Lewis v. Burge
Filing
37
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition and denying petitioner's motion for reconsideration 36 of the Court's order entered 5/2/12 34 . (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/17/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROMMEL LEWIS,
Petitioner,
DECISION AND ORDER
No. 06-CV-0513(MAT)
-vsJOHN BURGE,
Respondent.
I.
Introduction
Rommel Lewis (“Lewis” or “Petitioner”), an inmate at Clinton
Correctional Facility, filed a pro se petition for a writ of habeas
corpus
pursuant
to
28
U.S.C.
§
2254
challenging
the
constitutionality of two judgments of conviction entered against
him on March 8, 2001, and October 15, 2001, in Monroe County Court
of New York State. The charges stemmed from a fourteen-count
indictment which was severed prior to trial.
The first conviction resulted from Lewis’s guilty plea to
counts five through fourteen of the indictment which involved
incidents that occurred on March 20, May 13, May 22, and May 23,
2000: Assault
in
the Second
Degree (N.Y.
Penal
Law
(“P.L.”)
§ 120.05(2)); Assault in the First Degree (P.L. § 120.10(1));
Assault in the First Degree (P.L. § 120.10(3)); Criminal Possession
of a Weapon in the Second Degree (P.L. § 265.03(2)); Robbery in the
First Degree (P.L. § 160.15(2)); Robbery in the First Degree (P.L.
-1-
§ 160.15(4)); Assault in the Second Degree (P.L. § 120.05(6));
Criminal
Possession
of
a
Weapon
in
the
Second
Degree
(P.L.
§ 265.03(2)); Criminal Possession of Weapon in the Third Degree
(P.L. § 265.02(4)); and Criminal Possession of a Weapon in the
Fourth Degree (P.L. § 265.01(1)).
The second judgment of conviction was obtained after a jury
trial on charges one through four of the indictment (Murder in the
Second Degree (Felony Murder; two counts) (P.L. § 125.25(3));
Robbery (P.L. § 160.15(2)) in the First Degree and Attempted
Robbery in the First Degree (P.L. §§ 110.00/160.15(2)), all of
which stemmed from an incident on April 27, 2000.
II.
Factual Background and Procedural History
A.
State Court Proceedings
1.
The Plea
When the parties appeared before Monroe County Court Judge
Patricia Marks on January 22, 2001, there was a pending plea offer
to four counts of the indictment (which included the murder counts)
with a sentencing range of 25 or 40 years to life. After the
prosecutor and the trial court explained the possible aggregate
sentence, see H.3,1 Lewis stated that he understood the plea offer,
1
Numerals preceded by “H.” refer to the pages from the transcript of
the pre-trial proceeding conducted on January 22, 2001. Numerals preceded
by “P.” refer to the pages from the transcript of the plea proceeding
conducted on January 24, 2001. Numerals preceded by “T.” refer to the
pages from the transcript of Petitioner’s trial.
-2-
but wondered what his sentence would be if he just “cop[ped] out”
to the robbery and assaults and took the murders to trial. H.4. The
prosecutor indicated that any sentence less than 50 years for a
plea to the robbery and assault charges would not be acceptable.
Lewis indicated that he did not understand that. The following
exchange occurred:
Court:
Defendant:
Court:
Defendant:
He’ll be recommending 50 years.
50 years for the cop-out, too?
Right.
Oh, man. No, I can’t accept that plea.
H.5. The matter was adjourned for trial.
Two days later, the parties appeared before County Court Judge
Stephen Sirkin, who noted that if Lewis pleaded guilty to counts
“5, 6, 9, 12, 13, and 14, that the [c]ourt is going to sentence
without a promise is my understanding.” P.2. Defense counsel agreed
that this was correct. Lewis affirmed that he had discussed the
case with his attorney, did not need additional time, and did not
have any questions about the plea offer. P.3. After making the
preliminary inquiries about Lewis’s physical and mental state and
ascertaining that Lewis was acting under his own volition, the
judge noted that there were no sentence promises being made. When
Lewis indicated that he did not understand, the judge explained
that he could sentence Lewis in the range of five to ninety years.
Lewis then indicated he understood, and the trial court proceeded
to conduct a factual colloquy and enter Lewis’s guilty plea.
-3-
For these convictions, Lewis received determinate sentences
aggregating 70 years, plus five years of post-release supervision.
2.
The Trial
What follows is a summary of the evidence set forth at trial.
On April 27, 2000, at about midnight, Eric Jenkins (“Jenkins”) and
William Barnwell (“Barnwell”) were robbed and shot to death in
front of 113 Columbia Street in the City of Rochester. When Karen
Bryant (“Karen”), who lived at that address, heard a gunshot and
looked outside, she saw her cousin, Jenkins, and her friend,
Barnwell, standing with their backs to a blue car that had been in
the
driveway.
brandishing
Their
guns
hands
were
were
going
up
in
through
the
their
air,
and
pockets.
two
men
Bryant
recognized one of the assailants as Benjamin Switzer (“Switzer”),
a former classmate of hers. The other man was wearing a hoody and
she could only see that he was a dark-skinned black male and
between 5'8"- and 5'10"-tall. See T.284-93.
Karen’s brother, Ron Bryant (“Ron”), also heard gunshots. When
he looked out the window, he saw the hold-up in progress and
recognized Switzer as one of the robbers. Ron watched as Switzer
held up his gun and began firing at Barnwell, who immediately fell
to the ground. As Jenkins attempted to run, Switzer turned and shot
him. See T.310-18. Ron recalled that the man in the hoody had
started running away before either Barnwell or Jenkins was shot.
T.327.
-4-
Another eye-witness, Damiano Smith (“Smith”), was at his home
at 116 Columbria Street when he heard a shot. Looking in the
direction from where the shot came, he saw a lighter-skinned man
already pointing a gun at Barnwell and Jenkins, while the second
man, wearing a hoody, was patting down the two victims. Smith saw
a muzzle flash and heard a gunshot from the direction of where the
first man was standing. The man in the hoody then ran off and,
after briefly searching the victims’ bodies, the shooter followed.
T.332-40.
When Ron arrived at his cousin’s side, Jenkins was still
alive. He began to cry and then fell silent. By that time, the
police had arrived. T.318-19. Ballistics testing revealed that the
bullets recovered from the scene and from the bodies of the two
victims had been fired from the same weapon. T.348-49.
About a month later, the police arrested Lewis in connection
with the shooting. After waiving his Miranda rights, Lewis denied
any involvement but stated that he knew that one of the victims was
named Eric and that Switzer had already been arrested in connection
with the shooting. T.371-84, 424-33. Lewis described Switzer as his
“right-hand man”. Id.
After a half-hour break in the questioning, the officers told
Lewis that Switzer had implicated him as the shooter. Lewis was
incredulous,
stating,
“No
matter
what,
you
shouldn’t
give
a
statement against your man, your partner, your friend.” Even after
-5-
being read part of Switzer’s written statement, Lewis maintained
that Switzer was lying. He claimed that Switzer had done the
shooting, but was “too weak to do the time.” Lewis then admitted
that he was present at the shooting but refused to say anything
further because he was “loyal” to Switzer and to talk would be
engaging in “tit for tat”. He declined to talk about the incident
because it was “‘fucked up’ and that bothered him.” See T.388-91,
436-38.
About two hours later, Lewis announced that he was willing to
discuss the incident but would not sign a statement because it was
a “homicide . . . [and] [t]hat shit’s too serious.” Lewis described
the victims, whom he identified by name, as “weak”, easy targets
because they had been robbed in the past and still did not carry
guns. Lewis felt such “small time robberies” were beneath him, but
he went along with Switzer’s suggestion to “rob them niggers”
because “[r]ight or wrong, you still have to hold down your man.”
T.391-94, 439-42, 447.
Lewis described how Switzer approached Jenkins and Barnell in
a friendly manner, “slapping up” or “high-fiving” them, to put them
off their guard. Switzer then pulled out a .357 handgun and hit
Jenkins “upside the head with it”, causing it to discharge. When
Switzer demanded their money, Jenkins emptied his pockets of keys,
cash, and change, throwing it all on the ground. Because Barnell
did not have any money, Lewis turned away to leave, and “that’s
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when [Switzer] clapped them”, meaning that Switzer shot the two
men. Afterwards, Lewis divided up the spoils, giving $20 to Switzer
and keeping the remaining $63 for himself. Lewis claimed that he
did not have a weapon during the incident. See T.394-98, 443-48.2
The defense did not present a direct case. Trial counsel
argued that the police investigators had fabricated and coerced
Lewis’s confession. Counsel argued that it was preposterous to
think that Lewis would have voluntarily acknowledged being present
at the crime scene after denying it for several hours. Pointing to
the absence of a written statement from Lewis, defense counsel
urged the jury not to accept the police officers’ testimony about
what Lewis allegedly said to them. T.487-88.
The jury returned a verdict finding Lewis guilty of felony
murder,
robbery,
indictment.
and
T.549-53.3
attempted
For
the
robbery
murder
as
charged
convictions,
in
the
Lewis
was
sentenced to two consecutive indeterminate terms of 25 years to
life; for the robbery conviction, a determinate term of 25 years;
2
The police did not inform Lewis about the caliber of the murder
weapon, the loose change found on the ground, or the pizza box that Lewis
spontaneously said was not at the scene. T.396, 443-45. Nor did any of
the media reports mention these facts. See id.
3
Switzer was convicted of four counts of first degree murder, two
counts of second degree murder, and two counts of first degree attempted
robbery. These convictions were upheld on appeal. People v. Switzer, 15
A.D.3d 913, 788 N.Y.S.2d 760 (4th Dept. 2005), lv. denied, 5 N.Y.3d 770
(2005),
habeas
corpus
denied
sub
nom.
Switzer
v.
Graham,
No. 05-CV-6706(MAT), 2010 WL 1543855 (W.D.N.Y. Apr. 16, 2010).
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and for the attempted robbery conviction, a determinate term of
15 years.
The appeals of the two judgments of conviction were prosecuted
separately. The Appellate Division, Fourth Department, of New York
State Supreme Court, unanimously affirmed both judgments. People v.
Lewis, 11 A.D.3d 954 (4th Dept. 2004) (appeal 1, from the guilty
plea; also resolving the claims raised in appeal 2 from the jury
verdict); People v. Lewis, 11 A.D.3d 9604
(4th Dept. 2004) (appeal
2; same memorandum as in appeal 1). The New York Court of Appeals
denied leave to appeal in both cases.
B.
The Federal Habeas Proceeding
This timely habeas petition followed. While the petition was
pending, Petitioner sought and received a stay from Magistrate
Judge Schroeder to exhaust claims regarding his resentencing in
light of a change in the law pertaining the necessity for the trial
judge
to
state
on
the
record
that
a
term
of
post-release
supervision was part of a defendant’s sentence.
Petitioner then sought to amend the petition to add three
claims, and Respondent opposed the motion. The Court granted
permission to include the first proposed claim. Although both
parties conceded that the first proposed amended claim had already
been raised in the original petition, the Court granted the request
to amend so as to make clear that this contention would be
adjudicated when the Court decided the petition. The Court denied
-8-
with prejudice the request to include the second and third proposed
claims, finding that the second claim was untimely and did not
relate back to the original petition, and was factually and legally
baseless; and that the third claim was not cognizable and, in any
event, was
moot.
In his
reply
to
Respondent’s
memorandum in
opposition to the petition, Petitioner has made a motion for
reconsideration of the Court’s order disposing of the motion to
amend.
For the reasons that follow, the petition is dismissed, and
the motion for reconsideration is denied.
III. Analysis of the Petition
A.
Involuntariness of the Guilty Plea (Ground I)
Respondent
contends
that
Lewis’s
claim
regarding
the
voluntariness of his guilty plea is procedurally defaulted under
the “adequate and independent state ground” doctrine because he
failed to properly preserve the claim for appeal by moving to
withdraw the plea. Respondent contends that the appellate court
relied upon an adequate and independent state ground to dismiss the
claim as procedurally barred, thereby precluding further federal
habeas review of the claim. See, e.g., Velasquez v. Leonardo, 898
F.2d 7, 9 (2d Cir. 1990) (per curiam) (“[F]ederal habeas review is
foreclosed when a state court has expressly relied on a procedural
default as an independent and adequate state ground, even where the
state court has also ruled in the alternative on the merits of the
-9-
federal
claim.”)
(citation
omitted).
As
the
claim
is
easily
resolved on the merits, the Court proceeds to address the substance
of the claim rather than deciding that procedural default issue.
The standard for determining voluntariness is whether the
guilty plea “represents a voluntary and intelligent choice among
the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). Since pleading guilty
necessarily involves the relinquishment of several constitutional
rights, the record must affirmatively demonstrate that the plea was
intelligent and voluntary, and that the defendant was informed of
certain direct consequences of his plea. Boykin v. Alabama, 395
U.S. 238, 242 (1969).
The plea transcript confirms that Lewis fully understood the
consequences
of
his
decision
to
forego
trial,
that
he
had
sufficient time to discuss the case with his attorney, and that he
understood the terms of the plea agreement. In particular, as
discussed
further
below
in
Section
III.B.1,
Petitioner
unequivocally affirmed that he understood he was not being promised
any particular sentence and that he could receive a term of
imprisonment in the range of five to ninety years. Petitioner then
admitted all of the necessary elements of the crimes which were the
subject of the plea agreement.
A district court on habeas review may rely on a petitioner’s
sworn statements and hold him to them. See Blackledge v. Allison,
-10-
431 U.S. 63, 74
(1977) (“[T]he representations of the defendant,
his lawyer, and the prosecutor at . . . a [plea] hearing, as well
as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings. Solemn
declarations
in
open
court
carry
a
strong
presumption
of
verity.”)(citations omitted). Petitioner clearly is a street-smart
individual who does not lack experience with the criminal justice
system, as
demonstrated
by
his
criminal
record
prior
to
the
convictions here at issue, his statements to the police during his
interrogation, and his statements to the judge during the various
proceedings. On this record, his claims that his guilty plea was
not knowing, voluntary, or intelligent are “contentions that in the
face of the record are wholly incredible.” Blackledge, 431 U.S. at
74.
B.
Ineffective Assistance of Trial Counsel (Grounds II & IV)
The
Sixth
Amendment
to
the
U.S.
Constitution
guarantees
criminal defendants the right to the assistance of counsel during
their criminal proceedings. Strickland v. Washington, 466 U.S. 668,
684–85 (1984). This right extends to the plea-bargaining process,
during which defendants are “entitled to the effective assistance
of competent counsel.” Lafler v. Cooper, ___ U.S. ___, ___, 132
S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) (internal quotation marks
omitted).
-11-
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court
held
that
Strickland
applies
equally
to
the
plea-bargaining
process. 474 U.S. at 58–59 (concluding that the defendant had not
demonstrated
that
his
counsel
was
ineffective
in
erroneously
advising him about the parole-related conditions set forth in the
proposed plea agreement because the defendant failed to allege that
he would have rejected the plea but for counsel’s advice); see also
Lafler, 132 S.Ct. at 1384. Under Strickland, the petitioner must
show that counsel’s performance was deficient and that counsel’s
errors prejudiced the defense. Strickland, 466 U.S. at 687. That
is,
the
petitioner
“must
show
that
there
is
a
reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
When evaluating counsel’s performance under the first step of
Strickland, a reviewing court applies a strong presumption that
counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” 466
U.S. at 690. “Even under de novo review, the standard for judging
counsel’s representation is a most deferential one.” Harrington v.
Richter, 131 S. Ct. 770, 788 (2011).
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1.
Ineffective Assistance of
Negotiations (Ground II)
Counsel
During
Plea
Here, the Appellate Division adjudicated Lewis’s ineffective
assistance of trial counsel claim on the merits, finding that he
“received meaningful representation during the plea process[.]”
People v. Lewis, 11 A.D.3d at 955 (citing, inter alia, People v.
Ford, 86 N.Y.2d 397, 404 (1995)). Therefore, the deferential
standard of review set forth in 28 U.S.C. § 2254(d)(1) applies.
E.g., Richter, 131 S. Ct. at 784 (citing 28 U.S.C. § 2254(d)(1)).
“Federal habeas relief may not be granted for claims subject to
§ 2254(d) unless it is shown that the earlier state court's
decision ‘was contrary to’ federal law then clearly established in
the holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529
U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); or that it
‘involved an unreasonable application of’ such law, § 2254(d)(1).
. . .” Richter, 131 S. Ct. at 785.
Lewis
asserts
in
a
conclusory
fashion
that
it
was
professionally unreasonable for trial counsel to allow him to plead
guilty without a sentencing commitment from the trial court.
Notably,
Lewis
has
not
alleged
that
trial
counsel
made
an
inaccurate estimate of his potential sentencing exposure or falsely
assured him of a particular sentence. He simply faults counsel for
not obtaining a promise to impose a particular sentence, the
appropriate length of which he does not specify. The Court has
found no authority for the proposition that an attorney must secure
-13-
a specific sentencing promise for his client. See, e.g., Wellnitz
v. Page, 420 F.3d 935, 936-37 (10th Cir. 1970) (“[A]bsent a reckless
promise of a specific sentence or the unfair holding out of an
assurance of leniency in exchange for a guilty plea, an erroneous
sentence estimate by defense counsel, based on experience or
instinct, or an erroneous expectation by the defendant, based on
the prediction, does not render a plea involuntary.”). Rather, the
attorney must ensure that the client understood the terms of plea
agreement. Here, the record fairly supports the conclusion that
Lewis did understand his potential sentencing exposure, as the
following excerpts show:
Court:
Defendant:
Court:
Defendant:
Court:
Defendant:
P.4
Are you pleading guilty of your own free
will?
Yes.
I understand–I understand there’s going
to be no sentencing promise here.
I don’t understand.
Okay. It can be–I guess the range in
sentencing is from five years to ninety
years, do you understand that?
Yes.
After a brief colloquy with the prosecutor, the trial court
revisited the issue with Petitioner:
Court:
Defendant:
Court:
Defendant:
P.5
Did anybody make any promises to you
about sentence at all?
No.
So I can give you anywhere between five
and ninety basically, right?
Yes.
The trial court thus advised Lewis unambiguously on two
separate occasions that he could receive anywhere from five to
-14-
ninety years, and Lewis unequivocally responded in the affirmative
that
he
understood.
What
trial
counsel
did
or
did
not
tell
Petitioner prior to pleading guilty has never been placed before
this Court or any of the state courts. Speculation and conjecture,
unsupported by any verified facts, are an insufficient basis on
which to found a claim of ineffective assistance. See Lesko v.
Lehman, 925 F.2d 1527, 1537-38 (3d Cir. 1991) (“A collateral
challenge to a guilty plea may be summarily dismissed when [a
petitioner’s] allegations . . . are inconsistent with the bulk of
his conduct, and when he offers no detailed and specific facts. .
. .”) (quotation omitted; alteration in original). The Court is
left with Petitioner’s assurances made under oath, in open court,
and on the record, that he understood the potential range of his
sentences. “Solemn declarations in open court carry a strong
presumption of verity,” Blackledge v. Allison, 431 U.S. at 74, and
Lewis has provided no basis for ignoring that presumption.
It
is
deficiencies
obvious
his
that
this
attorney’s
claim
part
but
derives
instead
not
from
from
any
Lewis’s
dissatisfaction with the length of his sentence, which was based
solely upon the many serious crimes on which he was indicted.
See
United States v. Garguilo, 324 F.2d 795, 797 (2d Cir. 1963) (“A
convicted defendant is a dissatisfied client, and the very fact of
his conviction will seem to him proof positive of his counsel’s
incompetence.”).
-15-
2.
Failure to Object to Limiting Instructions (Ground
IV)
Petitioner also faults counsel for failing to object to the
limiting instructions issued by the trial court in connection with
the admission of Investigator Gropp’s and Investigator Dominick’s
testimony concerning out-of-court statements made by Petitioner’s
co-perpetrator, Switzer. As discussed below in Section III.C.3, the
limiting instructions were not improper. Therefore, trial counsel
was not professionally unreasonable in objecting to them, and Lewis
could not have been prejudiced by trial counsel’s failure to
object. See Williams v. United States, Nos. 00 Cr. 1008(NRB), 09
Civ. 2179(NRB), 09 Civ. 3493(NRB),
09 Civ. 2535(NRB), 2011 WL
3296101, at *7 (S.D.N.Y. July 28, 2011) (“[A] defendant is not
entitled to have the exact language he may want read to the jury,
so
long as
the
charge
actually
given
properly
addresses the
necessary legal issues. Thus, defense counsel’s decision not to
object to the limiting instruction was not unreasonable and did not
cause [defendant] prejudice.”) (internal citation and footnote
omitted).
3.
Cumulative Effect of Counsel’s Alleged Errors
The Second Circuit has noted that since a claim of ineffective
assistance of counsel “can turn on the cumulative effect of all of
counsel’s actions, all [the] allegations of ineffective assistance
should be reviewed together.” Rodriguez v. Hoke, 928 F.2d 534, 538
(2d Cir. 1991) (citing Strickland, 466 U.S. at 695–96). However,
-16-
Lewis has not demonstrated that any acts or omissions by his
attorney,
either
during
the
plea
process
or
at
trial,
“so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result[,]”
Strickland, 466 U.S. at 686. It follows that if Lewis cannot
establish his Strickland claim under a de novo standard, he cannot
obtain habeas relief under 28 U.S.C. § 2254(d)(1). See Richter, 131
S. Ct. at 788 (When Strickland and AEDPA “apply in tandem, review
is ‘doubly’ [deferential].”) (quotation omitted).
C.
Erroneous Admission of Out-Of-Court Statements (Ground
III & V)
1.
Confrontation Clause Violation
Lewis asserts that his rights under the Sixth Amendment’s
Confrontation Clause were violated when two police officers were
allowed to testify that they had informed Petitioner during his
interrogation that Switzer had implicated him in the crimes and
that there were witnesses who had identified him at the crime
scene. The Fourth Department held that although the codefendant’s
statement was testimonial under Crawford v. Washington, ___ U.S.
___, ___, 124 S. Ct. 1354, 1365 (2004), “it was not offered for the
truth of the facts asserted therein, but was instead offered to set
forth
the
culpability
circumstances
after
in
initially
which
[Petitioner]
denying
all
admitted
involvement
in
his
the
crimes[.]” People v Lewis, 11 A.D.3d 954, 782 N.Y.S.2d 321, 322 (4th
Dept.
2004)
(internal
citations
-17-
omitted)).
Thus,
the
Fourth
Department held, the use of the codefendant’s statement did not
violate the Confrontation Clause. Id. at 955-56 (quoting People v.
Reynoso, 2 N.Y.3d 820, 821 (2004) (quoting Crawford, 124 S. Ct. at
1369 n.9 (noting that “[t]he [Confrontation] Clause . . . does not
bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted”); other citation
omitted)). Moreover, the Fourth Department found, the trial court
“gave appropriate limiting instructions to the jury each of the
three times that the issue of the codefendant’s statement arose,
and it is presumed that the jury followed those instructions[.]”
Id. at 956. The Fourth Department’s adjudication of this claim on
the merits was not contrary to, or an unreasonable application of
clearly established Supreme Court precedent on this issue, as
discussed further below.
“The
Confrontation
Clause
of
the
Sixth
Amendment,
which
applies to the states through the Fourteenth Amendment, guarantees
the defendant in a criminal prosecution the right to confront the
witnesses against him.” Henry v. Speckard, 22 F.3d 1209, 1214
(2d Cir. 1994) (citation omitted). Thus, the Confrontation Clause
prohibits the prosecution from introducing testimonial hearsay
unless the declarant is unavailable to testify and the defendant
had a prior opportunity to cross-examine the declarant. Crawford,
541 U.S. at 53-57. The Supreme Court declined “to spell out a
comprehensive definition of ‘testimonial’” in Crawford, “stating
-18-
that, “[w]hatever else [the term] covers, it applies at a minimum
to prior testimony at a preliminary hearing, before a grand jury,
or at a former trial; and to police interrogations.”
541 U.S. at
68.
The Fourth Department correctly determined that Switzer’s
statements, made while he was being interrogated by the police,
were testimonial. Nevertheless, as the Fourth Department observed,
no Confrontation Clause issue was presented where, as here, the
out-of-court statements were admitted for purposes other than
showing the truth of the matter asserted in them. Crawford, 541
U.S. at 59 n. 9 (citing Tennessee v. Street, 471 U.S. 409, 414
(1985)); accord United States v. Logan, 419 F.3d 172, 177 (2d Cir.
2005).
Courts
routinely
have
allowed
the
introduction
of
out-of-court statements intended to explain how and why a defendant
made a confession and to rebut a defendant’s argument that the
confession was coerced. See, e.g., Street, 471 U.S. at 414; Harris
v. New York, 401 U.S. 222, 226 (1971) (holding that statements
elicited from a defendant in violation of his Miranda rights could
be introduced to impeach that defendant’s credibility when the jury
was instructed that the statements were not to be considered as
evidence of his guilt).
In Street, the clearly established Supreme Court precedent for
purposes of this claim, the defendant testified that his confession
was coerced in that it “was derived from a written statement that
-19-
Peele [, a non-testifying codefendant,] had previously given the
Sheriff [and that the Sheriff] read from Peele’s statement and
directed [Street] to say the same thing.” Street, 471 U.S. at 411.
In light of the differences between the two confessions, the
prosecutor had the sheriff read Peele’s confession. The Supreme
Court found that admission of Peele’s confession did not violate
the Confrontation Clause because “the prosecutor did not introduce
Peele’s out-of-court confession to prove the truth of Peele’s
assertions.”
471 U.S. at 413. In other words, Peele’s confession
was not hearsay under traditional rules of evidence and, in fact,
the nonhearsay use of Peele’s confession was critical to rebut
Street’s
testimony
that
his
own
confession
was
derived
from
Peele’s. Id. Before the sheriff read the accomplice’s statement to
the jury, “the trial judge twice informed the jury that it was
admitted ‘not for the purpose of proving the truthfulness of his
statement, but for the purpose of rebuttal only.’” Id. at 412
(quotation omitted). The trial court issued a similar limiting
instruction in its final instructions to the jury. Id.
The Supreme Court concluded that “[t]he nonhearsay aspect of
[the co-conspirator’s] confession—not to prove what happened at the
murder scene but to prove what happened when [the defendant]
confessed—raise[d] no Confrontation Clause concerns.” Id. at 414
(emphasis in original). The concern, rather, was that the jury
might use the co-conspirator's statement in a manner inconsistent
-20-
with the Confrontation Clause, i.e., to infer Street’s guilt even
though Street had not had an opportunity to cross-examine the
witness. Id. The Supreme Court detected no such problem in Street’s
case,
hold
that
“the
trial
judge’s
instructions
were
the
appropriate way to limit the jury’s use of [the co-conspirator’s
confession] in a manner consistent with the Confrontation Clause.”
Id. at 417. “Street makes clear that a jury’s understanding of the
distinction between substantive and impeachment uses of inculpatory
evidence cannot be taken for granted,” and therefore an appropriate
jury instruction “to prohibit jury misuse of such evidence . . .
was essential to the holding in Street.” Adamson v. Cathel, 633
F.3d 248, 258 (3d Cir. 2011) (footnote omitted).
Here,
the
Fourth
Department’s
rejection
of
Lewis’s
Confrontation Clause claim was a correct application of Street. The
prosecution introduced parts of Switzer’s confession “for the
legitimate, nonhearsay purpose,” Street, 471 U.S. at, of rebutting
Lewis’s claim that his own confession was coerced and a complete
fabrication. “The jury’s attention was directed to this distinctive
and limited purpose,” id., by the trial judge’s instructions,
issued
immediately
after
the
testimony
regarding
Switzer’s
statement. See id. (“[W]e hold that the trial judge's instructions
were
the
appropriate
co-conspirator’s
way
to
confession]
in
limit
a
the
manner
jury’s
use
consistent
of
[the
with
the
Confrontation Clause.”). Habeas relief therefore is unwarranted on
-21-
this claim. Cf. Adamson, 633 F.3d at 256 (“[T]he presentation at
[petitioner]’s trial of portions of his accomplices’ incriminating
statements, without a limiting instruction, was contrary to the
Supreme Court’s clearly established precedent in Street, which
required such an instruction.”) (emphasis supplied).
2.
Evidentiary Error
Petitioner argues that the references to the out-of-court
statements by Switzer violated his right to a fair trial. This
argument is also without merit. In determining whether a state
court’s alleged evidentiary error deprived a habeas petitioner of
a fair trial, federal habeas courts engage in a two-part analysis,
examining (1) whether the trial court’s evidentiary ruling was
erroneous under state law, and (2) whether the error amounted to
the denial of the constitutional right to a fundamentally fair
trial. Wade v. Mantello, 333 F.3d 51, 59-60 & n. 7 (2d Cir. 2003).
Here,
the
Fourth
Department
held
that
the
evidence
was
properly admitted. This was a correct ruling as a matter of
New York state law, which permits such testimony to be introduced
for the non-hearsay purpose of rebutting a defendant’s challenge to
the voluntariness of a confession. See, e.g., People v. Glover, 195
A.D.2d 999, 600 N.Y.S.2d 562, 562-63 (4th Dept. 1993) (“[I]n the
absence of circumstances involving physical force, voluntariness
may best be determined through an examination of the totality of
the circumstances surrounding the confession. Thus, the trial court
-22-
properly allowed testimony by the interrogating officer that he
told
defendant
he
disbelieved
defendant’s
initial
denial
of
participation in the burglaries because the officer possessed
information from someone that two black males and a car ‘very
similar’ to defendant’s car had been seen leaving the scene of the
burglary. It was not hearsay because the testimony was not offered
for its truth, but to establish the circumstances in which the
statement was obtained, and to rebut defendant’s argument that the
officer coerced or fabricated defendant’s statement.”) (internal
quotation marks and quotation omitted).
The
proffered
statements
by
Switzer
unquestionably
were
relevant, as they were offered by the prosecution to rebut the
defense claim of fabrication and explain why Petitioner had changed
his story and ultimately confessed to his participation in the
robberies (his “right-hand man” and other witnesses had inculpated
him, and his previous statement denying any involvement had been
exposed as a lie). In addition, each time the trial court admitted
evidence
concerning
the
out-of-court
statements,
it
gave
an
appropriate limiting instruction. See, e.g., Ramos v. Phillips,
No. 104-CV-1472-ENV, 2006 WL 3681150, at *8 (E.D.N.Y. Dec. 12,
2006) (denying habeas claim of evidentiary error where “[t]he
objected to evidence [a statement inculpating petitioner by his
girlfriend]
was
offered
to
dispel
the
defense
argument
that
petitioner’s confession may have resulted from police abuses.
-23-
Contrary to petitioner’s contention, the statement was not admitted
to explain and draw attention to his immediate reaction of silence”
and
“[m]ost
importantly,
when
the
trial
court
admitted
the
evidence, it gave an appropriate limiting instruction”) (footnote
omitted).
Finally, as discussed above in Section III.C.1, the admission
of Switzer’s out-of-court statements with appropriate limiting
instructions
was
not
incorrect
as
a
matter
of
federal
constitutional law. Habeas relief therefore is not warranted on
this claim.
3.
Petitioner
Erroneous Limiting Instructions
contends
that
the
trial
court’s
limiting
instructions to the jury regarding how they could use Switzer’s
statement deprived him of his due process right to a fair trial.
The Fourth Department held that the trial court “gave appropriate
limiting instructions to the jury each of the three times that the
issue of the codefendant’s statements arose, and it is presumed
that the jury followed those instructions[.]” People v. Lewis, 11
A.D.3d at 956 (citations omitted). The Fourth Department went on to
hold that because Lewis “did not request any further instructions
after the limiting instructions were given, his present contention
that the limiting instructions were inadequate is not preserved for
. . . review[.]” Id. (citation omitted). Although it appears that
the claim may be barred under the adequate and independent state
-24-
ground doctrine, Respondent has not raised the affirmative defense
of procedural default and arguably has waived it. See Gray v.
Netherland, 518 U.S. 152, 165-66 (1996). Rather than address the
procedural default issue, the Court proceeds, in the interest of
judicial efficiency, to the merits. Even under a de novo standard
of review, this claim does not warrant habeas relief.
Errors with respect to state jury instructions are generally
not grounds for federal habeas relief. See Gilmore v. Taylor, 508
U.S. 333, 343-44 (1993) (noting that the rule of Estelle v.
McGuire, 502 U.S. 55, 67-68 (1991), is that “instructional errors
of state law generally may not form the basis for federal habeas
relief”).
Before
a
federal
court
may
overturn
a
conviction
resulting from a state trial in which [an inadequate] instruction
was used, it must be established not merely that the instruction is
“undesirable, erroneous, or even universally condemned,” but that
it violated some federal constitutional right which was guaranteed
to the defendant by the Fourteenth Amendment. Cupp v. Naughten, 414
U.S. 141, 146 (1973). As discussed below, Lewis has not shown an
error of state law, much less an error of federal constitutional
magnitude.
At the appropriate times during the officers’ testimony, the
trial court gave the agreed-upon limiting instructions to the
effect that the statement was made, not for the truth of what that
fact is, but merely that it was said; and that the jury could not
-25-
use
it
as
evidence
that,
e.g.,
Switzer
stated
that
Lewis
participated in the crime. During Investigator Gropp’s testimony,
the trial court told the jury,
[T]his is a statement that’s being offered not for the
truth that it contains, but the fact it was said. In
other words, it’s only admitted [sic] that the officer
asked Mr. Lewis and posed that question to him with that
statement, but not for the truth that Benjamin Switzer
said he was involved.
T.387.
When Investigator Gropp testified that “Switzer put a gun in
his hand and put him shooting the victims. He [Lewis] denied having
a gun[,]” T.400, the trial court gave the following limiting
instruction:
[T]hat statement is admitted solely for the fact that it
was said, not the truth that it contains. And what I mean
by that is, you may not accept as true that witnesses
identified him with a gun. I mean at least from this
officer.
T.400-01.
Finally, when Investigator Dominick testified that he told
Lewis that his “friend Ben Switzer did implicate him in the
shooting,” T.435, the trial court issued the following instruction:
[T]his is being introduced for the fact it was said, not
the truth it contains. Namely, it’s not evidence of the
fact that Ben Switzer named him as a codefendant or that
other witnesses identified the defendant.
T.435. Notably, defense counsel did not take exception to any of
the three limiting instructions.
-26-
On appeal, Petitioner’s new counsel argued that there was no
possible
jury
instruction
that
could
have
ameliorated
the
prejudicial impact of the testimony, which he claimed violated
Bruton v. United States, 391 U.S. 123, 135-36 (1968) (holding that
a codefendant’s confession, which was inadmissible hearsay as to
Bruton,
could
accompanied
not
by
a
be
admitted
limiting
as
substantive
instruction).
evidence
However,
the
even
police
officers’ testimony concerning Switzer’s out-of-court statements
did not create a Bruton problem, because the jury was “pointedly
instructed by the trial court ‘not to consider the truthfulness of
[codefendant’s] statement in any way whatsoever.’” Street, 471 U.S.
at 412 (quotation to record omitted). Under these circumstances, a
court may
“rely
on
the
‘crucial assumption’
that
the
jurors
followed ‘the instructions given them by the trial judge.’” Id. at
415 (quoting Marshall v. Lonberger, 459 U.S. 422, 438, n. 6 (1983)
(quotation and some internal quotation marks omitted)). Thus,
contrary to Petitioner’s contention, it is simply incorrect as a
matter of law that jury instructions cannot ameliorate any possible
harm from the introduction of a co-defendant’s statement for
legitimate nonhearsay purposes.
The Court notes that the trial judge’s phraseology at times
was inartful, such as when he stated the evidence was not being
admitted “for the truth it contains”. Petitioner argues that this
statement implied that Switzer’s statements were true and thereby
-27-
negatived any curative effect of the instructions. It is well
established, however, that a challenged instruction “‘may not be
judged in artificial isolation,’ but must be considered in the
context of the instructions as a whole and the trial record.”
Estelle v. McGuire, 502 U.S. at 72 (quoting Cupp v. Naughten, 414
U.S. at 147). The trial court went on to explain what it meant by
that statement, e.g., that the jury could “not accept as true that
witnesses identified him with a gun.” When read in context, the
jury instructions conveyed the correct legal principles to the
jury. The Court cannot find that the instructions “so infused the
trial with unfairness as to deny due process of law[,]” Lisenba v.
California, 314 U.S. 219, 228 (1941), and therefore habeas relief
is
not
warranted.
See
McGuire,
502
U.S.
at
75
(“While
the
instruction was not as clear as it might have been, we find that
there is not a ‘reasonable likelihood’ that the jury would have
concluded that this instruction, read in the context of other
instructions, authorized the use of propensity evidence pure and
simple.”) (quotation omitted).
IV.
Petitioner’s Motion for Reconsideration
Motions for reconsideration are assessed under a very strict
standard. Virgin Atlantic Airways, Ltd. v. National Mediation Bd.,
956 F.2d 1245, 1255 (2d Cir. 1992). Because “[r]econsideration of
a previous order by the Court is an extraordinary remedy to be
employed sparingly in the interests of finality and conservation of
-28-
scarce judicial resources[,]” R.F.M.A.S., Inc. v. So, 640 F.
Supp.2d 506, 509 (S.D.N.Y. 2009) (quotation marks and citation
omitted), motions for reconsideration are granted only where the
moving party is able to point to some controlling decision or other
material “that might reasonably be expected to alter the conclusion
reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995). Although a court may grant the motion “to
correct a clear error of law or prevent manifest injustice,”
reconsideration should not be granted where the moving party seeks
only to relitigate an issue already decided. Munafo v. Metro.
Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004).
Petitioner here seeks to relitigate issues that already have
been decided, assailing the Court’s Decision and Order regarding
the motion to amend as “self-conflicting, bias, unilateral, and
basically unfair, and unbalanced.” Petitioner’s Response, ¶39 (Dkt.
#36). However, Petitioner has not directed the Court’s attention to
any controlling authority that it overlooked. See Eisemann v.
Greene, 204 F.3d 393, at 395 n. 2 (2d Cir. 2000) (“To be entitled
to reargument, a party ‘must demonstrate that the Court overlooked
controlling decisions or factual matters that were put before it on
the underlying motion.’”) (quotation omitted). Rather, a reasonable
interpretation of Petitioner’s motion is that it repeats arguments
that
were
already
fully
considered
-29-
by
the
Court.
The
Court
therefore adheres to its original ruling regarding the motion to
amend.
V.
Conclusion
For the foregoing reasons, Rommel Lewis’s request for a writ
of
habeas
corpus
is
denied,
and
the
petition
(Dkt.
#1)
is
dismissed. The motion for reconsideration (Dkt. #36) is denied with
prejudice. Because Lewis has failed to make a substantial showing
of a denial of a constitutional right, the Court declines to issue
a certificate of appealability. See 28 U.S.C. § 2253(c)(2). The
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and FED. R. APP.
P. 24(a)(3), that any appeal from this Decision and Order would not
be taken in good faith and therefore the Court denies leave to
appeal as a poor person. See Coppedge v. United States, 369 U.S.
438, 445-46 (1962).
Any application for leave to appeal in forma pauperis must be
made to the Second Circuit Court of Appeals in accordance with FED.
R. APP. P. 24(a)(1), (4), & (5). See id. Petitioner must file any
notice of appeal with the Clerk’s Office, United States District
Court, Western District of New York, within thirty (30) days of the
date of judgment in this action.
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
July 17, 2012
-30-
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