The opinion of the court was delivered by: Michael A. Telesca United States District Judge
INTRODUCTION Petitioner Elero Hendrix ("Petitioner" or "Hendrix") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court. Petitioner claims the following six grounds for habeas relief:
(1) the trial court erred in conferring with a sworn juror with neither Petitioner nor his counsel present; (2) fingerprint evidence was untimely disclosed and improperly allowed at trial; (3) the indictment against him was unreasonably broad; (4) there was insufficient evidence to support his conviction for first degree robbery; (5) the trial court allowed improper identification testimony; and (6) he was denied effective assistance of appellate counsel. As an alternative to habeas relief, Petitioner requests discovery of certain grand jury testimony.
For the reasons set forth below, the Court finds that Petitioner's claims are either not cognizable or without merit. Hendrix's § 2254 petition is therefore dismissed, and his request for discovery is also dismissed.
Between August 13 and August 21, 1998, someone entered Public School Number Five in Rochester, New York, and took a small sum of money from the cafeteria. (See Trial Transcript ("Tr.") at 243, 525-33.) In the process, the cafeteria sustained physical damage. (See Id.) On August 20, 1998, Daisy Miller ("Miller") accompanied Petitioner to the apartment of Pando Yolevich ("Yolevich"), where Petitioner unsuccessfully attempted to sell Yolevich a television. (Tr. at 271, 336-37.) According to Yolevich, the man who had accompanied Miller to his apartment returned later that day and robbed him at knife-point. (Tr. at 273-77.) However, Yolevich could not positively identify Petitioner as his assailant. (Tr. at 273-77, 324.)
Petitioner was arrested in connection with both the school break-in and the Yolevich robbery. Although defense counsel objected that each incident should be handled separately, the Monroe County Court joined all of the charges against Petitioner into one trial. (Petition for Habeas Corpus ("Petition") at 46-47.) On October 6, 1999, Petitioner was convicted of first degree robbery, second degree assault, and fourth degree grand larceny in relation to the Yolevich robbery; and third degree burglary and fourth degree criminal mischief in relation to the school break-in.
(Petition at 4-5; Answer in Opposition to Petition for Habeas Corpus ("Answer") at 1-2.) Petitioner was sentenced as a persistent felony offender, receiving twenty-five years to life imprisonment on the robbery count and lesser concurrent terms on the other charges. (Answer at 2.)
On direct appeal, Petitioner's appellate counsel argued the following claims: (1) the trial court erred in conferring with a sworn juror outside the presence of both Petitioner and trial counsel; (2) the trial court failed to conduct an adequate inquiry of a sworn juror who had indicated apprehension due to her status as foreperson; (3) there was insufficient evidence to support Petitioner's conviction for third degree burglary; (4) the date range given in the indictment for the school-related charges was unreasonably broad; and (5) Petitioner's sentence was harsh and excessive. (See Appendix of State Court Records, Received in the Docket May 28, 2004, ("App.") C.) In a pro se supplemental appellate brief, Petitioner added the following claims: (6) the trial court improperly joined the charges against him; (7) the trial court erred when it allowed the prosecution to amend the indictment; (8) the trial court allowed improper identification testimony; (9) the trial court improperly allowed untimely fingerprint evidence; and (10) he was denied a fair trial and due process through "the cumulative effect of errors." (See Petition at 7.)
The Appellate Division, Fourth Department ("Appellate Division"), upheld Petitioner's conviction. See People v. Hendrix, 292 A.D.2d 815 (4th Dept. 2002). Although the Appellate Division rejected on the merits Petitioner's claims one, two, four, five, six, and seven, it found the remainder to be unpreserved for appellate review pursuant to New York Criminal Procedure Law § 470.05(2). See Id. The New York Court of Appeals denied leave to appeal. See People v. Hendrix, 98 N.Y.2d 651 (2002).
Petitioner then moved for a writ of error coram nobis, claiming ineffective assistance of appellate counsel. (See App. N.) The Appellate Division denied Petitioner's motion, see People v. Hendrix, 306 A.D.2d 957 (4th Dept. 2003), and the Court of Appeals denied leave to appeal. See People v. Hendrix, 1 N.Y.3d 573 (2003). This habeas corpus petition followed.
In reviewing a state prisoner's habeas corpus petition pursuant to 28 U.S.C. § 2254, a federal district court makes an independent determination as to whether the petitioner is in custody in violation of his rights under the Constitution or any laws and treaties of the United States. Coleman v. Thompson, 501 U.S. 722, 730 (1991), reh'g denied, 501 U.S. 1277 (1991). A federal court does not function as an appellate court when it reviews a state prisoner's habeas petition, and it therefore does not review matters within the jurisdiction of the state or review rulings and decisions of state trial and appellate courts. Rather, the court determines whether the proceedings in state court amount to a violation of federal constitutional rights. Id. Federal review of a state court conviction is limited to errors of federal constitutional magnitude which denied a criminal defendant the right to a fundamentally fair trial. Cupp v. Naughton, 414 U.S. 141, 144 (1973).
In cases where the petitioner is in state custody, the habeas court may not grant relief unless the challenged state court conviction was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or... 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) and (2). "Clearly established" federal law refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions "as of the time of the relevant state-court decisions." Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is contrary to clearly established federal law if the state court "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" that of the Supreme Court. Id. at 405.
A state court decision is an "unreasonable application" of Supreme Court precedent if it
[i]dentifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts...[or] unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply[,] or unreasonably refuses to extend that principle to a new context where it should apply.
This standard applies even if the state court decision was a summary affirmation of the conviction that did not explicitly reject any federal claim, as long as the decision necessarily determined the claim. Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001).
Further, 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 unless it appears that the applicant has exhausted the remedies available in the courts of the state."
28 U.S.C. § 2254(b)(1)(A). A habeas petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Typically, this means that federal habeas claims must have been included in both the petitioner's appeal to the state's intermediate appellate court and in an application for permission to appeal to the state's highest court. O'Sullivan, 526 U.S. at 848. Failure to exhaust may be excused, however, if the petitioner shows cause for the default and prejudice arising therefrom. Wainright v. Sykes, 433 U.S. 72, 87-88 (1977).
II. The Trial Court's Conference With a Juror Was Not Improper
During Petitioner's trial, after the jury had been excused for the day and left the courtroom, the trial judge stated the following to Petitioner, his counsel, and the prosecuting attorney:
I would just note for the record, that the foreperson did approach me and ask me what the duties of a foreperson are. I did explain to her that she would have a verdict sheet, that she would be asked the question, and just have to answer with what the verdict was that the jurors agreed on. She indicated some apprehension, and asked why it had to be her.
I explained to her the rules under Criminal Law do require -- in a criminal case do require that she is the foreperson. I don't know if you want me to change that on Monday [when the trial was to resume] or if that's fine. She seemed to be accepting of it, just apprehensive. (Tr. at 507.) Petitioner claims that he was denied due process because, during the exchange between the trial judge and a juror described above, neither he nor his counsel was present. (See Petition at 11.) This claim is without merit.
A criminal defendant has a due process right to be present for trial proceedings "to the extent that a fair and just hearing would be thwarted by his absence and to that extent only." Snyder v. Massachusetts, 291 U.S. 97, 108 (1934); see United States v. Gagnon, 470 U.S. 522, 526 (1985). Further, a defendant has a right to have counsel present during all "critical" stages of criminal proceedings. See Montejo v. Louisiana, 129 S.Ct. 2079, 2085 (2009). Proceedings are "not critical stages" when there is "minimal risk" that defense counsel's absence at such stages "might derogate" from the defendant's right to a fair trial. United States v. Wade, 388 U.S. 218, 228 (1967).
In the "proceeding" at issue in the instant case, the trial judge clarified with a sworn juror the procedural requirements attached to serving as foreperson. There is no indication that opposing counsel was present during this exchange, and the trial judge further gave Petitioner's counsel the option to amend her answer/instructions to the juror at the next available opportunity. (See Tr. at 507.) Petitioner's right to a fair and just hearing was therefore not thwarted by his absence from this procedural clarification, nor was his right to a fair trial derogated in any way by his counsel's absence. See Wade, 388 U.S. at ...