     11-1650-pr
     Norcott Corby v. Dale Artus, et ano


 1                        UNITED STATES COURT OF APPEALS
 2                             FOR THE SECOND CIRCUIT
 3                                August Term 2011
 4          (Argued: April 24, 2012            Decided: October 10, 2012)
 5                            Docket No. 11-1650
 6   --------------------------------------------------------x

 7   NORCOTT CORBY,

 8         Petitioner-Appellee,

 9                           -- v. --

10   DALE ARTUS and ERIC T. SCHNEIDERMAN,1

11         Respondents-Appellants.

12   --------------------------------------------------------x

13   B e f o r e :     WINTER, WALKER and CABRANES, Circuit Judges.

14         Appeal from a judgment of the United States District Court for

15   the Southern District of New York (Laura T. Swain, Judge) granting

16   a writ of habeas corpus to petitioner-appellee.        The district court

17   held that the New York Court of Appeals erred in concluding that

18   the state trial court permissibly barred cross-examination of the

19   main prosecution witness on the issue of whether she had accused

20   petitioner-appellee of the crimes in question only after being told

21   that petitioner-appellee had accused her.        On appeal, respondents-

22   appellants, New York authorities, argue that petitioner-appellee’s

23   Confrontation Clause rights were not violated and that even if they

24   were, any violation was harmless.         We agree that no Confrontation

     1
       The Clerk of the Court is directed to amend the official caption
     as set forth above to reflect the substitution of the current New
     York Attorney General. See Fed. R. App. P. 43(c)(2).

                                           1
 1   Clause violation occurred and therefore REVERSE the judgment of the

 2   district court.

 3                                   KAREN SCHLOSSBERG, Assistant
 4                                   District Attorney (Alan Gadlin,
 5                                   Assistant District Attorney, on the
 6                                   brief), for Cyrus Vance, Jr.,
 7                                   District Attorney, New York County,
 8                                   NY, for Respondents-Appellants.
 9
10                                   ALAN S. AXELROD, Legal Aid Society,
11                                   New York, NY, for Petitioner-
12                                   Appellee.
13

14   JOHN M. WALKER, JR., Circuit Judge:

15        Respondents-appellants are the Superintendent of New York’s

16   Clinton Correctional Facility and the Attorney General of the State

17   of New York (together, the “State”).   The State appeals from a

18   judgment of the United States District Court for the Southern

19   District of New York (Laura T. Swain, Judge) granting a writ of

20   habeas corpus to petitioner-appellee Norcott Corby, a New York

21   state inmate by virtue of his New York state convictions for

22   second-degree murder and first-degree robbery.   The district court

23   determined that the state trial court violated Corby’s

24   Confrontation Clause rights when it prohibited him from cross-

25   examining the prosecution’s principal witness about whether she had

26   accused Corby of the crimes at issue only after being told that

27   Corby had accused her.   The district court held that the New York

28   Court of Appeals misapplied U.S. Supreme Court precedent in

29   upholding the trial court’s ruling and that this error was not

30   harmless.

                                       2
 1        On appeal, the State contends that Corby’s Confrontation Clause

 2   rights were not violated at his trial and that even if they were,

 3   any violation was harmless.   We agree with the State that no

 4   Confrontation Clause violation occurred and therefore REVERSE the

 5   judgment of the district court.

 6                                 BACKGROUND

 7         The factual and procedural history of this case is set forth

 8   in the prior opinions of the district court and state courts.     See

 9   Corby v. Artus, 783 F. Supp. 2d 547, 550-53 (S.D.N.Y. 2011); People

10   v. Corby, 6 N.Y.3d 231, 232-34 (2005); People v. Norcott, 15 A.D.3d

11   14, 15-18 (1st Dep’t 2004).   For present purposes, it suffices to

12   summarize the background for this appeal as follows:

13   I.    Factual Background

14         Corby was tried and convicted by a jury in New York Supreme

15   Court for second-degree (felony) murder and first-degree robbery,

16   see N.Y. Penal Law §§ 125.25(3), 160.15(2), in connection with the

17   death of Yousef Mohammed.   Mohammed was a drug dealer from San

18   Francisco who had traveled to New York City to sell heroin to

19   Corby.   He was killed in the apartment of Xanderia Burnett, who was

20   the prosecution’s principal witness against Corby, and the only

21   witness who testified directly about the events surrounding

22   Mohammed’s death.

23         Burnett testified as follows: She agreed to let Corby –- who

24   previously had dated her mother and whom she had not seen in years

25   -- use her Upper Manhattan apartment to conduct his drug deal with

                                       3
 1   Mohammed in exchange for $1500.   On the night of the deal, she saw

 2   Corby and two of his associates go into a back room in her

 3   apartment, presumably where Mohammed was waiting.      When they

 4   emerged, Burnett saw Mohammed lying on a bed, dead, with his hands

 5   tied behind his back and blood pouring out of his head.      At Corby’s

 6   instruction, Burnett helped Corby and his associates steal drugs

 7   from Mohammed’s hotel room, remove Mohammed’s body from her

 8   apartment and clean up the blood.       After the murder, Corby

 9   continued to stay at Burnett’s apartment for several months.       He

10   threatened to kill her and her family if she reported him.

11        Approximately a week after the murder, New York police

12   officers discovered Mohammed’s body in a gutter.      They found

13   Burnett’s contact information in Mohammed’s hotel room and

14   Detective John Bourges, who was in charge of investigating

15   Mohammed’s death, visited Burnett’s apartment.      Burnett, who

16   testified that Corby threatened to kill her son if she spoke to

17   Bourges about the murder, claimed to know nothing about it.

18        In April 1996, Corby was sentenced to prison on an unrelated

19   parole violation.   Burnett testified that the following January,

20   after she learned that Corby was being released, she moved with her

21   family to Philadelphia because she still feared him.      She admitted

22   to having stolen money that Corby left behind in her apartment.

23        In April 1998, following his release from prison, Corby met

24   with Agent Robert Hom of the DEA, seeking to become a paid

25   informant.   He also sought the DEA’s help in tracking down Burnett,

                                         4
 1   who, he explained, had stolen from him.   Hom refused the offer and

 2   suggested that Corby report the theft to local authorities, which

 3   Corby declined to do.   About a week later, Corby returned and

 4   provided Hom with specific information about certain drug-related

 5   crimes.   In particular, he told Hom that he had distributed heroin

 6   for Yousef Mohammed and that Burnett “might have been involved” in

 7   Mohammed’s death.   Corby claimed that he had been in Burnett’s

 8   apartment with Burnett, Mohammed and another, that he left to visit

 9   his parole officer, and that Mohammed was dead when he returned.

10   While Corby admitted to helping dispose of Mohammed’s body, he

11   claimed not to have been involved in the murder itself.    Hom

12   relayed this conversation to Detective Bourges.

13        In July 1998 –- more than two years after Mohammed’s murder --

14   Bourges and another detective paid Burnett another visit, this time

15   at her Philadelphia residence.    Burnett claimed not to recognize a

16   photograph of Mohammed.   Bourges then told Burnett that he had

17   spoken with Corby and that Corby had accused Burnett of murdering

18   Mohammed.   This statement was incorrect for two reasons: Corby had

19   met with DEA Agent Hom, not Bourges, and Corby had only said that

20   Burnett “might have been involved” in Mohammed’s murder.   But,

21   after hearing about Corby’s alleged accusation, Burnett began

22   crying and accompanied the detectives to the local precinct, where

23   she was given Miranda warnings.   There, for the first time, Burnett




                                        5
 1   implicated Corby in Mohammed’s death.   Corby was arrested several

 2   months later.2

 3         While the foregoing account of Corby’s April 1998 interview

 4   with Hom and of Bourges’s subsequent visit to Burnett’s

 5   Philadelphia residence was elicited at a pretrial hearing, not all

 6   of this information was made explicit to the jury at Corby’s trial.

 7   Specifically, although the jury learned that Corby had spoken with

 8   the DEA about Mohammed’s murder, and that Bourges later discussed

 9   that meeting with Burnett, the jury never was explicitly told that

10   Corby claimed that Burnett “might have been involved” in Mohammed’s

11   murder or that Bourges later told Burnett (incorrectly) that Corby

12   had accused her of the crime.

13   II.   Corby’s Trial and the Cross-Examination at Issue

14         In November 1998, a New York grand jury indicted Corby for

15   second-degree murder and first-degree robbery in connection with

16   Mohammed’s death.   In March 2000, Corby was tried by a jury in New

17   York Supreme Court for these crimes, convicted on both counts and

18   sentenced to concurrent prison terms of 25 years to life and 12 1/2

19   to 25 years, which he is currently serving.

20         At trial, Corby’s lawyer cross-examined Burnett -- the sole

21   testifying witness to the murder -- about her personal history, her

22   account of Mohammed’s murder and her accusation of Corby.   In

23   particular, counsel focused on Burnett’s delayed implication of


     2
       Bourges did not arrest Corby’s associates because he ultimately
     was unable to locate them.

                                       6
 1   Corby in Mohammed’s murder.    Corby’s lawyer confronted Burnett with

 2   her original claim to law enforcement that she knew nothing of

 3   Mohammed’s murder.   He elicited that Burnett did not accuse Corby

 4   of this crime until after Bourges visited her in Philadelphia and

 5   told her (incorrectly) that Bourges -- rather than Agent Hom -- had

 6   met with Corby.   And he established that, after Bourges told

 7   Burnett about that meeting, Bourges took Burnett to the local

 8   precinct and gave her Miranda warnings.

 9        The trial court, however, sustained the prosecution’s

10   objection when Corby’s attorney began to inquire into what Bourges

11   had told Burnett about the substance of Corby’s alleged meeting

12   with Bourges.   The trial judge and counsel for both sides then

13   engaged in a lengthy colloquy over what Corby’s lawyer hoped to

14   elicit from Burnett and why.   Corby’s lawyer explained that he

15   wanted the jury to learn that Bourges told Burnett that Corby had

16   accused her of murdering Mohammed and that it was only then that

17   Burnett accused Corby of the crime.    The defense’s theory was that

18   Burnett and another had murdered Mohammed, and that when Burnett

19   learned of Corby’s accusation against her, she acquired a strong

20   motive to lie and shift the blame falsely to Corby.   Counsel

21   explained that he wanted to craft the cross-examination question to

22   identify Corby as the source of the accusation against Burnett

23   because Burnett would have feared that the police would find such

24   an accusation credible, as it would have come from an “individual

25   who was there, and saw [Burnett] do it.”   Appendix (“A.”) 104.

                                        7
 1   Later, however, Corby’s attorney proposed a compromise in which he

 2   would leave Corby’s name out and ask Burnett only whether Bourges

 3   had told her that someone –- without specifying who –- had accused

 4   her of the murder.

 5        The trial court agreed with the prosecution that the sought

 6   cross-examination was improper.    It noted that, up to that point in

 7   the trial, it had given Corby’s lawyer “every latitude” in cross-

 8   examining Burnett.   Id. at 110.   And, while Corby had the right to

 9   offer evidence that Burnett had killed Mohammed and that she

10   therefore had a motive to falsely accuse Corby, the issue was how

11   Corby could introduce such evidence.   The judge concluded that the

12   line of questioning sought by Corby’s attorney invited the jury to

13   speculate about whether Corby in fact had accused Burnett.     The

14   trial court was worried that, by cross-examining Burnett as to what

15   Bourges said Corby had said, Corby’s attorney was trying to

16   introduce to the jury through cross-examination (1) Corby’s defense

17   that Burnett had killed Mohammed, and (2) Corby’s statement

18   implicating her in the crime.   The judge said he found this

19   troublesome because Corby’s implication of Burnett was unreliable

20   (Corby had made it self-servingly while seeking the DEA’s help in

21   tracking down Burnett) and Bourges told Burnett something different

22   from what Corby had told DEA Agent Hom.   The trial court was

23   worried that introducing such an accusation this way was unduly

24   prejudicial to the government because the prosecution could not




                                        8
 1   cross-examine Corby, who was protected by the Fifth Amendment and

 2   did not testify, as to the accusation’s veracity.

 3        The trial court ruled that, while Corby’s lawyer could ask

 4   Burnett whether Bourges had told her that he had spoken with Corby

 5   about Mohammed’s murder, counsel could not inquire into the

 6   substance of what Bourges claimed Corby had said.   It further

 7   observed that if Corby wanted to introduce an accusation against

 8   Burnett, he could take the stand himself and be subject to cross-

 9   examination on the accusation.   The trial court rejected Corby’s

10   lawyer’s compromise suggestion that he be allowed to ask Burnett

11   whether Bourges had said that some unidentified person had accused

12   Burnett of the murder.   In the judge’s view, counsel still was

13   trying to introduce an accusation that was made in unreliable and

14   self-serving circumstances without permitting cross-examination of

15   that accusation.

16        Following the trial court’s ruling, Corby’s lawyer continued

17   his cross-examination of Burnett, which included the following

18   exchange:

19        Q. What actually happened was, after Bourges confronted
20        you with information, he then asked you to come with him
21        to a police station; right?
22
23        A. I broke down in my kitchen.
24
25        Q. Yes.
26
27        A. Right after that.
28
29        Q. You began to cry?
30
31        A. Then I went to the precinct.

                                       9
 1
 2        Q. Then you were asked to accompany the detective to the
 3        precinct; right?
 4
 5        A. Yes.
 6
 7        Q. In a police car?     You went to the precinct; right?
 8
 9        A. Yes.
10
11        . . .
12
13        Q. [The police detectives] sat you down, right?
14
15        A. Yes.
16
17        Q. They told you they wanted to talk to you; is that
18        right?
19
20        A. Yes.
21
22        Q. And then they read you your Miranda rights; right?
23
24        A. Yes.
25
26        Q. They told you that anything you said could be used
27        against you; right?
28
29        A. Yes.
30
31        Q. And that’s the first time you told any police officer
32        that Norcott Corby was involved in this case; right?
33
34        A: Yes.

35   Id. at 137-39.

36   III. Procedural Background

37        Corby challenged his conviction, first through the New York

38   state appellate courts and now through federal habeas review.

39        A.      Direct Appeal

40        Among Corby’s points on direct appeal, he argued that the

41   trial court had violated his Confrontation Clause rights under the


                                        10
 1   U.S. Constitution by precluding him from asking Burnett whether

 2   Detective Bourges told her that Corby had accused her of Mohammed’s

 3   murder before she first implicated Corby.

 4         In December 2004, the Appellate Division rejected Corby’s

 5   argument.   People v. Norcott, 15 A.D.3d 14 (1st Dep’t 2004).      The

 6   panel majority stated that “a strong argument” could be made that

 7   the trial court properly exercised its discretion in excluding the

 8   testimony, but that it was not necessary to decide the issue

 9   because any error was harmless, given that Burnett’s “motive to lie

10   was abundantly clear to the jury.”     Id. at 23.   The dissent,

11   however, would have overturned the conviction because, in its view,

12   Corby’s right of cross-examination was “eviscerated” because the

13   trial court had prevented Corby from asking the “key question” of

14   what prompted Burnett to “change her mind,” i.e., to point the

15   finger at Corby after more than a year of not doing so.     Id. at 34

16   (Andrias, J., dissenting).    It opined that this question was

17   probative of Burnett’s “motive to fabricate evidence against” Corby

18   not only to “divert attention from her admitted participation,” but

19   also “in revenge for [Corby] allegedly implicating her.”     Id. at

20   32.

21         In December 2005, the New York Court of Appeals affirmed the

22   decision of the Appellate Division.    People v. Corby, 6 N.Y.3d 231

23   (2005).   Unlike the state intermediate court, the Court of Appeals

24   reached the question of whether the trial court had erred, and

25   determined that it had not.   The Court of Appeals held that the

                                       11
 1   ruling was a proper exercise of the trial judge’s discretion and

 2   that Burnett’s motive to lie and to implicate Corby was apparent

 3   notwithstanding the challenged evidentiary ruling.    It reasoned

 4   that “[a]ny additional evidence of Burnett’s bias or motive to lie

 5   . . . would have been cumulative and of little probative value,”

 6   whereas Corby’s requested cross-examination “would have caused jury

 7   speculation and confusion as to the truth of [the] purported

 8   accusation.”   Id. at 236.   In dissent, Judge George Bundy Smith

 9   concluded that the trial court’s ruling was erroneous.    Like the

10   dissenter in the Appellate Division, he determined that the trial

11   court’s ruling prevented Corby from eliciting that Burnett had a

12   specific motive to retaliate against Corby for his alleged

13   accusation by pointing the finger back at him.    Id. at 239-40 (G.B.

14   Smith, J., dissenting).

15        B.   This Habeas Petition

16        Following the New York Court of Appeals’s affirmance of his

17   conviction, Corby filed a 28 U.S.C. § 2254 petition in the district

18   court for a writ of habeas corpus.     The magistrate judge’s report

19   and recommendation to the district court concluded that the New

20   York Court of Appeals’s ruling was “in harmony with Supreme Court

21   jurisprudence.”    Corby v. Artus, No. 06 Civ. 15291 (LTS) (KNF),

22   2008 WL 8430550, at *10 (S.D.N.Y. Sept. 10, 2008).    The district

23   court disagreed.   Like the dissenting opinions from the state

24   appellate courts, the district court believed that “the exclusion

25   of evidence regarding the alleged accusation eliminated a specific,

                                       12
 1   prototypical ground for bias from the jury’s consideration”:

 2   retaliation bias.   Corby v. Artus, 783 F. Supp. 2d 547, 556

 3   (S.D.N.Y. 2011).    The district court concluded that the state trial

 4   court had exceeded its discretion by prohibiting “all inquiry into

 5   [this] one prototypical form of bias.”     Id. at 557.   It went on to

 6   conclude that the error was not harmless, id. at 557-59, and

 7   therefore granted the writ.   The State appeals.

 8                                 DISCUSSION

 9        The sole claim before us is whether the New York Court of

10   Appeals erred in upholding the state trial court’s limitation of

11   Corby’s cross-examination of the prosecution’s principal witness,

12   Burnett.   Corby argues that the state trial court’s ruling deprived

13   him of his Sixth Amendment right to confront witnesses against him

14   and that the Court of Appeals misapplied Sixth Amendment precedent

15   in concluding otherwise.

16   I.   Right of Cross-Examination

17        “The Confrontation Clause of the Sixth Amendment guarantees

18   the right of an accused in a criminal prosecution ‘to be confronted

19   with the witnesses against him.’”      Delaware v. Van Arsdall, 475

20   U.S. 673, 678 (1986) (quoting U.S. Const. amend VI).     It affords a

21   defendant “a meaningful opportunity to cross-examine witnesses

22   against him in order to show bias or improper motive for their

23   testimony.”   Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008).

24   “[A] criminal defendant states a violation of the Confrontation

25   Clause by showing that he was prohibited from engaging in otherwise

                                       13
 1   appropriate cross-examination designed to show a prototypical form

 2   of bias on the part of the witness.”   Van Arsdall, 475 U.S. at 680.

 3          The right of cross-examination, however, is not absolute.

 4   “[T]he Confrontation Clause guarantees an opportunity for effective

 5   cross-examination, not cross-examination that is effective in

 6   whatever way, and to whatever extent, the defense might wish.”

 7   Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)

 8   (emphasis omitted).   A trial judge retains “wide latitude” to

 9   restrict cross-examination “based on concerns about, among other

10   things, harassment, prejudice, confusion of the issues, the

11   witness’ safety, or interrogation that is repetitive or only

12   marginally relevant.”   Van Arsdall, 475 U.S. at 679; see also

13   Watson v. Greene, 640 F.3d 501, 510 (2d Cir. 2011) (the “decision

14   to restrict cross-examination will be reversed only when the court

15   has abused its broad discretion” (internal quotation marks

16   omitted)).    “To determine the propriety of cross-examination, as

17   with other determinations of admissibility of evidence, courts

18   balance prejudice versus probative value.”   Watson, 640 F.3d at

19   510.

20   II.    Standard of Review

21          We review a district court’s ruling on a petition for a writ

22   of habeas corpus de novo.   Overton v. Newton, 295 F.3d 270, 275 (2d

23   Cir. 2002).

24          A federal habeas application by a state inmate may not be

25   granted regarding a claim that was “adjudicated on the merits” in

                                       14
 1   state court unless that adjudication resulted in either “a decision

 2   that was contrary to, or involved an unreasonable application of,

 3   clearly established Federal law, as determined by the Supreme Court

 4   of the United States,” or “a decision that was based on an

 5   unreasonable determination of the facts.”    28 U.S.C. § 2254(d)(1),

 6   (2).   Corby contends that his petition falls in the former category

 7   because the New York Court of Appeals unreasonably applied the

 8   Supreme Court’s Confrontation Clause jurisprudence in affirming the

 9   state trial court’s limitation of his cross-examination of Burnett.

10   See, e.g., Williams v. Taylor, 529 U.S. 362, 409-13 (2000); Cotto

11   v. Herbert, 331 F.3d 217, 247-48 (2d Cir. 2003).

12   III. Analysis

13          We agree with the analysis of the New York Court of Appeals

14   that the state trial court did not abuse its discretion in limiting

15   Corby’s cross-examination of Burnett.    See Corby, 6 N.Y.3d at 235-

16   36.    Corby was able to show that Burnett had a motive to lie to

17   deflect the investigators’ attention from herself, given her deep

18   involvement in the events surrounding Mohammed’s murder: the murder

19   occurred in her apartment and she helped steal drugs from the

20   victim, remove the body from the apartment and clean up the blood.

21   And the evidence of Burnett’s hostility towards Corby –- her

22   testimony that he had threatened her and her family, and her

23   admission that she had stolen from him –- established that, to the

24   extent she would falsely accuse anyone, Corby was “the most

25   plausible candidate.”   Id. at 235.    Thus, any additional evidence

                                       15
 1   of Burnett’s motive to falsely shift blame to Corby would have been

 2   cumulative and of little additional probative value, but would have

 3   been unduly prejudicial to the prosecution for the reasons stated

 4   at sidebar by the state trial court.   The limitation of Corby’s

 5   cross-examination of Burnett therefore was not an abuse of

 6   discretion.

 7        Corby, however, argues that, even if the jury heard some

 8   evidence of Burnett’s motive to lie and to implicate him, the state

 9   trial court’s ruling had the effect of prohibiting all inquiry into

10   “retaliation bias,” i.e., Burnett’s alleged motivation to retaliate

11   against Corby for his alleged accusation against her by pointing

12   the finger back at him.   For this argument, Corby relies on the

13   Supreme Court’s statement in Van Arsdall that:

14        [A] criminal defendant states a violation of the
15        Confrontation Clause by showing that he was prohibited
16        from engaging in otherwise appropriate cross-examination
17        designed to show a prototypical form of bias on the part
18        of the witness, and thereby to expose to the jury the
19        facts from which jurors could appropriately draw
20        inferences relating to the reliability of the witness.
21
22   475 U.S. at 680 (internal quotation marks and modification

23   omitted).   The Appellate Division dissent, Norcott, 15 A.D.3d at

24   32, 35 (Andrias, J., dissenting), the New York Court of Appeals

25   dissent, Corby, 6 N.Y.3d at 238-39 (G.B. Smith, J., dissenting),

26   and the district court, Corby, 783 F. Supp. 2d at 554, all were

27   persuaded by this retaliation-bias argument and relied on Van

28   Arsdall in concluding that Corby’s conviction should be overturned.

29   For two reasons, we disagree with their conclusion.

                                      16
 1        A.     Corby Failed to Argue Retaliation Bias at Trial

 2        At the sidebar regarding Corby’s cross-examination of Burnett,

 3   Corby’s lawyer did not argue that the sought cross-examination

 4   would be relevant to prove retaliation bias.    Instead, he contended

 5   that (1) he wanted to ask about the relayed accusation against

 6   Burnett to prove that she had a motive to shift blame away from

 7   herself, and (2) he wanted the jury to know that the accusation

 8   came from Corby because in that case, Burnett’s motive to lie would

 9   be greater, as she would fear that the authorities would believe an

10   accusation coming from someone who had witnessed the events in

11   question.   Later, Corby’s lawyer even proposed a compromise that

12   would have foreclosed any retaliation argument: he would forgo

13   specifying that Corby was the person who had accused Burnett if he

14   could ask only whether some unidentified person had accused her.

15   Because the retaliation-bias argument was not presented to the

16   trial judge, it could not have been an abuse of that judge’s

17   discretion not to rule in Corby’s favor on this basis.   See Fuller

18   v. Gorczyk, 273 F.3d 212, 222 (2d Cir. 2001).

19        In a subsequent motion, made to and denied by the state trial

20   court after Burnett was dismissed as a witness, Corby “request[ed]

21   that either Ms. Burnett be recalled for further cross-examination

22   solely with regard to [her motive to lie], or that a mistrial be

23   granted.”   Supplemental Appendix 3.   One statement in that motion

24   -– specifically, the second sentence of the following passage --

25   arguably implied the retaliation-bias theory of relevance:

                                       17
 1        [W]ere the jury to hear that the defendant was accusing
 2        her, then the jurors would have a fact from which they
 3        could infer that she has a specific motive to cast blame
 4        on another. Were the Jury to hear that it was the
 5        defendant who was accusing her, then the jurors would
 6        have a fact from which they could infer that Ms. Burnett
 7        has a particular motive to lie against this defendant.
 8        Were the jury to hear that the defendant was accusing
 9        her, and that the Detective was confronting her with this
10        material, then the jurors would have a fact from which
11        they could infer that she has a motive to avoid being
12        investigated herself.
13
14   Id. at 7-8.   We conclude, however, that this single statement, read

15   in the context of this passage and buried in counsel’s motion, was

16   not sufficient to alert the trial judge to a new theory of

17   retaliation-bias relevance.   The motion was backward-looking –- it

18   argued that the trial court had “created error of Constitutional

19   dimension,” id. at 3, and that the “restriction [imposed] was

20   fundamental error,” id. at 4.   To that end, it reiterated the

21   arguments advanced at the sidebar, and nowhere suggested that it

22   was advancing a new theory of relevance.   The state trial judge was

23   not required to read between the lines of counsel’s motion to

24   divine a previously unasserted legal theory, and it would undermine

25   our system of federalism to disturb a state-court conviction on

26   federal habeas review based on that judge’s failure to do so.

27        B.   The Desired Testimony Was Admitted by Implication

28        Furthermore, and in any case, our precedent makes clear that

29   the facts Corby sought to elicit from Burnett were effectively

30   before the jury at his trial.




                                      18
 1        In Bruton v. United States, 391 U.S. 123 (1968), the Supreme

 2   Court held that a defendant’s right to confront witnesses includes

 3   the right not to have the incriminating hearsay statements of non-

 4   testifying co-defendants admitted against him.   In Mason v. Scully,

 5   16 F.3d 38 (2d Cir. 1994), we held that the Bruton principle must

 6   be applied to exclude testimony when an arresting officer would

 7   testify that after a conversation with a co-defendant, he went

 8   looking for the defendant, because that testimony implies that the

 9   co-defendant had accused the defendant.   Id. at 42-44; see also

10   Ryan v. Miller, 303 F.3d 231, 250 (2d Cir. 2002) (“The relevant

11   question is whether the way the prosecutor solicited the testimony

12   . . . ma[d]e obvious to the jury the content of the conversation --

13   an accusation against [the defendant] -- and the source . . . even

14   though it did not directly state this information.”).

15        Here, without objection, Corby’s lawyer elicited from Burnett

16   the very information that would require exclusion under Mason and

17   Ryan because it demonstrates the accusation; namely, that (1)

18   Detective Bourges claimed to have met with Corby and discussed

19   Mohammed’s murder, (2) Bourges proceeded to track down Burnett in

20   Philadelphia and tell her about his purported conversation with

21   Corby, and (3) at that point, Burnett broke down in tears and was

22   taken in a police car to the police station, where she was given

23   Miranda warnings.   As recognized by Mason and Ryan, the plain

24   implication of this chronology was the substance of that which

25   Corby argues he was unable to present to the jury: that Burnett

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 1   believed Corby had implicated her in Mohammed’s murder when she

 2   first accused him.   It therefore cannot be said that Corby was

 3   precluded from “expos[ing] to the jury the facts from which the

 4   jurors could appropriately draw inferences relating to the

 5   reliability of” Burnett, Van Arsdall, 475 U.S. at 680, specifically

 6   as to whether she accused him in retaliation for his accusation

 7   against her.   Consequently, there was no violation of Corby’s

 8   Confrontation Clause rights.

 9                                  *    *     *

10        Because we hold that no constitutional violation occurred, we

11   need not consider whether any error was harmless.      We note,

12   however, that the district court applied an incorrect harmless

13   error standard (harmless beyond a reasonable doubt) in this case.

14   Corby, 783 F. Supp. 2d at 557-58.       While the test on direct appeal

15   is whether a constitutional error was harmless beyond a reasonable

16   doubt, see Chapman v. California, 386 U.S. 18, 24 (1967), in

17   deciding federal habeas claims by state prisoners, because of the

18   deference we afford to state courts, we “find an error harmless

19   unless it had substantial and injurious effect or influence in

20   determining the jury’s verdict.”    Fry v. Pliler, 551 U.S. 112, 116

21   (2007) (citations and internal quotation marks omitted).

22                                  CONCLUSION

23        We have considered all of Corby’s arguments on appeal and find

24   them to be without merit.   The district court’s order granting

25   Corby’s petition for a writ of habeas corpus is REVERSED.

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