Glenn v. Bartlett

• Decision Date: 24 October 1996
• Docket Number: D,No. 83,83
• Citation: 98 F.3d 721
• Parties: Otis GLENN, a/k/a Sammy McBride, Petitioner-Appellant, v. George BARTLETT, Superintendent of Elmira Correctional Facility, Respondent-Appellee. ocket 95-2807.
• Court: U.S. Court of Appeals — Second Circuit

Page 721

98 F.3d 721

Otis GLENN, a/k/a Sammy McBride, Petitioner-Appellant, v. George BARTLETT, Superintendent of Elmira Correctional Facility, Respondent-Appellee.

No. 83, Docket 95-2807.

United States Court of Appeals Second Circuit.

Argued Sept. 6, 1996.

Decided Oct. 24, 1996.

Howard K. Broder, Rochester, NY, for Petitioner-Appellant.

Frank K. Walsh, Albany, NY, Assistant Attorney General of the State of New York (Dennis C. Vacco, Attorney General of the State of New York, Peter H. Schiff, Deputy Solicitor General, Peter G. Crary, Assistant Attorney General, of Counsel), for Respondent-Appellee.

Before: FEINBERG, CARDAMONE and McLAUGHLIN, Circuit Judges.

FEINBERG, Circuit Judge:

Petitioner Otis Glenn appeals from an order entered in November 1995 in the United States District Court for the Northern District of New York, Con G. Cholakis, J., dismissing his habeas petition pursuant to 28 U.S.C. § 2254. Glenn asserts that the district court erred in holding that his challenges to racial statements made by the prosecution during his state trial and to application of New York's "automobile presumption" for possession of drugs were both procedurally barred on habeas review. He further challenges the district court's holding that admission of a statement made by his coconspirator did not violate the Confrontation Clause of the Sixth Amendment. For reasons set forth below, we affirm.

I. Facts and Prior Proceedings

In June 1989, Glenn and Valfonso DeWitt were stopped on the New York State Thruway by New York State Trooper Jerome Crawford for failure to display a rear license plate. Glenn, the driver at this point, explained to Crawford that he was accompanying DeWitt on a trip to Ohio to deliver DeWitt's employer's car. When Glenn produced a license showing DeWitt's picture, Crawford became suspicious, returned to his car and called out "DeWitt" over his loudspeaker. When Glenn stepped out of the car in response, Crawford arrested him for criminal impersonation.

Crawford next ordered DeWitt out of the car and received permission to search the vehicle. Crawford asked DeWitt to open a heavy suitcase located inside the trunk. Although DeWitt unlocked one of the suitcase's two locking mechanisms, he told Crawford that he would "have to talk to Otis Glenn about getting the combination for the suitcase."

Crawford testified that as he returned to his patrol car to call for backup assistance, he saw Glenn get out of the car, slam the trunk, and reenter the car, which sped off with DeWitt driving. During the ensuing high-speed chase, Crawford saw the car stop on a Thruway bridge; an observer driving over the bridge testified at trial that he saw the passenger--appellant Glenn--throw something from the trunk into the river below.

Later that day, police apprehended Glenn and DeWitt walking around the town of Auburn, where they had abandoned the car. Two months later, police recovered from a section of the Seneca River not far downstream from the Thruway bridge a suitcase that Crawford identified as the one found in DeWitt's trunk. The suitcase contained over four ounces of cocaine and heroin, drug paraphernalia and two guns. In September 1991, Glenn was convicted after a jury trial in Cayuga County Court of criminal possession of a controlled substance in the first degree. He is presently serving his sentence of twenty-five years to life imprisonment. ¹

On appeal to the New York State Appellate Division, Fourth Department, Glenn argued, among other things, that: (1) racial statements by the prosecutor during the trial violated due process; (2) the automobile presumption applied by the New York trial court, which allows a jury to presume knowing possession by any passenger in a car of drugs found in the car, is unconstitutional as applied in this case; and (3) admission through Crawford's testimony of DeWitt's statement about the lock combination violated Glenn's constitutional right to confrontation under state and federal law. The Appellate Division affirmed Glenn's conviction in a three-two decision. People v. Glenn, 185 A.D.2d 84, 592 N.Y.S.2d 175 (N.Y.App.Div.1992). Justice Green, one of the dissenters, thereafter denied both Glenn's motion for leave to appeal to the New York Court of Appeals, and his motion for reconsideration of that denial.

In November 1993, Glenn filed his federal habeas petition. Although Magistrate Judge David N. Hurd recommended that the petition be granted based on what he believed to be the "cumulative effect" of constitutional violations in the state trial, District Judge Cholakis refused to adopt the recommendations. Instead, the district judge held that he was procedurally barred from reviewing Glenn's habeas claims with respect to prosecutorial racial statements and the automobile presumption because the Appellate Division had ruled that Glenn had not properly preserved these issues for appellate review. Additionally, the judge held that DeWitt's statement was properly admissible non-hearsay under federal constitutional standards. Glenn now challenges each of these holdings.

II. Racial Statements

Glenn claims that two statements made by the prosecutor during the trial violated due process by encouraging the jury to decide his case on the basis of improper racial considerations. First, after Glenn's attorney asked the jury in his opening not to base its verdict on the fact that Glenn is black, the prosecutor countered in his opening that the statement of Glenn's attorney was "a smoke screen. In fact, the arresting officer in this case [Trooper Crawford] is a black officer." Later, during cross-examination of Glenn, the prosecutor questioned Glenn's reasons for abandoning the car and walking around Auburn after being pursued by the police, asking, "Two black men that don't know anything about the Auburn area and you just start walking?" Glenn argues that these racial comments were inappropriate and made without legitimate justification, thus violating his due process right to a fair trial. Without reaching the merits, the district court held that under the governing law, Glenn was "procedurally barred" from raising this issue in federal court.

In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court reaffirmed the well-settled principle that when a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id. at 750, 111 S.Ct. at 2565; see also Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593-94, 115 L.Ed.2d 706 (1991); Epps v. Comm'r of Correctional Servs., 13 F.3d 615, 617-18 (2d Cir.), cert. denied, 511 U.S. 1023, 114 S.Ct. 1409, 128 L.Ed.2d 81 (1994). However, procedural default in the state court will only bar federal habeas review when "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (internal quotations omitted); Levine v. Comm'r of Correctional Servs., 44 F.3d 121, 126 (2d Cir.1995). A federal habeas court determines whether the state court judgment rests on such an independent and adequate ground. Coleman, 501 U.S. at 736, 111 S.Ct. at 2557-58.

Glenn argues, and the Magistrate Judge agreed, that the Appellate Division's discussion of the merits with mere "mention" of the procedural default indicates that the decision was based on the merits. We disagree. In its opinion, the Appellate Division clearly stated that Glenn "did not object to the prosecutor's [racial] remarks, so he has not preserved for review his present argument." ² People v. Glenn, 185 A.D.2d at 90, 592 N.Y.S.2d 175. The court then went on, however, to discuss the merits of the due process claim, holding that "[a]lthough we do not condone the prosecutor's attempts to appeal to the possible racial bias of jurors, we decline to reverse the conviction in the interest of justice." Id.

This court has held that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990); Harris, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding."); Wedra v. Lefevre, 988 F.2d 334, 338-39 (2d Cir.1993).

Acknowledging this principle, Glenn argues that the Appellate Division did not "truly" rule in the alternative. Glenn correctly observes that in Velasquez, after stating that the "issue [was] not preserved for appellate review," the Appellate Division prefaced its discussion of the merits of the claims by stating that "in any event" and "in any case" they were without merit. People v. Velasquez, 141 A.D.2d 882, 883, 530 N.Y.S.2d 208 (N.Y.App.Div.1988). Glenn argues that the Appellate Division in this case did not similarly make clear that its holding on the merits was an alternative holding. However, to require a state court to use specific talismanic phrases when ruling in the alternative would be undue formalism; it would also intrude on the state court's autonomy without advancing the federalism and comity interests protected by the independent and adequate state grounds doctrine. Indeed, the Supreme Court in Coleman declined to "impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim ... in order that federal courts might not be bothered with reviewing...