Smith v. Herbert

• Decision Date: 30 July 2003
• Docket Number: No. 00-CV-5615 (JBW).,No. 03-MISC-0066 (JBW).,00-CV-5615 (JBW).,03-MISC-0066 (JBW).
• Citation: 275 F.Supp.2d 361
• Parties: William SMITH (97-A-7257), Petitioner, v. V. HERBERT, Superintendent, Respondent.
• Court: U.S. District Court — Eastern District of New York

275 F.Supp.2d 361

William SMITH (97-A-7257), Petitioner, v. V. HERBERT, Superintendent, Respondent.

No. 00-CV-5615 (JBW).

No. 03-MISC-0066 (JBW).

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

July 30, 2003.

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William Smith, Romulus, NY, Pro se.

Amy M. Appelbaum, The Office of the District Attorney, Kings County, Brooklyn, NY, for Respondent.

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 charged with two counts of murder in the second degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree in connection with the shooting death of Lateek Escort.

Petitioner belonged to a gang whose members sold crack cocaine in front of an apartment building at 1223 Bushwick Avenue in Brooklyn. A series of altercations took place between Jose Mendez, a member of petitioner's gang, and Anthony Williams, who lived in an apartment on the first floor of that building. After an incident on September 27, 1993 in which Williams shot Mendez in the leg, Williams fled the building at 1223 Bushwick. He returned that same evening with three friends, Lateek Escort, Walter Humphrey, and Phillip O'Garro. As they approached the building, petitioner pointed a gun at them from near the front of 1223 Bushwick and fired that gun a number of times. Humphrey also admits to firing a gun during the altercation. Escort was shot twice and died later at the hospital.

Petitioner made a number of statements to the police, in all but the first of which he admitted to taking a gun either from under a radiator at the apartment building or from another individual present and to shooting at Williams and his friends. He contended that he did not shoot until after he had been shot at, and was shooting in self defense.

A mistrial was declared in petitioner's first jury trial when the jury was unable to reach a verdict. At a second jury trial, the victim's father, Mendez, Williams, Humphrey, O'Garro, a female tenant at 1223 Bushwick, several police officers and detectives, and a medical examiner testified for the state. Petitioner did not put on a case. One count of murder in the second degree (depraved indifference murder), one count of criminal possession of a weapon in the second degree, and the lesser included offense of criminal possession of a weapon in the third degree were submitted to the jury for its consideration. The jury found petitioner guilty of criminal possession of a weapon in the second degree. It deadlocked on murder, and the trial court declared a mistrial as to that count.

Prior to sentencing, petitioner pled guilty to manslaughter in the second degree in satisfaction of the remaining counts of the indictment pursuant to a plea offer under which he waived his right to appeal the manslaughter conviction. He was sentenced to a minimum term of five years imprisonment and a maximum term of fifteen years imprisonment on both counts, with the sentences to run concurrently.

Petitioner moved pro se to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10 on the ground that an unspecified prosecution witness had committed perjury at his trial. The motion was denied by the Supreme Court in August 1999; leave to appeal was denied by the Appellate Division in August 2000. Petitioner's conviction and sentence were affirmed by the Appellate Division in April 2000. The New York Court of Appeals denied leave to appeal that order in July 2000.

In the instant application for a writ of habeas corpus, petitioner claims (1) that his conviction was obtained as the result of coerced and perjured testimony; (2) that the trial court's jury instructions deprived him of a fair trial; (3) that evidentiary errors — specifically the admission of statements concerning his prior possession of a weapon, his gang affiliation, and his drug-related activities, and the exclusion of a taped conversation during a 911 telephone call — denied him his right to a fair trial; and (4) that the jury's verdict was repugnant.

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. "[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). 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 *3-4 (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.

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 procedural rule as a separate basis for its decision).

When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir.1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Services, 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, 335 F.3d 119, 126 n. 3 (2d Cir.2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir.2003)). This congeries of holdings leaves it an open question whether...