11-1650-pr

Norcott Corby v. Dale Artus, et ano 

1 

1 UNITED STATES COURT OF APPEALS 

2 FOR THE SECOND CIRCUIT 

3 August Term 2011 

4 (Argued: April 24, 2012 Decided: October 10, 2012) 

5 Docket No. 11-1650 

6 --------------------------------------------------------x 

7 NORCOTT CORBY, 

8 Petitioner-Appellee, 

9 -- v. -- 

DALE ARTUS and ERIC T. SCHNEIDERMAN,1 10 

11 Respondents-Appellants. 

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

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

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

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

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

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

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

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

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

21 that petitioner-appellee had accused her. On appeal, respondents22 appellants, New York authorities, argue that petitioner-appellee’s 

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

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

 

1

 The Clerk of the Court is directed to amend the official caption 

as set forth above to reflect the substitution of the current New 

York Attorney General. See Fed. R. App. P. 43(c)(2). 
2 

1 Clause violation occurred and therefore REVERSE the judgment of the 

2 district court. 

3 KAREN SCHLOSSBERG, Assistant 

4 District Attorney (Alan Gadlin, 

5 Assistant District Attorney, on the 

6 brief), for Cyrus Vance, Jr., 

7 District Attorney, New York County, 

8 NY, for Respondents-Appellants. 

9 

10 ALAN S. AXELROD, Legal Aid Society, 

11 New York, NY, for Petitioner12 Appellee. 

13 

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

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

16 Clinton Correctional Facility and the Attorney General of the State 

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

18 judgment of the United States District Court for the Southern 

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

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

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

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

23 determined that the state trial court violated Corby’s 

24 Confrontation Clause rights when it prohibited him from cross25 examining the prosecution’s principal witness about whether she had 

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

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

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

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

30 harmless. 
3 

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

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

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

4 Confrontation Clause violation occurred and therefore REVERSE the 

5 judgment of the district court. 

6 BACKGROUND 

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

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

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

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

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

12 summarize the background for this appeal as follows: 

13 I. Factual Background

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

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

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

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

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

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

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

21 witness who testified directly about the events surrounding 

22 Mohammed’s death. 

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

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

25 -- use her Upper Manhattan apartment to conduct his drug deal with 
4 

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

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

3 apartment, presumably where Mohammed was waiting. When they 

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

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

6 instruction, Burnett helped Corby and his associates steal drugs 

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

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

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

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

11 Approximately a week after the murder, New York police 

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

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

14 Detective John Bourges, who was in charge of investigating 

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

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

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

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

19 parole violation. Burnett testified that the following January, 

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

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

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

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

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

25 informant. He also sought the DEA’s help in tracking down Burnett, 
5 

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

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

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

4 provided Hom with specific information about certain drug-related 

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

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

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

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

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

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

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

12 relayed this conversation to Detective Bourges. 

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

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

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

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

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

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

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

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

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

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

23 she was given Miranda warnings. There, for the first time, Burnett 
6 

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

months later.2 2 

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

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

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

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

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

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

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

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

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

12 had accused her of the crime. 

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

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

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

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

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

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

19 to 25 years, which he is currently serving. 

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

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

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

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

 

2

 Bourges did not arrest Corby’s associates because he ultimately 

was unable to locate them. 
7 

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

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

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

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

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

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

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

8 precinct and gave her Miranda warnings. 

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

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

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

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

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

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

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

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

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

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

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

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

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

22 identify Corby as the source of the accusation against Burnett 

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

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

25 who was there, and saw [Burnett] do it.” Appendix (“A.”) 104. 
8 

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

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

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

4 her of the murder. 

5 The trial court agreed with the prosecution that the sought 

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

7 the trial, it had given Corby’s lawyer “every latitude” in cross8 examining Burnett. Id. at 110. And, while Corby had the right to 

9 offer evidence that Burnett had killed Mohammed and that she 

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

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

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

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

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

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

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

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

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

19 troublesome because Corby’s implication of Burnett was unreliable 

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

21 tracking down Burnett) and Bourges told Burnett something different 

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

23 worried that introducing such an accusation this way was unduly 

24 prejudicial to the government because the prosecution could not 
9 

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

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

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

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

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

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

7 observed that if Corby wanted to introduce an accusation against 

8 Burnett, he could take the stand himself and be subject to cross9 examination on the accusation. The trial court rejected Corby’s 

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

11 whether Bourges had said that some unidentified person had accused 

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

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

14 self-serving circumstances without permitting cross-examination of 

15 that accusation. 

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

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

18 exchange: 

19 Q. What actually happened was, after Bourges confronted 

20 you with information, he then asked you to come with him 

21 to a police station; right? 

22 

23 A. I broke down in my kitchen. 

24 

25 Q. Yes. 

26 

27 A. Right after that. 

28 

29 Q. You began to cry? 

30 

31 A. Then I went to the precinct. 
10 

1 

2 Q. Then you were asked to accompany the detective to the 

3 precinct; right? 

4 

5 A. Yes. 

6 

7 Q. In a police car? You went to the precinct; right? 

8 

9 A. Yes. 

10 

11 . . . 

12 

13 Q. [The police detectives] sat you down, right? 

14 

15 A. Yes. 

16 

17 Q. They told you they wanted to talk to you; is that 

18 right? 

19 

20 A. Yes. 

21 

22 Q. And then they read you your Miranda rights; right? 

23 

24 A. Yes. 

25 

26 Q. They told you that anything you said could be used 

27 against you; right? 

28 

29 A. Yes. 

30 

31 Q. And that’s the first time you told any police officer 

32 that Norcott Corby was involved in this case; right? 

33 

34 A: Yes. 

35 Id. at 137-39. 

36 III. Procedural Background

37 Corby challenged his conviction, first through the New York 

38 state appellate courts and now through federal habeas review. 

39 A. Direct Appeal 

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

41 trial court had violated his Confrontation Clause rights under the 
11 

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

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

3 murder before she first implicated Corby. 

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

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

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

7 the trial court properly exercised its discretion in excluding the 

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

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

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

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

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

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

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

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

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

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

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

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

20 32. 

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

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

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

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

25 determined that it had not. The Court of Appeals held that the 
12 

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

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

3 notwithstanding the challenged evidentiary ruling. It reasoned 

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

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

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

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

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

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

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

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

12 specific motive to retaliate against Corby for his alleged 

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

14 Smith, J., dissenting). 

15 B. This Habeas Petition 

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

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

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

19 and recommendation to the district court concluded that the New 

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

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

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

23 court disagreed. Like the dissenting opinions from the state 

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

25 of evidence regarding the alleged accusation eliminated a specific, 
13 

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

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

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

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

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

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

7 therefore granted the writ. The State appeals. 

8 DISCUSSION 

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

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

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

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

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

14 and that the Court of Appeals misapplied Sixth Amendment precedent 

15 in concluding otherwise. 

16 I. Right of Cross-Examination 

17 “The Confrontation Clause of the Sixth Amendment guarantees 

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

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

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

21 defendant “a meaningful opportunity to cross-examine witnesses 

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

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

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

25 Clause by showing that he was prohibited from engaging in otherwise 
14 

1 appropriate cross-examination designed to show a prototypical form 

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

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

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

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

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

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

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

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

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

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

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

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

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

15 has abused its broad discretion” (internal quotation marks 

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

17 with other determinations of admissibility of evidence, courts 

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

19 510. 

20 II. Standard of Review 

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

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

23 Cir. 2002). 

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

25 granted regarding a claim that was “adjudicated on the merits” in 
15 

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

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

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

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

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

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

7 because the New York Court of Appeals unreasonably applied the 

8 Supreme Court’s Confrontation Clause jurisprudence in affirming the 

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

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

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

12 III. Analysis 

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

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

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

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

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

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

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

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

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

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

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

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

25 plausible candidate.” Id. at 235. Thus, any additional evidence 
16 

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

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

3 been unduly prejudicial to the prosecution for the reasons stated 

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

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

6 discretion. 

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

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

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

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

11 against Corby for his alleged accusation against her by pointing 

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

13 Supreme Court’s statement in Van Arsdall that: 

14 [A] criminal defendant states a violation of the 

15 Confrontation Clause by showing that he was prohibited 

16 from engaging in otherwise appropriate cross-examination 

17 designed to show a prototypical form of bias on the part 

18 of the witness, and thereby to expose to the jury the 

19 facts from which jurors could appropriately draw 

20 inferences relating to the reliability of the witness. 

21 

22 475 U.S. at 680 (internal quotation marks and modification 

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

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

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

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

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

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

29 For two reasons, we disagree with their conclusion. 
17 

1 A. Corby Failed to Argue Retaliation Bias at Trial 

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

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

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

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

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

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

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

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

10 accusation coming from someone who had witnessed the events in 

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

12 would have foreclosed any retaliation argument: he would forgo 

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

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

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

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

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

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

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

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

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

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

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

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

25 arguably implied the retaliation-bias theory of relevance: 
18 

1 [W]ere the jury to hear that the defendant was accusing 

2 her, then the jurors would have a fact from which they 

3 could infer that she has a specific motive to cast blame 

4 on another. Were the Jury to hear that it was the 

5 defendant who was accusing her, then the jurors would 

6 have a fact from which they could infer that Ms. Burnett 

7 has a particular motive to lie against this defendant. 

8 Were the jury to hear that the defendant was accusing 

9 her, and that the Detective was confronting her with this 

10 material, then the jurors would have a fact from which 

11 they could infer that she has a motive to avoid being 

12 investigated herself. 

13 

14 Id. at 7-8. We conclude, however, that this single statement, read 

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

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

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

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

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

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

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

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

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

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

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

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

27 B. The Desired Testimony Was Admitted by Implication 

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

29 the facts Corby sought to elicit from Burnett were effectively 

30 before the jury at his trial. 
19 

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

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

3 the right not to have the incriminating hearsay statements of non4 testifying co-defendants admitted against him. In Mason v. Scully, 

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

6 be applied to exclude testimony when an arresting officer would 

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

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

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

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

11 question is whether the way the prosecutor solicited the testimony 

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

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

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

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

16 the very information that would require exclusion under Mason and 

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

18 Detective Bourges claimed to have met with Corby and discussed 

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

20 Philadelphia and tell her about his purported conversation with 

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

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

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

24 implication of this chronology was the substance of that which 

25 Corby argues he was unable to present to the jury: that Burnett 
20 

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

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

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

4 jurors could appropriately draw inferences relating to the 

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

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

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

8 Confrontation Clause rights. 

9 * * * 

10 Because we hold that no constitutional violation occurred, we 

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

12 however, that the district court applied an incorrect harmless 

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

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

15 is whether a constitutional error was harmless beyond a reasonable 

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

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

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

19 unless it had substantial and injurious effect or influence in 

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

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

22 CONCLUSION 

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

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

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