Pagan v. United States Of America

Filing 22

OPINION: For the foregoing reasons, the petition for a writ of habeas corpus is denied. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915 (a) (3), it is hereby certified that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). (Signed by Judge Robert W. Sweet on 11/8/2012) (mro)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-x
PEDRO PAGAN,
Petitioner,
12 Civ. 0732
OPINION

- against THE PEOPLE OF THE STATE OF NEW YORK,
Respondent.
---------­

---------­

A P PEA RAN C E S:

PEDRO PAGAN
Pro se

Attorneys

Respondent

ROBERT T. JOHNSON
Bronx County District Attorney
198 East 161st Street
Bronx, NY 10451
By: Allen H. Saperstein,
Robert R. Sandusky, III,

X

Sweet, D.J.

Pedro Pagan ("Pagan" or the "Petitioner") filed a
petition seeking habeas corpus relief pursuant to 28 U.S.C.
§

2254 to vacate his conviction entered on May 22, 2009,

in New

York State Supreme Court, Bronx County, convicting him, after a
jury trial, of second-degree robbery (N.Y. Penal Law
§

160.10(2) (a))

and sentencing him, as a second-felony offender,

to a determinate term of imprisonment of ten years followed by
five years of post-release supervision.

Based upon the conclusions set forth below, the
petition is denied.

I. The Facts

On February 22, 2008, at about 7:30 P.M., Hope McLeish
("McLeish") was robbed at knife-point as she was walking home
from the Bronx Botanical Garden Metro North station.

According

to McLeish, she had several unobstructed views of the
perpetrator1s face during the robbery.

She also sustained

injuries to her hand and fingers, and experienced pain and
bruises on her back and knees.

1

After the robbery was over, McLeish flagged down a
passing motorist and used his cellular phone to

1 911.

Sergeant Kevin Maloney ("Maloney") proceeded to the scene of the
robbery, where he interviewed McLeish and broadcast additional
information to the

ficers canvassing the area.

described the perpetrator as a 25 to 30
five feet,

McLeish

old Hispanic male,

seven inches tall, wearing a black jacket, a red

hooded sweatshirt and a black skull cap.

Responding to the transmission, police officers Juan
Terrero ("Terrero") and Leonardo Rojas ("Rojas") saw the
Petitioner a short distance from the robbery location, wearing a
black jacket, red hooded sweatshirt, and a red and black
baseball cap.

ficers Terrero and Rojas detained the

Petitioner and called Maloney to bring McLeish around to see if
she could
Another

ify the Petitioner as the man who robbed her.
was stopped by a dif

man was not shown to McLeish and
was prepared with respect to
officer
to the

police unit but
was released.

second stop but at least one

the second unit remembered stopping a man

response

scription on the radio transmission.

As soon as Maloney and McLeish reached
McLei

No paperwork

identified him[ stat

Petitioner[

that she was "one hundred and
2

ten percent" certain that the Petitioner was the man who had
just robbed her.

Once the Petitioner was in custody, the

officers recovered three one-dollar bills from his pants pocket,
a black knit cap from his jacket pocket, and the black jacket,
red hooded sweatshirt, and the red and black baseball cap that
he was wearing.

Neither a knife nor McLeish's purse was

recovered.

The Petitioner maintained that he never robbed McLeish
and that the first time he saw her was at trial.

II.

Prior Proceedings

On March 14, 2008, by Indictment Number 1076/08, a
Bronx County grand jury charged the Petitioner with the crimes
of Robbery in the First Degree, Robbery in the Second Degree,
Robbery in the Third Degree, Assault in the Second Degree,
Assault in the Third Degree, Grand Larceny in the Fourth Degree
and Petit Larceny.

Before and during the trial, the exclusion of evidence
pertaining to the simultaneous stop of the second man was the
subject of lengthy arguments.

On December 18, 2008, the Bronx

Supreme Court (the "Hearing Court") conducted a hearing pursuant
3

to Uni

ates v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L.

Ed. 2d 1149 (1967), in order to determine the admissibility of
testimony relating to the out of court identification of the
Petitioner immediately preceding his arrest.

At the hearing, it

was established that Maloney had radio transmitted the
description given to him by McLeish so that other officers in
the area could look for potential suspects.

Within minutes of

hearing the radio transmission, the Petitioner and another man,
were detained by different police officers.

Because Officer

Rojas' location was easier to get to, Maloney drove McLeish to
the Petitioner first.

Once they arrived, McLeish immediately

identified the Petitioner and no further identification
procedures were conducted.

At the conclusion of the hearing, the Petitioner's
attorney advanced the argument that "to ensure greater accuracy,
the appropriate thing for the police to have done would have
been to bring the two people whom they did apprehend together
for the complaining witness to look at."

(H.T. at 84).

Thus,

the Petitioner contended that testimony concerning his
identification by McLeish should have been suppressed because
the procedure that yielded the positive identification was
unduly suggestive and tainted by improper police conduct.
at 84-86).

The prosecution argued that the Petitioner had
4

Id.

failed to meet his burden of establishing impropriety or undue
and that "[t] he

suggestion by a preponderance of the
fact that two people were stopped in

s case

bearing on the suggestivity of this parti

. has no

ar show up

rd. at 86-89).

identification."

The

e also made a motion .:::...:;....:::...:;....:::...:;....:::...:;...:.;;;..;;;... to preclude
in I

the Petitioner

"playing any radio transmission

. which

could pertain to another individual being stopped," contending
that the only reason for doing so would be "to attribute
culpability to that

rd part."

the Petitioner might

so use the recording to attempt to

establish "that the pol
[that the police]

imated that

investigation was incomplete and

jumped to a conclusion."

indicated that the basis
the two."

The trial court

The Petitioner

his request "lies somewhere between

(T. at 464-469, 473 475, 500-501, 508-509).

The Petitioner

so interviewed one of the officers

who had detained the other man, who indicated that, although he
had absolutely no recollection

the events nor of the person

detained, he would be willing to testify that it was his
ce among those recorded on the
indicating that another man had
549).

ice communications
detained.

The court ultimately ruled
5

(rd. at 541­

the Petitioner failed to

s obligation "to make an application to the court to

meet

indicate what the evidence [of third-party] culpability would
uded the Petitioner from introducing the recorded

be"
transmiss

and

the

officer's testimony concerning the stop
Id.

On

6, 2009, the Hearing Court denied

suppression by not

that, although the police never conducted

an identification

comparing both detainees, the

testimony relating to McLei

's identification of the Petitioner

would nevertheless be admissible at trial.
"the identification

Petitioner] was essentially

spontaneous and occurred in
of the offense .

The court found that

ose spatial and temporal proximity

[that

was] no proof of any unduly

suggestive police conduct .

that] none

forwarded by [the Petitioner led

court] to conclude that the

showup procedure here in issue was unduly
resulted, in any respect, in an

the arguments

stive or
identification."

(People's Ex. 2, Bronx Supreme Court

ision and order, dated

January 6, 2009).

On April 24, 2009, the Petitioner was found guilty,
after a jury trial, of Robbery in the Second
Law

§

160.10(2) (a)).

(N.Y. Penal

On May 14,2009, the Petitioner, through
6

his then-attorney Lois White of the Legal Aid Society, moved to
vacate his conviction prior to sentence pursuant to N.Y.C.P.L.
§

330.30(1) contending that the trial court had "unfairly

precluded [him]

from presenting evidence of third party guilt."

(People's Ex. 3, Petitioner's N.Y.C.P.L
dated May 14, 2009).

§

330.30 [1] motion,

The motion was denied on May 22, 2009 by

the Bronx Supreme Court.

The Petitioner was sentenced as a

second felony offender, to a determinate sentence of ten year
incarceration, followed by five years of post-release
supervision, with an eighteen-year order of protection issued in
favor of the victim.

On direct appeal to the New York State Supreme Court,
Appellate Division, First Department

(the "Appellate Division") ,

the Petitioner raised five claims:

Point I - Since two separate police units, responding
separately to the same radio-description of the
suspect, simultaneously but separately apprehended two
Hispanic men, the single show-up identification of the
[the Petitioner] was unnecessarily suggestive,
mandating suppression.
u.S. Const. Amends. VI, XlVi
N.Y. Const. Art I § 6.
Point II - The court deprived [the Petitioner] of his
right to confrontation and to present a defense when
it precluded (1) the tape-recorded radio transmission
of the stop of a second man, and (2) the testimony of
the officer who stopped the second man, where the
evidence was admissible under Kyles v. Whitley, 514
U.S. 419 (1995), to challenge the thoroughness of the
7

police investigation. U.S. Const. Amends. VI, XlVi
N.Y. Const. Art I § 6.
Point III - The testimony of the office who stopped
the second man was also admissible under People v.
Primo, 96 N.Y.2d 351 (2001), as evidence of possible
third-party culpability, and to undermine the
identification evidence[i] as a result, its preclusion
deprived [petitioner] of his rights to confrontation,
to present a defense, and [to] a fair trial.
U.S.
Const. Amends. VI, XlVi N.Y. Const. Art I § 6.
Point IV - Evidence of "a little pain" in the back of
the neck, no medical treatment, and the taking of a
few over-the-counter Tylenol pills was legally
insufficient to establish the "substantial pain"
requirement to support a conviction of [Robbery in the
Second Degree], mandating that the judgment be reduced
to [Robbery in the Third Degree]
U.S. Const. Amends.
VI, XlVi N.Y. Const. Art I § 6.
Point V - In light of the minor injuries to the
complainant and [the Petitioner's] difficult past and
[severe] learning difficulties, a sentence of ten
years was unduly harsh.
U.S. Const. Amends. VI, XlVi
N.Y. Const. Art I § 6.

(See People's Exs. 5-7).

On May 19, 2011, the Appellate Division affirmed the
judgment of conviction.
Dept. 2011).

See People v. Pagan, 84 A.D.3d 605

(1st

In rejecting the Petitioner's argument, the

Appellate Division found that the hearing court properly denied
the Petitioner's suppression motion, stating that:

[Petitioner's] sole challenge to the prompt showup
identification is his claim that the police should
have also shown the victim a second possible suspect.
Police radio communications indicated that at the time
8

the police stopped defendant, who met a detailed
description
alleged robber, another team
officers stopped a second man several blocks away,
allegedly in response to the same radioed description.
This man was apparently not detained for any
significant period, and no stop and frisk report or
other record was made of the stop. The hearing
evidence did not establish whether, or to what extent,
the second man, may have met
description.
In any
event, regardless of whether the second man met the
description, [the Petitioner] has not provided any
authority for the proposition that the police are
constitutional
required to include alternative
suspects in a showup. Moreover, [the Petitioner] has
not advanced any lawful basis for the pol
to detain
and transport a person for investigatory purposes
after they no longer cons
the person a suspect.

Pagan, 84 A.D.3d at 606.

In

tion, the Appellate Division rejected the

Petitioner's claims as to the t

recording and

ficer's

testimony, stating that:

The police stop of a second man around
time of
[the Pet ioner's] arrest was also the subject of
issues raised at trial. The trial court properly
exerci
its discret
when it precluded [the
Petitioner] from introducing a tape recording of the
pol
broadcast of the stop of the second man, or the
testimony of the off
who made the stop. Given
the
limited information about the stop, the
prof
evidence lacked any probative value either
to challenge the reI
lity of the police
investigation or to suggest third-party culpability.
The tape only established the fact that a second man
was stopped at a particular place, but nothing about
the second man's appearance. The officers could not
I the stop even after defense counsel played the
9

tape for them.
[Petitioner] relies on the inference
that if the police stopped the second man after
hearing a description on the radio, he must have met
the description. However, the record is consistent
with various scenarios. Among other things, the
police may have momentarily stopped the man and
released him upon a realization that he did not meet
the description, or the man may have attracted police
attention for some kind of suspicious behavior
unrelated to the description. Accordingly, the court
properly concluded that the proffered evidence was too
speculative to have any probative value, and that any
reference to the second man was likely to confuse or
mislead the jury,
[Petitioner] did not assert, except by way of untimely
postverdict motion, any constitutional right to
introduce the proffered evidence. Accordingly, he did
not preserve his constitutional claims, and we declide
to review them in the interest of justice. As an
alternative holding, we find no violation of [the
petitioner's] right to confront witnesses and present
a defense.

rd. at 606 07 (citations omitted).

On November 18, 2011, the New York Court of Appeals
denied the Petitioner's application for leave to appeal to that
court.

See People v. Pagan, 17 N.Y.3d 954

(2011).

On April 12, 2012, the Petitioner filed a pro se
petition for a writ of habeas corpus and it was marked fully
submitted on August 27, 2012.

III. Discussion

10

A) Standard of Review for Habeas COrpus Petitions Brought

Pursuant to 28 U.S.C. § 2254

Section 2254 of the 1996 Antiterrorism and Effective
Death Penalty Act ("AEDPA

If

)

provides a federal remedy for state

prisoners if their continued custody is in violation of federal
law.
§

Pub. L. No. 104 132, 100 Stat. 1214, codified at 28 U.S.C.

2254(a)

i

v. Florida, 449 U.S. 560, 571, 101 S.

see

("This Court has no

Ct. 802, 66 L. Ed. 2d 740 (1981).

supervisory authority over state courts, and, in reviewing a
state court judgment, we are confined to evaluating it in
relation to the Federal Constitution. If)

•

Errors of state law

are not cognizable on federal habeas review.

Estelle v.

McGuire, 502 U.S. 62, 71-72, 112 S. Ct. 475, 116 L. Ed. 2d 385
(1991). Petitioners bear the burden of proving violations of
federal law by a preponderance of the evidence.

See Jones v.

Vacco, 126 F.3d 408 1 415 (2d Cir. 1997).

Thus

1

under the AEDPA

1

federal habeas courts must

presume the state court/s factual findings are correct and may
overturn those findings only if the Petitioner offers evidence
of their incorrectness.

28 U.S.C.

§

2254(e).

A state court's

adjudication may be overturned only if it either:

11

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

28 U.S.C.
362

I

§

2254 (d) (1),

(2)

i

see Williams v.

, 529 U.S.

375 - 76, 120 S. Ct. 1495, 146 L. Ed. 2 d 389 (2000).

With respect to the "contrary to" clause, the writ may
issue in two circumstances:

first,

if the state court decision

"applies a rule that contradicts the governing [Supreme Court]
lawai and second, if the state court decision addresses a set of
facts "materially indistinguishable" from a relevant Supreme
Court case and arrives at a result different to that reached by
the Court.

Lockyer v. Andrade, 538 U.S. 63, 73, 123 S. Ct.

1166, 155 L. Ed. 2d 144 (2003),
405-06).

(quoting Williams, 529 U.S. at

The "clearly established Federal law" refers to

Supreme Court holdings, as opposed to the dicta, as of the time
of the relevant state court decision.

See Williams, 529 U.S. at

412.

A state court decision involves an "unreasonable
application" of Supreme Court precedent when the state court
either "identifies the correct governing legal rule" from the
12

Supreme Court's cases but "unreasonably applies it to the facts"
of the case, or "unreasonably extends a legal principle from
[the Court's] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new
context where it should apply."

Id. at 407.

Under the "unreasonable application" clause,

"a

federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the state-court
decision applied clearly established federal law erroneously or
incorrectly."

Id. at 411.

"Rather, it is the habeas

applicant's burden to show that the state court applied [Supreme
Court precedent] to the facts of
unreasonable manner."

s case in an objectively

Woodford v. Visciotti, 537 U.S. 19, 25,

123 S. Ct. 357, 154 L. Ed. 2d 279 (2002).

Any determination of

a factual issue made by a state court must be presumed correct
unless the petitioner can show by clear and convincing evidence
that such presumption should not apply.

See 28 U.S.C.

§

2254 (e) (1) .

In addition, the Supreme Court's jurisprudence on the
"unreasonable application" clause of § 2254(d) (1) makes "clear
that whether a state court's decision was unreasonable must be
assessed in light of the record the court had before it."
13

Holland v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 159 L.
Ed. 2d 683 (2004).
emphasized that,

In Cullen v. Pinholster, the Court recently

~[i]f

a claim has been adjudicated on the

merits by a state court, a federal habeas Petitioner must
overcome the limitation of

§

2254(d) (1) on the record that was

before that state court."

--- U.S.

--, 131 S. Ct. 1388, 1400,

179 L. Ed. 2d (2011).

B) The State Court's Adjudication Was Not Contrary to Clearly
Established Federal Law or Unreasonable

Petitioner contends that he is entitled to habeas
relief because:

[T]he defense argued that the show up identification
should be suppressed because it was unnecessarily
suggestive. The decision
the court denied the
motion (Boyle. J.). Decision, filed January 3, 2009.
Evidence of the Stop of the Second Man.
Preclusion of
the Tape Recording.
Preclusion of the officers'
testimony.
(Petition at

~

13).

As the Petitioner is pro se, his submissions will
therefore be liberally construed and read to raise the strongest
argument they suggest.
75, 79 (2d Cir. 1996)

i

See e . . , Graham v. Henderson, 89 F.3d
U.S. v. Ramirez, No. 98 Cr. 927 (RWS) ,

2012 WL 11280, at *1 (S.D.N.Y. Jan. 3, 2012).

14

Thus, liberal

construing the petition, it appears that the Petitioner is
raising the several claims that he advanced on direct appeal to
the Appellate Division.

The first claim that the Petitioner

raised on direct appeal was that,

\\[s]ince two separate police

units, responding separately to the same radio description of
the suspect simultaneously but separately apprehended two
Hispanic men, the single show-up identification of

[the

Petitioner] was unnecessarily suggestive, mandating
suppression.

11

(Ex. 5, pp. 2, 27 29).

Thus, he contends that

the show up identification was unduly suggestive because McLeish
should have been allowed to view the second, unknown person who
had been detained.

Next, he argues that the jury should have

heard evidence concerning the detention of the alternative
perpetrator suspect.

The Petitioner advances that the tape

recording and the officers' testimony regarding the second
person detained unfairly precluded him from presenting evidence
of third-party guilt.

The Petitioner's Show

Identification Claims

Clearly established federal law requires a two part
inquiry to determine the admissibility of identification
evidence.

As the Second Circuit noted,

\\[r]eliability is the

touchstone for the admission of eyewitness identification
15

testimony pursuant to the Due Process Clause of the Fourteenth
[and] our inquiry into the reliability of

Amendment

eyewitness identifications proceeds in two stages. 1I
Ercole, 565 F.3d 80, 88

(2d Cir. 2009).

Brisco v.

First, the court must

determine whether the identification procedure used was unduly
or unnecessarily suggestive, if it is based on police procedures
that create "a very substantial likelihood of irreparable
misidentification.

Perry v. New Hampshire,

Ct. 716, 718, 181 L. Ed. 2d 694

(2012)

u.s. --

132 S.

(quoting Simmons v.

United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d
1247 (1968».

As the Supreme Court noted, show up

identification procedures have been "widely condemned

ll

because

they are inherently suggestive. See Stoval v. Denno, 388 U.S.
293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 119 (1967), overruled on
other grounds by Griffith v.

, 479 U.S. 314, 107 S. Ct.

708, 93 L. Ed. 2d 649 (1987).

However, a show up identification

only violates the due process clause where it is "unnecessarily
suggestive. II

Brisco, 565 F.3d at 88.

If the court finds that "impermissibly suggestive
procedures are not employed, independent reliability is not a
constitutionally required condition of admissibility, and the
reliability of the identification is simply a question for the
jury."

United States v

t

40 F.3d 1347, 1359 (2d Cir. 1994)
16

However

(internal citation omitted).

l

if the identification

procedure was unnecessarily or unduly suggestive

I

the court must

reach the second step of the analysis and "weigh the corrupting
the suggestiveness against other factors indicating

effect

that the identification may be independently reliable.v. Kel

I

257 F.3d 122 (2d Cir. 2001)

i

Raheem

Manson v. Branthwaite

l

423 U.S. 98 1 1141 97 S. Ct. 2243 1 52 L. Ed. 2d 140 (1977)
(stating that even a suggestive procedure "does not in itself
intrude upon a constitutionally protected interest- if it did
not contribute significantly to the identification of the
defendant.) .

Whether or not the identification was independently
reliable turns on the factors set forth by the Supreme Court in
Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed.
2d 401 (1972).

These factors, which are viewed under the

totality of the circumstances

I

include "the opportunity of the
the crime

witness to view the criminal at the time

l

the

witness' degree of attention, the accuracy of the witness' prior
description of the criminal

I

the level of certainty demonstrated

by the witness at the confrontation, and the length of time
between the crime and the confrontation.

u

Id.

In the instant case, the Hearing Court determined that
17

the challenged show up procedure was not unnecessarily
suggestive.

The court noted that the show up was "the

culmination of an unbroken chain of exigent events" such that
the "identification of defendant was essentially spontaneous and
occurred in close spatial and temporal proximity to the
(People's Ex. 2 at 6, 7 8).

offense."

In addition, upon review

of the record and an examination of the conduct of the police,
the court found no impropriety or undue suggestion attendant to
the identification procedure.

(Id.).

The Hearing Court thus

concluded that "the People indeed satisfied their initial burden
of establishing the reasonableness of the police conduct and the
lack of any undue suggestiveness in the pretrial identification
procedure.

II

rd. at 11).

Additionally, the Appellate Division upheld the
Hearing Court's decision, finding that the decision was neither
contrary to, nor an unreasonable application of, Supreme Court
precedent, and that it was not an unreasonable determination of
evidence adduced at the hearing.

The court stated that that the

Petitioner had failed to cite any case holding that "the police
are constitutionally required to include alternative suspects in
a show up.

II

--""'-­

, 84 A.D.3d at 606.

The Petitioner, then and now, has failed to show that
18

the state court adjudication was contrary to clearly established
federal law, that it involved an "unreasonable application"
clearly established federal law, or that it resulted in a
decision that was based on an unreasonable determination of the
facts

light of the evidence presented in the State court

proceeding.

The presentation of a suspect, without alternates,

for the purposes of an identification procedure does not offend
clearly established Supreme Court precedent.

A review of the

record also reveals no suggestion that the police employed an
identification procedure that was impermissibly suggestive.

In addition, even assuming that the identification
procedure was unnecessarily or unduly suggestive, when weighing
the suggestiveness of the identification procedures against the
reliability of the identification, the identification of the
Petitioner was independently reliable and thus properly
admitted.

The robbery took place within a short time frame of

the identification and McLeish immediately and spontaneously
identified the Petitioner as the man who had just robbed her.
She also had several unobstructed views of the perpetrator's
face and assured the police that she was "one hundred and ten
percent sure" that they had apprehended the right man.

Thus, an

examination of the Biggers factors reveals an independent basis
for reliability in this case.
19

Alternative
Recording and Officer's Testimony

the Preclusion

Since the Petitioner did not raise his federal
constitutional claims in a timely fashion at trial, the
Appellate Division found that he had not preserved them for
appel

e review under New York law.

New York procedural rules

require that questions of law raised on appeal must be preserved
by specific objection during tri

N.Y.C.P.L.

§

470.05(2)1.

Because the Petitioner did not present his federal claims to the
trial court in compliance with state procedural rules, the
Appellate Division's refusal to adjudicate the claim as
unpreserved qualifies as an independent and adequate state
ground for denying federal review.

See Cone v. Bell, 556 U.S.

449, 465, 129 S. Ct. 1769{ 173 L. Ed. 2d 701

(2009)

(finding

that "consistent with the longstanding requirement that habeas
petitioners must exhaust available state remedies before seeking
1 N.Y.C.R.L.
§ 470.05(2) provides: "For purposes of appeal, a question of law
with respect to a ruling or instruction of a criminal court during a trial or
proceeding is presented when a protest thereto was registered, by the party
claiming error, at the time of such rUling or instruction or at any
subsequent time when the court had an opportunity of effectively changing the
same.
Such protest need not be in the form of an "exception" but is
sufficient if the party made his position with respect to the ruling or
instruction known to the court, or if in response to a protest by a party,
the court expressly decided the question raised on appeal.
In addition, a
party who without success has either expressly or impliedly sought or
requested a particular ruling or instruction, is deemed to have thereby
protested the court's ultimate disposition of the matter or failure to rule
or instruct accordingly sufficiently to raise a question of law with respect
to such disposition or failure regardless of whether any actual protest
thereto was registered."

20

reI

f in federal court, we have held that when a petitioner

fails to raise his federal claims in compliance with relevant
state procedural rules, the state court's refusal to adjudicate
the claim ordinarily qualifies as an independent and adequate
state ground for denying federal review. ")

(internal citation

omitted) .

Here, the Appellate Division's decision that the
Petitioner's constitutional claims were unpreserved was an
independent state procedural bar as it was based on wellestablished New York rules and only those

al objections that

are both contemporaneous and specific are preserved for
appellate review.
v.

------~----

See N.Y.C.P.L.

, 84 N.Y.2d 990, 992

§

470.05(2) i see also

(1994)

Ie

(federal constitutional

arguments must be preserved by contemporaneous, specific
objections.) .

During the course of the Petitioner's trial, his
attorney only argued that the evidence was admiss
state law precedent.

e under

The constitutional component of the claim

was not introduced until the Petitioner filed his N.Y.C.P.L.
330.30(1) motion to set aside the verdict.

§

As such motions can

only set aside a verdict on grounds that would require reversal
as a matter of law if raised on appeal, and are not preserved
21

for appellate review.

See People v. Padro, 75 N.Y.2d 820, 821

(1990) .

The Second Circuit has "recognized the propriety
such rules, noting that' [i]f a state appellate court refuses to
review the merits of a criminal defendant's claim of
constitutional error because of his failure to comply with .
a contemporaneous objection rule, a federal court generally may
not consider the merits of the constitutional claim on habeas
corpus review."

Garcia v. Lewis, 188 F.3d 71,

(quoting Peterson v. Scul

, 896 F.2d 661, 663

79

(2d Cir. 1999)

(2d Cir. 1990))

In such cases, federal courts defer "to New York's consistent
application of its contemporaneous objection rules."

Id.

The

Appellate Division's holding here was the last reasoned opinion
on the Petitioner's federal constitutional claim, and provides
an independent and adequate state ground for its decision.
Pagan, 84 A.D.3d at 607; see Harris v. Reed,
S.

Ct. 1038, 1044 n.10, 103 L. Ed. 2d 308
finition,

489 U.S. 255, 109

(1989)

("By its very

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 reI

on federal law.").

a showing of cause for the

Accordingly,

"absent

fault and resulting prejudice,"

habeas review of the claims remains prohibited.
22

z v.

Leonardo, 898 F.2d 7/ 9 (2d Cir. 1990).

To satisfy the cause standard, a petitioner must show
that \\\some objective factor external to the defense impeded
counsel's efforts' to raise the claim in state court."
McCle

v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470, 113

--------~-~-------

L. Ed. 2d 517 (1991)

(quoting Murray v. Carrier, 477 U.S. 478,

488, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986)).
\\[I]nterference by officials" is one such factor.
499 U.S. at 494

McCle

(internal quotations omitted) .

The Petitioner has not demonstrated cause for this
failure to raise his constitutional claims until he filed his
N.Y.C.P.L. § 330.30 motion, which was after the verdict was
rendered and the jury was sent home.

As the Petitioner has

failed to demonstrate cause for the default, there is no need to
reach on the question of prejudice.

See Levine v. Comm'r of

Correctional Srvs., 44 F.3d 121, 127 (2d Cir. 1995).

In addition, insofar as the recording and testimony
about the second detained person were proffered as evidence to
establish third-party culpability, the trial court's denial of
that application was neither contrary to, nor an unreasonable
application of federal law.

Since the Petitioner's proffered
23

evidence did not even establish the gender of the
stopped, much less that person's race, age, clothing or
appearance, the trial court determined that the
merely slight, remote or conjectural signif
f

" and thus was

iently probative to outweigh [the] countervailing risks

[including] undue prejudice to the opposing

In any event, the Appellate
Hearing Court "properly concluded t
was too speculative to have any

sion held that the
proffered evidence
ue, and that any

reference to the second man was 1

to confuse or mislead the

Pagan, 84 A.D.3d at 607.

that the Petitioner had not,

, confusing the

(T. at 19 20)

issues or misleading the jury."

jury."

was "of

Appellate Division stated
by way of an untimely

"

postverdict motion, any constitutional right to introduce the
precluded evidence.

Accordingly, he did not preserve his

constitutional claims."

Id.

court also found in the

alternative, that there was "no violation of ["the Petitioner's]
right to confront witnesses and present a defense."
A.D.3d at 607.

Accordingly, the state court's decision to

preclude the prof
unreasonable applicat

IV.

Pagan, 84

was neither contrary to, nor an
early established federal law.

Conclusion
24

For

foregoing reasons, the petition for a writ of

habeas corpus is denied.

As Petitioner has not

a substantial showing of

the denial of a constitutional
appealability will not issue.

, a certificate of
28 U.S.C.

States v. Perez, 129 F.3d 255 (2d

2253; see also United

r. 1997); Lozada v. United

States, 107 F.3d 1011 (2d Cir. 1997).
1915 (a) (3), it is hereby certif

§

Pursuant to 28 U.S.C.

that any appeal from this

order would not be taken in good faith.

v. United

States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L.

. 2d 21

(1962) .
It is so ordered.

New York, NY
November ~, 2012

U.S.D.J.

25

§