Tyson v. Keane

• Decision Date: 20 October 1998
• Docket Number: No. 98-2144,98-2144
• Parties: James TYSON, Petitioner-Appellant, v. John P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 732

159 F.3d 732

James TYSON, Petitioner-Appellant, v. John P. KEANE, Superintendent, Sing Sing Correctional

Facility, Respondent-Appellee.

No. 98-2144.

United States Court of Appeals, Second Circuit.

Argued Sept. 11, 1998.

Decided Oct. 20, 1998.

Jeffrey I. Richman, New York City (Daniel L. Greenberg, of Counsel), for Petitioner-Appellant.

Christina A. Baiata, Bronx, NY, Assistant District Attorney, Bronx County (Robert T. Johnson, District Attorney, Bronx County, Joseph N. Ferdenzi, Allen H. Saperstein, Assistant District Attorneys, of Counsel), for Respondent-Appellee.

Before: FEINBERG and JACOBS, Circuit Judges, and POLLACK, District Judge. ^*

FEINBERG, Circuit Judge:

Petitioner James Tyson appeals from a judgment of the United States District Court for the Southern District of New York, Shira A. Scheindlin, J., denying his petition for a writ of habeas corpus. The district court found that Tyson's constitutional claims were not procedurally barred, but that any error by the state trial court was harmless. Tyson v. Keane, 991 F.Supp. 314, 319 (S.D.N.Y.1998). For the reasons set forth below, we affirm.

I. Background

A. State Court Proceedings

In July 1992, petitioner Tyson was convicted of rape in the first degree after a jury trial in the Supreme Court of New York, Bronx County (Ira Globerman, J.) and was sentenced to an indeterminate term of imprisonment of 10-20 years. Before trial, Tyson's counsel was informed that the prosecution had obtained an audiotape made by the complainant of a telephone conversation she had with the accused shortly after the alleged rape. During this conversation, the male speaker, who identified himself as "Tyson," seemed to admit that he had committed rape. Counsel played the tape for his client, who denied that the voice on the tape was his. Thereafter, Tyson's attorney asked the trial court to provide the defense with funds to hire an expert in voice spectrography to determine whether the voice on the tape was in fact Tyson's. The court denied the request.

Since the accused and the complainant knew each other, the chief issue at trial was whether the complainant was raped or engaged in consensual sex. The prosecution focused on the complainant's behavior following the incident, which strongly suggested she was raped. After the alleged rape, the complainant went directly to a girl friend's apartment, where she became very upset. Her friend testified that she called the police and then took the complainant to the hospital. A rape kit was introduced that showed evidence of sexual activity with Tyson. A detective testified about her interview with the complainant at the hospital. Another detective testified about the arrest and reported two incriminating comments by Tyson When arrested, Tyson initially denied knowing the complainant, which was untrue. Later, while being fingerprinted, Tyson allegedly said that he had not had sex in four months and that the complainant was "big and beautiful and I took it."

During the complainant's testimony, the prosecution introduced the tape recording, which included the following: ¹

Comp: Why do you feel so bad?

Tyson: Leave it alone. I don't.

Comp: I know why you feel bad.

Tyson: Why?

Comp: Because I'm your friend and you raped me. That's why you feel bad.

Tyson: What'd you say?

Comp: I said because I'm your friend and you raped me. That's why you feel bad.

Tyson: That I ...

Comp: I knew you didn't mean to do it, but that's what you did. That's why you feel bad, right?

Tyson: Yeah.

Comp: I don't know, you just, I don't know, you just lost it. You just ...

Tyson: Huh?

Comp: I don't know you just totally lost it. You never did that be, before? You never went off like that before?

Tyson: No.

Comp: So why would you rape me, me of all people?

Tyson: I didn't mean to rape you, ---.

Comp: But you did.

Tyson: I didn't mean to.

In his defense, Tyson testified that he had consensual sex with the victim and that the voice on the tape recording was that of some other man. Tyson had also been charged with sodomy and sexual abuse in the first degree, but the jury returned a verdict of guilty only on the count of first degree rape.

Tyson appealed his conviction to the Appellate Division, First Department, claiming that his rights to due process, equal protection and effective assistance of counsel were violated by the trial court's refusal before trial to fund an expert in voice spectrography in support of his defense. Tyson requested a new trial. In November 1994, the Appellate Division held that the trial court had abused its discretion in denying Tyson's request for funding to test whether it was his voice on the tape. People v. Tyson, 209 A.D.2d 354, 355, 618 N.Y.S.2d 796 (1994). However, rather than granting Tyson's request for a new trial, the Appellate Division held the appeal "in abeyance," granted Tyson's application for funds to retain an independent spectrographic expert to conduct voice identification analysis, and remanded the matter for a preliminary hearing to determine the admissibility of voice spectrography evidence, in the event that the expert reached an exculpatory result.

Thereafter, the tape was analyzed by an expert, who determined that the voice on the tape was Tyson's. However, in applying "linguistic discourse analysis" to the conversation, the expert also concluded that the manner in which the victim carried on the conversation allegedly prompted Tyson to make certain admissions. Specifically, the expert found that Tyson was a stutterer, who was "speech-disabled" and a "low assertive, high responsive" individual incapable of offering denials, objections or explanations to the victim's accusations. By contrast, the expert found that the victim "harbor[ed] anger" and dominated the conversation, thereby "reconstructing" consensual sexual intercourse as a rape. The expert further determined that the victim's "suggestion of friendship ... interspersed with ... hostile statements," was inconsistent with her claim of having been raped. Based on "linguistic discourse analysis," the expert concluded that Tyson's admissions were not probative of his guilt.

In February 1996, the trial judge held a preliminary hearing at which defense counsel reported the expert's inculpatory results. However, counsel argued, among other things, that Tyson had been denied effective assistance of counsel at trial because of the judge's initial failure to fund an expert. Counsel also argued that the appointment of an expert after conviction did not suffice to remedy the constitutional violations. He therefore requested a new trial. The trial judge denied the request. Thereafter, Tyson again urged the Appellate Division to grant him a new trial. In May 1996, the Appellate Division unanimously affirmed the conviction. People v. Tyson, 227 A.D.2d 322, 643 N.Y.S.2d 537 (1996). Tyson sought leave to appeal to the New York Court of Appeals, but permission was denied. People v. Tyson, 88 N.Y.2d 996, 649 N.Y.S.2d 403, 672 N.E.2d 629 (1996).

B. Federal Court Proceedings

In September 1996, Tyson sought a writ of habeas corpus from the federal district court on two grounds: (1) the trial court violated his constitutional rights to due process, equal protection and effective assistance of counsel by denying him before trial the funds for a voice expert; and (2) reversal of his conviction and remand for a new trial was the proper remedy for the court's failure to appoint an expert. Judge Scheindlin granted Tyson's application for appointment of counsel, and appointed the attorney who had represented him in the state court post-conviction proceedings. The matter was then referred to United States Magistrate Judge Andrew J. Peck. The Magistrate recommended that the district court deny the habeas petition. See Tyson v. Keane, 991 F.Supp. at 319-29. The Magistrate agreed that the state trial court had erred in denying funding for the expert, but concluded that the error was harmless.

Both Tyson and the prosecutor (hereafter called the state) filed objections to the Magistrate's Report; the state urged, among other things, that Tyson's constitutional claims were procedurally barred. In January 1998, District Judge Scheindlin adopted what she properly characterized as the "thoughtful and thorough" Magistrate's Report, held that Tyson's claims were not procedurally barred and denied Tyson's application for a writ of habeas corpus on the ground that the initial failure to appoint an expert was harmless error. Tyson v. Keane, 991 F.Supp. at 319. This appeal followed.

II. Discussion

A. Procedural Issue

The state argues that Tyson's claims that he was denied due process, equal protection of the law and the right to effective counsel are procedurally barred because they are not exhausted. Before addressing the merits of a petition for habeas corpus, the federal courts must insure that the petitioner has exhausted his remedies in the state courts. Rose v. Lundy, 455 U.S. 509, 515, 520, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Exhaustion requires presenting a federal claim to the highest court of the state. Grey v. Hoke, 933 F.2d 117, 119-20 (2d Cir.1991). The state argues that Tyson's claims referred to above are not exhausted because in his application for leave to appeal to the New York Court of Appeals he did not allege that the trial court's failure to fund an expert violated those constitutional rights.

We agree with Judge Scheindlin's conclusion that the state's procedural argument is without merit. Tyson v. Keane, 991 F.Supp. at 317. It is clear that Tyson raised his denial of effective counsel claim in his letter request for leave to appeal to the Court of Appeals. The letter focuses on what would later be Tyson's second ground in his habeas petition: the adequacy of the Appellate Division's remedy for the trial court's error. However, the second paragraph of the letter states Tyson's claim that he received ineffective assistance...