Bowers v. Walsh, 00-CV-6459L.

Citation277 F.Supp.2d 208
Decision Date22 July 2003
Docket NumberNo. 00-CV-6459L.,00-CV-6459L.
PartiesKeith BOWERS, Petitioner, v. James WALSH, Respondent.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
277 F.Supp.2d 208
Keith BOWERS, Petitioner,
James WALSH, Respondent.
No. 00-CV-6459L.
United States District Court, W.D. New York.
July 22, 2003.

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Keith Bowers, Fallsburg, NY, Pro se.

Darren Longo, Asst. Attorney General, NYS Attorney General's Office, Rochester, NY, for Respondent.

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LARIMER, District Judge.


Petitioner Keith Bowers ("Bowers") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Wyoming County Court on one count of Assault in the Second Degree. For the reasons set forth below, Bowers's § 2254 petition is dismissed.


The Wyoming County Grand Jury returned an indictment on April 30, 1997 charging Bowers, then an inmate at Attica Correctional Facility, with two counts of second degree assault pursuant to New York Penal Law (P.L.) § 120.05(3) and § 120.05(7).1 The charges stemmed from an April 15, 1997 incident in which Bowers allegedly assaulted Correctional Officer Joseph Orlowski ("Orlowski"), as he was passing through a security gate manned by Orlowski within the prison.

At Bowers's jury trial held September 29, 1997 to October 2, 1997 in Wyoming County Court (Dadd, J.), the People called Orlowski and three other correctional officers who witnessed the incident. The version of events that emerged based on the prosecution's witnesses was that Bowers jumped Orlowski, without warning or provocation, and repeatedly punched him and banged his head against the floor. Orlowski was unable to defend himself because he was attempting to maintain control of his prison key; it took three correctional officers to subdue Bowers. All of the officers testified that they did not witness Bowers try to gain hold of Orlowski's key at any time during the altercation.

Bowers took the stand and testified that prior to the April 15th incident, various correctional officers had subjected him to physical and verbal harassment based on his race. However, he did not name Orlowski or any of the officers who testified at his trial as being responsible for the objectionable treatment.

According to Bowers, the altercation occurred when Orlowski made a movement towards him and caught his hand in Bowers's sleeve, causing the two of them to fall to the ground. Bowers claimed that he struck Orlowski in self-defense only after Orlowski began punching him.

Prior to closing arguments on October 1, 1997, defense counsel requested that the trial court voir dire the jury regarding their knowledge of a disturbance that occurred at Attica on the evening of September 30, 1997 in which some inmates assaulted several correction officers in the mess hall. The court denied counsel's request to question the jury, finding that the altercation was too remote in time, not especially serious compared to other incidents that routinely occur at Attica, and involved neither the defendant nor anyone related to him. The court determined that questioning the jury would be counterproductive in that it would tend to overstate the incident's importance.

During jury deliberations, the jury made several requests of the trial judge, including the re-reading of Bowers's testimony in its entirety and an explanation of intent. Later that day, the jury informed the court that it was deadlocked and the jury

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was excused for the evening. The following afternoon, after further deliberations, the jury returned a verdict of guilty.

At the sentencing hearing on November 24, 1997 the court heard oral argument on defendant's motion to set aside the verdict and for a new trial pursuant to New York Criminal Procedure Law ("C.P.L.") § 300.30(2) and § 330.50(2)2 based on the jury's alleged consideration of the newspaper articles concerning the September 30th Attica incident. Justice Dadd denied the motion from the bench, holding that since the defense had not shown any juror misconduct, a hearing was not required. The judge sentenced Bowers to a determinate sentence of 7 years to be served consecutively with his present robbery sentence.


Through counsel, Bowers appealed his conviction to the Appellate Division, Fourth Department on November 26, 1997. Appellate counsel's brief set forth two grounds for reversal: (1) that there was legally insufficient evidence to establish that Bowers intended to interfere with Orlowski's performance of his duties, and (2) that the trial court improperly denied his C.P.L. § 330.30 motion without a hearing. See Pet'r App. Div. Br., Ex. L. Bowers submitted a pro se supplemental brief, arguing that (1) the People "knowingly presented perjured testimony before the Grand Jury and/or at trial"; (2) the verdict was against the weight of the evidence; (3) he was "deprived of his constitutional right to cross-confrontation (sic)"; and (4) he was denied "his constitutional right to a fair trial and/or effective assistance of counsel; (sic) due to cumulative effective errors." See Petitioner's Supplemental Appellate Division Brief ("Pet'r Supp. Br."), Ex. N.

The Appellate Division unanimously affirmed his conviction in a memorandum opinion entered December 30, 1999. People v. Bowers, 267 A.D.2d 1052, 700 N.Y.S.2d 785 (4th Dept.1999). The Court of Appeals denied leave to appeal on March 28, 2000. People v. Bowers, 94 N.Y.2d 916, 708 N.Y.S.2d 356, 729 N.E.2d 1155 (2000).

This federal habeas petition followed.



Before seeking a writ of habeas corpus in federal court, Bowers must have exhausted all available state remedies either on direct appeal or through a collateral attack of his conviction. 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995). The exhaustion of state remedies requirement means that Bowers must have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). To properly exhaust a claim, Bowers must have fairly apprised the state court of the claim's federal nature and of

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the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20.

Respondent asserts that Bowers did not exhaust grounds one, two, and three of his habeas petition because he failed to present them in Federal constitutional terms to the New York Court of Appeals. See Resp't Ans. ¶¶ 4-5. I find, however, that claims one, two, and three have been exhausted and are amenable to habeas review.

Turning first to claim one regarding alleged juror misconduct, appellate counsel argued on direct appeal that the "lower court erred in denying appellant's motion pursuant to C.P.L. 330.30 without a hearing." Pet'r App. Div. Br. at 17, Ex. L. In the section of his appellate brief which discusses the dismissal of his C.P.L. § 330.30 motion without an evidentiary hearing, appellate counsel referred only to New York law and did not rely on the Constitution or federal constitutional precedents. See Daye v. Attorney Gen'l of the State of N.Y., 696 F.2d 186, 192, 194 (2d Cir.1982). The three cases upon which counsel grounded his argument relied exclusively on C.P.L. § 330.30. See Pet'r App. Div. Br. at 18, Ex. L.

However, the gravamen of Bowers's first claim is that there was a "possibility that jurors were improperly influenced by outside sources," id., viz., a news article concerning an inmate disturbance at Attica which was unrelated to the incident involving Bowers. Supreme Court precedent leaves no doubt that "`[t]he right to a trial by an impartial jury lies at the very heart of due process.'" Smith v. Phillips, 455 U.S. 209, 225, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (Marshall, J., dissenting) (quoting Irvin v. Dowd, 366 U.S. 717, 721-22, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). "Due process requires that the accused receive a trial by an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); accord, e.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 553, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

Although counsel did not cite Federal constitutional precedents in his brief, he relied upon People v. Rukaj, 123 A.D.2d 277, 280, 506 N.Y.S.2d 677 (1st Dept. 1986), for the proposition that "when the spectre of an outside influence of the jury affecting defendant's fundamental right to a fair trial is raised, it is vital that hearing or other appropriate inquiry be held to ascertain what actually transpired." (emphasis added). Rukaj, in turn, cites to People v. Phillips, 87 Misc.2d 613, 631-32, 384 N.Y.S.2d 906 (N.Y.Sup.1975), aff'd 52 A.D.2d 758, 384 N.Y.S.2d 715 (1st Dept.1976), as authority for this notion. In Phillips, the court observed that although C.P.L. § 330.30 specifies that the defendant has the burden of proving by a preponderance of the evidence every fact essential to support a motion brought thereunder, "defendant's claim that he was denied his right to a fair trial is one of constitutional dimension." Id. (citing United States Constitution, Sixth Amendment; New York State Constitution, Art. 1, § 6).

The factual claims made in support of this argument—that Bowers was deprived a fair trial by reason of a jury tainted by prejudicial media exposure—assert "the deprivation of a particular right specifically protected by the Constitution" and are "well within the mainstream of constitutional litigation." See Daye, 696 F.2d at 194. In light of the particular importance of an impartial jury to a defendant's due process rights, combined with Bowers's reference to having been denied his fundamental right to a fair trial, I find that the state courts were "likely to [be] alert[ed] ... to the claim's federal nature." Daye, 696 F.2d at 192.

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Bowers raised his second claim in a ...

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