United States District Court, S.D. New York
September 19, 2005.
ROMERE ANDERSON, Petitioner,
GLENN G. GOORD, COMMISSIONER, Acting Superintendent Fishkill New York State Department of Corrections, Respondent.
The opinion of the court was delivered by: KEVIN CASTEL, District Judge
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner Romere Anderson, after a jury trial in the Supreme
Court of the State of New York, Bronx County (Cirigliano, J.),
was convicted of one count of murder in the first degree under
New York Penal Law § 125.27(1)(a)(vii). On May 6, 1999, Justice
Cirigliano imposed a sentence of an indeterminate term of
imprisonment from 25 years to life. Petitioner appealed his
conviction to the Appellate Division, First Department, and, by
Order dated October 16, 2001, the Appellate Division unanimously
affirmed the conviction. People v. Anderson, 287 A.D.2d 324
(1st Dep't 2001).*fn1 Petitioner sought leave to appeal the
Appellate Division's Order to the New York Court of Appeals and,
on December 26, 2001, leave was denied. 97 N.Y.2d 678 (2001).
On February 7, 2003, petitioner filed, pro se, a timely
petition for habeas corpus relief under 28 U.S.C. § 2254,
presenting a single claim that the prosecution failed to prove his guilt beyond a reasonable doubt and that, therefore,
his conviction constituted a violation of his due process rights.
The matter was initially assigned to Judge Buchwald. On August
12, 2003, respondent filed his opposition to the petition.
Pursuant to petitioner's request, on September 15, 2003, Judge
Buchwald extended his time to serve reply papers in support of
the petition to November 21, 2003, and ordered that no further
extensions would be granted. On November 12, 2003, I informed the
parties by letter that this matter had been reassigned to my
docket, and that all existing deadlines set by Judge Buchwald,
including that for petitioner's reply papers, remained in effect.
On January 7, 2004, having still received no reply submission
from petitioner, I ordered that the petition would be decided on
the current papers.
On March 19, 2004, I referred the petition to United States
Magistrate Judge Douglas F. Eaton. Judge Eaton issued a Report
and Recommendation ("R&R") on July 13, 2004, in which he
recommended that I deny the petition. Petitioner objected to
Judge Eaton's R&R, claiming that Judge Eaton "applied the wrong
standard on petitioner's claim that the People failed to prove
his guilt beyond a reasonable doubt." (Pet. Obj. at 1 (citing
Jackson v. Virginia, 443 U.S. 307 (1979)). Petitioner asserts
that there was "no material or physical evidence, nor eyewitness
testimony connecting the petitioner to the crime. The only
claimed evidence connecting the petitioner to the crime, is the
testimony of witness Cheryl Washington, who claimed the
petitioner confessed to his [role] in the murder." (Pet. Obj. at
1) Respondent also objected to the R&R to the extent that Judge
Eaton found that petitioner had exhausted his state court
remedies prior to filing the instant petition, as required under
28 U.S.C. § 2254(b)(1)(A). In light of the parties' timely
objections, this Court reviews the R&R on a de novo basis.
28 U.S.C. § 636(b); Rule 72(b), Fed.R.Civ.P. Having reviewed the petition, respondent's opposition thereto,
and the underlying record, including the trial transcript, I
adopt Judge Eaton's R&R, and deny the petition for a writ of
habeas corpus. Petitioner did sufficiently exhaust his state
court remedies, but has not demonstrated a violation of his
Constitutional right to due process.
Judge Eaton's conclusion that petitioner exhausted his state
court remedies is well founded. To have exhausted state remedies
under 28 U.S.C. 2254(b)(1)(A), a petitioner must have "fairly
presented" his federal habeas claims to the highest court of the
state. See Picard v. Connor, 404 U.S. 270, 275 (1971). A fair
presentation requires a petitioner to have presented the court
with both the factual and legal bases for his claims. Id. at
276-77. Petitioner must also have made the court aware of the
Constitutional nature of the claims that form the basis of his
habeas petition. See Daye v. Attorney General, 696 F.2d 186,
192-93 (2d Cir. 1982) (en banc).
Respondent's objections to Judge Eaton's finding of exhaustion
are based on the fact that, in her letter to the New York Court
of Appeals seeking leave to appeal the Appellate Division's
Order, petitioner's counsel did not explicitly state the issue or
issues on which petitioner sought leave to appeal, simply stating
that the Appellate Division briefs of the parties were enclosed.
(Resp. Mem. at 5) Respondent contends that failure to delineate
the particular claim on which petitioner sought leave to appeal,
or to explicitly request review of "all issues" presented in
petitioner's brief, constitutes a failure to exhaust state
remedies. (Id. at 5-8)
The Second Circuit recently addressed this issue. In Galdamez
v. Keane, 394 F.3d 68, 76-77 (2d Cir.), cert. denied,
___ U.S. ___, 125 S. Ct. 1996 (2005), the court held that, where a
petitioner had failed to specify which of his claims he wished to
present to the New York Court of Appeals, and had also failed to
explicitly state that he sought leave to appeal on "all issues," petitioner had nevertheless properly exhausted his
state court remedies. The petitioner in Galdamez, like
petitioner here, had merely requested leave to appeal and
enclosed the Appellate Division briefs and the Appellate
Division's decision. The court found this sufficient. "[W]e can
only conclude that the Court of Appeals would construe the
concise application in this case as a request for review of all
of the issues outlined in the briefs." Id. at 76. (emphasis in
original). The court held that an explicit statement requesting
review of all issues "is unnecessary where the only fair import
of the total application suggests a request for review of all the
issues argued to the Appellate Division." Id. (citation and
internal quotations omitted).*fn2
Here, the case for exhaustion is more firmly grounded. Each of
the cases cited by respondent in support of his argument that
petitioner failed to exhaust state remedies differs from the
present case in one critical respect recognized by Judge Eaton.
In each of those cases, as in Galdamez, more than one issue was
presented to the Appellate Division, and the habeas court
grappled with the question of which, if any, of those issues were
properly presented to the New York Court of Appeals. See
Ramirez v. Attorney General, 280 F.3d 87, 96-97 (2d Cir. 2001)
(ineffective assistance of counsel and confrontation clause
rights); Richardson v. Greiner, 2003 WL 76994 at * 1 (S.D.N.Y.
2003) (insufficient evidence, deprivation of right to fair trial,
improper jury charge); Fernandez v. Artuz, 2002 WL 977372 at *1
(S.D.N.Y. 2002); (five claims including, inter alia, due
process and Eighth Amendment claims); Black v. McGinnis, 2001 WL 209916 at *4 (S.D.N.Y.
2001) (Fourteenth Amendment violation resulting from failure to
give a missing witness charge and "sentence reduction in the
interests of justice"); Perez v. Greiner, 2000 WL 915114 at *6
n. 7 (S.D.N.Y. 2000).
Here, petitioner's Appellate Division brief, like his habeas
petition, raised only one claim potentially reviewable by this
Court. There was but one (admittedly lengthy) point heading in
the argument section of petitioner's Appellate Division brief. It
WHERE NO PHYSICAL EVIDENCE LINKED APPELLANT TO THE
CRIME, NONE OF THE WITNESSES IDENTIFIED APPELLANT AS
A PERPETRATOR, AND CHERYL WASHINGTON'S BIZARRE
ACCOUNT OF APPELLANT'S ALLEGED CONFESSION WAS REFUTED
BY NICOLE MORRIS AND JOANNE JONES, THE PEOPLE FAILED
TO PROVE APPELLANT GUILTY OF MURDER IN THE FIRST
DEGREE BEYOND A REASONABLE DOUBT IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW.
U.S. CONST., AMENDS. V, XIV; N.Y. CONST., ART. I, SECTION
(Liu Aff't. Ex. 1 at 25) The argument section corresponding to
that point occupied only four pages, and succinctly set forth the
petitioner's argument about the alleged insufficiency of the
evidence at trial to sustain petitioner's conviction. (Id. at
25-28) The remainder of the brief was dedicated to setting forth
the facts petitioner deemed relevant to this argument, largely
descriptions of the testimony at trial, supported by citation to
the trial transcript. (Id. at 2-24)
Even prior to the Galdamez decision, where only one issue is
presented to the Appellate Division, courts have held that merely
referencing the attached Appellate Division briefs in a letter
seeking leave from the Court of Appeals is sufficient to
constitute adequate presentation of claims for habeas exhaustion
purposes. In such cases, "the simplicity of the documents
suffice[s] to clearly inform the Court of Appeals that the issue
raised in the brief was also the basis for the application for
granting leave." Williams v. Walsh, 2004 WL 2754859 at *2
(S.D.N.Y. 2004) (citation omitted); Concepcion v. Portuondo,
1999 WL 604951 at *3 (S.D.N.Y. 1999) (where only one issue was raised in
Appellate Division brief and discussed in that court's opinion,
"the only issue that the Court of Appeals could have considered
is the sole issue raised in this petition.").
In denying the instant petitioner leave to appeal, the Court of
Appeals noted that "there is no question of law presented which
ought to be reviewed by the Court of Appeals." (Liu Aff't., Ex.
5) Here, there was no risk that the Court of Appeals was being
asked to "look for a needle in a paper haystack." Grey v. Hoke,
933 F.2d 117, 120 (2d Cir. 1991). The federal nature of
petitioner's claim was also evident in the submission to the
Court of Appeals. In Williams, the court found that petitioner
had exhausted his state remedies even though the appellate briefs
attached to his application for leave "cast the legal
insufficiency . . . claim in terms of New York state law, and
failed to cite the federal constitutional standard under Jackson
v. Virginia, 443 U.S. 307 (1979)." 2004 WL 2754859 at *2
(footnote omitted). Here, the federal basis for petitioner's
claim is evident from the point heading quoted above, which
explicitly references the U.S. Constitution, and petitioner did,
in fact, cite Jackson in the brief. (Liu Aff't., Ex. 1 at 25)
Petitioner presented a single claim, and it did not escape the
notice of the Court of Appeals.
I now turn briefly to the merits of the petition, addressed
more fully in Judge Eaton's R&R. Under the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), a federal court
exercising habeas jurisdiction may only disturb a state court
adjudication if such adjudication:
(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) resulted in a
decision that 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). A decision is contrary to clearly
established federal law if it "contradicts the governing law" or
"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" the Supreme
Court. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
unreasonable application of federal law is more than an incorrect
application, but the petitioner need not show that all reasonable
jurists would agree that a state court determination is incorrect
in order for it to be unreasonable. Id. at 409-12. Instead, a
federal court should review a state court's interpretation of
federal law using a standard of objective reasonableness. Id.
at 409. The "increment of incorrectness beyond error . . . need
not be great; otherwise, habeas relief would be limited to state
court decisions so far off the mark as to suggest judicial
incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
2000) (citation and internal quotations omitted). "We must
presume the state court's factual findings to be correct and may
overturn those findings only if petitioner offers, clear and
convincing evidence of their incorrectness." Yung v. Walker,
341 F.3d 104, 109 (2d Cir. 2003) (citing 28 U.S.C. § 2254(e)).
Judge Eaton properly noted the standard for challenging the
sufficiency of the evidence to support a conviction under
Jackson. "[T]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319
(citation omitted) (emphasis in original). Because the evidence
must be viewed in the light most favorable to the prosecution,
"[p]etitioner bears a very heavy burden in convincing a federal
habeas court to grant a petition on the grounds of insufficient
evidence." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir.
2002) (citation and internal quotations omitted). Viewing the
facts in the light most favorable to the prosecution, the court must "decide whether the record is `so totally devoid of
evidentiary support that a due process issue is raised.'"
Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994), cert.
denied, 514 U.S. 1054 (1995) (quoting Mapp v. Warden, N.Y.
State Correctional Inst. For Women, 531 F.2d 1167, 1173 n. 8 (2d
Cir.), cert. denied, 429 U.S. 982 (1976)).
The crux of petitioner's argument is that there was "no
physical evidence" linking him to the murder of which he was
convicted, and that the testimony about petitioner's alleged
confession which he contends is the only evidence tying him to
the crime (Pet. Obj. at 1) was controverted by two other
witnesses, and was "bizarre." (Liu Aff't., Ex.1 at 25) That the
testimony of a witness is controverted by the testimony of other
witnesses, however, does not render it insufficient evidence to
support a conviction. It is not the province of a habeas court to
reevaluate credibility determinations made by a jury that was
presented with the opportunity to observe those witnesses.
"[U]nder Jackson, the assessment of the credibility of
witnesses is generally beyond the scope of review." Schlup v.
Delo, 513 U.S. 298, 330 (1995); see also Bossett,
41 F.3d at 830 ("Although appellants emphasize the lack of physical
evidence connecting them to the murder and contend that the
testifying witnesses were not credible, a conviction may be based
upon circumstantial evidence and inferences based on the
evidence, and the jury is exclusively responsible for determining
a witness' [sic] credibility.") (citation and internal quotations
The Appellate Division, in its opinion, did discuss witness
credibility, and found that the jury "properly accepted the
testimony of the witness who testified to having heard
defendant's detailed confession over that of the witnesses who
contradicted her. We find no reason on this record to find that
her testimony was in any way implausible." Anderson,
287 A.D.2d at 325. There was, moreover, corroborating evidence that puts to
rest any find no reason on this record to find that her testimony was in
any way implausible." Anderson, 287 A.D.2d at 325. There was,
moreover, corroborating evidence that puts to rest any contention
that the record is "totally devoid of evidentiary support" for
petitioner's conviction. See R&R at 10-13.
Having reviewed the petition, the submissions in support and
opposition, the state court trial transcript and the Objections
of both parties, I find Judge Eaton's R&R to be well reasoned and
thoroughly grounded in law.
The Report and Recommendation is ADOPTED in its entirety, and
the petition is DISMISSED. The Clerk is directed to enter
judgment in favor of respondent.
As petitioner has not made a substantial showing of the denial
of a constitutional right, a certificate of appealability will
not issue. See 28 U.S.C. § 2253; Lozada v. United States,
107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds
by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir.
1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this order would not be taken in good faith.
See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917
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