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Grigg v. Phillips

September 11, 2009


The opinion of the court was delivered by: Seybert, District Judge


Gary Grigg ("Grigg" or "Petitioner") petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons below, the Petition is DENIED.


I. Procedural History

Grigg attacks a judgment of conviction entered against him in the County Court of Suffolk County on October 10, 2001. After a jury trial, Grigg was convicted of Robbery in the First Degree and sentenced as a persistent felony offender for an indeterminate term of imprisonment of twenty-five years to life.

Grigg appealed his conviction to the Appellate Division, Second Department. In his appellate brief, Grigg presented five claims of error: (1) that the prosecution improperly referred to his post arrest silence; (2) various evidentiary errors, such as disclosure to the jury of Grigg's prior arrest record and his homeless status, fatally infected his trial; (3) the prosecutor failed to disclose Brady material; (4) the trial court improperly denied him a brief adjournment; and (5) his sentence as a persistent felony offender violated the Supreme Court holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000).

On November 4, 2002, the Appellate Division, Second Department affirmed Grigg's conviction. People v. Grigg, 299 A.D.2d 367, 749 N.Y.S.2d 159 (2d Dep't 2002). The Appellate Division found that "the trial court providently exercised its discretion in denying" Grigg an adjournment, and found that the persistent felony offender sentencing did not violate his constitutional rights. Id. at 367. The Appellate Division relied upon the New York Court of Appeals' holding in People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 (2001), cert. denied, 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed. 2d 160 (2001), that the persistent felony offender statute was constitutional. Grigg, 299 A.D.2d at 367. The Appellate Division rejected Petitioner's other claims as "either unpreserved for appellate review or without merit." Id.

Grigg filed a letter requesting leave to appeal to the New York Court of Appeals. Leave was denied on March 3, 2003. People v. Grigg, 99 N.Y.2d 628, 790 N.E.2d 284, 760 N.Y.S.2d 110 (2003). Grigg then filed the Petition in this Court on February 18, 2004.

II. Factual Background

At approximately 9:00 a.m. on July 20, 2000, Anthony Rooney ("Rooney"), a Long Island Power Authority meter reader, was reading meters at a shopping center located at 807 Montauk Highway in East Patchogue, Suffolk County, New York. (Tr. 23.) While performing his duties, Rooney made eye contact twice with an African American male, who was approaching Rooney. (Tr. 29.) Rooney attempted to enter his automobile, but Grigg grabbed Rooney from behind and held a knife to his throat. (Tr. 31.) Grigg, screaming racial profanities, lifted Rooney off his feet and cut his stomach. (Tr. 31-33.) Grigg then pulled Rooney's wallet out from his pocket; however, there was no money or credit cards in the wallet. (Tr. 33.) Grigg then stabbed Rooney in the thigh. (Id.) Grigg spun Rooney around so that they were face-to-face, pushed Rooney's head against the wall three times, and threw Rooney to the ground. (Tr. 34-35.) Once Rooney was on the ground, Grigg kicked him, stepped on his hand, and attempted to remove Rooney's wedding ring. (Tr. 35-36.) Grigg then fled on foot. (Tr. 38-39.)

Rooney telephoned the police and was taken to the hospital, where he gave a statement to Detective Robert Berretta. (Tr. 39-40, 47, 100.) Rooney described his assailant as a 6'5" African American male, weighing 250 pounds. (Tr. 58, 100.) He also stated that his assailant had a scar on his arm. (Tr. 59-60.) Rooney identified Grigg as his assailant at trial. (Tr. 43-44.) Rooney's wallet was sent for fingerprint testing; however, the fingerprint found on it did not match Grigg's. (Tr. 103.)

On July 21, 2000, Detectives Berretta and Ferrara went to the crime scene and found Grigg at the shopping center. (Tr. 108.) They questioned Grigg, who stated he was homeless, living in the abandoned Patchogue Inn, and had a drug and alcohol problem. (Tr. 109.) On July 22, 2000, after obtaining a second statement from Rooney, Berretta and Ferrara arrested Grigg about a mile from the crime scene. (Tr. 115.) Berretta read Grigg his Miranda rights and Grigg refused to cooperate, speak with the detectives, or sign any statements. (Tr. 116.) Berretta recorded Grigg's height as 6'1" and his weight as 180 pounds, in addition to noting a scar on Grigg's lip. (Tr. 139-140.) Rooney did not state that his assailant had a facial scar. (Tr. 80.) After his arrest, Grigg refused to appear in a court ordered lineup, which Grigg had requested. (Tr. 117-18, 120.)


The Petition raises the same claims for relief that were found in Grigg's Appellate Division Brief: (1) improper reference to his post-arrest silence; (2) various evidentiary errors; (3) the trial court's failure to grant an adjournment; (4) Brady disclosure violations; and (5) improper sentencing as a persistent felony offender. Respondent argues that none of the foregoing warrant a writ of habeas corpus. Respondent maintains that Grigg failed to exhaust his adjournment, Brady, and Apprendi claims by neglecting to mention these grounds in his letter request for leave to appeal to the New York Court of Appeals. Respondent further contends that even if Grigg's claims were sufficiently exhausted, they should be rejected as procedurally defaulted or otherwise lacking merit.

The Court's review of the Petition is governed by the guidelines set forth at 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. The Court will first address the issue of exhaustion and then proceed to the other issues pertinent to the instant Petition.

I. Exhaustion

One of the most well known barriers to federal habeas relief is the failure to exhaust claims. "In general, the exhaustion doctrine provides that a habeas petitioner seeking to upset his state conviction on federal grounds must first have given the state courts a fair opportunity to pass upon his federal claim." Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982). The doctrine arises out of principles of comity, see id., and is "designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed. 2d 379 (1982).

Assessing whether a petitioner has exhausted his claims involves an assessment of two criteria. "First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.... Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure appellate review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981).

A claim is "fairly presented" to the state court when both its factual and legal basis are provided for review. See Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed. 2d 438 (1971); Daye, 696 F.2d at 191. Whether the factual basis of a claim was made known to the state court is typically a straightforward inquiry; whether the legal basis of a claim was adequately presented to the state court is often a more difficult issue. A "petitioner may alert the state court to the constitutional nature of a claim without referring chapter and verse to the U.S. Constitution." Ramirez v. Attorney Gen. of N.Y., 280 F.3d 87, 95 (2d Cir. 2001). The Second Circuit has explained that "the requirement that the state court have been given a reasonable opportunity to pass on the federal habeas claim is satisfied if the legal basis of the claim made in state court was the 'substantial equivalent' of that of the habeas claim. This means... that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192 (internal citations omitted).

According to Respondent, Grigg failed to exhaust his third, fourth, and fifth claims (the claims respectively refer to the trial court's failure to grant an adjournment, the Brady claim, and the Apprendi claim) because he failed to fairly present the claims to the New York Court of Appeals. Respondent refers to the contents of Grigg's letter request for leave to appeal, contending that "the only issue he asked that [c]court to consider was that the various evidentiary errors he asserted denied petitioner of a fair trial." Resp. Br. at 3. Grigg responds that each of the grounds was adequately exhausted. With respect to the third ground, Grigg asserts, and the Court agrees, that he specifically raised the issue in the second paragraph of his letter. As for the Brady and Apprendi claims, Grigg argues he adequately raised the issues to the Court of Appeals by referring to the appellate briefs in paragraph one of his letter. Grigg also argues that he sufficiently raised his Apprendi claim by stating in the first paragraph that he was appealing his sentence as a "persistent felony offender."

On more than one occasion, this Circuit has addressed whether a petitioner's letter request for leave to appeal has fairly presented an issue for the New York Court of Appeals' review or, conversely, amounted to an abandonment of a previously raised appellate ground. See Galdmaez v. Keane, 394 F.3d 68, 74-75 (2d Cir. 2005) (surveying Second Circuit jurisprudence in this area). In Grey v. Hoke, the petitioner raised three claims in his brief to the Appellate Division, but only mentioned one claim in his letter application for leave to appeal to the Court of Appeals. 933 F.2d 117, 120 (2d Cir. 1991). The Second Circuit found the two unmentioned claims were not fairly presented to New York's highest court and, thus unexhausted. Id. The Grey court reasoned, "[t]he fair import of petitioner's submission to the Court of Appeals, consisting of his brief to the Appellate Division that raised three claims and a letter to the Court of Appeals arguing only one of them, was that the other two had been abandoned.... We decline to presume that the New York Court of Appeals has 'a duty to look for a needle in a paper haystack.'" Id. (quoting Mele v. Fitchburg Dist. Court, 850 F.2d 817, 822 (1st Cir. 1998)). Balancing the seemingly harsh outcome of Grey, in Morgan v. Bennett, the Second Circuit found the phrase "[w]e request this [c]court to consider and review all issues outlined in defendant-appellant's brief and pro se supplemental brief" sufficient to fairly present for the New York Court of Appeals' review all of the claims contained in the defendant's attached briefs. 204 F.3d 360, 369-70 (2d Cir. 2000) (emphasis omitted).

Put simply, this case lies squarely within the holding of Grey. Grigg raised five grounds in his brief to the Appellate Division, but only mentioned two in his letter request for leave to appeal. The remaining grounds were not fairly presented to the Court of Appeals. The mere attachment of appellate briefs to a letter request for leave does not constitute adequate preservation of all purported errors alleged therein. See Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000) ("[A]rguing one claim in [petitioner's] letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction.").

In addition to relying upon the reference to the appellate briefs, Grigg also claims that he adequately preserved his Apprendi claim by noting in the first paragraph of his letter that he was sentenced as a persistent felony offender. Grigg suggests that a "reasonable jurist" would have construed the reference as preserving an Apprendi claim. See Pet. Reply Br. at 3-4; see also Ramirez, 280 F.3d at 96 (finding petitioner's Sixth Amendment ineffective assistance of counsel claim exhausted notwithstanding the claim being styled as a "fair trial" claim because a "reasonable jurist would have perceived such a claim to have been made, albeit rather inartfully").

What a reasonable jurist might glean from Grigg's letter is appropriately evaluated by reviewing the letter as a whole. The pertinent portions are set forth below:

Dear Justice Kay:

I write to apply for leave to appeal to this Court in the above-captioned case from an Order of the Appellate Division, Second Department, dated November 4, 2002, which affirmed a Judgment of the County Court of Suffolk County (Weber, J.) rendered October 10, 2001, convicting the defendant after a jury trial of robbery in the first degree, and sentencing him, as a persistent felony offender, to an indeterminate sentence of imprisonment with a minimum of 25 years and a maximum of life. The order was served with notice of entry on November 13, 2002. A copy of the Decision and Order, as well as Appellant's Brief, Respondent's Brief, and Appellant's Reply Brief, is enclosed herweith.

Appellant wishes to draw the Court's attention to whether the cumulative effect of evidentiary errors... deprived Mr. Grigg of his right to a fair trial.... In addition, the court refused Mr. Grigg's request for a reasonable, short adjournment to familiarize new counsel...."

Pet. Appeal Letter.

The Court disagrees with Grigg that a reasonable jurist would construe the foregoing as raising an Apprendi claim. The reference to Grigg's status as a persistent felony offender is contained in an introductory paragraph that sets forth the background circumstances of the putative appeal. Apprendi is never cited and there is no basis upon which the Court of Appeals might otherwise infer that Grigg was continuing his pursuit of an Apprendi challenge. Further, the grounds for review are set forth in the second paragraph, earmarked by the phrase "Appellant wishes to draw the Court's attention to...." The second paragraph does not mention Grigg's status as a persistent felony offender, nor does it ...

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