Jimenez v. Walker, Docket No. 03-2980-PR.

• Citation: 458 F.3d 130
• Decision Date: 31 July 2006
• Docket Number: Docket No. 03-2980-PR.
• Parties: Luis JIMENEZ, Petitioner-Appellant, v. Hans WALKER, Superintendent of Auburn Correctional Facility, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

458 F.3d 130

Luis JIMENEZ, Petitioner-Appellant, v. Hans WALKER, Superintendent of Auburn Correctional Facility, Respondent-Appellee.

Docket No. 03-2980-PR.

United States Court of Appeals, Second Circuit.

Argued: October 31, 2005.

Decided: July 31, 2006.

Joel A. Brenner, East Northport, NY, for Petitioner-Appellant.

Richard A. Brown, District Attorney, John M. Castellano and Donna Aldea, Assistant District Attorneys, Queens County, Kew Gardens, NY, submitted a brief for Respondent-Appellee.

Before WALKER, Chief Judge, FEINBERG and CARDAMONE, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

Petitioner-appellant Luis Jimenez ("petitioner") appeals from a judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge), entered on November 4, 2003, denying his petition for a writ of habeas corpus. Jimenez presses two claims on appeal: (1) the state court's exclusion of evidence that the murder victim was carrying five ounces of heroin in his pocket denied Jimenez his right to present a meaningful defense and (2) the cumulative effect of trial-court errors denied Jimenez his right to a fundamentally fair trial. Respondent-appellee Hans Walker, Superintendent of Auburn Correctional Facility ("respondent" or "state"), contends that the heroin evidence was constitutionally excluded and that the cumulative-error claim is procedurally defaulted and meritless.

We hold as follows: (1) the conclusive presumption laid out by the Supreme Court in Harris v. Reed and Coleman v. Thompson applies to the determination under 28 U.S.C. § 2254(d) of whether an adjudication is "on the merits"; (2) "AEDPA deference" under 28 U.S.C. § 2254(d) is due to a state court's rejection of a federal claim as "either unpreserved for appellate review or without merit" because this court has interpreted Harris and Coleman to deem such "either/or" adjudications as resting on the merits of the petitioner's federal claim, see Fama v. Comm'r of Corr. Servs., 235 F.3d 804 (2d Cir.2000); (3) habeas relief may not issue regarding Jimenez's present-a-defense claim because the state court's rejection of that claim did not "result[] in a decision that was contrary to" or "involve[] an unreasonable application of" clearly established Supreme Court precedent, see 28 U.S.C. § 2254(d)(1); and (4) the district court properly denied habeas relief regarding Jimenez's cumulative-error claim because Jimenez did not properly exhaust state remedies on this claim by fairly presenting the claim to the state courts, may no longer do so, and has not overcome this procedural default by showing either cause and prejudice or a fundamental miscarriage of justice. We therefore AFFIRM the judgment of the district court.

BACKGROUND

On October 4, 1993, Elkin Cardona was shot and killed while standing on a street in Queens, New York. Luis Jimenez was tried and convicted for his murder. The criminal proceedings surrounding his conviction are relevant to this appeal.

I. Trial

At Jimenez's murder trial, Margie Cardona, who is the victim's widow, and Juan Barrera, who is Margie Cardona's brother and who lived with Margie and the victim, testified for the prosecution as follows. On the day of the shooting, the victim and Margie Cardona gave Jimenez a ride from Queens to Manhattan. During the ride, the victim became upset with Jimenez and argued with him, although the mood did lighten later that day. Around 9:00 that evening, back in his home in Queens, the victim received a page on his beeper and left with Barrera in the victim's van to meet Jimenez. The victim picked up Jimenez and drove to a street in Flushing, Queens, where all three got out. At a payphone on the corner, Jimenez dialed a phone number two or three times and told the group that he had a wrong phone number. Jimenez announced that he was going to his apartment, which was a few blocks away, to get the right number and walked away.

According to Barrera, about ten minutes later, while the victim and Barrera were waiting on the street for Jimenez to return, Barrera saw Jimenez driving his old, white van slowly toward them. Barrera testified that the van passed them and made a U-turn at the next intersection and that upon returning, a concealed person in the passenger's seat extended a gun out the passenger window and opened fire at the victim and Barrera. Ballistics reports indicate that at least eleven 0.9 mm bullets and one 0.380 mm bullet were fired. The victim and Barrera ducked behind some cars, and Barrera then ran away down the street. The victim died at the scene, apparently killed by the single 0.380 mm slug.

Barrera returned to the crime scene after removing his sweatshirt and spoke to an officer without revealing his knowledge of the shooting. Although Barrera had told Margie Cardona what happened, she likewise did not immediately tell the police what she knew. Both eventually did volunteer information about the shooting to the police.

Other evidence was introduced at trial. The jury heard that the police located Jimenez's van in its parking lot near the crime scene but did not recover any inculpatory evidence upon searching it. The van was apparently owned, though not registered, by Jimenez's father-in-law, who had been convicted of drug and weapons crimes and who testified that Jimenez did not drive the van on the day of the shooting. A lobby attendant in a building near the van's designated parking spot testified that he thought the van was present in the parking lot at the time of the shooting.

Further evidence contradicted Barrera's testimony for the prosecution. A teenager who resided in an apartment overlooking the crime scene testified that three people —not two—were standing on the street when a van pulled up and began shooting at them. The teenager also testified that the van had no side windows, whereas Jimenez's father-in-law testified that his van had side windows. Another child who lived nearby testified that two people—not just Barrera—fled down the street after the shooting, one briefly displaying an object that appeared to be a gun. And ballistics evidence suggested that shots were fired from the sidewalk as well as the street.

At the crime scene, the police found a plastic bag containing five ounces¹ of heroin —evidently worth thousands of dollars —in the pants pocket of the victim. At Jimenez's trial, the prosecutor moved in limine to prohibit any mention of this heroin evidence before the jury. In response, Jimenez argued that the evidence was relevant because it would tend to prove the defense theory that the victim was killed by someone involved in or related to a drug deal that was to occur that night, not because of an argument with Jimenez earlier in the day, and that Barrera falsely implicated Jimenez in the shooting out of fear that Barrera himself would be charged with drug crimes or with murder. The trial court ruled that the heroin evidence lacked any probative value and granted the prosecutor's motion in limine to exclude the evidence. Jimenez was then tried and convicted of crimes including murder in the second degree. The trial court sentenced him to imprisonment for 20 years to life for the murder.

II. Post-trial Proceedings

Jimenez appealed his conviction to the New York Supreme Court, Appellate Division pressing his claim that the trial court's exclusion of the heroin evidence deprived him of his constitutional right to present a meaningful defense. The Appellate Division affirmed Jimenez's conviction, summarily dismissing his challenge to the heroin-evidence exclusion as one of several contentions that were "either unpreserved for appellate review or without merit." People v. Jimenez, 245 A.D.2d 304, 670 N.Y.S.2d 118, 118 (App.Div.1997). Leave to appeal to the New York Court of Appeals was denied. People v. Jimenez, 91 N.Y.2d 927, 670 N.Y.S.2d 408, 693 N.E.2d 755 (1998).

III. Federal Habeas Proceedings

Jimenez timely applied for a writ of habeas corpus in the United States District Court for the Eastern District of New York. In his application, Jimenez argued that he was denied his right to present a defense by the trial court's exclusion of the heroin evidence. The district court found that the state trial court did not err in ruling the heroin evidence irrelevant because "it was reasonable for the trial court to hold that the narcotics evidence was too remote to the question of petitioner's guilt or innocence to be probative." Jimenez v. Walker, No. 00-cv-3599, 2003 WL 22952842, at *10 (E.D.N.Y. Nov.4, 2003). The district court therefore held that "[h]abeas corpus relief on this ground is not warranted." Id. The issue did, however, earn a certificate of appealability, as did the issue whether "because of the paucity of evidence to convict, other errors or exercises of discretion by the trial court denied petitioner a fair trial." Id. at *14. This appeal followed.

DISCUSSION

Jimenez presses two claims on appeal. First, he claims that the trial court violated his due process right to present a meaningful defense by excluding evidence that the police found five ounces of heroin in the victim's pants pocket. Second, he claims that cumulative trial-court error violated his right to due process.

In evaluating Jimenez's claims, we review de novo the district court's denial of the writ. Jones v. Stinson, 229 F.3d 112, 117 (2d Cir.2000). We hold that although the Appellate Division's resolution of the first claim may have been erroneous, it was not so erroneous as to be objectively unreasonable. As a result, Jimenez is ineligible for habeas relief regarding this claim. See 28 U.S.C. § 2254(d)(1). We deny the writ on the second claim because Jimenez did not properly exhaust the claim in state court and may no longer do so.

I. The Due Process Right to Present a Defense

A. AEDPA Deference

Because Jimenez filed his habeas application after the effective date of the Antiterrorism and Effective Death Penalty Act...