Jose Vasquez appeals from the judgment of the United States District Court for the Southern District of New York (Loretta A. Preska, Judge), denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court granted a certificate of appealability on July 27, 1998.
On appeal, Vasquez argues,
inter alia,
that (1) the court below incorrectly interpreted the standard by which federal courts must review state court judgments under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), as requiring deference to state court interpretations of Supreme Court precedent;
1
and (2) that under any interpretation of § 2254(d)(1), the Supreme Court’s decision in
Wardius v. Oregon,
We held the disposition of this case pending the Supreme Court’s decision in
Williams v. Taylor,
I. BACKGROUND
On November 20, 1990, petitioner was convicted in New York Supreme Court, Bronx County, following a jury trial for Felony Murder and Robbery in the First Degree as a result of his participation in the July 2, 1988 robbery of the Good Times Lounge, during which the owner was shot and killed. The primary evidence for the prosecution was the eyewitness identifications by the deceased’s common-law wife and a waitress, both present at the bar during the robbery.
Petitioner’s defense consisted primarily of four alibi witnesses: his sister, his brother, and two neighbors who lived in his apartment building. His sister, Iris Vasquez, testified that she watched petitioner from around noon to 3:30 pm, working on the limousine that Vasquez and his brother, Moses Burgos, were to drive to a wedding the following day, July 3, 1988. His brother testified that on July 3, 1988, he and Vasquez drove to the wedding in a limousine. The neighbors, Rosa Colon and her teenage daughter Lisa Martinez, testified that on the afternoon of July 2, 1988, during the time the robbery took place,
After Colon and Martinez testified on October 15, 1990, the judge asked the parties if they would be prepared to present summations the following day. The prosecutor then stated that he might call Dr. Perez as a rebuttal witness. He claimed to have been contacting all of the people named Dr. Perez in a specific location to no avail, but now that he knew where she worked from Martinez’s testimony, he might be able to locate her. The judge continued the case until October 18, 1990.
On October 18, 1990, the prosecutor first requested permission to call Dr. Perez as a rebuttal witness. He requested to call her that day, although the defense had not yet rested, because it would be a hardship for her to return the following Monday. Defense counsel objected, arguing that the prosecution had not provided alibi rebuttal notice as required by N.Y.Crim. Proc. Law § 250.20(2). Defense counsel stated that several months before trial, he had served a notice of intent to present an alibi defense on the prosecution that included the names of these two alibi witnesses and a statement of the their intended testimony. The prosecution, however,- had never given him any notice of any alibi rebuttal witnesses. Defense counsel argued that admitting the rebuttal testimony under these circumstances would be reversible error. The court nevertheless allowed Dr. Perez to testify out of order. She testified that she could not independently recall the particular day or appointment, but she had reviewed Martinez’s records, and they did not indicate that Martinez ever had an appointment scheduled with her for July 2, 1988. She testified that she had only two scheduled appointments with Martinez in July; she saw Martinez on July 15, 2000 and Martinez canceled another appointment scheduled for July 29, 2000. Perez also testified that the clinic was closed on Saturdays; July 2, 1988 was a Saturday.
Vasquez was convicted, and he appealed his convictions to the Appellate Division, First Department, alleging,
inter alia,
that the trial court erred in allowing the alibi rebuttal testimony. On January 7, 1993, the Appellate Division affirmed the convictions, but remanded for resentencing. The court held that the “trial court properly allowed the testimony of the People’s rebuttal witness.”
People v. Vasquez,
On December 31, 1996, Vasquez filed a petition for a writ of habeas corpus in federal district court. He argued that allowing the alibi rebuttal witness to testify violated his right to due process under
The Magistrate Judge also reviewed cases from the Courts of Appeals that address a prosecution’s failure to provide reciprocal notice of alibi rebuttal witnesses under circumstances lying at either end of the spectrum of reasonableness. At one end, the prosecution’s deliberate withholding of the name of an intended alibi rebuttal witness violates due process under
Wardius. See Mauricio v. Duckworth,
The district court adopted the Report and Recommendation of Magistrate Judge Buchwald, taking into consideration the objections of the parties. Because of the complexity and unresolved status of the law on § 2254(d)(1), the district court issued a certificate of appealability. Petitioner filed a timely appeal.
II. DISCUSSION
A. Williams v. Taylor, Section 2254(d)(1), and Teague v. Lane
The parties and amici argue extensively over the applicability and meaning of § 2254(d)(1), citing various authority in support of their positions. The parties also argue over whether Teague separately bars Vasquez’s petition. Since the filing of the briefs and oral argument in this case, however, the Supreme Court in Williams has resolved the dispute over the applicability and meaning of § 2254(d)(1). We therefore analyze the issues raised by Vasquez’s petition under Williams.
Vasquez’s petition was filed after the enactment of AEDPA, and is therefore subject to review pursuant to § 2254 as amended by AEDPA.
See Williams,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1)resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]
28 U.S.C. § 2254(d)(1). This provision “places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits.”
Williams,
The question for this Court then is whether under the circumstances- of this case, the state court’s decision to allow an unnoticed alibi rebuttal witness to testify was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In making this determination, “[t]he threshold question ... is whether [petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.”
Williams,
In
Williams,
the Court answered this threshold question with reference to the principles set out in
Teague. See Williams,
It is perfectly clear that AEDPA codifies Teague to the extent that Teague requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time the state conviction became final.
Teague’s core principles are therefore relevant to our construction of this requirement.
Id. at 1506 (Stevens, J., writing for four Justices) (footnote omitted). It is this reasoning that Justice Stevens later applied in determining for the Court whether petitioner was seeking to apply “‘clearly established Federal law’ ” under AEDPA. Id. at 1512 (Stevens, J., writing for the Court) (quoting 28 U.S.C. § 2254(d)(1)). Furthermore, although Justice O’Connor, in writing for the Court on the interpretation of § 2254(d)(1), for the most part “put to the side” the meaning of the phrase “clearly established Federal law, as determined by the Supreme Court,” she did state that
[w]ith one caveat, whatever would qualify as an old rule under our Teague jurisprudence will constitute “clearly established Federal law, as determined by the Supreme Court of the United States” under § 2254(d)(1). The one caveat, as the statutory language makes clear, is that § 2254(d)(1) restricts the source of clearly established law to this Court’s jurisprudence.
Id. at 1523 (O’Connor, J., writing for the Court) (citation omitted).
As we view Williams, we must apply § 2254(d)(1) as the “new constraint” on habeas review of state court judgments, but we may still draw on Teague-based cases where appropriate to decide cases that present questions under the “clearly established Federal law” requirement of § 2254(d)(1). If petitioner’s claim requires us to apply a rule of law that was not clearly established Federal law as determined by the Supreme Court at the time of the state court determination, Section 2254(d)(1) bars relief.
B. Section 2254(d)(1) Bars Relief Because the Law Vasquez Seeks to Have Applied Is Not Clearly Established Federal Law, as Determined by the Supreme Court
Vasquez argues that
Wardius,
the only Supreme Court pronouncement on the requirement of reciprocal alibi discov
[W]e ... hold that in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a “search for truth” so far as defense witnesses are concerned, while maintaining “poker game” secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.
Id.
at 475-76,
Read narrowly, Wardius held merely that a state alibi notice statute violates due process if it fails to provide for any reciprocal discovery. New York’s alibi notice statute clearly provides for reciprocal discovery. See N.Y.Crim. Proc. Law § 250.20. 2 Read very broadly, however, Wardius held that where a defendant is required to provide alibi-related discovery, due process requires a trial court to prevent unfair, irremediable surprise by the prosecution. The application of Wardius to this case thus presents the
inevitable difficulties that will arise in attempting “to determine whether a particular decision [would] really announce[ ] a ‘new’ rule at all or whether it [would] simply appl[y] a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered , in the prior case law.”
Mackey v. United States,
“Teague
established some guidance for making this determination.”
Williams,
Vasquez relies on this Court’s decision in
Fox
to argue that a trial court must prevent “the kind of unfair, irremediable surprise that, as
Wardius
held, violates due process.”
Fox,
Respondent contends that the prosecution was in a very similar position to that of the prosecution in Fox. Vasquez provided the names of his alibi witnesses to the prosecution, but the accompanying statements of these witnesses indicated that a Mrs. Perez had called to cancel Martinez’s clinic appointment. Not until after Colon and Martinez testified did the prosecution know the name of the clinic or that Perez was the doctor with whom Martinez had the appointment. Therefore, according to respondent, the prosecution did not know and could not reasonably have known that Dr. Perez’s testimony would be useful until after Colon and Martinez testified, and under Fox, Vasquez has failed to state a due process violation.
We need not comment on whether or not Vasquez states a constitutional violation at all, because we cannot agree with Vasquez that
Wardius
“dictates” that due process was violated in this case. The Seventh Circuit has suggested that the prosecution’s deliberate withholding of the name of an intended alibi rebuttal witness violates due process under
Wardius. See Mauricio v. Duckworth,
For the foregoing reasons, we affirm the denial of Vasquez’s petition for a writ of habeas corpus.
Notes
. Amici argue in support of this position that a deferential standard of review would unconstitutionally usurp the Article III powers of the federal courts to decide issues of constitutional law properly presented to them for review. Amici also argue that reading § 2254(d)(1) to confine a habeas court's review of the “law” to Supreme Court cases, as opposed to including lower court interpretations of the general constitutional principles set out in Supreme Court cases, negates the role of the lower federal courts envisioned by this nation’s founders. They assert that the Supreme Court simply cannot be expected to clarify the operation of every rule of constitutional law, and therefore the Courts of Appeals must provide the necessary clarity.
. The New York statute provides that within twenty days of arraignment the People may serve a demand for notice of alibi. The defendant must respond within eight days, specifying the location where the defendant claims to have been at the time of the offense and the identities of the intended alibi witnesses. N.Y.Crim. Proc. Law § 250.20(1). The statute further provides that:
Within a reasonable time after receipt of ■the defendant’s witness list but not later than ten days before trial, the people must serve upon the defendant or his counsel, and file a copy thereof with the court, a list of the witnesses the people propose to offer in rebuttal to discredit the defendant’s alibi at the trial.... For good cause shown, the court may extend the period for service of the list of witnesses by the people.
Id. § 250.20(2). If the People do not provide notice, the trial court may exclude the testimony of such witness relating to the alibi rebuttal or may, within its discretion, allow the rebuttal testimony. If the trial court allows the rebuttal testimony, it must grant a three day continuance at the request of the defendant. Id. § 250.20(4). "Both the defendant and the people [are] under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to filing their witness lists as provided in this section.” Id. § 250.20(5).
. In Fox, two alibi witnesses testified in a manner inconsistent with statements they had earlier given the police, and therefore the prosecution could not have known beforehand that the alibi witnesses would contradict their earlier statements. See 71 F.3d at 71. This Court held that where a prosecutor did not know, and could not reasonably have known, of facts giving rise to the opportunity for rebuttal until after an alibi witness testified, permitting a rebuttal witness to testify despite a lack of notice does not violate due process. See id. Thus, Fox held that the petitioner failed to state a constitutional violation and any comment on what might constitute a constitutional violation under Wardius was dicta.