Velasquez v. Leonardo

• Decision Date: 07 March 1990
• Docket Number: No. 799,D,799
• Citation: 898 F.2d 7
• Parties: Tony VELASQUEZ, Petitioner-Appellant, v. Arthur A. LEONARDO, Superintendent, Great Meadow Correctional Facility, et al., Respondents-Appellees. ocket 89-2192.
• Court: U.S. Court of Appeals — Second Circuit

Page 7

898 F.2d 7

Tony VELASQUEZ, Petitioner-Appellant, v. Arthur A. LEONARDO, Superintendent, Great Meadow Correctional Facility, et al., Respondents-Appellees.

No. 799, Docket 89-2192.

United States Court of Appeals Second Circuit.

Argued Feb. 16, 1990.

Decided March 7, 1990.

Steven A. Feldman, Hauppauge, N.Y. (Feldman and Feldman, of counsel), for petitioner-appellant.

Robyn G. Nir, Brooklyn, N.Y., Asst. Dist. Atty., Kings County (Charles J. Hynes, Dist. Atty., Kings County, Jay M. Cohen, Asst. Dist. Atty., of counsel), for respondents-appellees.

Before FEINBERG, CARDAMONE and WINTER, Circuit Judges.

PER CURIAM:

Petitioner-appellant Tony Velasquez appeals from a judgment of the United States District Court for the Eastern District of New York, Charles P. Sifton, J. In a memorandum and order issued in April 1989, Judge Sifton denied petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Appellant is incarcerated under a judgment of the New York State Supreme Court, Kings County, convicting him, after a jury trial, of four counts of rape in the first degree, four counts of rape in the second degree, two counts of sodomy in the first degree, two counts of sodomy in the second degree, assault in the third degree, four counts of sexual abuse in the first degree and four counts of sexual abuse in the second degree, all arising out of the sexual abuse of his thirteen-year-old step-daughter, Sara Rivas (complainant). Appellant was sentenced to two consecutive terms of imprisonment of seven and one-half to fifteen years, and various lesser concurrent terms. Velasquez appealed to the Appellate Division, Second Department, claiming error in: (1) the trial court's admission of evidence that the charges on trial had already been determined adversely to him in a Family Court proceeding; (2) the admission of testimony that defendant had previously assaulted his wife; (3) the prosecutor's conduct during his opening statement and in summation; and (4) the admission of the State's rebuttal testimony to impeach defendant's alibi witness. In June 1988, the Appellate Division affirmed the conviction. People v. Velasquez, 141 A.D.2d 882, 530 N.Y.S.2d 208 (2d Dept.1988). In August 1988, appellant's motion for leave to appeal to the New York Court of Appeals was denied. People v. Velasquez, 72 N.Y.2d 926, 532 N.Y.S.2d 860, 529 N.E.2d 190 (1988).

In October 1988, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. In this petition, appellant repeated the same claims that were raised in his state court brief to the Appellate Division. The district court found that the Appellate Division had explicitly relied on a procedural bar in denying appellant's first three claims, and that, with regard to his fourth claim, the Appellate Division had implicitly done so. Nevertheless, the district court went on to examine the merits of each of appellant's claims, considering federal habeas review to be available because "the appellate division ruled upon petitioner's claims in the alternative, addressing both the procedural bar and the merits." The district court then ruled against appellant on the merits of all four federal claims.

As a threshold matter, we must determine whether federal habeas review is available regarding any of appellant's federal claims. Appellant argues that because the Appellate Division ruled on his claims in the alternative, addressing both the state procedural bar and the substantive merits, his federal claims are open for reconsideration on federal habeas review. The State responds that the district court improperly reviewed the merits on appellant's first three claims, since the Appellate Division explicitly found that these claims were not preserved for appellate review, in addition to finding that they were, in any event, without merit. See N.Y.Crim.Proc.Law Sec. 470.05(2) (contemporaneous objection rule).

The Supreme Court has recently made clear that appellant's position on the effect of a state court's alternative procedural holding is incorrect. In Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 1044 n. 10, 103 L.Ed.2d 308 (1989), the Court noted:

a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.

Under Harris, federal habeas review is precluded "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision." Id. The rule that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim," id. 109 S.Ct. at 1043, applies, absent a showing of cause for the default and resulting prejudice, see Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977), or a demonstration that failure to consider the federal claim will result in a " 'fundamental...