fn2
During trial, it was discovered that the police department had
destroyed one of the four bags of clothing vouchered as evidence.
(Tr. 88-91; Costa: Tr. 386-90, 424-25.) According to the voucher
ticket, the bag contained the following items that had been
recovered from the getaway vehicle: hats, sunglasses, plastic
gloves, blue windbreaker pants and a black duffle bag. (Costa:
Tr. 386-90, 758-59.) Officer Costa, who had vouchered the items,
did not receive prior notification that the evidence would be
destroyed. (Costa: Tr. 392.) A photograph of the destroyed
vouchered items was admitted into evidence at trial. (Costa: Tr.
It also was discovered that the 911 tape of Dixon's call had
been erased by the police according to standard police practice.
(Tr. 82-84, 520, 539-40, 753-54, 758.) However, a transcript of
the call had been preserved and was provided to James' counsel.
(Tr. 84, 751, 753, 758.)
As a sanction for the loss of the surveillance video, which
James' counsel had not viewed, James' counsel requested dismissal
of the indictment, or in the alternative, preclusion of all
witness testimony regarding the video's contents and suppression
of all in-court identifications by witnesses who saw the video.
(Tr. 8, 10, 13, 751-52.) Because the court found that the loss of
the surveillance video was negligent (Tr. 327-28), and there was
no evidence of "prosecutorial misconduct or deliberate
destruction of evidence" (Tr. 754), the court refused James'
request for a dismissal of the indictment, but precluded
testimony about the videotape's contents (Tr. 13, 323-24, 637).
The court held that if the witnesses could identify the
defendants in court, they could do so, and suggested that the parties stipulate that the prosecution had
a video which was lost, and also indicated he would consider a
request for an adverse inference. (Tr. 13-14, 20-21, 314, 324,
328-34, 520-24, 540-47, 637-40, 713-27, 729-33, 746.) Most of the
issues about the videotape concerned whether co-defendant Dowtin
was identifiable in the videotape and, if so, for how long he
appeared on it. (See, e.g., Tr. 520-24, 637, 713-27, 729-33,
746-51.) Indeed, the court stated:
The video seems to me is the most important lost item
and it has the most significance for Mr. Dowtin
because that's the only one witness that places him
in the store and that's through viewing him in the
surveillance camera. That's Mr. Dixon. As to Mr.
James, I believe there is overwhelming evidence as
well as circumstantial evidence.
The prosecution and defense counsel agreed to a stipulation
regarding the loss of the surveillance video, and the destruction
of the bag of clothing and the 911 tape. (Tr. 756-59.) The
stipulation stated in part that the prosecutor lost the
videotape, that the bag of clothing and 911 tape had been
destroyed by the police, and that the prosecution had a duty to
preserve the lost evidence for trial. (Tr. 757-59.)*fn3 Both defense counsel for James and Dawtin stressed the loss of
the videotape and other evidence in their closings. (Tr. 761-64,
788-92, 797, 800, 802.)
The court instructed the jury during its charge that the law
permits an adverse inference that, "had that evidence been
preserved and produced at trial, it would not have supported or
in some way would have contradicted the People's case." (Tr.
850.) The court stressed to the jury that it was free to draw
such negative inference, but was not required to do so. (Tr.
850.) The court also pointed out to the jury that they were free to assign
whatever weight to the stipulated facts they felt appropriate
(Tr. 842), up to and including disregarding the loss of the
evidence altogether (Tr. 850-51).*fn4
During his closing argument, the prosecutor stated: [J]oseph James is crushed by the weight of the
evidence. And under those circumstances . . . this is
more than proof beyond a reasonable doubt. This is an
easy issue. I think that's one of the issues that you
can put you can just put aside. Look at the
(Tr. 826-27.) The prosecution also urged the jury not to "get
caught up in [the] issue" of James' guilt. (Tr. 827.) James'
counsel objected and moved for a mistrial, saying these comments
were "inflammatory," "not a fair statement of the issues in the
case" and "deprived [James] of a fair trial." (Tr. 835.) The
judge held it was "fair argument." (Tr. 836-37.) The judge,
however, several times instructed the jury that the summations of
counsel are not evidence (Tr. 760, 842) and that the jury could
disregard counsel's arguments and inferences if they so chose
(Tr. 840). In its charge, the court told the jury that its
verdict should be based solely on the evidence, of which closing
arguments are not a part. (Tr. 839-40, 842.) Lastly, the court
extensively instructed the jury regarding the applicable burden
of proof, explaining that the People must meet this burden, and
that such burden never shifts to a criminal defendant. (Tr.
The jury found James guilty of first degree attempted robbery,
and on November 4, 1999, the court sentenced James, as a
persistent violent felony offender, to eighteen years to life
imprisonment. See People v. James, 289 A.D.2d 3, 3,
734 N.Y.S.2d 16, 17 (1st Dep't 2001).
On appeal to the First Department, James asserted that: (1) the
trial court should have dismissed James' indictment because the
prosecution lost the surveillance videotape and destroyed a 911 tape and a bag of clothing (Dkt. No. 8: Morgan Aff. Ex. A:
James 1st Dep't Br. at 15-19), and (2) the ...