Whitley v. Ercole, 642 F.3d 278

Whitley was convicted of felony murder in New York after a second trial; his first trial ended in a hung jury.
Richardson, a key witness at the first trial, refused to testify at the second trial and a transcript of his prior testimony was read into the record.
Whitley and defense counsel did not seek immunization for Richardson or otherwise request admission of any alleged recantation at the second trial.
The trial court admitted Richardson’s prior testimony with a limiting instruction and did not inform the jury of a purported recantation; Whitley raised the issue on direct appeal in New York, but it was deemed unpreserved under CPL 470.05(2).
Whitley filed a federal habeas petition under 28 U.S.C. § 2254 arguing due process and confrontation concerns; the district court granted the writ, but the Second Circuit reversed, holding the claim procedurally defaulted under state law.
The court held that New York’s contemporaneous objection rule is an adequate and independent state ground that forecloses federal review of the unpreserved claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Whitley’s Richardson recantation claim preserved?	Whitley contends trial objections were sufficient to preserve error.	State law required contemporaneous objection; no specific preservation by Whitley.	Claim barred; independent state ground forecloses review.
Is the Appellate Division's reliance on the contemporaneous objection rule an adequate independent state ground?	Ils contends rule was misapplied or exceptional.	Rule is firmly established and regularly followed, so adequate.	Yes; rule constitutes adequate independent state ground.
Does Lee v. Kemna create an exception to the adequate-state-ground rule here?	Exceptional circumstances may warrant federal review despite the rule.	Whitley’s circumstances do not qualify as exceptional or extraordinary.	Not satisfied; no Lee exception applies.
Should federal habeas review proceed on the merits despite the state-ground ruling?	Substantial federal rights were violated by admission of testimony without recantation context.	State ground controls; merits are not reached.	No; procedural default forecloses merits review.

Lee v. Kemna, 534 U.S. 362 (U.S. 2002) (exceptional cases where state rule is inadequate to bar federal review)
Mattox v. United States, 156 U.S. 237 (U.S. 1895) (impeachment foundation requirements for prior statements)
Garcia v. Lewis, 188 F.3d 71 (2d Cir. 1999) (procedural default and independent state-ground analysis)
Garvey v. Duncan, 485 F.3d 709 (2d Cir. 2007) (state-law procedural bars and habeas review)
Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003) ( Lee considerations and state rule application framework)