Depallo v. Burge

• Decision Date: 24 September 2003
• Docket Number: Nos. 02-CV-3260 (JBW), 03-MISC-0066 (JBW).,s. 02-CV-3260 (JBW), 03-MISC-0066 (JBW).
• Citation: 296 F.Supp.2d 282
• Parties: Michael DePALLO, Petitioner, v. John BURGE, Superintendent of Auburn Correctional Facility; Eliot Spitzer, New York State Attorney General, Respondents.
• Court: U.S. District Court — Eastern District of New York

296 F.Supp.2d 282

Michael DePALLO, Petitioner, v. John BURGE, Superintendent of Auburn Correctional Facility; Eliot Spitzer, New York State Attorney General, Respondents.

Nos. 02-CV-3260 (JBW), 03-MISC-0066 (JBW).

United States District Court, E.D. New York.

September 24, 2003.

Sally Wasserman, New York City, for Petitioner.

Jonathan Jay Silbermann, Richmond County District Attorney, Staten Island, NY, for Respondents.

MEMORANDUM, JUDGMENT & ORDER

WEINSTEIN, Senior District Judge.

The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

Petitioner was tried principally for second degree murder. Evidence of his guilt presented at trial was overwhelming, and included: (1) the oral, written and videotaped confessions of petitioner and his co-perpetrators; (2) petitioner's fingerprints inside the victim's residence; and (3) petitioner's blood on the victim's boxer shorts and a mixture of petitioner's and the victim's blood on a window shade in the victim's residence.

Petitioner testified in his own defense. Before petitioner did so, defense counsel informed the court that he had advised petitioner that he should not testify, but that if he testify he should testify truthfully. Defense counsel elicited petitioner's testimony in narrative form.

The following day, defense counsel initiated an ex parte, in camera conference with the trial judge, outside of the presence of both the prosecutor and petitioner. At the ex parte conference, which was transcribed by a reporter and sealed during the pendency of the trial, counsel told the court that petitioner had early in the case told him that he had participated in the homicide and that he intended to testify; that he had told petitioner that he could not participate in any perjury; and that he did not intend to refer to petitioner's testimony in his upcoming summation. The court then stated that he and counsel had consulted People v. Salquerro, 107 Misc.2d 155, 433 N.Y.S.2d 711 (1980), and that defense counsel had complied with the suggested manner of proceeding which that case had indicated was proper.

Petitioner was convicted of murder in the second degree (two counts), robbery in the first degree (two counts), burglary in the first degree (two counts), and robbery in the second degree (one count). He was sentenced to 32-1/2 years to life in prison.

On direct appeal he argued, inter alia, that his right to be present at a material stage of the criminal proceedings was abridged and that he received ineffective assistance of trial counsel due to counsel's having initiated the ex parte conference with the trial judge. His conviction was affirmed on direct appeal by the Appellate Division. Leave to appeal to the New York Court of appeals was granted, but petitioner's conviction was affirmed. No state collateral proceedings were initiated.

In his application for a writ of habeas corpus, petitioner claims that (1) his constitutional right to be present at a material stage of his trial was infringed by his absence from the ex parte conference between his lawyer and the trial court; and (2) he received ineffective assistance of counsel because his lawyer revealed his perjury to the trial court and elicited petitioner's testimony in narrative form.

II. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir.2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir.1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted).

"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir.2002); see also Yung v. Walker, 341 F.3d 104 (2d Cir.2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, 340 F.3d 63, 72 (2d Cir.2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. Exhaustion

In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). "This exhaustion requirement is ... grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc).

Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims—so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 WL 12142, at *4 (S.D.N.Y.2000) (state's failure to raise exhaustion requirement does not waive the issue).

IV. Procedural Bar

A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "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." Coleman, 501 U.S. at 750, 111 S.Ct. 2546. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.

Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir.2003) (quoting Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002)).

If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state...