Appeal from an order of the United States District Court for the Southern District of New York (Griesa, J.) denying appellant's petition for a writ of habeas corpus.
Before VAN GRAAFEILAND, CARDAMONE and MINER, Circuit Judges.
Jesse James Jackson appeals from a judgment of the United States District Court for the Southern District of New York (Griesa, J.), denying his petition for a writ of habeas corpus.
In March of 1975, Jackson was convicted in Nassau County Court of murder in the second degree and was sentenced to a term of imprisonment of fifteen years to life. The Appellate Division affirmed his conviction without written opinion, People v. Jackson, 52 A.D.2d 758, 382 N.Y.S.2d 213 (2d Dep't 1976), and the New York Court of Appeals denied leave to appeal. People v. Jackson, 39 N.Y.2d 1063, 389 N.Y.S.2d 1032 (1976). Prior to the filing of the instant petition, Jackson raised numerous challenges to his conviction in state and federal court, all of which were denied.*fn1
On the evening of February 1, 1974, Carl Campbell was shot while in the vicinity of 96 Wellsley Street in Hempstead Heights, New York. he later died of complications resulting from the gunshot wound. Following a police investigation, Jackson and co-defendant Willie Somerville were arrested, charged with second degree murder and tried in Nassau County Court. At the conclusions of the prosecution's case, the indictment as against Somerville was dismissed. The case against Jackson, however, was submitted to the jury, and a verdict of guilty was returned.
Prosecution witnesses testified that during an evening in mid-January of 1974, Jackson and Campbell were involved in an altercation at a bar in Hempstead Heights, New York. later that evening, and also on the following evening, Jackson returned to the bar in search of Campbell, offering patrons and employees money if they would identify Campbell to him. One bar patron, Bobby Miller, testified that Jackson said that he wanted to "get" or "kill" the person who had struck him. Miller, however, was uncertain of Jackson's exact words. Jimmy Sledge, an acquaintance of Jackson's aunt, testified that when Jackson arrived at his aunt's home with Somerville on the night of the shooting, he spoke loudly about his fight with Campbell. According to Sledge, Jackson left the house for a short period of time, and, upon returning, said to his mother "Mama, I spotted him. Give me your gun." At that time, Sledge was Jackson's mother give Jackson an unidentified object from her purse. Jackson and Somerville again left the house and returned approximately thirty minutes later; Jackson then said to his mother "I got him," and handed her an object which she put in her purse.
Charles Milton, an acquaintance of Somerville, testified that he saw Jackson and Somerville at the bar on the night of the shooting. Later that evening, while standing near the shooting site, Milton observed a car with two occupants and only parking lights on go by. The car then turned onto a side street and followed a third person who was walking there. Milton then heard gun shots and observed someone running away.
Edna Kimble, Somerville's sister, testified that Jackson and her brother visited her house on the night of the shooting. She testified that Jackson told her about his fight at the bar and how he had "gotten the guy" who had beaten him. In response to her inquiry as to whether he had killed Campbell, Jackson said "it's up to him and God." Jackson then went on the describe to Kimble how Campbell had crawled on his hands after being shot.
In the petition at bar, Jackson set forth five arguments for reversal of his conviction, all of which were rejected by the district court after an evidentiary hearing. For the reasons set forth below, we affirm.
When Milton was interviewed by police prior to trial, he identified the two individuals whom he had observed in the car as Somerville and Jackson, and he signed a statement to that effect. he also informed the officers that subsequent to the night of the shooting he had met Somerville in jail, where Somerville had confirmed that he and Jackson were present in the vehicle. At a pre-trial conference, the prosecutor agreed with defense counsel that Milton's statement regarding his conversation with Somerville could create a sixth amendment problem and therefore assured the court that he would limit his examination of Milton to Milton's direct knowledge of the events. While on the stand, however, Milton contradicted his earlier statements and denied first-hand knowledge of the identity of the two individuals in the vehicle. Upon further questioning by the prosecutor, Milton stated that "the only reason I knew it was them or thought it was them was because of me and Somerville was talking about the case [sic]." Joint Appendix at 975. Jackson contends that the failure to strike this statement violated Bruton v. United States, 391 U.S. 123, 126-37, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968) (sixth amendment right of confrontation infringed when a confession by one defendant implicating another defendant is placed directly, or indirectly, before the jury). The district court rejected this claim. The court held that although Jackson had sufficiently exhausted his Bruton claim in state court he had failed to raise a contemporaneous objection on Bruton grounds at trial, see N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1983), and that absent a showing of cause and prejudice, this procedural default barred him from raising the issue on federal habeas review. Wainwright v. Sykes, 43 ...