United States District Court, S.D. New York
July 13, 2005.
ERICK ELLIS, Petitioner,
WILLIAM PHILLIPS, Superintendent, Green Haven Correctional Facility, Respondent.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Sidney H. Stein, United States District
Pro se petitioner Erick Ellis seeks a writ of habeas corpus
from his May 4, 1999 conviction in Supreme Court, Bronx County,
of first degree kidnapping, three counts of first degree rape,
first degree sodomy, third degree assault, three counts of second
degree criminal possession of a weapon and two counts of third
degree criminal possession of a weapon, and sentence to an
aggregate sentence of thirty five years to life imprisonment.
(Dkt. No. 1: Pet. ¶¶ 1-5.)
Ellis' habeas petition raises six grounds concerning jury
selection, duplicitous rape charges, consecutive sentences, and
violation of his Confrontation Clause and Brady rights. (Pet.
¶¶ 13(1)-(6).) For the reasons set forth below, Ellis' habeas
petition should be DENIED. FACTS
On January 21, 1999, the trial judge began jury selection by
informing defense counsel:
[M]y practice is generally not to ask defendants to
waive their rights to anything if I can avoid it. And
so with respect to jury selection, so I don't have
people come up to the bench for any purpose during
jury selection, it really isn't necessary. And all
the times the jurors will approach is at the very
beginning when I will ask them because of the length
of the trial, the anticipated length being two weeks
post-selection and mandatory sequestration, that will
generally either result in many I might as well
throw into that the nature of the crime as well. That
will probably result in self-selection out of a
number of people.
None of those matters other than the nature of the
crime, I don't even think would probably need the
defendant. If there is a reason after that that the
juror has to do that, we usually do it in the robing
room with defendant present and everyone else. Unless
there is some reason why you don't want to do that.
[ELLIS' DEFENSE COUNSEL]: I'll explain it to Mr.
(Voir Dire 1: 1/21/99 Tr. 53-54.) After the court's statement and
counsel's explanation to the defendant, neither counsel nor
defendant objected. (See id. at 54-55.) Jury selection then
ensued in the manner described by the judge: prospective jurors
were questioned regarding their availability and the "nature of
the crime." (See generally Voir Dire 1: 1/21/99 Tr. 61,
67-106.) Nineteen venirepersons approached the bench, had sidebar
discussions out of Ellis' presence, and were excused for cause or
peremptorily; none served as a juror. (See Dkt. No. 5: A.D.A.
Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 5-8.) In addition to
the sidebar issue, at issue are two venirepersons as to whom the judge denied defense counsel's for-cause challenges:
Jesetty Paulino and Gabriela Taveras.
Proceedings Regarding Ms. Paulino
During jury selection on January 21, Ms. Paulino stated at
sidebar that she could not serve on the jury because of her job.
She explained: "I can't take off from work a couple of days
because I'm a social worker in Family Court and I have to serve
my cases which I have many at the end of the month." (Voir Dire
1: 1/21/99 Tr. 84.) The judge declined to excuse her. (Id.)
Ms. Paulino, along with 23 additional venirepersons from the
jury pool, were then called to sit in the jury box for voir
dire. (Voir Dire 1: 1/21/99 Tr. at 115-19.) Ms. Paulino was
potential juror number twelve. (Id. at 117.) The judge asked
questions regarding prior jury service, relations to law
enforcement personnel, victimization of crime, and entertained
requests to speak at sidebar. Ms. Paulino again came to sidebar
Yes, first. It is regarding my job. As I said before,
I work for the Family Court. I'm a social worker for
foster care. I have cases where families have
different problems from situations like rape to drugs
and negligence. I can't say that it's gonna effect my
professional manner here or in my job.
But regarding the other question about a criminal
circumstances close to me, myself or any family
member. I was raped on two occasions. When I was a
little girl around seven by a family member, nothing
happened there. And the second one was two years ago
by an ex-boyfriend. He's in jail at this moment.
(Voir Dire 1: 1/21/99 Tr. 162-63.) The judge asked Ms. Paulino
whether it was possible for her to sit on a case like this, and
she replied: "I'm a professional at my job. I could be
professional here too." (Id. at 163.) She further described how
she encountered disturbing situations as a social worker but was always able to maintain her professionalism.
(Id.) She confirmed that she would be fair to the defendants.
(Id. at 164-65.) The judge, in explaining to the defense why
Ms. Paulino was not excused, stated:
This is a woman who requested not to sit on this jury
[because of work] and yet under all of the
circumstances, when put to it, says my
professionalism allows me to be fair and impartial.
She didn't take the out that was clearly there for
her . . . Based on what she said, she can be fair and
impartial. For whatever her reasons may be, she has
dealt with her own past. And if she deals with it
right in terms of professionalism, that's the way
she's due to operate. That does not make her a cause
challenge, so that's why I did not automatically
(Voir Dire 1: 1/21/99 Tr. 177; see also id. at 178-80.) The
judge explained the following day when ruling on further
challenges for cause that Ms. Paulino's "body language as well as
her general demeanor says that she thinks that she can do this
unobstructed by her own experience." (1/22/99 Tr. 260.)
Defense counsel used a peremptory challenge against Ms.
Paulino, juror number twelve. (Id. at 261.)
Proceedings Regarding Ms. Taveras
Ms. Taveras was called to sit in seat one on a subsequent voir
dire panel. (See Voir Dire 3: 1/25/99 Tr. 50.) During the
judge's initial questioning, Ms. Taveras revealed in open court
that she was a school teacher and had previously served as a
juror on a criminal case and reached a verdict in an endangering
the life of a child case. (Voir Dire 3: 1/25/99 Tr. 71, 89.)
Co-defendant Bogle's attorney reminded the panel about the
importance of keeping an open mind and specifically addressed Ms.
Taveras' serving as a juror on a criminal case. (Voir Dire 3: 1/27/99 Tr. 147.) Ms. Taveras stated she was not sure how
she would react if someone started crying at trial and that "I'm
a woman and you know, it's hard, you know, like say keep an open
mind. I am going to try to keep an open mind, but . . . [y]ou
don't know how you're going to react that day." (Id. at 148;
see also id. at 148-52.)
Ellis' counsel explained to the panel that Ellis was not
required to testify and asked whether anyone would "say
something" if accused of similar crimes. Ms. Taveras responded
that she would "speak up" and that "[m]aybe because I don't
understand the system that well . . . I would speak up if I feel
strongly I didn't do something." (Id. at 160-61.) Nevertheless,
Ms. Taveras noted that she would respect Ellis' decision not to
testify "because that's what he chose." (Id. at 161.)
Later, defense counsel asked the panel whether "just because
someone swears to tell the truth doesn't necessarily mean that's
what we are gonna hear?" (Id. at 165.) Ms. Taveras responded
that "it makes you wonder why are they putting their hand under
oath, you know, if they're not telling the truth." (Id.)
Defense counsel challenged Ms. Taveras for cause on the ground
that she "didn't know if she could keep an open mind." (Id. at
168-69.) The judge disagreed, stating that she only did not know
how she would react if somebody started crying on the witness
stand, and that there was no expectation that Ms. Taveras would
"park her emotions outside." (Id. at 169.) The judge further
noted that Ms. Taveras never stated that she would have a problem
or that she could not be impartial. (Id.) Ellis' attorney also challenged Ms. Taveras for cause on the
ground that she indicated she would testify if accused of a
crime. (Id. at 172.) The judge responded that every prospective
juror will say he/she would testify in such circumstances (id.
at 172-73), and further noted that Ms. Taveras stated she would
respect Ellis' decision not to testify (id. at 175).
Counsel for co-defendant Bogle also challenged Ms. Taveras for
cause on the ground that she may believe everything a witness
says when she stated "why would [a] witness lie" after being
sworn. (Id. at 170.) The judge denied this challenge, noting:
We presume someone, once sworn, is constrained to
tell the truth. Cross-examination is there for the
purpose of making sure that they are, in fact,
telling the truth. But to explain that particular
sequence to a jury, it's a hard thing to do. . . . So
I don't think the fact that she anticipates that
people are sworn to tell the truth will tell the
truth is a bad thing. I think that's what we all
(Id. at 171-72.)
The defense used its last two peremptory challenges against Ms.
Taveras and another potential juror. (Id. at 177-78.) The judge
denied the defense's application for additional peremptory
challenges beyond the twenty per side they were originally given.
(Id. at 181.)
The Prosecution Case at Trial
On June 21, 1996, 27 year-old Neville Bethune was living in his
mother's apartment on Whitehall Place in the Bronx. (Bethune:
Trial Transcript ["Tr."] 7.) Bethune was home that evening at
10:00 p.m. with his seventeen-year old girlfriend, Catrena
S.,*fn1 when Olive Richards ("Charm"), who lived in the basement apartment, knocked on the
door. (Id. at 7-8; Catrena: Tr. 458-59, 502.) Charm told
Bethune to come downstairs to her apartment because she wanted to
show him something, so he got dressed and went downstairs.
(Bethune: Tr. 8; Catrena: Tr. 459.)
When Bethune arrived at Charm's apartment, he went into the
back bedroom and immediately saw Ellis, Maxwell Bogle (Ellis'
co-defendant), and a third man known as "Linky," all of whom were
armed with guns. (Bethune: Tr. 8-9, 11, 14, 22, 133-34; Catrena:
Tr. 461, 463.) Charm stated "[w]e got you. . . . We found out
that you took you got us robbed." (Bethune: Tr. 14.) When
Bethune denied any wrongdoing, the three men proceeded to assault
him, strike him with their guns, kick him, and demand money that
they thought he had participated in robbing from them. (Id. at
14-19, 24; Catrena: Tr. 463-64, 507-10.)
While the three men were assaulting Bethune, Charm returned to
Bethune's apartment and told Catrena that Bethune wanted to see
her downstairs. (Catrena: Tr. 460.) Catrena followed Charm
downstairs to the backroom where Bethune was being held by the
three men. (Catrena: Tr. 461-64; Bethune: Tr. 22.) The men
continued to ask about money and assault Bethune in front of
Catrena, using her to compel him to reveal information. (Bethune:
Ellis pointed his gun at Catrena and told her to go into the
bathroom (Bethune: Tr. 27; Catrena: Tr. 464, 530-31), where Ellis
demanded Catrena remove her pants and undergarments, and told her
to "get up on the sink." (Catrena: Tr. 464). Ellis told her that
she had to do what he said if she wanted to live. (Id.) At gunpoint, and with a condom,
Ellis inserted his penis into Catrena's vagina. (Id.) When he
finished raping her, Ellis told Catrena to put her clothes back
on and return to the bedroom. (Id.)
Catrena returned to the bedroom with Ellis, who gave Bogle a
condom. (Bethune: Tr. 28-29, 31.) Bogle proceeded to orally and
vaginally rape Catrena at gunpoint. (Catrena: Tr. 464-65.) After
Bogle finished, Catrena got dressed and returned to the bedroom.
(Id. at 465.)
In the bedroom, Ellis pointed his gun at Catrena again and told
her to return to the bathroom. (Catrena: Tr. 466.) Bogle took
Bethune by the bathroom and forced him to witness Ellis orally
and vaginally raping Catrena at gunpoint. (Bethune: Tr. 29-31.)
After Ellis finished, Catrena returned to the bedroom on demand,
where Bogle orally and vaginally raped her at gunpoint while
Bethune was forced to watch again. (Catrena: Tr. 466-67.)
After Bogle finished raping Catrena, Ellis proposed to take
Catrena into the bathroom again, but realized there were no
condoms left. (Bethune: Tr. 31) He gave Vivenne Bruce, who was
present in the apartment, money and instructed her to go buy more
condoms, which she did. (Bethune: Tr. 9, 31, 134-35, 183-84.)
When she returned with more condoms, Ellis took Catrena back into
the bathroom (id. at 31-32, 135), and vaginally raped her
(Catrena: Tr. 468). When finished, Ellis told her to return to
the bedroom. (Id.)
Bogle took Catrena out into the hallway and vaginally raped her
at gunpoint again. (Id.) Ellis demanded money from Bethune and
forced him to watch Bogle rape Catrena, who after vaginally
raping her, forced her to perform oral sex on him. (Id.) Bogle
then took Catrena into the bedroom. (Id.) By this time, Catrena had been in the apartment
"all night, into the morning" (id. at 469, 474), and was about
to fall asleep when Ellis brought her to the bathroom and
vaginally raped her one last time at gunpoint (id. at 469-70,
In total, Catrena testified to seven acts of rape. (Catrena:
Tr. 511, 529-30, 544, 548.)
The Police Arrive
Bethune managed to escape from the apartment and called the
police. (Bethune: Tr. 35-41.) The police arrived around 8:00 a.m.
on June 22, 1996, apprehended Bogle and Ellis at the scene, and
took Catrena to Our Lady of Mercy Hospital for treatment.
(Catrena: Tr. 474, 476, 515-16; Bethune: Tr. 45-47; Shaw: Tr.
68-69; Schiffman: Tr. 691-93, 815.) At the hospital, Nurse Lydia
Reidy was present when a doctor examined Catrena and collected
samples for a rape kit. (Reidy: Tr. 233, 237-40; Catrena: Tr.
478.) The hospital retained hair and blood samples from Catrena
and her underwear. (Catrena: Tr. 478)
Meanwhile, Detective Stanley Schiffman obtained a search
warrant and returned to Charm's apartment, where Detective Peter
Boylan of the Crime Scene Unit recovered two condoms and a condom
wrapper from the kitchen trash can. (Boylan: Tr. 667, 669-70,
674, 676-77; Schiffman: Tr. 703-04.)
The police conducted two lineups, at which Catrena identified
Ellis and Bogle. (Catrena: Tr. 482-86.) The DNA Evidence
Four months later, on October 21, 1997, at Jacoby Hospital,
Detective Schiffman observed a medical technician extract samples
of Ellis' and Bogle's blood. (Schiffman: Tr. 709-10.) The samples
were mailed to Danny Doucette, a case aid in the Bronx District
Attorney's Office. (Doucette: Tr. 407, 414; Schiffman: Tr. 710.)
A sample of Catrena's blood also was taken. (Schiffman: Tr. 711.)
Doucette mailed the blood samples, Catrena's rape kit, and the
condoms recovered by Detective Boylan to CBR Laboratories in
Boston, Massachusetts. (Doucette: Tr: 414; Schiffman: Tr. 710.)
CBR Laboratories, however, had closed by the time of trial. (Tr.
325, 337-38, 340-41.)
Dr. Howard Baum, Assistant Director of the Forensic Biology
Department of the Office of the Chief Medical Examiner, who the
defense conceded was an expert in DNA examination and analysis
(Baum: Tr. 305-06, 326), reviewed the lab notes, worksheets,
photographs of the test strips, and the report generated by Dr.
Bing of CBR Laboratories. (Baum: Tr. 302, 320, 572-75, 586-87.)
Dr. Bing was not available to testify because he was suffering
from brain cancer. (Tr. 338, 340.) When Dr. Baum first was called
to the stand, the defense objected to him showing Dr. Bing's
report or the charts attached to the report to the jury. (Id.
at 322-57.) The Court ruled that the prosecution needed to lay a
proper foundation for the charts and report with other witnesses,
and perhaps Dr. Baum himself, if it wanted to put them into
evidence. (Id. at 332-38, 340-53.) Prior to Dr. Baum being
recalled, the prosecutor presented a verification from Susan
Mitchell of CBR Laboratories that Dr. Bing's report was a true
copy from CBR's records and had been made in the regular course of business. (Tr. 549-50, 578-79.) The defense
again objected to the admission of Dr. Bing's report, because of
the possibility of there having been tampering with the evidence.
(Tr. 551-52.) The prosecution had presented evidence as to the
chain of custody of the evidence and the judge responded that the
tampering objection went to the weight of the evidence, not its
admissibility. (Tr. 552, 563.) Defense counsel also argued that
the report was hearsay. (Tr. 556-59.) The Court found that the
foundation could have been better laid by the prosecution, but
that it was sufficient, in light of the certification, to admit
Dr. Bing's report as the type of document an expert like Dr. Baum
could rely upon. (Tr. 566-67.)
Dr. Baum testified that Dr. Bing's DNA testing and analysis
involved four steps and six different loci. (Baum: Tr. 310-19.)
Dr. Baum concluded that the DNA on the underwear and outside of
both condoms was consistent with Catrena's DNA profile. (Baum:
Tr. 594-96.) Dr. Baum concluded that the male DNA inside one of
the condoms was consistent with Ellis' DNA profile, and that the
female DNA found inside the condom was consistent with Catrena's
DNA profile. (Id. at 596.) Furthermore, the mixture of Ellis'
and Catrena's DNA inside the condom was consistent with Catrena's
performing oral sex on Ellis prior to his putting on the condom.
(Id. at 597, 600-02.) The male DNA on the vaginal swab and the
other condom was consistent with Bogle's DNA profile. (Id. at
595-96.) Dr. Baum concluded that both Ellis and Bogle contributed
to the DNA mixture on Catrena's underwear. (Id. at 598.)
Though Dr. Bing's best statistical estimate with regard to
Ellis' DNA was that one in 6,370 African Americans would have a
similar DNA profile (id. at 603), Dr. Baum testified that only one in every 5,200 African Americans would be likely to
match Ellis' DNA profile, while one in 28,000 would match Bogle's
(id. at 604-05, 614).
Dr. Baum admitted that he did not examine any of the physical
evidence in the case. (E.g., id. at 608, 919-20.) The defense
extensively cross-examined Dr. Baum. (Baum: Tr. 606-20, 917-68.)
The Defense Case at Trial*fn2
The defense called Dr. Louis Levine, Professor of Biology at
City College and an expert in "population genetics." (Levine: Tr.
1158, 1163, 1169.) Dr. Levine reviewed Dr. Bing's report and
noted that Dr. Bing analyzed six genetic traits to determine the
DNA matches found. (Levine: Tr. 1170-71, 1174, 1196.) Dr. Levine
testified that the categories within each of these traits had not
been sufficiently detailed, and that five of the six traits
analyzed by Dr. Bing had more variations than the kit he used
could detect. (Id. at 1176-77, 1179-82.) Dr. Levine also
pointed to a "landmark paper" Dr. Bing wrote concerning how "by
not carrying the [DNA] tests far enough[,] one ended up with the
erroneous conclusion." (Id. at 1185.) Dr. Levine concluded that
one in twelve to one in fourteen African Americans had a
variation of the GYPA trait that the kit could not identify
(id. at 1179-80), and that there could be no "scientifically
defensible match" if the 19 specific genetic sub-categories were not known (id. at 1178). Nevertheless, on
cross examination by the prosecution, Dr. Levine stated that Dr.
Bing's test results did not exclude Ellis and Bogle. (Levine: Tr.
The defense also called Vivenne Bruce, who testified that she
arrived at Charm's apartment on June 21, 1996 between 5:00 p.m.
and 7:00 p.m. and stayed for approximately two hours. (Bruce: Tr.
1307, 1322-24, 1327.)
Ms. Bruce was arrested on January 22, 1999 for her
participation in the incident after Bethune identified her in a
photo array. (See Tr. 722, 727; Schiffman: Tr. 975, 977,
991-92, 1001; Bruce: Tr. 1303.) On January 22, 1999, during the
jury selection of Ellis' trial, Detectives Schiffman and Rosario
conducted two post-arrest interviews of Ms. Bruce (Tr. 739,
742-44, 747-48, 773, 786; Schiffman: Tr. 975-76, 979, 983; Bruce:
Tr. 1304, 1310-12), during which she stated that she was present
in the apartment on June 21 and June 22, 1996, but did not
mention that Ellis was there, and did not witness the criminal
activity described by the prosecution's witnesses (see Tr.
727-41, 759; Schiffman: Tr. 980, 984-85; Bruce: Tr. 1311-12,
1349-50, 1352-53). Detective Rosario later reduced Ms. Bruce's
statement to writing which she signed. (Tr. 741-42, 745;
Schiffman: Tr. 998.) Detectives Schiffman and Rosario later
created DD5 Complaint Follow-up Reports reflecting the
interviews. (See Tr. 727-41, 884-86; Schiffman: Tr. 995.) The
defense only learned of Ms. Bruce's statements in the middle of
the prosecution's case, and argued that the DD5s were Brady
material. (E.g., Tr. 887-90.) The defense asked for a mistrial
or that Ms. Bruce be located by the police. (Tr. 891-92.) The
judge denied a mistrial but gave the parties time to find Ms.
Bruce. (Tr. 892-99, 905-15.) Thereafter, Ms. Bruce was located, subpoenaed and appeared at
trial as a witness for the defense.
At trial, Ms. Bruce testified that during her time in the
apartment, she did not see any guns or sexual assaults. (Bruce:
Tr. 1307, 1319-21.) She conceded that Bogle and "two other guys"
who she did not know were in another room arguing and fighting
with another man about girls and a robbery. (Id. at 1326-27.)
Ms. Bruce further testified that she saw Bogle hit the other man.
(Id. at 1327.) Ms. Bruce denied ever urging anyone to kill
Bethune or Catrena (id. at 1329, 1334-35) and also denied leaving
Charm's apartment to purchase condoms. (Id. at 1321, 1335.) She
did, however, admit that she pleaded guilty to kidnapping and
rape, and taking part in the beating of Bethune. (Id. a
At the close of Ms. Bruce's testimony, the defense asked to
recall Bethune and Catrena, but could not really tell the judge
why they needed to do so. (Tr. 1371-86.) The prosecutor replied
that there was no Brady violation but that if there was, it was
"cured" when Ms. Bruce testified, and there was no need to bring
Bethune and Catrena back. (Tr. 1385-86.) The judge agreed and so
ruled. (Tr. 1386-87.)
The defense rested, and the prosecution did not offer a
rebuttal case. (Tr. 1395.) The Verdict
The jury found Ellis guilty of first degree kidnapping, three
counts of first degree rape, one count of first degree sodomy,
three counts of second degree criminal possession of a weapon,
two counts of third degree criminal possession of a weapon, and
one count of third degree assault. (Verdict: Tr. 1782-89.) Ellis
was found not guilty of second degree kidnapping, one count of
first degree rape, one count of third degree criminal possession
of a weapon, and second degree assault. (Id.)*fn3
The prosecution requested maximum sentences on all the
convictions, with the rape, weapons possession, and kidnapping
sentences to be served consecutive to each other. (Dkt. No. 5:
A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at
29-30.)*fn4 However, the prosecution asked for the rape
sentences be concurrent to each other, as well as the weapon
possession sentences to be concurrent to each other. (Id. at
30, citing Sentencing Transcript ["S."] 11-12.) Ellis' counsel
requested a sentence of 15 years to life on the kidnapping
conviction, with concurrent sentences on the rape and weapons
possession charges. (Ellis 1st Dep't Br. at 30, citing S. 19-22.)
The judge sentenced Ellis to 22½ years to life for kidnapping and 12½ to 25
years for each of the rape and sodomy charges. (Ellis 1st Dep't
Br. at 30, citing S. 25-27.) The rape and sodomy sentences were
imposed to run concurrently with one another but consecutive to
the kidnapping sentence. (Id.) Ellis also was sentenced to
lesser terms on the other charges. (Id) Ellis' sentence
aggregated 35 years to life imprisonment. (Id.) See also
People v. Ellis, 325 A.D.2d 208, 208, 761 N.Y.S.2d 11, 12
(1st Dep't 2003).*fn5
Ellis' Direct Appeal
Represented by counsel, Ellis appealed to the First Department,
raising four claims: (1) denial of his challenge for cause to two
jurors for bias violated his right to a fair trial (Dkt. No. 5:
A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 31-36); (2) the
judge's questioning of nineteen prospective jurors at sidebar in
Ellis' absence about their ability to be fair violated his Sixth
and Fourteenth Amendment rights to be present at trial (id. at
36-41); (3) where Ellis was charged with four counts of rape and
the jury convicted him of only three, the failure to identify to
the jury the particular act charged in each count rendered the
rape counts duplicitous under the C.P.L. (id. at 41-44); and
(4) under New York law, his sentence for the rape and sodomy
convictions must run concurrently to his kidnapping conviction
(id. at 44-46). Ellis filed a supplemental pro se brief to the
First Department, raising two additional claims: (5) the
prosecutor's failure to call Dr. Bing violated Ellis'
confrontation rights and his due process right to a fair trial
(A.D.A. Curbelo Aff. Ex. 2: Ellis Pro Se Supp. 1st Dep't Br. at 4-7); and (6) the
prosecutor's failure to turn over police DD-5 reports about Ms.
Bruce violated the Rosario and Brady rules and deprived Ellis
of his due process right to a fair trial (id. at 8-14).
On May 13, 2003, the First Department affirmed both Bogle's and
Ellis' convictions. People v. Ellis, 305 A.D.2d 208,
761 N.Y.S.2d 11 (1st Dep't 2003). As to Ellis, the First Department
held, in full:
The court properly denied defendants' challenges for
cause to two prospective jurors. The first
venireperson stated unequivocally that she could be
impartial despite her prior experiences as a crime
victim, and the remarks of the second venireperson
did not raise a serious doubt about her ability to be
impartial. The record does not establish that
defendant Ellis was prevented from seeing and hearing
any sidebar discussions with prospective jurors that
would require his presence.
The rape charges were not duplicitous, either
facially or in light of the trial evidence. Each of
the four alleged rapes had a separate count, which
complied with CPL 200.30(1) and 200.50(3) as well as
comporting with the trial testimony.
The court properly imposed consecutive sentences for
the first-degree kidnapping conviction under Penal
Law § 135.25(1) and for the rape and sodomy
convictions because the sex offenses were separate
acts from the kidnapping, regardless of whether the
crimes could be viewed as having a common motive
(see Penal Law § 70.25).
We have considered and rejected defendant's remaining
claims, including those contained in defendant
Ellis's pro se supplemental brief.
People v. Ellis, 305 A.D.2d at 208-09, 761 N.Y.S.2d at 12-13
On July 15 and 25, 2003, the New York Court of Appeals denied
leave to appeal. People v. Ellis, 100 N.Y.2d 580,
764 N.Y.S.2d 390 (2003); People v. Bogle, 100 N.Y.2d 579,
764 N.Y.S.2d 389 (2003). Ellis' Federal Habeas Corpus Petition
Ellis' federal habeas corpus petition raises the same six
grounds raised on appeal before the First Department: (1) he was
denied his right to due process and a fair trial when the court
denied his challenges for cause of two prospective jurors who
manifested bias (Dkt. No. 1: Pet. ¶ 13(1)); (2) he was denied his
right to due process and a fair trial when the court conducted
sidebar conferences with prospective jurors in his absence (Pet.
¶ 13(2)); (3) when the trial judge failed to instruct the jury to
specifically identify the separate acts of rape that were charged
in each count of the indictment, the rape charges were
duplicitous (Pet. ¶ 13(3)); (4) his rape and sodomy sentences
should have run concurrently instead of consecutively with his
kidnapping sentence (Pet. ¶ 13(4)); (5) he was deprived of his
Confrontation Clause rights when the prosecutor failed to call
Dr. David Bing to testify about the DNA tests he performed (Pet.
¶ 13(5)); and (6) he was denied his Brady and Rosario rights
when the prosecutor failed to turn over police reports which
contained Ms. Bruce's statements (Pet. ¶ 13(6)).
For the reasons set forth below, Ellis' habeas corpus petition
should be DENIED. ANALYSIS
I. THE AEDPA REVIEW STANDARD*fn6 Before the Court can determine whether Ellis is entitled to
federal habeas relief, the Court must address the proper habeas
corpus review standard under the Antiterrorism and Effective
Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the
role of federal habeas courts in reviewing petitions filed by
state prisoners." Williams v. Taylor, 529 U.S. 362, 403,
120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent
review standard, as follows:
(d) 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 with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim
(1) resulted in a decision that 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 proceeding.
28 U.S.C. § 2254(d)(1)-(2).*fn7
The "contrary to" and "unreasonable application" clauses of §
2254(d)(1) have "independent meaning." Williams v. Taylor,
529 U.S. at 404-05, 120 S. Ct. at 1519.*fn8
"restrict? the source of clearly established law to [the
Supreme] Court's jurisprudence." Williams v. Taylor,
529 U.S. at 412, 120 S. Ct. at 1523.*fn9
"That federal law, as
defined by the Supreme Court, may either be a generalized
standard enunciated in the [Supreme] Court's case law or a
bright-line rule designed to effectuate such a standard in a
particular context." Kennaugh v. Miller, 289 F.3d at 42. "A
petitioner cannot win habeas relief solely by demonstrating that
the state court unreasonably applied Second Circuit precedent."
Yung v. Walker, 341 F.3d at 110; accord, e.g., DelValle
v. Armstrong, 306 F.3d at 1200. As to the "contrary to" clause:
A state-court decision will certainly be contrary to
[Supreme Court] clearly established precedent if the
state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases. . . .
A state-court decision will also be contrary to
[the Supreme] Court's clearly established precedent
if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result
different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06,
120 S. Ct. at 1519-20.*fn10
In Williams, the Supreme Court explained that "[u]nder the
`unreasonable application' clause, a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the facts of the
prisoner's case." Williams v. Taylor, 529 U.S. at 413,
120 S. Ct. at 1523.*fn11 However, "[t]he term `unreasonable' is . . .
difficult to define." Williams v. Taylor, 529 U.S. at 410,
120 S. Ct. at 1522. The Supreme Court made clear that "an
unreasonable application of federal law is different from an
incorrect application of federal law." Id.*fn12 Rather,
the issue is "whether the state court's application of clearly established federal law was objectively
unreasonable." Williams v. Taylor, 529 U.S. at 409,
120 S. Ct. at 1521.*fn13 "Objectively unreasonable" is different
from "clear error." Lockyer v. Andrade, 538 U.S. at 75,
123 S. Ct. at 1175 ("The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear error)
with unreasonableness."). However, the Second Circuit has
explained "that while `[s]ome increment of incorrectness beyond
error is required . . . the increment need not be great;
otherwise, habeas relief would be limited to state court
decisions so far off the mark as to suggest judicial
incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting
Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
2000)).*fn14 "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule."
Yarborough v. Alvarado, 124 S. Ct. at 2149.*fn15
Moreover, the Second Circuit has held "that a state court
determination is reviewable under AEDPA if the state decision
unreasonably failed to extend a clearly established, Supreme
Court defined, legal principle to situations which that principle
should have, in reason, governed." Kennaugh v. Miller,
289 F.3d at 45.*fn16 Under the AEDPA, in short, the federal courts "must give the
state court's adjudication a high degree of deference." Yung v.
Walker, 341 F.3d at 109; accord, e.g., Bell v. Cone,
125 S. Ct. at 853.
Even where the state court decision does not specifically refer
to either the federal claim or to relevant federal case law, the
deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court
"adjudicate[s]" a state prisoner's federal claim on
the merits when it (1) disposes of the claim "on the
merits," and (2) reduces its disposition to judgment.
When a state court does so, a federal habeas court
must defer in the manner prescribed by
28 U.S.C. § 2254(d)(1) to the state court's decision on the
federal claim even if the state court does not
explicitly refer to either the federal claim or to
relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Bell
v. Cone, 125 S. Ct. at 853 ("Federal courts are not free to
presume that a state court did not comply with constitutional
dictates on the basis of nothing more than a lack of citation.");
Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002)
(State court not required to cite Supreme Court cases, or even be
aware of them, to be entitled to AEDPA deference, "so long as
neither the reasoning nor the result of the state-court decision
contradicts them."); Howard v. Walker, 406 F.3d at 122;
Rosa v. McCray, 396 F.3d at 220: Wade v. Herbert,
391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was
"`without merit.'" "Such a summary determination, even absent
citation of federal case law, is a `determination on the merits'
and as such requires the deference specified by § 2254."
Moreover, "[I]f any reasonable ground was available [for the
state court's decision], we must assume that the [state] court
relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d
Cir.) (Where "the Appellate Division concluded its opinion by stating that it had `considered and rejected
defendants' remaining claims,'" AEDPA deference applies.), cert.
denied, 125 S. Ct. 110 (2004); Jenkins v. Artuz,
294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more
concise Appellate Division disposition the word `denied'
triggered AEDPA deference.").*fn17
"By its terms, § 2254(d)
requires such deference only with respect to a state-court `adjudication on the merits,' not
to a disposition `on a procedural, or other, ground.' Where it is
`impossible to discern the Appellate Division's conclusion on
[the relevant] issue,' a federal court should not give AEDPA
deference to the state appellate court's ruling." Miranda v.
Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations
Of course, "[i]f there is no [state court]
adjudication on the merits, then the pre-AEDPA, de novo
standard of review applies." Cotto v. Herbert,
331 F.3d at 230.
Finally, "[i]f [the] court finds that the state court engaged
in an unreasonable application of established law, resulting in
constitutional error, it must next consider whether such error
was harmless." Howard v. Walker, 406 F.3d at 122.
In addition to the standard of review of legal issues, the
AEDPA provides a deferential review standard for state court
factual determinations: "a determination of a factual issue made
by a State court shall be presumed to be correct."
28 U.S.C. § 2254(e)(1); accord, e.g., Rosa v. McCray,
396 F.3d at 220. "The petitioner bears the burden of `rebutting the
presumption of correctness by clear and convincing evidence.'"
Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)). II. ELLIS' TWO CLAIMS CONCERNING JURY SELECTION SHOULD BE
A. Ellis' Claim That He Was Denied a Fair Trial by Denial of
His For-Cause Challenges to Two Potential Jurors Does Not Provide
a Basis for Habeas Relief
Ellis alleges that two juror challenges for cause were wrongly
denied, violating his constitutional right to due process and a
fair trial. (Dkt. No. 1: Pet. ¶ 13(1); see Dkt. No. 5: A.D.A.
Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 31-36.) The two
venirepersons in question, Ms. Paulino and Ms. Taveras, were
peremptorily excused by the defense when their for cause
challenge was denied. (See pages 2-6 above.)
In order to successfully claim a constitutional violation based
on a trial court's erroneous denial of for-cause challenges, a
habeas petitioner must do more than show that he exercised
peremptory challenges to remove jurors who should have been
excused for cause and that he eventually used up his allotted
peremptories. E.g., United States v. Martinez-Salazar,
528 U.S. 304, 305, 120 S. Ct. 774, 776 (2000) (neither
Sixth Amendment nor due process violated where defendant peremptorily
challenged juror who should have been excused for cause and
thereafter exhausted peremptories); Ross v. Oklahoma,
487 U.S. 81, 88, 108 S. Ct. 2273, 2278 (1988) (no Sixth Amendment
violation unless jury that was ultimately seated was unfair; "We
have long recognized that peremptory challenges are not of
constitutional dimension. . . . So long as the jury that sits is
impartial, the fact that the defendant had to use a peremptory
challenge to achieve that result does not mean the Sixth Amendment was
violated.").*fn19 Ellis has not alleged here or before the
State Court that the jury that was chosen was in any way unfair
or not impartial. Thus, as a matter of federal habeas law, his
for cause juror challenge claim should be DENIED.
B. Ellis' Claim That He Was Denied Due Process and a Fair
Trial When the Court Questioned Prospective Jurors During Voir
Dire at Sidebar in His Absence Should Be Denied Because There Is
No Federal Constitutional Right to Be Present at Sidebar During
Ellis alleges that voir dire sidebar discussions were conducted
in his absence, violating his constitutional right to be present
at all material stages of trial. (Dkt. No. 1: Pet. ¶ 13(2); Dkt.
No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 36-41.)
A defendant in a state criminal trial "has a right to be
present at all stages of the trial where his absence might
frustrate the fairness of the proceedings." Faretta v.
California, 422 U.S. 806, 819 n. 15, 95 S. Ct. 2525, 2533 n. 15 (1975).*fn20
Further, "[i]t is well-established that the impaneling of the
jury is one such stage." Tankleff v. Senkowski,
135 F. 3d 235, 246 (2d Cir. 1998); accord, e.g., Cohen v.
Senkowski, 290 F.3d 485, 489 (2d Cir. 2002), cert. denied,
537 U.S. 1117, 123 S. Ct. 879 (2003); Sanchez v. Duncan,
282 F.3d 78, 81 (2d Cir.), cert. denied, No. 01-10399, 2002 WL
1174739 (U.S. Oct. 7, 2002).*fn21
Under New York law, a defendant is entitled to be present at
sidebar discussions when the merits of the case are discussed or
where "prospective jurors' backgrounds and their ability to weigh
the evidence objectively" are discussed. People v.
Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 35
(1992).*fn22 However, "`[f]ederal standards regarding a defendant's presence
at a sidebar are less stringent than New York's standards.'"
McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6
(quoting Nichols v. Kelly, 923 F. Supp. 420, 425 (W.D.N.Y.
1996)); accord, e.g., Dickens v. Filion, 2002 WL 31477701
at *9; Bryant v. Bennett, 2001 WL 286776 at *3. "Indeed, the
Federal Constitution generally `does not require a defendant's
presence at sidebar conferences.'" McKnight v. Superintendent
Albauch, 2000 WL 1072351 at *6 (quoting Gaiter v. Lord,
917 F. Supp. at 152); accord, e.g., Cameron v. Geiner, No.
03-2569, 119 Fed. Appx. 340, 342-43, 2005 WL 78780 at *2-3 (2d
Cir. Jan. 11, 2005); United States v. Feliciano,
223 F.3d 102, 111 (2d Cir. 2000) (noting that the Court has found no case
"in which an appellate court has found a structural defect where
a defendant was present throughout but unable to hear a
circumscribed portion of voir dire, and whose counsel was
allowed to consult with him about the limited questioning outside
his hearing."), cert. denied, 532 U.S. 943, 121 S. Ct. 1405,
1406 (2001); Sanchez v. Burge, 04 Civ. 2622, 2005 WL 659195
at *3 (S.D.N.Y. Mar. 22, 2005) ("Here, petitioner fails to cite
to any federal statute or Supreme Court precedent holding that a
petitioner has a right to be present at sidebar conferences
during voir dire. Antommarchi is a state law rule and does not
entitle petitioner to federal habeas corpus relief."); Perez v.
Greiner, 00 Civ. 5504, 2005 WL 613183 at *5-6 (S.D.N.Y. Mar.
14, 2005) ("Although the pre-screening and impaneling of jurors
is a material stage of trial at which a defendant has a
constitutional right to be present, there is no clear Supreme
Court precedent supporting a claim that absence from a sidebar
conference during voir dire violates the Sixth Amendment.
Therefore, the Appellate Division's adjudication of this claim is
not contrary to, or an unreasonable application of, that law.") (citations omitted); Diaz v. Herbert,
317 F. Supp. 2d 462, 473 (S.D.N.Y. 2004) ("[E]ven if [petitioner's]
rights under Antommarchi were violated, it does not rise to the
level of a federal constitutional violation. Therefore, any
alleged violation of these rights is not cognizable on habeas
review."); Dickens v. Filion, 2002 WL 31477701 at *9;
Persaud v. Mantello, 99 CV 1861, 2002 WL 1447484 at *2
(E.D.N.Y. July 2, 2002) ("district courts in this circuit have
held that there is no right to be present at a sidebar conference
during voir dire") (citing cases); Johnson v. McGinnis, 99
Civ. 11231, 2001 WL 740727 at *3 (S.D.N.Y. June 29, 2001) ("The
right to be present at sidebar during voir dire derives from New
York state statutory law. Since a federal court on habeas review
is limited to considering only violations of the federal
Constitution or federal statutory law, I am procedurally barred
from considering this claim.") (citations omitted); Bryant v.
Bennett, 2001 WL 286776 at *3 (the federal constitution does
not require a defendant's presence at a voir dire sidebar);
Benitez v. Senkowski, 1998 WL 668079 at *8 ("However, there
is no Constitutional right to appear at sidebar conferencing for
peremptory challenges; at most, there is a more limited right to
presence during the formal exercise, in open court, of peremptory
jury challenges.") (citing cases), cited with approval in
Cohen v. Senkowski, 290 F.3d at 490; James v. Senkowski,
97 Civ. 3327, 1998 WL 217903 at *8 (S.D.N.Y. Apr. 29, 1998)
(Cote, D.J. & Peck, M.J.) ("`there is not now and never has been
a right guaranteed in the federal Constitution that a defendant
be present at sidebar voir dire.'").*fn23 In any event, even if a federal right to be present at sidebar
during jury selection existed, it is subject to waiver, so long
as the waiver is knowing and voluntary. E.g., Cohen v.
Senkowski, 290 F.3d at 491; Polizzi v. United States,
926 F.2d 1311, 1319 (2d Cir. 1991).*fn24 The waiver may be made
by the defendant or by defense counsel. See, e.g., Polizzi
v. United States, 926 F.2d at 1322; Dickens v. Filion, 2002
WL 31477701 at *9; Giles v. Kuhlmann, 2002 WL 1751401 at *5;
Persaud v. Mantello, 2002 WL 1447484 at *2; Moe v.
Walker, 1998 WL 872417 at *3. Waiver also may be found through
the defendant's conduct, such as his failure to object to the
sidebar procedure. E.g., Cohen v. Senkowski,
290 F.3d at 491, 492 ("when a defendant is fully apprised of the nature of
the [sidebar] procedure, makes no objection to the procedure, and
has counsel present for the duration of the [sidebar procedure],
a knowing waiver of the right to be present occurs.") (citing
cases); United States v. Torres, No. 98-1075, 98-1115,
98-1372, 199 F.3d 1324 (table), 1999 WL 1022488 at *2 (2d Cir.
Oct. 25, 1999), cert. denied, 531 U.S. 1170, 121 S. Ct. 1137
(2001); Perez v. Greiner, 2005 WL 613183 at *5-6 ("[E]ven if counsel
for the defendant did not waive the defendant's right to be
present, if the defendant was present in the courtroom during
sidebar conferences and knew that the conferences were taking
place, his failure to assert his right to be present at the time
amounts to a waiver."); Pellington v. Greiner,
307 F. Supp. 2d. 601, 605 (S.D.N.Y. 2004) ("a waiver [to be present at any
stage of the criminal proceeding] may be implied by a defendant's
conduct."); Pounce v. McLaughlin, 2004 WL 2360037 at *7
("Moreover, the right to be present is `clearly waivable under
both the Federal and [New York] State Constitutions.' There is no
rule requiring `a defendant's personal statement in court to
bring about a constitutionally valid waiver of his right to [be]
present.' `The waiver must be knowing and voluntary, but it can
be implied from the defendant's conduct.'") (citations omitted);
Rodriguez v. Herbert, No. 02-CV-895, 2004 WL 1125431 at *6
(E.D.N.Y. May 20, 2004) ("Although trial courts must vigorously
safeguard a criminal defendant's right to be present, a defendant
may expressly or effectively waive the right. . . . Tellingly,
[petitioner] did not object when the sidebar conference occurred
outside his presence. Therefore, as it is reasonable to conclude
that Rodriguez understood what was going on and that he had a
right under New York law to be present at sidebar, the likely
explanation for his absence is that he and his lawyer ? did not
think it was important for him to be present at the sidebar
conference.") (citations & quotation marks omitted); Dickens v.
Filion, 2002 WL 31477701 at *9; Giles v. Kuhlmann, 2002 WL
1751401 at *5 (petitioner's conduct can supply the evidence that
a waiver was knowing and voluntary); Moe v. Walker, 1998 WL
872417 at *3 ("The right may impliedly be waived when the defendant fails to invoke the right
to be present at a [voir dire sidebar] conference that he knows
is taking place.").
The trial judge here made Ellis and his counsel aware of his
state Antommarchi right to be present at a voir dire sidebar.
(See page 2 above.) Before voir dire began, the judge
acknowledged to counsel that defendant's presence would be
required "when the nature of the crime was discussed." (Id.)
Ellis' attorney responded, "I'll explain it to Mr. Ellis, Judge."
(Id.) The defense did not object in advance to the procedure,
nor did it object when venirepersons were called up to sidebar,
or after any particular venireperson's sidebar discussion.
(Id.) Thus, Ellis waived his right to be present at the
Finally, none of the nineteen venirepersons who participated in
sidebar discussions actually served on the jury: eighteen were
excused for cause and one was peremptorily challenged by the
defense. (See Ellis 1st Dep't Br. at 5-8.) Thus, any error in
Ellis' non-participation at sidebar would be harmless. See,
e.g., Sanchez v. Duncan, 282 F.3d at 82-83 (defendant's
absence from sidebar not prejudicial where none of the
venirepersons who participated in bench conferences served on the
jury); United States v. Feliciano, 223 F.3d at 112; Diaz v.
Herbert, 317 F. Supp. 2d at 475-76 (sidebar claim not
cognizable but even if it were, absence from sidebar discussions
harmless error where venirepersons did not serve on the jury);
Rodriguez v. Herbert, 2004 WL 1125431 at *5 ("[A]ny error in
precluding petitioner from the sidebar conference was harmless in
light of Sanchez, which is directly on point. Though petitioner
may not have been invited to sidebar on the occasion at issue, he
was unquestionably present during voir dire. . . . Finally, the
juror questioned during the sidebar conference was excused."); Giles v. Kuhlmann, No.
98-CV-7368, 2002 WL 1751401 at *4-5 (E.D.N.Y. July 11, 2002)
("[D]istrict courts in [the Second] circuit have held that there
is no right to be present at a sidebar conference during voir
dire. . . . [T]he Court of Appeals for the Second Circuit has
held that, if the right to be present at sidebar conferences
during voir dire exists, it is subject to harmless error
Ellis' claim that he was denied his constitutional right to be
present during a voir dire sidebar is not cognizable on federal
habeas review and, even if it were cognizable, is without merit.
Ellis' voir dire sidebar habeas claim should be DENIED.
III. ELLIS' CLAIM THAT THE RAPE CONVICTIONS WERE DUPLICITOUS
SHOULD BE DENIED BECAUSE IT IS UNEXHAUSTED BUT DEEMED EXHAUSTED
AND PROCEDURALLY BARRED
Ellis' third habeas claim challenges the four rape charges as
duplicitous: "Where petitioner was charged with four acts of rape
and the state trial court charged the jury with four acts of
rape, but the jury only convicted him on three counts, the
failure after counsel's request to identify to the jury the
particular act charged in each count rendered the rape counts
duplicitous." (Dkt. No. 1: Pet. ¶ 13(3).)
The First Department held that "the rape charges were not
duplicitous, either facially or in light of the trial evidence.
Each of the four alleged rapes had a separate count, which
complied with CPL 200.30(1) and 200.50(3), as well as comporting with the
trial testimony." People v. Ellis, 305 A.D.2d 208, 209,
761 N.Y.S.2d 11, 12 (1st Dep't 2003).*fn25
Ellis' brief to the First Department raised this issue solely
on state law grounds; there is not even any vague reference to
"due process" or a "fair trial" or any similar claim; no federal
cases are cited. (See Ellis 1st Dep't Br. at 41-44.)
Accordingly, he did not raise any federal constitutional claim
before the state courts (nor, for that matter, has he asserted
this claim in federal terms in his habeas petition). As such, the
claim is unexhausted, but deemed exhausted and procedurally
barred. A. The Exhaustion Doctrine: Background*fn26
Section 2254 codifies the exhaustion requirement, providing
that "[a]n 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 (A) the applicant has
exhausted the remedies available in the courts of the
State. . . ." 28 U.S.C. § 2254(b)(1)(A).*fn27 As
the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the
state courts' role in the enforcement of federal law and prevent
disruption of state judicial proceedings." Rose v. Lundy,
455 U.S. at 518, 102 S. Ct. at 1203; accord, e.g., O'Sullivan
v. Boerckel, 526 U.S. at 845, 119 S. Ct. at 1732.
The Second Circuit determines whether a claim has been
exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to
an appropriate state court the same federal
constitutional claim that he now urges upon the
federal courts. . . . Second, having presented his
federal constitutional claim to an appropriate state
court, and having been denied relief, the petitioner
must have utilized all available mechanisms to secure
[state] appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y.
June 12, 1997) (Mukasey, D.J. & Peck, M.J.) (quoting Klein v.
Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g.,
O'Sullivan v. Boerckel, 526 U.S. at 843-48,
119 S. Ct. at 1732-34.
"The exhaustion requirement is not satisfied unless the federal
claim has been `fairly presented' to the state courts." Daye v.
Attorney Gen., 696 F.2d at 191.*fn28 The Second Circuit
has held that a federal habeas petitioner must have alerted the
state appellate court that a federal constitutional claim is at
issue. E.g., Cox v. Miller, 296 F.3d at 99; Jones v.
Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862,
864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684,
688-89 (2d Cir. 1984); Daye v. Attorney Gen.,
696 F.2d at 191. In Daye, the Second Circuit en banc stated: [T]he ways in which a state defendant may fairly
present to the state courts the constitutional nature
of his claim, even without citing chapter and verse
of the Constitution, include (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
Daye v. Attorney Gen., 696 F.2d at 194.*fn29
B. Ellis' Duplicitous Rape Conviction Claim Raised In His
Appeal Brief To The First Department Is Unexhausted and
Ellis' duplicitous rape conviction claim did not fairly present
any federal constitutional issue in state court. Ellis did not
cite to the Constitution nor refer to "due process," "fair trial"
or similar constitutional phrases; Ellis cited no federal cases
nor state cases employing constitutional analysis. (See Dkt.
No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 41-44;
id. Ex. 6: 6/17/03 Letter to N.Y. Court of Appeals at 4 n. 4.)
Ellis claimed that the court "erred in failing to require the
jury to deliberate as to specifically identified rape charges and
thereby assuring that any conviction on any of the rape counts
was linked to a particular act to which the deliberating jurors
and anyone reviewing the verdict could refer." (Ellis 1st Dep't
Br. at 43.) Ellis' argument on his state appeal did not assert a
claim so particular as to call to mind a specific right protected
by the Constitution, nor did it set forth a pattern of facts within the
mainstream of constitutional litigation. Thus, Ellis' claim is
"`For exhaustion purposes, "a federal habeas court need not
require that a federal claim be presented to a state court if it
is clear that the state court would hold the claim procedurally
barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)
(quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991)
(quoting Harris v. Reed, 489 U.S. 255, 263 n. 9,
109 S. Ct. 1038, 1043 n. 9 (1989))).*fn30 "In such a case, a petitioner
no longer has `remedies available in the courts of the State'
within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke,
933 F.2d at 120. Consequently, such procedurally barred claims are
"deemed exhausted" by the federal courts. E.g., McKethan v.
Mantello, 292 F.3d 119, 122-23 (2d Cir. 2002); Ramirez v.
Attorney Gen., 280 F.3d at 94; Reyes v. Keane,
118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v.
James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied,
510 U.S. 1078, 114 S. Ct. 895 (1994); Grey v. Hoke,
933 F.2d at 120-21.*fn31 In this case, it is clear that Ellis is now barred from raising
this claim in federal terms in state court because it could have
been raised on direct appeal, but was not.*fn32 As the
Second Circuit explained in Washington v. James:
Consequently, we do not believe [Petitioner] has
fairly presented to the state courts his
constitutional objection. . . . [T]he state courts
have not had an opportunity to address the federal
claim raised on habeas review and this normally would
preclude our review of that claim.
. . . .
As we have already noted, this preclusion is not
technically the result of a failure to exhaust state
remedies, but is due to a procedural default.
[Petitioner] no longer has the right to raise his
claim under New York law either on direct appeal,
see McKinney's 1993 Revised N.Y. Court Rules §
500.10(a), or on collateral review. New York's
collateral procedures are unavailable because
appellant could have raised the claim on direct review but did not. See
N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore
[petitioner] has no further recourse in state court.
See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d
[at] 120. . . . Because he failed to raise his claim
in state court and no longer may do so, his claim is
996 F.2d at 446-47.*fn33
To avoid such a procedural default, Ellis would have to "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,"' i.e., a
showing of "actual innocence." Harris v. Reed,
489 U.S. at 262, 109 S. Ct. at 1043 (citations omitted); accord, e.g.,
Schlup v. Delo, 513 U.S. 298, 324-27, 115 S. Ct. 851, 865-67
(1995); Coleman v. Thompson, 501 U.S. 722, 735,
111 S. Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir.
1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996),
cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997);
Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.
1990).*fn34 Here, Ellis has not alleged cause and prejudice nor has he made
a showing of actual innocence. The duplicitous rape conviction
claim in Ellis' First Department brief rested solely on state
law. Thus, habeas review of this claim is procedurally barred.
IV. ELLIS' CLAIM THAT HIS RAPE AND SODOMY SENTENCES SHOULD
RUN CONCURRENTLY NOT CONSECUTIVELY TO HIS KIDNAPPING SENTENCE
SHOULD BE DENIED
Ellis' fourth habeas claim asserts that his sentences for rape
and sodomy should have been ordered to run concurrently rather
than consecutivelywith his kidnapping sentence because "the acts
of rape and sodomy were part of and a material element of the act
of kidnapping." (Dkt. No. 1: Pet. ¶ 13(4); see Dkt. No. 5:
A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 44.). Ellis
further claims that "[t]he acts of rape and sodomy were part of
an alleged pattern of coercion to influence [Bethune] who was
forced to witness them to comply with the defendants' demands."
(Ellis 1st Dep't Br. at 44-45.) As with Ellis' third habeas claim, this claim was raised below
solely as an issue of state law, and thus any federal claim is
unexhausted but deemed exhausted and procedurally barred. (See
Point III above.) In any event, even as a matter of state law,
because the actus reus elements for kidnapping and rape/sodomy
are neither the same, nor is one a material element of the other,
this claim should be denied.
New York Penal Law § 70.25(2) bars the imposition of
consecutive sentences "on a person for two or more offenses
committed through a single act or omission."*fn35 The New
York Court of Appeals in People v. Laureano analyzed Penal
Law § 70.25(2) as follows:
Because both prongs of Penal Law § 70.25(2) refer to
the "act or omission," that is, the "actus reus"
that constitutes the offense the court must determine
whether the actus reus element is, by definition,
the same for both offenses (under the first prong of
the statute), or if the actus reus for one offense
is, by definition, a material element of the second
offense (under the second prong). If it is neither,
then the People have satisfied their obligation of
showing that concurrent sentences are not required.
If the statutory elements do overlap under either
prong of the statute, the People may yet establish
the legality of consecutive sentencing by showing
that the "acts or omissions" committed by defendant
were separate and distinct acts.
People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 152
(1996) (citations omitted). For example, if a shooter injures two victims with a single
bullet, the two offenses are considered to be "committed through
a single act." Penal Law § 70.25(2).*fn36
If, however, the
two victims were hit by separate bullets, consecutive sentences
are appropriate under New York law, even if the shooter's intent
was to hit only one of the victims. See People v.
Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 256 (1984)
(consecutive sentences upheld; "although the two deaths may be
said to have occurred in the course of a single extended
transaction, the robbery, it was separate `acts' which caused the
two deaths (i.e., there is no contention that it was the firing
of the same gunshot that killed both of the two nonparticipants),
and neither was a material element of the other.").*fn37
Ellis was charged with, and convicted of first degree
kidnapping for "abduct[ing] Catrena [S.] with intent to compel
another [i.e., Bethune] to engage in particular conduct." (Dkt.
No. 5: A.D.A. Curbelo Aff. Ex. 9: Indictment, Count 1; see also
pages 7, 15-16 above.) Penal Law § 135.25 defines first degree
kidnapping: "A person is guilty of kidnapping in the first degree
when he abducts another person and when: (1) his intent is to
compel a third person to pay or deliver money or property as
ransom, or to engage in other particular conduct. . . ." The
actus reus for first-degree kidnapping is abduction, which
Penal Law § 135.00(2) defines as a restraining of "a person with
intent to prevent his liberation by either (a) secreting or
holding him in a place where he is not likely to be found, or (b)
using or threatening to use deadly physical force."
By contrast, according to Penal Law §§ 130.35(1) and 130.50(1),
the actus reus elements for first degree rape and sodomy
charges which Ellis was convicted of are sexual intercourse and
deviate sexual intercourse by forcible compulsion. Further, Penal
Law § 130.00(8) defines "forcible compulsion" as "to compel by
either: (a) use of physical force; or (b) a threat . . . which
places a person in fear of immediate death or physical injury to
himself, herself or another person. . . ."
Ellis committed first degree kidnaping when he restrained
Catrena in Charm's apartment using a gun, in order to compel
Bethune to return the money he believed Bethune had helped rob
from the apartment. (See page 7 above.) Ellis' rape of Catrena
was not a necessary element of the kidnapping charge. Similarly,
by having forced intercourse and oral sex with Catrena at
gunpoint, Ellis committed the crimes of rape and sodomy, without
regard to any effort to compel Bethune to talk. The acts of rape were not a material element of
the kidnapping charge, nor was the kidnapping and rape committed
through a single act. See Penal Law § 70.25(2). Therefore, the
imposition of consecutive sentences was appropriate under New
York law. See, e.g., Staton v. Berbary, No. 01-CV-4352,
2004 WL 1730336 at *9 (E.D.N.Y. Feb. 23, 2004) (upholding
defendant's kidnapping conviction because "the evidence at trial
established that Staton's commission of the robbery . . . was
separate and apart from the acts that constituted the unlawful
imprisonment."); Duncan v. Greiner, 97 Civ. 8754, 1999 WL
20890 at *8 (S.D.N.Y. Jan. 19, 1999) ("The crimes of kidnapping
and robbery each require proof of an element that is not required
to prove the other."); People v. Gonzales, 80 N.Y.2d 146,
153, 589 N.Y.S.2d 833, 838 (1992) ("The guiding principle is
whether the restraint was "so much the part of another
substantive crime that the substantive crime could not have been
committed without such acts and that independent criminal
responsibility may not fairly be attributed to them.' . . . [W]e
have no difficulty concluding that the lengthy abduction here,
accomplished with a deadly weapon, is the sort of behavior the
Legislature intended to proscribe as second degree kidnapping.
Indeed, the victim was `subjected . . . to a prolonged episode of
unremitting terror and physical brutality.' The abduction
constituted the discrete crime of second degree kidnapping which
was already completed, in all its elements, before the victim was
allegedly sexually assaulted. The restraint was not a minimal
intrusion necessary and integral to another crime, nor was it
simultaneous and inseparable from another crime. It was a crime
in itself.") (citations omitted); People v. Sceravino,
193 A.D. 2d 824, 825, 598 N.Y.S.2d 296, 298 (2d Dep't 1993) ("[T]he
defendant committed the acts constituting unlawful imprisonment
before he formed an intent to commit the sexual offenses so that the
merger doctrine should not be applied to the unlawful
imprisonment conviction. . . . [T]he imposition of consecutive
sentences was appropriate because the defendant's separate and
distinct acts violated more than one section of the Penal Law,
notwithstanding that his acts were part of a `continuous course
of activity.' Where, as here, `the acts constituting unlawful
imprisonment were separate and distinct from the sexual offenses,
the consecutive sentence for unlawful imprisonment was proper.'")
Because the actus reus elements for kidnapping and
rape/sodomy are neither the same, nor is one a material element
of the other, the sentences were properly ordered to run
consecutively as a matter of New York law. In any event, the
claim does not raise a federal constitutional claim. Ellis'
consecutive sentence habeas claim should be DENIED.
V. ELLIS' CLAIM THAT HIS SIXTH AMENDMENT RIGHT TO CONFRONT
WITNESSES WAS VIOLATED BY THE TRIAL JUDGE'S ALLOWING DR. BAUM TO
REPLACE DR. BING AS THE PROSECUTION'S DNA EXPERT WITNESS SHOULD
Ellis claims that his Confrontation Clause rights were violated
when the prosecution failed to call as a witness Dr. Bing, the
DNA expert who actually performed the DNA analysis. (Dkt. No. 1:
Pet. ¶ 13(5); see also Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 2:
Ellis Pro Se Supp. 1st Dep't Br. at 4-6.) After Dr. Bing issued
his expert report, he became ill with cancer and was unable to
testify. (See page 10 above.) The prosecution replaced Dr. Bing
with Dr. Baum in order to testify about the report and DNA
evidence in general. (See pages 10-12 above.) Ellis' counsel
extensively cross-examined Dr. Baum, and also called the
defense's own DNA expert to testify. (Id.) The Confrontation Clause of the Sixth Amendment affords the
accused the right "to be confronted with the witnesses against
him." U.S. Const. amend. VI. The Sixth Amendment's Confrontation
Clause is applicable in state criminal trials via the
Fourteenth Amendment. E.g., Crawford v. Washington, 541 U.S. 36, 42,
124 S. Ct. 1354, 1359 (2004); Douglas v. Alabama,
380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965); Pointer v. Texas,
380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965).*fn38 The primary
purpose of the Confrontation Clause is to prevent out-of-court
statements from being used against a criminal defendant in lieu
of in-court testimony subject to the scrutiny of
cross-examination. E.g., Douglas v. Alabama,
380 U.S. at 418-19, 85 S. Ct. at 1076-77; see, e.g., Crawford v.
Washington, 124 S. Ct. at 1373-69.*fn39 A. Dr. Bing's Report Was Found To Be A Business Record
It is unclear exactly what Ellis is claiming. To the extent he
is asserting a Confrontation Clause claim for the prosecution's
failure to call Dr. Bing to testify at trial, such a claim is
frivolous, since Dr. Bing did not testify for the prosecution.
See, e.g., Jamme v. Cockrell, No. 01-CV-1370, 2002 WL
1878403 at *8 (N.D. Tex. Aug. 12, 2002) ("the state was under no
obligation to call [complainant] as a witness just so petitioner
could cross-examine her. Petitioner could have subpoenaed this
witness if he wanted her testimony. Under these circumstances,
there was no confrontation clause violation."). The four pages on
this issue in Ellis' pro se supplemental brief to the First
Department largely seemed to challenge the "chain of custody" of
the evidence that was subjected to the DNA testing, but various
police and prosecutorial personnel testified at trial and were
extensively cross-examined as to the chain of custody issues.
Reading Ellis' pro se habeas petition liberally, however, as the
Court is required to, the Court assumes that his Confrontation
Clause claim goes to the admission into evidence of Dr. Bing's
report, showing that the DNA on the condoms and Catrena's
underwear came from Ellis and Bogle. (See pages 10-12 above.)
Dr. Bing's expert report was admitted into evidence through a
certification by Susan E. Mitchell, a supervisor in the Molecular
Biology Department of CBR Laboratories. (See pages 10-11
above.) Dr. Baum provided some additional foundation for the
expert report (Baum: Tr. 579), testifying that he was familiar
with Dr. Bing's work and CBR Laboratories (id. at 572-73). Dr.
Baum further explained how DNA testing is performed (id. at
310-19), and drew his expert conclusions after reviewing the laboratory protocol and Dr.
Bing's report, lab notes, worksheets, and photographs (id. at
The trial court allowed Dr. Bing's certified DNA report into
evidence under the business-record exception to the hearsay rule
despite Dr. Bing's unavailability to testify at trial, and as a
report that an expert like Dr. Baum could rely upon, and at least
under the peculiar facts of this case, the ruling was not
erroneous. See Fed.R. Evid. 803(6); C.P.L.R. § 4518.*fn40
In Beech Aircraft Corp. v. Rainey, 488 U.S. 153,
109 S. Ct. 439 (1988), the Supreme Court acknowledged that the business records exception expands to "encompass documents such
as medical diagnoses and test results." Beech Aircraft Corp. v.
Rainey, 488 U.S. at 163 n. 8., 109 S. Ct. at 446 n. 8; see,
e.g., United States v. Johnson, 297 F.3d 845, 864 n. 14
(9th Cir. 2002) (noting that the Confrontation Clause was not
violated by admission of certain documents because "the sales
orders, tapes, and bank records fell within the business records
exception."); United States v. Roulette, 75 F.3d 418, 422
(8th Cir. 1996) (laboratory reports identifying substance as
cocaine held admissible under business records exception);
United States v. Copeland, No. 94-1709, 122 F.3d 1058
(Table), 1995 WL 595054 at *2 (2d Cir. Sept. 11, 1995)
(concerning monthly charge card statement and sales receipts
showing defendant's purchase of masks and walkie-talkies which he
used in the robbery of a Post Office and assault of a postal
worker, the Court "adopted a generous view of the business
records exception to the rule against hearsay, favoring the
admission of such evidence if it has probative value."); United
States v. Rosa, 11 F.3d 315, 332 (2d Cir. 1993) (autopsy
report, whose author was unavailable, admissible under business
records exception sufficient to satisfy the Confrontation
Clause); Manocchio v. Moran, 919 F.2d 770, 777 (1st Cir.
1990) ("[T]he autopsy report presented in this case possessed
sufficient particularized guarantees of trustworthiness that its
admission in the absence of live testimony by its preparer did
not offend the Confrontation Clause."); Manning v. Strack,
No. 99-CV-3874, 2002 WL 31780175 at *6 (E.D.N.Y. Oct. 11, 2002)
(Raggi, D.J.) (petitioner was not denied a fair trial by the
receipt into evidence of an unavailable medical examiner's
autopsy report); Tucker v. Bennett, 219 F. Supp. 2d 260,
266-67 (E.D.N.Y. 2002); Natalie v. Barnett, No. Civ. A.
97-1291, 1998 WL 175890 at *2 (E.D. Pa. Apr. 2, 1998) ("It is
this element of trustworthiness that serves in place the safeguards of confrontation and
cross-examination usually afforded under the business records
exception to the hearsay rule. There was no need to call before
the jury each and every technician associated with the
plaintiff's blood alcohol test to explain this routine and
reliable procedure."); Montgomery v. Fogg, 479 F. Supp. 363,
370-72 (S.D.N.Y. 1979) (Weinfeld, D.J.) ("[A]n autopsy report
made and kept pursuant to statute . . . is admissible under the
official records exception to the rule against hearsay and does
not offend the confrontation clause of the New York State
Constitution" and the U.S. Constitution.).*fn41
Additionally, in light of Ohio v. Roberts, 448 U.S. 56, 66
n. 8, 100 S. Ct. 2531, 2533 n. 8 (1980),*fn42 the business
records exception to the hearsay rule is "firmly rooted," and Dr.
Bing's DNA report bore "particularized guarantees of
trustworthiness."*fn43 Dr. Bing's report had particular guarantees of trustworthiness as illustrated by Dr. Baum's
detailed testimony describing Dr. Bing's protocol and scientific
methods in conducting the DNA analysis. (See pages 10-12
above.) It is not uncommon for an expert who did not perform
certain tests to testify to the results of scientific tests
performed by others in an organization. See, e.g., People
v. Miller, 91 N.Y.2d 372, 379-80, 670 N.Y.S.2d 978, 982 (1998)
(permitting a forensic pathologist to render her expert opinion
based on the facts in the record including autopsy report
"despite the fact that she had not personally examined the corpus
delicti or performed the autopsy"); Sherman v. Scott,
62 F.3d 136, 141-42 (5th Cir. 1995) (admission of laboratory analysis did
not violate the Confrontation Clause when only the supervisor of
the chemists who prepared the report testified where report had
particularized guarantees of trustworthiness), cert. denied,
516 U.S. 1093, 116 S. Ct. 816 (1996); Minner v. Kerby,
30 F.3d 1311, 1315 (10th Cir. 1994) (allowing an expert substitution
when the original expert became unavailable and the substitution
expert testified as to standard laboratory procedures in relation
to the original expert's analysis); Reardon v. Manson,
806 F.2d 39, 41 (2d Cir. 1986) (finding that a chemist's report
admitted through the testimony of a supervisor did not violate
the Confrontation Clause since it was unlikely chemist who performed the tests would remember the
actual tests but rather would rely on their notes and general lab
practices that supervisor could testify to), cert. denied,
481 U.S. 1020, 107 S. Ct. 1903 (1987); People v. Atkins,
273 A.D.2d 11, 12, 709 N.Y.S.2d 39, 40 (1st Dep't) ("Confrontation of
the absent chemist would have had little or no utility, since the
chemist-witness was subject to cross-examination as to all
relevant matters concerning the reliability of the tests . . .
and since `[i]t is unlikely that a chemist would remember every
particular piece of evidence [s]he tested.'"), appeal denied,
95 N.Y.2d 960, 722 N.Y.S.2d 477 (2000); People v. Driscoll,
251 A.D. 2d 759, 760, 675 N.Y.S.2d 151, 153 (3d Dep't) (finding
unavailability is not a prerequisite for the admission of
business records, and further, that defendant's confrontation
right was not abridged when the chemist-expert was found
unavailable because the defendant had the opportunity to
cross-examine the expert's colleague on her laboratory notes),
appeal denied, 92 N.Y.2d 949, 681 N.Y.S.2d 479 (1998).
Due to the fact that a qualified expert performed the DNA
analysis in this case by following an accepted protocol to arrive
at a scientifically recognized result and memorialized those
results in a report considered to be a business record with
particularized guarantees of trustworthiness, Dr. Bing's expert
report was properly admitted through Dr. Baum, who was
extensively cross-examined by the defense. Ellis' Confrontation
Clause right was not violated.*fn44 B. The Confrontation Clause and Harmless Error Analysis
Even if the trial court erred in allowing Dr. Bing's report to
be admitted as a business record through Dr. Baum's testimony, on
the facts of this case the error was harmless.
It is settled law that "violations of the confrontation clause
may, in an appropriate case, be declared harmless" error. Klein
v. Harris, 667 F.2d 274, 290 (2d Cir. 1981), overruled on
other grounds by Daye v. Attorney Gen., 696 F.2d 186, 195
(2d Cir. 1982) (en banc), cert. denied, 474 U.S. 1048,
104 S. Ct. 723 (1984); accord, e.g., Lilly v. Virginia,
527 U.S. 116, 139-40, 119 S. Ct. 1887, 1901 (1999) (remanding case to
state court "to consider in the first instance whether this
Sixth Amendment [Confrontation Clause] error was harmless beyond a
reasonable doubt."); Coy v. Iowa, 487 U.S. 1012, 1021,
108 S. Ct. 2798, 2803 (1988) (holding that denial of face-to-face
confrontation is subject to harmless error review); United
States v. Bermudez, No. 02-1699, 2005 WL 1540193 at *2 (2d
Cir. June 29, 2005) (Confrontation Clause "violation `does not
necessitate a new trial as long as the government can show beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.'"); United States v.
Kiltinivichious, No. 03-1577, 2005 WL 1316998 at *1-2 (2d Cir.
June 1, 2005) (admission of co-defendants' plea allocutions was
harmless error); United States v. Foster, No. 03-1471,
127 Fed. Appx. 537, 539, 2005 WL 758205 at *1 (2d Cir. Apr. 4, 2005)
("`It is well established that violations of the Confrontation
Clause, if preserved for appellate review, are subject to
harmless error review, however, and Crawford does not suggest otherwise.'") (quoting United States v. McClain,
377 F.3d 219, 221-22 (2d Cir. 2004)); United States v.
Tropeano, 252 F.3d 653, 659 (2d Cir. 2001) ("[H]armless error
analysis applies to evidentiary errors and to violations of the
Confrontation Clause."); United States v. Lee., 02 Cr. 602,
2005 WL 476189 at *2 (S.D.N.Y. Feb. 25, 2005) ("Assuming the
admission of [a] statement was a violation of defendant's
Sixth Amendment Confrontation Clause rights, however, I must consider
whether the admission was harmless error. . . ."); United
States v. Hundley, 02 Cr. 441, 2004 WL 2414038 at *8 (S.D.N.Y.
Oct. 28, 2004) ("Admission of evidence in violation of the
confrontation clause is not a structural error automatically
requiring a new trial but rather is subject to harmless error
review."); Haymon v. New York, 332 F. Supp. 2d 550, 558-59
(W.D.N.Y. Aug. 11, 2004); Del Pilar v. Phillips, 03 Civ.
8636, 2004 WL 1627220 at *19 (S.D.N.Y. July 21, 2004) (Peck,
M.J.).*fn45 [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] In conducting a Confrontation Clause harmless error analysis,
the Supreme Court and the Second Circuit have set forth the
appropriate factors to consider:
In conducting this analysis, we must consider (1) how
important the witness' testimony was to the
prosecution's case, (2) whether the testimony was
cumulative, (3) whether other evidence in the record
corroborated or contradicted the witness on relevant
matters, (4) whether other cross-examination of the
witness was permitted and the extent of it, and (5)
what effect the testimony would have on proof of
defendant's guilt. See Van Arsdall,
475 U.S. at 684, 106 S. Ct. at 1438.
Tinsley v. Kuhlmann, 973 F.2d at 166.*fn46
of the prosecution's case against the defendant is the most
significant" factor in determining whether a trial error is
harmless. Samuels v. Mann, 13 F.3d at 526, 527 ("In order to
find the [Confrontation Clause] error in this case to be
harmless, we need not conclude that the evidence against Samuels
was overwhelming. Indeed, in Brecht, the Court found the evidence of the petitioner's guilt
to be `if not overwhelming, certainly weighty.'").*fn47
The evidence against Ellis was at least weighty. The jury heard
Bethune and Catrena identify Ellis and Bogle as the men who
repeatedly raped and sodomized Catrena, and further describe the
rapes in detail. (See pages 7-9 above). Detectives Shaw and
Schiffman described on the stand how Ellis and Bogle both ran
away from the scene of the crime as the police arrived but were
arrested at the scene. (See Shaw: Tr. 68-71; Schiffman: Tr.
690-92.) Catrena identified Ellis and Bogle at lineups. (See
page 9 above.) The DNA evidence extensively cross-examined and
further examined through the defense witness (see pages 10-12
above) was at most confirmation of Bethune's and particularly
Catrena's strong and unshaken testimony. Thus, even if the trial
judge erred in admitting Dr. Bing's DNA report through Dr. Baum,
any error was harmless.
Ellis' Confrontation Clause habeas claim should be DENIED. VI. ELLIS' CLAIM THAT HE WAS DENIED HIS RIGHT TO DUE PROCESS
AND A FAIR TRIAL BECAUSE THE PROSECUTION COMMITTED BRADY AND
ROSARIO VIOLATIONS WHEN THEY FAILED TO TURN OVER A POLICE REPORT
IS WITHOUT MERIT
Ellis claims in his habeas petition, as he did on appeal before
the First Department, that the prosecution did not timely
disclose a DD5 Complaint Follow-Up Report prepared by Detective
Stanley Schiffman on January 22, 1999, and that this should have
resulted in a mistrial pursuant to Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194 (1963). (Dkt. No. 1: Pet. ¶ 13(6); Dkt.
No. 5: A.D.A. Curbelo Aff. Ex. 2: Ellis Pro Se Supp. 1st Dep't
Br. at 8-14; Dkt. No. 8: Ellis Traverse at 8-9.)
A. The Brady v. Maryland Standard*fn48
Under Brady v. Maryland and its progeny, state as well as
federal prosecutors must turn over exculpatory and impeachment
evidence, whether or not requested by the defense, where the
evidence is material either to guilt or to punishment. See,
e.g., Strickler v. Greene, 527 U.S. 263, 280,
119 S. Ct. 1936, 1948 (1999); United States v. Bagley, 473 U.S. 667,
676, 682, 105 S. Ct. 3375, 3380, 3383-84 (1985); United States
v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976);
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97
(1963).*fn49 The Brady rule also encompasses evidence
known only to the police: "In order to comply with Brady,
therefore, `the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government's
behalf in this case, including the police.'" Strickler v.
Greene, 527 U.S. at 281, 119 S. Ct. at 1948 (quoting Kyles v.
Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995)).
The Brady rule does not require a prosecutor to "deliver his
entire file to defense counsel," but only to disclose those items
which are material to the defendant's guilt or punishment.
United States v. Bagley, 473 U.S. at 675, 105 S. Ct. at 3380;
accord, e.g., Kyles v. Whitley, 514 U.S. at 437,
115 S. Ct. at 1567 ("We have never held that the Constitution demands on
open file policy."); United States v. Agurs,
427 U.S. at 108-09, 96 S. Ct. at 2400.*fn50
"There are three components of a true Brady violation: 
The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching;  that evidence must have been suppressed by the State, either willfully
or inadvertently; and  prejudice must have ensued."
Strickler v. Greene, 527 U.S. at 281-82,
119 S. Ct. at 1948.*fn51 B. Application of the Brady Standard to Ellis' Claim
The Court need not examine the first two prongs (that the
evidence was favorable and suppressed by the State), because
Ellis has not satisfied the third Brady prong, prejudice.
(See page 64 above.)
The defensewas aware that the complainants had identified Ms.
Bruce as having been in the apartment at the time of the rapes.
(See page 8 above.) After the defense learned of Ms. Bruce's
statements to the police during the prosecution's case, the
defense was able to subpoena Ms. Bruce and she testified for the
defense at trial, giving substantially the same testimony as was
recorded in the DD5s. (See pages 13-14 above.) Thus, the
defense obtained the advantage of Ms. Bruce's testimony at
Since the jury received the information contained in Ms.
Bruce's DD5 statement via her in-court testimony, there is no
reasonable possibility that a more timely disclosure of the DD5
might "have affected the outcome of the trial." United States
v. Agurs, 427 U.S. at 104, 96 S. Ct. at 2398; see also
Banks v. Dretke, 540 U.S. at 698, 124 S. Ct. at 1276
("Kyles instructed that the materiality standard for Brady
claims is met when `the favorable evidence could reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict.'") (quoting Kyles v. Whitley, 514 U.S. at 434-35, 115 S. Ct. at 1566).
Given these facts, there can be little doubt that Ellis was
properly convicted, and that the untimely disclosure of the DD5
was not prejudicial. See e.g., Cheng v. Greiner, 02 Civ.
4804, 2003 WL 22801348 at *5 (S.D.N.Y. Nov. 25, 2003) (finding no
Brady violation where, "even assuming the statements
constituted Brady material, they were disclosed in time for
[petitioner's] counsel to use them if he so desired."); Bynum
v. Duncan, 02 Civ. 2124, 2003 WL 296563 at *10 (S.D.N.Y. Feb.
12, 2003) ("[T]he First Department's finding that the delay [in
turning over DD5s] did not present a reasonable probability that
the result of the proceeding would have been different is not
contrary to clearly established federal law, and the Brady
claim must be rejected."); Steele v. Walter,
11 F. Supp. 2d 252, 258 (W.D.N.Y. 1998) ("A petitioner cannot establish a Brady
violation when defense counsel ultimately received the materials
and had an opportunity to prepare for cross-examination using
those materials."); Edkin v. Travis, 969 F. Supp. 139, 143
(W.D.N.Y. 1997) ("Brady is not violated, however, when defense
counsel ultimately receives the materials and has an opportunity
to cross-examine the witness using the withheld documents.")
(citing Forrest v. Mitchell, 91 Civ. 7922, 1992 WL 367039 at
*3 (S.D.N.Y. Dec. 2, 1992), aff'd, 22 F.3d 1092 (2d Cir. 1994));
Robinson v. Smith, 530 F. Supp. 1386, 1391 (W.D.N.Y. 1982)
("Inasmuch as the [allegedly withheld] exculpatory evidence in
question was fully presented to the jury, petitioner's Brady
claim is without merit.").*fn53 The state courts' dismissal of Ellis' Brady claim was not
erroneous, much less an unreasonable application of Brady and its
progeny. Therefore, Ellis' Brady habeas claim is DENIED.
C. Ellis' Rosario Claim
Ellis' sixth habeas claim also asserts a violation of New
York's Rosario rule*fn54 when the prosecution did not
timely disclose Detective Schiffman's DD5. (Dkt. No. 1: Pet. ¶
13(6); Dkt. No. 8: Ellis Traverse at 8-9; see Dkt. No. 5: A.D.A. Curbelo
Aff. Ex. 2: Ellis Pro Se Supp. 1st Dep't Br. at 8-14.) The
Rosario claim, however, is a state law claim that is not
cognizable on habeas review.
While the federal Brady rule that due process requires
prosecutors to provide materially exculpatory evidence to the
defense and New York's Rosario rule, requiring disclosure of
witness statements in criminal cases, overlap considerably, they
are not identical, and Rosario (as opposed to Brady) claims are
not cognizable on habeas review. See, e.g., Landy v.
Costello, No. 97-2433, 141 F.3d 1151 (table), 1998 WL 105768 at
*1 (2d Cir. Mar. 9, 1998) (Rosario obligations arise solely
under state law); Skinner v. Duncan, 01 Civ. 6656, 2003 WL
21386032 at *27 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Pena v.
Fischer, 00 Civ. 5984, 2003 WL 1990331 at *10 (S.D.N.Y. Apr.
30, 2003) ("`[F]ederal courts have consistently held that
Rosario claims are not subject to federal habeas corpus review
because they arise exclusively under state law."); Bynum v.
Duncan, 02 Civ. 2124, 2003 WL 296563 at *9 n. 5 (S.D.N.Y. Feb.
12, 2003) (Rosario claims are not cognizable on habeas review);
Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *6 (S.D.N.Y.
Aug. 18, 2000) (Peck, M.J.) (& cases cited therein); Sutherland
v. Walker, 97 Civ. 4432, 1999 WL 1140870 at *9 (S.D.N.Y. Dec.
10, 1999) (a prosecutor's failure to turn over "Rosario
material," unlike failure to provide Brady material, is not
reviewable by a federal habeas court); Green v. Artuz,
990 F. Supp. 267, 274 (S.D.N.Y. 1998) ("[F]ailure to turn over Rosario
material is not a basis for habeas relief as the Rosario rule
is purely one of a state law"); Bernard v. Stinson, 97 Civ.
1873, 1998 WL 40201 at *4 (S.D.N.Y. Jan. 30, 1998); Copes v.
Schriver, 97 Civ. 2284, 1997 WL 659096 at *4 (S.D.N.Y. Oct. 22, 1997) (Rosario violation does not establish a
constitutional violation); Morrison v. McClellan,
903 F. Supp. 428, 429 (E.D.N.Y. 1995) ("Any error under Rosario at
trial would be a violation of state law, and, thus, not subject
to review under a petition for a writ of habeas corpus.").
Accordingly, Ellis' sixth habeas claim asserting Brady and
Rosario violations should be DENIED.
For the reasons set forth above, Ellis' habeas petition should
be DENIED in its entirety.
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 the Court, with
courtesy copies delivered to the chambers of the Honorable Sidney
H. Stein, 500 Pearl Street, Room 1010, and to my chambers, 500
Pearl Street, Room 1370. Any requests for an extension of time
for filing objections must be directed to Judge Stein. Failure to
file objections will result in a waiver of those objections for
purposes of appeal. Thomas v. Arn, 474 U.S. 140,
106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann,
9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822,
115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.
Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989); 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); 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72, 6(a), 6(e).