Opinion
00 CIV. 1357 (SAS)
July 31, 2001
Wilfredo Gonzalez, Petitioner pro se.
Edward Rodriguez, Assistant Attorney General For Respondent.
OPINION AND ORDER
Pro se petitioner Wilfredo Gonzalez seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his July 28, 1993 state conviction for Robbery in the First Degree. Petitioner is presently incarcerated in Shawangunk Correctional Facility in Walkill, New York, serving consecutive prison terms of nine to eighteen years for this robbery and six to twelve years for a different robbery.
In his petition, Gonzalez asserts five grounds for habeas relief: (1) the prosecutor withheld written reports and audio tapes of a key government informant in violation of Rosario and Brady; (2) the prosecutor's summation was improper; (3) the prosecutor intentionally excluded "fifty percent" of potential African American jurors from serving on the jury in violation of Batson; (4) the trial court improperly admitted evidence relating to uncharged crimes; and (5) the trial court altered its Sandoval ruling as a sanction for petitioner's use of the term "mistrial." For the reasons set forth below, the petition is denied.
People v. Rosario, 213 N.Y.S.2d 448(1961) (government must provide defendant with pre-trial statements of prosecution witnesses).
Brady v. Maryland, 373 U.S. 83(1963) (government must provide defendant, prior to trial, with exculpatory material or material favorable to the defense).
There seems to be some discrepancy as to petitioner's race. In his petition Gonzalez asserts that he is "Afro-American," but the trial record indicates that he is Hispanic. See 1/04/00 Petition for a Writ of Habeas corpus ("Petition") ¶ 17; see also Transcript of March 23, 1993 trial ("Tr.") at 57-81.
Batson v. Kentucky, 476 U.S. 79(1986) (the government cannot eliminate jurors based solely on their race).
People v. Sandoval, 34 N.Y.2d 371(1974) (a pre-trial hearing may be used to make an advance ruling about the prosecutor's right to use defendant's prior convictions or prior commission of specific vicious, immoral or criminal acts to impeach a defendant's trial testimony).
I. BACKGROUND
A. Factual Background
In early April 1992, Gonzalez, Kenny Cajigas, and Angel Alvarado planned to rob the Sam Goody's store where Cajigas previously worked. See Tr. at 336-44, 455-56. On April 18, the day before the scheduled robbery, Alvarado backed out. See id. at 337-38, 342, 352-54, 412. Petitioner quickly recruited a friend, a man referred to as "Chubs," to take Alvarado's place. See id.
Petitioner, Cajigas, and Chubs met early in the morning of April 18 to discuss their plan. See id. at 336-37, 342-44. The three decided that petitioner would carry out the robbery, Chubs would back him up, and Cajigas would be the getaway driver. See id. at 342-44. They then drove to midtown and parked on Fifty-Second Street. See id. at 347-49. When Sam Goody's opened at ten in the morning, petitioner and Chubs loaded and concealed their guns, left petitioner's van, and entered the store. See id. at 347-49, 352-56, 461.
Petitioner idled in the "cassette singles" section for an abnormally long period of time. See id. at 190-93, 196-97. Sandra Parra, Sam Goody's head cashier, observed petitioner's suspicious behavior and eventually asked him if he needed help. See id. at 193-97, 218-26. He declined her offer and then disappeared into a crowd of customers. See id. at 193-197. Parra next saw petitioner about fifteen minutes later, when he was sprinting out of the back office. See id. at 103-04, 227-28.
Meanwhile, Christine Laliberte, the store's manager, had gone to the back office to perform managerial duties. See id. at 57-60. Laliberte was standing with her back to the door when petitioner entered the office.See id. at 63-64. Petitioner said "this is a robbery," pulled out his gun, and pointed it at Laliberte. See id. at 63-81. He ordered her to open the safe and place the money into a bag. See id. at 64-79. She complied. See id. Petitioner, keeping his gun aimed at Laliberte, ordered her to go into the men's room and "count to two hundred loudly." See id. at 79-80. He then fled the store. See id. at 82-85, 199-200.
Petitioner and Chubs returned to the getaway van with a bag full of money. See id. at 350-57, 462-65. The three accomplices drove to petitioner's home where they divided their loot. See id. at 357-64.
On May 29, 1992, Cajigas, Alvarado, and two other men robbed a Lechter's Housewares store in Manhattan. This robbery was unsuccessful and Cajigas was captured. See id. at 332-35, 393-98. In September 1992, Cajigas pled guilty to the Lechter's robbery and was promised a favorable prison sentence if he would give truthful testimony about his cohorts. See id. at 382-84. On June 3, 1992, Laliberte positively identified petitioner in a police line-up. See id. at 118-22, 243-44.
B. Procedural Background
1. Petitioner's Two Trials
Petitioner's first trial for the Sam Goody's robbery began on September 24, 1992. See Government's Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus ("Gov't. Mem.") at 6 n. 6. The jury was unable to reach a unanimous verdict and, on December 10, 1992, a mistrial was declared. See id. A second trial began on March 23, 1993. See Brief for Respondent ("Resp. Brief"), Ex. C to 3/14/01 Affirmation of Assistant Attorney General Edward Rodriguez ("Rodriguez Aff."), at 3. At that trial, both Laliberte and Parra testified that they were certain petitioner was the man who committed the robbery. See Tr. at 118-22, 243-44. Cajigas also testified about petitioner's role in the Sam Goody's robbery. See id. at 277-365.
2. Sandoval Decisions
At the Sandoval hearing before petitioner's first trial, the court ruled that the prosecution could question petitioner about multiple threats allegedly made to Cajigas because the threats indicated "consciousness of guilt" and "the probative value of [petitioner's] behavior outweighed its prejudicial impact." See Resp. Brief at 48. At the Sandoval hearing before the second trial, the court reserved its decision as to whether or not it would permit questioning about petitioner's alleged threats to Cajigas. See id. at 49. The court then warned petitioner to stop threatening and harassing Cajigas and that if petitioner continued to disobey the court's admonitions, his behavior could be used against him. See id. Despite these warnings, petitioner continued to harass Cajigas, to the point where Cajigas had to be housed "at massive expense, out of the jail system." See id. at 51; Tr. at 529-30.
Despite multiple orders to keep petitioner and Cajigas separate, they were repeatedly "inadvertently" incarcerated near each other. See Resp. Brief at 49-52.
When petitioner took the witness stand at his second trial, he promptly disobeyed another ruling by using the word "mistrial." See Resp. Brief at 50. The court decided that petitioner's disobedience was a "cool and calculat[ed]" attempt to "subvert justice." See id. at 51. At this point, the court determined that "the probative value of this behavior outweighed its prejudicial impact" and allowed the government to question petitioner on a limited basis about his threats to Cajigas. See id. at 48-53.
3. The Conviction
On April 2, 1993, after a jury trial, petitioner was convicted of Robbery in the First Degree in violation of section 160.15(4) of the New York Penal Law. See Resp. Brief at 3. Petitioner was sentenced, as a second felony offender, to consecutive prison terms of nine to eighteen years for the robbery of which he was convicted, and six to twelve years for robbing a Manhattan leather goods store. See id. ¶ 13.
Petitioner pled guilty on July 28, 1993 to a March 13, 1992 robbery of a Manhattan leather goods store. See Gov't. Mem. at 2.
4. State Court Appeals
Petitioner appealed his conviction to the Appellate Division, First Department, on at least eight different grounds. See Brief for Appellant ("App. Brief"), Ex. B to Rodriguez Aff., at i-iii. These grounds are summarized below.
(1) Violation of Rosario and Brady by failing to provide "more than `one and a half minutes' out of six hours of an audio taped interview" of Cajigas. Id. at 18-26;
(2) failure to provide petitioner with a detective's typewritten report prior to the Wade hearing, requiring remand for new Wade hearing. See id. at 26-31;
United States v. Wade, 388 U.S. 218, 242-43(1967) (defendant is entitled to pretrial hearing at which witnesses testify to identification of defendant).
(3) exclusion of "fifty percent of potential black jurors in the jury panel from serving on the jury," violating Batson. Id. at 31-36;
(4) Cajigas was impermissibly allowed to testify about petitioner's "uncharged and previously undisclosed `bad acts' evidence." Id. at 36-42;
(5) the trial court erred when it permitted the prosecutor to cross-examine petitioner about prejudicial "bad acts" evidence, a propensity to commit robberies, and failed to "[i]ssue a limiting instruction as to the permissible use of such evidence." Id. at 42-56;
(6) Sandoval ruling violated petitioner's right to a fair trial. See id. at 56-61;
(7) prosecutor made improper comments during summation. See id. at 61-69;
(8) if petitioner's conviction for the Sam Goody's robbery is overturned, then his guilty plea to robbing the leather goods store must also be vacated. See id. at 26-31.
On September 2, 1998, the Appellate Division, First Department, unanimously affirmed petitioners's conviction. See New York v. Gonzalez, 680 N.Y.S.2d 187 (1st Dep't 1998). By letter to the Court of Appeals, dated October 16, 1998, petitioner requested leave to appeal. See 10/16/98 Letter from Petitioner to the Honorable Judith Kaye, Chief Judge of the New York State Court of Appeals, Ex. E to Rodriguez Aff. On January 21, 1999, the Court of Appeals issued a certificate denying petitioner leave to appeal. See 1/21/99 Certificate Denying Leave, Ex. F to Rodriguez Aff.
II. LEGAL STANDARD
Gonzalez's petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA, which modified 28 U.S.C. § 2254, created a new standard of review for federal courts to apply when reviewing habeas corpus petitions. See 28 U.S.C. § 2254; see also Williams v. Taylor, 529 U.S. 362, 404-14 (2000); Whittman v. Sabourin, No. 00 Civ. 2867, 2001 WL 687369, at *2 (S.D.N.Y. June 18, 2001). The standard now states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudcated on the merits in State court proceedings unless the adjudication of the claim — (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 a State court proceeding.28 U.S.C. § 2254(d).
A state court decision is "contrary to" clearly established federal law if: (1) the state court reaches a different result than that mandated by the Supreme Court when presented with facts that are "materially indistinguishable from a relevant Supreme Court precedent;" or (2) the state court "applies a rule that contradicts the governing law set forth in Supreme Court cases." See Williams, 529 U.S. at 404-05; Whittman, 2001 WL 687369, at *2. A state court's decision is not an "unreasonable application" of federal law if the state court's application of federal law was merely "erroneous" or "incorrect." See Williams, 529 U.S. at 405-06, 412-13; see also Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). Rather, the state court's application of federal law must be "objectively unreasonable" in order to justify habeas relied under 28 U.S.C. § 2254. See Williams, 529 U.S. at 405-06, 412-13; see also Francis S., 221 F.2d at 111.
III. DISCUSSION
A. Exhaustion of State Remedies
A petitioner seeking federal habeas corpus review of his state conviction is required to exhaust available state remedies by "present[ing] his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). In order to exhaust his state remedies, a petitioner must "fairly present" the federal constitutional claims to the state courts. Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).
Petitioner has exhausted all available state remedies concerning the claims presented in the instant petition. Petitioner raised each of these issues (and many more) when he directly appealed his conviction to the Appellate Division, First Department. See App. Brief at i-iii. As his letter seeking leave to appeal included each of these claims, petitioner fairly presented his claims to the Court of Appeals. See Morgan v. Bennet, 204 F.3d 360, 370-71 (2d Cir. 2000); Whittman, 2001 WL 687369, at *3
B. Petitioner's Rosario Claim Is Not Reviewable
Federal habeas corpus review is "limited to deciding whether a conviction violated the Constitution, laws, or treaties of, the United States." Estelle v. McGuire, 502 U.S. 62, 68(1991). Federal courts are barred from considering the merits of a federal claim in a habeas corpus petition when it is clear that a state court would deny the claim based on "adequate and independent state ground[s]." See Coleman v. Thompson, 501 U.S. 722, 729(1991).
Petitioner's first claim alleges that the government withheld evidence in violation of Rosario and Brady. However, "[F]ederal courts have consistently held that Rosario claims are not subject to federal habeas corpus review because they `arise exclusively under state law.'"Whittman, 2001 WL 687369 at *3 (quoting Moe v. Walker, No. 97 Civ. 4702, 1999 WL 58691, at *4 (S.D.N.Y. Feb. 5, 1999)). Therefore, petitioner'sRosario claim fails to present a federal question for this Court's review.
C. Petitioner's Brady Claims Are Without Merit
Petitioner claims that he was entitled to the entire six-hour audiotaped interview of Cajigas under Brady, and that the prosecution's refusal to give him the entire audiotape violated his rights to a fair trial and due process of law. See Petition ¶ 15. Though the interview did not contain information directly exculpating plaintiff, the government admits that it "contained significant impeachment material" relating to Cajigas. Gov't. Mem. at 10. Specifically, Cajigas admitted to a variety of, criminal acts — he "discussed approximately 30 crimes, which he, defendant and others had committed, including seven or eight robberies and the purchase and sale of guns." See Resp. Brief at 69. Petitioner claims these admissions would have impeached Cajigas' credibility such that had the audiotape been produced, petitioner would not have been convicted. See Petition ¶ 15.
The government had good reasons for not producing the entire audiotape. Petitioner had been accused of offering another inmate over $1,000 to kill Cajigas and the government feared apprising petitioner of other potential witnesses. See Resp. Brief at 47-49, 70-72, 80-84. The government also sought to avoid warning petitioner of pending investigations. See id.
The Brady rule requires that the government disclose material evidence favorable to the defendant. See United States v. Bagley, 473 U.S. 667, 675(1985). In order for evidence to be material, "more is required than just the mere possibility that the undisclosed evidence might have helped the defense or even affected the outcome of the trial." Maldonado v. Giambrum, No. 98 Civ. 0058, 1998 WL 841488, at *3 (S.D.N.Y. Dec. 3, 1998) (citing United States v. Agurs, 427 U.S. 97, 109-10(1976)). Indeed, "evidence is material only if there is a reasonable probability" that the disclosure of the evidence would have changed the verdict. Maldonado, 1998 WL 841488, at *3 (citing Bagley, 473 U.S. at 682); see also Strickler v. Green, 527 U.S. 263, 280(1999); Giglio v. United States, 405 U.S. 150 (1972).
If "the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material." United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998) (citing United States v. Helmsley, 985 F.2d 1202, 1210 (2d Cir. 1993)). Here, the jury was made abundantly aware that Cajigas had an extensive criminal history. The undisclosed evidence on the audiotape was therefore cumulative "and hence not material." Avellino, 136 F.3d at 257.
There are several reasons why full disclosure of all of Cajigas' admissions of prior criminal acts would not have altered the verdict. First, the government freely admitted that Cajigas was a criminal. See Resp. Brief at 82-83. Indeed, his value as a witness depended on the criminal acts he committed with petitioner. See id. at 82-84. Second, petitioner was already aware of most of the impeachment material contained in the audiotape. See id. at 81-82. Third, the defense's failure to cross-examine Cajigas about some of the crimes he had committed was largely due to the defense's fear of "opening the door" to the fact that petitioner was an accomplice to most of those crimes. See id. at 81-83. Fourth, there was adequate evidence to convict petitioner even if the jury disbelieved all of Cajigas' testimony. Two eyewitnesses identified petitioner as the robber and his various alibis were contradictory and unpersuasive. See Tr. at 118-22, 197-99, 243-44, 759-69. These reasons make it exceedingly probable that petitioner would have been convicted even if the prosecution had produced the entire audiotape to the defense.
Petitioner also claims that the government violated Brady when it failed to provide him with a detective's typewritten report prior to hisWade hearing. See Petition ¶ 16. The government admits that the detective's notes were lost and therefore not produced to petitioner. However, petitioner was provided with essentially the same information contained in the lost notes through other documents and through testimony from the detective who recalled in substantial detail the contents of his notes. See Resp. Brief at 35-40. The trial court therefore denied petitioner's request for a second Wade hearing. See id.
If the government fails to provide the defendant with exculpatory evidence but "the defendant is aware of the essential facts enabling him to take advantage of any exculpatory evidence, the Government does not commit a Brady violation." United States v. Brown, 582 F.26 197, 200 (2d Cir. 1978). Here, petitioner was made aware of the essential facts prior to or at the Wade hearing. See Resp. Brief at 35-40. Furthermore, the information in question had little or no substantive impact on the outcome of the criminal case. There is no "reasonable probability" that the disclosure of the lost notes would have affected the verdict. See Maldonado, 1998 WL 841488, at *3.
Petitioner simply cannot show that the state court's decision in refusing to remand for a second Wade hearing was "contrary to" or involved an "unreasonable application" of the Brady standard. Accordingly, habeas relief is denied on petitioner's Brady claim.
D. Petitioner's Allegations About the Summation Are Procedurally Barred Except for the "Vouching" Allegation Which Lacks Merit
In order to raise a legal issue on appeal, a defendant must have preserved the claim by objecting at trial and alerting the court to the specific error. See New York Criminal Procedure Law § 470.05(2). Petitioner raised only one objection during summation: "[v]ouching." See Tr. at 755. This objection was insufficient to alert the state courts to any other federal constitutional issues raised in regard to the summation. The Appellate Division, First Department found "[D]efendant's challenges regarding the prosecutor's summation remarks are unpreserved."Gonzalez, 680 N.Y.S.2d at 188. Accordingly, aside from the vouching objection, petitioner's other objections to the summation are procedurally barred.
However, petitioner's objection to alleged prosecutorial vouching was adequately preserved and is not procedurally barred. See People v. Lombardo, 61 N.Y.2d 97, 104(1984). The defense summation attacked Laliberte's integrity and credibility as a witness. See Tr. at 709-37. During his summation, the prosecutor defended Laliberte's testimony by stating: "I submit she was a pretty bold woman because she looked him in the eye and said that was the man that did it. She was sure that was the man who did it." Id. at 754. The prosecutor further stated: "Kristen Laliberte was robbed and she was a dam (sic) good witness. She told you what happened." Tr. at 755. Petitioner's counsel immediately objected.See id.
Prosecutorial statements vouching for the credibility of witnesses are generally improper "because in doing so [the prosecutor] may make an issue of his own credibility or imply that his opinion rests on evidence outside the trial record." Jones v. Vacco, No. 95 Civ. 10755, 1997 WL 278050, at *9 (S.D.N.Y. May 23, 1997) (citing United States v. Eltayib, 88 F.3d 157, 172 (2d Cir. 1996)) However, "a court must consider whether the summation reflects improper vouching when viewed as a whole." Jones, 1997 WL 278050, at *9 (citing Eltayib, 88 F.3d at 173).
Significantly, the standard this Court must apply is whether or not the prosecutor engaged in "constitutionally cognizable misconduct." Bodine v. Brunelle, No. 97-CV-575, 2000 WL 362027, at *17 (W.D.N.Y. Mar. 29, 2000). For habeas relief to be granted, the misconduct must have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotingKotteakos v. United States, 328 U.S. 750, 776 (1946)). The existence of an alleged constitutional violation based on prosecutorial misconduct is determined by judging "the fairness of the trial, not the culpability of the prosecutor." Bodine, 2000 WL 362027 at *12 (citing Smith v. Phillips, 455 U.S. 209(1982)). In order to merit habeas relief, a prosecutorial statement must "so infect . . . the trial with unfairness as to make the resulting conviction a denial of due process." See Darden v. Wainwright, 477 U.S. 168, 182(1986) (no denial of due process where the overwhelming evidence against the petitioner was so great that it "reduced the likelihood that the jury's decision was influenced"); Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990).
Given the fact that the prosecutor was paraphrasing witness testimony and rebutting defense attacks, his comments did not constitute impermissible vouching. See People v. Bailey, 58 N.Y.2d 272, 277(1983) (during summation a prosecutor may argue for the credibility of government witnesses); People v. Ashwal, 39 N.Y.2d 105, 109-10(1976) (during summation a prosecutor may comment on evidence admitted in trial and should be given "the widest latitude . . . in advocating his cause").
Even assuming that the prosecutor impermissibly vouched government witnesses, habeas relief is still not warranted. The prosecutor's comments were isolated and largely paraphrased witness testimony. See Tr. at 754-56. Furthermore, the trial court issued a limiting instruction instructing the jury that it was "not bound to accept the . . . lawyers' argument" and that "the opening and closing arguments of the lawyers . . . were not evidence in and of themselves." See id. at 774, 791. Given the overwhelming evidence against petitioner, it is exceedingly improbable that the prosecutor's vouching deprived petitioner of a fair trial. Accordingly, petitioner's writ of habeas corpus must be denied on this ground.
E. Petitioner's Batson Claim Is Without Merit
In Batson, the Supreme Court held that peremptory challenges cannot be used for the purpose of excluding potential jurors solely on the basis of race. Batson, 476 U.S. at 89. The Second Circuit recently summarized a trial court's Batson obligations:
In assessing a challenge under Batson, a trial court must (1) decide whether the defendant has made a prima facie showing that the prosecutor has exercised a peremptory strike on the basis of race; (2) if so, decide whether the prosecutor has satisfied the burden of coming forward with a race neutral explanation for striking the potential juror; and (3) make a determination whether the defendant has carried his burden of proving purposeful discrimination.Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000) (citing Batson, 476 U.S. at 96-98).
The Second Circuit has held that the preliminary question of whether defendant made a prima facie showing is "a mixed question of law and fact." See United States v. Alvarado, 891 F.2d 439, 443 (2d Cir. 1989),judgment vacated on other grounds, 497 U.S. 543(1990); Millan v. Keane, No. 97 Civ. 3874, 1999 WL 178790, at *3 (S.D.N.Y. Mar. 31, 1999); see also United States v. Bergodere, 40 F.3d 512, 516 (1st Cir. 1994); but see United States v. Matha, 915 F.2d 1220, 1222 (8th Cir. 1990) (holding that whether the defendant has made a prima facie showing under Batson is a question of fact). Thus, petitioner's habeas claim must fail unless he can demonstrate that "the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." Millan, 1999 WL 178790, at *3 (quoting 28 U.S.C. § 2254(d)(1)).
In determining whether the defendant has made a prima facie showing, the trial court should consider "how many members of the cognizable racial group are in the venire panel from which the petit jury is chosen, the pattern of strikes against racial group jurors in the particular venire, the prosecutor's statements and questions . . . as well as any other relevant circumstances." Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998).
Here, petitioner claims that "[n]umerous potential jurors were systematically removed by the prosecutrix (sic) for no other cause than that they were African American." Petition ¶ 17. The record does not support this assertion. During voir dire, defense counsel twice objected to the prosecution's striking of minority jurors. The first time he protested "disproportionate amount." See Voir Dire Transcript ("VD") at 116. The judge responded: "Denied. I keep a chart of everybody's ethnic background." See id. at 116-17.
Later on in the voir dire proceedings the defense attorney made anotherBatson challenge, alleging "a disproportionate striking of black jurors with a sprinkling of strikes against white jurors I think only to cover it." VD at 238. The defense attorney alleged that the government had struck "one, two, three, four . . . over fifty percent" of African American jurors. See id. The judge responded that there was "no basis in law or fact" for defendant's claims. See id. at 239. He pointed out that one of the four jurors in question had been struck by the defendant and another one of the prosecution's strikes was appropriate because the potential juror was "not taking the case seriously." See id. at 239-40. Furthermore, the record reflects that the government had "kept as many black hispanic jurors on the jury as [it had] eliminated" and "struck a minority of black as opposed to Caucasian jurors." See id. at 116, 238.
The defendant has the "burden of producing a record in support of a prima facie case of purposeful discrimination." United States v. Sangineto-Miranda, 859 F.2d 1501, 1520 (6th Cir. 1988). Here, to the extent the record is preserved, it is not favorable to petitioner's claim. Petitioner makes his case more difficult by failing to allege that the prosecution made any "statements or questions" from which a discriminatory intent could be inferred. See Tankleff, 135 F.3d at 249. In fact, petitioner's attorney only alleged a "disproportionate amount" of strikes. See VD, at 116, 237-40. Assuming this allegation to be correct (though the record reveals it is not), "reliance on percentages (such as 50%) alone does not make a prima facie case under any standard."United State's v. Lewis, 892 F.2d 735, 736 (8th Cir. 1989); see Millan, 1999 WL 178790, at *6. Moreover, the fact that there were several minorities on the jury, though not dispositive, is evidence of the government's lack of purposeful discrimination. See VD at 116, 236-38, 244; McCain v. Gramley, 96 F.3d 288, 292 (7th Cir. 1996); Millan, 1999 WL 178790, at *4.
In light of the record, this Court cannot conclude that the trial court's decision in denying petitioner's Batson challenge was contrary to clearly established federal law or represented an unreasonable application of such law. Accordingly, petitioner's habeas claim is denied with respect to his Batson challenge.
F. Petitioner's Improper Bad Acts Claim Is Without Merit
Petitioner alleges that his due process right to a fair trial was violated when Cajigas testified about uncharged crimes in which petitioner allegedly participated. Federal courts reviewing state evidentiary matters can only issue a writ "where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial."Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (quoting Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983)) (internal emphasis omitted). "[T]he introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence "is so extremely unfair that its admission violates fundamental conceptions of justice.'"Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Dowling v. United States, 493 U.S. 342, 352(1990)).
Under New York law, "evidence of uncharged criminal conduct is inadmissible if the purpose is to establish a predisposition to commit the crime charged." People v. Fiore, 34 N.Y.2d 81, 84(1974). However, "in some cases, evidence of uncharged crimes is admissible to provide a complete picture of events." People v. Brown, 554 N.Y.S.2d 492, 496 (1st Dep't 1990). If "evidence was received for the purpose of completing the narrative . . . [t]he probative value of the background evidence received [may] outweigh . . . any prejudice to defendant." See id. at 494.
Petitioner's allegations mischaracterize the trial record. Cajigas did not identify specific uncharged crimes, as petitioner alleges. See Resp. Brief at 41. Rather, in the course of describing the Sam Goody's robbery, Cajigas generally alluded to petitioner's prior criminal conduct. See Tr. at 277-365. For example, Cajigas testified that he was surprised by the amount of loot they had stolen in the Sam Goody's robbery because "most of the times [sic] we only got about $10,000." See Tr. at 363-64. Although this statement shows that Cajigas had previously committed robberies as part of a group, it did not specifically mention petitioner. Moreover, this comment was tangential, isolated, and necessarily suspect as it came from a cooperator who had a strong interest in inculpating petitioner in order to reduce his own, sentence. As such, its admission did not deprive petitioner of a fundamentally fair trial.
Petitioner also takes issue with Cajigas' testimony that on the day before the robbery, petitioner fired a gun from his roof in preparation for the robbery. Given the overwhelming evidence against petitioner, testimony describing the firing of a gun from a rooftop is not the sort of bad act testimony that can support a violation of due process. See Rodriguez v. O'Keefe, No. 96 Civ. 2094, 1996 WL 428164, at *4 (S.D.N.Y. July 31, 1996) (where the evidence of a defendant's guilt is overwhelming, the admission of evidence of a lessor statutory offense is not a violation of due process sufficient to merit habeas relief). Admission of this testimony clearly did not render the trial "so extremely unfair" as to "violate fundamental conceptions of justice." See Dunnigan, 137 F.3d at 125. Therefore, habeas relief must be denied on this ground.
Because this testimony was necessary to complete the narrative of the robbery, it was admissible under New York law. See People v. Alvino, 71 N.Y.2d 233, 241(1987); Fiore, 34 N.Y.2d at 84; Brown, 554 N.Y.S.2d at 442.
G. Petitioner's Sandoval Claim Is Without Merit
Petitioner claims the trial court impermissibly altered its Sandoval ruling to allow the admission of inadmissible evidence as a sanction for petitioner's use of the word "mistrial." The trial judge had repeatedly instructed petitioner not to refer to the prior proceeding as a mistrial. Petitioner nonetheless did so when he took the stand. Sandoval rulings are "only redressable in a federal habeas corpus proceeding if . . . the particular errors were of constitutional magnitude." Hunter v. Greiner, No. 99 Civ. 4191, 2000 WL 245864, at *4 (S.D.N.Y. Mar. 3, 2000) (citing Benitez v. Senkowski, No. 97 Civ. 7819, 1998 WL 668079, at *7 (S.D.N.Y. Sept. 17, 1998)). In order to merit habeas relief, evidentiary errors must be "so pervasive so as to have denied [petitioner] a fundamentally fair trial." Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985).
A trial court's Sandoval ruling must balance the probative value of "prior specific criminal, vicious and immoral acts" against any prejudicial effect that the introduction of such acts on cross-examination may have. Sandoval, 34 N.Y.2d at 373, 376-77. A trial court must use its discretion to determine which "prior specific criminal vicious and immoral acts" to admit, if any. Id. A trial court. is not required to re-open a pre-trial hearing or hold another hearing before amending its earlier ruling. See Palmieri v. Defaria, 88 F.3d 136, 139 (2d Cir. 1996.); People v. Schwerbel, 638 N.Y.S.2d 198, 199 (3d Dep't 1996).
The trial court's amended Sandoval ruling may have been punitive in part, but it was certainly not an "error of constitutional magnitude."Hunter, 2000 WL 245864, at *4. Because the ruling was legally correct, the court's motive in issuing the ruling is irrelevant. Petitioner's threats to Cajigas were deemed admissible because they were indicative of petitioner's guilt and his desire to subvert the truthseeking process. The prosecutor was properly allowed to raise these threats on cross-examination. Moreover, the court gave a limiting instruction — restricting the testimony's use to evaluating petitioner's credibility, see Tr. at 785 — which the jury is presumed to have followed. See Shannon v. United States, 512 U.S. 573, 585(1994). Therefore, the introduction of these threats did not deny petitioner a fundamentally fair trial. Accordingly, petitioner's writ of habeas corpus is denied on this ground.
In fact, the amended Sandoval ruling is the same ruling made at petitioner's first trial, see supra Part I.B.2, where the trial judge admitted petitioner's threats against Cajigas without considering petitioner's failure to comply with a court order.
IV. CONCLUSION
For the reasons set forth above, petitioner's motion for habeas corpus relief is denied. Because petitioner failed to make a "substantial showing of the denial of a constitutional right" a certificate of appealability is denied. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (holding that substantial showing exists where (i) the issues involved in the case are debatable among jurists of reason, or (ii) a court could resolve the issues in a different manner, or (iii) the questions are adequate to deserve encouragement to proceed further), cert. denied, 531 U.S. 873(2000). The Clerk of the Court is directed to close this case.
SO ORDERED