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Jack Freeman v. Gregory Kadien

July 3, 2012

JACK FREEMAN, PETITIONER-APPELLANT,
v.
GREGORY KADIEN, RESPONDENT-APPELLEE.



Appeal from a judgment of the United States District Court for the Western District of New York (Michael A. Telesca, Judge) denying a writ of habeas corpus under 28 U.S.C. § 2254 to a petitioner who challenges a state appellate court's determination that evidence admitted at trial in violation of state law was harmless error.

The opinion of the court was delivered by: Reena Raggi, Circuit Judge:

11-353-pr

Freeman v. Kadien

Submitted: May 2, 2012

Before: SACK and RAGGI, Circuit Judges, KOELTL, District Judge.*fn1

We conclude that a harmlessness decision on an error of state law is itself a matter of state, not federal, law, which cannot form the basis for federal habeas relief.

AFFIRMED.

Jack Freeman, who stands convicted after trial in New York of second-degree assault, second-degree vehicular assault, common law driving while intoxicated ("DWI"), and leaving the scene of an accident, see People v. Freeman, 46 A.D.3d 1375, 1377, 848 N.Y.S.2d 800, 802 (4th Dep't 2007), appeals from the judgment entered on November 19, 2010, in the Western District of New York (Michael A. Telesca, Judge) denying him a writ of habeas corpus pursuant to 28 U.S.C. § 2254, see Freeman v. Kadien, No. 08-cv-6468T, 2010 WL 4642925 (W.D.N.Y. Nov. 17, 2010). Freeman contends that the Fourth Department of the New York Appellate Division unreasonably applied clearly established federal law in identifying as harmless the erroneous admission of evidence obtained from a blood draw compelled pursuant to a warrant found invalid under state law. We conclude that the challenged harmlessness determination regarding an error of state law was itself a decision of state law that cannot form the basis for federal habeas relief. Accordingly, we affirm the judgment denying Freeman's petition.

I. Background

A. The Charged Criminal Conduct

On the evening of October 3, 2004, Freeman drove a pickup truck with a trailer attachment on the New York State Thruway while intoxicated. At some point, Freeman cut in front of a car in the left passing lane that was parallel to his own vehicle, forcing the driver, Kelli Smith, to brake suddenly, lose control of her car, cross the median into opposing traffic lanes, and hit a tree. Briefly rendered unconscious, Smith sustained bruises, burns, and broken bones that confined her to a wheelchair for three weeks, required her to use a walker for two months, and left her with persistent knee problems.

After the accident, Freeman briefly pulled his vehicle onto the shoulder of the road, but then left the scene before police arrived to investigate. Other witnesses, however, were able to provide the police with an account of the accident and a description of Freeman's vehicle, which was soon stopped by a state trooper who saw the truck swaying within its traffic lane. Upon confronting petitioner, the trooper noted Freeman's slurred speech and flushed face, as well as the smell of alcohol coming from Freeman's vehicle. The trooper administered several field sobriety tests, including recitation of the alphabet, the one-leg stand, the walk- and-turn test, the finger-to-nose test, and the Romberg test, which involves counting to thirty while standing with one's eyes closed, and concluded that Freeman failed all but the walk- and-turn test. In addition, another state trooper conducted horizontal gaze nystagmus testing on Freeman and concluded that Freeman's eye movement was indicative of intoxication.

After recovering from Freeman's truck a half-empty can of beer, still cold, in a foam insulator, as well as a cooler containing one empty and two full cans of beer, the troopers escorted him to the police barracks, where Freeman refused to take a breathalyzer test. The troopers then contacted a state prosecutor in order to obtain a judicial warrant to draw Freeman's blood. That blood draw, performed ...


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