  10-3119
  Whitley v. Ercole



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                         August Term, 2010

                      (Argued: December 2, 2010             Decided: June 7, 2011)

                                       Docket No. 10-3119-pr

                                           ——————

                                         DARRYL WHITLEY,

                                         Petitioner-Appellee,
                                                 – v.–

                                    ROBERT ERCOLE,
   IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY,

                                       Respondent-Appellant.1


                                           ——————

Before: RAGGI, LIVINGSTON, and CHIN, Circuit Judges.

        Petitioner-appellee Darryl Whitley (“Whitley”) commenced this action in the United States

District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) seeking a writ

of habeas corpus to overturn his conviction in New York State court on one count of murder.

Petitioner, whose first trial on these charges resulted in a hung jury, principally challenges admission

at his second trial of the transcript of testimony offered by a State witness at the first without

informing the jury that the witness had, since the first trial, “recanted.” The district court granted

the petition, finding Sixth and Fourteenth Amendment error in the trial court’s admission of the

transcript without disclosing to the jury the ostensible recantation. Because we conclude that the


        1
            The Clerk of Court is directed to amend the caption to read as shown above.

                                                   1
claim was not properly raised and preserved before the trial court and was thus procedurally

defaulted under New York state law, we reverse the judgment of the district court and remand for

further proceedings not inconsistent with this opinion.

                       REVERSED AND REMANDED.

                                           ——————

                       BARRY ROBERT OSTRAGER (Juan A. Arteaga, on the brief), Simpson Thacher
                       & Bartlett LLP, New York, New York, for Petitioner-Appellee.

                       DANA POOLE, Assistant District Attorney (Alan Gadlin, Assistant District
                       Attorney, on the brief), on behalf of Cyrus R. Vance, Jr., District Attorney,
                       New York County, New York, New York, for Respondent-Appellant.

                                           ——————

DEBRA ANN LIVINGSTON, Circuit Judge:

       On November 2, 1981, a young doctor and soon-to-be-father was shot and killed in a petty

street robbery gone awry outside of Columbia Presbyterian Hospital in the Washington Heights

neighborhood of Manhattan. The ensuing investigation led New York City police to petitioner-

appellee Darryl Whitley, who was arrested and tried on one count of felony murder in the second

degree. Whitley’s first trial resulted in a hung jury. At his second trial, the State presented, inter

alia, three witnesses who took the stand and testified that Whitley had admitted his involvement in

the murder. On this record, a properly instructed state court jury returned a verdict of guilty on the

sole count of the indictment. On direct appeal, New York’s Appellate Division affirmed the

conviction, People v. Whitley, 14 A.D.3d 403 (1st Dep’t 2005), and the New York Court of Appeals

denied leave to appeal, People v. Whitley, 4 N.Y.3d 892 (2005).

       Whitley then filed the instant action in the Southern District of New York (Alvin K.

Hellerstein, Judge), seeking a writ of habeas corpus relieving him from the state court judgment of

                                                  2
conviction. See 28 U.S.C. § 2254.2 His petition principally challenges the admission, at his second

trial, of the transcript of testimony offered by a State witness at his first trial after that witness, Glenn

Richardson, invoked his Fifth Amendment right against self-incrimination and refused to participate

in the second proceeding. Whitley, who contends that Richardson “recanted” his testimony from

the first trial, argues that admission of the transcript at the second trial, without mention of the

ostensible “recantation,” violated his clearly established federal rights. Despite the fact that New

York State’s Appellate Division rejected the very same claim on direct appeal on the ground that

Whitley had failed properly to raise and preserve it before the trial court, the district court declined

to deem the claim procedurally defaulted and instead proceeded to address its merits. The court

found that even though no request was ever made by Whitley’s trial counsel to admit the alleged

“recantation,” the trial court’s failure to ensure that the jury heard of it at the second trial rendered

this trial “unfair,” thereby violating his Sixth and Fourteenth Amendment rights.

        Because the Appellate Division correctly determined that Whitley failed to lodge a

contemporaneous objection before the trial court and thus to preserve the federal claim for appellate

review as required by well-established state law, see N.Y. Crim. Proc. Law § 470.05(2), we

conclude that its decision affirming the conviction rests on a state law ground independent of the

federal claim and adequate to support the judgment. Accordingly, federal habeas review of

Whitley’s claim is foreclosed. We thus reverse the judgment of the district court.




        2
        As discussed further below, Whitley also commenced a proceeding pursuant to New
York Criminal Procedure Law § 440.10 in state court collaterally challenging his conviction.
Judge Hellerstein stayed the federal action during the pendency of this collateral challenge,
proceeding to address the federal claim only after Whitley had been denied relief in state court.

                                                     3
                                     I.    BACKGROUND

       On November 2, 1981, Dr. John Chase Wood was returning to work a night shift at

Columbia Presbyterian Hospital after visiting his pregnant wife at home when he was set upon by

two young men seeking prescription drugs and blank prescription forms. When Dr. Wood was

unable to produce either, the men began to accost him, searching his person for anything of value.

The young doctor resisted and, in the ensuing scuffle, one of the assailants produced a .22 caliber

handgun and fired two shots, one of which pierced the victim’s chest. Dr. Wood died shortly

thereafter at the same hospital at which he had worked until that night.

       The robbery and murder remained unsolved for over a decade while New York City

detectives pursued various leads. The investigation ultimately led police to two men: Patrick

Raynard McDowell and petitioner Whitley. Whitley was indicted on felony murder charges in

March 1995 and was thereafter tried.3

                                          A. The Trials

               1.     Whitley’s First Trial

       Whitley’s first trial took place in November-December 1997. The government’s evidence

consisted principally of the testimony of an eyewitness to the crime, Dorothy Howze, and three

friends of Whitley’s—Gregory Howard, Donald Caines, and Glenn Richardson. Howze testified

to having seen two teenagers approach Dr. Wood on the night in question before an argument ensued

and shots were fired. Howze, who was able to pick McDowell out of a photo array, further testified

that, shortly after the gunfire, one of the “kids” said “something to the effect of . . . it wasn’t



       3
        McDowell was indicted in 1994. His first trial resulted in a hung jury. McDowell was
subsequently retried and acquitted in 1997.

                                                 4
necessary” to which the other replied “it just happened.”

       The State’s other principal witnesses, Howard, Caines, and Richardson—all of whom were

longtime friends of Whitley’s with criminal records of their own—testified, in sum and substance,

that Whitley had admitted his involvement in the crime in separate, private conversations with each

of them. Howard, for example, testified to a conversation the two men had shortly after Howard was

arrested and questioned “concerning [the] doctor that got killed.” According to Howard’s testimony,

when he subsequently spoke with Whitley about the incident, Whitley stated: “It was me and

[McDowell] that did the doctor.” Caines similarly testified that, while incarcerated with Whitley

in 1983, Whitley confessed to him that Whitley and McDowell “did the doctor.”

       Richardson, who testified pursuant to a cooperation agreement with federal authorities in

connection with pending federal charges against him, testified that he, Whitley, and McDowell grew

up together on the same block in Harlem. In the fall of 1981, McDowell asked Richardson for a gun

and Richardson loaned him a .22 caliber handgun. According to Richardson, when he attempted to

retrieve the gun shortly after he first heard about the murder of Wood, McDowell refused to return

it because it was “dirty”—that is, it had been used in a crime. Richardson then attempted to confirm

this with Whitley. According to Richardson’s testimony, when asked about the gun, Whitley

replied: “[D]id [you] hear about the doctor being killed on Riverside Drive[]?” When Richardson

acknowledged that he had heard about “the doctor,” Whitley “got silent” and then “in pig latin” said

“he didn’t have to do that.” Prompted by the prosecutor, Richardson then added that “I think”

Whitley also said that Whitley and McDowell were on Riverside Drive, looking for someone to rob,

when the doctor “came along and [McDowell] shot him.”

       All four witnesses were subject to extensive cross-examination. With respect to Whitley’s



                                                 5
three acquaintances, defense counsel elicited that each had a lengthy criminal history of his own and

that each received various benefits in return for his testimony. With respect to Richardson in

particular, defense counsel also inquired into a letter Richardson had previously written to the judge

presiding over the pending federal charges against him, alleging that he had been pressured by the

New York City detectives investigating the Wood homicide who, according to Richardson, seemed

“very eager” to solve this “high profile case with a lot of press.” Richardson further conceded on

cross that in his initial interview with Detective Gennaro Giorgio, the lead detective on the case,

Richardson had attributed to McDowell—and not to Whitley—the specific statement that the two

men had gone to Riverside Drive looking to rob someone and had ultimately shot the doctor.4

       On this record, a jury was unable to reach a verdict, and a mistrial was declared.

               2.      Richardson’s “Recantation”

       The State began preparing to retry Whitley in the fall of 2001. At that time, Richardson, who

had since been released from prison and apparently no longer felt bound by the terms of his

cooperation agreement, indicated that he did not intend to honor the State’s subpoena for his

testimony at the retrial. At a pretrial hearing held on November 26, 2001, New York Supreme Court

Justice Budd Goodman explored the nature of Richardson’s unwillingness to testify, asking him

whether he recalled making his initial statement to Detective Giorgio on May 10, 1994. Richardson,

who was represented by counsel, first stated that he remembered making the statement but that he

“was not clear and conscious during that statement.” Richardson was then placed under oath, at

which point he claimed, first, not to remember making the statement, before taking the position that

       4
          Richardson also testified, however, that he told Detective Giorgio during this initial
interview that when Richardson approached Whitley to ask about the gun Richardson had loaned
to McDowell, Whitley asked him whether he had heard about the doctor and also said, in pig
latin, that “he didn’t have to do that.”

                                                  6
“I made it—I might have made the statement but I don’t recall the whole content of the statement.”

After informing Richardson that the sort of “amnesia” he appeared to be claiming might be

considered “contemptuous conduct,” the state court adjourned the proceedings to allow Richardson

some time to confer with counsel and possibly “jog [his] memory.”

        The proceedings reconvened in January 2002 before Justice Laura E. Drager, who would

also preside over Whitley’s retrial. Whitley’s counsel, who had not participated in the prior hearing

before Justice Goodman, was now present. On January 7-9, 2002, Justice Drager held extended

hearings on the issue of Richardson’s testimony. During these hearings, Justice Drager heard first

from Richardson’s attorney, who informed the court that Richardson had abandoned his claim of

lack of memory but “would take the Fifth Amendment if called to testify.” Specifically, as became

clear over the course of the proceedings, Richardson—who, according to his attorney, could no

longer say for sure “and never was positive that [Whitley] said to him that he was present and

participated in the robbery of the doctor, and was actually present when the doctor was shot by

[McDowell]”—feared a prosecution for perjury should his testimony at the second trial depart in any

significant measure from his testimony at the first. Justice Drager then called Richardson to the

stand and placed him under oath, at which point Richardson, as proffered, invoked his Fifth

Amendment right against self-incrimination and refused to make any further statements. Deeming

Richardson therefore to be “unavailable” as a witness for the purpose of the second trial, Justice

Drager ruled that Richardson’s testimony from the first trial—which, as noted, had been subject to

vigorous and extensive cross examination—could be read into the record at the retrial.

       Whitley’s counsel objected to the trial court’s ruling, arguing that Whitley should be allowed

to explore the “recantation” on cross examination. Defense counsel then made a single, specific



                                                 7
request of the trial court: “that the prosecution be ordered to immunize Richardson” so that he could

testify at the second proceeding without any risk of a subsequent state perjury prosecution. The trial

court, noting that “there is overwhelming reason to doubt the genuineness of Mr. Richardson’s

recantation here,” denied that request, finding that under prevailing state law, it had no authority to

compel the State to immunize Richardson.

        Defense counsel made no additional or alternative applications during these hearings or in

multiple, additional court appearances over the two weeks between Justice Drager’s ruling and the

actual introduction of Richardson’s prior testimony. In particular, counsel never asked the trial

court to inform the jury about Richardson’s alleged “recantation” and voiced no objection to the trial

court’s proposed instruction with respect to the Richardson testimony—i.e., that the jurors were “not

to speculate” about “the reasons why this witness is not here testifying before you, but . . . are only

to know that the court has determined that it is appropriate for you to hear this evidence in this way

and that this is the manner in which this evidence is being received.” Indeed, when Justice Drager

previewed this instruction with the parties and asked whether it “address[ed] every concern,”

Whitley’s attorney responded, “I believe so.”

                3.      Whitley’s Second Trial

        Whitley’s second trial took place in January-February 2002. At that trial, the State again

called Howze, Howard, and Caines, each of whom offered testimony substantively identical to that

offered at Whitley’s first trial.

        However, the second trial differed from the first in several respects. First, the State presented

two additional witnesses, Bernard Barnes and Ricky Darlington, who were able to connect Whitley

to the murder. Barnes testified that he, too, had heard Whitley confess to his involvement in the



                                                   8
crime. Specifically, Barnes related that, upon visiting Whitley in jail shortly after the 1981 murder,

Whitley told him, “Yeah, ‘B,’ we did kill the doctor.” According to Barnes’ testimony, Whitley

further told Barnes that he, McDowell, and a man named Richard had robbed Wood and that

McDowell shot him when Wood “put up a struggle.”5 Whitley told Barnes that he did not get any

money from the robbery, and that he “felt bad” about the incident. Darlington testified that he was

present during the conversation between Howard and Whitley during which, according to Howard,

Whitley admitted, “[i]t was me and [McDowell] that did the doctor.” Darlington did not participate

in the conversation and could not testify as to its specific content, but he was able to corroborate

Howard’s testimony that Whitley and Howard conferred on that occasion about the doctor who had

been killed.

        Second, the State offered the testimony of Detective Giorgio. Giorgio, who had been the

lead detective on the case, testified that he interviewed Whitley about the murder on March 23,

1995. During that interview, Giorgio informed Whitley that, during the course of the investigation,

Whitley had “continually” been mentioned as a participant, along with McDowell, in the Wood

robbery and homicide. According to Giorgio’s testimony, Whitley then responded by stating: “You

don’t have [a] case against [McDowell]. The only way you’re going to get [McDowell] is through

me.”

       Third, the parties presented a stipulation that Whitley, McDowell, and a third individual had

committed a different robbery together on December 10, 1981—i.e., less than six weeks after

Wood’s shooting—in midtown Manhattan. The stipulation, which was admitted to establish

Whitley’s connection to McDowell and was accompanied by an appropriate limiting instruction,

       5
          Howze also recalled seeing a third person who was “looking at the scene” but was “not
real, real close.”

                                                  9
further informed the jury that Whitley had pled guilty to this crime in 1982.6

       Finally, as noted, Richardson did not testify at the retrial. Instead, a transcript of his

testimony from the first trial, including defense counsel’s thorough cross examination, was read into

the record.

       The retrial spanned nearly two weeks, and the jury then spent an additional two days

deliberating. During that time, it conscientiously pored over the record, as indicated by its fifteen

requests to review evidence or to have portions of trial testimony, including Richardson’s, read back.

On February 6, 2002, the jury returned a unanimous verdict of guilty on the sole count of the

indictment. On April 18, 2002 Whitley was sentenced to a prison term of 22 years to life.

       B.      Appellate History

       Whitley then filed an appeal with the New York State Appellate Division. Before that court,

Whitley argued for the first time that evidence of Richardson’s so-called “recantation” should have

been presented to the jury at the second trial along with the transcript of Richardson’s testimony

from the first proceeding. The Appellate Division declined to review this claim, finding that it was

not preserved because Whitley had failed to request that evidence of Richardson’s alleged

recantation be admitted at trial, as required by New York’s contemporaneous objection rule. See

People v. Whitley, 14 A.D. 3d 403, 405 (1st Dep’t 2005). The Appellate Division further noted that

even if it were to review the unpreserved claim, it would find the recantation inadmissible pursuant

to Mattox v. United States, 156 U.S. 237, 244-50 (1895).7 Id. Finally, the Appellate Division


       6
          Whitley pled guilty to first-degree robbery. The jury was not informed that, in fact,
Sylvia Killen, the victim of this robbery, was also shot and killed by McDowell, who pled guilty
to first-degree manslaughter as a result.
       7
         As discussed further below, in Mattox, the Supreme Court held that “before a witness
can be impeached by proof that he has made statements contradicting or differing from the

                                                 10
determined that even if the alleged recantation were admissible “there is no reasonable possibility

that its introduction would have affected the verdict.”      Id. The New York Court of Appeals

declined to review the case. People v. Whitley, 4 N.Y.3d 892 (2005).

       Whitley subsequently brought a motion to vacate the judgment of conviction in New York

State Supreme Court pursuant to New York Criminal Procedure Law 440.10, collaterally

challenging his conviction on the ground that he had been denied the effective assistance of counsel.

Specifically, Whitley argued that his trial counsel should have sought to have evidence of the

“recantation” introduced and that his failure to do so or to otherwise preserve the claim rendered the

assistance provided “ineffective.” The New York State Supreme Court denied that motion and the

Appellate Division affirmed that denial. In so doing, both courts cited the Appellate Division’s

conclusion, on direct appeal, that had it reached the merits of the unpreserved claim, it would have

deemed evidence of Richardson’s “recantation” inadmissible because no foundation had been laid

for its admission. As the Appellate Division thus reasoned in denying the section 440.10 motion,

“[h]ad trial counsel attempted to get the statements before the jury, he would undoubtedly have been

rebuffed, and we cannot fault him for not trying.” Whitley, 61 A.D.3d at 423 (quoting People v.

Stultz, 2 N.Y.3d 277, 287 (2004)). The Appellate Division further determined that “regardless of

whether defendant’s counsel should have sought to introduce the recantation evidence, or whether

it should have been admitted, its absence did not deprive defendant of a fair trial or cause him any


testimony given by him upon the stand, a foundation must be laid by interrogating the witness
himself as to whether he has ever made such statements.” Mattox v. United States, 156 U.S. 237,
245 (1895). While the so-called Mattox rule is no longer applicable in federal court in
circumstances such as these, see Fed. R. Evid. 806, it is still applied in New York. See People v.
Whitley, 61 A.D.3d 423, 423 (1st Dep’t 2009) (explaining, in context of denying Whitley’s
section 440.10 motion, that “Mattox remains part of this State’s evidentiary law” and, in this case
“defendant was unable to lay a foundation for the admission of the recantations by asking the
witness about them”).

                                                 11
prejudice.” Id. at 424. Specifically, in support of that conclusion, the Appellate Division noted that

the evidence established that Whitley had admitted his guilt to four different persons on separate

occasions, that these accounts generally harmonized with each other and with the other evidence,

and that there was no evidence of collusion. Id. It thus concluded that there was no reasonable

possibility that introducing evidence regarding Richardson’s alleged recantation would have affected

the verdict.

        C.      This Action

        Before his section 440.10 motion was resolved, Whitley filed a petition for a writ of habeas

corpus in federal court, contending principally that the state court’s failure to admit evidence of

Richardon’s recantation at the second trial violated his clearly established federal rights.       The

district court stayed the proceedings pending resolution of the section 440.10 motion in New York

state court, whereupon it proceeded to evaluate the merits of Whitley’s federal petition and, by

opinion and order dated July 22, 2010, granted the writ.

        The district court concluded that, by admitting the transcript of Richardson’s testimony from

the first trial without mention of the “recantation,” the state court created “a basic unfairness in the

mix of evidence before the jury,” depriving Whitley of due process and “compromis[ing] the

Confrontation Clause of the Sixth Amendment.” Whitley v. Ercole, 725 F. Supp. 2d. 398, 418

(S.D.N.Y. 2010). It rejected the State’s contention that the Appellate Division’s decision rested on

an adequate and independent state law ground—namely, Whitley’s non-compliance with the state’s

contemporaneous objection rule—and thus that federal review of the claim was foreclosed. The

court concluded that Whitley had “substantially complied” with the rule and, further, that perfect

compliance with the rule would not have led to a different result before the trial court. Id. at 425-27.



                                                  12
Finally, it rejected the State’s contention that any error below was harmless, finding that

Richardson’s testimony was the State’s “most important evidence” in what it deemed a “weak” case.

Id. at 424-25. This appeal ensued.

                                        II.   DISCUSSION

                                       A. Standard of Review

       In reviewing a district court’s ruling on a petition for habeas corpus, we examine factual

findings for clear error and consider questions of law de novo. Hawkins v. Costello, 460 F.3d 238,

242 (2d Cir. 2006). While the district court began its analysis by discussing the merits of Whitley’s

federal constitutional claims, where, as here, the State contends that the challenged decision “‘rests

on a state law ground that is independent of the federal question and adequate to support the

judgment,’” Lee v. Kemna, 534 U.S. 362, 375 (2002) (quoting Coleman v. Thompson, 501 U.S. 722,

729 (1991)), our practice is to evaluate the sufficiency of that state law ground in the first instance.

We do so because when “faced with an independent and adequate state ground” for the decision,

“principles of comity and federalism” compel us to “defer” to that state law ground and thus to

decline to review the federal claim. Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999); see also

Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (“Federal courts generally will not consider

a federal issue in a case if the decision of the state court rests on a state law ground that is

independent of the federal question and adequate to support the judgment.” (internal quotation marks

omitted)). This is true irrespective of whether the state law ground is substantive or procedural.

Garvey, 485 F.3d at 713.

                B. Adequate and Independent State Law Ground for Decision

       The State contends that the challenged state court decision—the Appellate Division’s



                                                  13
decision rejecting Richardson’s claim of error and affirming the conviction—rests on just such an

adequate and independent state law ground. Specifically, it directs our attention to that court’s

determination that the very claim Whitley advances here was procedurally barred under state law

because Whitley failed to comply with the State’s well-established and codified contemporaneous

objection rule. Accordingly, it argues that the district court should have credited that state law

ground for decision and thus declined to engage in substantive review of the federal claim. We

agree.

         New York’s contemporaneous objection rule provides that a party seeking to preserve a

claim of error at trial must lodge a protest to the objectionable ruling “at the time of such ruling . .

. or at any subsequent time when the [trial] court had an opportunity of effectively changing the

same.” N.Y. Crim. Proc. Law § 470.05(2). This rule has been interpreted by New York courts to

require, “at the very least, that any matter which a party wishes” to preserve for appellate review be

“brought to the attention of the trial court at a time and in a way that gave [it] the opportunity to

remedy the problem and thereby avert reversible error.” People v. Luperon, 85 N.Y.2d 71, 78

(1995); see also People v. Hicks, 6 N.Y.3d 737, 739 (2005). A “general objection is not sufficient,”

because, as “New York’s highest courts uniformly instruct,” to preserve a claim, a defendant must

“specifically focus on the alleged error.” Garvey, 485 F.3d at 714 (collecting state court authority).

         Applying that rule, the Appellate Division found that Whitley had failed to preserve any

claim of error in the trial court’s failure to admit evidence of Richardson’s “recantation” because

defense counsel never sought to have such evidence admitted at trial. Whitley does not challenge

that finding before this Court—indeed, our law makes clear that we have no authority to question

the state’s interpretation of its own procedural law under these circumstances. See Cotto v. Herbert,



                                                  14
331 F.3d 217, 247 (2d Cir. 2003) (“Our task is not to determine whether [the state court] ruling was

correct, but to determine its adequacy to preclude federal habeas review.”). Accordingly, it is with

little difficulty that we conclude that the Appellate Division’s express reliance on the state’s

contemporaneous objection rule in rejecting Whitley’s appeal constitutes an “independent” state law

ground for that decision. See Garcia, 188 F.3d at 77; cf. Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.

1996) (“[P]rocedural default in the state court will . . . bar federal habeas review when the last state

court rendering a judgment in the case clearly and expressly states that its judgment rests on a state

procedural bar.” (internal quotation marks omitted)).8

       The only question for us to resolve, thus, is whether that independent state law ground is

“adequate,” on these facts, to preclude further review of the federal claim. Adequacy in this context

presents a question of federal law and requires evaluation of “the state interest in a procedural rule

against the circumstances of a particular case.” Lee, 534 U.S. at 386-87. As a general rule, a state

ground for decision will be deemed adequate to preclude habeas review of a federal claim if it stems

from violation of a “rule that is firmly established and regularly followed by the state in question.”

Garcia, 188 F.3d at 77 (internal quotation marks omitted). Our case law has long made clear that

New York’s contemporaneous objection rule is just such a “firmly established and regularly

followed” rule, see id. at 77-79; Taylor v. Harris, 640 F.2d 1, 1-2 (2d Cir. 1981), see also Ohio v.

Osborne, 495 U.S. 103, 123 (1999) (“The state [contemporaneous objection rule] . . . serves the

State’s important interest in ensuring that counsel do their part in preventing trial courts from”



       8
          This remains true even when the state court addresses the merits in reaching an
alternative holding. See Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (“There is no question
that the Appellate Division’s explicit invocation of the procedural bar constitutes an
‘independent’ state ground, even though the court spoke to the merits of Garcia’s claim in an
alternative holding.”) (internal citation omitted).

                                                  15
committing error at trial), and Whitley does not argue to the contrary.

       Instead, Whitley seeks to rely on the narrow exception announced by the Supreme Court in

Lee v. Kemna, 534 U.S. 362 (2002), for those “exceptional cases” in which application of an

otherwise sound state rule is so “exorbitant” as to render it “inadequate to stop consideration of a

federal question.”   Id. at 376.    In Lee, trial counsel, faced with the sudden, unexplained

disappearance of three critical alibi witnesses, made an oral motion for a brief continuance—a

motion the trial judge rejected on the ground that personal commitments and his trial calendar

prevented him from delaying Lee’s case. On appeal, the state court affirmed, invoking, for the first

time, a state rule requiring that any such motions be made in writing. Lee then sought federal habeas

review which the Eighth Circuit denied, deeming Lee’s non-compliance with the relevant state rule

an adequate and independent state law ground for decision. The Supreme Court reversed. Id. at

365-67. Noting that under the “extraordinary circumstances” of that case “nothing would have been

gained by requiring” defense counsel to submit a written motion in the midst of trial rather than

making the motion orally, the Court deemed the case before it to present the “rare circumstances”

in which “unyielding application of the [state] rule would disserve any perceivable interest.” Id. at

376, 378-80, 385. Accordingly, the Court held that, on those facts, Lee’s violation of the state rule

was insufficient to foreclose habeas review of his federal claim.

       In reaching that conclusion, the Lee Court identified three “considerations” that, “in

combination,” weighed in favor of finding that the otherwise adequate state ground for decision

would not block adjudication of the federal claim under the circumstances. Id. at 381. First, it

concluded that perfect compliance with the state procedural rule would not have led to a different

outcome because, as noted, the trial court made clear that it was unable to accommodate a



                                                 16
continuance or delay. Id. Second, it observed that “no published [state court] decision direct[ed]

flawless compliance” with the relevant state rule “in the unique circumstances this case presents.”

Id. at 382.    Third, and “most important,” the Court determined that defense counsel had

“substantially complied” with the state rule “given the realities of trial.” Id. (internal quotation

marks omitted). On these “unique” facts and in these “extraordinary circumstances,” the Court

concluded that Lee’s claim fell “within the small category” of “exceptional cases” in which an

otherwise sound state rule was inadequate to bar federal review of a constitutional claim. Id. at 376,

381-82.

        Whitley contends, and the district court found, that these same three considerations weigh

in favor of finding that this case similarly falls within that “limited category” of “exceptional cases.”

We disagree. As a preliminary matter, we emphasize our previous determination that the three

considerations highlighted by the Lee Court—which our case law has, on occasion, somewhat

inaccurately referred to as “factors,” see, e.g., Monroe v. Kuhlman, 433 F.3d 236, 242 (2d Cir. 2006)

(quoting Cotto, 331 F.3d at 240)—are by no means a “test” but instead are simply “guideposts” for

“evaluating the state interest in a procedural rule against the circumstances of a particular case,”

Cotto, 331 F.3d at 240 (internal quotation marks omitted).9 That evaluation, in turn, informs the

truly critical inquiry—namely, whether we can deem the application of a state rule so “exorbitant”

as to render it inadequate to preclude habeas review of the federal claim.

        9
          We note in passing that none of our sister circuits, except the Eighth, appears to have
spoken of Lee as setting forth “factors,” see Owsley v. Luebbers, 281 F.3d 687, 692 (8th Cir.
2002), and even that court has more recently eschewed that term in favor of a more discrete
inquiry into whether the case presented mirrors the “unique circumstances” that made
application of the Missouri rule in Lee “exorbitant,” Barnett v. Roper, 541 F.3d 804, 810-11 (8th
Cir. 2008) (noting that Lee turned on the “unique circumstances” of that case and concluding that
“[b]ecause no similar unforeseeable circumstances . . . were present in [this] case, we cannot say
that the [state rule] . . . was ‘exorbitant’”).

                                                   17
        We begin, thus, with that question, and, after de novo review of the record, we find no basis

for deeming application of New York’s contemporaneous objection rule to Whitley’s claim to be

“exorbitant.” To the contrary, its invocation here is well within the parameters of its routine and

generally unquestionable application to bar review of unpreserved objections to trial testimony, see,

e.g., People v. Mack, 787 N.Y.S.2d 397, 398 (2d Dep’t 2005) (“Although the defendant objected to

that testimony . . . , he did not specify the ground now raised on appeal and failed to object to the

[trial] court’s remedy. Therefore, the issue is unpreserved for appellate review.”), unpreserved

claims regarding admission of particular evidence, see., e.g,, People v. McClain, 672 N.Y.S.2d 503,

504 (3d Dep’t 1998), or unpreserved Sixth Amendment Confrontation Clause claims, see, e.g.,

Mack, 787 N.Y.S.2d at 398; People v. Fleming, 519 N.E.2d 616, 616 (N.Y. 1988). Moreover, its

application here is entirely consistent with and in furtherance of two of the rule’s principal

objectives: to ensure that “parties draw the trial court’s attention to any potential error while there

is still an opportunity to address it,” Cotto, 331 F.3d at 245, and to prevent those who fail to do so

from “sandbagging” the opposing party and the trial court on appeal, Garcia, 188 F.3d at 82 (citing

Wainwright v. Sykes, 433 U.S. 72, 89 (1977)); see also Garvey, 485 F.3d at 720 (“[D]emanding

compliance with [§ 470.05(2)] serves a legitimate governmental interest in this case, that is to say,

the interest in allowing the trial court to have the first opportunity to rule on and possibly rectify any

alleged legal error.”); Garcia, 188 F.3d at 81 (“[I]t runs contrary to the legitimate purpose of section

470.05 to characterize as ‘preserved’ an issue on which the trial judge never had the opportunity to

rule.”). Thus, its application here cannot be deemed “unyielding” or in “disser[vice to] any

perceivable interest.” Lee, 584 U.S. at 380.

        Moreover, we see nothing “exceptional,” “extraordinary,” or “unique,” id. at 376, 382, about



                                                   18
the facts of this case that would alter this analysis. This was not a case like Lee that involved

“rapidly unfolding events that [Whitley] and his counsel could not have foreseen.” Id. at 378. To

the contrary, the issue of Richardson’s testimony was amply discussed by all parties over the course

of a three-day hearing several weeks before trial and was subsequently raised anew by the trial court

in the context of its proposed instruction that the jury was to draw no inference from Richardson’s

absence. Accordingly, it is not at all unusual in these circumstances—let alone “exorbitant”—to

insist that defense counsel comply with the rule and apprise the trial court of a request to have

evidence admitted before permitting a claim of error in not admitting the evidence to be raised on

appeal. Cf. Lee, 534 U.S. at 383 (insistence on compliance with the state rule under those

circumstances would be “so bizarre as to inject an Alice-in-Wonderland quality into the

proceedings” (internal quotation marks omitted)). As noted, no such request was ever made.

       Evaluation of the three special “considerations” present in Lee does not alter our view of this

case. The first—whether “perfect compliance” with the state procedural rule “would have changed

the trial court’s decision,” Lee, 534 U.S. at 387—necessarily “involves a certain degree of

speculation” where, as here, a state contemporaneous objection rule is at issue, Cotto, 331 F.3d at

243. Indeed, as we have previously explained, given the absence of a contemporaneous objection,

it is impossible to conclusively determine, as the Court did in Lee, that perfect compliance with the

procedural rule would have had no effect on the outcome below. See, e.g., id. at 242. Accordingly,

we have deemed this first consideration “not very relevant in cases” such as this one “where we are

reviewing application of the ‘contemporaneous objection’ rule.” Monroe, 433 F.3d at 242.

       In arguing otherwise, Whitley seeks to rely on the Appellate Division’s observation, in

rejecting his ineffective assistance of counsel claim, that “‘[h]ad trial counsel attempted to get the



                                                 19
statements before the jury, he would undoubtedly have been rebuffed.’” Whitley, 61 A.D.3d at 423

(quoting Stultz, 2 N.Y.3d at 287). But this determination by the Appellate Division—which was

based on the applicability of the so-called Mattox rule in New York courts—is simply not equivalent

to the Supreme Court’s conclusion in Lee that “[n]othing would have been gained” by requiring

“formally perfect compliance” with the written motion requirement because “the trial court . . . had

in clear view the information needed to rule intelligently on the merits of the motion.” Lee, 534 U.S.

at 366, 385, 387 (internal quotation marks).

       The Mattox rule, long abandoned in federal court but still a part of New York state practice,

requires that a proper foundation be laid before a witness’s prior, allegedly contradictory statements

be admitted to impeach his testimony. See Mattox, 156 U.S. at 244-50. In concluding that no such

foundation existed in this case, the Appellate Division was necessarily limited to the record on

appeal, and thus could not consider the foundational or factual findings a trial court might have made

with respect to the statements had the issue been properly presented to it. See Wainwright, 433 U.S.

at 88 (“A contemporaneous objection enables the record to be made” at the time rather than “years

later in a federal habeas proceeding” and “enables the [trial] judge . . . to make the factual

determinations necessary for properly deciding the federal constitutional question.”).

       Indeed, had Whitley properly raised the issue before the trial judge, that court could have

evaluated the claim in the first instance and perhaps crafted a remedy that satisfied both Whitley and

the Mattox rule. Alternatively, the prosecutor might have agreed to admission of the ostensible

recantation in some form so as to eliminate even the potential for a constitutional claim. See id. at

89 (noting that a contemporaneous objection may cause the prosecution “to take a hard look” at

whether to persist in a position at the risk of creating a potential constitutional issue on appeal). At

a bare minimum, the trial court could have developed a factual record supporting its decision that

                                                  20
could then properly be reviewed on appeal. In other words, this is simply not a case in which

“‘[n]othing would have been gained by requiring’” Whitley’s counsel to comply with the

contemporaneous objection rule. Lee, 534 U.S. at 385 (quoting Osborne, 495 U.S. at 124).

Accordingly, even were we to overlook our general presumption that the “perfect compliance”

consideration “is not very relevant” in cases such as this one, we would nonetheless be unable to

conclude that it weighs in Whitley’s favor.

       The second consideration identified by the Lee Court was the absence of any state case law

“indicat[ing] that compliance with the rule was demanded in the specific circumstances presented.”

Cotto, 331 F.3d at 240 (citing Lee, 534 U.S. at 381-85). The district court found, and Whitley urges

on appeal, that “New York courts have not previously confronted [the] issue” of whether state law

directs “flawless compliance with the preservation rule in the unique circumstances of this case,”

and accordingly that this point “weighs in Whitley’s favor.” Whitley, 725 F. Supp. 2d at 427

(internal quotation marks omitted). We disagree.

       As a preliminary matter, the district court erred in framing its inquiry. While we do not

doubt that no New York court has previously addressed the “unique facts” of this case—rarely, if

ever, will there be a case whose specific and “unique facts” have previously been presented to a

higher court—that is not the inquiry that the second Lee consideration demands. Instead, Lee directs

us to inquire as to how state courts apply the relevant rule to a party in petitioner’s “predicament,”

Lee, 534 U.S. at 382, and to evaluate whether the legal “claim raised by the petitioner” is or “‘is not

regularly the subject of a procedural default in New York,’” Cotto, 331 F.3d at 243 (quoting Arce

v. Smith, 889 F.2d 1271, 1273 (2d Cir. 1989)). Here, as discussed above, we have little difficulty

concluding that New York law does direct “flawless compliance” with the contemporaneous

objection rule for parties in Whitley’s “predicament”—that is, parties seeking to admit impeachment

                                                  21
evidence—and, accordingly, that this is the sort of claim “regularly . . . subject [to] a procedural

default in New York.” Arce, 889 F.2d at 1273. Moreover, we see nothing particularly unique about

Whitley’s case that might lead us to question the applicability of this body of New York law. Cf.

Garvey, 485 F.3d at 719 (“[N]o sudden or unanticipated event . . . led [petitioner] not to comply with

§ 470.05(2)” and accordingly “the second [Lee] consideration . . . does not indicate that application

of § 470.05(2) was exorbitant.”); see also United States v. Grasso, 413 F. Supp. 166, 171 (D. Conn.

1976) (“Recantation of a witness’ testimony at trial is not a rare occurrence.”) (collecting

authorities). Accordingly, we are unable to agree with the district court that this consideration

weighs in favor of Whitley.

       Finally, the third consideration identified in Lee turns on whether Whitley’s counsel

“substantially complied” with the state rule “given the realities of trial.” Lee, 534 U.S. at 382

(internal quotation marks omitted). We have little difficulty concluding that this “most important”

consideration, id., weighs strongly against Whitley. New York’s contemporaneous objection rule,

as interpreted by state courts, provides that “‘a question of law will be considered preserved for

appellate review [only] when it is interjected at the fact-finding level in such a manner and at such

a time as to fairly apprise the court and the opposing party of the nature and scope of the matter

contested.’” Garcia, 188 F.3d at 78 (quoting People v. Jones, 440 N.Y.S.2d 248, 261 (2d Dep’t

1981)). General or related objections are insufficient because the rule demands that the issue be

identified by trial counsel “with sufficient specificity” so as “to enable the trial court to respond.”

Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (citing state authority). As we have explained,

the “basis” of the rule “is that the trial court must be given a fair opportunity to rule on an issue of

law before it can be raised on appeal.” Garvey, 485 F.3d at 720.

       Here, Whitley’s counsel did not substantially comply with that rule. He did not comply with

                                                  22
it at all. Whatever the precise scope of the relief being requested now—and we note that, even

before this Court, Whitley’s counsel remained unable to articulate precisely what evidence the trial

court erred in failing to admit—there can be no dispute that Whitley’s trial counsel made no

application for that relief below. Indeed, as noted, over the course of an extended, three-day hearing,

Whitley’s counsel made one, and only one, application to the trial court once Richardson’s

testimony was ruled admissible. This application was for an order directing the State to immunize

Richardson, which the trial court denied.         Whitley’s counsel made no other requests and,

specifically, made no request to admit Richardson’s ostensible “recantation” in any form or to bring

that issue before the jury in any other respect. To the contrary, as noted above, not only did

Whitley’s counsel fail to make such a request, but he failed to object when the trial court informed

the parties of its intent to instruct the jury to draw no inferences from Richardson’s absence.

Whitley therefore, without question, did not give the trial court an opportunity to address the claim

of error raised on appeal, and thus cannot be said to have complied in any respect with the state rule.

        These facts are thus readily distinguishable from Lee, where the relevant rule’s “essential

requirements . . . were substantially met.” Lee, 534 U.S. at 385. In Lee, as discussed above,

petitioner’s sole failure was technical—Lee’s request was made orally rather than in writing, but the

relevant information and claim were otherwise fully presented to the trial court. Here, by contrast,

the request was not made at all, and accordingly, far from simply failing to meet “the formal

requirements of § 470.05(2),” Whitley “violated the very substance of the rule.” Garvey, 485 F.3d

at 720; see also id. (noting that the “very essence” of the rule is the state’s “interest in allowing the

trial court to have the first opportunity to rule on and possibly rectify any alleged legal error”).

        In arguing otherwise, Whitley contends that his more general objections were sufficient to

meet the rule’s requirements. We cannot agree. Our reading of New York law, and indeed our own

                                                   23
prior application of that law, simply does not support such a conclusion. See, e.g., Garcia, 188 F.3d

at 81 (“While . . . an issue may have been raised at [the] time . . . the legal issue [petitioner]

attempted to raise on appeal was not brought to the trial court’s attention in a way or in such a

manner as to give the trial judge an opportunity to remedy the problem and avert reversible error.”

(emphasis added, internal quotation marks omitted)); see also Garvey, 485 F.3d at 715-16 (objection

at trial to admission of identification on one ground insufficient to preserve objection to the same

identification on a different ground because “[u]nder the firmly established and regularly followed

New York interpretation of § 470.05(2), this issue cannot be raised for the first time on appeal”);

People v. Sanchez, 890 N.Y.S.2d 10, 11 (1st Dep’t 2009) (general, pretrial objections to expert

testimony “were insufficiently specific to . . . preserve the particular claims defendant raises on

appeal”).

       We therefore remain satisfied that this is not the sort of “exceptional” case Lee spoke of and

that there is simply no basis for deeming application of the state’s otherwise well-established and

generally valid contemporaneous objection rule to be “exorbitant” on these facts. Accordingly, we

are bound to deem that independent state law ground adequate to support the judgment of the

Appellate Division affirming Whitley’s conviction and therefore sufficient to foreclose federal

habeas review of the unpreserved claim. Cf. Garcia, 188 F.3d at 76 (enforcing procedural bar

“ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas

cases”(quoting Coleman, 501 U.S. at 732)); see also Spence v. Superintendent, Great Meadow Corr.

Facility, 219 F.3d 162, 170 (2d Cir. 2000) (“The doctrine of procedural default is based on

considerations of comity and finality.”).




                                                 24
                                               ***

       Because we conclude that an adequate and independent state law ground for decision

forecloses our review of Whitley’s federal claim, we need not and do not reach the merits of that

claim. We pause briefly, however, to express our disagreement with aspects of the district court’s

discussion of that claim—specifically, the district court’s characterization of the State’s case here

as “weak” and its determination that “Richardson’s testimony was the State’s most important

evidence implicating Whitley.” Whitley, 725 F. Supp. 2d at 424-25. De novo review of the record

does not support these findings.

       First, the case against Whitley was not insubstantial. Setting Richardson’s testimony aside,

the State’s evidence included three additional witnesses, each of whom took the stand to testify, in

sum and substance, that Whitley had admitted to participating, along with McDowell, in the robbery

and murder. The State also offered the testimony of Detective Giorgio, who told the jury about

Whitley’s statements under questioning, and specifically Whitley’s statement—from which a jury

could certainly infer guilt—that Giorgio “[did]n’t have [a] case against [McDowell]” and that “[t]he

only way you’re going to get [McDowell] is through me.” Finally, the jury heard that Whitley and

McDowell had committed a similar robbery only weeks after the robbery of Wood, evidence

admitted with a limiting instruction that it could be considered only as proof of the confederates’

close relationship. That the state “relied heavily” on the testimony of witnesses with criminal

histories and did not offer “physical evidence tying Whitley to the crime” does not alter our

conclusion that this was a substantial case. Government cases are frequently built on the testimony

of those with criminal histories, and the absence of physical evidence is hardly atypical.

       Second, we see no basis for deeming Richardson’s testimony to be the State’s “most

important evidence implicating Whitley.” Id. at 425. To the contrary, of the four friends of

                                                 25
Whitley’s who provided evidence at trial, Richardson’s testimony was arguably the most equivocal

with respect to Whitley. That testimony, which was peppered with qualifiers such as “I think” and

“from the best of my recollection,” established primarily that Whitley had implicated McDowell in

the shooting. Indeed, Richardson’s most concrete testimony was that, when discussing the murder,

Whitley “got silent” and then said in “pig latin” that McDowell “didn’t have to do that.” By

contrast, Barnes, Caines, and Howard each testified that Whitley directly and explicitly confessed

to his own involvement in the crime.

       Richardson was also subject to the most searching cross examination—a cross examination

that uncovered prior, inconsistent statements to police regarding his conversations with Whitley

about the crime as well as his prior allegations that he had been pressured by detectives into

providing incriminating testimony against Whitley. That searching cross-examination was, of

course, also read back to the jury at the second trial along with his direct testimony.

       Moreover, there is no evidence that the parties viewed Richardson’s testimony as any more

important than any of the other testimony, let alone the most important evidence at trial. To the

contrary, in closing, the State highlighted the testimony of all of its witnesses, arguing to the jury

that there were “four people who heard admissions from this defendant,” and adding further that “if

you believe one of the four, this defendant is guilty.” Defense counsel similarly responded to all the

trial evidence and did not particularly highlight Richardson’s testimony as any more damaging or

important than any of the other incriminating evidence.

       Accordingly, we are simply unable to agree either that this was a “weak” case or that the

testimony at issue constituted the State’s “most important” evidence.




                                                 26
                                     III.   CONCLUSION

       For the reasons set forth above, we conclude that Whitley’s claim was not properly raised

before the trial court in accordance with New York’s contemporaneous objection rule and,

accordingly, is procedurally barred. We thus reverse the judgment of the district court and remand

the case for further proceedings not inconsistent with this opinion.




                                                27
