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

1 UNITED STATES COURT OF APPEALS 

### 1 FOR THE SECOND CIRCUIT 

### 2 August Term 2011 

### 3 (Argued:April 24, 2012 Decided: October 10, 2012) 

### 4 Docket No. 11-1650 

### 5 --------------------------------------------------------x 

### 6 NORCOTT CORBY, 

### 7Petitioner-Appellee, 

### 8

-- v. -- 

### 9 DALE ARTUS and ERIC T. SCHNEIDERMAN,1 

### 10Respondents-Appellants. 

### 11

--------------------------------------------------------x 

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

### 13Appeal from a judgment of the United States District Court for 

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

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

### 16 held that the New York Court of Appeals erred in concluding that 

### 17 the state trial court permissibly barred cross-examination of the 

### 18main prosecution witness on the issue of whether she had accused 

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

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

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

### 22 Confrontation Clause rights were not violated and that even if they 

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

### 24

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

### 1 district court. 

### 2 KAREN SCHLOSSBERG, Assistant 

### 3 District Attorney (Alan Gadlin, 

### 4 Assistant District Attorney, on the 

### 5 brief), for Cyrus Vance, Jr., 

### 6 District Attorney, New York County, 

### 7 NY, for Respondents-Appellants. 

### 8 9 ALAN S. AXELROD, Legal Aid Society, 

### 10 New York, NY, for Petitioner

### 11 Appellee. 

### 12 13 JOHN M. WALKER, JR., Circuit Judge: 

### 14Respondents-appellants are the Superintendent of New York’s 

### 15 Clinton Correctional Facility and the Attorney General of the State 

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

### 17 judgment of the United States District Court for the Southern 

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

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

### 20 state inmate by virtue of his New York state convictions for 

### 21 second-degree murder and first-degree robbery. The district court 

### 22 determined that the state trial court violated Corby’s 

### 23 Confrontation Clause rights when it prohibited him from cross

### 24 examining the prosecution’s principal witness about whether she had 

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

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

### 27 Court of Appeals misapplied U.S. Supreme Court precedent in 

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

### 29 harmless. 

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

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

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

### 3 Confrontation Clause violation occurred and therefore REVERSE the 

### 4 judgment of the district court. 

### 5

**BACKGROUND** 

### 6The factual and procedural history of this case is set forth 

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

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

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

### 10 14, 15-18 (1st Dep’t 2004). For present purposes, it suffices to 

### 11 summarize the background for this appeal as follows: 

### 12 **I. Factual Background** 

### 13Corby was tried and convicted by a jury in New York Supreme 

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

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

### 16 death of Yousef Mohammed. Mohammed was a drug dealer from San 

### 17 Francisco who had traveled to New York City to sell heroin to 

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

### 19 the prosecution’s principal witness against Corby, and the only 

### 20 witness who testified directly about the events surrounding 

### 21 Mohammed’s death. 

### 22Burnett testified as follows: She agreed to let Corby –- who 

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

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

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

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

### 2 apartment, presumably where Mohammed was waiting. When they 

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

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

### 5 instruction, Burnett helped Corby and his associates steal drugs 

### 6 from Mohammed’s hotel room, remove Mohammed’s body from her 

### 7 apartment and clean up the blood. After the murder, Corby 

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

### 9 threatened to kill her and her family if she reported him. 

### 10Approximately a week after the murder, New York police 

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

### 12 Burnett’s contact information in Mohammed’s hotel room and 

### 13 Detective John Bourges, who was in charge of investigating 

### 14 Mohammed’s death, visited Burnett’s apartment. Burnett, who 

### 15 testified that Corby threatened to kill her son if she spoke to 

### 16 Bourges about the murder, claimed to know nothing about it. 

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

### 18 parole violation. Burnett testified that the following January, 

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

### 20 family to Philadelphia because she still feared him. She admitted 

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

### 22 In April 1998, following his release from prison, Corby met 

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

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

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

### 1 suggested that Corby report the theft to local authorities, which 

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

### 3 provided Hom with specific information about certain drug-related 

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

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

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

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

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

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

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

### 11 relayed this conversation to Detective Bourges. 

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

### 13 Bourges and another detective paid Burnett another visit, this time 

### 14 at her Philadelphia residence. Burnett claimed not to recognize a 

### 15 photograph of Mohammed. Bourges then told Burnett that he had 

### 16 spoken with Corby and that Corby had accused Burnett of murdering 

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

### 18met with DEA Agent Hom, not Bourges, and Corby had only said that 

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

### 20 after hearing about Corby’s alleged accusation, Burnett began 

### 21 crying and accompanied the detectives to the local precinct, where 

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

### 236 implicated Corby in Mohammed’s death. Corby was arrested several 

### 1months later.2 

### 2 While the foregoing account of Corby’s April 1998 interview 

### 3 with Hom and of Bourges’s subsequent visit to Burnett’s 

### 4 Philadelphia residence was elicited at a pretrial hearing, not all 

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

### 6 Specifically, although the jury learned that Corby had spoken with 

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

### 8 that meeting with Burnett, the jury never was explicitly told that 

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

### 10murder or that Bourges later told Burnett (incorrectly) that Corby 

### 11 had accused her of the crime. 

### 12 **II. Corby’s Trial and the Cross-Examination at Issue** 

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

### 14 second-degree murder and first-degree robbery in connection with 

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

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

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

### 18 to 25 years, which he is currently serving. 

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

### 20 testifying witness to the murder -- about her personal history, her 

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

### 22 particular, counsel focused on Burnett’s delayed implication of 

### 23

2Bourges did not arrest Corby’s associates because he ultimately was unable to locate them.7 Corby in Mohammed’s murder. Corby’s lawyer confronted Burnett with 

### 1 her original claim to law enforcement that she knew nothing of 

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

### 3 of this crime until after Bourges visited her in Philadelphia and 

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

### 5met with Corby. And he established that, after Bourges told 

### 6 Burnett about that meeting, Bourges took Burnett to the local 

### 7 precinct and gave her Miranda warnings. 

### 8 The trial court, however, sustained the prosecution’s 

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

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

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

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

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

### 14 wanted the jury to learn that Bourges told Burnett that Corby had 

### 15 accused her of murdering Mohammed and that it was only then that 

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

### 17 Burnett and another had murdered Mohammed, and that when Burnett 

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

### 19motive to lie and shift the blame falsely to Corby. Counsel 

### 20 explained that he wanted to craft the cross-examination question to 

### 21 identify Corby as the source of the accusation against Burnett 

### 22 because Burnett would have feared that the police would find such 

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

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

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

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

### 2 had told her that someone –- without specifying who –- had accused 

### 3 her of the murder. 

### 4 The trial court agreed with the prosecution that the sought 

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

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

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

### 8 offer evidence that Burnett had killed Mohammed and that she 

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

### 10 Corby could introduce such evidence. The judge concluded that the 

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

### 12 speculate about whether Corby in fact had accused Burnett. The 

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

### 14 Bourges said Corby had said, Corby’s attorney was trying to 

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

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

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

### 18 troublesome because Corby’s implication of Burnett was unreliable 

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

### 20 tracking down Burnett) and Bourges told Burnett something different 

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

### 22 worried that introducing such an accusation this way was unduly 

### 23 prejudicial to the government because the prosecution could not 

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

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

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

### 3 Burnett whether Bourges had told her that he had spoken with Corby 

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

### 5 substance of what Bourges claimed Corby had said. It further 

### 6 observed that if Corby wanted to introduce an accusation against 

### 7 Burnett, he could take the stand himself and be subject to cross

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

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

### 10 whether Bourges had said that some unidentified person had accused 

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

### 12 trying to introduce an accusation that was made in unreliable and 

### 13 self-serving circumstances without permitting cross-examination of 

### 14 that accusation. 

### 15Following the trial court’s ruling, Corby’s lawyer continued 

### 16 his cross-examination of Burnett, which included the following 

### 17 exchange: 

### 18 Q. What actually happened was, after Bourges confronted 

### 19 you with information, he then asked you to come with him 

### 20 to a police station; right? 

### 21 22 A. I broke down in my kitchen. 

### 23 24 Q. Yes. 

### 25 26 A. Right after that. 

### 27 28 Q. You began to cry? 

### 29 30 A. Then I went to the precinct. 

### 3110 

### 1 Q. Then you were asked to accompany the detective to the 

### 2 precinct; right? 

### 3 4 A. Yes. 

### 5 6 Q. In a police car? You went to the precinct; right? 

### 7 8 A. Yes. 

### 9 10

. . . 

### 11 12 Q. [The police detectives] sat you down, right? 

### 13 14 A. Yes. 

### 15 16 Q. They told you they wanted to talk to you; is that 

### 17 right? 

### 18 19 A. Yes. 

### 20 21 Q. And then they read you your Miranda rights; right? 

### 22 23 A. Yes. 

### 24 25 Q. They told you that anything you said could be used 

### 26 against you; right? 

### 27 28 A. Yes. 

### 29 30 Q. And that’s the first time you told any police officer 

### 31 that Norcott Corby was involved in this case; right? 

### 32 33 A: Yes. 

### 34 Id. at 137-39**.** 

### 35 **III. Procedural Background** 

### 36Corby challenged his conviction, first through the New York 

### 37 state appellate courts and now through federal habeas review. 

### 38 **A. Direct Appeal** 

### 39Among Corby’s points on direct appeal, he argued that the 

### 40 trial court had violated his Confrontation Clause rights under the 

### 4111 U.S. Constitution by precluding him from asking Burnett whether 

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

### 2murder before she first implicated Corby. 

### 3 In December 2004, the Appellate Division rejected Corby’s 

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

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

### 6 the trial court properly exercised its discretion in excluding the 

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

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

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

### 10 however, would have overturned the conviction because, in its view, 

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

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

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

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

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

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

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

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

### 19 32. 

### 20 In December 2005, the New York Court of Appeals affirmed the 

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

### 22 (2005). Unlike the state intermediate court, the Court of Appeals 

### 23 reached the question of whether the trial court had erred, and 

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

### 2512 ruling was a proper exercise of the trial judge’s discretion and 

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

### 2 notwithstanding the challenged evidentiary ruling. It reasoned 

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

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

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

### 6 speculation and confusion as to the truth of [the] purported 

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

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

### 9 dissenter in the Appellate Division, he determined that the trial 

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

### 11 specific motive to retaliate against Corby for his alleged 

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

### 13 Smith, J., dissenting). 

### 14 **B. This Habeas Petition** 

### 15 Following the New York Court of Appeals’s affirmance of his 

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

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

### 18 and recommendation to the district court concluded that the New 

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

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

### 21 2008 WL 8430550, at *10 (S.D.N.Y. Sept. 10, 2008). The district 

### 22 court disagreed. Like the dissenting opinions from the state 

### 23 appellate courts, the district court believed that “the exclusion 

### 24 of evidence regarding the alleged accusation eliminated a specific, 

### 2513 prototypical ground for bias from the jury’s consideration”: 

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

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

### 3 court had exceeded its discretion by prohibiting “all inquiry into 

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

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

### 6 therefore granted the writ. The State appeals. 

### 7

**DISCUSSION** 

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

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

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

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

### 12 him of his Sixth Amendment right to confront witnesses against him 

### 13 and that the Court of Appeals misapplied Sixth Amendment precedent 

### 14 in concluding otherwise. 

### 15 **I. Right of Cross-Examination** 

### 16 “The Confrontation Clause of the Sixth Amendment guarantees 

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

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

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

### 20 defendant “a meaningful opportunity to cross-examine witnesses 

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

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

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

### 24 Clause by showing that he was prohibited from engaging in otherwise 

### 2514 appropriate cross-examination designed to show a prototypical form 

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

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

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

### 4 cross-examination, not cross-examination that is effective in 

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

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

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

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

### 9 things, harassment, prejudice, confusion of the issues, the 

### 10 witness’ safety, or interrogation that is repetitive or only 

### 11marginally relevant.” Van Arsdall, 475 U.S. at 679; see also 

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

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

### 14 has abused its broad discretion” (internal quotation marks 

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

### 16 with other determinations of admissibility of evidence, courts 

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

### 18 510. 

### 19 **II. Standard of Review** 

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

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

### 22 Cir. 2002). 

### 23 A federal habeas application by a state inmate may not be 

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

### 2515 state court unless that adjudication resulted in either “a decision 

### 1 that was contrary to, or involved an unreasonable application of, 

### 2 clearly established Federal law, as determined by the Supreme Court 

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

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

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

### 6 because the New York Court of Appeals unreasonably applied the 

### 7 Supreme Court’s Confrontation Clause jurisprudence in affirming the 

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

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

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

### 11 **III. Analysis** 

### 12We agree with the analysis of the New York Court of Appeals 

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

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

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

### 16 deflect the investigators’ attention from herself, given her deep 

### 17 involvement in the events surrounding Mohammed’s murder: the murder 

### 18 occurred in her apartment and she helped steal drugs from the 

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

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

### 21 testimony that he had threatened her and her family, and her 

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

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

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

### 2516 of Burnett’s motive to falsely shift blame to Corby would have been 

### 1 cumulative and of little additional probative value, but would have 

### 2 been unduly prejudicial to the prosecution for the reasons stated 

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

### 4 cross-examination of Burnett therefore was not an abuse of 

### 5 discretion. 

### 6 Corby, however, argues that, even if the jury heard some 

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

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

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

### 10 against Corby for his alleged accusation against her by pointing 

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

### 12 Supreme Court’s statement in Van Arsdall that: 

### 13 [A] criminal defendant states a violation of the 

### 14 Confrontation Clause by showing that he was prohibited 

### 15 from engaging in otherwise appropriate cross-examination 

### 16 designed to show a prototypical form of bias on the part 

### 17 of the witness, and thereby to expose to the jury the 

### 18 facts from which jurors could appropriately draw 

### 19 inferences relating to the reliability of the witness. 

### 20 21 475 U.S. at 680 (internal quotation marks and modification 

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

### 23 32, 35 (Andrias, J., dissenting), the New York Court of Appeals 

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

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

### 26 persuaded by this retaliation-bias argument and relied on Van 

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

### 28 For two reasons, we disagree with their conclusion. 

### 2917 **A. Corby Failed to Argue Retaliation Bias at Trial** 

### 1At the sidebar regarding Corby’s cross-examination of Burnett, 

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

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

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

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

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

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

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

### 9 accusation coming from someone who had witnessed the events in 

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

### 11 would have foreclosed any retaliation argument: he would forgo 

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

### 13 could ask only whether some unidentified person had accused her. 

### 14 Because the retaliation-bias argument was not presented to the 

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

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

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

### 18In a subsequent motion, made to and denied by the state trial 

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

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

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

### 22 granted.” Supplemental Appendix 3. One statement in that motion 

### 23 -– specifically, the second sentence of the following passage -- 

### 24 arguably implied the retaliation-bias theory of relevance: 

### 2518 [W]ere the jury to hear that the defendant was accusing 

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

### 2 could infer that she has a specific motive to cast blame 

### 3 on another. Were the Jury to hear that it was the 

### 4 defendant who was accusing her, then the jurors would 

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

### 6 has a particular motive to lie against this defendant. 

### 7 Were the jury to hear that the defendant was accusing 

### 8 her, and that the Detective was confronting her with this 

### 9 material, then the jurors would have a fact from which 

### 10 they could infer that she has a motive to avoid being 

### 11 investigated herself. 

### 12 13 Id. at 7-8. We conclude, however, that this single statement, read 

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

### 15 not sufficient to alert the trial judge to a new theory of 

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

### 17 argued that the trial court had “created error of Constitutional 

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

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

### 20 arguments advanced at the sidebar, and nowhere suggested that it 

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

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

### 23 divine a previously unasserted legal theory, and it would undermine 

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

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

### 26 **B. The Desired Testimony Was Admitted by Implication** 

### 27Furthermore, and in any case, our precedent makes clear that 

### 28 the facts Corby sought to elicit from Burnett were effectively 

### 29 before the jury at his trial. 

### 3019 In Bruton v. United States, 391 U.S. 123 (1968), the Supreme 

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

### 2 the right not to have the incriminating hearsay statements of non

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

### 4 16 F.3d 38 (2d Cir. 1994), we held that the Bruton principle must 

### 5 be applied to exclude testimony when an arresting officer would 

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

### 7 looking for the defendant, because that testimony implies that the 

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

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

### 10 question is whether the way the prosecutor solicited the testimony 

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

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

### 13 though it did not directly state this information.”). 

### 14 Here, without objection, Corby’s lawyer elicited from Burnett 

### 15 the very information that would require exclusion under Mason and 

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

### 17 Detective Bourges claimed to have met with Corby and discussed 

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

### 19 Philadelphia and tell her about his purported conversation with 

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

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

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

### 23 implication of this chronology was the substance of that which 

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

### 2520 believed Corby had implicated her in Mohammed’s murder when she 

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

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

### 3 jurors could appropriately draw inferences relating to the 

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

### 5 as to whether she accused him in retaliation for his accusation 

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

### 7 Confrontation Clause rights. 

### 8

* * * 

### 9 Because we hold that no constitutional violation occurred, we 

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

### 11 however, that the district court applied an incorrect harmless 

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

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

### 14 is whether a constitutional error was harmless beyond a reasonable 

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

### 16 deciding federal habeas claims by state prisoners, because of the 

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

### 18 unless it had substantial and injurious effect or influence in 

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

### 20 (2007) (citations and internal quotation marks omitted). 

### 21

**CONCLUSION** 

### 22We have considered all of Corby’s arguments on appeal and find 

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

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

### 25