Vargas v. Keane

• Decision Date: 30 May 1996
• Docket Number: No. 877,D,877
• Parties: Adriano VARGAS, Petitioner-Appellant, v. John P. KEANE, Respondent-Appellee. ocket 95-2079.
• Court: U.S. Court of Appeals — Second Circuit

Page 1273

86 F.3d 1273

Adriano VARGAS, Petitioner-Appellant, v. John P. KEANE, Respondent-Appellee.

No. 877, Docket 95-2079.

United States Court of Appeals, Second Circuit.

Argued Feb. 9, 1996.

Decided May 30, 1996.

Georgia J. Hinde, New York City, for petitioner-appellant.

Dian Kerr McCullogh, Assistant Attorney General, New York City (Dennis C. Vacco, Attorney General, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Assistant Attorney General for the State of New York, of counsel), for respondent-appellee.

Before: McLAUGHLIN and CABRANES, Circuit Judges, WEINSTEIN, District Judge ^*.

JOSE A. CABRANES, Circuit Judge:

Petitioner Adriano Vargas appeals from a December 19, 1994, judgment of the United States District Court for the Southern District of New York (Michael B. Mukasey, Judge) dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254. On appeal, Vargas contends that (1) the district court erred in concluding that the trial court's reasonable doubt instruction was not constitutionally deficient; and (2) the district court improperly deemed his challenge to the prosecutor's summation procedurally barred.

We conclude that the challenged instruction, when taken as a whole, neither overstated the degree of doubt necessary for acquittal nor shifted the burden of proof away from the prosecution. In addition, we agree with the district court that Vargas's challenge to the prosecutor's summation is procedurally barred and that a denial of relief would not result in a "fundamental miscarriage of justice." We therefore affirm.

I. FACTS

The petitioner was charged with first-degree burglary and first- and second-degree robbery in connection with a February 22, 1988, incident at the Manhattan apartment of Carlos and Cecilia Carey. Two men forcibly entered the apartment, threatened Mr. and Mrs. Carey with a gun and a knife, tied the pair up with telephone cable, and ransacked the apartment. After reporting the robbery to the police and viewing police photographs, neither of the Careys was able to identify the perpetrators. Two weeks later, however, both selected a photograph of the petitioner. For reasons that are unclear, the petitioner was not apprehended. A month after the robbery, the Careys allegedly saw the petitioner on a subway car. Mr. Carey called the police, who drove him to an apartment building; Mr. Carey saw the petitioner standing at a third-floor window and identified him as one of the two robbers and as the person he had seen on the subway. The police arrested the petitioner outside of the apartment building shortly thereafter.

The Supreme Court in New York County held a suppression hearing beginning on November 7, 1988, to determine the admissibility of the Careys' photographic identification of the petitioner and Carlos Carey's identification of the petitioner at the scene of his arrest. When the petitioner failed to appear on the second day of the suppression hearing, the court proceeded without him, but agreed not to rule on the suppression motions until both sides had attempted to locate the petitioner. After those efforts proved unsuccessful, the court rendered its decision declining to suppress the challenged evidence and proceeded with the trial on November 16 and 17, in the petitioner's absence but with defense counsel present and participating.

In his instructions to the jury, the trial judge defined reasonable doubt in part as follows:

A reasonable doubt is a doubt which you consciously have after the use of your powers of reasoning which arises out of the credible evidence or the lack of credible evidence.

It is a doubt for which you can give a reason if called upon to do so by a fellow juror in the jury room. The standard of reason must be prevailing. When you are convinced that you have no doubt in reason of the defendant[']s guilt, that is when you will be justified in rendering a verdict accordingly. Consequently, after fairly and fully considering all of the evidence and the lack of evidence and using the same power of reasoning and power of thinking that would apply and do apply to weigh the importance of matters related to the [sic] important business affairs, if you then believe that each element of the crime submitted to you[ ] has been established beyond a reasonable doubt, you would be justified in finding the defendant guilty of that crime.

(Emphasis supplied.) After deliberating for one hour, the jury convicted the petitioner on all three counts of the indictment. The petitioner was re-arrested several weeks later, and the court imposed concurrent sentences of eight to sixteen years imprisonment on the burglary and first-degree robbery counts, and seven-and-a-half to fifteen years imprisonment on the second-degree robbery count.

Vargas challenged his conviction on direct appeal. He did not challenge his trial in absentia, but claimed primarily that the trial court's instructions on reasonable doubt were erroneous and that the proceedings had been infected by improper prosecutorial comments on summation. On July 3, 1990, the Appellate Division of the Supreme Court unanimously affirmed the conviction, finding no error in the reasonable doubt instruction and concluding that the petitioner's challenge to the prosecutor's summation was procedurally barred in light of his counsel's failure to interpose an objection at trial, and (in any event) that the prosecutor's remarks were not improper. People v. Vargas, 163 A.D.2d 39, 39, 559 N.Y.S.2d 631, 632 (1st Dep't 1990) (mem.). The petitioner's application for leave to appeal to the New York Court of Appeals was denied. 76 N.Y.2d 945, 563 N.Y.S.2d 74, 564 N.E.2d 684 (1990).

In June 1992, Vargas moved under §§ 440.10 and 440.20 of the New York Criminal Procedure Law for a new trial or to set aside his sentence. He claimed that the court had improperly proceeded to trial in his absence and challenged his sentencing on the ground that the Probation Department had omitted his statement from the presentence report. On July 13, 1992, the New York Supreme Court denied the petitioner's motion, and the Appellate Division denied his application for leave to appeal.

Vargas filed the instant federal petition on November 15, 1993, claiming that the trial court's reasonable doubt instruction was constitutionally deficient, the prosecutor's improper summation tainted the proceedings, and the omission of his statement from the presentence report rendered his sentencing proceeding invalid. By an order of November 26, 1993, Judge Mukasey referred the petition to Magistrate Judge Michael H. Dolinger. In a Report and Recommendation filed September 21, 1994, the magistrate judge concluded that the petition should be denied, because: (1) the trial court's reasonable doubt instruction was not constitutionally deficient, and in fact closely tracked approved New York pattern jury instructions; (2) in light of defense counsel's failure to object to the prosecutor's remarks during summation, the petitioner's challenge to those remarks was procedurally barred; and (3) the petitioner's sentencing challenge did not raise a federally cognizable claim. On December 19, 1994, Judge Mukasey adopted the report of the magistrate judge over the petitioner's objection and issued a certificate of probable cause to appeal. We appointed counsel to brief and argue the appeal. The petitioner pursues on appeal only his claims that the trial court's reasonable doubt instruction was constitutionally deficient and that the district court erred in treating his challenge to the prosecutor's summation as procedurally barred.

II. DISCUSSION

A. Reasonable Doubt Instruction

In a state criminal trial, the Due Process Clause of the Fourteenth Amendment protects the accused from conviction unless the prosecution "persuade[s] the factfinder 'beyond a reasonable doubt' of the facts necessary to establish" each element of the offense charged. Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 2080-81, 124 L.Ed.2d 182 (1993) (citations omitted); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). A jury instruction that permits conviction on a lesser standard--by shifting the burden of proof from the prosecution to the defendant, or by suggesting that a higher degree of doubt than "reasonable" doubt is necessary for acquittal--is constitutionally deficient. Any such deficiency would be a per se ground for reversal of a criminal conviction: because the Sixth Amendment and the Fourteenth Amendment's Due Process Clause together require a jury verdict of guilty "beyond a reasonable doubt," a guilty verdict rendered by a jury applying a less demanding standard of proof is not a jury verdict at all within the meaning of the Sixth Amendment. Sullivan, 508 U.S. at 278, 280, 113 S.Ct. at 2080-81, 2082. In such circumstances, harmless error analysis--which permits a reviewing court to determine whether a jury would have rendered the same verdict of guilty absent the constitutional error occurring at trial--simply cannot apply. Id.; see Chalmers Although a constitutional infirmity in a reasonable doubt instruction is a per se ground for reversal of a criminal conviction, not every unhelpful, unwise, or even erroneous formulation of the concept of reasonable doubt in a jury charge renders the instruction constitutionally deficient. The reviewing court must examine the charge as a whole, see Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973), and assess "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet" the standard of proof beyond a reasonable doubt, Victor v. Nebraska, 511 U.S. 1, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). See Chalmers, 73 F.3d at 1267 ("Sometimes, erroneous portions of the jury instructions are offset when considered in context or explained by the trial court in later s...