Nelson v. People of New York
Filing
24
OPINION AND ORDER: Petitioner's motion to add certain documents to the record is granted except with respect to Ms. Mendez-Vaz's criminal record and the grand jury minutes. The Clerk of the Court shall remove the grand jury minutes from Docket Item 17 and file them separately, under seal. (Signed by Magistrate Judge Henry B. Pitman on 3/5/2013) Copies Mailed By Chambers. (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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TYRONE NELSON,
:
Petitioner,
:
10 Civ. 9021 (LTS)(HBP)
-against-
:
OPINION
AND ORDER
PEOPLE OF NEW YORK,
:
Respondent.
:
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PITMAN, United States Magistrate Judge:
By notice of motion dated February 27, 2012 (Docket
Item 17), petitioner moves to add to the record certain materials, which he describes as "discovery exhibits."
For the reasons
set forth below, the motion is granted in part and denied in
part.
This is a habeas corpus proceeding in which petitioner
seeks to challenge a judgment of conviction entered on March 5,
2008 after a jury trial, by the Supreme Court of the State of New
York for New York County (Stone, J.) for three counts of aggravated criminal contempt and one count of criminal mischief in the
fourth degree, in violation of New York Penal Law Sections
215.52(1) and 145.00(1), respectively.
The convictions arise out
of several altercations petitioner had with his former girlfriend, Alicia Mendez-Vaz, including at least one assault in
which petitioner inflicted injuries on Ms. Mendez-Vaz that were
so serious that she was required to undergo reconstructive
surgery on her eye.
The altercations occurred while an order of
protection was in force against petitioner, requiring him to
refrain from contact with Mendez-Vaz.
claims:
The petition asserts five
(1) petitioner was deprived of his right to counsel when
the Trial Court failed to conduct any inquiry of petitioner,
misconstrued his complaints about his counsel as a request to
proceed pro se and refused to appoint new counsel for petitioner;
(2) petitioner's double jeopardy rights were violated by the
prosecution's initiation of grand jury proceedings after initially deciding to proceed by way of information; (3) the prosecution offered evidence of previously precluded bad acts; (4)
petitioner's sentence violated due process and was an abuse of
discretion in view of the Trial Court's alleged earlier promise
to sentence petitioner to a maximum of six to twelve years and
(5) petitioner's constitutional speedy trial rights were violated.
The subject of petitioner's present motion is a mixture
of documents which appear to relate to petitioner's trial and
certain post-trial proceedings.
Respondent states that, with two
exceptions discussed in more detail below, "[t]o the extent that
the records submitted by petitioner were before the state court,
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respondent has no objection to the Court's consideration of them"
(Declaration of Assistant Attorney General Lisa E. Fleischmann,
Esq., dated May 2, 2012 (Docket Item 20) ("Fleischmann Decl."),
at ¶ 2).
Unfortunately, respondent does not inform me to what
extent the materials submitted by petitioner were before the
Trial Court.
Thus, respondent does not really provide much help.
Accordingly, except for the two specific items discussed below,
respondent's objections are waived, and the material submitted by
petitioner will be made part of the record.
The first specific item to which respondent objects is
Ms. Mendez-Vaz's criminal record, which was apparently disclosed
to petitioner before she testified.
Respondent claims that this
item is irrelevant and "violates the victims's privacy"
(Fleischmann Decl. ¶ 2).
tioner's claims.
The document is irrelevant to peti-
It does not, however, violate any privacy right
that Ms. Mendez-Vaz enjoys.
Adult convictions are matters of
public record; I am not aware of any principle of law (and
respondent cites none) that affords a convicted individual a
right to keep the conviction secret.
irrelevant, I shall disregard it.
Because the document is
There is no reason to seal it
or to have it physically removed from the record in this proceeding, as respondent requests.
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The second specific item to which respondent objects is
a transcript of certain grand jury testimony.
It appears that
this material was produced to petitioner during his trial pursuant to People v. Rosario, 9 N.Y.2d 286, 173 N.E.2d 881, 213
N.Y.S.2d 448 (1961) and N.Y. Crim. Proc. Law Section 240.45.
Respondent argues that because this material is made secret by
statute, N.Y. Crim. Proc. L. § 190.25(4)(a), it should either be
sealed or physically removed from the record.
In his reply,
petitioner argues that the grand jury minutes are relevant to his
contention that there were irregularities before the grand jury.
Assuming without deciding that the petition can be read
to assert irregularities before the grand jury,1 such a claim
cannot provide a basis for relief.
It is fundamental that in a
federal habeas corpus proceeding, a petitioner can only assert
rights protected by the United States Constitution or other
federal law; violations of rights afforded solely by state law
are not cognizable in a federal habeas proceeding.
McGuire, 502 U.S. 62, 67-68 (1991).
Estelle v.
A state criminal defendant
has no federal right to have felony charges against him presented
1
I note that petitioner's motion (Docket Item 17) contains a
section entitled "Grounds for Dismissal" in which petitioner
lists nine "points," which are unsupported by argument or
explanation. To the extent these points might be read as
asserting new grounds for habeas corpus relief, I disregard them
as an improper attempt to amend the petition.
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to a grand jury.
Alexander v. Louisiana, 405 U.S. 625, 633
(1972); Hurtado v. California, 110 U.S. 516, 538 (1884);
LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002).
In
addition, because New York State law, and not federal law,
prescribes how state grand jury proceedings are to be conducted,
any claimed irregularity in state grand jury proceedings is
necessarily a state law claim and cannot be a basis for habeas
corpus relief.
While New York's constitution creates a right to
indictment by a grand jury for felony charges, state
law governs how these proceedings are to be conducted
and creates the remedies for any procedural violations.
Thus, any alleged impropriety in petitioner's
grand-jury proceeding arises out of state law and
cannot form the basis for federal habeas relief. See,
e.g., Hutchings v. Herbert, 260 F. Supp. 2d 571, 577
(W.D.N.Y. 2003) (holding that petitioner's grand jury
claim was purely a matter of state law and thus did not
present a cognizable federal habeas claim); Gibbs v.
New York, 2002 WL 31812682, *4 (S.D.N.Y. Dec. 12, 2002)
(same).
Harris v. Hulihan, 11 Civ. 3019 (RA)(MHD), 2012 WL 5265624 at *19
(S.D.N.Y. Aug. 8, 2012) (Report & Recommendation) (Dolinger,
M.J.).
Finally, even if there were irregularities in the state
grand jury proceedings, those irregularities are harmless given
the trial jury's finding that petitioner is guilty.
Lopez v.
Riley, 865 F.2d 30, 32 (2d Cir. 1989)("If federal grand jury
rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand
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jury proceeding are a fortiori foreclosed in a collateral attack
brought in a federal court."), citing United States v. Mechanik,
475 U.S. 66, 72-73 (1986).
Thus, if petitioner has any grand jury claim, it cannot
be the basis for habeas corpus relief, and respondent is, therefore, correct that the grand jury minutes are irrelevant to the
disposition of the petition.
Because state grand jury material
retains its confidential nature notwithstanding a disclosure at a
criminal trial, Rechtschaffer v. City of N.Y., 05 Civ. 9930
(RJS)(JCF), 2009 WL 773351 at *3 (S.D.N.Y. Mar. 18, 2009) (Francis, M.J.); Turturro v. City of N.Y., 33 Misc. 3d 454, 455-56,
460-61, 925 N.Y.S.2d 808, 810, 813-14 (Sup. Ct. Kings Co. 2011),
the Clerk of the Court is directed to remove the grand jury
minutes from Docket Item 17 and to file them under seal.
Accordingly, for all the foregoing reasons, petitioner's motion to add certain documents to the record is granted
except with respect to Ms. Mendez-Vaz's criminal record and the
grand jury minutes.
The Clerk of the Court shall remove the
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grand jury minutes from Docket Item 17 and
Ie them separately,
under seal.
Dated: New York, New York
March 5, 2013
SO ORDERED
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HENRYPITM
United States Magistrate Judge
Copies transmitted to:
Mr. Tyrone Nelson
DIN 08-A-1527
Otisville Correctional Facility
57 Sanitorium Road
P.O. Box 8
Otisville, New York 10963-0008
Lisa E. Fleischmann, Esq.
Assistant Attorney General
State of New York
120 Broadway
New York, New York 10271
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