Joaquin v. Capra

Filing 25

CORRECTED OPINION & ORDER. The Court concludes that: (1) the trial court's decision not to inquire into potential premature deliberations did not violate petitioners constitutional rights; and (2) the prosecutor's comments in summation did not violate petitioner's constitutional rights. Accordingly, Joaquin's petition for writ of habeas corpus is DENIED. The Clerk of Court is directed to terminate this action. SO ORDERED. (Signed by Judge Katherine B. Forrest on 7/13/2018) Copies Mailed By Chambers. (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ANIBAL JOAQUIN,
:
:
Petitioner,
:
:
-v:
:
MICHAEL CAPRA,
:
:
Respondent.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: July 13, 2018

17-cv-6191 (KBF)
CORRECTED
OPINION & ORDER1

KATHERINE B. FORREST, District Judge:
Anibal Joaquin, currently incarcerated at Sing Sing Correctional Facility in
Ossining, New York and acting pro se, brings this petition for a writ of habeas
corpus under 28 U.S.C. § 2254. On February 9, 2011, Joaquin was convicted of
attempted murder in the second degree and robbery in the first degree in New York
state court. He was sentenced as a second violent felony offender to an aggregate
term of fifteen years of incarceration. Joaquin’s petition argues that (1) the trial
court improperly declined to conduct an inquiry into whether jurors engaged in
premature deliberation, and (2) the prosecutor engaged in misconduct.
For the reasons stated below, the petition for a writ of habeas corpus is
DENIED.
I.

BACKGROUND & PROCEDURAL HISTORY
On July 3, 2008, Joaquin and an accomplice robbed Ezequiel Reyes at

gunpoint; the accomplice (who was not apprehended) also had a boxcutter. An
altercation ensued, after which Joaquin dropped $880 on the ground while running

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The last page of this Opinion has been edited to correct a typographical error.

away, turned around and threatened to kill Reyes, and then fired a single shot in
his direction. Three police officers observed the shooting, apprehended Joaquin,
and recovered two thousand dollars from his pocket. No gun was recovered, though
the $880 and a loaded and operable magazine were recovered off the ground.
As particularly relevant here, the prosecutor argued in summation as follows:
Let me first point out, nothing I say is meant to denigrate the defense
lawyer. I’ll compliment him. He’s a good lawyer. He worked hard. He
spoke well. He’s smart. He’s even clever. He’s a good lawyer. But, no
lawyer in this courthouse is so good, no lawyer in the whole country is
so good that he can convince 12 reasonable member[s] that down is up
and up is down. No lawyer is good enough to convince you that this
case has not been proven beyond a reasonable doubt.
...
So [now let’s] talk about the police officers. Defense attorney
conceded they’re not lying to you. And he’s gone with this theory [that]
this is some mistake. Okay. And, again, I mean no disrespect to
defense, but that's completely ridiculous. The idea this is some kind of
mistake, I don’t blame the defense lawyer for saying that. If I was
sitting there, maybe I would say something like that too. Because
when the evidence is completely overwhelming, when three police
officers see the man sitting next to you try and commit a murder, and
get caught red-handed, right away, I mean what is there legally to say
here. It’s his fireworks. Did you hear any testimony about fireworks?
Fireworks? They see the gun in his hand.
...
Right off the bat, another reason [defense counsel’s argument
that the police officers fabricated their testimonies] is completely
ridiculous . . . [is that] they spent four hours going through the park
and looking . . . with search lights, and [they] came back the next [day.]
They are going to do that when they didn’t see this happen? Does
anyone enjoy wasting their time that much? Does that make sense?
No. These arguments are so far out in left field, I’m almost

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embarrassed to address and talk about them, but the defense lawyer
brought them up, so I am responding to them.
(Tr. at 364-65, 374-77).
Additionally, at the conclusion of the trial court’s final instructions to the
jury, defense counsel stated:
during the Court’s instruction on the robbery, and I don’t remember
whether it was on rob one or rob two, it was when you specifically
mentioned box cutter, juror number one turned around to his right and
looked back at a couple of the jurors in the back row. I do not know for
certain which ones. And I believe juror number two as well and they
nodded to each other, which concerns me greatly, indicates that they’ve
been discussing the case among themselves contrary to the Court’s
instructions. Otherwise, why would they be the looking at each other
at a particular time in the charge? I don’t know if anybody else notice
that. I was very concerned by that and I’m not sure what solution
there is to it other than to bring them in and ask them if they’ve been
discussing the case one by one.
(Tr. at 426:3-17.) Neither the prosecutor nor the Court noticed this occurring. (Tr.
at 426:18-19.) After a recess, the Court stated:
With respect to the fact that jurors may have looked at each other at a
point in the charge, does not indicate to me that there has been any
inappropriate conversation or that anyone has violated any of my
instructions and I think it’s just speculation and I don’t want to be
singling out jurors for questioning without more of a basis than that.
So that application is denied.
(Tr. at 427:16-23.) After deliberations, the jury convicted Joaquin of attempted
second-degree murder and first-degree robbery. On May 23, 2011, Joaquin was
sentenced to fifteen years’ incarceration.
Petitioner appealed his conviction to the New York Supreme Court, Appellate
Division (“Appellate Division”), where he argued that (1) the trial court’s refusal to
inquire into possible juror discussions violated his fundamental right to an
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impartial jury, and (2) the prosecutor’s summation improperly denigrated the
defense. On April 5, 2016, the Appellate Division unanimously affirmed Joaquin’s
conviction and sentence, holding that the trial court “properly exercised its
discretion when it declined to conduct an inquiry into whether jurors had engaged
in premature deliberations” and that “the particular portion of the prosecutor’s
summation to which defendant objected on the ground of ‘denigrating the defense’
was generally responsive to defendant’s summation, and [did] not warrant
reversal.” People v. Joaquin, 138 A.D.3d 422, 422 (N.Y. App. Div. 2016) (noting also
“that the court repeatedly reminded the jury that such deliberations are not
permitted”). As to any other summation comments, the Appellate Division held
that petitioner failed to preserve his challenges. Id. It noted also that “[a]ny
improprieties were harmless in light of the overwhelming evidence of guilt.” Id. at
423.
The New York Court of Appeals denied Joaquin’s request for leave to appeal
on August 1, 2016. People v. Joaquin, 63 N.E.3d 79 (N.Y. 2016). Joaquin filed the
instant petition for writ of habeas corpus on August 16, 2017.
III.

LEGAL PRINCIPLES
a. Standard for Habeas Relief
In order for a petitioner to prevail on a petition for writ of habeas corpus, he

must demonstrate that the state court’s decision on the merits was “contrary to, or
involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court.” 28 U.S.C. § 2254(d)(l). A state court’s decision
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is contrary to clearly established federal law if “(1) [] the state court reached a
conclusion of law that directly contradicts a holding of the Supreme Court, or (2) []
when presented with ‘facts that are materially indistinguishable from a relevant
Supreme Court precedent,’ the state court arrived at a result opposite to the one
reached by the Supreme Court.” Evans v. Fischer, 712 F.3d 125, 132 (2d Cir. 2013)
(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is
based on an unreasonable application of clearly established federal law if the state
court “unreasonably applied” federal legal principles “to the facts of the case before
it . . . involv[ing] some increment of incorrectness beyond error.” Id. at 133 (internal
quotation marks and citation omitted).
State prisoners seeking federal habeas relief face a high burden, and a
federal district court must give a state court decision due deference. See Harrington
v. Richter, 562 U.S. 86, 102 (2011) (“If this standard is difficult to meet, that is
because it was meant to be.”); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (noting
that Section 2254’s “highly deferential” standard “demands that state-court
decisions be given the benefit of the doubt”). Habeas relief will not be granted
“merely because there is a reasonable possibility that trial error contributed to the
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks
omitted).
Additionally, it is well established that federal courts lack jurisdiction to
“review a question of federal law decided by a state court if the decision of that court
rests on a state law ground that is independent of the federal question and
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adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729
(1991) (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935)). A state law
ground for judgment is considered “adequate” to bar federal review if it is “firmly
established and regularly followed” in the state. See Walker v. Martin, 562 U.S.
307, 316 (2011) (citation omitted).
b. Habeas Review of a Trial Court’s Decisions Regarding Premature
Deliberations
When a trial court “instructs a jury to refrain from premature
deliberation . . . and the jury nonetheless discusses the case before the close of trial,
that premature jury deliberation may constitute juror misconduct.” United States
v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (emphasis added). The court’s “investigation
of juror misconduct or bias is a ‘delicate and complex task.’” Id. (citing United
States v. Abrams, 137 F.3d 704, 708 (2d Cir. 1998). A trial court is afforded broad
flexibility due to its unique position to observe the jury on a daily basis, United
States v. Peterson, 385 F.3d 127, 134 (2d Cir. 2004), and the court’s treatment of
juror misconduct and its decision on a jury’s impartiality are reviewed for abuse of
discretion only, and “only if juror misconduct and actual prejudice are found,” Cox,
324 F.3d at 86.
c. Habeas Review of Prosecutorial Misconduct
To warrant federal habeas relief, a prosecutor’s comments must have “so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 209, 219 (1982)). It “is not enough that the prosecutors’
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remarks were undesirable or even universally condemned.” Id. (quotation omitted).
The due process inquiry relates to “the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).
IV.

DISCUSSION
Based on its review of the parties’ submissions and the trial record, the Court

concludes that: (1) the trial court responded properly to defense counsel’s allegation
regarding premature jury deliberations; and (2) the prosecutor’s summation
comments did not rise to the level of a constitutional violation.
a. The Alleged Premature Deliberations
Petitioner claims that the trial court’s refusal to inquire into the possibility of
premature jury deliberations violated his right to an impartial jury. However, he
presents no evidence of juror misconduct or actual prejudice; he relies only on his
counsel’s assertion at trial. As the Appellate Division noted, defense counsel’s
application for an inquiry into any premature deliberations was based on alleged
body language of two jurors and his inference was speculative. And in any event,
even if the trial court did err, Joaquin has failed to demonstrate “a reasonable
possibility that trial error contributed to the verdict.” Brecht, 507 U.S. at 637.
Accordingly, habeas relief is not warranted on this ground.
b. The Prosecutor’s Summation
Joaquin also claims that the prosecutor’s summation denigrated defense
counsel and misconstrued the defense. First, this Court lacks jurisdiction to review
the Appellate Division’s holding that petitioner failed to preserve his challenges to a
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majority of the prosecutor’s comments. Joaquin, 138 A.D.3d at 422. The
contemporaneous objection rule is “firmly established and regularly followed” in
New York state courts, Downs v. Lape, 657 F.3d 97, 102 (2d Cir. 2011), and
therefore the Appellate Division’s judgment is adequate and independent to bar
federal habeas review.2 See Coleman, 501 U.S. at 729 (citation omitted).
Second, the Court concludes that the prosecutor’s comments during
summation did not deprive petitioner of a fair trial or violate his constitutional
rights. Petitioner faces the heavy burden of demonstrating that the prosecutor’s
comments “so infected the trial with unfairness as to make the resulting conviction
a denial of due process.” Darden, 477 U.S. at 181 (quotation omitted); see also
United States v. McCoy, 692 Fed. App’x 17, 21-22 (2d Cir. 2017) (discussing the
“necessarily improvisatory nature of rebuttal” and holding that a trial court did not
plainly err by allowing a prosecutor to respond to defense counsel’s summation)
(citing United States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011); United States v.
Tocco, 135 F.3d 116, 130 (2d Cir. 1998) (“[W]here the defense summation makes
arguments and allegations against the government, the prosecutor may respond to
them in rebuttal.”); United States v. Rivera, 971 F.2d 876, 883 (2d Cir. 1992)
(stating that defense argument may “open the door” to otherwise improper
rebuttal)). The Court finds no reason to disagree with the Appellate Division’s
conclusion that the prosecutor was responding to defendant’s summation, and thus

Alternatively, the Court concludes that the unpreserved comments, much like the prosecutor’s
attempt at a joke discussed infra, did not deprive petitioner of a fair trial or violate his constitutional
rights under the standard set out in Darden.
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did not warrant reversal. Joaquin, 138 A.D.3d at 422. Accordingly, habeas relief is
not warranted on this ground.
V.

CONCLUSION
The Court concludes that: (1) the trial court’s decision not to inquire into

potential premature deliberations did not violate petitioner’s constitutional rights;
and (2) the prosecutor’s comments in summation did not violate petitioner’s
constitutional rights.
Accordingly, Joaquin’s petition for writ of habeas corpus is DENIED. The
Clerk of Court is directed to terminate this action.
SO ORDERED.
Dated:

New York, New York
July 13, 2018
____________________________________
KATHERINE B. FORREST
United States District Judge

cc:
Anibal Joaquin
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562

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