Reyes v. Keane, 1262

• Decision Date: 24 July 1997
• Docket Number: D,No. 1262,1262
• Parties: Edwardo REYES, Petitioner-Appellant, v. John P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee. ocket 95-2650.
• Court: U.S. Court of Appeals — Second Circuit

Page 136

118 F.3d 136

Edwardo REYES, Petitioner-Appellant, v. John P. KEANE, Superintendent, Sing Sing Correctional

Facility, Respondent-Appellee.

No. 1262, Docket 95-2650.

United States Court of Appeals, Second Circuit.

Argued May 29, 1997.

Decided July 24, 1997.

Michael Lipson, Garden City, NY, for Petitioner-Appellant.

Andrew C. Tsunis, Assistant Attorney General, New York City, (Dennis C. Vacco Before: VAN GRAAFEILAND, MINER and CABRANES, Circuit Judges.

Attorney General, Barbara G. Billet, Solicitor General, Thomas D. Hughes, Assistant Solicitor General, Robert A. Forte, Assistant Attorney General, New York City, of counsel), for Respondent-Appellee.

MINER, Circuit Judge:

Petitioner-appellant Edwardo Reyes appeals from a judgment entered in the United States District Court for the Southern District of New York (Cote, J.) dismissing his petition for a writ of habeas corpus, the court having found, inter alia, that Reyes had procedurally defaulted on his claim that the "reasonable doubt" jury instruction in his state trial was constitutionally defective. We previously granted Reyes a certificate of appealability limited to his claim concerning the jury instruction and whether that claim was forfeited by reason of procedural default. We now conclude that Reyes cannot escape the procedural bar and therefore affirm.

BACKGROUND

On September 28, 1984, at 145th Street and Riverside Drive, New York City, Reyes and his co-defendants sold one kilogram of cocaine to an undercover detective of the Drug Enforcement Administration Task Force (the "Task Force"). The sale followed a series of meetings between Reyes and the undercover detective, as well as telephone negotiations between Reyes and a confidential informant. At trial, the State's witnesses included the undercover detective, police officers, the confidential informant, and a chemist. Reyes did not testify.

According to testimony given at trial, the undercover detective received from Reyes a black shopping bag containing 17 ounces of cocaine, which Reyes had obtained from two co-defendants, and a tan shopping bag containing 17.9 ounces of cocaine, which Reyes had obtained from a third co-defendant. After the detective had completed the transaction, members of the Task Force converged on the participants and arrested Reyes and three others, including two of Reyes's co-defendants.

In 1985, Reyes was convicted in the Supreme Court, New York County, after a jury trial, of criminal sale of a controlled substance in the first degree, in violation of New York Penal Law § 220.43(1). Reyes was sentenced to a term of imprisonment of 15 years to life, to run concurrently with a term of imprisonment of 8-and-one-third to 25 years on an unrelated conviction for attempted murder. Reyes appealed to the Appellate Division, First Department, arguing, among other things, that the reasonable doubt jury instruction was constitutionally defective. In response, the State contended both that the jury charge claim was procedurally barred by Reyes's failure to object at trial and that the jury charge was not defective. The Appellate Division affirmed the judgment of conviction without opinion. People v. Reyes, 145 A.D.2d 1001, 535 N.Y.S.2d 509 (1st Dep't 1988). The Court of Appeals denied leave to appeal. People v. Reyes, 74 N.Y.2d 851, 546 N.Y.S.2d 1016, 546 N.E.2d 199 (1989).

On July 13, 1994, Reyes filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Reyes claimed that (1) the jury charge was constitutionally defective because it misstated the reasonable doubt standard, (2) the prosecution failed adequately to establish the chain of custody for the seized cocaine, and (3) the trial judge made improper comments about Reyes's attorney and improperly limited cross-examination of one witness. With respect to the jury charge claim, Reyes alleged error in three particular instructions explaining "reasonable doubt": (1) "it's not even a feeling that a defendant may be guilty"; (2) "[i]t is, in effect, a doubt for which you can give a rational reason"; and (3) "[i]t is not a requirement of proof beyond a reasonable doubt". (J.A. 45.)

Reyes's petition was referred to Magistrate Judge Sharon E. Grubin, who issued a Report and Recommendation (the "Report") on May 26, 1995. The Report recommended dismissal of the petition with prejudice, the magistrate judge having determined that Reyes had procedurally defaulted on his challenge to the jury instruction, and that his other claims were meritless. On August 24 Reyes appealed to this Court on September 11, 1995. We initially dismissed the appeal for failure either to pay the filing fee or to move for leave to proceed on appeal in forma pauperis. Then, by opinion dated July 29, 1996, we granted Reyes's request to reinstate his appeal and to proceed in forma pauperis, and granted a certificate of appealability, pursuant to 28 U.S.C. § 2253 (as amended), "limited to the claim concerning the reasonable doubt instruction." Reyes v. Keane, 90 F.3d 676, 681 (2d Cir.1996). We further noted that "[w]hether th[at] claim has been forfeited by lack of objection of defense counsel is also a substantial issue, since, if the reasonable doubt instruction was defective, counsel's failure to object might constitute ineffective assistance of counsel sufficient to establish 'cause' within the meaning of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977)." Id. This appeal followed.

                1995, the district court entered a judgment adopting the Report in its entirety and dismissing the petition with prejudice.  The district court also declined to issue a certificate of probable cause, pursuant to 28 U.S.C. § 2253 (1994), reasoning that "the petition presents no question of substance for appellate review."  (J.A. 7-8.)   The district court further concluded, pursuant to 28 U.S.C. § 1915(a), "that any appeal would be frivolous and not taken in good faith."  (J.A. 8.)
                

DISCUSSION

Reyes argues that the district court erred in refusing to grant his petition because the trial court's reasonable doubt jury instruction was constitutionally defective. The State of New York contends that we should reject Reyes's claim as procedurally barred. Reviewing de novo the district court's denial of Reyes's petition, see Chalmers v. Mitchell, 73 F.3d 1262, 1266 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 106, 136 L.Ed.2d 60 (1996), we adopt the position taken by the State.

A state prisoner who fails to object to a jury instruction in accordance with state procedural rules procedurally forfeits that argument on federal habeas review. See Roman v. Abrams, 822 F.2d 214, 222 (2d Cir.1987). Under New York law, a defendant must object to an alleged error in a jury instruction before the trial court in order to preserve the issue for appeal. See N.Y.Crim. Proc. Law § 470.05(2) (McKinney 1994). A federal habeas petitioner may avoid this default by showing cause for the default and prejudice, or that failure to consider the claim will result in a miscarriage of justice, see Coleman v. Thompson, 501 U.S. 722, 748, 111 S.Ct. 2546, 2563, 115 L.Ed.2d 640 (1991), which means that the "constitutional violation has probably resulted in the conviction of one who is actually innocent," Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986); see Schlup v. Delo, 513 U.S. 298, 320, 115 S.Ct. 851, 864, 130 L.Ed.2d 808 (1995).

The principle barring habeas review of procedurally forfeited claims is "relaxed when the state courts themselves have disregarded the default and decided the constitutional claim on the merits." Roman, 822 F.2d at 222. However, where, as in the present case, a claim is not raised in the trial court and a procedural bar is among the grounds argued by the State on direct appeal, we construe an affirmance without opinion as resting on the procedural ground where "[t]here is no 'good reason' to believe that the Appellate Division's silence reflects a decision on the merits." Quirama v. Michele, 983 F.2d 12, 14 (2d Cir.1993); see Coleman, 501 U.S. at 739, 111 S.Ct. at 2559.

The district court never reached the merits of Reyes's jury charge claim, having adopted the Report's determination that Reyes procedurally defaulted on his jury instruction claim by failing to object at trial. The Report concluded that, because Reyes failed to demonstrate good cause for his failure to object and prejudice from the instruction, he had defaulted on that claim.

There is no doubt or dispute that Reyes procedurally defaulted by not raising his jury instruction claim before the state trial court. Reyes makes no real attempt to show a miscarriage of justice. Rather, Reyes attempts to show cause for his default and prejudice as a result of the faulty jury instruction. Reyes argues that he satisfies We have not yet had occasion to determine whether an ineffective assistance claim brought as cause for a procedural default must itself first have been brought in state court. However, with respect to the requirement that state remedies be exhausted, the Supreme Court has stated:

                the cause requirement because his counsel rendered ineffective assistance by failing to object to the reasonable doubt charge.  "Ineffective assistance of counsel ... is cause for a procedural default."  Murray, 477 U.S. at 488, 106 S.Ct. at 2645;  see Coleman, 501 U.S. at 753-54, 111 S.Ct. at 2566-67.   However, Reyes failed to raise this ineffective assistance claim in state court
                

[W]e think that the exhaustion doctrine, which is principally designed to protect the state courts' role in the enforcement of...