15-1311-pr
Bowman v. Racette
 
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 9th day of September, two thousand sixteen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
EDWARD BOWMAN, DIN#06A4121 Green Haven
Correctional Facility P.O. Box 4000 Stormville, NY
12582-4000,
                                 Petitioner-Appellant,

                    v.                                                   No. 15-1311-pr

STEVEN E. RACETTE,
                                 Respondent-Appellee.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                           JEFFREY PITTELL, Maher & Pittell, LLP,
                                                   Great Neck, New York.

APPEARING FOR APPELLEE:                           ALYSON J. GILL, Assistant Attorney General
                                                  (Barbara D. Underwood, Solicitor General;
                                                  Nikki Kowalski, Deputy Solicitor General, on
                                                  the brief), for Eric T. Schneiderman, Attorney
                                                  General for the State of New York, New York,
                                                  New York.


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

District of New York (Laura Taylor Swain, Judge; Sarah Netburn, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 21, 2015, is AFFIRMED.

       Edward Bowman appeals from the denial of his petition for habeas corpus relief

from his 2006 New York State convictions for conspiracy, assault, and attempted

robbery. See 28 U.S.C. § 2254. Bowman’s conviction followed three trials, the first two

of which ended in hung juries.

       At the first trial, Bowman testified, admitting that he had driven the robbers to and

from the scene of the crime, but without awareness of, much less intent to facilitate, their

criminal objective. Bowman also admitted lying to authorities at a pre-trial proffer

session when he denied being present at the robbery scene. He testified that he had so

lied because he had been driving with a suspended license and feared losing his livery

license if that fact were known. Bowman did not testify at his second trial, but the

prosecution offered the aforementioned portions of his first-trial testimony into evidence.

Bowman also did not testify at his third trial. This time, however, the prosecution offered

only so much of Bowman’s first-trial testimony as admitted his presence at the crime

scene. It called an officer present at Bowman’s proffer session to testify to his earlier

denial of presence. Bowman unsuccessfully argued that, under New York’s rule of

completeness, the jury should also hear his first-trial testimony explaining the proffer-

session lie. His completeness argument also failed on direct appeal.



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       In seeking habeas relief, Bowman argues that exclusion of his first-trial

explanation for his proffer-session lie denied him his due process right to a fair trial. He

also argues that admission of the proffer-session lie violated his privilege against self-

incrimination and right to due process.           Although Magistrate Judge Netburn

recommended granting Bowman’s petition on the former ground, Judge Swain denied it

in all respects.

       We assume familiarity with the full facts and record of prior proceedings, which

we reference further only as necessary to explain our decision to affirm.

1.     Standard of Review

       We review the denial of a habeas corpus petition de novo, see Hemstreet v.

Greiner, 491 F.3d 84, 89 (2d Cir. 2007), mindful that a state prisoner is entitled to such

relief only if, as relevant here, his conviction “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1).                In making this

determination, we look only to Supreme Court holdings as opposed to dicta, see Jimenez

v. Walker, 458 F.3d 130, 146 (2d Cir. 2006), and we apply a “highly deferential standard

for evaluating state-court rulings,” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). In short, petitioner must show that “the state court’s ruling on

the claim being presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (internal

quotation marks omitted).

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       Where, as here, a petitioner argues constitutional error based on state-law

evidentiary rulings, he faces a “doubly difficult challenge,” Evans v. Fischer, 712 F.3d

125, 133 (2d Cir. 2013), because federal habeas courts generally will not “reexamine

state-court determinations on state-law questions,” Estelle v. McGuire, 502 U.S. 62, 67–

68 (1991).

       Applying these principles here, we conclude that Bowman is not entitled to habeas

relief from conviction.1

2.     Fair Trial Claim

       a.      New York’s Rule of Completeness

       Bowman argues that the district court erred in rejecting the magistrate judge’s

conclusion that exclusion of his first-trial explanation for his proffer-session lie denied

him a fair trial whether or not the state court correctly applied the rule of completeness.

We disagree.

       At the outset, we note that New York’s rule of completeness compels admission of

both inculpatory and exculpatory elements of a single statement when a party seeks to

introduce one of those portions without the other. See People v. Dlugash, 41 N.Y.2d 725,

736, 395 N.Y.S.2d 419, 427 (1977); see also People v. Torre, 42 N.Y.2d 1036, 1037, 399

N.Y.S.2d 203, 204 (1977). The rule is grounded in equity “to avoid misleading the trier

of fact about the statement’s tenor.” Richard T. Farrell, Prince, Richardson on Evidence


1
  The State does not argue that any procedural bar precludes federal courts from reaching
the merits of Bowman’s constitutional claims based on the state court’s evidentiary
ruling. Thus, we do not pursue that question here in concluding that those claims fail on
the merits.
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§ 1-102 (11th ed. 1995). Thus, if part of a statement is admitted, the rule of completeness

requires that another part, “explanatory of the admitted portion,” also be put into

evidence. People v. Walker, 285 A.D.2d 364, 365, 726 N.Y.S.2d 857, 857 (1st Dep’t

2001).     It is critical to the rule, however, that the statements be part of “a single

continuous narrative.” People v. Hubrecht, 2 A.D.3d 289, 290, 769 N.Y.S.2d 36, 37 (1st

Dep’t 2003). The rule is not violated by the exclusion of a later statement explaining an

earlier one “made to different persons in different settings.” Id.

         Applying these principles here, and mindful of the deference owed state courts in

construing their own evidentiary rules, we conclude that Bowman has not demonstrated

rule-of-completeness error “so egregious as to implicate the Fourteenth Amendment’s

guarantee of due process.” Evans v. Fischer, 712 F.3d at 133. The first-trial testimony

he sought to admit did not explain the admitted statement from that testimony, that is,

Bowman’s acknowledgment of presence at the robbery scene. Rather, it explained his

earlier proffer-statement lie about not being at the scene. Because the lie was told to law

enforcement authorities in the setting of a pre-trial proffer session, while the explanation

was given to different persons, a jury, in the different setting of a trial, we cannot

conclude that New York courts clearly violated the rule of completeness in refusing to

admit the later hearsay explanation for the lie. See id.2



2
  The prosecution did not offer Bowman’s first-trial testimony, acknowledging his
proffer-session lie, at his third trial, as it had at his second. Thus, neither the state court
nor the district court had to consider whether, in those circumstances, the rule of
completeness would have required admission of Bowman’s contemporaneous
explanation for the acknowledged lie.
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       b.     Chambers Error

       Bowman argues that, even if the state courts correctly applied the rule of

completeness to exclude his first-trial explanation for the proffer-session lie, he was

denied a fair trial under Chambers v. Mississippi, 410 U.S. 284 (1973). In Chambers, the

Supreme Court held that a correct application of state evidentiary rules can violate due

process where the excluded evidence bore indicia of reliability and where exclusion

prevents the defendant from mounting an effective defense. See id. at 301–02. The

excluded statements at issue in Chambers were a third-party’s multiple out-of-court

admissions to committing the murder charged to defendant. See id. at 292–94.

       The Supreme Court cited several circumstances that, in Chambers, “provided

considerable assurance of . . . reliability,” id. at 300, including the spontaneity and

temporal proximity of the admissions to the homicide at issue, significant corroboration

for the admissions (both testimonial and physical), the fact that the admissions were

against the declarant’s penal interest, and the availability of the hearsay declarant as a

trial witness subject to cross examination, see id. at 300–01.

       Here, the fact that the excluded trial explanation for Bowman’s proffer-session lie

was made under oath and subject to cross examination at an earlier trial is some indicia of

reliability. At the same time, however, reliability is undermined by the fact that the

explanation is entirely self-serving, and not against penal interest. Further, there was

nothing spontaneous or contemporaneous about the explanation to signal reliability.

Indeed, it was made more than a year after the lie it sought to explain. Moreover, while

documentary evidence confirmed that Bowman’s license was suspended at the time of the

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robbery, that affords only modest corroboration for his explanation that fear of losing his

livery license would cause him to lie to authorities about his presence at a murder scene.

In sum, the indicia of reliability here are not comparable to those in Chambers so as to

compel a conclusion that Chambers clearly established a constitutional imperative to

admit the hearsay statement at issue in this case.

       In reaching that conclusion, Judge Swain further distinguished Chambers by

noting that, there, the defendant’s third-party perpetrator defense was effectively

neutralized by the trial court’s evidentiary rulings.        Bowman suffered no such

consequence because he could have taken the stand, as he did in his first trial, and

explained why he had lied at the proffer. Bowman argues that such a construction of

Chambers would require defendants to surrender their Fifth Amendment rights to pursue

their defenses. The Supreme Court has deemed “it intolerable that one constitutional

right should have to be surrendered in order to assert another.” Simmons v. United

States, 390 U.S. 377, 394 (1968). But the observation was made in the context of a

Fourth Amendment challenge and only in dictum. The Court itself has cast doubt on

giving Simmons broader reach, noting that, “to the extent that its rationale was based on a

‘tension’ between constitutional rights and the policies behind them, the validity of that

reasoning must now be regarded as open to question.” McGautha v. California, 402 U.S.

183, 212 (1971), vacated on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941

(1972).

       Thus, however we might apply Chambers or Simmons on direct appeal, we cannot

conclude that, in these cases or any others, the Supreme Court has clearly held that due

                                             7
process required the state court to admit Bowman’s hearsay explanation for an admitted

proffer-session lie in order to afford him a fair trial.

3.     Immunized Statements Claim

       Bowman argues that the introduction of his proffer-session lie violated the terms

of his proffer agreement.       Both the magistrate judge and district judge found the

argument procedurally barred. We agree.3

       At no point did Bowman’s trial counsel argue that the police officer through

whom the prosecution introduced the proffer-session lie should not be allowed to testify.

Counsel argued only that, if the officer testified, Bowman’s first-trial explanation of the

lie should be admitted as well.

       On this record, application of New York’s contemporaneous objection rule was

not “exorbitant” so as to render it an inadequate ground for dismissal under this court’s

three-“guidepost” test. See Whitley v. Ercole, 642 F.3d 278, 287–90 (2d Cir. 2011)

(determining that courts should consider (1) whether “perfect compliance with the state

procedural rule would not have led to a different outcome,” (2) whether case law

indicates that “compliance with the rule was demanded in the specific circumstances

presented,” and (3) whether defendant “substantially complied” with procedural rule).

There is no reason to think that the trial court would have disregarded an objection based



3
  Bowman argues that two Supreme Court cases should guide our procedural bar analysis,
but neither is apposite. In Douglas v. Alabama, 380 U.S. 415 (1965), petitioner’s counsel
objected to the relevant evidentiary issue, id. at 422. In Osborne v. Ohio, 495 U.S. 103
(1990), the Supreme Court deemed petitioner’s counsel to have objected to the relevant
issue based on a pre-trial motion that touched on it, id. at 123–24.
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upon the proffer agreement; New York’s contemporaneous objection rule is consistently

applied in similar circumstances; and Bowman did not substantially comply with the rule.

      Nor can Bowman defeat procedural bar by showing either cause for default and

resultant prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson,

501 U.S. 722, 750 (1991). Contrary to Bowman’s arguments, his trial counsel’s failure to

object to the introduction of the immunized statements was not constitutionally deficient

under Strickland v. Washington, 466 U.S. 668, 687 (1984). Nor does the excluded

evidence meet the high threshold for establishing a miscarriage of justice. See House v.

Bell, 547 U.S. 518, 536–38 (2006). Accordingly, the district court correctly viewed this

part of Bowman’s habeas challenge as barred from federal review.

4.    Conclusion

      We have considered Bowman’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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