The opinion of the court was delivered by: P. Kevin Castel, District Judge
Anthony Marchiano, Salvatore Marchiano, Charles Trento and A.S. Goldmen, Inc. have petitioned for a writ of habeas corpus asserting that their New York State convictions were obtained in violation of rights protected by the United States Constitution. I referred the petitions to Magistrate Judge Andrew J. Peck to hear and report. The reference required a review of issues arising in a difficult trial lasting over five months and about 12,000 pages of transcript. In a 142-page Report and Recommendation ("R & R"), Judge Peck recommended that the petitions be denied. (Doc # 13)
At petitioners' request, I extended the time for filing objections to the R & R. (Doc # 14) Timely objections were filed by Anthony Marchiano ("Anthony") and Salvatore Marchiano ("Sal"). (Doc #15) No objections were filed by petitioners Charles Trento or A.S. Goldmen, Inc. "[A] party generally waives judicial review of an issue when he or she fails to make timely objection to a magistrate judge's report, . . . [t]his rule . . . is a non-jurisdictional waiver provision, and its violation may be excused in the interests of justice." DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000) (citations omitted); see United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 39 (2d Cir. 1997). "Even if neither party objects to the magistrate's recommendation, the district court is not bound by the recommendation of the magistrate." DeLeon, 234 F.3d at 87 (citation and internal quotations omitted). I have reviewed the R & R insofar as it addresses the claims of non-objecting petitioners Trento and A.S. Goldmen, Inc. and I find no reason, in the interests of justice, to excuse the failure to object.
Anthony and Sal object to the R & R asserting that, at the state trial, seven plea allocutions were admitted into evidence in violation of their constitutional right to confront their accusers. The claim of constitutional error is premised upon Crawford v. United States, 541 U.S. 36 (2004), decided on March 8, 2004, after the trial was concluded. The error was conceded in state appellate court but found to have been harmless. The R & R concludes that the state appellate court did not unreasonably apply Chapman v. California, 386 U.S. 18 (1967), which is clearly-established law setting forth the standard for harmless-error review. Petitioners also object to the R & R to the extent that it rejects their assertion that the state courts denied them due process of law because the trial judge was biased, unfairly limited cross-examination and improperly questioned witnesses. I have engaged in a de novo review of so much of the R & R as is addressed in petitioners' objections.
To facilitate an examination of the trial record, I directed the respondents to file a witness-by-witness summary of each witness's testimony. (Prior submissions had organized the evidentiary presentation on a transaction-by-transaction basis.) I invited submissions addressing questions posed by the Court in an Order. (Doc # 17) Thereafter, I invited a further submission addressing the cooperators' testimony concerning their own guilty pleas. (Doc # 25) Subsequent to the issuance of the R & R, the Supreme Court decided Fry v. Pliler, __ U.S. __, 127 S.Ct. 2321 (2007). I will consider the impact of Fry on the R & R's discussion of the standard to be applied on habeas review of the state court's harmless-error analysis.
Crawford Errors on Federal Habeas Review of a State Conviction
In Crawford, the Supreme Court held that testimonial evidence is admissible only where (1) the witness is unavailable to testify and (2) the defendant has had a prior opportunity to cross-examine the witness. 541 U.S. at 59. Since Crawford, courts have consistently held that out-of-court statements, including plea allocutions, are testimonial in nature and subject to these requirements. See United States v. Becker, __ F.3d __, No. 06-1274-cr, 2007 WL 2669604, at *6 (2d Cir. Sept. 13, 2007); United States v. McClain, 377 F.3d 219, 221 (2d Cir. 2004); United States v. Lombardozzi, 491 F.3d 61, 76 (2d. Cir. 2007). In Chapman v. California, the Court recognized that not all constitutional violations require automatic reversal. 386 U.S. at 22. The Court identified two types of errors-structural error and trial error. See Arizona v. Fulminante, 499 U.S. 279, 307--10 (1991). Structural errors-errors that affect the "entire conduct of the trial from beginning to end," such as judicial bias or the deprivation of the right to counsel-are cause for automatic reversal of a conviction. Id. at 309--10. On the other hand, trial errors-errors that arise "during the presentation of the case to the jury"-are subject to review for harmlessness. Id. at 307--08. While a finding of judicial bias qualifies for automatic reversal, the erroneous admission of a plea allocution, in violation of Crawford, is a trial error subject to harmless-error review. See Neder v. United States, 527 U.S. 1, 18 (1999) ("[V]violation of the right to confront witnesses guaranteed by the Sixth Amendment . . . [is] subject to harmless-error analysis.") (citation omitted).
In Chapman, the Court outlined the standard of review for harmless error. The standard requires the reviewing court to consider whether the error was "harmless beyond a reasonable doubt." 386 U.S. at 24. This turns on whether wrongly-admitted evidence "might have contributed to the conviction." Id. at 23 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)).
However, the Chapman standard applies only to direct review of constitutional errors. Brecht v. Abrahamson, 507 U.S. 619, 622--23 (1993). In Brecht, the Court held that on a habeas petition, the reviewing court should only grant relief where the constitutional trial error caused "actual prejudice." 507 U.S. at 637. To grant the petition, the court considering the collateral attack must find that the error "had substantial and injurious effect or influence in determining the jury's verdict." Id. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). This standard advances "the considerations underlying habeas jurisprudence," promotes "the nature and purpose of collateral review," and respects state interests in finality and federalism. Id. at 623, 635-38.
Three years after the decision in Brecht, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended the federal habeas statute. 28 U.S.C. § 2254. Under 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).
Under AEDPA, 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) (internal quotation marks and citation omitted). Noting the difference between the AEDPA and Brecht standards, the Second Circuit interpreted the standard for habeas review of constitutional error in Gutierrez v. McGinnis, 389 F.3d 300 (2d Cir. 2004). Where a state court has evaluated a constitutional error for harmlessness under Chapman, the AEDPA standard of review should be used in the habeas context; that is, on collateral review, the court must determine "whether the state unreasonably applied Chapman." Gutierrez, 389 F.3d at 306. Consistent with the foregoing, Magistrate Judge Peck considered whether the state court's "harmless error conclusion [on the evidence admitted in violation of Crawford] was an unreasonable application of Chapman." (R & R 90.)
Subsequent to the issuance of the R & R, the Supreme Court held that, on habeas review under 28 U.S.C. § 2254, a federal court must evaluate the significance of constitutional error in a state court criminal proceeding under Brecht's "substantial and injurious effect" standard, regardless of whether the state court reviewed for harmless error under Chapman. Fry v. Pliler, 127 S.Ct. at 2328. Noting that AEDPA further limited the availability of habeas relief, the Court emphasized that the Brecht standard embodies AEDPA's unreasonableness test. Id. at 2327. Therefore, if the reviewing court, in applying Brecht, finds that the constitutional trial error is not harmless because it had a "substantial and injurious effect or influence in determining the jury's verdict," then the state court unreasonably applied clearly-established federal law. Under this approach, AEDPA is satisfied because an error that had a "substantial and injurious effect" on a trial's outcome reasonably could not have been found to be harmless, under any standard, by any reviewing court. See Pearson v. Ercole, No. CV-06-5315, 2007 WL 2128350, at *6 (E.D.N.Y. July 25, 2007) ("[U]nder Fry, to determine whether the State Court's finding of harmless error . . . was objectively unreasonable, the Court must ...