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Nappi v. Yellach

United States District Court, N.D. New York

May 30, 2014

DONATO NAPPI, Petitioner,
BRUCE YELLACH, [1] Superintendent, Bare Hill Correctional Facility, Respondent.


JAMES K. SINGLETON, Jr., Senior District Judge.

Donato Nappi, a New York state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Nappi is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Bare Hill Correctional Facility. Respondent has answered, and Nappi has replied.


On July 1, 2009, a grand jury charged Nappi with third-degree criminal possession of a weapon by indictment alleging that he possessed a firearm on January 5, 2009. An information separately alleged prior convictions in 1982 for second-degree murder and second-degree conspiracy. Nappi was on parole for those convictions when his parole officer found the firearm at his home.

The trial court held a suppression hearing on November 6, 2009. At the suppression hearing, Nappi's parole officer testified on cross-examination that he first learned that a gun may be at the residence on the afternoon of January 5 when he received a call from a confidential informant. Defense counsel, who had not known about the informant, then requested a Darden [2] hearing. At the Darden hearing, the court granted the prosecution's motion for the informant to remain confidential at that time.

The court also held a hearing on Sandoval [3] issues. The prosecution moved to use a 1972 federal conviction for interstate transportation of stolen securities, a 1979 conviction for criminal possession of stolen property in the second degree, and a 1981 fifth-degree conspiracy conviction. The defense argued that the convictions were too remote and would be unduly prejudicial. The court ultimately ruled that the prosecution could cross-examine Nappi as to whether he was convicted of crimes other than those for which he was on parole and, if the answer was yes, the inquiry would stop. With respect to the convictions alleged by information, the court prohibited the use of the words "murder" or "conspiracy" at trial.

Nappi's wife testified at trial that, in September 2008, Nappi told her that he was looking to get back a gun that he had owned prior to his imprisonment. Defense counsel objected on marital privilege grounds and the court ruled the conversation to be a daily and ordinary exchange between spouses protected by the privilege. She testified to other conversations, including one in December 2008 where Nappi told her he had found out who had his gun. When asked if Nappi had asked her do something to obtain a gun, Mrs. Nappi stated that she was asked to locate a phone number and contact the individual because he could not do so.

Over objection, Mrs. Nappi testified that, on December 11, 2008, her husband called her into a bedroom at her son's home and showed her a gun that was sitting on a towel. She also observed a clip and ammunition in a box. Mrs. Nappi testified that they returned to their home separately the next day with her transporting the gun. She stated that she did not want the gun, but that Nappi told her to hold it as his parole could be violated. Mrs. Nappi testified that she was afraid to have the gun in the house. Nappi told her that he would keep the ammunition and she could take the gun, which she put in her room initially. After a few weeks, Mrs. Nappi moved the gun when Nappi told her he wanted it soon. She did not provide him with the gun as she was afraid to have the gun and ammunition together.

Mrs. Nappi further testified that, on January 4, 2009, Nappi's parole officer, Parole Officer Stewart, arrived at the home for a parole visit. On January 5, 2009, state police arrived at the Nappi residence and searched the home, looking for Mrs. Nappi's son, for whom they had a search warrant. Later that day, Stewart arrived at the home, searched the house, and found the gun.

The court then excused the jury and informed the parties that he was lifting the confidentiality of the informant and revealed that Mrs. Nappi was the confidential informant. The prosecution then continued examination of Mrs. Nappi, who testified that, on the afternoon of January 5, 2009, she spoke to Stewart and told him where the gun could be found because she was afraid of somebody getting hurt.

On cross-examination, Mrs. Nappi admitted she had known Nappi's friend, Del Dyman, for forty years. She denied having a romantic relationship with him but stated that she had placed her house as collateral for his bail. Mrs. Nappi also denied having any misdemeanor or felony convictions. She testified that, when she visited Nappi at jail, he told her to say that the gun belonged to her father who had recently passed away.

Parole Officer Stewart also testified at trial. He testified that he had advised Mrs. Nappi that she should inform him if Nappi ever acquired a weapon. On January 4, 2009, he made an unannounced evening visit and found Nappi, Mrs. Nappi, and her son at the home. Stewart was aware that Mrs. Nappi's son might be wanted on a warrant so, the following day, he checked and learned that a warrant was active. Later that day, he received a call from Mrs. Nappi that there was a weapon at Nappi's home. He notified law enforcement to make a plan to secure the weapon and advised Mrs. Nappi to move the weapon to under the bed for safety reasons. When Nappi arrived home, Stewart met him and looked in the car for Mrs. Nappi's son. Stewart then advised the Nappis that he was going to look for Mrs. Nappi's son in the house. At some point during his search, he went into the middle bedroom and found under the bed a towel with a weapon inside. Stewart secured the area where the gun was found and had an officer restrain Nappi while a warrant was obtained. On re-direct, Stewart testified that he had concerns about possible domestic violence.

The prosecution also presented the testimony of a parole supervisor who was present during the search and a police investigator who testified that the gun was not registered in either Oneida or Herkimer Counties. The prosecution further introduced testimony that the gun had a print that was consistent with Nappi's DNA and that Nappi did not have a pistol permit in Herkimer County.

At the conclusion of the prosecution's case, the defense moved to dismiss due to lack of sufficient evidence of possession on January 5, 2009. The prosecution alleged that constructive possession was shown. The court ruled that it would charge as to both accomplice testimony as requested by the defense and construction possession as requested by the prosecution. The court also determined that sufficient evidence was presented to have the case go to the jury. After deliberations, however, the jury was unable to reach a unanimous verdict.

Nappi then proceeded to a second jury trial. Nappi wanted to cross-examine Mrs. Nappi and present witnesses who could testify that: 1) Mrs. Nappi had a romantic relationship with Dyman at some time in the last 20 or 30 years; 2) Mrs. Nappi's house was subject to foreclosure if Dyman absconded from bail; 3) that Mrs. Nappi asked an attorney for advice about bailing out Dyman; and 4) that Mrs. Nappi had engaged in acts of prostitution. Based on Mrs. Nappi's testimony from the first trial that she had no criminal record and no romantic relationship with Dyman, the court determined that the proposed testimony involved collateral matters and precluded Dyman from either cross-examining Mrs. Nappi on those issues or introducing the proffered witnesses. The trial court also changed its Sandoval ruling, stating that the prosecution would be permitted to impeach Nappi with all prior convictions and, if Nappi testified, could mention the number of years that Nappi had been in prison. The prosecution also presented the testimony of Terry Chrisman, an inmate who had been housed with Nappi for four months, who testified that Nappi had told him that he and his wife argued on the phone because Nappi wanted her to do something for him regarding his father. The evidence presented was otherwise largely consistent with the evidence presented at the first trial.

At the close of the prosecution's case, Nappi made a motion that the jury be instructed to disregard Mrs. Nappi's testimony on the ground that the prosecution did not provide her criminal history. Nappi also requested a mistrial or dismissal for not being allowed to pursue Mrs. Nappi's relationship with Dyman. Defense counsel also argued that the prosecution presented perjured testimony from Mrs. Nappi and that the second trial violated the protections against double jeopardy based on an improper decision by the court in the first trial. Defense counsel further asked for dismissal based on insufficient evidence. The motions were denied. The prosecution produced a partial rap sheet for Chrisman, and the defense was given the option to recall him as a witness because there were more convictions than he had stated during his testimony. Defense counsel waived the opportunity after the rap sheet was agreed to be placed into evidence. The defense then rested.

During deliberations, the jury questioned whether only January 5, 2009, could be considered for possession. The court read the instruction again which was worded "on or about" January 5th and answered "no" to the jury's question. After deliberations, the jury found Nappi guilty of third-degree criminal possession of a weapon. On March 15, 2010, Nappi was sentenced to an imprisonment term of 3½ to 7 years.

Proceeding with the same counsel who had represented him at trial, Nappi appealed his conviction to the Appellate Division, arguing that: 1) the trial court erred in denying his motion for dismissal after the first trial thus violating the constitutional protection against double jeopardy; 2) the trial court erred in admitting Mrs. Nappi's conversations with Nappi in violation of the marital privilege; 3) the court erred in instructing the jury that they should disregard the erroneous date in the indictment; 4) the court erred in not suppressing the evidence obtained by a warrantless search of Nappi's home; 5) the court erred in limiting the cross-examination of Mrs. Nappi; 6) the prosecutor committed misconduct by eliciting testimony of uncharged crimes;

7) the prosecutor committed misconduct by eliciting perjured testimony, failing to reveal the criminal history of witnesses, and arguing to keep a juror who expressed bias; 8) Nappi's right to counsel was violated when the trial court admitted statements that Nappi made to his wife during her visits to jail; 9) the evidence was legally insufficient and the verdict was against the weight of the evidence; 10) the trial court erred when it changed its Sandoval ruling from the first trial; 11) the trial court erred in refusing to dismiss the indictment; and 12) trial counsel was ineffective. The Appellate Division affirmed Nappi's conviction in a reasoned opinion entered on April 29, 2011. Nappi's counsel sought leave to appeal the decision to the Court of Appeals, which was summarily denied on August 5, 2011.

Again proceeding through the same counsel, Nappi filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("CPL") § 440.10. He argued that: 1) the court lacked jurisdiction based on errors in the indictment; and 2) his right to a fair trial was violated where the prosecutor objected to counsel referring to Nappi as innocent. The county court denied the motion in a reasoned opinion on December 13, 2011. Nappi did not seek leave to appeal the denial.

Proceeding with the same counsel who represented him in his state court proceedings, Nappi timely filed a Petition for a Writ of Habeas Corpus to this Court on June 26, 2012.


In his counseled Petition, Nappi raises the following twelve claims: 1) his conviction after a mistrial violated the prohibition against Double Jeopardy; 2) the trial court erroneously admitted the testimony of his wife in violation of the marital/spousal privilege; 3) his conviction was based on a defective indictment; 4) the evidence against him was obtained through an illegal search and seizure; 5) he was denied his right to confrontation when the trial court precluded him in the second trial from questioning his wife about a potential motive; 6) the prosecution improperly elicited testimony of uncharged crimes; 7) the prosecutor committed misconduct by eliciting perjured testimony, failing to disclose criminal histories of two witnesses, objecting to "legitimate voir dire and argument, " and impugning the integrity of the defense; 8) he was denied his right to counsel when his wife, who had served as a confidential informant in the case against him, visited him in jail after his arrest; 9) the verdict was against the weight of the evidence and not supported by legally sufficient evidence; 10) the trial court erred in its Sandoval ruling which led Nappi to refrain from testifying; 11) there was insufficient evidence presented in the grand jury proceedings to support his indictment; and 12) his trial counsel was ineffective for failing to bring to the jury's attention discrepancies in his wife's testimony.


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, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

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. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it. See Dolphy v. Mantello, 552 F.3d 236, 239-40 (2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)); cf. Wiggins v. Smith, 539 U.S. 510, 530-31 (2003) (applying a de novo standard to a federal claim not reached by the state court). In so doing, the Court presumes that the state court decided the claim on the merits and the decision rested on federal grounds. See Harris v. Reed, 489 U.S. 255, 263 (1989); Coleman v. Thompson, 501 U.S. 722, 740 (1991); see also Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (explaining the Harris-Coleman interplay); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court. Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (rejecting the argument that a summary disposition was not entitled to § 2254(d) deference); Jimenez, 458 F.3d at 145-46.


A. Exhaustion

Respondent correctly contends that two of Nappi's claims are unexhausted. This Court may not consider claims that have not been fairly presented to the state courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). Exhaustion of state remedies requires the petition to fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). A petitioner must alert the state courts to the fact that he is asserting a federal claim in order to fairly present the legal basis of the claim. Id. at 365-66. An issue is exhausted when the substance of the federal claim is clearly raised and decided in the state court proceedings, irrespective of the label used. Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005). As Respondent notes, Nappi raised his weight of the evidence claim (claim 9) and his defective grand jury proceedings claim (claim 11) solely on the basis of state law.

Nappi's unexhausted weight of the evidence claims are procedurally barred. Because Nappi's claims are based on the record, they could have been raised in his direct appeal but were not; consequently, Nappi cannot bring a motion to vacate as to these claims. CPL § 440.10(2)(c) ("[T]he court must deny a motion to vacate a judgment when[, ] [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal...."). Moreover, Nappi cannot now raise these claims on direct appeal because he has already filed the direct appeal and leave application to which he is entitled. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991).

"[W]hen a petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, ' the federal habeas court should consider the claim to be procedurally defaulted." Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008); see also Grey, 933 F.2d at 121. A habeas petitioner may only avoid dismissal of his procedurally defaulted claims if he can demonstrate "cause for the default and prejudice from the asserted error, " House v. Bell, 547 U.S. 518, 536 (2006), or a "fundamental miscarriage of justice, " Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A miscarriage of justice is satisfied by a showing of actual innocence. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995). Nappi does not claim that cause exists for his procedural default, nor, as discussed more fully below, does he show actual innocence. Because Nappi may not now return to state court to exhaust these claims, the claims may be deemed exhausted but procedurally defaulted from habeas review. See Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir. 2001).

Despite Nappi's failure to exhaust these claims, this Court nonetheless may deny those claims on the merits and with prejudice. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). This is particularly true where the grounds raised are meritless. See Rhines, 544 U.S. at 277. Accordingly, this Court declines to dismiss the unexhausted claims solely on exhaustion grounds and will instead reach the merits of the claims as discussed below.

B. Merits

Claim 1: Double Jeopardy Violation

Nappi first argues that he was subjected to double jeopardy "when the trial court failed to grant his motion for a trial court order of dismissal at the first trial and allowed him to be tried a second time when there was legally insufficient evidence at the first trial to convict him." The Appellate Division summarily rejected this claim on direct appeal.

In support of this claim, Nappi states:

There was no evidence at the first trial that [Nappi] possessed a gun in the Town of Webb, Herkimer County, on or about January 5, 2009. The evidence was that Mr. Nappi's wife (who was secretly working with Parole) brought the gun from Oneida County to Herkimer County per Mrs. Nappi-at her husband's request) some weeks earlier. Mrs. Nappi hid the gun in or around her Herkimer County home starting in mid-December and would not tell [Nappi] where she hid it. Mrs. Nappi testified at the first trial that she would not give Donato access to the gun and that Mr. Nappi did not know where the gun was. Mrs. Nappi kept the gun hidden at different locations around her home until January 5, 2009, when she called Parole to come get it. Parole did, and they arrested Mr. Nappi for possession of the gun. (Mr. Nappi was gone from the home for almost all of January 5, 2009, and Parole purposefully waited for him to come home to search the house and seize the gun.) There was no evidence that Mr. Nappi touched the gun or otherwise had access to it from the time it arrived in Herkimer County (in mid-tolate December 2008) until it was seized by Parole on January 5, 2009.
[Nappi] made a motion for a trial court order of dismissal on the above grounds prior to the case being submitted to the jury. The motion was denied. The jury hung, and the ...

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