UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 3, 2006
ROBERT HOPKINS, PETITIONER,
JOHN BURGE, RESPONDENT.
The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge:
REPORT AND RECOMMENDATION SUPERINTENDENT
To the Honorable Jed S. Rakoff, United States District Judge:
Petitioner Robert Hopkins, represented by the Center for Appellate Litigation, seeks a writ of habeas corpus from his August 5, 2002 conviction in Supreme Court, Bronx County, of second degree robbery and third degree criminal possession of stolen property, and concurrent sentences, the longest of which was nine years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-3.) Hopkins' habeas petition raises the single claim that the trial court's admission into evidence of the guilty plea allocution of a non-testifying co-defendant violated Hopkins' Sixth Amendment confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and was not harmless error. (Pet. ¶ 11; see Dkt. No. 2: Hopkins Habeas Br. at 1.)
For the reasons set forth below, Hopkins' habeas petition should be DENIED.
Petitioner Robert Hopkins and co-defendants Clarence Woods and Calvin Rivers were indicted for robbery and possession of stolen property for the robbery of Ravon Pierce in the early morning hours of Sunday, January 7, 2001. (See generally Dkt. No. 2: Hopkins Habeas Br. at 2; Dkt. No. 9: State Habeas Br. at 2.) Rivers pled guilty to first degree robbery prior to trial, and his plea allocution was read to the jury at the trial of Hopkins and co-defendant Woods. (See generally Hopkins Habeas Br. at 2; State Habeas Br. at 2.)
The Prosecution Case at the Trial of Hopkins and Woods
Victim Ravon Pierce's Testimony
The prosecution's first witness at trial, and its main witness, was the robbery victim, Ravon Pierce. (Dkt. Nos. 5-6: Trial Transcript ["Tr."] 2, 4.)
Pierce testified that in the early morning hours of January 7, 2001 he borrowed his mother's car,*fn1 a Toyota Camry with license BU147M, and drove to 562 Morris Avenue in the Bronx to meet his friend, a woman he knew only as "Puck," and take her out to eat. (Pierce: Tr. 4-6, 236-38, 395-96, 410-11.) Pierce parked a short distance from Puck's building, on the same side of the street. (Pierce: Tr. 7, 15, 24-25, 239-44, 412.) Pierce went to a nearby store and bought a "Zima," a wine cooler-type alcoholic beverage. (Pierce: Tr. 6-7, 26, 246, 250, 261, 265, 414.) Pierce was carrying a green backpack type book bag with a notepad and two books in which he had written his name. (Pierce: Tr. 27-28, 275.)
Four men were "hanging out" in front of Puck's building. (Pierce: Tr. 6-7, 26, 223, 253, 273-74, 415.) Pierce asked one of the men if they knew who Puck was, and the "shortest" man with the "red bandana" in his back pocket responded that she lived on the second floor, so Pierce entered the building. (Pierce: Tr. 7, 26-27, 29-30, 251-53, 272, 391-92, 414-15.) In court, Pierce unequivocally identified the man with the red bandana as Hopkins. (Pierce: Tr. 30, 56, 464-65.)
Pierce went up to the second floor and knocked on Puck's apartment door, but no one responded. (Pierce: Tr. 40-41, 224, 272, 416.) Since Pierce had spoken to Puck thirty minutes before to say he was on his way, he thought she might be "playing games," so he waited outside her apartment door, drinking his wine cooler. (Pierce: Tr. 41, 274, 276, 278-79, 430.)
The four men Pierce had seen in front of the building came upstairs. (Pierce: Tr. 42-43, 224, 278-79, 389, 392, 430.)
Hopkins spoke to Pierce, knocked on Puck's door, and made a cell phone call, possibly to Puck. (Pierce: Tr. 43, 224-25, 260, 389-40.) After about five minutes, one of the men told Pierce to leave, but as Pierce started to walk down the steps, one of the men hit him in the right eye. (Pierce: Tr. 44-45, 58, 227-28, 265-66, 280-81, 299-301, 431-32.) At trial, Pierce initially testified that it was Woods who hit him (Pierce: Tr. 44-45), but immediately changed his mind and said it was not Woods but the man with a silver outfit who hit him, while Pierce said Woods was wearing a black leather jacket that night. (Pierce: Tr. 46-47.) A few minutes later in his testimony, however, Pierce said that it was the unidentified man who punched him who was wearing the black leather jacket, and that Woods was wearing the silver jacket. (Pierce: Tr. 53-56, 58; see also id. at 338-40.) Pierce, however, consistently identified Hopkins as the man with the red bandana. (Pierce: Tr. 20, 56, 464-65, 474.)
When he got hit, Pierce felt a little dizzy, with blurred vision, but was still able to see. (Pierce: Tr. 58-59, 330, 435-36.)*fn2 Pierce noticed he was bleeding, he ran and the men gave chase. (Pierce: Tr. 58-59, 431-33.) Pierce was thrown or pushed down the last steps into the lobby. (Pierce Tr. 59-62, 228-29, 434, 438.) Pierce's ankle hurt, so he crawled toward the front door, but the men pulled him back into the lobby. (Pierce: Tr. 62-63, 229, 305-07, 439-40, 455.) Hopkins kneeled over Pierce and asked Pierce where was the money. (Pierce: Tr. 64-67, 231-32, 312, 331.) Pierce gave Hopkins $2, which he said was all he had,*fn3 and Hopkins took Pierce's book bag. (Pierce: Tr. 67, 75, 76-77, 78, 308.) The man in the silver outfit was squatting an arms length away with a knife in his hand. (Pierce: Tr. 67-69, 72-75, 232, 266, 331.) The man also told Pierce that he had a gun. (Pierce: Tr. 333-34.)
At some point, Pierce asked if they wanted his car keys also, and he gave or "threw" his car keys; the man with the black leather jacket took them and ran out of the building. (Pierce: Tr. 77, 111-12, 233-34, 308, 312-14, 318, 332, 371-72, 382-83.)
Hopkins told Pierce to stand up. (Pierce: Tr. 75, 78, 114.) Hopkins and the man with the knife wearing the silver outfit walked Pierce to the basement and told him not to leave until they came back. (Pierce: Tr. 78-79, 320.)
Pierce remained in the basement for thirty minutes, or forty-five minutes to an hour (his testimony was inconsistent), when two other men entered the basement and asked whether Pierce was alright, and Pierce responded that he had been robbed. (Pierce: Tr. 86-87, 259, 321-25, 383-84, 444-46.) Pierce went upstairs and after a little while went outside to go to the hospital. (Pierce: Tr. 88-89, 329.) Pierce saw that his car was not where he had parked it. (Pierce: Tr. 90-91, 447.) Pierce walked to the emergency room of Lincoln Hospital, but did not feel like waiting, so he left and walked to a police precinct, to more promptly report the car as stolen. (Pierce: Tr. 91-92, 98, 267-68, 451, 526-27.) The police drove him to a different police precinct (Pierce: Tr. 98-99, 457, 527), where he told the police what had happened. (Pierce: Tr. 100, 262-63, 458-59.) Pierce told the police that his car had been stolen and gave the police the license plate number. (Pierce: Tr. 105-07.) Pierce described the men to the police as being black, in their teens, and gave further individual descriptions as follows: the man in the black leather jacket was 175 pounds, probably 5'11", clean-shaven (Pierce: Tr. 100-04); the man with the knife in the silver outfit was maybe 5'10", with a mustache (Pierce: Tr. 103, 475); the man with the red bandana (i.e., Hopkins) was 5'6", as was the fourth man, but he could not estimate their weight (Pierce: Tr. 104-05).
At trial, Pierce identified the backpack (People's Exhibit 10) and some of its contents as his. (Pierce: Tr. 114-16, 122-36; see also Haynes: Tr. 612-18.)
The police drove Pierce to Lincoln Hospital. (Pierce: Tr. 103-08, 268.) Pierce told the doctor he was hurt during a robbery and car-jacking. (Pierce: Tr. 230-32.) Pierce received around ten stitches by his eye and crutches because he hurt his ankle when he fell down the steps. (Pierce: Tr. 136-37, 208-12; see also Haynes: Tr. 607; Dr. Fine: Tr. 717-22, 739-41.)
On January 9, 2001, Pierce was called to a police precinct to view two lineups. (Pierce: Tr. 138-39, 220-22.) At the first lineup, he identified Hopkins as the man with the red bandana who he had given the money to. (Pierce: Tr. 140-42, 466, 474, 520-21.) In the second lineup, he picked out the man who held the knife. (Pierce: Tr. 143-46, 148; see also Pierce: Tr. 474-79, 489-96.) Pierce testified that the man in that lineup, the man who held the knife, was not co-defendant Woods. (Pierce: Tr. 148, 213-14.)*fn4 Pierce testified on cross-examination that the second lineup photo, and the photos of the defendants that he saw on the A.D.A.'s desk during a lunch break, refreshed his recollection that Woods was not the person with the knife, Woods was the man who punched him in the eye. (Pierce: Tr. 213-15, 344-45, 365-70.) The photos are what caused him to change his testimony about Woods. (Piece: Tr. 345, 521, 552-53.)
Pierce's mother testified that the police showed her car to her on "that following Tuesday," and allowed her to take it on Friday. (Haynes: Tr. 593-96.)
The Police Witnesses
Officer Gordon Brown testified that while on routine patrol on January 9, 2001, he arrested Hopkins and Calvin Rivers. (Brown: Tr. 630-32.) Officer Brown identified Hopkins in court. (Brown: Tr. 632.) Officer Brown saw a Toyota Camry make a turn without signaling, and when he ran the license plate number -- BU147M -- on his car's computer, it came back as "reported stolen" on January 7, 2001. (Brown: Tr. 633-35, 695.) Officer Brown and his partner stopped the Toyota, which was being driven by Hopkins. (Brown: Tr. 642-45, 695-96.) The passengers were Calvin Rivers and Germaine Stevenson. (Brown: Tr. 647-48.) Co-defendant Woods was not in the car. (Brown: Tr. 689-90.) The police arrested the car's three occupants. (Brown: Tr. 648-49.) The police took the Toyota to the precinct, where Officer Brown found a green backpack bookbag containing three books. (Brown: Tr. 649-51, 654, 656-66, 690.) Officer Brown took "pedigree" information from Hopkins and Rivers -- Hopkins said he was 5'6" and weighed 160 pounds (Brown: Tr. 672-73), and Rivers said he was 5'9" and 150 pounds (Brown: Tr. 688-89).
Detective Edward Patterson testified to the lineup he conducted at which Pierce identified Hopkins. (Patterson: Tr. 854-61, 909-11, 917-18, 922-27.) Detective Patterson also testified that he arrested Woods on January 12, 2001 (Patterson: Tr. 862-63, 884, 899-900), gave him Miranda warnings (Patterson: Tr. 863-78, 885-91), and took a written statement from Woods (Patterson: Tr. 878-79, 891-99). According to Detective Patterson, Woods' statement was that he told a guy to stop knocking on an apartment door in 562 Morris Avenue, the guy "said something slick" and so Woods hit him and ran out of the building. (Patterson: Tr. 879-80.)
Calvin Rivers' Plea Allocution
After a lengthy colloquy outside the jury's presence at which the defense objected to admission into evidence in this trial of Calvin Rivers' guilty plea allocution, the trial judge's decision to admit it if Rivers' refused to testify (which he did, Rivers: Tr. 832-35), and discussion as to appropriate redactions of the plea allocution (Tr. 777-832), Rivers' redacted plea allocution was read to the jury. (Tr. 836-37; see also Tr. 960-69.)
Rivers admitted that on January 7, 2001 "in the vicinity of 542 Morris Avenue, at 1:30 in the morning," he participated with "A" and "B" in a robbery -- the judge having inserted "A" and "B" instead of the names. (Rivers: Tr. 782-83, 960.) Rivers stated that they were in the building, and Rivers asked "this guy" who he was looking for, and the guy said a name, but his hand was "in his pocket," so they felt threatened and "A" hit him and Rivers punched him downstairs. (Rivers: Tr. 788-91, 796-97, 960-63.) Rivers took the guy to the basement. (Rivers: Tr. 791, 961.) None of them had weapons. (Rivers: Tr. 791-92, 961.) A few minutes later in the allocution, Rivers admitted that he had a knife. (Rivers: Tr. 794, 798, 962.) Rivers initially allocuted that he picked up the car keys from the floor (Rivers: Tr. 796, 962), but then stated that "B" took the car keys and some of the currency (Rivers: Tr. 806, 966). Rivers further allocuted that the bookbag was in the car (Rivers: Tr. 806, 966), but on being pressed, stated that "B" took the bookbag (Rivers: Tr. 808, 966).
The Defense Case at Trial
Hopkins called Officer Ricardo Colon to testify for the defense. (Tr. 973-74.) Officer Colon took Pierce's complaint on January 7, 2001. (Colon: Tr. 975-76.) Pierce described the first perpetrator as a male black, 5'9", 160 pounds, age 21, wearing a grey sweatshirt and blue jeans; the second one, male black, 5'11", 175 pounds, age 18, black leather coat; the other two were described as male black, 5'6" and 175 pounds. (Colon: Tr. 977-80, 984-85.)
The defense rested after that testimony. (Tr. 986-87.)
The Prosecutor's Summation and the Trial Judge's Jury Charge
The prosecutor's summation takes over 50 pages of trial transcript. (Prosecution Summation: Tr. 1053-1107.) During her summation, the prosecutor referred to Rivers' plea allocution (id. at 1097-1103), including Rivers' admission that he brandished the knife, and that they took Pierce's car (id. at 1100-02). The prosecutor argued that Rivers' allocution corroborated Pierce's testimony "that Mr. Woods was one of the individuals there," and "corroborate[d Pierce's] ability to identify these two men and Mr. Rivers." (Id. at 1102-03.) The trial judge immediately cautioned the jury that they "cannot use the allocution for purposes of identifying the defendants here in court. . . . This allocution was not admitted for that purpose and shall not be used for that purpose." (Tr. 1102.) The judge told the jury that he would give them further instructions about what use they could make of the allocution. (Tr. 1102-03; see also id. at 1108-11.)
The trial judge gave the jury the following charge as to Calvin Rivers' allocution:
I have permitted you, the jury to hear the allocution of Calvin Rivers when he entered his plea of guilty to robbery in the first degree before Judge Alvarado on December 12, 2001. For reasons that need not and must not concern you, Calvin Rivers has been unavailable to testify in this trial. Because he did not testify, he has not been available for cross-examination.
You therefore must examine the statements with special care and caution. It will be for you to determine the reliability and truthfulness of the statements themselves.
In deciding whether or not such statements were reliable and truthful, you must consider all of the evidence as to the facts and circumstances surrounding the making of such statement. In making your final determination of reliability and truthfulness of such statements, you must be satisfied of the following three things:
You must be satisfied that there is other independent evidence other than the allocution itself which satisfies you that the statements are trustworthy and reliable; in other words, there must be other independent evidence other than the statements themselves which corroborate and which support the facts asserted in such declaration.
In making your determination, you will consider all of the circumstances under which the statement was made.
Among other things to which you should pay particular attention is the motivation of Calvin Rivers. People may lie despite the consequences to themselves to exculpate those whom they love or fear or to inculpate those they hate, or they may lie simply because they are inveterate or pathological liars.
People suspected or accused of a crime may inculpate others to curry favor for themselves or to obtain an advantage or a benefit.
The fact that a witness has been given or promised a benefit does not disqualify him from giving testimony. You should, however, carefully scrutinize the statement of Calvin Rivers in light of any benefit he had received or he had been promised, or which he may have had some hope which might have affected his testimony or given him motive to lie.
The question becomes, were Calvin Rivers' statements truthful regardless of the ultimate benefit or were they false by reason of such promise.
Second: You must be satisfied Calvin Rivers himself had first hand knowledge of the facts underlying his statement.
Third: You must be satisfied that when the statements were made, Calvin Rivers was aware that his statements were clearly adverse to his penal interests, and indicated that he acknowledges himself, had participated in or engaged in conduct constituting a crime.
In other words, you must be satisfied that at the time the declarations were made by Calvin Rivers, he was fully aware that by making such statements or declarations he was subjecting himself to possible criminal prosecution.
Let me caution you, members of the jury that in making your assessment of the trustworthiness or reliability of the statements of Calvin Rivers, you should carefully review all of the evidence and circumstances surrounding the making of the statements.
Finally, if you are satisfied, after careful consideration of all of the factors and criteria that you should apply in making your analysis that the declarations of Calvin Rivers are in fact truthful, trustworthy and reliable, you may give those statements such weight as you deem appropriate in making your final determination of whether the People have established to your satisfaction beyond a reasonable doubt each and every element of the crimes charged.
You may also consider them in evaluating Ravon Pierce's credibility, his ability to observe, reason and remember the persons and events about which he testified.
Calvin Rivers' statements may not, however, be considered by you as any evidence that either of the defendants on trial was a participant of any of the charged crimes. (Charge: Tr. 1146-50.)
Verdict and Sentence
The jury found Hopkins not guilty of first or second degree robbery, but guilty of another count of second degree robbery and guilty of third degree criminal possession of stolen property. (Verdict: Tr. 1202-03; see also id. at 1203-06 (jury polled).) The jury found Woods not guilty of first or second degree robbery, but guilty of third degree assault. (Verdict: Tr. 1201-02.)
On August 5, 2002, Hopkins was sentenced as a predicate felon to concurrent sentences of 9 years for second degree robbery and 3-1/2 to 7 years for third degree criminal possession of stolen property. (See Dkt. No. 1: Pet. ¶¶ 2-3 & Ex. A: 8/5/02 Sentencing Tr. at 4, 13-14.)
On appeal to the First Department, represented by the Center for Appellate Litigation, Hopkins raised three claims, including that the admission of Rivers' plea allocution deprived Hopkins of his Sixth (and Fourteenth) Amendment confrontation rights, and was not harmless error. (Dkt. No. 1: Pet. Ex. B: Hopkins 1st Dep't Br. at 22-29; Pet. Ex. D: Hopkins 1st Dep't Reply Br. at 2-9.)
The First Department affirmed Hopkins' conviction, finding the confrontation clause violation to be harmless error, stating in full as to that claim:
Defendant Robert Hopkins was convicted, after a jury trial, of robbery in the second degree and criminal possession of stolen property in he third degree, for his role in the robbery of the complainant at knifepoint by four men acting in concert, including Calvin Rivers and Clarence Woods. Rivers pleaded guilty to robbery in the first degree, admitting, in summary, that after Woods punched the complainant, Rivers held a knife to him while defendant Hopkins took cash and keys from his pocket. Portions of Rivers's plea allocution were read to the jury at the joint trial of defendant and Woods, after which defendant was convicted as noted and Woods was convicted of assault in the third degree and sentenced to a term of one year. This Court reversed Woods's conviction, holding that the admission into evidence of Rivers's plea allocution violated Woods's Sixth Amendment right to be confronted by the witnesses against him and that the admission of the allocution was not harmless error beyond a reasonable doubt (People v. Woods, 9 A.D. 3d 293 , citing Crawford v. Washington, 541 U.S. 36 , and People v. Kello, 96 N.Y. 2d 740, 743 ).
Defendant argues that he too was prejudiced by the admission of Rivers's plea allocution. However, while the complainant's testimony was "hopelessly confused" as to whether Woods was the man in the leather jacket who punched him, or the man wearing silver denim who held the knife (Woods, supra at 295), it was utterly consistent as to defendant's identity and role in the robbery. The complainant identified defendant as the man with the red bandana, with whom he had two brief exchanges concerning the woman he was meeting in the building, and whose only role in the ensuing robbery was to squat over the complainant after he had been thrown down the stairs, and demand and take his money. In addition, defendant was arrested while driving the complainant's car. Thus, while Rivers's plea allocution so "significantly strengthened" the case against Woods as to preclude a determination that its admission was harmless error (id.), it did not have a significant impact on the case against defendant. We conclude that it is beyond a reasonable doubt that defendant would have been found guilty without the admission of the allocution.
People v. Hopkins, 13 A.D.3d 303, 304, 788 N.Y.S.2d 34, 35 (1st Dep't 2004).*fn5
The New York Court of Appeals denied leave to appeal. People v. Hopkins, 4 N.Y.3d 853, 797 N.Y.S. 2d 428 (2005).
Hopkins' Habeas Petition
Represented again by the Center for Appellate Litigation, Hopkins' timely federal habeas petition raises the single claim that the trial court's admission into evidence of the guilty plea allocution of a non-testifying co-defendant violated Hopkins' Sixth Amendment confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and was not harmless error. (Dkt. No. 1: Pet. ¶ 11; see Dkt. No. 2: Hopkins Habeas Br.)
I. THE AEDPA REVIEW STANDARD *fn6
Before the Court can determine whether Hopkins 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 Both, however, "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, 543 U.S. at 455, 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, 543 U.S. at 455, 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 omitted).*fn18 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. THE FIRST DEPARTMENT'S DETERMINATION THAT THE CRAWFORD CONFRONTATION CLAUSE ERROR WAS HARMLESS WAS NOT AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW
The First Department found that the admission of Rivers' plea allocution violated Hopkins' Constitutional Confrontation Clause rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), but that the error was harmless. People v. Hopkins, 13 A.D.3d 303, 304, 788 N.Y.S.2d 34, 35 (1st Dep't 2004). The sole issue before this Court relates to the harmless error issue, not the Crawford violation itself, which is conceded. (Dkt. No. 9: Wieder Aff. Ex. 2: State 1st Dep't Br. at 21-25; Dkt. No. 9: State Habeas Br. at 3-10.)
It is black letter law, undisputed by the parties here, that Confrontation Clause violations are subject to harmless error analysis. E.g., United States v. Santos, 425 F.3d 86, 93 (2d Cir. 2005); Howard v. Walker, 406 F.3d 114, 123, 133-34 (2d Cir. 2005); Gutierrez v. McGinnis, 389 F.3d 300, 308 (2d Cir. 2004); Brown v. Keane, 355 F.3d 82, 91 (2d Cir. 2004); Ellis v. Phillips, 04 Civ. 7988, 2005 WL 1637826 at *24 & n.45 (S.D.N.Y. July 13, 2005) (Peck, M.J.) ("It is settled law that 'violations of the confrontation clause may, in an appropriate case, be declared harmless' error.") (& cases cited therein).*fn19
The parties here also agree as to the legal analysis to be applied on AEDPA review of a state court's harmless error determination. (Dkt. No. 2: Hopkins Habeas Br. at 18; Dkt. No. 9: State Habeas Br. at 5.) After the Supreme Court's decision in Mitchell v. Esparza, 540 U.S. 12, 17-18, 124 S. Ct. 7, 12 (2003), the Second Circuit in Gutierrez v. McGinnis held "that when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state unreasonably applied Chapman" v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). Gutierrez v. McGinnis, 389 F.3d at 306.*fn20 Under the Chapman standard, a "constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Mitchell v. Esparza, 540 U.S. at 17-18, 124 S. Ct. at 12 (internal quotations omitted); accord, e.g., Gutierrez v. McGinnis, 389 F.3d at 306.
To determine whether a Confrontation Clause violation is harmless error, federal courts examine "many factors, including 'the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.'" Gutierrez v. McGinnis, 389 F.3d at 308 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986)); see, e.g., Howard v. Walker, 406 F.3d at 133-34; Zappulla v. New York, 391 F.3d 462, 468 (2d Cir. 2004), cert. denied, 126 S. Ct. 472 (2005); Brown v. Keane, 355 F.3d 82, 92 (2d Cir. 2004) ("In making a determination of harmless error, the court looks to the record as a whole, considering the overall strength of the prosecution's case, the importance of the improperly admitted evidence, and whether the evidence was emphasized at trial.").*fn21
This Court has read the entire trial transcript. There is no doubt that although he was the victim, Pierce was a reluctant witness (see, e.g., Pierce: Tr. 460-71, 504-05, 511; Patterson: Tr. 923), and, as discussed above, his testimony at times was contradictory and inconsistent. Nevertheless, Pierce consistently identified Hopkins as the man with the red bandana who robbed him. (See pages 3, 4, 6 above.) Pierce immediately identified Hopkins in the police lineup as the robber with the red bandana and unequivocally identified Hopkins at trial. (See pages 3, 6 above.) Moreover, Hopkins was caught red handed -- driving Pierce's mother's car, using Pierce's keys, just two days after the robbery. (See page 7 above.) While Rivers' plea allocution corroborated aspects of Pierce's testimony, his allocution was contradictory as to his role and that of his companions, and the redacted allocution did not identify Hopkins or Woods by name, but as "A" and "B." See, e.g., United States v. Lewis, 144 Fed. Appx. 131, 133 (2d Cir. 2005); Kamara v. United States, 04 Civ. 5340, 2005 WL 1337396 at *3 (S.D.N.Y. June 6, 2005), modified, 2005 WL 1490107 (S.D.N.Y. June 22, 2005).
While Hopkins stresses that the First Department found the same Crawford error to not be harmless as to co-defendant Woods (Hopkins Habeas Br. at 22-24), the different results are explainable: While Pierce consistently and unequivocally identified Hopkins, as the First Department found, Pierce's trial testimony about Woods was "hopelessly confused." (See page 13 n.5 above.) Pierce switched his description of what clothing Woods was wearing (the black jacket or the silver outfit) and whether Woods was the man who punched him or the man who was holding the knife. (See page 3 above.) It should also be noted that the First Department reversed Woods' conviction "on the law and as a matter of discretion in the interest of justice," People v. Woods, 9 A.D.3d 293, 294, 779 N.Y.S.2d 494, 495 (1st Dep't 2004), and "interest of justice" discretion is not applicable to the federal courts on habeas review. Cf. Anderson v. Keane, 283 F. Supp. 2d 936, 946 (S.D.N.Y. 2003); Williams v. Artuz, 98 Civ. 7964, 2002 WL 989529 at *6 (S.D.N.Y. May 15, 2002); Cooper v. LeFevre, 94-CV-5958, 1998 WL 386340 at *3 (E.D.N.Y. July 8, 1998). Moreover, the issue before this Court is not whether the First Department was consistent in its separate rulings concerning co-defendants Woods and Hopkins, but whether, under the deferential AEDPA standard, the First Department in Hopkins' appeal unreasonably applied the Chapman harmless error analysis.
The issue is not how this Court might determine Chapman harmless error if it were sitting as the First Department, or even whether the First Department's Chapman harmless error analysis was incorrect. The only issue is whether the First Department unreasonably applied Chapman. (See page 24 above.) In light of Pierce's consistent testimony that Hopkins was the man with the red bandana who robbed him (and his inconsistent testimony as to co-defendant Woods), and the fact that Hopkins was arrested two days later driving Pierce's car, using Pierce's car keys, the First Department did not unreasonably apply the Chapman harmless error standard to the trial evidence about Hopkins.
For the reasons set forth above, Hopkins' habeas petition should be DENIED.
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 Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff (with a courtesy copy to my chambers). 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).
Andrew J. Peck United States Magistrate Judge