Jordan v. Lefevre

• Decision Date: 13 October 1998
• Docket Number: No. 97 Civ. 7046 (MBM).,97 Civ. 7046 (MBM).
• Citation: 22 F.Supp.2d 259
• Parties: Flanders JORDAN, Petitioner, v. Eugene S. LEFEVRE, Respondent.
• Court: U.S. District Court — Southern District of New York

Page 259

22 F.Supp.2d 259

Flanders JORDAN, Petitioner, v. Eugene S. LEFEVRE, Respondent.

No. 97 Civ. 7046 (MBM).

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

October 13, 1998.

Flanders Jordan, Malone, NY, pro se.

Ilisa T. Fleischer, Assistant District Attorney, New York City, for Respondent.

OPINION AND ORDER

MUKASEY, District Judge.

Flanders Jordan petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1994), challenging his state court conviction for manslaughter in the first degree, for which he received a sentence of 11 to 22 years imprisonment. Magistrate Judge Peck, to whom the petition was referred, recommended in a Report and Recommendation ("Report"), dated May 12, 1998, that the writ be denied and the petition dismissed, on both substantive and procedural grounds. Petitioner has submitted his Notice of Objection ("Objection") to the report, in which he objects to "each and every point" raised in the Report. (Obj. at 1) Petitioner contests the Report's application of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and asserts that the Report both failed to address petitioner's substantive rights correctly and failed to state disputed facts accurately. Petitioner did not, however, discuss the issue of procedural default. In addition, petitioner has filed a motion for the consideration of a mitigating factor in connection with his petition. For the reasons stated below, the Report is adopted, the writ is denied and the petition is dismissed. Petitioner's motion is also denied as untimely.

I.

The relevant facts are set out in the Report and are summarized as follows. During jury selection, petitioner's defense counsel made a Batson application, asserting that five of the prosecutor's 10 peremptory challenges had been used discriminatorily to discharge prospective black jurors. In response, the prosecutor pointed out that two of the five prospective black jurors had been excused for cause, and provided non-racial grounds for excluding the other three prospective jurors. The trial court denied petitioner's Batson application, finding that there were rational, non-racial reasons for the exclusion of the three jurors. (Voir Dire at 43-46)

During subsequent voir dire, defense counsel objected to another peremptory challenge of a prospective black juror. The prosecutor again provided a non-racial reason for exercising the peremptory challenge, which the trial court found to be a rational basis for exclusion. As a result, the trial court denied the Batson challenge. (Id. at 62-64) Later in the voir dire, the court itself questioned one of the prosecutor's peremptory challenges. Nevertheless, the court accepted the prosecutor's explanation that the woman in question "doesn't seem to have it all" and allowed the challenge to stand. (Id. at 130)

In his direct appeal to the Appellate Division, First Department, petitioner raised five grounds for relief: (1) The trial court's denial of his application for a hearing on whether there was probable cause for his arrest violated his due process rights because he was arrested over seven months after the crime and was not informed that his arrest was made on the basis of an anonymous tip until the eve of another hearing; (2) the prosecutor violated the Equal Protection Clause of the Fourteenth Amendment by exercising peremptory challenges discriminatorily against prospective black jurors, and the trial court ran afoul of Batson by not affording defense counsel the opportunity to contest the reasons offered for those challenges; (3) the trial court improperly commented to prospective jurors during voir dire concerning petitioner's right not to testify at trial; (4) the trial court abused its discretion in discharging two jurors whom petitioner wanted to retain while keeping two other jurors with travel plans; and (5) the trial court erroneously refused to give his requested accomplice charge. (Jordan 1st Dep't Br., dated July 11, 1997, at 14-41)

The First Department unanimously affirmed petitioner's conviction on March 11, 1997. See People v. Jordan, 237 A.D.2d 141, 654 N.Y.S.2d 141 (1997). Petitioner's counsel in a letter addressed to the New York Court of Appeals, then sought permission to appeal to that court. (Pet. 4/16/97 Letter to Ct.App.) The letter emphasized the Batson challenge, devoting three of four paragraphs to the issue. (Id. at 1, 2) In the concluding paragraph, the letter urged leave to appeal "[f]or all of these reasons and the reasons set forth in [petitioner's] Appellate Division briefs," and noted further that, "[i]n support of his application, Mr. Jordan relies on this letter and on briefs he filed in the Appellate Division, copies of which are enclosed." (Id. at 2) The Court of Appeals denied leave to appeal on May 8, 1997, without opinion. See People v. Jordan, 89 N.Y.2d 1095, 660 N.Y.S.2d 389, 682 N.E.2d 990 (1997).

Petitioner bases his current petition on four grounds: (1) his due process rights were violated when his application for a hearing on whether there was probable cause for his arrest was denied; (2) his rights under the Equal Protection Clause were violated when the prosecution used its peremptory challenges to exclude prospective black jurors in violation of Batson; (3) the trial court made improper comments during voir dire concerning petitioner's right not to testify; and (4) the trial court abused its discretion in discharging a sick juror and a juror with holiday plans.

II.

In the Report, Magistrate Judge Peck concluded that petitioner's first, third and fourth grounds for collateral attack are procedurally barred. For the following reasons, I agree with his conclusion.

A district court reviewing a magistrate judge's report applies the standards in Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1) (1994), which permit the court to adopt those parts of the report to which no specific objection is raised, provided the findings are not clearly erroneous. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). With respect to those parts of the report to which any party objects, the court must make a de novo determination. However, the court need not conduct a de novo evidentiary hearing. See United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989). If neither party objects to the report, the court may adopt the recommendations of the magistrate judge, but is not obligated to do so. See Grassia, 892 F.2d at 19. As noted, in this case, petitioner objects to every recommendation in the Report. Accordingly, I must conduct a de novo review.

Before a federal court will hear a habeas corpus petition, a petitioner must first exhaust all available state remedies. See 28 U.S.C. § 2254(b)(1)(A) (1994). In the Second Circuit, "[t]he exhaustion requirement is not satisfied unless the federal claim has been `fairly presented' to the highest court of the state." Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990) (per curiam); see Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982). In addition, "a petitioner must inform the state court of all material factual allegations and legal premises of the claim." Thebner v. Miller, 788 F.Supp. 714, 717 (E.D.N.Y. 1992); see Daye, 696 F.2d at 191.

Section 500.10(a) of the New York Court of Appeals Rules of Practice specifies that applications for appeal from the Appellate Division "may be in letter form" and "should identify the issues on which the application is based." 22 N.Y.C.R.R. § 500.10(a) (Consol.1993). Additionally, the application must include a copy of the petitioner's appellate brief. Id. The Second Circuit has interpreted this requirement to mean that the application letter to the Court of Appeals must explicitly present each claim being asserted. See Grey v. Hoke, 933 F.2d 117, 120 (1991). The Grey Court declined "to presume that the New York Court of Appeals has `a duty to look for a needle in a paper haystack.'" Id. at 120 (citation omitted). District courts in the Second Circuit accordingly have held that "[p]resentation requires more than a `general reference' to the issues presented in an attached brief." Marrero v. Keane, 93 Civ. 3573, 1995 WL 66660, at *1 (S.D.N.Y. Feb.16, 1995); Brooks v. Kelly, 88 Civ. 0631, 1993 WL 350188, at *3 (W.D.N.Y. Sept.10, 1993); Thebner v. Miller, 788 F.Supp. 714, 717 (E.D.N.Y.1992).

There is a contrary line of cases from the Eastern District of New York. (See Report at 12 n.4) Most of these cases involved a failure to mention any issue in the letter of application other than a general reference to the attached appellate brief. In each case, the court held that the claims advanced in the appellate brief were properly presented. See, e.g., Manning v. Artuz, 94 Civ. 3325, 1996 WL 294359, at *4 (E.D.N.Y. May 29, 1996); Meatley v. Artuz, 886 F.Supp. 1009, 1014 (E.D.N.Y.1995); Melendez v. Scully, 91 Civ. 2497, 1993 WL 41769, at *4 (E.D.N.Y. Feb.10, 1993). These cases subvert Grey, and also rely on a case that antedates and was implicitly overruled by Grey. See Coleman v. Warden, 87 Civ. 8762, 1990 WL 130735, at *1 (S.D.N.Y. Sept.5, 1990). Grey controls on the issue of whether grounds for appeal were properly presented to the Court of Appeals.

A claim that is not properly presented in the application letter to the Court of Appeals is thereafter barred, as New York Court Rules of Practice § 500.10(a) permits only one application for appeal. 22 N.Y.C.R.R. § 500.10(a) (Consol.1993). Claims that are procedurally defaulted may be deemed exhausted for habeas corpus purposes. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.1994). However, these defaulted claims are barred from habeas corpus review unless the petitioner can show good cause for the default external to himself and his legal representative, and prejudice resulting from the asserted claim. See id.; see also Wainwright v. Sykes, 433 U.S. 72, 87-90, 97 S.Ct....