Carvajal v. Artus, No. 09-0826 (2d Cir. 2011)

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09-0826-pr Carvajal v. Artus 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: September 29, 2010 Decided: January 25, 2011) Docket No. 09-0826-pr - - - - - - - - - - - - - - - - - - - -x ALVARO CARVAJAL, Petitioner-Appellant, - v.SUPERINTENDENT DALE ARTUS, Respondent-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, FEINBERG and CABRANES, Circuit Judges. Appeal from the denial of an application for a writ of 31 habeas corpus in the United States District Court for the 32 Southern District of New York (McMahon, J.). 33 Carvajal, a New York State prisoner, argues that his 34 prosecution in New York for the unlawful possession of a 35 controlled substance exceeded New York s criminal 36 territorial jurisdiction (because both he and the drugs that Alvaro 1 formed the basis for the prosecution were found in 2 California), and therefore violated his federal 3 constitutional rights. 4 his conviction by the New York Court of Appeals was contrary 5 to, or an unreasonable application of, clearly established 6 Supreme Court precedent that limits a state s prosecutorial 7 power to only those offenses that were either committed 8 within the prosecuting state or that were committed outside 9 but had both an intended and actual detrimental effect Carvajal contends that affirmance of 10 within. 11 Carvajal s federal constitutional claim is procedurally 12 defaulted. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 We dismiss the application on the ground that GEORGIA J. HINDE, New York, New York, for Petitioner-Appellant. THOMAS B. LITSKY, Assistant Attorney General (Andrew M. Cuomo, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, on the brief), New York, New York, for Respondent-Appellee. DENNIS JACOBS, Chief Judge: Alvaro Carvajal, a New York State prisoner, appeals 28 from the denial of an application for habeas corpus relief 29 in the United States District Court for the Southern 2 1 District of New York (McMahon, J.). He argues that his 2 prosecution in New York for the unlawful possession of a 3 controlled substance exceeded New York s criminal 4 territorial jurisdiction, and thereby violated his federal 5 constitutional rights, because both he and the drugs that 6 formed the basis for his prosecution for unlawful possession 7 of a controlled substance were found in California. 8 Carvajal challenges the power of New York State to prosecute 9 him for the possessory offenses for which he was convicted. 10 But our power to grant relief is limited by the 11 Antiterrorism and Effective Death Penalty Act of 1996, Pub. 12 L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996) 13 ( AEDPA ), which bars relief to a state prisoner who raises 14 a federal constitutional claim unless the state court s 15 ruling was contrary to, or an unreasonable application of, 16 clearly established Supreme Court precedent, and the claim 17 was fairly presented to the state court. 18 Carvajal contends that affirmance of his conviction by 19 the New York Court of Appeals was contrary to, or an 20 unreasonable application of, clearly established Supreme 21 Court precedent that limits a state s prosecutorial power to 22 only those offenses that were committed within the 3 1 prosecuting state or that were committed outside but had 2 both an intended and actual detrimental effect within. 3 The New York Court of Appeals determined that the trial 4 court s exercise of territorial jurisdiction over Carvajal 5 was proper under state law, noted that Carvajal had never 6 challenged the state s jurisdiction on constitutional 7 grounds, and upheld his conviction. 8 District Court for the Southern District of New York 9 dismissed the application for a writ of habeas corpus, but The United States 10 issued a certificate of appealability on the question of 11 whether New York had territorial jurisdiction to prosecute 12 Carvajal for three counts of drug possession when he 13 possessed the drugs at issue exclusively out-of-state and 14 was arrested in another state, but participated in a 15 conspiracy to transport drugs into New York. 16 The force of Carvajal s argument notwithstanding, we 17 must deem his claim procedurally defaulted and dismiss his 18 application for a writ of habeas corpus. 19 20 BACKGROUND In 1993, the New York State Drug Enforcement Task Force 21 launched an investigation into a Colombian narcotics 22 trafficking organization set up to transport cocaine from 4 1 the San Francisco area to New York City. 2 telephone conversations and other surveillance indicated 3 that Carvajal was in charge of the West Coast end and that 4 Carvajal and his coconspirators in New York employed a 5 network of individuals to drive, store, and otherwise take 6 care of the drugs and equipment. 7 N.Y.S.2d 450, 452 (App. Div. 1st Dep t 2004). 8 one trip to New York, in 1994, but was not arrested at that 9 time or found in possession of any drugs. 10 Intercepted People v. Carvajal, 786 Carvajal made Ultimately, California authorities recovered large 11 quantities of drugs hidden in vehicles with secret 12 compartments and a stash house used by the trafficking 13 organization in California. 14 California and extradited to New York where he was charged 15 with conspiracy in the second degree and three counts of 16 criminal possession of a controlled substance. 17 drugs that formed the basis for these possession counts were 18 found and seized in California. 19 in possession of numerous documents linking him to other 20 members of the narcotics conspiracy, but no drugs were on 21 his person or in his vicinity. 22 was deemed to be in constructive possession of the drugs Carvajal was arrested in 5 All of the On his arrest, Carvajal was Under New York law, Carvajal 1 seized in California because he exercised dominion over 2 subordinate members of the conspiracy who were found in 3 actual possession of the narcotics, and because he exercised 4 control over the cars and stash house where the drugs were 5 seized. 6 Carvajal was tried, along with several of his New York 7 coconspirators, in the State Supreme Court for New York 8 County. 9 See People v. Manini, 79 N.Y.2d 561, 569-70 (1992). The trial evidence reflected numerous phone calls 10 between Carvajal and his New York coconspirators and 11 emphasized Carvajal s role in supervising the distribution 12 conspiracy from California. 13 Civ. 10634 (CM)(AJP), 2008 WL 4555531, at *2-*9 (S.D.N.Y. 14 Oct. 10, 2008). 15 challenge the sufficiency of the evidence linking him to the 16 conspiracy. 17 issue is whether he is entitled to habeas relief with 18 respect to the possession counts of his conviction because 19 New York lacked the power to prosecute him for those 20 offenses. 21 22 See Carvajal v. Artus, No. 07 Carvajal s application for relief does not See N.Y. Crim. Proc. Law § 20.20(2)(d). The At the state trial, Justice Bonnie G. Wittner informed the parties that, under People v. McLaughlin, 80 N.Y.2d 466, 6 1 469 (1992), the prosecution need not prove the existence of 2 jurisdiction beyond a reasonable doubt unless the defense 3 disputed the existence of proper jurisdiction. 4 2008 WL 4555531, at *9. 5 the jurisdiction issue via cross-examination of one of the 6 prosecution s witnesses. 7 view that jurisdiction was established as to the possession 8 counts by evidence of Carvajal s cell phone conversations 9 with his New York coconspirators, because each of those Carvajal, Defense counsel undertook to raise Justice Wittner emphasized her 10 conversations went through a cell [s]ite within the 11 geographical territory of the State of New York. 12 Oddly, Carvajal s counsel said he did not disagree with 13 the trial judge s statement of the law on this point. 14 Nonetheless, the trial judge announced that, at the request 15 of the defense, she would charge the jury on the question of 16 whether the State had territorial jurisdiction. 17 Despite the fact that the trial judge was willing to give a 18 charge on jurisdiction, Carvajal and his codefendant 19 subsequently withdrew their request for such a charge. 20 Apparently, this was done because defense counsel objected 21 to the manner in which Justice Wittner intended to charge 22 the jury on jurisdiction. Id. Id. Id. at *10. Id. It seems defense counsel sought 7 1 to avoid the submission of six interrogatories to the jury, 2 which would conform to the prosecution s theory of 3 jurisdiction, and which would require reading the overt 4 acts in the indictment to the jury.1 5 App. R. Ex. D at 34. Carvajal was convicted on all counts of the indictment 6 and sentenced to an aggregate indeterminate prison term of 7 thirty-five years to life. 8 under the Rockefeller Drug Reform Act to a determinate 9 sentence of twelve-and-a-half to twenty-five years on the 10 conspiracy conviction, and thirteen years imprisonment for 11 two of the possession counts, all to run concurrently, and a 12 consecutive term of thirteen years imprisonment on the 13 third possession count. 14 imprisonment imposed on the third possession count, Carvajal 15 would be immediately eligible for parole and removal to 16 Colombia. He was subsequently resentenced But for the consecutive term of 17 Represented by new counsel, Carvajal appealed his 18 conviction to the New York State Appellate Division, First 19 Department. In relevant part, Carvajal argued that the 1 We confine ourselves to a review of the issue presented in the certificate of appealability and do not address the wisdom of trial counsel s decision on this point. 8 1 question of New York s territorial jurisdiction was non- 2 waivable because [t]erritorial jurisdiction refers to the 3 power of the court to hear and determine the case, and that 4 territorial jurisdiction was lacking on the possession 5 counts because the acts of possession took place wholly 6 outside of New York. 7 brief to the Appellate Division cited the New York Court of 8 Appeals decision of McLaughlin, which recognized that 9 [t]he general rule in New York is that, for the State to 10 have criminal jurisdiction, either the alleged conduct or 11 some consequence of it must have occurred within the State. 12 80 N.Y.2d at 471; see also N.Y. Crim. Proc. Law § 20.20. App. R. Ex. D at 25. Carvajal s 13 The Appellate Division agreed that [b]ecause the State 14 only has power to enact and enforce criminal laws within its 15 territorial borders, there can be no criminal offense unless 16 it has territorial jurisdiction. 17 453. 18 aware of no other case in which a defendant was convicted 19 of possession of a controlled substance when neither the 20 drugs at issue nor the defendant was in New York at the time 21 of the offense. 22 that the State had jurisdiction to prosecute Carvajal under Carvajal, 786 N.Y.S.2d at And, the Appellate Division remarked that it was Id. at 454. Nevertheless, the court held 9 1 Criminal Procedure Law section 20.20(1)(a). Carvajal, 786 2 N.Y.S.2d at 454, 455; see also N.Y. Crim. Proc. Law 3 § 20.20(1)(a) (providing for jurisdiction over an offense 4 when conduct occurred within New York sufficient to 5 establish an element of the offense). 6 to have been in New York for jurisdictional purposes 7 because of phone calls made to his New York coconspirators, 8 and was deemed to have constructively possessed the drugs in 9 New York because he exercised control over the drugs and his Carvajal was deemed 10 subordinates who held the drugs in California. Carvajal, 11 786 N.Y.S.2d at 455; see also N.Y. Crim. Proc. Law 12 § 20.60(1) (providing that [a]n oral or written statement 13 made by a person in one jurisdiction to a person in another 14 jurisdiction by means of telecommunications, mail or any 15 other method of communication is deemed to be made in each 16 such jurisdiction ).2 The Appellate Division upheld 2 Carvajal argued, without success, that the court could not rely on New York Criminal Procedure Law § 20.60 to establish that an element of the possession offense occurred in New York. Carvajal maintained: Put simply, under Criminal Procedure Law § 20.60(1), it is the communication which is deemed to be in each jurisdiction, not the objects about which there is communication. App. R. Ex. D at 33; see also, e.g., People v. Giordano, 87 N.Y.2d 441, 449 (1995) (finding N.Y. Crim. Proc. Law § 20.60(1) provides that oral statements made over the telephone are deemed to be statements made in both the sending and receiving 10 1 Carvajal s conviction on the ground that [a]n element of 2 [the possession] offense[s] occurred within New York 3 State.3 4 Crim. Proc. Law § 20.20(1)(a). 5 Carvajal, 786 N.Y.S.2d at 454, 457; see also N.Y. Carvajal sought, and was granted, leave to appeal to 6 the New York Court of Appeals. App. R. Ex. H. Citing New 7 York law, Carvajal s merits brief argued that his trial 8 suffered from a fundamental, nonwaivable defect in the mode 9 of procedure, People v. Patterson, 39 N.Y.2d 288, 295 10 (1976): that New York lacked jurisdiction to prosecute him 11 for the possession offenses. App. R. Ex. I at 2. Starting counties ); People v. Cespedes, 799 N.Y.S.2d 703, 713-14 (Sup. Ct. N.Y. Co. 2005) ( Criminal Procedure Law § 20.60(1) should . . . be given a narrow application. . . . [It] insures that if the requirements of venue are otherwise satisfied by a sufficient criminal connection or effect in the county of prosecution, the transmittal of a criminal statement, such as a fraudulent insurance claim, by mail from one county to another, or the occurrence of a criminal conversation on the telephone between coconspirators in two counties, results in venue in either county. ). 3 One commentator argued that the reasoning of the Appellate Division, by which Carvajal s constructive presence in New York was bootstrapped into dominion and control over cocaine located in California, borders on Kafkaesque. Abraham Abramovsky, A Bootstrap Too Far: Constructive Presence, Constructive Possession, N.Y. L.J., Jan. 10, 2005. According to Abramovsky, Utilizing constructive presence to establish constructive possession is one construction too many. Id. 11 1 from the proposition that territorial jurisdiction 2 implicates the [s]tate s inherent authority to prosecute and 3 punish a suspect for alleged criminal conduct, the New York 4 Court of Appeals held that, though a defendant may waive 5 proper venue and the opportunity to require the prosecutor 6 to prove the existence of jurisdiction to a jury beyond a 7 reasonable doubt, the fundamental question whether--as a 8 matter of law--[New York] State has the power to hear the 9 case cannot be waived. 10 312 (2005) (Kaye, C.J.). 11 court upheld the State s exercise of jurisdiction over the 12 possession offenses. People v. Carvajal, 6 N.Y.3d 305, Reaching the merits, however, the Id. at 313. 13 The New York Court of Appeals declined to rest its 14 decision on N.Y. Crim. Proc. Law § 20.20(1)(a), on which the 15 lower state courts had relied. 16 § 20.20(1)(a) requires that an element of the offense take 17 place in New York,4 the New York Court of Appeals instead 4 Perhaps because The intermediate state court concluded that an element of the possession offense did occur in New York. But, the New York Court of Appeals invoked principles of judicial restraint as its rationale for declining to decide whether jurisdiction was established under New York Criminal Procedure Law § 20.20(a)(1). It appears that the New York Court of Appeals was reluctant to endorse the idea that an individual located in California should be deemed to have acted in New York for purposes of obtaining jurisdiction 12 1 founded jurisdiction on § 20.20(1)(c), Carvajal, 6 N.Y.3d at 2 312-13, which provides: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 [A] person may be convicted in the criminal courts of [New York State] of an offense defined by the laws of [New York State], committed either by his own conduct or by the conduct of another for which he is legally accountable . . . when: N.Y. Crim. Proc. Law § 20.20(1)(c). 25 that this jurisdictional requirement was satisfied because 26 while he was present in New York both physically and by 27 telephone, Carvajal conspired with his accomplices and 28 engaged in overt acts in furtherance of their possession of 29 significant quantities of cocaine and their plan to 30 transport the cocaine to New York. 31 315 (emphasis added). 1. Conduct occurred within this state sufficient to establish: . . . . (c) A conspiracy or criminal solicitation to commit such offense, or otherwise to establish the complicity of at least one of the persons liable therefor; provided that the jurisdiction accorded by this paragraph extends only to conviction of those persons whose conspiratorial or other conduct of complicity occurred within [New York State]. The court determined Carvajal, 6 N.Y.3d at The court denied that this analysis over a possession offense by virtue of the fact that he had phone conversations with individuals in New York. 13 1 amounted to jurisdictional bootstrapping. 2 Finally, the New York Court of Appeals observed that 3 Carvajal never alleged any constitutional violation, 4 federal or state, concerning his prosecution by New York. 5 Id. 6 solely in an interpretation of the relevant provision of the 7 State s jurisdictional statute. 8 Id. at 316. The court thus indicated that its decision was grounded Judge George Bundy Smith s forceful dissent argued: 9 10 11 12 13 14 15 16 17 18 Carvajal, 6 N.Y.3d at 317 (G.B. Smith, J., dissenting). The 19 dissent also took the position that [b]ecause territorial 20 jurisdiction goes to the authority of the court to try a 21 defendant for the particular crimes in issue, no 22 preservation is necessary. 23 [T]he Constitution of the United States, the Constitution of the State of New York and the laws of the State of New York do not permit a person to be found guilty of criminal possession of a controlled substance on a theory of constructive possession rather than actual possession where both the substance and the defendant are in California. Id. at 322. Following the affirmance by the New York Court of 24 Appeals, Carvajal filed pro se a motion to vacate his 25 conviction. 26 2008 WL 4555531, at *20. 27 motion, and the First Department denied leave to appeal. See N.Y. Crim. Proc. Law § 440.10; Carvajal, The State Supreme Court denied the 14 1 Carvajal, 2008 WL 4555531, at *21. 2 timely application pro se for a writ of habeas corpus in the 3 United States District Court for the Southern District of 4 New York. 5 recommending that Carvajal s application be denied but that 6 a certificate of appealability should issue. 7 Next, Carvajal filed a Magistrate Judge Peck issued a report Id. at *1. The magistrate judge proceeded on the basis that the 8 state court had adjudicated Carvajal s federal 9 constitutional claim on the merits. (In so doing, the 10 magistrate judge overlooked or discounted the statement in 11 the Court of Appeals opinion that its decision was grounded 12 solely in state statutory law.) 13 judge analyzed the jurisdictional merits, giving deference 14 to the decision of the New York Court of Appeals. 15 *25; see also Jimenez v. Walker, 458 F.3d 130, 146 (2d Cir. 16 2006). 17 the New York Court of Appeals was not contrary to, or an 18 unreasonable application of, clearly established Supreme 19 Court precedent. 20 relevant Supreme Court precedent identified by the 21 magistrate judge is Strassheim v. Daily, 221 U.S. 280 22 (1911), which held: Accordingly, the magistrate Id. at The magistrate judge concluded that the decision of Carvajal, 2008 WL 4555531, at *25. The Acts done outside a jurisdiction, but 15 1 intended to produce and producing detrimental effects within 2 it, justify a state in punishing the cause of the harm as if 3 he had been present at the effect, if the state should 4 succeed in getting him within its power. 5 magistrate judge concluded: whether or not the New York 6 Court of Appeals properly interpreted the state [Criminal 7 Procedure Law s] long-arm provisions, as a matter of federal 8 constitutional law, [he could not] say that the New York 9 Court of Appeals decision was contrary to or an Id. at 285. 10 unreasonable application of Supreme Court precedent. 11 The Carvajal, 2008 WL 4555531, at *33. 12 The district judge adopted the recommendation of the 13 magistrate judge, observing in a supplemental memorandum 14 that the majority opinion of the New York Court of Appeals 15 specifically refused to entertain any discussion of federal 16 constitutional law, on the ground that petitioner had failed 17 to raise any federal constitutional challenge to the trial 18 court s exercise of jurisdiction. 19 07 Civ. 10635 (CM) (AJP), 2009 WL 62177, at *2 (S.D.N.Y. 20 Jan. 9, 2009). 21 York Court of Appeals interpretation of [Criminal Procedure 22 Law section 20.20(1)(c)] is the last word on what that Carvajal v. Artus, No. The district judge recognized that the New 16 1 [s]tate statute means. 2 that, although this procedural posture would normally bar 3 relief (unless Carvajal could demonstrate cause for his 4 default in state court and resulting prejudice), [t]he 5 issue is more confusing than usual in this particular case 6 given the state court s ruling that jurisdiction cannot be 7 waived. 8 statutory jurisdiction can never be waived was treated by 9 the district court as a sub silentio determination of 10 federal constitutional law --despite the state court s 11 disclaimer that it was not considering any such issue. 12 Id. at *3 n.1 (internal quotation marks omitted). 13 Accordingly, the district court issued a certificate of 14 appealability limited to the issue of whether New York 15 lacked territorial jurisdiction to try petitioner for the 16 three counts of criminal possession of a controlled 17 substance. 5 18 19 20 21 22 Id. Id. Still, the court considered Thus the state court s assertion that state Id. at *5. DISCUSSION I We review de novo a district court s denial of a writ 5 This Court appointed counsel to represent Carvajal on appeal. See Appellate Doc. Entry Date Sept. 22, 2009. 17 1 of habeas corpus. Cotto v. Herbert, 331 F.3d 217, 229 (2d 2 Cir. 2003). 3 Act of 1996 ( AEDPA ) provides that a state prisoner may 4 seek habeas corpus relief in federal court on the ground 5 that he is in custody in violation of the Constitution . . . 6 of the United States. 7 before a federal court can consider a habeas application 8 brought by a state prisoner, the habeas applicant must 9 exhaust all of his state remedies. The Antiterrorism and Effective Death Penalty 28 U.S.C. § 2254(a). However, Id. § 2254(b)(1)(A). 10 [E]xhaustion of state remedies requires that [a] petitioner 11 fairly present federal claims to the state courts in order 12 to give the [s]tate the opportunity to pass upon and correct 13 alleged violations of its prisoners federal rights. 14 Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) 15 (citing Picard v. Connor, 404 U.S. 270, 275 (1971) (internal 16 quotation marks and alterations omitted)); see also Lurie v. 17 Wittner, 228 F.3d 113, 124 (2d Cir. 2000). 18 requirement is animated by notions of comity between the 19 federal and [s]tate judicial systems. 20 Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999). 21 state prisoner is not required to cite chapter and verse of 22 the Constitution in order to satisfy this requirement, Daye 18 The exhaustion Strogov v. Attorney True, a 1 v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982) 2 (in banc); still, he must present his challenge in terms 3 that are likely to alert the [state] court[s] to the 4 claim s federal nature. Lurie, 228 F.3d at 124 (quoting 5 Daye, 696 F.2d at 192). A petitioner may satisfy the fair 6 presentation requirement by: 7 8 9 10 11 12 13 14 15 16 17 18 (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Daye, 696 F.2d at 194. If a habeas applicant fails to exhaust state remedies 19 by failing to adequately present his federal claim to the 20 state courts so that the state courts would deem the claim 21 procedurally barred, we must deem the claim[] procedurally 22 defaulted. 23 2001) (noting the apparent salve of deeming a claim not 24 presented in state court exhausted is cold comfort ). 25 dismissal of an application for habeas relief on the ground 26 of procedural default amounts to a disposition of the 27 habeas claim on the merits. Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. Id. 19 An applicant seeking Our 1 habeas relief may escape dismissal on the merits of a 2 procedurally defaulted claim only by demonstrating cause 3 for the default and prejudice or by showing that he is 4 actually innocent of the crime for which he was convicted. 5 Id. II 6 7 When a habeas applicant fails to exhaust his federal 8 constitutional claim in state court--and there has been no 9 showing of cause and prejudice or actual innocence--this 10 Court will generally be barred from granting habeas relief. 11 See Gray v. Netherland, 518 U.S. 152, 161-62 (1996). 12 however, Carvajal argues that the prosecution forfeited any 13 defense that would be based on his procedural default by its 14 failure to rely on this ground before the district court. 15 The prosecution acknowledges that it did not rely on a 16 procedural default defense in the district court but urges 17 us nonetheless to consider whether Carvajal failed to raise 18 his jurisdictional challenge in federal constitutional terms 19 in the state courts, and is thus barred from obtaining 20 relief in this Court. 21 22 Here, Prior to AEDPA, a state was normally . . . obligated to raise and preserve the procedural default defense. 20 1 Trest v. Cain, 522 U.S. 87, 89 (1997) (internal quotation 2 marks and alterations omitted). 3 clear that a federal appellate court was not obligated to 4 regard the [prosecution s] omission [of the defense] as an 5 absolute waiver of the claim. 6 129, 133 (1987); see also Washington v. James, 996 F.2d 7 1442, 1448 (2d Cir. 1993). 8 the [s]tate shall not be deemed to have waived the 9 exhaustion requirement or be estopped from reliance upon the At the same time, it was Granberry v. Greer, 481 U.S. AEDPA expressly provides that 10 requirement unless the [s]tate, through counsel, expressly 11 waives the requirement. 12 added). 13 § 2254(b)(3) applies with full force in cases . . . where 14 the procedural bar arises only as a direct result of the 15 petitioner s failure to exhaust his state law remedies. 16 McNair v. Cambell, 416 F.3d 1291, 1305 (11th Cir. 2005); see 17 also Ellis v. Hargett, 302 F.3d 1182, 1189 (10th Cir. 2002); 18 Franklin v. Johnson, 290 F.3d 1223, 1238 (9th Cir. 2002) 19 (O Scannlain, J., concurring). 20 state s procedural default argument is predicated on a 21 habeas applicant s failure to exhaust (as is the case here), 22 we may consider such an argument for the first time on 28 U.S.C. § 2254(b)(3) (emphasis Other courts of appeals have been persuaded that 21 We are persuaded that when a 1 appeal unless it was expressly waived in the district court. 2 See Franklin, 290 F.3d at 1238. 3 requirement. 4 intentional; express waiver would seem to require that these 5 features be made manifest. 6 This is a stringent Waiver by nature must be knowing and The prosecution s brief before the district court seems 7 to make an erroneous concession regarding exhaustion. 8 Ct. Doc. No. 10 at 28. 9 D. section of its brief entitled: If this Court Were to But it then goes on to argue--in a 10 Overlook the Procedural Bar, Petitioner s Claims Present No 11 Basis for Habeas Relief --that Carvajal s claim does not 12 present a basis for habeas relief because [a]lleged errors 13 of state substantive law are not reviewable in a federal 14 habeas proceeding. 15 D. Ct. Doc. No. 10 at 47-48. Pre-AEDPA, we reasoned: 16 17 18 19 20 21 22 23 24 [E]ven if the government s erroneous concession regarding exhaustion can be taken as a concession regarding procedural default, we believe that where such a concession constitutes merely an innocent error, there is no analytical or policy reason to treat it any differently than a failure to raise the defense at all. Washington, 996 F.2d at 1448. 25 incremental force post-AEDPA: circumstances may be 26 considered in deciding whether waiver is sufficiently 22 That analysis applies with 1 categorical. 2 (5th Cir. 1998) (stating that the nature of the state s 3 alleged waiver should be given consideration in assessing 4 whether sua sponte reliance upon a procedural default is 5 appropriate). 6 not explain how a state expressly waives the exhaustion 7 requirement, but . . . [w]aiver is traditionally defined 8 as an intentional relinquishment or abandonment of a known 9 right. D Ambrosio v. Bagley, 527 F.3d 489, 495 (6th Cir. 10 2008). We join the reasoning of at least one other sister 11 court of appeals in requiring a stringent standard for 12 proving waiver of exhaustion because such a standard is 13 squarely in line with the underlying purposes of the 14 exhaustion requirement. 15 800, 803 (3d Cir. 2003) (unpublished opinion). 16 [p]rinciples of comity and federalism bear on the relations 17 between court systems, and those relations will be affected 18 whether or not the litigants have raised the issue 19 themselves. 20 v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). 21 22 See Magouirk v. Phillips, 144 F.3d 348, 359 As other courts have observed, AEDPA does Dreher v. Pinchak, 61 F. App x Indeed, Washington, 996 F.2d at 1448; see also Acosta In light of the equivocal wording in the prosecution s brief before the district court, and recognizing that AEDPA 23 1 disfavors a state waiver of exhaustion, Lurie, 228 F.3d at 2 123, we decline to read the prosecution s concession as 3 waiver express within the meaning of 28 U.S.C. § 2254(b)(3). 4 See id., 228 F.3d at 123 ( Whatever counsel was saying, we 5 do not read it as an express waiver of the exhaustion 6 requirement. ); see also Carty v. Thaler, 583 F.3d 244, 256 7 (5th Cir. 2009) ( The touchstone for determining whether a 8 waiver is express is the clarity of the intent to waive. 9 (internal quotation marks omitted)). True, the prosecution 10 did not press the procedural default defense before the 11 district court; nevertheless, the prosecution is not 12 estopped from reliance upon the requirement before this 13 Court. 28 U.S.C. § 2254(b)(3). III 14 15 The state courts evidently understood Carvajal s 16 jurisdictional argument as a challenge to the State s 17 statutory jurisdiction under New York Criminal Procedure Law 18 section 20.20. 19 no federal claim was fairly presented to the state courts.6 Applying the Daye factors, we conclude that 6 Respondent urges this Court to decline to reach the merits of Carvajal s federal constitutional claim for a different reason. The prosecution contends that our review is barred because the decision of the state court rests on an adequate and independent state ground. Recognizing that 24 1 Carvajal s challenge was consistently expressed as an 2 argument that the New York courts erred in construing the 3 pertinent state jurisdictional statutes. 4 federal constitutional provision that might alert the state 5 courts that his claim was federal in nature. 6 relied on state court decisions interpreting state statutory 7 law. He pointed to no Rather, he Carvajal did not invoke pertinent federal cases the adequacy [of a state law ground of decision] is itself a federal question, Lee v. Kemna, 534 U.S. 362, 375 (2002), the Supreme Court has applied the independent and adequate state ground doctrine . . . in deciding whether federal . . . courts should address the claims of state prisoners in habeas corpus actions, Coleman v. Thompson, 501 U.S. 722, 729 (1991). This doctrine applies when a state prisoner presents both federal and state claims to the state court and the state court declines to address the federal claims because it is possible to rest its decision on a state law ground that is independent of the federal question and adequate to support the judgment. Id. Under those circumstances, when the state court clearly and expressly relies on a state law ground in rendering its decision, we will not grant a writ of habeas corpus. Id. at 735. The adequate and independent state grounds doctrine, however, has no application here. The adequate and independent state law grounds doctrine assumes that a state court had the opportunity to address a claim that is later raised in a federal habeas proceeding. It is simply inapplicable in a case such as this one, where the claim was never presented to the state courts. Teague v. Lane, 489 U.S. 288, 299 (1989). Perhaps not surprisingly, the conflation of an adequate and independent state law ground of decision and a procedural default based on a habeas applicant s failure to raise a federal issue before the state courts appears to also have caused confusion in the district court. Carvajal, 2009 WL 62177, at *2. 25 1 employing constitutional analysis, nor did he seek support 2 for his contention from state cases employing 3 constitutional analysis in like fact situations. 4 F.2d at 194. 5 failing to point to a like fact situation[]. 6 Appellate Division recognized, this was an unusual use of 7 Criminal Procedure Law section 20.20. 8 N.Y.S.2d at 454. 9 federal habeas court to reexamine state-court determinations Daye, 696 Of course, it is hard to fault Carvajal for As the Carvajal, 786 However, [i]t is not the province of a 10 on state-law questions. [S]tate courts are the ultimate 11 expositors of state law. 12 199 (2d Cir. 2010) (internal quotation marks and citation 13 omitted); see also Tunick v. Safir, 209 F.3d 67, 76 (2d Cir. 14 2000) ( Th[e] question of the extent to which the state 15 court can go when interpreting its own laws is 16 paradigmatically one of state law[.] (internal quotation 17 marks omitted)). 18 interpretation of its state statute as unwise, or even as 19 jurisdictional overreaching, this does not entitle Carvajal 20 to habeas relief. 21 U.S. ---, 2011 WL 197627, at *2 (Jan. 24, 2011) (per 22 curiam). Mannix v. Phillips, 619 F.3d 187, Even if this Court views the state court s See Swarthout v. Cooke, No. 10-333, 562 26 1 The New York Court of Appeals ruled that the question 2 whether New York had jurisdiction to prosecute Carvajal 3 could not be waived. 4 understand this conclusion as a ruling on federal law. 5 in context, the New York Court of Appeals was evidently 6 opining on a matter of state law; put simply, the New York 7 court ruled--as a matter of state law--that the power of a 8 state court to act is not an issue that can be waived even 9 if a defendant waives the right to require the prosecution Carvajal, 6 N.Y.3d at 312. We do not Read 10 to prove the jurisdictional element to a jury beyond a 11 reasonable doubt. 12 of the New York Court of Appeals to construe the 13 jurisdictional statute passed by the New York State 14 legislature. 15 (2001). 16 it understands the statutory jurisdictional provision to 17 have supplanted the common-law territorial principle and 18 to have broaden[ed] the territorial scope of criminal 19 jurisdiction. 20 N.Y.2d 618, 624 (1996) (stating [t]he starting point for 21 the [s]tate s jurisdiction in criminal cases is of course 22 the territorial principle derived from the common law, but Id. at 311-12. It is within the province See People v. Kassebaum, 95 N.Y.2d 611, 617-18 The New York Court of Appeals has made plain that Id. at 617; see also People v. Stokes, 88 27 1 that [t]his principle has been supplanted by [s]tate 2 statutes broadening the territorial principle of criminal 3 jurisdiction ). 4 interpretation and application of its state jurisdictional 5 statute is neither here nor there;7 our disagreement would 6 not in any event entitle Carvajal to relief. 7 Whether we agree with New York s The Supreme Court doubt[s] that a defendant s citation 8 to a state-court decision predicated solely on state law 9 ordinarily will be sufficient to fairly apprise a reviewing 10 court of a potential federal claim. Anderson v. Harless, 11 459 U.S. 4, 7 n.3 (1982) (per curiam). 12 guidance, in recognition of our dual judicial system, and In light of that 7 There is very little state case law interpreting New York Criminal Procedure Law section 20.20(1)(c). Prior to the New York Court of Appeals decision in this case, at least one state trial court declined to give an expansive reading to the jurisdictional provision: The People would read [New York Criminal Procedure Law section 20.20(1)(c)] as subjecting substantive crimes committed out of state to New York prosecution merely because they allegedly occurred in furtherance of a New York conspiracy. The court does not agree. People v. Puig, 378 N.Y.S.2d 925, 932 (Sup. Ct. N.Y. Co. 1976). The New York Court of Appeals, however, read section 20.20(1)(c) in precisely the manner the state trial court in Puig eschewed: Plainly, jurisdiction over an offense exists based on a conspiracy occurring in New York to commit that offense. Carvajal, 6 N.Y.3d at 313. 28 1 out of concern for harmonious relations between the two 2 adjudicatory institutions, we cannot find that Carvajal 3 properly presented his federal claim to the state courts in 4 a manner that would allow this Court to grant relief. 5 696 F.2d at 191; see also DiSimone v. Phillips, 461 F.3d 6 181, 190 (2d Cir. 2006); Galdamez v. Keane, 394 F.3d 68, 72- 7 73 (2d Cir. 2005). Daye, IV 8 9 The failure of Carvajal s counsel to press his 10 jurisdictional objection in federal constitutional terms 11 does not constitute cause for a procedural default. 8 12 Murray v. Carrier, 477 U.S. 478, 486 (1986). 13 has not argued that he is actually innocent (meaning 14 factually innocent) of the crime for which he was 15 convicted.9 And, Carvajal Bousley v. United States, 523 U.S. 614, 622, 8 The question of whether Carvajal s counsel was ineffective in failing to hold the prosecution to its burden of proving jurisdiction beyond a reasonable doubt is not before us. 9 [W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default. Smith v. Murray, 477 U.S. 527, 537 (1986) (internal quotation marks omitted and emphasis added). Actual innocence means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 29 1 623 (1998). Accordingly, we must dismiss Carvajal s 2 application for habeas relief. 3 V 4 Carvajal s appeal relies heavily on the dissenting Aparicio, 269 F.3d at 89-90. 5 opinion of Judge Bundy Smith, which took the view that New 6 York law permits criminal prosecution for a drug possession 7 offense only when the criminal conduct--or some consequence 8 of the conduct--occurred within the state. 9 N.Y.3d at 322-30 (G.B. Smith, J., dissenting). Carvajal, 6 This (1998). Any assertion by Carvajal that he was actually innocent would necessarily be limited to the idea that he was innocent of drug possession in New York: If he had been prosecuted for drug possession in California, there is little doubt he could properly have been convicted. The Supreme Court has provided no guidance on whether a meritorious claim that the state court lacked jurisdiction to prosecute would constitute a claim of actual innocence for purposes of seeking habeas relief. If Judge Bundy Smith is right that no New York court could [have] acquired jurisdiction over the three counts of criminal possession because no such crime occurred in New York, Carvajal, 6 N.Y.3d at 328 (G.B. Smith, J., dissenting), Carvajal s jurisdictional claim might be a sufficient basis from which he could have argued that he is actually innocent and entitled to habeas relief. It may be that conviction in New York for conduct that is not a crime against that sovereign would fall within the narrow scope of the miscarriage of justice exception as defined by the Supreme Court. Calderon v. Thompson, 523 U.S. 538, 559 (1998). But, because Carvajal does not press an actual innocence argument before this Court, we decline to resolve these open and vexing questions and instead rest our decision on the grounds presented to us. 30 1 argument has substantial appeal. Indeed, Carvajal s 2 conviction in New York for a crime committed wholly in 3 another state seems anomalous to us, as it did to Judge 4 Bundy Smith. 5 there was error in the state court s statutory 6 interpretation because [i]t is well established that a 7 federal habeas court does not sit to correct a 8 misapplication of state law, unless such misapplication 9 violates the Constitution, laws, or treaties of the United However, we have no occasion to decide whether 10 States. 11 2002). 12 renders a [s]tate s criminal judgment susceptible to 13 collateral attack in the federal courts. 14 Corcoran, 131 S. Ct. 13, 2010 WL 4394137, at *2 (Nov. 8, 15 2010) (per curiam). 16 Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. [I]t is only noncompliance with federal law that Wilson v. Judge Bundy Smith s dissent is in major part directed 17 to New York law. It does appear that the Court of Appeals 18 ruling in this case may have been a pivot. 19 McLaughlin, 80 N.Y.2d at 471 (providing [t]he general rule 20 in New York is that, for the [s]tate to have criminal 21 jurisdiction, either the alleged conduct or some consequence 22 of it must have occurred within the [s]tate (emphasis 31 Compare 1 added)), and Kassebaum, 95 N.Y.2d at 619 (characterizing the 2 jurisdictional inquiry as whether the People established 3 that defendant and his accomplices engaged in conduct within 4 New York sufficient to establish an element of attempted 5 criminal possession of a controlled substance ), with 6 Carvajal, 6 N.Y.3d at 313 (finding jurisdiction over 7 possession offense because there was evidence of 8 defendant s conduct in New York sufficient to establish his 9 conspiracy to commit first degree criminal possession of a 10 11 controlled substance (emphasis added)). In 1925, then-Judge Cardozo concluded that when a plan 12 to commit larceny was hatched in New York, but the 13 execution was in other lands, New York lacked jurisdiction 14 to prosecute a participant in that conspiracy for larceny 15 committed abroad. 16 (1925). 17 court s construction of the statute was not a consequence 18 of some inherent limitation upon the power of the 19 Legislature. 20 interpretation, the Werblow Court concluded that the 21 jurisdictional statute was not intended to provide for an People v. Werblow, 241 N.Y. 55, 58-61 At the same time, Werblow made it clear that the Id. As a matter of state statutory 32 1 extension of jurisdiction until now unknown to our law. 10 2 Id. 3 Appeals were deemed contrary to, or an unreasonable 4 application of, prior state precedent, this would not aid 5 Carvajal s position before this Court. 6 to [the New York Court of Appeals ] interpretation of 7 federal law, but we are bound by its construction of New 8 York law. 9 2010) (in banc). But even if the decision of the New York Court of [W]e do not defer Portalatin v. Graham, 624 F.3d 69, 84 (2d Cir. 10 Judge Bundy Smith s dissent also states that Carvajal s 11 conviction for criminal possession of a controlled substance 12 was obtained in violation of the federal Constitution. 13 argues that New York s exercise of jurisdiction over the 14 possession counts was a violation of Article III, § 2 and 15 the Sixth Amendment. 16 Smith, J., dissenting). 17 it clear that Article III and the Sixth Amendment are It Carvajal, 6 N.Y.3d at 321-22 (G.B. However, the Supreme Court has made 10 One commentator has observed that New York could not validly make it a crime for its citizens to play the slot machines in Las Vegas, Nevada, where this is lawful. Such a statute would violate the full faith and credit clause. Rollin M. Perkins, The Territorial Principle in Criminal Law, 22 Hastings L.J. 1155, 1164 (1970-71); see also U.S. Const. art. IV, § 1. We are not, however, faced with such a case. 33 1 understood as venue provisions. United States v. Cabrales, 2 524 U.S. 1, 6 (1998); Williams v. Florida, 399 U.S. 78, 93 3 n.35 (1970). 4 to waiver. 5 587, 590 (2d Cir. 2001); People v. Moore, 46 N.Y.2d 1, 10 6 (1978). 7 not decided whether the Sixth Amendment s vicinage clause 8 applies to the states. 9 1072 (9th Cir. 2004); see also People v. Goldswer, 39 N.Y.2d Venue, unlike jurisdiction proper, is subject See, e.g., United States v. Calderon, 243 F.3d Moreover, it appears that the Supreme Court has Stevenson v. Lewis, 384 F.3d 1069, 10 656, 662 (1976) (stating [i]n Federal prosecutions 11 undoubtedly district means the Federal judicial districts 12 established by Congress but, [i]t is not entirely clear 13 what this means in [s]tate prosecutions, or whether in fact 14 it imposes any obligations on the [s]tate to create or 15 designate subdivisions limiting venue and vicinage within 16 the [s]tate. ). 17 challenged his prosecution for criminal possession of a 18 controlled substance on the ground that it was in violation 19 of his federal constitutional right to proper venue. 20 One thing is clear: Carvajal never On appeal, Carvajal also invokes Strassheim (identified 21 by the magistrate judge as the relevant Supreme Court 22 precedent), which holds that a state may punish [a]cts done 34 1 outside a jurisdiction, but intended to produce and 2 producing detrimental effects within it. 3 (emphasis added). 4 from Strassheim is prescriptive, and that actual effects are 5 required to support jurisdiction. 6 relied on Strassheim before the state courts--which he did 7 not--we are not convinced that he would be entitled to 8 relief from this Court. 9 has observed, the constitutional limits of state courts 10 extraterritorial jurisdiction in criminal matters have not 11 been precisely delineated, [but] it is clear that states may 12 extend their jurisdiction beyond the narrow limits imposed 13 by the common law. 14 (Cal. 2005), cert. denied, 545 U.S. 1133 (2005). 15 New York has upheld the exercise of extraterritorial 16 jurisdiction in scenarios that do not fall within the 17 Strassheim test, and no one has suggested that doing so was 18 a violation of the federal Constitution. 19 York recognizes a theory of protective jurisdiction, 20 pursuant to which the jurisdiction of the [s]tate, or one 21 of its counties, may be exercised over conduct outside its 22 geographical borders where such conduct was intended to have 221 U.S. at 285 But it is not evident that this passage So even if Carvajal had As the Supreme Court of California People v. Betts, 103 P.3d 883, 887 35 In fact, For example, New 1 a deleterious effect within its territory. 11 2 Fea, 47 N.Y.2d 70, 76 (1979). 3 People v. Ultimately, even if Carvajal had fairly presented to 4 the state courts a federal constitutional challenge to New 5 York s exercise of jurisdiction, and the state courts had 6 rejected that claim on its merits, it is not clear that we 7 would be empowered to grant relief. 8 Cockrell, 537 U.S. 322, 326 (2003) (stating AEDPA 9 constrains a federal court s power to disturb state-court See Miller-El v. 10 convictions ). We cannot grant relief with respect to any 11 claim that was adjudicated on the merits in [s]tate court 12 proceedings unless the adjudication of that claim resulted 13 in a decision that was contrary to, or involved an 14 unreasonable application of, clearly established Federal 15 law, as determined by the Supreme Court of the United 11 Other states have done likewise. See, e.g., Betts, 103 P.3d at 887 (upholding jurisdiction over crime committed in another state when intent to commit crime formed in prosecuting state); see also Connecticut v. Cardwell, 718 A.2d 954, 963 (Conn. 1998) (observing that the legislature has the authority to enact criminal statutes that have an extraterritorial effect ); but cf. State v. Dudley, 614 S.E.2d 623, 626 (S.C. 2005); People v. Blume, 505 N.W.2d 843, 844 (Mich. 1993) (holding Michigan may exercise extraterritorial jurisdiction over acts committed outside Michigan when the acts are intended to and do have a detrimental effect within the state. (emphasis added)). 36 1 2 States. 12 28 U.S.C. § 2254(d)(1). The Supreme Court has not had occasion to say how far a 3 state may go in expanding its criminal jurisdiction. 4 therefore cannot say that the state court s interpretation 5 of New York Criminal Procedure Law section 20.20, however 6 surprising, was in conflict with governing law set forth 7 by the Supreme Court.13 8 405 (2000). Williams v. Taylor, 529 U.S. 362, CONCLUSION 9 10 We We conclude that Carvajal failed to present his 11 jurisdictional objection to the state courts in federal 12 constitutional terms and that he cannot escape the 13 consequences of his failure to exhaust that claim and the 12 On the other hand, if Carvajal had fairly presented his federal constitutional claim to the state courts but those courts had not adjudicated his contention on its merits, we would review his jurisdictional challenge de novo. See Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007). Under those circumstances, we might agree with Judge Bundy Smith that New York s exercise of jurisdiction was in violation of the Constitution. 13 The New York Court of Appeals did not cite Strassheim or any territorial jurisdictional principle grounded in the federal Constitution; it would be improper therefore to rule that the state court identifie[d] the correct governing legal principle from [the Supreme] Court s decisions but unreasonably applie[d] that principle. Williams v. Taylor, 529 U.S. 362, 413 (2000). 37 1 resulting procedural default. Any disagreement this Court 2 may have with the state high court s interpretation of its 3 state jurisdictional statute does not provide grounds for 4 habeas relief. 5 writ of habeas corpus is DISMISSED. Accordingly, Carvajal s application for a 38

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