Wallace v. Leonardo

• Decision Date: 30 June 1993
• Docket Number: No. 92-CV-469A.,92-CV-469A.
• Citation: 827 F. Supp. 150
• Parties: Nathaniel WALLACE, Jr., Petitioner, v. Arthur LEONARDO, Superintendent of Great Meadow Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

827 F. Supp. 150

Nathaniel WALLACE, Jr., Petitioner, v. Arthur LEONARDO, Superintendent of Great Meadow Correctional Facility, Respondent.

No. 92-CV-469A.

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

June 30, 1993.

Howard K. Broder, Rochester, NY, for petitioner.

Andrew Lipkind, Asst. Atty. Gen., Buffalo, NY, for respondent.

DECISION AND ORDER

HECKMAN, United States Magistrate Judge.

This petition for habeas corpus relief was referred to the undersigned by the Hon. Richard J. Arcara pursuant to 28 U.S.C. § 636(c), and the consent of the parties, for all further proceedings. For the reasons set forth below, the petition is dismissed in its entirety.

BACKGROUND

On October 5, 1978, Petitioner Nathaniel Wallace was found guilty by a Wyoming County Court jury of the rape and murder of Nancy Vial, a civilian cook at the Attica Correctional Facility. The trial lasted three and a half weeks, during which the jury heard testimony from thirty-four witnesses. One witness, inmate William Tompkins, testified that Petitioner confessed to him of having committed both crimes (T. 1359-67).¹ Another witness, inmate Anthony Liccione, testified that Petitioner confessed to him of having "killed ... a bitch" (T. 1830, 1853). The trial court entered judgment on the convictions on December 19, 1978.

Almost twelve years later, on March 16, 1990, the convictions were unanimously upheld on appeal. People v. Wallace, 159 A.D.2d 1022, 552 N.Y.S.2d 723 (4th Dept. 1990) (mem.) (affirming judgment of conviction on murder charge); People v. Wallace, 159 A.D.2d 1032, 555 N.Y.S.2d 639 (4th Dept. 1990) (mem.) (affirming judgment of conviction on rape charge). On June 6, 1990, leave to appeal was denied by the Court of Appeals. People v. Wallace, 76 N.Y.2d 798, 559 N.Y.S.2d 1003, 559 N.E.2d 697 (1990).

While the appeal was pending, Petitioner brought a motion to vacate the conviction under N.Y.C.P.L. § 440 (the "§ 440 motion") on February 6, 1984. An evidentiary hearing was held on continuing dates in 1987 and 1988, but no decision on this motion has been rendered.

On November 21, 1989, Petitioner also moved for a writ of error coram nobis. On December 8, 1989, this motion was denied by the Appellate Division.

Additionally, on January 31, 1983, Petitioner brought a habeas corpus petition in the United States District Court for the Northern District of New York. The petition alleged that his constitutional right to a direct appeal was violated as a result of the State's failure to provide him with a transcript of the trial, and his assigned attorney's failure to prosecute the appeal. On June 22, 1983, the district court dismissed the petition as moot based on information that Petitioner had been supplied with the necessary records. Wallace v. LeFevre, No. 83-CV-177 (N.D.N.Y.1983). On September 6, 1983, the Second Circuit denied a certificate of probable cause.

Petitioner filed the instant petition on July 22, 1992, asserting the following three grounds for habeas corpus relief pursuant to 28 U.S.C. § 2254:

1. that the prosecuting attorney at trial violated his rights of due process and equal protection by appealing to religious prejudice during the cross-examination of defense witness "Brother Vincent;"

2. that comments by the trial judge and prosecuting attorney during trial impermissibly shifted the burden of proof; and,

3. that he was denied due process and effective assistance of counsel as a result of delay in appellate review of his 1978 murder and rape convictions.

Each of these grounds was raised on Petitioner's direct appeal to the Appellate Division, as well as in his application for leave to appeal to the New York State Court of Appeals.

DISCUSSION

I. Appeal to Religious Prejudice.

During cross-examination of defense witness Vincent ("Brother Vincent") Jenkins, the following colloquy took place:

Q. ... Now, on the night of the crime, August 5th, 1977 were you questioned then?

A. Was I questioned?

Q. Yes.

A. Yes they took us through a few questions.

Q. Did you give them any information then?

A. No.

Q. Now you are a member of the religious community of Islam, correct?

A. That's right.

Q. Would it be fair to say that people generally in that religious sect do not cooperate with the police?

(T. 1571). Before the witness answered, defense counsel objected, and the prosecuting attorney rephrased the question as follows:

Q. Let me rephrase it. Is there something about the fact that you are a member of the religious organization, the Islams, that would make you hesitate to give information to the police or prison officials?

A. No, sir.

Q. Is there any particular reason you wouldn't tell them that night?

A. Of course, I wanted to go home.

Q. You were in line to go home?

A. Yes.

Q. And you felt it would interfere with your going home?

A. Right.

(T. 1572-73).

Petitioner claims that this questioning by the prosecuting attorney, along with the testimony of prosecution witness Gary Lee Stone that he heard Petitioner pronounce the name of a religious newspaper (T. 1259, 1313-14), violates the due process and equal protection clauses of the United States Constitution since it sought to discredit the Petitioner's defense case through an appeal to religious prejudice.

In his appeal to the Fourth Department, Petitioner argued that the prosecutor's cross-examination of Brother Vincent constituted prosecutorial misconduct because the jury was allowed to discredit Brother Vincent's crucial testimony on the basis of his religious beliefs (E. 16-21).² The Fourth Department held:

Although we conclude that such inquiry should not be countenanced, in the instant case the error was harmless in view of the overwhelming proof of defendant's guilt and the unlikelihood that a different result would have been reached but for the error.

People v. Wallace, 159 A.D.2d 1022, 1022, 552 N.Y.S.2d 723, 724 (4th Dept.1990) (citing People v. Wood, 66 N.Y.2d 374, 379-80, 497 N.Y.S.2d 340, 488 N.E.2d 86 (1985); People

v. Crimmins, 36 N.Y.2d 230, 241-42, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975)).

Generally, federal courts reviewing habeas corpus claims premised upon prosecutorial misconduct must distinguish between "ordinary trial error of a prosecutor and that sort of egregious misconduct ... amounting to a denial of constitutional due process." Donnelly v. DeChristoforo, 416 U.S. 637, 647-48, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974); see also Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir.1990). In making this distinction, the harmless error doctrine applies, and the court should consider whether "there was such clear evidence of guilt that the prosecutor's remarks must be considered harmless." Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir.1986). Constitutional error occurs only when the remarks by the prosecutor are so prejudicial that they render the trial fundamentally unfair. Id.; Donnelly v. DeChristoforo, supra, 416 U.S. at 645, 94 S.Ct. at 1872.

Citing U.S. ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir.1973), Petitioner argues that any statements by the prosecutor reflecting racial prejudice require "automatic reversal" and that the harmless error doctrine does not apply. In Haynes, the Second Circuit affirmed the district court's grant of a writ of habeas corpus based on prejudicial remarks made by the prosecution during a state court robbery trial. There, in his summation to an all-white jury, the prosecutor repeatedly referred to characteristics and behavior of "colored people" in such a way as to suggest that the jurors "view `colored people' as an entity separate and apart from themselves, with the natural concomitant that the defendants would be viewed by the jury members as coming from a distinct, ... different community from themselves." 481 F.2d at 160. According to the Second Circuit, such conduct on the part of the prosecuting attorney amounted to constitutional error under either a federal or state law analysis, since "the standard for state prosecution in this regard is ... as high as the rigorous standard required of the federal courts by the fifth amendment's due process clause." Id. at 159.

The Second Circuit in Haynes qualified its holding, finding that at least "when the evidence of guilt ... is not overwhelming," the correct test for determining whether a defendant's due process or equal protection rights were violated by a prosecutor's allegedly racially prejudicial remarks is whether those remarks resulted in a "probability of prejudice." Id.; United States v. Weiss, 930 F.2d 185, 196 (2d Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 133, 116 L.Ed.2d 100 (1991). The Haynes court did not extend the test to cases such as this, where the evidence of guilt was overwhelming.

Therefore, I find that the correct standard to be applied here is one of harmless error, not "probability of prejudice." See, e.g., Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705 (1967) (question for the court is whether, on the record as a whole, it is beyond a reasonable doubt that the evidence complained of did not contribute to the verdict obtained).

In conducting harmless error analysis to determine whether a prosecutor's conduct has substantially prejudiced the defendant's case, the Second Circuit has applied a threefold test. The factors include: "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." United States v. Modica, 663 F.2d 1173, 1181 (2d Cir.1981) (per curiam), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); Garofolo v. Coomb, supra, 804 F.2d at 206.

In the instant case, as the Appellate Division noted, the conduct of the prosecutor "should not be countenanced," People v. Wallace, supra, 159 A.D.2d at 1022, 552 N.Y.S.2d at 724, but it nevertheless was not severe. It consisted of brief questioning regarding a defense witness's religious beliefs and whether those beliefs might have caused the...