Ayala v. Hernandez

Decision Date04 May 1989
Docket NumberNo. 87 Civ. 0981.,87 Civ. 0981.
Citation712 F. Supp. 1069
PartiesJose AYALA, Petitioner, v. Charles HERNANDEZ, Superintendent of Taconic Correctional Facility, Robert Abrams, Attorney General of the State of New York, and Elizabeth Holtzman, District Attorney of Kings County, Respondents.
CourtU.S. District Court — Eastern District of New York

Jose Ayala, Bedford Hills, N.Y., pro se.

Darrell Fields, Asst. Dist. Atty., Brooklyn, N.Y., for respondents.


GLASSER, District Judge:

Petitioner pro se Jose Ayala, an inmate of the Taconic Correctional Facility in Bedford Hills, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the petition is denied in its entirety, with prejudice.

After a jury trial in the New York State Supreme Court, Kings County, petitioner was convicted of second degree burglary and petit larceny, and as a second violent felony offender was sentenced to concurrent terms of imprisonment of five to ten years and one year, respectively. The Appellate Division affirmed petitioner's conviction, People v. Ayala, 120 A.D.2d 600, 502 N.Y.S.2d 75 (2d Dep't 1986), and the New York Court of Appeals denied leave to appeal, People v. Ayala, 68 N.Y.2d 755, 506 N.Y.S.2d 1042, 497 N.E.2d 712 (1986).

In seeking habeas relief, petitioner alleges that his due process rights were violated by:

1) the trial court's interjection of itself into the proceedings and the prosecutor's summation remarks suggesting that petitioner fabricated his testimony;

2) the trial court's admission of police testimony tending to "bolster" the victim's identification testimony, coupled with the court's denial of a requested instruction on how to evaluate the victim's identification testimony; and

3) the trial court's refusal to limit the prosecution's cross-examination of petitioner with respect to previous similar crimes.


At about 3:45 p.m. on November 2, 1982, Ms. Patricia Olszewski was folding clothes and watching a soap opera on television in the living room of her house at 135 Bayard Street in Brooklyn when she heard someone open her front storm door. Looking up at the dining room mirror on the opposite wall, she saw the reflection of a man standing in her front hallway about thirty feet away. Ms. Olszewski saw him bend down and remove something, but could not see what he had taken.

After observing the intruder for more than five seconds, Ms. Olszewski got up and ran into the hallway, but he had already fled. Noticing that her AM-FM radio/cassette player was missing from the hallway, Ms. Olszewski ran out her front door and saw a man running away with her radio.

Ms. Olszewski, a member of the 94th Precinct's Civilian Observation Patrol, dashed back into the house, grabbed a pair of handcuffs, and without stopping to don her shoes, set off in hot pursuit of the man with the radio. She stayed close behind him as he turned left in front of the house on Manhattan Avenue and then right on Meeker Avenue, at which point he flung out his arm and knocked her to the ground, which was littered with broken glass. As she fell, sustaining injuries, she noticed a passing police car. She hailed the car and told the officers that the fleeing man had just robbed her house. Both she and the police gave chase. As the fleeing man passed beneath the Brooklyn Queens Expressway between Manhattan Avenue and Leonard Street, he threw the radio to the ground. After several more minutes of hot pursuit, the police apprehended him. Subsequently, the police recovered the radio, which was missing its handle and battery cover.

At trial, petitioner testified that he had never entered Ms. Olszewski's house, and that he had purchased the radio from a stranger just before Ms. Olszewski began to pursue him.


The State argues that petitioner has not exhausted available state remedies with respect to petitioner's claims of judicial and prosecutorial misconduct. The court disagrees. "Obviously if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts." Daye v. Attorney General, 696 F.2d 186, 192 (2d Cir.1982) (en banc). Petitioner's Appellate Division brief cited "U.S. CONST. Amend. XIV" in support of his claims of judicial and prosecutorial misconduct and thereby "fairly presented" those claims to the state court. Petitioner's State Appellate Brief "Pet.App.Br." at 1.1

However, the Appellate Division held that petitioner's claim of prosecutorial misconduct, based on summation remarks implying that petitioner fabricated his testimony after listening to the State's witnesses, was procedurally barred because petitioner's counsel failed to request a curative instruction after the trial court sustained his objection. People v. Ayala, 120 A.D.2d 600, 601, 502 N.Y.S.2d 75, 76 (2d Dep't 1986) (citing People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 443, 424 N.E.2d 276, 277 (1981)).

Where, as here, the last state court to review the conviction expressly states, as an independent basis for its denial of relief, that the claim is procedurally barred under state law, federal habeas review is also barred unless

(1) the state does not "strictly or regularly follow" its own procedural rule, Johnson v. Mississippi, ___ U.S. ___, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988) (citation omitted); or

(2) petitioner can show "cause" for his procedural default and "prejudice attributable thereto," Harris v. Reed, ___ U.S. ___, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1988) (citation omitted); or

(3) petitioner can show that his is the "extraordinary case" in which "a 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, 2650, 91 L.Ed.2d 397 (1986). See generally Harris, 109 S.Ct. at 1042-43. Petitioner has not even alleged that he meets any of these exceptions, and his prosecutorial misconduct claim therefore is procedurally barred.

Petitioner also claims that the trial court's conduct deprived him of a fair trial. Petitioner complains of two incidents.2

The first incident occurred at the close of Ms. Olszewski's direct testimony, when the trial court reminded the prosecutor to offer the stolen radio into evidence. TR 68. Petitioner claims that the trial court thereby "took over the prosecutorial function."

The second incident occurred when petitioner's counsel attempted to impeach Ms. Olszewski's credibility by showing that her testimony that petitioner pushed her to the ground contradicted her prior statement to the police that she "fell." The court intervened in an apparent effort to rehabilitate Ms. Olszewski's credibility:

Q Now isn't it true that you fell while you were chasing Mr. Ayala and that is how you sustained these injuries?
A Yes.
Q And did you tell Police Officer Lara that you fell while you were chasing this person?
MS. LUCIBELLO: Objection.
THE COURT: Overruled.
Q And that is how you were injured?
A Oh, yeah, yeah.
Q You told him you fell?
A Yes.
Q And now you are telling us here today that you were pushed; isn't that right?
THE COURT: No, she didn't say that. She said her injuries occurred as she fell. She also said she was pushed. But she didn't say her injuries occurred when she was pushed.
Q Did Mr. Ayala push you while you were running?
A Yes.
Q Did you tell the officer that he pushed you while you were running?
A I don't remember at that point. TR 85-86.

The court finds that neither of these incidents comes close to warranting habeas relief. As stated by the Second Circuit in Daye v. Attorney General, 712 F.2d 1566, 1572 (2d Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984):

A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits.

If these two incidents had any adverse effect on defendant at all, it certainly was not "substantial" enough to impair the functioning of the jury or create the appearance of bias.3

The trial court's reminder to offer the radio into evidence simply could not have been "adverse to the defendant to a substantial degree." First, the prosecutor's failure to offer the radio surely was inadvertent, and probably would have been rectified prior to Ms. Olszewski's leaving the stand, or at least prior to the end of the State's direct case. Second, immediately after Ms. Olszewski identified the radio as hers, the trial court invited defense counsel to "voir dire" Ms. Olszewski on her identification of the radio, which defense counsel then proceeded to do. TR 69. Third, the radio was properly offered into evidence, and the court did not comment improperly upon its probative value.4 Fourth and finally, the court later instructed the jury that it was the sole judge of the facts and that it should not consider the court as having any opinion regarding the facts. TR 180. This instruction, coupled with the overall strength of the State's case against petitioner, persuades the court that this is not one of those "extraordinary instances" in which a state judge's conduct denied a habeas petitioner his right to a fair trial. Minor v. Harris, 556 F.Supp. 1371, 1378 (S.D.N.Y.), aff'd without opinion, 742 F.2d 1430 (2d Cir.1983).

The trial court's summary of Ms. Olszewski's testimony, while ill-advised and confusing, was essentially accurate and provides no basis for granting the petition. See Gayle v. Scully, 779 F.2d 802, 811 (2d Cir.1985), cert. denied, 479 U.S. 838, 107 S.Ct. 139, 93 L.Ed.2d 82 (1986) (state trial court has the "right, indeed frequently even the duty" to intervene at trial "in an effort to clarify...

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