The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Tommy Ezquerdo,*fn1 a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Ezquerdo is currently in the custody of the New York Department of Corrections and Community Supervision, incarcerated at the Green Haven Correctional Facility. Respondent has answered and Ezquerdo has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Ezquerdo was convicted by a jury in the Oneida County Court of two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25), one count of Murder in the Second Degree (N.Y. Penal Law § 125.25), and one count of Robbery in the First Degree (N.Y. Penal Law § 160.15). In January 2008 the trial court sentenced Ezquerdo to an indeterminate prison term of twenty-five years to life on each of the murder convictions, and a determinate term of twenty-five years on the robbery conviction, all sentences to be served concurrently. The Appellate Division, Fourth Appellate Department, affirmed in a published decision, and the New York
Court of Appeals denied leave to appeal on May 26, 2010.*fn2
Ezquerdo timely filed his Petition for relief in this Court
on June 10, 2011.
Because the facts of Ezquerdo's conviction are not necessary to a determination of the Petition in this case, they are not repeated here.
II. GROUNDS RAISED/DEFENSES
In his Petition Ezquerdo raises three grounds: (1) the trial court erroneously allowed the introduction of a confession; (2) he was denied his right to cross-examine a witness with the aid of a Spanish interpreter; and (3) the failure to electronically record his interrogation denied him due process.*fn3 Respondent contends that Ezquerdo did not properly exhaust his state-court remedies on his third ground and it is procedurally defaulted. Respondent does not raise any other affirmative defenses.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless
the decision of the state court was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" at the time the
state court renders its decision or "was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding."*fn4 The Supreme Court has explained that
"clearly established Federal law" in § 2254(d)(1) "refers to the
holdings, as opposed to the dicta, of [the Supreme Court] as of the
time of the relevant state-court decision."*fn5 The
holding must also be intended to be binding upon the states; that is,
the decision must be based upon constitutional grounds, not on the
supervisory power of the Supreme Court over federal courts.*fn6
Thus, where holdings of the Supreme Court regarding the issue
presented on habeas review are lacking, "it cannot be said that the
state court 'unreasonabl[y] appli[ed] clearly established Federal
law.'"*fn7 When a claim falls under the "unreasonable
application" prong, a state court's application of Supreme Court
precedent must be "objectively unreasonable," not just "incorrect or
erroneous."*fn8 The Supreme Court has made clear that
the objectively unreasonable standard is "a substantially higher
threshold" than simply believing that the state-court determination
was incorrect.*fn9 "[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to
whether the error 'so infected the trial with unfairness as to make
the resulting conviction a denial of due process.'"*fn10
In a federal habeas proceeding, the standard under which this
Court must assess the prejudicial
impact of constitutional error in a state court criminal trial is
whether the error had a substantial and injurious effect or influence
in determining the outcome.*fn11 Ezquerdo "bears the
burden of proving by a preponderance of the evidence that his
constitutional rights have been violated."*fn12
The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn13
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn14 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn15 Although pre-AEDPA precedent established that deference is due to the findings of state appellate courts,*fn16 the Second Circuit has left the question open with respect to AEDPA cases.*fn17 In the absence of a clear indication from the Second Circuit to the contrary, this Court can find no principled reason not to apply the same rule in the context of AEDPA, i.e., findings of a state appellate court are presumed to be correct.
To the extent that the petition raises issues of the proper
application of state law, they are beyond the purview of this Court in
a federal habeas proceeding.*fn18 It is a fundamental
precept of dual federalism that the states possess primary authority
for defining and enforcing the criminal law.*fn19 A
federal court must accept that state courts correctly applied state
laws.*fn20 A petitioner may not transform a state-law
issue into a federal one by simply asserting a violation of due
process.*fn21 A federal court may not issue a habeas
writ based upon a perceived error of state law unless the error is
sufficiently egregious to amount to a denial of due process under
Fourteenth Amendment.*fn22 "[A]bsent a specific
constitutional violation, federal habeas corpus review of trial error
is limited to whether the error 'so infected the trial with unfairness
as to make the resulting conviction a denial of due
Ground 1: Admission of Confession into Evidence Testimony concerning inculpatory statements allegedly made by Ezquerdo and a written English translation of those statements were admitted at trial over the objection of the defense. Ezquerdo contends that these statements should have been suppressed because: (1) the statements were taken in violation of his right to counsel and (2) he did not make a knowing, voluntary, and intelligent waiver of his constitutional rights. The Appellate Division disagreed, holding:
We conclude that County Court properly refused to suppress the oral and written statements that [Ezquerdo] made to police investigators while he was in custody. It is well settled that the suppression court's credibility determinations and choice between conflicting inferences to be drawn from the proof are granted deference and will not be disturbed unless unsupported by the record. Here, the court's determination that [Ezquerdo] did not invoke his right to counsel was based solely upon the credibility of the witnesses at the suppression hearing, and we perceive no basis to disturb that determination.
We further reject the contention of [Ezquerdo] that he was not adequately apprised of his rights and did not fully comprehend them based on his limited understanding of the English language. It is undisputed that the police gave [Ezquerdo] a Miranda form in Spanish that explained his rights, including the right to remain silent and the right to speak to an attorney, and [Ezquerdo] conceded at the suppression hearing that he had no trouble understanding the information on that form. The record of the suppression hearing thus supports the court's determination that the waiver by [Ezquerdo] of his Miranda rights was knowing, voluntary and intelligent.
To the extent that [Ezquerdo] further contends that the court erred in admitting his written statement in evidence at trial because the People failed to establish that the statement was an accurate transcription of [Ezquerdo's] oral statements, that contention is without merit. The inability of [Ezquerdo] to read his statement in English does not render the statement inadmissible inasmuch as a bilingual officer testified at trial that he translated the statement into Spanish for [Ezquerdo], word for word, and that ...