Duhs v. Capra

• Citation: 180 F.Supp.3d 205
• Decision Date: 18 April 2016
• Docket Number: 13-CV-1056 (JBW)
• Parties: Michael Duhs, Petitioner, v. Michael Capra, Respondent.
• Court: U.S. District Court — Eastern District of New York

180 F.Supp.3d 205

Michael Duhs, Petitioner,

v.Michael Capra, Respondent.

13-CV-1056 (JBW)

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

Signed April 18, 2016

For Petitioner: Norman Trabulus, Law Office of Norman Trabulus, 345 Seventh Avenue, 21st Floor, New York, NY 10001, 212-221-7811, ntrabulus @gmail.com

For Respondent: Anne Elizabeth Grady, Richmond County District Attorney's Office, Appeals Bureau, 130 Stuyvesant Place, Staten Island, NY 10301, 718-556-7120, anne.grady@rcda.nyc.gov, New York State Attorney General's Office, alyson.gill@ag.ny.gov, Richmond County District Attorney's Office, appeals @RCDA.nyc.gov

MEMORANDUM, ORDER, AND JUDGMENT

JACK B. WEINSTEIN, Senior United States District Judge:

Table of Contents

I. Introduction ...206

II. Background ...209

a. Fact Summary ...209

b. Procedural History ...210

i. Conviction ...210

ii. Direct Appeal ...210

1. Appellate Division ...210

2. New York Court of Appeals ...212

3. United States Supreme Court ...216

iii. Collateral Proceedings ...216

1. Coram Nobis ...216

2. Section 440 Motion ...216

iv. Federal Habeas ...––––216

1. District Court ...216

2. Court of Appeals for the Second Circuit ...217

3. United States Supreme Court ...218

III. Second Petition ...218

a. Procedural Barriers ...218

i. Statute of Limitations ...219

1. Tolling the Statute Under AEDPA ...215

2. Equitable Tolling ...220

ii. AEDPA Standard for Second Petition ...220

iii. Exhaustion ...221

iv. Preservation ...221

v. Other Procedural Considerations ...221

1. Section 440 Motion ...221

2. Rule 60(b) Motion ...222

3. Petition Directly to the U.S. Supreme Court ...222

b. Substantive Arguments ...223

i. Weight of the Evidence ...223

ii. Putting the Child on the Stand ...223

iii. Admission of Declaration “Babe put me in hot water” ...223

iv. Ineffective Assistance of Trial and Appellate Counsel ...223

IV. Conclusion ...224

I. Introduction

This is a habeas corpus case. Petitioner was convicted in New York State court of deliberately scalding a young child in a bathtub. He was sentenced to twenty years in prison.

The key evidence came from a medical resident who interviewed the child after the event. In response to the doctor's questions, the three-year-old boy stated “[The defendant] wouldn't let me out” of the bathtub (which had been partially filled with scalding hot water). Trial Tr. of Feb. 6, 2007, ECF No. 8-2, at 162:2-9. The child's declaration was admitted through the doctor's testimony at trial over his attorney's objection. Id. 162:2-15. The only other significant evidence presented to prove that defendant intended to harm the child was the boy's declaration several hours after the incident that “Babe [defendant] put me in hot water.” Trial Tr. of Feb. 8, 2007, ECF No. 8-4, 341:2-3. This declaration was admitted without objection through the child's 10-year-old cousin's testimony. See id. 335:25-336:3; id. 336:20-337:3.

The child's hearsay statements were admitted even though he had been qualified by the trial court to testify without taking an oath. Pretrial Hr'g Tr. of Feb. 2, 2007, ECF No. 8-1, at 366:15-367:2. Neither the prosecutor nor the defendant called him.

This court concludes that a miscarriage of justice may well have occurred because of lack of sufficiently reliable evidence to convict. Yet, the court has no jurisdiction to address the issue. It was not raised in the petition and a second petition requires permission from the Court of Appeals for the Second Circuit and satisfaction of federal and State prerequisites.

Nonetheless, a “court faced with a record that raises serious issues as to the guilt of the defendant and the means by which his conviction was procured, yet unable to grant relief, is not obligated to become a silent accomplice to what may be an injustice.” Friedman v. Rehal , 618 F.3d 142, 161 (2d Cir. 2010) (Korman, J.). See also Essay, Every Day Is a Good Day for a Judge to Lay Down His Professional Life for Justice , 32 FORDHAM URB. L. J. 131, 163 (2004) (“Duty of a Judge to Speak Out Against Unjust Laws”); Frank J. Battisti, Remarks to the Akron Bar Association , 18 AKRON L. REV. 353, 362 (1985) (“Courage in public life means not only the fortitude to withstand criticism and even outrage, but the strength as well to examine one's conscience and soul and to speak from the truth and conviction that we know lies deep within our hearts.”); Charles E. Wyzanski, Jr., A Trial Judge's Freedom and Responsibility , 65 HARV. L. REV. 1281, 1299 (1952) (“[R]eservation in the opinion promotes the growth of the law in the court where it most counts. For if the criticism of the precedent be just, the appellate court will set matters straight, and any trial judge worthy of his salt will feel complimented in being reversed on a ground he himself suggested.”).

The sole ground the petition pressed was a violation of the Confrontation Clause. The conviction was set aside because it violated that Clause. Duhs v. Capra , 83 F.Supp.3d 435, 439 (E.D.N.Y. 2015).

The Court of Appeals for the Second Circuit reversed. Duhs v. Capra , No. 15–647, 639 Fed.Appx. 691, 692–93, 2016 WL 482174, at *1 (2d Cir. Feb. 8, 2016). No direction was given on what action should be taken by this trial court to enforce the appellate court's mandate. See Mandate of Mar. 8, 2016, ECF No. 56. And the parties were mute on the form of judgment. See Order of Mar. 11, 2016, ECF No. 58; Letter of Mar. 15, 2016, ECF No. 59; Hr'g of Mar. 23, 2016, ECF No. 60.

For the reasons set forth below, the Clerk of the Court is directed to enter a judgment of dismissal of the petition. Though it would if it could, this court can grant petitioner no relief. The court previously indicated its conclusion that the conviction was dubious because of Constitutional defects. See Duhs , 83 F.Supp.3d at 472 ; Order of Mar. 11, 2016 at 1-2.

It is unlikely that defendant can prosecute a second petition in a federal court based on the lingering question of due process. See Stephen I. Vladeck, Using the Supreme Court's Original Habeas Jurisdiction to “Ma[k]e” New Rules Retroactive , 28 FED.SENT.R. 225, 225 (2016) (“[R]oadblocks make it exceedingly difficult even for a prisoner with a patently meritorious claim for post-conviction relief based upon a new rule of constitutional law ... to obtain such relief through a second-or-successive petition.”).

Restrictions by statute and the case law have substantially reduced the jurisdiction of a federal district court to grant a writ of habeas corpus when the court concludes that a miscarriage of justice has occurred as a result of a federal Constitutional violation. Compare Jed S. Rakoff, The Magna Carta Betrayed? , N.Y. REVIEW OF BOOKS , Feb. 11, 2016 (“Congress, with the Supreme Court's acquiescence, has arrogated to itself the power to greatly limit the scope of habeas relief.”) with Peter Charles Hoffer, Williamjames Hull Hoffer, & N.E.H. Hull, the Federal Courts 432 (2016) (“The 1996 Antiterrorism and Effective Death Penalty Act narrowed the grounds and time limits for state prisoner habeas petitions, supporters arguing that federal courts were unnecessarily injecting themselves into the business and infringing on the integrity of state courts.”).

The current view of the Supreme Court is that only “testimonial evidence” implicates the Confrontation Clause; testimonial evidence is essentially a declaration resulting from an interrogation by the police to obtain evidence to be used in a possible subsequent prosecution. See Crawford v. Washington , 541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“The text of the Confrontation Clause ... applies to ‘witnesses' against the accused—in other words, those who ‘bear testimony’ .... Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.”); Ohio v. Clark , ––– U.S. ––––, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306 (2015) (“[A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial.”).

In the instant case, the Court of Appeals for the Second Circuit determined that the doctor's interrogation was primarily for the purpose of medical treatment and was not excludable. Duhs , 639 Fed.Appx. at 694, 2016 WL 482174, at *3. It stated that the determination of the New York Court of Appeals that the child's statement was non-testimonial, and therefore did not implicate the Confrontation Clause, “cannot be held an unreasonable application of Supreme Court law.” Id.

Before the recent change in the law of confrontation by Crawford, there would have been a substantial probability that the Confrontation Clause would have been relied upon to exclude the child's declaration for lack of reliability and on due process grounds. See Ohio v. Roberts , 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (“In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ ”); Idaho v. Wright , 497 U.S. 805, 827, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (“Given the presumption of inadmissibility accorded accusatory hearsay statements not admitted pursuant to a firmly rooted hearsay exception, we agree with the court below that the State has failed to show that the younger daughter's incriminating statements to the pediatrician possessed sufficient ‘particularized guarantees of trustworthiness' under the Confrontation Clause to overcome that presumption.” (internal citation omitted)). See also, e.g. , Margaret A. Berger, The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model , 76 MINN. L. REV. 557, 612-13 (1992) (“A child's statement to a prosecutor or prosecutorial agent should not be admitted regardless of whether it is reliable or the child is produced, unless a contemporaneous recording is available. ... In deciding the admissibility of hearsay statements, courts should pay...