Marquez v. Artus

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS : The R & R is adopted in its entirety, and the petition is DENIED. The Clerk is directed to enter judgment in favor of the respondent. Petitioner has not made a substantial showing of the denial of a constit utional right and, accordingly, a certificate of appealability will not issue.This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and in forma pauperis status is denied. Respondent's counsel is directed to provide petitioner with a copy of the single case cited from the Federal Appendix. (Signed by Judge P. Kevin Castel on 3/1/2012) (pl) Modified on 3/2/2012 (pl). Copies mailed to Plaintiff.

USDCSDNY
DOCUMENT

ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF 1\TEW YORK
______________________________________________________-----x

DOC#: __--~~---­
~",,1_\1-­
DATE FILED: ./ d'­

MIGUEL MARQUEZ,
Petitioner,

08 Civ. 10847 (PKC)(HBP)

-againstORDER ADOPTING REPORT

AND RECOMYIENDA nON

DALE A. ARTUS,
Respondent.

-----------------------------------------------------------x
CASTEL, District Judge:
This petition for a writ of habeas corpus from a state court conviction was referred to
Magistrate Judge Henry B. Pitman for a Report and Recommendation ("R & R"). In an R & R filed
on October 17,2011, Magistrate Judge Pitman recommended that the petition be denied. The R & R
advised the parties that they had 14 days from service of the R & R to file any objections, and
warned that failure to timely file such objections would result in waiver of any right to object.
Petitioner filed his objection on November 28,2010.
I have reviewed Magistrate Judge Pitman's R & R and petitioner's objection. I
find the R & R to be well reasoned and thoroughly grounded in law. Petitioner argued two bases
for issuing a writ of habeas corpus: (l) that he was entitled to and denied a jury charge on a
lesser included offense in his non-capital case and (2) that he was denied due process because the
trial court struck the testimony of a prosecution witness who was unable to complete crossexamination instead of granting a mistrial. The R & R reviewed, inter

Marquez's habeas

corpus petition, the state court trial transcripts and case law governing the issues raised in the
petition.

2

Magistrate Judge Pitman properly concluded that Marquez's first claim is a state
law claim that is not cognizable on a federal writ of habeas corpus. (R & R at 9 citing Estelle v.
McGuire, 502 U.S. 62,67-68 (1991) ("[A] federal court is limited to deciding whether a
conviction violated the Constitution, laws or treats of the United States.").) Marquez does not
object to this portion of the R & R. (Objection at 2.) As Magistrate Judge Pitman noted, there is
no clearly established Supreme Court precedent recognizing a right to have the fact-finder in a
non-capital case consider lesser included offenses. (R & Rat 9.) In Beck v. Alabama, 447 U.S.
625,638 n.14 (1980), which held that the jury must be instructed on lesser included offenses in
capital cases, the Supreme Court expressly declined to decide whether this requirement also
applied in non-capital cases. No Supreme Court case since Beck has decided the question. See
Mills v. Girdich, 614 F.Supp.2d 365,381-83 (W.D.N.Y. 2009). The state court's determination
that petitioner's federal due process rights were not violated was not "contrary to" or an
"unreasonable application of' clearly established federal law.

28 U.S.c. § 2254(d)(l).

Petitioner's proposed requirement also cannot be adopted here because Teague v.
Lane, 489 U.S. 288 (1989), bars the creation of new constitutional rights in federal habeas corpus
proceedings. Additionally, the Second Circuit has held that requiring jurors to be instructed on
lesser included offenses in non-capital cases is not a rule that fits within either of the exceptions
to the Teague bar. Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996); Teague, 489 U.S. at 315­
316. Even if Marquez's proposed rule fell under one ofthe exceptions, Magistrate Judge Pitman
correctly concluded that this claim is procedurally barred because the Appellate Division had an
adequate and independent state ground for rejecting it. (R & R at 12, n. 4.)

3

Magistrate Judge Pitman also properly concluded that the trial court's refusal to
grant a mistrial did not deprive Marquez of a fair trial and due process of law because state court
evidentiary rulings "are not reviewable by a habeas court unless the errors alleged are so
prejudicial as to constitute fundamental unfairness." (R & R at 17 quoting Rosario v. Kuhlman,
839 F.2d 918, 924-25 (2d Cir. 1988).) Marquez objects asserting that the conclusions in the R &
R are "contrary to, and an unreasonable application of clearly established Supreme Court
precedent." (Objection at 3.) In the R & R, Magistrate Judge Pitman correctly noted that an
allegedly improper evidentiary ruling is assessed by determining whether it was incorrect under
state law and whether that error amounted to the denial of a fair trial. (R & R at 18.); See
v. Phillips, 210 F.App'x 55, 57-58 (2d Cir. 2006) (non-precedential). "New York law is clear
that when a witness cannot be cross-examined, the proper remedy in most cases is to strike the
witness's direct testimony." (R & R at 20.); People v. Cole, 43 N.Y. 508, 511 13 (1871);
Schw(irtz v. 38 Town Assocs., 187 A.D.2d 377, 377 (1st Dep't 1992). The evidentiary ruling
was not improper under New York law.
Additionally, the trial court provided detailed curative instructions to disregard
the witness's testimony multiple times during the trial to ensure that Marquez was not denied a
fair trial. (R & R at 23.) The trial court specifically instructed the jurors that the stricken
witness's testimony was "totally unreliable and [could] not ... be credited in any way." (Tr.
561-63.) Under New York law, a trial court's "discretion is not abused when the judge, instead
of granting a mistrial, provides curative instructions that are sufficient to alleviate any possible
prejudice to defendant." People v. Owens, 214 A.D.2d 480, 481 (1st Dep't 1995). The

4

evidentiary ruling was proper under state law and Marquez was not denied a fundamentally fair
trial. (R & R at 24.)
In his Objection, Marquez argues that the state court evidentiary ruling was the
"product of unfair procedures" and that this Court "is free to reach its own independent judgment
on the question." (Objection at 5-6.) The Court does not agree with petitioner that the ruling
was improper or unconstitutionally prejudicial for the reasons discussed above and in the R & R.
(R & R at 25.) To the extent that Marquez raises a Sixth Amendment Confrontation Clause
claim in his Objection, that claim is procedurally barred because it was not raised on direct
appeal. (Objection at 3-5; R & R at 17.)
The R & R is adopted in its entirety, and the petition is DENIED. The Clerk is
directed to enter judgment in favor of the respondent. Petitioner has not made a substantial
showing of the denial of a constitutional right and, accordingly, a certificate of appealability will
not issue. 28 U.S.c. § 2253; see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir.
1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir.
1997). This Court certifies pursuant to 28 U.S.c. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and in

pauperis status is denied. See Coppedge v. United

States, 369 U.S. 438, 444-45 (1962). Respondent's counsel is directed to provide petitioner with
a copy of the single case cited from the Federal Appendix.
SO ORDERED.

Dated: New York, New York

March 1,2012

~