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Bailey v. Rivera

October 24, 2007


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Derrick Bailey, a New York State prisoner, seeks a writ of habeas corpus, challenging his conviction for attempted burglary and possession of burglary tools, and his resulting sentence, as a persistent felony offender, to fifteen years to life in prison. The petition will be denied.


The evidence at Bailey's state trial would have permitted a reasonable jury to find the following facts. Early in the morning of March 25, 2001, two police officers, patrolling an area in Harlem that had recently experienced a number of burglaries in which padlocks securing small commercial premises had been broken, observed Bailey crouched in front of a store, holding a sledgehammer. As the police car approached, Bailey brought the sledgehammer back as if to swing it, but dropped the sledgehammer when bystanders alerted him to the approaching police car. Bailey dropped the hammer and fled from the police, first on a bicycle, and then, after crashing the bicycle into a median, on foot. Another officer responding to the chase eventually apprehended him. The police recovered the sledgehammer and a crowbar near the store, and observed that the store's security gate had been partially pried open.

The jury convicted Bailey of attempted burglary and possession of burglar's tools. At sentencing, the prosecution demonstrated that Bailey had four previous felony convictions for robbery and burglary offenses, as well as three prior misdemeanor convictions and four parole violations. Bailey also admitted to a long history of drug abuse. The court found that Bailey was a persistent felony offender, and imposed a sentence of fifteen years to life in prison.

Bailey's conviction and sentence were affirmed by the Appellate Division, the New York Court of Appeals denied leave to appeal, and the United States Supreme Court denied certiorari. People v. Bailey, 798 N.Y.S.2d 406 (1st Dept.), leave to appeal denied, 5 N.Y.3d 825 (2005), cert. denied, 547 U.S. 1045 (2006).


Bailey raises three claims of constitutional error. First, he argues that he was denied a fair trial, in violation of the due process clause, because the trial court precluded cross-examination of the arresting officers about his complaint to the Civilian Complaint Review Board ("CCRB") that they had used excessive force in arresting him. Second, he claims that the court misinstructed the jury with respect to the element of illegal entry in connection with a burglary offense. And third, he argues that his sentencing to an enhanced term as a persistent offender violated his Sixth Amendment right to a jury trial and his Eighth Amendment right against cruel and unusual punishment.

I. Claims of Trial Error

Bailey's claims of trial error may be swiftly rejected. A federal habeas court may not review constitutional claims where the denial of those claims in state court was based on an independent and adequate state procedural ground. Lee v. Kemna, 534 U.S. 362, 375 (2002); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). The Appellate Division expressly rested its rejection of Bailey's claims of trial error on the adequate state ground that they had not been properly raised below.

The Appellate Division reviewed and rejected Bailey's claim that the exclusion of evidence regarding his CCRB complaint was improper as a matter of state evidence law. 798 N.Y.S.2d at 407. However, the Appellate Division ruled that his constitutional claim was "unpreserved," because he "did not assert a constitutional right to introduce the excluded evidence" at trial. Id. The court therefore declined to review the claim. Similarly, the court ruled that Bailey's other trial error arguments, including his claim of error in the jury instructions, were also unpreserved, and declined to review them in the interests of justice. Id. The contemporaneous objection rules in New York are well-established and regularly followed, and have been recognized as an adequate and independent state law ground barring habeas review. See, e.g., Richardson v. Greene, 497 F.3d 212, 217-19 (2d Cir. 2007). Nothing in the record before this Court casts any doubt on the Appellate Division's assertion that Bailey did not object to the evidentiary ruling on constitutional grounds, and did not object to the allegedly erroneous jury instruction at all. Accordingly, habeas review of these contentions is precluded.

In any event, neither claim of constitutional error has merit. Bailey first claims that his right to confront his accusers was violated when the trial court precluded cross-examination of the arresting officers regarding Bailey's CCRB complaint against them. The Appellate Division correctly saw this claim as lacking in merit. See, e.g., 798 N.Y.S.2d at 407 ("Were we to review [Bailey's claim that he had a constitutional right to introduce the evidence at issue], we would find no violation of defendant's right to confront witnesses and present a defense .") While the Confrontation Clause is violated when a defendant is "prohibited from engaging in otherwise appropriate cross-examination designed . . . to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness," Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (citation and quotation marks omitted), the defendant's "right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process," Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (citation omitted). "[T]rial judges retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679.

Although Bailey's claim that the evidence would tend to prove that the officers were motivated to fabricate evidence of his criminal acts in order to retaliate for his complaint of excessive force passes the minimal test of probative value, the Court cannot find that the trial court's decision that this probative value was outweighed by the danger of confusing the issue fell outside the court's discretion in managing cross-examination. In any event, while excluding evidence of petitioner's CCRB complaint, the trial court allowed cross-examination about whether the officers used excessive force in arresting him. (Resp. Br. 3, citing 10/26/01 Tr. 300-01.) Bailey evidently failed to take advantage of this opportunity, which would have permitted the same inferences that the officers were motivated to "cover" any excessive force with a criminal charge.

Bailey next claims that the trial court erred in instructing the jury that an accused burglar "enters a building when he places or holds an instrument in close proximity to a building with intent to use that instrument to effectuate entry." (Resp. Ex. A at 9, citing Tr. 916.) This instruction was arguably erroneous as a matter of state law. See People v. King, 61 N.Y.2d 550, 554-55 (1984) (entry requires "insertion of any part of the body into the premises"). Even if a jury instruction is improper under state law, however, federal habeas relief requires a further showing that the petitioner was denied a fundamentally fair trial. In assessing such a constitutional challenge, "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). "Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must ...

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