Opinion
9:98-CV-0771 (FJS)(GLS)
June 12, 2001
FOR THE PETITIONER: KENNETH AUGUSTINE, Petitioner, Pro Se, Auburn Correctional Facility, Auburn, NY.
FOR THE RESPONDENT: HON. ELIOT SPITZER, Office of Attorney General, OF COUNSEL: STEVEN H. SCHWARTZ, ESQ. Ass't Attorney General, Albany, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Kenneth Augustine ("Augustine") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on May 12, 1998. On June 9, 1998, this court issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254 which directed the Office of the Attorney General for the State of New York ("Attorney General") to file a response to the petition (Dkt. No. 3). On October 2, 1998, the respondent filed an answer and memorandum of law requesting dismissal of the petition (Dkt. Nos. 8 and 9).
II. Discussion
A. State Court Proceedings
The testimony at trial revealed that Eugene Slater ("Slater") was a bookmaker in the Ithaca, New York, area who took bets in football, basketball, baseball and horse racing (Respondent's Appendix on Appeal ("R. App.") at PP. 19-20). Slater was a competitor of Augustine who was also a bookmaker (Appellant's Appendix on Appeal ("App.") at PP. 2213-14).
Christopher Clemons ("Clemons"), who pled guilty to the crime of attempted murder in exchange for his testimony at trial (see R. App. at P. 75), testified that in the middle of March 1991, he was approached by Augustine, who advised Clemons that he would be paid "a few thousand" dollars if he "roughed [Slater] up real bad," and that Clemons would be "pa[id] more if [he] took [Slater] out" (App. at PP. 2280-82).
Augustine testified at trial that he had heard that Slater was trying to take away Augustine's customers, and that he did not want Slater "f'ing around with my customers." Id. at PP. 2732-34.
In April of 1991, Clemons, posing as a delivery man carrying a box, went to Slater's home and informed him of Augustine's plan. Clemons then went to Augustine's house and (falsely) reported that he had "slapped up" Slater (App. at PP. 2293-98). Augustine gave Clemons some money and a bottle of champagne and stated, in substance, that he knew that if Clemons would not fully carry out the plan, Augustine believed that Clemons had friends that could. Id. at PP. 2298-99. Clemons introduced Augustine to Ronnie Sledge ("Sledge"). Id. at PP. 2299-301. Later that same month, Clemons told Sledge about Augustine's desire to rough up or "take out" Slater, and how Clemons had gone to Slater's house posing as a delivery man (R. App. at P. 64). After thinking about the plan, Sledge eventually agreed to carry it out, and on June 21, 1991, Clemons agreed to drive Sledge to Slater's house using the car belonging to Robert Farley ("Farley") (App. at PP. 2304-05).
On Monday, June 24, 1991, Clemons took the box that he had previously used when he drove to Slater's house, placed a bottle of champagne in it, and he and Sledge drove to Slater's house (R. App. at PP. 66-67). Clemons pointed out Slater's house to Sledge as they drove by, and Clemons then parked the car. Id. at PP. 68-69. Sledge left the car with the box and began walking towards Slater's home while Clemons remained in the car. Id. at P. 69. Ashley Perins ("Perins"), who was ten years old at the time of the trial, testified that on the 24th of June she saw a black man walking down the street carrying a medium brown packing box. Id. at PP. 39-40.
Patrick Ritchen ("Ritchen") was on his office telephone with Slater during the morning of June 24, 1991, when Slater stated that he had to answer the door. Ritchen then heard Slater talking in a high pitched, panicky voice, exclaim "What are you doing? What are you doing? What are you doing?" (App. at PP. 2229-30). The last thing Ritchen heard was someone saying "put your head down." Id. at P. 2231. Upon hearing this, Ritchen asked someone in his office to give him the phone number for the Ithaca Police Department, and when he returned to the phone, the line was "dead." Id. at P. 2233.
Perins testified that at about this same time, she heard loud noises and a baby screaming coming from Slater's home (R. App. at PP. 41-42).
Clemons saw Sledge jogging back to Farley's car approximately five to ten minutes after Sledge had left it; Clemons noticed that Sledge was no longer carrying the box (R. App. at PP. 70-71).
Crime Scene Investigators found a cardboard box in Slater's dining room and a palm print later was determined to belong to Sledge. Id. at PP. 84-85, 99-105.
Police officers arrived at Slater's home at approximately 10:30 a.m. on June 24th and observed him lying face down with a large amount of blood on top of him. Id. at 81-82. When Officer Donald Barker rolled Slater over to perform cardio pulmonary recessitation, he noticed that Slater was not breathing and appeared to be lifeless. Id. at 83. Humphrey Germaniuk, who performed the autopsy on Slater, determined that he had died as a result of six stab wounds to his chest. Id. at 106-07.
After the murder, Sledge went to Clemons' apartment and gave him $1,500.00 for driving Sledge to Slater's home (App. at P. 2313). When Clemons asked Sledge why he had given Clemons so much money, Sledge stated that Augustine "took care of [Sledge] lovely" (R. App. at PP. 77-78).
Sledge gave Clemons an additional $900.00 after Sledge learned that Clemons was going to travel to New York City to buy some drugs (App. at PP. 2313-14).
Clemons was arrested on the evening of June 29, 1991. Id. at P. 72. After he was questioned by the police, he agreed to place a telephone call to Augustine that would be recorded. Id. at P. 79. During this call, Augustine offered to give Clemons $400.00 to leave town (App. at PP. 2945-46). Sledge and Augustine were arrested on June 30, 1991 (R. App. at PP. 118-19, 124).
On July 10, 1991, a Tompkins County Grand Jury charged Augustine, Sledge and Clemons with second degree murder and second degree criminal conspiracy relating to Slater's death (App. at PP. 1002-03). On July 22, 1991, all of the defendants entered into a stipulation with the District Attorney that, inter alia, requested a suppression hearing. On August 27, 1991, Augustine's counsel, William P. Sullivan, Esq. ("Sullivan") filed a separate omnibus motion seeking, inter alia, (i) dismissal of the indictment due to defective Grand Jury proceedings; (ii) suppression of statements made by Augustine; and, (iii) an order invalidating the search warrants used to obtain evidence against Augustine. Id. at PP. 1455-1543. The Hon. William J. Barrett ("Judge Barrett") denied the motion as untimely. Id. at PP. 1755-57; People v. Augustine, 235 A.D.2d 915, 915-16 (3rd Dep't 1997) ("Augustine I"). Following a suppression hearing which was related to the July 22nd stipulation, Judge Barrett held that statements Augustine had made to the police were admissible. Augustine I, 235 A.D.2d at 916.
The jury found Augustine guilty of second degree murder and second degree criminal conspiracy. Prior to sentencing, Augustine moved, on two separate occasions, to set aside the verdict based upon alleged juror misconduct. Both of these motions were denied by Judge Barrett in written decisions (see App. at PP. 3078-79, 3215-17). Augustine was sentenced to an indeterminate term of twenty-five years to life imprisonment for the murder conviction, with a lesser, concurrent sentence on the conspiracy conviction. (App. at PP. 3253-55).
Augustine asserted numerous grounds in support of his appeal, however the Third Department, Appellate Division ("Appellate Division") unanimously affirmed (Augustine I, 235 A.D.2d at 921). The Court of Appeals dismissed Augustine's application to appeal that decision as of right, People v. Augustine, 89 N.Y.2d 1072 (1997), and denied Augustine's alternative request for leave to appeal. People v. Augustine, 89 N.Y.2d 1088 (1997).
Augustine filed the present petition on May 12, 1998. It contains numerous grounds for relief. Initially, he claims that the trial court improperly refused to consider the merits of his counsel's untimely omnibus motion. Second, he argues that both the Appellate Division and the Court of Appeals denied Augustine a meaningful and fair appeal. Augustine's third Ground alleges that Judge Barrett committed error at the time of jury selection. Next, he asserts that his conviction must be reversed due to jury misconduct. Ground five contends that evidence obtained at his home and used against him at trial was obtained illegally. Augustine next claims that the prosecution wrongfully failed to preserve a tape recording made of a telephone call allegedly placed to the Tompkins County Sheriff relating to the incident. The seventh Ground argues that his rights were violated by the prosecutor's improper summation. Next, he alleges that officials improperly used statements about his gambling activities to obtain search warrants. The ninth Ground asserts that evidence was improperly obtained from the law office of his defense counsel. The next Ground contends that the search warrant applications were insufficient as a matter of law. Augustine also claims that he was improperly excluded from the combined Ventimiglia and Sandoval hearing held by the trial court. Finally, Augustine claims within nearly all of these specific grounds for relief that he received ineffective assistance of counsel.
People v. Ventimiglia, 52 N.Y.2d 350 (1981).
People v. Sandoval, 34 N.Y.2d 371 (1974).
B. Merits of Petition
1. Omnibus motion
Augustine claims that the trial court improperly refused to consider his attorney's omnibus motion despite the fact that the delay in the filing of this motion was de minimis. He contends that the motion raised substantial issues concerning, inter alia, the sufficiency of the indictment and the suppression of evidence, but that Judge Barrett "summarily and arbitrarily and capriciously, refused to consider the merits of the omnibus motion" (Pet. at P. 4).
Federal habeas review of a state-court conviction is prohibited if a state court rests its judgment on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261-62 (1989); Garcia v. Lewis, 188 F.3d 71, 76 (2nd Cir. 1999). If the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar, then the federal court may not review the claim unless the petitioner demonstrates both good cause for and actual prejudice resulting from his non-compliance with the state's procedural rule. Garcia v. Lewis, 188 F.3d 71, 76-77 (2nd Cir. 1999) (citations omitted); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995). A further exception exists where the petitioner can show that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice;" namely, a person who is actually innocent has been convicted and incarcerated because of a constitutional violation. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Thus, the Court's initial inquiry must focus on whether petitioner has, in fact, procedurally defaulted on this claim.
New York's Criminal Procedure Law ("CPL") § 255.20 provides, in part, that all pretrial motions in criminal matters "shall be served or filed within forty-five days after arraignment." Id. The submissions before the Court indicate that the omnibus motion was untimely under this statute (App. at PP. 1755-57). The Appellate Division found that Judge Barrett properly denied Augustine's initial and subsequent applications for review of the merits of his omnibus motion for procedural reasons. Augustine I, 235 A.D.2d at 916-17 (citations omitted). Therefore, Augustine has procedurally defaulted on this claim. Broome v. Coughlin, 871 F. Supp. 132, 133-34 (N.D.N.Y. 1994) (Kaplan, J., sitting by designation). Thus, the court must determine whether Augustine has established good cause for and actual prejudice resulting from his non-compliance with this procedural rule. Garcia, 188 F.3d at 76-77.
To establish "cause," Augustine must show that some objective external factor impeded his ability to comply with this procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); Restrepo v. Kelly, 178 F.3d 634, 638 (2nd Cir. 1999). Examples of external factors include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray, 477 U.S. at 488; United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1992). To demonstrate "prejudice," the petitioner must establish a reasonable probability that, but for the alleged violation of federal law, the outcome of his case would have been different. Restrepo, 178 F.3d at 638.
However, "[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488).
Augustine has not demonstrated cause for the failure to timely file the omnibus motion. He has conceded that the motion was not timely under the CPL, Pet. at P. 4, however, he argues that the delay was not significant. While the delay may not have been substantial, there is no evidence that the motion was not, in fact, untimely. Augustine has simply failed to establish any legal cause for this default. Since Augustine cannot establish cause, the court need not decide whether he suffered actual prejudice because federal habeas relief is unavailable unless both cause and prejudice are demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.). Furthermore, the court cannot find that failure to consider the merits of Augustine's claims would result in a fundamental miscarriage of justice which this Circuit has interpreted as amounting to "an unjust incarceration." Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2nd Cir. 2000). Therefore, Augustine is not entitled to habeas relief on this theory.
2. Fair Appeal
Augustine contends that he was denied his right to a fair appeal by the Appellate Division when it referred to its decision involving the co-defendant in his criminal trial, Sledge, in its decision affirming the criminal conviction of Augustine. Specifically, Augustine alleges that the appellate brief filed in Sledge was inadequate, "and could not form a proper basis for the Appellate Division to consider the merits of the applicable issues" (Pet. at 5). As to the Court of Appeals, Augustine contends that his request to appeal to that court as of right was wrongfully dismissed, and that his application for leave to appeal should have been granted.
See People v. Sledge, 223 A.D.2d 922 (3rd Dep't), lv. denied, 88 N.Y.2d 854 (1996).
With respect to his claims concerning the Appellate Division, that court referenced its decision in Sledge on several occasions in support of its conclusion that Augustine's appeal was without merit. However, it is clear that in each of these instances, the Appellate Division carefully considered the facts relevant to Augustine's appeal in determining whether his claims had merit. Augustine claims that the Appellate Division: (i) relied upon the briefs filed in Sledge in considering the merits of his claims; and/or (ii) these assertions failed to consider the specific claims asserted by Augustine in his appeal.
The Appellate Division cited Sledge in addressing the issues of whether: (i) the evidence before the Grand Jury was legally sufficient (Augustine I, 235 A.D.2d at 917); (ii) Augustine's right to be present at the Sandoval or Ventimiglia hearings, or the sidebar or chamber conferences, was denied (Id. at 919); (iii) the County Court properly instructed the jury concerning Farley's role, if any, as an accomplice (Id. at 920); and, (iv) juror misconduct required reversal of the conviction (Id. at 920-21).
As to the actions of the Court of Appeals, Augustine argues that he had the right to appeal to this court because he asserted a constitutional claim in his appeal (Pet. at P. 5). However, § 5601 of New York's Civil Practice Law and Rules ("CPLR") which governs appeals as of right to the Court of Appeals, provides that a party may appeal constitutional issues as of right to that court only when the Appellate Division's order directly involved the construction of the constitution of the state or of the United States. CPLR § 5601(b) (emphasis added); Board of Educ. of Monroe-Woodbury Cent. School Dist. v. Wieder, 72 N.Y.2d 174, 182 (1988). Since none of the issues raised on Augustine's appeal involved the construction of either the constitution of New York or of the United States, the Court of Appeals properly dismissed his application to appeal to that court as of right. Next, Augustine claims that the decision of the Court of Appeals to deny his application for leave to appeal (under CPLR § 5602) was "arbitrary and capricious, at best" (Pet. at P. 5). However, there is no authority that stands for the proposition that an individual is denied a right to a fair appeal merely because the Court of Appeals has exercised its discretion and declined to grant an application for leave to appeal to that court. In light of the foregoing, the Court recommends that Ground Two of Augustine's petition be denied.
The other means by which an appellant may properly file an appeal as of right with the Court of Appeals are inapplicable herein.
3. Jury Selection
In this Ground, Augustine claims that Judge Barrett improperly denied his counsel's challenges for cause, and wrongfully granted peremptory challenges of the prosecution (Pet. at 7).
A habeas court must afford the judicial officer who conducted the jury selection "appropriate deference" when assessing the credibility of the explanations proffered by a party concerning challenges raised to prospective jurors. United States v. Alvarado, 951 F.2d 22, 25 (2d Cir. 1991); Owens v. Portuondo, 1999 WL 378343, *10 (S.D.N.Y. 1999), aff'd, 205 F.3d 1324 (2nd Cir. 2000). The Court has reviewed the portions of the jury selection submitted in conjunction with Augustine's habeas application, see App. at PP. 2160-68, and finds no basis upon which it could conclude that Judge Barrett acted improperly in considering the parties' challenges to the prospective jurors. Therefore, the court recommends that this Ground be denied.
4. Jury Misconduct
In this claim, Augustine asserts that he was deprived of a fair trial due to juror misconduct. Specifically, he alleges that while the jury was sequestered, inter alia: (i) some of the jurors obtained and consumed alcohol; (ii) a juror watched a news broadcast that discussed the case and the status of jury deliberations; (iii) a juror spoke with his spouse and discussed the possibility that the jury was "hung;" and, (iv) only members of the jury who believed Augustine was guilty were invited to and attended a party at the hotel in which they were sequestered (Pet. at PP. 8-9).
The question presented on habeas corpus review of a claim of juror misconduct is whether there is "'fair support in the record for the state court's conclusion that the jurors [were] impartial.'" Comfort v. Kelly, 1998 WL 384613, at *10 (W.D.N.Y. May 14, 1998) (Heckman, M.J.), adopted, 1999 WL 955508 (W.D.N.Y. Oct. 5, 1999) (quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984). This "determination is essentially one of credibility, . . . [and] the trial court's resolution of such questions is entitled . . . to 'special deference.'" Comfort, 1998 WL 384613, at *10 (quoting Patton, 467 U.S. at 1038) (other citation omitted). To succeed on such a claim, the petitioner must also show "actual prejudice" as a consequence of the alleged error. Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir.), cert. denied, 115 S.Ct. 261 (1994).
The Court has reviewed the portions of the transcript during which Judge Barrett conducted an inquiry into Augustine's claims of juror misconduct. See App. at PP. 3082-3214. No evidence was presented during this inquiry, or has been submitted by Augustine in support of this petition that demonstrated that the jurors were not impartial in the course of their deliberations, or that he suffered any prejudice as a result of the misconduct described in his petition. Rather, he states in conclusory terms and without supporting evidence, that "while it may be said that there was no prejudice to Mr. Sledge resulting from such juror misconduct, there is no factual basis for any similar finding regarding the defendant Kenneth Augustine" (Pet. at P. 9). Since Augustine has failed to demonstrate that the conduct of the jury affected its verdict or otherwise prejudiced Augustine, the undersigned recommends that this Ground be denied.
5. Fourth Amendment Claims
Several of Augustine's Grounds allege violations of his Fourth Amendment right against unreasonable searches and seizures. Specifically, Augustine contends that: (i) the initial search warrant the police attempted to execute was for the wrong residence, and before a "correct" search warrant was obtained, the police wrongfully searched his apartment (Ground Five); (ii) statements that he made to the police were improperly used to obtain search warrants which led to evidence that was used against him (Ground Eight); (iii) the search of his attorney's law office was improper (Ground Nine); and, (iv) the applications for the search warrants that resulted in the seizure of evidence were legally insufficient (Ground Ten).
"[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Capellan v. Riley, 975 F.2d 67, 70 (2nd Cir. 1992) (citing Stone v. Powell, 428 U.S. 465, 481-82 (1976)). The Second Circuit has noted that review of Fourth Amendment claims in habeas petitions may only be undertaken in one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process. Capellan, 975 F.2d at 70 (citation omitted); Martinez v. Senkowski, 2000 WL 888031, at *7 (N.D.N.Y. June 28, 2000) (Scullin, C.J.).
New York State has provided an opportunity for defendants to fully and fairly litigate Fourth Amendment claims. See CPL § 710; Capellan, 975 F.2d at 70 n. 1; Jackson v. Lacy, 74 F. Supp.2d 173, 176 (N.D.N.Y. Sept. 29, 1999) (McAvoy, C.J.) (adopting Report-Recommendation of Magistrate Judge Ralph W. Smith, Jr.). Specifically, CPL § 710.20, permits a criminal defendant to move to suppress evidence he believes was unlawfully or improperly acquired if he "has reasonable cause to believe that such may be offered against him in a criminal action." Id.
In this case, Augustine had the opportunity to raise these claims in his omnibus motion. The fact that Augustine's counsel did not timely assert these challenges is of no moment — "a full and fair opportunity to litigate a Fourth Amendment claim only requires the mere presence of the opportunity, defendant need not avail himself of that opportunity." Collins v. Scully, 878 F. Supp. 452, 458 n. 11 (E.D.N.Y. 1995) (citing Gates v. Henderson, 568 F.2d 830, 836-40 (2d Cir. 1977) (en banc)). Since Augustine had the opportunity to litigate the Fourth Amendment claims now asserted in Grounds Five, Eight, Nine and Ten of the petition, and there is no evidence that he was precluded from filing a motion under the CPL because of an unconscionable breakdown in the underlying process, the court recommends that the petition be denied as to these Grounds.
Moreover, as noted above, Augustine procedurally defaulted on the claims asserted in his omnibus motion which included Fourth Amendment challenges, see PP. 10-11, and he has failed to establish good cause for and actual prejudice resulting from his non-compliance with the state's procedural rule, or that the failure to consider the merits of his claims would result in a fundamental miscarriage of justice.
The Court addresses the merits of Augustine's ineffectiveness claims concerning these Grounds at P. 24 of this Report-Recommendation.
6. Rosario Material
Ground Six of the petition argues that the prosecution wrongfully failed to preserve the tape recording of a telephone call allegedly made to the Tompkins County Sheriff "by the original complainant." Although not specified by Augustine, it appears as though the "original complainant" to whom this Ground refers to is Ritchen, who was on the telephone with Slater during the time of his death (App. at PP. 2229-33). Rosario requires disclosure of recorded pretrial statements related to the testimony of prosecution witnesses at trial. Where a party establishes that the prosecution failed to disclose prior statements of its own witnesses, the conviction must generally be reversed. Flores v. Demskie, 215 F.3d 293 (2nd Cir.) (citation omitted), cert. denied sub nom., Keane v. Flores, ___ U.S. ___, 121 S.Ct. 606 (2000).
In this case, the prosecution turned over to Augustine the tape recording of the telephone call Ritchen placed to the Ithaca Police Department (R. App. at PP. 144-47). However, there is no evidence that Ritchen ever placed a telephone call to the Tompkins County Sheriff, or which substantiates Augustine's claim that the transcription of this claimed telephone call was destroyed. Since there is no evidence that the telephone call that forms the basis of this claim was ever placed, the Court recommends that this Ground be denied.
7. Prosecutorial Misconduct
In his next claim, Augustine alleges that the prosecution's summation was improper because it, inter alia, shifted the burden of proof, misinstructed the jury, argued facts not in evidence and misrepresented Augustine's testimony (Pet. at P. 12).
However, a petition asserting only conclusory allegations of prosecutorial misconduct must be denied. Avincola v. Stinson, 60 F. Supp.2d 133, 161 (S.D.N.Y. 1999) (citations omitted). In this case, Augustine has failed to point to any portion of the record that supports any of his claims alleging misconduct on behalf of the prosecution. See Pet. at 12. By failing to substantiate any of his claims with citations to the record, Augustine has asked the court to comb through the entire transcript relating to the summation in the hopes of finding testimony that supports Augustine's claims. This is wholly improper and contrary to Rule 2 of the Rules Governing Habeas Corpus Proceedings (requiring that petition specify all of the grounds for relief and that petitioner "set forth in summary form the facts supporting each of the grounds thus specified"). Therefore, the court could recommend denying this Ground on this basis alone. However, the court has reviewed the prosecution's summation, see App. at PP. 2763-2829, in conjunction with this Ground and finds that Augustine is not entitled to relief for substantive reasons.
In order to succeed on this claim, Augustine must establish that the prosecutor's comments caused him "substantial prejudice." United States v. Bautista, 23 F.3d 726, 732 (2d Cir. 1994). To determine whether substantial prejudice exists, courts should weigh the severity of the alleged misconduct, the measures adopted to cure it, and the certainty of conviction absent the misconduct. See United States v. Russo, 74 F.3d 1383, 1396 (2nd Cir. 1996); see also, U.S. v. Lohm, 1993 WL 488635, at *13 (N.D.N.Y. 1993) (Munson, S.J.), aff'd, 47 F.3d 1157 (2nd Cir.), cert. denied, 514 U.S. 1075 (1995).
On numerous occasions during the prosecution's close, the trial court specifically advised the jury as to their proper role, as well as the role of the court and counsel, and corrected the prosecutor when he made improper comments. Thus, Judge Barrett: (i) advised the jury that only the court instructed them as to the law (App. at P. 2766); (ii) noted that only the jury's recollection of fact mattered (Id. at P. 2769); (iii) made clear that if attorneys misstated evidence during summations, the jury was to disregard such comments (Id. at P. 2781); (iv) cautioned the jury to disregard the personal opinions of attorneys regarding evidence (Id. at PP. 2783-84); (v) sustained an objection to the prosecution's characterization of Sledge as a liar (Id. at PP. 2796-97); (vi) noted that the comments of counsel during summation were not evidence (Id. at PP. 2811-12); and, (vii) instructed the jury that the defendants did not have to prove their innocence, and that the burden of proof remained at all times with the prosecution (Id. at PP. 2821-22).
Thus, the record before the Court indicates that although the prosecution might have committed some errors during the course of its summation, Judge Barrett promptly took measures to cure such errors. Moreover, in light of the evidence presented at trial, it is clear that Augustine would have been convicted notwithstanding any of the claimed errors of the prosecutor during his summation. Therefore, the court recommends that this Ground for relief be denied.
8. Ventimiglia and Sandoval Hearings
Augustine next contends that "[t]he record shows the absence of . . . Augustine from the Ventimiglia and Sandoval hearings" (Pet. at P. 19).
A criminal defendant has a right to be present at all material stages of trial. Clark v. Stinson, 214 F.3d 315, 322 (2nd Cir.) (citations omitted), cert. denied, ___ U.S. ___, 121 S.Ct. 865 (2001). However, Augustine has not cited, and this Court has not found, any authority standing for the proposition that a defendant's failure to be present during the course of either a Ventimiglia or Sandoval hearing is adequate ground upon which a federal court may grant a writ of habeas corpus. Moreover, Augustine has not established that he was not, in fact, present during that combined hearing which was held by Judge Barrett. It appears as though a Corrections Officer was present during the hearing, and her presence was apparently only necessary to provide security to Judge Barrett due to the presence of Augustine during the course of the hearing. See App. at PP. 2136-40.
The petitioner bears the burden of proving in his habeas petition that his constitutional rights were violated in the state court proceeding. Whitaker v. Meachum, 123 F.3d 714, 716 (2nd Cir. 1997) (citing Walker v. Johnston, 312 U.S. 275, 286 (1941)) (petitioner has the burden of "sustaining his allegations by a preponderance of evidence" on collateral review) (other citations omitted). Moreover, it is well settled that there is a "strong presumption of constitutional regularity in state judicial proceedings." Darr v. Burford, 339 U.S. 200, 218 (1950). Thus, a habeas court will presume "regularity" in the conduct of the trial, absent substantial contrary evidence. See e.g., Calizaire v. Lacy, 1996 WL 586795, at *2 (E.D.N.Y. Oct. 10, 1996) (emphasis added). Additionally, the law in New York is clear that a court clerk's or court reporter's failure to specifically note a defendant's presence is insufficient to rebut the presumption of regularity during trial. Id.; Benitez v. Senkowski, 1998 WL 668079, at *8 (S.D.N.Y. Sept. 17, 1998) (citations omitted); Cf. People v. Robinson, 191 A.D.2d 523, 523 (2d Dep't 1993) (defendant could not overcome presumption of regularity despite the fact that Sandoval hearing minutes did not indicate whether or not he was present; defendant offered "no additional evidence supporting his conclusory assertion that he was not present").
Since Augustine has failed to establish that he: (i) had a right under the U.S. Constitution to be present at the hearing referenced above; and, (ii) was absent from that hearing, the court recommends that this Ground be denied.
9. Ineffective Assistance of Counsel
Finally, as noted above, Augustine has alleged in Grounds One, Two, Three, Six, Seven, Eight, Nine, Ten and Eleven that he received ineffective assistance of counsel.
The Supreme Court has articulated a two-pronged test to determine whether a criminal defendant received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984). To establish ineffective assistance, a habeas petitioner must show: (1) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and, (2) prejudice, i.e., that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998) (per curiam) (citing Strickland, 466 U.S. at 688-90); Brown v. Artuz, 124 F.3d 73, 79-80 (2nd Cir. 1997), cert. denied, 522 U.S. 1128 (1998); Mask v. McGinnis, 233 F.3d 132, 140 (2d Cir. 2000). As to this second factor, a petitioner cannot establish prejudice simply by demonstrating that counsel's errors only had some "conceivable effect" on the outcome of the case. Strickland, 466 U.S. at 693. Rather, a petitioner must show that absent counsel's errors, the result would likely have been different, considering the totality of the evidence. Id. at 694; Alvarez v. Keane, 92 F. Supp.2d 137, 147 (E.D.N.Y. 2000).
Augustine has failed to demonstrate that his attorney's conduct fell below an objective standard of reasonableness.
The omnibus motion was filed late because, as is stated in the petition, Augustine himself was unavailable to sign the moving affidavit necessary for filing on the day the motion was required to be filed (Pet. at 4). Since Augustine admits that the delay in filing "was caused by the . . . absence of . . . Augustine," Id., he has not established ineffectiveness with respect to Ground One. Nor has he presented any proof that indicates Sullivan's conduct was objectively unreasonable on appeal (Ground Two). With respect to the selection of the jury, a review of the transcript (see App. at PP. 2160-68) discloses no evidence of objectively unreasonable conduct on the part of Sullivan. Next, since there is no evidence that Ritchen ever placed a telephone call to the Tompkins County Sheriff, Sullivan cannot be found to have rendered ineffective assistance with respect to the allegations in Ground Six. Furthermore, the record is replete with objections made by Sullivan concerning the prosecution's closing argument and, in fact, he sought a mistrial based upon it (App. at PP. 2831-32). Thus, no evidence of ineffectiveness has been established by Augustine as to Ground Seven. With respect to the ineffectiveness claims asserted in Grounds Eight through Ten, it is clear that Sullivan sought to suppress the evidence referenced in these claims in his omnibus motion, but Augustine effectively prevented Sullivan from timely filing that motion. Thus, Augustine has not established this claim as to these Grounds. Finally, since Augustine has not demonstrated either a federal right to be present during Ventimiglia or Sandoval hearings, or that he was not present during the combined hearing before Judge Barrett, he has not established ineffectiveness as to his Eleventh Ground. Accordingly, the court recommends that Augustine's application for habeas relief be denied as to his ineffectiveness claims.
Moreover, no evidence has been presented that supports the second element under Strickland, i.e., that the outcome of his trial would have been different but for his counsel's performance.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Augustine's petition be DENIED and DISMISSED for the reasons stated above; and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6 and 72.